In the early twentieth century, the Supreme Court held that a KU KLUX KLANmembership list had to be disclosed because the members’ freedom of association was subordinate to the state’s i
Trang 1nonviolent action against white merchants to
pressure them to comply withCIVIL RIGHTSlaws
The Court found that though clearly an
economic activity, it was primarily designed to
advance the NAACP’s political beliefs in civil
rights This added purpose gave the boycott an
expressive character sufficient to warrant First
Amendment protection On the other hand, an
economic boycott that is not intended to
express political ideas or beliefs is not protected
under the First Amendment In FTC v Superior
Court Trial Lawyers Ass’n, 493 U.S 411, 110 S
Ct 768, 107 L Ed 2d 851 (1990), the Court
found that a boycott organized by trial lawyers
in an effort to secure increased compensation
for their representation of indigent clients was a
fundamentally economic activity that did not
rise to the level of expressive conduct
contem-plated by the First Amendment
During the 1940s and 1950s, a number of
cases tested the constitutionality of the Alien
Registration Act (also known as theSMITH ACT)
(18 U.S.C.A § 2385), which makes it a crime to
conspire to overthrow the government or
promote doctrines that advocate sedition The
act was sometimes used to prosecute individuals
merely for their membership in organizations
suspected of promoting INSURRECTION The
general principle that evolved from these cases
is that an individual cannot be punished for
membership in an organization that is
commit-ted to illegal conduct, unless he or she is an
active member with knowledge of the
organiza-tion’s illegal objectives and SPECIFIC INTENT to
further those objectives (See Noto v United
States, 367 U.S 290, 81 S Ct 1517, 6 L Ed 2d
836[1961]; Scales v United States, 367 U.S 203,
81 S Ct 1469, 6 L Ed 2d 782 [1961]) This
principle has also been applied to invalidate
blanket prohibitions on government
employ-ment or membership in organizations such as a
state bar because of an individual’s past
associations The government may inquire into
past associations but must limit the inquiry to
the person’s actual knowledge of illegal activity
andINTENT to further it (See Schware v Board
of Bar Examiners, 353 U.S 232, 77 S Ct 752,
1 L Ed 2d 796[1957]; United States v Robel, 389
U.S 258, 88 S Ct 419, 19 L Ed 2d 508[1967])
The outcome of cases challenging indirect
government regulation of freedom of association
has been somewhatINCONSISTENT In general, the
Court has balanced the individual’s associational
interests against the state’s interests In the early twentieth century, the Supreme Court held that a
KU KLUX KLANmembership list had to be disclosed because the members’ freedom of association was subordinate to the state’s interest in controlling the Klan’s illegal activities (New York ex rel Bryant
v Zimmerman, 278 U.S 63, 49 S Ct 61, 73 L Ed
184[1928]) Similarly, in 1961 the Court upheld a forced disclosure of the Communist party’s membership because of the perceived dangers posed by the party’s activities (Communist Party
of the United States v Subversive Activities Control Board, 367 U.S 1, 81 S Ct 1357, 6 L Ed 2d 625 [1961]) Conversely, in 1958, in Patterson, the Court had struck down the state’s order that the NAACP disclose its membership, distinguishing Bryant on the grounds that the Klan was involved
in illegal activities, whereas the NAACP was not
A similar rationale was applied in Communist Party In the late twentieth century, the Court moved away from the balancing approach toward
difficult for the government to impinge indirectly
on freedom of association
In general, freedom of association includes the right to be free from compelled association In Wooley v Maynard, 430 U.S 705, 97 S Ct 1428,
51 L Ed 2d 752 (1977), and Abood v Detroit Board of Education, 431 U.S 209, 97 S Ct 1782,
52 L Ed 2d 261 (1977), the Court held that freedom of association is unconstitutionally burdened where the state requires an individual
to support or espouse ideals or beliefs with which
he or she disagrees Similarly, in Keller v State Bar, 496 U.S 1, 110 S Ct 2228, 110 L Ed 2d 1 (1990), the Court held that mandatory state bar membership dues could not be used to further ideological causes with which some members might disagree, unless the state could show that the expenditures were incurred for the purpose of regulating the legal profession or improving the quality of legal service
When the right to be free from compelled association is exercised on the basis of race, gender,RELIGION, or sexual orientation, compet-ing constitutional rights clash Such was the dilemma faced by the Court in ROBERTS V
UNITED STATES JAYCEES, 468 U.S 609, 104 S Ct
3244, 82 L Ed 2d 462 (1984) The Jaycees is a national organization whose BYLAWS limited full membership to men age 18 to 35 When a group of women challenged their exclusion, this policy was held unconstitutional The Court FREEDOM OF ASSOCIATION AND ASSEMBLY 539
Trang 2found that the state’s interest in eliminating gender DISCRIMINATION outweighed the male Jaycees’ interest in freedom from compelled association Although the Court reiterated its position that freedom of association is funda-mental, it also stated that such freedom is not
ABSOLUTE:“Infringements on that right may be justified by regulations adopted to serve compel-ling state interests, unrelated to the suppression
of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.”
