First Amendment:
Cases, Controversies, and Contexts

Ruthann Robson
Professor of Law & University Distinguished Professor
City University of New York (CUNY) School of Law

CALI eLangdell Press 2020
Second Edition

About the Author
Ruthann Robson is Professor of Law and University Distinguished Professor at the
City University of New York (CUNY) School of Law.
Her books include DRESSING CONSTITUTIONALLY: HIERARCHY, SEXUALITY, AND DEMOCRACY
(2013); SAPPHO GOES TO LAW SCHOOL (1998); GAY MEN, LESBIANS, AND THE LAW (1996);
and LESBIAN (OUT)LAW: SURVIVAL UNDER THE RULE OF LAW (1992). She is also the editor
of the three volume set, INTERNATIONAL LIBRARY OF ESSAYS IN SEXUALITY & LAW (2011).
She is one of two editors of the Constitutional Law Professors Blog and a frequent
commentator on constitutional and sexuality issues.
She is one of the 26 professors selected for inclusion in WHAT THE BEST LAW TEACHERS
DO (Harvard University Press, 2013).

Robson

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The First Amendment

Notices
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collection of information.

Robson

ii

The First Amendment

About CALI eLangdell Press
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Robson

iii

The First Amendment

Preface
This Casebook is intended to be used in an upper-division course covering the First
Amendment to the United States Constitution.
Its 14 chapters are substantially the same length, with the exception of Chapter One,
the introduction, and Chapters Eleven and Twelve which in combination are the
usual length. It is intended for 13 or 14 week semester that meets once or twice per
week.
The Casebook is organized with the Speech Clauses as Part One and the Religion
Clauses as Part Two. Unlike many other courses, there is no accepted organizational
scheme within these broad areas. As the Introduction notes, First Amendment
doctrine, especially within freedom of speech, presents a varied and haphazard
landscape. The Casebook follows a scheme that has proven effective in my years of
teaching the course to hundreds of students.
The selection of cases tends toward the most recent and these tend to be less
heavily edited. These recent cases often contain extended discussions of earlier
cases that are not included in the Casebook.
The excerpted cases and all cases in the Notes contain the official citation. However,
within the text of excerpted cases, the full citations of cases are not included: only
the case name and year appears the first time the case is cited within the opinion.
Moreover, case citations are not always indicated by ellipses. When content is
omitted, this is indicated by this symbol: * * *. The Court’s use of centered asterisks ,
often near the end of an opinion, is preserved as spaced and centered: * * *
This Casebook has been immeasurably improved by comments from my students in
First Amendment at CUNY School of Law,. A special gratitude to those students in
the class in the Spring of 2015 when a “dry run” of the Casebook was used. Their
responses to my queries (e.g., “which 5 pages did you find least helpful in this
chapter?”), their engagement with the materials and original contributions, as well
as their notations of typographical errors, are deeply appreciated.

Robson

iv

The First Amendment

Table of Contents
About the Author ....................................................................................................................... i
Notices ........................................................................................................................................ ii
About CALI eLangdell Press ................................................................................................ iii
Preface ....................................................................................................................................... iv
Chapter One: INTRODUCTION TO THE FIRST AMENDMENT .............................................. 1
I. Text ................................................................................................................................................ 1
II. The Clauses ................................................................................................................................. 1
A. The Religion Clauses ............................................................................................................................. 1
B. The Free Speech Clause ....................................................................................................................... 1
C. The Press Clause ..................................................................................................................................... 1
D. The Assembly Clause ............................................................................................................................ 2
E. The Petition Clause ................................................................................................................................ 2
F. Association: The “Missing” Clause .................................................................................................. 2
III.
International Perspectives................................................................................................ 2
IV.
State Action and Incorporation Against the States ................................................... 4
V.
History: The Firstness of the First Amendment ......................................................... 5
VI.
Theoretical Perspectives ................................................................................................... 6
VII. The Challenges of First Amendment Cases and Controversies ............................. 7

Part I: The Speech Clauses ....................................................................................................9
Chapter Two: PROTECTIONS FOR POLITICAL SPEECH ............................................. 10
I.

The Alien and Sedition Acts................................................................................................ 10

The Alien Act: An Act Respecting Alien Enemies ................................................................................................ 10
The Sedition Act: An Act in Addition to the Act, Entitled "An Act for the Punishment of Certain
Crimes Against the United States” ............................................................................................................................ 11
Notes ...................................................................................................................................................................................... 12

II.
A.

B.
C.

Clear and Present Dangers ................................................................................................. 12
The Challenge of World War I ........................................................................................................ 12

Schenck v. United States ................................................................................................................................................ 12
Abrams v. United States ................................................................................................................................................ 14
Note: Justice Oliver Wendell Holmes ....................................................................................................................... 17
Gitlow v. New York .......................................................................................................................................................... 18
Whitney v. California ...................................................................................................................................................... 22
Notes ...................................................................................................................................................................................... 27

Labor Unrest .......................................................................................................................................... 28

Bridges v. California........................................................................................................................................................ 28

Communism and the Smith Act ..................................................................................................... 31

Dennis v. United States .................................................................................................................................................. 31
Notes ...................................................................................................................................................................................... 39

III. “Offensive” Speech ................................................................................................................... 40

Chaplinsky v. New Hampshire .................................................................................................................................... 40
Cohen v. California........................................................................................................................................................... 41
Notes ...................................................................................................................................................................................... 45

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The First Amendment

IV.

V.

Distinguishing Protected Advocacy ............................................................................ 45

Brandenburg v. Ohio ....................................................................................................................................................... 45
Hess v. Indiana................................................................................................................................................................... 47
Notes ...................................................................................................................................................................................... 49
Note: The Heckler’s Veto ............................................................................................................................................... 49

“Political” Speech in the Age of “Terrorism” ........................................................... 50

Holder v. Humanitarian Law Project ...................................................................................................................... 50
Notes ...................................................................................................................................................................................... 63

Chapter Three: OF CONDUCT, CONTENT, AND CATEGORIES .................................. 64
I.

Defining Expression .............................................................................................................. 64

II.

Hate Speech ............................................................................................................................. 79

United States v. O’Brien ................................................................................................................................................. 64
Spence v. Washington .................................................................................................................................................... 67
Texas v. Johnson ................................................................................................................................................................ 71
Notes ...................................................................................................................................................................................... 78

III.

R.A.V. v. St. Paul ................................................................................................................................................................. 79
Wisconsin v. Mitchell ...................................................................................................................................................... 87
Virginia v. Black ................................................................................................................................................................ 90
Notes ................................................................................................................................................................................... 101
Note: “True Threats”.................................................................................................................................................... 102

Considering “Content” in the Context of the Military .......................................... 102

Schacht v. United States ............................................................................................................................................. 103
United States v. Alvarez .............................................................................................................................................. 104
Notes ................................................................................................................................................................................... 113

Chapter Four: THE SPECIAL (OR NOT) STATUS OF THE PRESS .......................... 114
I.

Prior Restraint ...................................................................................................................... 114

Near v. Minnesota ......................................................................................................................................................... 114
New York Times Co. v. United States .................................................................................................................... 117
Notes ................................................................................................................................................................................... 120

II.
A.

B.
C.

D.
E.

F.

IV.
A.

Robson

The Press as Guardian of the Public’s Right to Know? ............................................ 121
The Press v. Criminal Defendants ............................................................................................. 121

Sheppard v. Maxwell .................................................................................................................................................... 121
Nebraska Press Assn. v. Stuart ................................................................................................................................ 130
Notes ................................................................................................................................................................................... 135

The Press as a Party in Civil Litigation .................................................................................... 136

Seattle Times Co. v. Rhinehart ................................................................................................................................. 136

Access by the Press .......................................................................................................................... 140

Note: “Public Proceedings” ....................................................................................................................................... 140
Houchins v. KQED, Inc. ................................................................................................................................................ 140
Notes ................................................................................................................................................................................... 148

(Un)lawful Information ................................................................................................................. 148

Note: Bartnicki v. Vopper .......................................................................................................................................... 148

Reporters’ “privilege” ..................................................................................................................... 149

Branzburg v. Hayes ...................................................................................................................................................... 149
Cohen v. Cowles Media Co.......................................................................................................................................... 152
Notes ................................................................................................................................................................................... 154

Right of Reply? ................................................................................................................................... 155

Miami Herald Publishing Co. v. Tornillo ............................................................................................................. 155
Notes ................................................................................................................................................................................... 158
Note: Taxation of the Press ....................................................................................................................................... 159

Freedom of the Press and Tort Actions.................................................................... 160
Defamation .......................................................................................................................................... 160

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The First Amendment

B.

New York Times Co. v. Sullivan ............................................................................................................................... 160
Gertz v. Robert Welch, Inc. ........................................................................................................................................ 166
Notes ................................................................................................................................................................................... 172

Other Torts .......................................................................................................................................... 174

Time, Inc. v. Hill .............................................................................................................................................................. 174
Hustler Magazine v. Falwell ..................................................................................................................................... 177
Notes ................................................................................................................................................................................... 180

Chapter Five: GOVERNMENT AS EMPLOYER AND EDUCATOR ............................ 182
I.

The Politics of Public Employment ................................................................................ 182

Civil Service Commission v. National Association of Letter Carriers ...................................................... 182
Branti v. Finkel ............................................................................................................................................................... 187
Notes ................................................................................................................................................................................... 194

II.
A.

B.

C.

III.

Protecting Public Employee Speech .............................................................................. 195
Foundational Tests .......................................................................................................................... 195

Pickering v. Board of Education of Township High School District 205, Will County, Illinois .... 195
Mt. Healthy City Board of Ed. v. Doyle.................................................................................................................. 200
Notes ................................................................................................................................................................................... 203

Applying and modifying the tests .............................................................................................. 204

Givhan v. Western Line Consol. School Dist. ...................................................................................................... 204
Connick v. Myers ............................................................................................................................................................ 205
Rankin v. McPherson ................................................................................................................................................... 212
San Diego v. Roe............................................................................................................................................................. 216
Notes ................................................................................................................................................................................... 219

Public Employee Speech in the Roberts Court .................................................................... 220

Garcetti v. Ceballos ....................................................................................................................................................... 220
Lane v. Franks................................................................................................................................................................. 227
Notes ................................................................................................................................................................................... 232

Student Speech ................................................................................................................. 233

Tinker v. Des Moines Independent Community School District ................................................................ 233
Bethel School District No. 403 v. Fraser .............................................................................................................. 238
Hazelwood School District v. Kuhlmeier ............................................................................................................. 243
Morse v. Frederick......................................................................................................................................................... 248
Notes ................................................................................................................................................................................... 254

Chapter Six: UNCONSTITUTIONAL CONDITIONS AND COMPELLED SPEECH.. 255
I.

II.

Unconstitutional Conditions and Speech..................................................................... 255

Rust v. Sullivan ............................................................................................................................................................... 255
Legal Services Corporation v. Velazquez ............................................................................................................ 262
Notes ................................................................................................................................................................................... 268

A.

B.

C.

Robson

Compelled Speech................................................................................................................ 269
Foundational Cases of Compelled Speech.............................................................................. 269

West Virginia Board of Education v. Barnette ................................................................................................. 269
Wooley v. Maynard ....................................................................................................................................................... 274
Notes ................................................................................................................................................................................... 277

Fees and Dues................................................................................................................................ 278

Keller v. State Bar of California .............................................................................................................................. 278
Board of Regents of the University of Wisconsin System v. Southworth ............................................... 280
Johanns v. Livestock Marketing Ass’n................................................................................................................... 283
Janus v. American Federation of State, County, and Municipal Employees......................................... 286
Notes ................................................................................................................................................................................... 298

Compelled Speech and Association .......................................................................................... 300

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston ....................................................... 300
Boy Scouts of America v. Dale .................................................................................................................................. 303

vii

The First Amendment

III.

Notes ................................................................................................................................................................................... 313

Combining Unconstitutional Conditions and Compelled Speech .................... 314

Rumsfeld v. Forum for Academic and Institutional Rights, Inc. ............................................................... 314
Agency for International Development v. Alliance for Open Society International, Inc. ............... 319
Notes ................................................................................................................................................................................... 325

Chapter Seven: FORUMS, TIME, PLACE, MANNER, GOVERNMENT SPEECH ..... 327
I.

Historical Perspectives on Public Assembly and Public Forums ........................ 327

II.

Public and Other Forums .................................................................................................. 332

III.

IV.

V.

VI.

Note: The Assembly Clause........................................................................................................................................ 327
Davis v. Commonwealth of Massachusetts......................................................................................................... 328
Hague v. Committee for Industrial Organization [CIO] ............................................................................... 329
Notes ................................................................................................................................................................................... 331
Southeastern Promotions, Ltd. v. Conrad ........................................................................................................... 332
Perry Education Assn. v. Perry Local Educators' Assn. ................................................................................. 337
Notes ................................................................................................................................................................................... 342
Christian Legal Society Chapter of the University of California, Hastings College of the Law v.
Martinez ............................................................................................................................................................................ 343
Notes ................................................................................................................................................................................... 353
Note: Trespassing in a Public Forum?.................................................................................................................. 354

Time, Place, or Manner .................................................................................................. 355

Ward v. Rock Against Racism .................................................................................................................................. 355
McCullen v. Coakley ...................................................................................................................................................... 363
Notes ................................................................................................................................................................................... 375
Note: Funeral Protests ................................................................................................................................................ 375
Packingham v. North Carolina ................................................................................................................................ 376

Signage Regulations: Content or TPM? .................................................................... 381

City Council v. Taxpayers for Vincent ................................................................................................................... 381
Reed v. Town of Gilbert ............................................................................................................................................... 387
Notes ................................................................................................................................................................................... 395

The “Escape Clause” of Government Speech ............................................................... 395

Pleasant Grove City v. Summum ............................................................................................................................. 395
Walker v. Texas Division, Sons of Confederate Veterans ............................................................................. 402
Notes ................................................................................................................................................................................... 411

Patent Restrictions in the Roberts Court ................................................................ 411

Matal v. Tam ................................................................................................................................................................... 411
Iancu v. Brunetti ............................................................................................................................................................ 420
Notes ................................................................................................................................................................................... 429

Chapter Eight: THE POLITICAL PROCESS ................................................................... 431
I.

At the Polls ............................................................................................................................. 431

II.

Anonymity and Political Life............................................................................................ 439

III.

IV.

Robson

Minnesota Voters Alliance v. Mansky ................................................................................................................... 431
Notes ................................................................................................................................................................................... 439
NAACP. v. Alabama ....................................................................................................................................................... 439
McIntyre v. Ohio Elections Comm'n....................................................................................................................... 443
Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton ........................................ 449
Doe v. Reed ....................................................................................................................................................................... 456
Notes ................................................................................................................................................................................... 465

Judicial Elections ............................................................................................................. 467

Republican Party of Minnesota v. White ............................................................................................................. 467
Williams-Yulee v. the Florida Bar .......................................................................................................................... 475
Notes ................................................................................................................................................................................... 488

Campaign Finance ........................................................................................................... 490

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The First Amendment

Note: Timeline of First Amendment Campaign Finance Cases ................................................................. 491
Note: Buckley v. Valeo ................................................................................................................................................. 494
Citizens United v. Federal Election Commission .............................................................................................. 495
McCutcheon v. Federal Election Commission.................................................................................................... 501
Note: “Dark Money” Anonymity, Disclosure, and Campaign Finance .................................................... 522

Chapter Nine: COMMERCIAL SPEECH .......................................................................... 523
I.

From Unprotected to Protected Speech ....................................................................... 523

II.

The Central Hudson Test & Its Applications............................................................... 539

Valentine v. Chrestensen ............................................................................................................................................ 523
Bigelow v. Commonwealth of Virginia................................................................................................................. 524
Virginia State Pharmacy Board v. Virginia Citizens Consumer Council ............................................... 530
Notes ................................................................................................................................................................................... 539
Central Hudson Gas & Electric Corp. v. Public Service Commission ........................................................ 539
Bolger v. Youngs Drug Products Corp. ................................................................................................................. 550
Florida Bar v. Went For It, Inc. ................................................................................................................................ 554
Notes ................................................................................................................................................................................... 560

III. Commercial Speech and Disclosures............................................................................... 561

Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio............................................. 561
Expressions Hair Design v. Schneiderman ......................................................................................................... 571
Note: The Aftermath of Expressions Hair Design............................................................................................ 577

IV. The Ascendency of Commercial Speech? ....................................................................... 578

Sorrell v. IMS Health Inc............................................................................................................................................. 578
National Institute of Family and Life Advocates v. Becerra ....................................................................... 588
Notes ................................................................................................................................................................................... 604

Chapter Ten: SEXUAL SPEECH........................................................................................ 605
I.

Defining Obscenity .............................................................................................................. 605

II.

Privacy and Pornography ................................................................................................. 622

III.
IV.

V.

Robson

Rosen v. United States ................................................................................................................................................. 605
Notes ................................................................................................................................................................................... 606
Roth v. United States .................................................................................................................................................... 607
Jacobellis v. Ohio ............................................................................................................................................................ 614
Miller v. California ........................................................................................................................................................ 616
Note: Prurient Interest ............................................................................................................................................... 621
Stanley v. Georgia ......................................................................................................................................................... 622
Paris Adult Theatre I v. Slaton ................................................................................................................................ 625
Notes ................................................................................................................................................................................... 629

Secondary Effects ............................................................................................................ 629

Erie v. Pap’s A. M............................................................................................................................................................ 629
Notes ................................................................................................................................................................................... 638

Children, Regulated Media, and the Internet Age................................................. 639

Note: Ginsberg v. New York and New York v. Ferber .................................................................................... 639
Note: Fleeting Expletives and Fleeting Nudity on Broadcast Television .............................................. 640
United States v. Williams ........................................................................................................................................... 643
Note: Funding ................................................................................................................................................................. 653

The Limits of Obscenity and the Categorical Approach? ........................................ 654

United States v. Stevens .............................................................................................................................................. 654
Brown v. Entertainment Merchants Association ............................................................................................ 664
Note: Reconsidering the Categorical Approach............................................................................................... 670

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The First Amendment

Part II: The Religion Clauses .......................................................................................... 672
Chapter Eleven: DEFINING RELIGION .......................................................................... 673

United States v. Seeger................................................................................................................................................ 673
Welsh v. United States ................................................................................................................................................. 680
Notes ................................................................................................................................................................................... 687

Chapter Twelve: THE ESTABLISHMENT CLAUSE AND EDUCATION .................. 688
I.

Early History of the Establishment Clause .................................................................. 688

II.

The Lemon Test and Its Discontents.............................................................................. 706

Everson v. Board of Education of Ewing Twp................................................................................................... 688
Notes ................................................................................................................................................................................... 699
Engel v. Vitale ................................................................................................................................................................. 701

III.

Lemon v. Kurtzman ...................................................................................................................................................... 706
Notes ................................................................................................................................................................................... 714
Santa Fe Independent School District v. Doe .................................................................................................... 714
Note: Elk Grove Unified Sch. Dist. v. Newdow ................................................................................................... 721

Private Choice and Public Support of Religious Schools ................................... 721

Zelman v. Simmons-Harris ........................................................................................................................................ 721
Notes ................................................................................................................................................................................... 733

Chapter Thirteen: THE ESTABLISHMENT CLAUSE IN THE PUBLIC SQUARE .. 734
I.

Historical Practices ............................................................................................................. 734

II.

Displays of Religious Symbols ......................................................................................... 759

McGowan v. Maryland ................................................................................................................................................ 734
Marsh v. Chambers ....................................................................................................................................................... 742
Town of Greece, New York v. Galloway ............................................................................................................. 748
Notes ................................................................................................................................................................................... 758

III.

Allegheny County v. Greater Pittsburgh ACLU ................................................................................................. 759
Note ..................................................................................................................................................................................... 767
McCreary County, Kentucky v. ACLU of Kentucky ........................................................................................... 768
Van Orden v. Perry ........................................................................................................................................................ 776
Notes ................................................................................................................................................................................... 781
American Legion v. American Humanist Assn. ................................................................................................. 781

The Problem of Establishment Clause Standing ................................................... 795

Arizona Christian School Tuition Organization v. Winn ............................................................................. 795
Notes ................................................................................................................................................................................... 807

Chapter Fourteen: FREEDOM OF RELIGIOUS EXERCISE ........................................ 808
I.

Belief v. Practice ................................................................................................................... 808

II.

The Problem of Neutral Rules of General Applicability ......................................... 816

Reynolds v. United States ........................................................................................................................................... 808
Note: The Polygamy Voting Cases ......................................................................................................................... 812
Notes ................................................................................................................................................................................... 814
Note: Fraud or Heresy? ............................................................................................................................................... 814
Sherbert v. Verner ......................................................................................................................................................... 816
Employment Division, Department of Human Resources of Oregon v. Smith .................................... 821

III.
Legislating Free Exercise .............................................................................................. 831
A. RFRA ........................................................................................................................................................... 831

Text of Religious Freedom Restoration Act (RFRA) ....................................................................................... 831
Note: The Constitutionality of RFRA ..................................................................................................................... 832
Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal ..................................................................... 832
Burwell v. Hobby Lobby Stores, Inc. ...................................................................................................................... 838

B. RLUIPA ....................................................................................................................................................... 856

Text of RLUIPA ............................................................................................................................................................... 856

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The First Amendment

IV.

Note: The Relevance of RLUIPA for RFRA .......................................................................................................... 857
Note: Prison Litigation Under RLUIPA ................................................................................................................ 858

Hostility Toward Religion ............................................................................................ 859

Church of the Lukumi Babalu Aye v. City of Hialeah ..................................................................................... 859
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission ........................................................... 869
Trump v. Hawaii ............................................................................................................................................................ 879
Notes ................................................................................................................................................................................... 895

V. Establishment & Free Exercise Clauses............................................................................ 896

Note: The Ministerial Exception ............................................................................................................................. 896
Note: The “Play in the Joints” ................................................................................................................................... 898
Trinity Lutheran Church of Columbia, Mo. v. Pauley..................................................................................... 898
Notes ................................................................................................................................................................................... 908

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xi

The First Amendment

Chapter One: INTRODUCTION TO THE FIRST
AMENDMENT
I.

Text

II.

The Clauses

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise
thereof; or abridging the freedom of speech, or of the press; or the right of the people to peaceably
assemble, and to petition the Government from redress of grievances.

A.

The Religion Clauses

The religion clauses are two separate but intertwined clauses.
First, the text forbids Congress making laws respecting “an establishment of religion.” The
Establishment Clause - - - more properly denominated an anti-Establishment Clause or
disestablishment Clause, but routinely called the Establishment Clause - - means at its most basic that
there cannot be a government religion. This is distinct from many other nations in which there is a
national religion, including Great Britain’s Church of England. More specific meanings of what an
“establishment” of religion might mean have been the subject of numerous cases and controversies.
Most vexing have been government support for religious education and for government displays of
religiosity.
Second, the text forbids Congress making laws that would prohibit “the free exercise” of religion. This
“freedom of religion” clause means at its most basic that government cannot outlaw a religion. Again,
the history of England is instructive including criminal trials for heresy. And again, the more specific
meanings of “prohibiting” and “free exercise” have been the subject of numerous cases and
controversies. The extent to which the government must accommodate religious beliefs and practices
has been the most contentious.
(Part Two, Chapters Eleven through Fourteen discuss the Religion Clauses).

B.

The Free Speech Clause

C.

The Press Clause

The First Amendment’s “freedom of speech” clause is the primary means of protecting expression. It
is the clause that most people think of when they think of the First Amendment and it occupies a
central place in First Amendment doctrine and theory. Indeed, other First Amendment rights are
often grounded in the free speech clause. (Part One treats the extensive doctrine under the Speech
Clause).

The text’s “or of the press” language immediately after the prohibition of the abridgement of freedom
of speech might seem to guarantee freedom of the press as a separate right. Doctrinally, the “free
press” clause is often coextensive with the “free speech” clause. (The Press Clause is further
discussed in Chapter Four).

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The First Amendment

D.

The Assembly Clause

E.

The Petition Clause

F.

Association: The “Missing” Clause

The Assembly Clause has not been the source of rights or doctrinal explication. Some of the framers
imagined the clause to be superfluous and its interpretation has proven this to be true. (The
Assembly Clause is further discussed in Chapter Seven).

Like the Assembly Clause, the Petition Clause has not been the source of robust rights under the First
Amendment. However, in Borough of Duryea v. Guarnieri, 564 U.S. ___ (2011), the Court held that the
Petition Clause and the Speech Clause are not necessarily coextensive. In that case, a public employee
brought a First Amendment claim that he had been terminated in retaliation for filing a grievance, i.e.,
a “petition.” The Court held, however, that the Petition Clause should be interpreted in this case as
coextensive with Speech Clause doctrine which would require the employee to be speaking about a
matter of public concern. (The First Amendment rights of public employees are discussed in Chapter
Five).

Note that the text of the First Amendment does not contain the word “association” although it is often
thought to include it. This right, grounded in the Speech Clause, is often said to begin with the Court’s
decision in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958) (included in Chapter Eight). In
addition to the right to anonymity in belonging to an organization as in NAACP, other associational
First Amendment rights include the ability of organizations to determine their membership in light of
anti-discrimination laws. (These cases are included in Chapter Six).

III. International Perspectives

The rights encompassed in the United States Constitution’s First Amendment are generally included
in human rights documents and other national constitutions. The prohibition of government religion,
as mentioned above, is less universal.
The Universal Declaration of Human Rights (1947) provides:
Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to
change his religion or belief, and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief in teaching, practice, worship and observance.
Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold
opinions without interference and to seek, receive and impart information and ideas through any
media and regardless of frontiers.
Article 20
(1) Everyone has the right to freedom of peaceful assembly and association.
(2) No one may be compelled to belong to an association.

The International Covenant on Civil and Political Rights (ICCPR) (1966) provides:
Article 18
1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include
freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in
community with others and in public or private, to manifest his religion or belief in worship,
observance, practice and teaching.

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2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or
belief of his choice.
3. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are
prescribed by law and are necessary to protect public safety, order, health, or morals or the
fundamental rights and freedoms of others.
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and,
when applicable, legal guardians to ensure the religious and moral education of their children in
conformity with their own convictions.
Article 19
1. Everyone shall have the right to hold opinions without interference.
2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek,
receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or
in print, in the form of art, or through any other media of his choice.
3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and
responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are
provided by law and are necessary:
(a) For respect of the rights or reputations of others;
(b) For the protection of national security or of public order (ordre public), or of public health or
morals.
Article 20
1. Any propaganda for war shall be prohibited by law.
2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination,
hostility or violence shall be prohibited by law.
Article 21
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of
this right other than those imposed in conformity with the law and which are necessary in a
democratic society in the interests of national security or public safety, public order (ordre public), the
protection of public health or morals or the protection of the rights and freedoms of others.
Article 22
1. Everyone shall have the right to freedom of association with others, including the right to form and
join trade unions for the protection of his interests.
2. No restrictions may be placed on the exercise of this right other than those which are prescribed by
law and which are necessary in a democratic society in the interests of national security or public
safety, public order (ordre public), the protection of public health or morals or the protection of the
rights and freedoms of others. This article shall not prevent the imposition of lawful restrictions on
members of the armed forces and of the police in their exercise of this right.
3. Nothing in this article shall authorize States Parties to the International Labour Organisation
Convention of 1948 concerning Freedom of Association and Protection of the Right to Organize to take
legislative measures which would prejudice, or to apply the law in such a manner as to prejudice, the
guarantees provided for in that Convention.

Note the qualifications and balancing in the ICCPR and the mandate for the prohibition of hate speech.
When the United States adopted the ICCPR in 1992, it specifically included a reservation regarding
Article 20:
That Article 20 does not authorize or require legislation or other action by the United States that would
restrict the right of free speech and association protected by the Constitution and laws of the United
States.

U.S. reservations, declarations, and understandings, International Covenant on Civil and Political
Rights, 138 Cong. Rec. S4781-01 (daily ed., April 2, 1992). The Senate Committee Report additionally
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implicitly rejected any balancing of free expression rights against other rights even if allowed under
the ICCPR in favor of adherence to First Amendment doctrine, Senate Comm. on Foreign Relations,
Report on the International Covenant on Civil and Political Rights, S. Exec. Rep. No . 23, 1 (102nd Sess.
1992).
The Constitution of the Republic of South Africa (1996) is considered among the most progressive in
the world. Consider its relevant provisions:
15. Freedom of religion, belief and opinion
1.
Everyone has the right to freedom of conscience, religion, thought, belief and opinion.
2.
Religious observances may be conducted at state or state-aided institutions, provided that
a. those observances follow rules made by the appropriate public authorities;
b. they are conducted on an equitable basis; and
c. attendance at them is free and voluntary.
3.
a. This section does not prevent legislation recognising
i. marriages concluded under any tradition, or a system of religious, personal or family law; or
ii. systems of personal and family law under any tradition, or adhered to by persons
professing a particular religion.
b. Recognition in terms of paragraph (a) must be consistent with this section and the other provisions
of the Constitution.
16. Freedom of expression
1.
Everyone has the right to freedom of expression, which includes
a. freedom of the press and other media;
b. freedom to receive or impart information or ideas;
c. freedom of artistic creativity; and
d.academic freedom and freedom of scientific research.
2.
The right in subsection (1) does not extend to
a. propaganda for war;
b. incitement of imminent violence; or
c. advocacy of hatred that is based on race, ethnicity, gender or religion, and that constitutes incitement
to cause harm.
17. Assembly, demonstration, picket and petition
Everyone has the right, peacefully and unarmed, to assemble, to demonstrate, to picket and to present
petitions.
18. Freedom of association
Everyone has the right to freedom of association.
19. Political rights
1.
Every citizen is free to make political choices, which includes the right
a. to form a political party;
b. to participate in the activities of, or recruit members for, a political party; and
c. to campaign for a political party or cause.

IV. State Action and Incorporation Against the
States

The United States Constitution has two important features that are vital in the consideration of its
First Amendment.
First, there is the requirement of “state action” as evinced by the opening words of the text: Congress
shall make no law. Like other constitutional protections (with the notable exception of the Thirteenth
Amendment), the First Amendment is a guarantee against infringement by the government rather
than private actors.

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The First Amendment is notable, however, in that people often invoke it against when they are
“silenced” by criticism or even interrupted on a talk show.
Second, there is the question of federalism. Importantly, while the First Amendment constrains only
government, it constrains all governments. Although the text begins “Congress shall make not law,”
the provisions of the First Amendment have been applied to the states (and thus their subdivisions)
through the process of selective incorporation under the Fourteenth Amendment’s Due Process
Clause.
The First Amendment’s Speech Clause is considered the first of the rights in the Bill of Rights to be
incorporated against the states, see Gitlow v. New York, 268 U.S. 652 (1925). In Near v. Minnesota, 283
U.S. 697, 707 (1931), the Court noted discussed the Press Clause and stated it “is no longer open to
doubt that the liberty of the press and of speech is within the liberty safeguarded by the due process
clause of the Fourteenth Amendment from invasion by state action.”
The Religion Clauses were likewise deemed applicable to the states in the Twentieth Century. In
Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), the Court held that the “fundamental concept of
liberty embodied” in the Due Process Clause of the Fourteenth Amendment “embraces the liberties
guaranteed by the First Amendment.” It continued, the “First Amendment declares that Congress
shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.
The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress
to enact such laws.” However, because Cantwell did not involve the Establishment Clause, the case of
Everson v. Board of Education, 330 U.S. 1 (1947), decided seven years later, is generally considered
authority for the proposition that the Establishment Clause applies with equal force to the states as
to the federal government.
There is one current United States Supreme Court Justice who has expressed the opinion that the
Establishment Clause is not incorporated against the states. See Town of Greece v. Galloway, 572 U.S.
__ (2015) (Thomas, J., concurring); Elk Grove Unified School Dist. v. Newdow, 542 U.S. 1, 49-51 (2004)
(Thomas, J., concurring in judgment); Van Orden v. Perry, 545 U. S. 677–693 (2005) (Thomas, J.,
concurring); Zelman v. Simmons-Harris, 536 U. S. 639–680 (2002) (Thomas, J., concurring). Justice
Thomas has argued that unlike the Free Exercise Clause, which protects an individual right, the “text
and history of the Establishment Clause strongly suggest that it is a federalism provision intended to
prevent Congress from interfering with state establishments.” Elk Grove, 542 U.S. at 49. Under
Thomas’s view, states could “establish” a religion, or, at the very least, the actions of states regarding
establishment should be analyzed with less rigor. The vast majority of First Amendment
practitioners and scholars, as well as judges, consider the Establishment Clause to be applicable to
the states and their subdivisions.

V. History: The Firstness of the First Amendment

It is often argued that the First Amendment contains the “first freedoms” and were so highly valued
by the Framers of the Constitution that they were placed first.
However, the history is a bit more nuanced. Consider the original Articles of Amendment to the
Constitution:
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of
March, one thousand seven hundred and eighty-nine (1789). Articles in addition to, and Amendment of
the Constitution of the United States of America, proposed by Congress and ratified by the Legislatures
of the several States, pursuant to the fifth Article of the original Constitution.
Original Amendments PASSED by Congress to be ratified by States
Article the first ... After the first enumeration required by the first article of the Constitution, there shall
be one Representative for every thirty thousand, until the number shall amount to one hundred, after
which the proportion shall be so regulated by Congress, that there shall be not less than one hundred
Representatives, nor less than one Representative for every forty thousand persons, until the number
of Representatives shall amount to two hundred; after which the proportion shall be so regulated by
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Congress, that there shall not be less than two hundred Representatives, nor more than one
Representative for every fifty thousand persons.
Article the second ... No law, varying the compensation for the services of the Senators and
Representatives, shall take effect, until an election of Representatives shall have intervened.
Article the third ... Congress shall make no law respecting an establishment of religion, or prohibiting
the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress of grievances.

Articles/Amendments One and Two are not ratified by the States. Thus, Article/Amendment Third
becomes Article/Amendment First: the current First Amendment. (Note that Article/Amendment
Two became the 27th Amendment in 1992.)
Nevertheless, the Framers of the Constitution were undoubtedly influenced by the history of England
and their own experiences regarding both speech and religion. In terms of speech and press, the
“licensing” of publications and criminal prosecutions for sedition were important. In terms of religion,
the violent history of religious conflicts in Great Britain and the rest of Europe were paramount,
especially given that the some of the states were colonies founded on religious motives.

