CITES BY TOPIC:  First Amendment
New York Times v. Sullivan, 376 U.S. 254 (1964):  [criticism of public officials protected]

Authoritative interpretations of the First Amendment guarantees have consistently refused to recognize an exception for any test of truth - whether administered by judges, juries, or administrative officials - and especially one that puts the burden of proving truth on the speaker. Cf. Speiser v. Randall, 357 U.S. 513, 525 -526. The constitutional protection does not turn upon "the truth, popularity, or social utility of the ideas and beliefs which are offered." N. A. A. C. P. v. Button, 371 U.S. 415, 445 . As Madison said, "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." 4 Elliot's Debates on the Federal Constitution (1876), p. 571. In Cantwell v. Connecticut, 310 U.S. 296, 310 , the Court declared:

"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 probability 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."

That erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression [376 U.S. 254, 272]   are to have the "breathing space" that they "need . . . to survive," N. A. A. C. P. v. Button, 371 U.S. 415, 433 , was also recognized by the Court of Appeals for the District of Columbia Circuit in Sweeney v. Patterson, 76 U.S. App. D.C. 23, 24, 128 F.2d 457, 458 (1942), cert. denied, 317 U.S. 678 . Judge Edgerton spoke for a unanimous court which affirmed the dismissal of a Congressman's libel suit based upon a newspaper article charging him with anti-Semitism in opposing a judicial appointment. He said:

"Cases which impose liability for erroneous reports of the political conduct of officials reflect the obsolete doctrine that the governed must not criticize their governors. . . . The interest of the public here outweighs the interest of appellant or any other individual. The protection of the public requires not merely discussion, but information. Political conduct and views which some respectable people approve, and others condemn, are constantly imputed to Congressmen. Errors of fact, particularly in regard to a man's mental states and processes, are inevitable. . . . Whatever is added to the field of libel is taken from the field of free debate." 13  

Injury to official reputation affords no more warrant for repressing speech that would otherwise be free than does factual error. Where judicial officers are involved, this Court has held that concern for the dignity and [376 U.S. 254, 273]   reputation of the courts does not justify the punishment as criminal contempt of criticism of the judge or his decision. Bridges v. California, 314 U.S. 252 . This is true even though the utterance contains "half-truths" and "misinformation." Pennekamp v. Florida, 328 U.S. 331, 342 , 343, n. 5, 345. Such repression can be justified, if at all, only by a clear and present danger of the obstruction of justice. See also Craig v. Harney, 331 U.S. 367 ; Wood v. Georgia, 370 U.S. 375 . If judges are to be treated as "men of fortitude, able to thrive in a hardy climate," Craig v. Harney, supra, 331 U.S., at 376 , surely the same must be true of other government officials, such as elected city commissioners. 14 Criticism of their official conduct does not lose its constitutional protection merely because it is effective criticism and hence diminishes their official reputations.

[New York Times v. Sullivan, 376 U.S. 254 (1964)]


PDF Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854 (U.S.,2005)


Murdock v. Pennsylvania, 319 U.S. 105 (1943)

"...The constitutional rights of those spreading their religious beliefs through the spoken and printed word are not to be gauged by standards governing retailers or wholesalers of books. The right to use the press for expressing one's views is not to be measured by the protection afforded commercial handbills. It should be remembered that the pamphlets of Thomas Paine were not distributed free of charge. It is plain that a religious organization needs funds to remain a going concern. But an itinerant evangelist, however misguided or intolerant he may be, does not become a mere book agent by selling the Bible or religious tracts to help defray his expenses or to sustain him. Freedom of speech, freedom of the press, freedom of religion are available to all, not merely to those who can pay their own way. . ."
[Murdock v. Pennsylvania, 319 U.S. 105 (1943)]


Faith Center Church Evangelistic Ministries v. Glover, 462 F.3d 1194, (2006)

Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”); Sammartano, 303 F.3d at 973 (“[A] party seeking preliminary injunctive relief in a First Amendment context can establish irreparable injury sufficient to merit the grant of relief by demonstrating the existence of a colorable First Amendment claim.” (internal quotation marks and citation omitted)). We agree that the existence of a colorable First Amendment claim in this case is sufficient to demonstrate irreparable injury. We therefore confine our review to determining whether Faith Center has demonstrated a likelihood of success on the merits of its First Amendment “as applied” challenge.FN7

[Faith Center Church Evangelistic Ministries v. Glover, 462 F.3d 1194, (2006)]


New York Times Co. v. United States, 403 U.S. 713 (1970):

In the First Amendment, the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. And paramount among the responsibilities of a free press is the duty to prevent any part of the government from deceiving the people and sending them off to distant lands to die of foreign fevers and foreign shot and shell. In my view, far from deserving condemnation for their courageous reporting, the New York Times, the Washington Post, and other newspapers should be commended for serving the purpose that the Founding Fathers saw so clearly. In revealing the workings of government that led to the Vietnam war, the newspapers nobly did precisely that which the Founders hoped and trusted they would do.

[New York Times Co. v. United States, 403 U.S. 713 (1970)]


Central Hudson Gas & Electric v. Public Service Comm'n, 447 U.S. 557 (1980)  [Commercial speech is protected]

The First Amendment, as applied to the States through the Fourteenth Amendment, protects commercial speech from unwarranted governmental regulation. Virginia Pharmacy Board, 425 U.S., at 761 -762. Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible [447 U.S. 557, 562]   dissemination of information. In applying the First Amendment to this area, we have rejected the "highly paternalistic" view that government has complete power to suppress or regulate commercial speech. "[P]eople will perceive their own best interest if only they are well enough informed, and . . . the best means to that end is to open the channels of communication, rather than to close them. . . ." Id., at 770; see Linmark Associates, Inc. v. Willingboro, 431 U.S. 85, 92 (1977). Even when advertising communicates only an incomplete version of the relevant facts, the First Amendment presumes that some accurate information is better than no information at all. Bates v. State Bar of Arizona, supra, at 374.

Nevertheless, our decisions have recognized "the `commonsense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech." Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 455 -456 (1978); see Bates v. State Bar of Arizona, supra, at 381; see also Jackson & Jeffries, Commercial Speech: Economic Due Process and the First Amendment, 65 Va. L. Rev. 1, 38-39 (1979). 5 The [447 U.S. 557, 563]   Constitution therefore accords a lesser protection to commercial speech than to other constitutionally guaranteed expression. 436 U.S., at 456 , 457. The protection available for particular commercial expression turns on the nature both of the expression and of the governmental interests served by its regulation.

The First Amendment's concern for commercial speech is based on the informational function of advertising. See First National Bank of Boston v. Bellotti, 435 U.S. 765, 783 (1978). Consequently, there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity. The government may ban forms of communication more likely to deceive the public than to inform it, Friedman v. Rogers, supra, at 13, 15-16; Ohralik v. Ohio State Bar Assn., supra, at 464-465, or [447 U.S. 557, 564]   commercial speech related to illegal activity, Pittsburgh Press Co. v. Human Relations Comm'n, 413 U.S. 376, 388 (1973). 6  

If the communication is neither misleading nor related to unlawful activity, the government's power is more circumscribed. The State must assert a substantial interest to be achieved by restrictions on commercial speech. Moreover, the regulatory technique must be in proportion to that interest. The limitation on expression must be designed carefully to achieve the State's goal. Compliance with this requirement may be measured by two criteria. First, the restriction must directly advance the state interest involved; the regulation may not be sustained if it provides only ineffective or remote support for the government's purpose. Second, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restrictions cannot survive.

Under the first criterion, the Court has declined to uphold regulations that only indirectly advance the state interest involved. In both Bates and Virginia Pharmacy Board, the Court concluded that an advertising ban could not be imposed to protect the ethical or performance standards of a profession. The Court noted in Virginia Pharmacy Board that "[t]he advertising ban does not directly affect professional standards one way or the other." 425 U.S., at 769 . In Bates, the Court overturned an advertising prohibition that was designed to protect the "quality" of a lawyer's work. [447 U.S. 557, 565]   "Restraints on advertising . . . are an ineffective way of deterring shoddy work." 433 U.S., at 378 . 7  

The second criterion recognizes that the First Amendment mandates that speech restrictions be "narrowly drawn." In re Primus, 436 U.S. 412, 438 (1978). 8 The regulatory technique may extend only as far as the interest it serves. The State cannot regulate speech that poses no danger to the asserted state interest, see First National Bank of Boston v. Bellotti, supra, at 794-795, nor can it completely suppress information when narrower restrictions on expression would serve its interest as well. For example, in Bates the Court explicitly did not "foreclose the possibility that some limited supplementation, by way of warning or disclaimer or the like might be required" in promotional materials. 433 U.S., at 384 . See Virginia Pharmacy Board, supra, at 773. And in Carey v. Population Services International, 431 U.S. 678, 701 -702 (1977), we held that the State's "arguments . . . do not justify the total suppression of advertising concerning contraceptives." This holding left open the possibility that [447 U.S. 557, 566]   the State could implement more carefully drawn restrictions. See id., at 712 (POWELL, J., concurring in part and in judgment); id., at 716-717 (STEVENS, J., concurring in part and in judgment). 9  

In commercial speech cases, then, a four-part analysis has developed. At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

[Central Hudson Gas & Electric v. Public Service Comm'n, 447 U.S. 557 (1980)]


West Virginia State Board of Education v. Barnette, 319 U.S. 624; 63 S.Ct. 1178 (1943):

"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 by word or act their faith therein.  If there are any circumstances which permit an exception, they do not now occur to us."

[West Virginia State Board of Education v. Barnette, 319 U.S. 624; 63 S.Ct. 1178 (1943)]


First Amendment Law in a Nutshell, Second Edition, pp. 266-267, Jerome A Barron, West Group, 2000; ISBN 0-314-22677-X

Just as there is freedom to speak, to associate, and to believe, so there is freedom not to speak, associate, or believe.  “The right to speak and the right to refrain from speaking are complementary components of the broader concept of ‘individual freedom of mind.’” Wooley v. Maynard (1977).  Freedom of conscience dictates that no individual be forced to espouse idealogical causes with which he disagrees: “[A]t the heart of the First Amendment is the notion that the individual should be free to believe as he will, and that in a free society one’s beliefs should be shaped by his mind and by his conscience, rather than coerced by the State.” Abood v. Detroit Bd. Of Educ. (1977)

[First Amendment Law in a Nutshell, Second Edition, pp. 266-267, Jerome A Barron, West Group, 2000; ISBN 0-314-22677-X]


McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995)

“Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the majority”

[McIntyre v. Ohio Elections Commission, 514 U.S. 334, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995)]


Talley v. California, 362 U.S. 60 (1960)

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. The obnoxious press licensing law of England, which was also enforced on the Colonies was due in part to the knowledge that exposure of the names of printers, writers and distributors would lessen the circulation of literature critical of the government. The old seditious libel cases in England show the lengths to which government had to go to find out who was responsible for books that were obnoxious [362 U.S. 60, 65]   to the rulers. John Lilburne was whipped, pilloried and fined for refusing to answer questions designed to get evidence to convict him or someone else for the secret distribution of books in England. Two Puritan Ministers, John Penry and John Udal, were sentenced to death on charges that they were responsible for writing, printing or publishing books. 6 Before the Revolutionary War colonial patriots frequently had to conceal their authorship or distribution of literature that easily could have brought down on them prosecutions by English-controlled courts. Along about that time the Letters of Junius were written and the identity of their author is unknown to this day. 7 Even the Federalist Papers, written in favor of the adoption of our Constitution, were published under fictitious names. It is plain that anonymity has sometimes been assumed for the most constructive purposes.

