[Constitution of the United States of America: Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[First Amendment - Religion and Expression]
[From the U.S. Government Printing Office, www.gpo.gov]
[[Page 965]]
FIRST AMENDMENT
__________
RELIGION AND EXPRESSION
__________
CONTENTS
Page
Religion.................................................. 969
An Overview............................................... 969
Scholarly Commentary.............................. 970
Court Tests Applied to Legislation Affecting
Religion...................................... 972
Government Neutrality in Religious Disputes....... 974
Establishment of Religion................................. 977
Financial Assistance to Church-Related
Institutions.................................. 977
Governmental Encouragement of Religion in Public
Schools: Released Time........................ 991
Governmental Encouragement of Religion in Public
Schools: Prayers and Bible Reading............ 993
Governmental Encouragement of Religion in Public
Schools: Curriculum Restriction............... 996
Access of Religious Groups to School Property..... 997
Tax Exemptions of Religious Property.............. 997
Exemption of Religious Organizations from
Generally Applicable Laws..................... 999
Sunday Closing Laws............................... 999
Conscientious Objection........................... 1000
Regulation of Religious Solicitation.............. 1001
Religion in Governmental Observances.............. 1002
Miscellaneous..................................... 1004
Free Exercise of Religion................................. 1005
The Belief-Conduct Distinction.................... 1007
The Mormon Cases.................................. 1009
The Jehovah's Witnesses Cases..................... 1010
Free Exercise Exemption from General Governmental
Requirements.................................. 1011
Religious Test Oaths.............................. 1019
Religious Disqualification........................ 1019
Freedom of Expression--Speech and Press................... 1020
Adoption and Common Law Background........................ 1020
Freedom of Expression: The Philosophical Basis............ 1025
Freedom of Expression: Is There a Difference Between
Speech and Press...................................... 1026
The Doctrine of Prior Restraint........................... 1029
Injunctions and the Press in Fair Trial Cases..... 1031
Obscenity and Prior Restraint..................... 1033
Subsequent Punishment: Clear and Present Danger and Other
Tests................................................. 1034
Clear and Present Danger.......................... 1036
The Adoption of Clear and Present Danger.......... 1038
Contempt of Court and Clear and Present Danger.... 1040
Clear and Present Danger Revised: Dennis.......... 1042
Balancing......................................... 1044
The ``Absolutist'' View of the First Amendment,
with a Note on ``Preferred Position''......... 1048
Of Other Tests and Standards: Vagueness,
Overbreadth, Least Restrictive Means, and
Others........................................ 1050
[[Page 966]]
Is There a Present Test?.......................... 1051
Freedom of Belief......................................... 1053
Flag Salute Cases................................. 1053
Imposition of Consequences for Holding Certain
Beliefs....................................... 1054
Right of Association...................................... 1056
Political Association............................. 1061
Conflict Between Organization and Members......... 1064
Maintenance of National Security and the First Amendment.. 1066
Punishment of Advocacy............................ 1067
Compelled Registration of Communist Party......... 1069
Punishment for Membership in an Organization Which
Engages in Proscribed Advocacy................ 1070
Disabilities Attaching to Membership in Proscribed
Organizations................................. 1071
Employment Restrictions and Loyalty Oaths......... 1073
Legislative Investigations and the First Amendment 1078
Interference With War Effort...................... 1079
Suppression of Communist Propaganda in the Mails.. 1080
Exclusion of Certain Aliens as a First Amendment
Problem....................................... 1080
Particular Government Regulations Which Restrict
Expression............................................ 1081
Government as Employer: Political Activities...... 1081
Government as Employer: Free Expression Generally. 1084
Government as Educator............................ 1090
Government as Regulator of the Electoral Process:
Elections..................................... 1094
Government as Regulator of the Electoral Process:
Lobbying...................................... 1101
Government as Regulator of Labor Relations........ 1102
Government as Investigator: Journalist's Privilege 1102
Government and the Conduct of Trials.............. 1105
Government as Administrator of Prisons............ 1108
Government and Power of the Purse................. 1112
Governmental Regulation of Communications Industries...... 1113
Commercial Speech................................. 1113
Taxation.......................................... 1119
Labor Relations................................... 1121
Antitrust Laws.................................... 1122
Radio and Television.............................. 1123
Governmentally Compelled Right of Reply to
Newspapers.................................... 1127
Government Restraint of Content of Expression............. 1127
Seditious Speech and Seditious Libel.............. 1131
Fighting Words and Other Threats to the Peace..... 1133
Group Libel, Hate Speech.......................... 1135
Defamation........................................ 1136
Invasion of Privacy............................... 1145
Emotional Distress Tort Actions................... 1147
``Right of Publicity'' Tort Actions............... 1147
Publication of Legally Confidential Information... 1148
Obscenity......................................... 1149
Child Pornography................................. 1159
Nonobscene But Sexually Explicit and Indecent
Expression.................................... 1160
Speech Plus--The Constitutional Law of Leafleting,
Picketing, and Demonstrating.......................... 1164
The Public Forum.................................. 1164
Quasi-Public Places............................... 1171
[[Page 967]]
Picketing and Boycotts by Labor Unions............ 1173
Public Issue Picketing and Parading............... 1174
Leafleting, Handbilling, and the Like............. 1180
Sound Trucks, Noise............................... 1181
Door-to-Door Solicitation......................... 1182
The Problem of ``Symbolic Speech''................ 1183
Rights of Assembly and Petition........................... 1187
Background and Development................................ 1187
The Cruikshank Case............................... 1189
The Hague Case.................................... 1190
[[Page 969]]
FIRST AMENDMENT
RELIGION AND EXPRESSION
__________
Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.
RELIGION
An Overview
Madison's original proposal for a bill of rights provision
concerning religion read: ``The civil rights of none shall be abridged
on account of religious belief or worship, nor shall any national
religion be established, nor shall the full and equal rights of
conscience be in any manner, or on any pretence, infringed.''\1\ The
language was altered in the House to read: ``Congress shall make no law
establishing religion, or to prevent the free exercise thereof, or to
infringe the rights of conscience.''\2\ In the Senate, the section
adopted read: ``Congress shall make no law establishing articles of
faith, or a mode of worship, or prohibiting the free exercise of
religion, . . .''\3\ It was in the conference committee of the two
bodies, chaired by Madison, that the present language was written with
its some
[[Page 970]]
what more indefinite ``respecting'' phraseology.\4\ Debate in Congress
lends little assistance in interpreting the religion clauses; Madison's
position, as well as that of Jefferson who influenced him, is fairly
clear,\5\ but the intent, insofar as there was one, of the others in
Congress who voted for the language and those in the States who voted to
ratify is subject to speculation.
\1\1 Annals of Congress 434 (June 8, 1789).
\2\The committee appointed to consider Madison's proposals, and
on which Madison served, with Vining as chairman, had rewritten the
religion section to read: ``No religion shall be established by law, nor
shall the equal rights of conscience be infringed.'' After some debate
during which Madison suggested that the word ``national'' might be
inserted before the word ``religion'' as ``point[ing] the amendment
directly to the object it was intended to prevent,'' the House adopted a
substitute reading: ``Congress shall make no laws touching religion, or
infringing the rights of conscience.'' 1 Annals of Congress 729-31
(August 15, 1789). On August 20, on motion of Fisher Ames, the language
of the clause as quoted in the text was adopted. Id. at 766. According
to Madison's biographer, ``[t]here can be little doubt that this was
written by Madison.'' I. Brant, James Madison--Father of the
Constitution 1787-1800 at 271 (1950).
\3\This text, taken from the Senate Journal of September 9,
1789, appears in 2 B. Schwartz (ed.), The Bill of Rights: A Documentary
History 1153 (1971). It was at this point that the religion clauses were
joined with the freedom of expression clauses.
\4\1 Annals of Congress 913 (September 24, 1789). The Senate
concurred the same day. See I. Brant, James Madison--Father of the
Constitution 1787-1800, 271-72 (1950).
\5\During House debate, Madison told his fellow Members that
``he apprehended the meaning of the words to be, that Congress should
not establish a religion, and enforce the legal observation of it by
law, nor compel men to worship God in any Manner contrary to their
conscience.'' 1 Annals of Congress 730 (August 15, 1789). That his
conception of ``establishment'' was quite broad is revealed in his veto
as President in 1811 of a bill which in granting land reserved a parcel
for a Baptist Church in Salem, Mississippi; the action, explained
President Madison, ``comprises a principle and precedent for the
appropriation of funds of the United States for the use and support of
religious societies, contrary to the article of the Constitution which
declares that `Congress shall make no law respecting a religious
establishment.''' 8 The Writings of James Madison (G. Hunt. ed.) 132-33
(1904). Madison's views were no doubt influenced by the fight in the
Virginia legislature in 1784-1785 in which he successfully led the
opposition to a tax to support teachers of religion in Virginia and in
the course of which he drafted his ``Memorial and Remonstrance against
Religious Assessments'' setting forth his thoughts. Id. at 183-91; I.
Brant, James Madison--The Nationalist 1780-1787, 343-55 (1948). Acting
on the momentum of this effort, Madison secured passage of Jefferson's
``Bill for Religious Liberty''. Id. at 354; D. Malone, Jefferson the
Virginian 274-280 (1948). The theme of the writings of both was that it
was wrong to offer public support of any religion in particular or of
religion in general.
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Scholarly Commentary.--The explication of the religion clauses
by the scholars has followed a restrained sense of their meaning. Story,
who thought that ``the right of a society or government to interfere in
matters of religion will hardly be contested by any persons, who believe
that piety, religion, and morality are intimately connected with the
well being of the state, and indispensable to the administration of
civil justice,''\6\ looked upon the prohibition simply as an exclusion
from the Federal Government of all power to act upon the subject. ``The
situation . . . of the different states equally proclaimed the policy,
as well as the necessity of such an exclusion. In some of the states,
episcopalians constituted the predominant sect; in others presbyterians;
in others, congregationalists; in others, quakers; and in others again,
there was a close numerical rivalry among contending sects. It was
impossible, that there should not arise perpetual strife and perpetual
jealousy on the subject of ecclesiastical ascendancy, if the national
government were left free to create a religious establishment. The only
security was in extirpating the power. But this alone would have been an
imperfect security, if it had not been followed up by a declaration
[[Page 971]]
of the right of the free exercise of religion, and a prohibition (as we
have seen) of all religious tests. Thus, the whole power over the
subject of religion is left exclusively to the state governments, to be
acted upon according to their own sense of justice, and the state
constitutions; and the Catholic and the Protestant, the Calvinist and
the Arminian, the Jew and the Infidel, may sit down at the common table
of the national councils, without any inquisition into their faith, or
mode of worship.''\7\
\6\3 J. Story, Commentaries on the Constitution of the United
States 1865 (1833).
\7\Id. at 1873.
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``Probably,'' Story also wrote, ``at the time of the adoption of
the constitution and of the amendment to it, now under consideration,
the general, if not the universal, sentiment in America was, that
Christianity ought to receive encouragement from the state, so far as
was not incompatible with the private rights of conscience, and the
freedom of religious worship. An attempt to level all religions, and to
make it a matter of state policy to hold all in utter indifference,
would have created universal disapprobation, if not universal
indignation.''\8\ The object, then, of the religion clauses in this view
was not to prevent general governmental encouragement of religion, of
Christianity, but to prevent religious persecution and to prevent a
national establishment.\9\
\8\Id. at 1868.
\9\For a late expounding of this view, see T. Cooley, General
Principles of Constitutional Law in the United States 224-25 (3d ed.
1898).
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This interpretation has long since been abandoned by the Court,
beginning, at least, with Everson v. Board of Education,\10\ in which
the Court, without dissent on this point, declared that the
Establishment Clause forbids not only practices that ``aid one
religion'' or ``prefer one religion over another,'' but as well those
that ``aid all religions.'' Recently, in reliance on published scholarly
research and original sources, Court dissenters have recurred to the
argument that what the religion clauses, principally the Establishment
Clause, prevent is ``preferential'' governmental promotion of some
religions, allowing general governmental promotion of all religion in
general.\11\ The Court has not responded, though Justice Souter in a
major concurring opinion did undertake to rebut the argument and to
restate the Everson position.\12\
\10\330 U.S. 1, 15 (1947). Establishment Clause jurisprudence
since, whatever its twists and turns, maintains this view.
\11\Wallace v. Jaffree, 472 U.S. 38, 91 (1985) (then-Justice
Rehnquist dissenting). More recently, dissenters, including now-Chief
Justice Rehnquist, have appeared reconciled to a ``constitutional
tradition'' in which governmental endorsement of religion is out of
bounds, even if it is not correct as a matter of history. See Lee v.
Weisman, 112 S. Ct. 2649, 2678, 2683-84 (1992) (Justice Scalia, joined
by the Chief Justice and Justices White and Thomas, dissenting).
\12\Lee v. Weisman, 112 S. Ct. 2649, 2667 (1992) (Justice
Souter, joined by Justices Stevens and O'Connor, concurring).
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[[Page 972]]
Court Tests Applied to Legislation Affecting Religion.--Before
considering the development of the two religion clauses by the Supreme
Court, one should notice briefly the tests developed by which religion
cases are adjudicated by the Court. While later cases rely on a series
of rather well-defined, if difficult-to-apply, tests, the language of
earlier cases ``may have [contained] too sweeping utterances on aspects
of these clauses that seemed clear in relation to the particular cases
but have limited meaning as general principles.''\13\ It is well to
recall that ``the purpose [of the religion clauses] was to state an
objective, not to write a statute.''\14\
\13\Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970).
\14\Id.
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In 1802, President Jefferson wrote a letter to a group of
Baptists in Danbury, Connecticut, in which he declared that it was the
purpose of the First Amendment to build ``a wall of separation between
Church and State.''\15\ In Reynolds v. United States,\16\ Chief Justice
Waite for the Court characterized the phrase as ``almost an
authoritative declaration of the scope and effect of the amendment.'' In
its first encounters with religion-based challenges to state programs,
the Court looked to Jefferson's metaphor for substantial guidance.\17\
But a metaphor may obscure as well as illuminate, and the Court soon
began to emphasize neutrality and voluntarism as the standard of
restraint on governmental action.\18\
[[Page 973]]
The concept of neutrality itself is ``a coat of many colors,''\19\ and
three standards that could be stated in objective fashion emerged as
tests of Establishment Clause validity. The first two standards were
part of the same formulation. ``The test may be stated as follows: what
are the purpose and the primary effect of the enactment? If either is
the advancement or inhibition of religion then the enactment exceeds the
scope of legislative power as circumscribed by the Constitution. That is
to say that to withstand the strictures of the Establishment Clause
there must be a secular legislative purpose and a primary effect that
neither advances nor inhibits religion.''\20\ The third test is whether
the governmental program results in ``an excessive government
entanglement with religion. The test is inescapably one of degree . . .
[T]he questions are whether the involvement is excessive, and whether it
is a continuing one calling for official and continuing surveillance
leading to an impermissible degree of entanglement.''\21\ In 1971 these
three tests were combined and restated in Chief Justice Burger's opinion
for the Court in Lemon v. Kurtzman,\22\ and are frequently referred to
by reference to that case name.
\15\16 The Writings of Thomas Jefferson 281 (A. Libscomb ed.,
1904).
\16\98 U.S. 145, 164 (1879).
\17\Everson v. Board of Education, 330 U.S. 1, 16 (1947);
Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 211, 212
(1948); cf. Zorach v. Clauson, 343 U.S. 306, 317 (1952) (Justice Black
dissenting). In Lemon v. Kurtzman, 403 U.S. 602, 614 (1971), Chief
Justice Burger remarked that ``the line of separation, far from being a
`wall,' is a blurred, indistinct and variable barrier depending on all
the circumstances of a particular relationship.'' Similar observations
were repeated by the Chief Justice in his opinion for the Court in Lynch
v. Donnelly, 465 U.S. 668, 673 (1984) (the metaphor is not ``wholly
accurate''; the Constitution does not ``require complete separation of
church and state [but] affirmatively mandates accommodation, not merely
tolerance, of all religions, and forbids hostility toward any'').
\18\Zorach v. Clauson, 343 U.S. 306, 314 (1952); Engel v.
Vitale, 370 U.S. 421 (1962); Sherbert v. Verner, 374 U.S. 398 (1963);
Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Justice
Goldberg concurring); Walz v. Tax Comm'n, 397 U.S. 664, 694-97 (1970)
(Justice Harlan concurring). In the opinion of the Court in the latter
case, Chief Justice Burger wrote: ``The course of constitutional
neutrality in this area cannot be an absolutely straight line; rigidity
could well defeat the basic purpose of these provisions, which is to
insure that no religion be sponsored or favored, none commanded, and
none inhibited. The general principle deducible from the First Amendment
and all that has been said by the Court is this: that we will not
tolerate either governmentally established religion or governmental
interference with religion. Short of those expressly proscribed
governmental acts there is room for play in the joints productive of a
benevolent neutrality which will permit religious exercise to exist
without sponsorship and without interference.'' Id. at 669.
\19\Board of Education v. Allen, 392 U.S. 236, 249 (1968)
(Justice Harlan concurring).
\20\Abington School District v. Schempp, 374 U.S. 203, 222
(1963).
\21\Walz v. Tax Comm'n, 397 U.S. 664, 674-75 (1970).
\22\403 U.S. 602, 612-13 (1971).
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Although at one time accepted in principle by all of the
Justices,\23\ the tests have sometimes been difficult to apply,\24\ have
recently come under direct attack by some Justices,\25\ and in two in
[[Page 974]]
stances have not been applied at all by the Court.\26\ While continued
application is uncertain, the Lemon tests nonetheless have served for
twenty years as the standard measure of Establishment Clause validity
and explain most of the Court's decisions in the area.\27\ As of the end
of the Court's 1991-92 Term, there was not yet a consensus among Lemon
critics as to what substitute test should be favored.\28\ Reliance on
``coercion'' for that purpose would eliminate a principal distinction
between establishment cases and free exercise cases and render the
Establishment Clause largely duplicative of the Free Exercise
Clause.\29\
\23\E.g., Committee for Public Educ. & Religious Liberty v.
Regan, 444 U.S. 646, 653 (1980), and id. at 665 (dissenting opinion);
Stone v. Graham, 449 U.S. 39, 40 (1980), and id. at 43 (dissenting
opinion).
\24\The tests provide ``helpful signposts,'' Hunt v. McNair, 413
U.S. 734, 741 (1973), and are at best ``guidelines'' rather than a
``constitutional caliper;'' they must be used to consider ``the
cumulative criteria developed over many years and applying to a wide
range of governmental action.'' Inevitably, ``no `bright line' guidance
is afforded.'' Tilton v. Richardson, 403 U.S. 672, 677-78 (1971). See
also Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S.
756, 761 & n.5, 773 n.31 (1973); Committee for Public Educ. & Religious
Liberty v. Regan, 444 U.S. 646, 662 (1980), and id. at 663 (Justice
Blackmun dissenting).
\25\See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636-40 (1987)
(Justice Scalia, joined by Chief Justice Rehnquist, dissenting)
(advocating abandonment of the ``purpose'' test); Wallace v. Jaffree,
472 U.S. 38, 108-12 (1985) (Justice Rehnquist dissenting); Aguilar v.
Felton, 473 U.S. 402, 426-30 (1985) (Justice O'Connor, dissenting)
(addressing difficulties in applying the entanglement prong); Roemer v.
Maryland Bd. of Public Works, 426 U.S. 736, 768-69 (Justice White
concurring in judgment) (objecting to entanglement test). Justice
Kennedy has also acknowledged criticisms of the Lemon tests, while at
the samed time finding no need to reexamine them. See, e.g., Allegheny
County v. Greater Pittsburgh ACLU, 492 U.S. 573, 655-56 (1989). At least
with respect to public aid to religious schools, Justice Stevens would
abandon the tests and simply adopt a ``no-aid'' position. Committee for
Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980).
\26\See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding
legislative prayers on the basis of historical practice); Lee v.
Weisman, 112 S. Ct. 2649, 2655 (1992) (rejecting a request to reconsider
Lemon because the practice of invocations at public high school
graduations was invalid under established school prayer precedents). The
Court has also held that the tripartite test is not applicable when law
grants a denominational preference, distinguishing between religions;
rather, the distinction is to be subjected to the strict scrutiny of a
suspect classification. Larson v. Valente, 456 U.S. 228, 244-46 (1982).
\27\Justice Blackmun, concurring in Lee, contended that Marsh
was the only one of 31 Establishment cases between 1971 and 1992 not to
be decided on the basis on the Lemon tests. 112 S. Ct. at 2663, n.4.
\28\In 1990 Justice Kennedy, joined by Justice Scalia, proposed
that ``neutral'' accommodations of religion should be permissible so
long as they do not establish a state religion, and so long as there is
no ``coercion'' to participate in religious exercises. Westside
Community Bd. of Educ. v. Mergens, 496 U.S. 226, 260-61. The two
Justices parted company, however, over the permissiblity of invocations
at public high school graduation ceremonies, Justice Scalia in dissent
strongly criticizing Justice Kennedy's approach in the opinion of the
Court for its reliance on psychological coercion. Justice Scalia would
not ``expand[ ] the concept of coercion beyond acts backed by threat of
penalty.'' Lee v. Weisman, 112 S. Ct. 2649, 2684 (1992). Chief Justice
Rehnquist has advocated limiting application to a prohibition on
establishing a national (or state) church or favoring one religious
group over another. Wallace v. Jaffree, 472 U.S. 38, 98, 106 (1985)
(dissenting).
\29\Abington School District v. Schempp, 374 U.S. 203, 222-23
(1963). See also Board of Education v. Allen, 392 U.S. 236, 248-49
(1968); and Tilton v. Richardson, 403 U.S. 672, 689 (1971); Lee v.
Weisman, 112 S. Ct. 2649, 2673 (Justice Souter concurring) (``a literal
application of the coercion test would render the Establishment Clause a
virtual nullity'').
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Government Neutrality in Religious Disputes.--One value that
both clauses of the religion section serve is to enforce governmental
neutrality in deciding controversies arising out of religious disputes.
Schism sometimes develops within churches or between a local church and
the general church, resulting in secession or expulsion of one faction
or of the local church. A dispute over which body is to have control of
the property of the church will then often be taken into the courts. It
is now established that both religion clauses prevent governmental
inquiry into religious doctrine in settling such disputes, and instead
require courts simply to look to the decision-making body or process in
the church and to give effect to whatever decision is officially and
properly made.
[[Page 975]]
The first such case was Watson v. Jones,\30\ which was decided
on common-law grounds in a diversity action without explicit reliance on
the First Amendment. A constitutionalization of the rule was made in
Kedroff v. St. Nicholas Cathedral,\31\ in which the Court held
unconstitutional a state statute that recognized the autonomy and
authority of those North American branches of the Russian Orthodox
Church which had declared their independence from the general church.
Recognizing that Watson v. Jones had been decided on nonconstitutional
grounds, the Court thought nonetheless that the opinion ``radiates . . .
a spirit of freedom for religious organizations, and independence from
secular control or manipulation--in short, power to decide for
themselves, free from state interference, matters of church government
as well as those of faith and doctrine.''\32\ The power of civil courts
to resolve church property disputes was severely circumscribed, the
Court held, because to permit resolution of doctrinal disputes in court
was to jeopardize First Amendment values. What a court must do, it was
held, is to look at the church rules: if the church is a hierarchical
one which reposes determination of ecclesiastical issues in a certain
body, the resolution by that body is determinative, while if the church
is a congregational one prescribing action by a majority vote, that
determination will prevail.\33\ On the other hand, a court confronted
with a church property dispute could apply ``neutral principles of law,
developed for use in all property disputes,'' when to do so would not
require resolution of doctrinal issues.\34\ In a later case the Court
elaborated on the limits of proper inquiry, holding that an argument
over a matter of internal church government, the power to reorganize the
dioceses of a hierarchical church in this country, was ``at the core of
ecclesiastical affairs'' and a court could not interpret the church
constitution to make an inde
[[Page 976]]
pendent determination of the power but must defer to the interpretation
of the body authorized to decide.\35\
\30\80 U.S. (13 Wall.) 679 (1872).
\31\344 U.S. 94 (1952). Kedroff was grounded on the Free
Exercise Clause. Id. at 116. But the subsequent cases used a collective
``First Amendment'' designation.
\32\Id. at 116. On remand, the state court adopted the same
ruling on the merits but relied on a common-law rule rather than the
statute. This too was struck down. Kreshik v. St. Nicholas Cathedral,
363 U.S. 190 (1960).
\33\Presbyterian Church v. Hull Memorial Presbyterian Church,
393 U.S. 440, 447, 450-51 (1969); Maryland and Virginia Eldership of the
Churches of God v. Church of God at Sharpsburg, 396 U.S. 367 (1970). For
a similar rule of neutrality in another context, see United States v.
Ballard, 322 U.S. 78 (1944) (denying defendant charged with mail fraud
through dissemination of purported religious literature the right to
present to the jury evidence of the truthfulness of the religious views
he urged).
\34\Presbyterian Church v. Hull Memorial Presbyterian Church,
393 U.S. 440, 449 (1969); Maryland and Virginia Eldership of the
Churches of God v. Church of God of Sharpsburg, 396 U.S. 367, 368
(1970). See also id. at 368-70 (Justice Brennan concurring).
\35\The Serbian Eastern Orthodox Diocese v. Dionisije
Milivojevich, 426 U.S. 697, 720-25 (1976). In Gonzalez v. Archbishop,
280 U.S. 1 (1929), the Court had permitted limited inquiry into the
legality of the actions taken under church rules. The Serbian Eastern
Court disapproved of this inquiry with respect to concepts of
``arbitrariness,'' although it reserved decision on the ``fraud'' and
``collusion'' exceptions. 426 U.S. at 708-20.
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In Jones v. Wolf,\36\ however, a divided Court, while formally
adhering to these principles, appeared to depart in substance from their
application. A schism had developed in a local church which was a member
of a hierarchical church, and the majority voted to withdraw from the
general church. The proper authority of the general church determined
that the minority constituted the ``true congregation'' of the local
church and awarded them authority over it. The Court approved the
approach of the state court in applying neutral principles by examining
the deeds to the church property, state statutes, and provisions of the
general church's constitution concerning ownership and control of church
property in order to determine that no language of trust in favor of the
general church was contained in any of them and that the property thus
belonged to the local congregation.\37\ Further, the Court held, the
First Amendment did not prevent the state court from applying a
presumption of majority rule to award control to the majority of the
local congregation, provided that it permitted defeasance of the
presumption upon a showing that the identity of the local church is to
be determined by some other means as expressed perhaps in the general
church charter.\38\ The dissent argued that to permit a court narrowly
to view only the church documents relating to property ownership
permitted the ignoring of the fact that the dispute was over
ecclesiastical matters and that the general church had decided which
faction of the congregation was the local church.\39\
\36\443 U.S. 595 (1979). In the majority were Justices Blackmun,
Brennan, Marshall, Rehnquist, and Stevens. Dissenting were Justices
Powell, Stewart, White, and Chief Justice Burger.
\37\Id. at 602-06.
\38\Id. at 606-10. Because it was unclear whether the state
court had applied such a rule and applied it properly, the Court
remanded.
\39\Id. at 610.
---------------------------------------------------------------------------
Thus, it is unclear where the Court is on this issue. Jones v.
Wolf restated the rule that it is improper to review an ecclesiastical
dispute and that deference is required in those cases, but by approving
a neutral principles inquiry which in effect can filter out the
doctrinal issues underlying a church dispute, the Court seems
[[Page 977]]
to have approved at least an indirect limitation of the authority of
hierarchical churches.\40\
\40\The Court indicated that the general church could always
expressly provide in its charter or in deeds to property the proper
disposition of disputed property. But here the general church had
decided which faction was the ``true congregation,'' and this would
appear to constitute as definitive a ruling as the Court's suggested
alternatives. Id. at 606.
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Establishment of Religion
``[F]or the men who wrote the Religion Clauses of the First
Amendment the `establishment' of a religion connoted sponsorship,
financial support, and active involvement of the sovereign in religious
activity.''\41\ However, the Court's reading of the clause has never
resulted in the barring of all assistance which aids, however
incidentally, a religious institution. Outside this area, the decisions
generally have more rigorously prohibited what may be deemed
governmental promotion of religious doctrine.
\41\Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970). ``Two great
drives are constantly in motion to abridge, in the name of education,
the complete division of religion and civil authority which our
forefathers made. One is to introduce religious education and
observances into the public schools. The other, to obtain public funds
for the aid and support of various private religious schools. . . . In
my opinion both avenues were closed by the Constitution.'' Everson v.
Board of Education, 330 U.S. 1, 63 (1947) (Justice Rutledge dissenting).
---------------------------------------------------------------------------
Financial Assistance to Church-Related Institutions.--The
Court's first opportunity to rule on the validity of governmental
financial assistance to a religiously affiliated institution occurred in
1899, the assistance being a federal grant for the construction of a
hospital owned and operated by a Roman Catholic order. The Court viewed
the hospital as a secular institution so chartered by Congress and not
as a religious or sectarian body, thus avoiding the constitutional
issue.\42\ But when the right of local authorities to provide free
transportation for children attending parochial schools reached the
Court, it adopted very restrictive language. ``The `establishment of
religion' clause of the First Amendment means at least this: Neither a
state nor the Federal Government can set up a church. Neither can pass
laws which aid one religion, aid all religions, or prefer one religion
over another. Neither can force nor influence a person to go to or to
remain away from church against his will or force him to profess a
belief or disbelief in any religion. No person can be punished for
entertaining
[[Page 978]]
or professing religious beliefs or disbeliefs, for church attendance or
non-attendance. No tax in any amount, large or small, can be levied to
support any religious activities or institutions, whatever they may be
called, or whatever form they may adopt to teach or practice religion.
Neither a state nor the Federal Government can, openly or secretly,
participate in the affairs of any religious organizations or groups and
vice versa. In the words of Jefferson, the clause against establishment
of religion by law was intended to erect `a wall of separation between
church and State.'''\43\ But the majority sustained the provision of
transportation. While recognizing that ``it approaches the verge'' of
the State's constitutional power, still, Justice Black thought, the
transportation was a form of ``public welfare legislation'' which was
being extended ``to all its citizens without regard to their religious
belief.''\44\ ``It is undoubtedly true that children are helped to get
to church schools. There is even a possibility that some of the children
might not be sent to the church schools if the parents were compelled to
pay their children's bus fares out of their own pockets when
transportation to a public school would have been paid for by the
State.''\45\ Transportation benefited the child, just as did police
protection at crossings, fire protection, connections for sewage
disposal, public highways and sidewalks. Thus was born the ``child
benefit'' theory.\46\
\42\Bradfield v. Roberts, 175 U.S. 291 (1899). Cf. Abington
School District v. Schempp, 374 U.S. 203, 246 (1963) (Justice Brennan
concurring). In Cochran v. Board of Education, 281 U.S. 370 (1930), a
state program furnishing textbooks to parochial schools was sustained
under a due process attack without reference to the First Amendment. See
also Quick Bear v. Leupp, 210 U.S. 50 (1908) (statutory limitation on
expenditures of public funds for sectarian education does not apply to
treaty and trust funds administered by the Government for Indians).
\43\Everson v. Board of Education, 330 U.S. 1, 15-16 (1947).
\44\Id. at 16.
\45\Id. at 17. It was in Everson that the Court, without much
discussion of the matter, held that the Establishment Clause applied to
the States through the Fourteenth Amendment and limited both national
and state governments equally. Id. at 8, 13, 14-16. The issue is
discussed at some length by Justice Brennan in Abington School Dist. v.
Schempp, 374 U.S. 203, 253-58 (1963).
\46\And see Zorach v. Clauson, 343 U.S. 306, 312-13 (1952)
(upholding program allowing public schools to excuse students to attend
religious instruction or exercises).
---------------------------------------------------------------------------
The Court in 1968 relied on the ``child benefit'' theory to
sustain state loans of textbooks to parochial school students.\47\
Utilizing the secular purpose and effect tests,\48\ the Court determined
that the purpose of the loans was the ``furtherance of the educational
opportunities available to the young,'' while the effect was hardly less
secular. ``The law merely makes available to all children the benefits
of a general program to lend school books free of charge. Books are
furnished at the request of the pupil and ownership remains, at least
technically, in the State. Thus no funds or books are furnished to
parochial schools, and the financial benefit is to parents and children,
not to schools. Perhaps free books make it more likely that some
children choose to attend a sectarian
[[Page 979]]
school, but that was true of the state-paid bus fares in Everson and
does not alone demonstrate an unconstitutional degree of support for a
religious institution.''\49\
\47\Board of Education v. Allen, 392 U.S. 236 (1968).
\48\Supra, p.973.
\49\392 U.S. at 243-44 (1968).
---------------------------------------------------------------------------
From these beginnings, the case law on the discretion of state
and federal governmental assistance to sectarian elementary and
secondary schools has multiplied. Through the 1970s, at least, the law
became as restrictive in fact as the dicta in the early cases suggested,
save for the provision of some assistance to children under the ``child
benefit'' theory. Recent decisions evince a somewhat more accommodating
approach permitting public assistance if the religious missions of the
recipient schools may be only marginally served, or if the directness of
aid to the schools is attenuated by independent decisions of parents who
receive the aid initially. Throughout, the Court has allowed greater
discretion when colleges affiliated with religious institutions are
aided. Moreover, the opinions reveal a deep division among the Justices
over the application of the Lemon tripartite test to these
controversies.
A secular purpose is the first requirement to sustain the
validity of legislation touching upon religion, and upon this standard
the Justices display little disagreement. There are adequate legitimate,
non-sectarian bases for legislation to assist nonpublic, religious
schools: preservation of a healthy and safe educational environment for
all school children, promotion of pluralism and diversity among public
and nonpublic schools, and prevention of overburdening of the public
school system that would accompany the financial failure of private
schools.\50\
\50\Committee for Public Educ. & Religious Liberty v. Nyquist,
413 U.S. 756, 773 (1973). See also id. at 805 (Chief Justice Burger
dissenting), 812-13 (Justice Rehnquist dissenting), 813 (Justice White
dissenting). And see Wolman v. Walter, 433 U.S. 229, 240 (1977)
(plurality opinion); Committee for Public Educ. & Religious Liberty v.
Regan, 444 U.S. 646, 653-654 (1980), and id. at 665 (Justice Blackmun
dissenting).
---------------------------------------------------------------------------
Varied views have been expressed by the Justices, however, upon
the tests of secular primary effect and church-state entanglement. As to
the former test, the Court has formulated no hard-and-fast standard
permitting easy judgment in all cases.\51\ In providing
[[Page 980]]
assistance, government must avoid aiding the religious mission of such
schools directly or indirectly. Thus, for example, funds may not be
given to a sectarian institution without restrictions that would prevent
their use for such purposes as defraying the costs of building or
maintaining chapels or classrooms in which religion is taught.\52\ Loan
of substantial amounts of purely secular educational materials to
sectarian schools can also result in impermissible advancement of
sectarian activity where secular and sectarian education are
inextricably intertwined.\53\ Even the provision of secular services in
religious schools raises the possibility that religious instruction
might be introduced into the class and is sufficient to condemn a
program.\54\ The extent to which the religious mission of the entity is
inextricably intertwined with the secular mission and the size of the
assistance furnished are factors for the reviewing court to
consider.\55\ But the fact that public aid to further secular purposes
of the school will necessarily ``free up'' some of the institution's
funds which it may apply to its religious mission is not alone
sufficient to condemn the program.\56\ Rather, it must always be
determined whether the religious effects are substantial or whether they
are remote and incidental.\57\ Upon that determination and
[[Page 981]]
upon the guarantees built into any program to assure that public aid is
used exclusively for secular, neutral, and nonideological purposes rests
the validity of public assistance.
\51\Justice White has argued that the primary effect test
requires the Court to make an ``ultimate judgment'' whether the primary
effect of a program advances religion. If the primary effect is secular,
i.e., keeping the parochial school system alive and providing adequate
secular education to substantial numbers of students, then the
incidental benefit to religion was only secondary and permissible.
Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756,
822-24 (1973) (dissenting). The Court rejected this view: ``[o]ur cases
simply do not support the notion that a law found to have a `primary'
effect to promote some legitimate end under the State's police power is
immune from further examination to ascertain whether it also has the
direct and immediate effect of advancing religion.'' Id. at 873 n.39.
\52\Committee for Public Educ. & Religious Liberty v. Nyquist,
413 U.S. 756, 774-80 (1973).
\53\Meek v. Pittenger, 421 U.S. 349, 362-66 (1975). See also
Wolman v. Walter, 433 U.S. 229, 248-51 (1977) (loan of same
instructional material and equipment to pupils or their parents).
\54\Compare Meek v. Pittenger, 421 U.S. 349, 367-72 (1975), with
Wolman v. Walter, 433 U.S. 229, 238-48 (1977) and Committee for Public
Educ. & Religious Liberty v. Regan, 444 U.S. 646, 654-57 (1980).
\55\Lemon v. Kurtzman, 403 U.S. 602, 616-19 (1971). The
existence of what the Court perceived to be massive aid and of religion-
pervasive recipients constituted a major backdrop in Committee for
Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973), and
Meek v. Pittenger, 421 U.S. 349 (1973). When the aid is more selective
and its permissible use is cabined sufficiently, the character of the
institution assumes less importance. Committee for Public Educ. &
Religious Liberty v. Regan, 444 U.S. 646, 661-62 (1980). When the entity
is an institution of higher education, the Court appears less concerned
with its religious character but it still evaluates the degree to which
it is pervasively sectarian. Hunt v. McNair, 413 U.S. 734 (1973); Roemer
v. Maryland Public Works Bd., 426 U.S. 736 (1976).
\56\Committee for Public Educ. & Religious Liberty v. Regan, 444
U.S. 646, 658-59 (1980).
\57\The form which the assistance takes may have little to do
with the determination. One group of Justices has argued that when the
assistance is given to parents, the dangers of impermissible primary
effect and entanglement are avoided and it should be approved. Committee
for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 801-05
(1973) (dissenting). The Court denied a controlling significance to
delivery of funds to parents rather than schools; government must always
ensure a secular use. Id. at 780. Another group of Justices has argued
that the primary effect test does not permit direct financial support to
sectarian schools, Committee for Public Educ. & Religious Liberty v.
Regan, 444 U.S. 646, 665-69 (1980) (dissenting), but the Court held that
provision of direct aid with adequate assurances of nonreligious use
does not constitute a forbidden primary effect. Id. at 661-62. More
recently, in Mueller v. Allen, 463 U.S. 388 (1983), the views of the
first group noted above controlled.
---------------------------------------------------------------------------
The greater the necessity of policing the entity's use of public
funds to ensure secular effect, the greater the danger of impermissible
entanglement of government with religious matters. Any scheme that
requires detailed and continuing oversight of the schools and that
requires the entity to report to and justify itself to public authority
has the potential for impermissible entanglement.\58\ However, where the
nature of the assistance is such that furthering of the religious
mission is unlikely and the public oversight is concomitantly less
intrusive, a review may be sustained.\59\
\58\Lemon v. Kurtzman, 403 U.S. 602, 619-20, 621-22 (1971); Meek
v. Pittenger, 421 U.S. 349, 367-72 (1975); Wolman v. Walter, 433 U.S.
229, 254-55 (1977). Another aspect of entanglement identified by the
Court is the danger that an aid program would encourage continuing
political strife through disputes over annual appropriations and
enlargements of programs. Lemon, 403 U.S. at 622-24; Committee for
Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794-98
(1973); Meek, 421 U.S. at 372. This concern appeared to have lessened
somewhat in subsequent cases. Roemer v. Maryland Public Works Board, 426
U.S. 736, 763-66 (1976); Committee for Public Educ. & Religious Liberty
v. Regan, 444 U.S. 646, 661 n.8 (1980).
\59\ Committee for Public Educ. & Religious Liberty v. Regan,
444 U.S. 646, 659-61 (1980); Wolman v. Walter, 433 U.S. 229, 240-41,
242-44, 248 (1977).
---------------------------------------------------------------------------
Thus, government aid which is directed toward furthering secular
interests in the welfare of the child or the nonreligious functions of
the entity will generally be permitted where the entity is not so
pervasively religious that secular and sectarian activities may not be
separated. But no mere statement of rules can adequately survey the
cases.
Substantial unanimity, at least in result, has prevailed among
the Justices in dealing with direct financial assistance to sectarian
schools, as might have been expected from the argument over the primary
effect test.\60\ State aid to church-connected schools was first found
to have gone over the ``verge''\61\ in Lemon v. Kurtzman.\62\ Involved
were two state statutes, one of which authorized the ``purchase'' of
secular educational services from nonpublic elementary and secondary
schools, a form of reimbursement for the cost to religious schools of
the teaching of such things as mathematics, modern foreign languages,
and physical sciences, and the other of which provided salary
supplements to nonpublic school teachers who taught courses similar to
those found in public
[[Page 982]]
schools, used textbooks approved for use in public schools, and agreed
not to teach any classes in religion. Accepting the secular purpose
attached to both statutes by the legislature, the Court did not pass on
the secular effect test, inasmuch as excessive entanglement was found.
This entanglement arose because the legislature ``has not, and could
not, provide state aid on the basis of a mere assumption that secular
teachers under religious discipline can avoid conflicts. The State must
be certain, given the Religion Clauses, that subsidized teachers do not
inculcate religion.''\63\ Because the schools concerned were religious
schools, because they were under the control of the church hierarchy,
because the primary purpose of the schools was the propagation of the
faith, a ``comprehensive, discriminating, and continuing state
surveillance will inevitably be required to ensure that these
restrictions [on religious utilization of aid] are obeyed and the First
Amendment otherwise respected.''\64\ Moreover, the provision of public
aid inevitably will draw religious conflict into the public arena as the
contest for adequate funding goes on. Thus, the Court held, both
programs were unconstitutional because the state supervision necessary
to ensure a secular purpose and a secular effect inevitably involved the
state authorities too deeply in the religious affairs of the aided
institutions.\65\
\60\But see discussion infra p., on the Court's recent approval
of the Adolescent Family Life Act, involving direct grants to religious
institutions.
\61\Everson v. Board of Education, 330 U.S. 1, 16 (1947).
\62\403 U.S. 602 (1971).
\63\Id. at 619.
\64\Id.
\65\Only Justice White dissented. Id. at 661. In Lemon v.
Kurtzman, 411 U.S. 192 (1973), the Court held that the State could
reimburse schools for expenses incurred in reliance on the voided
program up to the date the Supreme Court held the statute
unconstitutional. But see New York v. Cathedral Academy, 434 U.S. 125
(1977).
---------------------------------------------------------------------------
Two programs of assistance through provision of equipment and
services to private, including sectarian, schools were invalidated in
Meek v. Pittenger.\66\ First, the loan of instructional material and
equipment directly to qualifying nonpublic elementary and secondary
schools was voided as an impermissible extension of assistance of
religion. This conclusion was reached on the basis that 75 percent of
the qualifying schools were church-related or religiously affiliated
educational institutions and the assistance was available without regard
to the degree of religious activity of the schools. The materials and
equipment loaned were religiously neutral, but the substantial
assistance necessarily constituted aid to the sectarian school
enterprise as a whole and thus had a primary effect of advancing
religion.\67\ Second, the provision of auxiliary
[[Page 983]]
services--remedial and accelerated instruction, guidance counseling and
testing, speech and hearing services--by public employees on nonpublic
school premises was invalidated because the Court thought the program
had to be policed closely to ensure religious neutrality and it saw no
way that could be done without impermissible entanglement. The fact that
the teachers would, under this program and unlike one of the programs
condemned in Lemon v. Kurtzman, be public employees rather than
employees of the religious schools and possibly under religious
discipline was insufficient to permit the State to fail to make certain
that religion was not inculcated by subsidized teachers.\68\
\66\421 U.S. 349 (1975). Chief Justice Burger and Justices
Rehnquist and White dissented. Id. at 385, 387.
\67\Id. at 362-66. See also Wolman v. Walter, 433 U.S. 229, 248-
51 (1977). The Court in Committee for Public Educ. & Religious Liberty
v. Regan, 444 U.S. 646, 661-62 (1980), held that Meek did not forbid all
aid that benefited religiously pervasive schools to some extent, so long
as it was conferred in such a way as to prevent any appreciable risk of
being used to transmit or teach religious views. See also Wolman v.
Walter, supra at 262 (Justice Powell concurring in part and dissenting
in part).
\68\Meek v. Pittenger, 421 U.S. 349, 367-72 (1975). But see
Wolman v. Walter, 433 U.S. 229, 238-48 (1977).
---------------------------------------------------------------------------
The Court in two 1985 cases again struck down programs of public
subsidy of instructional services provided on the premises of sectarian
schools, and relied on the effects test as well as the entanglement
test. In Grand Rapids School District v. Ball,\69\ the Court invalidated
two programs conducted in leased private school classrooms, one taught
during the regular school day by public school teachers,\70\ and the
other taught after regular school hours by part-time ``public'' teachers
otherwise employed as full-time teachers by the sectarian school.\71\
Both programs, the Court held, had the effect of promoting religion in
three distinct ways. The teachers might be influenced by the
``pervasively sectarian nature'' of the environment and might ``subtly
or overtly indoctrinate the students in particular religious tenets at
public expense''; use of the parochial school classrooms ``threatens to
convey a message of state support for religion'' through ``the symbolic
union of government and religion in one sectarian enterprise''; and
``the programs in effect subsidize the religious functions of the
parochial schools by taking over a substantial portion of their
responsibility for teaching secular subjects.''\72\ In Aguilar v.
Felton,\73\ the Court invalidated a
[[Page 984]]
program under which public school employees provided instructional
services on parochial school premises to educationally deprived
children. The program differed from those at issue in Grand Rapids
because the classes were closely monitored for religious content. This
``pervasive monitoring'' did not save the program, however, because, by
requiring close cooperation and day-to-day contact between public and
secular authorities, the monitoring ``infringes precisely those
Establishment Clause values at the root of the prohibition of excessive
entanglement.''\74\
\69\473 U.S. 373 (1985).
\70\The vote on this ``Shared Time'' program was 5-4, the
opinion of the Court by Justice Brennan being joined by Justices
Marshall, Blackmun, Powell, and Stevens. The Chief Justice, and Justices
White, Rehnquist, and O'Connor dissented.
\71\The vote on this ``Community Education'' program was 7-2,
Chief Justice Burger and Justice O'Connor concurring with the ``Shared
Time'' majority.
\72\473 U.S. at 397.
\73\473 U.S. 402 (1985). This was another 5-4 decision, with
Justice Brennan's opinion of the Court being joined by Justices
Marshall, Blackmun, Powell, and Stevens, and with Chief Justice Burger
and Justices White, Rehnquist, and O'Connor dissenting.
\74\473 U.S. at 413.
---------------------------------------------------------------------------
A state program to reimburse nonpublic schools for a variety of
services mandated by state law was voided because the statute did not
distinguish between secular and potentially religious services the costs
of which would be reimbursed.\75\ Similarly, a program of direct
monetary grants to nonpublic schools to be used for the maintenance of
school facilities and equipment failed to survive the primary effect
test because it did not restrict payment to those expenditures related
to the upkeep of facilities used exclusively for secular purposes and
because ``within the context of these religion-oriented institutions''
the Court could not see how such restrictions could effectively be
imposed.\76\ But a plan of direct monetary grants to nonpublic schools
to reimburse them for the costs of state-mandated record-keeping and of
administering and grading state-prepared tests and which contained
safeguards against religious utilization of the tests was sustained even
though the Court recognized the incidental benefit to the schools.\77\
\75\Levitt v. Committee for Public Educ. & Religious Liberty,
413 U.S. 472 (1973). Justice White dissented, Id. at 482. Among the
services reimbursed was the cost of preparing and grading examinations
in the nonpublic schools by the teachers there. In New York v. Cathedral
Academy, 434 U.S. 125 (1977), the Court struck down a new statutory
program entitling private schools to obtain reimbursement for expenses
incurred during the school year in which the prior program was voided in
Levitt.
\76\Committee for Public Educ. & Religious Liberty v. Nyquist,
413 U.S. 756, 774-80 (1973). Chief Justice Burger and Justice Rehnquist
concurred, Id. at 798, and Justice White dissented. Id. at 820.
\77\Committee for Public Educ. & Religious Liberty v. Regan, 444
U.S. 646 (1980). Justices Blackmun, Brennan, Marshall, and Stevens
dissented. Id. at 662, 671. The dissenters thought that the
authorization of direct reimbursement grants was distinguishable from
previously approved plans that had merely relieved the private schools
of the costs of preparing and grading state-prepared tests. See Wolman
v. Walter, 433 U.S. 229, 238-41 (1977).
---------------------------------------------------------------------------
The ``child benefit'' theory, under which it is permissible for
government to render ideologically neutral assistance and services to
pupils in sectarian schools without being deemed to be aiding the
religious mission of the schools, has not proved easy to apply. A number
of different forms of assistance to students were at issue
[[Page 985]]
in Wolman v. Walter.\78\ The Court approved the following: standardized
tests and scoring services used in the public schools, with private
school personnel not involved in the test drafting and scoring; speech,
hearing, and psychological diagnostic services provided in the private
schools by public employees; and therapeutic, guidance, and remedial
services for students provided off the premises of the private schools.
In all these, the Court thought the program contained adequate built-in
protections against religious utilization. But while the Court adhered
to its ruling permitting the States to loan secular textbooks used in
the public schools to pupils attending religious schools,\79\ it
declined to extend the precedent to permit the loan to pupils or their
parents of instructional materials and equipment, such as projectors,
tape recorders, maps, globes and science kits, although they were
identical to those used in the public schools.\80\ Nor was a State
permitted to expend funds to pay the costs to religious schools of field
trip transportation such as was provided to public school students.\81\
\78\433 U.S. 229 (1977). The Court deemed the situation in which
these services were performed and the nature of the services to occasion
little danger of aiding religious functions and thus requiring little
supervision that would give rise to entanglement. All the services fell
``within that class of general welfare services for children that may be
provided by the States regardless of the incidental benefit that accrues
to church-related schools.'' Id. at 243, quoting Meek v. Pittenger, 421
U.S. 349, 371 n. 21 (1975). Justice Brennan would have voided all the
programs because, considered as a whole, the amount of assistance was so
large as to constitute assistance to the religious mission of the
schools. Id. at 433 U.S. at 255. Justice Marshall would have approved
only the diagnostic services, id. at 256, while Justice Stevens would
generally approve closely administered public health services. Id. at
264.
\79\Meek v. Pittenger, 421 U.S. 349, 359-72 (1975); Wolman v.
Walter, 433 U.S. 229, 236-38 (1977). Allen was explained as resting on
``the unique presumption'' that ``the educational content of textbooks
is something that can be ascertained in advance and cannot be diverted
to sectarian uses.'' There was ``a tension'' between Nyquist, Meek, and
Wolman, on the one hand, and Allen on the other; while Allen was to be
followed ``as a matter of stare decisis,'' the ``presumption of
neutrality'' embodied in Allen would not be extended to other similar
assistance. Id. at 251 n.18. A more recent Court majority revived the
Allen presumption, however, applying it to uphold tax deductions for
tuition and other school expenses in Mueller v. Allen, 463 U.S. 388
(1983). Justice Rehnquist wrote the Court's opinion, joined by Justices
White, Powell, and O'Connor, and by Chief Justice Burger.
\80\433 U.S. at 248-51. See also id. at 263-64 (Justice Powell
concurring in part and dissenting in part).
\81\Id. at 252-55. Justice Powell joined the other three
dissenters who would have approved this expenditure. Id. at 264.
---------------------------------------------------------------------------
Substantially similar programs from New York and Pennsylvania
providing for tuition reimbursement aid to parents of religious school
children were struck down in 1973. New York's program provided
reimbursements out of general tax revenues for tuition paid by low-
income parents to send their children to nonpublic elementary and
secondary schools; the reimbursements were of fixed amounts but could
not exceed 50 percent of actual tuition paid.
[[Page 986]]
Pennsylvania provided fixed-sum reimbursement for parents who send their
children to nonpublic elementary and secondary schools, so long as the
amount paid did not exceed actual tuition, the funds to be derived from
cigarette tax revenues. Both programs, it was held, constituted public
financial assistance to sectarian institutions with no attempt to
segregate the benefits so that religion was not advanced.\82\
\82\Committee for Public Educ. & Religious Liberty v. Nyquist,
413 U.S. 756, 789-798 (1973) (New York); Sloan v. Lemon, 413 U.S. 825
(1973) (Pennsylvania). The Court distinguished Everson and Allen on the
grounds that in those cases the aid was given to all children and their
parents and that the aid was in any event religiously neutral, so that
any assistance to religion was purely incidental. 413 U.S. at 781-82.
Chief Justice Burger thought that Everson and Allen were controlling.
Id. at 798.
---------------------------------------------------------------------------
New York had also enacted a separate program providing tax
relief for low-income parents not qualifying for the tuition
reimbursements; here relief was in the form of a deduction or credit
bearing no relationship to the amounts of tuition paid, but keyed
instead to adjusted gross income. This too was invalidated in Nyquist.
``In practical terms there would appear to be little difference, for
purposes of determining whether such aid has the effect of advancing
religion, between the tax benefit allowed here and the tuition
[reimbursement] grant. . . . The qualifying parent under either program
receives the same form of encouragement and reward for sending his
children to nonpublic schools. The only difference is that one parent
receives an actual cash payment while the other is allowed to reduce by
an arbitrary amount the sum he would otherwise be obliged to pay over to
the State. We see no answer to Judge Hays' dissenting statement below
that `[i]n both instances the money involved represents a charge made
upon the state for the purpose of religious education.'''\83\ Some
difficulty, however, was experienced in distinguishing this program from
the tax exemption approved in Walz.\84\
\83\Committee for Public Educ. & Religious Liberty v. Nyquist,
413 U.S. 756, 789-94 (1973). The quoted paragraph is id. 790-91.
\84\Id. at 791-94. Principally, Walz was said to be different
because of the age of exemption there dealt with, because the Walz
exemption was granted in the spirit of neutrality while the tax credit
under consideration was not, and the fact that the Walz exemption
promoted less entanglement while the credit would promote more.
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Two subsidiary arguments were rejected by the Court in these
cases. First, it had been argued that the tuition reimbursement program
promoted the free exercise of religion in that it permitted low-income
parents desiring to send their children to school in accordance with
their religious views to do so. The Court agreed that ``tension
inevitably exists between the Free Exercise and the Establishment
Clauses,'' but explained that the tension is ordinarily re
[[Page 987]]
solved through application of the ``neutrality'' principle: government
may neither advance nor inhibit religion. The tuition program
inescapably advanced religion and thereby violated this principle.\85\
In the Pennsylvania case, it was argued that because the program
reimbursed parents who sent their children to nonsectarian schools as
well as to sectarian ones, the portion respecting the former parents was
valid and ``parents of children who attended sectarian schools are
entitled to the same aid as a matter of equal protection. The argument
is thoroughly spurious. . . . The Equal Protection Clause has never been
regarded as a bludgeon with which to compel a State to violate other
provisions of the Constitution.''\86\
\85\Id. at 788-89. But cf. Lynch v. Donnelly, 465 U.S. 668, 673
(1984) (due to Free Exercise Clause, Constitution ``affirmatively
mandates accommodation, not merely tolerance, of all religions'').
\86\Sloan v. Lemon, 413 U.S. 825, 833-35 (1973). In any event,
the Court sustained the district court's refusal to sever the program
and save that portion as to children attending non-sectarian schools on
the basis that since so large a portion of the children benefitted
attended religious schools it could not be assumed the legislature would
have itself enacted such a limited program.
In Wheeler v. Barrera, 417 U.S. 402 (1974), the Court held that
States receiving federal educational funds were required by federal law
to provide ``comparable'' but not equal services to both public and
private school students within the restraints imposed by state
constitutional restrictions on aid to religious schools. In the absence
of specific plans, the Court declined to review First Amendment
limitations on such services.
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The Nyquist holding was substantially undermined in 1983, the
Court taking a more accommodationist approach toward indirect subsidy of
parochial schools. In Mueller v. Allen,\87\ the Court upheld a Minnesota
deduction from state income tax available to parents of elementary and
secondary school children for expenses incurred in providing tuition,
transportation, textbooks, and various other school supplies. Because
the Minnesota deduction was available to parents of public and private
schoolchildren alike, the Court termed it ``vitally different from the
scheme struck down in Nyquist,'' and more similar to the benefits upheld
in Everson and Allen as available to all schoolchildren.\88\ The Court
declined to look behind the ``facial neutrality'' of the law and
consider empirical evidence of its actual impact, citing a need for
``certainty'' and the lack of ``principled standards'' by which to
evaluate such evidence.\89\ Also important to the Court's refusal to
consider the al
[[Page 988]]
leged disproportionate benefits to parents of parochial schools was the
assertion that, ``whatever unequal effect may be attributed to the
statutory classification can fairly be regarded as a rough return for
the benefits . . . provided to the State and all taxpayers by parents
sending their children to parochial schools.''\90\
\87\463 U.S. 388 (1983).
\88\463 U.S. at 398. Nyquist had reserved the question of
``whether the significantly religious character of the statute's
beneficiaries might differentiate the present cases from a case
involving some form of public assistance (e.g., scholarships) made
available generally without regard to the sectarian-nonsectarian, or
public-nonpublic nature of the institution benefitted.'' 413 U.S. at
782-83 n.38.
\89\463 U.S. at 401. Justice Marshall's dissenting opinion,
joined by Justices Brennan, Blackmun, and Stevens, argued that the
tuition component of the deduction, unavailable to parents of most
public schoolchildren, was by far the most significant, and that the
deduction as a whole ``was little more that a subsidy of tuition
masquerading as a subsidy of general educational expenses.'' 463 U.S. at
408-09. Cf. Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985),
where the Court emphasized that 40 of 41 nonpublic schools at which
publicly funded programs operated were sectarian in nature; and Widmar
v. Vincent, 454 U.S. 263, 275 (1981), holding that a college's open
forum policy had no primary effect of advancing religion ``[a]t least in
the absence of evidence that religious groups will dominate [the]
forum.'' But cf. Bowen v. Kendrick, 487 U.S. 589 (1988), permitting
religious institutions to be recipients under a ``facially neutral''
direct grant program.
\90\463 U.S. at 402.
---------------------------------------------------------------------------
A second factor important in Mueller, present but not
controlling in Nyquist, was that the financial aid was provided to the
parents of schoolchildren rather than to the school, and thus in the
Court's view was ``attenuated'' rather than direct; since aid was
``available only as a result of decisions of individual parents,'' there
was no ```impramatur of state approval.''' The Court noted that, with
the exception of Nyquist, ``all . . . of our recent cases invalidating
state aid to parochial schools have involved the direct transmission of
assistance from the State to the schools themselves.''\91\ Thus Mueller
seemingly stands for the proposition that state subsidies of tuition
expenses at sectarian schools are permissible if contained in a facially
neutral scheme providing benefits, at least nominally, to parents of
public and private schoolchildren alike.\92\
\91\463 U.S. at 399.
\92\See also Witters v. Washington Dept. of Services for the
Blind, 474 U.S. 481 (1986), in which the Court held that provision of
vocational assistance for the blind to a student who used the aid for
tuition at a sectarian college did not have a primary effect of
advancing religion. Without citing Mueller, the Court relied on the fact
that the aid is paid directly to the student for use at the institution
of his or her choice, so that religious institutions received aid ``only
as a result of the genuinely independent and private choices of aid
recipients,'' and on the additional fact that there was nothing in the
record to indicate that ``any significant portion of the aid'' from the
program as a whole would go to religious education. 474 U.S. at 487,
488.
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The Court, although closely divided at times, has approved quite
extensive public assistance to institutions of higher learning. On the
same day that it first struck down an assistance program for elementary
and secondary private schools, the Court sustained construction grants
to church-related colleges and universities.\93\ The specific grants in
question were for construction of two library buildings, a science
building, a music, drama, and arts building, and a language laboratory.
The law prohibited the financing of any facility for, or the use of any
federally-financed building for, reli
[[Page 989]]
gious purposes, although the restriction on use ran for only twenty
years.\94\ The Court found that the purpose and effect of the grants
were secular and that, unlike elementary and secondary schools,
religious colleges were not so permeated with religious
inculcations.\95\ The supervision required to ensure conformance with
the non-religious-use requirement was found not to constitute
``excessive entanglement,'' inasmuch as a building is nonideological in
character, unlike teachers, and inasmuch as the construction grants were
onetime things and did not continue as did the state programs.
\93\Tilton v. Richardson, 403 U.S. 672 (1971). This was a 5-4
decision.
\94\Because such buildings would still have substantial value
after twenty years, a religious use then would be an unconstitutional
aid to religion, and the period of limitation was struck down, Id. at
682-84.
\95\It was no doubt true, Chief Justice Burger conceded, that
construction grants to religious-related colleges did in some measure
benefit religion, since the grants freed money that the colleges would
be required to spend on the facilities for which the grants were made.
Bus transportation, textbooks, and tax exemptions similarly benefited
religion and had been upheld. ``The crucial question is not whether some
benefit accrues to a religious institution as a consequence of the
legislative program, but whether its principal or primary effect
advances religion.'' Id. at 679.
---------------------------------------------------------------------------
Also sustained was a South Carolina program under which a state
authority would issue revenue bonds for construction projects on
campuses of private colleges and universities. The Court did not decide
whether this special form of assistance could be otherwise sustained,
because it concluded that religion was neither advanced nor inhibited,
nor was there any impermissible public entanglement. ``Aid normally may
be thought to have a primary effect of advancing religion when it flows
to an institution in which religion is so pervasive that a substantial
portion of its functions are subsumed in the religious mission or when
it funds a specifically religious activity in an otherwise substantially
secular setting.''\96\ The colleges involved, though they were
affiliated with religious institutions, were not shown to be so
pervasively religious--no religious test existed for faculty or student
body, a substantial part of the student body was not of the religion of
the affiliation--and state law precluded the use of any state-financed
project for religious activities.\97\
\96\Hunt v. McNair, 413 U.S. 734, 743 (1973).
\97\Id. at 739-40, 741-45. Justices Brennan, Douglas, and
Marshall, dissenting, rejected the distinction between elementary and
secondary education and higher education and foresaw a greater danger of
entanglement than did the Court. Id. at 749.
---------------------------------------------------------------------------
The kind of assistance permitted by Tilton and by Hunt v. McNair
seems to have been broadened when the Court sustained a Maryland program
of annual subsidies to qualifying private institutions of higher
education; the grants were noncategorical but could not be used for
sectarian purposes, a limitation to be policed
[[Page 990]]
by the administering agency.\98\ The plurality opinion found a secular
purpose; found that the limitation of funding to secular activities was
meaningful,\99\ since the religiously affiliated institutions were not
so pervasively sectarian that secular activities could not be separated
from sectarian ones; and determined that excessive entanglement was
improbable, given the fact that aided institutions were not pervasively
sectarian. The annual nature of the subsidy was recognized as posing the
danger of political entanglement, but the plurality thought that the
character of the aided institutions--``capable of separating secular and
religious functions''--was more important.\100\
\98\Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976).
Justice Blackmun's plurality opinion was joined only by Chief Justice
Burger and Justice Powell. Justices White and Rehnquist concurred on the
basis of secular purpose and no primary religious benefit, rejecting
entanglement. Id. at 767. Justice Brennan, joined by Justice Marshall,
dissented, and Justices Stewart and Stevens each dissented separately.
Id. at 770, 773, 775.
\99\Id. 755. In some of the schools mandatory religion courses
were taught, the significant factor in Justice Stewart's view, id. at
773, but overweighed by other factors in the plurality's view.
\100\Id. at 765-66. The plurality also relied on the facts that
the student body was not local but diverse, and that large numbers of
non-religiously affiliated institutions received aid. A still further
broadening of governmental power to extend aid affecting religious
institutions of higher education may be discerned in the Court's summary
affirmance of two lower-court decisions upholding programs of
assistance--scholarships and tuitions grants--to students at college and
university as well as vocational programs in both public and private--
including religious--institutions; one of the programs contained no
secular use restriction at all and in the other one the restriction
seemed somewhat pro forma. Smith v. Board of Governors of Univ. of North
Carolina, 434 U.S. 803 (1977), aff'g 429 F. Supp. 871 (W.D.N.C. 1977);
Americans United v. Blanton, 434 U.S. 803 (1977), aff'g 433 F. Supp. 97
(M.D. Tenn. 1977). In Witters v. Washington Dep't of Services for the
Blind, 474 U.S. 481 (1986), the Court upheld use of a vocational
rehabilitation scholarship at a religious college, emphasizing that the
religious institution received the public money as a result of the
``genuinely independent and private choices of the aid recipients,'' and
not as the result of any decision by the State to sponsor or subsidize
religion.
---------------------------------------------------------------------------
In Bowen v. Kendrick\101\ the Court by a 5-4 vote upheld the
Adolescent Family Life Act (AFLA)\102\ against facial challenge. The Act
permits direct grants to religious organizations for provision of health
care and for counseling of adolescents on matters of pregnancy
prevention and abortion alternatives, and requires grantees to involve
other community groups, including religious organizations, in delivery
of services. All of the Justices agreed that AFLA had valid secular
purposes; their disagreement related to application of the effects and
entanglement tests. The Court relied on
[[Page 991]]
analogy to the higher education cases rather than the cases involving
aid to elementary and secondary schools.\103\ The case presented
conflicting factual considerations. On the one hand, the class of
beneficiaries was broad, with religious groups not predominant among the
wide range of eligible community organizations. On the other hand, there
were analogies to the parochial school aid cases: secular and religious
teachings might easily be mixed, and the age of the targeted group
(adolescents) suggested susceptibility. The Court resolved these
conflicts by holding that AFLA is facially valid, there being
insufficient indication that a significant proportion of the AFLA funds
would be disbursed to ``pervasively sectarian'' institutions, but by
remanding to the district court to determine whether particular grants
to pervasively sectarian institutions were invalid. The Court emphasized
in both parts of its opinion that the fact that ``views espoused [during
counseling] on matters of premarital sex, abortion, and the like happen
to coincide with the religious views of the AFLA grantee would not be
sufficient to show [an Establishment Clause violation].''\104\
\101\487 U.S. 589 (1988). Chief Justice Rehnquist wrote the
Court's opinion, and was joined by Justices White, O'Connor, Scalia, and
Kennedy; in addition, Justice O'Connor and Justice Kennedy, joined by
Justice Scalia, filed separate concurring opinions. Justice Blackmun's
dissenting opinion was joined by Justices Brennan, Marshall, and
Stevens.
\102\Pub. L. 97-35, 95 Stat. 578 (1981), codified at 42 U.S.C.
Sec. 300z et seq.
\103\The Court also noted that the 1899 case of Bradfield v.
Roberts had established that religious organizations may receive direct
aid for support of secular social-welfare cases.
\104\487 U.S. at 621.
---------------------------------------------------------------------------
Although the Court applied the Lemon three-part test in
Kendrick, the case may signal a changing approach to direct aid cases.
The distinction between facial and as-applied invalidity is new in this
context, and may have implications for other Establishment Clause
challenges. Also noteworthy is the fact that the Court expressed
tolerance for a level of monitoring that would be impermissible for
``pervasively sectarian'' organizations, rejecting the ```Catch-22'
argument'' that excessive entanglement would result. Perhaps most
significant is the fact that Justice Kennedy indicated in his separate
concurring opinion that he would look behind the ``pervasively
sectarian'' nature of aid recipients and focus on how aid money is
actually being spent; only if aid is being spent for religious purposes
would he hold that there has been a violation.\105\ This apparent
contrast with the approach previously advocated by Justice Powell
suggests that the balance on the Court may have shifted toward a less
restrictive approach in the parochial school aid context.
\105\Id. at 624-25.
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Governmental Encouragement of Religion in Public Schools:
Released Time.--Introduction of religious education into the public
schools, one of Justice Rutledge's ``great drives,''\106\ has
[[Page 992]]
also occasioned a substantial amount of litigation in the Court. In its
first two encounters, the Court voided one program and upheld another,
in which the similarities were at least as significant as the
differences. Both cases involved ``released time'' programs, the
establishing of a period during which pupils in public schools were to
be allowed, upon parental request, to receive religious instruction. In
the first, the religious classes were conducted during regular school
hours in the school building by outside teachers furnished by a
religious council representing the various faiths, subject to the
approval or supervision of the superintendent of schools. Attendance
reports were kept and reported to the school authorities in the same way
as for other classes, and pupils not attending the religious instruction
classes were required to continue their regular studies. ``The operation
of the State's compulsory education system thus assists and is
integrated with the program of religious instruction carried on by
separate religious sects. Pupils compelled by law to go to school for
secular education are released in part from their legal duty upon the
condition that they attend the religious classes. This is beyond all
question a utilization of the tax-established and tax-supported public
school system to aid religious groups to spread their faith. And it
falls squarely under the ban of the First Amendment . . . .''\107\ The
case was also noteworthy because of the Court's express rejection of the
contention ``that historically the First Amendment was intended to
forbid only government preference of one religion over another, not an
impartial governmental assistance of all religions.''\108\
\106\Everson v. Board of Education, 330 U.S. 1, 63 (Justice
Rutledge dissenting) (quoted supra p.977, n.41).
\107\Illinois ex rel. McCollum v. Board of Education, 333 U.S.
203, 209-10 (1948).
\108\Id. at 211.
---------------------------------------------------------------------------
Four years later, the Court upheld a different released-time
program.\109\ In this one, schools released pupils during school hours,
on written request of their parents, so that they might leave the school
building and go to religious centers for religious instruction or
devotional exercises. The churches reported to the schools the names of
children released from the public schools who did not report for
religious instruction; children not released remained in the classrooms
for regular studies. The Court found the differences between this
program and the program struck down in McCollum to be constitutionally
significant. Unlike McCollum, where ``the classrooms were used for
religious instruction and force of the public school was used to promote
that instruction,'' religious instruction was conducted off school
premises and ``the public schools do
[[Page 993]]
no more than accommodate their schedules.''\110\ We are a religious
people whose institutions presuppose a Supreme Being,'' Justice Douglas
wrote for the Court. ``When the state encourages religious instruction
or cooperates with religious authorities by adjusting the schedule of
public events to sectarian needs, it follows the best of our traditions.
For it then respects the religious nature of our people and accommodates
the public service to their spiritual needs. To hold that it may not
would be to find in the Constitution a requirement that the government
show a callous indifference to religious groups. That would be
preferring those who believe in no religion over those who do
believe.''\111\
\109\Zorach v. Clauson, 343 U.S. 306 (1952). Justices Black,
Frankfurter, and Jackson dissented. Id. at 315, 320, 323.
\110\Id. at 315. See also Abington School Dist. v. Schempp, 374
U.S. 203, 261-63 (1963) (Justice Brennan concurring) (suggesting that
the important distinction was that ``the McCollum program placed the
religious instruction in the public school classroom in precisely the
position of authority held by the regular teachers of secular subjects,
while the Zorach program did not'').
\111\Id. at 313-14. These cases predated formulation of the
Lemon three-part test for religious establishment, and the status of
that test--as well as the constitutional status of released-time
programs--is unclear. The degree of official and church cooperation may
well not rise to a problem of excessive entanglement, but quaere, what
is the secular purpose and secular effect of such programs? Some
guidance may be provided by Grand Rapids School District v. Ball, 473
U.S. 373 (1985), and Aguilar v. Felton, 473 U.S. 402 (1985), striking
down programs using public school teachers for instruction of parochial
school students in parochial school facilities, but these were 5-4
decisions and the Court's membership has since changed.
---------------------------------------------------------------------------
Governmental Encouragement of Religion in Public Schools:
Prayers and Bible Reading.--Upon recommendation of the state governing
board, a local New York school required each class to begin each school
day by reading aloud the following prayer in the presence of the
teacher: ``Almighty God, we acknowledge our dependence upon Thee, and we
beg Thy blessing upon us, our parents, our teachers and our country.''
Students who wished to do so could remain silent or leave the room. Said
the Court: ``We think that by using its public school system to
encourage recitation of the Regents' prayer, the State of New York had
adopted a practice wholly inconsistent with the Establishment Clause.
There can, of course, be no doubt that New York's program of daily
classroom invocation of God's blessings as prescribed in the Regents'
prayer is a religious activity. . . . [W]e think that the constitutional
prohibition against laws respecting an establishment of religion must at
least mean that in this country it is no part of the business of
government to compose official prayers for any group of the American
people to recite as a part of a religious program carried on by
government.''\112\ ``Neither the fact that the prayer may be
nondenominationally neutral nor the fact that its observance on
\112\Engel v. Vitale, 370 U.S. 421, 424, 425 (1962).
---------------------------------------------------------------------------
[[Page 994]]
the part of the students is voluntary can serve to free it from the
limitations of the Establishment Clause, as it might from the Free
Exercise Clause. . . . The Establishment Clause . . . does not
depend upon any showing of direct governmental compulsion and is
violated by the enactment of laws which establish an official
religion whether those laws operate directly to coerce nonobserving
individuals or not.''\113\
\113\Id. at 430. Justice Black for the Court rejected the idea
that the prohibition of religious services in public schools evidenced
``a hostility toward religion or toward prayer.'' Id. at 434. Rather,
such an application of the First Amendment protected religion from the
coercive hand of government and government from control by a religious
sect. Dissenting alone, Justice Stewart could not ``see how an `official
religion' is established by letting those who want to say a prayer say
it. On the contrary, I think that to deny the wish of these school
children to join in reciting this prayer is to deny them the opportunity
of sharing in the spiritual heritage of our Nation.'' Id. at 444, 445.
---------------------------------------------------------------------------
Following the prayer decision came two cases in which parents
and their school age children challenged the validity under the
Establishment Clause of requirements that each school day begin with
readings of selections from the Bible. Scripture reading, like prayers,
the Court found, was a religious exercise. ``Given that finding the
exercises and the law requiring them are in violation of the
Establishment Clause.''\114\ Rejected were contentions by the State that
the object of the programs was the promotion of secular purposes, such
as the expounding of moral values, the contradiction of the
materialistic trends of the times, the perpetuation of traditional
institutions, and the teaching of literature\115\ and that to forbid the
particular exercises was to choose a ``religion of secularism'' in their
place.\116\ Though the ``place of religion in our society is an exalted
one,'' the Establishment Clause, the Court continued, prescribed that in
``the relationship between man and religion,'' the State must be
``firmly committed to a position of neutrality.''\117\
\114\Abington School Dist. v. Schempp, 374 U.S. 203, 223 (1963).
``[T]he States are requiring the selection and reading at the opening of
the school day of verses from the Holy Bible and the recitation of the
Lord's Prayer by the students in unison. These exercises are prescribed
as part of the curricular activities of students who are required by law
to attend school. They are held in the school buildings under the
supervision and with the participation of teachers employed in those
schools. None of these factors, other than compulsory school attendance,
was present in the program upheld in Zorach v. Clauson.'' Id.
\115\Id. at 223-24. The Court thought the exercises were clearly
religious.
\116\Id. at 225. ``We agree of course that the State may not
establish a `religion of secularism' in the sense of affirmatively
opposing or showing hostility to religion, thus `preferring those who
believe in no religion over those who do believe.' Zorach v. Clauson,
supra, at 314. We do not agree, however, that this decision in any sense
has that effect.''
\117\Id. 226. Justice Brennan contributed a lengthy concurrence
in which he attempted to rationalize the decisions of the Court on the
religion clauses and to delineate the principles applicable. He
concluded that what the establishment clause foreclosed ``are those
involvements of religious with secular institutions which (a) serve the
essentially religious activities of religious institutions; (b) employ
the organs of government for essentially religious purposes; or (c) use
essentially religious means to serve governmental ends, where secular
means would suffice.'' Id. at 230, 295. Justice Stewart again dissented
alone, feeling that the claims presented were essentially free exercise
contentions which were not supported by proof of coercion or of punitive
official action for nonparticipation.
While numerous efforts were made over the years to overturn
these cases, through constitutional amendment and through limitations on
the Court's jurisdiction, the Supreme Court itself has had no occasion
to review the area again. But see Stone v. Graham, 449 U.S. 39 (1980)
(summarily reversing state court and invalidating statute requiring the
posting of the Ten Commandments, purchased with private contributions,
on the wall of each public classroom).