During the late 1990s several lawsuits were filed against the Boy Scouts of America (BSA) contesting the BSA’s rules against allowing gay scout leaders and troop members In Curran v
Mount Diablo Council of the Boy Scouts of America, 17 Cal.4th 670, 952 P.2d 218, 72 Cal
Rptr.2d 410 (1998), the California Supreme Court rejected a claim that the BSA violated a California anti-discrimination law The key issue was whether the BSA was a business establishment and thus a place of public accommodation Previous decisions had found that country clubs met this definition and were subject to the law
The court ruled that the scout organization was not a place of public accommodation It was true that the Boy Scouts conducted extensive business activities involving nonmem-bers through its retail shops and stores and through the licensing of its insignia However, the court ruled that these business activities differed from those of a country club The Boy Scouts are an “expressive social organization whose primary function is the inculcation of values in its youth members, and whose small social-groups structure and activities are not comparable to those of a traditional place of public accommodation or amusement.” Unlike the country club, the Boy Scouts did not sell to nonmembers “access to the basic activities or services offered by the organization.” Non-members could not purchase ENTRY to scout meetings, overnight hikes, the national jambo-ree, or to training and education programs
As for the Boy Scout retail stores, the court found that while these were business establish-ments, the business transacted at these stores was “distinct from the Scouts’ core functions”
and did not demonstrate that the organization had become a “commercial purveyor of the primary incidents and benefits of membership
of the organization.” Therefore, the Boy Scouts were not a “public accommodation subject to the anti-discrimination law.”
The U.S Supreme Court ended the dispute over the BSA and gay membership inBOY SCOUTS
OF AMERICA V.DALE, 530 U.S 640, 120 S.Ct 2446,
147 L.Ed.2d 554 (2000) The New Jersey Supreme Court had ruled that the BSA had violated both the Roberts, decision and New Jersey anti-discrimination laws; it ordered the BSA to allow gay membership The U.S Supreme Court rejected this decision, finding that the state supreme court had mistakenly applied the Roberts decision when it should have applied Hurley v Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S 557, 115 S.Ct 2338, 132 L.Ed.2d 487 (1995) In Hurley, the Court ruled that the sponsor of Boston’s St Patrick’s Day parade could not be forced to let a group of gays and lesbians participate The Court held that parades are a form of expression and that the sponsors could not be forced to include “a group imparting a message the organizers do not wish to convey.” The Court,
in a 5 to 4 decision, held that forcing the organization to accept gay troop leaders would violate the BSA rights of free expression and free association under the First Amendment Thus,
it accepted the BSA argument and rejected the New Jersey Supreme Court’s application of public accommodations law to the case The Court has also recognized a constitu-tional right to freedom of intimate association, the fundamental human right to create and maintain intimate human relationships Free-dom of intimate association is generally included within the right of privacy as enunciated in cases such asGRISWOLD V.CONNECTICUT, 381 U.S
479, 85 S Ct 1678, 14 L Ed 2d 510 (1965), invalidating a state statute forbidding use of contraception;ROE V.WADE, 410 U.S 113, 93 S
Ct 705, 35 L Ed 2d 147 (1973), holding a Texas law criminalizing ABORTION unconstitu-tional; and Carey v Population Services Interna-tional, 431 U.S 678, 97 S Ct 2010, 52 L Ed 2d
675 (1977), holding limits on distribution of contraceptives and contraceptive information unconstitutional
FURTHER READINGS Edgar, Christopher R 2002 “The Right to Freedom of Expressive Association and the Press ” Stanford Law Review 55 (October).
540 FREEDOM OF ASSOCIATION AND ASSEMBLY
Trang 3Huget, J Michael 1985 “Roberts v United States Jaycees:
What Price Freedom of Association? ” Michigan State
Law Review.
Jameson, Ann H 1985 “Roberts v United States Jaycees:
Discriminatory Membership Policy ” Catholic Univ.
Law Review 34 (summer).
Moegenburg, Julia A 1989 “Freedom of Association and
the Private Club.” Marquette Law Review 72 (spring).
CROSS REFERENCES
Club; Communism; NAACP.
