Freedom of Speech and Press: Exceptions to the First Amendment

Prepared for Members and Committees of Congress

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

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

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

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

1 Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979).
2 Supreme Court cases supporting all the prohibitions and restrictions on speech noted in this and the next paragraph
are cited in footnotes accompanying the subsequent discussion of these prohibitions and restrictions.
3 For additional information, see CRS Report 95-804, Obscenity and Indecency: Constitutional Principles and Federal
Statutes, by Henry Cohen.
4 Roth v. United States, 354 U.S. 476, 483 (1957). However, Justice Douglas, dissenting, wrote:[T]here is no special
historical evidence that literature dealing with sex was intended to be treated in a special manner by those who drafted
the First Amendment.Id. at 514.
5 Id. at 485.

What is obscenity? It is not synonymous with pornography, as most pornography is not legally
obscene; i.e., most pornography is protected by the First Amendment. To be obscene,
pornography must, at a minimum, “depict or describe patently offensive ‘hard core’ sexual 6
conduct.” The Supreme Court has created a three-part test, known as the Miller test, to determine
whether a work is obscene. The Miller test asks:
(a) whether the “average person applying contemporary community standards” would find
that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts
or describes, in a patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, 7
artistic, political, or scientific value.
The Supreme Court has clarified that only “the first and second prongs of the Miller test—appeal
to prurient interest and patent offensiveness—are issues of fact for the jury to determine applying 8
contemporary community standards.” As for the third prong, “[t]he proper inquiry is not whether
an ordinary member of any given community would find serious literary, artistic, political, or
scientific value in allegedly obscene material, but whether a reasonable person would find such 9
value in the material, taken as a whole.”
The Supreme Court has allowed one exception to the rule that obscenity is not protected by the
First Amendment: one has a constitutional right to possess obscene material “in the privacy of his 10
own home.” However, there is no constitutional right to provide obscene material for private 1112
use or even to acquire it for private use.

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

6 Miller v. California, 413 U.S. 15, 27 (1973).
7 Id. at 24 (citation omitted).
8 Pope v. Illinois, 481 U.S. 497, 500 (1987). In Hamling v. United States, 418 U.S. 87, 105 (1974), the Court noted that
a “communitywas not any “precise geographic area,” and suggested that it might be less than an entire state. In
Ashcroft v. American Civil Liberties Union, 535 U.S. 564, 577 (2002), the Supreme Court recognized that “Web
publishers currently lack the ability to limit access to their sites on a geographic basis,” and that therefore the use of
community standards to define “obscenity” “would effectively force all speakers on the Web to abide by the ‘most
puritan’ communitys standards. Nevertheless, the Court found that use of community standardsdoes not by itself
render” a statute unconstitutional. Id. at 585 (emphasis in original).
9 Pope v. Illinois, 481 U.S. at 500-501.
10 Stanley v. Georgia, 394 U.S. 557, 568 (1969).
11 United States v. Reidel, 402 U.S. 351 (1971).
12 United States v. 12 200-Ft. Reels of Film, 413 U.S. 123 (1973).
13 For additional information, see CRS Report 95-406, Child Pornography: Constitutional Principles and Federal
Statutes, by Henry Cohen.
14 New York v. Ferber, 458 U.S. 747, 764 (1982). The definition ofsexually explicit conduct” in the federal child
pornography statute includeslascivious exhibition of the genitals or pubic area of any person [under 18], andis not
limited to nude exhibitions or exhibitions in which the outlines of those areas [are] discernible through clothing. 18
U.S.C. §§ 2256(2)(A)(v), 2252 note.

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

Justice Holmes, in one of his most famous opinions, wrote:
The most stringent protection of free speech would not protect a man in falsely shouting fire
in a theater and causing a panic.... The question in every case is whether the words used ... 19
create a clear and present danger....
In its current formulation of this principle, the Supreme Court held that “advocacy of the use of
force or of law violation” is protected unless “such advocacy is directed to inciting or producing 20
imminent lawless action and is likely to incite or produce such action.” Similarly, the Court held
that a statute prohibiting threats against the life of the President could be applied only against 21
speech that constitutes a “true threat,” and not against mere “political hyperbole.”
In cases of content-based restrictions of speech other than advocacy or threats, the Supreme Court
generally applies “strict scrutiny,” which means that it will uphold a content-based restriction

15 Osborne v. Ohio, 495 U.S. 103 (1990).
16 Ashcroft v. Free Speech Coalition, 435 U.S. 234 (2002).
17 Id. at 249; see also, id. at 242.
18 Id. at 253.
19 Schenck v. United States, 249 U.S. 47, 52 (1919).
20 Brandenburg v. Ohio, 395 U.S. 444, 447 (1969). See also, Stewart v. McCoy, 537 U.S. 993 (2002) (Justice Stevens
statement accompanying denial of certiorari).
21 Watts v. United States, 394 U.S. 705, 708 (1969). See also, NAACP v. Claiborne Hardware Co., 458 U.S. 886
(1982); Planned Parenthood v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002) (en banc), cert.
denied, 539 U.S. 958 (2003) (the Nuremberg Files case); Virginia v. Black, 538 U.S. 343, 360 (2003) (Intimidation
in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person
or group of persons with the intent of placing the victim in fear of bodily harm or death.”).