---------------------------------------------------------------------------
[[Page 995]]
In Wallace v. Jaffree,\118\ the Court held invalid an Alabama
statute authorizing a 1-minute period of silence in all public schools
``for meditation or prayer.'' Because the only evidence in the record
indicated that the words ``or prayer'' had been added to the existing
statute by amendment for the sole purpose of returning voluntary prayer
to the public schools, the Court found that the first prong of the Lemon
test had been violated, i.e. that the statute was invalid as being
entirely motivated by a purpose of advancing religion. The Court
characterized the legislative intent to return prayer to the public
schools as ``quite different from merely protecting every student's
right to engage in voluntary prayer during an appropriate moment of
silence during the schoolday,''\119\ and both Justices Powell and
O'Connor in concurring opinions suggested that other state statutes
authorizing moments of silence might pass constitutional muster.\120\
\118\472 U.S. 38 (1985).
\119\Id. at 59.
\120\Justice O'Connor's concurring opinion is notable for its
effort to synthesize and refine the Court's Establishment and Free
Exercise tests (see also the Justice's concurring opinion in Lynch v.
Donnelly), and Justice Rehnquist's dissent for its effort to redirect
Establishment Clause analysis by abandoning the tripartite test,
discarding any requirement that government be neutral between religion
and ``irreligion,'' and confining the scope to a prohibition on
establishing a national church or otherwise favoring one religious group
over another.
---------------------------------------------------------------------------
The school prayer decisions served as precedent for the Court's
holding in Lee v. Weisman\121\ that a school-sponsored invocation at a
high school commencement violated the Establishment Clause. The Court
rebuffed a request to reexamine the Lemon test, finding ``[t]he
government involvement with religious activity in this case [to be]
pervasive, to the point of creating a state-sponsored and state-directed
religious exercise in a public school.'' State officials not only
determined that an invocation and benediction should be given, but also
selected the religious participant and provided him with guidelines for
the content of nonsectarian prayers. The Court, in an opinion by Justice
Kennedy, viewed this state participation
[[Page 996]]
as coercive in the elementary and secondary school setting.\122\ The
state ``in effect required participation in a religious exercise,''
since the option of not attending ``one of life's most significant
occasions'' was no real choice. ``At a minimum,'' the Court concluded,
the Establishment Clause ``guarantees that government may not coerce
anyone to support or participate in religion or its exercise.''
\121\112 S. Ct. 2649 (1992).
\122\The Court distinguished Marsh v. Chambers, 463 U.S. 783,
792 (1983), holding that the opening of a state legislative session with
a prayer by a state-paid chaplain does not offend the Establishment
Clause. The Marsh Court had distinguished Abington on the basis that
state legislators, as adults, are ``presumably not readily susceptible
to `religious indoctrination' or `peer pressure,''' and the Lee Court
reiterated this distinction. 112 S. Ct. at 2660.
---------------------------------------------------------------------------
Governmental Encouragement of Religion in Public Schools:
Curriculum Restriction.--In Epperson v. Arkansas,\123\ the Court struck
down a state statute which made it unlawful for any teacher in any
state-supported educational institution ``to teach the theory or
doctrine that mankind ascended or descended from a lower order of
animals,'' or ``to adopt or use in any such institution a textbook that
teaches'' this theory. Agreeing that control of the curriculum of the
public schools was largely in the control of local officials, the Court
nonetheless held that the motivation of the statute was a fundamentalist
belief in the literal reading of the Book of Genesis and that this
motivation and result required the voiding of the law. ``The law's
effort was confined to an attempt to blot out a particular theory
because of its supposed conflict with the Biblical account, literally
read. Plainly, the law is contrary to the mandate of the First . . .
Amendment to the Constitution.''\124\
\123\393 U.S. 97 (1968).
\124\Id. at 109.
---------------------------------------------------------------------------
Similarly invalidated as having the improper purpose of
advancing religion was a Louisiana statute mandating balanced treatment
of ``creation-science'' and ``evolution-science'' in the public schools.
``The preeminent purpose of the Louisiana legislature,'' the Court found
in Edwards v. Aguillard, ``was clearly to advance the religious
viewpoint that a supernatural being created humankind.''\125\ The Court
viewed as a ``sham'' the stated purpose of protecting academic freedom,
and concluded instead that the legislature's purpose was to narrow the
science curriculum in order to discredit evolution ``by counterbalancing
its teaching at every turn with the teaching of creation science.''\126\
\125\483 U.S. 578, 591 (1987).
\126\483 U.S. at 589. The Court's conclusion was premised on its
finding that ``the term `creation science,' as used by the legislature
. . . embodies the religious belief that a supernatural creator was
responsible for the creation of humankind.'' Id. at at 592.
[[Page 997]]
Access of Religious Groups to School Property.--Although
government may not promote religion through its educational facilities,
it may not bar student religious groups from meeting on public school
property if it makes those facilities available to nonreligious student
groups. To allow religious groups equal access to a public college's
facilities would further a secular purpose, would not constitute an
impermissible benefit to religion, and would pose little hazard of
entanglement.\127\ These principles apply to public secondary schools as
well as to institutions of higher learning.\128\ In 1990 the Court
upheld application of the Equal Access Act\129\ to prevent a secondary
school from denying access to school premises to a student religious
club while granting access to such other ``noncurriculum'' related
student groups as a scuba diving club, a chess club, and a service
club.\130\
\127\Widmar v. Vincent, 454 U.S. 263, 270-75 (1981).
\128\Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226
(1990). The Court had noted in Widmar that university students ``are
less impressionable than younger students and should be able to
appreciate that the University's policy is one of neutrality toward
religion,'' 454 U.S. at 274 n.14. The Mergens plurality ignored this
distinction, suggesting that the secondary school's neutrality was also
evident to its students. 496 U.S. at 252.
\129\Pub. L. 98-377, title VIII, 98 Stat. 1302 (1984); 20 U.S.C.
Sec. Sec. 4071-74.
\130\There was no opinion of the Court on Establishment Clause
issues, a plurality of four led by Justice O'Connor applying the three-
part Lemon test, and concurring Justices Kennedy and Scalia proposing a
less stringent test under which ``neutral'' accommodations of religion
would be permissible as long as they do not in effect establish a state
religion, and as long as there is no coercion of students to participate
in a religious activity. Id. at 2377.
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While the greater number of establishment cases have involved
educational facilities, in other areas as well there have been
contentions that legislative policies have been laws ``respecting'' the
establishment of religion.
Tax Exemptions of Religious Property.--Every State and the
District of Columbia provide for tax exemptions for religious
institutions, and the history of such exemptions goes back to the time
of our establishment as a polity. The only expression by a Supreme Court
Justice prior to 1970 was by Justice Brennan, who deemed tax exemptions
constitutional because the benefit conferred was incidental to the
religious character of the institutions concerned.\131\ Then, in 1970, a
nearly unanimous Court sustained a state exemption from real or personal
property taxation of ``property used exclusively for religious,
educational or charitable purposes'' owned by a corporation or
association which was conducted exclusively for
[[Page 998]]
one or more of these purposes and did not operate for profit.\132\ The
first prong of a two-prong argument saw the Court adopting Justice
Brennan's rationale. Using the secular purpose and effect test, Chief
Justice Burger noted that the purpose of the exemption was not to single
out churches for special favor; instead, the exemption applied to a
broad category of associations having many common features and all
dedicated to social betterment. Thus, churches as well as museums,
hospitals, libraries, charitable organizations, professional
associations, and the like, all non-profit, and all having a beneficial
and stabilizing influence in community life, were to be encouraged by
being treated specially in the tax laws. The primary effect of the
exemptions was not to aid religion; the primary effect was secular and
any assistance to religion was merely incidental.\133\
\131\``If religious institutions benefit, it is in spite of
rather than because of their religious character. For religious
institutions simply share benefits which government makes generally
available to educational, charitable, and eleemosynary groups.''
Abington School Dist. v. Schempp, 374 U.S. 203, 301 (1963) (concurring
opinion).
\132\Walz v. Tax Comm'n, 397 U.S. 664 (1970). Justice Douglas
dissented.
\133\Id. at 672-74.
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For the second prong, the Court created a new test, the
entanglement test,\134\ by which to judge the program. There was some
entanglement whether there were exemptions or not, Chief Justice Burger
continued, but with exemptions there was minimal involvement. But
termination of exemptions would deeply involve government in the
internal affairs of religious bodies, because evaluation of religious
properties for tax purposes would be required and there would be tax
liens and foreclosures and litigation concerning such matters.\135\
\134\Supra, p.973.
\135\397 U.S. at 674-76.
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While the general issue is now settled, it is to be expected
that variations of the exemption upheld in Walz will present the Court
with an opportunity to elaborate the field still further.\136\ For
example, the Court determined that a sales tax exemption applicable only
to religious publications constituted a violation of the Establishment
Clause,\137\ and, on the other hand, that application of a general sales
and use tax provision to religious publications violates neither the
Establishment Clause nor the Free Exercise Clause.\138\
\136\For example, the Court subsequently accepted for review a
case concerning property tax exemption for church property used as a
commercial parking lot, but state law was changed, denying exemption for
purely commercial property and requiring a pro rata exemption for mixed
use, and the Court remanded so that the change in the law could be
considered. Differderfer v. Central Baptist Church, 404 U.S. 412 (1972).
\137\Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989).
\138\Jimmy Swaggart Ministries v. California Bd. of
Equalization, 493 U.S. 378 (1990). Similarly, there is no constitutional
impediment to straightforward application of 26 U.S.C. Sec. 170 to
disallow a charitable contribution for payments to a church found to
represent a reciprocal exchange rather than a contribution or gift.
Hernandez v. Commissioner, 490 U.S. 680 (1989).
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[[Page 999]]
Exemption of Religious Organizations from Generally Applicable
Laws.--The Civil Rights Act's exemption of religious organizations from
the prohibition against religious discrimination in employment\139\ does
not violate the Establishment Clause when applied to a religious
organization's secular, nonprofit activities. The Court held in
Corporation of the Presiding Bishop v. Amos\140\ that a church-run
gymnasium operated as a nonprofit facility open to the public could
require that its employees be church members. Declaring that ``there is
ample room for accommodation of religion under the Establishment
Clause,''\141\ the Court identified a legitimate purpose in freeing a
religious organization from the burden of predicting which of its
activities a court will consider to be secular and which religious. The
rule applying across-the-board to nonprofit activities and thereby
``avoid[ing] . . . intrusive inquiry into religious belief'' also serves
to lessen entanglement of church and state.\142\ The exemption itself
does not have a principal effect of advancing religion, the Court
concluded, but merely allows churches to advance religion.\143\
\139\Section 703 of the Civil Rights Act of 1964, 42 U.S.C.
Sec. 2000e-2, makes it unlawful for any employer to discriminate in
employment practices on the basis of an employee's religion. Section
702, 42 U.S.C. Sec. 2000e-1, exempts from the prohibition ``a religious
corporation . . . with respect to the employment of individuals of a
particular religion to perform work connected with the carrying on by
such corporation . . . of its activities.''
\140\483 U.S. 327 (1987).
\141\483 U.S. at 338.
\142\Id. at 339.
\143\``For a law to have forbidden `effects' . . . it must be
fair to say that the government itself has advanced religion through its
own activities and influence.'' 483 U.S. at 337. Justice O'Connor's
concurring opinion suggests that practically any benefit to religion can
be ``recharacterized as simply `allowing' a religion to better advance
itself,'' and that a ``necessary second step is to separate those
benefits to religion that constitutionally accommodate the free exercise
of religion from those that provide unjustifiable awards of assistance
to religious organizations.'' Id. at 347, 348.
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Sunday Closing Laws.--The history of Sunday Closing Laws goes
back into United States colonial history and far back into English
history.\144\ Commonly, the laws require the observance of the Christian
Sabbath as a day of rest, although in recent years they have tended to
become honeycombed with exceptions. The Supreme Court rejected an
Establishment Clause challenge to Sunday Closing Laws in McGowan v.
Maryland.\145\ The Court acknowledged
[[Page 1000]]
that historically the laws had a religious motivation and were designed
to effectuate concepts of Christian theology. However, ``[i]n light of
the evolution of our Sunday Closing Laws through the centuries, and of
their more or less recent emphasis upon secular considerations, it is
not difficult to discern that as presently written and administered,
most of them, at least, are of a secular rather than of a religious
character, and that presently they bear no relationship to establishment
of religion. . . .''\146\ ``[T]he fact that this [prescribed day of
rest] is Sunday, a day of particular significance for the dominant
Christian sects, does not bar the State from achieving its secular
goals. To say that the States cannot prescribe Sunday as a day of rest
for these purposes solely because centuries ago such laws had their
genesis in religion would give a constitutional interpretation of
hostility to the public welfare rather than one of mere separation of
church and State.''\147\ The choice of Sunday as the day of rest, while
originally religious, now reflected simple legislative inertia or
recognition that Sunday was a traditional day for the choice.\148\ Valid
secular reasons existed for not simply requiring one day of rest and
leaving to each individual to choose the day, reasons of ease of
enforcement and of assuring a common day in the community for rest and
leisure.\149\ More recently, a state statute mandating that employers
honor the Sabbath day of the employee's choice was held invalid as
having the primary effect of promoting religion by weighing the
employee's Sabbath choice over all other interests.\150\
\144\The history is recited at length in the opinion of the
Court in McGowan v. Maryland, 366 U.S. 420, 431-40 (1961), and in
Justice Frankfurter's concurrence. Id. at 459, 470-551 and appendix.
\145\366 U.S. 420 (1961). Decision on the establishment question
in this case also controlled the similar decision on that question in
Two Guys from Harrison-Allentown v. McGinley, 366 U.S. 582 (1961),
Braunfeld v. Brown, 366 U.S. 599 (1961), and Gallagher v. Crown Kosher
Super Market, 366 U.S. 617 (1961). On free exercise in these cases, see
infra, pp.1011-12.
\146\McGowan v. Maryland, 366 U.S. 420, 444 (1961).
\147\Id. at 445.
\148\Id. at 449-52.
\149\Id. Justice Frankfurter, with whom Justice Harlan
concurred, arrived at the same conclusions by a route that did not
require approval of Everson v. Board of Education, from which he had
dissented.
\150\Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985).
---------------------------------------------------------------------------
Conscientious Objection.--Historically, Congress has provided
for alternative service for men who had religious scruples against
participating in either combat activities or in all forms of military
activities; the fact that Congress chose to draw the line of exemption
on the basis of religious belief confronted the Court with a difficult
constitutional question, which, however, the Court chose to avoid by a
somewhat disingenuous interpretation of the stat
[[Page 1001]]
ute.\151\ In Gillette v. United States,\152\ a further constitutional
problem arose in which the Court did squarely confront and validate the
congressional choice. Congress had restricted conscientious objection
status to those who objected to ``war in any form'' and the Court
conceded that there were religious or conscientious objectors who were
not opposed to all wars but only to particular wars based upon
evaluation of a number of factors by which the ``justness'' of any
particular war could be judged; ``properly construed,'' the Court said,
the statute did draw a line relieving from military service some
religious objectors while not relieving others.\153\ Purporting to apply
the secular purpose and effect test, the Court looked almost exclusively
to purpose and hardly at all to effect. Although it is not clear, the
Court seemed to require that a classification must be religiously based
``on its face''\154\ or lack any ``neutral, secular basis for the lines
government has drawn''\155\ in order that it be held to violate the
Establishment Clause. The classification here was not religiously based
``on its face,'' and served ``a number of valid purposes having nothing
to do with a design to foster or favor any sect, religion, or cluster of
religions.''\156\ These purposes, related to the difficulty in
separating sincere conscientious objectors to particular wars from
others with fraudulent claims, included the maintenance of a fair and
efficient selective service system and protection of the integrity of
democratic decision-making.\157\
\151\In United States v. Seeger, 380 U.S. 163 (1965), a
unanimous Court construed the language of the exemption limiting the
status to those who by ``religious training and belief'' (that is, those
who believed in a ``Supreme Being''), to mean that a person must have
some belief which occupies in his life the place or role which the
traditional concept of God occupies in the orthodox believer. After the
``Supreme Being'' clause was deleted, a plurality in Welsh v. United
States, 398 U.S. 333 (1970), construed the religion requirement as
inclusive of moral, ethical, or religious grounds. Justice Harlan
concurred on constitutional grounds, believing that the statute was
clear that Congress had intended to restrict conscientious objection
status to those persons who could demonstrate a traditional religious
foundation for their beliefs and that this was impermissible under the
Establishment Clause. Id. at 344. The dissent by Justices White and
Stewart and Chief Justice Burger rejected both the constitutional and
the statutory basis. Id. at 367.
\152\401 U.S. 437 (1971).
\153\Id. at 449.
\154\Id. at 450.
\155\Id. at 452.
\156\Id.
\157\Id. at 452-60.
---------------------------------------------------------------------------
Regulation of Religious Solicitation.--Although the solicitation
cases have generally been decided under the free exercise or free speech
clauses,\158\ in one instance the Court, intertwining establishment and
free exercise principles, voided a provision in a state charitable
solicitations law that required only those religious organizations that
received less than half their total contributions
[[Page 1002]]
from members or affiliated organizations to comply with the registration
and reporting sections of the law.\159\ Applying strict scrutiny equal
protection principles, the Court held that by distinguishing between
older, well-established churches that had strong membership financial
support and newer bodies lacking a contributing constituency or that may
favor public solicitation over general reliance on financial support
from the members, the statute granted denominational preference
forbidden by the Establishment Clause.\160\
\158\Infra, p.1182.
\159\Larson v. Valente, 456 U.S. 228 (1982). Two Justices
dissented on the merits, id. at 258 (Justices White and Rehnquist),
while two other Justices dissented on a standing issue. Id. at 264
(Chief Justice Burger and Justice O'Connor).
\160\Id. at 246-51. Compare Heffron v. ISKCON, 452 U.S. 640,
652-53 (1981), and id. at 659 n.3 (Justice Brennan, concurring in part
and dissenting in part) (dealing with a facially neutral solicitation
rule distinguishing between religious groups that have a religious tenet
requiring peripatetic solicitation and those who do not).
---------------------------------------------------------------------------
Religion in Governmental Observances.--The practice of opening
legislative sessions with prayers by paid chaplains was upheld in Marsh
v. Chambers,\161\ a case involving prayers in the Nebraska Legislature.
The Court relied almost entirely on historical practice. Congress had
paid a chaplain and opened sessions with prayers for almost 200 years;
the fact that Congress had continued the practice after considering
constitutional objections in the Court's view strengthened rather than
weakened the historical argument. Similarly, the practice was well
rooted in Nebraska and in most other states. Most importantly, the First
Amendment had been drafted in the First Congress with an awareness of
the chaplaincy practice, and this practice was not prohibited or
discontinued. The Court did not address the lower court's findings,\162\
amplified in Justice Brennan's dissent, that each aspect of the Lemon v.
Kurtzman tripartite test had been violated. Instead of constituting an
application of the tests, therefore, Marsh can be read as representing
an exception to their application.\163\
\161\463 U.S. 783 (1983). Marsh was a 6-3 decision, with Chief
Justice Burger's opinion for the Court being joined by Justices White,
Blackmun, Powell, Rehnquist, and O'Connor, and with Justices Brennan,
Marshall, and Stevens dissenting.
\162\Chambers v. Marsh, 675 F.2d 228 (8th Cir. 1982).
\163\School prayer cases were distinguished on the basis that
legislators, as adults, are presumably less susceptible than are
schoolchildren to religious indoctrination and peer pressure, 463 U.S.
at 792, but there was no discussion of the tests themselves.
---------------------------------------------------------------------------
A different form of governmentally sanctioned religious
observance--inclusion of religious symbols in governmentally sponsored
holiday displays--was twice before the Court, with varying results. In
1984, in Lynch v. Donnelly,\164\ the Court found no violation of
[[Page 1003]]
the Establishment Clause occasioned by inclusion of a Nativity scene
(creche) in a city's Christmas display; in 1989, in Allegheny County v.
Greater Pittsburgh ACLU,\165\ inclusion of a creche in a holiday display
was found to constitute a violation. Also at issue in Allegheny County
was inclusion of a menorah in a holiday display; here the Court found no
violation. The setting of each display was crucial to the varying
results in these cases, the determinant being whether the Court majority
believed that the overall effect of the display was to emphasize the
religious nature of the symbols, or whether instead the emphasis was
primarily secular. Perhaps equally important for future cases, however,
was the fact that the four dissenters in Allegheny County would have
upheld both the creche and menorah displays under a more relaxed,
deferential standard.
\164\465 U.S. 668 (1984). Lynch was a 5-4 decision, with Justice
Blackmun, who voted with the majority in Marsh, joining the Marsh
dissenters in this case. Again, Chief Justice Burger wrote the opinion
of the Court, joined by the other majority Justices, and again Justice
Brennan wrote a dissent, joined by the other dissenters. A concurring
opinion was added by Justice O'Connor, and a dissenting opinion was
added by Justice Blackmun.
\165\492 U.S. 573 (1989).
---------------------------------------------------------------------------
Chief Justice Burger's opinion for the Court in Lynch began by
expanding on the religious heritage theme exemplified by Marsh; other
evidence that ```[w]e are a religious people whose institutions
presuppose a Supreme Being'''\166\ was supplied by reference to the
national motto ``In God We Trust,'' the affirmation ``one nation under
God'' in the pledge of allegiance, and the recognition of both
Thanksgiving and Christmas as national holidays. Against that
background, the Court then determined that the city's inclusion of the
creche in its Christmas display had a legitimate secular purpose in
recognizing ``the historical origins of this traditional event long
[celebrated] as a National Holiday,''\167\ and that its primary effect
was not to advance religion. The benefit to religion was called
``indirect, remote, and incidental,'' and in any event no greater than
the benefit resulting from other actions that had been found to be
permissible, e.g. the provision of transportation and textbooks to
parochial school students, various assistance to church-supported
colleges, Sunday closing laws, and legislative prayers.\168\ The Court
also reversed the lower court's finding of entanglement based only on
``political divisiveness.''\169\
\166\465 U.S. at 675, quoting Zorach v. Clausen, 343 U.S. 306,
313 (1952).
\167\465 U.S. at 680.
\168\465 U.S. at 681-82. Note that, while the extent of benefit
to religion was an important factor in earlier cases, it was usually
balanced against the secular effect of the same practice rather than the
religious effects of other practices.
\169\465 U.S. at 683-84.
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Allegheny County was also decided by a 5-4 vote, Justice
Blackmun writing the opinion of the Court on the creche issue, and
[[Page 1004]]
there being no opinion of the Court on the menorah issue.\170\ To the
majority, the setting of the creche was distinguishable from that in
Lynch. The creche stood alone on the center staircase of the county
courthouse, bore a sign identifying it as the donation of a Roman
Catholic group, and also had an angel holding a banner proclaiming
``Gloria in Exclesis Deo.'' Nothing in the display ``detract[ed] from
the creche's religious message,'' and the overall effect was to endorse
that religious message.\171\ The menorah, on the other hand, was placed
outside a government building alongside a Christmas tree and a sign
saluting liberty, and bore no religious messages. To Justice Blackmun,
this grouping merely recognized ``that both Christmas and Chanukah are
part of the same winter-holiday season, which has attained a secular
status'';\172\ to concurring Justice O'Connor, the display's ``message
of pluralism'' did not endorse religion over nonreligion even though
Chanukah is primarily a religious holiday and even though the menorah is
a religious symbol.\173\ The dissenters, critical of the endorsement
test proposed by Justice O'Connor and of the three-part Lemon test,
would instead distill two principles from the Establishment Clause:
``government may not coerce anyone to support or participate in any
religion or its exercise; and it may not, in the guise of avoiding
hostility or callous indifference, give direct benefits to religion in
such a degree that it in fact `establishes a state religion or religious
faith, or tends to do so.'''\174\
\170\Justice O'Connor, who had concurred in Lynch, was the
pivotal vote, joining the Lynch dissenters to form the majority in
Allegheny County. Justices Scalia and Kennedy, not on the Court in 1984,
replaced Chief Justice Burger and Justice Powell in voting to uphold the
creche display; Justice Kennedy authored the dissenting opinion, joined
by the other three.
\171\492 U.S. at 598, 600.
\172\Id. at 616.
\173\Id. at 635.
\174\Id. at 659.
---------------------------------------------------------------------------
Miscellaneous.--In Larkin v. Grendel's Den,\175\ the Court held
that the Establishment Clause is violated by a delegation of
governmental decisionmaking to churches. At issue was a state statute
permitting any church or school to block issuance of a liquor license to
any establishment located within 500 feet of the church or school. While
the statute had a permissible secular purpose of protecting churches and
schools from the disruptions often associated with liquor
establishments, the Court indicated that these purposes could be
accomplished by other means, e.g. an outright ban on liquor outlets
within a prescribed distance, or the vesting of discretionary authority
in a governmental decisionmaker required to consider the views of
affected parties. However, the
[[Page 1005]]
conferral of a veto authority on churches had a primary effect of
advancing religion both because the delegation was standardless (thereby
permitting a church to exercise the power to promote parochial
interests), and because ``the mere appearance of a joint exercise of
legislative authority by Church and State provides a significant
symbolic benefit to religion in the minds of some.''\176\ Moreover, the
Court determined, because the veto ``enmeshes churches in the processes
of government,'' it represented an entanglement offensive to the ``core
rationale underlying the Establishment Clause''--``[to prevent] `a
fusion of governmental and religious functions.'''\177\
\175\459 U.S. 116 (1982).
\176\459 U.S. at 125-26. But cf. Marsh v. Chambers, 463 U.S. 783
(1983), involving no explicit consideration of the possible symbolic
implication of opening legislative sessions with prayers by paid
chaplains.
\177\459 U.S. at 126-27, quoting Abington, 374 U.S. 203, 222.
---------------------------------------------------------------------------
FREE EXERCISE OF RELIGION
``The Free Exercise Clause . . . withdraws from legislative
power, state and federal, the exertion of any restraint on the free
exercise of religion. Its purpose is to secure religious liberty in the
individual by prohibiting any invasions there by civil authority.''\178\
It bars ``governmental regulation of religious beliefs as such,''\179\
prohibiting misuse of secular governmental programs ``to impede the
observance of one or all religions or . . . to discriminate invidiously
between religions . . . even though the burden may be characterized as
being only indirect.''\180\ Freedom of conscience is the basis of the
free exercise clause, and government may not penalize or discriminate
against an individual or a group of individuals because of their
religious views nor may it compel persons to affirm any particular
beliefs.\181\ Interpretation is complicated, however, by the fact that
exercise of religion usually entails ritual or other practices that
constitute ``conduct'' rather than pure ``belief.'' When it comes to
protecting conduct as free exercise, the Court has been
inconsistent.\182\ It has long been held that the Free Exercise
[[Page 1006]]
Clause does not necessarily prevent government from requiring the doing
of some act or forbidding the doing of some act merely because religious
beliefs underlie the conduct in question.\183\ What has changed over the
years is the Court's willingness to hold that some religiously motivated
conduct is protected from generally applicable prohibitions.
\178\Abington School District v. Schempp, 374 U.S. 203, 222-23
(1963).
\179\Sherbert v. Verner, 374 U.S 398, 402 (1963) (emphasis in
original).
\180\Braunfeld v. Brown, 366 U.S. 599, 607 (1961).
\181\Sherbert v. Verner, 374 U.S. 398, 402 (1963); Torcaso v.
Watkins, 367 U.S. 488 (1961).
\182\Academics as well as the Justices grapple with the extent
to which religious practices as well as beliefs are protected by the
Free Exercise Clause. For contrasting academic views of the origins and
purposes of the Free Exercise Clause, compare McConnell, The Origins and
Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev.
1410 (1990) (concluding that constitutionally compelled exemptions from
generally applicable laws are consistent with the Clause's origins in
religious pluralism) with Marshall, The Case Against the
Constitutionally Compelled Free Exercise Exemption, 40 Case W. Res. L.
Rev. 357 (1989-90) (arguing that such exemptions establish an invalid
preference for religious beliefs over non-religious beliefs).
\183\E.g., Reynolds v. United States, 98 U.S. 145 (1879);
Jacobson v. Massachusetts, 197 U.S. 11 (1905); Prince v. Massachusetts,
321 U.S. 158 (1944); Braunfeld v. Brown, 366 U.S. 599 (1961); United
States v. Lee, 455 U.S. 252 (1982); Employment Division v. Smith, 494
U.S. 872 (1990).
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The relationship between the Free Exercise and Establishment
Clauses varies with the expansiveness of interpretation of the two
clauses. In a general sense both clauses proscribe governmental
involvement with and interference in religious matters, but there is
possible tension between a requirement of governmental neutrality
derived from the Establishment Clause and a Free-Exercise-derived
requirement that government accommodate some religious practices.\184\
So far, the Court has harmonized interpretation by denying that free-
exercise-mandated accommodations create establishment violations, and
also by upholding some legislative accommodations not mandated by free
exercise requirements. ``This Court has long recognized that government
may (and sometimes must) accommodate religious practices and that it may
do so without violating the Establishment Clause.''\185\ In holding that
a state could not deny unemployment benefits to Sabbatarians who refused
Saturday work, for example, the Court denied that it was ``fostering an
`establishment' of the Seventh-Day Adventist religion, for the extension
of unemployment benefits to Sabbatarians in common with Sunday
worshippers reflects nothing more than the governmental obligation of
neutrality in the face of religious differences, and does not represent
that involvement of religious with secular institutions which it is the
object of the Establishment Clause to forestall.''\186\ Legislation
granting religious exemptions not held to
[[Page 1007]]
have been required by the Free Exercise Clause has also been upheld
against Establishment Clause challenge,\187\ although it is also
possible for legislation to go too far in promoting free exercise.\188\
\184\``The Court has struggled to find a neutral course between
the two Religion Clauses, both of which are cast in absolute terms, and
either of which, if expanded to a logical extreme, would tend to clash
with the other.'' Walz v. Tax Comm'n, 397 U.S. 668-69 (1970).
\185\Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 144-45
(1987). A similar accommodative approach was suggested in Walz: ``there
is room for play in the joints productive of a benevolent neutrality
which will permit religious exercise to exist without [governmental]
sponsorship and without interference.'' 397 U.S. at 669.
\186\Sherbert v. Verner, 374 U.S. 398, 409 (1963). Accord,
Thomas v. Review Bd., 450 U.S. 707, 719-20 (1981). Dissenting in Thomas,
Justice Rehnquist argued that Sherbert and Thomas created unacceptable
tensions between the Establishment and Free Exercise Clauses, and that
requiring the States to accommodate persons like Sherbert and Thomas
because of their religious beliefs ran the risk of ``establishing''
religion under the Court's existing tests. He argued further, however,
that less expansive interpretations of both clauses would eliminate this
artificial tension. Thus, Justice Rehnquist would have interpreted the
Free Exercise Clause as not requiring government to grant exemptions
from general requirements that may burden religious exercise but that do
not prohibit religious practices outright, and would have interpreted
the Establishment Clause as not preventing government from voluntarily
granting religious exemptions. 450 U.S. at 720-27. By 1990 these views
had apparently gained ascendancy, Justice Scalia's opinion for the Court
in the ``peyote'' case suggesting that accommodation should be left to
the political process, i.e., that states could constitutionally provide
exceptions in their drug laws for sacramental peyote use, even though
such exceptions are not constitutionally required. Employment Div. v.
Smith, 494 U.S. 872, 890 (1990).
\187\See, e.g., Walz v. Tax Comm'n, 397 U.S. 664 (upholding
property tax exemption for religious organizations); Corporation of the
Presiding Bishop v. Amos, 483 U.S. 327 (1987) (upholding Civil Rights
Act exemption allowing religious institutions to restrict hiring to
members of religion); Gillette v. United States, 401 U.S. 437, 453-54
(1971) (interpreting conscientious objection exemption from military
service).
\188\See, e.g., Committee for Pub. Educ. & Religious Liberty v.
Nyquist, 413 U.S. 756, 788-89 (1973) (tuition reimbursement grants to
parents of parochial school children violate Establishment Clause in
spite of New York State's argument that program was designed to promote
free exercise by enabling low-income parents to send children to church
schools); Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (state sales
tax exemption for religious publications violates the Establishment
Clause) (plurality opinion).
---------------------------------------------------------------------------
The Belief-Conduct Distinction.--While the Court has
consistently affirmed that the Free Exercise Clause protects religious
beliefs, protection for religiously motivated conduct has waxed and
waned over the years. The Free Exercise Clause ``embraces two concepts--
freedom to believe and freedom to act. The first is absolute, but in the
nature of things, the second cannot be.''\189\ In its first free
exercise case, involving the power of government to prohibit polygamy,
the Court invoked a hard distinction between the two, saying that
although laws ``cannot interfere with mere religious beliefs and
opinions, they may with practices.''\190\ The rule thus propounded
protected only belief, inasmuch as religiously motivated action was to
be subjected to the police power of the state to the same extent as
would similar action springing from other
[[Page 1008]]
motives. The Reynolds no-protection rule was applied in a number of
cases,\191\ but later cases established that religiously grounded
conduct is not always outside the protection of the free exercise
clause.\192\ Instead, the Court began to balance the secular interest
asserted by the government against the claim of religious liberty
asserted by the person affected; only if the governmental interest was
``compelling'' and if no alternative forms of regulation would serve
that interest was the claimant required to yield.\193\ Thus, while
freedom to engage in religious practices was not absolute, it was
entitled to considerable protection.
\189\Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).
\190\Reynolds v. United States, 98 U.S. 145, 166 (1878). ``Crime
is not the less odious because sanctioned by what any particular sect
may designate as `religion.''' Davis v. Beason, 133 U.S. 333, 345
(1890). In another context, Justice Sutherland in United States v.
Macintosh, 283 U.S. 605, 625 (1931), suggested a plenary governmental
power to regulate action in denying that recognition of conscientious
objection to military service was of a constitutional magnitude, saying
that ``unqualified allegiance to the Nation and submission and obedience
to the laws of the land, as well those made for war as those made for
peace, are not inconsistent with the will of God.''
\191\Jacobson v. Massachusetts, 197 U.S. 11 (1905) (compulsory
vaccination); Prince v. Massachusetts 321 U.S. 158 (1944) (child labor);
Cleveland v. United States, 329 U.S. 14 (1946) (polygamy). In Sherbert
v. Verner, 374 U.S. 398, 403 (1963), Justice Brennan asserted that the
``conduct or activities so regulated [in the cited cases] have
invariably posed some substantial threat to public safety, peace or
order.''
\192\Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v.
Yoder, 406 U.S. 205 (1972); cf. Braunfeld v. Brown, 366 U.S. 599, 607
(1961): ``[I]f the State regulates conduct by enacting a general law
within its power, the purpose and effect of which is to advance the
State's secular goals, the statute is valid despite its indirect burden
on religious observance unless the State may accomplish its purpose by
means which do not impose such a burden.''
\193\Sherbert v. Verner, 374 U.S. 398, 403, 406-09 (1963). In
Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court recognized compelling
state interests in provision of public education, but found insufficient
evidence that those interests (preparing children for citizenship and
for self-reliance) would be furthered by requiring Amish children to
attend public schools beyond the eighth grade. Instead, the evidence
showed that the Amish system of vocational education prepared their
children for life in their self-sufficient communities.
---------------------------------------------------------------------------
Recent cases evidence a narrowing of application of the
compelling interest test, and a corresponding constriction on the
freedom to engage in religiously motivated conduct. First, the Court
purported to apply strict scrutiny, but upheld the governmental action
anyhow. Next the Court held that the test is inappropriate in the
contexts of military and prison discipline.\194\ Then, more importantly,
the Court ruled in Employment Division v. Smith that ``if prohibiting
the exercise of religion . . . is not the object . . . but merely the
incidental effect of a generally applicable and otherwise valid
provision, the First Amendment has not been offended.''\195\ Therefore,
the Court concluded, the Free Exercise Clause does not prohibit a state
from applying generally applicable criminal penalties to use of peyote
in a religious ceremony, or from denying unemployment benefits to
persons dismissed from their jobs because of religious ceremonial use of
peyote. Accommodation of such religious practices must be found in ``the
political process,'' the Court noted; statutory religious-practice
exceptions are permissible, but
[[Page 1009]]
not ``constitutionally required.''\196\ The result is tantamount to a
return to the Reynolds belief-conduct distinction.
\194\Goldman v. Weinberger, 475 U.S. 503 (1986); O'Lone v.
Estate of Shabazz, 482 U.S. 342 (1987).
\195\494 U.S. 872, 878 (1990).
\196\Id. at 890.
---------------------------------------------------------------------------
The Mormon Cases.--The Court's first encounter with free
exercise claims occurred in a series of cases in which the Federal
Government and the territories moved against the Mormons because of
their practice of polygamy. Actual prosecutions and convictions for
bigamy presented little problem for the Court, inasmuch as it could
distinguish between beliefs and acts.\197\ But the presence of large
numbers of Mormons in some of the territories made convictions for
bigamy difficult to obtain, and in 1882 Congress enacted a statute which
barred ``bigamists,'' ``polygamists,'' and ``any person cohabiting with
more than one woman'' from voting or serving on juries. The Court
sustained the law, even as applied to persons entering the state prior
to enactment of the original law prohibiting bigamy and to persons as to
whom the statute of limitations had run.\198\ Subsequently, an act of a
territorial legislature which required a prospective voter not only to
swear that he was not a bigamist or polygamist but as well that ``I am
not a member of any order, organization or association which teaches,
advises, counsels or encourages its members, devotees or any other
person to commit the crime of bigamy or polygamy . . . or which
practices bigamy, polygamy or plural or celestial marriage as a
doctrinal rite of such organization; that I do not and will not,
publicly or privately, or in any manner whatever teach, advise, counsel
or encourage any person to commit the crime of bigamy or polygamy . . .
,'' was upheld in an opinion that condemned plural marriage and its
advocacy as equal evils.\199\ And, finally, the Court sustained the
revocation of the charter of the Mormon Church and confiscation of all
church property not actually used for religious worship or for
burial.\200\
\197\Reynolds v. United States, 98 U.S. 145 (1879); cf.
Cleveland v. United States, 329 U.S. 14 (1946) (no religious-belief
defense to Mann Act prosecution for transporting a woman across state
line for the ``immoral purpose'' of polygamy).
\198\Murphy v. Ramsey, 114 U.S. 15 (1885).
\199\Davis v. Beason, 133 U.S. 333 (1890). ``Bigamy and polygamy
are crimes by the laws of all civilized and Christian countries. . . .
To call their advocacy a tenet of religion is to offend the common sense
of mankind. If they are crimes, then to teach, advise and counsel their
practice is to aid in their commission, and such teaching and counseling
are themselves criminal and proper subjects of punishment, as aiding and
abetting crime are in all other cases.'' Id. at 341-42.
\200\The Late Corporation of the Church of Jesus Christ of
Latter-Day Saints v. United States, 136 U.S. 1 (1890). ``[T]he property
of the said corporation . . . [is to be used to promote] the practice of
polygamy--a crime against the laws, and abhorrent to the sentiments and
feelings of the civilized world. . . . The organization of a community
for the spread and practice of polygamy is, in a measure, a return to
barbarism. It is contrary to the spirit of Christianity and of the
civilization which Christianity had produced in the Western world.'' Id.
at 48-49.
[[Page 1010]]
The Jehovah's Witnesses Cases.--In contrast to the Mormons, the
sect known as Jehovah's Witnesses, in many ways as unsettling to the
conventional as the Mormons were,\201\ provoked from the Court a lengthy
series of decisions\202\ expanding the rights of religious proselytizers
and other advocates to utilize the streets and parks to broadcast their
ideas, though the decisions may be based more squarely on the speech
clause than on the free exercise clause. The leading case is Cantwell v.
Connecticut.\203\ Three Jehovah's Witnesses were convicted under a
statute which forbade the unlicensed soliciting of funds for religious
or charitable purposes, and also under a general charge of breach of the
peace. The solicitation count was voided as an infringement on religion
because the issuing officer was authorized to inquire whether the
applicant did have a religious cause and to decline a license if in his
view the cause was not religious. Such power amounted to a previous
restraint upon the exercise of religion and was invalid, the Court
held.\204\ The breach of the peace count arose when the three accosted
two Catholics in a strongly Catholic neighborhood and played them a
phonograph record which grossly insulted the Christian religion in
general and the Catholic Church in particular. The Court voided this
count under the clear-and-present danger test, finding that the interest
sought to be upheld by the State did not justify the suppression of
religious views that simply annoyed listeners.\205\
\201\For recent cases dealing with other religious groups
discomfiting to the mainstream, see Heffron v. ISKCON, 452 U.S. 640
(1981) (Hare Krishnas); Larson v. Valente, 456 U.S. 228 (1982)
(Unification Church).
\202\Most of the cases are collected and categorized by Justice
Frankfurter in Niemotko v. Maryland, 340 U.S. 268, 273 (1951)
(concurring opinion).
\203\310 U.S. 296 (1940).
\204\Id. at 303-07. ``The freedom to act must have appropriate
definition to preserve the enforcement of that protection [of society].
In every case the power to regulate must be so exercised as not, in
attaining a permissible end, unduly to infringe the protected freedom.
. . . [A] State may by general and non-discriminatory legislation
regulate the times, the places, and the manner of soliciting upon its
streets, and of holding meetings thereon; and may in other respects
safeguard the peace, good order and comfort of the community, without
unconstitutionally invading the liberties protected by the Fourteenth
Amendment.'' Id. at 304.
\205\Id. at 307-11. ``In the realm of religious faith, and in
that of political belief, sharp differences arise. In both fields the
tenets of one man may seem the rankest error to his neighbor. To
persuade others to his own point of view, the pleader, as we know, at
times, resorts to exaggeration, to vilification of men who have been, or
are, prominent in church or state, and even to false statement. But the
people of this nation have ordained in the light of history, that, in
spite of the probabilities of excesses and abuses, these liberties are
in the long view, essential to enlightened opinion and right conduct on
the part of the citizens of a democracy.'' Id. at 310.
---------------------------------------------------------------------------
There followed a series of sometimes conflicting decisions. At
first, the Court sustained the application of a non-discriminatory li
[[Page 1011]]
cense fee to vendors of religious books and pamphlets,\206\ but eleven
months later it vacated its former decision and struck down such
fees.\207\ A city ordinance making it unlawful for anyone distributing
literature to ring a doorbell or otherwise summon the dwellers of a
residence to the door to receive such literature was held in violation
of the First Amendment when applied to distributors of leaflets
advertising a religious meeting.\208\ But a state child labor law was
held to be validly applied to punish the guardian of a nine-year old
child who permitted her to engage in ``preaching work'' and the sale of
religious publications after hours.\209\ The Court decided a number of
cases involving meetings and rallies in public parks and other public
places by upholding licensing and permit requirements which were
premised on nondiscriminatory ``times, places, and manners'' terms and
which did not seek to regulate the content of the religious message to
be communicated.\210\
\206\Jones v. Opelika, 316 U.S. 584 (1942).
\207\Jones v. Opelika, 319 U.S. 103 (1943); Murdock v.
Pennsylvania, 319 U.S. 105 (1943). See also Follett v. McCormick, 321
U.S. 573 (1944) (invalidating a flat licensing fee for booksellers).
Murdock and Follett were distinguished in Jimmy Swaggart Ministries v.
California Bd. of Equalization, 493 U.S. 378, 389 (1990) as applying
``only where a flat license fee operates as a prior restraint''; upheld
in Swaggart was application of a general sales and use tax to sales of
religious publications.
\208\Martin v. City of Struthers, 319 U.S. 141 (1943). But cf.
Breard v. City of Alexandria, 341 U.S. 622 (1951) (similar ordinance
sustained in commercial solicitation context).
\209\Prince v. Massachusetts, 321 U.S. 158 (1944).
\210\E.g., Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v.
New York, 340 U.S. 290 (1951); Fowler v. Rhode Island, 345 U.S. 67
(1953); Poulos v. New Hampshire, 345 U.S. 395 (1953). See also Larson v.
Valente, 456 U.S. 228 (1982) (solicitation on state fair ground by
Unification Church members).
---------------------------------------------------------------------------
Free Exercise Exemption From General Governmental
Requirements.--As described above, the Court gradually abandoned its
strict belief-conduct distinction, and developed a balancing test to
determine when a uniform, nondiscriminatory requirement by government
mandating action or nonaction by citizens must allow exceptions for
citizens whose religious scruples forbid compliance. Then, in 1990, the
Court reversed direction in Employment Division v. Smith,\211\ confining
application of the ``compelling interest'' test to a narrow category of
cases.
\211\494 U.S. 872 (1990).
---------------------------------------------------------------------------
In early cases the Court sustained the power of a State to
exclude from its schools children who because of their religious beliefs
would not participate in the salute to the flag,\212\ only within a
short time to reverse itself and condemn such exclusions, but on
[[Page 1012]]
speech grounds rather than religious grounds.\213\ Also, the Court
seemed to be clearly of the view that government could compel those
persons religiously opposed to bearing arms to take an oath to do so or
to receive training to do so,\214\ only in later cases by its statutory
resolution to cast doubt on this resolution,\215\ and still more
recently to leave the whole matter in some doubt.\216\
\212\Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940).
\213\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624
(1943). On the same day, the Court held that a State may not forbid the
distribution of literature urging and advising on religious grounds that
citizens refrain from saluting the flag. Taylor v. Mississippi, 319 U.S.
583 (1943).
\214\See United States v. Schwimmer, 279 U.S. 644 (1929); United
States v. Macintosh, 283 U.S. 605 (1931); and United States v. Bland,
283 U.S. 636 (1931) (all interpreting the naturalization law as denying
citizenship to a conscientious objector who would not swear to bear arms
in defense of the country), all three of which were overruled by
Girouard v. United States, 328 U.S. 61 (1946), on strictly statutory
grounds. See also Hamilton v. Board of Regents, 293 U.S. 245 (1934)
(upholding expulsion from state university for a religiously based
refusal to take a required course in military training); In re Summers,
325 U.S. 561 (1945) (upholding refusal to admit applicant to bar because
as conscientious objector he could not take required oath).
\215\United States v. Seeger, 380 U.S. 163 (1965); see id. at
188 (Justice Douglas concurring); Welsh v. United States, 398 U.S. 333
(1970); and see id. at 344 (Justice Harlan concurring).
\216\Gillette v. United States, 401 U.S. 437 (1971) (holding
that secular considerations overbalanced free exercise infringement of
religious beliefs of objectors to particular wars).
---------------------------------------------------------------------------
Braunfeld v. Brown\217\ held that the free exercise clause did
not mandate an exemption from Sunday Closing Laws for an Orthodox Jewish
merchant who observed Saturday as the Sabbath and was thereby required
to be closed two days of the week rather than one. This requirement did
not prohibit any religious practices, the Court's plurality pointed out,
but merely regulated secular activity in a manner making religious
exercise more expensive.\218\ ``If the State regulates conduct by
enacting a general law within its power, the purpose and effect of which
is to advance the State's secular goals, the statute is valid despite
its indirect burden on religious observance unless the State may
accomplish its purpose by means which do not impose such a
burden.''\219\
\217\366 U.S. 599 (1961). On Sunday Closing Laws and the
establishment clause, see supra, pp. 987-988.
\218\366 U.S. at 605-06.
\219\Id. at 607 (plurality opinion). The concurrence balanced
the economic disadvantage suffered by the Sabbatarians against the
important interest of the State in securing its day of rest regulation.
McGowan v. Maryland, 366 U.S. at 512-22 (1961). Three Justices
dissented. Id. at 561 (Justice Douglas); Braunfeld v. Brown, 366 U.S. at
610 (Justice Brennan), 616 (Justice Stewart).
---------------------------------------------------------------------------
Within two years the Court in Sherbert v. Verner\220\ extended
the line of analysis to require a religious exemption from a secular,
regulatory piece of economic legislation. Sherbert was disqualified from
receiving unemployment compensation because, as a Seventh
[[Page 1013]]
Day Adventist, she would not accept Saturday work; according to state
officials, this meant she was not complying with the statutory
requirement to stand ready to accept suitable employment. This denial of
benefits could be upheld, the Court said, only if ``her disqualification
as a beneficiary represents no infringement by the State of her
constitutional rights of free exercise, or [if] any incidental burden on
the free exercise of appellant's religions may be justified by a
`compelling state interest in the regulation of a subject within the
State's constitutional power to regulate . . .'''\221\ First, the
disqualification was held to impose a burden on the free exercise of
Sherbert's religion; it was an indirect burden and it did not impose a
criminal sanction on a religious practice, but the disqualification
derived solely from her practice of her religion and constituted a
compulsion upon her to forgo that practice.\222\ Second, there was no
compelling interest demonstrated by the State. The only interest
asserted was the prevention of the possibility of fraudulent claims, but
that was merely a bare assertion. Even if there was a showing of
demonstrable danger, ``it would plainly be incumbent upon the appellees
to demonstrate that no alternative forms of regulation would combat such
abuses without infringing First Amendment rights.''\223\
\220\374 U.S. 398 (1963).
\221\Id. at 403, quoting NAACP v. Button, 371 U.S. 415, 438
(1963).
\222\Id. at 403-06.
\223\Id. at 407. Braunfeld was distinguished because of ``a
countervailing factor which finds no equivalent in the instant case--a
strong state interest in providing one uniform day of rest for all
workers.'' That secular objective could be achieved, the Court found,
only by declaring Sunday to be that day of rest. Requiring exemptions
for Sabbatarians, while theoretically possible, appeared to present an
administrative problem of such magnitude, or to afford the exempted
class so great a competitive advantage, that such a requirement would
have rendered the entire statutory scheme unworkable. Id. at 408-09.
Other Justices thought that Sherbert overruled Braunfeld. Id. at 413,
417 (Justice Stewart concurring), 418 (Justice Harlan and White
dissenting).
---------------------------------------------------------------------------
Sherbert was reaffirmed and applied in subsequent cases
involving denial of unemployment benefits. Thomas v. Review Board\224\
involved a Jehovah's Witness who quit his job when his employer
transferred him from a department making items for industrial use to a
department making parts for military equipment. While his belief that
his religion proscribed work on war materials was not shared by all
other Jehovah's Witnesses, the Court held that it was inappropriate to
inquire into the validity of beliefs asserted to be religious so long as
the claims were made in good faith (and the beliefs were at least
arguably religious). The same result was reached in a 1987 case, the
fact that the employee's religious conversion rather than a job
reassignment had created the conflict between work and Sabbath
observance not being considered mate
[[Page 1014]]
rial to the determination that free exercise rights had been burdened by
the denial of unemployment compensation.\225\ Also, a state may not deny
unemployment benefits solely because refusal to work on the Sabbath was
based on sincere religious beliefs held independently of membership in
any established religious church or sect.\226\
\224\450 U.S. 707 (1981).
\225\Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987).
\226\Frazee v. Illinois Dep't of Employment Security, 489 U.S.
829 (1989). Cf. United States v. Seeger, 380 U.S. 163 (1965)
(interpreting the religious objection exemption from military service as
encompassing a broad range of formal and personal religious beliefs).
---------------------------------------------------------------------------
The Court applied the Sherbert balancing test in several areas
outside of unemployment compensation. The first two such cases involved
the Amish, whose religion requires them to lead a simple life of labor
and worship in a tight-knit and self-reliant community largely insulated
from the materialism and other distractions of modern life. Wisconsin v.
Yoder\227\ held that a state compulsory attendance law, as applied to
require Amish children to attend ninth and tenth grades of public
schools in contravention of Amish religious beliefs, violated the Free
Exercise Clause. The Court first determined that the beliefs of the
Amish were indeed religiously based and of great antiquity.\228\ Next,
the Court rejected the State's arguments that the Free Exercise Clause
extends no protection because the case involved ``action'' or
``conduct'' rather than belief, and because the regulation, neutral on
its face, did not single out religion.\229\ Instead, the Court went on
to analyze whether a ``compelling'' governmental interest required such
``grave interference'' with Amish belief and practices.\230\ The
governmental interest was not the general provision of education,
inasmuch as the State and the Amish were in agreement on education
through the first eight grades and since the Amish provided their
children with additional education of a primarily vocational nature. The
State's interest was really that of providing two additional years of
public schooling. Nothing in the record, felt the Court, showed that
this interest outweighed the great harm which it would do to traditional
Amish religious beliefs to impose the compulsory ninth and tenth grade
attendance.\231\
\227\406 U.S. 205 (1972).
\228\Id. at 215-19. Why the Court felt impelled to make these
points is unclear, since it is settled that it is improper for courts to
inquire into the interpretation of religious belief. E.g., United States
v. Lee, 455 U.S. 252, 257 (1982).
\229\Id. at 219-21.
\230\Id. at 221.
\231\Id. at 221-29.
---------------------------------------------------------------------------
But in recent years the Court's decisions evidenced increasing
discontent with the compelling interest test. In several cases the
[[Page 1015]]
Court purported to apply strict scrutiny but nonetheless upheld the
governmental action in question. In United States v. Lee,\232\ for
example, the Court denied the Amish exemption from compulsory
participation in the Social Security system. The objection was that
payment of taxes by Amish employers and employees and the receipt of
public financial assistance were forbidden by their religious beliefs.
Accepting that this was true, the Court nonetheless held that the
governmental interest was compelling and therefore sufficient to justify
the burdening of religious beliefs.\233\ Compulsory payment of taxes was
necessary for the vitality of the system; either voluntary participation
or a pattern of exceptions would undermine its soundness and make the
program difficult to administer.
\232\455 U.S. 252 (1982).
\233\The Court's formulation was whether the limitation on
religious exercise was ``essential to accomplish an overriding
governmental interest.'' 455 U.S. at 257-58. Accord, Hernandez v.
Commissioner, 490 U.S. 680, 699-700 (1989) (any burden on free exercise
imposed by disallowance of a tax deduction was ``justified by the `broad
public interest in maintaining a sound tax system' free of `myriad
exceptions flowing from a wide variety of religious beliefs''').
---------------------------------------------------------------------------
``A compelling governmental interest'' was also found to
outweigh free exercise interests in Bob Jones University v. United
States,\234\ in which the Court upheld the I.R.S.'s denial of tax
exemptions to church-run colleges whose racially discriminatory
admissions policies derived from religious beliefs. The Federal
Government's ``fundamental, overriding interest in eradicating racial
discrimination in education''--found to be encompassed in common law
standards of ``charity'' underlying conferral of the tax exemption on
``charitable'' institutions--``substantially outweighs'' the burden on
free exercise. Nor could the schools' free exercise interests be
accommodated by less restrictive means.\235\
\234\461 U.S. 574 (1983).
\235\461 U.S. at 604.
---------------------------------------------------------------------------
In other cases the Court found reasons not to apply compelling
interest analysis. Religiously motivated speech, like other speech, can
be subjected to reasonable time, place, or manner regulation serving a
``substantial'' rather than ``compelling'' governmental interest.\236\
Sherbert's threshold test, inquiring ``whether government has placed a
substantial burden on the observation of a central religious belief or
practice,''\237\ eliminates other issues. As long as a particular
religion does not proscribe the payment of taxes (as was the case with
the Amish in Lee), the Court has denied that there
\236\Heffron v. ISKCON, 452 U.S. 640 (1981). Requiring Krishnas
to solicit at fixed booth sites on county fair grounds is a valid time,
place, and manner regulation, although, as the Court acknowledged, id.
at 652, peripatetic solicitation was an element of Krishna religious
rites.
\237\As restated in Hernandez v. Commissioner, 490 U.S. 680, 699
(1989).
---------------------------------------------------------------------------
[[Page 1016]]
is any constitutionally significant burden resulting from
``imposition of a generally applicable tax [that] merely decreases
the amount of money [adherents] have to spend on [their] religious
activities.''\238\ The one caveat the Court left--that a generally
applicable tax might be so onerous as to ``effectively choke off an
adherent's religious practices''\239\--may be a moot point in light
of the Court's general ruling in Employment Division v. Smith,
discussed below.
\238\Jimmy Swaggart Ministries v. California Bd. of
Equalization, 493 U.S. 378, 391 (1990). See also Tony and Susan Alamo
Found. v. Secretary of Labor, 471 U.S. 290 (1985) (the Court failing to
perceive how application of minimum wage and overtime requirements would
burden free exercise rights of employees of a religious foundation,
there being no assertion that the amount of compensation was a matter of
religious import); and Hernandez v. Commissioner, 490 U.S. 680 (1989)
(questioning but not deciding whether any burden was imposed by
administrative disallowal of deduction for payments deemed to be for
commercial rather than religious or charitable purposes).
\239\Jimmy Swaggart Ministries, 493 U.S. at 392.
---------------------------------------------------------------------------
The Court also drew a distinction between governmental
regulation of individual conduct, on the one hand, and restraint of
governmental conduct as a result of individuals' religious beliefs, on
the other. Sherbert's compelling interest test has been held
inapplicable in cases viewed as involving attempts by individuals to
alter governmental actions rather than attempts by government to
restrict religious practices. Emphasizing the absence of coercion on
religious adherents, the Court in Lyng v. Northwest Indian Cemetery
Protective Ass'n\240\ held that the Forest Service, even absent a
compelling justification, could construct a road through a portion of a
national forest held sacred and used by Indians in religious
observances. The Court distinguished between governmental actions having
the indirect effect of frustrating religious practices and those
actually prohibiting religious belief or conduct: ```the Free Exercise
Clause is written in terms of what the government cannot do to the
individual, not in terms of what the individual can exact from the
government.'''\241\ Similarly, even a sincerely held religious belief
that assignment of a social security number would rob a child of her
soul was held insufficient to bar the government from using the number
for purposes of its own recordkeeping.\242\ It mattered not how easily
the government could accommodate the religious beliefs or practices (an
exemption from the social security number requirement might have been
granted with only slight impact on the government's recordkeeping
capabilities), since the na
[[Page 1017]]
ture of the governmental actions did not implicate free exercise
protections.\243\
\240\485 U.S. 439 (1988).
\241\Id. at 451, quoting Sherbert v. Verner, 374 U.S. 398, 412
(1963) (Douglas, J., concurring).
\242\Bowen v. Roy, 476 U.S. 693 (1986).
\243\``In neither case . . . would the affected individuals be
coerced by the Government's action into violating their religious
beliefs; nor would either governmental action penalize religious
activity.'' Lyng, 485 U.S. at 449.
---------------------------------------------------------------------------
Compelling interest analysis is also wholly inapplicable in the
context of military rules and regulations, where First Amendment review
``is far more deferential than . . . review of similar laws or
regulations designed for civilian society.''\244\ Thus the Court did not
question the decision of military authorities to apply uniform dress
code standards to prohibit the wearing of a yarmulke by an officer
compelled by his Orthodox Jewish religious beliefs to wear the
yarmulke.\245\
\244\Goldman v. Weinberger, 475 U.S. 503, 507 (1986).
\245\Congress reacted swiftly by enacting a provision allowing
military personnel to wear religious apparel while in uniform, subject
to exceptions to be made by the Secretary of the relevant military
department for circumstances in which the apparel would interfere with
performance of military duties or would not be ``neat and
conservative.'' Pub. L. 100-180, Sec. 508(a)(2), 101 Stat. 1086 (1987);
10 U.S.C. Sec. 774.
---------------------------------------------------------------------------
A high degree of deference is also due decisions of prison
administrators having the effect of restricting religious exercise by
inmates. The general rule is that prison regulations impinging on
exercise of constitutional rights by inmates are ```valid if . . .
reasonably related to legitimate penological interests.'''\246\ Thus
because general prison rules requiring a particular category of inmates
to work outside of buildings where religious services were held, and
prohibiting return to the buildings during the work day, could be viewed
as reasonably related to legitimate penological concerns of security and
order, no exemption was required to permit Muslim inmates to participate
in Jumu'ah, the core ceremony of their religion.\247\ The fact that the
inmates were left with no alternative means of attending Jumu'ah was not
dispositive, the Court being ``unwilling to hold that prison officials
are required by the Constitution to sacrifice legitimate penological
objectives to that end.''\248\
\246\O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987)
(quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
\247\O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
\248\Id. at 351-52 (also suggesting that the ability of the
inmates to engage in other activities required by their faith, e.g.
individual prayer and observance of Ramadan, rendered the restriction
reasonable).
---------------------------------------------------------------------------
Finally, in Employment Division v. Smith\249\ the Court
indicated that the compelling interest test may apply only in the field
of unemployment compensation, and in any event does not apply to require
exemptions from generally applicable criminal laws. Criminal laws are
``generally applicable'' when they apply across
[[Page 1018]]
the board regardless of the religious motivation of the prohibited
conduct, and are ``not specifically directed at . . . religious
practices.''\250\ The unemployment compensation statute at issue in
Sherbert was peculiarly suited to application of a balancing test
because denial of benefits required a finding that an applicant had
refused work ``without good cause.'' Sherbert and other unemployment
compensation cases thus ``stand for the proposition that where the State
has in place a system of individual exemptions, it may not refuse to
extend that system to cases of `religious hardship' without compelling
reason.''\251\ Wisconsin v. Yoder and other decisions holding ``that the
First Amendment bars application of a neutral, generally applicable law
to religiously motivated action'' were distinguished as involving ``not
the Free Exercise Clause alone, but the Free Exercise Clause in
conjunction with other constitutional protections'' such as free speech
or ``parental rights.''\252\ Except in the relatively uncommon
circumstance when a statute calls for individualized consideration,
then, the Free Exercise Clause affords no basis for exemption from a
``neutral, generally applicable law.'' As the Court concluded in Smith,
accommodation for religious practices incompatible with general
requirements must ordinarily be found in ``the political process.''\253\
\249\494 U.S. 872 (1990) (holding that state may apply criminal
penalties to use of peyote in a religious ceremony, and may deny
unemployment benefits to persons dismissed from their jobs because of
religiously inspired use of peyote).
\250\Id. at 878.
\251\Id. at 884.
\252\Id. at 881.
\253\Id. at 890.
---------------------------------------------------------------------------
The ramifications of Smith are potentially widespread. The Court
has apparently returned to a belief-conduct dichotomy under which
religiously motivated conduct is not entitled to special protection.
Laws may not single out religiously motivated conduct for adverse
treatment, but formally neutral laws of general applicability may
regulate religious conduct (along with other conduct) regardless of the
adverse or prohibitory effects on religious exercise. Similar rules
govern taxation. Under the Court's rulings in Smith and Swaggart,
religious exemptions from most taxes are a matter of legislative grace
rather than constitutional command, since most important taxes (e.g.,
income, property, sales and use) satisfy the criteria of formal
neutrality and general applicability, and are not license fees that can
be viewed as prior restraints on expression.\254\ The result is equal
protection, but not substantive protection, for
[[Page 1019]]
religious exercise.\255\ The Court's approach also accords less
protection to religiously-based conduct than is accorded expressive
conduct that implicates speech but not religious values.\256\ On the
practical side, relegation of free exercise claims to the political
process may, as concurring Justice O'Connor warned, result in less
protection for small, unpopular religious sects.\257\
\254\This latter condition derives from the fact that the Court
in Swaggart distinguished earlier decisions by characterizing them as
applying only to flat license fees. See n., supra. See also Laycock, The
Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1, 39-41.
\255\Justice O'Connor, concurring in Smith, argued that ``the
Free Exercise Clause protects values distinct from those protected by
the Equal Protection Clause.'' 494 U.S. at 901.
\256\Although neutral laws affecting expressive conduct are not
measured by a ``compelling interest'' test, they are ``subject to a
balancing, rather than categorical, approach.'' Smith, 494 U.S. at 902
(O'Connor, J., concurring).
\257\Id. at 1613.
---------------------------------------------------------------------------
Religious Test Oaths.--However the Court has been divided in
dealing with religiously-based conduct and governmental compulsion of
action or nonaction, it was unanimous in voiding a state constitutional
provision which required a notary public, as a condition of perfecting
his appointment, to declare his belief in the existence of God. The
First Amendment, considered with the religious oath provision of Article
VI, makes it impossible ``for government, state or federal, to restore
the historically and constitutionally discredited policy of probing
religious beliefs by test oaths or limiting public offices to persons
who have, or perhaps more properly, profess to have, a belief in some
particular kind of religious concept.''\258\
\258\Torcaso v. Watkins, 367 U.S. 488, 494 (1961).
---------------------------------------------------------------------------
Religious Disqualification.--Unanimously, but with great
differences of approach, the Court declared invalid a Tennessee statute
barring ministers and priests from service in a specially called state
constitutional convention.\259\ The Court's decision necessarily implied
that the constitutional provision on which the statute was based,
barring ministers and priests from service as state legislators, was
also invalid.
\259\McDaniel v. Paty, 435 U.S. 618 (1978). The plurality
opinion by Chief Justice Burger, joined by Justices Powell, Rehnquist,
and Stevens, found the case governed by Sherbert v. Verner's strict
scrutiny test. The State had failed to show that its view of the dangers
of clergy participation in the political process had any validity;
Torcaso v. Watkins was distinguished because the State was acting on the
status of being a clergyman rather than on one's beliefs. Justice
Brennan, joined by Justice Marshall, found Torcaso controlling because
imposing a restriction upon one's status as a religious person did
penalize his religious belief, his freedom to profess or practice that
belief. Id. at 629. Justice Stewart also found Torcaso dispositive, id.
at 642, and Justice White found an equal protection violation because of
the restraint upon seeking political office. Id. at 643.
[[Page 1020]]
FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Adoption and the Common Law Background
Madison's version of the speech and press clauses, introduced in
the House of Representatives on June 8, 1789, provided: ``The people
shall not be deprived or abridged of their right to speak, to write, or
to publish their sentiments; and the freedom of the press, as one of the
great bulwarks of liberty, shall be inviolable.''\1\ The special
committee rewrote the language to some extent, adding other provisions
from Madison's draft, to make it read: ``The freedom of speech and of
the press, and the right of the people peaceably to assemble and consult
for their common good, and to apply to the Government for redress of
grievances, shall not be infringed.''\2\ In this form it went to the
Senate, which rewrote it to read: ``That Congress shall make no law
abridging the freedom of speech, or of the press, or the right of the
people peaceably to assemble and consult for their common good, and to
petition the government for a redress of grievances.''\3\ Subsequently,
the religion clauses and these clauses were combined by the Senate.\4\
The final language was agreed upon in conference.
\1\1 Annals of Congress 434 (1789). Madison had also proposed
language limiting the power of the States in a number of respects,
including a guarantee of freedom of the press, Id. at 435. Although
passed by the House, the amendment was defeated by the Senate, supra,
p.957.
\2\Id. at 731 (August 15, 1789).
\3\The Bill of Rights: A Documentary History 1148-49 (B.
Schwartz ed. 1971).
\4\Id. at 1153.
---------------------------------------------------------------------------
Debate in the House is unenlightening with regard to the meaning
the Members ascribed to the speech and press clause and there is no
record of debate in the Senate.\5\ In the course of debate, Madison
warned against the dangers which would arise ``from discussing and
proposing abstract propositions, of which the judgment may not be
convinced. I venture to say, that if we confine ourselves to an
enumeration of simple, acknowledged principles, the ratification will
meet with but little difficulty.''\6\ That the ``simple, acknowledged
principles'' embodied in the First Amendment have occasioned controversy
without end both in the courts and out should alert one to the
difficulties latent in such spare language. Insofar as there is likely
to have been a consensus, it was no doubt the common law view as
expressed by Blackstone. ``The liberty of the
[[Page 1021]]
press is indeed essential to the nature of a free state; but this
consists in laying no previous restraints upon publications, and not in
freedom from censure for criminal matter when published. Every freeman
has an undoubted right to lay what sentiments he pleases before the
public; to forbid this, is to destroy the freedom of the press: but if
he publishes what is improper, mischievous, or illegal, he must take the
consequences of his own temerity. To subject the press to the
restrictive power of a licenser, as was formerly done, both before and
since the Revolution, is to subject all freedom of sentiment to the
prejudices of one man, and make him the arbitrary and infallible judge
of all controverted points in learning, religion and government. But to
punish as the law does at present any dangerous or offensive writings,
which, when published, shall on a fair and impartial trial be adjudged
of a pernicious tendency, is necessary for the preservation of peace and
good order, of government and religion, the only solid foundations of
civil liberty. Thus, the will of individuals is still left free: the
abuse only of that free will is the object of legal punishment. Neither
is any restraint hereby laid upon freedom of thought or inquiry; liberty
of private sentiment is still left; the disseminating, or making public,
of bad sentiments, destructive to the ends of society, is the crime
which society corrects.''\7\
\5\The House debate insofar as it touched upon this amendment
was concerned almost exclusively with a motion to strike the right to
assemble and an amendment to add a right of the people to instruct their
Representatives. 1 Annals of Congress 731-49 (August 15, 1789). There
are no records of debates in the States on ratification.
\6\Id. at 738.
\7\4 W. Blackstone's Commentaries on the Laws of England 151-52
(T. Cooley 2d rev. ed. 1872). See 3 J. Story, Commentaries on the
Constitution of the United States 1874-86 (Boston: 1833). The most
comprehensive effort to assess theory and practice in the period prior
to and immediately following adoption of the Amendment is L. Levy,
Legacy of Suppression: Freedom of Speech and Press in Early American
History (1960), which generally concluded that the Blackstonian view was
the prevailing one at the time and probably the understanding of those
who drafted, voted for, and ratified the Amendment.
---------------------------------------------------------------------------
Whatever the general unanimity on this proposition at the time
of the proposal of and ratification of the First Amendment,\8\
[[Page 1022]]
it appears that there emerged in the course of the Jeffersonian
counterattack on the Sedition Act\9\ and the use by the Adams
Administration of the Act to prosecute its political opponents,\10\
something of a libertarian theory of freedom of speech and press,\11\
which, however much the Jeffersonians may have departed from it upon
assuming power,\12\ was to blossom into the theory undergirding Supreme
Court First Amendment jurisprudence in modern times. Full acceptance of
the theory that the Amendment operates not only to bar most prior
restraints of expression but subsequent punishment of all but a narrow
range of expression, in political discourse and indeed in all fields of
expression, dates from a quite recent period, although the Court's
movement toward that position began in its consideration of limitations
on speech and press in the period following World War I.\13\ Thus, in
1907, Justice Holmes
[[Page 1023]]
could observe that even if the Fourteenth Amendment embodied
prohibitions similar to the First Amendment, ``still we should be far
from the conclusion that the plaintiff in error would have us reach. In
the first place, the main purpose of such constitutional provisions is
`to prevent all such previous restraints upon publications as had been
practiced by other governments,' and they do not prevent the subsequent
punishment of such as may be deemed contrary to the public welfare .
. . . The preliminary freedom extends as well to the false as to the
true; the subsequent punishment may extend as well to the true as to the
false. This was the law of criminal libel apart from statute in most
cases, if not in all.''\14\ But as Justice Holmes also observed,
``[t]here is no constitutional right to have all general propositions of
law once adopted remain unchanged.''\15\
\8\It would appear that Madison advanced libertarian views
earlier than his Jeffersonian compatriots, as witness his leadership of
a move to refuse officially to concur in Washington's condemnation of
``[c]ertain self-created societies,'' by which the President meant
political clubs supporting the French Revolution, and his success in
deflecting the Federalist intention to censure such societies. I. Brant,
James Madison--Father of the Constitution 1787-1800, 416-20 (1950). ``If
we advert to the nature of republican government,'' Madison told the
House, ``we shall find that the censorial power is in the people over
the government, and not in the government over the people.'' 4 Annals of
Congress 934 (1794). On the other hand, the early Madison, while a
member of his county's committee on public safety, had enthusiastically
promoted prosecution of Loyalist speakers and the burning of their
pamphlets during the Revolutionary period. 1 Papers of James Madison
147, 161-62, 190-92 (W. Hutchinson & W. Rachal eds. 1962). There seems
little doubt that Jefferson held to the Blackstonian view. Writing to
Madison in 1788, he said: ``A declaration that the federal government
will never restrain the presses from printing anything they please, will
not take away the liability of the printers for false facts printed.''
13 Papers of Thomas Jefferson 442 (J. Boyd ed. 1955). Commenting a year
later to Madison on his proposed amendment, Jefferson suggested that the
free speech-free press clause might read something like: ``The people
shall not be deprived or abridged of their right to speak, to write or
otherwise to publish anything but false facts affecting injuriously the
life, liberty, property, or reputation of others or affecting the peace
of the confederacy with foreign nations.'' 15 Papers, supra, at 367.
\9\The Act, Ch. 74, 1 Stat. 596 (1798), punished anyone who
would ``write, print, utter or publish . . . any false, scandalous and
malicious writing or writings against the government of the United
States, or either house of the Congress of the United States, or the
President of the United States, with intent to defame the said
government, or either house of the said Congress, or the said President,
or to bring them, or either of them, into contempt or disrepute.'' See
J. Smith, Freedom's Fetters--The Alien and Sedition Laws and American
Civil Liberties (1956).
\10\Id. at 159 et seq.
\11\L. Levy, Legacy of Suppression: Freedom of Speech and Press
in Early American History, ch. 6 (Cambridge, 1960); New York Times Co.
v. Sullivan, 376 U.S. 254, 273-76 (1964). But compare L. Levy, Emergence
of a Free Press (1985), a revised and enlarged edition of Legacy of
Suppression, in which Professor Levy modifies his earlier views, arguing
that while the intention of the Framers to outlaw the crime of seditious
libel, in pursuit of a free speech principle, cannot be established and
may not have been the goal, there was a tradition of robust and rowdy
expression during the period of the framing that contradicts his prior
view that a modern theory of free expression did not begin to emerge
until the debate over the Alien and Sedition Acts.
\12\L. Levy, Jefferson and Civil Liberties--The Darker Side
(Cambridge, 1963). Thus President Jefferson wrote to Governor McKean of
Pennsylvania in 1803: ``The federalists having failed in destroying
freedom of the press by their gag-law, seem to have attacked it in an
opposite direction; that is, by pushing its licentiousness and its lying
to such a degree of prostitution as to deprive it of all credit. . . .
This is a dangerous state of things, and the press ought to be restored
to its credibility if possible. The restraints provided by the laws of
the States are sufficient for this if applied. And I have, therefore,
long thought that a few prosecutions of the most prominent offenders
would have a wholesome effect in restoring the integrity of the presses.
Not a general prosecution, for that would look like persecution; but a
selected one.'' 9 Works of Thomas Jefferson 449 (P. Ford, ed. 1905).
\13\New York Times Co. v. Sullivan, 376 U.S. 254 (1964),
provides the principal doctrinal justification for the development,
although the results had long since been fully applied by the Court. In
Sullivan, Justice Brennan discerned in the controversies over the
Sedition Act a crystallization of ``a national awareness of the central
meaning of the First Amendment,'' id. at 273, which is that the ``right
of free public discussion of the stewardship of public officials . . .
[is] a fundamental principle of the American form of government.'' Id.
at 275. This ``central meaning'' proscribes either civil or criminal
punishment for any but the most maliciously, knowingly false criticism
of government. ``Although the Sedition Act was never tested in this
Court, the attack upon its validity has carried the day in the court of
history. . . . [The historical record] reflect[s] a broad consensus that
the Act, because of the restraint it imposed upon criticism of
government and public officials, was inconsistent with the First
Amendment.'' Id. at 276. Madison's Virginia Resolutions of 1798 and his
Report in support of them brought together and expressed the theories
being developed by the Jeffersonians and represent a solid doctrinal
foundation for the point of view that the First Amendment superseded the
common law on speech and press, that a free, popular government cannot
be libeled, and that the First Amendment absolutely protects speech and
press. 6 Writings of James Madison, 341-406 (G. Hunt. ed. 1908).
\14\Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis
original). Justice Frankfurter had similar views in 1951: ``The historic
antecedents of the First Amendment preclude the notion that its purpose
was to give unqualified immunity to every expression that touched on
matters within the range of political interest. . . . `The law is
perfectly well settled,' this Court said over fifty years ago, `that the
first ten amendments to the Constitution, commonly known as the Bill of
Rights, were not intended to lay down any novel principles of
government, but simply to embody certain guaranties and immunities which
we had inherited from our English ancestors, and which had from time
immemorial been subject to certain well-recognized exceptions arising
from the necessities of the case. In incorporating these principles into
the fundamental law there was no intention of disregarding the
exceptions, which continued to be recognized as if they had been
formally expressed.' That this represents the authentic view of the Bill
of Rights and the spirit in which it must be construed has been
recognized again and again in cases that have come here within the last
fifty years.'' Dennis v. United States, 341 U.S. 494, 521-522, 524
(1951) (concurring opinion). The internal quotation is from Robertson v.