FREEDOM OF INFORMATION ACT
U.S.C.A § 552 et seq.) provides for the
disclosure of information held by administrative
agencies to the public, unless the documents
requested fall into one of the specific
exemp-tions set forth in the statute FOIA was
implemented to prevent FEDERAL agencies from
abusing their discretionary powers by forcing
them to make certain information about their
work available to the public The law was
regarded as a great milestone because it
guaran-tees the right of people to learn about the
internal workings of their government Almost
all agencies of theEXECUTIVE BRANCHof the federal
government have issued regulations
implement-ing FOIA These regulations inform the public
where certain types of information are kept, how
the information may be obtained on request, and
what appeals are available if a member of the
public is denied requested information
A person requesting information under
FOIA must generally send a letter to the head
of the agency maintaining the documents that
are sought, identifying the records as clearly as
possible If the request for information is
denied, a letter of APPEAL may be filed, citing,
if possible, court rulings explaining why the
agency’s decision to withhold the information is
inappropriate If the agency denies the appeal,
the individual may seek JUDICIAL REVIEW of the
agency’s action
Exemptions to FOIA are designed to allow
an agency to withhold records in situations in
which disclosure would cause harm to an
important government function or private
interest FOIA explicitly exempts from
disclo-sure a variety of different types of information,
including materials that have been classified as
secret in the interest of national DEFENSE or
foreign policy; information related solely to the
internal personnel rules and practices of an
agency; trade secrets and commercial or finan-cial information; and personnel and medical files and similar files for which disclosure would constitute an unwarranted invasion of personal privacy (5 U.S.C.A § 552(b)) Although the exemptions appear to run counter to the public interest in gaining access to information, they serve certain important national policy interests, including those of national defense, foreign policy, civilian cooperation with law enforce-ment, and the efficient operation of government agencies Courts have held that, consistent with the purpose of FOIA, these exemptions must be narrowly construed
Most litigation under FOIA has occurred when an agency refuses to release government information, citing one or more of the exemp-tions set forth in the statute In United States
DEPARTMENT OF JUSTICEv Landano, 508 U.S 165,
113 S Ct 2014, 124 L Ed 2d 84 (1993), for example, the U.S Supreme Court held that the
FEDERAL BUREAU OF INVESTIGATION (FBI) does not have a blanket exemption under FOIA from disclosing the identity of FBI informants
Instead, the Court ruled, the bureau must justify, on a case-by-case basis, why informants’
identities must not be disclosed Thus, the Court performed the difficult task of reconciling two important but opposing interests: FOIA policy of favoring the fullest disclosure possible versus the interest of law enforcement agencies
in protecting their cooperative sources Writing for the Court, Justice Sandra Day O’Connor stated, “Although we recognize that confidenti-ality often will be important to the FBI’s investigative efforts, we cannot say that the government’s sweeping presumption comports with common sense and probability.” Instead, she maintained, the agency must be able to demonstrate that it was reasonable to infer under the circumstances that the information had been provided with an expectation of confidentiality
Requests for intelligence information has likewise been the subject of litigation under the Freedom of Information Act In 1996, President
public disclosure of the “bottom line” intelli-gence budget APPROPRIATION for the CENTRAL INTELLIGENCE AGENCY, following a recommenda-tion of an intelligence commission The gov-ernment divulged the govgov-ernment’s intelligence budgets in 1997 and 1998, but former CIA director George Tenet in 1999 determined that
FREEDOM OF INFORMATION ACT 541
Trang 4this information could be used to assist foreign countries in countering U.S intelligence efforts
advocacy group, brought suit in the U.S district court for the DISTRICT OF COLUMBIA in 1999 to compel disclosure of the budget figures, but the court denied these requests Congress held
hearings about disclosure of this information
in 2000, but the group’s requests for budget information in 2000 were similarly denied by the CIA
Since FOIA was enacted in 1966, more than
a half million requests for information have been filed with government agencies Although
A sample letter
requesting
information under
the Freedom of
Information Act.
ILLUSTRATION BY GGS
CREATIVE RESOURCES.
REPRODUCED BY
PERMISSION OF GALE,
A PART OF CENGAGE
LEARNING.
Freedom of Information Act
Request Letter Under the Freedom of Information Act
Your Name Address Telephone Number Date
Agency Head [or Freedom of Information Officer]
Name of Agency Address
RE: Freedom of Information Act Request
Dear (specify name):
This is a request under the Freedom of Information Act, 5 U.S.C Sec 552.
I request that a copy of the following documents [or documents containing the following information] be provided to me: [identify the documents or information as specifically as possible].
In order to help to determine my status to assess fees, you should know that I am [insert a suitable description of the requester and the purpose of the request].