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

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

22 Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115, 126 (1989). The
Court does not apply strict scrutiny to another type of content-based restrictions—restrictions on commercial speech,
which is discussed below.
23 The Florida Star v. B.J.F., 491 U.S. 524 (1989). The Court left open the question “whether, in cases where
information has been acquired unlawfully by a newspaper or by a source, the government may ever punish not only the
unlawful acquisition, but the ensuing publication as well.” Id. at 535 n.8 (emphasis in original). In Bartnicki v. Vopper,
532 U.S. 514 (2001), the Court held that a content-neutral statute prohibiting the publication of illegally intercepted
communications (in this case a cell phone conversation) violates free speech where the person who publishes the
material did not participate in the interception, and the communication concerns a public issue.
24 However, the Court did “not rule out the possibility that, in a proper case, imposing civil sanctions for publication of
the name of a rape victim might be ... overwhelmingly necessary to advance” a compelling state interest. Id. at 537.
25 Near v. Minnesota, 283 U.S. 697, 716 (1931).
26 Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942). Campushate speech” prohibitions at public colleges (the
First Amendment does not apply to private colleges) are apparently unconstitutional, even as applied to fighting words,
if they cover only certain types of hate speech, such as speech based on racial hatred. This conclusion is based on the
cross-burning case, R.A.V. v. City of St. Paul, infra note 138.

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

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

27 For additional information on this subject, see CRS Report 95-804, Obscenity and Indecency: Constitutional
Principles and Federal Statutes, by Henry Cohen.
28 Freedman v. Maryland, 380 U.S. 51, 57, 58 (1965) (a noncriminal process which requires the prior submission of a
film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards); New York Times
Co. v. United States, 403 U.S. 713, 714 (1971) (injunction sought by United States against publication of the Pentagon
Papers denied).
29 Nebraska Press Association v. Stuart, 427 U.S. 539, 559 (1976) (striking down a court order restraining the
publication or broadcast of accounts of confessions or admissions made by the defendant at a criminal trial).
Injunctions that are designed to restrict merely the time, place, or manner of a particular expression are subject to a less
stringent application of First Amendment principles; see, “Time, Place, and Manner Restrictions, below.
30 Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations Commission, 413 U.S. 376, 390 (1973); see
also, Vance v. Universal Amusement Co., 445 U.S. 308, 315-316 (1980) (the burden of supporting an injunction
against a future exhibition [of allegedly obscene motion pictures] is even heavier than the burden of justifying the
imposition of a criminal sanction for a past communication”).
31 See, Mark A. Lemley and Eugene Volohk, Freedom of Speech and Injunctions in Intellectual Property Cases, 48

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

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

Duke Law Journal 147, 169-171 (1998).
32 Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 571 n.13.
33 Freedman, supra note 28, 380 U.S. at 58, 59.
34 Thomas v. Chicago Park District, 534 U.S. 316, 322-323 (2002).
35 Central Hudson, supra note 32, 447 U.S. at 571 n.13.
36 Bosley v., 310 F. Supp. 2d 914, 930 (N.D. Ohio 2004).
37 New York Magazine v. Metropolitan Transportation Authority, 136 F.3d 123, 131 (2d Cir. 1998), cert. denied, 525
U.S. 824 (1998); citing as examples, Desert Outdoor Adver. v. City of Moreno Valley, 103 F.3d 814, 818 (9th Cir. th
1996); In re Search of Kitty’s East, 905 F.2d 1367, 1371-72 & n.4 (10 Cir. 1990).
38 DVD Copy Control Association, Inc. v. Bunner, 75 P.3d 1, 17 (Cal. 2003) (aprior restraint is a content-based
restriction on speech prior to its occurrence (italics in original)). For the test regarding content-neutral injunctions, see
the section on “Time, Place, and Manner Restrictions, below.
39 Bosley, supra note 36, at 930; Lemley and Volokh, supra note 31 (arguing that intellectual property should have the
same First Amendment protection from preliminary injunctions as other speech).
40 United States v. Edge Broadcasting Co., 509 U.S. 418 (1993).
41 Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 482 (1989) (emphasis in original). In
Nike, Inc. v. Kasky, 45 P.3d 243 (2002), cert. dismissed, 539 U.S. 654 (2003), Nike was sued for unfair and deceptive
practices for allegedly false statements it made concerning the working conditions under which its products were
manufactured. The California Supreme Court ruled that the suit could proceed, and the Supreme Court granted
certioriari, but then dismissed it as improvidently granted, with a concurring and two dissenting opinions. The issue left
undecided was whether Nike’s statements, though they concerned a matter of public debate and appeared in press
releases and letters rather than in advertisements for its products, should be deemed “‘commercial speech’ because they
might affect consumers opinions about the business as a good corporate citizen and thereby affect their purchasing
decisions.” Id. at 657 (Stevens, J., concurring). Nike subsequently settled the case.

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

42 Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-502 (1952).
43 Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, supra note 32, 447 U.S. at 566
44 See, Edge Broadcasting, supra note 40, 509 U.S. at 427.
45 Id. at 430.
46 Board of Trustees of the State University of New York v. Fox, 492 U.S. 469, 480 (1989).
47 We do not include among the ten the three cases (discussed below, at the end of the section on “Compelled Speech”)
involving assessments for government-compelled advertisements, because the Court did not apply the Central Hudson
test in these cases.
48 507 U.S. 410 (1993).