Baldwin, 165 U.S. 275, 281 (1897).
\15\Patterson v. Colorado, 205 U.S. 454, 461 (1907).
---------------------------------------------------------------------------
But in Schenck v. United States,\16\ the first of the post-World
War I cases to reach the Court, Justice Holmes, in the opinion of the
Court, while upholding convictions for violating the Espionage Act by
attempting to cause insubordination in the military service by
circulation of leaflets, suggested First Amendment restraints on
subsequent punishment as well as prior restraint. ``It well may be
[[Page 1024]]
that the prohibition of laws abridging the freedom of speech is not
confined to previous restraints although to prevent them may have been
the main purpose . . . . We admit that in many places and in ordinary
times the defendants in saying all that was said in the circular would
have been within their constitutional rights. But the character of every
act depends upon the circumstances in which it is done. The most
stringent protection of free speech would not protect a man in falsely
shouting fire in a theater and causing a panic. . . . The question in
every case is whether the words used are used in such a nature as to
create a clear and present danger that they will bring about the
substantive evils that Congress has a right to prevent.'' Justice Holmes
along with Justice Brandeis soon went into dissent in their views that
the majority of the Court was misapplying the legal standards thus
expressed to uphold suppression of speech which offered no threat of
danger to organized institutions.\17\ But it was with the Court's
assumption that the Fourteenth Amendment restrained the power of the
States to suppress speech and press that the doctrines developed.\18\ At
first, Holmes and Brandeis remained in dissent, but in Fiske v.
Kansas,\19\ the Court sustained a First Amendment type of claim in a
state case, and in Stromberg v. California,\20\ a state law was voided
on grounds of its interference with free speech.\21\ State common law
was also voided, the Court in an opinion by Justice Black asserting that
the First Amendment enlarged protections for speech, press, and religion
beyond those enjoyed under English common law.\22\ Development over the
years since has been uneven, but by 1964 the Court could say with
unanimity: ``we consider this case against the background of a profound
national commitment to the principle that debate on public issues should
be uninhibited, robust, and wide-open, and that it may well include
vehement, caustic and
[[Page 1025]]
sometimes unpleasantly sharp attacks on government and public
officials.''\23\ And in 1969, it was said that the cases ``have
fashioned the principle that the constitutional guarantees of free
speech and free press do not permit a State to forbid or proscribe
advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action
and is likely to incite or produce such action.''\24\ This development
and its myriad applications are elaborated in the following sections.
\16\249 U.S. 47, 51-52 (1919) (citations omitted).
\17\Debs v. United States, 249 U.S. 211 (1919); Abrams v. United
States, 250 U.S. 616 (1919); Schaefer v. United States, 251 U.S. 466
(1920); Pierce v. United States, 252 U.S. 239 (1920); United States ex
rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407
(1921). A state statute similar to the federal one was upheld in Gilbert
v. Minnesota, 254 U.S. 325 (1920).
\18\Gitlow v. New York, 268 U.S. 652 (1925); Whitney v.
California, 274 U.S. 357 (1927). The Brandeis and Holmes dissents in
both cases were important formulations of speech and press principles.
\19\274 U.S. 380 (1927).
\20\283 U.S. 359 (1931). By contrast, it was not until 1965 that
a federal statute was held unconstitutional under the First Amendment.
Lamont v. Postmaster General, 381 U.S. 301 (1965). See also United
States v. Robel, 389 U.S. 258 (1967).
\21\And see Near v. Minnesota ex rel. Olson, 283 U.S. 697
(1931); Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299
U.S. 353 (1937); Lovell v. Griffin, 303 U.S. 444 (1938).
\22\Bridges v. California, 314 U.S. 252, 263-68 (1941)
(overturning contempt convictions of newspaper editor and others for
publishing commentary on pending cases).
\23\New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
\24\Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
---------------------------------------------------------------------------
Freedom of Expression: The Philosophical Basis
Probably no other provision of the Constitution has given rise
to so many different views with respect to its underlying philosophical
foundations, and hence proper interpretive framework, as has the
guarantee of freedom of expression--the free speech and free press
clauses.\25\ The argument has been fought out among the commentators.
``The outstanding fact about the First Amendment today is that the
Supreme Court has never developed any comprehensive theory of what that
constitutional guarantee means and how it should be applied in concrete
cases.''\26\ Some of the commentators argue in behalf of a complex of
values, none of which by itself is sufficient to support a broad-based
protection of freedom of expression.\27\ Others would limit the basis of
the First Amendment to one only among a constellation of possible values
and would
[[Page 1026]]
therefore limit coverage or degree of protection of the speech and press
clauses. For example, one school of thought believes that, because of
the constitutional commitment to free self-government, only political
speech is within the core protected area,\28\ although some commentators
tend to define more broadly the concept of ``political'' than one might
suppose from the word alone. Others recur to the writings of Milton and
Mill and argue that protecting speech, even speech in error, is
necessary to the eventual ascertainment of the truth, through conflict
of ideas in the marketplace, a view skeptical of our ability to ever
know the truth.\29\ A broader-grounded view is variously expounded by
scholars who argue that freedom of expression is necessary to promote
individual self-fulfillment, such as the concept that when speech is
freely chosen by the speaker to persuade others it defines and expresses
the ``self,'' promotes his liberty,\30\ or the concept of ``self-
realization,'' the belief that free speech enables the individual to
develop his powers and abilities and to make and influence decisions
regarding his destiny.\31\ The literature is enormous and no doubt the
Justices as well as the larger society are influenced by it, and yet the
decisions, probably in large part because they are the collective
determination of nine individuals, seldom clearly reflect a principled
and consistent acceptance of any philosophy.
\25\While ``expression'' is not found in the text of the First
Amendment, it is used herein, first, as a shorthand term for the
freedoms of speech, press, assembly, petition, association, and the
like, which are comprehended by the Amendment, and, second, as a
recognition of the fact that judicial interpretation of the clauses of
the First Amendment has greatly enlarged the definition commonly
associated with ``speech,'' as the following discussion will reveal. The
term seems well settled, see, e.g., T. Emerson, The System of Freedom of
Expression (1970), although it has been criticized. F. Schauer, Free
Speech: A Philosophical Inquiry, 50-52 (1982). The term also, as used
here, conflates the speech and press clauses, explicitly assuming they
are governed by the same standards of interpretation and that, in fact,
the press clause itself adds nothing significant to the speech clause as
interpreted, an assumption briefly defended infra, pp.1026-29.
\26\T. Emerson, The System of Freedom of Expression 15 (1970).
The practice in the Court is largely to itemize all the possible values
the First Amendment has been said to protect. See, e.g., Consolidated
Edison Co. v. PSC, 447 U.S. 530, 534-35 (1980); First National Bank of
Boston v. Bellotti, 435 U.S. 765, 776-77 (1978).
\27\T. Emerson, The System of Freedom of Expression 6-7 (1970).
For Emerson, the four values are (1) assuring individuals self-
fulfillment, (2) promoting discovery of truth, (3) providing for
participation in decisionmaking by all members of society, and (4)
promoting social stability through discussion and compromise of
differences. For a persuasive argument in favor of an ``eclectic''
approach, see Shriffrin, The First Amendment and Economic Regulation:
Away From a General Theory of the First Amendment, 78 Nw. U.L. Rev. 1212
(1983). A compressive discussion of all the theories may be found in F.
Schauer, Free Speech: A Philosophical Inquiry (1982).
\28\E.g., A. Meiklejohn, Political Freedom (1960); Bork, Neutral
Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971);
BeVier, The First Amendment and Political Speech: An Inquiry Into the
Substance and Limits of Principle, 30 Stan. L. Rev. 299 (1978). This
contention does not reflect the Supreme Court's view. ``It is no doubt
true that a central purpose of the First Amendment `was to protect the
free discussion of governmental affairs.' . . . But our cases have never
suggested that expression about philosophical, social, artistic,
economic, literary, or ethical matters--to take a nonexclusive list of
labels--is not entitled to full First Amendment protection.'' Abood v.
Detroit Bd. of Educ., 431 U.S. 209, 231 (1977).
\29\The ``marketplace of ideas'' metaphor is attributable to
Justice Holmes' opinion in Abrams v. United States, 250 U.S. 616, 630
(1919). See Scanlon, Freedom of Expression and Categories of Expression,
40 U. Pitt. L. Rev. 519 (1979). The theory has been the dominant one in
scholarly and judicial writings. Baker, Scope of the First Amendment
Freedom of Speech, 25 UCLA L. Rev. 964, 967-74 (1978).
\30\E.g., Baker ``Process of Change and the Liberty Theory of
the First Amendment, 55 S. Cal. L. Rev. 293 (1982); Baker, Realizing
Self-Realization: Corporate Political Expenditures and Redish's The
Value of Free Speech, 130 U. Pa. L. Rev. 646 (1982).
\31\Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591
(1982).
---------------------------------------------------------------------------
Freedom of Expression: Is There a Difference Between Speech and
Press
Utilization of the single word ``expression'' to reach speech,
press, petition, association, and the like, raises the central question
of whether the free speech clause and the free press clause are
coextensive; does one perhaps reach where the other does not? It has
[[Page 1027]]
been much debated, for example, whether the ``institutional press'' may
assert or be entitled to greater freedom from governmental regulations
or restrictions than are non-press individuals, groups, or associations.
Justice Stewart has argued: ``That the First Amendment speaks separately
of freedom of speech and freedom of the press is no constitutional
accident, but an acknowledgment of the critical role played by the press
in American society. The Constitution requires sensitivity to that role,
and to the special needs of the press in performing it
effectively.''\32\ But as Chief Justice Burger wrote: ``The Court has
not yet squarely resolved whether the Press Clause confers upon the
`institutional press' any freedom from government restraint not enjoyed
by all others.''\33\
\32\Houchins v. KQED, 438 U.S. 1, 17 (1978) (concurring
opinion). Justice Stewart initiated the debate in a speech, subsequently
reprinted as Stewart, Or of the Press, 26 Hastings L. J. 631 (1975).
Other articles are cited in First National Bank of Boston v. Bellotti,
435 U.S. 765, 795 (1978) (Chief Justice Burger concurring).
\33\Id. at 798. The Chief Justice's conclusion was that the
institutional press had no special privilege as the press.
---------------------------------------------------------------------------
Several Court holdings do firmly point to the conclusion that
the press clause does not confer on the press the power to compel
government to furnish information or to give the press access to
information that the public generally does not have.\34\ Nor in many
respects is the press entitled to treatment different in kind than the
treatment any other member of the public may be subjected to.\35\
``Generally applicable laws do not offend the First Amendment simply
because their enforcement against the press has incidental
effects.''\36\ Yet, it does seem clear that to some extent the press,
because of the role it plays in keeping the public informed and in the
dissemination of news and information, is entitled to particular if not
special deference that others are not similarly entitled to, that its
role constitutionally entitles it to governmental ``sensitivity,'' to
use Justice Stewart's word.\37\ What difference such
[[Page 1028]]
a recognized ``sensitivity'' might make in deciding cases is difficult
to say.
\34\Houchins v. KQED, 438 U.S. 1 (1978), and id. at 16 (Justice
Stewart concurring); Saxbe v. Washington Post, 417 U.S. 843 (1974); Pell
v. Procunier, 417 U.S. 817 (1974); Nixon v. Warner Communications, 435
U.S. 589 (1978). The trial access cases, whatever they may precisely
turn out to mean, recognize a right of access of both public and press
to trials. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe
Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).
\35\Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury
testimony be newspaper reporter); Zurcher v. Stanford Daily, 436 U.S.
547 (1978) (search of newspaper offices); Herbert v. Lando, 441 U.S. 153
(1979) (defamation by press); Cohen v. Cowles Media Co., 501 U.S. 663
(1991) (newspaper's breach of promise of confidentiality).
\36\Cohen v. Cowles Media, 501 U.S. 663, 669 (1991).
\37\E.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241
(1974); Landmark Communications v. Virginia, 435 U.S. 829 (1978). See
also Zurcher v. Stanford Daily, 436 U.S. 547, 563-67 (1978), and id. at
568 (Justice Powell concurring); Branzburg v. Hayes, 408 U.S. 665, 709
(1972) (Justice Powell concurring). Several concurring opinions in
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), imply recognition
of some right of the press to gather information that apparently may not
be wholly inhibited by nondiscriminatory constraints. Id. at 582-84
(Justice Stevens), 586 n.2 (Justice Brennan), 599 n.2 (Justice Stewart).
On the other hand, the Court has also suggested that the press is
protected in order to promote and to protect the exercise of free speech
in the society, including the receipt of information by the people.
E.g., Mills v. Alabama, 384 U.S. 214, 218-19 (1966); CBS v. FCC, 453
U.S. 367, 394-95 (1981).
---------------------------------------------------------------------------
The most interesting possibility lies in the area of First
Amendment protection of good faith defamation.\38\ Justice Stewart
argued that the Sullivan privilege is exclusively a free press right,
denying that the ``constitutional theory of free speech gives an
individual any immunity from liability for libel or slander.''\39\ To be
sure, in all the cases to date that the Supreme Court has resolved, the
defendant has been, in some manner, of the press,\40\ but the Court's
decision that corporations are entitled to assert First Amendment speech
guarantees against federal and, through the Fourteenth Amendment, state
regulations causes the evaporation of the supposed ``conflict'' between
speech clause protection of individuals only and of press clause
protection of press corporations as well as of press individuals.\41\
The issue, the Court wrote, was not what constitutional rights
corporations have but whether the speech which is being restricted is
expression that the First Amendment protects because of its societal
significance. Because the speech concerned the enunciation of views on
the conduct of governmental affairs, it was protected regardless of its
source; while the First Amendment protects and fosters individual self-
expression as a worthy goal, it also and as important affords the public
access to discussion, debate, and the dissemination of information and
ideas. Despite Bellotti's emphasis upon the nature of the contested
speech being political, it is clear that the same principle,
[[Page 1029]]
the right of the public to receive information, governs nonpolitical,
corporate speech.\42\
\38\New York Times Co. v. Sullivan, 376 U.S. 254 (1964). See
infra, pp.1136-45.
\39\Stewart, Or of the Press, 26 Hastings, L. J. 631, 633-35
(1975).
\40\In Hutchinson v. Proxmire, 443 U.S. 111, 133 n.16 (1979),
the Court noted that it has never decided whether the Times standard
applies to an individual defendant. Some think they discern in Gertz v.
Robert Welch, Inc., 418 U.S. 323 (1974), intimations of such leanings by
the Court.
\41\First National Bank of Boston v. Bellotti, 435 U.S. 765
(1978). The decision, addressing a question not theretofore confronted,
was 5-to-4. Justice Rehnquist would have recognized no protected First
Amendment rights of corporations because, as entities entirely the
creation of state law, they were not to be accorded rights enjoyed by
natural persons. Id. at 822. Justices White, Brennan, and Marshall
thought the First Amendment implicated but not dispositive because of
the state interests asserted. Id. at 802. Previous decisions recognizing
corporate free speech had involved either press corporations, id. at
781-83; and see id. at 795 (Chief Justice Burger concurring), or
corporations organized especially to promote the ideological and
associational interests of their members. E.g., NAACP v. Button, 371
U.S. 415 (1963).
\42\Commercial speech when engaged in by a corporation is
subject to the same standards of protection as when natural persons
engage in it. Consolidated Edison Co. v. PSC, 447 U.S. 530, 533-35
(1980). Nor does the status of a corporation as a government-regulated
monopoly alter the treatment. Id. at 534 n.1; Central Hudson Gas &
Electric Co. v. PSC, 447 U.S. 557, 566-68 (1980).
---------------------------------------------------------------------------
With some qualifications, therefore, it is submitted that the
speech and press clauses may be analyzed under an umbrella
``expression'' standard, with little, if any, hazard of missing
significant doctrinal differences.
The Doctrine of Prior Restraint
``[L]iberty of the press, historically considered and taken up
by the Federal Constitution, has meant, principally although not
exclusively, immunity from previous restraints or censorship.''\43\
``Any system of prior restraints of expression comes to this Court
bearing a heavy presumption against its constitutional validity.''\44\
Government ``thus carries a heavy burden of showing justification for
the imposition of such a restraint.''\45\ Under the English licensing
system, which expired in 1695, all printing presses and printers were
licensed and nothing could be published without prior approval of the
state or church authorities. The great struggle for liberty of the press
was for the right to publish without a license that which for a long
time could be published only with a license.\46\
\43\Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931).
\44\Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963).
\45\Organization for a Better Austin v. Keefe, 402 U.S. 415, 419
(1971); New York Times Co. v. United States, 403 U.S. 713, 714 (1971).
\46\Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-14
(1931): Lovell v. Griffin, 303 U.S. 444, 451 (1938).
---------------------------------------------------------------------------
The United States Supreme Court's first encounter with a law
imposing a prior restraint came in Near v. Minnesota ex rel. Olson,\47\
in which a five-to-four majority voided a law authorizing the permanent
enjoining of future violations by any newspaper or periodical once found
to have published or circulated an ``obscene, lewd and lascivious'' or a
``malicious, scandalous and defamatory'' issue. An injunction had been
issued after the newspaper in question had printed a series of articles
tying local officials to gangsters. While the dissenters maintained that
the injunction constituted no prior restraint, inasmuch as that doctrine
applied to prohibitions of publication without advance approval of an
executive official,\48\ the majority deemed the difference of no
consequence, since in order to avoid a contempt citation the newspaper
would have to clear future publications in advance with the
[[Page 1030]]
judge.\49\ Liberty of the press to scrutinize closely the conduct of
public affairs was essential, said Chief Justice Hughes for the Court.
``[T]he administration of government has become more complex, the
opportunities for malfeasance and corruption have multiplied, crime has
grown to most serious proportions, and the danger of its protection by
unfaithful officials and of the impairment of the fundamental security
of life and property by criminal alliances and official neglect,
emphasizes the primary need of a vigilant and courageous press,
especially in great cities. The fact that the liberty of the press may
be abused by miscreant purveyors of scandal does not make any the less
necessary the immunity of the press from previous restraint in dealing
with official misconduct. Subsequent punishment for such abuses as may
exist is the appropriate remedy, consistent with constitutional
privilege.''\50\ The Court did not undertake to explore the kinds of
restrictions to which the term ``prior restraint'' would apply nor to do
more than assert that only in ``exceptional circumstances'' would prior
restraint be permissible.\51\ Nor did subsequent cases substantially
illuminate the murky interior of the doctrine. The doctrine of prior
restraint was called upon by the Court as it struck down a series of
loosely drawn statutes and ordinances requiring licenses to hold
meetings and parades and to distribute literature, with uncontrolled
discretion in the licensor whether or not to issue them, and as it
voided other restrictions on First Amendment rights.\52\ The doctrine
that generally emerged was that permit systems--prior licensing, if you
will--were constitutionally valid so long as the discretion of the
issuing official was limited to questions of times, places, and
manners.\53\ The most recent Court encounter with the doctrine in the
[[Page 1031]]
national security area occurred when the Government attempted to enjoin
press publication of classified documents pertaining to the Vietnam
War\54\ and, although the Court rejected the effort, at least five and
perhaps six Justices concurred on principle that in some circumstances
prior restraint of publication would be constitutional.\55\ But no
cohesive doctrine relating to the subject, its applications, and its
exceptions has yet emerged.
\47\283 U.S. 697 (1931).
\48\Id. at 723, 733-36 (Justice Butler dissenting).
\49\Id. at 712-13.
\50\Id. at 719-20.
\51\Id. at 715-16.
\52\E.g., Lovell v. Griffin, 303 U.S. 444 (1938); Cantwell v.
Connecticut, 310 U.S. 296 (1940); Kunz v. New York, 340 U.S. 290 (1951);
Niemotko v. Maryland, 340 U.S. 268 (1951); Staub v. City of Baxley, 355
U.S. 313 (1958). For other applications, see Grosjean v. American Press
Co., 297 U.S. 233 (1936); Murdock v. Pennsylvania, 319 U.S. 105 (1943);
Follett v. McCormick, 321 U.S. 573 (1944).
\53\Cox v. New Hampshire, 312 U.S. 569 (1941); Poulos v. New
Hampshire, 345 U.S. 395 (1953). In Carroll v. President & Comm'rs of
Princess Anne, 393 U.S. 175 (1968), the Court held invalid the issuance
of an ex parte injunction to restrain the holding of a protest meeting,
holding that usually notice must be given the parties to be restrained
and an opportunity for them to rebut the contentions presented to
justify the sought-for restraint. In Organization for a Better Austin v.
Keefe, 402 U.S. 415 (1971), the Court held invalid as a prior restraint
an injunction preventing the petitioners from distributing 18,000
pamphlets attacking respondent's alleged ``blockbusting'' real estate
activities; he was held not to have borne the ``heavy burden'' of
justifying the restraint. ``No prior decisions support the claim that
the interest of an individual in being free from public criticism of his
business practices in pamphlets or leaflets warrants use of the
injunctive power of a court. Designating the conduct as an invasion of
privacy . . . is not sufficient to support an injunction against
peaceful distribution of informational literature of the nature revealed
by this record.'' Id. at 419-20. See also City of Lakewood v. Plain
Dealer Publishing Co., 486 U.S. 750 (1988) (ordinance vesting in the
mayor unbridled discretion to grant or deny annual permit for location
of newsracks on public property is facially invalid as prior restraint).
The necessity of immediate appellate review of orders
restraining the exercise of First Amendment rights was strongly
emphasized in National Socialist Party v. Village of Skokie, 432 U.S. 43
(1977), and seems to explain the Court's action in Philadelphia
Newspapers v. Jerome, 434 U.S. 241 (1978). But see Moreland v. Sprecher,
443 U.S. 709 (1979) (party can relinquish right to expedited review
through failure to properly request it).
\54\New York Times Co. v. United States, 403 U.S. 713 (1971).
The vote was six to three, with Justices Black, Douglas, Brennan,
Stewart, White, and Marshall in the majority and Chief Justice Burger
and Justices Harlan and Blackmun in the minority. Each Justice issued an
opinion.
\55\The three dissenters thought such restraint appropriate in
this case. Id. at 748, 752, 759. Justice Stewart thought restraint would
be proper if disclosure ``will surely result in direct, immediate, and
irreparable damage to our Nation or its people,'' id. at 730, while
Justice White did not endorse any specific phrasing of a standard. Id.
at 730-733. Justice Brennan would preclude even interim restraint except
upon ``governmental allegation and proof that publication must
inevitably, directly, and immediately cause the occurrence of an event
kindred to imperiling the safety of a transport already at sea.'' Id. at
712-13.
The same issues were raised in United States v. Progressive,
Inc., 467 F. Supp. 990 (W.D.Wis. 1979), in which the United States
obtained an injunction prohibiting publication of an article it claimed
would reveal information about nuclear weapons, thus increasing the
dangers of nuclear proliferation. The injunction was lifted when the
same information was published elsewhere and thus no appellate review
was had of the order.
With respect to the right of the Central Intelligence Agency to
prepublication review of the writings of former agents and its
enforcement through contractual relationships, see Snepp v. United
States, 444 U.S. 507 (1980); Alfred A. Knopf, Inc. v. Colby, 509 F.2d
1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975); United States v.
Marchetti, 446 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972).
---------------------------------------------------------------------------
Injunctions and the Press in Fair Trial Cases.--Confronting a
claimed conflict between free press and fair trial guarantees, the Court
unanimously set aside a state court injunction barring the publication
of information that might prejudice the subsequent trial of a criminal
defendant.\56\ Though agreed on result, the Justices were divided with
respect to whether ``gag orders'' were ever permissible and if so what
the standards for imposing them were. The opinion of the Court utilized
the Learned Hand formulation of the ``clear and present danger''
test\57\ and considered as factors in
[[Page 1032]]
any decision on the imposition of a restraint upon press reporters (a)
the nature and extent of pretrial news coverage, (b) whether other
measures were likely to mitigate the harm, and (c) how effectively a
restraining order would operate to prevent the threatened danger.\58\
One seeking a restraining order would have a heavy burden to meet to
justify such an action, a burden that could be satisfied only on a
showing that with a prior restraint a fair trial would be denied, but
the Chief Justice refused to rule out the possibility of showing the
kind of threat that would possess the degree of certainty to justify
restraints.\59\ Justice Brennan's major concurring opinion flatly took
the position that such restraining orders were never permissible.
Commentary and reporting on the criminal justice system is at the core
of First Amendment values, he would hold, and secrecy can do so much
harm ``that there can be no prohibition on the publication by the press
of any information pertaining to pending judicial proceedings or the
operation of the criminal justice system, no matter how shabby the means
by which the information is obtained.''\60\ The extremely narrow
exceptions under which prior restraints might be permissible relate to
probable national harm resulting from publication, the Justice
continued; because the trial court could adequately protect a
defendant's right to a fair trial through other means even if there were
conflict of constitutional rights the possibility of damage to the fair
trail right would be so speculative that the burden of justification
could not be met.\61\ While the result does not foreclose the
possibility of future ``gag orders,'' it does lessen the number to be
expected and
[[Page 1033]]
shifts the focus to other alternatives for protecting trial rights.\62\
On a different level, however, are orders restraining the press as a
party to litigation in the dissemination of information obtained through
pretrial discovery. In Seattle Times Co. v. Rhinehart,\63\ the Court
determined that such orders protecting parties from abuses of discovery
require ``no heightened First Amendment scrutiny.''\64\
\56\Nebraska Press Ass'n. v. Stuart, 427 U.S. 539 (1976).
\57\Id. at 562, quoting Dennis v. United States, 183 F.2d 201,
212 (2d Cir. 1950), aff'd., 341 U.S. 494, 510 (1951).
\58\Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 562 (1976)
(opinion of Chief Justice Burger, concurred in by Justices Blackmun and
Rehnquist, and, also writing brief concurrences, Justices White and
Powell). Applying the tests, the Chief Justice agreed that (a) there was
intense and pervasive pretrial publicity and more could be expected, but
that (b) the lower courts had made little effort to assess the prospects
of other methods of preventing or mitigating the effects of such
publicity and that (c) in any event the restraining order was unlikely
to have the desired effect of protecting the defendant's rights. Id. at
562-67.
\59\The Court differentiated between two kinds of information,
however: (1) reporting on judicial proceedings held in public, which has
``special'' protection and requires a much higher justification than (2)
reporting of information gained from other sources as to which the
burden of justifying restraint is still high. Id. at 567-68, 570. See
also Oklahoma Pub. Co. v. District Court, 430 U.S. 308 (1977) (setting
aside injunction restraining news media from publishing name of juvenile
involved in pending proceeding when name has been learned at open
detention hearing that could have been closed but was not); Smith v.
Daily Mail Pub. Co., 433 U.S. 97 (1979).
\60\Id. at 572, 588. Justices Stewart and Marshall joined this
opinion and Justice Stevens noted his general agreement except that he
reserved decision in particularly egregious situations, even though
stating that he might well agree with Justice Brennan there also. Id. at
617. Justice White, while joining the opinion of the Court, noted that
he had grave doubts that ``gag orders'' could ever be justified but he
would refrain from so declaring in the Court's first case on the issue.
Id. at 570.
\61\Id. at 588-95.
\62\One such alternative is the banning of communication with
the press on trial issues by prosecution and defense attorneys, police
officials, and court officers. This, of course, also raises First
Amendment issues. See, e.g., Chicago Council of Lawyers v. Bauer, 522 F.
2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976).
\63\467 U.S. 20 (1984).
\64\467 U.S. at 36. The decision was unanimous, all other
Justices joining Justice Powell's opinion for the Court, but with
Justices Brennan and Marshall noting additionally that under the facts
of the case important interests in privacy and religious freedom were
being protected. Id. at 37, 38.
---------------------------------------------------------------------------
Obscenity and Prior Restraint.--Only in the obscenity area has
there emerged a substantial consideration of the doctrine of prior
restraint and the doctrine's use there may be based upon the proposition
that obscenity is not a protected form of expression.\65\ In Kingsley
Books v. Brown,\66\ the Court upheld a state statute which, while it
embodied some features of prior restraint, was seen as having little
more restraining effect than an ordinary criminal statute; that is, the
law's penalties applied only after publication. But in Times Film Corp.
v. City of Chicago,\67\ a divided Court specifically affirmed that, at
least in the case of motion pictures, the First Amendment did not
proscribe a licensing system under which a board of censors could refuse
to license for public exhibition films which it found to be obscene.
Books and periodicals may also be subjected to some forms of prior
restraint,\68\ but the thrust of the Court's opinions in this area with
regard to all forms of communication has been to establish strict
standards of procedural protections to ensure that the censoring agency
bears the burden of proof on obscenity, that only a judicial order can
restrain exhibition, and that a prompt final judicial decision is
assured.\69\
\65\Infra, pp.1149-59.
\66\354 U.S. 436 (1957). See also Bantam Books v. Sullivan, 372
U.S. 58 (1963).
\67\365 U.S. 43 (1961). See also Young v. American Mini
Theatres, 427 U.S. 50 (1976) (zoning ordinance prescribing distances
adult theaters may be located from residential areas and other theaters
is not an impermissible prior restraint).
\68\Cf. Kingsley Books v. Brown, 354 U.S. 436 (1957).
\69\Freedman v. Maryland, 380 U.S. 51 (1965); Teitel Film Corp.
v. Cusack, 390 U.S. 139 (1968); Interstate Circuit v. City of Dallas,
390 U.S. 676 (1968); Blount v. Rizzi, 400 U.S. 410 (1971); United States
v. Thirty-seven Photographs, 402 U.S. 363, 367-375 (1971); Southeastern
Promotions v. Conrad, 420 U.S. 546 (1975); Erznoznik v. City of
Jacksonville, 422 U.S. 205 (1975); FW/PBS, Inc. v. City of Dallas, 493
U.S. 215 (1990) (ordinance requiring licensing of ``sexually oriented
business'' places no time limit on approval by inspection agencies and
fails to provide an avenue for prompt judicial review); Fort Wayne
Books, Inc. v. Indiana, 489 U.S. 46 (1989) (seizure of books and films
based on ex parte probable cause hearing under state RICO law's
forfeiture procedures constitutes invalid prior restraint; instead,
there must be a determination in an adversarial proceeding that the
materials are obscene or that a RICO violation has occurred).
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[[Page 1034]]
Subsequent Punishment: Clear and Present Danger and Other Tests
Granted that the context of the controversy over freedom of
expression at the time of the ratification of the First Amendment was
almost exclusively limited to the problem of prior restraint, still the
words speak of laws ``abridging'' freedom of speech and press and the
modern adjudicatory disputes have been largely fought out over
subsequent punishment. ``The mere exemption from previous restraints
cannot be all that is secured by the constitutional provisions, inasmuch
as of words to be uttered orally there can be no previous censorship,
and the liberty of the press might be rendered a mockery and a delusion,
and the phrase itself a byword, if, while every man was at liberty to
publish what he pleased, the public authorities might nevertheless
punish him for harmless publications. . . .
``[The purpose of the speech-press clauses] has evidently been
to protect parties in the free publication of matters of public concern,
to secure their right to a free discussion of public events and public
measures, and to enable every citizen at any time to bring the
government and any person in authority to the bar of public opinion by
any just criticism upon their conduct in the exercise of the authority
which the people have conferred upon them. . . . The evils to be
prevented were not the censorship of the press merely, but any action of
the government by means of which it might prevent such free and general
discussion of public matters as seems absolutely essential to prepare
the people for an intelligent exercise of their rights as
citizens.''\70\ A rule of law permitting criminal or civil liability to
be imposed upon those who speak or write on public issues and their
superintendence would lead to ``self-censorship'' by all which would not
be relieved by permitting a defense of truth. ``Under such a rule,
would-be critics of official conduct may be deterred from voicing their
criticism, even though it is believed to be true and even though it is
in fact true, because of doubt whether it can be proved in court or fear
of the expense of having to do so . . . . The rule thus dampens the
vigor and limits the variety of public debate.''\71\
\70\2 T. Cooley, A Treatise on the Constitutional Limitations
Which Rest Upon the Legislative Powers of the States of the American
Union 885-86 (8th ed. 1927).
\71\New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964).
See also Speiser v. Randall, 357 U.S. 513, 526 (1958); Smith v.
California, 361 U.S. 147, 153-154 (1959); Time, Inc. v. Hill, 385 U.S.
374, 389 (1967).
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[[Page 1035]]
``Persecution for the expression of opinions seems to me
perfectly logical. If you have no doubt of your premises or your power
and want a certain result with all your heart you naturally express your
wishes in law and sweep away all opposition. To allow opposition by
speech seems to indicate that you think the speech impotent, as when a
man says that he has squared the circle, or that you do not care whole-
heartedly for the result, or that you doubt either your power or your
premises. But when men have realized that time has upset many fighting
faiths, they may come to believe even more than they believe the very
foundations of their own conduct that the ultimate good desired is
better reached by free trade in ideas, that the best test of truth is
the power of the thought to get itself accepted in the competition of
the market, and that truth is the only ground upon which their wishes
safely can be carried out. That at any rate is the theory of our
Constitution.''\72\ ``Those who won our independence believed that the
final end of the State was to make men free to develop their faculties;
and that in its government the deliberative forces should prevail over
the arbitrary. They valued liberty both as an end and as a means. They
believed liberty to be the secret of happiness and courage to be the
secret of liberty. They believed that freedom to think as you will and
to speak as you think are means indispensable to the discovery and
spread of political truth; that without free speech and assembly
discussion would be futile; that with them, discussion affords
ordinarily adequate protection against the dissemination of noxious
doctrine; that the greatest menace to freedom is an inert people; that
public discussion is a political duty; and that this should be a
fundamental principle of the American government. They recognized the
risks to which all human institutions are subject. But they knew that
order cannot be secured merely through fear of punishment for its
infraction; that it is hazardous to discourage thought, hope and
imagination; that fear breeds repression; that repression breeds hate;
that hate menaces stable government; that the path of safety lies in the
opportunity to discuss freely supposed grievances and proposed remedies;
and that the fitting remedy for evil counsels is good ones. Believing in
the power of reason as applied through public discussion, they eschewed
silence coerced by law--the argument of force in its worst form.
Recognizing the occasional tyrannies of governing majorities, they
amended the Con
[[Page 1036]]
stitution so that free speech and assembly should be guaranteed.''\73\
\72\Abrams v. United States, 250 U.S. 616, 630 (1919) (Justice
Holmes dissenting).
\73\Whitney v. California, 274 U.S. 357, 375-76 (1927) (Justice
Brandeis concurring).
---------------------------------------------------------------------------
``But, although the rights of free speech and assembly are
fundamental, they are not in their nature absolute. Their exercise is
subject to restriction, if the particular restriction proposed is
required in order to protect the State from destruction or from serious
injury, political, economic or moral.''\74\ The fixing of a standard is
necessary, by which it can be determined what degree of evil is
sufficiently substantial to justify resort to abridgment of speech and
press and assembly as a means of protection and how clear and imminent
and likely the danger is.\75\ That standard has fluctuated over a period
of some fifty years now and it cannot be asserted with a great degree of
confidence that the Court has yet settled on any firm standard or any
set of standards for differing forms of expression.\76\ The cases are
instructive of the difficulty.
\74\Id. at 373.
\75\Id. at 374.
\76\On the great range of expressive communications, see infra.
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Clear and Present Danger.--Certain expression, oral or written,
may incite, urge, counsel, advocate, or importune the commission of
criminal conduct; other expression, such as picketing, demonstrating,
and engaging in certain forms of ``symbolic'' action may either counsel
the commission of criminal conduct or itself constitute criminal
conduct. Leaving aside for the moment the problem of ``speech-plus''
communication, it becomes necessary to determine when expression that
may be a nexus to criminal conduct is subject to punishment and
restraint. At first, the Court seemed disposed in the few cases reaching
it to rule that if the conduct could be made criminal, the advocacy of
or promotion of the conduct could be made criminal.\77\ Then, in Schenck
v. United States,\78\ in which defendants had been convicted of seeking
to disrupt recruitment of military personnel by dissemination of certain
leaflets, Justice Holmes formulated the ``clear and present danger''
test which has ever since been the starting point of argument. ``The
question in every case is whether the words used are used in such
circumstances and are of such a nature as to create a clear and present
danger that they will bring about the substantive evils that Congress
has a right to prevent. It is a question of proximity and degree.''\79\
The convictions were unanimously affirmed. One week
[[Page 1037]]
later, the Court again unanimously affirmed convictions under the same
Act with Justice Holmes speaking. ``[W]e think it necessary to add to
what has been said in Schenck v. United States . . . only that the First
Amendment while prohibiting legislation against free speech as such
cannot have been, and obviously was not, intended to give immunity for
every possible use of language. We venture to believe that neither
Hamilton nor Madison, nor any other competent person then or later, ever
supposed that to make criminal the counseling of a murder within the
jurisdiction of Congress would be an unconstitutional interference with
free speech.''\80\ And in Debs v. United States,\81\ Justice Holmes was
found referring to ``the natural and intended effect'' and ``probable
effect'' of the condemned speech in common-law tones.
\77\Davis v. Beason, 133 U.S. 333 (1890); Fox v. Washington, 236
U.S. 273 (1915).
\78\249 U.S. 47 (1919).
\79\Id. at 52.
\80\Frohwerk v. United States, 249 U.S., 204, 206 (1919)
(citations omitted).
\81\249 U.S. 211, 215-16 (1919).
---------------------------------------------------------------------------
But in Abrams v. United States,\82\ Justices Holmes and Brandeis
dissented upon affirmance of the convictions of several alien anarchists
who had printed leaflets seeking to encourage discontent with United
States participation in the War. The majority simply referred to Schenck
and Frohwerk to rebut the First Amendment argument, but the dissenters
urged that the Government had made no showing of a clear and present
danger. Another affirmance by the Court of a conviction, the majority
simply saying that ``[t]he tendency of the articles and their efficacy
were enough for the offense,'' drew a similar dissent.\83\ Moreover, in
Gitlow v. New York,\84\ a conviction for distributing a manifesto in
violation of a law making it criminal to advocate, advise, or teach the
duty, necessity, or propriety of overthrowing organized government by
force or violence, the Court affirmed in the absence of any evidence
regarding the effect of the distribution and in the absence of any
contention that it created any immediate threat to the security of the
State. In so doing, the Court discarded Holmes' test. ``It is clear that
the question in such cases [as this] is entirely different from that
involved in those cases where the statute merely prohibits certain acts
involving the danger of substantive evil, without any reference to
language itself, and it is sought to apply its provisions to language
used by the defendant for the purpose of bringing about the prohibited
results. . . . In such cases it has been held that the general
provisions of the statute may be constitutionally applied to the
specific utterance of the defendant if its natural tendency and probable
effect was to bring about the substantive evil which the
[[Page 1038]]
legislative body might prevent. . . . [T]he general statement in the
Schenck Case . . . was manifestly intended . . . to apply only in cases
of this class, and has no application to those like the present, where
the legislative body itself has previously determined the danger of
substantive evil arising from utterances of a specified character.''\85\
Thus, a state legislative determination ``that utterances advocating the
overthrow of organized government by force, violence, and unlawful
means, are so inimical to the general welfare, and involve such danger
of substantive evil that they may be penalized in the exercise of its
police power'' was almost conclusive on the Court.\86\ It is not clear
what test, if any, the majority would have utilized, although the ``bad
tendency'' test has usually been associated with the case. In Whitney v.
California,\87\ the Court affirmed a conviction under a criminal
syndicalism statute based on defendant's association with and membership
in an organization which advocated the commission of illegal acts,
finding again that the determination of a legislature that such advocacy
involves ``such danger to the public peace and the security of the
State'' was entitled to almost conclusive weight. In a technical
concurrence which was in fact a dissent from the opinion of the Court,
Justice Brandeis restated the ``clear and present danger'' test.
``[E]ven advocacy of violation [of the law] . . . is not a justification
for denying free speech where the advocacy falls short of incitement and
there is nothing to indicate that the advocacy would be immediately
acted on . . . . In order to support a finding of clear and present
danger it must be shown either that immediate serious violence was to be
expected or was advocated, or that the past conduct furnished reason to
believe that such advocacy was then contemplated.''\88\
\82\250 U.S. 616 (1919).
\83\Schaefer v. United States, 251 U.S. 466, 479 (1920). See
also Pierce v. United States, 252 U.S. 239 (1920).
\84\268 U.S. 652 (1925)
\85\Id. at 670-71.
\86\Id. at 668. Justice Holmes dissented. ``If what I think the
correct test is applied, it is manifest that there was no present danger
of an attempt to overthrow the government by force on the part of the
admittedly small minority who share the defendant's views. It is said
that this manifesto was more than a theory, that it was an incitement.
Every idea is an incitement. It offers itself for belief, and, if
believed, is acted on unless some other belief outweighs it, or some
failure of energy stifles the movement at its birth. The only difference
between the expression of an opinion and an incitement in the narrower
sense is the speaker's enthusiasm for the result. Eloquence may set fire
to reason. But whatever may be thought of the redundant discourse before
us, it had no chance of starting a present conflagration. If, in the
long run, the beliefs expressed in proletarian dictatorship are destined
to be accepted by the dominant forces of the community, the only meaning
of free speech is that they would be given their chance and have their
way.'' Id. at 673.
\87\274 U.S. 357, 371-72 (1927).
\88\Id. at 376.
---------------------------------------------------------------------------
The Adoption of Clear and Present Danger.--The Court did not
invariably affirm convictions during this period in cases
[[Page 1039]]
like those under consideration. In Fiske v. Kansas,\89\ it held that a
criminal syndicalism law had been invalidly applied to convict one
against whom the only evidence was the ``class struggle'' language of
the constitution of the organization to which he belonged. A conviction
for violating a ``red flag'' law was voided as the statute was found
unconstitutionally vague.\90\ Neither case mentioned clear and present
danger. An ``incitement'' test seemed to underlie the opinion in De
Jonge v. Oregon,\91\ upsetting a conviction under a criminal syndicalism
statute for attending a meeting held under the auspices of an
organization which was said to advocate violence as a political method,
although the meeting was orderly and no violence was advocated during
it. In Herndon v. Lowry,\92\ the Court narrowly rejected the contention
that the standard of guilt could be made the ``dangerous tendency'' of
one's words, and indicated that the power of a State to abridge speech
``even of utterances of a defined character must find its justification
in a reasonable apprehension of danger to organized government.''
\89\274 U.S. 380 (1927).
\90\Stromberg v. California, 283 U.S. 359 (1931).
\91\299 U.S. 353 (1937). See id. at 364-65.
\92\301 U.S. 242, 258 (1937). At another point, clear and
present danger was alluded to without any definite indication it was the
standard. Id. at 261.
---------------------------------------------------------------------------
Finally, in Thornhill v. Alabama,\93\ a state anti-picketing law
was invalidated because ``no clear and present danger of destruction of
life or property, or invasion of the right of privacy, or breach of the
peace can be thought to be inherent in the activities of every person
who approaches the premises of an employer and publicizes the facts of a
labor dispute involving the latter.'' During the same term, the Court
reversed the breach of the peace conviction of a Jehovah's Witness who
had played an inflammatory phonograph record to persons on the street,
the Court discerning no clear and present danger of disorder.\94\
\93\310 U.S. 88, 105 (1940). The Court admitted that the
picketing did result in economic injury to the employer, but found such
injury ``neither so serious nor so imminent'' as to justify restriction.
The role of clear and present danger was not to play a future role in
the labor picketing cases.
\94\Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).
---------------------------------------------------------------------------
The stormiest fact situation faced by the Court in applying
clear and present danger occurred in Terminiello v. City of Chicago,\95\
in which a five-to-four majority struck down a conviction obtained after
the judge instructed the jury that a breach of the peace could be
committed by speech that ``stirs the public to anger, invites dispute,
brings about a condition of unrest, or creates a disturbance.'' ``A
function of free speech under our system of government,'' wrote Justice
Douglas for the majority, ``is to invite dispute.
[[Page 1040]]
It may indeed best serve its high purpose when it induces a condition of
unrest, creates dissatisfaction with conditions as they are, or even
stirs people to anger. Speech is often provocative and challenging. It
may strike at prejudices and preconceptions and have profound unsettling
effects as it presses for acceptance of an idea. That is why freedom of
speech, though not absolute, . . . is nevertheless protected against
censorship or punishment, unless shown likely to produce a clear and
present danger of a serious substantive evil that rises far above public
inconvenience, annoyance, or unrest.''\96\ The dissenters focused on the
disorders which had actually occurred as a result of Terminiello's
speech, Justice Jackson saying: ``Rioting is a substantive evil, which I
take it no one will deny that the State and the City have the right and
the duty to prevent and punish . . . . In this case the evidence proves
beyond dispute that danger of rioting and violence in response to the
speech was clear, present and immediate.''\97\ The Jackson position was
soon adopted in Feiner v. New York,\98\ in which Chief Justice Vinson
said that ``[t]he findings of the state courts as to the existing
situation and the imminence of greater disorder coupled with
petitioner's deliberate defiance of the police officers convince us that
we should not reverse this conviction in the name of free speech.''
\95\337 U.S. 1 (1949).
\96\Id. at 4-5.
\97\Id. at 25-26.
\98\340 U.S. 315, 321 (1951).
---------------------------------------------------------------------------
Contempt of Court and Clear and Present Danger.--The period
during which clear and present danger was the standard by which to
determine the constitutionality of governmental suppression of or
punishment for expression was a brief one, extending roughly from
Thornhill to Dennis.\99\ But in one area it was vigorously, though not
without dispute, applied to enlarge freedom of utterance and it is in
this area that it remains viable. In early contempt-of-court cases in
which criticism of courts had been punished as contempt, the Court
generally took the position that even if freedom of speech and press was
protected against governmental abridgment, a publication tending to
obstruct the administration of justice was punishable, irrespective of
its truth.\100\ But in Bridges v. California,\101\ in which contempt
citations had been brought against a newspaper and a labor leader for
statements made about pending judicial proceedings, Justice Black for a
five-to-four Court
[[Page 1041]]
majority began with application of clear and present danger, which he
interpreted to require that ``the substantive evil must be extremely
serious and the degree of imminence extremely high before utterances can
be punished.''\102\ He noted that the ``substantive evil here sought to
be averted . . . appears to be double: disrespect for the judiciary; and
disorderly and unfair administration of justice.'' The likelihood that
the court will suffer damage to its reputation or standing in the
community was not, Justice Black continued, a ``substantive evil'' which
would justify punishment of expression.\103\ The other evil,
``disorderly and unfair administration of justice,'' ``is more plausibly
associated with restricting publications which touch upon pending
litigation.'' But the ``degree of likelihood'' of the evil being
accomplished was not ``sufficient to justify summary punishment.''\104\
In dissent, Justice Frankfurter accepted the application of clear and
present danger, but he interpreted it as meaning no more than a
``reasonable tendency'' test. ``Comment however forthright is one thing.
Intimidation with respect to specific matters still in judicial
suspense, quite another. . . . A publication intended to teach the judge
a lesson, or to vent spleen, or to discredit him, or to influence him in
his future conduct, would not justify exercise of the contempt power.
. . . It must refer to a matter under consideration and constitute in
effect a threat to its impartial disposition. It must be calculated to
create an atmospheric pressure incompatible with rational, impartial
adjudication. But to interfere with justice it need not succeed. As with
other offenses, the state should be able to proscribe attempts that fail
because of the danger that attempts may succeed.''\105\
\99\Thornhill v. Alabama, 310 U.S. 88 (1940); Dennis v. United
States, 341 U.S. 494 (1951).
\100\Patterson v. Colorado, 205 U.S. 454 (1907); Toledo
Newspaper Co. v. United States, 247 U.S. 402 (1918).
\101\314 U.S. 252 (1941).
\102\Id. at 263.
\103\Id. at 270-71.
\104\Id. at 271-78.
\105\Id. at 291. Joining Justice Frankfurter in dissent were
Chief Justice Stone and Justices Roberts and Byrnes.
---------------------------------------------------------------------------
A unanimous Court next struck down the contempt conviction
arising out of newspaper criticism of judicial action already taken,
although one case was pending after a second indictment. Specifically
alluding to clear and present danger, while seeming to regard it as
stringent a test as Justice Black had in the prior case, Justice Reed
wrote that the danger sought to be averted, a ``threat to the impartial
and orderly administration of justice,'' ``has not the clearness and
immediacy necessary to close the door of permissible public
comment.''\106\ Divided again, the Court a year later set aside contempt
convictions based on publication, while a motion for a
[[Page 1042]]
new trial was pending, of inaccurate and unfair accounts and an
editorial concerning the trial of a civil case. ``The vehemence of the
language used is not alone the measure of the power to punish for
contempt. The fires which it kindles must constitute an imminent, and
not merely a likely, threat to the administration of justice. The danger
must not be remote or even probable; it must immediately imperil.''\107\
\106\Pennekampt v. Florida, 328 U.S. 331, 336, 350 (1946). To
Justice Frankfurter, the decisive consideration was whether the judge or
jury is, or presently will be, pondering a decision that comment seeks
to affect. Id. at 369.
\107\Craig v. Harney, 331 U.S. 367, 376 (1947). Dissenting with
Chief Justice Vinson, Justice Frankfurter said: ``We cannot say that the
Texas Court could not properly find that these newspapers asked of the
judge, and instigated powerful sections of the community to ask of the
judge, that which no one has any business to ask of a judge, except the
parties and their counsel in open court, namely, that he should decide
one way rather than another.'' Id. at 390. Justice Jackson also
dissented. Id. at 394. See also Landmark Communications v. Virginia, 435
U.S. 829, 844 (1978); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 562-
63 (1976).
---------------------------------------------------------------------------
In Wood v. Georgia,\108\ the Court again divided, applying clear
and present danger to upset the contempt conviction of a sheriff who had
been cited for criticizing the recommendation of a county court that a
grand jury look into African American bloc voting, vote buying, and
other alleged election irregularities. No showing had been made, said
Chief Justice Warren, of ``a substantive evil actually designed to
impede the course of justice.'' The case presented no situation in which
someone was on trial, there was no judicial proceeding pending that
might be prejudiced, and the dispute was more political than
judicial.\109\ A unanimous Court recently seems to have applied the
standard to set aside a contempt conviction of a defendant who, arguing
his own case, alleged before the jury that the trial judge by his bias
had prejudiced his trial and that he was a political prisoner. Though
the defendant's remarks may have been disrespectful of the court, the
Supreme Court noted that ``[t]here is no indication . . . that
petitioner's statements were uttered in a boisterous tone or in any wise
actually disrupted the court proceeding'' and quoted its previous
language about the imminence of the threat necessary to constitute
contempt.\110\
\108\370 U.S. 375 (1962).
\109\Id. at 383-85, 386-90. Dissenting, Justices Harlan and
Clark thought that the charges made by the defendant could well have
influenced the grand jurors in their deliberations and that the fact
that laymen rather than judicial officers were subject to influence
should call forth a less stringent test than when the latter were the
object of comment. Id. at 395.
\110\In re Little, 404 U.S. 553, 555 (1972). The language from
Craig v. Harney, 331 U.S. 367, 376 (1947), is quoted supra, text
accompanying n.13.
---------------------------------------------------------------------------
Clear and Present Danger Revised: Dennis.--In Dennis v. United
States,\111\ the Court sustained the constitutionality of the Smith
Act,\112\ which proscribed advocacy of the overthrow by force and
violence of the government of the United States, and upheld
[[Page 1043]]
convictions under it. Dennis' importance here is in the rewriting of the
clear and present danger test. For a plurality of four, Chief Justice
Vinson acknowledged that the Court had in recent years relied on the
Holmes-Brandeis formulation of clear and present danger without actually
overruling the older cases that had rejected the test; but while clear
and present danger was the proper constitutional test, that ``shorthand
phrase should [not] be crystallized into a rigid rule to be applied
inflexibly without regard to the circumstances of each case.'' It was a
relative concept. Many of the cases in which it had been used to reverse
convictions had turned ``on the fact that the interest which the State
was attempting to protect was itself too insubstantial to warrant
restriction of speech.''\113\ Here, in contrast, ``[o]verthrow of the
Government by force and violence is certainly a substantial enough
interest for the Government to limit speech.''\114\ And in combating
that threat, the Government need not wait to act until the putsch is
about to be executed and the plans are set for action. ``If Government
is aware that a group aiming at its overthrow is attempting to
indoctrinate its members and to commit them to a course whereby they
will strike when the leaders feel the circumstances permit, action by
the Government is required.''\115\ Therefore, what does the phrase
``clear and present danger'' import for judgment? ``Chief Judge Learned
Hand, writing for the majority below, interpreted the phrase as follows:
`In each case [courts] must ask whether the gravity of the ``evil,''
discounted by its improbability, justifies such invasion of free speech
as is necessary to avoid the danger.' 183 F.2d at 212. We adopt this
statement of the rule. As articulated by Chief Judge Hand, it is as
succinct and inclusive as any other we might devise at this time. It
takes into consideration those factors which we deem relevant, and
relates their significances. More we cannot expect from words.''\116\
The ``gravity of the evil, discounted by its improbability'' was found
to justify the convictions.\117\
\111\341 U.S. 494 (1951).
\112\Ch. 439, 54 Stat. 670 (1940), 18 U.S.C. Sec. 2385.
\113\Dennis v. United States, 341 U.S. 494, 508 (1951).
\114\Id. at 509.
\115\Id. at 508, 509.
\116\Id. at 510. Justice Frankfurter, concurring, adopted a
balancing test, id. at 517, discussed infra, pp. 1023-28. Justice
Jackson appeared to proceed on a conspiracy approach rather than one
depending on advocacy. Id. at 561. Justices Black and Douglas dissented,
reasserting clear and present danger as the standard. Id. at 579, 581.
Note the recurrence to the Learned Hand formulation in Nebraska Press
Ass'n v. Stuart, 427 U.S. 539, 562 (1976), although the Court appeared
in fact to apply balancing.
\117\In Yates v. United States, 354 U.S. 298 (1957), the Court
substantially limited both the Smith Act and the Dennis case by
interpreting the Act to require advocacy of unlawful action, to require
the urging of doing something now or in the future, rather than merely
advocacy of forcible overthrow as an abstract doctrine, and by finding
the evidence lacking to prove the former. Of Dennis, Justice Harlan
wrote: ``The essence of the Dennis holding was that indoctrination of a
group in preparation for future violent action, as well as exhortation
to immediate action, by advocacy found to be directed to `action for the
accomplishment' of forcible overthrow, to violence as `a rule or
principle of action,' and employing `language of incitement,' id. at
511-12, is not constitutionally protected when the group is of
sufficient size and cohesiveness, is sufficiently oriented towards
action, and other circumstances are such as reasonably to justify
apprehension that action will occur.'' Id. at 321.
---------------------------------------------------------------------------
[[Page 1044]]
Balancing.--Clear and present danger as a test, it seems clear,
was a pallid restriction on governmental power after Dennis and it
virtually disappeared from the Court's language over the next twenty
years.\118\ Its replacement for part of this period was the much
disputed ``balancing'' test, which made its appearance in the year prior
to Dennis in American Communications Ass'n v. Douds.\119\ There the
Court sustained a law barring from access to the NLRB any labor union if
any of its officers failed to file annually an oath disclaiming
membership in the Communist Party and belief in the violent overthrow of
the government.\120\ For the Court, Chief Justice Vinson rejected
reliance on the clear and present danger test. ``Government's interest
here is not in preventing the dissemination of Communist doctrine or the
holding of particular beliefs because it is feared that unlawful action
will result therefrom if free speech is practiced. Its interest is in
protecting the free flow of commerce from what Congress considers to be
substantial evils of conduct that are not the products of speech at all.
Section 9(h), in other words, does not interfere with speech because
Congress fears the consequences of speech; it regulates harmful conduct
which Congress has determined is carried on by persons who may be
identified by their political affiliations and beliefs. The Board does
not contend that political strikes . . . are the present or impending
products of advocacy of the doctrines of Communism or the expression of
belief in overthrow of the Government by force. On the contrary, it
points out that such strikes are called by persons
[[Page 1045]]
who, so Congress has found, have the will and power to do so without
advocacy.''\121\
\118\Cf. Brennan, The Supreme Court and the Meiklejohn
Interpretation of the First Amendment, 79 Harv. L. Rev. 1, 8 (1965). See
Garner v. Louisiana, 368 U.S. 157, 185-207 (1961) (Justice Harlan
concurring).
\119\339 U.S. 382 (1950). See also Osman v. Douds, 339 U.S. 846
(1950). Balancing language was used by Justice Black in his opinion for
the Court in Martin v. City of Struthers, 319 U.S. 141, 143 (1943), but
it seems not to have influenced the decision. Similarly, in Schneider v.
Irvington, 308 U.S. 147, 161-62 (1939), Justice Roberts used balancing
language which he apparently did not apply.
\120\The law, Sec. 9(h) of the Taft-Hartley Act, 61 Stat. 146
(1947), was repealed, 73 Stat. 525 (1959), and replaced by a section
making it a criminal offense for any person ``who is or has been a
member of the Communist Party'' during the preceding five years to serve
as an officer or employee of any union. Sec. 504, 73 Stat. 536 (1959);
29 U.S.C. Sec. 504. It was held unconstitutional in United States v.
Brown, 381 U.S. 437 (1965).
\121\American Communications Ass'n v. Douds, 339 U.S. 382, 396
(1950).
---------------------------------------------------------------------------
The test, rather, must be one of balancing of interests. ``When
particular conduct is regulated in the interest of public order, and the
regulation results in an indirect, conditional, partial abridgement of
speech, the duty of the courts is to determine which of these two
conflicting interests demands the greater protection under the
particular circumstances presented.''\122\ Inasmuch as the interest in
the restriction, the government's right to prevent political strikes and
the disruption of commerce, is much more substantial than the limited
interest on the other side in view of the relative handful of persons
affected in only a partial manner, the Court perceived no difficulty
upholding the statute.\123\
\122\Id. at 399.
\123\Id. at 400-06.
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Justice Frankfurter in Dennis\124\ rejected the applicability of
clear and present danger and adopted a balancing test. ``The demands of
free speech in a democratic society as well as the interest in national
security are better served by candid and informed weighing of the
competing interests, within the confines of the judicial process, than
by announcing dogmas too inflexible for the non-Euclidian problems to be
solved.''\125\ But the ``careful weighing of conflicting
interests''\126\ not only placed in the scale the disparately-weighed
interest of government in self-preservation and the interest of
defendants in advocating illegal action, which alone would have
determined the balance, it also involved the Justice's philosophy of the
``confines of the judicial process'' within which the role of courts, in
First Amendment litigation as in other, is severely limited. Thus,
``[f]ull responsibility'' may not be placed in the courts ``to balance
the relevant factors and ascertain which interest in the circumstances
[is] to prevail.'' ``Courts are not representative bodies. They are not
designed to be a good reflex of a democratic society.'' Rather,
``[p]rimary responsibility for adjusting the interests which compete in
the situation before us of necessity belongs to the Congress.''\127\
Therefore, after considering at some length the factors to be balanced,
Justice Frankfurter concluded: ``It is not for us to decide how we would
adjust the clash of interests which this case presents were the primary
responsibility for reconciling it ours. Congress has determined that the
danger created by advocacy of overthrow justifies the ensuing
restriction on freedom of speech.
[[Page 1046]]
The determination was made after due deliberation, and the seriousness
of the congressional purpose is attested by the volume of legislation
passed to effectuate the same ends.''\128\ Only if the balance struck by
the legislature is ``outside the pale of fair judgment''\129\ could the
Court hold that Congress was deprived by the Constitution of the power
it had exercised.\130\
\124\Dennis v. United States, 341 U.S. 494, 517 (1951)
(concurring opinion).
\125\Id. at 524-25.
\126\Id. at 542.
\127\Id. at 525.
\128\Id. at 550-51.
\129\Id. at 540.
\130\Id. at 551.
---------------------------------------------------------------------------
Thereafter, during the 1950's and the early 1960's, the Court
utilized the balancing test in a series of decisions in which the issues
were not, as they were not in Douds and Dennis, matters of expression or
advocacy as a threat but rather were governmental inquiries into
associations and beliefs of persons or governmental regulation of
associations of persons, based on the idea that beliefs and associations
provided adequate standards for predicting future or intended conduct
that was within the power of government to regulate or to prohibit.
Thus, in the leading case on balancing, Konigsberg v. State Bar of
California,\131\ the Court upheld the refusal of the State to certify an
applicant for admission to the bar. Required to satisfy the Committee of
Bar Examiners that he was of ``good moral character,'' Konigsberg
testified that he did not believe in the violent overthrow of the
government and that he had never knowingly been a member of any
organization which advocated such action, but he declined to answer any
question pertaining to membership in the Communist Party.
\131\366 U.S. 36 (1961).
---------------------------------------------------------------------------
For the Court, Justice Harlan began by asserting that freedom of
speech and association were not absolutes but were subject to various
limitations. Among the limitations, ``general regulatory statutes, not
intended to control the content of speech but incidentally limiting its
unfettered exercise, have not been regarded as the type of law the First
or Fourteenth Amendment forbade Congress or the States to pass, when
they have been found justified by subordinating valid governmental
interests, a prerequisite to constitutionality which has necessarily
involved a weighing of the governmental interest involved.''\132\ The
governmental interest involved was the assurance that those admitted to
the practice of law were committed to lawful change in society and it
was proper for the State to believe that one possessed of ``a belief,
firm enough to be carried over into advocacy, in the use of illegal
means to change the form'' of government did not meet the standard of
fitness.\133\ On the other hand, the First Amendment interest was
limited be
[[Page 1047]]
cause there was ``minimal effect upon free association occasioned by
compulsory disclosure'' under the circumstances. ``There is here no
likelihood that deterrence of association may result from foreseeable
private action . . . for bar committee interrogations such as this are
conducted in private. . . . Nor is there the possibility that the State
may be afforded the opportunity for imposing undetectable arbitrary
consequences upon protected association . . . for a bar applicant's
exclusion by reason of Communist Party membership is subject to judicial
review, including ultimate review by this Court, should it appear that
such exclusion has rested on substantive or procedural factors that do
not comport with the Federal Constitution.''\134\
\132\Id. at 50-51.
\133\Id. at 51-52.
\134\Id. at 52-53. See also In re Anastaplo, 366 U.S. 82 (1961).
The status of these two cases is in doubt after Baird v. State Bar, 401
U.S. 1 (1971), and In re Stolar, 401 U.S. 23 (1971), in which neither
the plurality nor the concurring Justice making up the majority used a
balancing test.
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Balancing was used to sustain congressional and state inquiries
into the associations and activities of individuals in connection with
allegations of subversion\135\ and to sustain proceedings against the
Communist Party and its members.\136\ In certain other cases, involving
state attempts to compel the production of membership lists of the
National Association for the Advancement of Colored People and to
investigate that organization, use of the balancing test resulted in a
finding that speech and associational rights outweighed the governmental
interest claimed.\137\ The Court used a balancing test in the late
1960's to protect the speech rights of a public employee who had
criticized his employers.\138\ On the other hand, balancing was not used
when the Court struck down restrictions on receipt of materials mailed
from Communist countries,\139\ and it was similarly not used in cases
involving picketing, pamphleteering, and demonstrating in public
places.\140\ But the only case in which it was specifically rejected
involved a statutory regulation like those which had given rise to the
test in the first
[[Page 1048]]
place. United States v. Robel\141\ held invalid under the First
Amendment a statute which made it unlawful for any member of an
organization which the Subversive Activities Control Board had ordered
to register to work in a defense establishment.\142\ Although Chief
Justice Warren for the Court asserted that the vice of the law was that
its proscription operated per se ``without any need to establish that an
individual's association poses the threat feared by the Government in
proscribing it,''\143\ the rationale of the decision was not clear and
present danger but the existence of less restrictive means by which the
governmental interest could be accomplished.\144\ In a concluding
footnote, the Court said: ``It has been suggested that this case should
be decided by `balancing' the governmental interests . . . against the
First Amendment rights asserted by the appellee. This we decline to do.
We recognize that both interests are substantial, but we deem it
inappropriate for this Court to label one as being more important or
more substantial than the other. Our inquiry is more circumscribed.
Faced with a clear conflict between a federal statute enacted in the
interests of national security and an individual's exercise of his First
Amendment rights, we have confined our analysis to whether Congress has
adopted a constitutional means in achieving its concededly legitimate
legislative goal. In making this determination we have found it
necessary to measure the validity of the means adopted by Congress
against both the goal it has sought to achieve and the specific
prohibitions of the First Amendment. But we have in no way `balanced'
those respective interests. We have ruled only that the Constitution
requires that the conflict between congressional power and individual
rights be accommodated by legislation drawn more narrowly to avoid the
conflict.''\145\
\135\Barenblatt v. United States, 360 U.S. 109 (1959); Uphaus v.
Wyman, 360 U.S. 72 (1959); Wilkinson v. United States, 365 U.S. 399
(1961); Braden v. United States, 365 U.S. 431 (1961).
\136\Communist Party v. SACB, 367 U.S. 1 (1961); Scales v.
United States, 367 U.S. 203 (1961).
\137\NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958);
NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964); Gibson v. Florida
Legislative Investigating Committee, 372 U.S. 539 (1963).
\138\Pickering v. Board of Education, 391 U.S. 563 (1968).
\139\Lamont v. Postmaster General, 381 U.S. 301 (1965).
\140\E.g., Cox v. Louisiana, 379 U.S. 536 and 559 (1965) (2
cases); Edwards v. South Carolina, 372 U.S. 229 (1963); Adderley v.
Florida, 385 U.S. 39 (1966); Brown v. Louisiana, 383 U.S. 131 (1966).
But see Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), where balancing
reappears and in which other considerations overbalance the First
Amendment claims.
\141\389 U.S. 258 (1967).
\142\Subversive Activities Control Act of 1950, Sec. 5(a)(1)(D),
ch. 1024, 64 Stat. 992, 50 U.S.C. Sec. 784(a)(1)(D).
\143\United States v. Robel, 389 U.S. 258, 265 (1967).
\144\Id. at 265-68.
\145\Id. at 268 n.20.
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The ``Absolutist'' View of the First Amendment, With a Note on
``Preferred Position''.--During much of this period, the opposition to
the balancing test was led by Justices Black and Douglas, who espoused
what may be called an ``absolutist'' position, denying the government
any power to abridge speech. But the beginnings of such a philosophy may
be gleaned in much earlier cases in which a rule of decision based on a
preference for First Amendment liberties was prescribed. Thus, Chief
Justice Stone in his famous Carolene Products ``footnote 4'' suggested
that the ordinary presumption of constitutionality which prevailed when
economic
[[Page 1049]]
regulation was in issue might very well be reversed when legislation
which restricted ``those political processes which can ordinarily be
expected to bring about repeal of undesirable legislation'' is called
into question.\146\ Then in Murdock v. Pennsylvania,\147\ in striking
down a license tax on religious colporteurs, the Court remarked that
``[f]reedom of press, freedom of speech, freedom of religion are in a
preferred position.'' Two years later the Court indicated that its
decision with regard to the constitutionality of legislation regulating
individuals is ``delicate . . . [especially] where the usual presumption
supporting legislation is balanced by the preferred place given in our
scheme to the great, the indispensable democratic freedoms secured by
the First Amendment. . . . That priority gives these liberties a
sanctity and a sanction not permitting dubious intrusions.''\148\ The
``preferred-position'' language was sharply attacked by Justice
Frankfurter in Kovacs v. Cooper\149\ and it dropped from the opinions,
although its philosophy did not.
\146\United States v. Carolene Products Co., 304 U.S. 144, 152
n.4 (1938).
\147\319 U.S. 105, 115 (1943). See also West Virginia State Bd.
of Educ. v. Barnette, 319 U.S. 624, 639 (1943).
\148\Thomas v. Collins, 323 U.S. 516, 529-30 (1945).
\149\336 U.S. 77, 89 (1949) (collecting cases with critical
analysis).
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Justice Black expressed his position in many cases but his
Konigsberg dissent contains one of the lengthiest and clearest
expositions of it.\150\ That a particular governmental regulation
abridged speech or deterred it was to him ``sufficient to render the
action of the State unconstitutional'' because he did not subscribe ``to
the doctrine that permits constitutionally protected rights to be
`balanced' away whenever a majority of this Court thinks that a State
might have an interest sufficient to justify abridgment of those
freedoms . . . I believe that the First Amendment's unequivocal command
that there shall be no abridgment of the rights of free speech and
assembly shows that the men who drafted our Bill of Rights did all the
`balancing' that was to be done in this field.''\151\ As he elsewhere
wrote: ``First Amendment rights are beyond abridgment either by
legislation that directly restrains their exer
[[Page 1050]]
cise or by suppression or impairment through harassment, humiliation, or
exposure by government.''\152\ But the ``First and Fourteenth Amendments
. . . take away from government, state and federal, all power to
restrict freedom of speech, press and assembly where people have a right
to be for such purpose. This does not mean however, that these
amendments also grant a constitutional right to engage in the conduct of
picketing or patrolling whether on publicly owned streets or on
privately owned property.''\153\ Thus, in his last years on the Court,
the Justice, while maintaining an ``absolutist'' position, increasingly
drew a line between ``speech'' and ``conduct which involved
communication.''\154\
\150\Konigsberg v. State Bar of California, 366 U.S. 36, 56
(1961) (dissenting opinion). See also Braden v. United States, 365 U.S.
431, 441 (1961) (dissenting); Wilkinson v. United States, 365 U.S. 399,
422 (1961) (dissenting); Uphaus v. Wyman, 364 U.S. 388, 392 (1960)
(dissenting); Barenblatt v. United States, 360 U.S. 109, 140 (1959)
(dissenting); American Communications Ass'n v. Douds, 339 U.S. 382, 445
(1950); Communist Party v. SACB, 367 U.S. 1, 137 (1961) (dissenting);
Beauharnais v. Illinois, 343 U.S. 250, 267 (1952) (dissenting); New York
Times Co. v. Sullivan, 376 U.S. 254, 293 (1964) (concurring); New York
Times Co. v. United States, 403 U.S. 713, 714 (1971) (concurring). For
Justice Douglas' position, see New York Times Co. v. United States,
supra, 403 U.S. at 720 (concurring); Roth v. United States, 354 U.S.
476, 508 (1957) (dissenting); Brandenburg v. Ohio, 395 U.S. 444, 450
(1969) (concurring).
\151\Konigsberg v. State Bar of California, 366 U.S. 36, 60-61
(1961).
\152\Bates v. City of Little Rock, 361 U.S. 516, 528 (1960)
(concurring).
\153\Cox v. Louisiana, 379 U.S. 559, 578, 581 (1965)
(dissenting).
\154\These cases involving important First Amendment issues are
dealt with infra, pp. 1123-42. See Brown v. Louisiana, 383 U.S. 131
(1966); Adderley v. Florida, 385 U.S. 39 (1966).
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Of Other Tests and Standards: Vagueness, Overbreadth, Least
Restrictive Means, and Others.--In addition to the foregoing tests, the
Court has developed certain standards that are exclusively or primarily
applicable in First Amendment litigation. Some of these, such as the
doctrines prevalent in the libel and obscenity areas, are very
specialized,\155\ but others are not. Vagueness is a due process vice
which can be brought into play with regard to any criminal and many
civil statutes,\156\ but as applied in areas respecting expression it
also encompasses concern that protected conduct will be deterred out of
fear that the statute is capable of application to it. Vagueness has
been the basis for voiding numerous such laws, especially in the fields
of loyalty oaths,\157\ obscenity,\158\ and restrictions on public
demonstrations.\159\ It is usually combined with the overbreadth
doctrine, which focuses on the
[[Page 1051]]
need for precision in drafting a statute that may affect First Amendment
rights;\160\ an overbroad statute that sweeps under its coverage both
protected and unprotected speech and conduct will normally be struck
down as facially invalid, although in a non-First Amendment situation
the Court would simply void its application to protected conduct.\161\
Similarly, and closely related at least to the overbreadth doctrine, the
Court has insisted that when the government seeks to carry out a
permissible goal and it has available a variety of effective means to
the given end, it must choose the measure which least interferes with
rights of expression.\162\ Also, the Court has insisted that regulatory
measures which bear on expression must relate to the achievement of the
purpose asserted as its justification.\163\ The prevalence of these
standards and tests in this area would appear to indicate that while
``preferred position'' may have disappeared from the Court's language it
has not disappeared from its philosophy.
\155\Infra, pp.1136-45, 1149-59.
\156\The vagueness doctrine generally requires that a statute be
precise enough to give fair warning to actors that contemplated conduct
is criminal, and to provide adequate standards to enforcement agencies,
factfinders, and reviewing courts. See, e.g., Connally v. General
Construction Co., 269 U.S. 385 (1926); Lanzetta v. New Jersey, 306 U.S.
451 (1939); Colautti v. Franklin, 439 U.S. 379 (1979); Village of
Hoffman Estates v. Flipside, 455 U.S. 489 (1982).
\157\E.g., Cramp v. Board of Pub. Instruction, 368 U.S. 278
(1961); Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of
Regents, 385 U.S. 589 (1967). See also Gentile v. State Bar of Nevada,
501 U.S. 1030 (1991) (attorney discipline, extrajudicial statements).
\158\E.g., Winters v. New York, 333 U.S. 507 (1948); Burstyn v.
Wilson, 343 U.S. 495 (1952); Interstate Circuit v. City of Dallas, 390
U.S. 676 (1968).
\159\E.g., Cantwell v. Connecticut, 310 U.S. 296 (1940); Gregory
v. City of Chicago, 394 U.S. 111 (1969); Coates v. City of Cincinnati,
402 U.S. 611 (1971). See also Smith v. Goguen, 415 U.S. 566 (1974) (flag
desecration law); Lewis v. City of New Orleans, 415 U.S. 130 (1974)
(punishment of opprobrious words); Hynes v. Mayor of Oradell, 425 U.S.
610 (1976) (door-to-door canvassing). For an evident narrowing of
standing to assert vagueness, see Young v. American Mini Theatres, 427
U.S. 50, 60 (1976).
\160\NAACP v. Button, 371 U.S. 415, 432-33 (1963).
\161\E.g., Kunz v. New York, 340 U.S. 290 (1951); Aptheker v.
Secretary of State, 378 U.S. 500 (1964); United States v. Robel, 389
U.S. 258 (1967); Zwickler v. Koota, 389 U.S. 241 (1967); Lewis v. City
of New Orleans, 415 U.S. 130 (1974). However, the Court's
dissatisfaction with the reach of the doctrine, see e.g., Younger v.
Harris, 401 U.S. 37 (1971), resulted in a curbing of it in Broadrick v.
Oklahoma, 413 U.S. 601 (1973), a 5-to-4 decision, in which the Court
emphasized ``that facial overbreadth adjudication is an exception to our
traditional overbreadth adjudication,'' and held that where conduct and
not merely speech is concerned ``the overbreadth of a statute must not
only be real, but substantial as well, judged in relation to the
statute's plainly legitimate sweep,'' Id. at 615. The opinion of the
Court and Justice Brennan's dissent, id. at 621, contain extensive
discussion of the doctrine. Other restrictive decisions are Arnett v.
Kennedy, 416 U.S. 134, 158-64 (1974); Parker v. Levy, 417 U.S. 733, 757-
61 (1974); and New York v. Ferber, 458 U.S. 747, 766-74 (1982).
Nonetheless, the doctrine continues to be used across a wide spectrum of
First Amendment cases. Bigelow v. Virginia, 421 U.S. 809, 815-18 (1975);
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Doran v. Salem
Inn, 422 U.S. 922, 932-34 (1975); Village of Schaumburg v. Citizens for
a Better Environment, 444 U.S. 620, 633-39 (1980); Secretary of State of
Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) (charitable
solicitation statute placing 25% cap on fundraising expenditures); City
of Houston v. Hill, 482 U.S. 451 (1987) (city ordinance making it
unlawful to ``oppose, molest, abuse, or interrupt'' police officer in
performance of duty); Board of Airport Comm'rs v. Jews for Jesus, 482
U.S. 569 (1987) (resolution banning all ``First Amendment activities''
at airport).