[Sample requester descriptions:
—a representative of the news media affiliated with (a newspaper, magazine, television station, etc., or a public interest organization that publishes or disseminates information, etc.), and this request is made as part of news gathering and not for a commercial use.
—affiliated with an educational or noncommercial scientific institution, and this request is made for a scholarly or scientific purpose and not for a commercial use.
—an individual seeking information for personal use and not for a commercial use.
—affiliated with a private corporation and am seeking information for use in the company’s business.]
[Optional] I am willing to pay fees for this request up to a maximum of $[ ] If you estimate that the fees will exceed this amount, please inform me first.
[Optional] I request a waiver of all fees for this request Disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest [Include a specific explanation]
Very truly yours
Your name
—Send certified mail, return receipt requested.
542 FREEDOM OF INFORMATION ACT
Trang 5initially envisioned as a means to make the
federal government more accessible to citizens,
FOIA has been used extensively by reporters
and news-gathering agencies, corporations, and
even foreign governments
When the act was first passed, most
govern-ment data were stored primarily on paper,
microfilm, and microfiche With the advent of
the computer age, more information is available
to more people than ever before, creating the
need for new guidelines in disseminating
government information In particular,
com-puter technology raises questions about what
constitutes a reasonable request for information
under the act and about how information
should be disclosed The act does not mention
computerized records, but the Computer
Secu-rity Act of 1987 (Act of Jan 8, 1988, Pub L No
100-235, 101 Stat 1724 [1988]) prohibits
agencies from withholding computerized
records from the public if the records would
be available under FOIA as paper documents
Nevertheless, some groups seeking government
information have been concerned that
govern-ment agencies may release large volumes of
paper records when more manageable and
convenient computer records may be available
The policies of the administration ofGEORGE
W BUSH with respect to disclosure of
informa-tion have come under attack from groups
seeking to protect this information The
spawned a great deal of concern in the country
regarding security measures, including secrecy
with respect to information In October 2001,
Attorney GeneralJOHN ASHCROFTissued a
direc-tive to federal agencies that emphasized
with-holding of public records if the agency could
demonstrate a sound legal basis for doing so
Ashcroft has since supported withholding of
information from these agencies Although the
memorandum was issued after the terrorist
attacks, it had reportedly been in the works
prior to September 11
The Homeland Security Act of 2002 created
additional restrictions on the release of
govern-ment information The act allows private parties
to refuse to disclose information about“critical
infrastructure” by voluntarily submitting this
information to the HOMELAND SECURITY
DEPART-MENT Members of Congress have criticized this
measure, and advocacy groups have threatened
litigation to demand the release of this
information, but release of certain records could take years Although government officials claim that Bush’s policies have not hindered the release of information to a considerable extent, examples of limitations include restrictions of the media’s access in the war in Afghanistan in
2001, as well as the refusal to disclose the names
of more than 1,000 non-citizens held for
IMMIGRATION violations Nevertheless, when the United States attacked Iraq in March 2003, the media had considerable access, comparable to the level of access in the Gulf War of 1991
FURTHER READINGS Franklin, Justin D., and Robert F Bouchard 2003.
Guidebook to the Freedom of Information and Privacy Acts Eagan, MN: West.
O ’Reilly, James T 2000–2009 Federal Information Disclo-sure Eagan, MN: West.
The Department of Justice Guide to the Freedom of Information Act 2007 Washington, D.C.: Justice Department Available online at http://www.usdoj.gov/
oip/foia_guide07.htm; website home page: http://www.
usdoj.gov (accessed July 25, 2009).
FREEDOM OF SPEECH Freedom of speech is the right, guaranteed by the First Amendment to the U.S Constitution, to express beliefs and ideas without unwarranted government restriction
Democracies have long grappled with the issue of the limits, if any, to place on the expression of ideas and beliefs The dilemma dates back at least to Ancient Greece, when the Athenians, who cherished individual freedom, nevertheless prosecuted Socrates for his teach-ings, claiming that he had corrupted young people and insulted the gods
The Framers of the Constitution guaranteed
FREEDOM OF SPEECHand expression to the citizens
of the United States with the FIRST AMENDMENT, which reads, in part, “Congress shall make no law abridging the freedom of speech.”