VI. Theoretical Perspectives

In addition to the usual theoretical perspectives governing constitutional interpretation such as
originalism and living constitutionalism, the First Amendment provokes some distinct theoretical
perspectives.
The absolutist perspective of the First Amendment gains credence from the language of the
Amendment: Congress shall make “no law” as compared to other restraints in the Bill of Rights such
as the Fourth Amendment’s language of “unreasonable searches and seizures.” While this absolutist
perspective has not prevailed, it is often evoked, explicitly or implicitly, in First Amendment
arguments.
The notion of free speech is often premised on a “marketplace of ideas” metaphor that appeared in
early cases. This capitalist sentiment conceptualizes a free enterprise competition requiring little, if
any, government regulation. Another influential view is that of Alexander Meiklejohn which envisions
a more proactive view for government in ensuring democratic processes; this might mean that the
government regulates abusive speech, for example, in the interest of democracy. A good discussion
comparing these two views is Robert Post, Reconciling Theory and Doctrine in First Amendment
Jurisprudence, 88 Cal. L. Rev. 2353 (2000). Other views highlight an individualistic understanding of
free speech, akin to other rights accorded to autonomous persons.
However, no overarching theoretical perspective explains the disarray of free speech theories and
doctrines, especially because the distinctions between theory and doctrine are often blurry. Even the
question of whether expression qualifies as speech can be complicated. The categorization of types of
expression - - - for example political or commercial - - - is debated. Moreover, the exclusion of some
types of speech, for example obscenity, is also fraught. Concepts such as “chilling speech” or
“secondary effects” waver between theory and doctrine.
Similarly, the status of religion is not amenable to an overall theoretical perspective. In some senses,
the two religion clauses are at odds if each is extended to its logical conclusion. The Establishment
Clause, more accurately called the anti-Establishment Clause, generally means that the government
should not put its imprimatur on religion. However, the Free Exercise Clause generally means that
the government should accommodate religious beliefs. The issue is often when “accommodation,”
especially of majority beliefs, becomes an “establishment” of religion objectionable to minority
religious believers or nonbelievers.
Additionally, protection of religious expression has been subject to legislative action. These
protections have prompted several important and some controversial recent United States Supreme
Court cases (included in Chapter Fourteen).
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VII. The Challenges of First Amendment Cases and
Controversies
There are several challenges to any study of the First Amendment.
First, many First Amendment cases, especially those involving speech and speech-related issues,
evoke numerous doctrines. At times, the issue is what doctrine should apply. As Professor Julie Nice
has explained, a typical dispute can involve many of First Amendment doctrines allowing the Court to
“choose from among these various doctrines to frame and structure its analysis” with an eye toward
the likely result. Julie A. Nice, How Equality Constitutes Liberty: The Alignment of CLS v. Martinez, 38
HASTINGS CONST. L.Q. 631, 639-40 (2011).
In her analysis of Christian Legal Society v. Martinez (excerpted in Chapter Seven), Professor Nice
contends that Martinez is a “textbook example” of the problem. In Martinez, the Court could have
focused on the law school’s policy as content or even viewpoint based OR whether the law school
created a public forum OR the public university setting OR the conditions of the benefit of student
group recognition OR compelled speech or compelled association OR free exercise of religion OR on
the prohibition of establishment of religion. Professor Nice suggests that a fundamental question is
whether the Court has been consistent in selecting which doctrine will frame its decision. Id.
There is a good argument that the Court has not been consistent in selecting doctrinal frames.
Martinez may be a “textbook example,” but it is not at all unusual. Many - - - perhaps even the
majority - - - of cases involve a choice of doctrine. This makes studying and litigating First
Amendment cases challenging.
A second challenge is doctrinal incoherence even within distinct doctrines. This is not to say that
there are not settled tests; there are. This makes the First Amendment a consistent choice for those
drafting Bar Examination questions! Nevertheless, the Court is often undermining its own previously
announced tests.
Third, the sheer number, the often extensive length, and the regularity of fractured and closely
divided opinions by the United States Supreme Court can make First Amendment study challenging.
Until the First World War, the Court devoted little attention to the First Amendment, but since then it
has decided more than 500 cases that discuss the First Amendment. Of course, not all of these cases
are landmark cases or rest exclusively on First Amendment grounds. Nevertheless, there is much
material.
Fourth and finally, other federal courts as well as state courts routinely decide First Amendment
cases, many of which are groundbreaking or involve cutting-edge and unresolved questions of law.
These four challenges implicate this Casebook.
First, because of numerous doctrinal frames within a single case, there is little agreement about
organization and placement of cases within that organization. Thus, casebooks and study aids deploy
a dizzying array of schemes and references to illustrative cases. Generally speaking, however, there is
sharp divide between the Speech and Religion Clauses (although a case may address both of these).
Additionally, within speech, there are distinct doctrines governing the press, public employees and
public school students, and commercial speech, although these doctrines often overlap with other
doctrines. This Casebook deploys an organization that has worked well in previous years and points
to doctrinal selection issues as they occur.
Second, and not unlike other constitutional cases, the Court’s articulation of a test in one case may be
undermined by later cases. This Casebook clearly identifies the landmark “tests” and then examines
their status.
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Third, the number and length of the Supreme Court’s First Amendment cases makes for difficult
editing choices. The major cases are all included or referenced. The Casebook’s inclusion preference
has generally been toward more recent cases and these cases have been more lightly edited to
provide more context for current controversies.
Fourth and finally, the Notes reference lower federal court and state court cases. These cases often
provide important context for developing doctrine and issues.

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Part I: The Speech Clauses

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Chapter Two: PROTECTIONS
POLITICAL SPEECH

FOR

This chapter considers the foundations of political speech, including the earliest criminalization of
speech, how the rhetoric of “clear and present danger” develops into doctrine, the problem of
criminalizing “offensive” speech, and distinguishing protected advocacy from speech that can be
criminalized. The chapter concludes with the Court’s controversial 2010 opinion in Holder v.
Humanitarian Law Project.

I.

The Alien and Sedition Acts

Signed into law by President John Adams, who reportedly later came to regret it, the “Alien and
Sedition Acts” are an example of laws enacted during the “founding generation.”

The Alien Act: An Act Respecting Alien Enemies
APPROVED July 6, 1798
SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America
in Congress assembled, That whenever there shall be a declared war between the United States and
any foreign nation or government, or any invasion or predatory incursion shall be perpetrated,
attempted, or threatened against the territory of the United States, by any foreign nation or
government, and the President of the United States shall make public proclamation of the event, all
natives, citizens, denizens, or subjects of the hostile nation or government, being males of the age of
fourteen years and upwards, who shall be within the United States, and not actually naturalized, shall
be liable to be apprehended, restrained, secured and removed, as alien enemies. And the President of
the United States shall be, and he is hereby authorized, in any event, as aforesaid, by his proclamation
thereof, or other public act, to direct the conduct to be observed, on the part of the United States,
towards the aliens who shall become liable, as aforesaid; the manner and degree of the restraint to
which they shall be subject, and in what cases, and upon what security their residence shall be
permitted, and to provide for the removal of those, who, not being permitted to reside within the
United States, shall refuse or neglect to depart therefrom; and to establish any other regulations
which shall be found necessary in the premises and for the public safety: Provided, that aliens
resident within the United States, who shall become liable as enemies, in the manner aforesaid, and
who shall not be chargeable with actual hostility, or other crime against the public safety, shall be
allowed, for the recovery, disposal, and removal of their goods and effects, and for their departure,
the full time which is, or shall be stipulated by any treaty, where any shall have been between the
United States, and the hostile nation or government, of which they shall be natives, citizens, denizens
or subjects: and where no such treaty shall have existed, the President of the United States may
ascertain and declare such reasonable time as may be consistent with the public safety, and
according to the dictates of humanity and national hospitality.
SEC. 2. And be it further enacted, That after any proclamation shall be made as aforesaid, it shall be
the duty of the several courts of the United States, and of each state, having criminal jurisdiction, and
of the several judges and justices of the courts of the United States, and they shall be, and are hereby
respectively, authorized upon complaint, against any alien or alien enemies, as aforesaid, who shall
be resident and at large within such jurisdiction or district, to the danger of the public peace or safety,
and contrary to the tenor or intent of such proclamation, or other regulations which the President of
the United States shall and may establish in the premises, to cause such alien or aliens to be duly
apprehended and convened before such court, judge or justice; and after a full examination and
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hearing on such complaint. and sufficient cause therefor appearing, shall and may order such alien or
aliens to be removed out of the territory of the United States, or to give sureties of their good
behaviour, or to be otherwise restrained, conformably to the proclamation or regulations which shall
and may be established as aforesaid, and may imprison, or otherwise secure such alien or aliens,
until the order which shall and may be made, as aforesaid, shall be performed.
SEC. 3. And be it further enacted, That it shall be the duty of the marshal of the district in which any
alien enemy shall be apprehended, who by the President of the United States, or by order of any court,
judge or justice, as aforesaid, shall be required to depart, and to be removed, as aforesaid, to provide
therefor, and to execute such order, by himself or his deputy, or other discreet person or persons to
be employed by him, by causing a removal of such alien out of the territory of the United States; and
for such removal the marshal shall have the warrant of the President of the United States, or of the
court, judge or justice ordering the same, as the case may be.

The Sedition Act: An Act in Addition to the Act, Entitled
"An Act for the Punishment of Certain Crimes Against the
United States”
APPROVED July 14, 1798
SECTION 1. Be it enacted by the Senate and House of Representatives of the United States of America,
in Congress assembled, That if any persons shall unlawfully combine or conspire together, with
intent to oppose any measure or measures of the government of the United States, which are or shall
be directed by proper authority, or to impede the operation of any law of the United States, or to
intimidate or prevent any person holding a place or office in or under the government of the United
States, from undertaking, performing or executing his trust or duty, and if any person or persons,
with intent as aforesaid, shall counsel, advise or attempt to procure any insurrection, riot, unlawful
assembly, or combination, whether such conspiracy, threatening, counsel, advice, or attempt shall
have the proposed effect or not, he or they shall be deemed guilty of a high misdemeanor, and on
conviction, before any court of the United States having jurisdiction thereof, shall be punished by a
fine not exceeding five thousand dollars, and by imprisonment during a term not less than six months
nor exceeding five years; and further, at the discretion of the court may be ho]den to find sureties for
his good behaviour in such sum, and for such time, as the said court may direct.
SEC. 2. And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause
or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid
in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings
against the government of the United States, or either house of the Congress of the United States, or
the President of the United States, with intent to defame the said government, or either house of the
said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute;
or to excite against them, or either or any of them, the hatred of the good people of the United States,
or to stir up sedition within the United States, or to excite any unlawful combinations therein, for
opposing or resisting any law of the United States, or any act of the President of the United States,
done in pursuance of any such law, or of the powers in him vested by the constitution of the United
States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile
designs of any foreign nation against United States, their people or government, then such person,
being thereof convicted before any court of the United States having jurisdiction thereof, shall be
punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two
years.
SEC. 3. And be it further enacted and declared, That if any person shall be prosecuted under this act,
for the writing or publishing any libel aforesaid, it shall be lawful for the defendant, upon the trial of
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the cause, to give in evidence in his defence, the truth of the matter contained in Republication
charged as a libel. And the jury who shall try the cause, shall have a right to determine the law and
the fact, under the direction of the court, as in other cases.
SEC. 4. And be it further enacted, That this act shall continue and be in force until the third day of
March, one thousand eight hundred and one, and no longer: Provided, that the expiration of the act
shall not prevent or defeat a prosecution and punishment of any offence against the law, during the
time it shall be in force.

Notes

1.
Are these Acts consistent with our contemporary ideas of the high regard in which the
framers held the First Amendment? How do ideas of criticism of the government and “citizenship”
merge in the Acts?
2.
Consider 50 U.S.C. §§ 21–24 which remains in effect and allows for the “restraint, regulation,
and removal” of “aliens” who are “not actually naturalized” in times of war or when the President
makes a proclamation.
3.
Consider the proposed “Violent Radicalization and Homegrown Terrorism Prevention Act”
which would seek to address “Ideologically Based Violence - the use, planned use, or threatened use
of force or violence by a group or individual to promote the group or individual's political, religious,
or social beliefs.”

II.

Clear and Present Dangers
A.

The Challenge of World War I
Schenck v. United States
249 U.S. 47 (1919)

MR. JUSTICE HOLMES DELIVERED THE OPINION OF THE COURT.
This is an indictment in three counts. The first charges a conspiracy to violate the Espionage Act of
June 15, 1917, c. 30, § 3, 40 Stat. 217, 219, by causing and attempting to cause insubordination, &c., in
the military and naval forces of the United States, and to obstruct the recruiting and enlistment
service of the United States, when the United States was at war with the German Empire, to-wit, that
the defendants willfully conspired to have printed and circulated to men who had been called and
accepted for military service under the Act of May 18, 1917, a document set forth and alleged to be
calculated to cause such insubordination and obstruction. The count alleges overt acts in pursuance
of the conspiracy, ending in the distribution of the document set forth. The second count alleges a
conspiracy to commit an offence against the United States, to-wit, to use the mails for the
transmission of matter declared to be nonmailable by Title XII, § 2 of the Act of June 15, 1917, to-wit,
the above mentioned document, with an averment of the same overt acts. The third count charges an
unlawful use of the mails for the transmission of the same matter and otherwise as above. The
defendants were found guilty on all the counts. They set up the First Amendment to the Constitution
forbidding Congress to make any law abridging the freedom of speech, or of the press, and bringing
the case here on that ground have argued some other points also of which we must dispose.
It is argued that the evidence, if admissible, was not sufficient to prove that the defendant Schenck
was concerned in sending the documents. According to the testimony, Schenck said he was general
secretary of the Socialist party, and had charge of the Socialist headquarters from which the
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documents were sent. He identified a book found there as the minutes of the Executive Committee of
the party. The book showed a resolution of August 13, 1917, that 15,000 leaflets should be printed on
the other side of one of them in use, to be mailed to men who had passed exemption boards, and for
distribution. Schenck personally attended to the printing. On August 20, the general secretary's
report said "Obtained new leaflets from printer and started work addressing envelopes" &c., and
there was a resolve that Comrade Schenck be allowed $125 for sending leaflets through the mail. He
said that he had about fifteen or sixteen thousand printed. There were files of the circular in question
in the inner office which he said were printed on the other side of the one sided circular, and were
there for distribution. Other copies were proved to have been sent through the mails to drafted men.
Without going into confirmatory details that were proved, no reasonable man could doubt that the
defendant Schenck was largely instrumental in sending the circulars about.* * *
The document in question, upon its first printed side, recited the first section of the Thirteenth
Amendment, said that the idea embodied in it was violated by the Conscription Act, and that a
conscript is little better than a convict. In impassioned language, it intimated that conscription was
despotism in its worst form, and a monstrous wrong against humanity in the interest of Wall Street's
chosen few. It said "Do not submit to intimidation," but in form, at least, confined itself to peaceful
measures such as a petition for the repeal of the act. The other and later printed side of the sheet was
headed "Assert Your Rights." It stated reasons for alleging that anyone violated the Constitution
when he refused to recognize "your right to assert your opposition to the draft," and went on
If you do not assert and support your rights, you are helping to deny or disparage rights which it is the
solemn duty of all citizens and residents of the United States to retain.

It described the arguments on the other side as coming from cunning politicians and a mercenary
capitalist press, and even silent consent to the conscription law as helping to support an infamous
conspiracy. It denied the power to send our citizens away to foreign shores to shoot up the people of
other lands, and added that words could not express the condemnation such cold-blooded
ruthlessness deserves, &c., &c., winding up, "You must do your share to maintain, support and uphold
the rights of the people of this country." Of course, the document would not have been sent unless it
had been intended to have some effect, and we do not see what effect it could be expected to have
upon persons subject to the draft except to influence them to obstruct the carrying of it out. The
defendants do not deny that the jury might find against them on this point.
But it is said, suppose that that was the tendency of this circular, it is protected by the First
Amendment to the Constitution. Two of the strongest expressions are said to be quoted respectively
from well known public men. It well may be that the prohibition of laws abridging the freedom of
speech is not confined to previous restraints, although to prevent them may have been the main
purpose, as intimated in Patterson v. Colorado (1907). We admit that, in many places and in ordinary
times, the defendants, in saying all that was said in the circular, would have been within their
constitutional rights. But the character of every act depends upon the circumstances in which it is
done. The most stringent protection of free speech would not protect a man in falsely shouting fire in
a theatre and causing a panic. It does not even protect a man from an injunction against uttering
words that may have all the effect of force. The question in every case is whether the words used are
used in such circumstances and are of such a nature as to create a clear and present danger that they
will bring about the substantive evils that Congress has a right to prevent. It is a question of
proximity and degree. When a nation is at war, many things that might be said in time of peace are
such a hindrance to its effort that their utterance will not be endured so long as men fight, and that
no Court could regard them as protected by any constitutional right. It seems to be admitted that, if
an actual obstruction of the recruiting service were proved, liability for words that produced that
effect might be enforced. The statute of 1917, in § 4, punishes conspiracies to obstruct, as well as
actual obstruction. If the act (speaking, or circulating a paper), its tendency, and the intent with
which it is done are the same, we perceive no ground for saying that success alone warrants making
the act a crime. Indeed, that case might be said to dispose of the present contention if the precedent
covers all media concludendi. But, as the right to free speech was not referred to specially, we have
thought fit to add a few words.

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It was not argued that a conspiracy to obstruct the draft was not within the words of the Act of 1917.
The words are "obstruct the recruiting or enlistment service," and it might be suggested that they
refer only to making it hard to get volunteers. Recruiting heretofore usually having been
accomplished by getting volunteers, the word is apt to call up that method only in our minds. But
recruiting is gaining fresh supplies for the forces, as well by draft as otherwise. It is put as an
alternative to enlistment or voluntary enrollment in this act. * * *
Judgments affirmed.

Abrams v. United States
250 U.S. 616 (1919)
JUSTICE CLARKE DELIVERED THE OPINION OF THE COURT; JUSTICE HOLMES FILED A DISSENTING OPINION IN WHICH
JUSTICE BRANDEIS JOINED.
MR. JUSTICE CLARKE DELIVERED THE OPINION OF THE COURT.
On a single indictment, containing four counts, the five plaintiffs in error, hereinafter designated the
defendants, were convicted of conspiring to violate provisions of the Espionage Act of Congress.
Each of the first three counts charged the defendants with conspiring, when the United States was at
war with the Imperial Government of Germany, to unlawfully utter, print, write and publish: in the
first count, "disloyal, scurrilous and abusive language about the form of Government of the United
States;" in the second count, language "intended to bring the form of Government of the United States
into contempt, scorn, contumely and disrepute;" and in the third count, language "intended to incite,
provoke and encourage resistance to the United States in said war." The charge in the fourth count
was that the defendants conspired,
when the United States was at war with the Imperial German Government, unlawfully and willfully, by
utterance, writing, printing and publication, to urge, incite and advocate curtailment of production of
things and products, to-wit, ordnance and ammunition, necessary and essential to the prosecution of
the war.

The offenses were charged in the language of the act of Congress.
* * * [The Court excerpted the leaflets].
These excerpts sufficiently show that, while the immediate occasion for this particular outbreak of
lawlessness on the part of the defendant alien anarchists may have been resentment caused by our
Government's sending troops into Russia as a strategic operation against the Germans on the eastern
battle front, yet the plain purpose of their propaganda was to excite, at the supreme crisis of the war,
disaffection, sedition, riots, and, as they hoped, revolution, in this country for the purpose of
embarrassing, and, if possible, defeating the military plans of the Government in Europe. A technical
distinction may perhaps be taken between disloyal and abusive language applied to the form of our
government or language intended to bring the form of our government into contempt and disrepute,
and language of like character and intended to produce like results directed against the President
and Congress, the agencies through which that form of government must function in time of war. But
it is not necessary to a decision of this case to consider whether such distinction is vital or merely
formal, for the language of these circulars was obviously intended to provoke and to encourage
resistance to the United States in the war, as the third count runs, and the defendants, in terms,
plainly urged and advocated a resort to a general strike of workers in ammunition factories for the
purpose of curtailing the production of ordnance and munitions necessary and essential to the
prosecution of the war as is charged in the fourth count. Thus, it is clear not only that some evidence,
but that much persuasive evidence, was before the jury tending to prove that the defendants were
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guilty as charged in both the third and fourth counts of the indictment, and, under the long
established rule of law hereinbefore stated, the judgment of the District Court must be
Affirmed.
MR. JUSTICE HOLMES DISSENTING [MR. JUSTICE BRANDEIS JOINS].
This indictment is founded wholly upon the publication of two leaflets which I shall describe in a
moment. The first count charges a conspiracy pending the war with Germany to publish abusive
language about the form of government of the United States, laying the preparation and publishing of
the first leaflet as overt acts. The second count charges a conspiracy pending the war to publish
language intended to bring the form of government into contempt, laying the preparation and
publishing of the two leaflets as overt acts. The third count alleges a conspiracy to encourage
resistance to the United States in the same war, and to attempt to effectuate the purpose by
publishing the same leaflets. The fourth count lays a conspiracy to incite curtailment of production of
things necessary to the prosecution of the war and to attempt to accomplish it by publishing the
second leaflet, to which I have referred.
The first of these leaflets says that the President's cowardly silence about the intervention in Russia
reveals the hypocrisy of the plutocratic gang in Washington. It intimates that "German militarism
combined with allied capitalism to crush the Russian evolution " -- goes on that the tyrants of the
world fight each other until they see a common enemy -- working class enlightenment, when they
combine to crush it, and that now militarism and capitalism combined, though not openly, to crush
the Russian revolution. It says that there is only one enemy of the workers of the world, and that is
capitalism; that it is a crime for workers of America, &c., to fight the workers' republic of Russia, and
ends "Awake! Awake, you Workers of the World, Revolutionists!" A note adds
It is absurd to call us pro-German. We hate and despise German militarism more than do you
hypocritical tyrants. We have more reasons for denouncing German militarism than has the coward of
the White House.

The other leaflet, headed "Workers -- Wake Up," with abusive language says that America together
with the Allies will march for Russia to help the Czecko-Slovaks in their struggle against the
Bolsheviki, and that this time the hypocrites shall not fool the Russian emigrants and friends of
Russia in America. It tells the Russian emigrants that they now must spit in the face of the false
military propaganda by which their sympathy and help to the prosecution of the war have been
called forth, and says that, with the money they have lent or are going to lend, "they will make bullets
not only for the Germans, but also for the Workers Soviets of Russia," and further,
Workers in the ammunition factories, you are producing bullets, bayonets, cannon, to murder not only
the Germans, but also your dearest, best, who are in Russia and are fighting for freedom.

It then appeals to the same Russian emigrants at some length not to consent to the "inquisitionary
expedition to Russia," and says that the destruction of the Russian revolution is "the politics of the
march to Russia." The leaflet winds up by saying "Workers, our reply to this barbaric intervention
has to be a general strike!" and, after a few words on the spirit of revolution, exhortations not to be
afraid, and some usual tall talk ends, "Woe unto those who will be in the way of progress. Let
solidarity live! The Rebels."
No argument seems to me necessary to show that these pronunciamentos in no way attack the form
of government of the United States, or that they do not support either of the first two counts. What
little I have to say about the third count may be postponed until I have considered the fourth. With
regard to that, it seems too plain to be denied that the suggestion to workers in the ammunition
factories that they are producing bullets to murder their dearest, and the further advocacy of a
general strike, both in the second leaflet, do urge curtailment of production of things necessary to the
prosecution of the war within the meaning of the Act of May 16, 1918, c. 75, 40 Stat. 553, amending §
3 of the earlier Act of 1917. But to make the conduct criminal, that statute requires that it should be
"with intent by such curtailment to cripple or hinder the United States in the prosecution of the war."
It seems to me that no such intent is proved.

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I am aware, of course, that the word intent as vaguely used in ordinary legal discussion means no
more than knowledge at the time of the act that the consequences said to be intended will ensue.
Even less than that will satisfy the general principle of civil and criminal liability. A man may have to
pay damages, may be sent to prison, at common law might be hanged, if, at the time of his act, he
knew facts from which common experience showed that the consequences would follow, whether he
individually could foresee them or not. But, when words are used exactly, a deed is not done with
intent to produce a consequence unless that consequence is the aim of the deed. It may be obvious,
and obvious to the actor, that the consequence will follow, and he may be liable for it even if he
regrets it, but he does not do the act with intent to produce it unless the aim to produce it is the
proximate motive of the specific act, although there may be some deeper motive behind.
It seems to me that this statute must be taken to use its words in a strict and accurate sense. They
would be absurd in any other. A patriot might think that we were wasting money on aeroplanes, or
making more cannon of a certain kind than we needed, and might advocate curtailment with success,
yet, even if it turned out that the curtailment hindered and was thought by other minds to have been
obviously likely to hinder the United States in the prosecution of the war, no one would hold such
conduct a crime. I admit that my illustration does not answer all that might be said, but it is enough
to show what I think, and to let me pass to a more important aspect of the case. I refer to the First
Amendment to the Constitution, that Congress shall make no law abridging the freedom of speech.
I never have seen any reason to doubt that the questions of law that alone were before this Court in
the cases of Schenck, Frohwerk and Debs, were rightly decided. I do not doubt for a moment that, by
the same reasoning that would justify punishing persuasion to murder, the United States
constitutionally may punish speech that produces or is intended to produce a clear and imminent
danger that it will bring about forthwith certain substantive evils that the United States
constitutionally may seek to prevent. The power undoubtedly is greater in time of war than in time of
peace, because war opens dangers that do not exist at other times.
But, as against dangers peculiar to war, as against others, the principle of the right to free speech is
always the same. It is only the present danger of immediate evil or an intent to bring it about that
warrants Congress in setting a limit to the expression of opinion where private rights are not
concerned. Congress certainly cannot forbid all effort to change the mind of the country. Now nobody
can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more,
would present any immediate danger that its opinions would hinder the success of the government
arms or have any appreciable tendency to do so. Publishing those opinions for the very purpose of
obstructing, however, might indicate a greater danger, and, at any rate, would have the quality of an
attempt. * * * It is necessary where the success of the attempt depends upon others because, if that
intent is not present, the actor's aim may be accomplished without bringing about the evils sought to
be checked. An intent to prevent interference with the revolution in Russia might have been satisfied
without any hindrance to carrying on the war in which we were engaged.
I do not see how anyone can find the intent required by the statute in any of the defendants' words.
The second leaflet is the only one that affords even a foundation for the charge, and there, without
invoking the hatred of German militarism expressed in the former one, it is evident from the
beginning to the end that the only object of the paper is to help Russia and stop American
intervention there against the popular government -- not to impede the United States in the war that
it was carrying on. To say that two phrases, taken literally, might import a suggestion of conduct that
would have interference with the war as an indirect and probably undesired effect seems to me by no
means enough to show an attempt to produce that effect.
* * * In this case, sentences of twenty years' imprisonment have been imposed for the publishing of
two leaflets that I believe the defendants had as much right to publish as the Government has to
publish the Constitution of the United States now vainly invoked by them. Even if I am technically
wrong, and enough can be squeezed from these poor and puny anonymities to turn the color of legal
litmus paper, I will add, even if what I think the necessary intent were shown, the most nominal
punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to
suffer not for what the indictment alleges, but for the creed that they avow -- a creed that I believe to
be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was
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held here, but which, although made the subject of examination at the trial, no one has a right even to
consider in dealing with the charges before the Court.
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your
premises or your power, and want a certain result with all your heart, you naturally express your
wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that
you think the speech impotent, as when a man says that he has squared the circle, or that you do not
care wholeheartedly for the result, or that you doubt either your power or your premises. But when
men have realized that time has upset many fighting faiths, they may come to believe even more than
they believe the very foundations of their own conduct that the ultimate good desired is better
reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself
accepted in the competition of the market, and that truth is the only ground upon which their wishes
safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all
life is an experiment. Every year, if not every day, we have to wager our salvation upon some
prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that
we should be eternally vigilant against attempts to check the expression of opinions that we loathe
and believe to be fraught with death, unless they so imminently threaten immediate interference
with the lawful and pressing purposes of the law that an immediate check is required to save the
country. I wholly disagree with the argument of the Government that the First Amendment left the
common law as to seditious libel in force. History seems to me against the notion. I had conceived
that the United States, through many years, had shown its repentance for the Sedition Act of 1798, by
repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the
correction of evil counsels to time warrants making any exception to the sweeping command,
"Congress shall make no law . . . abridging the freedom of speech." Of course, I am speaking only of
expressions of opinion and exhortations, which were all that were uttered here, but I regret that I
cannot put into more impressive words my belief that, in their conviction upon this indictment, the
defendants were deprived of their rights under the Constitution of the United States.

Note: Justice Oliver Wendell Holmes

Justice Holmes wrote the Court’s decision in Schenck v. United States, decided March 3, 1919. In the
next Term, Justice Holmes wrote the now-famous dissent in Abrams v. United States, decided
November 20, 1919.
Scholars posit various explanations for Holmes’ change over the summer. One explanation is Holmes’
discussions with his friend Judge Learned Hand. Another view is that Holmes’ views did not so much
change as become refined; Holmes never repudiated Schenck. What do you think of the differences
between Holmes’ opinions in the two cases?

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Gitlow v. New York
268 U.S. 652 (1925)
JUSTICE SANFORD DELIVERED THE OPINION OF THE COURT; JUSTICE HOLMES FILED A DISSENTING OPINION IN WHICH
JUSTICE BRANDEIS JOINED.
MR. JUSTICE SANFORD DELIVERED THE OPINION OF THE COURT.
Benjamin Gitlow was indicted in the Supreme Court of New York, with three others, for the statutory
crime of criminal anarchy. New York Penal Laws, §§ 160, 161.* * * The contention here is that the
statute, by its terms and as applied in this case, is repugnant to the due process clause of the
Fourteenth Amendment. Its material provisions are:
§ 160. Criminal anarchy defined. Criminal anarchy is the doctrine that organized government should be
overthrown by force or violence, or by assassination of the executive head or of any of the executive
officials of government, or by any unlawful means. The advocacy of such doctrine either by word of
mouth or writing is a felony.
§ 161. Advocacy of criminal anarchy. Any person who:
1. By word of mouth or writing advocates, advises or teaches the duty, necessity or propriety of
overthrowing or overturning organized government by force or violence, or by assassination of the
executive head or of any of the executive officials of government, or by any unlawful means; or,
2. Prints, publishes, edits, issues or knowingly circulates, sells, distributes or publicly displays any
book, paper, document, or written or printed matter in any form, containing or advocating, advising or
teaching the doctrine that organized government should be overthrown by force, violence or any
unlawful means
Is guilty of a felony and punishable by imprisonment or fine, or both.

The indictment was in two counts. The first charged that the defendant had advocated, advised and
taught the duty, necessity and propriety of overthrowing and overturning organized government by
force, violence and unlawful means, by certain writings therein set forth entitled "The Left Wing
Manifesto"; the second, that he had printed, published and knowingly circulated and distributed a
certain paper called "The Revolutionary Age," containing the writings set forth in the first count
advocating, advising and teaching the doctrine that organized government should be overthrown by
force, violence and unlawful means.
The following facts were established on the trial by undisputed evidence and admissions: the
defendant is a member of the Left Wing Section of the Socialist Party, a dissenting branch or faction
of that party formed in opposition to its dominant policy of "moderate Socialism." Membership in
both is open to aliens as well as citizens. The Left Wing Section was organized nationally at a
conference in New York City in June, 1919, attended by ninety delegates from twenty different States.
The conference elected a National Council, of which the defendant was a member, and left to it the
adoption of a "Manifesto." This was published in The Revolutionary Age, the official organ of the Left
Wing. The defendant was on the board of managers of the paper, and was its business manager. He
arranged for the printing of the paper, and took to the printer the manuscript of the first issue which
contained the Left Wing Manifesto, and also a Communist Program and a Program of the Left Wing
that had been adopted by the conference. Sixteen thousand copies were printed, which were
delivered at the premises in New York City used as the office of the Revolutionary Age and the
headquarters of the Left Wing, and occupied by the defendant and other officials. These copies were
paid for by the defendant, as business manager of the paper. Employees at this office wrapped and
mailed out copies of the paper under the defendant's direction, and copies were sold from this office.
It was admitted that the defendant signed a card subscribing to the Manifesto and Program of the
Left Wing, which all applicants were required to sign before being admitted to membership; that he
went to different parts of the State to speak to branches of the Socialist Party about the principles of
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the Left Wing and advocated their adoption, and that he was responsible for the Manifesto as it
appeared, that "he knew of the publication, in a general way, and he knew of its publication
afterwards, and is responsible for its circulation."
There was no evidence of any effect resulting from the publication and circulation of the Manifesto.
No witnesses were offered in behalf of the defendant.
Coupled with a review of the rise of Socialism, [the Manifesto] condemned the dominant "moderate
Socialism" for its recognition of the necessity of the democratic parliamentary state; repudiated its
policy of introducing Socialism by legislative measures, and advocated, in plain and unequivocal
language, the necessity of accomplishing the "Communist Revolution" by a militant and
"revolutionary Socialism", based on "the class struggle" and mobilizing the "power of the proletariat
in action," through mass industrial revolts developing into mass political strikes and "revolutionary
mass action", for the purpose of conquering and destroying the parliamentary state and establishing
in its place, through a "revolutionary dictatorship of the proletariat", the system of Communist
Socialism. The then recent strikes in Seattle and Winnipeg were cited as instances of a development
already verging on revolutionary action and suggestive of proletarian dictatorship, in which the
strike-workers were "trying to usurp the functions of municipal government", and revolutionary
Socialism, it was urged, must use these mass industrial revolts to broaden the strike, make it general
and militant, and develop it into mass political strikes and revolutionary mass action for the
annihilation of the parliamentary state.
* * * [Gitlow was convicted and the convictions upheld by the New York courts.]
The sole contention here is, essentially, that as there was no evidence of any concrete result flowing
from the publication of the Manifesto or of circumstances showing the likelihood of such result, the
statute as construed and applied by the trial court penalizes the mere utterance, as such, of
"doctrine" having no quality of incitement, without regard either to the circumstances of its utterance
or to the likelihood of unlawful sequences, and that, as the exercise of the right of free expression
with relation to government is only punishable "in circumstances involving likelihood of substantive
evil," the statute contravenes the due process clause of the Fourteenth Amendment. The argument in
support of this contention rests primarily upon the following propositions: 1st, that the "liberty"
protected by the Fourteenth Amendment includes the liberty of speech and of the press, and 2nd,
that while liberty of expression "is not absolute," it may be restrained "only in circumstances where
its exercise bears a causal relation with some substantive evil, consummated, attempted or likely,"
and as the statute "takes no account of circumstances," it unduly restrains this liberty and is
therefore unconstitutional.
The precise question presented, and the only question which we can consider under this writ of
error, then is whether the statute, as construed and applied in this case by the state courts, deprived
the defendant of his liberty of expression in violation of the due process clause of the Fourteenth
Amendment.
The statute does not penalize the utterance or publication of abstract "doctrine" or academic
discussion having no quality of incitement to any concrete action. It is not aimed against mere
historical or philosophical essays. It does not restrain the advocacy of changes in the form of
government by constitutional and lawful means. What it prohibits is language advocating, advising or
teaching the overthrow of organized government by unlawful means. These words imply urging to
action. Advocacy is defined in the CENTURY DICTIONARY as: "1. The act of pleading for, supporting, or
recommending; active espousal." It is not the abstract "doctrine" of overthrowing organized
government by unlawful means which is denounced by the statute, but the advocacy of action for the
accomplishment of that purpose. It was so construed and applied by the trial judge, who specifically
charged the jury that:
A mere grouping of historical events and a prophetic deduction from them would neither constitute
advocacy, advice or teaching of a doctrine for the overthrow of government by force, violence or
unlawful means. [And] if it were a mere essay on the subject, as suggested by counsel, based upon
deductions from alleged historical events, with no teaching, advice or advocacy of action, it would not
constitute a violation of the statute. . . .
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The Manifesto, plainly, is neither the statement of abstract doctrine nor, as suggested by counsel,
mere prediction that industrial disturbances and revolutionary mass strikes will result
spontaneously in an inevitable process of evolution in the economic system. It advocates and urges in
fervent language mass action which shall progressively foment industrial disturbances and, through
political mass strikes and revolutionary mass action, overthrow and destroy organized
parliamentary government. It concludes with a call to action in these words:
The proletariat revolution and the Communist reconstruction of society -- the struggle for these -- is
now indispensable. . . . The Communist International calls the proletariat of the world to the final
struggle!