\162\Shelton v. Tucker, 364 U.S. 479 (1960); United States v.
Robel, 389 U.S. 258 (1967); Schneider v. Smith, 390 U.S. 17 (1968);
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council,
425 U.S. 748 (1976); Central Hudson Gas & Electric Co. v. PSC, 447 U.S.
557, 564, 565, 569-71 (1980).
\163\Bates v. City of Little Rock, 361 U.S. 516, 525 (1960);
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 464 (1958); Louisiana
ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961). See also Central
Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 564, 565, 569 (1980).
---------------------------------------------------------------------------
Is There a Present Test?--Complexities inherent in the myriad
varieties of expression encompassed by the First Amendment guarantees of
speech, press, and assembly probably preclude any
[[Page 1052]]
single standard. For certain forms of expression for which protection is
claimed, the Court engages in ``definitional balancing'' to determine
that those forms are outside the range of protection.\164\ Balancing is
in evidence to enable the Court to determine whether certain covered
speech is entitled to protection in the particular context in which the
question arises.\165\ Utilization of vagueness, overbreadth and less
intrusive means may very well operate to reduce the occasions when
questions of protection must be answered squarely on the merits. What is
observable, however, is the re-emergence, at least in a tentative
fashion, of something like the clear and present danger standard in
advocacy cases, which is the context in which it was first developed.
Thus, in Brandenburg v. Ohio,\166\ a conviction under a criminal
syndicalism statute of advocating the necessity or propriety of criminal
or terroristic means to achieve political change was reversed. The
prevailing doctrine developed in the Communist Party cases was that
``mere'' advocacy was protected but that a call for concrete, forcible
action even far in the future was not protected speech and knowing
membership in an organization calling for such action was not protected
association, regardless of the probability of success.\167\ In
Brandenburg, however, the Court reformulated these and other rulings to
mean ``that the constitutional guarantees of free speech and free press
do not permit a State to forbid or proscribe advocacy of the use of
force or of law violation except where such advocacy is directed to
inciting or producing imminent lawless action and is likely to incite or
produce such action.''\168\ The Court has not revisited these is
[[Page 1053]]
sues since Brandenburg, so the long-term significance of the decision is
yet to be determined.
\164\Thus, obscenity, by definition, is outside the coverage of
the First Amendment, Roth v. United States, 354 U.S. 476 (1957); Paris
Adult Theatre v. Slaton, 413 U.S. 49 (1973), as are malicious
defamation, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and
``fighting words,'' Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
The Court must, of course, decide in each instance whether the
questioned expression definitionally falls within one of these or
another category. See, e.g., Jenkins v. Georgia, 418 U.S. 153 (1974);
Gooding v. Wilson, 405 U.S. 518 (1972).
\165\E.g., the multifaceted test for determining when commercial
speech is protected, Central Hudson Gas & Electric Co. v. PSC, 447 U.S.
557, 566 (1980); the standard for determining when expressive conduct is
protected, United States v. O'Brien, 391 U.S. 367, 377 (1968); the
elements going into decision with respect to access at trials, Globe
Newspaper Co. v. Superior Court, 457 U.S. 596, 606-10 (1982); and the
test for reviewing press ``gag orders'' in criminal trials, Nebraska
Press Ass'n v. Stuart, 427 U.S. 539, 562-67 (1976), are but a few
examples.
\166\395 U.S. 444 (1969).
\167\Yates v. United States, 354 U.S. 298 (1957); Scales v.
United States 367 U.S. 203 (1961): Noto v. United States, 367 U.S. 290
(1961). And see Bond v. Floyd, 385 U.S. 116 (1966); Watts v. United
States, 394 U.S. 705 (1969).
\168\395 U.S. at 447 (1969). Subsequent cases relying on
Brandenburg indicate the standard has considerable bite, but do not
elaborate sufficiently enough to begin filling in the outlines of the
test. Hess v. Indiana, 414 U.S. 105 (1973); NAACP v. Claiborne Hardware
Co., 458 U.S. 886, 928 (1982). But see Haig v. Agee, 453 U.S. 280, 308-
09 (1981).
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FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Freedom of Belief
The First Amendment does not expressly speak in terms of liberty
to hold such beliefs as one chooses, but in both the religion and the
expression clauses, it is clear, liberty of belief is the foundation of
the liberty to practice what religion one chooses and to express oneself
as one chooses.\169\ ``If there is any fixed star in our constitutional
constellation, it is that no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion, or other matters
of opinion or force citizens to confess by word or act their faith
therein.''\170\ Speaking in the context of religious freedom, the Court
at one point said that while the freedom to act on one's beliefs could
be limited, the freedom to believe what one will ``is absolute.''\171\
But matters are not so simple.
\169\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624
(1943); Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940); United
States v. Ballard, 322 U.S. 78 (1944); Torcaso v. Watkins, 367 U.S. 488
(1961); American Communications Ass'n v. Douds, 339 U.S. 382, 408
(1950); Bond v. Floyd, 385 U.S. 116, 132 (1966); Speiser v. Randall, 357
U.S. 513 (1958); Baird v. State Bar of Arizona, 401 U.S. 1, 5-6 (1971),
and id. at 9-10 (Justice Stewart concurring).
\170\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624,
642 (1943).
\171\Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
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Flag Salute Cases.--That government generally may not compel a
person to affirm a belief is the principle of the second Flag Salute
Case.\172\ In Minersville School District v. Gobitis,\173\ the Court
upheld the power of the State to expel from its schools certain
children, Jehovah's Witnesses, who refused upon religious grounds to
join in a flag salute ceremony and recitation of the pledge of
allegiance. ``Conscientious scruples have not, in the course of the long
struggle for religious toleration, relieved the individual from
obedience to a general law not aimed at the promotion or restriction of
religious beliefs.''\174\ But three years later, a six-to-three majority
of the Court reversed itself.\175\ Justice Jackson for
\172\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624
(1943).
\173\310 U.S. 586 (1940).
\174\Id. at 594. Justice Stone alone dissented, arguing that the
First Amendment religion and speech clauses forbade coercion of ``these
children to express a sentiment which, as they interpret it, they do not
entertain, and which violates their deepest religious convictions.'' Id.
at 601.
\175\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624
(1943). Justices Roberts and Reed simply noted their continued adherence
to Gobitis. Id. at 642. Justice Frankfurter dissented at some length,
denying that the First Amendment authorized the Court ``to deny to the
State of West Virginia the attainment of that which we all recognize as
a legitimate legislative end, namely, the promotion of good citizenship,
by employment of the means here chosen.'' Id. at 646, 647.
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[[Page 1054]]
the Court chose to ignore the religious argument and to ground the
decision upon freedom of speech. The state policy, he said,
constituted ``a compulsion of students to declare a belief. . . . It
requires the individual to communicate by word and sign his
acceptance of the political ideas [the flag] bespeaks.''\176\ But
the power of a State to follow a policy that ``requires affirmation
of a belief and an attitude of mind'' is limited by the First
Amendment, which, under the standard then prevailing, required the
State to prove that the act of the students in remaining passive
during the ritual ``creates a clear and present danger that would
justify an effort even to muffle expression.''\177\
\176\Id. at 631, 633.
\177\Id. at 633-34. Barnette was the focus of the Court's
decision in Wooley v. Maynard, 430 U.S. 705 (1977), voiding the state's
requirement that motorists display auto license plates bearing the motto
``Live Free or Die.'' Acting on the complaint of a Jehovah's Witness,
the Court held that one may not be compelled to display on his private
property a message making an ideological statement. Compare PruneYard
Shopping Center v. Robins, 447 U.S. 74, 85-88 (1980), and id. at 96
(Justice Powell concurring).
---------------------------------------------------------------------------
However, the principle of Barnette does not extend so far as to
bar government from requiring of its employees or of persons seeking
professional licensing or other benefits an oath generally but not
precisely based on the oath required of federal officers, which is set
out in the Constitution, that the taker of the oath will uphold and
defend the Constitution.\178\ It is not at all clear, however, to what
degree the government is limited in probing the sincerity of the person
taking the oath.\179\
\178\Cole v. Richardson, 405 U.S. 676 (1972); Connell v.
Higginbotham, 403 U.S. 207 (1971); Bond v. Floyd, 385 U.S. 116 (1966);
Knight v. Board of Regents, 269 F. Supp. 339 (S.D.N.Y. 1967) (three-
judge court), aff'd, 390 U.S. 36 (1968); Hosack v. Smiley, 276 F. Supp.
876 (C.D. Colo. 1967) (three-judge court), aff'd, 390 U.S. 744 (1968);
Ohlson v. Phillips, 304 F. Supp. 1152 (C.D. Colo. 1969) (three-judge
court), aff'd., 397 U.S. 317 (1970); Law Students Civil Rights Research
Council v. Wadmond, 401 U.S. 154, 161 (1971); Fields v. Askew, 279 So.
2d 822 (Fla. 1973), aff'd per curiam, 414 U.S. 1148 (1974).
\179\Compare Bond v. Floyd, 385 U.S. 116 (1966), with Law
Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971).
---------------------------------------------------------------------------
Imposition of Consequences for Holding Certain Beliefs.--Despite
the Cantwell dictum that freedom of belief is absolute,\180\ government
has been permitted to inquire into the holding of certain beliefs and to
impose consequences on the believers, primarily with regard to its own
employees and to licensing certain professions.\181\ It is not clear
what precise limitations the Court has placed on these practices.
\180\Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
\181\The issue has also arisen in the context of criminal
sentencing. Evidence that racial hatred was a motivation for a crime may
be taken into account, Barclay v. Florida, 463 U.S. 939, 949 (1983), but
evidence of the defendant's membership in a racist group is inadmissible
where race was not a factor and no connection had been established
between the defendant's crime and the group's objectives. Dawson v.
Delaware, 112 S. Ct. 4197 (1992). See also United States v. Abel, 469
U.S. 45 (1984) (defense witness could be impeached by evidence that both
witness and defendant belonged to group whose members were sworn to lie
on each other's behalf).
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[[Page 1055]]
In its disposition of one of the first cases concerning the
federal loyalty security program, the Court of Appeals for the District
of Columbia asserted broadly that ``so far as the Constitution is
concerned there is no prohibition against dismissal of Government
employees because of their political beliefs, activities or
affiliations.''\182\ On appeal, this decision was affirmed by an equally
divided Court, it being impossible to determine whether this issue was
one treated by the Justices.\183\ Thereafter, the Court dealt with the
loyalty-security program in several narrow decisions not confronting the
issue of denial or termination of employment because of beliefs or
``beliefs plus.'' But the same issue was also before the Court in
related fields. In American Communications Ass'n v. Douds,\184\ the
Court was again evenly divided over a requirement that, in order for a
union to have access to the NLRB, each of its officers must file an
affidavit that he neither believed in, nor belonged to an organization
that believed in, the overthrow of government by force or by illegal
means. Chief Justice Vinson thought the requirement reasonable because
it did not prevent anyone from believing what he chose but only
prevented certain people from being officers of unions, and because
Congress could reasonably conclude that a person with such beliefs was
likely to engage in political strikes and other conduct which Congress
could prevent.\185\ Dissenting, Justice Frankfurter thought the
provision too vague,\186\ Justice Jackson thought that Congress could
impose no disqualification upon anyone for an opinion or belief which
had not manifested itself in any overt act,\187\ and Justice Black
thought that government had no power to penalize beliefs in any
way.\188\ Fi
[[Page 1056]]
nally, in Konigsberg v. State Bar of California,\189\ a majority of the
Court was found supporting dictum in Justice Harlan's opinion in which
he justified some inquiry into beliefs, saying that ``[i]t would indeed
be difficult to argue that a belief, firm enough to be carried over into
advocacy, in the use of illegal means to change the form of the State or
Federal Government is an unimportant consideration in determining the
fitness of applicants for membership in a profession in whose hands so
largely lies the safekeeping of this country's legal and political
institutions.''
\182\Bailey v. Richardson, 182 F. 2d 46, 59 (D.C. Cir. 1950).
The premise of the decision was that government employment is a
privilege rather than a right and that access thereto may be conditioned
as the Government pleases. But this basis, as the Court has said, ``has
been thoroughly undermined in the ensuing years.'' Board of Regents v.
Roth, 408 U.S. 564, 571 n.9 (1972). For the vitiation of the right-
privilege distinction, see infra, p.1085.
\183\Bailey v. Richardson, 341 U.S. 918 (1951). See also
Washington v. McGrath, 341 U.S. 923 (1951), aff'g by an equally divided
Court, 182 F. 2d 375 (D.C. Cir. 1950). While no opinions were written in
these cases, several Justices expressed themselves on the issues in
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951),
decided the same day.
\184\339 U.S. 382 (1950). In a later case raising the same
point, the Court was again equally divided. Osman v. Douds, 339 U.S. 846
(1950).
\185\339 U.S. at 408-09, 412.
\186\Id. at 415.
\187\Id. at 422.
\188\Id. at 445.
\189\336 U.S. 36, 51-52 (1961). See also In re Anastaplo, 336
U.S. 82, 89 (1961). Justice Black, joined by Justice Douglas and Chief
Justice Warren, dissented on the ground that the refusal to admit the
two to the state bars was impermissibly based upon their beliefs. Id. at
56, 97.
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When the same issue returned to the Court years later, three
five-to-four decisions left the principles involved unclear.\190\ Four
Justices endorsed the view that beliefs could not be inquired into as a
basis for determining qualifications for admission to the bar;\191\ four
Justices endorsed the view that while mere beliefs might not be
sufficient grounds to debar one from admission, the States were not
precluded from inquiring into them for purposes of determining whether
one was prepared to advocate violent overthrow of the government and to
act on his beliefs.\192\ The decisive vote in each case was cast by a
single Justice who would not permit denial of admission based on beliefs
alone but would permit inquiry into those beliefs to an unspecified
extent for purposes of determining that the required oath to uphold and
defend the Constitution could be taken in good faith.\193\ Changes in
Court personnel following this decision would seem to leave the
questions presented open to further litigation.
\190\Baird v. State Bar of Arizona, 401 U.S. 1 (1971); In re
Stolar, 401 U.S. 23 (1971); Law Students Civil Rights Research Council
v. Wadmond, 401 U.S. 154 (1971).
\191\401 U.S. at 5-8; id. at 28-29 (plurality opinions of
Justices Black, Douglas, Brennan, and Marshall in Baird and Stolar,
respectively); id. at 174-76, 178-80 (Justices Black and Douglas
dissenting in Wadmond), 186-90 (Justices Marshall and Brennan dissenting
in Wadmond).
\192\401 U.S. at 17-19, 21-22 (Justices Blackmun, Harlan, and
White, and Chief Justice Burger dissenting in Baird).
\193\401 U.S. at 9-10; id. at 31 (Justice Stewart concurring in
Baird and Stolar, respectively). How far Justice Stewart would permit
government to go is not made clear by his majority opinion in Wadmond.
Id. at 161-66.
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Right of Association
``It is beyond debate that freedom to engage in association for
the advancement of beliefs and ideas is an inseparable aspect of the
`liberty' assured by the Due Process Clause of the Fourteenth Amendment,
which embraces freedom of speech. . . . Of course, it
[[Page 1057]]
is immaterial whether the beliefs sought to be advanced by association
pertain to political, economic, religious or cultural matters, and state
action which may have the effect of curtailing the freedom to associate
is subject to the closest scrutiny.''\194\ It would appear from the
Court's opinions that the right of association is derivative from the
First Amendment guarantees of speech, assembly, and petition,\195\
although it has at times seemingly been referred to as a separate,
independent freedom protected by the First Amendment.\196\ The doctrine
is a fairly recent construction, the problems associated with it having
previously arisen primarily in the context of loyalty-security
investigations of Communist Party membership, and these cases having
been resolved without giving rise to any separate theory of
association.\197\
\194\NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61
(1958).
\195\Id.; Bates v. City of Little Rock, 361 U.S. 516, 522-23
(1960); United Transportation Union v. State Bar of Michigan, 401 U.S.
576, 578-79 (1971); Healy v. James, 408 U.S. 169, 181 (1972).
\196\NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 463
(1958); NAACP v. Button, 371 U.S. 415, 429-30 (1963); Cousins v. Wigoda,
419 U.S. 477, 487 (1975); In re Primus, 436 U.S. 412, 426 (1978);
Democratic Party v. Wisconsin, 450 U.S. 107, 121 (1981).
\197\Infra, pp.1067-78.
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Freedom of association as a concept thus grew out of a series of
cases in the 1950's and 1960's in which certain States were attempting
to curb the activities of the National Association for the Advancement
of Colored People. In the first case, the Court unanimously set aside a
contempt citation imposed after the organization refused to comply with
a court order to produce a list of its members within the State.
``Effective advocacy of both public and private points of view,
particularly controversial ones, is undeniably enhanced by group
association, as this Court has more than once recognized by remarking
upon the close nexus between the freedoms of speech and assembly.''\198\
``[T]hese indispensable liberties, whether of speech, press, or
association,''\199\ may be abridged by governmental action either
directly or indirectly, wrote Justice Harlan, and the State had failed
to demonstrate a need for the lists which would outweigh the harm to
associational rights which disclosure would produce.
\198\NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460
(1958).
\199\Id. at 461.
---------------------------------------------------------------------------
Applying the concept in subsequent cases, the Court again held
in Bates v. City of Little Rock,\200\ that the disclosure of membership
lists, because of the harm to be caused to ``the right of association,''
could only be compelled upon a showing of a subordinating interest;
ruled in Shelton v. Tucker,\201\ that while a State had a broad inter
[[Page 1058]]
est to inquire into the fitness of its school teachers, that interest
did not justify a regulation requiring all teachers to list all
organizations to which they had belonged within the previous five years;
again struck down an effort to compel membership lists from the
NAACP;\202\ and overturned a state court order barring the NAACP from
doing any business within the State because of alleged
improprieties.\203\ Certain of the activities condemned in the latter
case, the Court said, were protected by the First Amendment and, while
other actions might not have been, the State could not so infringe on
the ``right of association'' by ousting the organization
altogether.\204\
\200\361 U.S. 516 (1960).
\201\364 U.S. 479 (1960).
\202\Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961).
\203\NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964).
\204\Id. at 308, 309.
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A state order prohibiting the NAACP from urging persons to seek
legal redress for alleged wrongs and from assisting and representing
such persons in litigation opened up new avenues when the Court struck
the order down as violating the First Amendment.\205\ ``[A]bstract
discussion is not the only species of communication which the
Constitution protects; the First Amendment also protects vigorous
advocacy, certainly of lawful ends, against governmental intrusion.
. . . In the context of NAACP objectives, litigation is not a technique
of resolving private differences; it is a means for achieving the lawful
objectives of equality of treatment by all government, federal, state
and local, for the members of the Negro community in this country. It is
thus a form of political expression. . . .
\205\NAACP v. Button, 371 U.S. 415 (1963).
---------------------------------------------------------------------------
``We need not, in order to find constitutional protection for
the kind of cooperative, organizational activity disclosed by this
record, whereby Negroes seek through lawful means to achieve legitimate
political ends, subsume such activity under a narrow, literal conception
of freedom of speech, petition or assembly. For there is no longer any
doubt that the First and Fourteenth Amendments protect certain forms of
orderly group activity.''\206\ This decision was
[[Page 1059]]
followed in three subsequent cases in which the Court held that labor
unions enjoyed First Amendment protection in assisting their members in
pursuing their legal remedies to recover for injuries and other actions.
In the first case, the union advised members to seek legal advice before
settling injury claims and recommended particular attorneys;\207\ in the
second the union retained attorneys on a salary basis to represent
members;\208\ in the third, the union maintained a legal counsel
department which recommended certain attorneys who would charge a
limited portion of the recovery and which defrayed the cost of getting
clients together with attorneys and of investigation of accidents.\209\
Wrote Justice Black: ``[T]he First Amendment guarantees of free speech,
petition, and assembly give railroad workers the rights to cooperate in
helping and advising one another in asserting their rights. . . .''\210\
\206\Id. at 429-30. Button was applied in In re Primus, 436 U.S.
412 (1978), in which the Court found foreclosed by the First and
Fourteenth Amendments the discipline visited upon a volunteer lawyer for
the American Civil Liberties Union who had solicited someone to utilize
the ACLU to bring suit to contest the sterilization of Medicaid
recipients. Both the NAACP and the ACLU were organizations that engaged
in extensive litigation as well as lobbying and educational activities,
all of which were means of political expression. ``[T]he efficacy of
litigation as a means of advancing the cause of civil liberties often
depends on the ability to make legal assistance available to suitable
litigants.'' Id. at 431. ``[C]ollective activity undertaken to obtain
meaningful access to the courts is a fundamental right within the
protection of the First Amendment.'' Id. at 426. However, ordinary law
practice for commercial ends is not given special protection. ``A
lawyer's procurement of remunerative employment is a subject only
marginally affected with First Amendment concerns.'' Ohralik v. Ohio
State Bar Ass'n, 436 U.S. 447, 459 (1978). See also Bates v. State Bar
of Arizona, 433 U.S. 350, 376 n.32 (1977).
\207\Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1
(1964).
\208\United Mine Workers v. Illinois State Bar Ass'n, 389 U.S.
217 (1967).
\209\United Transportation Union v. State Bar of Michigan, 401
U.S. 576 (1971).
\210\Id. at 578-79. These cases do not, however, stand for the
proposition that individuals are always entitled to representation of
counsel in administrative proceedings. See Walters v. Nat'l Ass'n of
Radiation Survivors, 473 U.S. 305 (1985) (upholding limitation to $10 of
fee that may be paid attorney in representing veteran's death or
disability claims before VA).
---------------------------------------------------------------------------
Thus, a right to associate together to further political and
social views is protected against unreasonable burdening,\211\ but the
evolution of this right in recent years has passed far beyond the
relatively narrow contexts in which it was given birth.
\211\E.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-15
(1982) (concerted activities of group protesting racial bias); Healy v.
James, 408 U.S. 169 (1972) (denial of official recognition to student
organization by public college without justification abridged right of
association). The right does not, however, protect the decision of
entities not truly private to exclude minorities. Runyon v. McCrary, 427
U.S. 160, 175-76 (1976); Norwood v. Harrison, 413 U.S. 455, 469-70
(1973); Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93-94 (1945); Roberts
v. United States Jaycees, 468 U.S. 609 (1984).
---------------------------------------------------------------------------
Social contacts that fall short of organization or association
to ``engage in speech'' may be unprotected, however. In holding that a
state may restrict admission to certain licensed dance halls to persons
between the age of 14 and 18, the Court declared that there is no
``generalized right of `social association' that includes chance
encounters in dance halls.''\212\
\212\City of Dallas v. Stanglin, 490 U.S. 19 (1989). The narrow
factual setting--a restriction on adults dancing with teenagers in
public--may be contrasted with the Court's broad assertion that ``coming
together to engage in recreational dancing . . . is not protected by the
First Amendment.'' Id. at 25.
---------------------------------------------------------------------------
In a series of three decisions, the Court explored the extent to
which associational rights may be burdened by nondiscrimination
[[Page 1060]]
requirements. First, Roberts v. United States Jaycees\213\ upheld
application of the Minnesota Human Rights Act to prohibit the United
States Jaycees from excluding women from full membership. Three years
later in Board of Directors of Rotary Int'l v. Rotary Club of
Duarte,\214\ the Court applied Roberts in upholding application of a
similar California law to prevent Rotary International from excluding
women from membership. Then, in New York State Club Ass'n v. New York
City,\215\ the Court upheld against facial challenge New York City's
Human Rights Law, which prohibits race, creed, sex, and other
discrimination in places ``of public accommodation, resort, or
amusement,'' and applies to clubs of more than 400 members providing
regular meal service and supported by nonmembers for trade or business
purposes. In Roberts, both the Jaycees' nearly indiscriminate membership
requirements and the State's compelling interest in prohibiting
discrimination against women were important to the Court's analysis. On
the one hand, the Court found, ``the local chapters of the Jaycees are
large and basically unselective groups,'' age and sex being the only
established membership criteria in organizations otherwise entirely open
to public participation. The Jaycees, therefore, ``lack the distinctive
characteristics [e.g. small size, identifiable purpose, selectivity in
membership, perhaps seclusion from the public eye] that might afford
constitutional protection to the decision of its members to exclude
women.''\216\ Similarly, the Court determined in Rotary International
that Rotary Clubs, designed as community service organizations
representing a cross section of business and professional occupations,
also do not represent ``the kind of intimate or private relation that
warrants constitutional protection.''\217\ And in the New York City
case, the fact that the ordinance ``certainly could be constitutionally
applied at least to some of the large clubs, under [the] decisions in
Rotary and Roberts, the applicability criteria ``pinpointing
organizations which are `commercial' in nature,'' helped to defeat the
facial challenge.\218\
\213\468 U.S. 609 (1984).
\214\481 U.S. 537 (1987).
\215\487 U.S. 1 (1988).
\216\468 U.S. at 621.
\217\481 U.S. at 546.
\218\487 U.S. at 12.
---------------------------------------------------------------------------
Some amount of First Amendment protection is still due such
organizations; the Jaycees and its members had taken public positions on
a number of issues, and had engaged in ``a variety of civic, charitable,
lobbying, fundraising and other activities worthy of constitutional
protection.'' However, the Roberts Court could find ``no basis in the
record for concluding that admission of women as full
[[Page 1061]]
voting members will impede the organization's ability to engage in these
protected activities or to disseminate its preferred views.''\219\
Moreover, the State had a ``compelling interest to prevent . . . acts of
invidious discrimination in the distribution of publicly available
goods, services, and other advantages.''\220\
\219\468 U.S. at 626-27.
\220\468 U.S. at 628.
---------------------------------------------------------------------------
Because of the near-public nature of the Jaycees and Rotary
Clubs--the Court in Roberts likening the situation to a large business
attempting to discriminate in hiring or in selection of customers--the
cases may be limited in application, and should not be read as governing
membership discrimination by private social clubs.\221\ In New York
City, the Court noted that ``opportunities for individual associations
to contest the constitutionality of the Law as it may be applied against
them are adequate to assure that any overbreadth . . . will be curable
through case-by-case analysis of specific facts.''\222\
\221\The Court in Rotary rejected an assertion that Roberts had
recognized that Kiwanis Clubs are constitutionally distinguishable, and
suggested that a case-by-case approach is necessary to determine whether
``the `zone of privacy' extends to a particular club or entity.'' 481
U.S. at 547 n.6.
\222\487 U.S. at 15.
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Political Association.--The major expansion of the right of
association has occurred in the area of political rights. ``There can no
longer be any doubt that freedom to associate with others for the common
advancement of political beliefs and ideas is a form of `orderly group
activity' protected by the First and Fourteenth Amendments. . . . The
right to associate with the political party of one's choice is an
integral part of this basic constitutional freedom.''\223\ Usually in
combination with an equal protection analysis, the Court since Williams
v. Rhodes\224\ has passed on numerous state restrictions that have an
impact upon the ability of individuals or groups to join one or the
other of the major parties or to form and join an independent political
party to further political, social and economic goals.\225\ Of course,
the right is not absolute. The Court has recognized that there must be
substantial state regulation of the election process which necessarily
will work a diminu
[[Page 1062]]
tion of the individual's right to vote and to join with others for
political purposes. The validity of governmental regulation must be
determined by assessing the degree of infringement of the right of
association against the legitimacy, strength, and necessity of the
governmental interests and the means of implementing those
interests.\226\ Many restrictions upon political association have
survived this sometimes exacting standard of review, in large measure
upon the basis of some of the governmental interests found
compelling.\227\
\223\Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973).
\224\393 U.S. 23 (1968).
\225\E.g., Rosario v. Rockefeller, 410 U.S. 752 (1973) (time
deadline for enrollment in party in order to vote in next primary);
Kusper v. Pontikes, 414 U.S. 51 (1973) (barring voter from party primary
if he voted in another party's primary within preceding 23 months);
American Party of Texas v. White, 415 U.S. 767 (1974) (ballot access
restriction); Illinois State Bd. of Elections v. Socialist Workers
Party, 440 U.S. 173 (1979) (number of signatures to get party on
ballot); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290
(1982) (limit on contributions to associations formed to support or
oppose referendum measure); Clements v. Fashing, 457 U.S. 957 (1982)
(resign-to-run law).
\226\Williams v. Rhodes, 393 U.S. 23, 30-31 (1968); Bullock v.
Carter, 405 U.S. 134, 142-143 (1972); Storer v. Brown, 415 U.S. 724, 730
(1974); Illinois State Bd. of Elections v. Socialist Workers Party, 440
U.S. 173, 183 (1979).
\227\Thus, in Storer v. Brown, 415 U.S. 724, 736 (1974), the
Court found ``compelling'' the state interest in achieving stability
through promotion of the two-party system, and upheld a bar on any
independent candidate who had been affiliated with any other party
within one year. Compare Williams v. Rhodes, 393 U.S. 23, 31-32 (1968)
(casting doubt on state interest in promoting Republican and Democratic
voters). The state interest in protecting the integrity of political
parties was held to justify requiring enrollment of a person in the
party up to eleven months before a primary election, Rosario v.
Rockefeller, 410 U.S. 752 (1973), but not to justify requiring one to
forgo one election before changing parties. Kusper v. Pontikes, 414 U.S.
51 (1973). See also Civil Service Comm'n v. National Ass'n of Letter
Carriers, 413 U.S. 548 (1973) (efficient operation of government
justifies limits on employee political activity); Rodriguez v. Popular
Democratic Party, 457 U.S. 1 (1982) (permitting political party to
designate replacement in office vacated by elected incumbent of that
party serves valid governmental interests). Storer v. Brown was
distinguished in Anderson v. Celebrezze, 460 U.S. 780 (1983), holding
invalid a requirement that independent candidates for President and
Vice-President file nominating petitions by March 20 in order to qualify
for the November ballot; state interests in assuring voter education,
treating all candidates equally (candidates participating in a party
primary also had to declare candidacy in March), and preserving
political stability, were deemed insufficient to justify the substantial
impediment to independent candidates and their supporters. See also
Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) (state
interests are insubstantial in imposing ``closed primary'' under which a
political party is prohibited from allowing independents to vote in its
primaries).
---------------------------------------------------------------------------
A significant extension of First Amendment association rights in
the political context occurred when the Court curtailed the already
limited political patronage system. At first holding that a nonpolicy-
making, nonconfidential government employee cannot be discharged from a
job that he is satisfactorily performing upon the sole ground of his
political beliefs or affiliations,\228\ the Court subsequently held that
``the question is whether the hiring authority can demonstrate that
party affiliation is an appropriate requirement for the effective
performance of the public office involved.''\229\
[[Page 1063]]
The concept of policymaking, confidential positions was abandoned, the
Court noting that some such positions would nonetheless be protected
whereas some people filling positions not reached by the description
would not be.\230\ The opinion of the Court makes difficult an
evaluation of the ramifications of the decision, but it seems clear that
a majority of the Justices adhere to a doctrine of broad associational
political freedom that will have substantial implications for
governmental employment. Refusing to confine Elrod and Branti to their
facts, the court in Rutan v. Republican Party of Illinois\231\ held that
restrictions on patronage apply not only to dismissal or its substantial
equivalent, but also to promotion, transfer, recall after layoffs, and
hiring of low-level public employees.
\228\Elrod v. Burns, 427 U.S. 347 (1976). The limited
concurrence of Justices Stewart and Blackmun provided the qualification
for an otherwise expansive plurality opinion. Id. at 374.
\229\Branti v. Finkel, 445 U.S. 507, 518 (1980). On the same
page, the Court refers to a position in which ``party membership was
essential to a discharge of the employee's governmental
responsibilities.'' (emphasis supplied). A great gulf separates
``appropriate'' from ``essential,'' so that much depends on whether the
Court was using the two words interchangeably or whether the stronger
word was meant to characterize the position noted and not to
particularize the standard.
\230\Justice Powell's dissents in both cases contain lengthy
treatments of and defenses of the patronage system as a glue
strengthening necessary political parties. Id. at 520.
\231\497 U.S. 62 (1990). Rutan was a 5-4 decision, with Justice
Brennan writing the Court's opinion. The four dissenters indicated, in
an opinion by Justice Scalia, that they would not only rule differently
in Rutan, but that they would also overrule Elrod and Branti.
---------------------------------------------------------------------------
The protected right of association extends as well to coverage
of party principles, enabling a political party to assert against some
state regulation an overriding interest sufficient to overcome the
legitimate interests of the governing body. Thus, a Wisconsin law that
mandated an open primary election, with party delegates bound to support
at the national convention the wishes of the voters expressed in that
primary election, while legitimate and valid in and of itself, had to
yield to a national party rule providing for the acceptance of delegates
chosen only in an election limited to those voters who affiliated with
the party.\232\
\232\Democratic Party v. Wisconsin ex rel. LaFollette, 450 U.S.
107 (1981). See also Cousins v. Wigoda, 419 U.S. 477 (1975) (party
rules, not state law, governed which delegation from State would be
seated at national convention; national party had protected
associational right to sit delegates it chose).
---------------------------------------------------------------------------
Provisions of the Federal Election Campaign Act requiring the
reporting and disclosure of contributions and expenditures to and by
political organizations, including the maintenance by such organizations
of records of everyone contributing more than $10 and the reporting by
individuals and groups that are not candidates or political committees
who contribute or expend more than $100 a year for the purpose of
advocating the election or defeat of an identified candidate, were
sustained.\233\ ``[C]ompelled disclosure, in itself, can seriously
infringe on privacy of association and belief guaranteed by the First
Amendment. . . . We long have recognized
[[Page 1064]]
the significant encroachments on First Amendment rights of the sort that
compelled disclosure imposes cannot be justified by a mere showing of
some legitimate governmental interest. . . . We have required that the
subordinating interests of the State must survive exacting scrutiny. We
have also insisted that there be a `relevant correlation' or
`substantial relation' between the governmental interest and the
information required to be disclosed.''\234\ The governmental interests
effectuated by these requirements--providing the electorate with
information, deterring corruption and the appearance of corruption, and
gathering data necessary to detect violations--were found to be of
sufficient magnitude to be validated even though they might incidentally
deter some persons from contributing.\235\ A claim that contributions to
minor parties and independents should have a blanket exemption from
disclosure was rejected inasmuch as an injury was highly speculative;
but any such party making a showing of a reasonable probability that
compelled disclosure of contributors' names would subject them to
threats or reprisals could obtain an exemption from the courts.\236\ The
Buckley Court also narrowly construed the requirement of reporting
independent contributions and expenditures in order to avoid
constitutional problems.\237\
\233\Buckley v. Valeo, 424 U.S. 1, 60-84 (1976).
\234\Id. at 64 (footnote citations omitted).
\235\Id. at 66-68.
\236\Id. at 68-74. Such a showing, based on past governmental
and private hostility and harassment, was made in Brown v. Socialist
Wrokers '74 Campaign Comm., 459 U.S. 87 (1982).
\237\424 U.S. at 74-84.
---------------------------------------------------------------------------
Conflict Between Organization and Members.--It is to be expected
that disputes will arise between an organization and some of its
members, and that First Amendment principles may be implicated. Of
course, unless there is some governmental connection, there will be no
federal constitutional application to any such controversy.\238\ But at
least in some instances, when government compels membership in an
organization or in some manner lends its authority to such compulsion,
there may well be constitutional limitations. Disputes implicating such
limitations can arise in connection with union shop labor agreements
permissible under the National Labor Relations Act and the Railway Labor
Act.\239\
\238\The Labor Management Reporting and Disclosure Act of 1959,
73 Stat. 537, 29 U.S.C. Sec. Sec. 411-413, enacted a bill of rights for
union members, designed to protect, inter alia, freedom of speech and
assembly and the right to participate in union meetings on political and
economic subjects.
\239\Sec. 8(a)(3) of the Labor-Management Relations Act of 1947,
61 Stat. 140, 29 U.S.C. Sec. 158(a)(3), permits the negotiation of union
shop but not closed shop agreements, which, however, may be outlawed by
contrary state laws. Sec. 14(b), 61 Stat. 151, 29 U.S.C. Sec. 164(b).
See Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335
U.S. 525 (1949); AFL v. American Sash & Door Co., 335 U.S. 538 (1949).
In industries covered by the Railway Labor Act, union shop agreements
may be negotiated regardless of contrary state laws. 64 Stat. 1238, 45
U.S.C. Sec. 152, Eleventh; Railway Employees Dept. v. Hanson, 351 U.S.
225 (1956).
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[[Page 1065]]
Initially, the Court avoided constitutional issues in resolving
a challenge by union shop employees to use of their dues money for
political causes. Acknowledging ``the utmost gravity'' of the
constitutional issues, the Court determined that Congress had intended
that dues money obtained through union shop agreements should be used
only to support collective bargaining and not in support of other
causes.\240\ Justices Black and Douglas, in separate opinions, would
have held that Congress could not constitutionally provide for
compulsory membership in an organization which could exact from members
money which the organization would then spend on causes which the
members opposed; Justices Frankfurter and Harlan, also reaching the
constitutional issue, would have held that the First Amendment was not
violated when government did not compel membership but merely permitted
private parties to enter into such agreements and that in any event so
long as members were free to espouse their own political views the use
by a union of dues money to support political causes which some members
opposed did not violate the First Amendment.\241\
\240\International Ass'n of Machinists v. Street, 367 U.S. 740
(1961). The quoted phrase is at 749.
\241\Id. at 775 (Justice Douglas concurring), 780 (Justice Black
dissenting), 797 (Justices Frankfurter and Harlan dissenting). On the
same day, a majority of the Court declined, in Lathrop v. Donohue, 367
U.S. 820 (1961), to reach the constitutional issues presented by roughly
the same fact situation in a suit by lawyers compelled to join an
``integrated bar.'' These issues were faced squarely in Keller v. State
Bar of California, 496 U.S. 1 (1990). An integrated state bar may not,
against a members' wishes, devote compulsory dues to ideological or
other political activities not ``necessarily or reasonably incurred for
the purpose of regulating the legal profession or improving the quality
of legal service available to the people of the State.'' Id. at 14.
---------------------------------------------------------------------------
In Abood v. Detroit Board of Education,\242\ the Court applied
Hanson and Street to the public employment context. Recognizing that
employee associational rights were clearly restricted by any system of
compelled support, because the employees had a right not to associate,
not to support, the Court nonetheless found the governmental interests
served by the agency shop provision--the promotion of labor peace and
stability of employer-employee relations--to be of overriding importance
and to justify the impact upon employee freedom.\243\ But a different
balance was drawn
[[Page 1066]]
when the Court considered whether employees compelled to support the
union were constitutionally entitled to object to the use of those
exacted funds to support political candidates or to advance ideological
causes not germane to the union's duties as collective-bargaining
representative. To compel one to expend funds in such a way is to
violate his freedom of belief and the right to act on those beliefs just
as much as if government prohibited him from acting to further his own
beliefs.\244\ However, the remedy was not to restrain the union from
making non-collective bargaining related expenditures but to require
that those funds come only from employees who do not object. Therefore,
the lower courts were directed to oversee development of a system
whereby employees could object generally to such use of union funds and
could obtain either a proportionate refund or reduction of future
exactions.\245\ Later, the Court further tightened the requirements. A
proportionate refund is inadequate because ``even then the union obtains
an involuntary loan for purposes to which the employee objects;''\246\
an advance reduction of dues corrects the problem only if accompanied by
sufficient information by which employees may gauge the propriety of the
union's fee.\247\ Therefore, the union procedure must also ``provide for
a reasonably prompt decision by an impartial decisionmaker.''\248\
\242\431 U.S. 209 (1977). That a public entity was the employer
and the employees consequently were public employees was deemed
constitutionally immaterial for the application of the principles of
Hanson and Street, id. at 226-32, but Justice Powell found the
distinction between public and private employment crucial. Id. at 244.
\243\Id. at 217-23. The compelled support was through the agency
shop device. Id. at 211, 217 n. 10. Justice Powell, joined by Chief
Justice Burger and Justice Blackmun, would have held that compelled
support by public employees of unions violated their First Amendment
rights. Id. at 244. For an argument over the issue of corporate
political contributions and shareholder rights, see First National Bank
v. Bellotti, 435 U.S. 765, 792-95 (1978), and id. at 802, 812-21
(Justice White dissenting).
\244\431 U.S. at 232-37.
\245\Id. at 237-42. On the other hand, nonmembers may be charged
for such general union expenses as contributions to state and national
affiliates, expenses of sending delegates to state and national union
conventions, and costs of a union newsletter. Lehnert v. Ferris Faculty
Ass'n, 500 U.S. 507 (1991).
\246\Ellis v. Brotherhood of Railway, Airline & Steamship
Clerks, 466 U.S. 435 (1984).
\247\Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).
\248\Id. at 309.
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On a related matter, the Court held that a labor relations body
could not prevent a union member or employee represented exclusively by
a union from speaking out at a public meeting on an issue of public
concern, simply because the issue was a subject of collective bargaining
between the union and the employer.\249\
\249\Madison School Dist. v. WERC, 429 U.S. 167 (1977).
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Maintenance of National Security and the First Amendment
Preservation of the security of the Nation from its enemies,
foreign and domestic, is the obligation of government and one of the
foremost reasons for government to exist. Pursuit of this goal may
[[Page 1067]]
lead government officials at times to trespass in areas protected by the
guarantees of speech and press and may require the balancing away of
rights which might be preserved inviolate at other times. The drawing of
the line is committed, not exclusively but finally, to the Supreme
Court. In this section, we consider a number of areas in which the
necessity to draw lines has arisen.
Punishment of Advocacy.--Criminal punishment for the advocacy of
illegal or of merely unpopular goals and of ideas did not originate in
the United States in the post-World War II concern with Communism.
Enactment of and prosecutions under the Sedition Act of 1798\1\ and
prosecutions under the federal espionage laws\2\ and state sedition and
criminal syndicalism laws\3\ in the 1920's and early 1930's have been
alluded to earlier.\4\ But it was in the 1950's and the 1960's that the
Supreme Court confronted First Amendment concepts fully in determining
the degree to which government could proceed against persons and
organizations which it believed were plotting and conspiring both to
advocate the overthrow of government and to accomplish that goal.
\1\Supra, p.1022.
\2\Supra, pp.1022-24, 1036-38. The cases included Schenck v.
United States, 249 U.S. 47 (1919) (affirming conviction for attempting
to disrupt conscription by circulation of leaflets bitterly condemning
the draft); Debs v. United States, 249 U.S. 211 (1919) (affirming
conviction for attempting to create insubordination in armed forces
based on one speech advocating socialism and opposition to war, and
praising resistance to the draft); Abrams v. United States, 250 U.S. 616
(1919) (affirming convictions based on two leaflets, one of which
attacked President Wilson as a coward and hypocrite for sending troops
into Russia and the other of which urged workers not to produce
materials to be used against their brothers).
\3\Supra, p.1039. The cases included Gitlow v. New York, 268
U.S. 652 (1925) (affirming conviction based on publication of
``manifesto'' calling for the furthering of the ``class struggle''
through mass strikes and other mass action); Whitney v. California, 274
U.S. 357 (1927) (affirming conviction based upon adherence to party
which had platform rejecting parliamentary methods and urging a
``revolutionary class struggle,'' the adoption of which defendant had
opposed).
\4\See also Taylor v. Mississippi, 319 U.S. 583 (1943), setting
aside convictions of three Jehovah's Witnesses under a statute which
prohibited teaching or advocacy intended to encourage violence,
sabotage, or disloyalty to the government after the defendants had said
that it was wrong for the President ``to send our boys across in uniform
to fight our enemies'' and that boys were being killed ``for no purpose
at all.'' The Court found no evil or sinister purpose, no advocacy of or
incitement to subversive action, and no threat of clear and present
danger to government.
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The Smith Act of 1940\5\ made it a criminal offense for anyone
to knowingly or willfully advocate, abet, advise, or teach the duty,
necessity, desirability, or propriety of overthrowing the Government of
the United States or of any State by force or violence, or for anyone to
organize any association which teaches, advises, or encourages such an
overthrow, or for anyone to become a member of or to affiliate with any
such association. No case involving pros
[[Page 1068]]
ecution under this law was reviewed by the Supreme Court until in Dennis
v. United States\6\ it considered the convictions of eleven Communist
Party leaders on charges of conspiracy to violate the advocacy and
organizing sections of the statute. Chief Justice Vinson's plurality
opinion for the Court applied a revised clear and present danger test\7\
and concluded that the evil sought to be prevented was serious enough to
justify suppression of speech. ``If, then, this interest may be
protected, the literal problem which is presented is what has been meant
by the use of the phrase `clear and present danger' of the utterances
bringing about the evil within the power of Congress to punish.
Obviously, the words cannot mean that before the Government may act, it
must wait until the putsch is about to be executed, the plans have been
laid and the signal is awaited. If Government is aware that a group
aiming at its overthrow is attempting to indoctrinate its members and to
commit them to a course whereby they will strike when the leaders feel
the circumstances permit, action by the Government is required.''\8\
``The mere fact that from the period 1945 to 1948 petitioners'
activities did not result in an attempt to overthrow the Government by
force and violence is of course no answer to the fact that there was a
group that was ready to make the attempt. The formation by petitioners
of such a highly organized conspiracy, with rigidly disciplined members
subject to call when the leaders, these petitioners, felt that the time
had come for action, coupled with the inflammable nature of world
conditions, similar uprisings in other countries, and the touch-and-go
nature of our relations with countries with whom petitioners were in the
very least ideologically attuned, convince us that their convictions
were justified on this score.''\9\
\5\Ch. 439, 54 Stat. 670, 18 U.S.C. Sec. 2385.
\6\341 U.S. 494 (1951).
\7\Id. at 510, quoted supra, p. 1023.
\8\Id. at 509.
\9\Id. at 510-11.
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Justice Frankfurter in concurrence developed a balancing test,
which, however, he deferred to the congressional judgment in applying,
concluding that ``there is ample justification for a legislative
judgment that the conspiracy now before us is a substantial threat to
national order and security.''\10\ Justice Jackson's concurrence was
based on his reading of the case as involving ``a conviction of
conspiracy, after a trial for conspiracy, on an indictment charging
conspiracy, brought under a statute outlawing conspiracy.'' Here the
Government was dealing with ``permanently organized, well-financed,
semi-secret, and highly disciplined organizations'' plotting
[[Page 1069]]
to overthrow the Government; under the First Amendment ``it is not
forbidden to put down force and violence, it is not forbidden to punish
its teaching or advocacy, and the end being punishable, there is no
doubt of the power to punish conspiracy for the purpose.''\11\ Justices
Black and Douglas dissented separately, the former viewing the Smith Act
as an invalid prior restraint and calling for reversal of the
convictions for lack of a clear and present danger, the latter applying
the Holmes-Brandeis formula of clear and present danger to conclude that
``[t]o believe that petitioners and their following are placed in such
critical positions as to endanger the Nation is to believe the
incredible.''\12\
\10\Id. at 517, 542
\11\Id. at 561, 572, 575.
\12\Id. at 579 (Justice Black dissenting), 581, 589 (Justice
Douglas dissenting).
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In Yates v. United States,\13\ the convictions of several
second-string Communist Party leaders were set aside, a number ordered
acquitted, and others remanded for retrial. The decision was based upon
construction of the statute and appraisal of the evidence rather than on
First Amendment claims, although each prong of the ruling seems to have
been informed with First Amendment considerations. Thus, Justice Harlan
for the Court wrote that the trial judge had given faulty instructions
to the jury in advising that all advocacy and teaching of forcible
overthrow was punishable, whether it was language of incitement or not,
so long as it was done with an intent to accomplish that purpose. But
the statute, the Justice continued, prohibited ``advocacy of action,''
not merely ``advocacy in the realm of ideas.'' ``The essential
distinction is that those to whom the advocacy is addressed must be
urged to do something, now or in the future, rather than merely to
believe in something.''\14\ Second, the Court found the evidence
insufficient to establish that the Communist Party had engaged in the
required advocacy of action, requiring the Government to prove such
advocacy in each instance rather than presenting evidence generally
about the Party. Additionally, the Court found the evidence insufficient
to link five of the defendants to advocacy of action, but sufficient
with regard to the other nine.\15\
\13\354 U.S. 298 (1957).
\14\Id. at 314, 315-16, 320, 324-25.
\15\Id. at 330-31, 332. Justices Black and Douglas would have
held the Smith Act unconstitutional. Id. at 339. Justice Harlan's
formulation of the standard by which certain advocacy could be punished
was noticeably stiffened in Brandenburg v. Ohio, 395 U.S. 444 (1969).
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Compelled Registration of Communist Party.--The Internal
Security Act of 1950 provided for a comprehensive regulatory scheme by
which ``Communist-action organizations'' and ``Com
[[Page 1070]]
munist-front organizations'' could be curbed.\16\ Organizations found to
fall within one or the other of these designations were required to
register and to provide for public inspection membership lists,
accountings of all money received and expended, and listings of all
printing presses and duplicating machines; members of organizations
which failed to register were required to register and members were
subject to comprehensive restrictions and criminal sanctions. After a
lengthy series of proceedings, a challenge to the registration
provisions reached the Supreme Court, which sustained the
constitutionality of the section under the First Amendment, only Justice
Black dissenting on this ground.\17\ Employing the balancing test,
Justice Frankfurter for himself and four other Justices concluded that
the threat to national security posed by the Communist conspiracy
outweighed considerations of individual liberty, the impact of the
registration provision in this area in any event being limited to
whatever ``public opprobrium and obloquy'' might attach.\18\ Three
Justices based their conclusion on the premise that the Communist Party
was an anti-democratic, secret organization, subservient to a foreign
power, utilizing speech-plus in attempting to achieve its ends and
therefore subject to extensive governmental regulation.\19\
\16\Ch. 1024, 64 Stat. 987. Sections of the Act requiring
registration of Communist-action and Communist-front organizations and
their members were repealed in 1968. Pub. L. 90-237, Sec. 5, 81 Stat.
766.
\17\Communist Party v. SACB, 367 U.S. 1 (1961). The Court
reserved decision on the self-incrimination claims raised by the Party.
The registration provisions ultimately floundered on this claim.
Albertson v. SACB, 382 U.S. 70 (1965).
\18\Id. at 88-105. The quoted phrase is id. at 102.
\19\Id. at 170-175 (Justice Douglas dissenting on other
grounds), 191 (Justice Brennan and Chief Justice Warren dissenting on
other grounds). Justice Black's dissent on First Amendment grounds
argued that ``Congress has [no] power to outlaw an association, group or
party either on the ground that it advocates a policy of violent
overthrow of the existing Government at some time in the distant future
or on the ground that it is ideologically subservient to some foreign
country.'' Id. at 147.
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Punishment for Membership in an Organization Which Engages in
Proscribed Advocacy.--It was noted above that the Smith Act also
contained a provision making it a crime to organize or become a member
of an organization which teaches, advocates, or encourages the overthrow
of government by force or violence.\20\ The Government used this
authority to proceed against Communist Party members. In Scales v.
United States,\21\ the Court affirmed a conviction under this section
and held it constitutional against First Amendment attack. Advocacy such
as the Communist Party
\20\Supra, p.1067.
\21\367 U.S. 203 (1961). Justices Black and Douglas dissented on
First Amendment grounds, id. at 259, 262, while Justice Brennan and
Chief Justice Warren dissented on statutory grounds. Id. at 278
---------------------------------------------------------------------------
[[Page 1071]]
engaged in, Justice Harlan wrote for the Court, was unprotected
under Dennis, and he could see no reason why membership which
constituted a purposeful form of complicity in a group engaging in
such advocacy should be a protected form of association. Of course,
``[i]f there were a similar blanket prohibition of association with
a group having both legal and illegal aims, there would indeed be a
real danger that legitimate political expression or association
would be impaired, but . . . [t]he clause does not make criminal all
association with an organization which has been shown to engage in
illegal advocacy.'' Only an ``active'' member of the Party--one who
with knowledge of the proscribed advocacy intends to accomplish the
aims of the organization--was to be punished, the Court said, not a
``nominal, passive, inactive or purely technical'' member.\22\
\22\Id. 228-30. In Noto v. United States, 367 U.S. 290 (1961),
the Court reversed a conviction under the membership clause because the
evidence was insufficient to prove that the Party had engaged in
unlawful advocacy. ``[T]he mere abstract teaching of Communist theory,
including the teaching of the moral propriety or even moral necessity
for a resort to force and violence is not the same as preparing a group
for violent action and steeling it to such action. There must be some
substantial direct or circumstantial evidence of a call to violence now
or in the future which is both sufficiently strong and sufficiently
pervasive to lend color to the otherwise ambiguous theoretical material
regarding Communist Party teaching, and to justify the inference that
such a call to violence may fairly be imputed to the Party as a whole,
and not merely to some narrow segment of it.'' Id. at 297-98.
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Disabilities Attaching to Membership in Proscribed
Organizations.--The consequences of being or becoming a member of a
proscribed organization can be severe. Aliens are subject to deportation
for such membership.\23\ Congress made it unlawful for any member of an
organization required to register as a ``Communist-action'' or a
``Communist-front'' organization to apply for a passport or to use a
passport.\24\ A now-repealed statute required as a condition of access
to NLRB processes by any union that each of
[[Page 1072]]
its officers must file affidavits that he was not a member of the
Communist Party or affiliated with it.\25\ The Court has sustained state
bar associations in their efforts to probe into applicants' membership
in the Communist Party in order to determine whether there was knowing
membership on the part of one sharing a specific intent to further the
illegal goals of the organization.\26\ A section of the Communist
Control Act of 1954 was designed to keep the Communist Party off the
ballot in all elections.\27\ The most recent interpretation of this type
of disability is United States v. Robel,\28\ in which the Court held
unconstitutional under the First Amendment a section of the Internal
Security Act which made it unlawful for any member of an organization
compelled to register as a ``Communist-action'' or ``Communist-front''
organization to work thereafter in any defense facility. For the Court,
Chief Justice Warren wrote that a statute which so infringed upon
freedom of association must be much more narrowly drawn to take precise
account of the evils at which it permissibly could be aimed. One could
be disqualified from holding sensitive positions on the basis of active,
knowing membership with a specific intent to further the unlawful goals
of an organization, but that membership which was passive or inactive,
or by a person unaware of the organization's unlawful aims, or by one
who disagreed with those aims, could not be grounds for
disqualification, certainly not for a non-sensitive position.\29\
\23\Supra, pp.280-81. See 66 Stat. 205 (1952), 8 U.S.C.
Sec. 1251(a)(6). ``Innocent'' membership in an organization which
advocates violent overthrow of the government is apparently insufficient
to save an alien from deportation. Galvan v. Press, 347 U.S. 522 (1954).
More recent cases, however, seem to impose a high standard of proof on
the Government to show a ``meaningful association,'' as a matter of
statutory interpretation. Rowoldt v. Perfetto, 355 U.S. 115 (1957);
Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963).
\24\Subversive Activities Control Act of 1950, Sec. 6, ch. 1024,
64 Stat. 993, 50 U.S.C. Sec. 785. The section was declared
unconstitutional in Aptheker v. Secretary of State, 378 U.S. 500 (1964),
as an infringement of the right to travel, a liberty protected by the
due process clause of the Fifth Amendment. But the Court considered the
case as well in terms of its restrictions on ``freedom of association,''
emphasizing that the statute reached membership whether it was with
knowledge of the organization's illegal aims or not, whether it was
active or not, and whether the member intended to further the
organization's illegal aims. Id. at 507-14. But see Zemel v. Rusk, 381
U.S. 1, 16-17 (1965), in which the Court denied that State Department
area restrictions in its passport policies violated the First Amendment,
because the policy inhibited action rather than expression, a
distinction the Court continued in Haig v. Agee, 453 U.S. 280, 304-10
(1981).
\25\This part of the oath was sustained in American
Communications Ass'n v. Douds, 339 U.S. 382 (1950), and Osman v. Douds,
339 U.S. 846 (1950). With regard to another part of the required oath,
see supra, p.1055.
\26\Konigsberg v. State Bar of California, 366 U.S. 36 (1961);
In re Anastaplo, 366 U.S. 82 (1961); Law Students Civil Rights Research
Council v. Wadmond, 401 U.S. 154 (1971). Membership alone, however,
appears to be an inadequate basis on which to deny admission. Id. at
165-66; Baird v. State Bar of Arizona, 401 U.S. 1 (1971); Schware v.
Board of Bar Examiners, 353 U.S. 232 (1957).
\27\Ch. 886, Sec. 3, 68 Stat. 775, 50 U.S.C. Sec. 842. The
section was at issue without a ruling on the merits in Mitchell v.
Donovan, 290 F. Supp. 642 (D. Minn. 1968) (ordering names of Communist
Party candidates put on ballot); 300 F. Supp. 1145 (D. Minn. 1969)
(dismissing action as moot); 398 U.S. 427 (1970) (dismissing appeal for
lack of jurisdiction).
\28\389 U.S. 258 (1967).
\29\Id. at 265-66. See also Schneider v. Smith, 390 U.S. 17
(1968).
---------------------------------------------------------------------------
A somewhat different matter is disqualifying a person for public
benefits of some sort because of membership in a proscribed organization
or because of some other basis ascribable to doubts about his loyalty.
The First Amendment was raised only in dissent when in Flemming v.
Nestor\30\ the Court sustained a statute which required the termination
of Social Security old age benefits to an
[[Page 1073]]
alien who was deported on grounds of membership in the Communist Party.
Proceeding on the basis that no one was ``entitled'' to Social Security
benefits, Justice Harlan for the Court concluded that a rational
justification for the law might be the deportee's inability to aid the
domestic economy by spending the benefits locally, although a passage in
the opinion could be read to suggest that termination was permissible
because alien Communists are undeserving of benefits.\31\ Of
considerable significance in First Amendment jurisprudence is Speiser v.
Randall,\32\ in which the Court struck down a state scheme for denying
veterans' property tax exemptions to ``disloyal'' persons. The system,
as interpreted by the state courts, denied the exemption only to persons
who engaged in speech which could be criminally punished consistent with
the First Amendment, but the Court found the vice of the provision to be
that after each claimant had executed an oath disclaiming his engagement
in unlawful speech, the tax assessor could disbelieve the oath taker and
deny the exemption, thus placing on the claimant the burden of proof of
showing that he was loyal. ``The vice of the present procedure is that,
where particular speech falls close to the line separating the lawful
and the unlawful, the possibility of mistaken fact-finding--inherent in
all litigation--will create the danger that the legitimate utterance
will be penalized. The man who knows that he must bring forth proof and
persuade another of the lawfulness of his conduct necessarily must steer
far wider of the unlawful zone than if the State must bear these burdens
. . . . In practical operation, therefore, this procedural device must
necessarily produce a result which the State could not command directly.
It can only result in a deterrence of speech which the Constitution
makes free.''\33\
\30\363 U.S. 603 (1960). Justice Black argued the applicability
of the First Amendment. Id. at 628 (dissenting). Chief Justice Warren
and Justices Douglas and Brennan also dissented. Id. at 628, 634.
\31\Id. at 612. The suggestive passage reads: ``Nor . . . can it
be deemed irrational for Congress to have concluded that the public
purse should not be utilized to contribute to the support of those
deported on the grounds specified in the statute.'' Ibid. But see
Sherbert v. Verner, 374 U.S. 398, 404-05, 409 n.9 (1963). While the
right-privilege distinction is all but moribund, Flemming has been
strongly reaffirmed in recent cases by emphasis on the noncontractual
nature of such benefits. Richardson v. Belcher, 404 U.S. 78, 80-81
(1971); United States Railroad Retirement Board v. Fritz, 449 U.S. 166,
174 (1980).
\32\357 U.S. 513 (1958).
\33\Id. at 526. For a possible limiting application of the
principle, see Law Students Civil Rights Research Council v. Wadmond,
401 U.S. 154, 162-64 (1971), and id. at 176-78 (Justices Black and
Douglas dissenting), id. at 189 n.5 (Justices Marshall and Brennan
dissenting).
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Employment Restrictions and Loyalty Oaths.--An area in which
significant First Amendment issues are often raised is the establishment
of loyalty-security standards for government employees. Such programs
generally take one of two forms or may com
[[Page 1074]]
bine the two. First, government may establish a system investigating
employees or prospective employees under standards relating to presumed
loyalty. Second, government may require its employees or prospective
employees to subscribe to a loyalty oath disclaiming belief in or
advocacy of, or membership in an organization which stands for or
advocates, unlawful or disloyal action. The Federal Government's
security investigation program has been tested numerous times and First
Amendment issues raised, but the Supreme Court has never squarely
confronted the substantive constitutional issues, and it has not dealt
with the loyalty oath features of the federal program.\34\ The Court
has, however, had a long running encounter with state loyalty oath
programs.\35\
\34\The federal program is primarily grounded in two Executive
Orders by President Truman and President Eisenhower, E.O. 9835, 12 Fed.
Reg. 1935 (1947), and E.O. 10450, 18 Fed. Reg. 2489 (1953), and a
significant amendatory Order issued by President Nixon, E.O. 11605, 36
Fed. Reg. 12831 (1971). Statutory bases include 5 U.S.C. Sec. Sec. 7311,
7531-32. Cases involving the program were decided either on lack of
authority for the action being reviewed, e.g., Cole v. Young, 351 U.S.
536 (1956); and Peters v. Hobby, 349 U.S. 331 (1955), or on procedural
due process grounds, Greene v. McElroy, 360 U.S. 474 (1959); Cafeteria &
Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961). But cf. United
States v. Robel, 389 U.S. 258 (1967); Schneider v. Smith, 390 U.S. 17
(1968). A series of three-judge district court decisions, however,
invalidated federal loyalty oaths and inquiries. Soltar v. Postmaster
General, 277 F. Supp. 579 (N.D. Calif. 1967); Haskett v. Washington, 294
F. Supp. 912 (D.D.C. 1968); Stewart v. Washington, 301 F. Supp. 610
(D.D.C. 1969); National Ass'n of Letter Carriers v. Blount, 305 F. Supp.
546 (D.D.C. 1969) (no-strike oath).
\35\So-called negative oaths or test oaths are dealt with in
this section; for the positive oaths, see supra, pp.1055-56.
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First encountered\36\ was a loyalty oath for candidates for
public office rather than one for public employees. Accepting the state
court construction that the law required each candidate to ``make oath
that he is not a person who is engaged `in one way or another in the
attempt to overthrow the government by force or violence,' and that he
is not knowingly a member of an organization engaged in such an
attempt,'' the Court unanimously sustained the provision in a one-
paragraph per curiam opinion.\37\ Less than two months later, the Court
did uphold a requirement that employees take an oath that they had not
within a prescribed period advised, advocated, or taught the overthrow
of government by unlawful
[[Page 1075]]
means, nor been a member of an organization with similar objectives;
every employee was also required to swear that he was not and had not
been a member of the Communist Party.\38\ For the Court, Justice Clark
perceived no problem with the inquiry into Communist Party membership
but cautioned that no issue had been raised whether an employee who was
or had been a member could be discharged merely for that reason.\39\
With regard to the oath, the Court did not discuss First Amendment
considerations but stressed that it believed the appropriate authorities
would not construe the oath adversely against persons who were innocent
of an organization's purpose during their affiliation, or persons who
had severed their associations upon knowledge of an organization's
purposes, or persons who had been members of an organization at a time
when it was not unlawfully engaged.\40\ Otherwise, the oath requirement
was valid as ``a reasonable regulation to protect the municipal service
by establishing an employment qualification of loyalty'' and as being
``reasonably designed to protect the integrity and competency of the
service.''\41\
\36\Test oaths had first reached the Court in the period
following the Civil War, at which time they were voided as ex post facto
laws and bills of attainder. Cummings v. Missouri, 71 U.S. (4 Wall.) 277
(1867); Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867)
\37\Gerende v. Board of Supervisors of Elections, 341 U.S. 56
(1951) (emphasis original). In Indiana Communist Party v. Whitcomb, 414
U.S. 411 (1974), a requirement that parties and candidates seeking
ballot space subscribe to a similar oath was voided because the oath's
language did not comport with the advocacy standards of Brandenburg v.
Ohio, 395 U.S. 444 (1969). Four Justices concurred more narrowly. 414
U.S. at 452 n.3. See also Whitcomb v. Communist Party of Indiana, 410
U.S. 976 (1973).
\38\Garner v. Board of Public Works, 341 U.S. 716 (1951).
Justice Frankfurter dissented in part on First Amendment grounds, id. at
724, Justice Burton dissented in part, id. at 729, and Justices Black
and Douglas dissented completely, on bill of attainder grounds, id. at
731.
\39\Id. at 720. Justices Frankfurter and Burton agreed with this
ruling. Id. at 725-26, 729-30.
\40\Id. at 723-24.
\41\Id. at 720-21. Justice Frankfurter objected that the oath
placed upon the takers the burden of assuring themselves that every
organization to which they belonged or had been affiliated with for a
substantial period of time had not engaged in forbidden advocacy.
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In the following Term, the Court sustained a state statute
disqualifying for government employment persons who advocated the
overthrow of government by force or violence or persons who were members
of organizations which so advocated; the statute had been supplemented
by a provision applicable to teachers calling for the drawing up of a
list of organizations which advocated violent overthrow and making
membership in any listed organization prima facie evidence of
disqualification.\42\ Justice Minton observed that everyone had a right
to assemble, speak, think, and believe as he pleased, but had no right
to work for the State in its public school system except upon compliance
with the State's reasonable terms. ``If they do not choose to work on
such terms, they are at liberty to retain their beliefs and associations
and go elsewhere. Has the State thus deprived them of any right to free
speech or assembly?
[[Page 1076]]
We think not.''\43\ A State could deny employment based on a person's
advocacy of overthrow of the government by force or violence or based on
unexplained membership in an organization so advocating with knowledge
of the advocacy.\44\ With regard to the required list, the Justice
observed that the state courts had interpreted the law to provide that a
person could rebut the presumption attached to his mere membership.\45\
\42\Adler v. Board of Education, 342 U.S. 485 (1952). Justice
Frankfurter dissented because he thought no party had standing. Id. at
497. Justices Black and Douglas dissented on First Amendment grounds.
Id. at 508.
\43\Id. at 492.
\44\Ibid.
\45\Id. at 494-96.
---------------------------------------------------------------------------
Invalidated the same year was an oath requirement, addressed to
membership in the Communist Party and other proscribed organizations,
which the state courts had interpreted to disqualify from employment
``solely on the basis of organizational membership.'' Stressing that
membership might be innocent, that one might be unaware of an
organization's aims, or that he might have severed a relationship upon
learning of its aims, the Court struck the law down; one must be or have
been a member with knowledge of illegal aims.\46\ But subsequent cases
firmly reiterated the power of governmental agencies to inquire into the
associational relationships of their employees for purposes of
determining fitness and upheld dismissals for refusal to answer relevant
questions.\47\ In Shelton v. Tucker,\48\ however, a five-to-four
majority held that, while a State could inquire into the fitness and
competence of its teachers, a requirement that every teacher annually
list every organization to which he belonged or had belonged in the
previous five years was invalid because it was too broad, bore no
rational relationship to the State's interests, and had a considerable
potential for abuse.
\46\Wieman v. Updegraff, 344 U.S. 183 (1952).
\47\Beilan v. Board of Education, 357 U.S. 399 (1958); Lerner v.
Casey, 357 U.S. 458 (1958); Nelson v. County of Los Angeles, 362 U.S. 1
(1960). Compare Slochower v. Board of Higher Education, 350 U.S. 551
(1956). The self-incrimination aspects of these cases are considered
infra, under analysis of the Fifth Amendment.
\48\364 U.S. 479 (1960). ``It is not disputed that to compel a
teacher to disclose his every associational tie is to impair that
teacher's right of free association, a right closely allied to freedom
of speech and a right which, like free speech, lies at the foundation of
a free society.'' Id. at 485-86. Justices Frankfurter, Clark, Harlan,
and Whittaker dissented. Id. at 490, 496.
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Vagueness was then employed by the Court when loyalty oaths
aimed at ``subversives'' next came before it. Cramp v. Board of Public
Instruction\49\ unanimously held too vague an oath which required one to
swear, inter alia, that ``I have not and will not lend my aid, support,
advice, counsel or influence to the Communist
[[Page 1077]]
Party.'' Similarly, in Baggett v. Bullitt,\50\ two oaths, one requiring
teachers to swear that they ``will by precept and example promote
respect for the flag and the institutions of the United States of
America and the State of Washington, reverence for law and order and
undivided allegiance to the government,'' and the other requiring all
state employees to swear, inter alia, that they would not ``aid in the
commission of any act intended to overthrow, destroy, or alter or assist
in the overthrow, destruction, or alteration'' of government. Although
couched in vagueness terms, the Court's opinion stressed that the
vagueness was compounded by its effect on First Amendment rights and
seemed to emphasize that the State could not deny employment to one
simply because he unintentionally lent indirect aid to the cause of
violent overthrow by engaging in lawful activities that he knew might
add to the power of persons supporting illegal overthrow.\51\
\49\368 U.S. 278 (1961). For further proceedings on this oath,
see Connell v. Higginbotham, 305 F. Supp. 445 (M.D. Fla. 1970). aff'd in
part and rev'd in part, 403 U.S. 207 (1971).
\50\377 U.S. 360 (1964). Justices Clark and Harlan dissented.
Id. at 380
\51\Id. at 369-70.
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More precisely drawn oaths survived vagueness attacks but fell
before First Amendment objections in the next three cases. Elfbrandt v.
Russell\52\ involved an oath that as supplemented would have been
violated by one who ``knowingly and willfully becomes or remains a
member of the communist party . . . or any other organization having for
its purposes the overthrow by force or violence of the government'' with
``knowledge of said unlawful purpose of said organization.'' The law's
blanketing in of ``knowing but guiltless'' membership was invalid, wrote
Justice Douglas for the Court, because one could be a knowing member but
not subscribe to the illegal goals of the organization; moreover, it
appeared that one must also have participated in the unlawful activities
of the organization before public employment could be denied.\53\ Next,
in Keyishian v. Board of Regents,\54\ the oath provisions sustained in
Adler\55\ were declared unconstitutional. A number of provisions were
voided as vague,\56\ but the Court held invalid a new provision making
Communist Party membership prima facie evidence of disqualification for
employment because the opportunity to rebut the presumption was too
limited. It could be rebutted only by denying membership, denying
knowledge of advocacy of illegal overthrow,
[[Page 1078]]
or denying that the organization advocates illegal overthrow. But
``legislation which sanctions membership unaccompanied by specific
intent to further the unlawful goals of the organization or which is not
active membership violates constitutional limitations.''\57\ Similarly,
in Whitehill v. Elkins,\58\ the oath, revised, upheld in Gerende,\59\
was voided because the Court thought it might include within its
proscription innocent membership in an organization which advocated
illegal overthrow of government.
\52\384 U.S. 11 (1966). Justices White, Clark, Harlan, and
Stewart dissented. Id. at 20.
\53\Id. at 16, 17, 19. ``Those who join an organization but do
not share its unlawful purposes and who do not participate in its
unlawful activities pose no threat, either as citizens or public
employees.'' Id. at 17.
\54\385 U.S. 589 (1967). Justices Clark, Harlan, Stewart, and
White dissented. Id. at 620.
\55\Adler v. Board of Education, 342 U.S. 485 (1952).
\56\Keyishian v. Board of Regents, 385 U.S. 589, 597-604 (1967).
\57\Id. at 608. Note that the statement here makes specific
intent or active membership alternatives in addition to knowledge while
Elfbrandt v. Russell, 384 U.S. 11, 19 (1966), requires both in addition
to knowledge.
\58\389 U.S. 54 (1967). Justices Harlan, Stewart, and White
dissented. Id. at 62.
\59\Gerende v. Board of Supervisors of Elections, 341 U.S. 56
(1951).
---------------------------------------------------------------------------
More recent cases do not illuminate whether membership changes
in the Court presage a change in view with regard to the loyalty-oath
question. In Connell v. Higginbotham\60\ an oath provision reading
``that I do not believe in the overthrow of the Government of the United
States or of the State of Florida by force or violence'' was invalidated
because the statute provided for summary dismissal of an employee
refusing to take the oath, with no opportunity to explain that refusal.
Cole v. Richardson\61\ upheld a clause in an oath ``that I will oppose
the overthrow of the government of the United States of America or of
this Commonwealth by force, violence, or by any illegal or
unconstitutional method'' upon the construction that this clause was
mere ``repetition, whether for emphasis or cadence,'' of the first part
of the oath, which was a valid ``uphold and defend'' positive oath.
\60\403 U.S. 207 (1971).
\61\405 U.S. 676, 683-84 (1972).
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Legislative Investigations and the First Amendment.--The power
of inquiry by congressional and state legislative committees in order to
develop information as a basis for legislation\62\ is subject to some
uncertain limitation when the power as exercised results in deterrence
or penalization of protected beliefs, associations and conduct. While
the Court initially indicated that it would scrutinize closely such
inquiries in order to curb First Amendment infringement,\63\ later cases
balanced the interests of the legislative bodies in inquiring about both
protected and unprotected associations and conduct against what were
perceived to be limited restraints upon the speech and association
rights of witnesses, and
[[Page 1079]]
upheld wide-ranging committee investigations.\64\ More recently, the
Court has placed the balance somewhat differently and required that the
investigating agency show ``a subordinating interest which is
compelling'' to justify the restraint on First Amendment rights which
the Court found would result from the inquiry.\65\ The issues in this
field, thus, must be considered to be unsettled pending further judicial
consideration.
\62\Supra, pp.93-105.
\63\See United States v. Rumely, 345 U.S. 41 (1953); Watkins v.
United States, 354 U.S. 178, 197-98 (1957); Sweezy v. New Hampshire, 354
U.S. 234, 249-51 (1957). Concurring in the last case, Justices
Frankfurter and Harlan would have ruled that the inquiry there was
precluded by the First Amendment. Id. at 255.
\64\Barenblatt v. United States, 360 U.S. 109 (1959); Uphaus v.
Wyman, 360 U.S. 72 (1959); Wilkinson v. United States, 365 U.S. 399
(1961); Braden v. United States, 365 U.S. 431 (1961). Chief Justice
Warren and Justices Black, Douglas, and Brennan dissented in each case.
\65\Gibson v. Florida Legislative Investigation Committee, 372
U.S. 539 (1963). Justices Harlan, Clark, Stewart, and White dissented.
Id. at 576, 583. See also DeGregory v. Attorney General of New
Hampshire, 383 U.S. 825 (1966).
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Interference With War Effort.--Unlike the dissent to United
States participation in World War I, which provoked several
prosecutions,\66\ the dissent to United States action in Vietnam was
subjected to little legal attack. Possibly the most celebrated
governmental action, the prosecution of Dr. Spock and four others for
conspiring to counsel, aid, and abet persons to evade or to refuse
obligations under the Selective Service System, failed to reach the
Supreme Court.\67\ Aside from a comparatively minor case,\68\ the
Court's sole encounter with a Vietnam War protest allegedly involving
protected ``symbolic conduct'' was United States v. O'Brien.\69\ That
case affirmed a conviction and upheld a congressional prohibition
against destruction of draft registration certificates; O'Brien had
publicly burned his card. ``We cannot accept the view that an apparently
limitless variety of conduct can be labeled `speech' whenever the person
engaging in the conduct intends thereby to express an idea. However,
even on the assumption that the alleged communicative element in
O'Brien's conduct is sufficient to bring into play the First Amendment,
it does not necessarily follow that the destruction of a registration
certificate is constitutionally protected activity. This Court has held
that when `speech' and `nonspeech' elements are combined in the same
course of conduct, a sufficiently important governmental interest in
regulating the nonspeech element can justify incidental limitations on
[[Page 1080]]
First Amendment freedoms.''\70\ Finding that the Government's interest
in having registrants retain their cards at all times was an important
one and that the prohibition of destruction of the cards worked no
restriction of First Amendment freedoms broader than that needed to
serve the interest, the Court upheld the statute. More recently, the
Court upheld a ``passive enforcement'' policy singling out for
prosecution for failure to register for the draft those young men who
notified authorities of an intention not to register for the draft and
those reported by others.\71\
\66\Supra, pp.1036-38.
\67\United States v. Spock, 416 F.2d 165 (1st Cir. 1969).