Almost since the adoption of theBILL OF RIGHTS, however, the JUDICIARY has struggled to define speech and expression and the extent to which freedom of speech should be protected Some, like Justice Hugo L Black, have believed that freedom of speech isABSOLUTE But many jurists, along with many U.S citizens, agree with Justice Oliver Wendell Holmes Jr., who felt that the Constitution allows some restrictions on speech under certain circumstances To illustrate this point, Holmes wrote, “The most stringent
FREEDOM OF SPEECH 543
Trang 6protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic” (Schenck v United States, 249 U.S 47, 39 S Ct 247, 63 L Ed 470[1919])
During the two centuries since the adoption
of the First Amendment, the U.S Supreme Court has held that some types of speech or expression may be regulated At the same time, the Court has granted protection to some areas
of expression that the Framers clearly had not contemplated
Public Forum Regulation When the government attempts to regulate the exercise of speech rights in traditional public forums, such as parks or public sidewalks, the U.S Supreme Court examines whether the regulation restricts the content of the speech
or merely regulates the time, manner, and place
in which the speech is delivered
If the law regulates the content of the expression, it must serve a compelling STATE
achieve that interest (Perry Education Ass’n v
Perry Local Educators’ Ass’n, 460 U.S 37, 103 S
Ct 948, 74 L Ed 2d 794 [1983]) Restrictions
on speech in a public forum also may be upheld
if the expressive activity being regulated is of a type that is not entitled to full First Amendment protection, such as obscenity
Laws that regulate the time, manner, and place, but not content, of speech in a public forum receive less scrutiny by the Court than do laws that restrict the content of expression These so-called content-neutral laws are permissible if they serve a significant government interest and allow ample alternative channels of communica-tion (see Perry) It is not necessary that a content-neutral law be the least restrictive alternative, but only that the government’s interest would be achieved less effectively without it (Ward v Rock against Racism, 491 U.S 781, 109 S Ct 2746, 105
L Ed 2d 661[1989])
An important distinction is drawn between public premises that serve as traditional public forums and those that constitute limited public forums For example, state fair grounds are public premises that have not traditionally served as public forums The government may impose more restrictions on free speech in limited public forums than in traditional public forums In Heffron v International Society for Krishna Consciousness, 452 U.S 640, 101 S Ct
2559, 69 L Ed 2d 298 (1981), the Court upheld regulations limiting the sale or distribution of religious materials to fixed locations on state fair grounds
In Thomas v Chicago Park Dist., 534 U.S
316, 122 S Ct 775, 151 L Ed 2d 783 (2002), the Court reaffirmed that local governments do not violate the First Amendment when they require the obtaining of a permit before individuals can hold large-scale rally events in public parks In this case, the Chicago Park District denied a rally permit to a group that had sought to hold a “Hempfest.” The park district denied the permit because of violations
of park rules at previous events run by the organizers The group challenged the denial, arguing that the park district could use its unfettered discretionary power to deny permits
to those who held unpopular or controversial political views, such as support for the legaliza-tion of marijuana The U.S Supreme Court held that the park district’s ordinance was a constitutionally permissible “content-neutral” regulation of time, manner, and place It was directed toward all activity in a public park, not just toward communicative or political activity
It did not constitute subject-matter CENSORSHIP
A Hare Krishna
follower speaks to
men in a public park,
a traditional public
forum in which
freedom of speech is
protected In a 1981
decision, the court
upheld limitations on
the distribution of
religious material in
limited public forums
such as state fair
grounds.
ADAM WOOLFITT/
CORBIS.
544 FREEDOM OF SPEECH
Trang 7in any way The Court explained that the park
district’s object was to coordinate multiple uses
of limited space; to assure preservation of park
facilities; to prevent dangerous, unlawful, or
impermissible uses; and to assure financial
accountability forDAMAGEScaused by an event
Although it seems reasonable to assume that
public premises owned and operated by the
government are public forums, some are not In
Adderley v Florida, 385 U.S 39, 87 S Ct 242, 17
L Ed 2d 149 (1966), the U.S Supreme Court
upheld the trespassCONVICTIONof students who
demonstrated on the grounds of aJAIL Although
jailhouse grounds are public property, they have
not been used traditionally as public forums:
“No less so than a private owner of property,
the state has the power to preserve the property
under its control for the use to which it is
lawfully dedicated.” Later cases challenging
restricted access to public premises focused on
whether the government, in creating the
pre-mises, had intended to create a public forum In
United States v Kokinda, 497 U.S 720, 110 S
Ct 3115, 111 L Ed 2d 571 (1990), the Court
upheld a postal-service regulation that bars the
SOLICITATION of contributions on a post office’s
sidewalk, because that sidewalk lacked the
characteristics of a general public sidewalk
Similarly, it declared an airport terminal to be
a nonpublic forum because “the tradition of
airport activity does not demonstrate that
airports have historically been made available
for speech activity” (International Society for
Krishna Consciousness v Lee, 505 U.S 672, 112
S Ct 2701, 120 L Ed 2d 541[1992])
When private property rights conflict with
the public-forum doctrine, the Court examines
whether the regulation in question is narrowly
tailored to serve a significant government
interest A law may not prohibit all canvassing
or solicitation of, or distribution of handbills to,
homeowners in a residential neighborhood,
because a public street is a traditional public
forum However, it may limit specific types of
speech activity that target particular individuals
In Frisby v Schultz, 487 U.S 474, 108 S Ct
2495, 101 L Ed 2d 420 (1988), the Court
upheld an ordinance that prohibited the
pick-eting of individual residences The law had been
narrowly drawn to serve the government’s
interest in precluding the picketing of captive
householders and allowed picketers ample
alternative means of expression
Inciting, Provocative, or Offensive Speech
Laws that limit inciting or provocative speech, often called fighting words, or offensive expres-sions such asPORNOGRAPHY, are subject toSTRICT SCRUTINY It is well established that the govern-ment may impose content regulations on certain categories of expression that do not merit First Amendment protection To illustrate this point, the Court stated in Chaplinsky v New Hamp-shire, 315 U.S 568, 62 S Ct 766, 86 L Ed 1031 (1942), “There are certain well-defined and narrowly limited classes of speech, the preven-tion and punishment of which have never been thought to raiseCONSTITUTIONALproblems.”