This is not the expression of philosophical abstraction, the mere prediction of future events; it is the
language of direct incitement.
The means advocated for bringing about the destruction of organized parliamentary government,
namely, mass industrial revolts usurping the functions of municipal government, political mass
strikes directed against the parliamentary state, and revolutionary mass action for its final
destruction, necessarily imply the use of force and violence, and, in their essential nature, are
inherently unlawful in a constitutional government of law and order. That the jury were warranted in
finding that the Manifesto advocated not merely the abstract doctrine of overthrowing organized
government by force, violence and unlawful means, but action to that end, is clear.
For present purposes, we may and do assume that freedom of speech and of the press which are
protected by the First Amendment from abridgment by Congress are among the fundamental
personal rights and "liberties" protected by the due process clause of the Fourteenth Amendment
from impairment by the States. * * *
It is a fundamental principle, long established, that the freedom of speech and of the press which is
secured by the Constitution does not confer an absolute right to speak or publish, without
responsibility, whatever one may choose, or an unrestricted and unbridled license that gives
immunity for every possible use of language and prevents the punishment of those who abuse this
freedom. 2 STORY ON THE CONSTITUTION, 5th ed., § 1580, p. 634; * * * Reasonably limited, it was said by
Story in the passage cited, this freedom is an inestimable privilege in a free government; without
such limitation, it might become the scourge of the republic.
That a State in the exercise of its police power may punish those who abuse this freedom by
utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb
the public peace, is not open to question.* * *
And, for yet more imperative reasons, a State may punish utterances endangering the foundations of
organized government and threatening its overthrow by unlawful means. These imperil its own
existence as a constitutional State. Freedom of speech and press, said Story (supra) does not protect
disturbances to the public peace or the attempt to subvert the government. It does not protect
publications or teachings which tend to subvert or imperil the government or to impede or hinder it
in the performance of its governmental duties. It does not protect publications prompting the
overthrow of government by force; the punishment of those who publish articles which tend to
destroy organized society being essential to the security of freedom and the stability of the State. And
a State may penalize utterances which openly advocate the overthrow of the representative and
constitutional form of government of the United States and the several States, by violence or other
unlawful means. In short, this freedom does not deprive a State of the primary and essential right of
self-preservation, which, so long as human governments endure, they cannot be denied.* * *
That utterances inciting to the overthrow of organized government by unlawful means present a
sufficient danger of substantive evil to bring their punishment within the range of legislative
discretion is clear. Such utterances, by their very nature, involve danger to the public peace and to
the security of the State. They threaten breaches of the peace, and ultimate revolution. And the
immediate danger is none the less real and substantial because the effect of a given utterance cannot
be accurately foreseen. The State cannot reasonably be required to measure the danger from every
such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire
that, smouldering for a time, may burst into a sweeping and destructive conflagration. It cannot be
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said that the State is acting arbitrarily or unreasonably when, in the exercise of its judgment as to the
measures necessary to protect the public peace and safety, it seeks to extinguish the spark without
waiting until it has enkindled the flame or blazed into the conflagration. It cannot reasonably be
required to defer the adoption of measures for its own peace and safety until the revolutionary
utterances lead to actual disturbances of the public peace or imminent and immediate danger of its
own destruction; but it may, in the exercise of its judgment, suppress the threatened danger in its
incipiency.
We cannot hold that the present statute is an arbitrary or unreasonable exercise of the police power
of the State unwarrantably infringing the freedom of speech or press, and we must and do sustain its
constitutionality.
We need not enter upon a consideration of the English common law rule of seditious libel or the
Federal Sedition Act of 1798, to which reference is made in the defendant's brief. These are so unlike
the present statute that we think the decisions under them cast no helpful light upon the questions
here.
And finding, for the reasons stated, that the statute is not, in itself, unconstitutional, and that it has
not been applied in the present case in derogation of any constitutional right, the judgment of the
Court of Appeals is
Affirmed.
MR. JUSTICE HOLMES, DISSENTING.
MR. JUSTICE BRANDEIS and I are of opinion that this judgment should be reversed. The general principle
of free speech, it seems to me, must be taken to be included in the Fourteenth Amendment, in view of
the scope that has been given to the word "liberty" as there used, although perhaps it may be
accepted with a somewhat larger latitude of interpretation than is allowed to Congress by the
sweeping language that governs or ought to govern the laws of the United States. If I am right, then I
think that the criterion sanctioned by the full Court in Schenck v. United States applies.
The question in every case is whether the words used are used in such circumstances and are of such
a nature as to create a clear and present danger that they will bring about the substantive evils that
[the State] has a right to prevent.
* * * If what I think the correct test is applied, it is manifest that there was no present danger of an
attempt to overthrow the government by force on the part of the admittedly small minority who
shared the defendant's views. It is said that this manifesto was more than a theory, that it was an
incitement. Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless
some other belief outweighs it or some failure of energy stifles the movement at its birth. The only
difference between the expression of an opinion and an incitement in the narrower sense is the
speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought
of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the
long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the
dominant forces of the community, the only meaning of free speech is that they should be given their
chance and have their way.
If the publication of this document had been laid as an attempt to induce an uprising against
government at once, and not at some indefinite time in the future, it would have presented a different
question. The object would have been one with which the law might deal, subject to the doubt
whether there was any danger that the publication could produce any result, or in other words,
whether it was not futile and too remote from possible consequences. But the indictment alleges the
publication, and nothing more.

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Whitney v. California
274 U.S. 357 (1927)
JUSTICE SANFORD DELIVERED THE OPINION OF THE COURT; JUSTICE BRANDEIS FILED A CONCURRING OPINION IN
WHICH JUSTICE HOLMES JOINED.
MR. JUSTICE SANFORD DELIVERED THE OPINION OF THE COURT.
By a criminal information filed in the Superior Court of Alameda County, California, the plaintiff in
error was charged, in five counts, with violations of the Criminal Syndicalism Act of that State. She
was tried, convicted on the first count, and sentenced to imprisonment. * * *
The pertinent provisions of the [California] Criminal Syndicalism Act are:
Section 1. The term "criminal syndicalism" as used in this act is hereby defined as any doctrine or
precept advocating, teaching or aiding and abetting the commission of crime, sabotage (which word is
hereby defined as meaning willful and malicious physical damage or injury to physical property), or
unlawful acts of force and violence or unlawful methods of terrorism as a means of accomplishing a
change in industrial ownership or control, or effecting any political change.
Sec. 2. Any person who: . . . 4. Organizes or assists in organizing, or is or knowingly becomes a member
of, any organization, society, group or assemblage of persons organized or assembled to advocate,
teach or aid and abet criminal syndicalism.
Is guilty of a felony and punishable by imprisonment.

The first count of the information, on which the conviction was had charged that, on or about
November 28, 1919, in Alameda County, the defendant, in violation of the Criminal Syndicalism Act,
did then and there unlawfully, willfully, wrongfully, deliberately and feloniously organize and assist in
organizing, and was, is, and knowingly became a member of an organization, society, group and
assemblage of persons organized and assembled to advocate, teach, aid and abet criminal syndicalism.
***

The following facts, among many others, were established on the trial by undisputed evidence: the
defendant, a resident of Oakland, in Alameda County, California, had been a member of the Local
Oakland branch of the Socialist Party. This Local sent delegates to the national convention of the
Socialist Party held in Chicago in 1919, which resulted in a split between the "radical" group and the
old-wing Socialists. The "radicals" -- to whom the Oakland delegates adhered -- being ejected, went to
another hall, and formed the Communist Labor Party of America. Its Constitution provided for the
membership of persons subscribing to the principles of the Party and pledging themselves to be
guided by its Platform, and for the formation of state organizations conforming to its Platform as the
supreme declaration of the Party. In its "Platform and Program," the Party declared that it was in full
harmony with "the revolutionary working class parties of all countries," and adhered to the
principles of Communism laid down in the Manifesto of the Third International at Moscow, and that
its purpose was "to create a unified revolutionary working class movement in America," organizing
the workers as a class in a revolutionary class struggle to conquer the capitalist state for the
overthrow of capitalist rule, the conquest of political power and the establishment of a working class
government, the Dictatorship of the Proletariat, in place of the state machinery of the capitalists,
which should make and enforce the laws, reorganize society on the basis of Communism, and bring
about the Communist Commonwealth -- advocated, as the most important means of capturing state
power, the action of the masses, proceeding from the shops and factories, the use of the political
machinery of the capitalist state being only secondary; the organization of the workers into
"revolutionary industrial unions"; propaganda pointing out their revolutionary nature and
possibilities, and great industrial battles showing the value of the strike as a political weapon -commended the propaganda and example of the Industrial Workers of the World and their struggles
and sacrifices in the class war -- pledged support and cooperation to "the revolutionary industrial
proletariat of America" in their struggles against the capitalist class -- cited the Seattle and Winnipeg
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strikes and the numerous strikes all over the country "proceeding without the authority of the old
reactionary Trade Union officials," as manifestations of the new tendency -- and recommended that
strikes of national importance be supported and given a political character, and that propagandists
and organizers be mobilized "who cannot only teach, but actually help to put in practice the
principles of revolutionary industrial unionism and Communism."
Shortly thereafter, the Local Oakland withdrew from the Socialist Party and sent accredited
delegates, including the defendant, to a convention held in Oakland in November, 1919, for the
purpose of organizing a California branch of the Communist Labor Party. The defendant, after taking
out a temporary membership in the Communist Labor Party, attended this convention as a delegate
and took an active part in its proceedings. She was elected a member of the Credentials Committee,
and, as its chairman, made a report to the convention upon which the delegates were seated. She was
also appointed a member of the Resolutions Committee, and, as such, signed the following resolution
in reference to political action, among others proposed by the Committee:
The C.L.P. of California fully recognizes the value of political action as a means of spreading
communist propaganda; it insists that, in proportion to the development of the economic strength of
the working class, it, the working class, must also develop its political power. The C.L.P. of California
proclaims and insists that the capture of political power, locally or nationally by the revolutionary
working class, can be of tremendous assistance to the workers in their struggle of emancipation.
Therefore, we again urge the workers who are possessed of the right of franchise to cast their votes
for the party which represents their immediate and final interest -- the C.L.P. -- at all elections, being
fully convinced of the utter futility of obtaining any real measure of justice or freedom under officials
elected by parties owned and controlled by the capitalist class.
The minutes show that this resolution, with the others proposed by the committee, was read by its
chairman to the convention before the Committee on the Constitution had submitted its report.
According to the recollection of the defendant, however, she herself read this resolution. Thereafter,
before the report of the Committee on the Constitution had been acted upon, the defendant was
elected an alternate member of the State Executive Committee. The Constitution, as finally read, was
then adopted. This provided that the organization should be named the Communist Labor Party of
California; that it should be "affiliated with" the Communist Labor Party of America, and subscribe to
its Program, Platform and Constitution, and, "through this affiliation," be "joined with the Communist
International of Moscow;" and that the qualifications for membership should be those prescribed in
the National Constitution. The proposed resolutions were later taken, up and all adopted except that
on political action, which caused a lengthy debate, resulting in its defeat and the acceptance of the
National Program in its place. After this action, the defendant, without, so far as appears, making any
protest, remained in the convention until it adjourned. She later attended as an alternate member
one or two meetings of the State Executive Committee in San Jose and San Francisco, and stated, on
the trial, that she was then a member of the Communist Labor Party. She also testified that it was not
her intention that the Communist Labor Party of California should be an instrument of terrorism or
violence, and that it was not her purpose or that of the Convention to violate any known law.
In the light of this preliminary statement, we now take up, insofar as they require specific
consideration, the various grounds upon which it is here contended that the Syndicalism Act and its
application in this case is repugnant to the due process and equal protection clauses of the
Fourteenth Amendment.
1. While it is not denied that the evidence warranted the jury in finding that the defendant became a
member of and assisted in organizing the Communist Labor Party of California, and that this was
organized to advocate, teach, aid or abet criminal syndicalism as defined by the Act, it is urged that
the Act, as here construed and applied, deprived the defendant of her liberty without due process of
law in that it has made her action in attending the Oakland convention unlawful by reason of "a
subsequent event brought about against her will by the agency of others," with no showing of a
specific intent on her part to join in the forbidden purpose of the association, and merely because, by
reason of a lack of "prophetic" understanding, she failed to foresee the quality that others would give
to the convention. The argument is, in effect, that the character of the state organization could not be

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forecast when she attended the convention; that she had no purpose of helping to create an
instrument of terrorism and violence; that she
took part in formulating and presenting to the convention a resolution which, if adopted, would have
committed the new organization to a legitimate policy of political reform by the use of the ballot;

that it was not until after the majority of the convention turned out to be "contrary-minded, and
other less temperate policies prevailed," that the convention could have taken on the character of
criminal syndicalism, and that, as this was done over her protest, her mere presence in the
convention, however violent the opinions expressed therein, could not thereby become a crime. This
contention, while advanced in the form of a constitutional objection to the Act, is in effect nothing
more than an effort to review the weight of the evidence for the purpose of showing that the
defendant did not join and assist in organizing the Communist Labor Party of California with a
knowledge of its unlawful character and purpose. * * *
2. It is clear that the Syndicalism Act is not repugnant to the due process clause by reason of
vagueness and uncertainty of definition. * * * The language of § 2, subd. 4, of the Act, under which the
plaintiff in error was convicted, is clear, the definition of "criminal syndicalism "specific. * * * So, as
applied here, the Syndicalism Act required of the defendant no "prophetic" understanding of its
meaning. * * *
3. Neither is the Syndicalism Act repugnant to the equal protection clause on the ground that, as its
penalties are confined to those who advocate a resort to violent and unlawful methods as a means of
changing industrial and political conditions, it arbitrarily discriminates between such persons and
those who may advocate a resort to these methods as a means of maintaining such conditions. * * *
The Syndicalism Act is not class legislation; it affects all alike, no matter what their business
associations or callings, who come within its terms and do the things prohibited. * * *
4. Nor is the Syndicalism Act, as applied in this case, repugnant to the due process clause as a
restraint of the rights of free speech, assembly, and association.
That the freedom of speech which is secured by the Constitution does not confer an absolute right to
speak, without responsibility, whatever one may choose, or an unrestricted and unbridled license
giving immunity for every possible use of language and preventing the punishment of those who
abuse this freedom, and that a State in the exercise of its police power may punish those who abuse
this freedom by utterances inimical to the public welfare, tending to incite to crime, disturb the
public peace, or endanger the foundations of organized government and threaten its overthrow by
unlawful means, is not open to question.
By enacting the provisions of the Syndicalism Act, the State has declared, through its legislative body,
that to knowingly be or become a member of or assist in organizing an association to advocate, teach
or aid and abet the commission of crimes or unlawful acts of force, violence or terrorism as a means
of accomplishing industrial or political changes involves such danger to the public peace and the
security of the State, that these acts should be penalized in the exercise of its police power. That
determination must be given great weight. Every presumption is to be indulged in favor of the
validity of the statute, and it may not be declared unconstitutional unless it is an arbitrary or
unreasonable attempt to exercise the authority vested in the State in the public interest.
The essence of the offense denounced by the Act is the combining with others in an association for
the accomplishment of the desired ends through the advocacy and use of criminal and unlawful
methods. It partakes of the nature of a criminal conspiracy. That such united and joint action involves
even greater danger to the public peace and security than the isolated utterances and acts of
individuals is clear. We cannot hold that, as here applied, the Act is an unreasonable or arbitrary
exercise of the police power of the State, unwarrantably infringing any right of free speech, assembly
or association, or that those persons are protected from punishment by the due process clause who
abuse such rights by joining and furthering an organization thus menacing the peace and welfare of
the State.

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We find no repugnancy in the Syndicalism Act as applied in this case to either the due process or
equal protection clauses of the Fourteenth Amendment on any of the grounds upon which its validity
has been here challenged. * * *
Affirmed.
MR. JUSTICE BRANDEIS, CONCURRING [MR. JUSTICE HOLMES JOINS IN THIS OPINION].
Miss Whitney was convicted of the felony of assisting in organizing, in the year 1919, the Communist
Labor Party of California, of being a member of it, and of assembling with it. These acts are held to
constitute a crime because the party was formed to teach criminal syndicalism. The statute which
made these acts a crime restricted the right of free speech and of assembly theretofore existing. The
claim is that the statute, as applied, denied to Miss Whitney the liberty guaranteed by the Fourteenth
Amendment.
The felony which the statute created is a crime very unlike the old felony of conspiracy or the old
misdemeanor of unlawful assembly. The mere act of assisting in forming a society for teaching
syndicalism, of becoming a member of it, or of assembling with others for that purpose, is given the
dynamic quality of crime. There is guilt although the society may not contemplate immediate
promulgation of the doctrine. Thus, the accused is to be punished not for contempt, incitement, or
conspiracy, but for a step in preparation, which, if it threatens the public order at all, does so only
remotely. The novelty in the prohibition introduced is that the statute aims not at the practice of
criminal syndicalism, nor even directly at the preaching of it, but at association with those who
propose to preach it.
Despite arguments to the contrary which had seemed to me persuasive, it is settled that the due
process clause of the Fourteenth Amendment applies to matters of substantive law as well as to
matters of procedure. Thus, all fundamental rights comprised within the term liberty are protected
by the Federal Constitution from invasion by the States. The right of free speech, the right to teach,
and the right of assembly are, of course, fundamental rights. These may not be denied or abridged.
But, although the rights of free speech and assembly are fundamental, they are not, in their nature,
absolute. Their exercise is subject to restriction if the particular restriction proposed is required in
order to protect the State from destruction or from serious injury, political, economic, or moral. That
the necessity which is essential to a valid restriction does not exist unless speech would produce, or
is intended to produce, a clear and imminent danger of some substantive evil which the State
constitutionally may seek to prevent has been settled.
It is said to be the function of the legislature to determine whether, at a particular time and under the
particular circumstances, the formation of, or assembly with, a society organized to advocate
criminal syndicalism constitutes a clear and present danger of substantive evil, and that, by enacting
the law here in question, the legislature of California determined that question in the affirmative. The
legislature must obviously decide, in the first instance, whether a danger exists which calls for a
particular protective measure. But where a statute is valid only in case certain conditions exist, the
enactment of the statute cannot alone establish the facts which are essential to its validity.
Prohibitory legislation has repeatedly been held invalid, because unnecessary, where the denial of
liberty involved was that of engaging in a particular business. The power of the courts to strike down
an offending law is no less when the interests involved are not property rights, but the fundamental
personal rights of free speech and assembly.
This Court has not yet fixed the standard by which to determine when a danger shall be deemed
clear; how remote the danger may be and yet be deemed present, and what degree of evil shall be
deemed sufficiently substantial to justify resort to abridgement of free speech and assembly as the
means of protection. To reach sound conclusions on these matters, we must bear in mind why a State
is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine
which a vast majority of its citizens believes to be false and fraught with evil consequence.
Those who won our independence believed that the final end of the State was to make men free to
develop their faculties, and that, in its government, the deliberative forces should prevail over the
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arbitrary. They valued liberty both as an end, and as a means. They believed liberty to be the secret of
happiness, and courage to be the secret of liberty. They believed that freedom to think as you will and
to speak as you think are means indispensable to the discovery and spread of political truth; that,
without free speech and assembly, discussion would be futile; that, with them, discussion affords
ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest
menace to freedom is an inert people; that public discussion is a political duty, and that this should
be a fundamental principle of the American government. They recognized the risks to which all
human institutions are subject. But they knew that order cannot be secured merely through fear of
punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that
fear breeds repression; that repression breeds hate; that hate menaces stable government; that the
path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies,
and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied
through public discussion, they eschewed silence coerced by law -- the argument of force in its worst
form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so
that free speech and assembly should be guaranteed.
Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared
witches and burnt women. It is the function of speech to free men from the bondage of irrational
fears. To justify suppression of free speech, there must be reasonable ground to fear that serious evil
will result if free speech is practiced. There must be reasonable ground to believe that the danger
apprehended is imminent. There must be reasonable ground to believe that the evil to be prevented
is a serious one. Every denunciation of existing law tends in some measure to increase the
probability that there will be violation of it. Condonation of a breach enhances the probability.
Expressions of approval add to the probability. Propagation of the criminal state of mind by teaching
syndicalism increases it. Advocacy of law-breaking heightens it still further. But even advocacy of
violation, however reprehensible morally, is not a justification for denying free speech where the
advocacy falls short of incitement and there is nothing to indicate that the advocacy would be
immediately acted on. The wide difference between advocacy and incitement, between preparation
and attempt, between assembling and conspiracy, must be borne in mind. In order to support a
finding of clear and present danger, it must be shown either that immediate serious violence was to
be expected or was advocated, or that the past conduct furnished reason to believe that such
advocacy was then contemplated.
Those who won our independence by revolution were not cowards. They did not fear political
change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with
confidence in the power of free and fearless reasoning applied through the processes of popular
government, no danger flowing from speech can be deemed clear and present unless the incidence of
the evil apprehended is so imminent that it may befall before there is opportunity for full discussion.
If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the
processes of education, the remedy to be applied is more speech, not enforced silence. Only an
emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom.
Such, in my opinion, is the command of the Constitution. It is therefore always open to Americans to
challenge a law abridging free speech and assembly by showing that there was no emergency
justifying it.
Moreover, even imminent danger cannot justify resort to prohibition of these functions essential to
effective democracy unless the evil apprehended is relatively serious. Prohibition of free speech and
assembly is a measure so stringent that it would be inappropriate as the means for averting a
relatively trivial harm to society. A police measure may be unconstitutional merely because the
remedy, although effective as means of protection, is unduly harsh or oppressive. Thus, a State might,
in the exercise of its police power, make any trespass upon the land of another a crime, regardless of
the results or of the intent or purpose of the trespasser. It might, also, punish an attempt, a
conspiracy, or an incitement to commit the trespass. But it is hardly conceivable that this Court
would hold constitutional a statute which punished as a felony the mere voluntary assembly with a
society formed to teach that pedestrians had the moral right to cross unenclosed, unposted,
wastelands and to advocate their doing so, even if there was imminent danger that advocacy would
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lead to a trespass. The fact that speech is likely to result in some violence or in destruction of
property is not enough to justify its suppression. There must be the probability of serious injury to
the State. Among free men, the deterrents ordinarily to be applied to prevent crime are education
and punishment for violations of the law, not abridgment of the rights of free speech and assembly. *
**
Whenever the fundamental rights of free speech and assembly are alleged to have been invaded, it
must remain open to a defendant to present the issue whether there actually did exist at the time a
clear danger; whether the danger, if any, was imminent, and whether the evil apprehended was one
so substantial as to justify the stringent restriction interposed by the legislature. The legislative
declaration, like the fact that the statute was passed and was sustained by the highest court of the
State, creates merely a rebuttable presumption that these conditions have been satisfied.
Whether in 1919, when Miss Whitney did the things complained of, there was in California such clear
and present danger of serious evil might have been made the important issue in the case. She might
have required that the issue be determined either by the court or the jury. She claimed below that the
statute, as applied to her, violated the Federal Constitution; but she did not claim that it was void
because there was no clear and present danger of serious evil, nor did she request that the existence
of these conditions of a valid measure thus restricting the rights of free speech and assembly be
passed upon by the court or a jury. On the other hand, there was evidence on which the court or jury
might have found that such danger existed. I am unable to assent to the suggestion in the opinion of
the Court that assembling with a political party, formed to advocate the desirability of a proletarian
revolution by mass action at some date necessarily far in the future, is not a right within the
protection of the Fourteenth Amendment. In the present case, however, there was other testimony
which tended to establish the existence of a conspiracy, on the part of members of the International
Workers of the World, to commit present serious crimes, and likewise to show that such a conspiracy
would be furthered by the activity of the society of which Miss Whitney was a member. Under these
circumstances, the judgment of the state court cannot be disturbed.

Notes

1.
As the Court makes clear in Gitlow in 1925, the First Amendment is incorporated against the
states through the liberty provision of the Due Process Clause of the Fourteenth Amendment. Note in
later cases how the question of incorporation resurfaces. Note also the relationship between due
process arguments and First Amendment arguments.
2.
The Court decided Debs v. United States, 249 U.S. 211 (1919), the same year as Schenck, on
which it largely relied. In this brief opinion, the Court upheld Eugene Debs’ conviction for an anti-war
speech criticizing United States involvement in World War I and upheld the Espionage Act of 1917.
Debs was a prominent labor organizer and candidate of the Socialist Party of America for the US
presidency. Indeed, Debs was a candidate in the 1920 Presidential election while he was in prison for
this conviction; he earned more than 3% of the vote. President Woodrow Wilson denounced Debs as
a “traitor” and refused to grant clemency, but in 1921, President Horace Harding commuted Debs’
sentence to time-served and soon after the two met personally. Debs died in 1926.
3.
Like Eugene Debs, Anita Whitney was also well-known. How does the social or political
status of the speaker influence the Court? Should it? What is the relevance of the characterization of
the defendants as “poor and puny anonymities” in Holmes’ dissent in Abrams?
4.
The oft-called “war hypothesis” of First Amendment speech doctrine is derived from these
cases. Is there language in the cases that would support a “war is different” perspective? Consider
whether the notion of “war” is extended in the rest of the cases in this Chapter.

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B.

Labor Unrest
Bridges v. California
314 U.S. 252 (1941)

JUSTICE BLACK DELIVERED THE OPINION OF THE COURT. JUSTICE FRANKFURTER FILED A DISSENTING OPINION JOINED
BY THE CHIEF JUSTICE [STONE], JUSTICE ROBERTS AND JUSTICE BYRNES.
MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT.
These two cases, while growing out of different circumstances and concerning different parties, both
relate to the scope of our national constitutional policy safeguarding free speech and a free press. All
of the petitioners were adjudged guilty and fined for contempt of court by the Superior Court of Los
Angeles County. Their conviction rested upon comments pertaining to pending litigation which were
published in newspapers. In the Superior Court, and later in the California Supreme Court,
petitioners challenged the state's action as an abridgment, prohibited by the Federal Constitution, of
freedom of speech and of the press; but the Superior Court overruled this contention, and the
Supreme Court affirmed. The importance of the constitutional question prompted us to grant
certiorari. * * *
In presenting the proposals which were later embodied in the Bill of Rights, James Madison, the
leader in the preparation of the First Amendment, said: "Although I know whenever the great rights,
the trial by jury, freedom of the press, or liberty of conscience, come in question in that body
[Parliament], the invasion of them is resisted by able advocates, yet their Magna Charta does not
contain any one provision for the security of those rights, respecting which the people of America are
most alarmed. The freedom of the press and rights of conscience, those choicest privileges of the
people, are unguarded in the British Constitution." 1 ANNALS OF CONGRESS 1789-1790. And Madison
elsewhere wrote that "the state of the press . . . under the common law, cannot . . . be the standard of
its freedom in the United States."
There are no contrary implications in any part of the history of the period in which the First
Amendment was framed and adopted. No purpose in ratifying the Bill of Rights was clearer than that
of securing for the people of the United States much greater freedom of religion, expression,
assembly, and petition than the people of Great Britain had ever enjoyed. It cannot be denied, for
example, that the religious test oath or the restrictions upon assembly then prevalent in England
would have been regarded as measures which the Constitution prohibited the American Congress
from passing. And since the same unequivocal language is used with respect to freedom of the press,
it signifies a similar enlargement of that concept as well. Ratified as it was while the memory of many
oppressive English restrictions on the enumerated liberties was still fresh, the First Amendment
cannot reasonably be taken as approving prevalent English practices. On the contrary, the only
conclusion supported by history is that the unqualified prohibitions laid down by the framers were
intended to give to liberty of the press, as to the other liberties, the broadest scope that could be
countenanced in an orderly society.
The implications of subsequent American history confirm such a construction of the First
Amendment. To be sure, it occurred no more to the people who lived in the decades following
Ratification than it would to us now that the power of courts to protect themselves from
disturbances and disorder in the court room by use of contempt proceedings could seriously be
challenged as conflicting with constitutionally secured guarantees of liberty. In both state and federal
courts, this power has been universally recognized. But attempts to expand it in the post-Ratification
years evoked popular reactions that bespeak a feeling of jealous solicitude for freedom of the press.
In Pennsylvania and New York, for example, heated controversies arose over alleged abuses in the

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exercise of the contempt power, which in both places culminated in legislation practically forbidding
summary punishment for publications.
* * * [W]e are convinced that the judgments below result in a curtailment of expression that cannot
be dismissed as insignificant. If they can be justified at all, it must be in terms of some serious
substantive evil which they are designed to avert. The substantive evil here sought to be averted has
been variously described below. It appears to be double: disrespect for the judiciary; and disorderly
and unfair administration of justice. The assumption that respect for the judiciary can be won by
shielding judges from published criticism wrongly appraises the character of American public
opinion. For it is a prized American privilege to speak one's mind, although not always with perfect
good taste, on all public institutions. And an enforced silence, however limited, solely in the name of
preserving the dignity of the bench, would probably engender resentment, suspicion, and contempt
much more than it would enhance respect.
The other evil feared, disorderly and unfair administration of justice, is more plausibly associated
with restricting publications which touch upon pending litigation. The very word "trial" connotes
decisions on the evidence and arguments properly advanced in open court. Legal trials are not like
elections, to be won through the use of the meeting-hall, the radio, and the newspaper. But we cannot
start with the assumption that publications of the kind here involved actually do threaten to change
the nature of legal trials, and that to preserve judicial impartiality, it is necessary for judges to have a
contempt power by which they can close all channels of public expression to all matters which touch
upon pending cases. We must therefore turn to the particular utterances here in question and the
circumstances of their publication to determine to what extent the substantive evil of unfair
administration of justice was a likely consequence, and whether the degree of likelihood was
sufficient to justify summary punishment.
The Los Angeles Times Editorials. The Times-Mirror Company, publisher of the Los Angeles Times,
and L.D. Hotchkiss, its managing editor, were cited for contempt for the publication of three
editorials. Both found by the trial court to be responsible for one of the editorials, the company and
Hotchkiss were each fined $100. The company alone was held responsible for the other two, and was
fined $100 more on account of one, and $300 more on account of the other.
The $300 fine presumably marks the most serious offense. The editorial thus distinguished was
entitled "Probation for Gorillas?" After vigorously denouncing two members of a labor union who
had previously been found guilty of assaulting nonunion truck drivers, it closes with the observation:
"Judge A.A. Scott will make a serious mistake if he grants probation to Matthew Shannon and Kennan
Holmes. This community needs the example of their assignment to the jute mill." Judge Scott had
previously set a day (about a month after the publication) for passing upon the application of
Shannon and Holmes for probation and for pronouncing sentence.
The basis for punishing the publication as contempt was by the trial court said to be its "inherent
tendency" and by the [California] Supreme Court its "reasonable tendency" to interfere with the
orderly administration of justice in an action then before a court for consideration. In accordance
with what we have said on the "clear and present danger" cases, neither "inherent tendency" nor
"reasonable tendency" is enough to justify a restriction of free expression. But even if they were
appropriate measures, we should find exaggeration in the use of those phrases to describe the facts
here. * * *
The Bridges Telegram. While a motion for a new trial was pending in a case involving a dispute
between an A.F. of L. union and a C.I.O. union of which Bridges was an officer, he either caused to be
published or acquiesced in the publication of a telegram which he had sent to the Secretary of Labor.
The telegram referred to the judge's decision as "outrageous"; said that attempted enforcement of it
would tie up the port of Los Angeles and involve the entire Pacific Coast; and concluded with the
announcement that the C.I.O. union, representing some twelve thousand members, did "not intend to
allow state courts to override the majority vote of members in choosing its officers and
representatives and to override the National Labor Relations Board."
Apparently Bridges' conviction is not rested at all upon his use of the word "outrageous." The
remainder of the telegram fairly construed appears to be a statement that if the court's decree should
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be enforced there would be a strike. It is not claimed that such a strike would have been in violation
of the terms of the decree, nor that in any other way it would have run afoul of the law of California.
On no construction, therefore, can the telegram be taken as a threat either by Bridges or the union to
follow an illegal course of action.
Moreover, this statement of Bridges was made to the Secretary of Labor, who is charged with official
duties in connection with the prevention of strikes. Whatever the cause might be if a strike was
threatened or possible the Secretary was entitled to receive all available information. Indeed, the
Supreme Court of California recognized that, publication in the newspapers aside, in sending the
message to the Secretary, Bridges was exercising the right of petition to a duly accredited
representative of the United States Government, a right protected by the First Amendment.
It must be recognized that Bridges was a prominent labor leader speaking at a time when public
interest in the particular labor controversy was at its height. The observations we have previously
made here upon the timeliness and importance of utterances as emphasizing rather than diminishing
the value of constitutional protection, and upon the breadth and seriousness of the censorial effects
of punishing publications in the manner followed below, are certainly no less applicable to a leading
spokesman for labor than to a powerful newspaper taking another point of view.
* * * Again, we find exaggeration in the conclusion that the utterance even "tended" to interfere with
justice. If there was electricity in the atmosphere, it was generated by the facts; the charge added by
the Bridges telegram can be dismissed as negligible. The words of Mr. Justice Holmes, spoken in
reference to very different facts, seem entirely applicable here: "I confess that I cannot find in all this
or in the evidence in the case anything that would have affected a mind of reasonable fortitude, and
still less can I find there anything that obstructed the administration of justice in any sense that I
possibly can give to those words."
Reversed.
MR. JUSTICE FRANKFURTER, WITH WHOM CONCURRED THE CHIEF JUSTICE, MR. JUSTICE ROBERTS AND MR. JUSTICE
BYRNES, DISSENTING.
Our whole history repels the view that it is an exercise of one of the civil liberties secured by the Bill
of Rights for a leader of a large following or for a powerful metropolitan newspaper to attempt to
overawe a judge in a matter immediately pending before him. The view of the majority deprives
California of means for securing to its citizens justice according to law — means which, since the
Union was founded, have been the possession, hitherto unchallenged, of all the states. This sudden
break with the uninterrupted course of constitutional history has no constitutional warrant. To find
justification for such deprivation of the historic powers of the states is to misconceive the idea of
freedom of thought and speech as guaranteed by the Constitution. * * *

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C.