We have recently had occasion to hold in two cases that there are times and circumstances when States may not compel members of groups engaged in the dissemination of ideas to be publicly identified. Bates v. Little Rock, 361 U.S. 516 ; N. A. A. C. P. v. Alabama, 357 U.S. 449, 462 . The reason for those holdings was that identification and fear of reprisal might deter perfectly peaceful discussions of public matters of importance. This broad Los Angeles ordinance is subject to the same infirmity. We hold that it, like the Griffin, Georgia, ordinance, is void on its face. [362 U.S. 60, 66]

[Talley v. California, 362 U.S. 60 (1960)]


Rutter Group California Practice Guide: Civil Procedure Before Trial, paragraph 9:525, Rev 31 2005

[9:525]  Constitutional rights:  Irreparable injury is presumed where plaintiff's First Amendment rights are threatened:

"The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." [Ellrod v. Burns (1976) 427 U.S. 347, 373, 96 S.Ct. 2673, 2690]

[Rutter Group California Practice Guide: Civil Procedure Before Trial, paragraph 9:525, Rev 31 2005]


Bates v. Little Rock, 361 U.S. 516 (1960)

Like freedom of speech and a free press, the right of peaceable assembly was considered by the Framers of our Constitution to lie at the foundation of a government [361 U.S. 516, 523]   based upon the consent of an informed citizenry - a government dedicated to the establishment of justice and the preservation of liberty. U.S. Const., Amend. I. And it is now beyond dispute that freedom of association for the purpose of advancing ideas and airing grievances is protected by the Due Process Clause of the Fourteenth Amendment from invasion by the States. De Jonge v. Oregon, 299 U.S. 353, 364 ; N. A. A. C. P. v. Alabama, 357 U.S. 449, 460 .

Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference. Grosjean v. American Press Co., 297 U.S. 233 ; Murdock v. Pennsylvania, 319 U.S. 105 ; American Communications Assn. v. Douds, 339 U.S. 382, 402 ; N. A. A. C. P. v. Alabama, supra; Smith v. California, 361 U.S. 147 . "It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] effective . . . restraint on freedom of association. . . . This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." N. A. A. C. P. v. Alabama, 357 U.S., at 462 .

On this record it sufficiently appears that compulsory disclosure of the membership lists of the local branches of the National Association for the Advancement of Colored People would work a significant interference with the freedom of association of their members. 9 There was [361 U.S. 516, 524]   substantial uncontroverted evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm. There was also evidence that fear of community hostility and economic reprisals that would follow public disclosure of the membership lists had discouraged new members from joining the organizations and induced former members to withdraw. This repressive effect, while in part the result of private attitudes and pressures, was brought to bear only after the exercise of governmental power had threatened to force disclosure of the members' names. N. A. A. C. P. v. Alabama, 357 U.S., at 463 . Thus, the threat of substantial government encroachment upon important and traditional aspects of individual freedom is neither speculative nor remote.

Decision in this case must finally turn, therefore, on whether the cities as instrumentalities of the State have demonstrated so cogent an interest in obtaining and making public the membership lists of these organizations as to justify the substantial abridgment of associational freedom which such disclosures will effect. Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling. N. A. A. C. P. v. Alabama, 357 U.S. 449 . See also Jacobson v. Massachusetts, 197 U.S. 11 ; Schneider v. State, 308 U.S. 147 ; Cox v. New Hampshire, 312 U.S. 569, 574 ; Murdock v. Pennsylvania, 319 U.S. 105 ; Prince v. Massachusetts, 321 U.S. 158 ; Kovacs v. Cooper, 336 U.S. 77 .

[Bates v. Little Rock, 361 U.S. 516 (1960)]


NAACP v. Alabama, 357 U.S. 449 (1958)

We thus reach petitioner's claim that the production order in the state litigation trespasses upon fundamental freedoms protected by the Due Process Clause of the Fourteenth Amendment. Petitioner argues that in view of the facts and circumstances shown in the record, the effect of compelled disclosure of the membership lists will be to abridge the rights of its rank-and-file members to engage in lawful association in support of their common beliefs. It contends that governmental action which, although not directly suppressing association, nevertheless carries this consequence, can be justified only upon some overriding valid interest of 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. De Jonge v. Oregon, 299 U.S. 353, 364 ; Thomas v. Collins, 323 U.S. 516, 530 . 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. See Gitlow v. New York, 268 U.S. 652, 666 ; Palko v. Connecticut, 302 U.S. 319, 324 ; Cantwell v. Connecticut, 310 U.S. 296, 303 ; Staub v. City of Baxley, 355 U.S. 313, 321 . Of course, it 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 [357 U.S. 449, 461]   effect of curtailing the freedom to associate is subject to the closest scrutiny.

The fact that Alabama, so far as is relevant to the validity of the contempt judgment presently under review, has taken no direct action, cf. De Jonge v. Oregon, supra; Near v. Minnesota, 283 U.S. 697 , to restrict the right of petitioner's members to associate freely, does not end inquiry into the effect of the production order. See American Communications Assn. v. Douds, 339 U.S. 382, 402 . In the domain of these indispensable liberties, whether of speech, press, or association, the decisions of this Court recognize that abridgment of such rights, even though unintended, may inevitably follow from varied forms of governmental action. Thus in Douds, the Court stressed that the legislation there challenged, which on its face sought to regulate labor unions and to secure stability in interstate commerce, would have the practical effect "of discouraging" the exercise of constitutionally protected political rights, 339 U.S., at 393 , and it upheld the statute only after concluding that the reasons advanced for its enactment were constitutionally sufficient to justify its possible deterrent effect upon such freedoms. Similar recognition of possible unconstitutional intimidation of the free exercise of the right to advocate underlay this Court's narrow construction of the authority of a congressional committee investigating lobbying and of an Act regulating lobbying, although in neither case was there an effort to suppress speech. United States v. Rumely, 345 U.S. 41, 46 -47; United States v. Harriss, 347 U.S. 612, 625 -626. The governmental action challenged may appear to be totally unrelated to protected liberties. Statutes imposing taxes upon rather than prohibiting particular activity have been struck down when perceived to have the consequence of unduly curtailing the liberty of freedom of press assured under the Fourteenth Amendment. Grosjean v. American [357 U.S. 449, 462]   Press Co., 297 U.S. 233 ; Murdock v. Pennsylvania, 319 U.S. 105 .

It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said in American Communications Assn. v. Douds, supra, at 402: "A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature." Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order. Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs. Cf. United States v. Rumely, supra, at 56-58 (concurring opinion).

We think that the production order, in the respects here drawn in question, must be regarded as entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their right to freedom of association. Petitioner has made an uncontroverted showing that on past occasions revelation of the identity of its rank-and-file members has exposed these members to economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility. Under these circumstances, we think it apparent that compelled disclosure of petitioner's Alabama membership is likely to affect adversely the ability of petitioner and [357 U.S. 449, 463]   its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate, in that it may induce members to withdraw from the Association and dissuade others from joining it because of fear of exposure of their beliefs shown through their associations and of the consequences of this exposure.

[. . .]

We hold that the immunity from state scrutiny of membership lists which the Association claims on behalf of its members is here so related to the right of the members to pursue their lawful private interests privately and to associate freely with others in so doing as to come within the protection of the Fourteenth Amendment. And we conclude that Alabama has fallen short of showing a controlling justification for the deterrent effect on the free enjoyment of the right to associate which disclosure of membership lists is likely to have. Accordingly, the judgment of civil contempt and the $100,000 fine which resulted from petitioner's refusal to comply with the production order in this respect must fall.

[NAACP v. Alabama, 357 U.S. 449 (1958)]


MAJOR DECISIONS INTERPRETING FREE SPEECH:

SCOPE OF THE FIRST AMENDMENT

The First Amendment states in pertinent part: "Congress shall make no law . . . abridging the freedom of speech or of the press . . . ."

Federal Government: The language of the First Amendment suggests that it applies only to Congress, but that has been extended. United States v. Grace, 461 U.S. 171 (1983)

State and Local Governments: Until the Fourteenth Amendment was adopted in 1868, the First Amendment did not apply to the states. Now it even applies to state legislatures. Smith v. Daily Mail Publishing, 443 U.S. 97 (1979)

Private Individuals: The First Amendment does not apply to private individuals. Hurley v. GLIB, -- U.S. -- (1995)

"NO LAW"

The language of the First Amendment suggests that it is absolute. Adderley v. Florida, 385 U.S. 39 (1966)

UNPROTECTED "SPEECH"

The First Amendment does not apply to advocating imminent lawless behavior.  Hess v. Indiana, 414 U.S. 105 (1973)

Fighting Words: The First Amendment does not protect "fighting words."  Cohen v. California, 403 U.S. 15 (1971)

Obscenity: Obscenity may be punished.  Alexander v. United States, 509 U.S.544 (1993)

Defamation: A plaintiff may recover damages for defamation, but with limitations. New York Times v. Sullivan, 376 U.S. 254 (1964)

PRIOR RESTRAINT

A "prior restraint" is an unlawful gag on someone before he has had an opportunity to speak. Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)

Almost Absolute Ban: The First Amendment is an almost absolute ban on prior restraints. New York Times v. United States, 403 U.S. 713 (1971);  Schenck v. United States, 249 U.S. 47 (1919); Abrams v. United States, 250 U.S. 616 (1919)

THE PRESS

The First Amendment suggests that freedom of the press is different from freedom of speech. Landmark Communications v. Virginia, 435 U.S. 829 (1978)

Private Individual: An individual may not compel a newspaper to print his reply to criticism.  Miami Herald Publishing v. Tornillo, 418 U.S. 214 (1974)

Newspaper Reporter: A reporter can be brought before grand jury.  Branzburg v. Hayes, 408 U.S. 665 (1972)

BROADCASTING

The broadcast media is treated differently from other media. Red Lion Broadcasting v. FCC, 395 U.S. 367 (1969)

Right of Access: Candidates cannot compel a newspaper to run their advertisements, but they can compel broadcasters to do so. CBS v. FCC, 453 U.S. 367 (1981)

Cable Television:Cable television is not treated as broadcast television for First Amendment purposes.  Turner Broadcasting System v. FCC, -- U.S. -- (1994)

TIME, PLACE AND MANNER RESTRICTIONS

Most First Amendment cases involve time, place and manner restrictions.

Type of Forum: Two types of forums are distinguished: public and nonpublic. International Society for Krishna Consciousness v. Lee, 505 U.S. 672 (1992)

Type of Restriction: Two categories of restrictions are distinguished: content-based and content-neutral. United States v. Eichmann, 496 U.S. 310 (1990)

Tests: Officials must prove that the law is necessary to serve a compelling state interest and is narrowly drawn. PEA v. PLEA, 460 U.S. 37 (1983); Boos v. Barry, 485 U.S. 312 (1988)

Narrowly Drawn or Tailored: A law that gives an official too-broad discretion to restrict speech is unconstitutional. Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992)

COMMERCIAL SPEECH

The First Amendment applies to commercial speech. Central Hudson Gas & Electric v. Public Service Comm'n, 447 U.S. 557 (1980)

City Beautification: Regulations on commercial speech in the name of city beautification cannot stand.  City of Cincinnati v. Discovery Network, 507 U.S. 410 (1993); Linmark Associates v. Township of Willingboro, 431 U.S. 85 (1977)

Lawyer Advertising: Officials cannot ban lawyer advertising.  Bates v. State Bar of Arizona, 433 U.S. 350 (1977); Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626 (1985)

OBSCENITY

A thing is obscene if, considered as a whole, its predominant appeal is to prurient interest.  Roth v. United States, 354 U.S. 476 (1957); Miller v. California, 413 U.S. 15 (1973); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973); New York v. Ferber, 458 U.S. 747 (1982)

Indecency and Broadcasting: There is greater leeway in regulating obscenity and indecency in broadcasting. FCC v. Pacifica Foundation, 438 U.S. 726 (1978)


Shelton v. Tucker, 364 U.S. 479 (1960)

The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. "By limiting the power of the States to interfere with freedom of speech and freedom of inquiry and freedom of association, the Fourteenth Amendment protects all persons, no matter what their calling. But, in view of the nature of the teacher's relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation. Such unwarranted inhibition upon the free spirit of teachers . . . has an unmistakable tendency to chill that free play of the spirit which all teachers ought especially to cultivate and practice; it makes for caution and timidity in their associations by potential teachers." Wieman v. Updegraff, 344 U.S. 183, 195 (concurring opinion). "Scholarship cannot flourish in an atmosphere of suspicion and distrust. Teachers and students must always remain free to inquire, to study and to evaluate . . . ." Sweezy v. New Hampshire, 354 U.S. 234, 250 .