With the increase of activity in cyberspace, individuals can distribute questionable speech throughout the United States and the world In Planned Parenthood of the Columbia/Willamette Inc v American Coalition of Life Activists, 290 F.3d 1058 (9th Cir 2002), a FEDERAL appeals court ruled that an anti-abortion Website was not protected by the First Amendment The Website posted photos, names, addresses, and other information pertaining to ABORTION pro-viders, their family members, and others who were perceived as supporting abortion rights
Although neither the site nor the posters made explicit threats against the abortion providers, violence at clinics that provided abortions had followed poster distribution in the past Planned Parenthood sued the group under the Freedom
of Access to Clinic Entrances Act of 1994 (FACE), 18 U.S.C § 248, and other laws The trial judge instructed the jury that if the
A member of the Ku Klux Klan at a rally held in Pennsylvania Freedom of speech is guaranteed to groups that many people may find offensive.
AP IMAGES FREEDOM OF SPEECH 545
Trang 8defendants’ statements were “true threats,” the First Amendment would not protect them The jury awarded the plaintiff a multimillion-dollar verdict The Ninth Circuit stated that a jury could conclude that the postings constituted a true threat under FACE, which removed any First Amendment protection for the defendants
The Court has also upheld laws that regulate speech activity if those laws do not limit the content of speech and impose only an indirect burden on freedom of speech In such cases, the Court applies a less stringent test and balances the individual’s free speech interests against the government’s interest that is furthered by the law in question In O’Brien v United States, 393 U.S 900, 89 S Ct 63, 21 L Ed 2d 188 (1968), the Court held that a statute prohibiting the destruction of DRAFT cards did not violate the First Amendment, because the government’s interest in maintaining a viable selective-service pool outweighed the statute’s INCIDENTAL IN-FRINGEMENTof free expression
Since the 1980s, a number of laws have been passed that attempt to regulate or ban hate speech, which is defined as utterances, displays,
or expressions of racial, religious, or sexualBIAS The U.S Supreme Court has generally invali-dated such laws on the ground that they infringe First Amendment rights In R.A.V v City of St
Paul, 505 U.S 377, 112 S Ct 2538, 120 L Ed
2d 305 (1992), the Court invalidated the city of
St Paul’s hate-crime ordinance, RULING that it unconstitutionally infringed free speech The
DEFENDANTin that case had been prosecuted for burning a cross on the lawn of an African American family’s residence
The Minnesota Supreme Court held that the ordinance was limited to restricting conduct that amounted to Chaplinksky “fighting words.”
Therefore, the ordinance was not impermissibly content-based because it was “narrowly tai-lored” to further the “compelling governmental interest in protecting the community against bias-motivated threats to public safety and order.” The U.S Supreme Court disagreed
JusticeANTONIN SCALIA, in his majority opinion, wrote that, even assuming that the cross burning was proscribable under the “fighting words” doctrine, the ordinance was, on its face, unconstitutional It violated the First Amend-ment because it prohibited “otherwise permit-ted speech solely on the basis of the subjects the speech addresses.” Scalia agreed that the
government may constitutionally proscribe content such as libel but that it may not proscribe only libel that is critical of the government In majority’s view, the unprotected features of “fighting words” are their “non-speech” element of communication Thus, fighting words are like a noisy sound truck: Each
is a mode of speech, and both can be used to convey an idea, but neither has a claim on the First Amendment The government cannot, however, regulate fighting words or a sound truck based on “hostility—or favoritism—to-wards the underlying message expressed.”