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

49 Id. at 424 (emphasis in original).
50 Id. at 428.
51 507 U.S. 761 (1993).
52 436 U.S. 447 (1978).
53 Edenfield, supra note 51, 507 U.S. at 775.
54 Id. at 770-771.
55 Edge Broadcasting, supra note 40, 509 U.S. at 421.

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

56 512 U.S. 136 (1994). Curiously, the Court in Ibanez writes that “only false, deceptive, or misleading commercial
speech may be banned (id. at 142), despite its decisions upholding bans of truthful commercial speech in Edge
Broadcasting, supra note 40, and other cases. Perhaps the Court meant that only false, deceptive, or misleading
commercial speech may be banned without consideration of the second, third, and fourth prongs of the Central Hudson
57 Id. at 144.
58 514 U.S. 476 (1995).
59 Id. at 488.
60 515 U.S. 618 (1995).
61 Id. at 624.
62 Id. at 627.
63 Id. at 626.
64 The Court referred to the Central Hudson test as having three parts, and referred to its second, third, and fourth
prongs, as, respectively, its first, second, and third. The Court did not, however, alter the substance of the test. In 44
Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 529 (1996) (OConnor, J., concurring), the justices returned to the
traditional numbering.
65 Id. at 633. In Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), the Court had previously held that a state
may not place a “ban on all direct-mail solicitations, whatever the time frame and whoever the recipient.Florida Bar,
515 U.S. at 629 (emphasis in original). The Court has also held that a nonprofit organization’s solicitation by letter of
prospective clients is a protected form of political expression (In re Primus, 436 U.S. 412 (1978)), and that a state may
prohibit lawyers from soliciting prospective clients in person (Ohralik v. Ohio State Bar Association, 436 U.S. 447
(1978)). The Aviation Disaster Family Assistance Act of 1996, 49 U.S.C. § 1136(g)(2), prohibits unsolicited th
communications concerning a potential action for personal injury or wrongful death before the 30 day following an
accident involving an air carrier providing interstate or foreign air transportation.

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

44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 502 (1996).
67 Id.
68 Id. at 501. The nine justices were unanimous in striking down the law, which prohibited advertising the price of
alcoholic beverages, but only parts of Justice Stevens opinion for the Court were joined by a majority of justices. The
quotations above, for example, are from Part IV of the Court’s opinion, which was joined by only Justices Kennedy and
Ginsburg besides Justice Stevens.
69 Id. at 503.
70 Id. at 508, citing Central Hudson, supra note 32, 447 U.S. at 566, n.9.
71 527 U.S. 173 (1999).
72 Edge Broadcasting, supra notes 40, 55.
73 527 U.S. at 190, 195.
74 533 U.S. 525 (2001).

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

75 Id. at 551.
76 Id. at 562.
77 Id. at 563.
78 Id. at 566.
79 Id.
80 Id. at 567.
81 Id. at 569.
82 Id.
83 535 U.S. 357 (2002).
84 Id. at 360.

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

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

85 Id. at 360-361.
86 Id. at 369, 371.
87 Id. at 371, 372.
88 Id. at 373.
89 Id. at 374.
90 Id. at 371.
91 New York Times v. Sullivan, 376 U.S. 254, 279-280 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967).

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

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

92 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974).
93 Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989). A federal district court noted that, in
cases that involve a restriction of minors’ access to sexually explicit material, “the Supreme Courts jurisprudence does
not require empirical evidence. Only some minimal amount of evidence is required.... ” Playboy Entertainment Group,
Inc. v. U.S., 30 F. Supp. 2d 702, 716 (D. Del. 1998); aff’d, 529 U.S. 803 (2000). By contrast, in cases not involving
access of minors to sexually explicit material, the Supreme Court generally requires that the government, to justify a
restriction even on speech with less than full First Amendment protection, “must demonstrate that the recited harms are
real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.
Turner Broadcasting System v. FCC, 512 U.S. 622, 664 (1994) (incidental restriction on speech). See also, Edenfield v.
Fane, 507 U.S. 761, 770-771 (1993) (restriction on commercial speech); Nixon v. Shrink Missouri Government PAC,
528 U.S. 377, 392 (2000) (restriction on campaign contributions).
94 Id. In the case of content-based regulations, narrow tailoring requires that the regulation bethe least restrictive
means to further the articulated interest.
95 Ginsberg v. New York, 390 U.S. 629, 631 (1968).
96 Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978); Action for Children’s Television
v. Federal Communications Commission, 58 F.3d 654 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996).
The Supreme Court has stated that, to be indecent, a broadcast need not have prurient appeal; “the normal definition of
‘indecent refers merely to nonconformance with accepted standards of morality,Pacifica, 438 U.S. at 740. The FCC
holds that the concept “is intimately connected with the exposure of children to language that describes, in terms
patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory
activities and organs, at times of the day when there is a reasonable risk that children may be in the audience. Id. at
732. The FCC applied this definition in a case in which the singer Bono said at the Golden Globe Awards that his
award was “f[***]ing brilliant.” A federal court of appeals, however, overruled the FCC, holdingthat the FCC’s new
policy regarding ‘fleeting expletives’ is arbitrary and capricious under the Administrative Procedure Act.” Fox
Television Stations, Inc. v. Federal Communications Commission, 489 F.3d 444 (2d Cir. 2007), cert. granted, No. 07-
582 (U.S. March 17, 2008). Similarly, the FCC fined broadcast stations for broadcasting Janet Jackson’s exposure of
her breast for nine-sixteenth of a second during a Super Bowl halftime show, but a federal court of appeals overturned
the fine on non-constitutional grounds. CBS Corp. v. FCC, 535 F.3d 167 (3d Cir. 2008). For additional information,
including an analysis of whether prohibiting the broadcast ofindecent” words regardless of context would violate the
First Amendment, see CRS Report RL32222, Regulation of Broadcast Indecency: Background and Legal Analysis, by
Henry Cohen and Kathleen Ann Ruane.