[Shelton v. Tucker, 364 U.S. 479 (1960)]


U.S. v. Dellinger, 472 F.2d 340, (1972)

"The fact that conduct qua expression is “speech” does not mean that it can not at all be regulated or made a crime,FN18 but does result in severe limitations on that process. The first amendment by its negative drafting (“Congress shall make no law . . . abridging the freedom of speech. . . .”) protects conduct qua expression unless it can be removed from that protection pursuant to some doctrine judicially recognized as consistent with the first amendment. Thus, one who challenges the application of a statute to conduct which amounts to expression does not have the burden of bringing his expression within the first amendment. Rather the burden is on his opponent to show that such expression is within one of those narrow areas which by their relation to action partake of the essential qualities of action rather than expression and therefore are carved away from the first amendment."

FN18. Cox v. Louisiana, 379 U.S. 536, 554, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965).

As to any given statute then there is first the threshold question whether the statute relates to expression and is therefore governed by first amendment considerations. We look for that answer in reality and not solely in the words of the statute. Thus, if a statute in its impact has or can be expected substantially to involve expression, that must be sufficient, whether or not the words of the statute so provide. There is, secondly, the removal question, whether the expressive conduct is so related to action that the expression is therefore carved away from the protection of the first amendment.

[U.S. v. Dellinger, 472 F.2d 340, (1972)]


Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733 (1969)

Under our Constitution, free speech is not a right that is given only to be so circumscribed that it exists in principle but not in fact. Freedom of expression would not truly exist if the right could be exercised only in an area that a benevolent government has provided as a safe haven for crackpots. The Constitution says that Congress (and the States) may not abridge the right to free speech. This provision means what it says. We properly read it to permit reasonable regulation of speech-connected activities in carefully restricted circumstances. But we do not confine the permissible exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to supervised and ordained discussion in a school classroom.

[Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 89 S.Ct. 733 (1969)]


NAACP v. Button, 371 U.S. 415 (1963)

"Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups . . . ."

The NAACP is not a conventional political party; but the litigation it assists, while serving to vindicate the legal rights of members of the American Negro community, at the same time and perhaps more importantly, makes possible the distinctive contribution of a minority group to the ideas and beliefs of our society. For such a group, association for litigation may be the most effective form of political association.

But it does not follow that this Court now has only a clear-cut task to decide whether the activities of the petitioner deemed unlawful by the Supreme Court of Appeals are constitutionally privileged. If the line drawn by the decree between the permitted and prohibited activities of the NAACP, its members and lawyers is an ambiguous one, we will not presume that the statute curtails constitutionally protected activity as little as possible. For standards of permissible statutory vagueness are strict in the area of free expression. See Smith v. California, 361 U.S. 147, 151 ; Winters v. New York, 333 U.S. 507, 509 -510, 517-518; Herndon v. Lowry, 301 U.S. 242 ; Stromberg v. California, 283 U.S. 359 ; United States v. C. I. O., 335 U.S. 106, 142 (Rutledge, J., concurring). Furthermore, the instant decree may be invalid if it prohibits privileged exercises of First Amendment rights whether or not the record discloses that the petitioner has engaged in privileged conduct. For in appraising a statute's inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts besides that at bar. Thornhill v. Alabama, 310 U.S. 88, 97 -98; Winters v. New York, supra, at 518-520. Cf. Staub v. City of Baxley, 355 U.S. 313 . It makes no difference that the instant case was not a criminal prosecution and not based on a refusal to comply with a licensing requirement. The [371 U.S. 415, 433]   objectionable quality of vagueness and overbreadth does not depend upon absence of fair notice to a criminally accused or upon unchanneled delegation of legislative powers, but upon the danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application. 14 Cf. Marcus v. Search Warrant, 367 U.S. 717, 733 . These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions. Cf. Smith v. California, supra, at 151-154; Speiser v. Randall, 357 U.S. 513, 526 . Because First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity. Cantwell v. Connecticut, 310 U.S. 296, 311 .

[NAACP v. Button, 371 U.S. 415 (1963)]


Everson v. Board of Education, 330 U.S. 1 (1947)-describes religious liberty and the meaning of the establishment clause


Board of education of Westside Community Schools v. Mergens by and Through Mergens, 496 U.S. 226 (1990)

We have long regarded free and open debate over matters of controversy as necessary to the functioning of our constitutional system. See, e.g., Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95-96 (1972) ("To permit the continued building of our politics and culture, and to assure self-fulfillment for each individual, our people are guaranteed the right to express any thought, free from government censorship"). That the Constitution requires toleration of speech over its suppression is no less true in our Nation's schools. See Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 512 (1969); Keyishian v. Board of Regents of Univ. of N.Y., 385 U.S. 589, 603 (1967); Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260, 280-281 (1988) (BRENNAN, J., dissenting).

[Board of education of Westside Community Schools v. Mergens by and Through Mergens, 496 U.S. 226 (1990)]


Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-559 (1975)

"The presumption against prior restraints is heavier -- and the degree of protection broader -- than that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable."

[Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 558-559 (1975)]


Roe v. City of San Diego, 356 F.3d 1108 (9th Cir. 01/29/2004)

In order to state a prima facie claim against a government employer for violation of the Free Speech Clause of the First Amendment, "an employee must show (1) that he or she engaged in protected speech; (2) that the employer took 'adverse employment action'; and (3) that his or her speech was a 'substantial or motivating' factor for the adverse employment action." Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003); see also Ulrich v. City & County of San Francisco, 308 F.3d 968, 976 (9th Cir. 2002). A public employee's speech is protected only if the employee speaks "as a citizen upon matters of public concern" rather than "as an employee upon matters only of personal interest." Connick v. Myers, 461 U.S. 138, 147 (1983).

Once the employee has made a prima facie claim, the burden shifts to the public employer to demonstrate either that, under the balancing test established by Pickering v. Bd. of Educ., 391 U.S. 563, 568 (1968), the employer's legitimate administrative interests outweigh the employee's First Amendment rights or that, under the mixed motive analysis established by Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977), the employer would have reached the same decision even in the absence of the employee's protected conduct. See Bd. of County Comm'rs v. Umbehr, 518 U.S. 668, 675-76 (1996); Ulrich, 308 F.3d at 976-77.

[Roe v. City of San Diego, 356 F.3d 1108 (9th Cir. 01/29/2004)]


Donald Rumsfeld v. Forum for Academic and Institutional Rights, Inc, No. 04-1152, Dec. 6, 2006

"The expressive component of a law school's actions is not created by the conduct itself but by the speech that accompanies it. The fact that such explanatory speech is necessary is strong evidence that the conduct at issue here is not so inherently expressive that it warrants protection under O'Brien. If combining speech and conduct were enough to create expressive conduct, a regulated party could always transform conduct into "speech" simply by talking about it. For instance, if an individual announces that he intends to express his disapproval of the Internal Revenue Service by refusing to pay his income taxes, we would have to apply O'Brien to determine whether the Tax Code violates the First Amendment. Neither O'Brien nor its progeny supports such a result."

[Donald Rumsfeld v. Forum for Academic and Institutional Rights, Inc., No. 04-1152, Dec. 6, 2006]


Kleindienst v. Mandel, 408 U.S. 753 (1972)

In a variety of contexts this Court has referred to a First Amendment right to "receive information and ideas":

"It is now well established that the Constitution protects the right to receive information and ideas. `This freedom [of speech and press] . . . necessarily [408 U.S. 753, 763]   protects the right to receive . . . .' Martin v. City of Struthers, 319 U.S. 141, 143 (1943) . . . ." Stanley v. Georgia, 394 U.S. 557, 564 (1969).

This was one basis for the decision in Thomas v. Collins, 323 U.S. 516 (1945). The Court there held that a labor organizer's right to speak and the rights of workers "to hear what he had to say," id., at 534, were both abridged by a state law requiring organizers to register before soliciting union membership. In a very different situation, MR. JUSTICE WHITE, speaking for a unanimous Court upholding the FCC's "fairness doctrine" in Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386 -390 (1969), said:

"It is the purpose of the First Amendment to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail . . . . It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences which is crucial here. That right may not constitutionally be abridged either by Congress or by the FCC." Id., at 390.

And in Lamont v. Postmaster General, 381 U.S. 301 (1965), the Court held that a statute permitting the Government to hold "communist political propaganda" arriving in the mails from abroad unless the addressee affirmatively requested in writing that it be delivered to him placed an unjustifiable burden on the addressee's First Amendment right. This Court has recognized that this right is "nowhere more vital" than in our schools and universities. Shelton v. Tucker, 364 U.S. 479, 487 (1960); Sweezy v. New Hampshire, 354 U.S. 234, 250 (1957) (plurality opinion); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967). See Epperson v. Arkansas, 393 U.S. 97 (1968). [408 U.S. 753, 764]  

In the present case, the District Court majority held:

"The concern of the First Amendment is not with a non-resident alien's individual and personal interest in entering and being heard, but with the rights of the citizens of the country to have the alien enter and to hear him explain and seek to defend his views; that, as Garrison [v. Louisiana, 379 U.S. 64 (1964)] and Red Lion observe, is of the essence of self-government." 325 F. Supp., at 631.

The Government disputes this conclusion on two grounds. First, it argues that exclusion of Mandel involves no restriction on First Amendment rights at all since what is restricted is "only action - the action of the alien in coming into this country." Brief for Appellants 29. Principal reliance is placed on Zemel v. Rusk, 381 U.S. 1 (1965), where the Government's refusal to validate an American passport for travel to Cuba was upheld. The rights asserted there were those of the passport applicant himself. The Court held that his right to travel and his asserted ancillary right to inform himself about Cuba did not outweigh substantial "foreign policy considerations affecting all citizens" that, with the backdrop of the Cuban missile crisis, were characterized as the "weightiest considerations of national security." Id., at 13, 16. The rights asserted here, in some contrast, are those of American academics who have invited Mandel to participate with them in colloquia, debates, and discussion in the United States. In light of the Court's previous decisions concerning the "right to receive information," we cannot realistically say that the problem facing us disappears entirely or is nonexistent because the mode of regulation bears directly on physical movement. In Thomas the registration requirement on its [408 U.S. 753, 765]   face concerned only action. In Lamont, too, the face of the regulation dealt only with the Government's undisputed power to control physical entry of mail into the country. See United States v. Robel, 389 U.S. 258, 263 (1967).

The Government also suggests that the First Amendment is inapplicable because appellees have free access to Mandel's ideas through his books and speeches, and because "technological developments," such as tapes or telephone hook-ups, readily supplant his physical presence. This argument overlooks what may be particular qualities inherent in sustained, face-to-face debate, discussion and questioning. While alternative means of access to Mandel's ideas might be a relevant factor were we called upon to balance First Amendment rights against governmental regulatory interests - a balance we find unnecessary here in light of the discussion that follows in Part V - we are loath to hold on this record that existence of other alternatives extinguishes altogether any constitutional interest on the part of the appellees in this particular form of access.

[. . .]

What is the justification for this extraordinary governmental interference with the liberty of American citizens? And by what reasoning does the Court uphold Mandel's exclusion? It is established constitutional doctrine, after all, that government may restrict First Amendment rights only if the restriction is necessary to further a compelling governmental interest. E. g., Lamont v. Postmaster General, supra, at 308; NAACP v. Button, 371 U.S. 415, 438 (1963); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 546 (1963); Shelton v. Tucker, 364 U.S. 479 (1960).

[. . .]