\68\In Schacht v. United States, 398 U.S. 58 (1970), the Court
reversed a conviction under 18 U.S.C. Sec. 702 for wearing a military
uniform without authority. The defendant had worn the uniform in a skit
in an on-the-street anti-war demonstration, and 10 U.S.C. Sec. 772(f)
authorized the wearing of a military uniform in a ``theatrical
production'' so long as the performance did not ``tend to discredit''
the military. This last clause the Court held unconstitutional as an
invalid limitation of freedom of speech.
\69\391 U.S. 367 (1968).
\70\Id. at 376-77. For recent cases with suggestive language,
see Snepp v. United States, 444 U.S. 507 (1980); Haig v. Agee, 453 U.S.
280 (1981).
\71\Wayte v. United States, 470 U.S. 598 (1985). The incidental
restriction on First Amendment rights to speak out against the draft was
no greater than necessary to further the government's interests in
``prosecutorial efficiency,'' obtaining sufficient proof prior to
prosecution, and promoting general deterrence (or not appearing to
condone open defiance of the law). See also United States v. Albertini,
472 U.S. 675 (1985) (order banning a civilian from entering military
base valid as applied to attendance at base open house by individual
previously convicted of destroying military property).
---------------------------------------------------------------------------
Suppression of Communist Propaganda in the Mails.--A 1962
statute authorizing the Post Office Department to retain all mail from
abroad which was determined to be ``communist political propaganda'' and
to forward it to an addressee only upon his request was held
unconstitutional in Lamont v. Postmaster General.\72\ The Court held
that to require anyone to request receipt of mail determined to be
undesirable by the Government was certain to deter and inhibit the
exercise of First Amendment rights to receive information.\73\
Distinguishing Lamont, the Court in 1987 upheld statutory classification
as ``political propaganda'' of communications or expressions by or on
behalf of foreign governments, foreign ``principals,'' or their agents,
and reasonably adapted or intended to influence United States foreign
policy.\74\ ``The physical detention of materials, not their mere
designation as `communist political propaganda,' was the offending
element of the statutory scheme [in Lamont].''\75\
\72\381 U.S. 301 (1965). The statute, Pub. L. 87-793, Sec. 305,
76 Stat. 840, was the first federal law ever struck down by the Court as
an abridgment of the First Amendment speech and press clauses.
\73\Id. at 307. Justices Brennan, Harlan, and Goldberg
concurred, spelling out in some detail the rationale of the protected
right to receive information as the basis for the decision.
\74\Meese v. Keene, 481 U.S. 465 (1987).
\75\Id. at 480.
---------------------------------------------------------------------------
Exclusion of Certain Aliens as a First Amendment Problem.--While
a nonresident alien might be able to present no claim, based on the
First Amendment or on any other constitutional provision, to overcome a
governmental decision to exclude him from the country, it was arguable
that United States citizens who could
[[Page 1081]]
assert a First Amendment interest in hearing the alien and receiving
information from him, such as the right recognized in Lamont, could be
able to contest such exclusion.\76\ But the Court declined to reach the
First Amendment issue and to place it in balance when it found that a
governmental refusal to waive a statutory exclusion\77\ was on facially
legitimate and neutral grounds; the Court's emphasis, however, upon the
``plenary'' power of Congress over admission or exclusion of aliens
seemed to indicate where such a balance might be drawn.\78\
\76\The right to receive information has been prominent in the
rationale of several cases, e.g., Martin v. City of Struthers, 319 U.S.
141 (1943); Thomas v. Collins, 323 U.S. 516 (1945); Stanley v. Georgia,
394 U.S. 557 (1969).
\77\By Sec. Sec. 212(a)(28)(D) and (G) of the Immigration and
Nationality Act of 1952, 8 U.S.C. Sec. Sec. 1182(a)(28)(D) and (G),
aliens who advocate or write and publish ``the economic, international,
and governmental doctrines of world communism'' are made ineligible to
receive visas and are thus excluded from the United States. Upon the
recommendation of the Secretary of State, however, the Attorney General
is authorized to waive these provisions and to admit such an alien
temporarily into the country. INA Sec. 212(d)(3)(A), 8 U.S.C.
Sec. 1182(d)(3)(A).
\78\Kleindienst v. Mandel, 408 U.S. 753 (1972).
---------------------------------------------------------------------------
FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Particular Governmental Regulations Which Restrict Expression
Government adopts and enforces many measures which are designed
to further a valid interest but which may have restrictive effects upon
freedom of expression. As an employer, government is interested in
attaining and maintaining full production from its employees in a
harmonious environment. As enforcer of the democratic method of carrying
out selection of public officials, it is interested in outlawing
``corrupt practices'' and promoting a fair and smoothly-functioning
electoral process. As regulator of economic affairs, its interests are
extensive. As educator, it desires to impart knowledge and training to
the young with as little distraction as possible. All of these interests
may be achieved with some restriction upon expression, but if the
regulation goes too far expression may be abridged and the regulation
will fail.\79\
\79\Highly relevant in this and subsequent sections dealing with
governmental incidental restraints upon expression is the distinction
the Court has drawn between content-based and content-neutral
regulations, a distinction designed to ferret out those regulations
which indeed serve other valid governmental interests from those which
in fact are imposed because of the content of the expression reached.
Compare Police Department v. Mosley, 408 U.S. 92 (1972); Erznoznik v.
City of Jacksonville, 422 U.S. 205 (1975); and Schacht v. United States,
398 U.S. 58 (1970), with Greer v. Spock, 424 U.S. 828 (1976); Civil
Service Commission v. National Association of Letter Carriers, 413 U.S.
548 (1973); and United States v. O'Brien, 391 U.S. 367 (1968). Content-
based regulations are subjected to strict scrutiny, while content-
neutral regulations are not.
---------------------------------------------------------------------------
Government as Employer: Political Activities.--Abolition of the
``spoils system'' in federal employment brought with it con
[[Page 1082]]
sequent restrictions upon political activities by federal employees. In
1876, federal employees were prohibited from requesting from, giving to,
or receiving from any other federal employee money for political
purposes, and the Civil Service Act of 1883 more broadly forbade civil
service employees to use their official authority or influence to coerce
political action of any person or to interfere with elections.\80\ By
the Hatch Act, federal employees, and many state employees as well, are
forbidden to ``take any active part in political management or in
political campaigns.''\81\ As applied through the regulations and
rulings of the Office of Personnel Management, formerly the Civil
Service Commission, the Act prevents employees from running for public
office, distributing campaign literature, playing an active role at
political meetings, circulating nomination petitions, attending a
political convention except as a spectator, publishing a letter
soliciting votes for a candidate, and all similar activity.\82\ The
question is whether government, which may not prohibit citizens in
general from engaging in these activities, may nonetheless so control
the off-duty activities of its own employees.
\80\Ch. 287, 19 Stat. 169, Sec. 6, 18 U.S.C. Sec. Sec. 602-03,
sustained in Ex parte Curtis, 106 U.S. 371 (1882); Ch. 27, 22 Stat. 403,
as amended, 5 U.S.C. Sec. 7323.
\81\Ch. 410, 53 Stat. 1148 Sec. 9(a), (1939), as amended, 5
U.S.C. Sec. 7324(a)(2). By Ch. 640, 54 Stat. 767 (1940), as amended, 5
U.S.C. Sec. Sec. 1501-08, the restrictions on political activity were
extended to state and local governmental employees working in programs
financed in whole or in part with federal funds. This provision was
sustained against federalism challenges in Oklahoma v. Civil Service
Comm'n, 330 U.S. 127 (1947). All the States have adopted laws patterned
on the Hatch Act. See Broadrick v. Oklahoma, 413 U.S. 601, 604 (1973).
\82\The Commission on Political Activity of Government
Personnel, Findings and Recommendations 11, 19-24 (Washington: 1968).
---------------------------------------------------------------------------
In United Public Workers v. Mitchell,\83\ the Court answered in
the affirmative. While the Court refused to consider the claims of
persons who had not yet engaged in forbidden political activities, it
did rule against a mechanical employee of the Mint who had done so. The
opinion of the Court, by Justice Reed, recognized that the restrictions
of political activities imposed by the Act did in some measure impair
First Amendment and other constitutional rights,\84\ but it placed its
decision upon the established principle that no right is absolute. The
standard by which the Court judged the validity of the permissible
impairment of First Amendment rights, however, was a due process
standard of reasonableness.\85\ Thus, changes in the standards of
judging incidental restrictions on expression suggested the possibility
of a reconsideration of Mitch
[[Page 1083]]
ell.\86\ But a divided Court, reaffirming Mitchell, sustained the Act's
limitations upon political activity against a range of First Amendment
challenges.\87\ It emphasized that the interest of the Government in
forbidding partisan political activities by its employees was so
substantial that it overrode the rights of those employees to engage in
political activities and association;\88\ therefore, a statute which
barred in plain language a long list of activities would be clearly
valid.\89\ The issue in Letter Carriers, however, was whether the
language Congress did enact, forbidding employees to take ``an active
part in political management or in political campaigns,'' was
unconstitutional on its face, either because the statute was too
imprecise to allow government employees to determine what was forbidden
and what was permitted, or because the statute swept in under its
coverage conduct that Congress could not forbid as well as conduct
subject to prohibition or regulation. In respect to vagueness,
plaintiffs contended and the lower court had held that the quoted
proscription was inadequate to provide sufficient guidance and that the
only further elucidation Congress had provided was to enact that the
forbidden activities were the same activities which the Commission had
as of 1940, and reaching back to 1883, ``determined are at the time of
the passage of this act prohibited on the part of employees . . . by the
provisions of the civil-service rules. . . .'' This language had been
included, it was contended, to deprive the Commission of power to alter
thousands of rulings made by it which were not available to employees
and which were in any event mutually inconsistent and too broad.
\83\330 U.S. 75, 94-104 (1947). The decision was 4-to-3, with
Justice Frankfurter joining the Court on the merits only after arguing
the Court lacked jurisdiction.
\84\Id. at 94-95.
\85\Id. at 101, 102.
\86\The Act was held unconstitutional by a divided three-judge
district court. National Ass'n of Letter Carriers v. Civil Service
Comm'n, 346 F. Supp. 578 (D.D.C. 1972).
\87\Civil Service Comm'n v. National Ass'n of Letter Carriers,
413 U.S. 548 (1973). In Broadrick v. Oklahoma, 413 U.S. 601 (1973), the
Court refused to consider overbreadth attacks on a state statute of much
greater coverage because the plaintiffs had engaged in conduct that the
statute could clearly constitutionally proscribe.
\88\The interests recognized by the Court as served by the
proscription on partisan activities were (1) the interest in the
efficient and fair operation of governmental activities and the
appearance of such operation, (2) the interest in fair elections, and
(3) the interest in protecting employees from improper political
influences. 413 U.S. at 557-67.
\89\Id. at 556.
---------------------------------------------------------------------------
The Court held, on the contrary, that Congress had intended to
confine the Commission to the boundaries of its rulings as of 1940 but
had further intended the Commission by a process of case-by-case
adjudication to flesh out the prohibition and to give content to it.
That the Commission had done. It had regularly summarized in
understandable terms the rules which it applied, and it was authorized
as well to issue advisory opinions to employees un
[[Page 1084]]
certain of the propriety of contemplated conduct. ``[T]here are
limitations in the English language with respect to being both specific
and manageably brief,'' said the Court, but it thought the prohibitions
as elaborated in Commission regulations and rulings were ``set out in
terms that the ordinary person exercising ordinary common sense can
sufficiently understand and comply with, without sacrifice to the public
interests.''\90\ There were conflicts, the Court conceded, between some
of the things forbidden and some of the protected expressive activities,
but these were at most marginal. Thus, some conduct arguably protected
did under some circumstances so partake of partisan activities as to be
properly proscribable. But the Court would not invalidate the entire
statute for this degree of overbreadth.\91\ More recently, in Bush v.
Lucas\92\ the Court held that the civil service laws and regulations are
sufficiently ``elaborate [and] comprehensive'' so as to afford federal
employees adequate remedy for deprivation of First Amendment rights as a
result of disciplinary actions by supervisors, and that therefore there
is no need to create an additional judicial remedy for the
constitutional violation.
\90\Id. at 578-79.
\91\Id. at 580-81.
\92\462 U.S. 367 (1983).
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Government as Employer: Free Expression Generally.--Change has
occurred in many contexts, in the main with regard to state and local
employees and with regard to varying restrictions placed upon such
employees. Foremost among the changes has been the general disregarding
of the ``right-privilege'' distinction. Application of that distinction
to the public employment context was epitomized in the famous sentence
of Justice Holmes: ``The petitioner may have a constitutional right to
talk politics, but he has no constitutional right to be a
policeman.''\93\ The Supreme Court embraced this application in the
early 1950s, first affirming a lower court decision by equally divided
vote,\94\ and soon after applying the distinction itself. Upholding a
prohibition on employment as
[[Page 1085]]
teachers of persons who advocated the desirability of overthrowing the
government, the Court declared that ``[i]t is clear that such persons
have the right under our law to assemble, speak, think and believe as
they will. . . . It is equally clear that they have no right to work for
the state in the school system on their own terms. They may work for the
school system under reasonable terms laid down by the proper authorities
of New York. If they do not choose to work on such terms, they are at
liberty to retain their beliefs and associations and go elsewhere. Has
the State thus deprived them of any right to free speech or assembly? We
think not.''\95\
\93\McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29
N.E. 517 (1892).
\94\Bailey v. Richardson, 182 F. 2d 46, 59 (D.C. Cir. 1950),
aff'd by an equally divided Court, 341 U.S. 918 (1951). The appeals
court majority, upholding the dismissal of a government employee against
due process and First Amendment claims, asserted that ``the plain hard
fact is that so far as the Constitution is concerned there is no
prohibition against the dismissal of Government employees because of
their political beliefs, activities or affiliations. . . . The First
Amendment guarantees free speech and assembly, but it does not guarantee
Government employ.'' Although the Supreme Court issued no opinion in
Bailey, several Justices touched on the issues in Joint Anti-Fascist
Refugee Committee v. McGrath, 341 U.S. 123 (1951). Justices Douglas and
Jackson in separate opinions rejected the privilege doctrine as applied
by the lower court in Bailey. Id. at 180, 185. Justice Black had
previously rejected the doctrine in United Public Workers v. Mitchell,
330 U.S. 75, 105 (1947) (dissenting opinion).
\95\Adler v. Board of Education, 342 U.S. 458, 492-93 (1952).
Justices Douglas and Black dissented, again rejecting the privilege
doctrine. Id. at 508. Justice Frankfurter, who dissented on other
grounds, had previously rejected the doctrine in another case, Garner v.
Board of Public Works, 341 U.S. 716, 725 (1951) (concurring in part and
dissenting in part).
---------------------------------------------------------------------------
The same year, however, saw the express rejection of the right-
privilege doctrine in another loyalty case. Voiding a loyalty oath
requirement conditioned on mere membership in suspect organizations, the
Court reasoned that the interest of public employees in being free of
such an imposition was substantial. ``There can be no dispute about the
consequences visited upon a person excluded from public employment on
disloyalty grounds. In the view of the community, the stain is a deep
one; indeed, it has become a badge of infamy. . . . [W]e need not pause
to consider whether an abstract right to public employment exists. It is
sufficient to say that constitutional protection does extend to the
public servant whose exclusion pursuant to a statute is patently
arbitrary or discriminatory.''\96\ The premise here that if removal or
rejection injures one in some fashion he is therefore entitled to raise
constitutional claims against the dismissal or rejection has faded in
subsequent cases; the rationale now is that while government may deny
employment, or any benefit for that matter, for any number of reasons,
it may not deny employment or other benefits on a basis that infringes
that person's constitutionally protected interests. ``For if the
government could deny a benefit to a person because of his
constitutionally protected speech or associations, his exercise of those
freedoms would in effect be penalized and inhibited. This would allow
the government to `produce a result which [it] could not command
directly.' . . . Such interference with constitutional rights is
impermissible.''\97\
\96\Wieman v. Updegraff, 344 U.S. 183, 190-91, 192 (1952). Some
earlier cases had utilized a somewhat qualified statement of the
privilege. United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947);
Garner v. Board of Public Works, 341 U.S. 716, 722 (1951).
\97\Perry v. Sindermann, 408 U.S. 593, 597 (1972). In a
companion case, the Court noted that the privilege basis for the appeals
court's due process holding in Bailey ``has been thoroughly undermined
in the ensuing years.'' Board of Regents v. Roth, 408 U.S. 564, 571 n.9
(1972). The test now in due process and other such cases is whether
government has conferred a property right in employment which it must
respect, see infra, pp. 1622-31, but the inquiry when it is alleged that
an employee has been penalized for the assertion of a constitutional
right is that stated in the text. A finding, however, that protected
expression or conduct played a substantial part in the decision to
dismiss or punish does not conclude the case; the employer may show by a
preponderance of the evidence that the same decision would have been
reached in the absence of the protected expression or conduct. Mt.
Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Givhan v.
Western Line Consol. Sch. Dist., 439 U.S. 410, 416 (1979).
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[[Page 1086]]
However, the fact that government does not have carte blanche in
dealing with the constitutional rights of its employees does not mean it
has no power at all. ``[I]t 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
regulation of the speech of the citizenry in general.''\98\ Pickering
concerned the dismissal of a high school teacher who had written a
critical letter to a local newspaper reflecting on the administration of
the school system. The letter also contained several factual errors.
``The problem in any case,'' Justice Marshall wrote for the Court, ``is
to arrive at a balance between 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 performs through its employees.''\99\ No general standard
was laid down by the Court, but a suggestive analysis was undertaken.
Dismissal of a public employee for criticism of his superiors was
improper, the Court indicated, where the relationship of employee to
superior was not so close, such as day-to-day personal contact, that
problems of discipline or of harmony among coworkers, or problems of
personal loyalty and confidence, would arise.\100\ The school board had
not shown that any harm had resulted from the false statements in the
letter, and it could not proceed on the assumption that the false
statements were per se harmful, inasmuch as the statements primarily
reflected a difference of opinion between the teacher and the board
about the allocation of funds. Moreover, the allocation of funds is a
matter of important public concern about which teachers have informed
and definite opinions that the community should be aware of. ``In these
circumstances we conclude that the interest of the school adminis
[[Page 1087]]
tration in limiting teachers' opportunities to contribute to public
debate is not significantly greater than its interest in limiting a
similar contribution by any member of the general public.''\101\
\98\Pickering v. Board of Education, 391 U.S. 563, 568 (1968).
\99\Id.
\100\Id. at 568-70. Contrast Connick v. Myers, 461 U.S. 138
(1983), where Pickering was distinguished on the basis that the
employee, an assistant district attorney, worked in an environment where
a close personal relationship involving loyalty and harmony was
important. ``When close working relationships are essential to
fulfilling public responsibilities, a wide degree of deference to the
employer's judgment is appropriate.'' Id. at 151-52.
\101\Id. at 570-73. Pickering was extended to private
communications of an employee's views to the employer in Givhan v.
Western Line Consol. Sch. Dist., 439 U.S. 410 (1979), although the Court
recognized that different considerations might arise in context. That
is, with respect to public speech, content may be determinative in
weighing impairment of the government's interests, whereas with private
speech, manner, time, and place of delivery may be as or more important.
Id. at 415 n.4.
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Combining a balancing test of governmental interest and employee
rights with a purportedly limiting statutory construction, the Court, in
Arnett v. Kennedy,\102\ sustained the constitutionality of a provision
of federal law authorizing removal or suspension without pay of an
employee ``for such cause as will promote the efficiency of the
service'' when the ``cause'' cited concerned speech by the employee. He
had charged that his superiors had made an offer of a bribe to a private
person. The quoted statutory phrase, the Court held, ``is without doubt
intended to authorize dismissal for speech as well as other conduct.''
But, recurring to its Letter Carriers analysis,\103\ it noted that the
authority conferred was not impermissibly vague, inasmuch as it is not
possible to encompass within a statutory enactment all the myriad
situations that arise in the course of employment and the language used
was informed by developed principles of agency adjudication coupled with
a procedure for obtaining legal counsel from the agency on the
interpretation of the law.\104\ Neither was the language overbroad,
continued the Court, because it ``proscribes only that public speech
which improperly damages and impairs the reputation and efficiency of
the employing agency, and it thus imposes no greater controls on the
behavior of federal employees than are necessary for the protection of
the Government as an employer. . . . We hold that the language `such
cause as will promote the efficiency of the service' in the Act excludes
constitutionally protected speech, and that the statute is therefore not
overbroad.''\105\
\102\416 U.S. 134 (1974). The quoted language is from 5 U.S.C.
Sec. 7501(a).
\103\Civil Service Comm'n v. National Ass'n of Letter Carriers,
413 U.S. 548, 578-79 (1973).
\104\Arnett v. Kennedy, 416 U.S. 134, 158-64 (1974).
\105\Id. at 162. In dissent, Justice Marshall argued: ``The
Court's answer is no answer at all. To accept this response is
functionally to eliminate overbreadth from the First Amendment lexicon.
No statute can reach and punish constitutionally protected speech. The
majority has not given the statute a limiting construction but merely
repeated the obvious.'' Id. at 229.
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Pickering was distinguished in Connick v. Myers,\106\ involving
what the Court characterized in the main as an employee grievance
[[Page 1088]]
rather than an effort to inform the public on a matter of public
concern. The employee, an assistant district attorney involved in a
dispute with her supervisor over transfer to a different section, was
fired for insubordination after she circulated a questionnaire among her
peers soliciting views on matters relating to employee morale. This
firing the Court found permissible. ``When employee expression cannot be
fairly considered as relating to any matter of political, social, or
other concern to the community, government officials should enjoy wide
latitude in managing their offices, without intrusive oversight by the
judiciary in the name of the First Amendment.''\107\ Whether an
employee's speech addresses a matter of public concern, the Court
indicated, must be determined not only by its content, but also by its
form and context.\108\ Because one aspect of the employee's speech did
raise matters of public concern, Connick also applied Pickering's
balancing test, holding that ``a wide degree of deference is
appropriate'' when ``close working relationships'' between employer and
employee are involved.\109\ The issue of public concern is not only a
threshold inquiry, but under Connick still figures in the balancing of
interests: ``the State's burden in justifying a particular discharge
varies depending upon the nature of the employee's expression'' and its
importance to the public.\110\
\106\461 U.S. 138 (1983).
\107\461 U.S. at 146. Connick was a 5-4 decision, with Justice
White's opinion of the Court being joined by Chief Justice Burger and
Justices Powell, Rehnquist, and O'Connor. Justice Brennan, joined by
Justices Marshall, Blackmun, and Stevens, dissented, arguing that
information concerning morale at an important government office is a
matter of public concern, and that the Court extended too much deference
to the employer's judgment as to disruptive effect. Id. at 163-65.
\108\Id. at 147-48. Justice Brennan objected to this
introduction of context, admittedly of interest in balancing interests,
into the threshold issue of public concern.
\109\Id. at 151-52.
\110\Id. at 150. The Court explained that ``a stronger showing
[of interference with governmental interests] may be necessary if the
employee's speech more substantially involve[s] matters of public
concern.'' Id. at 152.
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On the other hand, the Court has indicated that an employee's
speech may be protected as relating to matters of public concern even in
the absence of any effort or intent to inform the public.\111\ In Rankin
v. McPherson\112\ the Court held protected an employee's comment, made
to a coworker upon hearing of an unsuccessful attempt to assassinate the
President, and in a context critical of the
[[Page 1089]]
President's policies, ``If they go for him again, I hope they get him.''
Indeed, the Court in McPherson emphasized the clerical employee's lack
of contact with the public in concluding that the employer's interest in
maintaining the efficient operation of the office (including public
confidence and good will) was insufficient to outweigh the employee's
First Amendment rights.\113\
\111\This conclusion was implicit in Givhan, supra n.101,
characterized by the Court in Connick as involving ``an employee
speak[ing] out as a citizen on a matter of general concern, not tied to
a personal employment dispute, but [speaking] privately.'' 461 U.S. at
148 n.8.
\112\483 U.S. 378 (1987). This was a 5-4 decision, with Justice
Marshall's opinion of the Court being joined by Justices Brennan,
Blackmun, Powell, and Stevens, and with Justice Scalia's dissent being
joined by Chief Justice Rehnquist, and by Justices White and O'Connor.
Justice Powell added a separate concurring opinion.
\113\``Where . . . an employee serves no confidential,
policymaking, or public contact role, the danger to the agency's
successful function from that employee's private speech is minimal.''
483 U.S. at 390-91.
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Thus, although the public employer cannot muzzle its employees
or penalize them for their expressions and associations to the same
extent that a private employer can (the First Amendment, inapplicable to
the private employer, is applicable to the public employer),\114\ the
public employer nonetheless has broad leeway in restricting employee
speech. If the employee speech does not relate to a matter of ``public
concern,'' then Connick applies and the employer is largely free of
constitutional restraint. If the speech does relate to a matter of
public concern, then Pickering's balancing test (as modified by Connick)
is employed, the governmental interests in efficiency, workplace
harmony, and the satisfactory performance of the employee's duties\115\
being balanced against the employee's First Amendment rights. While the
general approach is relatively easy to describe, it has proven difficult
to apply.\116\ The First Amendment, however, does not stand alone in
protecting the
[[Page 1090]]
speech of public employees; statutory protections for ``whistleblowers''
add to the mix.\117\
\114\See, e.g., Elrod v. Burns, 427 U.S. 347 (1976), and Branti
v. Finkel, 445 U.S. 507 (1980) (political patronage systems
impermissibly infringe protected belief and associational rights of
employees); Madison School Dist. v. WERC, 429 U.S. 167 (1977) (school
teacher may not be prevented from speaking at a public meeting in
opposition to position advanced by union with exclusive representation
rights). The public employer may, as may private employers, permit
collective bargaining and confer on representatives of its employees the
right of exclusive representation, Abood v. Detroit Bd. of Educ., 431
U.S. 209, 223-32 (1977), but the fact that its employees may speak does
not compel government to listen to them. See Smith v. Arkansas State
Highway Employees, 441 U.S. 463 (1979) (employees have right to
associate to present their positions to their employer but employer not
constitutionally required to engage in collective bargaining). See also
Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271
(1984) (public employees not members of union have no First Amendment
right to meet separately with public employers compelled by state law to
``meet and confer'' with exclusive bargaining representative).
Government may also inquire into the fitness of its employees and
potential employees, but it must do so in a manner that does not
needlessly endanger the expression and associational rights of those
persons. See, e.g., Shelton v. Tucker, 364 U.S. 479 (1969).
\115\In some contexts, the governmental interest is more far-
reaching. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980)
(interest in protecting secrecy of foreign intelligence sources).
\116\For analysis of the efforts of lower courts to apply
Pickering and Connick, see Massaro, Significant Silences: Freedom of
Speech in the Public Sector Workplace, 61 S. Cal. L. Rev. 1 (1987); and
Allred, From Connick to Confusion: The Struggle to Define Speech on
Matters of Public Concern, 64 Ind. L.J. 43 (1988).
\117\The principal federal law is the Whistleblower Protection
Act of 1989, Pub. L. No. 101-12, 103 Stat. 16, 5 U.S.C. Sec. 1201 et
seq.
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Government as Educator.--While the Court had previously made
clear that students in public schools were entitled to some
constitutional protection\118\ and that minors generally were not
outside the range of constitutional protection,\119\ its first attempt
to establish standards of First Amendment expression guarantees against
curtailment by school authorities came in Tinker v. Des Moines
Independent Community School District.\120\ There, high school
principals had banned the wearing of black armbands by students in
school as a symbol of protest against United States actions in Viet Nam.
Reversing the refusal of lower courts to reinstate students who had been
suspended for violating the ban, the Court set out the balance to be
drawn. ``First Amendment rights, applied in light of the special
characteristics of the school environment, are available to teachers and
students. It can hardly be argued that either students or teachers shed
their constitutional rights to freedom of speech or expression at the
school house gate. . . . On the other hand, the Court has repeatedly
emphasized the need for affirming the comprehensive authority of the
States and of school officials, consistent with fundamental
constitutional safeguards, to prescribe and control conduct in the
schools.''\121\ Restriction on expression by school authorities is only
permissible to prevent disruption of educational discipline. ``In order
for the State in the person of school officials to justify prohibition
of a particular expression of opinion, it must be able to show that its
action was caused by something more than a mere desire to avoid the
discomfort and unpleasantness that always accompany an unpopular
viewpoint. Certainly where there is no finding and no showing that
engaging in the forbidden conduct would `materially and substantially
interfere with the requirements of appropriate discipline in the
operation of the school,' the prohibition cannot be sustained.''\122\
\118\West Virginia State Board of Education v. Barnette, 319
U.S. 624 (1943) (flag salute); Meyer v. Nebraska, 262 U.S. 390 (1923)
(limitation of language curriculum to English); Pierce v. Society of
Sisters, 268 U.S. 510 (1925) (compulsory school attendance in public
rather than choice of public or private schools).
\119\In re Gault, 387 U.S. 1 (1967). Of course, children are in
a number of respects subject to restrictions which would be
impermissible were adults involved. E.g., Ginsberg v. New York, 390 U.S.
629 (1968); Rowan v. Post Office Dept., 397 U.S. 728 (1970) (access to
objectionable and perhaps obscene materials).
\120\393 U.S. 503 (1969).
\121\Id. at 506, 507.
\122\Id. at 509. The internal quotation is from Burnside v.
Byars, 363 F.2d 744, 749 (5th Cir. 1966). See also Papish v. Board of
Curators, 410 U.S. 667 (1973) (state university could not expel a
student for using ``indecent speech'' in campus newspaper). However,
offensive ``indecent'' speech in the context of a high school assembly
is punishable by school authorities. See Bethel School Dist. No. 403 v.
Fraser, 478 U.S. 675 (1986) (upholding 2-day suspension, and withdrawal
of privilege of speaking at graduation, for student who used sophomoric
sexual metaphor in speech given to school assembly).
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[[Page 1091]]
Tinker was reaffirmed by the Court in Healy v. James,\123\ in
which it held that the withholding of recognition by a public college
administration from a student organization violated the students' right
of association, which is a construct of First Amendment liberties.
Denial of recognition, the Court held, was impermissible if it had been
based on the local organization's affiliation with the national SDS, or
on disagreement with the organization's philosophy, or on a fear of
disruption with no evidentiary support. ``First Amendment rights must
always be applied `in light of the special characteristics of the . . .
environment' in the particular case. . . . And, where state-operated
educational institutions are involved, this Court has long recognized
`the need for affirming the comprehensive authority of the States and of
school officials, consistent with fundamental constitutional safeguards,
to prescribe and control conduct in the schools.'. . . Yet, the
precedents of this Court leave no room for the view that, because of the
acknowledged need for order, First Amendment protections should apply
with less force on college campuses than in the community at large.
Quite to the contrary, `[t]he vigilant protection of constitutional
freedoms is nowhere more vital than in the community of American
schools.' . . . The college classroom with its surrounding environs is
peculiarly the `market place of ideas' and we break no new
constitutional ground in reaffirming this Nation's dedication to
safeguarding academic freedom.''\124\ But a college may impose
reasonable regulations to maintain order and preserve an atmosphere in
which learning may take place, and it may impose as a condition of
recognition that each organization affirm in advance its willingness to
adhere to reasonable campus law.\125\
\123\408 U.S. 169 (1972).
\124\Id. at 180. The internal quotations are from Tinker, 393
U.S. 503, 506, 507 (1969), and from Shelton v. Tucker, 364 U.S. 479, 487
(1960).
\125\Healy v. James, 408 U.S. at 193. Because a First Amendment
right was in issue, the burden was on the college to justify its
rejection of a request for recognition rather than upon the requesters
to justify affirmatively their right to be recognized. Id. at 184.
Justice Rehnquist concurred in the result, because in his view a school
administration could impose upon students reasonable regulations that
would be impermissible if imposed by the government upon all citizens;
consequently, cases cited by the Court which had arisen in the latter
situation he did not think controlling. Id. at 201. See also Grayned v.
City of Rockford, 408 U.S. 104 (1972), in which the Court upheld an
antinoise ordinance that forbade persons on grounds adjacent to a school
to willfully make noise or to create any other diversion during school
hours that ``disturbs or tends to disturb'' normal school activities.
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[[Page 1092]]
While a public college may not be required to open its
facilities generally for use by student groups, once it has done so it
must justify any discriminations and exclusions under applicable
constitutional norms, such as those developed under the public forum
doctrine. Thus, it was constitutionally impermissible for a college to
close off its facilities, otherwise open, to students wishing to engage
in religious speech.\126\ To be sure, a decision to permit access by
religious groups had to be evaluated under First Amendment religion
standards, but equal access did not violate the religion clauses.
Compliance with stricter state constitutional provisions on church-state
was a substantial interest, but it could not justify a content-based
discrimination in violation of the First Amendment speech clause.\127\
By enactment of the Equal Access Act in 1984,\128\ Congress applied the
same ``limited open [public] forum'' principles to public high schools,
and the Court upheld the Act against First Amendment challenge.\129\
\126\Widmar v. Vincent, 454 U.S. 263 (1981).
\127\Id. at 270-76. Whether the holding extends beyond the
college level to students in high school or below who are more
``impressionable'' and perhaps less able to appreciate that equal access
does not compromise the school's neutrality toward religion, id. at 274
n.14, is unclear. See Brandon v. Board of Education, 635 F.2d 971 (2d
Cir. 1980), cert. denied, 454 U.S. 1123 (1981).
\128\Pub. L. No. 98-377, title VII, 98 Stat. 1302, 20 U.S.C.
Sec. Sec. 4071-74.
\129\Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226
(1990). There was no opinion of the Court on the Establishment Clause
holding. A plurality opinion, id. at 247-53, rejected Justice Marshall's
contention, id. at 263, that compulsory attendance and other structured
aspects of the particular high school setting in Mergens differed so
significantly from the relatively robust, open college setting in Widmar
as to suggest state endorsement of religion.
---------------------------------------------------------------------------
When faced with another conflict between a school system's
obligation to inculcate community values in students and the expression
rights of those students, the Court splintered badly, remanding for full
trial a case challenging the authority of a school board to remove
certain books from high school and junior high school libraries.\130\ In
dispute were the school board's reasons for removing the books--whether,
as the board alleged, because of vulgarity and other content-neutral
reasons, or whether also because of political disagreement with
contents. The plurality conceded that school boards must be permitted
``to establish and apply their curriculum in such a way as to transmit
community values,'' and that ``there is a legitimate and substantial
community interest in promoting respect for authority and traditional
values be they social, moral, or political.'' At the same time, the
plurality thought that students retained substantial free expression
protections and that among these was the right to receive information
and ideas. Carefully limiting its discussion to the removal of books
from a school library,
[[Page 1093]]
thereby excluding acquisition of books as well as questions of school
curricula, the plurality would hold a school board constitutionally
disabled from removing library books in order to deny access to ideas
with which it disagrees for political reasons.\131\ The four dissenters
basically rejected the contention that school children have a protected
right to receive information and ideas and thought that the proper role
of education was to inculcate the community's values, a function into
which the federal courts could rarely intrude.\132\ The decision
provides little guidance to school officials and to the lower courts and
assures a revisiting of the controversy by the Supreme Court.
\130\Board of Education v. Pico, 457 U.S. 853 (1982).
\131\Id. 862, 864-69, 870-72. Only Justices Marshall and Stevens
joined fully Justice Brennan's opinion. Justice Blackmun joined it for
the most part with differing emphases. Id. at 875. Justice White
refrained from joining any of the opinions but concurred in the result
solely because he thought there were unresolved issues of fact that
required a trial. Id. at 883.
\132\The principal dissent was by Justice Rehnquist. Id. at 904.
See also id. at 885 (Chief Justice Burger), 893 (Justice Powell), 921
(Justice O'Connor).
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Tinker was distinguished in Hazelwood School Dist. v.
Kuhlmeier,\133\ the Court relying on public forum analysis to hold that
editorial control and censorship of a student newspaper sponsored by a
public high school need only be ``reasonably related to legitimate
pedagogical concerns.''\134\ ``The question whether the First Amendment
requires a school to tolerate particular student speech--the question
that we addressed in Tinker--is different from the question whether the
First Amendment requires a school affirmatively to promote particular
student speech.''\135\ The student newspaper had been created by school
officials as a part of the school curriculum, and served ``as a
supervised learning experience for journalism students.'' Because no
public forum had been created, school officials could maintain editorial
control subject only to a reasonableness standard. Thus, a principal's
decisions to excise from the publication an article describing student
pregnancy in a manner believed inappropriate for younger students, and
another article on divorce critical of a named parent, were upheld.
\133\484 U.S.260 (1988).
\134\Id. at 273.
\135\Id. at 270-71.
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The category of school-sponsored speech subject to Kuhlmeier
analysis appears to be far broader than the category of student
expression still governed by Tinker. School-sponsored activities, the
Court indicated, can include ``publications, theatrical productions, and
other expressive activities that students, parents, and members of the
public might reasonably perceive to bear the imprimatur of the school.
These activities may fairly be characterized as part of the school
curriculum, whether or not they occur in a tradi
[[Page 1094]]
tional classroom setting, so long as they are supervised by faculty
members and designed to impart particular knowledge or skills to student
participants and audiences.''\136\ Because most primary, intermediate,
and secondary school environments are tightly structured, with few
opportunities for unsupervised student expression,\137\ Tinker
apparently has limited applicability. It may be, for example, that
students are protected for off-premises production of ``underground''
newspapers (but not necessarily for attempted distribution on school
grounds) as well as for non-disruptive symbolic speech. For most student
speech at public schools, however, Tinker's tilt in favor of student
expression, requiring school administrators to premise censorship on
likely disruptive effects, has been replaced by Kuhlmeier's tilt in
favor of school administrators' pedagogical discretion.\138\
\136\Id. at 271. Selection of materials for school libraries may
fall within this broad category, depending upon what is meant by
``designed to impart particular knowledge or skills.'' See generally
Stewart, The First Amendment, the Public Schools, and the Inculcation of
Community Values, 18 J. Law & Educ. 23 (1989).
\137\The Court in Kuhlmeier declined to decide ``whether the
same degree of deference is appropriate with respect to school-sponsored
expressive activities at the college and university level.'' 484 U.S. at
274 n.7.
\138\One exception may exist for student religious groups
covered by the Equal Access Act; in this context the Court seemed to
step back from Kuhlmeier's broad concept of curriculum-relatedness,
seeing no constitutionally significant danger of perceived school
sponsorship of religion arising from application of the Act's
requirement that high schools provide meeting space for student
religious groups on the same basis that they provide such space for
student clubs. Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226
(1990).
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Governmental regulation of the school and college administration
can also implicate the First Amendment. But the Court dismissed as too
attenuated a claim to a First Amendment-based academic freedom privilege
to withhold peer review materials from EEOC subpoena in an investigation
of a charge of sex discrimination in a faculty tenure decision.\139\
\139\University of Pennsylvania v. EEOC, 493 U.S. 182 (1990).
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Government as Regulator of the Electoral Process: Elections.--
Government has increasingly regulated the electoral system by which
candidates are nominated and elected, requiring disclosure of
contributions and expenditures, limiting contributions and expenditures,
and imposing other regulations.\140\ These regula-
\140\The basic federal legislation regulating campaign finances
is spread over several titles of the United States Code. The relevant,
principal modern laws are the Federal Election Campaign Act of 1971, 86
Stat. 3, as amended by the Federal Election Campaign Act Amendments of
1974, 88 Stat. 1263, and the Federal Election Campaign Act Amendments of
1979, 93 Stat. 1339, 2 U.S.C. 431 et seq., and sections of Titles 18 and
26. The Federal Corrupt Practices Act of 1925, 43 Stat. 1074, was upheld
in Burroughs v. United States, 290 U.S. 534 (1934), but there was no
First Amendment challenge. All States, of course, extensively regulate
elections.
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[[Page 1095]]
tions restrict freedom of expression, which comprehends the rights
to join together for political purposes, to promote candidates and
issues, and to participate in the political process.\141\ The Court
is divided with respect to many of these federal and state
restrictions, but when government acts to bar or penalize political
speech directly the Justices are united. Thus, when Kentucky
attempted to void an election on the grounds that the winner's
campaign promise to serve at a lower salary than that affixed to the
office violated a law prohibiting candidates from offering material
benefits to voters in consideration for their votes, the Court ruled
unanimously that the state's action violated the First
Amendment.\142\ Similarly, California could not prohibit official
governing bodies of political parties from endorsing or opposing
candidates in primary elections.\143\
\141\See, e.g., Mills v. Alabama, 384 U.S. 214, 218-19 (1966);
Buckley v. Valeo, 424 U.S. 1, 14, 19 (1976); First National Bank of
Boston v. Bellotti, 435 U.S. 765, 776-78 (1978); Brown v. Hartlage, 456
U.S. 45, 52-54 (1982).
\142\Brown v. Hartlage, 456 U.S. 45 (1982). See also Mills v.
Alabama, 384 U.S. 214 (1966) (setting aside a conviction and voiding a
statute which punished electioneering or solicitation of votes for or
against any proposition on the day of the election, applied to
publication of a newspaper editorial on election day supporting an issue
on the ballot); Vanasco v. Schwartz, 401 F. Supp. 87 (E.D.N.Y. 1975)
(three-judge court), aff'd, 423 U.S. 1041 (1976) (statute barring
malicious, scurrilous, and false and misleading campaign literature is
unconstitutionally overbroad).
\143\Eu v. San Francisco County Democratic Central Comm., 489
U.S. 214 (1989). Cf. Burson v. Freeman, 112 S. Ct. 1846 (1992)
(upholding Tennessee law prohibiting solicitation of votes and
distribution of campaign literature within 100 feet of the entrance to a
polling place; plurality found a ``compelling'' interest in preventing
voter intimidation and election fraud).
---------------------------------------------------------------------------
In 1971 and 1974, Congress imposed new and stringent regulation
of and limitations on contributions to and expenditures by political
campaigns, as well as disclosure of most contributions and expenditures,
setting the stage for the landmark Buckley v. Valeo decision probing the
scope of protection afforded political activities by the First
Amendment.\144\ In basic unanimity, but with several Justices feeling
that the sustained provisions trenched on protected expression, the
Court sustained the contribution and disclosure sections of the statute
but voided the limitations on expenditures.\145\
\144\424 U.S. 1 (1976).
\145\The Court's lengthy opinion was denominated per curiam, but
five Justices filed separate opinions.
---------------------------------------------------------------------------
``Discussion of public issues and debate on the qualifications
of candidates are integral to the operation of the system of government
established by our Constitution. . . . A restriction on the amount of
money a person or group can spend on political communication during a
campaign necessarily reduces the quantity of expression by restricting
the number of issues discussed, the depth
[[Page 1096]]
of their exploration, and the size of the audience reached.''\146\ The
expenditure of money in political campaigns may involve speech alone,
conduct alone, or mixed speech-conduct, the Court noted, but all forms
of it involve communication, and when governmental regulation is aimed
directly at suppressing communication it matters not how that
communication is defined. As such, the regulation must be subjected to
close scrutiny and justified by compelling governmental interests. When
this process was engaged in, the contribution limitations, with some
construed exceptions, survived, but the expenditure limitation did not.
\146\Id. at 14, 19.
---------------------------------------------------------------------------
The contribution limitation was sustained as imposing only a
marginal restriction upon the contributor's ability to engage in free
communication, inasmuch as the contribution is a generalized expression
of support for a candidate but it is not a communication of reasons for
the support; ``the size of the contribution provides a very rough index
of the intensity of the contributors' support for the candidate.''\147\
The political expression really occurs when the funds are spent by a
candidate; only if the restrictions were set so low as to impede this
communication would there arise a constitutional infringement. This
incidental restraint upon expression may therefore be justified by
Congress' purpose to limit the actuality and appearance of corruption
resulting from large individual financial contributions.\148\
\147\Id. at 21.
\148\Id. at 14-38. Chief Justice Burger and Justice Blackmun
would have struck down the contribution limitations. Id. at 235, 241-46,
290. See also California Medical Ass'n v. FEC, 453 U.S. 182 (1981),
sustaining a provision barring individuals and unincorporated
associations from contributing more than $5,000 per year to any
multicandidate political action committee, on the basis of the standards
applied to contributions in Buckley; and FEC v. National Right to Work
Committee, 459 U.S. 197 (1982), sustaining a provision barring nonstock
corporations from soliciting contributions from persons other than their
members when the corporation uses the funds for designated federal
election purposes.
---------------------------------------------------------------------------
Of considerable importance to the analysis of the validity of
the limitations on contributions was the Court's conclusion voiding a
section restricting to $1,000 a year the aggregate expenditure anyone
could make to advocate the election or defeat of a ``clearly identified
candidate.'' Though the Court treated the restricted spending as purely
an expenditure it seems to partake equally of the nature of a
contribution on behalf of a candidate that is not given to the candidate
but that is spent on his behalf. ``Advocacy of the election or defeat of
candidates for federal office is no less entitled to protection under
the First Amendment than the discussion of political policy generally or
advocacy of the passage or de
[[Page 1097]]
feat of legislation.''\149\ The Court found that none of the
justifications offered in support of a restriction on such expression
was adequate; independent expenditures did not appear to pose the
dangers of corruption that contributions did and it was an impermissible
purpose to attempt to equalize the ability of some individuals and
groups to express themselves by restricting the speech of other
individuals and groups.\150\
\149\Id. at 48.
\150\Id. at 39-51. Justice White dissented. Id. at 257. In an
oblique return to the right-privilege distinction, the Court agreed that
Congress could condition receipt of public financing funds upon
acceptance of expenditure limitations. Id. at 108-09. In Common Cause v.
Schmitt, 512 F. Supp. 489 (D.C. 1980), aff'd by an equally divided
Court, 455 U.S. 129 (1982), a provision was invalidated which limited
independent political committees to expenditures of no more than $1,000
to further the election of any presidential candidate who received
public funding. An equally divided affirmance is of limited precedential
value. When the validity of this provision, 26 U.S.C. Sec. 9012(f), was
again before the Court in 1985, the Court invalidated it by vote of 7-2.
FEC v. National Conservative Political Action Comm., 470 U.S. 480
(1985). In an opinion by Justice Rehnquist, the Court determined that
the governmental interest in preventing corruption or the appearance of
corruption was insufficient justification for restricting the First
Amendment rights of committees interested in making independent
expenditures on behalf of a candidate, since ``the absence of
prearrangement and coordination undermines the value of the expenditure
to the candidate, and thereby alleviates the danger that expenditures
will be given as a quid pro quo for improper commitments from the
candidate.'' Id. at 498.
---------------------------------------------------------------------------
Similarly, limitations upon the amount of funds a candidate
could spend out of his own resources or those of his immediate family
were voided. A candidate, no less than any other person, has a First
Amendment right to advocate.\151\ The limitations upon total
expenditures by candidates seeking nomination or election to federal
office could not be justified: the evil associated with dependence on
large contributions was met by limitations on contributions, the purpose
of equalizing candidate financial resources was impermissible, and the
First Amendment did not permit government to determine that expenditures
for advocacy were excessive or wasteful.\152\
\151\Id. at 51-54. Justices Marshall and White disagreed with
this part of the decision. Id. at 286.
\152\Id. at 54-59. The reporting and disclosure requirements
were sustained. Id. at 60-84. See supra, pp.1063-64.
---------------------------------------------------------------------------
Although the Court in Buckley upheld the Act's reporting and
disclosure requirements, it indicated that under some circumstances the
First Amendment might require exemption for minor parties able to show
``a reasonable probability that the compelled disclosure of a party's
contributors' names will subject them to threats, harassment, or
reprisals from either Government officials or private parties.''\153\
This standard was applied both to disclosure of contributors' names and
to disclosure of recipients of
[[Page 1098]]
campaign expenditures in Brown v. Socialist Workers '74 Campaign
Committee,\154\ in which the Court held that the minor party had
established the requisite showing of likely reprisals through proof of
past governmental and private hostility and harassment. Disclosure of
recipients of campaign expenditures, the Court reasoned, could not only
dissuade supporters and workers who might receive reimbursement for
expenses, but could also dissuade various entities from performing
routine commercial services for the party and thereby ``cripple a minor
party's ability to operate effectively.''\155\
\153\424 U.S. at 74.
\154\459 U.S. 87 (1982).
\155\Id. at 97-98.
---------------------------------------------------------------------------
Outside the context of contributions to candidates, however, the
Court has not been convinced of the justifications for limiting such
uses of money for political purposes. Thus, a municipal ordinance
regulating the maximum amount that could be contributed to or accepted
by an association formed to take part in a city referendum was
invalidated.\156\ While Buckley had sustained limits on contributions as
a prophylactic measure to prevent corruption or its appearance, no risk
of corruption was found in giving or receiving funds in connection with
a referendum. Similarly, the Court invalidated a criminal prohibition on
payment of persons to circulate petitions for a ballot initiative.\157\
\156\Citizens Against Rent Control v. City of Berkeley, 454 U.S.
290 (1980). It is not clear from the opinion whether the Court was
applying a contribution or an expenditure analysis to the ordinance, see
id. at 301 (Justice Marshall concurring), or whether in this context it
makes any difference.
\157\Meyer v. Grant, 486 U.S. 414 (1988).
---------------------------------------------------------------------------
Venturing into the area of the constitutional validity of
governmental limits upon political spending or contributions by
corporations, a closely-divided Court struck down a state law that
prohibited corporations from expending funds in order to influence
referendum votes on any measure save proposals that materially affected
corporate business, property, or assets. The free discussion of
governmental affairs ``is the type of speech indispensable to
decisionmaking in a democracy,'' the Court said, ``and this is no less
true because the speech comes from a corporation rather than an
individual''\158\ It is the nature of the speech, not the status of the
speaker, that is relevant for First Amendment analysis, thus allowing
the Court to pass by the question of the rights a corporate person may
have. The ``materially affecting'' requirement was found to
[[Page 1099]]
be an impermissible proscription of speech based on content and identity
of interests. The ``exacting scrutiny'' that restrictions on speech must
pass was not satisfied by any of the justifications offered and the
Court in any event found some of them impermissible.
\158\First National Bank of Boston v. Bellotti, 435 U.S. 765
(1978). Justice Powell wrote the opinion of the Court. Dissenting,
Justices White, Brennan, and Marshall argued that while corporations
were entitled to First Amendment protection, they were subject to more
regulation than were individuals, and substantial state interests
supported the restrictions. Id. at 802. Justice Rehnquist went further
in dissent, finding no corporate constitutional protection. Id. at 822.
---------------------------------------------------------------------------
Bellotti called into some question the constitutionality of the
federal law that makes it unlawful for any corporation or labor union
``to make a contribution or expenditure in connection with any
election'' for federal office or ``in connection with any primary
election or political convention or caucus held to select candidates''
for such office.\159\ Three times the opportunity has arisen for the
Court to assess the validity of the statute and each time it has passed
it by.\160\ One of the dissents in Bellotti suggested its application to
the federal law, but the Court saw several distinctions.\161\
\159\2 U.S.C. Sec. 441b. The provision began as Sec. 313 of the
Federal Corrupt Practices Act of 1925, 43 Stat. 1074, prohibiting
contributions by corporations. It was made temporarily applicable to
labor unions in the War Labor Disputes Act of 1943, 57 Stat. 167, and
became permanently applicable in Sec. 304 of the Taft-Hartley Act. 61
Stat. 159.
\160\All three cases involved labor unions and were decided on
the basis of statutory interpretation, apparently informed with some
constitutional doubts. United States v. CIO, 335 U.S. 106 (1948); United
States v. United Automobile Workers, 352 U.S. 567 (1957); Pipefitters v.
United States, 407 U.S. 385 (1972).
\161\First National Bank of Boston v. Bellotti, 435 U.S. 765,
811-12 (1978) (Justice White dissenting). The Court emphasized that
Bellotti was a referendum case, not a case involving corporate
expenditures in the context of partisan candidate elections, in which
the problem of corruption of elected representatives was a weighty
problem. ``Congress might well be able to demonstrate the existence of a
danger of real or apparent corruption in independent expenditures by
corporations to influence candidate elections.'' Id. at 787-88 & n.26.
---------------------------------------------------------------------------
Other aspects of the federal provision have been interpreted by
the Court. First, in FEC v. National Right to Work Committee,\162\ the
Court unanimously upheld section 441b's prohibition on corporate
solicitation of money from corporate nonmembers for use in federal
elections. Relying on Bellotti for the proposition that government may
act to prevent ``both actual corruption and the appearance of corruption
of elected representatives,'' the Court concluded that ``there is no
reason why . . . unions, corporations, and similar organizations [may
not be] treated differently from individuals.''\163\ However, an
exception to this general principle was recognized by a divided Court in
FEC v. Massachusetts Citizens for Life, Inc.,\164\ holding the section's
independent expenditure limitations (not limiting expenditures but
requiring only that such expendi
[[Page 1100]]
tures be financed by voluntary contributions to a separate segregated
fund) unconstitutional as applied to a corporation organized to promote
political ideas, having no stockholders, and not serving as a front for
a ``business corporation'' or union. One of the rationales for the
special rules on corporate participation in elections--elimination of
``the potential for unfair deployment of [corporate] wealth for
political purposes''--has no applicability to such a corporation
``formed to disseminate political ideas, not to amass capital.''\165\
The other principal rationale--protection of corporate shareholders and
other contributors from having their money used to support political
candidates to whom they may be opposed--was also deemed inapplicable.
The Court distinguished National Right to Work Committee because
``restrictions on contributions require less compelling justification
than restrictions on independent spending,'' and also explained that,
``given a contributor's awareness of the political activity of [MCFL],
as well as the readily available remedy of refusing further donations,
the interest protecting contributors is simply insufficient to support
Sec. 441b's restriction on . . . independent spending.''\166\ What the
Court did not address directly was whether the same analysis could have
led to a different result in National Right to Work Committee.\167\
\162\459 U.S. 197 (1982).
\163\459 U.S. at 210-11.
\164\479 U.S. 238 (1986). Justice Brennan's opinion for the
Court was joined by Justices Marshall, Powell, O'Connor, and Scalia;
Chief Justice Rehnquist, author of the Court's opinion in National Right
to Work Comm., dissented from the constitutional ruling, and was joined
by Justices White, Blackmun, and Stevens.
\165\479 U.S. at 259.
\166\Id. at 259-60, 262.
\167\The Court did not spell out whether there was any
significant distinction between the two organizations, NRWC and MCFL;
Chief Justice Rehnquist's dissent suggested that there was not. See id.
at 266.
---------------------------------------------------------------------------
Clarification of Massachusetts Citizens for Life was afforded by
Austin v. Michigan State Chamber of Commerce,\168\ in which the Court
upheld application to a nonprofit corporation of Michigan's restrictions
on independent expenditures by corporations. The Michigan law, like
federal law, prohibited such expenditures from corporate treasury funds,
but allowed them to be made from separate ``segregated'' funds. This
arrangement, the Court decided, serves the state's compelling interest
in assuring that corporate wealth, accumulated with the help of special
advantages conferred by state law, does not unfairly influence
elections. The law was sufficiently ``narrowly tailored'' because it
permits corporations to make independent political expenditures through
segregated funds that ``accurately reflect contributors' support for the
corporation's political views.''\169\ Also, the Court concluded that the
Chamber of Commerce was unlike the MCFL in each of the three
distinguishing features that had justified an exemption from operation
of the federal law. Unlike MCFL, the Chamber was not organized solely
[[Page 1101]]
to promote political ideas; although it had no stockholders, the
Chamber's members had similar disincentives to forego benefits of
membership in order to protest the Chamber's political expression; and,
by accepting corporate contributions, the Chamber could serve as a
conduit for corporations to circumvent prohibitions on direct corporate
contributions and expenditures.\170\
\168\494 U.S. 652 (1990).
\169\Id. at 660-61.
\170\Id. at 661-65.
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Government as Regulator of the Electoral Process: Lobbying.--
Inasmuch as legislators may be greatly dependent upon representations
made to them and information supplied to them by interested parties,
legislators may desire to know what the real interests of those parties
are, what groups or persons they represent, and other such information.
But everyone is constitutionally entitled to write his congressman or
his state legislator, to encourage others to write or otherwise contact
legislators, and to make speeches and publish articles designed to
influence legislators. Conflict is inherent. In the Federal Regulation
of Lobbying Act,\171\ Congress by broadly phrased and ambiguous language
seemed to require detailed reporting and registration by all persons who
solicited, received, or expended funds for purposes of lobbying, that is
to influence congressional action directly or indirectly. In United
States v. Harriss,\172\ the Court, stating that it was construing the
Act to avoid constitutional doubts,\173\ interpreted covered lobbying as
meaning only direct attempts to influence legislation through direct
communication with members of Congress.\174\ So construed, the Act was
constitutional; Congress had ``merely provided for a modicum of
information from those who for hire attempt to influence legislation or
who collect or spend funds for that purpose,'' and this was simply a
measure of ``self-protection.''\175\
\171\Ch. 753, 60 Stat 812, 839 (1946), 2 U.S.C. Sec. Sec. 261-
70.
\172\347 U.S. 612 (1954).
\173\Id. at 623.
\174\Id. at 617-624.
\175\Id. at 625. Justices Douglas, Black, and Jackson dissented.
Id. at 628, 633. They thought the Court's interpretation too narrow and
would have struck the statute down as being too broad and too vague, but
would not have denied Congress the power to enact narrow legislation to
get at the substantial evils of the situation. See also United States v.
Rumely, 345 U.S. 41 (1953).
---------------------------------------------------------------------------
Other statutes and governmental programs affect lobbying and
lobbying activities. It is not impermissible for the Federal Government
to deny a business expense tax deduction for money spent to defeat
legislation which would adversely affect one's business.\176\ But the
antitrust laws may not be applied to a concert of business enterprises
that have joined to lobby the legislative branch to pass and the
executive branch to enforce laws which would have a det
[[Page 1102]]
rimental effect upon competitors, even if the lobbying was conducted
unethically.\177\ On the other hand, allegations that competitors
combined to harass and deter others from having free and unlimited
access to agencies and courts by resisting before those bodies all
petitions of competitors for purposes of injury to competition are
sufficient to implicate antitrust principles.\178\
\176\Cammarano v. United States, 358 U.S. 498 (1959).
\177\Eastern R.R. Presidents Conference v. Noerr Motor Freight,
365 U.S. 127 (1961). See also UMW v. Pennington, 381 U.S. 657, 669-71
(1965).
\178\California Motor Transport Co. v. Trucking Unlimited, 404
U.S. 508 (1972). Justices Stewart and Brennan thought that joining to
induce administrative and judicial action was as protected as the
concert in Noerr but concurred in the result because the complaint could
be read as alleging that defendants sought to forestall access to
agencies and courts by plaintiffs. Id. at 516.
---------------------------------------------------------------------------
Government as Regulator of Labor Relations.--Numerous problems
may arise in this area,\179\ but the issue here considered is the
balance to be drawn between the free speech rights of an employer and
the statutory rights of his employees to engage or not engage in
concerted activities free of employer coercion, which may well include
threats or promises or other oral or written communications. The Court
has upheld prohibitions against employer interference with union
activity through speech so long as the speech is coercive,\180\ and that
holding has been reduced to statutory form.\181\ Nonetheless, there is a
First Amendment tension in this area, with its myriad variations of
speech forms that may be denominated ``predictions,'' especially since
determination whether particular utterances have an impermissible impact
on workers is vested with an agency with no particular expertise in the
protection of freedom of expression.\182\
\179\E.g., the speech and associational rights of persons
required to join a union, Railway Employees Dep't v. Hanson, 351 U.S.
225 (1956); International Ass'n of Machinists v. Street, 367 U.S. 740
(1961); and see Abood v. Detroit Bd. of Educ. 431 U.S. 209 (1977)
(public employees), restrictions on picketing and publicity campaigns,
Babbitt v. United Farm Workers, 442 U.S. 289 (1979), and application of
collective bargaining laws in sensitive areas, NLRB v. Yeshiva Univ.,
444 U.S. 672 (1980) (faculty collective bargaining in private
universities); NLRB v. Catholic Bishop, 440 U.S. 490 (1979) (collective
bargaining in religious schools).
\180\NLRB v. Virginia Electric & Power Co., 314 U.S. 469 (1941).
\181\Ch. 120, 61 Stat, 142, Sec. 8(c) (1947), 29 U.S.C.
Sec. 158(c).
\182\Cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 616-20
(1969).
---------------------------------------------------------------------------
Government as Investigator: Journalist's Privilege.--News
organizations have claimed that the First Amendment status of the press
compels a recognition by government of an exception to the ancient rule
that every citizen owes to his government a duty to give what testimony
he is capable of giving.\183\ The argument for a limited exemption to
permit journalists to conceal their sources and to keep confidential
certain information they obtain
[[Page 1103]]
and choose at least for the moment not to publish was rejected in
Branzburg v. Hayes\184\ by a closely divided Court. ``Fair and effective
law enforcement aimed at providing security for the person and property
of the individual is a fundamental function of government, and the grand
jury plays an important, constitutionally mandated role in this process.
On the records now before us, we perceive no basis for holding that the
public interest in law enforcement and in ensuring effective grand jury
proceedings is insufficient to override the consequential, but
uncertain, burden on news gathering which is said to result from
insisting that reporters, like other citizens, respond to relevant
questions put to them in the course of a valid grand jury investigation
or criminal trial.''\185\ Not only was it uncertain to what degree
confidential informants would be deterred from providing information,
said Justice White for the Court, but the conditional nature of the
privilege claimed might not mitigate the deterrent effect, leading to
claims for an absolute privilege. Confidentiality could be protected by
the secrecy of grand jury proceedings and by the experience of law
enforcement officials in themselves dealing with informers. Difficulties
would arise as well in identifying who should have the privilege and who
should not. But the principal basis of the holding was that the
investigation and exposure of criminal conduct was a governmental
function of such importance that it overrode the interest of newsmen in
avoiding the incidental burden on their newsgathering activities
occasioned by such governmental inquiries.\186\
\183\8 J. Wigmore, Evidence 2192 (3d ed. 1940). See Blair v.
United States, 250 U.S. 273, 281 (1919); United States v. Bryan, 339
U.S. 323, 331 (1950).
\184\408 U.S. 665 (1972). ``The claim is, however, that
reporters are exempt from these obligations because if forced to respond
to subpoenas and identify their sources or disclose other confidences,
their informants will refuse or be reluctant to furnish newsworthy
information in the future. This asserted burden on news gathering is
said to make compelled testimony from newsmen constitutionally suspect
and to require a privileged position for them.'' Id. at 682.
\185\Id. at 690-91.
\186\Chief Justice Burger and Justices Blackmun, Powell, and
Rehnquist joined the Court's opinion. Justice Powell also submitted a
concurring opinion in which he suggested that newsmen might be able to
assert a privilege of confidentiality if in each individual case they
demonstrated that responding to the governmental inquiry at hand would
result in a deterrence of First Amendment rights and privilege and that
the governmental interest asserted was entitled to less weight than
their interest. Id. at 709. Justice Stewart dissented, joined by
Justices Brennan and Marshall, and argued that the First Amendment
required a privilege which could only be overcome by a governmental
showing that the information sought is clearly relevant to a precisely
defined subject of inquiry, that it is reasonable to think that the
witness has that information, and that there is not any means of
obtaining the information less destructive of First Amendment liberties.
Id. at 725. Justice Douglas also dissented. Id. at 711.
The courts have construed Branzburg as recognizing a limited
privilege which must be balanced against other interests. See In re
Pennington, 224 Kan. 573, 581 P.2d 812 (1978), cert. denied, 440 U.S.
929 (1979); Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979);
United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980); cf. United
States v. Criden, 633 F.2d 346 (3d Cir. 1980).
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[[Page 1104]]
The Court observed that Congress and the States were free to
develop by statute privileges for reporters as narrowly or as broadly as
they chose; while efforts in Congress failed, many States have enacted
such laws.\187\ The assertion of a privilege in civil cases has met with
mixed success in the lower courts, the Supreme Court having not yet
confronted the issue.\188\
\187\At least 26 States have enacted some form of journalists'
shield law. E.g., Cal. Evid. Code Sec. 1070; N.J. Rev. Stat. 2A:84A-21,
21a, -29. The reported cases evince judicial hesitancy to give effect to
these statutes. See, e.g., Farr v. Pitchess, 522 F. 2d 464 (9th Cir.
1975), cert. denied, 427 U.S. 912 (1976); Rosato v. Superior Court, 51
Cal. App. 3d 190, 124 Cal. Rptr. 427 (1975), cert. denied, 427 U.S. 912
(1976). The greatest difficulty these laws experience, however, is the
possibility of a constitutional conflict with the Fifth and Sixth
Amendment rights of criminal defendants. See Matter of Farber, 78 N.J.
259, 394 A. 2d 330, cert. denied sub. nom., New York Times v. New
Jersey, 439 U.S. 997 (1978). See also New York Times v. Jascalevich, 439
U.S. 1301, 1304, 1331 (1978) (applications to Circuit Justices for
stay), and id. at 886 (vacating stay).
\188\E.g., Baker v. F. & F. Investment Co., 470 F.2d 778 (2d
Cir. 1972), cert. denied, 411 U.S. 966 (1973); Democratic National Comm.
v. McCord, 356 F. Supp. 1394 (D.D.C. 1973).
---------------------------------------------------------------------------
Nor does the status of an entity as a newspaper (or any other
form of news medium) protect it from issuance and execution on probable
cause of a search warrant for evidence or other material properly sought
in a criminal investigation.\189\ The press had argued that to permit
searches of newsrooms would threaten the ability to gather, analyze, and
disseminate news, because searches would be disruptive, confidential
sources would be deterred from coming forward with information because
of fear of exposure, reporters would decline to put in writing their
information, and internal editorial deliberations would be exposed. The
Court thought that First Amendment interests were involved, although it
seemed to doubt that the consequences alleged would occur, but it
observed that the built-in protections of the warrant clause would
adequately protect those interests and noted that magistrates could
guard against abuses when warrants were sought to search newsrooms by
requiring particularizations of the type, scope, and intrusiveness that
would be permitted in the searches.\190\
\189\Zurcher v. Stanford Daily, 436 U.S. 547, 563-67 (1978).
Justice Powell thought it appropriate that ``a magistrate asked to issue
a warrant for the search of press offices can and should take cognizance
of the independent values protected by the First Amendment'' when he
assesses the reasonableness of a warrant in light of all the
circumstances. Id. at 568 (concurring). Justices Stewart and Marshall
would have imposed special restrictions upon searches when the press was
the object, id. at 570 (dissenting), and Justice Stevens dissented on
Fourth Amendment grounds. Id. at 577.
\190\Congress has enacted the Privacy Protection Act of 1980,
Pub. L. No. 96-440, 94 Stat. 1879, 42 U.S.C. Sec. 2000aa, to protect the
press and other persons having material intended for publication from
federal or state searches in specified circumstances, and creating
damage remedies for violations.
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[[Page 1105]]
Government and the Conduct of Trials.--Conflict between
constitutionally protected rights is not uncommon. One of the most
difficult to resolve is the conflict between a criminal defendant's
Fifth and Sixth Amendment rights to a fair trial and the First
Amendment's protection of the rights to obtain and publish information
about defendants and trials. Convictions obtained in the context of
prejudicial pre-trial publicity\191\ and during trials that were media
``spectaculars''\192\ have been reversed, but the prevention of such
occurrences is of paramount importance to the governmental and public
interest in the finality of criminal trials and the successful
prosecution of criminals. However, the imposition of ``gag orders'' on
press publication of information directly confronts the First Amendment
bar on prior restraints,\193\ although the courts have a good deal more
discretion in preventing the information from becoming public in the
first place.\194\ Perhaps the most profound debate that has arisen in
recent years concerns the right of access of the public and the press to
trial and pre-trial proceedings, and in those cases the Court has
enunciated several important theorems of First Amendment interpretation.
\191\Irvin v. Dowd, 366 U.S. 717 (1961); Rideau v. Louisiana,
373 U.S. 723 (1963).
\192\Sheppard v. Maxwell, 384 U.S. 333 (1966); compare Estes v.
Texas, 381 U.S. 532 (1965), with Chandler v. Florida, 449 U.S. 560
(1981).
\193\Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976).
\194\See, e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030
(1991) (disciplinary rules restricting extrajudicial comments by
attorneys are void for vagueness, but such attorney speech may be
regulated if it creates a ``substantial likelihood of material
prejudice'' to the trial of a client); Seattle Times Co. v. Rhinehart,
467 U.S. 20 (1984) (press, as party to action, restrained from
publishing information obtained through discovery).
---------------------------------------------------------------------------
When the Court held that the Sixth Amendment right to a public
trial did not guarantee access of the public and the press to pre-trial
suppression hearings,\195\ a major debate flowered that implicated all
the various strands of the extent to which, if at all, the speech and
press clauses protected the public and the press in seeking to attend
trials.\196\ The right of access to criminal trials against the wishes
of the defendant was held protected in Richmond Newspapers v.
Virginia,\197\ but the Justices could not agree upon a majority
rationale that would permit principled application of the holding to
other areas in which access is sought.
\195\Gannett Co. v. DePasquale, 443 U.S. 368 (1979).
\196\DePasquale rested solely on the Sixth Amendment, the Court
reserving judgment on whether there is a First Amendment right of public
access. 443 U.S. at 392.
\197\448 U.S. 555 (1980). The decision was 7-to-1, Justice
Rehnquist dissenting, id. at 604, and Justice Powell not participating.
Justice Powell, however, had taken the view in Gannett Co. v.
DePasquale, 443 U.S. 368, 397 (1979) (concurring), that the First
Amendment did protect access to trials.
---------------------------------------------------------------------------
[[Page 1106]]
Chief Justice Burger pronounced the judgment of the Court, but
his opinion was joined by only two other Justices (and one of them in a
separate concurrence drew conclusions probably going beyond the Chief
Justice's opinion).\198\ Basic to the Chief Justice's view was an
historical treatment which demonstrated that trials were traditionally
open. This openness, moreover, was no ``quirk of history'' but ``an
indispensable attribute of an Anglo-American trial.'' This
characteristic flowed from the public interest in seeing fairness and
proper conduct in the administration of criminal trials; the
``therapeutic value'' to the public of seeing its criminal laws in
operation, purging the society of the outrage felt with the commission
of many crimes, convincingly demonstrated why the tradition developed
and was maintained. Thus, ``a presumption of openness inheres in the
very nature of a criminal trial under our system of justice.'' The
presumption has more than custom to command it. ``[I]n the context of
trials . . . the First Amendment guarantees of speech and press,
standing alone, prohibit government from summarily closing courtroom
doors which had long been open to the public at the time that amendment
was adopted.''\199\
\198\See Richmond Newspapers v. Virginia, 448 U.S. 555, 582
(1980) (Justice Stevens concurring).
\199\Id. at 564-69. The emphasis on experience and history was
repeated by the Chief Justice in his opinion for the Court in Press-
Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise
II).
---------------------------------------------------------------------------
Justice Brennan, joined by Justice Marshall, followed a
significantly different route to the same conclusion. In his view, ``the
First Amendment . . . has a structural role to play in securing and
fostering our republican system of self-government.'' It preserves and
protects meaningful control over government through public discussion of
its operation, and government therefore is compelled to see to the
availability of information that people need to engage in that
meaningful discussion. Thus, there is in fact a right of access that
arises in the context of situations implicating self-government,
including, but not limited to, trials.\200\
\200\Id. at 585-93.
---------------------------------------------------------------------------
The trial court in Richmond Newspapers had made no findings of
necessity for closure, and neither Chief Justice Burger nor Justice
Brennan found the need to articulate a standard for determining when the
government's or the defendant's interests could outweigh the public
right of access. That standard was developed two years later. Globe
Newspaper Co. v. Superior Court\201\ involved a
[[Page 1107]]
statute, unique to one State, that mandated the exclusion of the public
and the press from trials during the testimony of a sex-crime victim
under the age of 18. For the Court, Justice Brennan wrote that the First
Amendment guarantees press and public access to criminal trials, both
because of the tradition of openness\202\ and because public scrutiny of
a criminal trial serves the valuable functions of enhancing the quality
and safeguards of the integrity of the factfinding process, of fostering
the appearance of fairness, and of permitting public participation in
the judicial process. The right is not absolute, but in order to close
all or part of a trial government must show that ``the denial is
necessitated by a compelling governmental interest, and [that it] is
narrowly tailored to serve that interest.''\203\ The Court was explicit
that the right of access was to criminal trials,\204\ so that the
question of the openness of civil trials remains.
\201\457 U.S. 596 (1982). Joining Justice Brennan's opinion of
the Court were Justices White, Marshall, Blackmun, and Powell. Justice
O'Connor concurred in the judgment. Chief Justice Burger, with Justice
Rehnquist, dissented, arguing that the tradition of openness that
underlay Richmond Newspapers, was absent with respect to sex crimes and
youthful victims and that Richmond Newspapers was unjustifiably
extended. Id. at 612. Justice Stevens dissented on mootness grounds. Id.
at 620.
\202\That there was no tradition of openness with respect to the
testimony of minor victims of sex crimes was irrelevant, the Court
argued. As a general matter, all criminal trials have been open. The
presumption of openness thus attaches to all criminal trials and to
close any particular kind or part of one because of a particular reason
requires justification on the basis of the governmental interest
asserted. Id. at 605 n.13.
\203\Id. at 606-07. Protecting the well-being of minor victims
was a compelling interest, the Court held, and might justify exclusion
in specific cases, but it did not justify a mandatory closure rule. The
other asserted interest, encouraging minors to come forward and report
sex crimes, was not well served by the statute.
\204\The Court throughout the opinion identifies the right as
access to criminal trials, even italicizing the word at one point. Id.
at 605.
---------------------------------------------------------------------------
The Court next applied and extended the right of access in
several other areas, striking down state efforts to exclude the public
from voir dire proceedings, from a suppression hearing, and from a
preliminary hearing. The Court determined in Press-Enterprise I\205\
that historically voir dire had been open to the public, and that
``[t]he presumption of openness may be overcome only by an overriding
interest based on findings that closure is essential to preserve higher
values and is narrowly tailored to serve that interest.''\206\ No such
findings had been made by the state court, which had ordered closed, in
the interest of protecting the privacy interests of some prospective
jurors, 41 of the 44 days of voir dire in a rape-murder case. The trial
court also had not considered the possibility of less restrictive
alternatives, e.g. in camera consideration of jurors' requests for
protection from publicity. In Waller v. Georgia,\207\ the Court held
that ``under the Sixth Amendment, any clo
[[Page 1108]]
sure of a suppression hearing over the objections of the accused\208\
must meet the tests set out in Press Enterprise,'' and noted that the
need for openness at suppression hearings ``may be particularly strong''
due to the fact that the conduct of police and prosecutor is often at
issue.\209\ And in Press Enterprise II,\210\ the Court held that there
is a similar First Amendment right of the public to access to most
criminal proceedings (here a preliminary hearing) even when the accused
requests that the proceedings be closed. Thus, an accused's Sixth
Amendment-based request for closure must meet the same stringent test
applied to governmental requests to close proceedings: there must be
``specific findings . . . demonstrating that first, there is a
substantial probability that the defendant's right to a fair trial will
be prejudiced by publicity that closure would prevent, and second,
reasonable alternatives to closure cannot adequately protect the
defendant's fair trial rights.''\211\ Openness of preliminary hearings
was deemed important because, under California law, the hearings can be
``the final and most important step in the criminal proceeding'' and
therefore may be ```the sole occasion for public observation of the
criminal justice system,''' and also because the safeguard of a jury is
unavailable at preliminary hearings.\212\
\205\Press-Enterprise Co. v. Superior Court, 464 U.S. 501
(1984).
\206\464 U.S. at 510.
\207\467 U.S. 39 (1984).
\208\Gannett Co. v. DePasquale, supra n., did not involve
assertion by the accused of his 6th Amendment right to a public trial;
instead, the accused in that case had requested closure. ``[T]he
constitutional guarantee of a public trial is for the benefit of the
defendant.'' DePasquale, 443 U.S. at 381.
\209\467 U.S. at 47.
\210\Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).
\211\Id. at 14.
\212\Id. at 12.