Communism and the Smith Act
Dennis v. United States
341 U.S. 494 (1951)

CHIEF JUSTICE VINSON ANNOUNCED THE JUDGMENT OF THE COURT AND AN OPINION IN WHICH JUSTICE REED, JUSTICE
BURTON AND MR. JUSTICE MINTON JOINED. JUSTICE FRANKFURTER AND JUSTICE JACKSON FILED CONCURRING
OPINIONS. JUSTICE BLACK AND DOUGLAS FILED DISSENTING OPINIONS. JUSTICE CLARK TOOK NO PART IN THE
CONSIDERATION OR DECISION OF THIS CASE.
MR. CHIEF JUSTICE VINSON ANNOUNCED THE JUDGMENT OF THE COURT.
Petitioners were indicted in July, 1948, for violation of the conspiracy provisions of the Smith Act, 54
Stat. 671, 18 U. S. C. (1946 ed.) § 11, during the period of April, 1945, to July, 1948. The pretrial
motion to quash the indictment on the grounds, inter alia, that the statute was unconstitutional was
denied. A verdict of guilty as to all the petitioners was returned by the jury. The Court of Appeals
affirmed the convictions. We granted certiorari, limited to the following two questions: (1) Whether
either § 2 or § 3 of the Smith Act, inherently or as construed and applied in the instant case, violates
the First Amendment and other provisions of the Bill of Rights; (2) whether either § 2 or § 3 of the
Act, inherently or as construed and applied in the instant case, violates the First and Fifth
Amendments because of indefiniteness.
Sections 2 and 3 of the Smith Act, 54 Stat. 671, 18 U. S. C. (1946 ed.) §§ 10, 11 (see present 18 U. S. C.
§ 2385), provide as follows:
"SEC. 2. (a) It shall be unlawful for any person—
"(1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or
propriety of overthrowing or destroying any government in the United States by force or violence, or
by the assassination of any officer of any such government;
"(2) with intent to cause the overthrow or destruction of any government in the United States, to print,
publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter
advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or
destroying any government in the United States by force or violence;
"(3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or
encourage the overthrow or destruction of any government in the United States by force or violence; or
to be or become a member of, or affiliate with, any such society, group, or assembly of persons,
knowing the purposes thereof.
"(b) For the purposes of this section, the term `government in the United States' means the
Government of the United States, the government of any State, Territory, or possession of the United
States, the government of the District of Columbia, or the government of any political subdivision of
any of them.
"SEC. 3. It shall be unlawful for any person to attempt to commit, or to conspire to commit, any of the
acts prohibited by the provisions of this title."

The indictment charged the petitioners with wilfully and knowingly conspiring (1) to organize as the
Communist Party of the United States of America a society, group and assembly of persons who teach
and advocate the overthrow and destruction of the Government of the United States by force and
violence, and (2) knowingly and wilfully to advocate and teach the duty and necessity of
overthrowing and destroying the Government of the United States by force and violence. The
indictment further alleged that § 2 of the Smith Act proscribes these acts and that any conspiracy to
take such action is a violation of § 3 of the Act.

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The trial of the case extended over nine months, six of which were devoted to the taking of evidence,
resulting in a record of 16,000 pages. Our limited grant of the writ of certiorari has removed from our
consideration any question as to the sufficiency of the evidence to support the jury's determination
that petitioners are guilty of the offense charged. Whether on this record petitioners did in fact
advocate the overthrow of the Government by force and violence is not before us * * * [but by] virtue
of their control over the political apparatus of the Communist Political Association, petitioners were
able to transform that organization into the Communist Party; that the policies of the Association
were changed from peaceful cooperation with the United States and its economic and political
structure to a policy which had existed before the United States and the Soviet Union were fighting a
common enemy, namely, a policy which worked for the overthrow of the Government by force and
violence; that the Communist Party is a highly disciplined organization, adept at infiltration into
strategic positions, use of aliases, and double-meaning language; that the Party is rigidly controlled;
that Communists, unlike other political parties, tolerate no dissension from the policy laid down by
the guiding forces, but that the approved program is slavishly followed by the members of the Party;
that the literature of the Party and the statements and activities of its leaders, petitioners here,
advocate, and the general goal of the Party was, during the period in question, to achieve a successful
overthrow of the existing order by force and violence.
I.
It will be helpful in clarifying the issues to treat next the contention that the trial judge improperly
interpreted the statute by charging that the statute required an unlawful intent before the jury could
convict. * * *
A survey of Title 18 of the U. S. Code indicates that the vast majority of the crimes designated by that
Title require, by express language, proof of the existence of a certain mental state, in words such as
"knowingly," "maliciously," "wilfully," "with the purpose of," "with intent to," or combinations or
permutations of these and synonymous terms. The existence of a mens rea is the rule of, rather than
the exception to, the principles of Anglo-American criminal jurisprudence. * * * If that precise mental
state may be an essential element of a crime, surely an intent to overthrow the Government of the
United States by advocacy thereof is equally susceptible of proof.
II.
The obvious purpose of the statute is to protect existing Government, not from change by peaceable,
lawful and constitutional means, but from change by violence, revolution and terrorism. That it is
within the power of the Congress to protect the Government of the United States from armed
rebellion is a proposition which requires little discussion. Whatever theoretical merit there may be to
the argument that there is a "right" to rebellion against dictatorial governments is without force
where the existing structure of the government provides for peaceful and orderly change. We reject
any principle of governmental helplessness in the face of preparation for revolution, which principle,
carried to its logical conclusion, must lead to anarchy. No one could conceive that it is not within the
power of Congress to prohibit acts intended to overthrow the Government by force and violence. The
question with which we are concerned here is not whether Congress has such power, but whether
the means which it has employed conflict with the First and Fifth Amendments to the Constitution.
One of the bases for the contention that the means which Congress has employed are invalid takes
the form of an attack on the face of the statute on the grounds that by its terms it prohibits academic
discussion of the merits of Marxism-Leninism, that it stifles ideas and is contrary to all concepts of a
free speech and a free press. Although we do not agree that the language itself has that significance,
we must bear in mind that it is the duty of the federal courts to interpret federal legislation in a
manner not inconsistent with the demands of the Constitution. * * *
The very language of the Smith Act negates the interpretation which petitioners would have us
impose on that Act. It is directed at advocacy, not discussion. Thus, the trial judge properly charged
the jury that they could not convict if they found that petitioners did "no more than pursue peaceful
studies and discussions or teaching and advocacy in the realm of ideas." He further charged that it
was not unlawful "to conduct in an American college or university a course explaining the
philosophical theories set forth in the books which have been placed in evidence." Such a charge is in
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strict accord with the statutory language, and illustrates the meaning to be placed on those words.
Congress did not intend to eradicate the free discussion of political theories, to destroy the
traditional rights of Americans to discuss and evaluate ideas without fear of governmental sanction.
Rather Congress was concerned with the very kind of activity in which the evidence showed these
petitioners engaged.
III.
But although the statute is not directed at the hypothetical cases which petitioners have conjured, its
application in this case has resulted in convictions for the teaching and advocacy of the overthrow of
the Government by force and violence, which, even though coupled with the intent to accomplish that
overthrow, contains an element of speech. For this reason, we must pay special heed to the demands
of the First Amendment marking out the boundaries of speech.
* * * [T]he basis of the First Amendment is the hypothesis that speech can rebut speech, propaganda
will answer propaganda, free debate of ideas will result in the wisest governmental policies. It is for
this reason that this Court has recognized the inherent value of free discourse. An analysis of the
leading cases in this Court which have involved direct limitations on speech, however, will
demonstrate that both the majority of the Court and the dissenters in particular cases have
recognized that this is not an unlimited, unqualified right, but that the societal value of speech must,
on occasion, be subordinated to other values and considerations.
No important case involving free speech was decided by this Court prior to Schenck v.United States
(1919). Indeed, the summary treatment accorded an argument based upon an individual's claim that
the First Amendment protected certain utterances indicates that the Court at earlier dates placed no
unique emphasis upon that right. It was not until the classic dictum of Justice Holmes in the Schenck
case that speech per se received that emphasis in a majority opinion. That case involved a conviction
under the Criminal Espionage Act, 40 Stat. 217. The question the Court faced was whether the
evidence was sufficient to sustain the conviction. Writing for a unanimous Court, Justice Holmes
stated that the "question in every case is whether the words used are used in such circumstances and
are of such a nature as to create a clear and present danger that they will bring about the substantive
evils that Congress has a right to prevent." * * *
The basis of [Justices Holmes and Brandeis dissent in Abrams and other opinions] was that, because
of the protection which the First Amendment gives to speech, the evidence in each case was
insufficient to show that the defendants had created the requisite danger under Schenck. But these
dissents did not mark a change of principle. The dissenters doubted only the probable effectiveness
of the puny efforts toward subversion. In Abrams, they wrote, "I do not doubt for a moment that by
the same reasoning that would justify punishing persuasion to murder, the United States
constitutionally may punish speech that produces or is intended to produce a clear and imminent
danger that it will bring about forthwith certain substantive evils that the United States
constitutionally may seek to prevent." * * *
The rule we deduce from these cases is that where an offense is specified by a statute in nonspeech
or nonpress terms, a conviction relying upon speech or press as evidence of violation may be
sustained only when the speech or publication created a "clear and present danger" of attempting or
accomplishing the prohibited crime, e. g., interference with enlistment. The dissents, we repeat, in
emphasizing the value of speech, were addressed to the argument of the sufficiency of the evidence.
The next important case before the Court in which free speech was the crux of the conflict was Gitlow
v. New York (1925). * * * The convictions were sustained, Justices Holmes and Brandeis dissenting.
The majority refused to apply the "clear and present danger" test to the specific utterance. Its
reasoning was as follows: The "clear and present danger" test was applied to the utterance itself in
Schenck because the question was merely one of sufficiency of evidence under an admittedly
constitutional statute. Gitlow, however, presented a different question. There a legislature had found
that a certain kind of speech was, itself, harmful and unlawful. The constitutionality of such a state
statute had to be adjudged by this Court just as it determined the constitutionality of any state
statute, namely, whether the statute was "reasonable." Since it was entirely reasonable for a state to
attempt to protect itself from violent overthrow, the statute was perforce reasonable. The only
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question remaining in the case became whether there was evidence to support the conviction, a
question which gave the majority no difficulty. Justices Holmes and Brandeis refused to accept this
approach, but insisted that wherever speech was the evidence of the violation, it was necessary to
show that the speech created the "clear and present danger" of the substantive evil which the
legislature had the right to prevent. Justices Holmes and Brandeis, then, made no distinction between
a federal statute which made certain acts unlawful, the evidence to support the conviction being
speech, and a statute which made speech itself the crime. This approach was emphasized in Whitney
v. California (1927), where the Court was confronted with a conviction under the California Criminal
Syndicalist statute. The Court sustained the conviction, Justices Brandeis and Holmes concurring in
the result. In their concurrence they repeated that even though the legislature had designated certain
speech as criminal, this could not prevent the defendant from showing that there was no danger that
the substantive evil would be brought about.
Although no case subsequent to Whitney and Gitlow has expressly overruled the majority opinions in
those cases, there is little doubt that subsequent opinions have inclined toward the Holmes-Brandeis
rationale. * * * But we further suggested that neither Justice Holmes nor Justice Brandeis ever
envisioned that a shorthand phrase should be crystallized into a rigid rule to be applied inflexibly
without regard to the circumstances of each case. Speech is not an absolute, above and beyond
control by the legislature when its judgment, subject to review here, is that certain kinds of speech
are so undesirable as to warrant criminal sanction. Nothing is more certain in modern society than
the principle that there are no absolutes, that a name, a phrase, a standard has meaning only when
associated with the considerations which gave birth to the nomenclature. To those who would
paralyze our Government in the face of impending threat by encasing it in a semantic straitjacket we
must reply that all concepts are relative.
In this case we are squarely presented with the application of the "clear and present danger" test,
and must decide what that phrase imports. We first note that many of the cases in which this Court
has reversed convictions by use of this or similar tests have been based on the fact that the interest
which the State was attempting to protect was itself too insubstantial to warrant restriction of
speech. * * * Overthrow of the Government by force and violence is certainly a substantial enough
interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a
society cannot protect its very structure from armed internal attack, it must follow that no
subordinate value can be protected. If, then, this interest may be protected, the literal problem which
is presented is what has been meant by the use of the phrase "clear and present danger" of the
utterances bringing about the evil within the power of Congress to punish.
Obviously, the words cannot mean that before the Government may act, it must wait until the putsch
is about to be executed, the plans have been laid and the signal is awaited. If Government is aware
that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them
to a course whereby they will strike when the leaders feel the circumstances permit, action by the
Government is required. The argument that there is no need for Government to concern itself, for
Government is strong, it possesses ample powers to put down a rebellion, it may defeat the
revolution with ease needs no answer. For that is not the question. Certainly an attempt to overthrow
the Government by force, even though doomed from the outset because of inadequate numbers of
power of the revolutionists, is a sufficient evil for Congress to prevent. The damage which such
attempts create both physically and politically to a nation makes it impossible to measure the validity
in terms of the probability of success, or the immediacy of a successful attempt. * * * We must
therefore reject the contention that success or probability of success is the criterion.
The situation with which Justices Holmes and Brandeis were concerned in Gitlow was a
comparatively isolated event, bearing little relation in their minds to any substantial threat to the
safety of the community. * * * They were not confronted with any situation comparable to the instant
one—the development of an apparatus designed and dedicated to the overthrow of the Government,
in the context of world crisis after crisis.
* * * It is the existence of the conspiracy which creates the danger. If the ingredients of the reaction
are present, we cannot bind the Government to wait until the catalyst is added.

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Affirmed.
MR. JUSTICE FRANKFURTER, CONCURRING IN AFFIRMANCE OF THE JUDGMENT.
* * * Few questions of comparable import have come before this Court in recent years. The appellants
maintain that they have a right to advocate a political theory, so long, at least, as their advocacy does
not create an immediate danger of obvious magnitude to the very existence of our present scheme of
society. On the other hand, the Government asserts the right to safeguard the security of the Nation
by such a measure as the Smith Act. Our judgment is thus solicited on a conflict of interests of the
utmost concern to the well-being of the country. This conflict of interests cannot be resolved by a
dogmatic preference for one or the other, nor by a sonorous formula which is in fact only a
euphemistic disguise for an unresolved conflict. If adjudication is to be a rational process, we cannot
escape a candid examination of the conflicting claims with full recognition that both are supported by
weighty title-deeds.
* * * But even the all-embracing power and duty of self-preservation are not absolute. Like the war
power, which is indeed an aspect of the power of self-preservation, it is subject to applicable
constitutional limitations. * * *
The First Amendment is such a restriction. It exacts obedience even during periods of war; it is
applicable when war clouds are not figments of the imagination no less than when they are. The First
Amendment categorically demands that "Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;
or the right of the people peaceably to assemble, and to petition the Government for a redress of
grievances." The right of a man to think what he pleases, to write what he thinks, and to have his
thoughts made available for others to hear or read has an engaging ring of universality. The Smith
Act and this conviction under it no doubt restrict the exercise of free speech and assembly. Does that,
without more, dispose of the matter?
Just as there are those who regard as invulnerable every measure for which the claim of national
survival is invoked, there are those who find in the Constitution a wholly unfettered right of
expression. Such literalness treats the words of the Constitution as though they were found on a
piece of outworn parchment instead of being words that have called into being a nation with a past to
be preserved for the future. * * *
The language of the First Amendment is to be read not as barren words found in a dictionary but as
symbols of historic experience illumined by the presuppositions of those who employed them. Not
what words did Madison and Hamilton use, but what was it in their minds which they conveyed?
Free speech is subject to prohibition of those abuses of expression which a civilized society may
forbid. As in the case of every other provision of the Constitution that is not crystallized by the nature
of its technical concepts, the fact that the First Amendment is not self-defining and self-enforcing
neither impairs its usefulness nor compels its paralysis as a living instrument.
* * * The demands of free speech in a democratic society as well as the interest in national security
are better served by candid and informed weighing of the competing interests, within the confines of
the judicial process, than by announcing dogmas too inflexible for the non-Euclidian problems to be
solved.
But how are competing interests to be assessed? Since they are not subject to quantitative
ascertainment, the issue necessarily resolves itself into asking, who is to make the adjustment?—who
is to balance the relevant factors and ascertain which interest is in the circumstances to prevail? Full
responsibility for the choice cannot be given to the courts. Courts are not representative bodies. They
are not designed to be a good reflex of a democratic society. Their judgment is best informed, and
therefore most dependable, within narrow limits. Their essential quality is detachment, founded on
independence. History teaches that the independence of the judiciary is jeopardized when courts
become embroiled in the passions of the day and assume primary responsibility in choosing between
competing political, economic and social pressures.

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* * * But in no case has a majority of this Court held that a legislative judgment, even as to freedom of
utterance, may be overturned merely because the Court would have made a different choice between
the competing interests had the initial legislative judgment been for it to make. * * * Even though
advocacy of overthrow deserves little protection, we should hesitate to prohibit it if we thereby
inhibit the interchange of rational ideas so essential to representative government and free society.
But there is underlying validity in the distinction between advocacy and the interchange of ideas, and
we do not discard a useful tool because it may be misused. That such a distinction could be used
unreasonably by those in power against hostile or unorthodox views does not negate the fact that it
may be used reasonably against an organization wielding the power of the centrally controlled
international Communist movement. The object of the conspiracy before us is so clear that the
chance of error in saying that the defendants conspired to advocate rather than to express ideas is
slight. Mr. Justice Douglas quite properly points out that the conspiracy before us is not a conspiracy
to overthrow the Government. But it would be equally wrong to treat it as a seminar in political
theory.
MR. JUSTICE JACKSON, CONCURRING.
* * * The Constitution does not make conspiracy a civil right. The Court has never before done so and
I think it should not do so now. Conspiracies of labor unions, trade associations, and news agencies
have been condemned, although accomplished, evidenced and carried out, like the conspiracy here,
chiefly by letter-writing, meetings, speeches and organization. Indeed, this Court seems, particularly
in cases where the conspiracy has economic ends, to be applying its doctrines with increasing
severity. While I consider criminal conspiracy a dragnet device capable of perversion into an
instrument of injustice in the hands of a partisan or complacent judiciary, it has an established place
in our system of law, and no reason appears for applying it only to concerted action claimed to
disturb interstate commerce and withholding it from those claimed to undermine our whole
Government.
* * * I do not suggest that Congress could punish conspiracy to advocate something, the doing of
which it may not punish. Advocacy or exposition of the doctrine of communal property ownership, or
any political philosophy unassociated with advocacy of its imposition by force or seizure of
government by unlawful means could not be reached through conspiracy prosecution. But it is not
forbidden to put down force or violence, it is not forbidden to punish its teaching or advocacy, and
the end being punishable, there is no doubt of the power to punish conspiracy for the purpose.
* * * The law of conspiracy has been the chief means at the Government's disposal to deal with the
growing problems created by such organizations. I happen to think it is an awkward and inept
remedy, but I find no constitutional authority for taking this weapon from the Government. There is
no constitutional right to "gang up" on the Government.
While I think there was power in Congress to enact this statute and that, as applied in this case, it
cannot be held unconstitutional, I add that I have little faith in the long-range effectiveness of this
conviction to stop the rise of the Communist movement. Communism will not go to jail with these
Communists. No decision by this Court can forestall revolution whenever the existing government
fails to command the respect and loyalty of the people and sufficient distress and discontent is
allowed to grow up among the masses. Many failures by fallen governments attest that no
government can long prevent revolution by outlawry. Corruption, ineptitude, inflation, oppressive
taxation, militarization, injustice, and loss of leadership capable of intellectual initiative in domestic
or foreign affairs are allies on which the Communists count to bring opportunity knocking to their
door. Sometimes I think they may be mistaken. But the Communists are not building just for today—
the rest of us might profit by their example.
MR. JUSTICE BLACK, DISSENTING.
* * * At the outset I want to emphasize what the crime involved in this case is, and what it is not.
These petitioners were not charged with an attempt to overthrow the Government. They were not
charged with overt acts of any kind designed to overthrow the Government. They were not even
charged with saying anything or writing anything designed to overthrow the Government. The
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charge was that they agreed to assemble and to talk and publish certain ideas at a later date: The
indictment is that they conspired to organize the Communist Party and to use speech or newspapers
and other publications in the future to teach and advocate the forcible overthrow of the Government.
No matter how it is worded, this is a virulent form of prior censorship of speech and press, which I
believe the First Amendment forbids. I would hold § 3 of the Smith Act authorizing this prior
restraint unconstitutional on its face and as applied.
* * * The opinions for affirmance indicate that the chief reason for jettisoning the rule is the
expressed fear that advocacy of Communist doctrine endangers the safety of the Republic.
Undoubtedly, a governmental policy of unfettered communication of ideas does entail dangers. To
the Founders of this Nation, however, the benefits derived from free expression were worth the risk.
They embodied this philosophy in the First Amendment's command that "Congress shall make no
law . . . abridging the freedom of speech, or of the press . . . ." I have always believed that the First
Amendment is the keystone of our Government, that the freedoms it guarantees provide the best
insurance against destruction of all freedom. At least as to speech in the realm of public matters, I
believe that the "clear and present danger" test does not "mark the furthermost constitutional
boundaries of protected expression" but does "no more than recognize a minimum compulsion of the
Bill of Rights." Bridges v. California.
So long as this Court exercises the power of judicial review of legislation, I cannot agree that the First
Amendment permits us to sustain laws suppressing freedom of speech and press on the basis of
Congress' or our own notions of mere "reasonableness." Such a doctrine waters down the First
Amendment so that it amounts to little more than an admonition to Congress. The Amendment as so
construed is not likely to protect any but those "safe" or orthodox views which rarely need its
protection. * * *
Public opinion being what it now is, few will protest the conviction of these Communist petitioners.
There is hope, however, that in calmer times, when present pressures, passions and fears subside,
this or some later Court will restore the First Amendment liberties to the high preferred place where
they belong in a free society.
MR. JUSTICE DOUGLAS, DISSENTING.
If this were a case where those who claimed protection under the First Amendment were teaching
the techniques of sabotage, the assassination of the President, the filching of documents from public
files, the planting of bombs, the art of street warfare, and the like, I would have no doubts. The
freedom to speak is not absolute; the teaching of methods of terror and other seditious conduct
should be beyond the pale along with obscenity and immorality. This case was argued as if those
were the facts. The argument imported much seditious conduct into the record. That is easy and it
has popular appeal, for the activities of Communists in plotting and scheming against the free world
are common knowledge. But the fact is that no such evidence was introduced at the trial. There is a
statute which makes a seditious conspiracy unlawful. Petitioners, however, were not charged with a
"conspiracy to overthrow" the Government. They were charged with a conspiracy to form a party and
groups and assemblies of people who teach and advocate the overthrow of our Government by force
or violence and with a conspiracy to advocate and teach its overthrow by force and violence. It may
well be that indoctrination in the techniques of terror to destroy the Government would be indictable
under either statute. But the teaching which is condemned here is of a different character.
So far as the present record is concerned, what petitioners did was to organize people to teach and
themselves teach the Marxist-Leninist doctrine contained chiefly in four books: STALIN, FOUNDATIONS
OF LENINISM (1924); MARX AND ENGELS, MANIFESTO OF THE COMMUNIST PARTY (1848); LENIN, THE STATE AND
REVOLUTION (1917); HISTORY OF THE COMMUNIST PARTY OF THE SOVIET UNION (1939).
Those books are to Soviet Communism what MEIN KAMPF was to Nazism. If they are understood, the
ugliness of Communism is revealed, its deceit and cunning are exposed, the nature of its activities
becomes apparent, and the chances of its success less likely. That is not, of course, the reason why

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petitioners chose these books for their classrooms. They are fervent Communists to whom these
volumes are gospel. They preached the creed with the hope that some day it would be acted upon.
The opinion of the Court does not outlaw these texts nor condemn them to the fire, as the
Communists do literature offensive to their creed. But if the books themselves are not outlawed, if
they can lawfully remain on library shelves, by what reasoning does their use in a classroom become
a crime? It would not be a crime under the Act to introduce these books to a class, though that would
be teaching what the creed of violent overthrow of the Government is. The Act, as construed, requires
the element of intent—that those who teach the creed believe in it. The crime then depends not on
what is taught but on who the teacher is. That is to make freedom of speech turn not on what is said,
but on the intent with which it is said. Once we start down that road we enter territory dangerous to
the liberties of every citizen.
* * * There comes a time when even speech loses its constitutional immunity. Speech innocuous one
year may at another time fan such destructive flames that it must be halted in the interests of the
safety of the Republic. That is the meaning of the clear and present danger test. When conditions are
so critical that there will be no time to avoid the evil that the speech threatens, it is time to call a halt.
Otherwise, free speech which is the strength of the Nation will be the cause of its destruction.
Yet free speech is the rule, not the exception. The restraint to be constitutional must be based on
more than fear, on more than passionate opposition against the speech, on more than a revolted
dislike for its contents. There must be some immediate injury to society that is likely if speech is
allowed. The classic statement of these conditions was made by Mr. Justice Brandeis in his concurring
opinion in Whitney v. California * * *
I had assumed that the question of the clear and present danger, being so critical an issue in the case,
would be a matter for submission to the jury. * * *
Yet, whether the question is one for the Court or the jury, there should be evidence of record on the
issue. This record, however, contains no evidence whatsoever showing that the acts charged, viz., the
teaching of the Soviet theory of revolution with the hope that it will be realized, have created any
clear and present danger to the Nation. The Court, however, rules to the contrary. * * *
The nature of Communism as a force on the world scene would, of course, be relevant to the issue of
clear and present danger of petitioners' advocacy within the United States. But the primary
consideration is the strength and tactical position of petitioners and their converts in this country. On
that there is no evidence in the record. If we are to take judicial notice of the threat of Communists
within the nation, it should not be difficult to conclude that as a political party they are of little
consequence. Communists in this country have never made a respectable or serious showing in any
election. I would doubt that there is a village, let alone a city or county or state, which the
Communists could carry. Communism in the world scene is no bogeyman; but Communism as a
political faction or party in this country plainly is. Communism has been so thoroughly exposed in
this country that it has been crippled as a political force. Free speech has destroyed it as an effective
political party. It is inconceivable that those who went up and down this country preaching the
doctrine of revolution which petitioners espouse would have any success. In days of trouble and
confusion, when bread lines were long, when the unemployed walked the streets, when people were
starving, the advocates of a short-cut by revolution might have a chance to gain adherents. But today
there are no such conditions. The country is not in despair; the people know Soviet Communism; the
doctrine of Soviet revolution is exposed in all of its ugliness and the American people want none of it.
How it can be said that there is a clear and present danger that this advocacy will succeed is,
therefore, a mystery. Some nations less resilient than the United States, where illiteracy is high and
where democratic traditions are only budding, might have to take drastic steps and jail these men for
merely speaking their creed. But in America they are miserable merchants of unwanted ideas; their
wares remain unsold. The fact that their ideas are abhorrent does not make them powerful.
The political impotence of the Communists in this country does not, of course, dispose of the
problem. Their numbers; their positions in industry and government; the extent to which they have
in fact infiltrated the police, the armed services, transportation, stevedoring, power plants, munitions
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works, and other critical places—these facts all bear on the likelihood that their advocacy of the
Soviet theory of revolution will endanger the Republic. But the record is silent on these facts. If we
are to proceed on the basis of judicial notice, it is impossible for me to say that the Communists in
this country are so potent or so strategically deployed that they must be suppressed for their speech.
I could not so hold unless I were willing to conclude that the activities in recent years of committees
of Congress, of the Attorney General, of labor unions, of state legislatures, and of Loyalty Boards were
so futile as to leave the country on the edge of grave peril. To believe that petitioners and their
following are placed in such critical positions as to endanger the Nation is to believe the incredible. It
is safe to say that the followers of the creed of Soviet Communism are known to the F. B. I.; that in
case of war with Russia they will be picked up overnight as were all prospective saboteurs at the
commencement of World War II; that the invisible army of petitioners is the best known, the most
beset, and the least thriving of any fifth column in history. Only those held by fear and panic could
think otherwise.
* * * The First Amendment provides that "Congress shall make no law . . . abridging the freedom of
speech." The Constitution provides no exception. This does not mean, however, that the Nation need
hold its hand until it is in such weakened condition that there is no time to protect itself from
incitement to revolution. Seditious conduct can always be punished. But the command of the First
Amendment is so clear that we should not allow Congress to call a halt to free speech except in the
extreme case of peril from the speech itself. The First Amendment makes confidence in the common
sense of our people and in their maturity of judgment the great postulate of our democracy. Its
philosophy is that violence is rarely, if ever, stopped by denying civil liberties to those advocating
resort to force. The First Amendment reflects the philosophy of Jefferson "that it is time enough for
the rightful purposes of civil government, for its officers to interfere when principles break out into
overt acts against peace and good order." The political censor has no place in our public debates.
Unless and until extreme and necessitous circumstances are shown, our aim should be to keep
speech unfettered and to allow the processes of law to be invoked only when the provocateurs
among us move from speech to action.

Notes

1.
The opinions in Dennis are lengthy and review the earlier World War I cases, including
Holmes’ dissents. How is Communism portrayed in Dennis, especially when compared to earlier
political viewpoints? How do the portrayals of Communism compare to current views of
Communism? Are there current political viewpoints that seem commensurate with the Court’s view
of Communism?
2.
The Court considers the Smith Act “on its face” and as applied. What are the arguments that
it is facially unconstitutional as a violation of the First Amendment?

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III. “Offensive” Speech
Chaplinsky v. New Hampshire
315 U.S. 568 (1942)
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE [UNANIMOUS] COURT.
Appellant, a member of the sect known as Jehovah's Witnesses, was convicted in the municipal court
of Rochester, New Hampshire, for violation of Chapter 378, § 2, of the Public Laws of New Hampshire:
No person shall address any offensive, derisive or annoying word to any other person who is lawfully
in any street or other public place, nor call him by any offensive or derisive name, nor make any noise
or exclamation in his presence and hearing with intent to deride, offend or annoy him, or to prevent
him from pursuing his lawful business or occupation.

The complaint charged that appellant,
with force and arms, in a certain public place in said city of Rochester, to-wit, on the public sidewalk on
the easterly side of Wakefield Street, near unto the entrance of the City Hall, did unlawfully repeat the
words following, addressed to the complainant, that is to say, "You are a God damned racketeer" and "a
damned Fascist and the whole government of Rochester are Fascists or agents of Fascists," the same
being offensive, derisive and annoying words and names.

There is no substantial dispute over the facts. Chaplinsky was distributing the literature of his sect on
the streets of Rochester on a busy Saturday afternoon. Members of the local citizenry complained to
the City Marshal, Bowering, that Chaplinsky was denouncing all religion as a "racket." Bowering told
them that Chaplinsky was lawfully engaged, and then warned Chaplinsky that the crowd was getting
restless. Some time later, a disturbance occurred and the traffic officer on duty at the busy
intersection started with Chaplinsky for the police station, but did not inform him that he was under
arrest or that he was going to be arrested. On the way, they encountered Marshal Bowering, who had
been advised that a riot was under way and was therefore hurrying to the scene. Bowering repeated
his earlier warning to Chaplinsky, who then addressed to Bowering the words set forth in the
complaint.
Chaplinsky's version of the affair was slightly different. He testified that, when he met Bowering, he
asked him to arrest the ones responsible for the disturbance. In reply, Bowering cursed him and told
him to come along. Appellant admitted that he said the words charged in the complaint, with the
exception of the name of the Deity.
It is now clear that “Freedom of speech and freedom of the press, which are protected by the First
Amendment from infringement by Congress, are among the fundamental personal rights and
liberties which are protected by the Fourteenth Amendment from invasion by state action.”
Allowing the broadest scope to the language and purpose of the Fourteenth Amendment, it is well
understood that the right of free speech is not absolute at all times and under all circumstances.
There are certain well defined and narrowly limited classes of speech, the prevention and
punishment of which have never been thought to raise any Constitutional problem. These include the
lewd and obscene, the profane, the libelous, and the insulting or "fighting" words -- those which, by
their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well
observed that such utterances are no essential part of any exposition of ideas, and are of such slight
social value as a step to truth that any benefit that may be derived from them is clearly outweighed
by the social interest in order and morality.
Resort to epithets or personal abuse is not in any proper sense communication of information or
opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question
under that instrument.