Still adhering to standard First Amendment doctrine, I do not see how (a) (28) can possibly represent a compelling governmental interest that overrides appellees' interests in hearing Mandel. 4 Unlike (a) (27) or (a) (29), [408 U.S. 753, 780]   (a) (28) does not claim to exclude aliens who are likely to engage in subversive activity or who represent an active and present threat to the "welfare, safety, or security of the United States." Rather, (a) (28) excludes aliens solely because they have advocated communist doctrine. Our cases make clear, however, that government has no legitimate interest in stopping the flow of ideas. It has no power to restrict the mere advocacy of communist doctrine, divorced from incitement to imminent lawless action. Noto v. United States, 367 U.S. 290, 297 -298 (1961); Brandenburg v. Ohio, 395 U.S. 444, 447 -449 (1969). For those who are not sure that they have attained the final and absolute truth, all ideas, even those forcefully urged, are a contribution to the ongoing political dialogue. The First Amendment represents the view of the Framers 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" - "more speech." Whitney v. California, 274 U.S., at 375 , 377 (Brandies, J., concurring). If Americans want to hear about Marxist doctrine, even from advocates, government cannot intervene simply because it does not approve of the ideas. It certainly may not selectively pick and choose which ideas it will let into the country. But, as the court below put it, 212 (a) (28) is nothing more than "a means of restraining the entry of disfavored political doctrine," 325 F. Supp., at 626, and such an enactment cannot justify the abridgment of appellees' First Amendment rights. [408 U.S. 753, 781]  

In saying these things, I am merely repeating established First Amendment law. Indeed, this Court has already applied that law in a case concerning the entry of communist doctrine from foreign lands. In Lamont v. Postmaster General, 381 U.S. 301 (1965), this Court held that the right of an American addressee to receive communist political propaganda from abroad could not be fettered by requiring the addressee to request in writing its delivery from the Post Office. See id., at 308 (BRENNAN, J., concurring). The burden imposed on the right to receive information in our case is far greater than in Lamont, with far less justification. In Lamont, the challenged law merely regulated the flow of mail, and required the Postmaster General to forward detained mail immediately upon request by the addressee. By contrast, through 212 (a) (28), the Government claims absolute power to bar Mandel permanently from academic meetings in this country. Moreover, in Lamont, the Government argued that its interest was not to censor content but rather to protect Americans from receiving unwanted mail. Here, Mandel's exclusion is not incident to a legitimate regulatory objective, but is based directly on the subject matter of his beliefs.

[Kleindienst v. Mandel, 408 U.S. 753 (1972)]


United Mine Workers v. Illinois Bar Association, 389 U.S. 217 (1967)

“We start with the premise that the rights to assemble peaceably and to petition for a redress of grievances are among the most precious of the liberties safeguarded by the Bill of Rights. These rights, moreover, are intimately connected, both in origin and in purpose, with the other First Amendment rights of free speech and free press. "All these, though not identical, are inseparable." Thomas v. Collins, 323 U.S. 516, 530 (1945). See De Jonge v. Oregon, 299 U.S. 353, 364 (1937). The First Amendment would, however, be a hollow promise if it left government free to destroy or erode its guarantees by indirect restraints so long as no law is passed that prohibits free speech, press, petition, or assembly as such. We have therefore repeatedly held that laws which actually affect the exercise of these vital rights cannot be sustained merely because they were enacted for the purpose of dealing with some evil within the State's legislative competence, or even because the laws do in fact provide a helpful means of dealing with such an evil. Schneider v. State, 308 U.S. 147 (1939); Cantwell v. Connecticut, 310 U.S. 296 (1940). “

[United Mine Workers v. Illinois Bar Association, 389 U.S. 217 (1967)]


Smith v. Arkansas State Highway Employees, 441 U.S. 463 (1979)

" The public employee surely can associate and speak freely and petition openly, and he is protected by the First Amendment from retaliation for doing so. See Pickering v. Board of Education, 391 U.S. 563, 574 -575 (1968); Shelton v. Tucker, 364 U.S. 479 (1960). But the First Amendment does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it."

[Smith v. Arkansas State Highway Employees, 441 U.S. 463 (1979)]


Lawrence v. Texas, 539 U.S. 558 (2003)

Laws such as economic or tax legislation that are scrutinized under rational basis review normally pass constitutional muster, since "the Constitution presumes that even improvident decisions will eventually be rectified by the democratic processes." Cleburne v. Cleburne Living Center, supra, at 440; see also Fitzgerald v. Racing Assn. of Central Iowa, ante, p. ___; Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483 (1955). We have consistently held, however, that some objectives, such as "a bare . . . desire to harm a politically unpopular [FIRST AMENDMENT ASSOCIATIONAL] group," are not legitimate state interests. Department of Agriculture v. Moreno, supra, at 534. See also Cleburne v. Cleburne Living Center, supra, at 446-447; Romer v. Evans, supra, at 632. When a law exhibits such a desire to harm a politically unpopular group, we have applied a more searching form of rational basis review to strike down such laws under the Equal Protection Clause.

We have been most likely to apply rational basis review to hold a law unconstitutional under the Equal Protection Clause where, as here, the challenged legislation inhibits personal relationships. In Department of Agriculture v. Moreno, for example, we held that a law preventing those households containing an individual unrelated to any other member of the household from receiving food stamps violated equal protection because the purpose of the law was to "'discriminate against hippies.'" 413 U.S. at 534. The asserted governmental interest in preventing food stamp fraud was not deemed sufficient to satisfy rational basis review. Id. at 535-538. In Eisenstadt v. Baird, 405 U.S. 438, 447-455 (1972), we refused to sanction a law that discriminated between married and unmarried persons by prohibiting the distribution of contraceptives to single persons. Likewise, in Cleburne v. Cleburne Living Center, supra, we held that it was irrational for a State to require a home for the mentally disabled to obtain a special use permit when other residences -- like fraternity houses and apartment buildings -- did not have to obtain such a permit. And in Romer v. Evans, we disallowed a state statute that "impos[ed] a broad and undifferentiated disability on a single named group" -- specifically, homosexuals. 517 U.S. at 632. The dissent apparently agrees that if these cases have stare decisis effect, Texas' sodomy law would not pass scrutiny under the Equal Protection Clause, regardless of the type of rational basis review that we apply. See post at ___ (opinion of SCALIA, J.).

[Lawrence v. Texas, 539 U.S. 558 (2003)]


Dennis v. United States, 341 U.S. 494 (1951)

As aptly stated by Judge Learned Hand in Masses Publishing Co. v. Patten, 244 F. 535, 540:

One may not counsel or advise others to violate the law as it stands. Words are not only the keys of persuasion, but the triggers of action, and those which have no purport but to counsel the violation of law cannot by any latitude of interpretation be a part of that public opinion which is the final source of government in a democratic state. [341 U.S. 572]

[. . .]

We have recognized and resolved conflicts between speech and competing interests in six different types of cases. 7  

1. The cases involving a conflict between the interest in allowing free expression of ideas in public places and the interest in protection of the public peace and the primary uses of streets and parks, were too recently considered to be rehearsed here. Niemotko v. Maryland, 340 U.S. 268, 273 . It suffices to recall that the result in each case was found to turn on the character of the interest with which the speech clashed, the method used to impose the restriction, and the nature and circumstances of the utterance prohibited. While the decisions recognized the importance of free speech and carefully scrutinized the justification for its regulation, they rejected the notion that vindication of the deep public interest in freedom of expression requires subordination of all conflicting values.

2. A critique of the cases testing restrictions on picketing is made more difficult by the inadequate recognition by the Court from the outset that the loyalties and responses evoked and exacted by picket lines differentiate this form of expression from other modes of communication. See Thornhill v. Alabama, 310 U.S. 88 . But the [341 U.S. 494, 530]   crux of the decision in the Thornhill case was that a State could not constitutionally punish peaceful picketing when neither the aim of the picketing nor the manner in which it was carried out conflicted with a substantial interest. In subsequent decisions we sustained restrictions designed to prevent recurrence of violence, Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 , or reasonably to limit the area of industrial strife, Carpenters & Joiners Union v. Ritter's Cafe, 315 U.S. 722 ; cf. Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769 . We held that a State's policy against restraints of trade justified it in prohibiting picketing which violated that policy, Giboney v. Empire Storage Co., 336 U.S. 490 ; we sustained restrictions designed to encourage self-employed persons, International Brotherhood of Teamsters Union v. Hanke, 339 U.S. 470 ; and to prevent racial discrimination, Hughes v. Superior Court, 339 U.S. 460 . The Fourteenth Amendment bars a State from prohibiting picketing when there is no fair justification for the breadth of the restriction imposed. American Federation of Labor v. Swing, 312 U.S. 321 ; Cafeteria Employees Union v. Angelos, 320 U.S. 293 . But it does not prevent a State from denying the means of communication that picketing affords in a fair balance between the interests of trade unionism and other interests of the community.

3. In three cases we have considered the scope and application of the power of the Government to exclude, deport, or denaturalize aliens because of their advocacy or their beliefs. In United States ex rel. Turner v. Williams, 194 U.S. 279 , we held that the First Amendment did not disable Congress from directing the exclusion of an alien found in an administrative proceeding to be an anarchist. "[A]s long as human governments endure," we said, "they cannot be denied the power of self-preservation, as that question is presented here." [341 U.S. 494, 531]   194 U.S. at 294. In Schneiderman v. United States, 320 U.S. 118 , and Bridges v. Wixon, 326 U.S. 135 , we did not consider the extent of the power of Congress. In each case, by a closely divided Court, we interpreted a statute authorizing denaturalization or deportation to impose on the Government the strictest standards of proof.

4. History regards "freedom of the press" as indispensable for a free society and for its government. We have, therefore, invalidated discriminatory taxation against the press and prior restraints on publication of defamatory matter. Grosjean v. American Press Co., 297 U.S. 233 ; Near v. Minnesota, 283 U.S. 697 .

We have also given clear indication of the importance we attach to dissemination of ideas in reviewing the attempts of States to reconcile freedom of the press with protection of the integrity of the judicial process. In Pennekamp v. Florida, 328 U.S. 331 , the Court agreed that the Fourteenth Amendment barred a State from adjudging in contempt of court the publisher of critical and inaccurate comment about portions of a litigation that for all practical purposes were no longer pending. We likewise agreed, in a minor phase of our decision in Bridges v. California, 314 U.S. 252 , that even when statements in the press relate to matters still pending before a court, convictions for their publication cannot be sustained if their utterance is too trivial to be deemed a substantial threat to the impartial administration of justice.

The Court has, however, sharply divided on what constitutes a sufficient interference with the course of justice. In the first decision, Patterson v. Colorado, 205 U.S. 454 , the Court affirmed a judgment for contempt imposed by a State supreme court for publication of articles reflecting on the conduct of the court in cases still before it on [341 U.S. 494, 532]   motions for rehearing. In the Bridges case, however, a majority held that a State court could not protect itself from the implied threat of a powerful newspaper that failure of an elected judge to impose a severe sentence would be a "serious mistake." The same case also placed beyond a State's power to punish the publication of a telegram from the president of an important union who threatened a damaging strike in the event of an adverse decision. The majority in Craig v. Harney, 331 U.S. 367, 376 , held that the Fourteenth Amendment protected "strong," "intemperate," "unfair" criticism of the way an elected lay judge was conducting a pending civil case. None of the cases establishes that the public interest in a free press must in all instances prevail over the public interest in dispassionate adjudication. But the Bridges and Craig decisions, if they survive, tend to require a showing that interference be so imminent and so demonstrable that the power theoretically possessed by the State is largely paralyzed.