---------------------------------------------------------------------------
Government as Administrator of Prisons.--A prison inmate retains
only those First Amendment rights that are not inconsistent with his
status as a prisoner or with the legitimate penological objectives of
the corrections system.\213\ The identifiable governmental interests at
stake in administration of prisons are the preservation of internal
order and discipline, the maintenance of institutional security against
escape or unauthorized entry, and the rehabilitation of the
prisoners.\214\ In applying these general standards, the Court at first
arrived at somewhat divergent points in assessing prison restrictions on
mail and on face-to-face news interviews between newsmen and prisoners.
The Court's more recent deferential approach to regulation of prisoners'
mail has lessened the differences.
\213\Pell v. Procunier, 417 U.S. 817, 822 (1974).
\214\Procunier v. Martinez, 416 U.S. 396, 412 (1974).
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[[Page 1109]]
First, in Procunier v. Martinez,\215\ the Court invalidated mail
censorship regulations that permitted authorities to hold back or to
censor mail to and from prisoners whenever they thought that the letters
``unduly complain,'' ``express inflammatory . . . views or beliefs,'' or
were ``defamatory'' or ``otherwise inappropriate.'' The Court based this
ruling not on the rights of the prisoner, but instead on the outsider's
right to communicate with the prisoner either by sending or by receiving
mail. Under this framework, the Court held, regulation of mail must
further an important interest unrelated to the suppression of
expression; regulation must be shown to further the substantial interest
of security, order, and rehabilitation, and it must not be utilized
simply to censor opinions or other expressions. Further, a restriction
must be no greater than is necessary or essential to the protection of
the particular government interest involved.
\215\416 U.S. 396 (1974). But see Jones v. North Carolina
Prisoners' Union, 433 U.S. 119 (1977), in which the Court sustained,
while recognizing the First Amendment implications, prison regulations
barring solicitation of prisoners by other prisoners to join a union,
banning union meetings, and denying bulk mailings concerning the union
from outside sources. The reasonable fears of correctional officers that
organizational activities of the sort advocated by the union could
impair discipline and lead to possible disorders justified the
regulations.
---------------------------------------------------------------------------
However, in Turner v. Safley,\216\ the Court made clear that a
more deferential standard is applicable when only the communicative
rights of inmates are at stake. In upholding a Missouri rule barring
inmate-to-inmate correspondence, while striking down a prohibition on
inmate marriages absent compelling reason such as pregnancy or birth of
a child, the Court announced the appropriate standard. ``[W]hen a
regulation impinges on inmates' constitutional rights, the regulation is
valid if it is reasonably related to legitimate penological
interests.''\217\ Several considerations are appropriate in determining
reasonableness of a regulation. First, there must be a rational relation
to a legitimate, content-neutral objective. Prison security, broadly
defined, is one such objective.\218\ Availability of other avenues for
exercise of the inmate right suggests reasonableness. A further indicium
of reasonableness is present if accommodation would have a negative
effect on liberty or safety of guards or other inmates. On the other
hand, an alternative to regulation ``that fully accommodated the
prisoner's rights at de minimis cost to valid penological interests''
suggests
[[Page 1110]]
unreasonableness.\219\ Two years after Safley, the Court directly
limited Martinez, restricting it to regulation of outgoing
correspondence. In the Court's current view the needs of prison security
justify a more deferential standard for prison regulations restricting
incoming material, whether those incoming materials are correspondence
from other prisoners, correspondence from nonprisoners, or outside
publications.\220\
\216\482 U.S. 78 (1987).
\217\Id. at 89.
\218\All that is required is that the underlying governmental
objective be content neutral; the regulation itself may discriminate on
the basis of content. See Thornburgh v. Abbott, 490 U.S. 401 (1989)
(upholding Federal Bureau of Prisons regulation allowing prison
authorities to reject incoming publications found to be detrimental to
prison security).
\219\482 U.S. at 91.
\220\Thornburgh v. Abbott, 490 U.S. 401, 411-14 (1989).
---------------------------------------------------------------------------
Neither prisoners nor newsmen have any affirmative First
Amendment right to face-to-face interviews, when general public access
to prisons is restricted and when there are alternatives by which the
news media can obtain information respecting prison policies and
conditions.\221\ Prison restrictions on such interviews do indeed
implicate the First Amendment rights of prisoners, the Court held, but
the justification for the restraint lay in the implementation of
security arrangements, affected by the entry of persons into prisons,
and the carrying out of rehabilitation objectives, affected by the
phenomenon of the ``big wheel,'' the exploitation of access to the news
media by certain prisoners; alternatives to face-to-face interviews
existed, such as mail and visitation with family, attorneys, clergy, and
friends. The existence of alternatives and the presence of
justifications for the restraint served to weigh the balance against the
asserted First Amendment right, the Court held.\222\
\221\Pell v. Procunier, 417 U.S. 817 (1974). Justices Douglas,
Brennan, and Marshall dissented. Id. at 836.
\222\Id. at 829-35.
---------------------------------------------------------------------------
While agreeing with a previous affirmation that ``newsgathering
is not without some First Amendment protection,''\223\ the Court denied
that the First Amendment accorded newsmen any affirmative obligation on
the part of government. ``The First and Fourteenth Amendments bar
government from interfering in any way with a free press. The
Constitution does not, however, require government to accord the press
special access to information not shared by members of the public
generally.''\224\ Government has an obligation not to impair the freedom
of journalists to seek out newsworthy information, and not to restrain
the publication of news. But it cannot be argued, the Court continued,
``that the Constitution imposes upon government the affirmative
[[Page 1111]]
duty to make available to journalists sources of information not
available to members of the public generally.''\225\
\223\Branzburg v. Hayes, 408 U.S. 665, 707 (1972), quoted in
Pell v. Procunier, 417 U.S. 817, 833 (1974).
\224\Id. at 834.
\225\Id. The holding was applied to federal prisons in Saxbe v.
Washington Post, 417 U.S. 843 (1974). Dissenting, Justices Powell,
Brennan, and Marshall argued that an important societal function of the
First Amendment is to preserve free public discussion of governmental
affairs, that the press' role was to make this discussion informed
through providing the requisite information, and that the ban on face-
to-face interviews unconstitutionally fettered this role of the press.
Id. at 850.
---------------------------------------------------------------------------
Pell and Saxbe did not delineate whether the ``equal access''
rule applied only in cases in which there was public access, so that a
different rule for the press might follow when general access was
denied, nor did they purport to begin defining what the rules of equal
access are. No greater specificity emerged from Houchins v. KQED,\226\
in which the broadcaster had sued for access to a prison from which
public and press alike were barred and as to which there was
considerable controversy over conditions of incarceration. Following
initiation of the suit, the administrator of the prison authorized
limited public tours. The tours were open to the press, but cameras and
recording devices were not permitted, there was no opportunity to talk
to inmates, and the tours did not include the maximum security area
about which much of the controversy centered. The Supreme Court
overturned the injunction obtained in the lower courts, the plurality
reiterating that ``[n]either the First Amendment nor the Fourteenth
Amendment mandates a right of access to government information or
sources of information within the government's control. . . . [U]ntil
the political branches decree otherwise, as they are free to do, the
media have no special right of access to the Alameda County Jail
different from or greater than that accorded the public
generally.''\227\ Justice Stewart, whose vote was necessary to the
disposition of the case, agreed with the equal access holding but would
have approved an injunction more narrowly drawn to protect the press'
right to use cameras and recorders so as to enlarge public access to the
information.\228\ Thus, any question of special press access appears
settled by the decision; yet there still remain the questions raised
above. May everyone be barred from access and, once access is accorded,
does the Constitution necessitate any limitation on the discretion of
prison administrators?\229\
\226\438 U.S. 1 (1978). The decision's imprecision of meaning is
partly attributable to the fact that there was no opinion of the Court.
A plurality opinion represented the views of only three Justices; two
Justices did not participate, three Justices dissented, and one Justice
concurred with views that departed somewhat from the plurality.
\227\Id. at 15-16.
\228\Id. at 16.
\229\The dissenters, Justices Stevens, Brennan, and Powell,
believed that the Constitution protects the public's right to be
informed about conditions within the prison and that total denial of
access, such as existed prior to institution of the suit, was
unconstitutional. They would have sustained the more narrowly drawn
injunctive relief to the press on the basis that no member of the public
had yet sought access. Id. at 19. It is clear that Justice Stewart did
not believe the Constitution affords any relief. Id. at 16. While the
plurality opinion of the Chief Justice Burger and Justices White and
Rehnquist may be read as not deciding whether any public right of access
exists, overall it appears to proceed on the unspoken basis that there
is none. The second question, when Justice Stewart's concurring opinion
and the dissenting opinion are combined, appears to be answerable
qualifiedly in the direction of constitutional constraints upon the
nature of access limitation once access is granted.
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[[Page 1112]]
Government and Power of the Purse.--In exercise of the spending
power, Congress may refuse to subsidize exercise of First Amendment
rights, but it may not deny benefits solely on the basis of exercise of
these rights. The distinction between these two closely related
principles seemed, initially at least, to hinge on the severity and
pervasiveness of the restriction placed on exercise of First Amendment
rights. What has emerged is the principle that Congress may condition
the receipt of federal funds on acceptance of speech limitations on
persons working for the project receiving the federal funding--even if
the project also receives non-federal funds--provided that the speech
limitations do not extend to the use of nonfederal funds outside of the
federally funded project. In Regan v. Taxation With Representation,\230\
the Court held that Congress could constitutionally limit tax-exempt
status under Sec. 501(c)(3) of the Internal Revenue Code to charitable
organizations that do not engage in lobbying. ``Congress has merely
refused to pay for the lobbying out of public moneys,'' the Court
concluded.\231\ The effect of the ruling on the organization's lobbying
activities was minimal, however, since it could continue to receive tax-
deductible contributions by creating a separate affiliate to conduct the
lobbying. In FCC v. League of Women Voters,\232\ on the other hand, the
Court held that the First Amendment rights of public broadcasting
stations were abridged by a prohibition on all editorializing by any
recipient of public funds. There was no alternative means, as there had
been in Taxation With Representation, by which the stations could
continue to receive public funding and create an affiliate to engage in
the prohibited speech. The Court rejected dissenting Justice Rehnquist's
argument that the general principles of Taxation With Representation and
Oklahoma v. Civil Service Comm'n\233\
[[Page 1113]]
should be controlling.\234\ Several years later, however, Chief Justice
Rehnquist asserted for the Court that restrictions on abortion
counseling and referral imposed on recipients of family planning funding
under the Public Health Service Act did not constitute discrimination on
the basis of viewpoint, but instead represented government's decision
``to fund one activity to the exclusion of the other.''\235\ It remains
to be seen what application this decision will have outside the
contentious area of abortion regulation.\236\
\230\461 U.S. 540 (1983).
\231\Id. at 545. See also Cammarano v. United States, 358 U.S.
498, 512-13 (1959) (exclusion of lobbying expenses from income tax
deduction for ordinary and necessary business expenses is not a
regulation aimed at the suppression of dangerous ideas, and does not
violate the First Amendment).
\232\468 U.S. 364 (1984).
\233\330 U.S. 127 (1947). See discussion supra p.156.
\234\468 U.S. at 399-401, & 401 n.27.
\235\Rust v. Sullivan, 111 S. Ct. 1759, 1772 (1991). Dissenting
Justice Blackmun contended that Taxation With Representation was easily
distinguishable because its restriction was on all lobbying activity
regardless of content or viewpoint. Id. at 1780-81.
\236\The Court attempted to minimize the potential sweep of its
ruling in Rust. ``This is not to suggest that funding by the Government,
even when coupled with the freedom of the fund recipient to speak
outside the scope of the Government-funded project, is invariably
sufficient to justify government control over the content of
expression.'' 111 S. Ct. at 1776. The Court noted several possible
exceptions to the general principle: government ownership of a public
forum does not justify restrictions on speech; the university setting
requires heightened protections through application of vagueness and
overbreadth principles; and the doctor-patient relationship may also be
subject to special First Amendment protection. (The Court denied,
however, that the doctor-patient relationship was significantly impaired
by the regulatory restrictions at issue.) Lower courts were quick to
pick up on these suggestions. See, e.g., Stanford Univ. v. Sullivan, 773
F. Supp. 472, 476-78 (D.D.C. 1991) (confidentiality clause in federal
grant research contract is invalid because, inter alia, of application
of vagueness principles in a university setting); Gay Men's Health
Crisis v. Sullivan, 792 F. Supp. 278 (S.D.N.Y. 1992) (``offensiveness''
guidelines restricting Center for Disease Control grants for preparation
of AIDS-related educational materials are unconstitutionally vague);
Finley v. National Endowment for the Arts, 795 F. Supp. 1457 (C.D.Cal.
1992) (``decency clause'' restricting grants by the National Endowment
for the Arts is void for vagueness under Fifth Amendment and overbroad
under First Amendment; artistic expression is entitled to the same level
of protection as academic freedom).
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FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Governmental Regulation of Communications Industries
As in the previous section, the governmental regulations here
considered may have only the most indirect relation to freedom of
expression, or may clearly implicate that freedom even though the
purpose of the particular regulation is not to reach the content of the
message. First, however, the judicially-formulated doctrine
distinguishing commercial expression from other forms is briefly
considered.
Commercial Speech.--In recent years, the Court's treatment of
``commercial speech'' has undergone a transformation, from total
nonprotection under the First Amendment to qualified protection. The
conclusion that expression proposing a commercial transaction is a
different order of speech was arrived at almost casually in Val
[[Page 1114]]
entine v. Chrestensen,\1\ in which the Court upheld a city ordinance
prohibiting distribution on the street of ``commercial and business
advertising matter,'' as applied to an exhibitor of a submarine who
distributed leaflets describing his submarine on one side and on the
other side protesting the city's refusal of certain docking facilities.
The doctrine was in any event limited to promotion of commercial
activities; the fact that expression was disseminated for profit or
through commercial channels did not expose it to any greater regulation
than if it were offered for free.\2\ The doctrine lasted in this form
for more than twenty years.
\1\316 U.S. 52 (1942). See also Breard v. City of Alexandria,
341 U.S. 622 (1951). The doctrine was one of the bases upon which the
banning of all commercials for cigarettes from radio and television was
upheld. Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (D.D.C.
1971) (three-judge court), aff'd per curiam, 405 U.S. 1000 (1972).
\2\Books that are sold for profit, Smith v. California, 361 U.S.
147, 150 (1959); Ginzburg v. United States, 383 U.S. 463, 474-75 (1966),
advertisements dealing with political and social matters which
newspapers carry for a fee, New York Times Co. v. Sullivan, 376 U.S.
254, 265-66 (1964), motion pictures which are exhibited for an admission
fee, United States v. Paramount Pictures, 334 U.S. 131, 166 (1948);
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952), were all
during this period held entitled to full First Amendment protection
regardless of the commercial element involved.
---------------------------------------------------------------------------
``Commercial speech,'' the Court has held, is protected ``from
unwarranted governmental regulation,'' although its nature makes such
communication subject to greater limitations than can be imposed on
expression not solely related to the economic interests of the speaker
and its audience.\3\ Overturning of this exception in free expression
doctrine was accomplished within a brief span of time in which the
Justices haltingly but then decisively moved to a new position.
Reasserting the doctrine at first in a narrow five-to-four decision, the
Court sustained the application of a city's ban on employment
discrimination to bar sex-designated employment advertising in a
newspaper.\4\ Granting that speech does not lose its constitutional
protection simply because it appears in a commercial context, Justice
Powell, for the Court, found the placing of want-ads in newspapers to be
``classic examples of commercial speech,'' devoid of expressions of
opinions with respect to issues of social policy; the ad ``did no more
than propose a commercial transaction.'' But the Justice also noted that
employment discrimination, which was facilitated by the advertisements,
was itself illegal.\5\
\3\Central Hudson Gas & Electric Corp. v. Public Service Comm'n,
447 U.S. 557, 561 (1980).
\4\Pittsburgh Press Co. v. Comm'n on Human Relations, 413 U.S.
376 (1973).
\5\Id. at 385, 389. The Court continues to hold that government
may ban commercial speech related to illegal activity. Central Hudson
Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 563-64
(1980).
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[[Page 1115]]
Next, the Court overturned a conviction under a state statute
making it illegal, by sale or circulation of any publication, to
encourage or prompt the obtaining of an abortion, as applied to an
editor of a weekly newspaper who published an advertisement announcing
the availability of legal and safe abortions in another State and
detailing the assistance that would be provided state residents in going
to and obtaining abortions in the other State.\6\ The Court discerned
that the advertisements conveyed information of other than a purely
commercial nature, that they related to services that were legal in the
other jurisdiction, and that the State could not prevent its residents
from obtaining abortions in the other State or punish them for doing so.
\6\Bigelow v. Virginia, 421 U.S. 809 (1975).
---------------------------------------------------------------------------
Then, all these distinctions were swept away as the Court voided
a statute declaring it unprofessional conduct for a licensed pharmacist
to advertise the prices of prescription drugs.\7\ Accepting a suit
brought by consumers to protect their right to receive information, the
Court held that speech that does no more than propose a commercial
transaction is nonetheless of such social value as to be entitled to
protection. Consumers' interests in receiving factual information about
prices may even be of greater value than political debate, but in any
event price competition and access to information about it is in the
public interest. State interests asserted in support of the ban,
protection of professionalism and the quality of prescription goods,
were found either badly served or not served by the statute.\8\
\7\Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, 425 U.S. 748 (1976). Justice Rehnquist dissented. Id. at 781.
\8\Id. at 763-64 (consumers' interests), 764-65 (social
interest), 766-70 (justifications for the ban).
---------------------------------------------------------------------------
Turning from the interests of consumers to receive information
to the asserted right of advertisers to communicate, the Court voided
several restrictions. The Court voided a municipal ordinance which
barred the display of ``For sale'' and ``Sold'' signs on residential
lawns, purportedly so as to limit ``white flight'' resulting from a
``fear psychology'' that developed among white residents following sale
of homes to nonwhites. The right of owners to communicate their
intention to sell a commodity and the right of potential buyers to
receive the message was protected, the Court determined; the community
interest could have been achieved by less restrictive means and in any
event could not be achieved by restricting the free flow of truthful
information.\9\ Similarly, deciding a question it had reserved in the
Virginia Pharmacy case, the Court held that a State could not forbid
lawyers from advertising the prices they
[[Page 1116]]
charged for the performance of routine legal services.\10\ None of the
proffered state justifications for the ban was deemed sufficient to
overcome the private and societal interest in the free exchange of this
form of speech.\11\ Nor may a state categorically prohibit attorney
advertising through mailings that target persons known to face
particular legal problems,\12\ or prohibit an attorney from holding
himself out as a certified civil trial specialist.\13\ However, a State
has been held to have a much greater countervailing interest in
regulating person-to-person solicitation of clients by attorneys;
therefore, especially since in-person solicitation is ``a business
transaction in which speech is an essential but subordinate component,''
the state interest need only be important rather than compelling.\14\
\9\Linmark Ass'n v. Township of Willingboro, 431 U.S. 85 (1977).
\10\Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Chief
Justice Burger and Justices Powell, Stewart, and Rehnquist dissented.
Id. at 386, 389, 404.
\11\Id. at 368-79. See also In re R.M.J., 455 U.S. 191 (1982)
(invalidating sanctions imposed on attorney for deviating in some
respects from rigid prescriptions of advertising style and for engaging
in some proscribed advertising practices, because the State could show
neither that his advertising was misleading nor that any substantial
governmental interest was served by the restraints).
\12\Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988).
\13\Peel v. Illinois Attorney Registration and Disciplinary
Comm'n, 496 U.S. 91 (1990).
\14\Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978). But
compare In re Primus, 426 U.S. 412 (1978). The distinction between in-
person and other attorney advertising was continued in Zauderer v.
Office of Disciplinary Counsel, 471 U.S. 626 (1985) (``print advertising
. . . in most cases . . . will lack the coercive force of the personal
presence of the trained advocate'').
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Moreover, a statute prohibiting the practice of optometry under
a trade name was sustained because there was ``a significant
possibility'' that the public might be misled through deceptive
utilization of the same or similar trade names.\15\ But a state
regulatory commission prohibition of utility advertisements ``intended
to stimulate the purchase of utility services'' was held unjustified by
the asserted interests in energy consumption and avoidance of
subsidization of additional energy costs by all consumers.\16\
\15\Friedman v. Rogers, 440 U.S. 1 (1979).
\16\Central Hudson Gas & Electric Corp. v. Public Service
Comm'n, 447 U.S. 557 (1980). See also Consolidated Edison Co. v. Public
Service Comm'n, 447 U.S. 530 (1980) (voiding a ban on utility's
inclusion in monthly bills of inserts discussing controversial issues of
public policy). However, the linking of a product to matters of public
debate does not thereby entitle an ad to the increased protection
afforded noncommercial speech. Bolger v. Youngs Drug Products Corp., 463
U.S. 60 (1983).
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While commercial speech is entitled to First Amendment
protection, the Court has clearly held that it is not wholly
undifferentiable from other forms of expression; it has remarked on the
commonsense differences between speech that does no more
[[Page 1117]]
than propose a commercial transaction and other varieties.\17\
Initially, the Court developed a four-pronged test to measure the
validity of restraints upon commercial expression. Recent indications
are that the Court has relaxed aspects of the test, making it more
deferential to governmental regulation.
\17\Commercial speech is viewed by the Court as usually hardier
than other speech; because advertising is the sine qua non of commercial
profits, it is less likely to be chilled by regulation. Thus, the
difference inheres in both the nature of the speech and the nature of
the governmental interest. Virginia State Bd. of Pharmacy v. Virginia
Citizens Consumer Council, 425 U.S. 748, 771-72 n.24 (1976); Ohralik v.
Ohio State Bar Ass'n, 436 U.S. 447, 455-56 (1978). It is, of course,
important to develop distinctions between commercial speech and other
speech for purposes of determining when broader regulation is
permissible. The Court's definitional statements have been general,
referring to commercial speech as that ``proposing a commercial
transaction,'' Ohralik v. Ohio State Bar Ass'n, supra, or as
``expression related solely to the economic interests of the speaker and
its audience.'' Central Hudson Gas & Electric Corp. v. Public Service
Comm'n, 447 U.S. 557, 561 (1980). It has simply viewed as noncommercial
the advertising of views on public policy that would inhere to the
economic benefit of the speaker. Consolidated Edison Co. v. Public
Service Comm'n, 447 U.S. 530 (1980). So too, the Court has refused to
treat as commercial speech charitable solicitation undertaken by
professional fundraisers, characterizing the commercial component as
``inextricably intertwined with otherwise fully protected speech.''
Riley v. National Fed'n of the Blind, 487 U.S. 781, 796 (1988). By
contrast, a mixing of home economics information with a sales pitch at a
``Tupperware'' party did not remove the transaction from commercial
speech. Board of Trustees v. Fox, 492 U.S. 469 (1989).
---------------------------------------------------------------------------
Under the first prong of the test as originally formulated,
certain commercial speech is not entitled to protection; the
informational function of advertising is the First Amendment concern and
if it does not accurately inform the public about lawful activity, it
can be suppressed.\18\
\18\Central Hudson Gas & Electric Co. v. Public Service Comm'n,
447 U.S. 557, 563, 564 (1980). Within this category fall the cases
involving the possibility of deception through such devices as use of
trade names, Friedman v. Rogers, 440 U.S. 1 (1979), and solicitation of
business by lawyers, Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447
(1978), as well as the proposal of an unlawful transaction, Pittsburgh
Press Co. v. Comm'n on Human Relations, 413 U.S. 376 (1973).
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Second, if the speech is protected, the interest of the
government in regulating and limiting it must be assessed. The State
must assert a substantial interest to be achieved by restrictions on
commercial speech.\19\
\19\Central Hudson Gas & Electric Co. v. Public Service Comm'n,
447 U.S. 557, 564, 568-69 (1980). The Court deemed the State's interests
to be clear and substantial. The pattern here is similar to much due
process and equal protection litigation as well as expression and
religion cases in which the Court accepts the proffered interests as
legitimate and worthy. See also San Francisco Arts & Athletics, Inc. v.
United States Olympic Comm., 483 U.S. 522 (1987) (governmental interest
in protecting USOC's exclusive use of word ``Olympic'' is substantial).
However, in Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983),
the Court deemed insubstantial a governmental interest in protecting
postal patrons from offensive but not obscene materials. For deferential
treatment of the governmental interest, see Posadas de Puerto Rico
Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986) (Puerto
Rico's ``substantial'' interest in discouraging casino gambling by
residents justifies ban on ads aimed at residents even though residents
may legally engage in casino gambling, and even though ads aimed at
tourists are permitted).
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[[Page 1118]]
Third, the restriction cannot be sustained if it provides only
ineffective or remote support for the asserted purpose.\20\
\20\Id. at 569. The ban here was found to directly advance one
of the proffered interests. Contrast this holding with Bates v. State
Bar of Arizona, 433 U.S. 350 (1977); Virginia State Bd. of Pharmacy v.
Virginia Citizens Consumer Council, 425 U.S. 748 (1976); and Bolger v.
Youngs Drug Products Corp., 463 U.S. 60 (1983), where the restraints
were deemed indirect or ineffectual.
---------------------------------------------------------------------------
Fourth, if the governmental interest could be served as well by
a more limited restriction on commercial speech, the excessive
restriction cannot survive.\21\ The Court has rejected the idea that a
``least restrictive means'' test is required. Instead, what is now
required is a ``reasonable fit'' between means and ends, with the means
``narrowly tailored to achieve the desired objective.''\22\
\21\Central Hudson Gas & Electric Co. v. Public Service Comm'n,
447 U.S. 557, 565, 569-71 (1980). This test is, of course, the ``least
restrictive means'' standard. Shelton v. Tucker, 364 U.S. 479, 488
(1960). In Central Hudson, the Court found the ban more extensive than
was necessary to effectuate the governmental purpose. And see Bolger v.
Youngs Drug Products Corp., 463 U.S. 60 (1983), where the Court held
that the governmental interest in not interfering with parental efforts
at controlling children's access to birth control information could not
justify a ban on commercial mailings about birth control products;
``[t]he level of discourse reaching a mailbox simply cannot be limited
to that which would be suitable for a sandbox.'' Id. at 74. Note,
however, that in San Francisco Arts & Athletics, Inc. v. United States
Olympic Comm., 483 U.S. 522 (1987), the Court applied the test in a
manner deferential to Congress: ``the restrictions [at issue] are not
broader than Congress reasonably could have determined to be necessary
to further these interests.''
\22\Board of Trustees v. Fox, 492 U.S. 469, 480 (1989)
---------------------------------------------------------------------------
Thus, the ``different degree of protection'' accorded commercial
speech means that government need not tolerate inaccuracies to the same
extent it must in other areas and it may require that a commercial
message appear in such a form, or include such additional information,
warnings, and disclaimers, as are necessary to prevent it being
deceptive.\23\ Somewhat broader times, places, and manner regulations
are to be tolerated.\24\ The rule against prior re
[[Page 1119]]
straints may be inapplicable\25\ and disseminators of commercial speech
are not protected by the overbreadth doctrine.\26\ Whether government
may ban all commercial advertising of a service or product that is legal
to sell is a matter of current debate. In Posadas de Puerto Rico
Associates v. Tourism Co. of Puerto Rico,\27\ the Court upheld a Puerto
Rico ban on advertising of casino gambling aimed at residents, who
nonetheless were not prohibited from engaging in casino gambling. The
advertising ban was far from complete, however, since ads aimed at the
lucrative tourist trade were still permitted. In any event, courts must
now analyze with some care regulations of and limitations on commercial
expression, the demise of the exception permitting easy resolution no
longer.\28\
\23\Bates v. State Bar of Arizona, 433 U.S. 350, 383-84 (1977);
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978). Requirements
that advertisers disclose more information than they otherwise choose to
are upheld ``as long as [they] are reasonably related to the State's
interest in preventing deception of consumers,'' the Court explaining
that ``[t]he right of a commercial speaker not to divulge accurate
information regarding his services is not . . . a fundamental right''
requiring strict scrutiny of the disclosure requirement. Zauderer v.
Office of Disciplinary Counsel, 471 U.S. 626, 651 & n.14 (1985)
(upholding requirement that attorney's contingent fees ad mention that
unsuccessful plaintiffs might still be liable for court costs).
\24\Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, 425 U.S. 748, 771 (1976); Bates v. State Bar of Arizona, 433
U.S. 350, 384 (1977). But in Linmark Associates v. Township of
Willingboro, 431 U.S. 85, 93-94 (1977), the Court refused to accept a
times, places, and manner defense of an ordinance prohibiting ``For
Sale'' signs on residential lawns. First, ample alternative channels of
communication were not available, and second, the ban was seen rather as
a content limitation.
\25\Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer
Council, 425 U.S. 748, 771-72 n.24 (1976); Central Hudson & Electric Co.
v. Public Service Comm'n, 447 U.S. 557, 571 n.13 (1980).
\26\Bates v. State Bar of Arizona, 433 U.S. 350, 379-81 (1977);
Central Hudson Gas & Electric Co. v. Public Service Comm'n, 477 U.S.
557, 565 n.8 (1980).
\27\478 U.S. 328 (1986). The Court's opinion by Justice
Rehnquist distinguished earlier cases (Carey and Bigelow) invalidating
bans on advertisements of contraceptives and abortion services because
there ``the underlying conduct that was the subject of the advertising
restrictions was constitutionally protected and could not have been
prohibited.'' Casino gambling, on the other hand, is not such protected
conduct, and the Court announced a potentially sweeping principle that
``the greater power to completely ban casino gambling necessarily
includes the lesser power to ban advertising of casino gambling.'' 478
U.S. at 345-46. For discussion of the case, see P. Kurland, Posadas de
Puerto Rico v. Tourism Company: ``'Twas Strange, 'Twas Passing Strange;
'Twas Pitiful, 'Twas Wondrous Pitiful,'' 1986 Sup. Ct. Rev. 1. For
qualification based on the commercial nature of speech in Posadas, see
Meyer v. Grant, 486 U.S. 414, 424-25 (1988) (power to ban ballot
initiatives entirely does not include power to limit discussion of
political issues raised by initiative petitions).
\28\Easy resolution of controversies is also made impossible by
Supreme Court divisions. See, e.g., Metromedia v. City of San Diego, 453
U.S. 490 (1981), in which the Court held unconstitutional an ordinance
prohibiting billboards and other outdoor sign displays, both commercial
and noncommercial, subject to a wide array of exceptions which in some
respects treated noncommercial signs more severely than commercial ones.
It was on the basis of the divergence of treatment that the ordinance
was held to fail. Seven of the Justices appeared to endorse the view
that bans on commercial billboards are permissible ways to implement the
substantial governmental interests in traffic safety and aesthetics. Id.
at 503-12 (plurality opinion of Justices White, Stewart, Marshall, and
Powell), 540 (Justice Stevens dissenting), 555 (Chief Justice Burger
dissenting), 569 (Justice Rehnquist dissenting).
---------------------------------------------------------------------------
Taxation.--Disclaiming any intimation ``that the owners of
newspapers are immune from any of the ordinary forms of taxation for
support of the government,'' the Court voided a state two-percent tax on
the gross receipts of advertising in newspapers with a circulation
exceeding 20,000 copies a week.\29\ In the Court's view, the tax was
analogous to the Eighteenth Century English practice of imposing
advertising and stamp taxes on newspapers for the express purpose of
pricing the opposition penny press beyond the
[[Page 1120]]
means of the mass of the population.\30\ The tax at issue focused
exclusively upon newspapers, it imposed a serious burden on the
distribution of news to the public, and it appeared to be a
discriminatorily selective tax aimed almost solely at the opposition to
the state administration.\31\ Combined with the standard that government
may not impose a tax directly upon the exercise of a constitutional
right itself,\32\ these tests seem to permit general business taxes upon
receipts of businesses engaged in communicating protected expression
without raising any First Amendment issues.\33\
\29\Grosjean v. American Press Co., 297 U.S. 233, 250 (1936).
\30\Id. at 245-48.
\31\Id. at 250-51. Grosjean was distinguished on this latter
basis in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue,
460 U.S. 575 (1983).
\32\Murdock v. Pennsylvania, 319 U.S. 105 (1943); Follett v.
McCormick, 321 U.S. 573 (1944) (license taxes upon Jehovah's Witnesses
selling religious literature invalid).
\33\Cf. City of Corona v. Corona Daily Independent, 115 Cal.
App. 2d 382, 252 P.2d 56 (1953), cert. den., 346 U.S. 833 (1953)
(Justices Black and Douglas dissenting). And see Cammarano v. United
States, 358 U.S. 498 (1959) (no First Amendment violation to deny
business expense tax deduction for expenses incurred in lobbying about
measure affecting one's business); Leathers v. Medlock, 499 U.S. 439
(1991) (no First Amendment violation in applying general gross receipts
tax to cable television services while exempting other communications
media).
---------------------------------------------------------------------------
Ordinarily, a tax singling out the press for differential
treatment is highly suspect, and creates a heavy burden of justification
on the state. This is so, the Court explained in 1983, because such ``a
powerful weapon'' to single out a small group carries with it a lessened
political constraint than do those measures affecting a broader based
constituency, and because ``differential treatment, unless justified by
some special characteristic of the press, suggests that the goal of the
regulation is not unrelated to suppression of expression.''\34\ The
state's interest in raising revenue is not sufficient justification for
differential treatment of the press. Moreover, the Court refused to
adopt a rule permitting analysis of the ``effective burden'' imposed by
a differential tax; even if the current effective tax burden could be
measured and upheld, the threat of increasing the burden on the press
might have ``censorial effects,'' and ``courts as institutions are
poorly equipped to evaluate with precision the relative burdens of
various methods of taxation.''\35\
\34\Minneapolis Star & Tribune Co. v. Minnesota Comm'r of
Revenue, 460 U.S. 575, 585 (1983) (invalidating a Minnesota use tax on
the cost of paper and ink products used in a publication, and exempting
the first $100,000 of such costs each calendar year; Star & Tribune paid
roughly two-thirds of all revenues the state raised by the tax). The
Court seemed less concerned, however, when the affected group within the
press was not so small, upholding application of a gross receipts tax to
cable television services even though other segments of the
communications media were exempted. Leathers v. Medlock, 499 U.S. 439
(1991).
\35\460 U.S. at 588, 589.
---------------------------------------------------------------------------
[[Page 1121]]
Also difficult to justify is taxation that targets specific
subgroups within a segment of the press for differential treatment. An
Arkansas sales tax exemption for newspapers and for ``religious,
professional, trade, and sports journals'' published within the state
was struck down as an invalid content-based regulation of the press.\36\
Entirely as a result of content, some magazines were treated less
favorably than others. The general interest in raising revenue was again
rejected as a ``compelling'' justification for such treatment, and the
measure was viewed as not narrowly tailored to achieve other asserted
state interests in encouraging ``fledgling'' publishers and in fostering
communications.
\36\Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221
(1987).
---------------------------------------------------------------------------
The Court seemed to change course somewhat in 1991, upholding a
state tax that discriminated among different components of the
communications media, and proclaiming that ``differential taxation of
speakers, even members of the press, does not implicate the First
Amendment unless the tax is directed at, or presents the danger of
suppressing, particular ideas.''\37\
\37\Leathers v. Medlock, 499 U.S. 439, 453 (1991) (tax applied
to all cable television systems within the state, but not to other
segments of the communications media).
---------------------------------------------------------------------------
The general principle that government may not impose a financial
burden based on the content of speech underlay the Court's invalidation
of New York's ``Son of Sam'' law, which provided that a criminal's
income from publications describing his crime was to be placed in escrow
and made available to victims of the crime.\38\ While the Court
recognized a compelling state interest in ensuring that criminals do not
profit from their crimes, and in compensating crime victims, the law was
not narrowly tailored to those ends. It applied only to income derived
from speech, not to income from other sources, and it was significantly
overinclusive because it reached a wide range of literature (e.g., the
Confessions of Saint Augustine and Thoreau's Civil Disobedience) ``that
did not enable a criminal to profit from his crime while a victim
remains uncompensated.''\39\
\38\Simon & Schuster v. New York Crime Victims Bd., 112 S. Ct.
501 (1991).
\39\112 S. Ct. at 511.
---------------------------------------------------------------------------
Labor Relations.--Just as newspapers and other communications
businesses are subject to nondiscriminatory taxation, they are entitled
to no immunity from the application of general laws regulating their
relations with their employees and prescribing wage and hour standards.
In Associated Press v. NLRB,\40\ the application of the National Labor
Relations Act to a newsgathering agency was found to raise no
constitutional problem. ``The publisher of a news
[[Page 1122]]
paper has no special immunity from the application of general laws. He
has no special privilege to invade the rights and liberties of others.
. . . The regulation here in question has no relation whatever to the
impartial distribution of news.'' Similarly, the Court has found no
problem with requiring newspapers to pay minimum wages and observe
maximum hours.\41\
\40\301 U.S. 103, 132 (1937).
\41\Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).
---------------------------------------------------------------------------
Antitrust Laws.--Resort to the antitrust laws to break up
restraints on competition in the newsgathering and publishing field was
found not only to present no First Amendment problem but to comport with
government's obligation under that Amendment. Said Justice Black: ``It
would be strange indeed, however, if the grave concern for freedom of
the press which prompted adoption of the First Amendment should be read
as a command that the government was without power to protect that
freedom. The First Amendment, far from providing an argument against
application of the Sherman Act, here provides powerful reasons to the
contrary. That Amendment rests on the assumption that the widest
possible dissemination of information from diverse and antagonistic
sources is essential to the welfare of the public, that a free press is
a condition of a free society. Surely a command that the government
itself shall not impede the free flow of ideas does not afford
nongovernmental combinations a refuge if they impose restraints upon
that constitutionally guaranteed freedom. Freedom to publish means
freedom for all and not for some. Freedom to publish is guaranteed by
the Constitution, but freedom to combine to keep others from publishing
is not.''\42\
\42\Associated Press v. United States, 326 U.S. 1, 20 (1945).
---------------------------------------------------------------------------
Thus, both newspapers and broadcasters, as well as other such
industries, may not engage in monopolistic and other anticompetitive
activities free of possibility of antitrust law attack,\43\ even though
it may be contended that freedom of the press may thereby be
preserved.\44\
\43\Lorain Journal Co. v. United States, 342 U.S. 143 (1951)
(refusal of newspaper publisher who enjoyed a substantial monopoly to
sell advertising to persons also advertising over a competing radio
station violates antitrust laws); United States v. Radio Corporation of
America, 358 U.S. 334 (1959) (FCC approval no bar to antitrust suit);
United States v. Greater Buffalo Press. Inc., 402 U.S. 549 (1971)
(monopolization of color comic supplements). See also FCC v. National
Citizens Comm. for Broadcasting, 436 U.S. 775 (1978) (upholding FCC
rules prospectively barring, and in some instances requiring divesting
to prevent, the common ownership of a radio or television broadcast
station and a daily newspaper located in the same community).
\44\Citizen Publishing Co. v. United States, 394 U.S. 131 (1969)
(pooling arrangement between two newspapers violates antitrust laws;
First Amendment argument that one paper will fail if arrangement is
outlawed rejected). In response to this decision, Congress enacted the
Newspaper Preservation Act to sanction certain joint arrangements where
one paper is in danger of failing. 84 Stat. 466 (1970), 15 U.S.C.
Sec. Sec. 1801-1804.
---------------------------------------------------------------------------
[[Page 1123]]
Radio and Television.--Because there are a limited number of
broadcast frequencies for radio and non-cable television use, the
Federal Government licenses access to these frequencies, permitting some
applicants to utilize them and denying the greater number of applicants
such permission. Even though this licensing system is in form a variety
of prior restraint, the Court has held that it does not present a First
Amendment issue because of the unique characteristic of scarcity.\45\
Thus, the Federal Communications Commission has broad authority to
determine the right of access to broadcasting,\46\ although, of course,
the regulation must be exercised in a manner that is neutral with regard
to the content of the materials broadcast.\47\
\45\NBC v. United States, 319 U.S. 190 (1943); see also Red Lion
Broadcasting Co. v. FCC, 395 U.S. 367, 375-79, 387-89 (1969); FCC v.
National Citizens Comm. for Broadcasting, 436 U.S. 775, 798-802 (1978).
\46\NBC v. United States, 319 U.S. 190 (1943); Federal Radio
Comm. v. Nelson Brothers Bond & Mortgage Co., 289 U.S. 266 (1933); FCC
v. Pottsville, 309 U.S. 134 (1940); FCC v. ABC, 347 U.S. 284 (1954);
Farmers Union v. WDAY, 360 U.S. 525 (1958).
\47\``But Congress did not authorize the Commission to choose
among applicants upon the basis of their political, economic or social
views or upon any other capricious basis. If it did, or if the
Commission by these regulations proposed a choice among applicants upon
some such basis, the issue before us would be wholly different.'' NBC v.
United States, 319 U.S. 190, 226 (1943).
---------------------------------------------------------------------------
In certain respects, however, governmental regulation does
implicate First Amendment values to a great degree; insistence that
broadcasters afford persons attacked on the air an opportunity to reply
and that they afford a right to reply from opposing points of view when
they editorialize on the air was unanimously found to be
constitutional.\48\ In Red Lion, Justice White explained that
differences in the characteristics of various media justify differences
in First Amendment standards applied to them.\49\ Thus, while there is a
protected right of everyone to speak, write, or publish as he will,
subject to very few limitations, there is no comparable right of
everyone to broadcast. The frequencies are limited and some few must be
given the privilege over others. The particular licensee, however, has
no First Amendment right to hold that license and his exclusive
privilege may be qualified. Qualification by censorship of content is
impermissible, but the First Amendment does not prevent a governmental
insistence that a licensee ``conduct
[[Page 1124]]
himself as a proxy or fiduciary with obligations to present those views
and voices which are representative of his community and which would
otherwise, by necessity, be barred from the airwaves.'' Further, said
Justice White, ``[b]ecause of the scarcity of radio frequencies, the
Government is permitted to put restraints on licensees in favor of
others whose views should be expressed on this unique medium. But the
people as a whole retain their interest in free speech by radio and
their collective right to have the medium function consistently with the
ends and purposes of the First Amendment. It is the right of the viewers
and listeners, not the right of the broadcasters, which is
paramount.''\50\ The broadcasters had argued that if they were required
to provide equal time at their expense to persons attacked and to points
of view different from those expressed on the air, expression would be
curbed through self-censorship, for fear of controversy and economic
loss. Justice White thought this possibility ``at best speculative,''
but if it should materialize ``the Commission is not powerless to insist
that they give adequate and fair attention to public issues.''\51\
\48\Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). ``The
Federal Communications Commission has for many years imposed on radio
and television broadcasters the requirement that discussion of public
issues be presented on broadcast stations, and that each side of those
issues must be given fair coverage. This is known as the fairness
doctrine, . . . .'' Id. at 369. The two issues passed on in Red Lion
were integral parts of the doctrine.
\49\Id. at 386.
\50\Id. at 388-90.
\51\Id. at 392-93.
---------------------------------------------------------------------------
In Columbia Broadcasting System v. Democratic National
Committee,\52\ the Court rejected claims of political groups that the
broadcast networks were constitutionally required to sell them
broadcasting time for the presentation of views on controversial issues.
The ruling terminated a broad drive to obtain that result, but the
fragmented nature of the Court's multiple opinions precluded a
satisfactory evaluation of the constitutional implications of the case.
However, in CBS v. FCC,\53\ the Court held that Congress had conferred
on candidates seeking federal elective office an affirmative, promptly
enforceable right of reasonable access to the use of broadcast stations,
to be administered through FCC control over license revocations, and
held such right of access to be within Congress' power to grant, the
First Amendment notwithstanding. The constitutional analysis was brief
and merely restated the spectrum scarcity rationale and the role of the
broadcasters as fiduciaries for the public interest.
\52\412 U.S. 94 (1973).
\53\453 U.S. 367 (1981). The dissent argued that the FCC had
assumed, and the Court had confirmed it in assuming, too much authority
under the congressional enactment. In its view, Congress had not meant
to do away with the traditional deference to the editorial judgments of
the broadcasters. Id. at 397 (Justices White, Rehnquist, and Stevens).
---------------------------------------------------------------------------
In FCC v. League of Women Voters,\54\ the Court took the same
general approach to governmental regulation of public broadcast
[[Page 1125]]
ing, but struck down a total ban on editorializing by stations receiving
public funding. In summarizing the principles guiding analysis in this
area, the Court reaffirmed that Congress may regulate in ways that would
be impermissible in other contexts, but indicated that broadcasters are
entitled to greater protection than may have been suggested by Red Lion.
``[A]lthough the broadcasting industry plainly operates under restraints
not imposed upon other media, the thrust of these restrictions has
generally been to secure the public's First Amendment interest in
receiving a balanced presentation of views on diverse matters of public
concern. . . . [T]hese restrictions have been upheld only when we were
satisfied that the restriction is narrowly tailored to further a
substantial governmental interest.''\55\ However, the earlier cases were
distinguished. ``[I]n sharp contrast to the restrictions upheld in Red
Lion or in [CBS v. FCC], which left room for editorial discretion and
simply required broadcast editors to grant others access to the
microphone, Sec. 399 directly prohibits the broadcaster from speaking
out on public issues even in a balanced and fair manner.''\56\ The ban
on all editorializing was deemed too severe and restrictive a means of
accomplishing the governmental purposes--protecting public broadcasting
stations from being coerced, through threat or fear of withdrawal of
public funding, into becoming ``vehicles for governmental
propagandizing,'' and also keeping the stations ``from becoming
convenient targets for capture by private interest groups wishing to
express their own partisan viewpoints.''\57\ Expression of editorial
opinion was described as a ``form of speech . . . that lies at the heart
of First Amendment protection,''\58\ and the ban was said to be
``defined solely on the basis of . . . content,'' the assumption being
that editorial speech is speech directed at ``controversial issues of
public importance.''\59\ Moreover, the ban on editorializing was both
overinclusive, applying to commentary on local issues of no likely
interest to Congress, and underinclusive, not applying at all to
expression of controversial opinion in the context of regular
programming. Therefore, the Court concluded, the restriction was not
narrowly enough tailored to fulfill the government's purposes.
\54\468 U.S. 364 (1984), holding unconstitutional Sec. 399 of
the Public Broadcasting Act of 1967, as amended. The decision was 5-4,
with Justice Brennan's opinion for the Court being joined by Justices
Marshall, Blackmun, Powell, and O'Connor, and with Justices White,
Rehnquist (joined by Chief Justice Burger and by Justice White), and
Stevens filing dissenting opinions.
\55\468 U.S. at 380. The Court rejected the suggestion that only
a ``compelling'' rather than ``substantial'' governmental interest can
justify restrictions.
\56\468 U.S. at 385.
\57\468 U.S. at 384-85. Dissenting Justice Stevens thought that
the ban on editorializing served an important purpose of ``maintaining
government neutrality in the free marketplace of ideas.'' Id. at 409.
\58\468 U.S. at 381.
\59\468 U.S. at 383.
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[[Page 1126]]
Sustaining FCC discipline of a broadcaster who aired a record
containing a series of repeated ``barnyard'' words, considered
``indecent'' but not obscene, the Court posited a new theory to explain
why the broadcast industry is less entitled to full constitutional
protection than are other communications entities.\60\ ``First, the
broadcast media have established a uniquely pervasive presence in the
lives of all Americans. Patently offensive, indecent material presented
over the airwaves confronts the citizens, not only in public, but also
in the privacy of the home, where the individual's right to be left
alone plainly outweighs the First Amendment rights of an intruder. . . .
Second, broadcasting is uniquely accessible to children, even those too
young to read. . . . The ease with which children may obtain access to
broadcast material . . . amply justif[ies] special treatment of indecent
broadcasting.''\61\ The purport of the Court's new theory is hard to
divine; while its potential is broad, the Court emphasized the
contextual ``narrowness'' of its holding, which ``requires consideration
of a host of variables.''\62\ Time of day of broadcast, the likely
audience, the differences between radio, television, and perhaps closed-
circuit transmissions were all relevant in the Court's view. It may be,
then, that the case will be limited in the future to its particular
facts; yet, the pronunciation of a new theory sets in motion a tendency
the application of which may not be so easily cabined.
\60\FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
\61\Id. at 748-51. This was the only portion of the
constitutional discussion that obtained the support of a majority of the
Court. Justice Stevens' opinion was joined by Chief Justice Burger and
Justices Rehnquist, Powell, and Blackmun. Justices Powell and Blackmun,
id. 755, concurred also in a separate opinion, which reiterated the
points made in the text. Justices Brennan and Marshall dissented with
respect to the constitutional arguments made by Justices Stevens and
Powell. Id. at 762. Justices Stewart and White dissented on statutory
grounds, not reaching the constitutional arguments. Id. at 777.
\62\Id. at 750. See also id. at 742-43 (plurality opinion), and
id. 755-56 (Justice Powell concurring) (``Court reviews only the
Commission's holding that Carlin's monologue was indecent `as broadcast'
at two o'clock in the afternoon, and not the broad sweep of the
Commission's opinion.'').
---------------------------------------------------------------------------
The Court has ruled that cable television ``implicates First
Amendment interests,'' since a franchisee communicates ideas through
selection of original programming and through exercise of editorial
discretion in determining which stations to include in its offering, but
has left for future decision how these interests are to be balanced
against a community's interests in limiting franchises and preserving
utility space.\63\
\63\City of Los Angeles v. Preferred Communications, 476 U.S.
488 (1986). See also Leathers v. Medlock, 499 U.S. 439 (1991)
(application of state gross receipts tax to cable industry permissible
even though other segments of the communications media were exempted).
[[Page 1127]]
Governmentally Compelled Right of Reply to Newspapers.--However
divided it may have been in dealing with access to the broadcast media,
the Court was unanimous in holding void under the First Amendment a
state law that granted a political candidate a right to equal space to
answer criticism and attacks on his record by a newspaper.\64\ Granting
that the number of newspapers had declined over the years, that
ownership had become concentrated, and that new entries were
prohibitively expensive, the Court agreed with proponents of the law
that the problem of newspaper responsibility was a great one. But press
responsibility, while desirable, ``is not mandated by the
Constitution,'' while freedom is. The compulsion exerted by government
on a newspaper to print that which it would not otherwise print, ``a
compulsion to publish that which `reason tells them should not be
published,''' runs afoul of the free press clause.\65\
\64\Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974).
\65\Id. at 256. The Court also adverted to the imposed costs of
the compelled printing of replies but this seemed secondary to the
quoted conclusion. The Court has also held that a state may not require
a privately owned utility company to include in its billing envelopes
views of a consumer group with which it disagrees. While a plurality
opinion adhered to by four Justices relied heavily on Tornillo, there
was not a Court majority consensus as to rationale. Pacific Gas & Elec.
v. Public Utilities Comm'n, 475 U.S. 1 (1986).
---------------------------------------------------------------------------
FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Government Restraint of Content of Expression
The three previous sections considered primarily but not
exclusively incidental restraints on expression as a result of
governmental regulatory measures aimed at goals other than control of
the content of expression; this section considers the permissibility of
governmental measures which are directly concerned with the content of
expression.\66\ As a general matter, government may not regulate speech
``because of its message, its ideas, its subject matter, or its
content.''\67\ Invalid content regulation includes not only
[[Page 1128]]
restrictions on particular viewpoints, but also prohibitions on public
discussion of an entire topic.\68\
\66\The distinction was sharply drawn by Justice Harlan in
Konigsberg v. State Bar of California, 366 U.S. 36, 49-51 (1961):
``Throughout its history this Court has consistently recognized at least
two ways in which constitutionally protected freedom of speech is
narrower than an unlimited license to talk. On the one hand certain
forms of speech, or speech in certain contexts, have been considered
outside the scope of constitutional protection. . . . On the other hand,
general regulatory statutes not intended to control the content of
speech but incidentally limiting its unfettered exercise, have not been
regarded as the type of law the First or Fourteenth Amendments forbade
Congress or the states to pass, when they have been found justified by
subordinating valid governmental interests, a prerequisite to
constitutionality which has necessarily involved a weighing of the
governmental interest involved.''
\67\Police Dep't v. Mosley, 408 U.S. 92, 95 (1972). See also
Erznoznik v. City of Jacksonville, 422 U.S. 205, 208-12 (1975); First
National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Carey v.
Brown, 447 U.S. 455 (1980); Metromedia v. City of San Diego, 453 U.S.
490 (1981) (plurality opinion); Widmar v. Vincent, 454 U.S. 263 (1981);
Regan v. Time, Inc., 468 U.S. 641 (1984).
\68\Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221,
230 (1987) (citing Consolidated Edison Co. v. Public Service Comm'n, 447
U.S. 530, 537 (1980)).
---------------------------------------------------------------------------
Originally the Court took a ``two-tier'' approach to content-
oriented regulation of expression. Under the ``definitional balancing''
of this approach, some forms of expression are protected by the First
Amendment and certain categories of expression are not entitled to
protection. This doctrine traces to Chaplinsky v. New Hampshire,\69\ in
which the Court opined that ``certain well-defined and narrowly limited
classes of speech . . . are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth'' that
government may prevent those utterances and punish those uttering them
without raising any constitutional problems. If speech fell within the
Chaplinsky categories, it was unprotected, regardless of its effect; if
it did not, it was covered by the First Amendment and it was protected
unless the restraint was justified by some test relating to harm, such
as clear and present danger or a balancing of presumptively protected
expression against a governmental interest which must be compelling.
\69\315 U.S. 568, 571-72 (1942).
---------------------------------------------------------------------------
For several decades, the decided cases reflected a fairly
consistent and sustained march by the Court to the elimination of, or a
severe narrowing of, the ``two-tier'' doctrine. The result was
protection of much expression that hitherto would have been held
absolutely unprotected (e.g., seditious speech and seditious libel,
fighting words, defamation, and obscenity). More recently, the march has
been deflected by a shift in position with respect to obscenity and by
the creation of a new category of non-obscene child pornography. But in
the course of this movement, differences surfaced among the Justices on
the permissibility of regulation based on content and the interrelated
issue of a hierarchy of speech values, according to which some forms of
expression, while protected, may be more readily subject to official
regulation and perhaps suppression than other protected expression.
These differences were compounded in cases in which First Amendment
expression values came into conflict with other values, either
constitutionally protected values such as the right to fair trials in
criminal cases, or societally valued interests such as those in privacy,
reputation, and the protection from disclosure of certain kinds of
information.
Attempts to work out these differences are elaborated in the
following pages, but the effort to formulate a doctrine of permissible
content regulation within categories of protected expression
[[Page 1129]]
necessitates a brief treatment. It remains standard doctrine that it is
impermissible to posit regulation of protected expression upon its
content.\70\ But in recent Terms, Justice Stevens has articulated a
theory that would permit some governmental restraint based upon content.
In Justice Stevens' view, there is a hierarchy of speech; where the
category of speech at issue fits into that hierarchy determines the
appropriate level of protection under the First Amendment. A category's
place on the continuum is guided by Chaplinsky's formulation of whether
it is ``an essential part of any exposition of ideas'' and what its
``social value as a step to truth'' is.\71\ Thus, offensive but
nonobscene words and portrayals dealing with sex and excretion may be
regulated when the expression plays no role or a minimal role in the
exposition of ideas.\72\ ``Whether political oratory or philosophical
discussion moves us to applaud or to despise what is said, every
schoolchild can understand why our duty to defend the right to speak
remains the same. But few of us would march our sons and daughters off
to war to preserve the citizen's right to see `Specified Sexual
Activities' exhibited in the theaters of our choice.''\73\
\70\See, e.g., Simon & Schuster v. New York Crime Victims Bd.,
112 S. Ct. 501 (1991).
\71\Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
\72\Young v. American Mini Theatres, 427 U.S. 50, 63-73 (1976)
(plurality opinion); Smith v. United States, 431 U.S. 291, 317-19 (1977)
(Justice Stevens dissenting); Carey v. Population Services Int., 431
U.S. 678, 716 (1977) (Justice Stevens concurring in part and concurring
in the judgment); FCC v. Pacifica Found., 438 U.S. 726, 744-48 (1978)
(plurality opinion); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 80,
83 (1981) (Justice Stevens concurring in judgment); New York v. Ferber,
458 U.S. 747, 781 (1982) (Justice Stevens concurring in judgment); R. A.
V. v. City of St. Paul, 112 S. Ct. 2538, 2564 (1992) (Justice Stevens
concurring in the judgment).
\73\Young v. American Mini Theatres, 427 U.S. 50, 70 (1976)
(plurality opinion).
---------------------------------------------------------------------------
While a majority of the Court has not joined in approving
Justice Stevens' theory,\74\ the Court has in some contexts of covered
expression approved restrictions based on content,\75\ and in still
other areas, such as privacy, it has implied that some content-
[[Page 1130]]
based restraints on expression would be approved.\76\ Moreover, the
Court in recent years has emphasized numerous times the role of the
First Amendment in facilitating, indeed making possible, political
dialogue and the operation of democratic institutions.\77\ While this
emphasis may be read as being premised on a hierarchical theory of the
worthiness of political speech and the subordinate position of less
worthy forms of speech, more likely it is merely a celebration of the
most worthy role speech plays, and not a suggestion that other roles and
other kinds of discourses are relevant in determining the measure of
protection enjoyed under the First Amendment.\78\
\74\In New York v. Ferber, 458 U.S. 747, 763 (1982), a majority
of the Court joined an opinion quoting much of Justice Stevens' language
in these cases, but the opinion rather clearly adopts the proposition
that the disputed expression, child pornography, is not covered by the
First Amendment, not that it is covered but subject to suppression
because of its content. Id. at 764. And see id. at 781 (Justice Stevens
concurring in judgment).
\75\E.g., commercial speech, which is covered by the First
Amendment but is less protected than other speech, is subject to
content-based regulation. Central Hudson Gas & Electric Co. v. Public
Service Comm'n, 447 U.S. 557, 568-69 (1980). See also Rowan v. Post
Office Dep't, 397 U.S. 728 (1970) (sexually-oriented, not necessarily
obscene mailings); and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)
(nonobscene, erotic dancing).
\76\E.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).
See also Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562
(1977).
\77\E.g., First National Bank of Boston v. Bellotti, 435 U.S.
765, 776-77, 781-83 (1978); Citizens Against Rent Control v. City of
Berkeley, 454 U.S. 290, 299-300 (1982).
\78\E.g., First National Bank v. Bellotti, 435 U.S. 765, 783
(1978); Consolidated Edison Co. v. Public Service Comm'n, 447 U.S.C.
530, 534 n.2 (1980).
---------------------------------------------------------------------------
That there can be a permissible content regulation within a
category of protected expression was questioned in theory, and rejected
in application, in Hustler Magazine, Inc. v. Falwell.\79\ In Falwell the
Court refused to recognize a distinction between permissible political
satire and ``outrageous'' parodies ``doubtless gross and repugnant in
the eyes of most.''\80\ ``If it were possible by laying down a
principled standard to separate the one from the other,'' the Court
suggested, ``public discourse would probably suffer little or no harm.
But we doubt that there is any such standard, and we are quite sure that
the pejorative description `outrageous' does not supply one.''\81\
Falwell can also be read as consistent with the hierarchical theory of
interpretation; the offensive advertisement parody was protected as
within ``the world of debate about public affairs,'' and was not
``governed by any exception to . . . general First Amendment
principles.''\82\
\79\485 U.S. 46 (1988).
\80\Id. at 50, 55.
\81\Id. at 55.
\82\Id. at 53.
---------------------------------------------------------------------------
So too, there can be impermissible content regulation within a
category of otherwise unprotected expression. In R. A. V. v. City of St.
Paul,\83\ the Court struck down a hate crimes ordinance construed by the
state courts to apply only to use of ``fighting words.'' The difficulty,
the Court found, was that the ordinance made a further content
discrimination, proscribing only those fighting words that would arouse
anger, alarm, or resentment in others on the basis of race, color,
creed, religion, or gender. This amounted to
[[Page 1131]]
``special prohibitions on those speakers who express views on disfavored
subjects.''\84\ The fact that government may proscribe areas of speech
such as obscenity, defamation, or fighting words does not mean that
these areas ``may be made the vehicles for content discrimination
unrelated to their distinctly proscribable content. . . . [G]overnment
may proscribe libel; but it may not make the further content
discrimination of proscribing only libel critical of the
government.''\85\
\83\112 S. Ct. 2538 (1992).
\84\Id. at 2547.
\85\Id. at 2543.
---------------------------------------------------------------------------
Content regulation of protected expression is measured by a
compelling interest test derived from equal protection analysis:
government ``must show that its regulation is necessary to serve a
compelling [governmental] interest and is narrowly drawn to achieve that
end.''\86\ Application of this test ordinarily results in invalidation
of the regulation.\87\ Objecting to the balancing approach inherent in
this test because it ``might be read as a concession that [government]
may censor speech whenever they believe there is a compelling
justification for doing so,'' Justice Kennedy argues instead for a rule
of per se invalidity.\88\ But compelling interest analysis can still be
useful, the Justice suggests, in determining whether a regulation is
actually content-based or instead is content-neutral; in those cases in
which the government tenders ``a plausible justification unrelated to
the suppression of expression,'' application of the compelling interest
test may help to determine ``whether the asserted justification is in
fact an accurate description of the purpose and effect of the law.''\89\
\86\Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221,
231 (1987); Simon & Shuster v. New York Crime Victims Bd., 112 S. Ct.
501, 509 (1991).
\87\But see Burson v. Freeman, 112 S. Ct. 1846 (1992) (state law
prohibiting the solicitation of votes and the display or distribution of
campaign literature within 100 feet of a polling place upheld as applied
to the traditional public forum of streets and sidewalks). The Burson
plurality phrased the test not in terms of whether the law was
``narrowly tailored,'' but instead in terms of whether the law was
``necessary'' to serve compelling state interests. 112 S. Ct. at 1852,
1855.
\88\Simon & Shuster v. New York Crime Victims Bd., 112 S. Ct.
501, 513 (1991) (concurring).
\89\Burson v. Freeman, 112 S. Ct. 1846, 1859 (1992)
(concurring).
---------------------------------------------------------------------------
Seditious Speech and Seditious Libel.--Opposition to government
through speech alone has been subject to punishment throughout much of
history under laws proscribing ``seditious'' utterances. In this
country, the Sedition Act of 1798 made criminal, inter alia, malicious
writings which defamed, brought into contempt or disrepute, or excited
the hatred of the people against the Government, the President, or the
Congress, or which stirred peo
[[Page 1132]]
ple to sedition.\90\ In New York Times Co. v. Sullivan,\91\ the Court
surveyed the controversy surrounding the enactment and enforcement of
the Sedition Act and concluded that debate ``first crystallized a
national awareness of the central meaning of the First Amendment. . . .
Although the Sedition Act was never tested in this Court, the attack
upon its validity has carried the day in the court of history . . . .
[That history] reflect[s] a broad consensus that the Act, because of the
restraint it imposed upon criticism of government and public officials,
was inconsistent with the First Amendment.'' The ``central meaning''
discerned by the Court, quoting Madison's comment that in a republican
government ``the censorial power is in the people over the Government,
and not in the Government over the people,'' is that ``[t]he right of
free public discussion of the stewardship of public officials was thus,
in Madison's view, a fundamental principle of the American form of
government.''
\90\Ch. 74, 1 Stat. 596, supra, p.1022, n.9. Note also that the
1918 amendment of the Espionage Act of 1917, ch. 75, 40 Stat. 553,
reached ``language intended to bring the form of government of the
United States . . . or the Constitution . . . or the flag . . . or the
uniform of the Army or Navy into contempt, scorn, contumely, or
disrepute.'' Cf. Abrams v. United States, 250 U.S. 616 (1919). For a
brief history of seditious libel here and in Great Britain, see Z.
Chafee, Free Speech in the United States 19-35, 497-516 (1941).
\91\376 U.S. 254, 273-76 (1964). See also Abrams v. United
States, 250 U.S. 616, 630 (1919) (Justice Holmes dissenting).
---------------------------------------------------------------------------
Little opportunity to apply this concept of the ``central
meaning'' of the First Amendment in the context of sedition and criminal
syndicalism laws has been presented to the Court. In Dombrowski v.
Pfister\92\ the Court, after expanding on First Amendment grounds the
discretion of federal courts to enjoin state court proceedings, struck
down as vague and as lacking procedural due process protections certain
features of a state ``Subversive Activities and Communist Control Law.''
In Brandenburg v. Ohio,\93\ a state criminal syndicalism statute was
held unconstitutional because its condemnation of advocacy of crime,
violence, or unlawful methods of terrorism swept within its terms both
mere advocacy as well as incitement to imminent lawless action. A
seizure of books, pamphlets, and other documents under a search warrant
pursuant to
[[Page 1133]]
a state subversives suppression law was struck down under the Fourth
Amendment in an opinion heavy with First Amendment overtones.\94\
\92\380 U.S. 479, 492-96 (1965). A number of state laws were
struck down by three-judge district courts pursuant to the latitude
prescribed by this case. E.g., Ware v. Nichols, 266 F. Supp. 564 (N.D.
Miss. 1967) (criminal syndicalism law); Carmichael v. Allen, 267 F.
Supp. 985 (N.D. Ga. 1966) (insurrection statute); McSurely v. Ratliff,
282 F. Supp. 848 (E.D. Ky. 1967) (criminal syndicalism). This latitude
was then circumscribed in cases attacking criminal syndicalism and
criminal anarchy laws. Younger v. Harris, 401 U.S. 37 (1971); Samuels v.
Mackell, 401 U.S. 66 (1971).
\93\395 U.S. 444 (1969). See also Garrison v. Louisiana, 379
U.S. 64 (1964); Ashton v. Kentucky, 384 U.S. 195 (1966), considered
infra. pp.1137-38.
\94\Stanford v. Texas, 379 U.S. 476 (1965). In United States v.
United States District Court, 407 U.S. 297 (1972), a Government claim to
be free to wiretap in national security cases was rejected on Fourth
Amendment grounds in an opinion which called attention to the relevance
of the First Amendment.
---------------------------------------------------------------------------
Fighting Words and Other Threats to the Peace.--In Chaplinsky v.
New Hampshire,\95\ the Court unanimously sustained a conviction under a
statute proscribing ``any offensive, derisive, or annoying word''
addressed to any person in a public place under the state court's
interpretation of the statute as being limited to ``fighting words''--
i.e., to ``words . . . [which] have a direct tendency to cause acts of
violence by the person to whom, individually, the remark is addressed.''
The statute was sustained as ``narrowly drawn and limited to define and
punish specific conduct lying within the domain of state power, the use
in a public place of words likely to cause a breach of the peace.''\96\
The case is best known for Justice Murphy's famous dictum. ``[I]t is
well understood that the right of free speech is not absolute at all
times and under all circumstances. There are certain well-defined and
narrowly limited classes of speech, the prevention and punishment of
which have never been thought to raise any Constitutional problem. These
include the lewd and obscene, the profane, the libelous, and the
insulting or `fighting' words--those which by their very utterance
inflict injury or tend to incite an immediate breach of the peace. It
has been well observed that such utterances are no essential part of any
exposition of ideas, and are of such slight social value as a step to
truth that any benefit that may be derived from them is clearly
outweighed by the social interest in order and morality.''\97\
\95\315 U.S. 568 (1942).
\96\Id. at 573.
\97\Id. at 571-72.
---------------------------------------------------------------------------
Chaplinsky still remains viable for the principle that ``the
States are free to ban the simple use, without a demonstration of
additional justifying circumstances, of so-called `fighting words,'
those personally abusive epithets which, when addressed to the ordinary
citizen, are, as a matter of common knowledge, inherently likely to
provoke violent reaction.''\98\ But, in actuality, the Court has closely
scrutinized statutes on vagueness and overbreadth
[[Page 1134]]
grounds and set aside convictions as not being within the doctrine.
Chaplinsky thus remains formally alive but of little vitality.\99\
\98\Cohen v. California, 403 U.S. 15, 20 (1971). Cohen's
conviction for breach of peace, occasioned by his appearance in public
with an ``offensive expletive'' lettered on his jacket, was reversed, in
part because the words were not a personal insult and there was no
evidence of audience objection.
\99\The cases hold that government may not punish profane,
vulgar, or opprobrious words simply because they are offensive, but only
if they are ``fighting words'' that do have a direct tendency to cause
acts of violence by the person to whom they are directed. Gooding v.
Wilson, 405 U.S. 518 (1972); Hess v. Indiana, 414 U.S. 105 (1973); Lewis
v. City of New Orleans, 415 U.S. 130 (1974); Lucas v. Arkansas, 416 U.S.
919 (1974); Kelly v. Ohio, 416 U.S. 923 (1974); Karlan v. City of
Cincinnati, 416 U.S. 924 (1974); Rosen v. California, 416 U.S. 924
(1974); and see Eaton v. City of Tulsa, 416 U.S. 697 (1974).
---------------------------------------------------------------------------
On the obverse side, the ``hostile audience'' situation, the
Court once sustained a conviction for disorderly conduct of one who
refused police demands to cease speaking after his speech seemingly
stirred numbers of his listeners to mutterings and threatened
disorders.\100\ But this case has been significantly limited by cases
which hold protected the peaceful expression of views which stirs people
to anger because of the content of the expression, or perhaps because of
the manner in which it is conveyed, and that breach of the peace and
disorderly conduct statutes may not be used to curb such expression.
\100\Feiner v. New York, 340 U.S. 315 (1951). See also Milk
Wagon Drivers v. Meadowmoor Dairies, 312 U.S. 287 (1941), in which the
Court held that a court could enjoin peaceful picketing because violence
occurring at the same time against the businesses picketed could have
created an atmosphere in which even peaceful, otherwise protected
picketing could be illegally coercive. But compare NAACP v. Claiborne
Hardware Co., 458 U.S. 886 (1982).
---------------------------------------------------------------------------
The cases are not clear to what extent the police must go in
protecting the speaker against hostile audience reaction or whether only
actual disorder or a clear and present danger of disorder will entitle
the authorities to terminate the speech or other expressive
conduct.\101\ Neither, in the absence of incitement to illegal action,
may government punish mere expression or proscribe ideas,\102\
regardless of the trifling or annoying caliber of the expression.\103\
\101\The principle actually predates Feiner. See Cantwell v.
Connecticut, 310 U.S. 296 (1940); Terminiello v. Chicago, 337 U.S. 1
(1949). For subsequent application, see Edwards v. South Carolina, 372
U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Brown v.
Louisiana, 383 U.S. 131 (1966); Gregory v. City of Chicago, 394 U.S. 111
(1969); Bachellar v. Maryland, 397 U.S. 564 (1970). Significant is
Justice Harlan's statement of the principle reflected by Feiner. ``Nor
do we have here an instance of the exercise of the State's police power
to prevent a speaker from intentionally provoking a given group to
hostile reaction. Cf. Feiner v. New York, 340 U.S. 315 (1951).'' Cohen
v. California, 403 U.S. 15, 20 (1970).
\102\Cohen v. California, 403 U.S. 15 (1971); Bachellar v.
Maryland, 397 U.S. 564 (1970); Street v. New York, 394 U.S. 576 (1969);
Schacht v. United States, 398 U.S. 58 (1970); Joseph Burstyn, Inc. v.
Wilson, 343 U.S. 495 (1952); Kingsley Pictures Corp. v. Regents, 360
U.S. 684 (1959); Stromberg v. California, 283 U.S. 359 (1931).
\103\Coates v. City of Cincinnati, 402 U.S. 611 (1971); Cohen v.
California, 403 U.S. 15 (1971); Gooding v. Wilson, 405 U.S. 518 (1972).
---------------------------------------------------------------------------
[[Page 1135]]
Group Libel, Hate Speech.--In Beauharnais v. Illinois,\104\
relying on dicta in past cases,\105\ the Court upheld a state group
libel law which made it unlawful to defame a race or class of people.
The defendant had been convicted under this statute after he had
distributed a leaflet, a part of which was in the form of a petition to
his city government, taking a hard-line white supremacy position and
calling for action to keep African Americans out of white neighborhoods.
Justice Frankfurter for the Court sustained the statute along the
following reasoning. Libel of an individual, he established, was a
common-law crime and was now made criminal by statute in every State in
the Union. These laws raise no constitutional difficulty because libel
is within that class of speech which is not protected by the First
Amendment. If an utterance directed at an individual may be the object
of criminal sanctions, no good reason appears to deny a State the power
to punish the same utterances when they are directed at a defined group,
``unless we can say that this is a willful and purposeless restriction
unrelated to the peace and well-being of the State.''\106\ The Justice
then reviewed the history of racial strife in Illinois to conclude that
the legislature could reasonably fear substantial evils from
unrestrained racial utterances. Neither did the Constitution require the
State to accept a defense of truth, inasmuch as historically a defendant
had to show not only truth but publication with good motives and for
justifiable ends.\107\ ``Libelous utterances not being within the area
of constitutionally protected speech, it is unnecessary . . . to
consider the issues behind the phrase `clear and present danger.'''\108\
\104\343 U.S. 250 (1952).
\105\Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942);
Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707-08 (1931).
\106\Beauharnais v. Illinois, 343 U.S. 250, 254-58 (1952).
\107\Id. at 265-66.
\108\Id. at 266.
---------------------------------------------------------------------------
Beauharnais has little continuing vitality as precedent. Its
holding, premised in part on the categorical exclusion of defamatory
statements from First Amendment protection, has been substantially
undercut by subsequent developments, not the least of which are the
Court's subjection of defamation law to First Amendment challenge and
its ringing endorsement of ``uninhibited, robust, and wide-open'' debate
on public issues in New York Times Co. v. Sullivan.\109\ In R. A. V. v.
City of St. Paul, the Court, in an
[[Page 1136]]
opinion by Justice Scalia, explained and qualified the categorical
exclusions for defamation, obscenity, and fighting words. These
categories of speech are not ``entirely invisible to the Constitution,''
but instead ``can, consistently with the First Amendment, be regulated
because of their constitutionally proscribable content.''\110\ Content
discrimination unrelated to that ``distinctively proscribable content''
runs afoul of the First Amendment. Therefore, the city's bias-motivated
crime ordinance, interpreted as banning the use of fighting words known
to offend on the basis of race, color, creed, religion, or gender, but
not on such other possible bases as political affiliation, union
membership, or homosexuality, was invalidated for its content
discrimination. ``The First Amendment does not permit [the city] to
impose special prohibitions on those speakers who express views on
disfavored subjects.''\111\
\109\376 U.S. 254 (1964). See also Collin v. Smith, 447 F. Supp.
676 (N.D.Ill.) (ordinances prohibiting distribution of materials
containing racial slurs are unconstitutional), aff'd, 578 F.2d 1197 (7th
Cir.), stay denied, 436 U.S. 953 (1978), cert. denied, 439 U.S. 916
(1978) (Justices Blackmun and Rehnquist dissenting on basis that Court
should review case that is in ``some tension'' with Beauharnais). But
see New York v. Ferber, 458 U.S. 747, 763 (1982) (obliquely citing
Beauharnais with approval).
\110\112 S. Ct. at 2543 (emphasis original).
\111\Id. at 2547.
---------------------------------------------------------------------------
Defamation.--One of the most seminal shifts in constitutional
jurisprudence occurred in 1964 with the Court's decision in New York
Times Co. v. Sullivan.\112\ The Times had published a paid advertisement
by a civil rights organization criticizing the response of a Southern
community to demonstrations led by Dr. Martin Luther King, and
containing several factual errors. The plaintiff, a city commissioner in
charge of the police department, claimed that the advertisement had
libeled him even though he was not referred to by name or title and even
though several of the incidents described had occurred prior to his
assumption of office. Unanimously, the Court reversed the lower court's
judgment for the plaintiff. To the contention that the First Amendment
did not protect libelous publications, the Court replied that
constitutional scrutiny could not be foreclosed by the ``label''
attached to something. ``Like . . . the various other formulae for the
repression of expression that have been challenged in this Court, libel
can claim no talismanic immunity from constitutional limitations. It
must be measured by standards that satisfy the First Amendment.''\113\
``The general proposition,'' the Court continued, ``that freedom of
expression upon public questions is secured by the First Amendment has
long been settled by our decisions . . . . [W]e consider this case
against the background of a profound national commitment to the
principle that debate on public issues should be uninhibited, robust,
and wide-open, and that it may well include vehement, caustic, and
sometimes un
[[Page 1137]]
pleasantly sharp attacks on government and public officials.''\114\
Because the advertisement was ``an expression of grievance and protest
on one of the major public issues of our time, [it] would seem clearly
to qualify for the constitutional protection . . . [unless] it forfeits
that protection by the falsity of some of its factual statements and by
its alleged defamation of respondent.''\115\
\112\376 U.S. 254 (1964).