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

97 For additional information, see CRS Report 95-804, Obscenity and Indecency: Constitutional Principles and Federal
Statutes, by Henry Cohen. Restrictions on cable television intended to protect children are discussed in that report and
also in this report underRadio and Television.”
98 Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115 (1989); Dial
Information Services v. Thornburgh, 938 F.2d 1535 (2d Cir. 1991), cert. denied, 502 U.S. 1072 (1992).
99 521 U.S. 844 (1997).
100 Id. at 874-875.
101 American Civil Liberties Association v. Reno, 31 F. Supp. 2d 473 (E.D. Pa. 1999), aff’d, 217 F.3d 162 (3d Cir.
2000), vacated and remanded sub nom. Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002), affd on

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

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

remand, 322 F.3d 240 (3d Cir. 2003), aff’d and remanded, 542 U.S. 656 (2004). See also, footnote 8 of this report.
102 American Civil Liberties Union v. Gonzales, 478 F. Supp. 2d 775 (E.D. Pa. 2007), aff’d sub nom. American Civil
Liberties Union v. Mukasey, 534 F.3d 181, 198 (3d Cir. 2008), cert. denied, No. 08-565 (U.S. Jan. 21, 2008).
103 Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969).
104 Bethel School District No. 463 v. Fraser, 478 U.S. 675 (1986).
105 Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).
106 E.g., Burch v. Barker, 861 F.2d 1149 (9th Cir. 1988); Romano v. Harrington, 725 F. Supp. 687 (E.D. N.Y. 1989).
107 Board of Education, Island Trees School District v. Pico, 457 U.S. 853, 864 (1982). The Court noted thatnothing
in our decision today affects in any way the discretion of a local school board to choose books to add to the libraries of
their schools. Id. at 871.
108 McConnell v. Federal Election Commission, 540 U.S. 93, 231-232 (2003).
109 127 S. Ct. 2618, 2624 (2007).
110 Id. at 2625.
111 Id. at 2636.

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

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

112 Frisby v. Schultz, 487 U.S. 474, 481 (1988).
113 Id. at 487.
114 Ward v. Rock Against Racism, 491 U.S. 781 (1989).
115 Young v. American Mini Theaters, Inc., 427 U.S. 50 (1976); Renton v. Playtime Theaters, Inc., 475 U.S. 41 (1986).
Although singling out “adult” material might appear to be a content-based distinction, the Court in Renton said that
regulations of speech are content-neutral if they “are justified without reference to the content of the regulated speech.
475 U.S. at 48 (emphasis in original). Zoning restrictions are justified as measures to “prevent crime, protect the city’s
retail trade, maintain property values, and generally ‘protec[t] and preserv[e] the quality of [the city’s] neighborhoods,
commercial districts, and the quality of urban life, not to suppress the expression of unpopular views.” Id.
116 Heffron v. International Society for Krishna Consciousness, Inc., 452 U.S. 640 (1981).
117 United States v. Grace, 461 U.S. 171 (1983).
118 City of Ladue v. Gilleo, 512 U.S. 43 (1994).

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

119 Madsen v. Womens Health Center, Inc., 512 U.S. 753, 765 (1994). In this case, the Court held that the challenged
injunction was content-neutral, even though it was directed at abortion protestors, because its purpose was to protect
patients, not to interfere with the protestors’ message.
120 Id. This is not “prior restraint analysis,” which courts apply to content-based injunctions; see,Prior Restraint,”
121 Id. at 773.
122 See, text accompanying notes 112-113, supra.
123 519 U.S. 357 (1997).
124 530 U.S. 703, 707 (2000).
Id. at 714.

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

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

126 Id. at 722.
127 Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984).
128 San Francisco Arts & Athletics, Inc. v. United States Olympic Committee, 483 U.S. 522, 537 (1987). This is known
as the “O’Brien test,” which was first formulated in the case cited in note 138, infra.
129 Ward v. Rock Against Racism, 491 U.S. 781, 798-799 (1989). This case makes clear that, although both “strict
scrutiny and the O’Brien test for incidental restrictions requirenarrow tailoring,”the same degree of tailoring is not
required” under the two; under the O’Brien test, “least-restrictive-alternative analysis is wholly out of place.Id. at
798-799 n.6. It is also out of place in applying the Central Hudson commercial speech test.
130 Clark, supra note 127, 468 U.S. at 298. And, “the validity of time, place, or manner restrictions is determined under
standards very similar to those applicable in the commercial speech context.” United States v. Edge Broadcasting Co.,
supra note 40, 509 U.S. at 430.