5. Our decision in American Communications Assn. v. Douds, 339 U.S. 382 , recognized that the exercise of political rights protected by the First Amendment was necessarily discouraged by the requirement of the Taft-Hartley Act that officers of unions employing the services of the National Labor Relations Board sign affidavits that they are not Communists. But we held that the statute was not for this reason presumptively invalid. The problem, we said, was "one of weighing the probable effects of the statute upon the free exercise of the right of speech and assembly against the congressional determination that political strikes are evils of conduct which cause substantial harm to interstate commerce and that Communists and others identified by 9 (h) pose continuing threats to that public interest when in positions of union leadership." [341 U.S. 494, 533]   339 U.S. at 400. On balance, we decided that the legislative judgment was a permissible one. 8  

6. Statutes prohibiting speech because of its tendency to lead to crime present a conflict of interests which bears directly on the problem now before us. The first case in which we considered this conflict was Fox v. Washington, supra. The statute there challenged had been interpreted to prohibit publication of matter "encouraging an actual breach of law." We held that the Fourteenth Amendment did not prohibit application of the statute to an article which we concluded incited a breach of laws against indecent exposure. We said that the statute "lays hold of encouragements that, apart from statute, if directed to a particular person's conduct, generally would make him who uttered them guilty of a misdemeanor if not an accomplice or a principal in the crime encouraged, and deals with the publication of them to a wider and less selected audience." 236 U.S. at 277-278. To be sure, the Fox case preceded the explicit absorption of the substance of the First Amendment in the Fourteenth. But subsequent decisions extended the Fox principle to free-speech situations. They are so important to the problem before us that we must consider them in detail.

(a) The first important application of the principle was made in six cases arising under the Espionage Act of 1917. That Act prohibits conspiracies and attempts [341 U.S. 494, 534]   to "obstruct the recruiting or enlistment service." In each of the first three cases, Mr. Justice Holmes wrote for a unanimous Court, affirming the convictions. The evidence in Schenck v. United States, 249 U.S. 47 , showed that the defendant had conspired to circulate among men called for the draft 15,000 copies of a circular which asserted a "right" to oppose the draft. The defendant in Frohwerk v. United States, 249 U.S. 204 , was shown to have conspired to publish in a newspaper twelve articles describing the sufferings of American troops and the futility of our war aims. The record was inadequate, and we said that it was therefore "impossible to say that it might not have been found that the circulation of the paper was in quarters where a little breath would be enough to kindle a flame and that the fact was known and relied upon by those who sent the paper out." 249 U.S. at 209. In Debs v. United States, 249 U.S. 211 , the indictment charged that the defendant had delivered a public speech expounding socialism and praising Socialists who had been convicted of abetting violation of the draft laws.

The ground of decision in each case was the same. The First Amendment "cannot have been, and obviously was not, intended to give immunity for every possible use of language. Robertson v. Baldwin, 165 U.S. 275, 281 ." Frohwerk v. United States, supra, at 206. "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." Schenck v. United States, supra, at 52. When "the words used had as their natural tendency and reasonably probable effect to obstruct the recruiting service," and "the defendant had the specific intent to do so in his mind," conviction in wartime is not prohibited by the Constitution. Debs v. United States, supra, at 216. [341 U.S. 494, 535]  

In the three succeeding cases Holmes and Brandeis, JJ., dissented from judgments of the Court affirming convictions. The indictment in Abrams v. United States, 250 U.S. 616 , was laid under an amendment to the Espionage Act which prohibited conspiracies to advocate curtailment of production of material necessary to prosecution of the war, with the intent thereby to hinder the United States in the prosecution of the war. It appeared that the defendants were anarchists who had printed circulars and distributed them in New York City. The leaflets repeated standard Marxist slogans, condemned American intervention in Russia, and called for a general strike in protest. In Schaefer v. United States, 251 U.S. 466 , the editors of a German-language newspaper in Philadelphia were charged with obstructing the recruiting service and with wilfully publishing false reports with the intent to promote the success of the enemies of the United States. The evidence showed publication of articles which accused American troops of weakness and mendacity and in one instance misquoted or mistranslated two words of a Senator's speech. The indictment in Pierce v. United States, 252 U.S. 239 , charged that the defendants had attempted to cause insubordination in the armed forces and had conveyed false reports with intent to interfere with military operations. Conviction was based on circulation of a pamphlet which belittled Allied war aims and criticized conscription in strong terms.

In each case both the majority and the dissenting opinions relied on Schenck v. United States. The Court divided on its view of the evidence. The majority held that the jury could infer the required intent and the probable effect of the articles from their content. Holmes and Brandeis, JJ., thought that only "expressions of opinion and exhortations," 250 U.S. at 631, were involved, that they were "puny anonymities," 250 U.S. at 629, "impotent to produce the evil against which the statute aimed," [341 U.S. 494, 536]   251 U.S. 493 , and that from them the specific intent required by the statute could not reasonably be inferred. The Court agreed that an incitement to disobey the draft statute could constitutionally be punished. It disagreed over the proof required to show such an incitement.

(b) In the eyes of a majority of the Court, Gitlow v. New York, 268 U.S. 652 , presented a very different problem. There the defendant had been convicted under a New York statute nearly identical with the Smith Act now before us. The evidence showed that the defendant was an official of the Left Wing Section of the Socialist Party, and that he was responsible for publication of a Left Wing Manifesto. This document repudiated "moderate Socialism," and urged the necessity of a militant "revolutionary Socialism," based on class struggle and revolutionary mass action. No evidence of the effect of the Manifesto was introduced; but the jury were instructed that they could not convict unless they found that the document advocated employing unlawful acts for the purpose of overthrowing organized government.

The conviction was affirmed. The question, the Court held, was entirely different from that involved in Schenck v. United States, where the statute prohibited acts without reference to language. Here, where "the legislative body has determined generally, in the constitutional exercise of its discretion, that utterances of a certain kind involve such danger of substantive evil that they may be punished, the question whether any specific utterance coming within the prohibited class is likely, in and of itself, to bring about the substantive evil, is not open to consideration." 268 U.S. at 670. It is sufficient that the defendant's conduct falls within the statute, and that the statute is a reasonable exercise of legislative judgment.

This principle was also applied in Whitney v. California, 274 U.S. 357 , to sustain a conviction under a State criminal syndicalism statute. That statute made it a [341 U.S. 494, 537]   felony to assist in organizing a group assembled to advocate the commission of crime, sabotage, or unlawful acts of violence as a means of effecting political or industrial change. The defendant was found to have assisted in organizing the Communist Labor Party of California, an organization found to have the specified character. It was held that the legislature was not unreasonable in believing organization of such a party "involves such danger to the public peace and the security of the State, that these acts should be penalized in the exercise of its police power." 274 U.S. at 371.

In neither of these cases did Mr. Justice Holmes and Mr. Justice Brandeis accept the reasoning of the Court. "`The question,'" they said, quoting from Schenck v. United States, "`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 [the State] has a right to prevent.'" 268 U.S. at 672-673. Since the Manifesto circulated by Gitlow "had no chance of starting a present conflagration," 268 U.S. at 673, they dissented from the affirmance of his conviction. In Whitney v. California, they concurred in the result reached by the Court, but only because the record contained some evidence that organization of the Communist Labor Party might further a conspiracy to commit immediate serious crimes, and the credibility of the evidence was not put in issue by the defendant. 9  

(c) Subsequent decisions have added little to the principles established in these two groups of cases. In the only case arising under the Espionage Act decided by this Court during the last war, the substantiality of the evidence was the crucial issue. The defendant in Hartzel [341 U.S. 494, 538]   v. United States, 322 U.S. 680 , was an educated man and a citizen, not actively affiliated with any political group. In 1942 he wrote three articles condemning our wartime allies and urging that the war be converted into a racial conflict. He mailed the tracts to 600 people, including high-ranking military officers. According to his testimony his intention was to "create sentiment against war amongst the white races." The majority of this Court held that a jury could not reasonably infer from these facts that the defendant had acted with a specific intent to cause insubordination or disloyalty in the armed forces.

Of greater importance is the fact that the issue of law which divided the Court in the Gitlow and Whitney cases has not again been clearly raised, although in four additional instances we have reviewed convictions under comparable statutes. Fiske v. Kansas, 274 U.S. 380 , involved a criminal syndicalism statute similar to that before us in Whitney v. California. We reversed a conviction based on evidence that the defendant exhibited an innocuous preamble to the constitution of the Industrial Workers of the World in soliciting members for that organization. In Herndon v. Lowry, 301 U.S. 242 , the defendant had solicited members for the Communist Party, but there was no proof that he had urged or even approved those of the Party's aims which were unlawful. We reversed a conviction obtained under a statute prohibiting an attempt to incite to insurrection by violence, on the ground that the Fourteenth Amendment prohibited conviction where on the evidence a jury could not reasonably infer that the defendant had violated the statute the State sought to apply. 10   [341 U.S. 494, 539]  

The other two decisions go no further than to hold that the statute as construed by the State courts exceeded the bounds of a legislative judgment founded in reason. The statute presented in De Jonge v. Oregon, 299 U.S. 353 , had been construed to apply to anyone who merely assisted in the conduct of a meeting held under the auspices of the Communist Party. In Taylor v. Mississippi, 319 U.S. 583 , the statute prohibited dissemination of printed matter "designed and calculated to encourage violence, sabotage, or disloyalty to the government of the United States, or the state of Mississippi." We reversed a conviction for what we concluded was mere criticism and prophesy, without indicating whether we thought the statute could in any circumstances validly be applied. What the defendants communicated, we said, "is not claimed or shown to have been done with an evil or sinister purpose, to have advocated or incited subversive action against the nation or state, or to have threatened any clear and present danger to our institutions or our Government." 319 U.S. at 589-590.

I must leave to others the ungrateful task of trying to reconcile all these decisions. In some instances we have too readily permitted juries to infer deception from error, or intention from argumentative or critical statements. Abrams v. United States, supra; Schaefer v. United States, supra; Pierce v. United States, supra; Gilbert v. Minnesota, 254 U.S. 325 . In other instances we weighted the interest in free speech so heavily that we permitted essential conflicting values to be destroyed. Bridges v. California, supra; Craig v. Harney, supra. Viewed as a whole, however, the decisions express an attitude toward the judicial function and a standard of values which for me are decisive of the case before us.

First. - Free-speech cases are not an exception to the principle that we are not legislators, that direct policymaking is not our province. How best to reconcile competing [341 U.S. 494, 540]   interests is the business of legislatures, and the balance they strike is a judgment not to be displaced by ours, but to be respected unless outside the pale of fair judgment.

On occasion we have strained to interpret legislation in order to limit its effect on interests protected by the First Amendment. Schneiderman v. United States, supra; Bridges v. Wixon, supra. In some instances we have denied to States the deference to which I think they are entitled. Bridges v. California, supra; Craig v. Harney, supra. Once in this recent course of decisions the Court refused to permit a jury to draw inferences which seemed to me to be obviously reasonable. Hartzel v. United States, supra.

But in no case has a majority of this Court held that a legislative judgment, even as to freedom of utterance, may be overturned merely because the Court would have made a different choice between the competing interests had the initial legislative judgment been for it to make. In the cases in which the opinions go farthest towards indicating a total rejection of respect for legislative determinations, the interests between which choice was actually made were such that decision might well have been expressed in the familiar terms of want of reason in the legislative judgment. In Thomas v. Collins, 323 U.S. 516 , for example, decision could not unreasonably have been placed on the ground that no substantial interest justified a State in requiring an out-of-State labor leader to register before speaking in advocacy of the cause of trade unionism. In Martin v. City of Struthers, 319 U.S. 141 , it was broadly held that a municipality was not justified in prohibiting knocking on doors and ringing doorbells for the purpose of delivering handbills. But since the good faith and reasonableness of the regulation were placed in doubt by the fact that the city did not think it necessary also to prohibit door-to-door commercial [341 U.S. 494, 541]   sales, decision could be sustained on narrower ground. And compare Breard v. Alexandria, post, p. 622, decided this day.

In other cases, moreover, we have given clear indication that even when free speech is involved we attach great significance to the determination of the legislature. Gitlow v. New York, supra; Whitney v. California, supra; American Communications Assn. v. Douds, supra; cf. Bridges v. California, 314 U.S. at 260. And see Hughes v. Superior Court, supra; International Brotherhood of Teamsters Union v. Hanke, supra.

In Gitlow v. New York, we put our respect for the legislative judgment in terms which, if they were accepted here, would make decision easy. For that case held that, when the legislature has determined that advocacy of forceful overthrow should be forbidden, a conviction may be sustained without a finding that in the particular case the advocacy had a close relation to a serious attempt at overthrow. We held that it was enough that the statute be a reasonable exercise of the legislative judgment, and that the defendant's conduct fall within the statute.