Cantwell v. Connecticut (1940).
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We are unable to say that the limited scope of the statute as thus construed [by the New Hampshire
Supreme Court] contravenes the Constitutional right of free expression. It is a statute narrowly
drawn and limited to define and punish specific conduct lying within the domain of state power, the
use in a public place of words likely to cause a breach of the peace. This conclusion necessarily
disposes of appellant's contention that the statute is so vague and indefinite as to render a conviction
thereunder a violation of due process. A statute punishing verbal acts, carefully drawn so as not
unduly to impair liberty of expression, is not too vague for a criminal law.
Nor can we say that the application of the statute to the facts disclosed by the record substantially or
unreasonably impinges upon the privilege of free speech. Argument is unnecessary to demonstrate
that the appellations "damned racketeer" and "damned Fascist" are epithets likely to provoke the
average person to retaliation, and thereby cause a breach of the peace.
The refusal of the state court to admit evidence of provocation and evidence bearing on the truth or
falsity of the utterances is open to no Constitutional objection. Whether the facts sought to be proved
by such evidence constitute a defense to the charge, or may be shown in mitigation, are questions for
the state court to determine. Our function is fulfilled by a determination that the challenged statute,
on its face and as applied, does not contravene the Fourteenth Amendment.
Affirmed.

Cohen v. California
403 U.S. 15 (1971)
MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT. JUSTICE BLACKMUN FILED A DISSENTING OPINION, IN
WHICH THE CHIEF JUSTICE [BURGER] AND JUSTICE BLACK JOINED.
MR. JUSTICE HARLAN DELIVERED THE OPINION OF THE COURT.
This case may seem at first blush too inconsequential to find its way into our books, but the issue it
presents is of no small constitutional significance.
Appellant Paul Robert Cohen was convicted in the Los Angeles Municipal Court of violating that part
of California Penal Code § 415 which prohibits "maliciously and willfully disturb[ing] the peace or
quiet of any neighborhood or person . . . by . . . offensive conduct. . . ." He was given 30 days'
imprisonment. The facts upon which his conviction rests are detailed in the opinion of the Court of
Appeal of California, Second Appellate District, as follows:
"On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor
outside of division 20 of the municipal court wearing a jacket bearing the words `Fuck the Draft' which
were plainly visible. There were women and children present in the corridor. The defendant was
arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as
a means of informing the public of the depth of his feelings against the Vietnam War and the draft.
"The defendant did not engage in, nor threaten to engage in, nor did anyone as the result of his conduct
in fact commit or threaten to commit any act of violence. The defendant did not make any loud or
unusual noise, nor was there any evidence that he uttered any sound prior to his arrest."

In affirming the conviction the Court of Appeal held that "offensive conduct" means "behavior which
has a tendency to provoke others to acts of violence or to in turn disturb the peace," and that the
State had proved this element because, on the facts of this case, "[i]t was certainly reasonably
foreseeable that such conduct might cause others to rise up to commit a violent act against the
person of the defendant or attempt to forceably remove his jacket." The California Supreme Court
declined review by a divided vote. * * * We now reverse. * * *

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I
In order to lay hands on the precise issue which this case involves, it is useful first to canvass various
matters which this record does not present.
The conviction quite clearly rests upon the asserted offensiveness of the words Cohen used to convey
his message to the public. The only "conduct" which the State sought to punish is the fact of
communication. Thus, we deal here with a conviction resting solely upon "speech," not upon any
separately identifiable conduct which allegedly was intended by Cohen to be perceived by others as
expressive of particular views but which, on its face, does not necessarily convey any message and
hence arguably could be regulated without effectively repressing Cohen's ability to express himself.
Further, the State certainly lacks power to punish Cohen for the underlying content of the message
the inscription conveyed. At least so long as there is no showing of an intent to incite disobedience to
or disruption of the draft, Cohen could not, consistently with the First and Fourteenth Amendments,
be punished for asserting the evident position on the inutility or immorality of the draft his jacket
reflected.
Appellant's conviction, then, rests squarely upon his exercise of the "freedom of speech" protected
from arbitrary governmental interference by the Constitution and can be justified, if at all, only as a
valid regulation of the manner in which he exercised that freedom, not as a permissible prohibition
on the substantive message it conveys. This does not end the inquiry, of course, for the First and
Fourteenth Amendments have never been thought to give absolute protection to every individual to
speak whenever or wherever he pleases, or to use any form of address in any circumstances that he
chooses. In this vein, too, however, we think it important to note that several issues typically
associated with such problems are not presented here.
In the first place, Cohen was tried under a statute applicable throughout the entire State. Any attempt
to support this conviction on the ground that the statute seeks to preserve an appropriately decorous
atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in
the statute that would have put appellant on notice that certain kinds of otherwise permissible
speech or conduct would nevertheless, under California law, not be tolerated in certain places. No
fair reading of the phrase "offensive conduct" can be said sufficiently to inform the ordinary person
that distinctions between certain locations are thereby created.
In the second place, as it comes to us, this case cannot be said to fall within those relatively few
categories of instances where prior decisions have established the power of government to deal
more comprehensively with certain forms of individual expression simply upon a showing that such
a form was employed. This is not, for example, an obscenity case. Whatever else may be necessary to
give rise to the States' broader power to prohibit obscene expression, such expression must be, in
some significant way, erotic. It cannot plausibly be maintained that this vulgar allusion to the
Selective Service System would conjure up such psychic stimulation in anyone likely to be confronted
with Cohen's crudely defaced jacket.
This Court has also held that the States are free to ban the simple use, without a demonstration of
additional justifying circumstances, of so-called "fighting words," those personally abusive epithets
which, when addressed to the ordinary citizen, are, as a matter of common knowledge, inherently
likely to provoke violent reaction. Chaplinsky v. New Hampshire (1942). While the four-letter word
displayed by Cohen in relation to the draft is not uncommonly employed in a personally provocative
fashion, in this instance it was clearly not "directed to the person of the hearer." Cantwell v.
Connecticut (1940). No individual actually or likely to be present could reasonably have regarded the
words on appellant's jacket as a direct personal insult. Nor do we have here an instance of the
exercise of the State's police power to prevent a speaker from intentionally provoking a given group
to hostile reaction. There is, as noted above, no showing that anyone who saw Cohen was in fact
violently aroused or that appellant intended such a result.
Finally, in arguments before this Court much has been made of the claim that Cohen's distasteful
mode of expression was thrust upon unwilling or unsuspecting viewers, and that the State might
therefore legitimately act as it did in order to protect the sensitive from otherwise unavoidable
exposure to appellant's crude form of protest. Of course, the mere presumed presence of unwitting
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listeners or viewers does not serve automatically to justify curtailing all speech capable of giving
offense. While this Court has recognized that government may properly act in many situations to
prohibit intrusion into the privacy of the home of unwelcome views and ideas which cannot be
totally banned from the public dialogue, we have at the same time consistently stressed that "we are
often `captives' outside the sanctuary of the home and subject to objectionable speech." The ability of
government, consonant with the Constitution, to shut off discourse solely to protect others from
hearing it is, in other words, dependent upon a showing that substantial privacy interests are being
invaded in an essentially intolerable manner. Any broader view of this authority would effectively
empower a majority to silence dissidents simply as a matter of personal predilections.
In this regard, persons confronted with Cohen's jacket were in a quite different posture than, say,
those subjected to the raucous emissions of sound trucks blaring outside their residences. Those in
the Los Angeles courthouse could effectively avoid further bombardment of their sensibilities simply
by averting their eyes. And, while it may be that one has a more substantial claim to a recognizable
privacy interest when walking through a courthouse corridor than, for example, strolling through
Central Park, surely it is nothing like the interest in being free from unwanted expression in the
confines of one's own home. Given the subtlety and complexity of the factors involved, if Cohen's
"speech" was otherwise entitled to constitutional protection, we do not think the fact that some
unwilling "listeners" in a public building may have been briefly exposed to it can serve to justify this
breach of the peace conviction where, as here, there was no evidence that persons powerless to avoid
appellant's conduct did in fact object to it, and where that portion of the statute upon which Cohen's
conviction rests evinces no concern, either on its face or as construed by the California courts, with
the special plight of the captive auditor, but, instead, indiscriminately sweeps within its prohibitions
all "offensive conduct" that disturbs "any neighborhood or person."
II
Against this background, the issue flushed by this case stands out in bold relief. It is whether
California can excise, as "offensive conduct," one particular scurrilous epithet from the public
discourse, either upon the theory of the court below that its use is inherently likely to cause violent
reaction or upon a more general assertion that the States, acting as guardians of public morality, may
properly remove this offensive word from the public vocabulary.
The rationale of the California court is plainly untenable. At most it reflects an "undifferentiated fear
or apprehension of disturbance [which] is not enough to overcome the right to freedom of
expression." Tinker v. Des Moines Indep. Community School Dist. (1969). We have been shown no
evidence that substantial numbers of citizens are standing ready to strike out physically at whoever
may assault their sensibilities with execrations like that uttered by Cohen. There may be some
persons about with such lawless and violent proclivities, but that is an insufficient base upon which
to erect, consistently with constitutional values, a governmental power to force persons who wish to
ventilate their dissident views into avoiding particular forms of expression. The argument amounts
to little more than the self-defeating proposition that to avoid physical censorship of one who has not
sought to provoke such a response by a hypothetical coterie of the violent and lawless, the States may
more appropriately effectuate that censorship themselves.
Admittedly, it is not so obvious that the First and Fourteenth Amendments must be taken to disable
the States from punishing public utterance of this unseemly expletive in order to maintain what they
regard as a suitable level of discourse within the body politic. We think, however, that examination
and reflection will reveal the shortcomings of a contrary viewpoint.
At the outset, we cannot overemphasize that, in our judgment, most situations where the State has a
justifiable interest in regulating speech will fall within one or more of the various established
exceptions, discussed above but not applicable here, to the usual rule that governmental bodies may
not prescribe the form or content of individual expression. Equally important to our conclusion is the
constitutional backdrop against which our decision must be made. The constitutional right of free
expression is powerful medicine in a society as diverse and populous as ours. It is designed and
intended to remove governmental restraints from the arena of public discussion, putting the decision
as to what views shall be voiced largely into the hands of each of us, in the hope that use of such
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freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief
that no other approach would comport with the premise of individual dignity and choice upon which
our political system rests. See Whitney v. California (1927) (Brandeis, J., concurring).
To many, the immediate consequence of this freedom may often appear to be only verbal tumult,
discord, and even offensive utterance. These are, however, within established limits, in truth
necessary side effects of the broader enduring values which the process of open debate permits us to
achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of
weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a
trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental
societal values are truly implicated. That is why "[w]holly neutral futilities . . . come under the
protection of free speech as fully as do Keats' poems or Donne's sermons," and why "so long as the
means are peaceful, the communication need not meet standards of acceptability."
Against this perception of the constitutional policies involved, we discern certain more particularized
considerations that peculiarly call for reversal of this conviction. First, the principle contended for by
the State seems inherently boundless. How is one to distinguish this from any other offensive word?
Surely the State has no right to cleanse public debate to the point where it is grammatically palatable
to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping
short of that result were we to affirm the judgment below. For, while the particular four-letter word
being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often
true that one man's vulgarity is another's lyric. Indeed, we think it is largely because governmental
officials cannot make principled distinctions in this area that the Constitution leaves matters of taste
and style so largely to the individual.
Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here,
that much linguistic expression serves a dual communicative function: it conveys not only ideas
capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In
fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction
the view that the Constitution, while solicitous of the cognitive content of individual speech, has little
or no regard for that emotive function which, practically speaking, may often be the more important
element of the overall message sought to be communicated. * * *
Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular
words without also running a substantial risk of suppressing ideas in the process. Indeed,
governments might soon seize upon the censorship of particular words as a convenient guise for
banning the expression of unpopular views. We have been able, as noted above, to discern little social
benefit that might result from running the risk of opening the door to such grave results.
It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions,
the State may not, consistently with the First and Fourteenth Amendments, make the simple public
display here involved of this single four-letter expletive a criminal offense. Because that is the only
arguably sustainable rationale for the conviction here at issue, the judgment below must be
Reversed.
MR. JUSTICE BLACKMUN, WITH WHOM THE CHIEF JUSTICE [BURGER] AND MR. JUSTICE BLACK JOIN, DISSENTING.
I dissent, and I do so for two reasons:
Cohen's absurd and immature antic, in my view, was mainly conduct and little speech. * * * Further,
the case appears to me to be well within the sphere of Chaplinsky v. New Hampshire (1942), where
Mr. Justice Murphy, a known champion of First Amendment freedoms, wrote for a unanimous bench.
As a consequence, this Court's agonizing over First Amendment values seems misplaced and
unnecessary.
[The second reason concerns the Court’s “jurisdiction” over the constitutional question].
[MR. JUSTICE WHITE, DISSENTING OPINION, discussing the second reason, omitted].

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Notes

1.
The exclusion of certain types of speech as unprotected by the First Amendment is often
described as the “categorical” approach. Consider the categories of speech that the Court excludes
from First Amendment consideration. What is the First Amendment doctrine that develops for those
categories? Is it operative in the next cases?
2.
Why does the Court reject the “appropriately decorous atmosphere in the courthouse” for
sustaining Cohen’s conviction?

IV. Distinguishing Protected Advocacy
Brandenburg v. Ohio
395 U.S. 444 (1969)
PER CURIAM OPINION FOR THE COURT. JUSTICE DOUGLAS AND JUSTICE BLACK FILED CONCURRING OPINIONS.
PER CURIAM OPINION FOR THE COURT.
The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism
statute for "advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful
methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily
assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the
doctrines of criminal syndicalism." Ohio Rev. Code Ann. § 2923.13. He was fined $1,000 and
sentenced to one to 10 years' imprisonment. The appellant challenged the constitutionality of the
criminal syndicalism statute under the First and Fourteenth Amendments to the United States
Constitution, but the intermediate appellate court of Ohio affirmed his conviction without opinion.
The Supreme Court of Ohio dismissed his appeal, sua sponte, "for the reason that no substantial
constitutional question exists herein." It did not file an opinion or explain its conclusions. Appeal was
taken to this Court, and we noted probable jurisdiction. We reverse.
The record shows that a man, identified at trial as the appellant, telephoned an announcer-reporter
on the staff of a Cincinnati television station and invited him to come to a Ku Klux Klan "rally" to be
held at a farm in Hamilton County. With the cooperation of the organizers, the reporter and a
cameraman attended the meeting and filmed the events. Portions of the films were later broadcast on
the local station and on a national network.
The prosecution's case rested on the films and on testimony identifying the appellant as the person
who communicated with the reporter and who spoke at the rally. The State also introduced into
evidence several articles appearing in the film, including a pistol, a rifle, a shotgun, ammunition, a
Bible, and a red hood worn by the speaker in the films.
One film showed 12 hooded figures, some of whom carried firearms. They were gathered around a
large wooden cross, which they burned. No one was present other than the participants and the
newsmen who made the film. Most of the words uttered during the scene were incomprehensible
when the film was projected, but scattered phrases could be understood that were derogatory of
Negroes and, in one instance, of Jews. Another scene on the same film showed the appellant, in Klan
regalia, making a speech. The speech, in full, was as follows:
"This is an organizers' meeting. We have had quite a few members here today which are—we have
hundreds, hundreds of members throughout the State of Ohio. I can quote from a newspaper clipping
from the Columbus, Ohio Dispatch, five weeks ago Sunday morning. The Klan has more members in the
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State of Ohio than does any other organization. We're not a revengent organization, but if our President,
our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that
there might have to be some revengeance taken.
"We are marching on Congress July the Fourth, four hundred thousand strong. From there we are
dividing into two groups, one group to march on St. Augustine, Florida, the other group to march into
Mississippi. Thank you."

The second film showed six hooded figures one of whom, later identified as the appellant, repeated a
speech very similar to that recorded on the first film. The reference to the possibility of
"revengeance" was omitted, and one sentence was added: "Personally, I believe the nigger should be
returned to Africa, the Jew returned to Israel." Though some of the figures in the films carried
weapons, the speaker did not.
The Ohio Criminal Syndicalism Statute was enacted in 1919. From 1917 to 1920, identical or quite
similar laws were adopted by 20 States and two territories. In 1927, this Court sustained the
constitutionality of California's Criminal Syndicalism Act, the text of which is quite similar to that of
the laws of Ohio. Whitney v. California (1927). The Court upheld the statute on the ground that,
without more, "advocating" violent means to effect political and economic change involves such
danger to the security of the State that the State may outlaw it. But Whitney has been thoroughly
discredited by later decisions. See Dennis v. United States (1951). These later decisions have
fashioned the principle that the constitutional guarantees of free speech and free press do not permit
a State to forbid or proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is likely to incite or
produce such action. As we said in Noto v. United States (1961), "the mere abstract teaching . . . of the
moral propriety or even moral necessity for a resort to force and violence, is not the same as
preparing a group for violent action and steeling it to such action." A statute which fails to draw this
distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth
Amendments. It sweeps within its condemnation speech which our Constitution has immunized from
governmental control.
Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes
persons who "advocate or teach the duty, necessity, or propriety" of violence "as a means of
accomplishing industrial or political reform"; or who publish or circulate or display any book or
paper containing such advocacy; or who "justify" the commission of violent acts "with intent to
exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism"; or who
"voluntarily assemble" with a group formed "to teach or advocate the doctrines of criminal
syndicalism." Neither the indictment nor the trial judge's instructions to the jury in any way refined
the statute's bald definition of the crime in terms of mere advocacy not distinguished from
incitement to imminent lawless action.
Accordingly, we are here confronted with a statute which, by its own words and as applied, purports
to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely
to advocate the described type of action. Such a statute falls within the condemnation of the First and
Fourteenth Amendments. The contrary teaching of Whitney v. California, cannot be supported, and
that decision is therefore overruled.
Reversed.
MR. JUSTICE DOUGLAS, CONCURRING.
While I join the opinion of the Court, I desire to enter a caveat.
The "clear and present danger" test was adumbrated by Mr. Justice Holmes in a case arising during
World War I—a war "declared" by the Congress, not by the Chief Executive. The case was Schenck v.
United States, where the defendant was charged with attempts to cause insubordination in the
military and obstruction of enlistment. * * *
Though I doubt if the "clear and present danger" test is congenial to the First Amendment in time of a
declared war, I am certain it is not reconcilable with the First Amendment in days of peace.
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The Court quite properly overrules Whitney v. California, which involved advocacy of ideas which the
majority of the Court deemed unsound and dangerous.
Mr. Justice Holmes, though never formally abandoning the "clear and present danger" test, moved
closer to the First Amendment ideal * * * in dissent in Gitlow v.New York. * * * *
We have never been faithful to the philosophy of that dissent. * * * * My own view is quite different. I
see no place in the regime of the First Amendment for any "clear and present danger" test, whether
strict and tight as some would make it, or free-wheeling as the Court in Dennis rephrased it.
MR. JUSTICE BLACK, CONCURRING [OMITTED]

Hess v. Indiana
414 U.S. 105 (1973)
PER CURIAM OPINION FOR THE COURT. JUSTICE REHNQUIST FILED A DISSENTING OPINION, IN WHICH THE CHIEF
JUSTICE AND JUSTICE BLACKMUN JOINED.
PER CURIAM OPINION FOR THE COURT.
Gregory Hess appeals from his conviction in the Indiana courts for violating the State's disorderly
conduct statute. Appellant contends that his conviction should be reversed because the statute is
unconstitutionally vague, because the statute is overbroad in that it forbids activity that is protected
under the First and Fourteenth Amendments, and because the statute, as applied here, abridged his
constitutionally protected freedom of speech, These contentions were rejected in the City Court,
where Hess was convicted, and in the Superior Court, which reviewed his conviction. The Supreme
Court of Indiana, with one dissent, considered and rejected each of Hess' constitutional contentions,
and accordingly affirmed his conviction.
The events leading to Hess' conviction began with an antiwar demonstration on the campus of
Indiana University. In the course of the demonstration, approximately 100 to 150 of the
demonstrators moved onto a public street and blocked the passage of vehicles. When the
demonstrators did not respond to verbal directions from the sheriff to clear the street, the sheriff and
his deputies began walking up the street, and the demonstrators in their path moved to the curbs on
either side, joining a large number of spectators who had gathered. Hess was standing off the street
as the sheriff passed him. The sheriff heard Hess utter the word "fuck" in what he later described as a
loud voice and immediately arrested him on the disorderly conduct charge. It was later stipulated
that what appellant had said was "We'll take the fucking street later," or "We'll take the fucking street
again." Two witnesses who were in the immediate vicinity testified, apparently without
contradiction, that they heard Hess' words and witnessed his arrest. They indicated that Hess did not
appear to be exhorting the crowd to go back into the street, that he was facing the crowd and not the
street when he uttered the statement, that his statement did not appear to be addressed to any
particular person or group, and that his tone, although loud, was no louder than that of the other
people in the area.
Indiana's disorderly conduct statute was applied in this case to punish only spoken words. It hardly
needs repeating that "[t]he constitutional guarantees of freedom of speech forbid the States to punish
the use of words or language not within `narrowly limited classes of speech.'" The words here did not
fall within any of these "limited classes." In the first place, it is clear that the Indiana court specifically
abjured any suggestion that Hess' words could be punished as obscene.* * * Indeed, after Cohen v.
California (1971) such a contention with regard to the language at issue would not be tenable. By the
same token, any suggestion that Hess' speech amounted to "fighting words," Chaplinsky v. New
Hampshire (1942), could not withstand scrutiny. Even if under other circumstances this language
could be regarded as a personal insult, the evidence is undisputed that Hess' statement was not
directed to any person or group in particular. Although the sheriff testified that he was offended by
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the language, he also stated that he did not interpret the expression as being directed personally at
him, and the evidence is clear that appellant had his back to the sheriff at the time. Thus, under our
decisions, the State could not punish this speech as "fighting words."
* * * The Indiana Supreme Court placed primary reliance on the trial court's finding that Hess'
statement "was intended to incite further lawless action on the part of the crowd in the vicinity of
appellant and was likely to produce such action." At best, however, the statement could be taken as
counsel for present moderation; at worst, it amounted to nothing more than advocacy of illegal
action at some indefinite future time. This is not sufficient to permit the State to punish Hess' speech.
Under our decisions, "the constitutional guarantees of free speech and free press do not permit a
State to forbid or proscribe advocacy of the use of force or of law violation except where such
advocacy is directed to inciting or producing imminent lawless action and is likely to incite or
produce such action." Brandenburg v. Ohio (1969). (Emphasis added.) Since the uncontroverted
evidence showed that Hess' statement was not directed to any person or group of persons, it cannot
be said that he was advocating, in the normal sense, any action. And since there was no evidence, or
rational inference from the import of the language, that his words were intended to produce, and
likely to produce, imminent disorder, those words could not be punished by the State on the ground
that they had "a `tendency to lead to violence.'
Accordingly, the motion to proceed in forma pauperis is granted and the judgment of the Supreme
Court of Indiana is reversed.
MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE BLACKMUN JOIN, DISSENTING.
The Court's per curiam opinion rendered today aptly demonstrates the difficulties inherent in
substituting a different complex of factual inferences for the inferences reached by the courts below.
Since it is not clear to me that the Court has a sufficient basis for its action, I dissent.
It should be noted at the outset that the case was tried de novo in the Superior Court of Indiana upon
a stipulated set of facts, and, therefore, the record is perhaps unusually colorless and devoid of life.
Nevertheless, certain facts are clearly established. Appellant was arrested during the course of an
antiwar demonstration conducted at Indiana University in May 1970. The demonstration was of
sufficient size and vigor to require the summoning of police, and both the Sheriff's Department and
the Bloomington Police Department were asked to help university officials and police remove
demonstrators blocking doorways to a campus building. At the time the sheriff arrived,
"approximately 200-300 persons" were assembled at that particular building.
The doorways eventually were cleared of demonstrators, but, in the process, two students were
placed under arrest. This action did not go unnoticed by the demonstrators. As the stipulation notes,
"[i]n apparent response to these arrests, about 100-150 of the persons who had gathered as
spectators went into Indiana Avenue in front of Bryan Hall and in front of the patrol car in which the
two arrestees had been placed." Thus, by contrast to the majority's somewhat antiseptic description
of this massing as being "[i]n the course of the demonstration," the demonstrators' presence in the
street was not part of the normal "course of the demonstration" but could reasonably be construed as
an attempt to intimidate and impede the arresting officers. Furthermore, as the stipulation also
notes, the demonstrators "did not respond to verbal directions" from the sheriff to clear the street.
Thus, the sheriff and his deputies found it necessary to disperse demonstrators by walking up the
street directly into their path. Only at that point did the demonstrators move to the curbs.
The stipulation contains only one other declaration of fact: that Sheriff Thrasher arrested the
appellant, Gregory Hess, for disorderly conduct. The remainder of the stipulation merely summarizes
testimony, particularly the testimony of Sheriff Thrasher, two female witnesses (both students at
Indiana University) who were apparently part of the crowd, and Dr. Owen Thomas, a professor of
English at the university. The only "established" facts which emerge from these summaries are that
"Hess was standing off the street on the eastern curb of Indiana Avenue" and that he said, in the
words of the trial court, "We'll take the fucking street later (or again)." The two female witnesses
testified, as the majority correctly observes, that they were not offended by Hess' statement, that it
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was said no louder than statements by other demonstrators, "that Hess did not appear to be
exhorting the crowd to go back into the street," that he was facing the crowd, and "that his statement
did not appear to be addressed to any particular person or group." (Emphasis added.)
The majority makes much of this "uncontroverted evidence," but I am unable to find anywhere in the
opinion an explanation of why it must be believed. Surely the sentence "We'll take the fucking street
later (or again)" is susceptible of characterization as an exhortation, particularly when uttered in a
loud voice while facing a crowd. The opinions of two defense witnesses cannot be considered proof to
the contrary, since the trial court was perfectly free to reject this testimony if it so desired. Perhaps,
as these witnesses and the majority opinion seem to suggest, appellant was simply expressing his
views to the world at large, but that is surely not the only rational explanation.
The majority also places great emphasis on appellant's use of the word "later," even suggesting at one
point that the statement "could be taken as counsel for present moderation." The opinion continues:
"[A]t worst, it amounted to nothing more than advocacy of illegal action at some indefinite future
time." From that observation, the majority somehow concludes that the advocacy was not directed
towards inciting imminent action. But whatever other theoretical interpretations may be placed
upon the remark, there are surely possible constructions of the statement which would encompass
more or less immediate and continuing action against the harassed police. They should not be
rejected out of hand because of an unexplained preference for other acceptable alternatives.
The simple explanation for the result in this case is that the majority has interpreted the evidence
differently from the courts below. In doing so, however, I believe the Court has exceeded the proper
scope of our review. Rather than considering the "evidence" in the light most favorable to the
appellee and resolving credibility questions against the appellant, as many of our cases have
required, the Court has instead fashioned its own version of events from a paper record, some
"uncontroverted evidence," and a large measure of conjecture. Since this is not the traditional
function of any appellate court, and is surely not a wise or proper use of the authority of this Court, I
dissent.

Notes
1.
The Court in Brandenburg articulated a standard to distinguish protected advocacy from
unprotected speech. Make sure you can articulate that standard.
2.
The Court in Brandenburg overrules Whitney v. California explicitly, reasoning that the Ohio
Syndicalism Act at issue in Brandenburg is similar to the California Syndicalism Act under which
Whitney was prosecuted. Should other cases also have been overruled, as Justice Douglas seems to
have suggested in his dissent?
3.
Is there an argument that the speech in Brandenburg was actually more of a “clear and
present” danger than the speech in Whitney?
4.
The dissent in Hess suggests that the statements and acts of Hess are less clear that the Court
describes them. Can you revise the statements and the acts of Hess so that they would be
unprotected under the Brandenburg standard?
5.
Importantly, and similar to Cohen, Hess was convicted under a disorderly conduct statute
but was able to raise a First Amendment claim to the statute as applied to his speech acts.

Note: The Heckler’s Veto

The danger of provoking violence by speech is sometimes said to pose the problem of the “heckler’s
veto.” Can a rowdy crowd or “hecklers” essentially extinguish a speaker’s First Amendment rights by
posing a danger of violence? On the other hand, can apathetic or nonviolent listeners essentially
grant a speaker First Amendment protection.

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Consider this situation: A group of people known as the "Bible Believers," came to the Arab
International festival on the streets of Dearborn, Michigan - - - as they had done the year before - - to "preach." Their speech included "strongly worded" slogans on signs, t-shirts, and banners (e.g.,
"Islam Is A Religion of Blood and Murder"), a "severed pig's head on a stick" (intended to protect the
Bible Believers by repelling observers who feared it), statements through a megaphone castigating
the following of a "pedophile prophet" and warning of "God's impending judgment." A crowd
gathered, seemingly mostly of children, who yelled back and threw items at the “preachers.” The
throwing and yelling escalated.
A law enforcement officer from the County asked the Bible Believers to leave, and - when pressed saying they would be cited for disorderly conduct: "You need to leave. If you don’t leave, we’re going
to cite you for disorderly. You’re creating a disturbance. I mean, look at your people here. This is
crazy!” They were eventually escorted out.
Members of the Bible Believers brought suit in federal court arguing that their First Amendment
rights were violated. The district judge granted summary judgment in favor of the County and its
officials. On appeal, a divided Sixth Circuit panel affirmed, with the dissenting judge arguing that the
“law enforcement is principally required to protect lawful speakers over and above law-breakers.”
The Sixth Circuit en banc vacated the panel opinion.
What do you think the proper result should be and why?

V.

“Political” Speech in the Age of “Terrorism”

In this complex case, consider how anti-terrorism acts can criminalize speech, and whether the same
rationales in this case could have been applied to the earlier cases in this Chapter.

Holder v. Humanitarian Law Project
561 U.S. 1 (2010)
ROBERTS, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEVENS, SCALIA, KENNEDY, THOMAS, AND ALITO,
JJ., JOINED. BREYER, J., FILED A DISSENTING OPINION, IN WHICH GINSBURG AND SOTOMAYOR, JJ., JOINED.
CHIEF JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT.
Congress has prohibited the provision of "material support or resources" to certain foreign
organizations that engage in terrorist activity. 18 U. S. C. §2339B(a)(1). That prohibition is based on a
finding that the specified organizations "are so tainted by their criminal conduct that any
contribution to such an organization facilitates that conduct." Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), §301(a)(7), 110 Stat. 1247, note following 18 U. S. C. §2339B (Findings
and Purpose). The plaintiffs in this litigation seek to provide support to two such organizations.
Plaintiffs claim that they seek to facilitate only the lawful, nonviolent purposes of those groups, and
that applying the material-support law to prevent them from doing so violates the Constitution. In
particular, they claim that the statute is too vague, in violation of the Fifth Amendment, and that it
infringes their rights to freedom of speech and association, in violation of the First Amendment. We
conclude that the material-support statute is constitutional as applied to the particular activities
plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more
difficult cases that may arise under the statute in the future.

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I
This litigation concerns 18 U. S. C. §2339B, which makes it a federal crime to "knowingly provid[e]
material support or resources to a foreign terrorist organization." Congress has amended the
definition of "material support or resources" periodically, but at present it is defined as follows:
"[T]he term 'material support or resources' means any property, tangible or intangible, or service,
including currency or monetary instruments or financial securities, financial services, lodging, training,
expert advice or assistance, safehouses, false documentation or identification, communications
equipment, facilities, weapons, lethal substances, explosives, personnel (1 or more individuals who
may be or include oneself), and transportation, except medicine or religious materials."

§2339A(b)(1); see also §2339B(g)(4).
The authority to designate an entity a "foreign terrorist organization" rests with the Secretary of
State. 8 U. S. C. §§1189(a)(1), (d)(4). She may, in consultation with the Secretary of the Treasury and
the Attorney General, so designate an organization upon finding that it is foreign, engages in
"terrorist activity" or "terrorism," and thereby "threatens the security of United States nationals or
the national security of the United States." §§1189(a)(1), (d)(4). " '[N]ational security' means the
national defense, foreign relations, or economic interests of the United States." §1189(d)(2). An
entity designated a foreign terrorist organization may seek review of that designation before the D. C.
Circuit within 30 days of that designation. §1189(c)(1).
In 1997, the Secretary of State designated 30 groups as foreign terrorist organizations. See 62 Fed.
Reg. 52650. Two of those groups are the Kurdistan Workers' Party (also known as the Partiya
Karkeran Kurdistan, or PKK) and the Liberation Tigers of Tamil Eelam (LTTE). The PKK is an
organization founded in 1974 with the aim of establishing an independent Kurdish state in
southeastern Turkey. The LTTE is an organization founded in 1976 for the purpose of creating an
independent Tamil state in Sri Lanka. The District Court in this action found that the PKK and the
LTTE engage in political and humanitarian activities. The Government has presented evidence that
both groups have also committed numerous terrorist attacks, some of which have harmed American
citizens. The LTTE sought judicial review of its designation as a foreign terrorist organization; the D.
C. Circuit upheld that designation. The PKK did not challenge its designation.
Plaintiffs in this litigation are two U. S. citizens and six domestic organizations: the Humanitarian Law
Project (HLP) (a human rights organization with consultative status to the United Nations); Ralph
Fertig (the HLP's president, and a retired administrative law judge); Nagalingam Jeyalingam (a Tamil
physician, born in Sri Lanka and a naturalized U. S. citizen); and five nonprofit groups dedicated to
the interests of persons of Tamil descent. Brief for Petitioners in No. 09-89, pp. ii, 10 (hereinafter
Brief for Plaintiffs); App. 48. In 1998, plaintiffs filed suit in federal court challenging the
constitutionality of the material-support statute, §2339B. Plaintiffs claimed that they wished to
provide support for the humanitarian and political activities of the PKK and the LTTE in the form of
monetary contributions, other tangible aid, legal training, and political advocacy, but that they could
not do so for fear of prosecution under §2339B.
As relevant here, plaintiffs claimed that the material-support statute was unconstitutional on two
grounds: First, it violated their freedom of speech and freedom of association under the First
Amendment, because it criminalized their provision of material support to the PKK and the LTTE,
without requiring the Government to prove that plaintiffs had a specific intent to further the
unlawful ends of those organizations. Second, plaintiffs argued that the statute was
unconstitutionally vague.
* * * [While the litigation was pending] in 2001, Congress amended the definition of "material
support or resources" to add the term "expert advice or assistance." Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001
(Patriot Act), §805(a)(2)(B), 115 Stat. 377.* * * [And] Congress again amended §2339B and the
definition of "material support or resources." Intelligence Reform and Terrorism Prevention Act of
2004 (IRTPA), §6603, 118 Stat. 3762-3764.