In 1991, the Supreme Court held that the First Amendment does not prevent the government from
requiring that dancers wear “pasties” and a “G-string” when they dance (non-obscenely) in
“adult” entertainment establishments. Indiana sought to enforce a state statute prohibiting public
nudity against two such establishments, which asserted First Amendment protection. The Court
found that the statute proscribed public nudity across the board, not nude dancing as such, and 131
therefore imposed only an incidental restriction on expression. In 2000, the Supreme Court
again upheld the application of a statute prohibiting public nudity to an “adult” entertainment
establishment. It found that the statute was intended “to combat harmful secondary effects,” such 132
as “prostitution and other criminal activity.”
In a 1994 case, the Supreme Court apparently put more teeth into the test for incidental
restrictions by remanding the case for further proceedings rather than deferring to Congress’s
judgment as to the necessity for the “must-carry” provisions of the Cable Television Consumer 133
Protection and Competition Act of 1992. To justify an incidental restriction of speech, the
Court wrote, the government “must demonstrate that the recited harms are real, not merely
conjectural, and that the regulation will in fact alleviate these harms in a direct and material 134
way.” The Court added that its
obligation to exercise independent judgment when First Amendment rights are implicated is
not a license to reweigh the evidence de novo, or to replace Congress factual predictions
with our own. Rather, it is to assure that, in formulating its judgments, Congress has drawn 135
reasonable inferences based on substantial evidence.

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

131 Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991).
132 Erie v. Pap’s A.M., 529 U.S. 277 (2000).
133 Turner Broadcasting System, Inc. v. Federal Communications Commission, 512 U.S. 622 (1994), discussed under
Radio and Television,” below. David Cole describes Turner as “effectively giving bite to the O’Brien standard.” He
writes that, “if the Court had applied the O’Brien standard the way it applied that standard in O’Brien, it should have
upheld themust carry rule. The O’Brien standard is extremely deferential.” The Perils of Pragmatism, LEGAL TIMES,
July 25, 1994, at S27, S30.
134 Id. at 664.
135 Id. at 666.
136 Texas v. Johnson, 491 U.S. 397 (1989).
137 United States v. Eichman, 496 U.S. 310 (1990).
138 United States v. OBrien, 391 U.S. 367, 382 (1968).

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

139 Id. at 383.
140 505 U.S. 377 (1992).
141 Texas v. Johnson, supra note 136, at 414.
142 R.A.V., supra note 140, at 384-385 (emphasis in original).
143 Id. at 386.
144 Id. at 391.
145 Id. at 396.
146 Wisconsin v. Mitchell, 508 U.S. 476, 487 (1993) (emphasis added by the Court to its quotation of the statute).
147 Virginia v. Black, 538 U.S. 343 (2003). A plurality held, however, that a statute may not presume, from the fact that
a defendant burned a cross, that he had an intent to intimidate. The state must prove that he did, as “a burning cross is

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

On occasion, the government attempts to compel speech rather than to restrict it. For example, in
Riley v. National Federation of the Blind of North Carolina, Inc., a North Carolina statute
required professional fundraisers for charities to disclose to potential donors the gross percentage 149
of revenues retained in prior charitable solicitations. The Supreme Court held this uncon-
stitutional, writing
There is certainly some difference between compelled speech and compelled silence, but in
the context of protected speech, the difference is without constitutional significance, for the
First Amendment guarantees “freedom of speech,” a term necessarily comprising the 150
decision of both what to say and what not to say.
In the commercial speech context, by contrast, the Supreme Court held, in Zauderer v. Office of
Disciplinary Counsel, that an advertiser’s
constitutionally protected interest in not providing any particular factual information in his
advertising is minimal.... [A]n advertisers rights are reasonably protected as long as
disclosure requirements are reasonably related to the States interest in preventing deception
of consumers.... The right of a commercial speaker not to divulge accurate information 151
regarding his services is not ... a fundamental right.
In Zauderer, the Supreme Court upheld an Ohio requirement that advertisements by lawyers that
mention contingent-fee rates disclose whether percentages are computed before or after deduction
of court costs and expenses.
In Meese v. Keene, however, the Court upheld compelled disclosure in a noncommercial 152
context. This case involved a provision of the Foreign Agents Registration Act of 1938, which
requires that, when an agent of a foreign principal seeks to disseminate foreign “political
propaganda,” he must label such material with certain information, including his identity, the

not always intended to intimidate, but may constitute a constitutionally protected expression of opinion. Id. at 365.
148 Id. at 363.
149 487 U.S. 781 (1988). In Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 605 (2003), the
Supreme Court held that a fundraiser who retained 85 percent of gross receipts from donors, but falsely represented that
a significant amount of each dollar donated would be paid over to” a charitable organization, could be sued for fraud.
So long as the emphasis is on what the fundraisers misleadingly convey, and not on percentage limitations on
solicitors’ fees per se, such [fraud] actions need not impermissibly chill protected speech.” Id. at 619.
150 487 U.S. 781, 796-797 (1988) (emphasis in original).
151 471 U.S. 626, 651, 652 n.14 (1985) (emphasis in original).
152 481 U.S. 465 (1987).