One of the judges below rested his affirmance on the Gitlow decision, and the defendants do not attempt to distinguish the case. They place their argument squarely on the ground that the case has been overruled by subsequent decisions. It has not been explicitly overruled. But it would be disingenuous to deny that the dissent in Gitlow has been treated with the respect usually accorded to a decision.

The result of the Gitlow decision was to send a leftwing Socialist to jail for publishing a Manifesto expressing Marxist exhortations. It requires excessive tolerance of the legislative judgment to suppose that the Gitlow publication in the circumstances could justify serious concern. [341 U.S. 494, 542]  

In contrast, there is ample justification for a legislative judgment that the conspiracy now before us is a substantial threat to national order and security. If the Smith Act is justified at all, it is justified precisely because it may serve to prohibit the type of conspiracy for which these defendants were convicted. The court below properly held that as a matter of separability the Smith Act may be limited to those situations to which it can constitutionally be applied. See 183 F.2d at 214-215. Our decision today certainly does not mean that the Smith Act can constitutionally be applied to facts like those in Gitlow v. New York. While reliance may properly be placed on the attitude of judicial self-restraint which the Gitlow decision reflects, it is not necessary to depend on the facts or the full extent of the theory of that case in order to find that the judgment of Congress, as applied to the facts of the case now before us, is not in conflict with the First Amendment.

Second. - A survey of the relevant decisions indicates that the results which we have reached are on the whole those that would ensue from careful weighing of conflicting interests. The complex issues presented by regulation of speech in public places, by picketing, and by legislation prohibiting advocacy of crime have been resolved by scrutiny of many factors besides the imminence and gravity of the evil threatened. The matter has been well summarized by a reflective student of the Court's work. "The truth is that the clear-and-present-danger test is an oversimplified judgment unless it takes account also of a number of other factors: the relative seriousness of the danger in comparison with the value of the occasion for speech or political activity; the availability of more moderate controls than those which the state has imposed; and perhaps the specific intent with which the speech or activity is launched. No matter how rapidly we utter the phrase `clear and present danger,' or how [341 U.S. 494, 543]   closely we hyphenate the words, they are not a substitute for the weighing of values. They tend to convey a delusion of certitude when what is most certain is the complexity of the strands in the web of freedoms which the judge must disentangle." Freund, On Understanding the Supreme Court, 27-28.

It is a familiar experience in the law that new situations do not fit neatly into legal conceptions that arose under different circumstances to satisfy different needs. So it was when the injunction was tortured into an instrument of oppression against labor in industrial conflicts. So it is with the attempt to use the direction of thought lying behind the criterion of "clear and present danger" wholly out of the context in which it originated, and to make of it an absolute dogma and definitive measuring rod for the power of Congress to deal with assaults against security through devices other than overt physical attempts.

Bearing in mind that Mr. Justice Holmes regarded questions under the First Amendment as questions of "proximity and degree," Schenck v. United States, 249 U.S. at 52, it would be a distortion, indeed a mockery, of his reasoning to compare the "puny anonymities," 250 U.S. at 629, to which he was addressing himself in the Abrams case in 1919 or the publication that was "futile and too remote from possible consequences," 268 U.S. at 673, in the Gitlow case in 1925 with the setting of events in this case in 1950.

"It does an ill-service to the author of the most quoted judicial phrases regarding freedom of speech, to make him the victim of a tendency which he fought all his life, whereby phrases are made to do service for critical analysis by being turned into dogma. `It is one of the misfortunes of the law that ideas become encysted in phrases and thereafter for a long time cease to provoke further analysis.' Holmes, J., dissenting, in Hyde v. United [341 U.S. 494, 544]   States, 225 U.S. 347, 384 , at 391." The phrase "clear and present danger," in its origin, "served to indicate the importance of freedom of speech to a free society but also to emphasize that its exercise must be compatible with the preservation of other freedoms essential to a democracy and guaranteed by our Constitution." Pennekamp v. Florida, 328 U.S. 331, 350 , 352-353 (concurring). It were far better that the phrase be abandoned than that it be sounded once more to hide from the believers in an absolute right of free speech the plain fact that the interest in speech, profoundly important as it is, is no more conclusive in judicial review than other attributes of democracy or than a determination of the people's representatives that a measure is necessary to assure the safety of government itself.

Third. - Not every type of speech occupies the same position on the scale of values. There is no substantial public interest in permitting certain kinds of utterances: "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." Chaplinsky v. New Hampshire, 315 U.S. 568, 572 . We have frequently indicated that the interest in protecting speech depends on the circumstances of the occasion. See cases collected in Niemotko v. Maryland, 340 U.S. at 275-283. It is pertinent to the decision before us to consider where on the scale of values we have in the past placed the type of speech now claiming constitutional immunity.

The defendants have been convicted of conspiring to organize a party of persons who advocate the overthrow of the Government by force and violence. The jury has found that the object of the conspiracy is advocacy as "a rule or principle of action," "by language reasonably and ordinarily calculated to incite persons to such action," [341 U.S. 494, 545]   and with the intent to cause the overthrow "as speedily as circumstances would permit."

On any scale of values which we have hitherto recognized, speech of this sort ranks low.

Throughout our decisions there has recurred a distinction between the statement of an idea which may prompt its hearers to take unlawful action, and advocacy that such action be taken. The distinction has its root in the conception of the common law, supported by principles of morality, that a person who procures another to do an act is responsible for that act as though he had done it himself. This principle was extended in Fox v. Washington, supra, to words directed to the public generally which would constitute an incitement were they directed to an individual. It was adapted in Schenck v. United States, supra, into a rule of evidence designed to restrict application of the Espionage Act. It was relied on by the Court in Gitlow v. New York, supra. The distinction has been repeated in many of the decisions in which we have upheld the claims of speech. We frequently have distinguished protected forms of expression from statements which "incite to violence and crime and threaten the overthrow of organized government by unlawful means." Stromberg v. California, 283 U.S. at 369. See also Near v. Minnesota, 283 U.S. at 716; De Jonge v. Oregon, 299 U.S. at 365; Cantwell v. Connecticut, 310 U.S. 296, 308 ; Taylor v. Mississippi, 319 U.S. at 589.

It is true that there is no divining rod by which we may locate "advocacy." Exposition of ideas readily merges into advocacy. The same Justice who gave currency to application of the incitement doctrine in this field dissented four times from what he thought was its misapplication. As he said in the Gitlow dissent, "Every idea is an incitement." 268 U.S. at 673. Even though advocacy of overthrow deserves little protection, we should hesitate to prohibit it if we thereby inhibit the [341 U.S. 494, 546]   interchange of rational ideas so essential to representative government and free society.

But there is underlying validity in the distinction between advocacy and the interchange of ideas, and we do not discard a useful tool because it may be misused. That such a distinction could be used unreasonably by those in power against hostile or unorthodox views does not negate the fact that it may be used reasonably against an organization wielding the power of the centrally controlled international Communist movement. The object of the conspiracy before us is so clear that the chance of error in saying that the defendants conspired to advocate rather than to express ideas is slight. MR. JUSTICE DOUGLAS quite properly points out that the conspiracy before us is not a conspiracy to overthrow the Government. But it would be equally wrong to treat it as a seminar in political theory.

[Dennis v. United States, 341 U.S. 494 (1951)]


Lee v. Weisman, 505 U.S. 577 (1992)

Our society would be less than true to its heritage if it lacked abiding concern for the values of its young people, and we acknowledge the profound belief of adherents to many faiths that there must be a place in the student's life for precepts of a morality higher even than the law we today enforce. We express no hostility to those aspirations, nor would our oath permit us to do so. A relentless and all-pervasive attempt to exclude religion from every aspect of public life could itself become inconsistent with the Constitution. See Abington School District, supra, at 306 (Goldberg, J., concurring). We recognize that, at graduation time and throughout the course of the educational process, there will [505 U.S. 599] be instances when religious values, religious practices, and religious persons will have some interaction with the public schools and their students. See Westside Community Bd. of Ed v. Mergens, 496 U.S. 226 (1990). But these matters, often questions of accommodation of religion, are not before us. The sole question presented is whether a religious exercise may be conducted at a graduation ceremony in circumstances where, as we have found, young graduates who object are induced to conform. No holding by this Court suggests that a school can persuade or compel a student to participate in a religious exercise. That is being done here, and it is forbidden by the Establishment Clause of the First Amendment.

[. . .]

Nearly half a century of review and refinement of Establishment Clause jurisprudence has distilled one clear understanding: Government may neither promote nor affiliate itself with any religious doctrine or organization, nor may it obtrude itself in the internal affairs of any religious institution. The application of these principles to the present case mandates the decision reached today by the Court.

I

This Court first reviewed a challenge to state law under the Establishment Clause in Everson v. Board of Education, 330 U.S. 1 (1947).{1} Relying on the history of the [505 U.S. 600] Clause and the Court's prior analysis, Justice Black outlined the considerations that have become the touchstone of Establishment Clause jurisprudence: neither a State nor the Federal Government can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither a State nor the Federal Government, openly or secretly, can participate in the affairs of any religious organization and vice versa.{2}

In the words of Jefferson, the clause [505 U.S. 601] against establishment of religion by law was intended to erect "a wall of separation between church and State."

Everson, 330 U.S. at 16, quoting Reynolds v. United States, 98 U.S. 145, 164 (1879). The dissenters agreed:

The Amendment's purpose . . . was to create a complete and permanent separation of the spheres of religious activity and civil authority by comprehensively forbidding every form of public aid or support for religion.

330 U.S. at 31-32 (Rutledge, J., dissenting, joined by Frankfurter, Jackson, and Burton, JJ.).

In Engel v. Vitale, 370 U.S. 421 (1962), the Court considered for the first time the constitutionality of prayer in a public school. Students said aloud a short prayer selected by the State Board of Regents:

Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.

Id. at 422. Justice Black, writing for the Court, again made clear that the First Amendment forbids the use of the power or prestige of the government to control, support, or influence the religious beliefs and practices of the American people. Although the prayer was "denominationally neutral," and "its observance on the part of the students [was] voluntary," id. at 430, the Court found that it violated this essential precept of the Establishment Clause.

A year later, the Court again invalidated government-sponsored prayer in public schools in Abington School District v. Schempp, 374 U.S. 203 (1963). In Schempp, the school day for Baltimore, Maryland, and Abington Township, Pennsylvania, students began with a reading from the Bible, or a recitation of the Lord's Prayer, or both. After a thorough review of the Court's prior Establishment Clause cases, the Court concluded: [505 U.S. 602]

[T]he Establishment Clause has been directly considered by this Court eight times in the past score of years and, with only one Justice dissenting on the point, it has consistently held that the clause withdrew all legislative power respecting religious belief or the expression thereof. 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.

Id. at 222. Because the schools' opening exercises were government-sponsored religious ceremonies, the Court found that the primary effect was the advancement of religion and held, therefore, that the activity violated the Establishment Clause. Id. at 223-224.

Five years later, the next time the Court considered whether religious activity in public schools violated the Establishment Clause, it reiterated the principle that government "may not aid, foster, or promote one religion or religious theory against another, or even against the militant opposite." Epperson v. Arkansas, 393 U.S. 97, 104 (1968).

"If [the purpose or primary effect] is the advancement or inhibition of religion, then the enactment exceeds the scope of legislative power as circumscribed by the Constitution."

Id. at 107 (quoting Schempp, 374 U.S. at 222). Finding that the Arkansas law aided religion by preventing the teaching of evolution, the Court invalidated it.
In 1971, Chief Justice Burger reviewed the Court's past decisions and found: "Three . . . tests may be gleaned from our cases." Lemon v. Kurtzman, 403 U.S. 602, 612. In order for a statute to survive an Establishment Clause challenge,

[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally the statute must not foster an excessive government entanglement with [505 U.S. 603] religion.

Id. at 612-613 (internal quotation marks and citations omitted).{3} After Lemon, the Court continued to rely on these basic principles in resolving Establishment Clause disputes.{4}

[. . .]