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In IRTPA, Congress clarified the mental state necessary to violate §2339B, requiring knowledge of
the foreign group's designation as a terrorist organization or the group's commission of terrorist acts.
§2339B(a)(1). Congress also added the term "service" to the definition of "material support or
resources," §2339A(b)(1), and defined "training" to mean "instruction or teaching designed to impart
a specific skill, as opposed to general knowledge," §2339A(b)(2). It also defined "expert advice or
assistance" to mean "advice or assistance derived from scientific, technical or other specialized
knowledge." §2339A(b)(3). Finally, IRTPA clarified the scope of the term "personnel" by providing:
"No person may be prosecuted under [§2339B] in connection with the term 'personnel' unless that
person has knowingly provided, attempted to provide, or conspired to provide a foreign terrorist
organization with 1 or more individuals (who may be or include himself) to work under that terrorist
organization's direction or control or to organize, manage, supervise, or otherwise direct the operation
of that organization. Individuals who act entirely independently of the foreign terrorist organization to
advance its goals or objectives shall not be considered to be working under the foreign terrorist
organization's direction and control."

§2339B(h).
* * * The Government petitioned for certiorari, and plaintiffs filed a conditional cross-petition. We
granted both petitions.
II
Given the complicated 12-year history of this litigation, we pause to clarify the questions before us.
Plaintiffs challenge §2339B's prohibition on four types of material support--"training," "expert advice
or assistance," "service," and "personnel." They raise three constitutional claims. First, plaintiffs claim
that §2339B violates the Due Process Clause of the Fifth Amendment because these four statutory
terms are impermissibly vague. Second, plaintiffs claim that §2339B violates their freedom of speech
under the First Amendment. Third, plaintiffs claim that §2339B violates their First Amendment
freedom of association.
Plaintiffs do not challenge the above statutory terms in all their applications. Rather, plaintiffs claim
that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities.
With respect to the HLP and Judge Fertig, those activities are: (1) "train[ing] members of [the] PKK
on how to use humanitarian and international law to peacefully resolve disputes"; (2) "engag[ing] in
political advocacy on behalf of Kurds who live in Turkey"; and (3) "teach[ing] PKK members how to
petition various representative bodies such as the United Nations for relief." With respect to the
other plaintiffs, those activities are: (1) "train[ing] members of [the] LTTE to present claims for
tsunami-related aid to mediators and international bodies"; (2) "offer[ing] their legal expertise in
negotiating peace agreements between the LTTE and the Sri Lankan government"; and (3)
"engag[ing] in political advocacy on behalf of Tamils who live in Sri Lanka."
Plaintiffs also state that "the LTTE was recently defeated militarily in Sri Lanka," so "[m]uch of the
support the Tamil organizations and Dr. Jeyalingam sought to provide is now moot." Plaintiffs thus
seek only to support the LTTE "as a political organization outside Sri Lanka advocating for the rights
of Tamils." Counsel for plaintiffs specifically stated at oral argument that plaintiffs no longer seek to
teach the LTTE how to present claims for tsunami-related aid, because the LTTE now "has no role in
Sri Lanka." For that reason, helping the LTTE negotiate a peace agreement with Sri Lanka appears to
be moot as well. Thus, we do not consider the application of §2339B to those activities here.
One last point. Plaintiffs seek preenforcement review of a criminal statute. Before addressing the
merits, we must be sure that this is a justiciable case or controversy under Article III. We conclude
that it is: Plaintiffs face "a credible threat of prosecution" and "should not be required to await and
undergo a criminal prosecution as the sole means of seeking relief." * * *
III
Plaintiffs claim, as a threshold matter, that we should affirm the Court of Appeals without reaching
any issues of constitutional law. They contend that we should interpret the material-support statute,
when applied to speech, to require proof that a defendant intended to further a foreign terrorist
organization's illegal activities. That interpretation, they say, would end the litigation because
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plaintiffs' proposed activities consist of speech, but plaintiffs do not intend to further unlawful
conduct by the PKK or the LTTE.
We reject plaintiffs' interpretation of §2339B because it is inconsistent with the text of the statute.
Section 2339B(a)(1) prohibits "knowingly" providing material support. It then specifically describes
the type of knowledge that is required: "To violate this paragraph, a person must have knowledge
that the organization is a designated terrorist organization . . ., that the organization has engaged or
engages in terrorist activity ..., or that the organization has engaged or engages in terrorism... ."
Congress plainly spoke to the necessary mental state for a violation of §2339B, and it chose
knowledge about the organization's connection to terrorism, not specific intent to further the
organization's terrorist activities.* * *
Finally, plaintiffs give the game away when they argue that a specific intent requirement should
apply only when the material-support statute applies to speech. There is no basis whatever in the
text of §2339B to read the same provisions in that statute as requiring intent in some circumstances
but not others. It is therefore clear that plaintiffs are asking us not to interpret §2339B, but to revise
it. * * *
We cannot avoid the constitutional issues in this litigation through plaintiffs' proposed interpretation
of §2339B.
IV
We turn to the question whether the material-support statute, as applied to plaintiffs, is
impermissibly vague under the Due Process Clause of the Fifth Amendment. "A conviction fails to
comport with due process if the statute under which it is obtained fails to provide a person of
ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or
encourages seriously discriminatory enforcement." United States v. Williams (2008). * * * We have
said that when a statute "interferes with the right of free speech or of association, a more stringent
vagueness test should apply." "But 'perfect clarity and precise guidance have never been required
even of regulations that restrict expressive activity.' " Williams (quoting Ward v. Rock Against Racism
(1989).
The Court of Appeals did not adhere to these principles. Instead, the lower court merged plaintiffs'
vagueness challenge with their First Amendment claims, holding that portions of the materialsupport statute were unconstitutionally vague because they applied to protected speech--regardless
of whether those applications were clear. The court stated that, even if persons of ordinary
intelligence understood the scope of the term "training," that term would "remai[n] impermissibly
vague" because it could "be read to encompass speech and advocacy protected by the First
Amendment." It also found "service" and a portion of "expert advice or assistance" to be vague
because those terms covered protected speech.
* * * [T]he Court of Appeals contravened the rule that "[a] plaintiff who engages in some conduct that
is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others."
That rule makes no exception for conduct in the form of speech. Thus, even to the extent a
heightened vagueness standard applies, a plaintiff whose speech is clearly proscribed cannot raise a
successful vagueness claim under the Due Process Clause of the Fifth Amendment for lack of notice.
And he certainly cannot do so based on the speech of others. Such a plaintiff may have a valid
overbreadth claim under the First Amendment, but our precedents make clear that a Fifth
Amendment vagueness challenge does not turn on whether a law applies to a substantial amount of
protected expression. Otherwise the doctrines would be substantially redundant.
Under a proper analysis, plaintiffs' claims of vagueness lack merit. * * *
V
A
We next consider whether the material-support statute, as applied to plaintiffs, violates the freedom
of speech guaranteed by the First Amendment. Both plaintiffs and the Government take extreme
positions on this question. Plaintiffs claim that Congress has banned their "pure political speech." It
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has not. Under the material-support statute, plaintiffs may say anything they wish on any topic. They
may speak and write freely about the PKK and LTTE, the governments of Turkey and Sri Lanka,
human rights, and international law. They may advocate before the United Nations. As the
Government states: "The statute does not prohibit independent advocacy or expression of any kind."
Section 2339B also "does not prevent [plaintiffs] from becoming members of the PKK and LTTE or
impose any sanction on them for doing so." Congress has not, therefore, sought to suppress ideas or
opinions in the form of "pure political speech." Rather, Congress has prohibited "material support,"
which most often does not take the form of speech at all. And when it does, the statute is carefully
drawn to cover only a narrow category of speech to, under the direction of, or in coordination with
foreign groups that the speaker knows to be terrorist organizations.4
For its part, the Government takes the foregoing too far, claiming that the only thing truly at issue in
this litigation is conduct, not speech. Section 2339B is directed at the fact of plaintiffs' interaction
with the PKK and LTTE, the Government contends, and only incidentally burdens their expression.
The Government argues that the proper standard of review is therefore the one set out in United
States v. O'Brien (1968). In that case, the Court rejected a First Amendment challenge to a conviction
under a generally applicable prohibition on destroying draft cards, even though O'Brien had burned
his card in protest against the draft. In so doing, we applied what we have since called "intermediate
scrutiny," under which a "content-neutral regulation will be sustained under the First Amendment if
it advances important governmental interests unrelated to the suppression of free speech and does
not burden substantially more speech than necessary to further those interests." Turner Broadcasting
System, Inc. v. FCC (1997)(citing O'Brien).
The Government is wrong that the only thing actually at issue in this litigation is conduct, and
therefore wrong to argue that O'Brien provides the correct standard of review. O'Brien does not
provide the applicable standard for reviewing a content-based regulation of speech, see R. A. V. v. St.
Paul (1992); Texas v. Johnson (1989), and §2339B regulates speech on the basis of its content.
Plaintiffs want to speak to the PKK and the LTTE, and whether they may do so under §2339B
depends on what they say. If plaintiffs' speech to those groups imparts a "specific skill" or
communicates advice derived from "specialized knowledge"--for example, training on the use of
international law or advice on petitioning the United Nations--then it is barred. On the other hand,
plaintiffs' speech is not barred if it imparts only general or unspecialized knowledge.
The Government argues that §2339B should nonetheless receive intermediate scrutiny because it
generally functions as a regulation of conduct. That argument runs headlong into a number of our
precedents, most prominently Cohen v. California (1971). Cohen also involved a generally applicable
regulation of conduct, barring breaches of the peace. But when Cohen was convicted for wearing a
jacket bearing an epithet, we did not apply O'Brien. Instead, we recognized that the generally
applicable law was directed at Cohen because of what his speech communicated--he violated the
breach of the peace statute because of the offensive content of his particular message. We
accordingly applied more rigorous scrutiny and reversed his conviction.
This suit falls into the same category. The law here may be described as directed at conduct, as the
law in Cohen was directed at breaches of the peace, but as applied to plaintiffs the conduct triggering
coverage under the statute consists of communicating a message. As we explained in Texas v.
Johnson: "If the [Government's] regulation is not related to expression, then the less stringent
standard we announced in United States v. O'Brien for regulations of noncommunicative conduct
controls. If it is, then we are outside of O'Brien's test, and we must [apply] a more demanding
standard."
B
The First Amendment issue before us is more refined than either plaintiffs or the Government would
have it. It is not whether the Government may prohibit pure political speech, or may prohibit
material support in the form of conduct. It is instead whether the Government may prohibit what
plaintiffs want to do--provide material support to the PKK and LTTE in the form of speech.
Everyone agrees that the Government's interest in combating terrorism is an urgent objective of the
highest order. Plaintiffs' complaint is that the ban on material support, applied to what they wish to
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do, is not "necessary to further that interest." The objective of combating terrorism does not justify
prohibiting their speech, plaintiffs argue, because their support will advance only the legitimate
activities of the designated terrorist organizations, not their terrorism.
Whether foreign terrorist organizations meaningfully segregate support of their legitimate activities
from support of terrorism is an empirical question. When it enacted §2339B in 1996, Congress made
specific findings regarding the serious threat posed by international terrorism. One of those findings
explicitly rejects plaintiffs' contention that their support would not further the terrorist activities of
the PKK and LTTE: "[F]oreign organizations that engage in terrorist activity are so tainted by their
criminal conduct that any contribution to such an organization facilitates that conduct." §301(a)(7)
(emphasis added).
Plaintiffs argue that the reference to "any contribution" in this finding meant only monetary support.
There is no reason to read the finding to be so limited, particularly because Congress expressly
prohibited so much more than monetary support in §2339B. Congress's use of the term
"contribution" is best read to reflect a determination that any form of material support furnished "to"
a foreign terrorist organization should be barred, which is precisely what the material-support
statute does. Indeed, when Congress enacted §2339B, Congress simultaneously removed an
exception that had existed in §2339A(a) (1994 ed.) for the provision of material support in the form
of "humanitarian assistance to persons not directly involved in" terrorist activity. AEDPA §323, 110
Stat. 1255; 205 F. 3d, at 1136. That repeal demonstrates that Congress considered and rejected the
view that ostensibly peaceful aid would have no harmful effects.
We are convinced that Congress was justified in rejecting that view. The PKK and the LTTE are
deadly groups. "The PKK's insurgency has claimed more than 22,000 lives." The LTTE has engaged in
extensive suicide bombings and political assassinations, including killings of the Sri Lankan President,
Security Minister, and Deputy Defense Minister. "On January 31, 1996, the LTTE exploded a truck
bomb filled with an estimated 1,000 pounds of explosives at the Central Bank in Colombo, killing 100
people and injuring more than 1,400. This bombing was the most deadly terrorist incident in the
world in 1996." It is not difficult to conclude as Congress did that the "tain[t]" of such violent
activities is so great that working in coordination with or at the command of the PKK and LTTE
serves to legitimize and further their terrorist means.
Material support meant to "promot[e] peaceable, lawful conduct," can further terrorism by foreign
groups in multiple ways. "Material support" is a valuable resource by definition. Such support frees
up other resources within the organization that may be put to violent ends. It also importantly helps
lend legitimacy to foreign terrorist groups--legitimacy that makes it easier for those groups to persist,
to recruit members, and to raise funds--all of which facilitate more terrorist attacks. "Terrorist
organizations do not maintain organizational 'firewalls' that would prevent or deter . . . sharing and
commingling of support and benefits." "[I]nvestigators have revealed how terrorist groups
systematically conceal their activities behind charitable, social, and political fronts." M. LEVITT, HAMAS:
POLITICS, CHARITY, AND TERRORISM IN THE SERVICE OF JIHAD 2-3 (2006). "Indeed, some designated foreign
terrorist organizations use social and political components to recruit personnel to carry out terrorist
operations, and to provide support to criminal terrorists and their families in aid of such operations."
Money is fungible, and "[w]hen foreign terrorist organizations that have a dual structure raise funds,
they highlight the civilian and humanitarian ends to which such moneys could be put." But "there is
reason to believe that foreign terrorist organizations do not maintain legitimate financial firewalls
between those funds raised for civil, nonviolent activities, and those ultimately used to support
violent, terrorist operations." Thus, "[f]unds raised ostensibly for charitable purposes have in the
past been redirected by some terrorist groups to fund the purchase of arms and explosives." There is
evidence that the PKK and the LTTE, in particular, have not "respected the line between
humanitarian and violent activities."
The dissent argues that there is "no natural stopping place" for the proposition that aiding a foreign
terrorist organization's lawful activity promotes the terrorist organization as a whole. But Congress
has settled on just such a natural stopping place: The statute reaches only material support

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coordinated with or under the direction of a designated foreign terrorist organization. Independent
advocacy that might be viewed as promoting the group's legitimacy is not covered.
Providing foreign terrorist groups with material support in any form also furthers terrorism by
straining the United States' relationships with its allies and undermining cooperative efforts between
nations to prevent terrorist attacks. We see no reason to question Congress's finding that
"international cooperation is required for an effective response to terrorism, as demonstrated by the
numerous multilateral conventions in force providing universal prosecutive jurisdiction over
persons involved in a variety of terrorist acts, including hostage taking, murder of an internationally
protected person, and aircraft piracy and sabotage." The material-support statute furthers this
international effort by prohibiting aid for foreign terrorist groups that harm the United States'
partners abroad: "A number of designated foreign terrorist organizations have attacked moderate
governments with which the United States has vigorously endeavored to maintain close and friendly
relations," and those attacks "threaten [the] social, economic and political stability" of such
governments. "[O]ther foreign terrorist organizations attack our NATO allies, thereby implicating
important and sensitive multilateral security arrangements."
For example, the Republic of Turkey--a fellow member of NATO--is defending itself against a violent
insurgency waged by the PKK. That nation and our other allies would react sharply to Americans
furnishing material support to foreign groups like the PKK, and would hardly be mollified by the
explanation that the support was meant only to further those groups' "legitimate" activities. From
Turkey's perspective, there likely are no such activities.
C
In analyzing whether it is possible in practice to distinguish material support for a foreign terrorist
group's violent activities and its nonviolent activities, we do not rely exclusively on our own
inferences drawn from the record evidence. We have before us an affidavit stating the Executive
Branch's conclusion on that question. The State Department informs us that "[t]he experience and
analysis of the U. S. government agencies charged with combating terrorism strongly suppor[t]"
Congress's finding that all contributions to foreign terrorist organizations further their terrorism.
McKune Affidavit, App. 133, ¶8. In the Executive's view: "Given the purposes, organizational
structure, and clandestine nature of foreign terrorist organizations, it is highly likely that any
material support to these organizations will ultimately inure to the benefit of their criminal, terrorist
functions--regardless of whether such support was ostensibly intended to support non-violent, nonterrorist activities."
That evaluation of the facts by the Executive, like Congress's assessment, is entitled to deference. This
litigation implicates sensitive and weighty interests of national security and foreign affairs. The PKK
and the LTTE have committed terrorist acts against American citizens abroad, and the materialsupport statute addresses acute foreign policy concerns involving relationships with our Nation's
allies. * * *
Our precedents, old and new, make clear that concerns of national security and foreign relations do
not warrant abdication of the judicial role. We do not defer to the Government's reading of the First
Amendment, even when such interests are at stake. We are one with the dissent that the
Government's "authority and expertise in these matters do not automatically trump the Court's own
obligation to secure the protection that the Constitution grants to individuals." But when it comes to
collecting evidence and drawing factual inferences in this area, "the lack of competence on the part of
the courts is marked," and respect for the Government's conclusions is appropriate.
* * * This context is different from that in decisions like Cohen. In that case, the application of the
statute turned on the offensiveness of the speech at issue. Observing that "one man's vulgarity is
another's lyric," we invalidated Cohen's conviction in part because we concluded that "governmental
officials cannot make principled distinctions in this area." In this litigation, by contrast, Congress and
the Executive are uniquely positioned to make principled distinctions between activities that will
further terrorist conduct and undermine United States foreign policy, and those that will not.

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We also find it significant that Congress has been conscious of its own responsibility to consider how
its actions may implicate constitutional concerns. First, §2339B only applies to designated foreign
terrorist organizations. There is, and always has been, a limited number of those organizations
designated by the Executive Branch, and any groups so designated may seek judicial review of the
designation. Second, in response to the lower courts' holdings in this litigation, Congress added
clarity to the statute by providing narrowing definitions of the terms "training," "personnel," and
"expert advice or assistance," as well as an explanation of the knowledge required to violate §2339B.
Third, in effectuating its stated intent not to abridge First Amendment rights, Congress has also
displayed a careful balancing of interests in creating limited exceptions to the ban on material
support. The definition of material support, for example, excludes medicine and religious materials.
In this area perhaps more than any other, the Legislature's superior capacity for weighing competing
interests means that "we must be particularly careful not to substitute our judgment of what is
desirable for that of Congress." Finally, and most importantly, Congress has avoided any restriction
on independent advocacy, or indeed any activities not directed to, coordinated with, or controlled by
foreign terrorist groups.
At bottom, plaintiffs simply disagree with the considered judgment of Congress and the Executive
that providing material support to a designated foreign terrorist organization--even seemingly
benign support--bolsters the terrorist activities of that organization. That judgment, however, is
entitled to significant weight, and we have persuasive evidence before us to sustain it. Given the
sensitive interests in national security and foreign affairs at stake, the political branches have
adequately substantiated their determination that, to serve the Government's interest in preventing
terrorism, it was necessary to prohibit providing material support in the form of training, expert
advice, personnel, and services to foreign terrorist groups, even if the supporters meant to promote
only the groups' nonviolent ends.
We turn to the particular speech plaintiffs propose to undertake. First, plaintiffs propose to "train
members of [the] PKK on how to use humanitarian and international law to peacefully resolve
disputes." Congress can, consistent with the First Amendment, prohibit this direct training. * * * A
foreign terrorist organization introduced to the structures of the international legal system might use
the information to threaten, manipulate, and disrupt. This possibility is real, not remote.
Second, plaintiffs propose to "teach PKK members how to petition various representative bodies
such as the United Nations for relief." The Government acts within First Amendment strictures in
banning this proposed speech because it teaches the organization how to acquire "relief," which
plaintiffs never define with any specificity, and which could readily include monetary aid. * * * Money
is fungible and Congress logically concluded that money a terrorist group such as the PKK obtains
using the techniques plaintiffs propose to teach could be redirected to funding the group's violent
activities.
Finally, plaintiffs propose to "engage in political advocacy on behalf of Kurds who live in Turkey," and
"engage in political advocacy on behalf of Tamils who live in Sri Lanka." * * * Plaintiffs' proposals are
phrased at such a high level of generality that they cannot prevail in this preenforcement challenge.
In responding to the foregoing, the dissent fails to address the real dangers at stake. It instead
considers only the possible benefits of plaintiffs' proposed activities in the abstract. The dissent
seems unwilling to entertain the prospect that training and advising a designated foreign terrorist
organization on how to take advantage of international entities might benefit that organization in a
way that facilitates its terrorist activities. In the dissent's world, such training is all to the good.
Congress and the Executive, however, have concluded that we live in a different world: one in which
the designated foreign terrorist organizations "are so tainted by their criminal conduct that any
contribution to such an organization facilitates that conduct." AEDPA §301(a)(7). One in which, for
example, "the United Nations High Commissioner for Refugees was forced to close a Kurdish refugee
camp in northern Iraq because the camp had come under the control of the PKK, and the PKK had
failed to respect its 'neutral and humanitarian nature.' " Training and advice on how to work with the
United Nations could readily have helped the PKK in its efforts to use the United Nations camp as a
base for terrorist activities.

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If only good can come from training our adversaries in international dispute resolution, presumably
it would have been unconstitutional to prevent American citizens from training the Japanese
Government on using international organizations and mechanisms to resolve disputes during World
War II. It would, under the dissent's reasoning, have been contrary to our commitment to resolving
disputes through " 'deliberative forces,' " (quoting Whitney v. California (1927) (Brandeis, J.,
concurring)), for Congress to conclude that assisting Japan on that front might facilitate its war effort
more generally. That view is not one the First Amendment requires us to embrace.
All this is not to say that any future applications of the material-support statute to speech or
advocacy will survive First Amendment scrutiny. It is also not to say that any other statute relating to
speech and terrorism would satisfy the First Amendment. In particular, we in no way suggest that a
regulation of independent speech would pass constitutional muster, even if the Government were to
show that such speech benefits foreign terrorist organizations. We also do not suggest that Congress
could extend the same prohibition on material support at issue here to domestic organizations. We
simply hold that, in prohibiting the particular forms of support that plaintiffs seek to provide to
foreign terrorist groups, §2339B does not violate the freedom of speech.
VI
Plaintiffs' final claim is that the material-support statute violates their freedom of association under
the First Amendment. Plaintiffs argue that the statute criminalizes the mere fact of their associating
with the PKK and the LTTE.* * *
The Court of Appeals correctly rejected this claim because the statute does not penalize mere
association with a foreign terrorist organization. * * *
Plaintiffs also argue that the material-support statute burdens their freedom of association because it
prevents them from providing support to designated foreign terrorist organizations, but not to other
groups. Any burden on plaintiffs' freedom of association in this regard is justified for the same
reasons that we have denied plaintiffs' free speech challenge. It would be strange if the Constitution
permitted Congress to prohibit certain forms of speech that constitute material support, but did not
permit Congress to prohibit that support only to particularly dangerous and lawless foreign
organizations. Congress is not required to ban material support to every group or none at all.
The Preamble to the Constitution proclaims that the people of the United States ordained and
established that charter of government in part to "provide for the common defence." As Madison
explained, "[s]ecurity against foreign danger is . . . an avowed and essential object of the American
Union." THE FEDERALIST NO. 41, p. 269 (J. Cooke ed. 1961). We hold that, in regulating the particular
forms of support that plaintiffs seek to provide to foreign terrorist organizations, Congress has
pursued that objective consistent with the limitations of the First and Fifth Amendments.
The judgment of the United States Court of Appeals for the Ninth Circuit is affirmed in part and
reversed in part, and the cases are remanded for further proceedings consistent with this opinion.
It is so ordered.
JUSTICE BREYER, WITH WHOM JUSTICES GINSBURG AND SOTOMAYOR JOIN, DISSENTING.
Like the Court, and substantially for the reasons it gives, I do not think this statute is
unconstitutionally vague. But I cannot agree with the Court's conclusion that the Constitution
permits the Government to prosecute the plaintiffs criminally for engaging in coordinated teaching
and advocacy furthering the designated organizations' lawful political objectives. In my view, the
Government has not met its burden of showing that an interpretation of the statute that would
prohibit this speech- and association-related activity serves the Government's compelling interest in
combating terrorism. And I would interpret the statute as normally placing activity of this kind
outside its scope.

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I
* * * In my view, the Government has not made the strong showing necessary to justify under the
First Amendment the criminal prosecution of those who engage in these [described] activities. All the
activities involve the communication and advocacy of political ideas and lawful means of achieving
political ends. Even the subjects the plaintiffs wish to teach--using international law to resolve
disputes peacefully or petitioning the United Nations, for instance--concern political speech. We
cannot avoid the constitutional significance of these facts on the basis that some of this speech takes
place outside the United States and is directed at foreign governments, for the activities also involve
advocacy in this country directed to our government and its policies. The plaintiffs, for example, wish
to write and distribute publications and to speak before the United States Congress.
That this speech and association for political purposes is the kind of activity to which the First
Amendment ordinarily offers its strongest protection is elementary.
Although in the Court's view the statute applies only where the PKK helps to coordinate a
defendant's activities, the simple fact of "coordination" alone cannot readily remove protection that
the First Amendment would otherwise grant. That amendment, after all, also protects the freedom of
association. "Coordination" with a political group, like membership, involves association.
"Coordination" with a group that engages in unlawful activity also does not deprive the plaintiffs of
the First Amendment's protection under any traditional "categorical" exception to its protection. The
plaintiffs do not propose to solicit a crime. They will not engage in fraud or defamation or circulate
obscenity. Cf. United States v. Stevens (2010) (describing "categories" of unprotected speech). And the
First Amendment protects advocacy even of unlawful action so long as that advocacy is not "directed
to inciting or producing imminent lawless action and . . . likely to incite or produce such action."
Brandenburg v. Ohio, (1969) (per curiam) (emphasis added). Here the plaintiffs seek to advocate
peaceful, lawful action to secure political ends; and they seek to teach others how to do the same. No
one contends that the plaintiffs' speech to these organizations can be prohibited as incitement under
Brandenburg.
Moreover, the Court has previously held that a person who associates with a group that uses
unlawful means to achieve its ends does not thereby necessarily forfeit the First Amendment's
protection for freedom of association. * * *
Not even the "serious and deadly problem" of international terrorism can require automatic
forfeiture of First Amendment rights. §301(a)(1), 110 Stat. 1247, note following 18 U. S. C. §2339B. Cf.
§2339B(i) (instructing courts not to "constru[e] or appl[y the statute] so as to abridge the exercise of
right guaranteed under the First Amendment"). After all, this Court has recognized that not " '[e]ven
the war power ... remove[s] constitutional limitations safeguarding essential liberties.' " See also
Abrams v. United States (1919) (Holmes, J., dissenting) ("[A]s against dangers peculiar to war, as
against others, the principle of the right to free speech is always the same"). Thus, there is no general
First Amendment exception that applies here. If the statute is constitutional in this context, it would
have to come with a strong justification attached.
It is not surprising that the majority, in determining the constitutionality of criminally prohibiting the
plaintiffs' proposed activities, would apply, not the kind of intermediate First Amendment standard
that applies to conduct, but " 'a more demanding standard.' " Indeed, where, as here, a statute applies
criminal penalties and at least arguably does so on the basis of content-based distinctions, I should
think we would scrutinize the statute and justifications "strictly"--to determine whether the
prohibition is justified by a "compelling" need that cannot be "less restrictively" accommodated.
But, even if we assume for argument's sake that "strict scrutiny" does not apply, no one can deny that
we must at the very least "measure the validity of the means adopted by Congress against both the
goal it has sought to achieve and the specific prohibitions of the First Amendment." And here I need
go no further, for I doubt that the statute, as the Government would interpret it, can survive any
reasonably applicable First Amendment standard.
The Government does identify a compelling countervailing interest, namely, the interest in protecting
the security of the United States and its nationals from the threats that foreign terrorist organizations
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pose by denying those organizations financial and other fungible resources. I do not dispute the
importance of this interest. But I do dispute whether the interest can justify the statute's criminal
prohibition. To put the matter more specifically, precisely how does application of the statute to the
protected activities before us help achieve that important security-related end?
The Government makes two efforts to answer this question. First, the Government says that the
plaintiffs' support for these organizations is "fungible" in the same sense as other forms of banned
support. Being fungible, the plaintiffs' support could, for example, free up other resources, which the
organization might put to terrorist ends.
The proposition that the two very different kinds of "support" are "fungible," however, is not
obviously true. There is no obvious way in which undertaking advocacy for political change through
peaceful means or teaching the PKK and LTTE, say, how to petition the United Nations for political
change is fungible with other resources that might be put to more sinister ends in the way that
donations of money, food, or computer training are fungible. It is far from obvious that these
advocacy activities can themselves be redirected, or will free other resources that can be directed,
towards terrorist ends. Thus, we must determine whether the Government has come forward with
evidence to support its claim.
The Government has provided us with no empirical information that might convincingly support this
claim. Instead, the Government cites only to evidence that Congress was concerned about the
"fungible" nature in general of resources, predominately money and material goods. It points to a
congressional finding that "foreign organizations that engage in terrorist activity are so tainted by
their criminal conduct that any contribution to such an organization facilitates that conduct."
§301(a)(7), 110 Stat. 1247, note following 18 U. S. C. §2339B (emphasis added). It also points to a
House Report's statement that "supply[ing] funds, goods, or services" would "hel[p] defray the cost to
the terrorist organization of running the ostensibly legitimate activities," and "in turn fre[e] an equal
sum that can then be spent on terrorist activities." H. R. Rep. No. 104-383, p. 81 (1995) (emphasis
added). Finally, the Government refers to a State Department official's affidavit describing how
ostensibly charitable contributions have either been "redirected" to terrorist ends or, even if spent
charitably, have "unencumber[ed] funds raised from other sources for use in facilitating violent,
terrorist activities and gaining political support for these activities." Declaration of Kenneth R.
McKune, App. 134, 136 (emphasis added).
The most one can say in the Government's favor about these statements is that they might be read as
offering highly general support for its argument. The statements do not, however, explain in any
detail how the plaintiffs' political-advocacy-related activities might actually be "fungible" and
therefore capable of being diverted to terrorist use. Nor do they indicate that Congress itself was
concerned with "support" of this kind. The affidavit refers to "funds," "financing," and "goods"--none
of which encompasses the plaintiffs' activities. The statutory statement and the House Report use
broad terms like "contributions" and "services" that might be construed as encompassing the
plaintiffs' activities. But in context, those terms are more naturally understood as referring to
contributions of goods, money, or training and other services (say, computer programming) that
could be diverted to, or free funding for, terrorist ends. Peaceful political advocacy does not
obviously fall into these categories. And the statute itself suggests that Congress did not intend to
curtail freedom of speech or association. See §2339B(i) ("Nothing in this section shall be construed
or applied so as to abridge the exercise of rights guaranteed under the First Amendment").
Second, the Government says that the plaintiffs' proposed activities will "bolste[r] a terrorist
organization's efficacy and strength in a community" and "undermin[e] this nation's efforts to
delegitimize and weaken those groups." In the Court's view, too, the Constitution permits application
of the statute to activities of the kind at issue in part because those activities could provide a group
that engages in terrorism with "legitimacy." The Court suggests that, armed with this greater
"legitimacy," these organizations will more readily be able to obtain material support of the kinds
Congress plainly intended to ban--money, arms, lodging, and the like.
Yet the Government does not claim that the statute forbids any speech "legitimating" a terrorist
group. Rather, it reads the statute as permitting (1) membership in terrorist organizations, (2)
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"peaceably assembling with members of the PKK and LTTE for lawful discussion," or (3)
"independent advocacy" on behalf of these organizations. The Court, too, emphasizes that activities
not "coordinated with" the terrorist groups are not banned. And it argues that speaking, writing, and
teaching aimed at furthering a terrorist organization's peaceful political ends could "mak[e] it easier
for those groups to persist, to recruit members, and to raise funds."
But this "legitimacy" justification cannot by itself warrant suppression of political speech, advocacy,
and association. Speech, association, and related activities on behalf of a group will often, perhaps
always, help to legitimate that group. Thus, were the law to accept a "legitimating" effect, in and of
itself and without qualification, as providing sufficient grounds for imposing such a ban, the First
Amendment battle would be lost in untold instances where it should be won. Once one accepts this
argument, there is no natural stopping place. The argument applies as strongly to "independent" as
to "coordinated" advocacy. That fact is reflected in part in the Government's claim that the ban here,
so supported, prohibits a lawyer hired by a designated group from filing on behalf of that group an
amicus brief before the United Nations or even before this Court.
That fact is also reflected in the difficulty of drawing a line designed to accept the legitimacy
argument in some instances but not in others. It is inordinately difficult to distinguish when speech
activity will and when it will not initiate the chain of causation the Court suggests--a chain that leads
from peaceful advocacy to "legitimacy" to increased support for the group to an increased supply of
material goods that support its terrorist activities. Even were we to find some such line of distinction,
its application would seem so inherently uncertain that it would often, perhaps always, "chill"
protected speech beyond its boundary. In short, the justification, put forward simply in abstract
terms and without limitation, must always, or it will never, be sufficient. Given the nature of the
plaintiffs' activities, "always" cannot possibly be the First Amendment's answer.
* * * In my own view, the majority's arguments stretch the concept of "fungibility" beyond
constitutional limits. Neither Congress nor the Government advanced these particular hypothetical
claims. I am not aware of any case in this Court--not Gitlow v. New York (1925), not Schenck v. United
States (1919), not Abrams (1919) not the later Communist Party cases decided during the heat of the
Cold War--in which the Court accepted anything like a claim that speech or teaching might be
criminalized lest it, e.g., buy negotiating time for an opponent who would put that time to bad use.
Moreover, the risk that those who are taught will put otherwise innocent speech or knowledge to bad
use is omnipresent, at least where that risk rests on little more than (even informed) speculation.
Hence to accept this kind of argument without more and to apply it to the teaching of a subject such
as international human rights law is to adopt a rule of law that, contrary to the Constitution's text and
First Amendment precedent, would automatically forbid the teaching of any subject in a case where
national security interests conflict with the First Amendment. The Constitution does not allow all
such conflicts to be decided in the Government's favor. * * *
II
For the reasons I have set forth, I believe application of the statute as the Government interprets it
would gravely and without adequate justification injure interests of the kind the First Amendment
protects. * * *
I believe that a construction that would avoid the constitutional problem is "fairly possible." In
particular, I would read the statute as criminalizing First-Amendment-protected pure speech and
association only when the defendant knows or intends that those activities will assist the
organization's unlawful terrorist actions. Under this reading, the Government would have to show, at
a minimum, that such defendants provided support that they knew was significantly likely to help the
organization pursue its unlawful terrorist aims.
* * * This reading of the statute protects those who engage in pure speech and association ordinarily
protected by the First Amendment. But it does not protect that activity where a defendant
purposefully intends it to help terrorism or where a defendant knows (or willfully blinds himself to
the fact) that the activity is significantly likely to assist terrorism. Where the activity fits into these
categories of purposefully or knowingly supporting terrorist ends, the act of providing material
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support to a known terrorist organization bears a close enough relation to terrorist acts that, in my
view, it likely can be prohibited notwithstanding any First Amendment interest. Cf. Brandenburg. At
the same time, this reading does not require the Government to undertake the difficult task of
proving which, as between peaceful and nonpeaceful purposes, a defendant specifically preferred;
knowledge is enough.
* * * [T]he defendant would have to know or intend (1) that he is providing support or resources, (2)
that he is providing that support to a foreign terrorist organization, and (3) that he is providing
support that is material, meaning (4) that his support bears a significant likelihood of furthering the
organization's terrorist ends.
This fourth requirement flows directly from the statute's use of the word "material." That word can
mean being of a physical or worldly nature, but it also can mean "being of real importance or great
consequence." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1392 (1961). Here, it must mean the
latter, for otherwise the statute, applying only to physical aid, would not apply to speech at all. See
also §2339A(b)(1) (defining " 'material support or resources' " as "any property, tangible or
intangible" (emphasis added)). And if the statute applies only to support that would likely be of real
importance or great consequence, it must have importance or consequence in respect to the
organization's terrorist activities. That is because support that is not significantly likely to help
terrorist activities, for purposes of this statute, neither has "importance" nor is of "great
consequence."
* * * Thus, textually speaking, a statutory requirement that the defendant knew the support was
material can be read to require the Government to show that the defendant knew that the
consequences of his acts had a significant likelihood of furthering the organization's terrorist, not just
its lawful, aims. * * * The statute's history strongly supports this reading. That history makes clear
that Congress primarily sought to end assistance that takes the form of fungible donations of money
or goods. * * *
In any event, the principle of constitutional avoidance demands this interpretation. As Part II makes
clear, there is a "serious" doubt--indeed, a "grave" doubt--about the constitutionality of the statute
insofar as it is read to criminalize the activities before us. We therefore must "read the statute to
eliminate" that constitutional "doub[t] so long as such a reading is not plainly contrary to the intent
of Congress.
For this reason, the majority's statutory claim that Congress did not use the word "knowingly" as I
would use it is beside the point. Our consequent reading is consistent with the statute's text; it is
consistent with Congress' basic intent; it interprets but does not significantly add to what the statute
otherwise contains. We should adopt it.
III
Having interpreted the statute to impose the mens rea requirement just described, I would remand
the cases so that the lower courts could consider more specifically the precise activities in which the
plaintiffs still wish to engage and determine whether and to what extent a grant of declaratory and
injunctive relief were warranted. I do not see why the majority does not also remand the cases for
consideration of the plaintiffs' activities relating to "advocating" for the organizations' peaceful
causes. * * * Moreover, the majority properly rejects the Government's argument that the plaintiffs'
speech-related activities amount to "conduct" and should be reviewed as such. Hence, I should think
the majority would wish the lower courts to reconsider this aspect of the cases, applying a proper
standard of review.
IV
In sum, these cases require us to consider how to apply the First Amendment where national security
interests are at stake. When deciding such cases, courts are aware and must respect the fact that the
Constitution entrusts to the Executive and Legislative Branches the power to provide for the national
defense, and that it grants particular authority to the President in matters of foreign affairs.
Nonetheless, this Court has also made clear that authority and expertise in these matters do not
automatically trump the Court's own obligation to secure the protection that the Constitution grants
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to individuals. In these cases, for the reasons I have stated, I believe the Court has failed to examine
the Government's justifications with sufficient care. It has failed to insist upon specific evidence,
rather than general assertion. It has failed to require tailoring of means to fit compelling ends. And
ultimately it deprives the individuals before us of the protection that the First Amendment demands.
That is why, with respect, I dissent.