principal’s identity, and the fact that he has registered with the Department of Justice. The mater-
ial need not state that it is “political propaganda,” but one agent objected to the statute’s
designating material by that term, which he considered pejorative. The agent wished to exhibit,
without the required labels, three Canadian films on nuclear war and acid rain that the Justice
Department had determined were “political propaganda.”
In Meese v. Keene, the Supreme Court upheld the statute’s use of the term, essentially because it
considered the term not necessarily pejorative. On the subject of compelled disclosure, the Court
Congress did not prohibit, edit, or restrain the distribution of advocacy materials.... To the
contrary, Congress simply required the disseminators of such material to make additional 153
disclosures that would better enable the public to evaluate the import of the propaganda.
One might infer from this that compelled disclosure, in a noncommercial context, gives rise to no
serious First Amendment issue, and nothing in the Court’s opinion would seem to refute this
inference. Thus, it seems impossible to reconcile this opinion with the Court’s holding a year later
in Riley (which did not mention Meese v. Keene) that, in a noncommercial context, there is no
difference of constitutional significance between compelled speech and compelled silence.
In Meese v. Keene, the Court did not mention earlier cases in which it had struck down laws
compelling speech in a noncommercial context. In Wooley v. Maynard, the Court struck down a
New Hampshire statute requiring motorists to leave visible on their license plates the motto “Live 154
Free or Die.” In West Virginia State Board of Education v. Barnette, the Court held that a state 155
may not require children to pledge allegiance to the United States. In Miami Herald Publishing
Co. v. Tornillo, the Court struck down a Florida statute that required newspapers to grant political 156
candidates equal space to reply to the newspapers’ criticism and attacks on their record.
The Court decided two cases in its 1994-1995 term involving compelled speech. In McIntyre v.
Ohio Elections Commission, the Court, applying strict scrutiny, struck down a compelled
disclosure requirement by holding unconstitutional a state statute that prohibited the distribution
of anonymous campaign literature. “The State,” the Court wrote, “may, and does, punish fraud
directly. But it cannot seek to punish fraud indirectly by indiscriminately outlawing a category of
speech, based on its content, with no necessary relationship to the danger sought to be 157
In Hurley v. Irish-American Gay Group of Boston, the Court held that Massachusetts could not
require private citizens who organize a parade to include among the marchers a group imparting a
message—in this case support for gay rights—that the organizers do not wish to convey.
Massachusetts had attempted to apply its statute prohibiting discrimination on the basis of sexual
orientation in any place of public accommodations, but the Court held that parades are a form of

153 Id. at 480.
154 430 U.S. 705 (1977).
155 319 U.S. 624 (1943).
156 418 U.S. 241 (1974). In Pacific Gas & Electric Co. v. Public Utilities Commission of California, 475 U.S. 1 (1986),
the Court held that a state may not require a privately owned utility company to include in its billing envelopes views
of a consumer group with which it disagrees. While a plurality opinion adhered to by four justices relied heavily on
Tornillo, there was not a Court majority consensus as to rationale.
157 514 U.S. 334, 357 (1995).

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

158 515 U.S. 557, 581 (1995).
159 521 U.S. 457 (1997).
160 Id., 521 U.S. at 471, 472. The Court found that the marketing orders did not raise a First Amendment issue, but
simply a question of economic policy for Congress and the Executive to resolve. The Central Hudson test (see
“Commercial Speech, above), therefore, was inapplicable. Id. at 474.
161 533 U.S. 405 (2001).
162 Id. at 413.
163 Id. at 411.
164 544 U.S. 550 (2005).
165 Id. at 559, 553.
166 Id. at 562.
167 Id. at 564-566.

Radio and television broadcasting has more limited First Amendment protection than other
media. In Red Lion Broadcasting Co. v. Federal Communications Commission, the Supreme
Court invoked what has become known as the “scarcity rationale” to justify this discrimination:
Where there are substantially more individuals who want to broadcast than there are
frequencies to allocate, it is idle to posit an unabridgeable First Amendment right to 168
broadcast comparable to the right of every individual to speak, write, or publish.
The Court made this statement in upholding the constitutionality of the Federal Communication
Commission’s “fairness doctrine,” which required broadcast media licensees to provide coverage
of controversial issues of interest to the community and to provide a reasonable opportunity for
the presentation of contrasting viewpoints on such issues.
Later, in Federal Communications Commission v. Pacifica Foundation, the Court upheld the 169
power of the FCC “to regulate a radio broadcast that is indecent but not obscene.” The Court
cited two distinctions between broadcasting and other media: “First, the broadcast media have
established a uniquely pervasive presence in the lives of all Americans ... confront[ing] the
citizen, not only in public, but also in the privacy of the home,” and “Second, broadcasting is 170
uniquely accessible to children.”
In Turner Broadcasting System, Inc. v. Federal Communications Commission, the Court declined
to question the continuing validity of the scarcity rationale, but held that “application of the more
relaxed standard of scrutiny adopted in Red Lion and other broadcast cases is inapt when deter-171
mining the First Amendment validity of cable regulation.” In Turner, however, the Court found
the “must-carry” provisions of the Cable Television Consumer Protection and Competition Act of
1992, which require cable television systems to devote a portion of their channels to the
transmission of local broadcast television stations, to be content-neutral in application and subject
only to the test for incidental restrictions on speech. Attempting to apply this test, however, the
Court found “genuine issues of material fact still to be resolved” as to whether “broadcast
television is in jeopardy” and as to “the actual effects of must-carry on the speech of cable 172173
operators and cable programmers.” It therefore remanded the case for further proceedings.
In Denver Area Educational Telecommunications Consortium, Inc. v. Federal Communications
Commission, a plurality of the Supreme Court (four justices) apparently retreated from the

168 395 U.S. 367, 388 (1969).
169 438 U.S. 726, 729 (1978).
170 Id. at 748-749. In Action for Childrens Television v. Federal Communications Commission (ACT III), 58 F.3d 654,
660 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996), the court of appeals, in upholding a ban on indecent
broadcasts from 6 a.m. to 10 p.m., wrote:While we apply strict scrutiny to regulations of this kind regardless of the
medium affected by them, our assessment of whether section 16(a) survives that scrutiny must necessarily take into
account the unique context of the broadcast media. See,Speech Harmful to Children,supra.
171 Turner, supra note 133, 512 U.S. at 639.
172 Id. at 667-668.
173 On remand, the lower court upheld the must-carry rules, and the Supreme Court affirmed, findingthat the must-
carry provisions further important governmental interests; and ... do not burden substantially more speech than
necessary to further those interests. Turner Broadcasting System, Inc. v. Federal Communications Commission, 520
U.S. 180, 185 (1997).