\113\Id. at 269. Justices Black, Douglas, and Goldberg,
concurring, would have held libel laws per se unconstitutional. Id. at
293, 297.
\114\Id. at 269, 270.
\115\Id. at 271.
---------------------------------------------------------------------------
Erroneous statement is protected, the Court asserted, there
being no exception ``for any test of truth.'' Error is inevitable in any
free debate and to place liability upon that score, and especially to
place on the speaker the burden of proving truth, would introduce self-
censorship and stifle the free expression which the First Amendment
protects.\116\ Nor would injury to official reputation afford a warrant
for repressing otherwise free speech. Public officials are subject to
public scrutiny and ``[c]riticism of their official conduct does not
lose its constitutional protection merely because it is effective
criticism and hence diminishes their official reputation.''\117\ That
neither factual error nor defamatory content could penetrate the
protective circle of the First Amendment was the ``lesson'' to be drawn
from the great debate over the Sedition Act of 1798, which the Court
reviewed in some detail to discern the ``central meaning of the First
Amendment.''\118\ Thus, it appears, the libel law under consideration
failed the test of constitutionality because of its kinship with
seditious libel, which violated the ``central meaning of the First
Amendment.'' ``The constitutional guarantees require, we think, a
federal rule that prohibits a public official from recovering damages
for a defamatory falsehood relating to his official conduct unless he
proves that the statement was made with `actual malice'--that is, with
knowledge that it was false or with reckless disregard of whether it was
false or not.''\119\
\116\Id. at 271-72, 278-79. Of course, the substantial truth of
an utterance is ordinarily a defense to defamation. See Masson v. New
Yorker Magazine, 111 S. Ct. 2419, 2433 (1991).
\117\Id. at 272-73.
\118\Id. at 273. See supra, p.1022 n.13.
\119\Id. at 279-80. The same standard applies for defamation
contained in petitions to the government, the Court having rejected the
argument that the petition clause requires absolute immunity. McDonald
v. Smith, 472 U.S. 479 (1985).
---------------------------------------------------------------------------
In the wake of the Times ruling, the Court decided two cases
involving the type of criminal libel statute upon which Justice
Frankfurter had relied in analogy to uphold the group libel law in
Beauharnais.\120\ In neither case did the Court apply the concept of
Times to void them altogether. Garrison v. Louisiana\121\ held that
[[Page 1138]]
a statute that did not incorporate the Times rule of ``actual malice''
was invalid, while in Ashton v. Kentucky\122\ a common-law definition of
criminal libel as ``any writing calculated to create disturbances of the
peace, corrupt the public morals or lead to any act, which, when done,
is indictable'' was too vague to be constitutional.
\120\Beauharnais v. Illinois, 343 U.S. 250, 254-58 (1952).
\121\379 U.S. 64 (1964).
\122\384 U.S. 195 (1966).
---------------------------------------------------------------------------
The teaching of Times and the cases following after it is that
expression on matters of public interest is protected by the First
Amendment. Within that area of protection is commentary about the public
actions of individuals. The fact that expression contains falsehoods
does not deprive it of protection, because otherwise such expression in
the public interest would be deterred by monetary judgments and self-
censorship imposed for fear of judgments. But, over the years, the Court
has developed an increasingly complex set of standards governing who is
protected to what degree with respect to which matters of public and
private interest.
Individuals to whom the Times rule applies presented one of the
first issues for determination. At first, the Court keyed it to the
importance of the position held. ``There is, first, a strong interest in
debate on public issues, and, second, a strong interest in debate about
those persons who are in a position significantly to influence the
resolution of those issues. Criticism of government is at the very
center of the constitutionally protected area of free discussion.
Criticism of those responsible for government operations must be free,
lest criticism of government itself be penalized. It is clear,
therefore, that the `public official' designation applies at the very
least to those among the hierarchy of government employees who have, or
appear to the public to have, substantial responsibility for or control
over the conduct of governmental affairs.''\123\ But over time, this
focus seems to have become diffused and the concept of ``public
official'' has appeared to take on overtones of anyone holding public
elective or appointive office.\124\ Moreover, candidates for public
office were subject to the Times rule and comment on their
[[Page 1139]]
character or past conduct, public or private, insofar as it touches upon
their fitness for office, is protected.\125\
\123\Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
\124\Id. (supervisor of a county recreation area employed by and
responsible to the county commissioners may be public official within
Times rule). See Garrison v. Louisiana, 379 U.S. 64 (1964) (elected
municipal judges); Henry v. Collins, 380 U.S. 356 (1965) (county
attorney and chief of police); St. Amant v. Thompson, 390 U.S. 727
(1968) (deputy sheriff); Greenbelt Cooperative Pub. Ass'n v. Bresler,
398 U.S. 6 (1970) (state legislator who was major real estate developer
in area); Time, Inc. v. Pape, 401 U.S. 279 (1971) (police captain). The
categorization does not, however, include all government employees.
Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979).
\125\Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971); Ocala
Star-Banner Co. v. Damron, 401 U.S. 295 (1971).
---------------------------------------------------------------------------
Thus, with respect to both public officials and candidates, a
wide range of reporting about them is protected. Certainly, the conduct
of official duties by public officials is subject to the widest scrutiny
and criticism.\126\ But the Court has held as well that criticism that
reflects generally upon an official's integrity and honesty is
protected.\127\ Candidates for public office, the Court has said, place
their whole lives before the public, and it is difficult to see what
criticisms could not be related to their fitness.\128\
\126\Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
\127\Garrison v. Louisiana, 379 U.S. 64 (1964), involved charges
that judges were inefficient, took excessive vacations, opposed official
investigations of vice, and were possibly subject to ``racketeer
influences.'' The Court rejected an attempted distinction that these
criticisms were not of the manner in which the judges conducted their
courts but were personal attacks upon their integrity and honesty. ``Of
course, any criticism of the manner in which a public official performs
his duties will tend to affect his private, as well as his public,
reputation. . . . The public-official rule protects the paramount public
interest in a free flow of information to the people concerning public
officials, their servants. To this end, anything which might touch on an
official's fitness for office is relevant. Few personal attributes are
more germane to fitness for office than dishonesty, malfeasance, or
improper motivation, even though these characteristics may also affect
the official's private character.'' Id. at 76-77.
\128\In Monitor Patriot Co. v. Roy, 401 U.S. 265, 274-75 (1971),
the Court said: ``The principal activity of a candidate in our political
system, his `office,' so to speak, consists in putting before the voters
every conceivable aspect of his public and private life that he thinks
may lead the electorate to gain a good impression of him. A candidate
who, for example, seeks to further his cause through the prominent
display of his wife and children can hardly argue that his qualities as
a husband or father remain of `purely private' concern. And the
candidate who vaunts his spotless record and sterling integrity cannot
convincingly cry `Foul' when an opponent or an industrious reporter
attempts to demonstrate the contrary. . . . Given the realities of our
political life, it is by no means easy to see what statements about a
candidate might be altogether without relevance to his fitness for the
office he seeks. The clash of reputations is the staple of election
campaigns and damage to reputation is, of course, the essence of libel.
But whether there remains some exiguous area of defamation against which
a candidate may have full recourse is a question we need not decide in
this case.''
---------------------------------------------------------------------------
For a time, the Court's decisional process threatened to expand
the Times privilege so as to obliterate the distinction between private
and public figures. First, the Court created a subcategory of ``public
figure,'' which included those otherwise private individuals who have
attained some prominence, either through their own efforts or because it
was thrust upon them, with respect to a matter of public interest, or,
in Chief Justice Warren's words, those persons who are ``intimately
involved in the resolution of important public questions or, by reason
of their fame, shape events in areas
[[Page 1140]]
of concern to society at large.''\129\ More recently, the Court has
curtailed the definition of ``public figure'' by playing down the matter
of public interest and emphasizing the voluntariness of the assumption
of a role in public affairs that will make of one a ``public
figure.''\130\
\129\Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967)
(Chief Justice Warren concurring in the result). Curtis involved a
college football coach, and Associated Press v. Walker, decided in the
same opinion, involved a retired general active in certain political
causes. The suits arose from reporting that alleged, respectively, the
fixing of a football game and the leading of a violent crowd in
opposition to enforcement of a desegregation decree. The Court was
extremely divided, but the rule that emerged was largely the one
developed in the Chief Justice's opinion. Essentially, four Justices
opposed application of the Times standard to ``public figures,''
although they would have imposed a lesser but constitutionally-based
burden on public figure plaintiffs. Id. at 133 (plurality opinion of
Justices Harlan, Clark, Stewart, and Fortas). Three Justices applied
Times, id. at 162 (Chief Justice Warren), and 172 (Justices Brennan and
White). Two Justices would have applied absolute immunity. Id. at 170
(Justices Black and Douglas). See also Greenbelt Cooperative Pub. Ass'n
v. Bresler, 398 U.S. 6 (1970).
\130\Public figures ``[f]or the most part [are] those who . . .
have assumed roles of especial prominence in the affairs of society.
Some occupy positions of such persuasive power and influence that they
are deemed public figures for all purposes. More commonly, those classed
as public figures have thrust themselves to the forefront of particular
public controversies in order to influence the resolution of the issues
involved.'' Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).
---------------------------------------------------------------------------
Second, in a fragmented ruling, the Court applied the Times
standard to private citizens who had simply been involved in events of
public interest, usually, though not invariably, not through their own
choosing.\131\ But, in Gertz v. Robert Welch, Inc.\132\ the Court set
off on a new path of limiting recovery for defamation by private
persons. Henceforth, persons who are neither public officials nor public
figures may recover for the publication of defamatory falsehoods so long
as state defamation law establishes a standard higher than strict
liability, such as negligence; damages may not be presumed, however, but
must be proved, and punitive damages will be recoverable only upon the
Times showing of ``actual malice.''
\131\Rosenbloom v. Metromedia, 403 U.S. 29 (1971). Rosenbloom
had been prefigured by Time, Inc., v. Hill, 385 U.S. 374 (1967), a
``false light'' privacy case considered infra.
\132\418 U.S. 323 (1974).
---------------------------------------------------------------------------
The Court's opinion by Justice Powell established competing
constitutional considerations. On the one hand, imposition upon the
press of liability for every misstatement would deter not only false
speech but much truth as well; the possibility that the press might have
to prove everything it prints would lead to self-censorship and the
consequent deprivation of the public of its access to information. On
the other hand, there is a legitimate state interest in compensating
individuals for the harm inflicted on them by de
[[Page 1141]]
famatory falsehoods. An individual's right to the protection of his own
good name is, at bottom, but a reflection of our society's concept of
the worth of the individual. Therefore, an accommodation must be
reached. The Times rule had been a proper accommodation when public
officials or public figures were concerned, inasmuch as by their own
efforts they had brought themselves into the public eye, had created a
need in the public for information about them, and had at the same time
attained an ability to counter defamatory falsehoods published about
them. Private individuals are not in the same position and need greater
protection. ``We hold that, so long as they do not impose liability
without fault, the States may define for themselves the appropriate
standard of liability for a publisher or broadcaster of defamatory
falsehood injurious to a private individual.''\133\ Some degree of fault
must be shown, then.
\133\Id. at 347.
---------------------------------------------------------------------------
Generally, juries may award substantial damages in tort for
presumed injury to reputation merely upon a showing of publication. But
this discretion of juries had the potential to inhibit the exercise of
freedom of the press, and moreover permitted juries to penalize
unpopular opinion through the awarding of damages. Therefore, defamation
plaintiffs who do not prove actual malice--that is, knowledge of falsity
or reckless disregard for the truth--will be limited to compensation for
actual provable injuries, such as out-of-pocket loss, impairment of
reputation and standing, personal humiliation, and mental anguish and
suffering. A plaintiff who proves actual malice will be entitled as well
to collect punitive damages.\134\
\134\Id. at 348-50. Justice Brennan would have adhered to
Rosenbloom, id. at 361, while Justice White thought the Court went too
far in constitutionalizing the law of defamation. Id. at 369.
---------------------------------------------------------------------------
Subsequent cases have revealed a trend toward narrowing the
scope of the ``public figure'' concept. A socially prominent litigant in
a particularly messy divorce controversy was held not to be such a
person,\135\ and a person convicted years before of contempt after
failing to appear before a grand jury was similarly not a public figure
even as to commentary with respect to his conviction.\136\ Also not a
public figure for purposes of allegedly defamatory comment about the
value of his research was a scientist who sought and received federal
grants for research, the results of which were published in scientific
journals.\137\ Public figures, the Court reiterated, are those who (1)
occupy positions of such persuasive power and influence that they are
deemed public figures for all purposes or (2)
[[Page 1142]]
have thrust themselves to the forefront of particular public
controversies in order to influence the resolution of the issues
involved, and are public figures with respect to comment on those
issues.\138\
\135\Time, Inc. v. Firestone, 424 U.S. 448 (1976).
\136\Wolston v. Reader's Digest Ass'n, 443 U.S. 157 (1979).
\137\Hutchinson v. Proxmire, 443 U.S. 111 (1979).
\138\Id. at 134 (quoting Gertz v. Robert Welch, Inc., 418 U.S.
323, 345 (1974)).
---------------------------------------------------------------------------
Commentary about matters of ``public interest'' when it defames
someone is apparently, after Firestone\139\ and Gertz, to be protected
to the degree that the person defamed is a public official or candidate
for public office, public figure, or private figure. That there is a
controversy, that there are matters that may be of ``public interest,''
is insufficient to make a private person a ``public figure'' for
purposes of the standard of protection in defamation actions.
\139\Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976). See also
Wolston v. Reader's Digest Ass'n, 443 U.S. 157 (1979).
---------------------------------------------------------------------------
The Court has elaborated on the principles governing defamation
actions brought by private figures. First, when a private plaintiff sues
a media defendant for publication of information that is a matter of
public concern--the Gertz situation, in other words--the burden is on
the plaintiff to establish the falsity of the information. Thus, the
Court held in Philadelphia Newspapers v. Hepps,\140\ the common law rule
that defamatory statements are presumptively false must give way to the
First Amendment interest that true speech on matters of public concern
not be inhibited. This means, as the dissenters pointed out, that a
Gertz plaintiff must establish falsity in addition to establishing some
degree of fault (e.g. negligence).\141\ On the other hand, the Court
held in Dun & Bradstreet v. Greenmoss Builders that the Gertz standard
limiting award of presumed and punitive damages applies only in cases
involving matters of public concern, and that the sale of credit
reporting information to subscribers is not such a matter of public
concern.\142\ What significance, if any, is to be attributed to the fact
that a media defendant rather than a private defendant has been sued is
left unclear. The plurality in Dun & Bradstreet declined to follow the
lower court's rationale that Gertz protections are unavailable to
nonmedia defendants, and a majority of Justices were
[[Page 1143]]
in agreement on that point.\143\ But in Philadelphia Newspapers, the
Court expressly reserved the issue of ``what standards would apply if
the plaintiff sues a nonmedia defendant.''\144\
\140\475 U.S. 767 (1986). Justice O'Connor's opinion of the
Court was joined by Justices Brennan, Marshall, Blackmun, and Powell;
Justice Stevens' dissent was joined by Chief Justice Burger and by
Justices White and Rehnquist.
\141\475 U.S. at 780 (Stevens, J., dissenting).
\142\472 U.S. 749 (1985). Justice Powell wrote a plurality
opinion joined by Justices Rehnquist and O'Connor, and Chief Justice
Burger and Justice White, both of whom had dissented in Gertz, added
brief concurring opinions agreeing that the Gertz standard should not
apply to credit reporting. Justice Brennan, joined by Justices Marshall,
Blackmun, and Stevens, dissented, arguing that Gertz had not been
limited to matters of public concern, and should not be extended to do
so.
\143\472 U.S. at 753 (plurality); id. at 773 (Justice White);
id. at 781-84 (dissent).
\144\465 U.S. at 779 n.4. Justice Brennan added a brief
concurring opinion expressing his view that such a distinction is
untenable. Id. at 780.
---------------------------------------------------------------------------
Satellite considerations besides the issue of who is covered by
the Times privilege are of considerable importance. The use in the cases
of the expression ``actual malice'' has been confusing in many respects,
because it is in fact a concept distinct from the common law meaning of
malice or the meanings common understanding might give to it.\145\
Constitutional ``actual malice'' means that the defamation was published
with knowledge that it was false or with reckless disregard of whether
it was false.\146\ Reckless disregard is not simply negligent behavior,
but publication with serious doubts as to the truth of what is
uttered.\147\ A defamation plaintiff under the Times or Gertz standard
has the burden of proving by ``clear and convincing'' evidence, not
merely by the preponderance of evidence standard ordinarily borne in
civil cases, that the defendant acted with knowledge of falsity or with
reckless disregard.\148\ Moreover, the Court has held, a Gertz plaintiff
has the burden of proving the actual falsity of the defamatory
publication.\149\ A plaintiff suing the press\150\ for defamation under
the Times or Gertz standards is not limited to attempting to prove his
case without resort to discovery of the defendant's editorial processes
in the establish
[[Page 1144]]
ment of ``actual malice.''\151\ The state of mind of the defendant may
be inquired into and the thoughts, opinions, and conclusions with
respect to the material gathered and its review and handling are proper
subjects of discovery. As with other areas of protection or qualified
protection under the First Amendment (as well as some other
constitutional provisions), appellate courts, and ultimately the Supreme
Court, must independently review the findings below to ascertain that
constitutional standards were met.\152\
\145\See, e.g., Herbert v. Lando, 441 U.S. 153, 199 (1979)
(Justice Stewart dissenting).
\146\New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964);
Garrison v. Louisiana, 379 U.S. 64, 78 (1964); Cantrell v. Forest City
Publishing Co., 419 U.S. 245, 251-52 (1974).
\147\St. Amant v. Thompson, 390 U.S. 727, 730-33 (1968); Beckley
Newspapers Corp. v. Hanks, 389 U.S. 81 (1967). A finding of ``highly
unreasonable conduct constituting an extreme departure from the
standards of investigation and reporting ordinarily adhered to by
responsible publishers'' is alone insufficient to establish actual
malice. Harte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989)
(nonetheless upholding the lower court's finding of actual malice based
on the ``entire record'').
\148\Gertz v. Robert Welch, Inc., 418 U.S. 323, 331-32 (1974);
Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 83 (1967). See New York
Times Co. v. Sullivan, 376 U.S. 254, 285-86 (1964) (``convincing
clarity''). A corollary is that the issue on motion for summary judgment
in a New York Times case is whether the evidence is such that a
reasonable jury might find that actual malice has been shown with
convincing clarity. Anderson v. Liberty Lobby, 477 U.S. 242 (1986).
\149\Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986)
(leaving open the issue of what ``quantity'' or standard of proof must
be met).
\150\Because the defendants in these cases have typically been
media defendants (but see Garrison v. Louisiana, 379 U.S. 64 (1964);
Henry v. Collins, 380 U.S. 356 (1965)), and because of the language in
the Court's opinions, some have argued that only media defendants are
protected under the press clause and individuals and others are not
protected by the speech clause in defamation actions. See supra,
pp.1026-29.
\151\Herbert v. Lando, 441 U.S. 153 (1979).
\152\New York Times Co. v. Sullivan, 376 U.S. 254, 284-86
(1964). See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933-34
(1982). Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 688
(1989) (``the reviewing court must consider the factual record in
full''); Bose Corp. v. Consumers Union of United States, 466 U.S. 485
(1984) (the ``clearly erroneous'' standard of Federal Rule of Civil
Procedure 52(a) must be subordinated to this constitutional principle).
---------------------------------------------------------------------------
There had been some indications that statements of opinion,
unlike assertions of fact, are absolutely protected,\153\ but the Court
held in Milkovich v. Lorain Journal Co.\154\ that there is no
constitutional distinction between fact and opinion, hence no
``wholesale defamation exemption'' for any statement that can be labeled
``opinion.''\155\ The issue instead is whether, regardless of the
context in which a statement is uttered, it is sufficiently factual to
be susceptible of being proved true or false. Thus, if statements of
opinion may ``reasonably be interpreted as stating actual facts about an
individual,''\156\ then the truthfulness of the factual assertions may
be tested in a defamation action. There are sufficient protections for
free public discourse already available in defamation law, the Court
concluded, without creating ``an artificial dichotomy between `opinion'
and fact.''\157\
\153\See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 339
(1974) (``under the First Amendment there is no such thing as a false
idea''); Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6
(1970) (holding protected the accurate reporting of a public meeting in
which a particular position was characterized as ``blackmail''); Letter
Carriers v. Austin, 418 U.S. 264 (1974) (holding protected a union
newspaper's use of epithet ``scab'').
\154\497 U.S. 1 (1990).
\155\Id. at 18.
\156\Id. at 20. In Milkovich the Court held to be actionable
assertions and implications in a newspaper sports column that a high
school wrestling coach had committed perjury in testifying about a fight
involving his team.
\157\Id. at 19.
---------------------------------------------------------------------------
Substantial meaning is also the key to determining whether
inexact quotations are defamatory. Journalistic conventions allow some
alterations to correct grammar and syntax, but the Court in Masson v.
New Yorker Magazine\158\ refused to draw a distinction on that narrow
basis. Instead, ``a deliberate alteration of words [in a quotation] does
not equate with knowledge of falsity for purposes
[[Page 1145]]
of [New York Times] unless the alteration results in a material change
in the meaning conveyed by the statement.''\159\
\158\111 S. Ct. 2419 (1991).
\159\111 S. Ct. at 2433.
---------------------------------------------------------------------------
Invasion of Privacy.--Governmental power to protect the privacy
interests of its citizens by penalizing publication or authorizing
causes of action for publication implicates directly First Amendment
rights. Privacy is a concept composed of several aspects.\160\ As a tort
concept, it embraces at least four branches of protected interests:
protection from unreasonable intrusion upon one's seclusion, from
appropriation of one's name or likeness, from unreasonable publicity
given to one's private life, and from publicity which unreasonably
places one in a false light before the public.\161\
\160\See, e.g., William Prosser, Law of Torts 117 (4th ed.
1971); Prosser, Privacy, 48 Calif. L. Rev. 383 (1960); J. Thomas
McCarthy, The Rights of Publicity and Privacy (1987); Thomas Emerson,
The System of Freedom of Expression 544-61 (1970). It should be noted
that we do not have here the question of the protection of one's privacy
from governmental invasion.
\161\Restatement (Second), of Torts Sec. Sec. 652A-652I (1977).
These four branches were originally propounded in Prosser's 1960 article
(supra n.), incorporated in the Restatement, and now ``routinely
accept[ed].'' McCarthy, supra n.160, Sec. 5.8[A].
---------------------------------------------------------------------------
While the Court has variously recognized valid governmental
interests in extending protection to privacy,\162\ it has at the same
time interposed substantial free expression interests in the balance.
Thus, in Time, Inc. v. Hill,\163\ the Times privilege was held to
preclude recovery under a state privacy statute that permitted recovery
for harm caused by exposure to public attention in any publication which
contained factual inaccuracies, although not necessarily defamatory
inaccuracies, in communications on matters of public interest. When in
Gertz v. Robert Welch, Inc.,\164\ the Court held that the Times
privilege was not applicable in defamation cases unless the plaintiff is
a public official or public figure, even though plaintiff may have been
involved in a matter of public interest, the question arose whether Hill
applies to all ``false-light'' cases or only such cases involving public
officials or public figures.\165\ And, more important, Gertz left
unresolved the issue ``whether the State may ever define and protect an
area of privacy free from unwanted publicity in the press.''\166\
\162\Time. Inc. v. Hill, 385 U.S. 374, 383 n.7 (1967); and id.
402, 404 (Justice Harlan, concurring in part and dissenting in part),
411, 412-15 (Justice Fortas dissenting); Cox Broadcasting Corp. v. Cohn,
420 U.S. 469, 487-89 (1975).
\163\385 U.S. 374 (1967). See also Cantrell v. Forest City
Publishing Co., 419 U.S. 245 (1974).
\164\418 U.S. 323 (1974).
\165\Cf. Cantrell v. Forest City Publishing Co., 419 U.S. 245,
250-51 (1974); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 490 n.19
(1975).
\166\Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975).
---------------------------------------------------------------------------
In Cox Broadcasting, the Court declined to pass on the broad
question, holding instead that the accurate publication of informa
[[Page 1146]]
tion obtained from public records is absolutely privileged. Thus, the
State could not permit a civil recovery for invasion of privacy
occasioned by the reporting of the name of a rape victim obtained from
court records and from a proceeding in open court.\167\ Nevertheless,
the Court in appearing to retreat from what had seemed to be settled
principle, that truth is a constitutionally required defense in any
defamation action, whether plaintiff be a public official, public
figure, or private individual, may have preserved for itself the
discretion to recognize a constitutionally permissible tort of invasion
of privacy through publication of truthful information.\168\ But in
recognition of the conflicting interests--in expression and in privacy--
it is evident that the judicial process in this area will be cautious.
\167\More specifically, the information was obtained ``from
judicial records which are maintained in connection with a public
prosecution and which themselves are open to public inspection.'' Id. at
491. There was thus involved both the First Amendment and the
traditional privilege of the press to report the events of judicial
proceedings. Id. at 493, 494-96.
\168\Thus, Justice White for the Court noted that the defense of
truth is constitutionally required in suits by public officials or
public figures. But ``[t]he Court has nevertheless carefully left open
the question whether the First and Fourteenth Amendments require that
truth be recognized as a defense in a defamatory action brought by a
private person as distinguished from a public official or public
figure.'' Id. at 490. If truth is not a constitutionally required
defense, then it would be possible for the States to make truthful
defamation of private individuals actionable and, more important,
truthful reporting of matters that constitute invasions of privacy
actionable. See Brasco v. Reader's Digest, 4 Cal. 3d 520, 483 P. 2d 34,
93 Cal. Rptr. 866 (1971); Commonwealth v. Wiseman, 356 Mass. 251, 249
N.E. 2d 610 (1969), cert. den., 398 U.S. 960 (1970). Concurring in Cohn,
420 U.S., 497, Justice Powell contended that the question of truth as a
constitutionally required defense was long settled in the affirmative
and that Gertz itself, which he wrote, was explainable on no other
basis. But he too would reserve the question of actionable invasions of
privacy through truthful reporting. ``In some instances state actions
that are denominated actions in defamation may in fact seek to protect
citizens from injuries that are quite different from the wrongful damage
to reputation flowing from false statements of fact. In such cases, the
Constitution may permit a different balance. And, as today's opinion
properly recognizes, causes of action grounded in a State's desire to
protect privacy generally implicate interests that are distinct from
those protected by defamation actions.'' Id. at 500.
---------------------------------------------------------------------------
Continuing to adhere to ``limited principles that sweep no more
broadly than the appropriate context of the instant case,'' the Court
invalidated an award of damages against a newspaper for printing the
name of a sexual assault victim lawfully obtained from a sheriff's
department press release. The state was unable to demonstrate that
imposing liability served a ``need'' to further a state interest of the
highest order, since the same interest could have been served by the
more limited means of self regulation by the police, since the
particular per se negligence statute precluded inquiry into the extent
of privacy invasion (e.g., inquiry into whether the victim's identity
was already widely known), and since the statute sin
[[Page 1147]]
gled out ``mass communications'' media for liability rather than
applying evenhandedly to anyone disclosing a victim's identity.\169\
\169\The Florida Star v. B.J.F., 491 U.S. 524 (1989).
---------------------------------------------------------------------------
Emotional Distress Tort Actions.--In Hustler Magazine, Inc. v.
Falwell,\170\ the Court applied the New York Times v. Sullivan standard
to recovery of damages by public officials and public figures for the
tort of intentional infliction of emotional distress. The case involved
an advertisement ``parody'' portraying the plaintiff, described by the
Court as a ``nationally known minister active as a commentator on
politics and public affairs,'' as engaged in ``a drunken incestuous
rendezvous with his mother in an outhouse.''\171\ Affirming liability in
this case, the Court believed, would subject ``political cartoonists and
satirists . . .. to damage awards without any showing that their work
falsely defamed its subject.''\172\ A proffered ``outrageousness''
standard for distinguishing such parodies from more traditional
political cartoons was rejected. While not doubting that ``the
caricature of respondent . . .. is at best a distant cousin of [some]
political cartoons . . .. and a rather poor relation at that,'' the
Court explained that ```[o]utrageousness''' in the area of political and
social discourse has an inherent subjectiveness about it which would
allow a jury to impose liability on the basis of the jurors' tastes or
views.''\173\ Therefore, proof of intent to cause injury, ``the gravamen
of the tort,'' is insufficient ``in the area of public debate about
public figures.'' Additional proof that the publication contained a
false statement of fact made with actual malice was necessary, the Court
concluded, in order ``to give adequate `breathing space' to the freedoms
protected by the First Amendment.''\174\
\170\485 U.S. 46 (1988).
\171\485 U.S. at 47-48.
\172\Id. at 53.
\173\Id. at 55.
\174\Id. at 52-53.
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``Right of Publicity'' Tort Actions.--In Zacchini v. Scripps-
Howard Broadcasting Co.,\175\ the Court held unprotected by the First
Amendment a broadcast of a video tape of the ``entire act'' of a ``human
cannonball'' in the context of the performer's suit for damages against
the company for having ``appropriated'' his act, thereby injuring his
right to the publicity value of his performance. The Court emphasized
two differences between the legal action permitted here and the legal
actions found unprotected or not fully
[[Page 1148]]
protected in defamation and other privacy-type suits. First, the
interest sought to be protected was, rather than a party's right to his
reputation and freedom from mental distress, the right of the performer
to remuneration for putting on his act. Second, the other torts if
permitted decreased the information which would be made available to the
public, whereas permitting this tort action would have an impact only on
``who gets to do the publishing.''\176\ In both respects, the tort
action was analogous to patent and copyright laws in that both provide
an economic incentive to persons to make the investment required to
produce a performance of interest to the public.\177\
\175\433 U.S. 562 (1977). The ``right of publicity'' tort is
conceptually related to one of the privacy strands, ``appropriation'' of
one's name or likeness for commercial purposes. Id. at 569-72. Justices
Powell, Brennan, and Marshall dissented, finding the broadcast
protected, id. at 579, and Justice Stevens dissented on other grounds.
Id. at 582.
\176\Id. at 573-74. Plaintiff was not seeking to bar the
broadcast but rather to be paid for the value he lost through the
broadcasting.
\177\Id. at 576-78. This discussion is the closest the Court has
come in considering how copyright laws in particular are to be
reconciled with the First Amendment. The Court's emphasis is that they
encourage the production of work for the public's benefit.
---------------------------------------------------------------------------
Publication of Legally Confidential Information.--While a State
may have numerous and important valid interests in assuring the
confidentiality of certain information, it may not maintain this
confidentiality through the criminal prosecution of nonparticipant third
parties, including the press, who disclose or publish the
information.\178\ The case arose in the context of the investigation of
a state judge by an official disciplinary body; both by state
constitutional provision and by statute, the body's proceedings were
required to be confidential and the statute made the divulging of
information about the proceeding a misdemeanor. For publishing an
accurate report about an investigation of a sitting judge, the newspaper
was indicted and convicted of violating the statute, which the state
courts construed to apply to nonparticipant divulging. Although the
Court recognized the importance of confidentiality to the effectiveness
of such a proceeding, it held that the publication here ``lies near the
core of the First Amendment'' because the free discussion of public
affairs, including the operation of the judicial system, is primary and
the State's interests were simply insufficient to justify the
encroachment on freedom of speech and of the press.\179\ The scope of
the privilege thus conferred by this decision on the press and on
individuals is, however, somewhat unclear, because the Court appeared to
reserve consideration of broader questions than those presented by the
facts of the
[[Page 1149]]
case.\180\ It does appear, however, that government would find it
difficult to punish the publication of almost any information by a
nonparticipant to the process in which the information was developed to
the same degree as it would be foreclosed from obtaining prior restraint
of such publication.\181\ There are also limits on the extent to which
government may punish disclosures by participants in the criminal
process, the Court having invalidated a restriction on a grand jury
witness's disclosure of his own testimony after the grand jury had been
discharged.\182\
\178\Landmark Communications v. Virginia, 435 U.S. 829 (1978).
The decision by Chief Justice Burger was unanimous, Justices Brennan and
Powell not participating, but Justice Stewart would have limited the
holding to freedom of the press to publish. Id. at 848. See also Smith
v. Daily Mail Pub. Co., 433 U.S. 97 (1979).
\179\Id. at 838-42. The state court's utilization of the clear-
and-present-danger test was disapproved in its application;
additionally, the Court questioned the relevance of the test in this
case. Id. at 842-45.
\180\Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), in the
context of a civil proceeding, had held that the First Amendment did not
permit the imposition of liability on the press for truthful publication
of information released to the public in official court records, id. at
496, but had expressly reserved the question ``whether the publication
of truthful information withheld by law from the public domain is
similarly privileged,'' id. at 497 n.27, and Landmark on its face
appears to answer the question affirmatively. Caution is impelled,
however, by the Court's similar reservation. ``We need not address all
the implications of that question here, but only whether in the
circumstances of this case Landmark's publication is protected by the
First Amendment.'' 435 U.S. at 840.
\181\See Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976).
\182\Butterworth v. Smith, 494 U.S. 624 (1990).
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Obscenity.--Although public discussion of political affairs is
at the core of the First Amendment, the guarantees of speech and press,
it should have been noticed from the previous subsections, are broader.
``We do not accede to appellee's suggestion that the constitutional
protection for a free press applies only to the exposition of ideas. The
line between the informing and the entertaining is too elusive for the
protection of that basic right.''\1\ The right to impart and to receive
``information and ideas, regardless of their social worth . . . is
fundamental to our free society.''\2\ Indeed, it is primarily with
regard to the entertaining function of expression that the law of
obscenity is concerned, inasmuch as the Court has rejected any concept
of ``ideological'' obscenity.\3\ However, this function is not the
reason why obscenity is outside the protection of the
[[Page 1150]]
First Amendment, although the Court has never really been clear about
what that reason is.
\1\Winters v. New York, 333 U.S. 507, 510 (1948). Illustrative
of the general observation is the fact that ``[m]usic, as a form of
expression and communication, is protected under the First Amendment.''
Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989).
\2\Stanley v. Georgia, 394 U.S. 557, 564 (1969).
\3\Winters v. New York, 333 U.S. 507 (1948); Burstyn v. Wilson,
343 U.S 495 (1952); Commercial Pictures Corp. v. Regents, 346 U.S. 587
(1954); Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959). The
last case involved the banning of the movie Lady Chatterley's Lover on
the ground that it dealt too sympathetically with adultery. ``It is
contended that the State's action was justified because the motion
picture attractively portrays a relationship which is contrary to the
moral standards, the religious precepts, and the legal code of its
citizenry. This argument misconceives what it is that the Constitution
protects. Its guarantee is not confined to the expression of ideas that
are conventional or shared by a majority. It protects advocacy of the
opinion that adultery may sometimes be proper no less than advocacy of
socialism or the single tax. And in the realm of ideas it protects
expression which is eloquent no less than that which is unconvincing.''
Id. at 688-89.
---------------------------------------------------------------------------
Adjudication over the constitutional law of obscenity began in
Roth v. United States,\4\ in which the Court in an opinion by Justice
Brennan settled in the negative the ``dispositive question'' ``whether
obscenity is utterance within the area of protected speech and
press.''\5\ The Court then undertook a brief historical survey to
demonstrate that ``the unconditional phrasing of the First Amendment was
not intended to protect every utterance.'' All or practically all of the
States which ratified the First Amendment had laws making blasphemy or
profanity or both crimes, and provided for prosecutions of libels as
well. It was this history which had caused the Court in Beauharnais to
conclude that ``libelous utterances are not within the area of
constitutionally protected speech,'' and this history was deemed to
demonstrate that ``obscenity, too, was outside the protection intended
for speech and press.''\6\ ``The protection given speech and press was
fashioned to assure unfettered interchange of ideas for the bringing
about of political and social changes desired by the people . . . . All
ideas having even the slightest redeeming social importance--unorthodox
ideas, controversial ideas, even ideas hateful to the prevailing climate
of opinion--have the full protection of the guaranties, unless
excludable because they encroach upon the limited area of more important
interests. But implicit in the history of the First Amendment is the
rejection of obscenity as utterly without redeeming social
importance.''\7\ It was objected that obscenity legislation punishes
because of incitation to impure thoughts and without proof that obscene
materials create a clear and present danger of antisocial conduct. But
since obscenity was not protected at all, such tests as clear and
present danger were irrelevant.\8\
\4\354 U.S. 476 (1957). Heard at the same time and decided in
the same opinion was Alberts v. California, involving, of course, a
state obscenity law. The Court's first opinion in the obscenity field
was Butler v. Michigan, 352 U.S. 380 (1957), considered infra, p. 1113
n.18. Earlier the Court had divided four-to-four and thus affirmed a
state court judgment that Edmund Wilson's Memoirs of Hecate County was
obscene. Doubleday & Co. v. New York, 335 U.S. 848 (1948).
\5\Roth v. United States, 354 U.S. 476, 481 (1957). Justice
Brennan later changed his mind on this score, arguing that, because the
Court had failed to develop a workable standard for distinguishing the
obscene from the non-obscene, regulation should be confined to the
protection of children and non-consenting adults. See Paris Adult
Theatre I v. Slaton, 413 U.S. 49, 73 (1973), and discussion infra
p.1209, n.29.
\6\354 U.S. at 482-83. The reference is to Beauharnais v.
Illinois, 343 U.S. 250 (1952).
\7\Roth v. United States, 354 U.S. 476, 484 (1957). There then
followed the well-known passage from Chaplinsky v. New Hampshire, 315
U.S. 568, 571-72 (1942); see supra, p.1133.
\8\354 U.S. at 486, also quoting Beauharnais v. Illinois, 343
U.S. 250, 266 (1952).
---------------------------------------------------------------------------
[[Page 1151]]
``However,'' Justice Brennan continued, ``sex and obscenity are
not synonymous. Obscene material is material which deals with sex in a
manner appealing to prurient interest. The portrayal of sex, e.g., in
art, literature and scientific works, is not itself sufficient reason to
deny material the constitutional protection of freedom of speech and
press . . . . It is therefore vital that the standards for judging
obscenity safeguard the protection of freedom of speech and press for
material which does not treat sex in a manner appealing to prurient
interest.''\9\ The standard which the Court thereupon adopted for the
designation of material as unprotected obscenity was ``whether to the
average person, applying contemporary community standards, the dominant
theme of the material taken as a whole appeals to prurient
interest.''\10\ The Court defined material appealing to prurient
interest as ``material having a tendency to excite lustful thoughts,''
and defined prurient interest as ``a shameful or morbid interest in
nudity, sex, or excretion.''\11\
\9\354 U.S. at 487, 488.
\10\Id. at 489.
\11\Id. at 487 n.20. A statute defining ``prurient'' as ``that
which incites lasciviousness or lust'' covers more than obscenity, the
Court later indicated in Brockett v. Spokane Arcades, Inc., 472 U.S.
491, 498 (1984); obscenity consists in appeal to ``a shameful or
morbid'' interest in sex, not in appeal to ``normal, healthy sexual
desires.'' Brockett involved a facial challenge to the statute, so the
Court did not have to explain the difference between ``normal, healthy''
sexual desires and ``shameful'' or ``morbid'' sexual desires.
---------------------------------------------------------------------------
In the years after Roth, the Court struggled with many obscenity
cases with varying degrees of success. The cases can be grouped
topically, but with the exception of those cases dealing with protec
[[Page 1152]]
tion of children,\12\ unwilling adult recipients,\13\and procedure,\14\
these cases are best explicated chronologically.
\12\In Butler v. Michigan, 352 U.S. 380 (1957), the Court
unanimously reversed a conviction under a statute which punished general
distribution of materials unsuitable for children. Protesting that the
statute ``reduce[d] the adult population of Michigan to reading only
what is fit for children,'' the Court pronounced the statute void.
Narrowly drawn proscriptions for distribution or exhibition to children
of materials which would not be obscene for adults are permissible,
Ginsberg v. New York, 390 U.S. 629 (1968), although the Court insists on
a high degree of specificity. Interstate Circuit, Inc. v. City of
Dallas, 390 U.S. 676 (1968); Rabeck v. New York, 391 U.S. 462 (1968).
Protection of children in this context is concurred in even by those
Justices who would proscribe obscenity regulation for adults. Paris
Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113 (1973) (Justice Brennan
dissenting). But children do have First Amendment protection and
government may not bar dissemination of everything to them. ``Speech
that is neither obscene as to youths nor subject to some other
legitimate proscription cannot be suppressed solely to protect the young
from ideas or images that a legislative body thinks unsuitable for
them.'' Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-14 (1975)
(in context of nudity on movie screen). See also FCC v. Pacifica Found.,
438 U.S. 726, 749-50 (1978); Pinkus v. United States, 436 U.S. 293, 296-
98 (1978).
\13\Protection of unwilling adults was the emphasis in Rowan v.
Post Office Dep't, 397 U.S. 728 (1970), which upheld a scheme by which
recipients of objectionable mail could put their names on a list and
require the mailer to send no more such material. But, absent intrusions
into the home, FCC v. Pacifica Found., 438 U.S. 726 (1978), or a degree
of captivity that makes it impractical for the unwilling viewer or
auditor to avoid exposure, government may not censor content, in the
context of materials not meeting constitutional standards for
denomination as pornography, to protect the sensibilities of some. It is
up to offended individuals to turn away. Erznoznik v. City of
Jacksonville, 422 U.S. 205, 208-12 (1975). But see Pinkus v. United
States, 436 U.S. 293, 298-301 (1978) (jury in passing on what community
standards are must include ``sensitive persons'' within the community).
\14\The First Amendment requires that procedures for suppressing
distribution of obscene materials provide for expedited consideration,
for placing the burden of proof on government, and for hastening
judicial review. Supra, p.1033. Additionally, Fourth Amendment search
and seizure law has been suffused with First Amendment principles, so
that the law governing searches for and seizures of allegedly obscene
materials is more stringent than in most other areas. Marcus v. Search
Warrant, 367 U.S. 717 (1961); A Quantity of Books v. Kansas, 378 U.S.
205 (1964); Heller v. New York, 413 U.S. 483 (1973); Roaden v. Kentucky,
413 U.S. 496 (1973); Lo-Ji Sales v. New York, 442 U.S. 319 (1979); and
see Walter v. United States, 447 U.S. 649 (1980). Scienter--that is,
knowledge of the nature of the materials--is a prerequisite to
conviction, Smith v. California, 361 U.S. 147 (1959), but the
prosecution need only prove the defendant knew the contents of the
material, not that he knew they were legally obscene. Hamling v. United
States, 418 U.S. 87, 119-24 (1974). See also Vance v. Universal
Amusement Co., 445 U.S. 308 (1980) (public nuisance injunction of
showing future films on basis of past exhibition of obscene films
constitutes prior restraint); McKinney v. Alabama, 424 U.S. 669 (1976)
(criminal defendants may not be bound by a finding of obscenity of
materials in prior civil proceeding to which they were not parties).
---------------------------------------------------------------------------
Manual Enterprises v. Day\15\ upset a Post Office ban upon the
mailing of certain magazines addressed to homosexual audiences, but
resulted in no majority opinion of the Court. Nor did a majority opinion
emerge in Jacobellis v. Ohio, in which conviction for exhib
[[Page 1153]]
iting a motion picture was reversed.\16\ Chief Justice Warren's
concurrence in Roth\17\ was adopted by a majority in Ginzburg v. United
States,\18\ in which Justice Brennan for the Court held that in
``close'' cases borderline materials could be determined to be obscene
if the seller ``pandered'' them in a way that indicated he was catering
to prurient interests. The same five-Justice majority, with Justice
Harlan concurring, the same day affirmed a state conviction of a
distributor of books addressed to a sado-masochistic audience, applying
the ``pandering'' test and concluding that material could be held
legally obscene if it appealed to the prurient interests of the deviate
group to which it was directed.\19\ Unanimity was shattered, however,
when on the same day the Court held that Fanny Hill, a novel at that
point 277 years old, was not legally obscene.\20\ The prevailing opinion
again restated the Roth tests that, to be considered obscene, material
must (1) have a dominant theme in the work considered as a whole that
appeals to prurient interest, (2) be patently offensive because it goes
beyond contemporary community standards, and (3) be utterly without
redeeming social value.\21\
\15\370 U.S. 478 (1962).
\16\378 U.S. 184 (1964). Without opinion, citing Jacobellis, the
Court reversed a judgment that Henry Miller's Tropic of Cancer was
obscene. Grove Press v. Gerstein, 378 U.S. 577 (1964). Jacobellis is
best known for Justice Stewart's concurrence, contending that criminal
prohibitions should be limited to ``hard-core pornography.'' The
category ``may be indefinable,'' he added, but ``I know it when I see
it, and the motion picture involved in this case is not that.'' Id. at
197. The difficulty with this visceral test is that other members of the
Court did not always ``see it'' the same way; two years later, for
example, Justice Stewart was on opposite sides in two obscenity
decisions decided on the same day. A Book Named ``John Cleland's Memoirs
of a Woman of Pleasure'' v. Attorney General of Massachusetts, 383 U.S.
413, 421 (1966) (concurring on basis that book was not obscene); Mishkin
v. New York, 383 U.S. 502, 518 (1966) (dissenting from finding that
material was obscene).
\17\Roth v. United States, 354 U.S. 476, 494 (1957).
\18\383 U.S. 463 (1966). Pandering remains relevant in
pornography cases. Splawn v. California, 431 U.S. 595 (1977); Pinkus v.
United States, 436 U.S. 293, 303-04 (1978).
\19\Mishkin v. New York, 383 U.S. 502 (1966). See id. at 507-10
for discussion of the legal issue raised by the limited appeal of the
material. The Court relied on Mishkin in Ward v. Illinois, 431 U.S. 767,
772 (1977).
\20\A Book Named ``John Cleland's Memoirs of a Woman of
Pleasure'' v. Attorney General of Massachusetts, 383 U.S. 413 (1966).
\21\Id. at 418. On the precedential effect of the Memoirs
plurality opinion, see Marks v. United States, 430 U.S. 188, 192-94
(1977).
---------------------------------------------------------------------------
After the divisions engendered by the disparate opinions in the
three 1966 cases, the Court over the next several years submerged its
differences by per curiam dispositions of nearly three dozen cases, in
all but one of which it reversed convictions or civil determinations of
obscenity. The initial case was Redrup v. New York,\22\ in which, after
noting that the cases involved did not present special questions
requiring other treatment, such as concern for juve
[[Page 1154]]
niles, protection of unwilling adult recipients, or proscription of
pandering,\23\ the Court succinctly summarized the varying positions of
the seven Justices in the majority and said: ``[w]hichever of the
constitutional views is brought to bear upon the cases before us, it is
clear that the judgments cannot stand . . . .''\24\ And so things went
for several years.\25\
\22\386 U.S. 767 (1967).
\23\Id. at 771.
\24\Id. at 770-71. The majority was thus composed of Chief
Justice Warren and Justices Black, Douglas, Brennan, Stewart, White, and
Fortas.
\25\See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 82-83 &
n.8 (1973) (Justice Brennan dissenting) (describing Redrup practice and
listing 31 cases decided on the basis of it).
---------------------------------------------------------------------------
Changing membership on the Court raised increasing speculation
about the continuing vitality of Roth; it seemed unlikely the Court
would long continue its Redrup approach.\26\ The change when it occurred
strengthened the powers of government, federal, state, and local, to
outlaw or restrictively regulate the sale and dissemination of materials
found objectionable, and developed new standards for determining which
objectionable materials are legally obscene.
\26\See United States v. Reidel, 402 U.S. 351 (1971) (federal
prohibition of dissemination of obscene materials through the mails is
constitutional); United States v. Thirty-Seven Photographs, 402 U.S. 363
(1971) (customs seizures of obscene materials from baggage of travelers
are constitutional). In Grove Press v. Maryland State Board of Censors,
401 U.S. 480 (1971), a state court determination that the motion picture
``I Am Curious (Yellow)'' was obscene was affirmed by an equally divided
Court, Justice Douglas not participating. And Stanley v. Georgia, 394
U.S. 557, 560-64, 568 (1969), had insisted that Roth remained the
governing standard.
---------------------------------------------------------------------------
At the end of the October 1971 Term, the Court requested
argument on the question whether the display of sexually oriented films
or of sexually oriented pictorial magazines, when surrounded by notice
to the public of their nature and by reasonable protection against
exposure to juveniles, was constitutionally protected.\27\ By a five-to-
four vote the following Term, the Court in Paris Adult Theatre I v.
Slaton adhered to the principle established in Roth that obscene
material is not protected by the First and Fourteenth Amendments even if
access is limited to consenting adults.\28\ Chief Justice Burger for the
Court observed that the States have wider interests than protecting
juveniles and unwilling adults from exposure to pornography; legitimate
state interests, effectuated through the exercise of the police power,
exist in protecting and improving the quality of life and the total
community environment, in improving the tone of commerce in the cities,
and in protecting public safety. It matters not that the States may be
acting on the basis
[[Page 1155]]
of unverifiable assumptions in arriving at the decision to suppress the
trade in pornography; the Constitution does not require in the context
of the trade in ideas that governmental courses of action be subject to
empirical verification any more than it does in other fields. Nor does
the Constitution embody any concept of laissez faire, or of privacy, or
of Millsean ``free will,'' that curbs governmental efforts to suppress
pornography.\29\
\27\Paris Adult Theatre I v. Slaton, 408 U.S. 921 (1972);
Alexander v. Virginia, 408 U.S. 921 (1972).
\28\413 U.S. 49 (1973).
\29\Id. at 57, 60-62, 63-64, 65-68. Delivering the principal
dissent, Justice Brennan argued that the Court's Roth approach allowing
the suppression of pornography was a failure, that the Court had not and
could not formulate standards by which protected materials could be
distinguished from unprotected materials, and that the First Amendment
had been denigrated through the exposure of numerous persons to
punishment for the dissemination of materials that fell close to one
side of the line rather than the other, but more basically by deterrence
of protected expression caused by the uncertainty. Id. at 73. ``I would
hold, therefore, that at least in the absence of distribution to
juveniles or obtrusive exposure to unconsenting adults, the First and
Fourteenth Amendments prohibit the State and Federal Governments from
attempting wholly to suppress sexually oriented materials on the basis
of their allegedly `obscene' contents.'' Id. at 113. Justices Stewart
and Marshall joined this opinion; Justice Douglas dissented separately,
adhering to the view that the First Amendment absolutely protected all
expression. Id. at 70.
---------------------------------------------------------------------------
In Miller v. California,\30\ the Court then undertook to
enunciate standards by which unprotected pornographic materials were to
be identified. Because of the inherent dangers in undertaking to
regulate any form of expression, laws to regulate pornography must be
carefully limited; their scope is to be confined ``to works which depict
or describe sexual conduct.'' That conduct must be specifically defined
by the applicable statute, whether as written or as authoritatively
construed by the courts.\31\ The law ``must also be limited to works
which, taken as a whole, appeal to the prurient interest in sex, which
portray sexual conduct in a patently offensive way, and which, taken as
a whole, do not have serious literary, artistic, political, or
scientific value.''\32\ The standard that a work must be ``utterly
without redeeming social value'' before it may be suppressed was
disavowed and discarded. In determining whether material appeals to a
prurient interest or is patently offensive, the
[[Page 1156]]
trier of fact, whether a judge or a jury, is not bound by a hypothetical
national standard but may apply the local community standard where the
trier of fact sits.\33\ Prurient interest and patent offensiveness, the
Court indicated, ``are essentially questions of fact.''\34\ By contrast,
the third or ``value'' prong of the Miller test is not subject to a
community standards test; instead, the appropriate standard is ``whether
a reasonable person would find [literary, artistic, political, or
scientific] value in the material, taken as a whole.''\35\ The Court in
Miller reiterated that it was not permitting an unlimited degree of
suppression of materials. Only ``hard core'' materials were to be deemed
without the protection of the First Amendment; its idea of the content
of ``hard core'' pornography was revealed in its example of the types of
conduct that could not be portrayed: ``(a) Patently offensive
representations or descriptions of ultimate sexual acts, normal or
perverted, actual or simulated. (b) Patently offensive representations
or descriptions of masturbation, excretory functions, and lewd
exhibition of the genitals.''\36\ Portrayal need not be limited to
pictorial representation; books containing only descriptive language, no
pictures, were subject to suppression under the standards.\37\
\30\413 U.S. 15 (1973).
\31\Miller v. California, 413 U.S. 15, 24 (1973). The Court
stands ready to import into the general phrasings of federal statutes
the standards it has now formulated. United States v. 12 200-Ft. Reels
of Film, 413 U.S. 123, 130 n.7 (1973) (Court is prepared to construe
statutes proscribing materials that are ``obscene,'' ``lewd,''
``lascivious,'' ``filthy,'' ``indecent,'' and ``immoral'' as limited to
the types of ``hard core'' pornography reachable under the Miller
standards). For other cases applying Miller standards to federal
statutes, see Hamling v. United States, 418 U.S. 87, 110-16 (1974) (use
of the mails); United States v. Orito, 413 U.S. 139 (1973)
(transportation of pornography in interstate commerce). The Court's
insistence on specificity in state statutes, either as written by the
legislature or as authoritatively construed by the state court, appears
to have been significantly weakened, in fact if not in enunciation, in
Ward v. Illinois, 431 U.S. 767 (1977).
\32\Miller v. California, 413 U.S. at 24.
\33\It is the unprotected nature of obscenity that allows this
inquiry; offensiveness to local community standards is, of course, a
principle completely at odds with mainstream First Amendment
jurisprudence. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989); R. A.
V. v. City of St. Paul, 112 S. Ct. 2538 (1992).
\34\Id. at 30-34. ``A juror is entitled to draw on his knowledge
of the views of the average person in the community or vicinage from
which he comes for making the required determination, just as he is
entitled to draw on his knowledge of the propensities of a `reasonable'
person in other areas of the law.'' Hamling v. United States, 418 U.S.
87, 104 (1974). The holding does not compel any particular circumscribed
area to be used as a ``community.'' In federal cases, it will probably
be the judicial district from which the jurors are drawn, Id. at 105-
106. Indeed, the jurors may be instructed to apply ``community
standards'' without any definition being given of the ``community.''
Jenkins v. Georgia, 418 U.S. 153, 157 (1974). In a federal prosecution
for use of the mails to transmit pornography, the fact that the
legislature of the State within which the transaction takes place has
abolished pornography regulation except for dealings with children does
not preclude permitting the jurors in the federal case to make their own
definitions of what is offensive to contemporary community standards;
they may be told of the legislature's decision but they are not bound by
it. Smith v. United States, 431 U.S. 291 (1977).
\35\Pope v. Illinois, 481 U.S. 497, 500-01 (1987).
\36\Miller v. California, 413 U.S. 15, 25-28 (1973). Quoting
Miller's language in Hamling v. United States, 418 U.S. 87, 114 (1974),
the Court reiterated that it was only ``hard-core'' material that was
unprotected. ``While the particular descriptions there contained were
not intended to be exhaustive, they clearly indicate that there is a
limit beyond which neither legislative draftsmen nor juries may go in
concluding that particular material is `patently offensive' within the
meaning of the obscenity test set forth in the Miller cases.'' Referring
to this language in Ward v. Illinois, 431 U.S. 767 (1977), the Court
upheld a state court's power to construe its statute to reach
sadomasochistic materials not within the confines of the Miller
language.
\37\Kaplan v. California, 413 U.S. 115 (1973).
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[[Page 1157]]
First Amendment values, the Court stressed in Miller, ``are
adequately protected by the ultimate power of appellate courts to
conduct an independent review of constitutional claims when
necessary.''\38\ But the Court had conferred on juries as triers of fact
the determination, based upon their understanding of community
standards, whether material was ``patently offensive.'' Did not this
virtually immunize these questions from appellate review? In Jenkins v.
Georgia,\39\ the Court, while adhering to the Miller standards, stated
that ``juries [do not] have unbridled discretion in determining what is
`patently offensive.''' Miller was intended to make clear that only
``hard-core'' materials could be suppressed and this concept and the
Court's descriptive itemization of some types of hardcore materials were
``intended to fix substantive constitutional limitations, deriving from
the First Amendment, on the type of material subject to such a
determination.'' The Court's own viewing of the motion picture in
question convinced it that ``[n]othing in the movie falls within either
of the two examples given in Miller of material which may
constitutionally be found to meet the `patently offensive' element of
those standards, nor is there anything sufficiently similar to such
material to justify similar treatment.''\40\ But in a companion case,
the Court found that a jury determination of obscenity ``was supported
by the evidence and consistent with'' the standards.\41\
\38\413 U.S. at 25.
\39\418 U.S. 153 (1974).
\40\Id. at 161. The film at issue was Carnal Knowledge.
\41\Hamling v. United States, 418 U.S. 87 (1974). In Smith v.
United States, 431 U.S. 291, 305-06 (1977), the Court explained that
jury determinations in accordance with their own understanding of the
tolerance of the average person in their community are not unreviewable.
Judicial review would pass on (1) whether the jury was properly
instructed to consider the entire community and not simply the members'
own subjective reaction or the reactions of a sensitive or of a callous
minority, (2) whether the conduct depicted fell within the examples
specified in Miller, (3) whether the work lacked serious literary,
artistic, political, or scientific value, and (4) whether the evidence
was sufficient. The Court indicated that the value test of Miller ``was
particularly amenable to judicial review.'' The value test is not to be
measured by community standards, the Court later held in Pope v.
Illinois, 481 U.S. 497 (1987), but instead by a ``reasonable person''
standard. An erroneous instruction on this score, however, may be
``harmless error.'' Id. at 503.
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The decisions from the Paris Adult Theatre and Miller era were
rendered by narrow majorities,\42\ but nonetheless have guided the Court
since. There is no indication that the dissenting viewpoints in those
cases will gain ascendancy in the foreseeable future;\43\ if anything,
government authority to define and regulate
[[Page 1158]]
obscenity may be strengthened. Also, the Court's willingness to allow
substantial regulation of non-obscene but sexually explicit or indecent
expression reduces the importance (outside the criminal area) of whether
material is classified as obscene.
\42\For other five-to-four decisions of the era, see Marks v.
United States, 430 U.S. 188 (1977); Smith v. United States, 431 U.S. 291
(1977); Splawn v. California, 431 U.S. 595 (1977); and Ward v. Illinois,
431 U.S. 767 (1977).
\43\None of the dissenters in Miller and Paris Adult Theatre
(Douglas, Brennan, Stewart, and Marshall) remain on the Court. Justice
Stevens agrees with Justice Brennan that ``government may not
constitutionally criminalize mere possession or sale of obscene
literature, absent some connection to minors or obtrusive display to
unconsenting adults,'' Pope v. Illinois, 481 U.S. 497, 513 (Stevens, J.,
dissenting), but it is doubtful whether any other members of the current
Court share this view. Justice White's dissenting opinion in Barnes v.
Glen Theatre, Inc., 111 S. Ct. 2456, 2472 (1991), joined by Justice
Blackmun and the now-retired Justice Marshall, seems to reflect similar
views with respect to regulation of non-obscene nude dancing, but does
not address regulation of obscenity. Both Justice White and Justice
Blackmun voted with the majority in Miller and Paris Adult Theatre.
---------------------------------------------------------------------------
Even as to materials falling within the constitutional
definition of obscene, the Court has recognized a limited private,
protected interest in possession within the home,\44\ unless those
materials constitute child pornography. Stanley v. Georgia was an appeal
from a state conviction for possession of obscene films discovered in
appellant's home by police officers armed with a search warrant for
other items which were not found. Unanimously,\45\ the Court reversed,
holding that the mere private possession of obscene materials in the
home cannot be made a criminal offense. The Constitution protects the
right to receive information and ideas, the Court said, regardless of
their social value, and ``that right takes on an added dimension'' in
the context of a prosecution for possession of something in one's own
home. ``For also fundamental is the right to be free, except in very
limited circumstances, from unwanted governmental intrusions into one's
privacy.''\46\ Despite the unqualified assertion in Roth that obscenity
was not protected by the First Amendment, the Court observed, it and the
cases following were concerned with the governmental interest in
regulating commercial distribution of obscene materials.'' Roth and the
cases following that decision are not impaired by today's decision,''
the Court insisted,\47\ but in its rejection of each of the state
contentions made in support of the conviction the Court appeared to be
rejecting much of the basis of Roth. First, there is no governmental
interest in protecting an individual's mind from the effect of
obscenity. Second, the absence of ideological content in the films was
irrelevant, since the Court will not draw a line between transmission of
ideas
[[Page 1159]]
and entertainment. Third, there is no empirical evidence to support a
contention that exposure to obscene materials may incite a person to
antisocial conduct; even if there were such evidence, enforcement of
laws proscribing the offensive conduct is the answer. Fourth, punishment
of mere possession is not necessary to punishment of distribution.
Fifth, there was little danger that private possession would give rise
to the objections underlying a proscription upon public dissemination,
exposure to children and unwilling adults.\48\
\44\Stanley v. Georgia, 394 U.S. 557 (1969).
\45\Justice Marshall wrote the opinion of the Court and was
joined by Justices Douglas, Harlan, and Fortas, and Chief Justice
Warren. Justice Black concurred. Id. at 568. Justice Stewart concurred
and was joined by Justices Brennan and White on a search and seizure
point. Justice Stewart, however, had urged the First Amendment ground in
an earlier case. Mapp v. Ohio, 367 U.S. 643, 686 (1961) (concurring
opinion).
\46\394 U.S. at 564.
\47\Id. at 560-64, 568.
\48\Id. at 565-68.
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Stanley's broad rationale has been given a restrictive reading,
and the holding has been confined to its facts. Any possible implication
that Stanley was applicable outside the home and recognized a right to
obtain pornography or a right in someone to supply it was soon
dispelled.\49\ The Court has consistently rejected Stanley's theoretical
underpinnings, upholding morality-based regulation of the behavior of
consenting adults.\50\ Also, Stanley has been held inapplicable to
possession of child pornography in the home, the Court determining that
the state interest in protecting children from sexual exploitation far
exceeds the interest in Stanley of protecting adults from
themselves.\51\ Apparently for this reason, a state's conclusion that
punishment of mere possession is a necessary or desirable means of
reducing production of child pornography will not be closely
scrutinized.\52\
\49\Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-68 (1973).
Transportation of unprotected material for private use may be
prohibited, United States v. Orito, 413 U.S. 139 (1973), and the mails
may be closed, United States v. Reidel, 402 U.S. 351 (1971), as may
channels of international movement, United States v. Thirty-Seven
Photographs, 402 U.S. 363 (1971); United States v. 12 200-Ft. Reels of
Film, 413 U.S. 123 (1973).
\50\Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-70 (1973)
(commercial showing of obscene films to consenting adults); Bowers v.
Hardwick, 478 U.S. 186 (1986) (private, consensual, homosexual conduct);
Barnes v. Glen Theatre, Inc., 111 S. Ct. 2456 (1991) (regulation of non-
obscene, nude dancing restricted to adults).
\51\Osborne v. Ohio, 495 U.S. 103 (1990).
\52\Id. at 109-10.
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Child Pornography.--In New York v. Ferber,\53\ the Court
recognized another category of expression that is outside the coverage
of the First Amendment, the pictorial representation of children in
films or still photographs in a variety of sexual activities or
exposures of the genitals. The basic reason such depictions could be
prohibited was the governmental interest in protecting the physical
[[Page 1160]]
and psychological well-being of children whose participation in the
production of these materials would subject them to exploitation and
harm. The state may go beyond a mere prohibition on the use of the
children, because it is not possible to protect children adequately
without prohibiting the exhibition and dissemination of the materials
and advertising about them. Thus, ``the evil to be restricted so
overwhelmingly outweighs the expressive interests, if any, at stake,
that no process of case-by-case adjudication is required.''\54\ But,
since expression is involved, government must carefully define what
conduct is to be prohibited and may reach only ``works that visually
depict sexual conduct by children below a specified age.''\55\
\53\458 U.S. 747 (1982). Decision of the Court was unanimous,
although there were several limiting concurrences. Compare, e.g., 775
(Justice Brennan, arguing for exemption of ``material with serious
literary, scientific, or educational value''), with 774 (Justice
O'Connor, arguing that such material need not be excepted). The Court
did not pass on the question, inasmuch as the materials before it were
well within the prohibitable category. Id. at 766-74.
\54\Id. at 763-64.
\55\Id. at 764 (emphasis original). The Court's statement of the
modified Miller standards for child pornography is at id., 764-65.
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The reach of the state may even extend to private possession of
child pornography in the home. In Osborne v. Ohio\56\ the Court upheld a
state law criminalizing the possession or viewing of child pornography
as applied to someone who possessed such materials in his home.
Distinguishing Stanley v. Georgia, the Court ruled that Ohio's interest
in preventing exploitation of children far exceeded what it
characterized as Georgia's ``paternalistic interest'' in protecting the
minds of adult viewers of pornography.\57\ Because of the greater
importance of the state interest involved, the Court saw less need to
require states to demonstrate a strong necessity for regulating private
possession as well as commercial distribution and sale.
\56\495 U.S. 103 (1990).
\57\Id. at 108.
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Non-obscene But Sexually Explicit and Indecent Expression.--
There is expression, either spoken or portrayed, which is offensive to
some but is not within the constitutional standards of unprotected
obscenity. Nudity portrayed in films or stills cannot be presumed
obscene\58\ nor can offensive language ordinarily be punished simply
because it offends someone.\59\ Nonetheless, govern
[[Page 1161]]
ment may regulate sexually explicit but non-obscene expression in a
variety of ways. Legitimate governmental interests may be furthered by
appropriately narrow regulation, and the Court's view of how narrow
regulation must be is apparently influenced not only by its view of the
strength of the government's interest in regulation, but also by its
view of the importance of the expression itself. In other words,
sexually explicit expression does not receive the same degree of
protection afforded purely political speech.\60\
\58\Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-14
(1975).
\59\E.g., Cohen v. California, 403 U.S. 15 (1971). Special rules
apply to broadcast speech, which, because of its intrusion into the home
and the difficulties of protecting children, is accorded ``the most
limited First Amendment protection'' of all forms of communication; non-
obscene but indecent language may be curtailed, the time of day and
other circumstances determining the extent of curtailment. FCC v.
Pacifica Found., 438 U.S. 726, 748 (1978). However, recent efforts by
Congress and the FCC to extend the indecency ban to 24 hours a day have
been rebuffed by an appeals court. Action for Children's Television v.
FCC, 932 F.2d 1504 (D.C. Cir. 1991) (invalidating regulations
promulgated pursuant to Pub. L. No. 100-459, Sec. 608), cert. denied,
112 S. Ct. 1281, 1282. Earlier, the same court had invalidated an FCC
restriction on indecent, non-obscene broadcasts to the hours of midnight
to 6 a.m., finding that the FCC had failed to adduce sufficient evidence
to support the restraint. Action for Children's Television v. FCC, 852
F.2d 1332, 1335 (D.C. Cir. 1988). Congress has now imposed a similar 6
a.m.-to-midnight ban on indecent programming, with a 10 p.m.-to-midnight
exception for stations that go off the air at midnight. Pub. L. 102-356,
Sec. 16 (1992), 47 U.S.C. Sec. 303 note.
\60\Justice Scalia, concurring in Sable Communications v. FCC,
492 U.S. 115, 132 (1989), suggested that there should be a ``sliding
scale'' taking into account the definition of obscenity: ``[t]he more
narrow the understanding of what is `obscene,' and hence the more
pornographic what is embraced within the residual category of
`indecency,' the more reasonable it becomes to insist upon greater
assurance of insulation from minors.'' Barnes v. Glen Theatre, 111 S.
Ct. 2456 (1991), upholding regulation of nude dancing even in the
absence of threat to minors, may illustrate a general willingness by the
Court to apply soft rather than strict scrutiny to regulation of more
sexually explicit expression.
---------------------------------------------------------------------------
Government has a ``compelling'' interest in the protection of
children from seeing or hearing indecent material, but total bans
applicable to adults and children alike are constitutionally
suspect.\61\ Also, government may take notice of objective conditions
attributable to the commercialization of sexually explicit but non-
obscene materials. Thus, the Court recognized a municipality's authority
to zone land to prevent deterioration of urban areas, upholding an
ordinance providing that ``adult theaters'' showing motion pictures that
depicted ``specified sexual activities'' or ``specified anatomical
areas'' could not be located within 100 feet of any two other
establishments included within the ordinance or within 500 feet of a
residential area.\62\ Similarly, an adult bookstore is subject
[[Page 1162]]
to closure as a public nuisance if it is being used as a place for
prostitution and illegal sexual activities, since the closure ``was
directed at unlawful conduct having nothing to do with books or other
expressive activity.''\63\ However, a city was held constitutionally
powerless to prohibit drive-in motion picture theaters from showing
films containing nudity if the screen is visible from a public street or
place.\64\ Also, the FCC was unable to justify a ban on transmission of
``indecent'' but not obscene telephone messages.\65\
\61\See Sable Communications v. FCC, 492 U.S. 115 (1989) (FCC's
``dial-a-porn'' rules imposing a total ban on ``indecent'' speech are
unconstitutional, given less restrictive alternatives--e.g., credit
cards or user IDs--of preventing access by children). Pacifica
Foundation is distinguishable, the Court reasoned, because that case did
not involve a ``total ban'' on broadcast, and also because there is no
``captive audience'' for the ``dial-it'' medium, as there is for the
broadcast medium. 492 U.S. at 127-28.
\62\Young v. American Mini Theatres, 427 U.S. 50 (1976). Four of
the five majority Justices thought the speech involved deserved less
First Amendment protection than other expression, id. at 63-71, while
Justice Powell, concurring, thought the ordinance was sustainable as a
measure that served valid governmental interests and only incidentally
affected expression. Id. at 73. Justices Stewart, Brennan, Marshall, and
Blackmun dissented. Id. at 84, 88. Young was followed in City of Renton
v. Playtime Theatres, 475 U.S. 41 (1986), upholding a city ordinance
prohibiting location of adult theaters within 1,000 feet of residential
areas, churches, or parks, and within one mile of any school. Rejecting
the claim that the ordinance regulated content of speech, the Court
indicated that such time, place and manner regulations are valid if
``designed to serve a substantial governmental interest'' and if
``allow[ing] for reasonable alternative avenues of communication.'' Id.
at 39. The city had a substantial interest in regulating the
``undesirable secondary effects'' of such businesses. And, while the
suitability for adult theaters of the remaining 520 acres within the
city was disputed, the Court held that the theaters ``must fend for
themselves in the real estate market,'' and are entitled only to ``a
reasonable opportunity to open and operate.'' Id. at 42.
\63\Arcara v. Cloud Books, 478 U.S. 697 (1986).
\64\Erznoznik v. City of Jacksonville, 422 U.S. 204 (1975).
Dissenting from Justice Powell's opinion for the Court were Chief
Justice Burger and Justices White and Rehnquist. Id. at 218, 224. Only
Justice Blackmun, of the Justices in the majority, remains on the Court
in 1992, and it seems questionable whether the current Court would reach
the same result.
\65\Sable Communications of California v. FCC, 492 U.S. 115
(1989).
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The Court has recently held, however, that ``live'' productions
containing nudity can be regulated to a greater extent than had been
allowed for films and publications. Whether this represents a
distinction between live performances and other entertainment media, or
whether instead it signals a more permissive approach overall to
governmental regulation of non-obscene but sexually explicit material,
remains to be seen. In Barnes v. Glen Theatre, Inc.,\66\ the Court
upheld application of Indiana's public indecency statute to require that
dancers in public performances of nude, non-obscene erotic dancing wear
``pasties'' and a ``G-string'' rather than appear totally nude. There
was no opinion of the Court, three Justices viewing the statute as a
permissible regulation of ``societal order and morality,''\67\ one
viewing it as a permissible means of regulating supposed secondary
effects of prostitution and other criminal activity,\68\ and a fifth
Justice seeing no need for special First Amendment protection from a law
of general applicability directed at conduct rather than expression.\69\
All but one of the Justices agreed that nude dancing is entitled to some
First Amendment protection,\70\ but the result of Barnes was a bare
minimum
[[Page 1163]]
of protection. Numerous questions remain unanswered. In addition to the
uncertainty over applicability of Barnes to regulation of the content of
films or other shows in ``adult'' theaters,\71\ there is also the issue
of its applicability to nudity in operas or theatrical productions not
normally associated with commercial exploitation of sex.\72\ But broad
implications for First Amendment doctrine are probably unwarranted.\73\
The Indiana statute was not limited in application to barrooms; had it
been, then the Twenty-first Amendment would have afforded additional
authority to regulate the erotic dancing.\74\
\66\111 S. Ct. 2456 (1991).
\67\Id. (Chief Justice Rehnquist, joined by Justices O'Connor
and Kennedy).
\68\Id. at 2468 (Justice Souter).
\69\Id. at 2463 (Justice Scalia). The Justice thus favored
application of the same approach recently applied to free exercise of
religion in Employment Division v. Smith, 494 U.S. 872 (1990).
\70\Earlier cases had established as much. See California v.
LaRue, 409 U.S. 109, 118 (1972); Southeastern Promotions v. Conrad, 420
U.S. 546, 557-58 (1975); Doran v. Salem Inn, 422 U.S. 922, 932 (1975);
Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981); New York
State Liquor Auth. v. Bellanca, 452 U.S. 714, 716, 718 (1981).
Presumably, then, the distinction between barroom erotic dancing,
entitled to minimum protection, and social ``ballroom'' dancing, not
expressive and hence not entitled to First Amendment protection (see
City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989)), still hangs by a
few threads. Justice Souter, concurring in Barnes, 111 S. Ct. 2468,
recognized the validity of the distinction between ballroom and erotic
dancing, a validity that had been questioned by a dissent in the lower
court. Miller v. Civil City of South Bend, 904 F.2d 1081, 1128-29 (7th
Cir. 1990) (Easterbrook, J.).
\71\Although Justice Souter relied on what were essentially
zoning cases (Young v. American Mini Theatres and Renton v. Playtime
Theatres) to justify regulation of expression itself, he nonetheless
pointed out that a pornographic movie featuring one of the respondent
dancers was playing nearby without interference by the authorities. This
suggests that, at least with respect to direct regulation of the degree
of permissible nudity, he might draw a distinction between ``live'' and
film performances even while acknowledging the harmful ``secondary''
effects associated with both.
\72\ The Court has not ruled directly on such issues. See
Southeastern Promotions v. Conrad, 420 U.S. 546 (1975) (invalidating the
denial of use of a public auditorium for a production of the musical
``Hair,'' in the absence of procedural safeguards that must accompany a
system of prior restraint). Presumably the Barnes plurality's public
morality rationale would apply equally to the ``adult'' stage and to the
operatic theater, while Justice Souter's secondary effects rationale
would not. But the plurality ducked this issue, reinterpreting the lower
court record to deny that Indiana had distinguished between ``adult''
and theatrical productions. 111 S. Ct. at 2459 n.1 (Chief Justice
Rehnquist); id. at 2464 n.2 (Justice Scalia). On the other hand, the
fact that the state authorities disclaimed any intent to apply the
statute to theatrical productions demonstrated to dissenting Justice
White (who was joined by Justices Marshall, Blackmun, and Stevens) that
the statute was not a general prohibition on public nudity, but instead
was targeted at ``the communicative aspect of the erotic dance.'' 111 S.
Ct. at 2473.
\73\The Court had only recently affirmed that music is entitled
to First Amendment protection independently of the message conveyed by
any lyrics (Ward v. Rock Against Racism, 491 U.S. 781 (1989)), so it
seems implausible that the Court is signalling a narrowing of protection
to only ideas and opinions. Rather, the Court seems willing to give
government the benefit of the doubt when it comes to legitimate
objectives in regulating expressive conduct that is sexually explicit.
For an extensive discourse on the expressive aspects of dance and the
arts in general, and the striptease in particular, see Judge Posner's
concurring opinion in the lower court's disposition of Barnes. Miller v.
Civil City of South Bend, 904 F.2d 1081, 1089 (7th Cir. 1990).