In addition, the ordinance was not over-broad but underinclusive The content limita-tion was impermissible because it displayed
“the city council’s special hostility towards the particular biases thus singled out.” An ordi-nance not restricted “to the favored topics” would have the same effect the city desired, but without the DISCRIMINATION against unpopular views Justice Scalia also noted that the city could have prosecuted the defendant under traditional CRIMINAL LAW statutes, including
ARSON, trespass, and terroristic threats In his view, the city had other means to address the problem“without adding the First Amendment
to the fire.”
This decision did not end the debate over hate crimes The Court took up the issue again
in Virginia v Black, 538 U.S 343, 123 S Ct
1536 155 L Ed 2d 535 (2003) This case also involved a cross burning aimed at terrorizing an African American family A Virginia criminal statute had outlawed cross burning “on the property of another, a highway or other public place with the INTENT of intimidating any person or group.” In a 6–3 decision, the Court upheld the statute It emphasized that the First Amendment would protect some types of cross burnings, such as one held at a political rally However, when the cross burning was targeted
at individuals for the purposes of criminal intimidation, freedom of speech would not protect the cross burners
Like fighting words, materials that are judged obscene are not protected by the First Amendment The three-part Miller test stands
as the measure for differentiating material that
is merely offensive and, therefore, protected by the First Amendment, from that which is legally obscene and, therefore, subject to restriction (Miller v California, 413 U.S 15, 93 S Ct 2607,
546 FREEDOM OF SPEECH
Trang 937 L Ed 2d 419 [1973]) The Miller test
determines that material is obscene if: (1) the
average person, applying contemporary
com-munity standards, would find that it appeals to
shameful or morbid sexual interests; (2) it
depicts or describes patently offensive sexual
conduct; and (3) it lacks serious literary, artistic,
political, or scientific value
The SeventhCIRCUIT COURTof Appeals ruled
in Kendrick v American Amusement Machine
Association, 244 F.3d 572 (7th Cir 2001), that a
city ordinance that prohibited minors from
playing violent or sexually explicit video
arcade games was unconstitutional The court
noted that the city had not sought to regulate
video games because they were “offensive”
under Miller Rather, the ordinance premised
its restriction on the belief that violent fantasy
video games led to real-world harm The
appeals court found no real difference between
the content of the allegedly “violent” video
games and generally available, unrestricted
literature that depicted the same level of
violence They were both examples of “a
children’s world of violent adventures.” The
court, therefore, found that the ordinance
impermissibly restricted minors’ freedom of
expression without any offsetting justification
Prior Restraint
The Court uses a stringent standard when it
evaluates statutes that impose aPRIOR RESTRAINT
on speech The test that is most frequently
employed asks whether the prohibited activity
poses aCLEAR AND PRESENT DANGERof resulting in
damage to a legitimate government interest
Most often, the clear-and-present-danger
doc-trine has applied to prior restraints on the
publication of materials thought to threaten
national security This test was first expressed by
Justice Holmes in the Schenck case Charles T
Schenck had been charged with violating the
ESPIONAGEAct (Tit 1, §§ 3, 4 [Comp St 1918,
§§ 10212c, 10212d]) by distributing pamphlets
that urged insubordination among members of
the military The Court held that his activities
created “a clear and present danger that they
will bring about the substantive evils that
Congress has a right to prevent.” The
govern-ment’s interest in maintaining national security
and preventing dissension among the troops
outweighed Schenck’s interest in free speech
The clear-and-present-danger test was
ex-tended during the 1950s, when widespread fear
ACT, 18 U.S.C.A § 2385, which prohibited advocating the overthrow of the government
The act was challenged as a prior restraint on speech It was upheld by the U.S Supreme Court, which stated that the clear-and-present-danger test does not require the government to prove that a threat is IMMINENT or that a plot probably would be successful (Dennis v United States, 341 U.S 494, 71 S Ct 857, 95 L Ed
1137[1951])
The Dennis decision was criticized as weakening the clear-and-present-danger test and allowing the government too much free-dom to restrict speech These results were remedied somewhat in Brandenburg v Ohio,
395 U.S 444, 89 S Ct 1827, 23 L Ed 2d 430 (1969), in which the Court invalidated a statute that punished the advocacy of violence in industrial disputes The Court held that the government cannot forbid the advocacy of the use of force unless that advocacy is directed to inciting imminent illegal activity and is likely to succeed
Expressive Conduct
In West Virginia State Board of Education v
Barnette, 319 U.S 624, 63 S Ct 1178, 87 L Ed
1628 (1943), Justice ROBERT H JACKSON wrote that symbols are “a short cut from mind to mind.” Expressive conduct or SYMBOLIC SPEECH
involves communicative conduct that is the behavioral equivalent of speech The conduct itself is the idea or message Some expressive conduct is the equivalent of speech and is protected by the First Amendment
In Tinker v Des Moines Independent Com-munity School District, 393 U.S 503, 89 S Ct
733, 21 L Ed 2d 731 (1969), the U.S Supreme Court held that it was unconstitutional to suspend high-school students for wearing black armbands to protest the VIETNAM WAR, because their conduct was “akin to pure speech” and did not interfere with the work of the school or the rights of other students Thus, the Court ruled that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substan-tially disrupt the work and discipline of the school.”