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

174 518 U.S. 727 (1996).
175 Id. at 745.
176 Id. at 748.
177 Id. at 743.
178 Id. at 755.
179 Id. at 766.
180 529 U.S. 803 (2000).

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

The Supreme Court has held that Congress, incident to its power to provide for the general
welfare (Art. I, § 8, cl. 1),
may attach conditions on the receipt of federal funds, and has repeatedly employed the power
to further broad policy objectives by conditioning receipt of federal moneys upon
compliance with federal statutory and administrative directives.” ... The breadth of this
power was made clear in United States v. Butler, 297 U.S. 1, 66 (1936), where the Court ...
determined that “the power of Congress to authorize expenditure of public moneys for public
purposes is not limited by the direct grants of legislative power found in the Constitution.
Thus, objectives not thought to be within Article I’s enumerated legislative fields,” id., at
65, may nevertheless be attained through the use of the spending power and the conditional 181
grant of federal funds.
This means that Congress may regulate matters by attaching conditions to the receipt of federal
funds that it might lack the power to regulate directly. However, the Court added, “other
constitutional provisions may provide an independent bar to the conditional grant of federal
funds.” One of these other constitutional provisions is the First Amendment. The Court has held,
in fact, that the government “may not deny a benefit to a person on a basis that infringes his 182
constitutionally protected interests—especially, his interest in freedom of speech.” Similarly, in
Federal Communications Commission v. League of Women Voters, the Court declared
unconstitutional a federal statute that prohibited noncommercial television and radio stations that 183
accepted federal funds from engaging in editorializing, even with nonfederal funds.
Congress would have the authority to prohibit television and radio stations from using the federal
funds they accept to engage in editorializing, as the Court would view Congress in that case not 184
as limiting speech, but as choosing to fund one activity to the exclusion of another. “A refusal
to fund protected activity [i.e., speech], without more, cannot be equated with the imposition of a 185
‘penalty’ on that activity.” In Rust v. Sullivan, the case in which this quotation appears, the
Court upheld a “gag order” that prohibited family planning clinics that accept federal funds from
engaging in abortion counseling or referrals. The Court found that, in this case, “the government
is not denying a benefit to anyone, but is instead simply insisting that public funds be spent for 186
purposes for which they were authorized.”
In Rust v. Sullivan, the Court also indicated that it will allow Congress to condition the receipt of
federal funds on acceptance of a limitation on the use of nonfederal funds as well as of federal

181 South Dakota v. Dole, 483 U.S. 203, 206-207 (1987).
182 Perry v. Sindermann, 408 U.S. 593, 597 (1972) (striking down state universitys refusal to renew teachers contract
because of his public criticism of the college administration).
183 468 U.S. 364 (1984).
184 See, id. at 400.
185 Rust v. Sullivan, 500 U.S. 173, 193 (1991).
186 Id. at 196.

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

187 Id. at 196. Thus, a grantee who accepts federal funds to operate a family planning clinic may be prohibited from
using nonfederal funds to provide abortion counseling through the clinic, but may not be prohibited from using
nonfederal funds to provide abortion counseling outside the clinic.
188 Id. at 213 (emphasis in original).
189 Id. at 200.
190 524 U.S. 569, 572 (1998).
191 Id. at 587.
192 Id. at 581. Justice Scalia, in a concurring opinion, claimed that this interpretation of the statutegutt[ed] it.” He
believed that the statute “establishes content- and viewpoint-based criteria upon which grant applications are to be
evaluated. And that is perfectly constitutional.” Id. at 590.
193 Id. at 585.
194 Id. at 588-589.
195 531 U.S. 533 (2001).

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

196 Id. at 541, 542.
197 Id. at 544, 545, 546.
198 539 U.S. 194 (2003).
199 Id. at 203.
200 Id.
201 Id. at 205.
202 Id. at 211.
203 Id. at 212.

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

204 Id. at 213 (emphasis in original).
205 547 U.S. 47, 51 (2006).
206 Id. at 56.
207 Id. at 60. The Court stated that Congress’s authority to directly require campus access for military recruiters comes
from its Article I, section 8, powers to provide for the common defense, to raise and support armies, and to provide and
maintain a navy. Id. at 58.
208 Id. at 60.
209 Id. at 64, 65. The flag burning cases are quoted at notes 136 and 137, supra.
210 Id at 67. The O’Brien test is quoted in the text accompanying note 128, supra.
211 Id at 61, 62. Barnette and Wooley are cited, respectively, in notes 155 and 154, supra.