\74\California v. LaRue, 409 U.S. 109 (1972); New York State
Liquor Auth. v. Bellanca, 452 U.S. 714 (1981).
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[[Page 1164]]
FIRST AMENDMENT
RELIGION AND EXPRESSION
FREEDOM OF EXPRESSION--SPEECH AND PRESS
Speech Plus--The Constitutional Law of Leafleting, Picketing, and
Demonstrating
Communication of political, economic, social, and other views is
not accomplished solely by face-to-face speech, broadcast speech, or
writing in newspapers, periodicals, and pamphlets. There is also
``expressive conduct,'' which includes picketing, patrolling, and
marching, distribution of leaflets and pamphlets and addresses to
publicly assembled audiences, door-to-door solicitation and many forms
of ``sit-ins.'' There is also a class of conduct now only vaguely
defined which has been denominated ``symbolic conduct,'' which includes
such actions as flag desecration and draft-card burnings. Because all
these ways of expressing oneself involve conduct--action--rather than
mere speech, they are all much more subject to regulation and
restriction than is simple speech. Some of them may be forbidden
altogether. But to the degree that these actions are intended to
communicate a point of view the First Amendment is relevant and protects
some of them to a great extent. Sorting out the conflicting lines of
principle and doctrine is the point of this section.
The Public Forum.--In 1895 while he was a member of the highest
court of Massachusetts, Justice Holmes rejected a contention that public
property was by right open to the public as a place where the right of
speech could be recognized,\75\ a rejection endorsed in its rationale on
review by the United States Supreme Court.\76\ This point of view was
rejected by the Court in Hague v. CIO,\77\ where Justice Roberts wrote:
``Wherever the title of streets and parks may rest, they have
immemorially been held in trust for the use of the public and, time out
of mind, have been used for purposes of assembly, communicating thoughts
between citizens, and discussing public questions. Such use of the
streets and public places has from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens.'' While this
opinion was not itself joined by a majority of the Justices, the view
was subsequently endorsed by the Court in several opinions.\78\
\75\Commonwealth v. Davis, 162 Mass. 510, 511 (1895). ``For the
Legislature absolutely or conditionally to forbid public speaking in a
highway or public park is no more an infringement of rights of a member
of the public than for the owner of a private house to forbid it in the
house.''
\76\Davis v. Massachusetts, 167 U.S. 43, 48 (1897).
\77\307 U.S. 496, 515 (1939). Only Justice Black joined the
opinion and Chief Justice Hughes generally concurred in it, but only
Justices McReynolds and Butler dissented from the result.
\78\E.g., Schneider v. State, 308 U.S. 147, 163 (1939); Kunz v.
New York, 340 U.S. 290, 293 (1951).
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[[Page 1165]]
It was called into question in the 1960's, however, when the
Court seemed to leave the issue open\79\ and when a majority endorsed an
opinion of Justice Black's asserting his own narrower view of speech
rights in public places.\80\ More recent decisions have restated and
quoted the Roberts language from Hague and that is now the position of
the Court.\81\ Public streets and parks,\82\ including those adjacent to
courthouses\83\ and foreign embassies,\84\ as well as public
libraries\85\ and the grounds of legislative bodies,\86\ are open to
public demonstrations, although the uses to which public areas are
dedicated may shape the range of permissible expression and conduct that
may occur there.\87\ Moreover, not all public
[[Page 1166]]
properties are thereby public forums. ``[T]he First Amendment does not
guarantee access to property simply because it is owned or controlled by
the government.''\88\ ``The crucial question is whether the manner of
expression is basically compatible with the normal activity of a
particular place at a particular time.''\89\ Thus, by the nature of the
use to which the property is put or by tradition, some sites are simply
not as open for expression as streets and parks are.\90\ But if
government does open non-traditional forums for expressive activities,
it may not discriminate on the basis of content or viewpoint in
according access.\91\ The Court in accepting the public forum concept
has nevertheless been divided with respect to the reach of the
doctrine.\92\ The concept is likely, therefore, to continue be a focal
point of judicial debate in coming years.
\79\Cox v. Louisiana, 379 U.S. 536, 555 (1965). For analysis of
this case in the broader context, see Kalven, The Concept of the Public
Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1.
\80\Adderley v. Florida, 385 U.S. 39 (1966). See id. at 47-48;
Cox v. Louisiana, 379 U.S. 559, 578 (1965) (Justice Black concurring in
part and dissenting in part); Jamison v. Texas, 318 U.S. 413, 416 (1943)
(Justice Black for the Court).
\81\E.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152
(1969); Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); Carey v.
Brown, 447 U.S. 455, 460 (1980).
\82\Hague v. CIO, 307 U.S. 496 (1939); Niemotko v. Maryland, 340
U.S. 268 (1951); Kunz v. New York, 340 U.S. 290 (1951); Shuttlesworth v.
City of Birmingham, 394 U.S. 147 (1969); Coates v. City of Cincinnati,
402 U.S. 611 (1971); Grayned v. City of Rockford, 408 U.S. 104 (1972);
Greer v. Spock, 424 U.S. 828, 835-36 (1976); Carey v. Brown, 447 U.S.
455 (1980).
\83\Narrowly drawn statutes which serve the State's interests in
security and in preventing obstruction of justice and influencing of
judicial officers are constitutional. Cox v. Louisiana, 379 U.S. 559
(1965). A restriction on carrying signs or placards on the grounds of
the Supreme Court is unconstitutional as applied to the public sidewalks
surrounding the Court, since it does not sufficiently further the
governmental purposes of protecting the building and grounds,
maintaining proper order, or insulating the judicial decisionmaking
process from lobbying. United States v. Grace, 461 U.S. 171 (1983).
\84\In Boos v. Barry, 485 U.S. 312 (1988), the Court struck down
as content-based a District of Columbia law prohibiting the display of
any sign within 500 feet of a foreign embassy if the sign tends to bring
the foreign government into ``public odium'' or ``public disrepute.''
However, another aspect of the District's law, making it unlawful for
three or more persons to congregate within 500 feet of an embassy and
refuse to obey a police dispersal order, was upheld; under a narrowing
construction, the law had been held applicable only to congregations
directed at an embassy, and reasonably believed to present a threat to
the peace or security of the embassy.
\85\Brown v. Louisiana, 383 U.S. 131 (1966) (sit-in in library
reading room).
\86\Edwards v. South Carolina, 372 U.S. 229 (1963); Jeanette
Rankin Brigade v. Capitol Police Chief, 342 F. Supp. 575 (D.C. 1972)
(three-judge court), aff'd, 409 U.S. 972 (1972) (voiding statute
prohibiting parades and demonstrations on United States Capitol
grounds).
\87\E.g., Grayned v. City of Rockford, 408 U.S. 104 (1972)
(sustaining ordinance prohibiting noisemaking adjacent to school if that
noise disturbs or threatens to disturb the operation of the school);
Brown v. Louisiana, 383 U.S. 131 (1966) (silent vigil in public library
protected while noisy and disruptive demonstration would not be); Tinker
v. Des Moines Independent School District, 393 U.S. 503 (1969) (wearing
of black armbands as protest protected but not if it results in
disruption of school); Cameron v. Johnson, 390 U.S. 611 (1968)
(preservation of access to courthouse); Frisby v. Schultz, 487 U.S. 474
(1988) (ordinance prohibiting picketing ``before or about'' any
residence or dwelling, narrowly construed as prohibiting only picketing
that targets a particular residence, upheld as furthering significant
governmental interest in protecting the privacy of the home).
\88\United States Postal Service v. Council of Greenburgh Civic
Ass'ns, 453 U.S. 114, 129 (1981).
\89\Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).
\90\E.g., Adderley v. Florida, 385 U.S. 39 (1966) (jails);
Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (advertising space
in city rapid transit cars); Greer v. Spock, 424 U.S. 828 (1976)
(military bases); United States Postal Service v. Council of Greenburgh
Civic Ass'ns, 453 U.S. 114 (1981) (private mail boxes); Perry Educ.
Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (interschool
mail system); ISKCON v. Lee, 112 S. Ct. 2701 (1992) (publicly owned
airport terminal).
\91\E.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546
(1975) (municipal theater); Madison School District v. WERC, 429 U.S.
167 (1976) (school board meeting); Heffron v. ISKCON, 452 U.S. 640
(1981) (state fair grounds); Widmar v. Vincent, 454 U.S. 263 (1981)
(university meeting facilities).
\92\Compare United States Postal Service v. Council of
Greenburgh Civic Ass'ns, 454 U.S. 114, 128-31 (1981), with id. at 136-40
(Justice Brennan concurring), and 142 (Justice Marshall dissenting). For
evidence of continuing division, compare ISKCON v. Lee, 112 S. Ct. 2701
(1992) with id. at 27 (Justice Kennedy concurring).
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Speech in public forums is subject to time, place, and manner
regulations, which take into account such matters as control of traffic
in the streets, the scheduling of two meetings or demonstrations at the
same time and place, the preventing of blockages of building entrances,
and the like.\93\ Such regulations are closely scrutinized in order to
protect free expression, and, to be valid, must be justified without
reference to the content or subject matter
[[Page 1167]]
of speech,\94\ must serve a significant governmental interest,\95\ and
must leave open ample alternative channels for communication of the
information.\96\ A recent formulation is that a time, place, or manner
regulation ``must be narrowly tailored to serve the government's
legitimate content-neutral interests, but . . . need not be the least-
restrictive or least-intrusive means of doing so.'' All that is required
is that ``the means chosen are not substantially broader than necessary
to achieve the government's interest.''\97\ Corollary to the rule
forbidding regulation premised on content is the principle, a merging of
free expression and equal protection standards, that government may not
discriminate between different kinds of messages in affording
access.\98\ In order to ensure against covert forms of discrimination
against expression and between different kinds of content, the Court has
insisted that licensing systems be constructed as free as possible of
the opportunity for arbitrary administration.\99\ The Court has also
applied its general strictures
[[Page 1168]]
against prior restraints in the contexts of permit systems and judicial
restraint of expression.\100\
\93\See, e.g., Heffron v. ISKCON, 452 U.S. 640, 647-50 (1981),
and id. at 656 (Justice Brennan concurring in part and dissenting in
part) (stating law and discussing cases); Clark v. Community for
Creative Non-Violence, 468 U.S. 288 (1984) (prohibition of sleep-in
demonstration in area of park not designated for overnight camping).
\94\Niemotko v. Maryland, 340 U.S. 268 (1951); Cox v. Louisiana,
379 U.S. 536 (1965); Police Department v. Mosley, 408 U.S. 92 (1972);
Madison School District v. WERC, 429 U.S. 167 (1976); Carey v. Brown,
447 U.S. 455 (1980); Widmar v. Vincent, 454 U.S. 263 (1981). In Lehman
v. City of Shaker Heights, 418 U.S. 298 (1974), a divided Court
permitted the city to sell commercial advertising space on the walls of
its rapid transit cars but to refuse to sell political advertising
space.
\95\E.g., the governmental interest in safety and convenience of
persons using public forum, Heffron v. ISKCON, 452 U.S. 640, 650 (1981);
the interest in preservation of a learning atmosphere in school, Grayned
v. City of Rockford, 408 U.S. 104, 115 (1972); and the interest in
protecting traffic and pedestrian safety in the streets, Cox v.
Louisiana, 379 U.S. 536, 554-55 (1965); Kunz v. New York, 340 U.S. 290,
293-94 (1951); Hague v. CIO, 307 U.S. 496, 515-16 (1939).
\96\Heffron v. ISKCON, 452 U.S. 640, 654-55 (1981); Consolidated
Edison Co. v. PSC, 447 U.S. 530, 535 (1980).
\97\Ward v. Rock Against Racism, 491 U.S. 781, 798, 800 (1989).
\98\Police Department v. Mosley, 408 U.S. 92 (1972) (ordinance
void which barred all picketing around school building except labor
picketing); Carey v. Brown, 447 U.S. 455 (1980) (same); Widmar v.
Vincent, 454 U.S. 263 (1981) (college rule permitting access to all
student organizations except religious groups); Niemotko v. Maryland,
340 U.S. 268 (1951) (permission to use parks for some groups but not for
others). These principles apply only to the traditional public forum and
to the governmentally created ``limited public forum.'' Government may,
without creating a limited public forum, place ``reasonable''
restrictions on access to nonpublic areas. See, e.g. Perry Educ. Ass'n
v. Perry Local Educators' Ass'n, 460 U.S. 37, 48 (1983) (use of school
mail system); and Cornelius v. NAACP Legal Defense and Educational Fund,
473 U.S. 788 (1985) (charitable solicitation of federal employees at
workplace). See also Lehman v. City of Shaker Heights, 418 U.S. 298
(1974) (city may sell commercial advertising space on the walls of its
rapid transit cars but refuse to sell political advertising space).
\99\E.g., Hague v. CIO, 307 U.S. 496, 516 (1939); Schneider v.
State, 308 U.S. 147, 164 (1939); Cox v. New Hampshire, 312 U.S. 569
(1941); Poulos v. New Hampshire, 345 U.S. 395 (1953); Staub v. City of
Baxley, 355 U.S. 313, 321-25 (1958); Cox v. Louisiana, 379 U.S. 536,
555-58 (1965); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-53
(1969). Justice Stewart for the Court described these and other cases as
``holding that a law subjecting the exercise of First Amendment freedoms
to the prior restraint of a license without narrow, objective, and
definite standards to guide the licensing authority is
unconstitutional.'' Id. at 150-51. A person faced with an
unconstitutional licensing law may ignore it, engage in the desired
conduct, and challenge the constitutionality of the permit system upon a
subsequent prosecution for violating it. Id. at 151; Jones v. Opelika,
316 U.S. 584, 602 (1942) (Chief Justice Stone dissenting), adopted per
curiam on rehearing, 319 U.S. 103 (1943). See also City of Lakewood v.
Plain Dealer Publishing Co., 486 U.S. 750 (1988) (upholding facial
challenge to ordinance vesting in the mayor unbridled discretion to
grant or deny annual permit for location of newsracks on public
property); Riley v. National Fed'n of the Blind, 487 U.S. 781 (1988)
(invalidating as permitting ``delay without limit'' licensing
requirement for professional fundraisers); Forsyth County v. Nationalist
Movement, 112 S. Ct. 2395 (1992). But see Walker v. City of Birmingham,
388 U.S. 307 (1967) (same rule not applicable to injunctions).
\100\In Shuttlesworth v. City of Birmingham, 394 U.S. 147
(1969), the Court reaffirmed the holdings of the earlier cases, and,
additionally, both Justice Stewart, for the Court, id. at 155 n.4, and
Justice Harlan concurring, id. at 162-64, asserted that the principles
of Freedman v. Maryland, 380 U.S. 51 (1965), governing systems of prior
censorship of motion pictures, were relevant to permit systems for
parades and demonstrations. These standards include prompt and
expeditious administrative handling of requests and prompt judicial
review of adverse actions. See National Socialist Party v. Village of
Skokie, 432 U.S. 43 (1977). The Court also voided an injunction against
a protest meeting which was issued ex parte, without notice to the
protestors and with, or course, no opportunity for them to rebut the
representations of the seekers of the injunction. Carroll v. President
and Comm'rs of Princess Anne, 393 U.S. 175 (1968).
---------------------------------------------------------------------------
It appears that government may not deny access to the public
forum for demonstrators on the ground that the past meetings of these
demonstrators resulted in violence,\101\ and may not vary a
demonstration licensing fee based on an estimate of the amount of
hostility likely to be engendered,\102\ but the Court's position with
regard to the ``heckler's veto,'' the governmental termination of a
speech or demonstration because of hostile crowd reaction, remains quite
unclear.\103\
\101\The only available precedent is Kunz v. New York, 340 U.S.
290 (1951). The holding was on a much narrower basis, but in dictum the
Court said: ``The court below has mistakenly derived support for its
conclusions from the evidence produced at the trial that appellant's
religious meetings had, in the past, caused some disorder. There are
appropriate public remedies to protect the peace and order of the
community if appellant's speeches should result in disorder and
violence.'' Id. at 294. A different rule applies to labor picketing. See
Milk Wagon Drivers Local 753 v. Meadowmoor Dairies, 312 U.S. 287 (1941)
(background of violence supports prohibition of all peaceful picketing).
The military may ban a civilian, previously convicted of destroying
government property, from reentering a military base, and may apply the
ban to prohibit the civilian from reentering the base for purposes of
peaceful demonstration during an Armed Forces Day ``open house.'' United
States v. Albertini, 472 U.S. 675 (1985).
\102\Forsyth County v. Nationalist Movement, 112 S. Ct. 2395
(1992) (a fee based on anticipated crowd response necessarily involves
examination of the content of the speech, and is invalid as a content
regulation).
\103\Dicta clearly indicate that a hostile reaction will not
justify suppression of speech, Hague v. CIO, 307 U.S. 496, 502 (1939);
Cox v. Louisiana, 379 U.S. 536, 551 (1965); Bachellar v. Maryland, 397
U.S. 564, 567 (1970), and one holding appears to point this way. Gregory
v. City of Chicago, 394 U.S. 111 (1969). On the other hand, the Court
has upheld a breach of the peace conviction of a speaker who refused to
cease speaking upon the demand of police who feared imminent violence.
Feiner v. New York, 340 U.S. 315 (1951). In Niemotko v. Maryland, 340
U.S. 268, 273 (1951) (concurring opinion), Justice Frankfurter wrote:
``It is not a constitutional principle that, in acting to preserve
order, the police must proceed against the crowd whatever its size and
temper and not against the speaker.''
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[[Page 1169]]
The Court has defined three different categories of public
property for public forum analysis. First, there is the public forum,
places such as streets and parks which have traditionally been used for
public assembly and debate, where the government may not prohibit all
communicative activity and must justify content-neutral time, place, and
manner restrictions as narrowly tailored to serve some legitimate
interest. Government may also open property for communicative activity,
and thereby create a public forum. Such a forum may be limited--hence
the expression ``limited public forum''--for ``use by certain groups,
e.g. Widmar v. Vincent (student groups), or for discussion of certain
subjects, e.g. City of Madison Joint School District v. Wisconsin PERC
(school board business),''\104\ but within the framework of such
legitimate limitations discrimination based on content must be justified
by compelling governmental interests.\105\ Thirdly, government ``may
reserve a forum for its intended purposes, communicative or otherwise,
as long as the regulation on speech is reasonable and not an effort to
suppress expression merely because public officials oppose the speaker's
view.''\106\ The distinction between the second and third categories can
therefore determine the outcome of a case, since speakers may be
excluded from the second category only for a ``compelling'' governmental
interest, while exclusion from the third category need only be
``reasonable.'' Yet, distinguishing between the two categories creates
no small difficulty, as evidenced by recent case law.
\104\Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S.
37, 45-46 (1983).
\105\460 U.S. at 46.
\106\Id.
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The Court has held that a school system did not create a limited
public forum by opening an interschool mail system to use by selected
civic groups ``that engage in activities of interest and educational
relevance to students,'' and that, in any event, if a limited public
forum had thereby been created a teachers union rivaling the exclusive
bargaining representative could still be excluded as not being ``of a
similar character'' to the civic groups.\107\ Less problematic was the
Court's conclusion that utility poles and other mu
[[Page 1170]]
nicipal property did not constitute a public forum for the posting of
signs.\108\ More problematic was the Court's conclusion that the
Combined Federal Campaign, the Federal Government's forum for
coordinated charitable solicitation of federal employees, is not a
limited public forum. Exclusion of various advocacy groups from
participation in the Campaign was upheld as furthering ``reasonable''
governmental interests in offering a forum to ``traditional health and
welfare charities,'' avoiding the appearance of governmental favoritism
of particular groups or viewpoints, and avoiding disruption of the
federal workplace by controversy.\109\ The Court pinpointed the
government's intention as the key to whether a public forum has been
created: ``[t]he government does not create a public forum by inaction
or by permitting limited discourse, but only by intentionally opening a
non-traditional forum for public discourse.''\110\ Under this
categorical approach, the government has wide discretion in maintaining
the nonpublic character of its forums, and may regulate in ways that
would be impermissible were it to designate a limited public forum.\111\
\107\Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S.
37 (1983). This was a 5-4 decision, with Justice White's opinion of the
Court being joined by Chief Justice Burger and by Justices Blackmun,
Rehnquist, and O'Connor, and with Justice Brennan's dissent being joined
by Justices Marshall, Powell, and Stevens. See also Hazelwood School
Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (student newspaper published as
part of journalism class is not a public forum).
\108\City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984)
(upholding an outright ban on use of utility poles for signs). The Court
noted that ``it is of limited utility in the context of this case to
focus on whether the tangible property itself should be deemed a public
forum.'' Id. at 815 n.32.
\109\Cornelius v. NAACP Legal Defense and Educational Fund, 473
U.S. 788 (1985). Precedential value of Cornelius may be subject to
question, since it was decided by 4-3 vote, the non-participating
Justices (Marshall and Powell) having dissented in Perry. Justice
O'Connor wrote the opinion of the Court, joined by Chief Justice Burger
and by Justices White and Rehnquist. Justice Blackmun, joined by Justice
Brennan, dissented, and Justice Stevens dissented separately.
\110\473 U.S. at 802. Justice Blackmun criticized ``the Court's
circular reasoning that the CFC is not a limited public forum because
the Government intended to limit the forum to a particular class of
speakers.'' Id. at 813-14.
\111\Justice Kennedy criticized this approach in ISKCON v. Lee,
112 S. Ct. 2701, 27, (1992) (concurring), contending that recognition of
government's authority to designate the forum status of property ignores
the nature of the First Amendment as ``a limitation on government, not a
grant of power.'' Justice Brennan voiced similar misgivings in his
dissent in United States v. Kokinda: ``public forum categories--
originally conceived of as a way of preserving First Amendment rights--
have been used . . . as a means of upholding restrictions on speech''.
497 U.S. at 741 (emphasis original) (citation omitted).
---------------------------------------------------------------------------
Application of the doctrine continues to create difficulty. A
majority of Justices could not agree on the public forum status of a
sidewalk located entirely on Postal Service property.\112\ The Court was
also divided over whether nonsecured areas of an airport terminal,
including shops and restaurants, constituted a public forum. Holding
that the terminal was not a public forum, the Court upheld restrictions
on the solicitation and receipt of funds.\113\ But
[[Page 1171]]
the Court also invalidated a ban on the sale or distribution of
literature to passers-by within the same terminal, four Justices
believing that the terminal constituted a public forum, and a fifth
contending that the multipurpose nature of the forum (shopping mall as
well as airport) made restrictions on expression less
``reasonable.''\114\
\112\United States v. Kokinda, 497 U.S. 720 (1990) (upholding a
ban on solicitation on the sidewalk).
\113\ISKCON v. Lee, 112 S. Ct. 2701 (1992).
\114\Lee v. ISKCON, 112 S. Ct. 2709 (1992).
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Quasi-Public Places.--The First Amendment precludes government
restraint of expression and it does not require individuals to turn over
their homes, businesses or other property to those wishing to
communicate about a particular topic.\115\ But it may be that in some
instances private property is so functionally akin to public property
that private owners may not forbid expression upon it. In Marsh v.
Alabama,\116\ the Court held that the private owner of a company town
could not forbid distribution of religious materials by a Jehovah's
Witness on a street in the town's business district. The town, wholly
owned by a private corporation, had all the attributes of any American
municipality, aside from its ownership, and was functionally like any
other town. In those circumstances, the Court reasoned, ``the more an
owner, for his advantage, opens up his property for use by the public in
general, the more do his rights become circumscribed by the statutory
and constitutional rights of those who use it.''\117\ This precedent lay
unused for some twenty years until the Court first indicated a
substantial expansion of it, and then withdrew to a narrow
interpretation.
\115\In Garner v. Louisiana, 368 U.S. 157, 185, 201-07 (1961),
Justice Harlan, concurring, would have reversed breach of the peace
convictions of ``sit-in'' demonstrators who conducted their ``sit-in''
at lunch counters of department stores. He asserted that the protesters
were sitting at the lunch counters where they knew they would not be
served in order to demonstrate that segregation at such counters
existed. ``Such a demonstration . . . is as much a part of the `free
trade in ideas' . . . as is verbal expression, more commonly thought of
as `speech.''' Conviction for breach of peace was void in the absence of
a clear and present danger of disorder. The Justice would not, however
protect ``demonstrations conducted on private property over the
objection of the owner . . . , just as it would surely not encompass
verbal expression in a private home if the owner has not consented.'' He
had read the record to indicate that the demonstrators were invitees in
the stores and that they had never been asked to leave by the owners or
managers. See also Frisby v. Schultz, 487 U.S. 474 (1988) (government
may protect residential privacy by prohibiting altogether picketing that
targets a single residence).
\116\326 U.S. 501 (1946).
\117\Id. at 506.
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First, in Food Employees Union v. Logan Valley Plaza,\118\ the
Court held constitutionally protected the picketing of a store located
in a shopping center by a union objecting to the store's employment of
nonunion labor. Finding that the shopping center was
[[Page 1172]]
the functional equivalent of the business district involved in Marsh,
the Court announced there was ``no reason why access to a business
district in a company town for the purpose of exercising First Amendment
rights should be constitutionally required, while access for the same
purpose to property functioning as a business district should be limited
simply because the property surrounding the `business district' is not
under the same ownership.''\119\ [T]he State,'' said Justice Marshall,
``may not delegate the power, through the use of its trespass laws,
wholly to exclude those members of the public wishing to exercise their
First Amendment rights on the premises in a manner and for a purpose
generally consonant with the use to which the property is actually
put.''\120\ The Court observed that it would have been hazardous to
attempt to distribute literature at the entrances to the center and it
reserved for future decision ``whether respondents' property rights
could, consistently with the First Amendment, justify a bar on picketing
which was not thus directly related in its purpose to the use to which
the shopping center property was being put.''\121\
\118\Amalgamated Food Employees Union Local 590 v. Logan Valley
Plaza, 391 U.S. 308 (1968).
\119\Id. at 319. Justices Black, Harlan, and White dissented.
Id. at 327, 333, 337.
\120\Id. at 319-20.
\121\Id. at 320 n.9.
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Four years later, the Court answered the reserved question in
the negative.\122\ Several members of an antiwar group had attempted to
distribute leaflets on the mall of a large shopping center, calling on
the public to attend a protest meeting. Center guards invoked a trespass
law against them, and the Court held they could rightfully be excluded.
The center had not dedicated its property to a public use, the Court
said; rather, it invited the public in specifically to carry on business
with those stores located in the center. Plaintiffs' leafleting, not
directed to any store or to the customers qua customers of any of the
stores, was unrelated to any activity in the center. Unlike the
situation in Logan Valley Plaza, there were reasonable alternatives by
which plaintiffs could reach those who used the center. Thus, in the
absence of a relationship between the purpose of the expressive activity
and the business of the shopping center, the property rights of the
center owner will overbalance the expressive rights to persons who would
use their property for communicative purposes.
\122\Lloyd Corp. v. Tanner, 407 U.S. 551 (1972).
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Then, the Court formally overruled Logan Valley Plaza, holding
that shopping centers are not functionally equivalent to the company
town involved in Marsh.\123\ Suburban malls may be the
[[Page 1173]]
``new town squares'' in the view of sociologists, but they are private
property in the eye of the law. The ruling came in a case in which a
union of employees engaged in an economic strike against one store in a
shopping center was barred from picketing the store within the mall. The
rights of employees in such a situation are generally to be governed by
federal labor laws\124\ rather than the First Amendment, although there
is also the possibility that state constitutional provisions may be
interpreted more expansively by state courts to protect some kinds of
public issue picketing in shopping centers and similar places.\125\
Henceforth, only when private property ```has taken on all the
attributes of a town''' is it to be treated as a public forum.\126\
\123\Hudgens v. NLRB, 424 U.S. 507 (1976). Justice Stewart's
opinion for the Court asserted that Logan Valley had in fact been
overruled by Lloyd Corp., id. at 517-18, but Justice Powell, the author
of the Lloyd Corp. opinion, did not believe that to be the case, id. at
523.
\124\But see Sears, Roebuck & Co. v. Carpenters, 436 U.S. U.S.
180 (1978).
\125\In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980),
the Court held that a state court interpretation of the state
constitution to protect picketing in a privately owned shopping center
did not deny the property owner any federal constitutional rights. But
cf. Pacific Gas & Elec. v. Public Utilities Comm'n, 475 U.S. 1 (1986),
holding that a state may not require a privately owned utility company
to include in its billing envelopes views of a consumer group with which
it disagrees, a majority of Justices distinguishing PruneYard as not
involving such forced association with others' beliefs.
\126\Hudgens v. NLRB, 424 U.S. 507, 516-17 (1976) (quoting
Justice Black's dissent in Logan Valley Plaza, 391 U.S. 308, 332-33
(1968).
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Picketing and Boycotts by Labor Unions.--Though ``logically
relevant'' to what might be called ``public issue'' picketing, the cases
dealing with the invocation of economic pressures by labor unions are
set apart by different ``economic and social interests.''\127\
Therefore, these cases are dealt with separately here. It was, however,
in a labor case that the Court first held picketing to be entitled to
First Amendment protection.\128\ Striking down a flat prohibition on
picketing to influence or induce someone to do something, the Court
said: ``In the circumstances of our times the dissemination of
information concerning the facts of a labor dispute must be regarded as
within that area of free discussion that is guaranteed by the
Constitution . . . .
\127\Niemotko v. Maryland, 340 U.S. 268, 276 (1951) (Justice
Frankfurter concurring).
\128\Thornhill v. Alabama, 310 U.S. 88, 102, 104-05 (1940).
Picketing as an aspect of communication was recognized in Senn v. Tile
Layers Union, 301 U.S. 468 (1937).
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``[T]he group in power at any moment may not impose penal
sanctions on peaceful and truthful discussion of matters of public
interest merely on a showing that others may thereby be persuaded to
take action inconsistent with its interests. Abridgment of the liberty
of such discussion can be justified only where the clear danger of
substantive evils arises under circumstances affording no oppor
[[Page 1174]]
tunity to test the merits of ideas by competition for acceptance in the
market of public opinion.''\129\ Peaceful picketing in a situation in
which violence had occurred and was continuing, however, was held
proscribable.\130\ In the absence of violence, the Court continued to
find picketing protected,\131\ but there soon was decided a class of
cases in which the Court sustained injunctions against peaceful
picketing in the course of a labor controversy when such picketing was
counter to valid state policies in a domain open to state
regulation.\132\ These cases proceeded upon a distinction drawn by
Justice Douglas. ``Picketing by an organized group is more than free
speech, since it involves patrol of a particular locality and since the
very presence of a picket line may induce action of one kind or another,
quite irrespective of the nature of the ideas which are being
disseminated. Hence those aspects of picketing make it the subject of
restrictive regulations.''\133\ The apparent culmination of this course
of decision was the Vogt case in which Justice Frankfurter broadly
rationalized all the cases and derived the rule that ``a State, in
enforcing some public policy, whether of its criminal or its civil law,
and whether announced by its legislature or its courts, could
constitutionally enjoin peaceful picketing aimed at preventing
effectuation of that policy.''\134\ There the matters rests, although
there is some indication that Thornhill stands for something more than
that a State may not enforce a blanket prohibition on picketing.\135\
\129\See also Carlson v. California, 310 U.S. 106 (1940). In AFL
v. Swing, 312 U.S. 321 (1941), the Court held unconstitutional an
injunction against peaceful picketing based on a State's common-law
policy against picketing in the absence of an immediate dispute between
employer and employee.
\130\Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S.
287 (1941).
\131\Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769 (1942);
Carpenters & Joiners Union v. Ritter's Cafe, 315 U.S. 722 (1942);
Cafeteria Employees Union v. Angelos, 320 U.S. 293 (1943).
\132\Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949);
International Bhd. of Teamsters Union v. Hanke, 339 U.S. 470 (1950);
Building Service Emp. Intern. Union v. Gazzam, 339 U.S. 532 (1950);
Local Union, Journeymen v. Graham, 345 U.S. 192 (1953).
\133\Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769, 776-77
(1942) (concurring opinion).
\134\International Bhd. of Teamsters v. Vogt, 354 U.S. 284, 293
(1957). See also American Radio Ass'n v. Mobile Steamship Ass'n, 419
U.S. 215, 228-32 (1974); NLRB v. Retail Store Employees, 447 U.S. 607
(1980); International Longshoremens' Ass'n v. Allied International, 456
U.S. 212, 226-27 (1982).
\135\Cf. the opinions in NLRB v. Fruit & Vegetable Packers, 377
U.S. 58 (1964); Youngdahl v. Rainfair, 355 U.S. 131, 139 (1957)
(indicating that where violence is scattered through time and much of it
was unconnected with the picketing, the State should proceed against the
violence rather than the picketing).
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Public Issue Picketing and Parading.--The early cases held that
picketing and parading were forms of expression entitled
[[Page 1175]]
to some First Amendment protection.\136\ Those early cases did not,
however, explicate the difference in application of First Amendment
principles which the difference between mere expression and speech-plus
would entail. Many of these cases concerned disruptions or feared
disruptions of the public peace occasioned by the expressive activity
and the ramifications of this on otherwise protected activity.\137\ A
series of other cases concerned the permissible characteristics of
permit systems in which parades and meetings were licensed, and more
recent cases have expanded the procedural guarantees which must
accompany a permissible licensing system.\138\ In one case, however, the
Court applied the rules developed with regard to labor picketing to
uphold an injunction against the picketing of a grocery chain by a black
group to compel the chain to adopt a quota-hiring system for blacks. The
Supreme Court affirmed the state courts' ruling that, while no law
prevented the chain from hiring blacks on a quota basis, picketing to
coerce the adoption of racially discriminatory hiring was contrary to
state public policy.\139\
\136\Hague v. CIO, 307 U.S. 496 (1939); Cox v. New Hampshire,
312 U.S. 569 (1941); Kunz v. New York; 340 U.S. 290 (1951); Niemotko v.
Maryland, 340 U.S. 268 (1951).
\137\Cantwell v. Connecticut, 310 U.S. 296 (1940); Chaplinsky v.
New Hampshire, 315 U.S. 568 (1942); Terminiello v. City of Chicago, 337
U.S. 1 (1949); Feiner v. New York, 340 U.S. 315 (1951).
\138\Supra, p.1167.
\139\Hughes v. Superior Court, 339 U.S. 460 (1950). This ruling,
allowing content-based restriction, seems inconsistent with NAACP v.
Claiborne Hardware, infra, text accompanying nn.147-61.
---------------------------------------------------------------------------
A series of civil rights picketing and parading cases led the
Court to formulate standards much like those it had established in the
labor field, but more protective of expressive activity. The process
began with Edwards v. South Carolina,\140\ in which the Court reversed a
breach of the peace conviction of several blacks for their refusal to
disperse as ordered by police. The statute was so vague, the Court
concluded, that demonstrators could be convicted simply because their
presence ``disturbed'' people. Describing the demonstration upon the
grounds of the legislative building in South Carolina's capital, Justice
Stewart observed that ``[t]he circumstances in this case reflect an
exercise of these basic [First Amendment] constitutional rights in their
most pristine and classic form.''\141\ In subsequent cases, the Court
observed: ``We emphatically reject the notion urged by appellant that
the First and Fourteenth Amendments afford the same kind of freedom to
those who would communicate ideas by conduct such as patrolling,
marching,
[[Page 1176]]
and picketing on streets and highways, as those amendments afford to
those who communicate ideas by pure speech.''\142\ ``The conduct which
is the subject to this statute--picketing and parading--is subject to
regulation even though intertwined with expression and association. The
examples are many of the application by this Court of the principle that
certain forms of conduct mixed with speech may be regulated or
prohibited.''\143\
\140\372 U.S. 229 (1963).
\141\Id. at 235. See also Fields v. South Carolina, 375 U.S. 44
(1963); Henry v. City of Rock Hill, 376 U.S. 776 (1964).
\142\Cox v. Louisiana, 379 U.S. 536, 555 (1965).
\143\Id. at 563.
---------------------------------------------------------------------------
The Court must determine, of course, whether the regulation is
aimed primarily at conduct, as is the case with time, place, and manner
regulations, or whether instead the aim is to regulate content of
speech. In a series of decisions, the Court refused to permit
restrictions on parades and demonstrations, and reversed convictions
imposed for breach of the peace and similar offenses, when, in the
Court's view, disturbance had resulted from opposition to the messages
being uttered by demonstrators.\144\ More recently, however, the Court
upheld a ban on residential picketing in Frisby v. Shultz,\145\ finding
that the city ordinance was narrowly tailored to serve the
``significant'' governmental interest in protecting residential privacy.
As interpreted, the ordinance banned only picketing that targets a
single residence, and it is unclear whether the Court would uphold a
broader restriction on residential picketing.\146\
\144\Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v.
Louisiana, 379 U.S. 536 (1965); Gregory v. City of Chicago, 394 U.S. 111
(1969); Bachellar v. Maryland, 397 U.S. 564 (1970). See also Collin v.
Smith, 447 F. Supp. 676 (N.D.Ill.), aff'd, 578 F.2d 1197 (7th Cir.),
stay den., 436 U.S. 953, cert. denied, 439 U.S. 916 (1978).
\145\487 U.S. 474 (1988).
\146\An earlier case involving residential picketing had been
resolved on equal protection rather than First Amendment grounds, the
ordinance at issue making an exception for labor picketing. Carey v.
Brown, 447 U.S. 455 (1980).
---------------------------------------------------------------------------
In 1982 the Justices confronted a case, that, like Hughes v.
Superior Court,\147\ involved a ``contrary-to-public-policy''
restriction on picketing and parading. NAACP v. Claiborne Hardware
Co.\148\ may join in terms of importance such cases as New York Times
Co. v. Sullivan\149\ in requiring the States to observe new and enhanced
constitutional standards in order to impose liability upon persons for
engaging in expressive conduct implicating the First Amendment. The case
arose in the context of a protest against racial conditions by black
citizens of Port Gibson, Mississippi. Listing demands that included
desegregation of public facilities, hiring of black policemen, hiring of
more black employees by local stores,
[[Page 1177]]
and ending of verbal abuse by police, a group of several hundred blacks
unanimously voted to boycott the area's white merchants. The boycott was
carried out through speeches and nonviolent picketing and solicitation
of others to cease doing business with the merchants. Individuals were
designated to watch stores and identify blacks patronizing the stores;
their names were then announced at meetings and published. Persuasion of
others included social pressures and threats of social ostracism. Acts
of violence did occur from time to time, directed in the main at blacks
who did not observe the boycott.
\147\339 U.S. 460 (1950).
\148\458 U.S. 886 (1982). The decision was unanimous, with
Justice Rehnquist concurring in the result and Justice Marshall not
participating. The Court's decision was by Justice Stevens.
\149\376 U.S. 254 (1964).
---------------------------------------------------------------------------
The state Supreme Court imposed liability, joint and several,
upon leaders and participants in the boycott, and upon the NAACP, for
all of the merchants' lost earnings during a seven-year period on the
basis of the common law tort of malicious interference with the
merchants' business, holding that the existence of acts of physical
force and violence and the use of force, violence, and threats to
achieve the ends of the boycott deprived it of any First Amendment
protection.
Reversing, the Court observed that the goals of the boycotters
were legal and that most of their means were constitutionally protected;
while violence was not protected, its existence alone did not deprive
the other activities of First Amendment coverage. Thus, speeches and
nonviolent picketing, both to inform the merchants of grievances and to
encourage other blacks to join the boycott, were protected activities,
and association for those purposes was also protected.\150\ That some
members of the group might have engaged in violence or might have
advocated violence did not result in loss of protection for association,
absent a showing that those associating had joined with intent to
further the unprotected activities.\151\ Nor was protection to be denied
because nonparticipants had been urged to join by speech, by picketing,
by identification, by threats of social ostracism, and by other
expressive acts: ``[s]peech does not lose its protected character . . .
simply because it may embarrass others or coerce them into
action.''\152\ The boycott had a disruptive
[[Page 1178]]
effect upon local economic conditions and resulted in loss of business
for the merchants, but these consequences did not justify suppression of
the boycott. Government may certainly regulate certain economic
activities having an incidental effect upon speech (e.g., labor
picketing or business conspiracies to restrain competition),\153\ but
that power of government does not extend to suppression of picketing and
other boycott activities involving, as this case did, speech upon
matters of public affairs with the intent of affecting governmental
action and motivating private actions to achieve racial equality.\154\
\150\NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-08
(1982).
\151\Id. at 908.
\152\Id. at 910. The Court cited Thomas v. Collins, 323 U.S.
516, 537 (1945), a labor picketing case, and Organization for a Better
Austin v. Keefe, 402 U.S. 415, 419 (1971), a public issues picketing
case, which had also relied on the labor cases. Compare NLRB v. Retail
Store Employees, 447 U.S. 607, 618-19 (1980) (Justice Stevens
concurring) (labor picketing that coerces or ``signals'' others to
engage in activity that violates valid labor policy, rather than
attempting to engage reason, prohibitable). To the contention that
liability could be imposed on ``store watchers'' and on a group known as
``Black Hats'' who also patrolled stores and identified black
patronizers of the businesses, the Court did not advert to the
``signal'' theory. ``There is nothing unlawful in standing outside a
store and recording names. Similarly, there is nothing unlawful in
wearing black hats, although such apparel may cause apprehension in
others.'' Id. at 458 U.S., 925.
\153\See, e.g., FTC v. Superior Court Trial Lawyers Ass'n, 493
U.S. 411 (1990) (upholding application of per se antitrust liability to
trial lawyers association's boycott designed to force higher fees for
representation of indigent defendants by court-appointed counsel).
\154\Id. at 912-15. In evaluating the permissibility of
government regulation in this context that has an incidental effect on
expression, the Court applied the standards of United States v. O'Brien,
391 U.S. 367, 376-77 (1968), which requires that the regulation be
within the constitutional power of government, that it further an
important or substantial governmental interest, that it be unrelated to
the suppression of speech, and that it impose no greater restraint on
expression than is essential to achievement of the interest.
---------------------------------------------------------------------------
The critical issue, however, had been the occurrence of violent
acts and the lower court's conclusion that they deprived otherwise
protected conduct of protection. ``The First Amendment does not protect
violence . . . . No federal rule of law restricts a State from imposing
tort liability for business losses that are caused by violence and by
threats of violence. When such conduct occurs in the context of
constitutionally protected activity, however, `precision of regulation'
is demanded . . . . Specifically, the presence of activity protected by
the First Amendment imposes restraints on the grounds that may give rise
to damages liability and on the persons who may be held accountable for
those damages.''\155\ In other words, the States may impose damages for
the consequences of violent conduct, but they may not award compensation
for the consequences of nonviolent, protected activity.\156\ Thus, the
state courts had to compute, upon proof by the merchants, what damages
had been the result of violence, and could not include losses suffered
as a result of all the other activities comprising the boycott. And only
those nonviolent persons who associated with others with an awareness of
violence and an intent to further it could similarly be held
liable.\157\ Since most of the acts of violence had occurred
[[Page 1179]]
early on, in 1966, there was no way constitutionally that much if any of
the later losses of the merchants could be recovered in damages.\158\ As
to the head of the local NAACP, the Court refused to permit imposition
of damages based upon speeches that could be read as advocating
violence, inasmuch as any violent acts that occurred were some time
after the speeches, and a ``clear and present danger'' analysis of the
speeches would not find them punishable.\159\ The award against the
NAACP fell with the denial of damages against its local head, and, in
any event, the protected right of association required a rule that would
immunize the NAACP without a finding that it ``authorized--either
actually or apparently--or ratified unlawful conduct.''\160\
\155\Id. at 458 U.S., 916-17.
\156\Id. at 917-18.
\157\Id. at 918-29, relying on a series of labor cases and on
the subversive activities association cases, e.g., Scales v. United
States, 367 U.S. 203 (1961), and Noto v. United States, 367 U.S. 290
(1961).
\158\458 U.S. at 920-26. The Court distinguished Milk Wagon
Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941), in which an
injunction had been sustained against both violent and nonviolent
activity, not on the basis of special rules governing labor picketing,
but because the violence had been ``pervasive.'' 458 U.S. at 923.
\159\458 U.S. at 926-29. The head's ``emotionally charged
rhetoric . . . did not transcend the bounds of protected speech set
forth in Brandenburg v. Ohio, 395 U.S. 444 (1969).''
\160\Id. at 931. In ordinary business cases, the rule of
liability of an entity for actions of its agents is broader. E.g.,
American Soc'y of Mech. Eng'rs v. Hydrolevel Corp., 456 U.S. 556 (1982).
The different rule in cases of organizations formed to achieve political
purposes rather than economic goals appears to require substantial
changes in the law of agency with respect to such entities. Note, 96
Harv. L. Rev. 171, 174-76 (1982).
---------------------------------------------------------------------------
Claiborne Hardware is, thus, a seminal decision in the Court's
effort to formulate standards governing state power to regulate or to
restrict expressive conduct that comes close to or crosses over the line
to encompass some violent activities; it requires great specificity and
the drawing of fine discriminations by government so as to reach only
that portion of the activity that does involve violence or the threat of
violence, and forecloses the kind of ``public policy'' limit on
demonstrations that was approved in Hughes v. Superior Court.\161\
\161\``Concerted action is a powerful weapon. History teaches
that special dangers are associated with conspiratorial activity. And
yet one of the foundations of our society is the right of individuals to
combine with other persons in pursuit of a common goal by lawful means.
``[P]etitioners' ultimate objectives were unquestionably
legitimate. The charge of illegality . . . derives from the means
employed by the participants to achieve those goals. The use of
speeches, marches, and threats of social ostracism cannot provide the
basis for a damages award. But violent conduct is beyond the pale of
constitutional protection.
``The taint of violence colored the conduct of some of the
petitioners. They, of course, may be held liable for the consequences of
their violent deeds. The burden of demonstrating that it colored the
entire collective effort, however, is not satisfied by evidence that
violence occurred or even that violence contributed to the success of
the boycott. [The burden can be met only] by findings that adequately
disclose the evidentiary basis for concluding that specific parties
agreed to use unlawful means, that carefully identify the impact of such
unlawful conduct, and that recognizes the importance of avoiding the
imposition of punishment for constitutionally protected activity. . . .
A court must be wary of a claim that the true color of a forest is
better revealed by reptiles hidden in the weeds than by the foliage of
countless freestanding trees.'' 458 U.S. at 933-34.
---------------------------------------------------------------------------
[[Page 1180]]
Leafleting, Handbilling, and the Like.--In Lovell v. City of
Griffin,\162\ the Court struck down a permit system applying to the
distribution of circulars, handbills, or literature of any kind. The
First Amendment, the Court said, ``necessarily embraces pamphlets and
leaflets. These indeed have been historic weapons in the defense of
liberty, as the pamphlets of Thomas Paine and others in our own history
abundantly attest.''\163\ State courts, responding to what appeared to
be a hint in Lovell that prevention of littering and other interests
might be sufficient to sustain a flat ban on literature
distribution,\164\ upheld total prohibitions and were reversed. ``Mere
legislative preferences or beliefs respecting matters of public
convenience may well support regulation directed at other personal
activities, but be insufficient to justify such as diminishes the
exercise of rights so vital to the maintenance of democratic
institutions . . . . We are of the opinion that the purpose to keep the
streets clean and of good appearance is insufficient to justify an
ordinance which prohibits a person rightfully on a public street from
handing literature to one willing to receive it. Any burden imposed upon
the city authorities in cleaning and caring for the streets as an
indirect consequence of such distribution results from the
constitutional protection of the freedom of speech and press.''\165\ In
Talley v. California,\166\ the Court struck down an ordinance which
banned all handbills that did not carry the name and address of the
author, printer, and sponsor; conviction for violating the ordinance was
set aside on behalf of one distributing leaflets urging boycotts against
certain merchants because of their employment discrimination. The basis
of the decision is not readily ascertainable. On the one hand, the Court
celebrated anonymity. ``Anonymous pamphlets, leaflets, brochures and
even books have played an important role in the progress of mankind.
Persecuted groups and sects from time to time throughout history have
been able to criticize oppressive practices and laws either anonymously
or not at all . . . . [I]dentification and fear of reprisal might deter
perfectly peaceful discussion of public matters of importance.''\167\ On
the
[[Page 1181]]
other hand, responding to the City's defense that the ordinance was
aimed at providing a means to identify those responsible for fraud,
false advertising, and the like, the Court noted that it ``is in no
manner so limited . . . [and] [t]herefore we do not pass on the validity
of an ordinance limited to these or any other supposed evils.''\168\
\162\303 U.S. 444 (1938).
\163\Id. at 452.
\164\Id. at 451.
\165\Schneider v. Town of Irvington, 308 U.S. 147, 161, 162
(1939). The Court noted that the right to distribute leaflets was
subject to certain obvious regulations, id. at 160, and called for a
balancing, with the weight inclined to the First Amendment rights. See
also Jamison v. Texas, 318 U.S. 413 (1943).
\166\362 U.S. 60 (1960).
\167\Id. at 64, 65.
\168\Id. at 64. In Zwickler v. Koota, 389 U.S. 241 (1967), the
Court directed a lower court to consider the constitutionality of a
statute which made it a criminal offense to publish or distribute
election literature without identification of the name and address of
the printer and of the persons sponsoring the literature. The lower
court voided the law, but changed circumstances on a new appeal caused
the Court to dismiss. Golden v. Zwickler, 394 U.S. 103 (1969).
---------------------------------------------------------------------------
The handbilling cases were distinguished in City Council v.
Taxpayers for Vincent,\169\ in which the Court held that a city may
prohibit altogether the use of utility poles for posting of signs. While
a city's concern over visual blight could be addressed by an anti-
littering ordinance not restricting the expressive activity of
distributing handbills, in the case of posting signs ``it is the medium
of expression itself'' that creates the visual blight. Hence, a
prohibition on posting signs, unlike a prohibition on distributing
handbills, is narrowly tailored to curtail no more speech than necessary
to accomplish the city's legitimate purpose.\170\
\169\466 U.S. 789 (1984).
\170\Justice Brennan argued in dissent that adequate alternative
forms of communication were not readily available because handbilling or
other person-to-person methods would be substantially more expensive,
and that the regulation for the sake of aesthetics was not adequately
justified.
---------------------------------------------------------------------------
Sound Trucks, Noise.--Physical disruption may occur by other
means than the presence of large numbers of demonstrators. For example,
the use of sound trucks to convey a message on the streets may disrupt
the public peace and may disturb the privacy of persons off the streets.
The cases, however, afford little basis for a general statement of
constitutional principle. Saia v. New York,\171\ while it spoke of
``loud-speakers as today indispensable instruments of effective public
speech,'' held only that a particular prior licensing system was void. A
five-to-four majority upheld a statute in Kovacs v. Cooper,\172\ which
was ambiguous with regard to whether all sound trucks were banned or
only ``loud and raucous'' trucks and which the state court had
interpreted as having the latter meaning. In another case, the Court
upheld an antinoise ordinance which the state courts had interpreted
narrowly to bar only noise that actually or immediately threatened to
disrupt normal school activity during school hours.\173\ But the Court
was careful to tie its ruling to the principle that the particular
requirements
[[Page 1182]]
of education necessitated observance of rules designed to preserve the
school environment.\174\ More recently, reaffirming that government has
``a substantial interest in protecting its citizens from unwelcome
noise,'' the Court applied time, place, and manner analysis to uphold
New York City's sound amplification guidelines designed to prevent
excessive noise and assure sound quality at outdoor concerts in Central
Park.\175\
\171\334 U.S. 558, 561 (1948).
\172\336 U.S. 77 (1949).
\173\Grayned v. City of Rockford, 408 U.S. 104 (1972).
\174\Id. at 117. Citing Saia and Kovacs as examples of
reasonable time, place, and manner regulation, the Court observed: ``If
overamplifled loudspeakers assault the citizenry, government may turn
them down.'' Id. at 116.
\175\Ward v. Rock Against Racism, 491 U.S. 781 (1989).
---------------------------------------------------------------------------
Door-to-Door Solicitation.--In another Jehovah's Witness case,
the Court struck down an ordinance forbidding solicitors or distributors
of literature from knocking on residential doors in a community, the
aims of the ordinance being to protect privacy, to protect the sleep of
many who worked nightshifts, and to protect against burglars posing as
canvassers. The five-to-four majority concluded that on balance ``[t]he
dangers of distribution can so easily be controlled by traditional legal
methods, leaving to each householder the full right to decide whether he
will receive strangers as visitors, that stringent prohibition can serve
no purpose but that forbidden by the Constitution, the naked restriction
of the dissemination of ideas.''\176\
\176\Martin v. City of Struthers, 319 U.S. 141, 147 (1943).
---------------------------------------------------------------------------
More recently, while striking down an ordinance because of
vagueness, the Court observed that it ``has consistently recognized a
municipality's power to protect its citizens from crime and undue
annoyance by regulating soliciting and canvassing. A narrowly drawn
ordinance, that does not vest in municipal officers the undefined power
to determine what messages residents will hear, may serve these
important interests without running afoul of the First Amendment.''\177\
The Court indicated that its precedents supported measures that would
require some form of notice to officials and the obtaining of
identification in order that persons could canvas house-to-house for
charitable or political purposes.
\177\Hynes v. Mayor of Oradell, 425 U.S. 610, 616-17 (1976).
Justices Brennan and Marshall did not agree with the part of the opinion
approving the regulatory power. Id. at 623.
---------------------------------------------------------------------------
However, an ordinance which limited solicitation of
contributions door-to-door by charitable organizations to those which
use at least 75% of their receipts directly for charitable purposes,
defined so as to exclude the expenses of solicitation, salaries,
overhead, and other administrative expenses, was invalidated as
overbroad.\178\ A
[[Page 1183]]
privacy rationale was rejected, inasmuch as just as much intrusion was
likely by permitted solicitors as by unpermitted ones. A rationale of
prevention of fraud was unavailing, inasmuch as it could not be said
that all associations that spent more than 25% of their receipts on
overhead were actually engaged in a profit making enterprise, and, in
any event, more narrowly drawn regulations, such as disclosure
requirements, could serve this governmental interest.
\178\Village of Schaumburg v. Citizens for a Better Environment,
444 U.S. 620 (1980). See also Larson v. Valente, 456 U.S. 228 (1982)
(state law distinguishing between religious organizations and their
solicitation of funds on basis of whether organizations received more
than half of their total contributions from members or from public
solicitation violates establishment clause). Meyer v. Grant, 486 U.S.
414 (1988) (criminal penalty on use of paid circulators to obtain
signatures for ballot initiative suppresses political speech in
violation of First and Fourteenth Amendments).
---------------------------------------------------------------------------
Shaumberg was extended in Secretary of State of Maryland v.
Joseph H. Munson Co.,\179\ and Riley v. National Fed'n of the
Blind.\180\ In Munson the Court invalidated a Maryland statute limiting
professional fundraisers to 25% of the amount collected plus certain
costs, and allowing waiver of this limitation if it would effectively
prevent the charity from raising contributions. And in Riley the Court
invalidated a North Carolina fee structure containing even more
flexibility.\181\ The Court sees ``no nexus between the percentage of
funds retained by the fundraiser and the likelihood that the
solicitation is fraudulent,'' and is similarly hostile to any scheme
that shifts the burden to the fundraiser to show that a fee structure is
reasonable.\182\ Moreover, a requirement that fundraisers disclose to
potential donors the percentage of donated funds previously used for
charity was also invalidated in Riley, the Court indicating that the
``more benign and narrowly tailored'' alternative of disclosure to the
state (accompanied by state publishing of disclosed percentages) could
make the information publicly available without so threatening the
effectiveness of solicitation.\183\
\179\467 U.S. 947 (1984).
\180\487 U.S. 781 (1988).
\181\A fee of up to 20% of collected receipts was deemed
reasonable, a fee between 20 and 35% was permissible if the solicitation
involved advocacy or the dissemination of information, and a fee in
excess of 35% was presumptively unreasonable, but could be upheld upon
one of two showings: that advocacy or dissemination of information was
involved, or that otherwise the charity's ability to collect money or
communicate would be significantly diminished.
\182\487 U.S. at 793.
\183\Id. at 800. North Carolina's requirement for licensing of
professional fundraisers was also invalidated in Riley, id. at 801-02.
---------------------------------------------------------------------------
The Problem of ``Symbolic Speech.''--Very little expression is
``mere'' speech. If it is oral, it may be noisy enough to be
disturbing,\184\ and, if it is written, it may be litter;\185\ in either
case, it may amount to conduct that is prohibitable in specific cir
[[Page 1184]]
cumstances.\186\ Moving beyond these simple examples, one may see as
well that conduct may have a communicative content, intended to express
a point of view. Expressive conduct may consist in flying a particular
flag as a symbol\187\ or in refusing to salute a flag as a symbol.\188\
Sit-ins and stand-ins may effectively express a protest about certain
things.\189\
\184\E.g., Saia v. New York, 334 U.S. 558 (1948); Kovacs v.
Cooper, 336 U.S. 77 (1949).
\185\E.g., Schneider v. Town of Irvington, 308 U.S. 147 (1939).
\186\Cf. Cohen v. California, 403 U.S. 15 (1971).
\187\Stromberg v. California, 283 U.S. 359 (1931).
\188\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624
(1943).
\189\In Brown v. Louisiana, 383 U.S. 131 (1966), the Court held
protected a peaceful, silent stand-in in a segregated public library.
Speaking of speech and assembly, Justice Fortas said for the Court: ``As
this Court has repeatedly stated, these rights are not confined to
verbal expression. They embrace appropriate types of action which
certainly include the right in a peaceable and orderly manner to protest
by silent and reproachful presence, in a place where the protestant has
every right to be, the unconstitutional segregation of public
facilities.'' Id. at 141-42. See also Garner v. Louisiana, 368 U.S. 157,
185, 201 (1961) (Justice Harlan concurring). On a different footing is
expressive conduct in a place where such conduct is prohibited for
reasons other than suppressing speech. See Clark v. Community for
Creative Non-Violence, 468 U.S. 288 (1984) (upholding Park Service
restriction on overnight sleeping as applied to demonstrators wishing to
call attention to the plight of the homeless).
---------------------------------------------------------------------------
Justice Jackson wrote: ``There is no doubt that, in connection
with the pledge, the flag salute is a form of utterance. Symbolism is a
primitive but effective way of communicating ideas. The use of an emblem
or flag to symbolize some system, idea, institution, or personality is a
short cut from mind to mind.''\190\ When conduct or action has a
communicative content to it, governmental regulation or prohibition
implicates the First Amendment, but this does not mean that such conduct
or action is necessarily immune from governmental process. Thus, while
the Court has had few opportunities to formulate First Amendment
standards in this area, in upholding a congressional prohibition on
draft-card burnings, it has stated the generally applicable rule. ``[A]
government regulation is sufficiently justified if it is within the
constitutional power of Government; if it furthers an important or
substantial governmental interest; if the governmental interest is
unrelated to the suppression of free expression; and if the incidental
restriction on alleged First Amendment freedom is no greater than is
essential to the furtherance of that government interest.''\191\ The
Court has suggested that this standard is virtually identical to that
applied to time, place, or manner restrictions on expression.\192\
\190\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624,
632 (1943).
\191\United States v. O'Brien, 391 U.S. 367, 377 (1968).
\192\Clark v. Community for Creative Non-Violence, 468 U.S. 288,
298 & n.8 (1984).
---------------------------------------------------------------------------
Although almost unanimous in formulating and applying the test
in O'Brien, the Court splintered when it had to deal with one
[[Page 1185]]
of the more popular forms of ``symbolic'' conduct of the late 1960s and
early 1970s--flag burning and other forms of flag desecration. The Court
remains closely divided to this day. No unifying theory capable of
application to a wide range of possible flag abuse actions emerged from
the early cases. Thus, in Street v. New York,\193\ the defendant had
been convicted under a statute punishing desecration ``by words or act''
upon evidence that when he burned the flag he had uttered contemptuous
words. The conviction was set aside because it might have been premised
on his words alone or on his words and the act together, and no valid
governmental interest supported penalizing verbal contempt for the
flag.\194\
\193\394 U.S. 576 (1969).
\194\Id. at 591-93. Four dissenters concluded that the First
Amendment did not preclude a flat proscription of flag burning or flag
desecration for expressive purposes. Id. at 594 (Chief Justice Warren),
609 (Justice Black), 610 (Justice White), and 615 (Justice Fortas). In
Radich v. New York, 401 U.S. 531 (1971), aff'g 26 N.Y. 2d 114, 257 N.E.
2d 30 (1970), an equally divided Court, Justice Douglas not
participating, sustained a flag desecration conviction of one who
displayed sculptures in a gallery, using the flag in some apparently
sexually bizarre ways to register a social protest. Defendant
subsequently obtained his release on habeas corpus, United States ex
rel. Radich v. Criminal Court, 459 F.2d 745 (2d Cir. 1972), cert. denied
409 U.S. 115 (1973).
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A few years later the Court reversed two other flag desecration
convictions, one on due process/vagueness grounds, the other under the
First Amendment. were decided by the Court in a manner that indicated an
effort to begin to resolve the standards of First Amendment protection
of ``symbolic conduct.'' In Smith v. Goguen,\195\ a statute punishing
anyone who ``publicly . . . treats contemptuously the flag of the United
States . . . ,'' was held unconstitutionally vague, and a conviction for
wearing trousers with a small United States flag sewn to the seat was
overturned. The language subjected the defendant to criminal liability
under a standard ``so indefinite that police, court, and jury were free
to react to nothing more than their own preferences for treatment of the
flag.''\196\
\195\415 U.S. 566 (1974).
\196\Id. at 578.
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The First Amendment was the basis for reversal in Spence v.
Washington,\197\ in which a conviction under a statute punishing the
display of a United States flag to which something is attached or
superimposed was set aside; Spence had hung his flag from his apartment
window upside down with a peace symbol taped to the front and back. The
act, the Court thought, was a form of communication, and because of the
nature of the act, the factual context and environment in which it was
undertaken, the Court held it to be protected. The context included the
fact that the flag was pri
[[Page 1186]]
vately owned, that it was displayed on private property, and that there
was no danger of breach of the peace. The nature of the act was that it
was intended to express an idea and it did so without damaging the flag.
The Court assumed that the State had a valid interest in preserving the
flag as a national symbol, but whether that interest extended beyond
protecting the physical integrity of the flag was left unclear.\198\
\197\418 U.S. 405 (1974).
\198\Id. at 408-11, 412-13. Subsequently, the Court vacated,
over the dissents of Chief Justice Burger and Justices White, Blackmun,
and Rehnquist, two convictions for burning flags and sent them back for
reconsideration in the light of Goguen and Spence. Sutherland v.
Illinois, 418 U.S. 907 (1974); Farrell v. Iowa, 418 U.S. 907 (1974). The
Court did, however, dismiss, ``for want of a substantial federal
question,'' an appeal from a flag desecration conviction of one who,
with no apparent intent to communicate but in the course of
``horseplay,'' blew his nose on a flag, simulated masturbation on it,
and finally burned it. Van Slyke v. Texas, 418 U.S. 907 (1974).
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The underlying assumption that flag burning could be prohibited
as a means of protecting the flag's symbolic value was later rejected.
Twice, in 1989 and again in 1990, the Court held that prosecutions for
flag burning at a public demonstration violated the First Amendment.
First, in Texas v. Johnson\199\ the Court rejected a state desecration
statute designed to protect the flag's symbolic value, and then in
United States v. Eichman\200\ rejected a more limited federal statute
purporting to protect only the flag's physical integrity. Both cases
were decided by 5-to-4 votes, with Justice Brennan writing the Court's
opinions.\201\ The Texas statute invalidated in Johnson defined the
prohibited act of ``desecration'' as any physical mistreatment of the
flag that the actor knew would seriously offend other persons. This
emphasis on causing offense to others meant that the law was not
``unrelated to the suppression of free expression'' and that
consequently the deferential standard of United States v. O'Brien was
inapplicable. Applying strict scrutiny, the Court ruled that the State's
prosecution of someone who burned a flag at a political protest was not
justified under the State's asserted interest in preserving the flag as
a symbol of nationhood and national unity. The Court's opinion left
little doubt that the existing Federal statute, 18 U.S.C. Sec. 700, and
the flag desecration laws of 47 other states would suffer a similar fate
in a similar case. Doubt remained, however, as to whether the Court
[[Page 1187]]
would uphold a ``content-neutral'' statute protecting the physical
integrity of the flag.
\199\491 U.S. 397 (1989).
\200\496 U.S. 310 (1990).
\201\In each case Justice Brennan's opinion for the Court was
joined by Justices Marshall, Blackmun, Scalia, and Kennedy, and in each
case Chief Justice Rehnquist and Justices White, Stevens, and O'Connor
dissented. In Johnson the Chief Justice's dissent was joined by Justices
White and O'Connor, and Justice Stevens dissented separately. In Eichman
Justice Stevens wrote the only dissenting opinion, to which the other
dissenters subscribed.
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Immediately following Johnson, Congress enacted a new flag
protection statute providing punishment for anyone who ``knowingly
mutilates, defaces, physically defiles, burns, maintains on the floor or
ground, or tramples upon any flag of the United States.''\202\ The law
was designed to be content-neutral, and to protect the ``physical
integrity'' of the flag.\203\ Nonetheless, in upholding convictions of
flag burners, the Court found that the law suffered from ``the same
fundamental flaw'' as the Texas law in Johnson. The government's
underlying interest, characterized by the Court as resting upon ``a
perceived need to preserve the flag's status as a symbol of our Nation
and certain national ideals,''\204\ still related to the suppression of
free expression. Support for this interpretation was found in the fact
that most of the prohibited acts are usually associated with
disrespectful treatment of the flag; this suggested to the Court ``a
focus on those acts likely to damage the flag's symbolic value.''\205\
As in Johnson, such a law could not withstand ``most exacting scrutiny''
analysis.
\202\The Flag Protection Act of 1989, Pub. L. 101-131.
\203\See H.R. Rep. No. 231, 101st Cong., 1st Sess. 8 (1989)
(``The purpose of the bill is to protect the physical integrity of
American flags in all circumstances, regardless of the motive or
political message of any flag burner'').
\204\United States v. Eichman, 496 U.S. at 316.
\205\Id. at 317.
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The Court's ruling in Eichman rekindled congressional efforts,
postponed with enactment of the Flag Protection Act, to amend the
Constitution to authorize flag desecration legislation at the federal
and state levels. In both the House and the Senate these measures failed
to receive the necessary two-thirds vote.\206\
\206\The House defeated H.J. Res. 350 by vote of 254 in favor to
177 against (136 Cong. Rec. H4086 (daily ed. June 21, 1990); the Senate
defeated S.J. Res. 332 by vote of 58 in favor to 42 against (136 Cong.
Rec. S8737 (daily ed. June 26, 1990).
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FIRST AMENDMENT
RELIGION AND EXPRESSION
RIGHTS OF ASSEMBLY AND PETITION
Background and Development
The right of petition took its rise from the modest provision
made for it in chapter 61 of Magna Carta (1215).\207\ To this meagre
beginning are traceable, in some measure, Parliament itself and its
procedures in the enactment of legislation, the equity jurisdiction of
the Lord Chancellor, and proceedings against the Crown by ``petition of
right.'' Thus, while the King summoned Parliament for the purpose of
supply, the latter--but especially the House of Com
[[Page 1188]]
mons--petitioned the King for a redress of grievances as its price for
meeting the financial needs of the Monarch, and as it increased in
importance it came to claim the right to dictate the form of the King's
reply, until, in 1414, Commons declared itself to be ``as well assenters
as petitioners.'' Two hundred and fifty years later, in 1669, Commons
further resolved that every commoner in England possessed ``the inherent
right to prepare and present petitions'' to it ``in case of grievance,''
and of Commons ``to receive the same'' and to judge whether they were
``fit'' to be received. Finally Chapter 5 of the Bill of Rights of 1689
asserted the right of the subjects to petition the King and ``all
commitments and prosecutions for such petitioning to be illegal.''\208\
\207\C. Stephenson & F. Marcham, Sources of English
Constitutional History 125 (1937).
\208\12 Encyclopedia of the Social Sciences 98 (1934).
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Historically, therefore, the right of petition is the primary
right, the right peaceably to assemble a subordinate and instrumental
right, as if the First Amendment read: ``the right of the people
peaceably to assemble'' in order to ``petition the government.''\209\
Today, however, the right of peaceable assembly is, in the language of
the Court, ``cognate to those of free speech and free press and is
equally fundamental. . . . [It] is one that cannot be denied without
violating those fundamental principles of liberty and justice which lie
at the base of all civil and political institutions--principles which
the Fourteenth Amendment embodies in the general terms of its due
process clause. . . . The holding of meetings for peaceable political
action cannot be proscribed. Those who assist in the conduct of such
meetings cannot be branded as criminals on that score. The question
. . . is not as to the auspices under which the meeting is held but as
to its purposes; not as to the relation of the speakers, but whether
their utterances transcend the bounds of the freedom of speech which the
Constitution protects.''\210\ Furthermore, the right of petition has
expanded. It is no longer confined to demands for ``a redress of
grievances,'' in any accurate meaning of these words, but comprehends
demands for an exercise by the Government of its powers in furtherance
of the interest and prosperity of the petitioners and of their views on
politically contentious matters.\211\ The right extends to the
``approach of citizens or groups of them to administrative agencies
(which are both creatures of the legislature, and arms of the executive)
and to courts, the third branch of Government. Certainly the right to
petition extends to all departments of the Government. The right of ac
[[Page 1189]]
cess to the courts is indeed but one aspect of the right of
petition.''\212\
\209\United States v. Cruikshank, 92 U.S. 542, 552 (1876),
reflects this view.
\210\De Jonge v. Oregon, 299 U.S. 353, 364, 365 (1937). See also
Herndon v. Lowry, 301 U.S. 242 (1937).
\211\See Eastern R.R. Presidents Conf. v. Noerr Motor Freight,
365 U.S. 127 (1961).
\212\California Motor Transport Co. v. Trucking Unlimited, 404
U.S. 508, 510 (1972). See also NAACP v. Claiborne Hardware Co., 458 U.S.
886, 913-15 (1982); Missouri v. NOW, 620 F.2d 1301 (8th Cir.), cert.
denied, 449 U.S. 842 (1980) (boycott of States not ratifying ERA may not
be subjected to antitrust suits for economic losses because of its
political nature).
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The right of petition recognized by the First Amendment first
came into prominence in the early 1830's, when petitions against slavery
in the District of Columbia began flowing into Congress in a constantly
increasing stream, which reached its climax in the winter of 1835.
Finally on January 28, 1840, the House adopted as a standing rule:
``That no petition, memorial, resolution, or other paper praying the
abolition of slavery in the District of Columbia, or any State or
Territories of the United States in which it now exists, shall be
received by this House, or entertained in any way whatever.'' Because of
efforts of John Quincy Adams, this rule was repealed five years
later.\213\ For many years now the rules of the House of Representatives
have provided that members having petitions to present may deliver them
to the Clerk and the petitions, except such as in the judgment of the
Speaker are of an obscene or insulting character, shall be entered on
the Journal and the Clerk shall furnish a transcript of such record to
the official reporters of debates for publication in the Record.\214\
Even so, petitions for the repeal of the espionage and sedition laws and
against military measures for recruiting resulted, in World War I, in
imprisonment.\215\ Processions for the presentation of petitions in the
United States have not been particularly successful. In 1894 General
Coxey of Ohio organized armies of unemployed to march on Washington and
present petitions, only to see their leaders arrested for unlawfully
walking on the grass of the Capitol. The march of the veterans on
Washington in 1932 demanding bonus legislation was defended as an
exercise of the right of petition. The Administration, however, regarded
it as a threat against the Constitution and called out the army to expel
the bonus marchers and burn their camps. Marches and encampments have
become more common since, but the results have been mixed.
\213\The account is told in many sources. E.g., S. Bemis, John
Quincy Adams and the Union, chs. 17, 18 and pp. 446-47 (1956).
\214\Rule 22, para. 1, Rules of the House of Representatives,
H.R. Doc. No. 256, 101st Congress, 2d sess. 571 (1991).
\215\1918 Att'y Gen. Ann. Rep. 48.
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The Cruikshank Case.--The right of assembly was first before the
Supreme Court in 1876\216\ in the famous case of United
[[Page 1190]]
States v. Cruikshank.\217\ The Enforcement Act of 1870\218\ forbade
conspiring or going onto the highways or onto the premises of another to
intimidate any other person from freely exercising and enjoying any
right or privilege granted or secured by the Constitution of the United
States. Defendants had been indicted under this Act on charges of having
deprived certain citizens of their right to assemble together peaceably
with other citizens ``for a peaceful and lawful purpose.'' While the
Court held the indictment inadequate because it did not allege that the
attempted assembly was for a purpose related to the Federal Government,
its dicta broadly declared the outlines of the right of assembly. ``The
right of the people peaceably to assemble for the purpose of petitioning
Congress for a redress of grievances, or for anything else connected
with the powers or the duties of the National Government, is an
attribute of national citizenship, and, as such, under the protection
of, and guaranteed by, the United States. The very idea of a government,
republican in form, implies a right on the part of its citizens to meet
peaceably for consultation in respect to public affairs and to petition
for a redress of grievances. If it had been alleged in these counts that
the object of the defendants was to prevent a meeting for such a
purpose, the case would have been within the statute, and within the
scope of the sovereignty of the United States.''\219\ Absorption of the
assembly and petition clauses into the liberty protected by the due
process clause of the Fourteenth Amendment means, or course, that the
Cruikshank limitation is no longer applicable.\220\
\216\See, however, Crandall v. Nevada, 73 U.S. (6 Wall.) 35
(1868), in which the Court gave as one of its reasons for striking down
a tax on persons leaving the State its infringement of the right of
every citizen to come to the seat of government and to transact any
business he might have with it.
\217\92 U.S. 542 (1876).
\218\Act of May 31, 1870, ch.114, 16 Stat. 141 (1870).
\219\United States v. Cruikshank, 92 U.S 542, 552-53 (1876).
\220\De Jonge v. Oregon, 299 U.S. 353 (1937); Hague v. CIO, 307
U.S. 496 (1939); Bridges v. California, 314 U.S. 252 (1941); Thomas v.
Collins, 323 U.S. 516 (1945).
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The Hague Case.--Illustrative of this expansion is Hague v.
CIO,\221\ in which the Court, though splintered with regard to reasoning
and rationale, struck down an ordinance which vested an uncontrolled
discretion in a city official to permit or deny any group the
opportunity to conduct a public assembly in a public place. Justice
Roberts, in an opinion which Justice Black joined and with which Chief
Justice Hughes concurred, found protection against state abridgment of
the rights of assembly and petition in the privileges and immunities
clause of the Fourteenth Amendment. ``The privilege of a citizen of the
United States to use the streets and parks for communication of views on
national questions
[[Page 1191]]
may be regulated in the interest of all; it is not absolute, but
relative, and must be exercised in subordination to the general comfort
and convenience, and in consonance with peace and good order; but it
must not, in the guise of regulation, be abridged or denied.''\222\
Justices Stone and Reed invoked the due process clause of the Fourteenth
Amendment for the result, thereby claiming the rights of assembly and
petition for aliens as well as citizens. ``I think respodents' right to
maintain it does not depend on their citizenship and cannot rightly be
made to turn on the existence or non-existence of a purpose to
disseminate information about the National Labor Relations Act. It is
enough that petitioners have prevented respondents from holding meetings
and disseminating information whether for the organization of labor
unions or for any other lawful purpose.''\223\ This due process view of
Justice Stone has carried the day over the privileges and immunities
approach.
\221\307 U.S. 496 (1939).
\222\Id. at 515. For another holding that the right to petition
is not absolute, see McDonald v. Smith, 472 U.S. 479 (1985) (the fact
that defamatory statements were made in the context of a petition to
government does not provide absolute immunity from libel).
\223\Id. at 525.
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Later cases tend to merge the rights of assembly and petition
into the speech and press clauses, and, indeed, all four rights may well
be considered as elements of an inclusive right to freedom of
expression. Certain conduct may call forth a denomination of
petition\224\ or assembly,\225\ but there seems little question that no
substantive issue turns upon whether one may be said to be engaged in
speech or assembly or petition.
\224\E.g., United States v. Harriss, 347 U.S. 612 (1954);
Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127
(1961).
\225\E.g., Coates v. City of Cincinnati, 402 U.S. 611 (1971).