In Morse v Frederick, 551 U.S 393, 127 S
Ct 2618, 168 L Ed 2d 290 (2007), the Supreme Court found that the Tinker precedent did not
FREEDOM OF SPEECH 547
Trang 10protect student expression that a school official perceived as promoting illegal drug use, even though the expression took place off school property During January 2002, the Olympic Torch Relay passed in front of Juneau-Douglas High School (JDHS) in Juneau, Alaska, en route
to the winter games in Salt Lake City, Utah
Students at JDHS were permitted to leave classes and watch the relay from outside the school Joseph Frederick, a senior at JDHS, watched the event from across the street from JDHS Just as the relay runner and TELEVISION
cameras passed by Frederick, he and his friends held up a large banner containing the phrase
“BONG HITS 4 JESUS.” JDHS principal Deborah Morse crossed the street, demanded that Frederick take down the banner, and then confiscated it when he refused to take it down
Morse subsequently suspended Frederick for ten days, though the suspension was later reduced to two days
Frederick responded by suing Morse and the school board for violating his free speech rights under the First Amendment The U.S district court for the District of Alaska grantedSUMMARY JUDGMENTfor the defendants, finding that“it is a highly appropriate function of public education
to prohibit the use of offensive terms in public discourse” and that the First Amendment does not prevent school officials from deter-mining that certain language“would undermine the school’s basic educational mission” (Freder-ick v Morse, 2003 WL 25274689 [2003]) The U
S Court of Appeals for the Ninth Circuit reversed, finding that in the absence of proof that Frederick had disrupted educational activi-ties, Morse had no right to punish and censor off-campus speech simply because the speech promoted a social message contrary to the one favored by the school (Frederick v Morse, 439 F.3d 1114[2006]) Morse and the school board appealed
In its opinion, the Supreme Court first rejected Frederick’s argument that Morse had
no authority over him because he was off school property The event occurred during normal school hours, and it was sanctioned by the principal “as an approved social event or class trip,” and the school district’s rules expressly provided that pupils in “approved social events and class trips are subject to district rules for student conduct,” the Court observed
The Court also noted that teachers and
administrators were interspersed among stu-dents and charged with supervising them, and the high school band and cheerleaders per-formed Thus, Morse had an obligation to oversee Frederick’s activities across the street from the school just as if they had taken place inside the school
Next the Court focused on the content of the Frederick’s speech According to testimony
at trial, a banner proclaiming “BONG HITS 4 JESUS” could have one of four meanings:
“smoke marijuana,” “use an illegal drug,”mar-ijuana bong hits are a good thing,“or”we take marijuana bong hits.“Each of the four messages promote the use of a drug that is illegal, the Court said, and flies in the face of the school’s message that illegal drug use is harmful.“The 1st Amendment does not require schools to tolerate student expression that contributes to those dangers,”the Court ruled Thus, the principal was well within her authority in confiscating Frederick’s banner and punishing Frederick for unveiling it during a school activity
JusticeJOHN PAUL STEVENS, joined by Justices
DAVID SOUTERand Ruth Bader Ginsburg, wrote a caustic DISSENT “It takes real imagination to read a cryptic message with a slanting drug reference as an incitement to drug use Admittedly, some high school students (includ-ing those who use drugs) are dumb Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it.” The majority countered by pointing out that in Bethel School Dist No 403 v Fraser, 478 U.S 675, 106 S Ct
3159, 92 L Ed 2d 549 (1986), the Court upheld the suspension of a student who delivered a high school assembly speech employing a graphic sexual metaphor that the school found disruptive, even though it did not rise to the level of inciting the students to take illegal action Curtailing student speech that promotes illegal activity is supported by a stronger justification than the one offered in Bethel, the Court said
In Good News Club v Milford Central School,
533 U.S 98, 121 S Ct 2093, 150 L Ed 2d 151 (2001), the U.S Supreme Court ruled that a private Christian organization could not be denied use of the public school space for after-school activities The Court emphasized that the establishment clause could not serve as a barrier
548 FREEDOM OF SPEECH