Notes

1.
How should the Congressional intent not to abridge First Amendment rights be understood?
Does Chief Justice Roberts’s opinion for the Court or Justice Breyer’s dissenting opinion have the
better view?
2.
Holder v. Humanitarian Law project is a preenforcement challenge. Are there possible
situations in which a “material support” prosecution could be successfully challenged as violative of
the First Amendment?
3.

Robson

What is the “fungible” analysis? How does that relate to speech?

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Chapter Three: OF CONDUCT, CONTENT,
AND CATEGORIES
This chapter considers sometimes complex definitions of speech.
Speech must be distinguished from “mere” conduct, although the First Amendment certainly protects
expressive conduct and symbolic speech, which are subject to definitional disputes.
The content of speech may place it in various categories of speech, some more protected and some
less protected as evinced by levels of scrutiny.
The content of speech may also exclude it from protection under the First Amendment, as was
apparent in the last chapter and which is also explored in this and later chapters. Consider whether
this “categorical approach” to protectable speech is workable.

I.

Defining Expression

We often express ourselves through gestures and “conduct.” Should these be protected to the same
extent as speech? How should the expressive aspect of conduct be assessed?

United States v. O’Brien
391 U.S. 367 (1968)
WARREN, C.J., DELIVERED THE OPINION OF THE COURT; MARSHALL, J., TOOK NO PART IN THE CONSIDERATION OF THE
CASE; HARLAN, J., FILED A CONCURRING OPINION. DOUGLAS, J., FILED A DISSENTING OPINION.
CHIEF JUSTICE WARREN DELIVERED THE OPINION OF THE COURT.
On the morning of March 31, 1966, David Paul O'Brien and three companions burned their Selective
Service registration certificates on the steps of the South Boston Courthouse. A sizable crowd,
including several agents of the Federal Bureau of Investigation, witnessed the event. Immediately
after the burning, members of the crowd began attacking O'Brien and his companions. An FBI agent
ushered O'Brien to safety inside the courthouse. After he was advised of his right to counsel and to
silence, O'Brien stated to FBI agents that he had burned his registration certificate because of his
beliefs, knowing that he was violating federal law. He produced the charred remains of the certificate,
which, with his consent, were photographed.
For this act, O'Brien was indicted, tried, convicted, and sentenced in the United States District Court
for the District of Massachusetts. He did not contest the fact that he had burned the certificate. He
stated in argument to the jury that he burned the certificate publicly to influence others to adopt his
antiwar beliefs, as he put it, "so that other people would reevaluate their positions with Selective
Service, with the armed forces, and reevaluate their place in the culture of today, to hopefully
consider my position."
The indictment upon which he was tried charged that he "willfully and knowingly did mutilate,
destroy, and change by burning . . . [his] Registration Certificate (Selective Service System Form No.
2); in violation of Title 50, App., United States Code, Section 462 (b)." * * * [It had been] amended by
Congress in 1965, 79 Stat. 586 (adding the words italicized below), so that at the time O'Brien burned
his certificate an offense was committed by any person,

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"who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such
certificate. . . ." (Italics supplied.)

In the District Court, O'Brien argued that the 1965 Amendment prohibiting the knowing destruction
or mutilation of certificates was unconstitutional because it was enacted to abridge free speech, and
because it served no legitimate legislative purpose. The District Court rejected these arguments,
holding that the statute on its face did not abridge First Amendment rights, that the court was not
competent to inquire into the motives of Congress in enacting the 1965 Amendment, and that the
Amendment was a reasonable exercise of the power of Congress to raise armies.
On appeal, the Court of Appeals for the First Circuit held the 1965 Amendment unconstitutional as a
law abridging freedom of speech. * * * [This] decision conflicted with decisions by the Courts of
Appeals for the Second and Eighth Circuits upholding the 1965 Amendment against identical
constitutional challenges. * * * We hold that the 1965 Amendment is constitutional both as enacted
and as applied. * * *
I.
When a male reaches the age of 18, he is required by the Universal Military Training and Service Act
to register with a local draft board. He is assigned a Selective Service number, and within five days he
is issued a registration certificate (SSS Form No. 2). Subsequently, and based on a questionnaire
completed by the registrant, he is assigned a classification denoting his eligibility for induction, and
"[a]s soon as practicable" thereafter he is issued a Notice of Classification (SSS Form No. 110). This
initial classification is not necessarily permanent, and if in the interim before induction the
registrant's status changes in some relevant way, he may be reclassified. After such a reclassification,
the local board "as soon as practicable" issues to the registrant a new Notice of Classification.
Both the registration and classification certificates are small white cards, approximately 2 by 3 inches.
The registration certificate specifies the name of the registrant, the date of registration, and the
number and address of the local board with which he is registered. Also inscribed upon it are the
date and place of the registrant's birth, his residence at registration, his physical description, his
signature, and his Selective Service number. The Selective Service number itself indicates his State of
registration, his local board, his year of birth, and his chronological position in the local board's
classification record.
The classification certificate shows the registrant's name, Selective Service number, signature, and
eligibility classification. It specifies whether he was so classified by his local board, an appeal board,
or the President. It contains the address of his local board and the date the certificate was mailed.
Both the registration and classification certificates bear notices that the registrant must notify his
local board in writing of every change in address, physical condition, and occupational, marital,
family, dependency, and military status, and of any other fact which might change his classification.
Both also contain a notice that the registrant's Selective Service number should appear on all
communications to his local board.
Congress demonstrated its concern that certificates issued by the Selective Service System might be
abused well before the 1965 Amendment here challenged. * * *
By the 1965 Amendment, Congress added to § 12 (b) (3) of the 1948 Act the provision here at issue,
subjecting to criminal liability not only one who "forges, alters, or in any manner changes" but also
one who "knowingly destroys, [or] knowingly mutilates" a certificate. We note at the outset that the
1965 Amendment plainly does not abridge free speech on its face, and we do not understand O'Brien
to argue otherwise. Amended § 12 (b) (3) on its face deals with conduct having no connection with
speech. It prohibits the knowing destruction of certificates issued by the Selective Service System,
and there is nothing necessarily expressive about such conduct. The Amendment does not
distinguish between public and private destruction, and it does not punish only destruction engaged
in for the purpose of expressing views. A law prohibiting destruction of Selective Service certificates
no more abridges free speech on its face than a motor vehicle law prohibiting the destruction of
drivers' licenses, or a tax law prohibiting the destruction of books and records.

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O'Brien nonetheless argues that the 1965 Amendment is unconstitutional in its application to him,
and is unconstitutional as enacted because what he calls the "purpose" of Congress was "to suppress
freedom of speech." We consider these arguments separately.
II.
O'Brien first argues that the 1965 Amendment is unconstitutional as applied to him because his act of
burning his registration certificate was protected "symbolic speech" within the First Amendment. His
argument is that the freedom of expression which the First Amendment guarantees includes all
modes of "communication of ideas by conduct," and that his conduct is within this definition because
he did it in "demonstration against the war and against the draft."
We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech"
whenever the person engaging in the conduct intends thereby to express an idea. However, even on
the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring
into play the First Amendment, it does not necessarily follow that the destruction of a registration
certificate is constitutionally protected activity. This Court has held that when "speech" and
"nonspeech" elements are combined in the same course of conduct, a sufficiently important
governmental interest in regulating the nonspeech element can justify incidental limitations on First
Amendment freedoms. To characterize the quality of the governmental interest which must appear,
the Court has employed a variety of descriptive terms: compelling; substantial; subordinating;
paramount; cogent; strong. Whatever imprecision inheres in these terms, we think it clear that a
government regulation is sufficiently justified if it is within the constitutional power of the
Government; if it furthers an important or substantial governmental interest; if the governmental
interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged
First Amendment freedoms is no greater than is essential to the furtherance of that interest. We find
that the 1965 Amendment to § 12 (b) (3) of the Universal Military Training and Service Act meets all
of these requirements, and consequently that O'Brien can be constitutionally convicted for violating
it.
The constitutional power of Congress to raise and support armies and to make all laws necessary and
proper to that end is broad and sweeping. * * * The issuance of certificates indicating the registration
and eligibility classification of individuals is a legitimate and substantial administrative aid in the
functioning of this system. And legislation to insure the continuing availability of issued certificates
serves a legitimate and substantial purpose in the system's administration. * * *
We think it apparent that the continuing availability to each registrant of his Selective Service
certificates substantially furthers the smooth and proper functioning of the system that Congress has
established to raise armies. We think it also apparent that the Nation has a vital interest in having a
system for raising armies that functions with maximum efficiency and is capable of easily and quickly
responding to continually changing circumstances. For these reasons, the Government has a
substantial interest in assuring the continuing availability of issued Selective Service certificates.
It is equally clear that the 1965 Amendment specifically protects this substantial governmental
interest. We perceive no alternative means that would more precisely and narrowly assure the
continuing availability of issued Selective Service certificates than a law which prohibits their wilful
mutilation or destruction. The 1965 Amendment prohibits such conduct and does nothing more. In
other words, both the governmental interest and the operation of the 1965 Amendment are limited
to the noncommunicative aspect of O'Brien's conduct. The governmental interest and the scope of
the 1965 Amendment are limited to preventing harm to the smooth and efficient functioning of the
Selective Service System. When O'Brien deliberately rendered unavailable his registration certificate,
he wilfully frustrated this governmental interest. For this noncommunicative impact of his conduct,
and for nothing else, he was convicted. * * *
In conclusion, we find that because of the Government's substantial interest in assuring the
continuing availability of issued Selective Service certificates, because amended § 462 (b) is an
appropriately narrow means of protecting this interest and condemns only the independent
noncommunicative impact of conduct within its reach, and because the noncommunicative impact of

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O'Brien's act of burning his registration certificate frustrated the Government's interest, a sufficient
governmental interest has been shown to justify O'Brien's conviction.
III.
O'Brien finally argues that the 1965 Amendment is unconstitutional as enacted because what he calls
the "purpose" of Congress was "to suppress freedom of speech." We reject this argument because
under settled principles the purpose of Congress, as O'Brien uses that term, is not a basis for
declaring this legislation unconstitutional. * * *
We think it not amiss, in passing, to comment upon O'Brien's legislative-purpose argument. There
was little floor debate on this legislation in either House. Only Senator Thurmond commented on its
substantive features in the Senate. 111 Cong. Rec. 19746, 20433. After his brief statement, and
without any additional substantive comments, the bill, H. R. 10306, passed the Senate. 111 Cong. Rec.
20434. In the House debate only two Congressmen addressed themselves to the Amendment—
Congressmen Rivers and Bray. 111 Cong. Rec. 19871, 19872. The bill was passed after their
statements without any further debate by a vote of 393 to 1. It is principally on the basis of the
statements by these three Congressmen that O'Brien makes his congressional-"purpose" argument.
We note that if we were to examine legislative purpose in the instant case, we would be obliged to
consider not only these statements but also the more authoritative reports of the Senate and House
Armed Services Committees. The portions of those reports explaining the purpose of the Amendment
are reproduced in the Appendix in their entirety. While both reports make clear a concern with the
"defiant" destruction of so-called "draft cards" and with "open" encouragement to others to destroy
their cards, both reports also indicate that this concern stemmed from an apprehension that
unrestrained destruction of cards would disrupt the smooth functioning of the Selective Service
System.
IV.
Since the 1965 Amendment to § 12 (b) (3) of the Universal Military Training and Service Act is
constitutional as enacted and as applied * * * we vacate the judgment of the Court of Appeals, and
reinstate the judgment and sentence of the District Court. * * *
It is so ordered.

Spence v. Washington
418 U.S. 405 (1974)
PER CURIAM. DOUGLAS, J., FILED A CONCURRING OPINION. BURGER, C.J. FILED A DISSENTING OPINION. REHNQUIST, J.,
FILED A DISSENTING OPINION, IN WHICH BURGER, C.J., AND WHITE, J., JOINED.
PER CURIAM.
Appellant displayed a United States flag, which he owned, out of the window of his apartment. Affixed
to both surfaces of the flag was a large peace symbol fashioned of removable tape. Appellant was
convicted under a Washington statute forbidding the exhibition of a United States flag to which is
attached or superimposed figures, symbols, or other extraneous material. The Supreme Court of
Washington affirmed appellant's conviction. It rejected appellant's contentions that the statute under
which he was charged, on its face and as applied, contravened the First Amendment, as incorporated
by the Fourteenth Amendment, and was void for vagueness. * * * We reverse on the ground that as
applied to appellant's activity the Washington statute impermissibly infringed protected expression.

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The First Amendment

I
On May 10, 1970, appellant, a college student, hung his United States flag from the window of his
apartment on private property in Seattle, Washington. The flag was upside down, and attached to the
front and back was a peace symbol (i. e., a circle enclosing a trident) made of removable black tape.
The window was above the ground floor. The flag measured approximately three by five feet and was
plainly visible to passersby. The peace symbol occupied roughly half of the surface of the flag.
Three Seattle police officers observed the flag and entered the apartment house. They were met at
the main door by appellant, who said: "I suppose you are here about the flag. I didn't know there was
anything wrong with it. I will take it down." Appellant permitted the officers to enter his apartment,
where they seized the flag and arrested him. Appellant cooperated with the officers. There was no
disruption or altercation.
Appellant was not charged under Washington's flag-desecration statute. See Wash. Rev. Code §
9.86.030, as amended. Rather, the State relied on the so-called "improper use" statute, Wash. Rev.
Code § 9.86.020. This statute provides, in pertinent part:
"No person shall, in any manner, for exhibition or display:
"(1) Place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of
any nature upon any flag, standard, color, ensign or shield of the United States or of this state . . . or
"(2) Expose to public view any such flag, standard, color, ensign or shield upon which shall have been
printed, painted or otherwise produced, or to which shall have been attached, appended, affixed or
annexed any such word, figure, mark, picture, design, drawing or advertisement . . . ."

* * * [At trial] he testified that he put a peace symbol on the flag and displayed it to public view as a
protest against the invasion of Cambodia and the killings at Kent State University, events which
occurred a few days prior to his arrest. He said that his purpose was to associate the American flag
with peace instead of war and violence:
"I felt there had been so much killing and that this was not what America stood for. I felt that the flag
stood for America and I wanted people to know that I thought America stood for peace."

Appellant further testified that he chose to fashion the peace symbol from tape so that it could be
removed without damaging the flag. The State made no effort to controvert any of appellant's
testimony.
The trial court instructed the jury in essence that the mere act of displaying the flag with the peace
symbol attached, if proved beyond a reasonable doubt, was sufficient to convict. There was no
requirement of specific intent to do anything more than display the flag in that manner. The jury
returned a verdict of guilty. The court sentenced appellant to 10 days in jail, suspended, and to a $75
fine. The Washington Court of Appeals reversed the conviction. It held the improper-use statute
overbroad and invalid on its face under the First and Fourteenth Amendments. With one justice
dissenting and two concurring in the result, the Washington Supreme Court reversed and reinstated
the conviction.
II
A number of factors are important in the instant case. First, this was a privately owned flag. In a
technical property sense it was not the property of any government. We have no doubt that the State
or National Governments constitutionally may forbid anyone from mishandling in any manner a flag
that is public property. But this is a different case. Second, appellant displayed his flag on private
property. He engaged in no trespass or disorderly conduct. Nor is this a case that might be analyzed
in terms of reasonable time, place, or manner restraints on access to a public area. Third, the record
is devoid of proof of any risk of breach of the peace. It was not appellant's purpose to incite violence
or even stimulate a public demonstration. There is no evidence that any crowd gathered or that
appellant made any effort to attract attention beyond hanging the flag out of his own window.
Indeed, on the facts stipulated by the parties there is no evidence that anyone other than the three
police officers observed the flag.

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Fourth, the State concedes, as did the Washington Supreme Court, that appellant engaged in a form of
communication. Although the stipulated facts fail to show that any member of the general public
viewed the flag, the State's concession is inevitable on this record. The undisputed facts are that
appellant "wanted people to know that I thought America stood for peace." To be sure, appellant did
not choose to articulate his views through printed or spoken words. It is therefore necessary to
determine whether his activity was sufficiently imbued with elements of communication to fall
within the scope of the First and Fourteenth Amendments, for as the Court noted in United States v.
O'Brien, "[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled
`speech' whenever the person engaging in the conduct intends thereby to express an idea." But the
nature of appellant's activity, combined with the factual context and environment in which it was
undertaken, lead to the conclusion that he engaged in a form of protected expression.
The Court for decades has recognized the communicative connotations of the use of flags. In many of
their uses flags are a form of symbolism comprising a "primitive but effective way of communicating
ideas . . . ," and "a short cut from mind to mind." Board of Education v. Barnette (1943). On this record
there can be little doubt that appellant communicated through the use of symbols. The symbolism
included not only the flag but also the superimposed peace symbol.
Moreover, the context in which a symbol is used for purposes of expression is important, for the
context may give meaning to the symbol. * * * In this case, appellant's activity was roughly
simultaneous with and concededly triggered by the Cambodian incursion and the Kent State tragedy,
also issues of great public moment. A flag bearing a peace symbol and displayed upside down by a
student today might be interpreted as nothing more than bizarre behavior, but it would have been
difficult for the great majority of citizens to miss the drift of appellant's point at the time that he
made it.
It may be noted, further, that this was not an act of mindless nihilism. Rather, it was a pointed
expression of anguish by appellant about the then-current domestic and foreign affairs of his
government. An intent to convey a particularized message was present, and in the surrounding
circumstances the likelihood was great that the message would be understood by those who viewed
it.
We are confronted then with a case of prosecution for the expression of an idea through activity.
Moreover, the activity occurred on private property, rather than in an environment over which the
State by necessity must have certain supervisory powers unrelated to expression. Accordingly, we
must examine with particular care the interests advanced by appellee to support its prosecution.
* * * [The] state court's thesis [was] that Washington has an interest in preserving the national flag as
an unalloyed symbol of our country. The court did not define this interest; it simply asserted it. Mr.
Justice Rehnquist's dissenting opinion today, adopts essentially the same approach. Presumably, this
interest might be seen as an effort to prevent the appropriation of a revered national symbol by an
individual, interest group, or enterprise where there was a risk that association of the symbol with a
particular product or viewpoint might be taken erroneously as evidence of governmental
endorsement. Alternatively, it might be argued that the interest asserted by the state court is based
on the uniquely universal character of the national flag as a symbol. For the great majority of us, the
flag is a symbol of patriotism, of pride in the history of our country, and of the service, sacrifice, and
valor of the millions of Americans who in peace and war have joined together to build and to defend a
Nation in which self-government and personal liberty endure. It evidences both the unity and
diversity which are America. For others the flag carries in varying degrees a different message. "A
person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration
is another's jest and scorn." Board of Education v. Barnette. It might be said that we all draw
something from our national symbol, for it is capable of conveying simultaneously a spectrum of
meanings. If it may be destroyed or permanently disfigured, it could be argued that it will lose its
capability of mirroring the sentiments of all who view it.
But we need not decide in this case whether the interest advanced by the court below is valid. We
assume, arguendo, that it is. The statute is nonetheless unconstitutional as applied to appellant's
activity. There was no risk that appellant's acts would mislead viewers into assuming that the
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Government endorsed his viewpoint. To the contrary, he was plainly and peacefully protesting the
fact that it did not. Appellant was not charged under the desecration statute nor did he permanently
disfigure the flag or destroy it. He displayed it as a flag of his country in a way closely analogous to
the manner in which flags have always been used to convey ideas. Moreover, his message was direct,
likely to be understood, and within the contours of the First Amendment. Given the protected
character of his expression and in light of the fact that no interest the State may have in preserving
the physical integrity of a privately owned flag was significantly impaired on these facts, the
conviction must be invalidated.
The judgment is reversed.
It is so ordered.
MR. JUSTICE REHNQUIST, WITH WHOM THE CHIEF JUSTICE AND MR. JUSTICE WHITE JOIN, DISSENTING.
The Court holds that a Washington statute prohibiting persons from attaching material to the
American flag was unconstitutionally applied to appellant. Although I agree with the Court that
appellant's activity was a form of communication, I do not agree that the First Amendment prohibits
the State from restricting this activity in furtherance of other important interests. And I believe the
rationale by which the Court reaches its conclusion is unsound.
"[T]he right of free speech is not absolute at all times and under all circumstances." Chaplinsky v. New
Hampshire (1942). This Court has long recognized, for example, that some forms of expression are
not entitled to any protection at all under the First Amendment, despite the fact that they could
reasonably be thought protected under its literal language. See Roth v. United States (1957). The
Court has further recognized that even protected speech may be subject to reasonable limitation
when important countervailing interests are involved. Citizens are not completely free to commit
perjury, to libel other citizens, to infringe copyrights, to incite riots, or to interfere unduly with
passage through a public thoroughfare. The right of free speech, though precious, remains subject to
reasonable accommodation to other valued interests.
Since a State concededly may impose some limitations on speech directly, it would seem to follow a
fortiori that a State may legislate to protect important state interests even though an incidental
limitation on free speech results. Virtually any law enacted by a State, when viewed with sufficient
ingenuity, could be thought to interfere with some citizen's preferred means of expression. But no
one would argue, I presume, that a State could not prevent the painting of public buildings simply
because a particular class of protesters believed their message would best be conveyed through that
medium. Had appellant here chosen to tape his peace symbol to a federal courthouse, I have little
doubt that he could be prosecuted under a statute properly drawn to protect public property.
Yet the Court today holds that the State of Washington cannot limit use of the American flag, at least
insofar as its statute prevents appellant from using a privately owned flag to convey his personal
message. Expressing its willingness to assume, arguendo, that Washington has a valid interest in
preserving the integrity of the flag, the Court nevertheless finds that interest to be insufficient in this
case. To achieve this result the Court first devalues the State's interest under these circumstances,
noting that "no interest the State may have in preserving the physical integrity of a privately owned
flag was significantly impaired on these facts . . . ." The Court takes pains to point out that appellant
did not "permanently disfigure the flag or destroy it," and emphasizes that the flag was displayed "in
a way closely analogous to the manner in which flags have always been used to convey ideas." The
Court then restates the notion that such state interests are secondary to messages which are "direct,
likely to be understood, and within the contours of the First Amendment." In my view the first
premise demonstrates a total misunderstanding of the State's interest in the integrity of the
American flag, and the second premise places the Court in the position either of ultimately favoring
appellant's message because of its subject matter, a position about which almost all members of the
majority have only recently expressed doubt, or, alternatively, of making the flag available for a
limitless succession of political and commercial messages. * * *

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What appellant here seeks is simply license to use the flag however he pleases, so long as the activity
can be tied to a concept of speech, regardless of any state interest in having the flag used only for
more limited purposes. I find no reasoning in the Court's opinion which convinces me that the
Constitution requires such license to be given.
The fact that the State has a valid interest in preserving the character of the flag does not mean, of
course, that it can employ all conceivable means to enforce it. It certainly could not require all
citizens to own the flag or compel citizens to salute one. Board of Education v. Barnette (1943). It
presumably cannot punish criticism of the flag, or the principles for which it stands, any more than it
could punish criticism of this country's policies or ideas. But the statute in this case demands no such
allegiance. Its operation does not depend upon whether the flag is used for communicative or
noncommunicative purposes; upon whether a particular message is deemed commercial or political;
upon whether the use of the flag is respectful or contemptuous; or upon whether any particular
segment of the State's citizenry might applaud or oppose the intended message. It simply withdraws
a unique national symbol from the roster of materials that may be used as a background for
communications. Since I do not believe the Constitution prohibits Washington from making that
decision, I dissent.

Texas v. Johnson
491 U.S. 397 (1989)
BRENNAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH MARSHALL, BLACKMUN, SCALIA, AND KENNEDY, JJ.,
JOINED. KENNEDY, J., FILED A CONCURRING OPINION. REHNQUIST, C. J., FILED A DISSENTING OPINION, IN WHICH WHITE
AND O'CONNOR, JJ., JOINED. STEVENS, J., FILED A DISSENTING OPINION.
JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT.
After publicly burning an American flag as a means of political protest, Gregory Lee Johnson was
convicted of desecrating a flag in violation of Texas law. This case presents the question whether his
conviction is consistent with the First Amendment. We hold that it is not.
I
While the Republican National Convention was taking place in Dallas in 1984, respondent Johnson
participated in a political demonstration dubbed the "Republican War Chest Tour." As explained in
literature distributed by the demonstrators and in speeches made by them, the purpose of this event
was to protest the policies of the Reagan administration and of certain Dallas-based corporations.
The demonstrators marched through the Dallas streets, chanting political slogans and stopping at
several corporate locations to stage "die-ins" intended to dramatize the consequences of nuclear war.
On several occasions they spray-painted the walls of buildings and overturned potted plants, but
Johnson himself took no part in such activities. He did, however, accept an American flag handed to
him by a fellow protestor who had taken it from a flagpole outside one of the targeted buildings.
The demonstration ended in front of Dallas City Hall, where Johnson unfurled the American flag,
doused it with kerosene, and set it on fire. While the flag burned, the protestors chanted: "America,
the red, white, and blue, we spit on you." After the demonstrators dispersed, a witness to the flag
burning collected the flag's remains and buried them in his backyard. No one was physically injured
or threatened with injury, though several witnesses testified that they had been seriously offended
by the flag burning.
Of the approximately 100 demonstrators, Johnson alone was charged with a crime. The only criminal
offense with which he was charged was the desecration of a venerated object in violation of Tex.
Penal Code Ann. 42.09(a)(3) (1989). After a trial, he was convicted, sentenced to one year in prison,
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and fined $2,000. The Court of Appeals for the Fifth District of Texas at Dallas affirmed Johnson's
conviction, but the Texas Court of Criminal Appeals reversed, holding that the State could not,
consistent with the First Amendment, punish Johnson for burning the flag in these circumstances. * *
* Because it reversed Johnson's conviction on the ground that 42.09 was unconstitutional as applied
to him, the state court did not address Johnson's argument that the statute was, on its face,
unconstitutionally vague and overbroad. We granted certiorari and now affirm.
II
Johnson was convicted of flag desecration for burning the flag rather than for uttering insulting
words. This fact somewhat complicates our consideration of his conviction under the First
Amendment. We must first determine whether Johnson's burning of the flag constituted expressive
conduct, permitting him to invoke the First Amendment in challenging his conviction. See, e. g.,
Spence v. Washington (1974). If his conduct was expressive, we next decide whether the State's
regulation is related to the suppression of free expression. See, e. g., United States v. O'Brien (1968);
Spence. If the State's regulation is not related to expression, then the less stringent standard we
announced in United States v. O'Brien for regulations of noncommunicative conduct controls. If it is,
then we are outside of O'Brien's test, and we must ask whether this interest justifies Johnson's
conviction under a more demanding standard. A third possibility is that the State's asserted interest
is simply not implicated on these facts, and in that event the interest drops out of the picture.
The First Amendment literally forbids the abridgment only of "speech," but we have long recognized
that its protection does not end at the spoken or written word. While we have rejected "the view that
an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in
the conduct intends thereby to express an idea," O'Brien, we have acknowledged that conduct may be
"sufficiently imbued with elements of communication to fall within the scope of the First and
Fourteenth Amendments," Spence.
In deciding whether particular conduct possesses sufficient communicative elements to bring the
First Amendment into play, we have asked whether "[a]n intent to convey a particularized message
was present, and [whether] the likelihood was great that the message would be understood by those
who viewed it." Spence. Hence, we have recognized the expressive nature of students' wearing of
black armbands to protest American military involvement in Vietnam, Tinker v. Des Moines
Independent Community School Dist. (1969); of a sit-in by blacks in a "whites only" area to protest
segregation, Brown v. Louisiana (1966); of the wearing of American military uniforms in a dramatic
presentation criticizing American involvement in Vietnam, Schacht v. United States (1970); and of
picketing about a wide variety of causes.
Especially pertinent to this case are our decisions recognizing the communicative nature of conduct
relating to flags. That we have had little difficulty identifying an expressive element in conduct
relating to flags should not be surprising. The very purpose of a national flag is to serve as a symbol
of our country; it is, one might say, "the one visible manifestation of two hundred years of
nationhood." * * * Pregnant with expressive content, the flag as readily signifies this Nation as does
the combination of letters found in "America."
* * * The State of Texas conceded for purposes of its oral argument in this case that Johnson's conduct
was expressive conduct, and this concession seems to us as prudent as was Washington's in Spence.
Johnson burned an American flag as part - indeed, as the culmination - of a political demonstration
that coincided with the convening of the Republican Party and its renomination of Ronald Reagan for
President. The expressive, overtly political nature of this conduct was both intentional and
overwhelmingly apparent. * * *
III
The government generally has a freer hand in restricting expressive conduct than it has in restricting
the written or spoken word. See O'Brien. It may not, however, proscribe particular conduct because it
has expressive elements. * * * It is, in short, not simply the verbal or nonverbal nature of the
expression, but the governmental interest at stake, that helps to determine whether a restriction on
that expression is valid.
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Thus, although we have recognized that where "`speech' and `nonspeech' elements are combined in
the same course of conduct, a sufficiently important governmental interest in regulating the
nonspeech element can justify incidental limitations on First Amendment freedoms," O'Brien, we
have limited the applicability of O'Brien's relatively lenient standard to those cases in which "the
governmental interest is unrelated to the suppression of free expression.” [We] have highlighted the
requirement that the governmental interest in question be unconnected to expression in order to
come under O'Brien's less demanding rule.
In order to decide whether O'Brien's test applies here, therefore, we must decide whether Texas has
asserted an interest in support of Johnson's conviction that is unrelated to the suppression of
expression. If we find that an interest asserted by the State is simply not implicated on the facts
before us, we need not ask whether O'Brien's test applies. The State offers two separate interests to
justify this conviction: preventing breaches of the peace and preserving the flag as a symbol of
nationhood and national unity. We hold that the first interest is not implicated on this record and
that the second is related to the suppression of expression.
A
Texas claims that its interest in preventing breaches of the peace justifies Johnson's conviction for
flag desecration. However, no disturbance of the peace actually occurred or threatened to occur
because of Johnson's burning of the flag. Although the State stresses the disruptive behavior of the
protestors during their march toward City Hall, it admits that "no actual breach of the peace occurred
at the time of the flagburning or in response to the flagburning."
* * * The State's position, therefore, amounts to a claim that an audience that takes serious offense at
particular expression is necessarily likely to disturb the peace and that the expression may be
prohibited on this basis. Our precedents do not countenance such a presumption. * * *
Thus, we have not permitted the government to assume that every expression of a provocative idea
will incite a riot, but have instead required careful consideration of the actual circumstances
surrounding such expression, asking whether the expression "is directed to inciting or producing
imminent lawless action and is likely to incite or produce such action." Brandenburg v. Ohio (1969).
To accept Texas' arguments that it need only demonstrate "the potential for a breach of the peace,"
and that every flag burning necessarily possesses that potential, would be to eviscerate our holding
in Brandenburg. This we decline to do.
Nor does Johnson's expressive conduct fall within that small class of "fighting words" that are "likely
to provoke the average person to retaliation, and thereby cause a breach of the peace." Chaplinsky v.
New Hampshire (1942). * * *
We thus conclude that the State's interest in maintaining order is not implicated on these facts. The
State need not worry that our holding will disable it from preserving the peace. We do not suggest
that the First Amendment forbids a State to prevent "imminent lawless action." Brandenburg. And, in
fact, Texas already has a statute specifically prohibiting breaches of the peace, which tends to confirm
that Texas need not punish this flag desecration in order to keep the peace.
B
The State also asserts an interest in preserving the flag as a symbol of nationhood and national unity.
In Spence, we acknowledged that the government's interest in preserving the flag's special symbolic
value "is directly related to expression in the context of activity" such as affixing a peace symbol to a
flag. We are equally persuaded that this interest is related to expression in the case of Johnson's
burning of the flag. The State, apparently, is concerned that such conduct will lead people to believe
either that the flag does not stand for nationhood and national unity, but instead reflects other, less
positive concepts, or that the concepts reflected in the flag do not in fact exist, that is, that we do not
enjoy unity as a Nation. These concerns blossom only when a person's treatment of the flag
communicates some message, and thus are related "to the suppression of free expression" within the
meaning of O'Brien. We are thus outside of O'Brien's test altogether.