The mixing of government and religion can be a threat to free government, even if no one is forced to participate. When the government puts its imprimatur on a particular religion, it conveys a message of exclusion to all those who do not adhere to the favored beliefs.{9} A government cannot [505 U.S. 607] be premised on the belief that all persons are created equal when it asserts that God prefers some. Only "[a]nguish, hardship and bitter strife" result "when zealous religious groups struggl[e] with one another to obtain the Government's stamp of approval." Engel, 370 U.S. at 429; see also Lemon, 403 U.S. at 622-623; Aguilar v. Felton, 473 U.S. 402, 416 (1985) (Powell, J., concurring).{10} Such a struggle can "strain a political system to the breaking point." Walz v. Tax Commission, 397 U.S. 664, 694 (1970) (opinion of Harlan, J.).

When the government arrogates to itself a role in religious affairs, it abandons its obligation as guarantor of democracy. Democracy requires the nourishment of dialogue and dissent, while religious faith puts its trust in an ultimate divine authority above all human deliberation. When the government appropriates religious truth, it "transforms rational debate into theological decree." Nuechterlein, Note, The Free Exercise Boundaries of Permissible Accommodation Under the Establishment Clause, 99 Yale L.J. 1127, 1131 (1990). Those who disagree no longer are questioning the policy judgment of the elected but the rules of a higher authority who is beyond reproach. [505 U.S. 608]

Madison warned that government officials who would use religious authority to pursue secular ends

exceed the commission from which they derive their authority, and are Tyrants. The People who submit to it are governed by laws made neither by themselves nor by an authority derived from them, and are slaves.

Memorial and Remonstrance against Religious Assessments (1785) in The Complete Madison 300 (S. Padover, ed.1953). Democratic government will not last long when proclamation replaces persuasion as the medium of political exchange.

Likewise, we have recognized that "[r]eligion flourishes in greater purity, without than with the aid of Gov[ernment]."{11} Id. at 309. To "make room for as wide a variety of beliefs and creeds as the spiritual needs of man deem necessary," Zorach v. Clauson, 343 U.S. 306, 313 (1952), the government must not align itself with any one of them. When the government favors a particular religion or sect, the disadvantage to all others is obvious, but even the favored religion may fear being "taint[ed] . . . with a corrosive secularism." Grand Rapids School Dist. v. Ball, 473 U.S. 373, 385 (1985). The favored religion may be compromised as political figures reshape the religion's beliefs for their own purposes; it may be reformed as government largesse brings government regulation.{12} Keeping religion in the hands of private groups minimizes state intrusion on religious choice, and best enables each religion to "flourish according to the [505 U.S. 609] zeal of its adherents and the appeal of its dogma." Zorach, 343 U.S. at 313.

It is these understandings and fears that underlie our Establishment Clause jurisprudence. We have believed that religious freedom cannot exist in the absence of a free democratic government, and that such a government cannot endure when there is fusion between religion and the political regime. We have believed that religious freedom cannot thrive in the absence of a vibrant religious community, and that such a community cannot prosper when it is bound to the secular. And we have believed that these were the animating principles behind the adoption of the Establishment Clause. To that end, our cases have prohibited government endorsement of religion, its sponsorship, and active involvement in religion, whether or not citizens were coerced to conform.

[Lee v. Weisman, 505 U.S. 577 (1992)]


Board of Education v. Grumet, 512 U.S. 687 (1994)

This emphasis on equal treatment is, I think, an eminently sound approach. In my view, the Religion Clauses -- the Free Exercise Clause, the Establishment Clause, the Religious Test Clause, Art. VI, cl. 3, and the Equal Protection Clause as applied to religion -- all speak with one voice on this point: absent the most unusual circumstances, one's religion ought not affect one's legal rights or duties or benefits. As I have previously noted,

the Establishment Clause is infringed when the government makes adherence to religion relevant to a person's standing in the political community.

Wallace v. Jaffree, 472 U.S. 38, 69 (1985) (O'CONNOR, J., concurring in judgment).

[Board of Education v. Grumet, 512 U.S. 687 (1994)]


Carroll v. Princess Anne, 393 U.S. 175 (1968):

An order issued in the area of First Amendment rights must be couched in the narrowest terms that will accomplish the pin-pointed objective permitted by constitutional mandate and the essential needs of the public order. In this sensitive field, the State may not employ [393 U.S. 175, 184]   "means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved." Shelton v. Tucker, 364 U.S. 479, 488 (1960). In other words, the order must be tailored as precisely as possible to the exact needs of the case. The participation of both sides is necessary for this purpose. 11 Certainly, the failure to invite participation of the party seeking to exercise First Amendment rights reduces the possibility of a narrowly drawn order, and substantially imperils the protection which the Amendment seeks to assure.

[Carroll v. Princess Anne, 393 U.S. 175 (1968)]


City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157 (U.S.Tex.,1997)

To Madison, then, duties to God were superior to duties to civil authorities-the ultimate loyalty was owed to God above all. Madison did not say that duties to the Creator are precedent only to those laws specifically directed at religion, nor did he strive simply to prevent deliberate acts of persecution or discrimination. The idea that civil obligations are subordinate to religious duty is consonant with the notion that government must accommodate, where possible, those religious practices that conflict with civil law.

*562 Other early leaders expressed similar views regarding religious liberty. Thomas Jefferson, the drafter of Virginia's Bill for Establishing Religious Freedom, wrote in that document that civil government could interfere in religious exercise only “when principles break out into overt acts against peace and good order.” In 1808, he indicated that he considered “ ‘the government of the United States as interdicted by the Constitution from intermeddling with religious institutions, their doctrines, discipline, or exercises.’ ” 11 The Writings of Thomas Jefferson 428-429 (A. Lipscomb ed.1904) (quoted in Office of Legal Policy, U.S. Dept. of Justice, Report to the Attorney General, Religious Liberty under the Free Exercise Clause 7 (1986)). Moreover, Jefferson believed that “ ‘[e]very religious society has a right to determine for itself the time of these exercises, and the objects proper for them, according to their own particular tenets; and this right can never be safer than in their own hands, where the Constitution has deposited it.’ ” Ibid.

George Washington expressly stated that he believed that government should do its utmost to accommodate religious scruples, writing in a letter to a group of Quakers:

“[I]n my opinion the conscientious scruples of all men should be treated with great delicacy and tenderness; and it is my wish and desire, that the laws may always be as extensively accommodated to them, as a due regard to the protection and essential interests of the nation may justify and permit.” Letter from George Washington to the Religious Society Called Quakers (Oct. 1789), in George Washington on Religious Liberty and Mutual Understanding 11 (E. Humphrey ed.1932).

Oliver Ellsworth, a Framer of the First Amendment and later Chief Justice of the United States, expressed the similar view that government could interfere in religious matters only when necessary “to prohibit and punish gross immoralities*563 and impieties; because the open practice of these is of evil example and detriment.” Oliver Ellsworth, Landholder, No. 7 (Dec. 17, 1787), reprinted in 4 Founders' Constitution 640. Isaac Backus, a Baptist minister who was a delegate to the Massachusetts ratifying convention of 1788, declared that “ ‘every person has an unalienable right to act in all religious affairs according to the full persuasion of his own **2185 mind, where others are not injured thereby.’ ” Backus, A Declaration of Rights, of the Inhabitants of the State of Massachusetts-Bay, in Isaac Backus on Church, State, and Calvinism 487 (W. McLoughlin ed.1968).

These are but a few examples of various perspectives regarding the proper relationship between church and government that existed during the time the First Amendment was drafted and ratified. Obviously, since these thinkers approached the issue of religious freedom somewhat differently, see Adams & Emmerich 21-31, it is not possible to distill their thoughts into one tidy formula. Nevertheless, a few general principles may be discerned. Foremost, these early leaders accorded religious exercise a special constitutional status. The right to free exercise was a substantive guarantee of individual liberty, no less important than the right to free speech or the right to just compensation for the taking of property. See P. Kauper, Religion and the Constitution 17 (1964) (“[O]ur whole constitutional history ... supports the conclusion that religious liberty is an independent liberty, that its recognition may either require or permit preferential treatment on religious grounds in some instances ... ”). As Madison put it in the concluding argument of his “Memorial and Remonstrance”:

‘[T]he equal right of every citizen to the free exercise of his Religion according to the dictates of [his] conscience’ is held by the same tenure with all our other rights.... [I]t is equally the gift of nature; ... it cannot be less dear to us; ... it is enumerated with equal solemnity,*564 or rather studied emphasis.” 2 Writings of James Madison, at 190.

Second, all agreed that government interference in religious practice was not to be lightly countenanced. Adams & Emmerich 31. Finally, all shared the conviction that “ ‘true religion and good morals are the only solid foundation of public liberty and happiness.’ ” Curry, The First Freedoms, at 219 (quoting Continental Congress); see Adams & Emmerich 72 (“The Founders ... acknowledged that the republic rested largely on moral principles derived from religion”). To give meaning to these ideas-particularly in a society characterized by religious pluralism and pervasive regulation-there will be times when the Constitution requires government to accommodate the needs of those citizens whose religious practices conflict with generally applicable law.

[City of Boerne v. Flores, 521 U.S. 507, 117 S.Ct. 2157 (U.S.Tex.,1997)]


Adderley v. State of Fla., 385 U.S. 39, 87 S.Ct. 242 (U.S.Fla. 1966)

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BRENNAN, and Mr. Justice FORTAS concur, dissenting.
The First Amendment, applicable to the States by reason of the Fourteenth (Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683), provides that ‘Congress shall make no law * * * abridging * * * the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.’ These rights, along with religion, speech, and press, are preferred rights of the Constitution, made so by reason of that explicit guarantee and *49 what Edmond Cahn in Confronting Injustice (1966) referred to as ‘The Firstness of the First Amendment.'FN1 With all respect, therefore, the Court errs in treating the case as if it were an ordinary trespass case or an ordinary picketing case.

FN1.Where would we really find the principal danger to civil liberty in a republic? Not in the governors as governors, not in the governed as governed, but in the governed unequipped to function as governors. The chief enemies of republican freedom are mental sloth, conformity, bigotry, superstition, credulity, monopoly in the market of ideas, and utter, benighted ignorance. Relying as it does on the consent of the governed, representative government cannot succeed unless the community receives enough information to grasp public issues and make sensible decisions. As lights which may have been enough for the past do not meet the needs of the present, so present lights will not suffice for the more extensive and complex problems of the future. Heretofore public enlightenment may have been only a manifest desideratum; today it constitutes an imperative necessity. The First Amendment, says Justice Black, ‘reflects the faith that a good society is not static but advancing, and that the fullest possible interchange of ideas and beliefs is essential to attainment of this goal.’ (From Feldman v. United States, 322 U.S. 487, 501, 64 S.Ct. 1082, 1088, 88 L.Ed. 1408 (dissenting opinion).)' Cahn, supra, p. 102.

The jailhouse, like an executive mansion, a legislative chamber, a courthouse, or the statehouse itself (Edwards v. South Carolina, supra) is one of the seats of governments whether it be the Tower of London, the Bastille, or a small county jail. And when it houses political prisoners or those who many think are unjustly held, it is an obvious center for protest. The right to petition for the redress of grievances has an ancient historyFN2 and *50 is not limited to writing a letter**249 or sending a telegram to a congressman; it is not confined to appearing before the local city council, or writing letters to the President or Governor or Mayor. See NAACP v. Button, 371 U.S. 415, 429-431, 83 S.Ct. 328, 335-336, 9 L.Ed.2d 405. Conventional methods of petitioning may be, and often have been, shut off to large groups of our citizens. Legislators may turn deaf ears; formal complaints may be routed endlessly through a bureaucratic maze; courts may let the wheels of justice grind very slowly. Those who do not control television *51 and radio, those who cannot afford to advertise in newspapers or circulate elaborate pamphlets may have only a more limited type of access to public officials. Their methods should not be condemned as tactics of obstruction and harassment as long as the assembly and petition are peaceable, as these were.