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

In Pickering v. Board of Education, the Supreme Court said that “it cannot be gainsaid that the
State has interests as an employer in regulating the speech of its employees that differ
significantly from those it possesses in connection with the regulation of speech of the citizenry 216
in general.” The First Amendment, however, “protects a public employee’s right, in certain 217
circumstances, to speak as a citizen addressing matters of public concern.”
In Pickering, the Supreme Court held it unconstitutional for a school board to fire a teacher for
writing a letter to a local newspaper criticizing the administration of the school system. The Court
did not, however, hold that the teacher had the same right as a private citizen to write such a
letter. Rather, because the teacher had spoken as a citizen on a matter of public concern, the Court
balanced “the interests of the teacher, as a citizen, in commenting upon matters of public concern
and the interest of the State, as an employer, in promoting the efficiency of the public services it 218
performs through its employees.” In this case, the Court found that the statements in the letter
in no way directed towards any person with whom appellant [the teacher] would normally be
in contact in the course of his daily work as a teacher. Thus no question of maintaining either
discipline by immediate superiors or harmony among coworkers is presented here.
Appellant’s employment relationships with the Board ... are not the kind of close working

212 Id. at 63. The Court cited Hurley, supra note 158, and Tornillo, supra note 156.
213 Id. at 65.
214 Id. at 68, quoting Boy Scouts of America v. Dale, 530 U.S. 640, 644 (2000).
215 Id. at 69.
216 391 U.S. 563, 568 (1968).
217 Garcetti v. Ceballos, 547 U.S. 410, 417 (2006).
218 Id., quoting Pickering, supra note 216, 391 U.S. at 568.

relationships for which it can persuasively be claimed that personal loyalty and confidence 219
are necessary to their proper functioning.
In Arnett v. Kennedy, the Supreme Court again balanced governmental interests and employee
rights, and this time sustained the constitutionality of a federal statute that authorized removal or
suspension without pay of an employee “for such cause as will promote the efficiency of the 220
service,” where the “cause” cited was an employee’s speech. The employee’s speech in this
case, however, consisted in falsely and publicly accusing the director of his agency of bribery.
The Court interpreted the statute to proscribe
only that public speech which improperly damages and impairs the reputation and efficiency
of the employing agency, and it thus imposes no greater controls on the behavior of federal
employees as are necessary for the protection of the Government as employer. Indeed, the
Act is not directed at speech as such, but at employee behavior, including speech, which is 221
detrimental to the efficiency of the employing agency.
In Givhan v. Western Line Consolidated School District, the Court upheld the First Amendment
right of a public school teacher to complain to the school principal about “employment policies
and practices at [the] school which [she] conceived to be racially discriminatory in purpose or 222
In Connick v. Myers, an assistant district attorney was fired for insubordination after she
circulated a questionnaire among her peers soliciting views on matters relating to employee 223
morale. The Supreme Court upheld the firing, distinguishing Pickering on the ground that, in
that case, unlike in this one, the fired employee had engaged in speech concerning matters of
public concern:
When employee expression cannot be fairly considered as relating to any matter of political,
social, or other concern to the community, government officials should enjoy a wide latitude
in managing their offices, without intrusive oversight by the judiciary in the name of the First
We do not suggest, however, that Myers speech, even if not touching upon a matter of
public concern, is totally beyond the protection of the First Amendment. [T]he First
Amendment does not protect speech and assembly only to the extent it can be characterized
as political....” ... We hold only that when a public employee speaks not as a citizen upon
matters of public concern, but as an employee upon matters only of personal interest, absent
the most unusual of circumstances, a federal court is not the appropriate forum in which to
review the wisdom of a personnel decision taken by a public agency allegedly in reaction to 224
the employee’s behavior.

219 Pickering, supra note 216, 391 U.S. at 569-570.
220 416 U.S. 134, 140 (1974).
221 Id. at 162.
222 439 U.S. 410, 413 (1979).
223 461 U.S. 138 (1983).
224 Id. at 146-147. Subsequently, in Garcetti v. Ceballos, supra note 217, 547 U.S. at 418, the Court wrote that, if an
employee did not speak as a citizen on a matter of public concern, thenthe employee has no First Amendment cause
of action based on his or her employer’s reaction to the speech. See Connick, supra, at 147.”

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

225 Id. at 154.
226 483 U.S. 378, 380 (1987).
227 Id. at 390-391.
228 See, e.g., Connick v. Myers, supra note 223, 461 U.S. at 152 (“Also relevant is the manner, time, and place in which
the questionnaire was distributed.).
229 511 U.S. 661, 668 (1994).
230 Id. at 677 (emphasis in original).
231 Id. at 676, 677.

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

232 513 U.S. 454 (1995).
233 Id. at 466-468.
234 Id. at 477.
235 543 U.S. 77 (2004).
236 Id. at 84.
237 Id.
238 Id. at 80.
239 Garcetti, supra note 217, 547 U.S. at 421.
240 Id.
241 The Court cited Givhan, supra note 222, for these points. The difference between Givhan and Ceballos was
apparently that Givhans complaints were not made pursuant to her job duties, whereas Ceballos’ were. Therefore,
Givhan spoke as a citizen whereas Ceballos spoke as a government employee. See, 547 U.S. at 420-421.
242 Garcetti, supra note 217, 547 U.S. at 421.

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

243 518 U.S. 668, 670 (1996).
244 Id. at 673.
245 Id. at 685.
246 427 U.S. 347 (1976).
247 445 U.S. 507 (1980).
248 O’Hare Truck Service, Inc. v. Northlake, 518 U.S. 712, 714 (1996).
249 Id.