FN2. The historical antecedents of the right to petition for the redress of grievances run deep, and strike to the heart of the democratic philosophy. C. 61 of the Magna Carta provided:

‘(T)hat if we or our justiciar, or our bailiffs, or any of our servants shall have done wrong in any way toward any one, or shall have transgressed any of the articles of peace or security and the wrong shall have been shown to four barons of the aforesaid twenty-five barons, let those four barons come to us or to our justiciar, if we are out of the kingdom, laying before us the transgression, and let them ask that we cause that transgression to be corrected without delay.’ Sources of Our Liberties 21 (Perry ed. 1959).

The representatives of the people vigorously exercised the right in order to gain the initiative in legislation and a voice in their government. See Pollard, The Evolution of Parliament 329-331 (1964). By 1669 the House of Commons had resolved that ‘it is an inherent right of every commoner of England to prepare and present Petitions to the house of commons in case of grievance,’ and ‘That no court whatsoever hath power to judge or censure any Petition presented * * *.’ 4 Parl.Hist.Eng. 432-433 (1669). The Bill of Rights of 1689 provided ‘That it is the right of the subjects to petition the king and all commitments and prosecutions for such petitioning are illegal.’ Adams & Stephens, Select Documents of English Constitutional History 464. The right to petition for a redress of grievances was early asserted in the Colonies. The Stamp Act Congress of 1765 declared ‘That it is the right of the British subjects in these colonies, to petition the king or either house of parliament.’ Sources of Our Liberties 271 (Perry ed. 1959). The Declaration and Resolves of the First Continental Congress, adopted October 14, 1774, declared that Americans ‘have a right peaceably to assemble, consider their grievances, and petition the king; and that all prosecutions, prohibitory proclamations, and commitments for the same, are illegal.’ Id., at 288. The Declaration of Independence assigned as one of the reasons for the break from England the fact that ‘Our repeated Petitions have been answered only by repeated injury.’ The constitutions of four of the original States specifically guaranteed the right. Mass.Const., Art. 19 (1780); Pa.Const., Art. IX, s 20 (1790); N.H.Const., Art. 32 (1784); N.C.Const., Art. 18 (1776).

There is no question that petitioners had as their purpose a protest against the arrest of Florida A. & M. students for trying to integrate public theatres. The sheriff's testimony indicates that he well understood the purpose of the rally. The petitioners who testified unequivocally stated that the group was protesting the arrests, and state and local policies of segregation, including segregation of the jail. This testimony was not contradicted or even questioned. The fact that no one gave a formal speech, that no elaborate handbills were distributed, and that the group was not laden with signs would seem to be immaterial. Such methods are not the sine qua non of petitioning for the redress of grievances. The group did sing ‘freedom’ songs. And history shows that a song can be a powerful tool of protest. See Cox v. State of Louisiana, 379 U.S. 536, 546-548, 85 S.Ct. 453, 459-460. There was no violence; no threat of violence; no attempted jail break; no storming of a prison; no plan or plot to do anything but protest. The evidence is uncontradicted that the petitioners' conduct did not upset the jailhouse routine; things went on as they normally would. None of the group entered the jail. Indeed, they moved back from the entrance as they were instructed. There was no shoving, no pushing, no disorder or threat of riot. It is said that some of the group blocked part of the driveway leading to the jail entrance. The chief jailer, to be sure, testified that vehicles would not have been able to use the driveway. Never did the students locate themselves so as to cause interference with persons or vehicles going to or coming from the jail. Indeed, it is undisputed that the sheriff and deputy sheriff, in *52 separate cars, were able to drive up the driveway to the parking places near the entrance and that no one obstructed their path. Further, it is undisputed that the entrance to the jail was not blocked. And whenever the students were requested to move they did so. If there was congestion, the solution was a further request to move to lawns or parking areas, not complete ejection and arrest. The claim is made that a tradesman waited inside the jail because some of the protestants were sitting around and leaning on his truck. The only evidence supporting such a conclusion is the testimony of a deputy sheriff that the tradesman ‘came to the door * * * and then did not leave.’ His remaining is just as consistent with a desire to satisfy his curiosity as it is with a restraint. Finally, the fact that some of the protestants may have felt **250 their cause so just that they were willing to be arrested for making their protest outside the jail seems wholly irrelevant. A petition is nonetheless a petition, though its futility may make martyrdom attractive.

We do violence to the First Amendment when we permit this ‘petition for redress of grievances' to be turned into a trespass action. It does not help to analogize this problem to the problem of picketing. Picketing is a form of protest usually directed against private interests. I do not see how rules governing picketing in general are relevant to this express constitutional right to assemble and to petition for redress of grievances. In the first place the jailhouse grounds were not marked with ‘NO TRESPASSING!’ signs, nor does respondent claim that the public was generally excluded from the grounds. Only the sheriff's fiat transformed lawful conduct into an unlawful trespass. To say that a private owner could have done the same if the rally had taken place on private property is to speak of a different case, as an assembly and a petition for redress of grievances run to government, not to private proprietors.

*53 The Court forgets that prior to this day our decisions have drastically limited the application of state statutes inhibiting the right to go peacefully on public property to exercise First Amendment rights. As Mr. Justice Roberts wrote in Hague v. C.I.O., 307 U.S. 496, 515-516, 59 S.Ct. 954, 964, 83 L.Ed. 1423:

‘* * * 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. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions 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.’

Such was the case of Edwards v. South Carolina, where aggrieved people ‘peaceably assembled at the site of the State Government’ to express their grievances to the citizens of the State as well as to the legislature. 372 U.S., at 235, 83 S.Ct., at 683. Edwards was in the tradition of Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, where the public streets were said to be ‘immemorially associated’ with ‘the right of assembly and the opportunities for the communication of thought and the discussion of public questions.’ Id., at 574, 61 S.Ct., at 765. When we allow Florida to construe her ‘malicious trespass' statute to bar a person from going on property knowing it is not his own and to apply that prohibition to public property, we discard Cox and Edwards. Would the case be any different if, as is common, the demonstration took place outside a building which housed both the jail and the legislative body? I think not.

*54 There may be some public places which are so clearly committed to other purposes that their use for the airing of grievances is anomalous. There may be some instances in which assemblies and petitions for redress of grievances are not consistent with other necessary purposes of public property. A noisy **251 meeting may be out of keeping with the serenity of the statehouse or the quiet of the courthouse. No one, for example, would suggest that the Senate gallery is the proper place for a vociferous protest rally. And in other cases it may be necessary to adjust the right to petition for redress of grievances to the other interests inhering in the uses to which the public property is normally put. See Cox v. State of New Hampshire, supra; Poulos v. State of New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 97 L.Ed. 1105. But this is quite different from saying that all public places are off limits to people with grievances. See Hague v. C.I.O., supra; Cox v. State of New Hampshire, supra; Jamison v. State of Texas, 318 U.S. 413, 415-416, 63 S.Ct. 669, 671, 87 L.Ed. 869; Edwards v. South Carolina, supra. And it is farther yet from saying that the ‘custodian’ of the public property in his discretion can decide when public places shall be used for the communication of ideas, especially the constitutional right to assemble and petition for redress of grievances. See Hague v. C.I.O. supra; Schneider v. State of New Jersey, 308 U.S. 147, 163-164, 60 S.Ct. 146, 151, 84 L.Ed. 155; Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900; Largent v. State of Texas, 318 U.S. 418, 63 S.Ct. 667, 87 L.Ed. 873; Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267; Shuttlesworth v. City of Birmingham, 382 U.S. 87, 86 S.Ct. 211, 15 L.Ed.2d 176. For to place such discretion in any public official, be he the ‘custodian’ of the public property or the local police commissioner (cf. Kunz v. People of State of New York, 340 U.S. 290, 71 S.Ct. 312, 95 L.Ed. 280), is to place those who assert their First Amendment rights at his mercy. It gives him the awesome power to decide whose ideas may be expressed and who shall be denied a place to air their claims and petition their government. Such power is out of step with all our decisions prior to *55 today where we have insisted that before a First Amendment right may be curtailed under the guise of a criminal law, any evil that may be collateral to the exercise of the right, must be isolated and defined in a ‘narrowly drawn’ statute (Cantwell v. State of Connecticut, supra, at 307, 60 S.Ct. at 904) lest the power to control excesses of conduct be used to suppress the constitutional right itself. See Stromberg v. People of State of California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117; Herndon v. Lowry, 301 U.S. 242, 258-259, 57 S.Ct. 732, 739, 81 L.Ed. 1066; Edwards v. South Carolina, supra, 372 U.S. at 238, 83 S.Ct. at 684; N.A.A.C.P. v. Button, supra, 371 U.S. at 433, 83 S.Ct. at 338.

That tragic consequence happens today when a trespass law is used to bludgeon those who peacefully exercise a First Amendment right to protest to government against one of the most grievous of all modern oppressions which some of our States are inflicting on our citizens.

What we do today disregards the admonition in De Jonge v. State of Oregon, 299 U.S. 353, 364-365, 57 S.Ct. 255, 260, 81 L.Ed. 278:

‘These (First Amendment) rights may be abused by using speech or press or assembly in order to incite to violence and crime. The people through their Legislatures may protect themselves against that abuse. But the legislative intervention can find constitutional justification only by dealing with the abuse. The rights themselves must not be curtailed. The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion,**252 to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.’

*56 Today a trespass law is used to penalize people for exercising a constitutional right. Tomorrow a disorderly conduct statute, a breach-of-the-peace statute, a vagrancy statute will be put to the same end. FN3 It is said that the sheriff did not make the arrests because of the views which petitioners espoused. That excuse is usually given, as we know from the many cases involving arrests of minority groups for breaches of the peace, unlawful assemblies, and parading without a permit. The charge against William Penn, who preached a nonconformist doctrine in a street in London, was that he caused ‘a great concourse and tumult of people’ and contempt of the King and ‘to the great disturbance of his peace.’ 6 How.St.Tr. 951, 955. That was in 1670. In modern times, also, such arrests are usually sought to be justified by some legitimate function of government.FN4 Yet by allowing these orderly and civilized protests against injustice to be suppressed, we only increase the forces of frustration which the conditions of second-class citizenship are generating amongst us.

FN3. In 1932 over 28,000 veterans demanding a bonus marched on Washington, D.C., paraded the streets, and camped mostly in parks and other public lands in the District, Virginia, and Maryland only to be routed by the Army. See Waters, B.E.F. (1933).

FN4. See, e.g., De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255; Feiner v. People of State of New York, 340 U.S. 315, 71 S.Ct. 303, 95 L.Ed. 267; Niemotko v. State of Maryland, 340 U.S. 268, 71 S.Ct. 325, 95 L.Ed. 267; Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680; Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453; Shuttlesworth v. City of Birmingham, 382 U.S. 87. The same is true of other measures which inhibit First Amendment rights. See, e.g., N.A.A.C. P. v. State of Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231; N.A.A.C.P. v. Button, 371 U.S. 415, 83 S.Ct. 328. If the invalidity of regulations and official conduct curtailing First Amendment rights turned on an unequivocal showing that the measure was intended to inhibit the rights, protection would be sorely lacking. It is not the intent or purpose of the measure but its effect on First Amendment rights which is crucial.

U.S.Fla. 1966.
Adderley v. State of Fla.,
385 U.S. 39, 87 S.Ct. 242, 17 L.Ed.2d 149

[Adderley v. State of Fla., 385 U.S. 39, 87 S.Ct. 242 (U.S.Fla. 1966)]


Dept. of Justice Criminal Tax Manual, 2001, Section 40.02[1][a]

From 40.02[1][a]  Harassment Schemes of the IRS Criminal Tax Manual

Tax protesters also attempt to file frivolous lawsuits or criminal complaints against prosecutors and agents in legitimate state and federal courts. Cases based on these filings are rarely authorized for prosecution because such lawsuits and criminal complaints are difficult to distinguish from the host of frivolous cases filed in courts all the time -- thus, making it difficult to overcome a defense based on the right to petition for a redress of grievances.

[Dept. of Justice Criminal Tax Manual, 2001, Section 40.02[1][a]]