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IV
It remains to consider whether the State's interest in preserving the flag as a symbol of nationhood
and national unity justifies Johnson's conviction.
* * * Johnson was not, we add, prosecuted for the expression of just any idea; he was prosecuted for
his expression of dissatisfaction with the policies of this country, expression situated at the core of
our First Amendment values.
Moreover, Johnson was prosecuted because he knew that his politically charged expression would
cause "serious offense." If he had burned the flag as a means of disposing of it because it was dirty or
torn, he would not have been convicted of flag desecration under this Texas law: federal law
designates burning as the preferred means of disposing of a flag "when it is in such condition that it is
no longer a fitting emblem for display," 36 U.S.C. 176(k), and Texas has no quarrel with this means of
disposal. The Texas law is thus not aimed at protecting the physical integrity of the flag in all
circumstances, but is designed instead to protect it only against impairments that would cause
serious offense to others. Texas concedes as much. * * * Johnson's political expression was restricted
because of the content of the message he conveyed. We must therefore subject the State's asserted
interest in preserving the special symbolic character of the flag to "the most exacting scrutiny."
Texas argues that its interest in preserving the flag as a symbol of nationhood and national unity
survives this close analysis. Quoting extensively from the writings of this Court chronicling the flag's
historic and symbolic role in our society, the State emphasizes the "`special place'" reserved for the
flag in our Nation. The State's argument is not that it has an interest simply in maintaining the flag as
a symbol of something, no matter what it symbolizes; indeed, if that were the State's position, it
would be difficult to see how that interest is endangered by highly symbolic conduct such as
Johnson's. Rather, the State's claim is that it has an interest in preserving the flag as a symbol of
nationhood and national unity, a symbol with a determinate range of meanings. According to Texas, if
one physically treats the flag in a way that would tend to cast doubt on either the idea that
nationhood and national unity are the flag's referents or that national unity actually exists, the
message conveyed thereby is a harmful one and therefore may be prohibited.
If there is a bedrock principle underlying the First Amendment, it is that the government may not
prohibit the expression of an idea simply because society finds the idea itself offensive or
disagreeable.
We have not recognized an exception to this principle even where our flag has been involved. * * *
In short, nothing in our precedents suggests that a State may foster its own view of the flag by
prohibiting expressive conduct relating to it. To bring its argument outside our precedents, Texas
attempts to convince us that even if its interest in preserving the flag's symbolic role does not allow it
to prohibit words or some expressive conduct critical of the flag, it does permit it to forbid the
outright destruction of the flag. The State's argument cannot depend here on the distinction between
written or spoken words and nonverbal conduct. That distinction, we have shown, is of no moment
where the nonverbal conduct is expressive, as it is here, and where the regulation of that conduct is
related to expression, as it is here. In addition, both Barnette and Spence involved expressive conduct,
not only verbal communication, and both found that conduct protected.
Texas' focus on the precise nature of Johnson's expression, moreover, misses the point of our prior
decisions: their enduring lesson, that the government may not prohibit expression simply because it
disagrees with its message, is not dependent on the particular mode in which one chooses to express
an idea. If we were to hold that a State may forbid flag burning wherever it is likely to endanger the
flag's symbolic role, but allow it wherever burning a flag promotes that role - as where, for example, a
person ceremoniously burns a dirty flag - we would be saying that when it comes to impairing the
flag's physical integrity, the flag itself may be used as a symbol - as a substitute for the written or
spoken word or a "short cut from mind to mind" - only in one direction. We would be permitting a
State to "prescribe what shall be orthodox" by saying that one may burn the flag to convey one's
attitude toward it and its referents only if one does not endanger the flag's representation of
nationhood and national unity.
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We never before have held that the Government may ensure that a symbol be used to express only
one view of that symbol or its referents. * * *
There is, moreover, no indication - either in the text of the Constitution or in our cases interpreting it
- that a separate juridical category exists for the American flag alone. Indeed, we would not be
surprised to learn that the persons who framed our Constitution and wrote the Amendment that we
now construe were not known for their reverence for the Union Jack. The First Amendment does not
guarantee that other concepts virtually sacred to our Nation as a whole - such as the principle that
discrimination on the basis of race is odious and destructive - will go unquestioned in the
marketplace of ideas. See Brandenburg v. Ohio (1969). We decline, therefore, to create for the flag an
exception to the joust of principles protected by the First Amendment.
It is not the State's ends, but its means, to which we object. It cannot be gainsaid that there is a
special place reserved for the flag in this Nation, and thus we do not doubt that the government has a
legitimate interest in making efforts to "preserv[e] the national flag as an unalloyed symbol of our
country." Spence. We reject the suggestion, urged at oral argument by counsel for Johnson, that the
government lacks "any state interest whatsoever" in regulating the manner in which the flag may be
displayed. Congress has, for example, enacted precatory regulations describing the proper treatment
of the flag, and we cast no doubt on the legitimacy of its interest in making such recommendations.
To say that the government has an interest in encouraging proper treatment of the flag, however, is
not to say that it may criminally punish a person for burning a flag as a means of political protest.
"National unity as an end which officials may foster by persuasion and example is not in question.
The problem is whether under our Constitution compulsion as here employed is a permissible means
for its achievement." Barnette.
We are fortified in today's conclusion by our conviction that forbidding criminal punishment for
conduct such as Johnson's will not endanger the special role played by our flag or the feelings it
inspires. To paraphrase Justice Holmes, we submit that nobody can suppose that this one gesture of
an unknown man will change our Nation's attitude towards its flag. See Abrams v. United States
(1919) (Holmes, J., dissenting). * * *
We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be
strengthened, not weakened, by our holding today. Our decision is a reaffirmation of the principles of
freedom and inclusiveness that the flag best reflects, and of the conviction that our toleration of
criticism such as Johnson's is a sign and source of our strength. Indeed, one of the proudest images of
our flag, the one immortalized in our own national anthem, is of the bombardment it survived at Fort
McHenry. It is the Nation's resilience, not its rigidity, that Texas sees reflected in the flag - and it is
that resilience that we reassert today.
The way to preserve the flag's special role is not to punish those who feel differently about these
matters. It is to persuade them that they are wrong. "To courageous, self-reliant men, with confidence
in the power of free and fearless reasoning applied through the processes of popular government, no
danger flowing from speech can be deemed clear and present, unless the incidence of the evil
apprehended is so imminent that it may befall before there is opportunity for full discussion. If there
be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of
education, the remedy to be applied is more speech, not enforced silence." Whitney v. California
(1927) (Brandeis, J., concurring). And, precisely because it is our flag that is involved, one's response
to the flag burner may exploit the uniquely persuasive power of the flag itself. We can imagine no
more appropriate response to burning a flag than waving one's own, no better way to counter a flag
burner's message than by saluting the flag that burns, no surer means of preserving the dignity even
of the flag that burned than by - as one witness here did - according its remains a respectful burial.
We do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that
this cherished emblem represents.
V
Johnson was convicted for engaging in expressive conduct. The State's interest in preventing
breaches of the peace does not support his conviction because Johnson's conduct did not threaten to
disturb the peace. Nor does the State's interest in preserving the flag as a symbol of nationhood and
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national unity justify his criminal conviction for engaging in political expression. The judgment of the
Texas Court of Criminal Appeals is therefore
Affirmed.
CHIEF JUSTICE REHNQUIST, WITH WHOM JUSTICE WHITE AND JUSTICE O'CONNOR JOIN, DISSENTING.
In holding this Texas statute unconstitutional, the Court ignores Justice Holmes' familiar aphorism
that "a page of history is worth a volume of logic." For more than 200 years, the American flag has
occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental
prohibition against flag burning in the way respondent Johnson did here. * * *
The American flag, then, throughout more than 200 years of our history, has come to be the visible
symbol embodying our Nation. It does not represent the views of any particular political party, and it
does not represent any particular political philosophy. The flag is not simply another "idea" or "point
of view" competing for recognition in the marketplace of ideas. Millions and millions of Americans
regard it with an almost mystical reverence regardless of what sort of social, political, or
philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of
Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag. * * *
Our Constitution wisely places limits on powers of legislative majorities to act, but the declaration of
such limits by this Court "is, at all times, a question of much delicacy, which ought seldom, if ever, to
be decided in the affirmative, in a doubtful case." Fletcher v. Peck (1810) (Marshall, C. J.). Uncritical
extension of constitutional protection to the burning of the flag risks the frustration of the very
purpose for which organized governments are instituted. The Court decides that the American flag is
just another symbol, about which not only must opinions pro and con be tolerated, but for which the
most minimal public respect may not be enjoined. The government may conscript men into the
Armed Forces where they must fight and perhaps die for the flag, but the government may not
prohibit the public burning of the banner under which they fight. I would uphold the Texas statute as
applied in this case.
STEVENS, J., DISSENTING.
As the Court analyzes this case, it presents the question whether the State of Texas, or indeed the
Federal Government, has the power to prohibit the public desecration of the American flag. The
question is unique. In my judgment rules that apply to a host of other symbols, such as state flags,
armbands, or various privately promoted emblems of political or commercial identity, are not
necessarily controlling. Even if flag burning could be considered just another species of symbolic
speech under the logical application of the rules that the Court has developed in its interpretation of
the First Amendment in other contexts, this case has an intangible dimension that makes those rules
inapplicable.
A country's flag is a symbol of more than "nationhood and national unity." It also signifies the ideas
that characterize the society that has chosen that emblem as well as the special history that has
animated the growth and power of those ideas. The fleurs-de-lis and the tricolor both symbolized
"nationhood and national unity," but they had vastly different meanings. The message conveyed by
some flags - the swastika, for example - may survive long after it has outlived its usefulness as a
symbol of regimented unity in a particular nation.
So it is with the American flag. It is more than a proud symbol of the courage, the determination, and
the gifts of nature that transformed 13 fledgling Colonies into a world power. It is a symbol of
freedom, of equal opportunity, of religious tolerance, and of good will for other peoples who share
our aspirations. The symbol carries its message to dissidents both at home and abroad who may have
no interest at all in our national unity or survival.
The value of the flag as a symbol cannot be measured. Even so, I have no doubt that the interest in
preserving that value for the future is both significant and legitimate. Conceivably that value will be
enhanced by the Court's conclusion that our national commitment to free expression is so strong that
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even the United States as ultimate guarantor of that freedom is without power to prohibit the
desecration of its unique symbol. But I am unpersuaded. The creation of a federal right to post
bulletin boards and graffiti on the Washington Monument might enlarge the market for free
expression, but at a cost I would not pay. Similarly, in my considered judgment, sanctioning the
public desecration of the flag will tarnish its value - both for those who cherish the ideas for which it
waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not
justified by the trivial burden on free expression occasioned by requiring that an available,
alternative mode of expression - including uttering words critical of the flag, be employed.
It is appropriate to emphasize certain propositions that are not implicated by this case. The statutory
prohibition of flag desecration does not "prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
West Virginia Board of Education v. Barnette (1943). The statute does not compel any conduct or any
profession of respect for any idea or any symbol.
Nor does the statute violate "the government's paramount obligation of neutrality in its regulation of
protected communication." Young v. American Mini Theatres, Inc. (1976) (plurality opinion). The
content of respondent's message has no relevance whatsoever to the case. The concept of
"desecration" does not turn on the substance of the message the actor intends to convey, but rather
on whether those who view the act will take serious offense. Accordingly, one intending to convey a
message of respect for the flag by burning it in a public square might nonetheless be guilty of
desecration if he knows that others - perhaps simply because they misperceive the intended message
- will be seriously offended. Indeed, even if the actor knows that all possible witnesses will
understand that he intends to send a message of respect, he might still be guilty of desecration if he
also knows that this understanding does not lessen the offense taken by some of those witnesses.
Thus, this is not a case in which the fact that "it is the speaker's opinion that gives offense" provides a
special "reason for according it constitutional protection," FCC v. Pacifica Foundation (1978)
(plurality opinion). The case has nothing to do with "disagreeable ideas." It involves disagreeable
conduct that, in my opinion, diminishes the value of an important national asset.
The Court is therefore quite wrong in blandly asserting that respondent "was prosecuted for his
expression of dissatisfaction with the policies of this country, expression situated at the core of our
First Amendment values." Respondent was prosecuted because of the method he chose to express his
dissatisfaction with those policies. Had he chosen to spray-paint - or perhaps convey with a motion
picture projector - his message of dissatisfaction on the facade of the Lincoln Memorial, there would
be no question about the power of the Government to prohibit his means of expression. The
prohibition would be supported by the legitimate interest in preserving the quality of an important
national asset. Though the asset at stake in this case is intangible, given its unique value, the same
interest supports a prohibition on the desecration of the American flag. [fn* see below
The ideas of liberty and equality have been an irresistible force in motivating leaders like Patrick
Henry, Susan B. Anthony, and Abraham Lincoln, schoolteachers like Nathan Hale and Booker T.
Washington, the Philippine Scouts who fought at Bataan, and the soldiers who scaled the bluff at
Omaha Beach. If those ideas are worth fighting for - and our history demonstrates that they are - it
cannot be true that the flag that uniquely symbolizes their power is not itself worthy of protection
from unnecessary desecration.
I respectfully dissent.
[Footnote * ] The Court suggests that a prohibition against flag desecration is not content neutral
because this form of symbolic speech is only used by persons who are critical of the flag or the ideas
it represents. In making this suggestion the Court does not pause to consider the far-reaching
consequences of its introduction of disparate-impact analysis into our First Amendment
jurisprudence. It seems obvious that a prohibition against the desecration of a gravesite is content
neutral even if it denies some protesters the right to make a symbolic statement by extinguishing the
flame in Arlington Cemetery where John F. Kennedy is buried while permitting others to salute the
flame by bowing their heads. Few would doubt that a protester who extinguishes the flame has
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desecrated the gravesite, regardless of whether he prefaces that act with a speech explaining that his
purpose is to express deep admiration or unmitigated scorn for the late President. Likewise, few
would claim that the protester who bows his head has desecrated the gravesite, even if he makes
clear that his purpose is to show disrespect. In such a case, as in a flag burning case, the prohibition
against desecration has absolutely nothing to do with the content of the message that the symbolic
speech is intended to convey.

Notes

1.
Is the American flag unique? Does the difference of opinion on this issue fully explain the
contrary conclusions of the Court and the dissents?
Note that Congress reacted to Texas v. Johnson by passing the Flag Protection Act of 1989,
103 Stat. 777, 18 U.S.C. § 700, which the Court held unconstitutional in United States v. Eichman, 496
U.S. 310 (1990). The House of Representatives has passed a resolution to amend the United States
Constitution, The Flag Desecration Amendment, to specifically permit Congress to pass legislation to
prohibit the physical desecration of the flag of the United States, but the proposed Constitutional
amendment has not been enthusiastically advanced.
2.
What is the O’Brien standard? Why did the Court find it inapplicable in Texas v. Johnson?
What is the argument that the O’Brien standard should not have been applicable in O’Brien?
3.
What is the Spence test? How does it apply in the context of public school dress codes that
prohibit “saggy pants,” “gang attire,” fishnet tights, gender non-conforming clothes or males wearing
facial make-up? How does a specific prohibition influence the analysis of whether an “expression” is
sufficient under Spence?
4.
Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), involved
students wearing black armbands which the Court held was expressive conduct. This important case
is included in the chapter on Government as Employer and Educator.
5.
In Clark v. Community for Creative Non-Violence, 468 U.S. 288 (1984), the Court assumed but
did not decide that sleeping could be expressive conduct. The context was a challenge to a National
Park Service regulation prohibiting camping in certain parks as applied to prohibit demonstrators
from sleeping in D.C.’s Lafayette Park and the Mall in connection with a demonstration intended to
call attention to the plight of the homeless. The National Park Service allowed “symbolic tents” but
disallowed sleeping in those tents. The Court found that there was a substantial governmental
interest (preserving park property) unrelated to the suppression of the arguably protected
expressive sleeping and upheld the park regulation.
Clark was central to some of the First Amendment litigation surrounding “Occupy” in 2011.

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II.

Hate Speech

The conflict between “free speech” and equality is a persistent one. The next two cases resolve the
balance in different ways, but they are generally thought not to conflict. How do you explain the
differences between the next two cases?

R.A.V. v. St. Paul
505 U.S. 377 (1992)
SCALIA, J., DELIVERED THE OPINION OF THE COURT, IN WHICH REHNQUIST, C.J., AND KENNEDY, SOUTER, AND
THOMAS, JJ., JOINED. WHITE, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH BLACKMUN AND
O'CONNOR, JJ., JOINED, AND IN WHICH STEVENS, J., JOINED EXCEPT AS TO PART I-A. BLACKMUN J., FILED AN OPINION
CONCURRING IN THE JUDGMENT. STEVENS, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN PART I OF WHICH
WHITE AND BLACKMUN, JJ., JOINED.
JUSTICE SCALIA DELIVERED THE OPINION OF THE COURT.
In the predawn hours of June 21, 1990, petitioner and several other teenagers allegedly assembled a
crudely made cross by taping together broken chair legs. They then allegedly burned the cross inside
the fenced yard of a black family that lived across the street from the house where petitioner was
staying. Although this conduct could have been punished under any of a number of laws, one of the
two provisions under which respondent city of St. Paul chose to charge petitioner (then a juvenile)
was the St. Paul Bias-Motivated Crime Ordinance, St. Paul, Minn., Legis. Code 292.02 (1990), which
provides:
"Whoever places on public or private property a symbol, object, appellation, characterization or
graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has
reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color,
creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor."

Petitioner moved to dismiss this count on the ground that the St. Paul ordinance was substantially
overbroad and impermissibly content based, and therefore facially invalid under the First
Amendment. The trial court granted this motion, but the Minnesota Supreme Court reversed. That
court rejected petitioner's overbreadth claim because, as construed in prior Minnesota cases, the
modifying phrase "arouses anger, alarm or resentment in others" limited the reach of the ordinance
to conduct that amounts to "fighting words," i.e., "conduct that itself inflicts injury or tends to incite
immediate violence . . . ," and therefore the ordinance reached only expression "that the first
amendment does not protect.” The court also concluded that the ordinance was not impermissibly
content based because, in its view, "the ordinance is a narrowly tailored means toward
accomplishing the compelling governmental interest in protecting the community against biasmotivated threats to public safety and order." We granted certiorari.
I
In construing the St. Paul ordinance, we are bound by the construction given to it by the Minnesota
court. Accordingly, we accept the Minnesota Supreme Court's authoritative statement that the
ordinance reaches only those expressions that constitute "fighting words" within the meaning of
Chaplinsky. Petitioner and his amici urge us to modify the scope of the Chaplinsky formulation,
thereby invalidating the ordinance as "substantially overbroad." We find it unnecessary to consider
this issue. Assuming, arguendo, that all of the expression reached by the ordinance is proscribable
under the "fighting words" doctrine, we nonetheless conclude that the ordinance is facially
unconstitutional in that it prohibits otherwise permitted speech solely on the basis of the subjects the
speech addresses.
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The First Amendment generally prevents government from proscribing speech or even expressive
conduct because of disapproval of the ideas expressed. Content-based regulations are presumptively
invalid. From 1791 to the present, however, our society, like other free but civilized societies, has
permitted restrictions upon the content of speech in a few limited areas, which are "of such slight
social value as a step to truth that any benefit that may be derived from them is clearly outweighed
by the social interest in order and morality." Chaplinsky. We have recognized that "the freedom of
speech" referred to by the First Amendment does not include a freedom to disregard these
traditional limitations. See, e.g., Roth v. United States (1957) (obscenity); Beauharnais v. Illinois
(1952) (defamation); Chaplinsky v. New Hampshire ("fighting' words"). Our decisions since the 1960's
have narrowed the scope of the traditional categorical exceptions for defamation, see New York Times
Co. v. Sullivan (1964); Gertz v. Robert Welch, Inc. (1974) and for obscenity, see Miller v. California
(1973), but a limited categorical approach has remained an important part of our First Amendment
jurisprudence.
We have sometimes said that these categories of expression are "not within the area of
constitutionally protected speech," or that the "protection of the First Amendment does not extend"
to them. Such statements must be taken in context, however, and are no more literally true than is
the occasionally repeated shorthand characterizing obscenity "as not being speech at all." What they
mean is that these areas of speech can, consistently with the First Amendment, be regulated because
of their constitutionally proscribable content (obscenity, defamation, etc.) - not that they are
categories of speech entirely invisible to the Constitution, so that they may be made the vehicles for
content discrimination unrelated to their distinctively proscribable content. Thus, the government
may proscribe libel; but it may not make the further content discrimination of proscribing only libel
critical of the government. * * *
Our cases surely do not establish the proposition that the First Amendment imposes no obstacle
whatsoever to regulation of particular instances of such proscribable expression, so that the
government "may regulate [them] freely," post (White, J., concurring in judgment). That would mean
that a city council could enact an ordinance prohibiting only those legally obscene works that contain
criticism of the city government or, indeed, that do not include endorsement of the city government.
Such a simplistic, all-or-nothing-at-all approach to First Amendment protection is at odds with
common sense and with our jurisprudence as well. It is not true that "fighting words" have at most a
"de minimis" expressive content, or that their content is in all respects "worthless and undeserving of
constitutional protection;” sometimes they are quite expressive indeed. We have not said that they
constitute "no part of the expression of ideas," but only that they constitute "no essential part of any
exposition of ideas." Chaplinsky (emphasis added).
The proposition that a particular instance of speech can be proscribable on the basis of one feature
(e.g., obscenity) but not on the basis of another (e.g., opposition to the city government) is
commonplace and has found application in many contexts. We have long held, for example, that
nonverbal expressive activity can be banned because of the action it entails, but not because of the
ideas it expresses - so that burning a flag in violation of an ordinance against outdoor fires could be
punishable, whereas burning a flag in violation of an ordinance against dishonoring the flag is not.
Similarly, we have upheld reasonable "time, place, or manner" restrictions, but only if they are
"justified without reference to the content of the regulated speech." Ward v. Rock Against Racism
(1989); see also Clark v. Community for Creative Non-Violence (1984) (noting that the O'Brien test
differs little from the standard applied to time, place, or manner restrictions). And just as the power
to proscribe particular speech on the basis of a non-content element (e.g., noise) does not entail the
power to proscribe the same speech on the basis of a content element, so also the power to proscribe
it on the basis of one content element (e.g., obscenity) does not entail the power to proscribe it on the
basis of other content elements.
In other words, the exclusion of "fighting words" from the scope of the First Amendment simply
means that, for purposes of that Amendment, the unprotected features of the words are, despite their
verbal character, essentially a "nonspeech" element of communication. Fighting words are thus
analogous to a noisy sound truck: each is, as Justice Frankfurter recognized, a "mode of speech," both
can be used to convey an idea; but neither has, in and of itself, a claim upon the First Amendment. As
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with the sound truck, however, so also with fighting words: the government may not regulate use
based on hostility - or favoritism - towards the underlying message expressed.
The concurrences describe us as setting forth a new First Amendment principle that prohibition of
constitutionally proscribable speech cannot be "underinclusiv[e]," post (White, J., concurring in
judgment) - a First Amendment "absolutism" whereby "[w]ithin a particular `proscribable' category
of expression, . . . a government must either proscribe all speech or no speech at all," post (Stevens, J.,
concurring in judgment). That easy target is of the concurrences' own invention. In our view, the
First Amendment imposes not an "underinclusiveness" limitation, but a "content discrimination"
limitation, upon a State's prohibition of proscribable speech. There is no problem whatever, for
example, with a State's prohibiting obscenity (and other forms of proscribable expression) only in
certain media or markets, for although that prohibition would be "underinclusive," it would not
discriminate on the basis of content.
Even the prohibition against content discrimination that we assert the First Amendment requires is
not absolute. It applies differently in the context of proscribable speech than in the area of fully
protected speech. The rationale of the general prohibition, after all, is that content discrimination
"raises the specter that the Government may effectively drive certain ideas or viewpoints from the
marketplace." But content discrimination among various instances of a class of proscribable speech
often does not pose this threat.
When the basis for the content discrimination consists entirely of the very reason the entire class of
speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such
a reason, having been adjudged neutral enough to support exclusion of the entire class of speech
from First Amendment protection, is also neutral enough to form the basis of distinction within the
class. To illustrate: a State might choose to prohibit only that obscenity which is the most patently
offensive in its prurience - i.e., that which involves the most lascivious displays of sexual activity. But
it may not prohibit, for example, only that obscenity which includes offensive political messages. And
the Federal Government can criminalize only those threats of violence that are directed against the
President, see 18 U.S.C. 871 - since the reasons why threats of violence are outside the First
Amendment (protecting individuals from the fear of violence, from the disruption that fear
engenders, and from the possibility that the threatened violence will occur) have special force when
applied to the person of the President. See Watts v. United States (1969) (upholding the facial validity
of 871 because of the "overwhelmin[g] interest in protecting the safety of [the] Chief Executive and in
allowing him to perform his duties without interference from threats of physical violence"). But the
Federal Government may not criminalize only those threats against the President that mention his
policy on aid to inner cities. And to take a final example (one mentioned by Justice Stevens, post), a
State may choose to regulate price advertising in one industry, but not in others, because the risk of
fraud (one of the characteristics of commercial speech that justifies depriving it of full First
Amendment protection is in its view greater there. But a State may not prohibit only that commercial
advertising that depicts men in a demeaning fashion.
Another valid basis for according differential treatment to even a content-defined subclass of
proscribable speech is that the subclass happens to be associated with particular "secondary effects"
of the speech, so that the regulation is "justified without reference to the content of the . . . speech." A
State could, for example, permit all obscene live performances except those involving minors.
Moreover, since words can in some circumstances violate laws directed not against speech but
against conduct (a law against treason, for example, is violated by telling the enemy the Nation's
defense secrets), a particular content-based subcategory of a proscribable class of speech can be
swept up incidentally within the reach of a statute directed at conduct, rather than speech. Thus, for
example, sexually derogatory "fighting words," among other words, may produce a violation of Title
VII's general prohibition against sexual discrimination in employment practices, 42 U.S.C. 2000e-2.
Where the government does not target conduct on the basis of its expressive content, acts are not
shielded from regulation merely because they express a discriminatory idea or philosophy.
* * * There may be other such bases as well. Indeed, to validate such selectivity (where totally
proscribable speech is at issue), it may not even be necessary to identify any particular "neutral"
basis, so long as the nature of the content discrimination is such that there is no realistic possibility
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that official suppression of ideas is afoot. (We cannot think of any First Amendment interest that
would stand in the way of a State's prohibiting only those obscene motion pictures with blue-eyed
actresses.) Save for that limitation, the regulation of "fighting words," like the regulation of noisy
speech, may address some offensive instances and leave other, equally offensive, instances alone.
II
Applying these principles to the St. Paul ordinance, we conclude that, even as narrowly construed by
the Minnesota Supreme Court, the ordinance is facially unconstitutional. Although the phrase in the
ordinance, "arouses anger, alarm or resentment in others," has been limited by the Minnesota
Supreme Court's construction to reach only those symbols or displays that amount to "fighting
words," the remaining, unmodified terms make clear that the ordinance applies only to "fighting
words" that insult, or provoke violence, "on the basis of race, color, creed, religion or gender."
Displays containing abusive invective, no matter how vicious or severe, are permissible unless they
are addressed to one of the specified disfavored topics. Those who wish to use "fighting words" in
connection with other ideas - to express hostility, for example, on the basis of political affiliation,
union membership, or homosexuality - are not covered. The First Amendment does not permit St.
Paul to impose special prohibitions on those speakers who express views on disfavored subjects.
In its practical operation, moreover, the ordinance goes even beyond mere content discrimination to
actual viewpoint discrimination. Displays containing some words - odious racial epithets, for
example - would be prohibited to proponents of all views. But "fighting words" that do not
themselves invoke race, color, creed, religion, or gender - aspersions upon a person's mother, for
example - would seemingly be usable ad libitum in the placards of those arguing in favor of racial,
color, etc., tolerance and equality, but could not be used by those speakers' opponents. One could
hold up a sign saying, for example, that all "anti-Catholic bigots" are misbegotten; but not that all
"papists" are, for that would insult and provoke violence "on the basis of religion." St. Paul has no
such authority to license one side of a debate to fight freestyle, while requiring the other to follow
Marquis of Queensberry rules.
What we have here, it must be emphasized, is not a prohibition of fighting words that are directed at
certain persons or groups (which would be facially valid if it met the requirements of the Equal
Protection Clause); but rather, a prohibition of fighting words that contain (as the Minnesota
Supreme Court repeatedly emphasized) messages of "bias-motivated" hatred and, in particular, as
applied to this case, messages "based on virulent notions of racial supremacy." One must
wholeheartedly agree with the Minnesota Supreme Court that "[i]t is the responsibility, even the
obligation, of diverse communities to confront such notions in whatever form they appear," but the
manner of that confrontation cannot consist of selective limitations upon speech. St. Paul's brief
asserts that a general "fighting words" law would not meet the city's needs, because only a contentspecific measure can communicate to minority groups that the "group hatred" aspect of such speech
"is not condoned by the majority." The point of the First Amendment is that majority preferences
must be expressed in some fashion other than silencing speech on the basis of its content.
Despite the fact that the Minnesota Supreme Court and St. Paul acknowledge that the ordinance is
directed at expression of group hatred, Justice Stevens suggests that this "fundamentally misreads"
the ordinance. It is directed, he claims, not to speech of a particular content, but to particular
"injur[ies]" that are "qualitatively different" from other injuries. This is wordplay. What makes the
anger, fear, sense of dishonor, etc., produced by violation of this ordinance distinct from the anger,
fear, sense of dishonor, etc., produced by other fighting words is nothing other than the fact that it is
caused by a distinctive idea, conveyed by a distinctive message. The First Amendment cannot be
evaded that easily. * * *
Finally, St. Paul and its amici defend the conclusion of the Minnesota Supreme Court that, even if the
ordinance regulates expression based on hostility towards its protected ideological content, this
discrimination is nonetheless justified because it is narrowly tailored to serve compelling state
interests. Specifically, they assert that the ordinance helps to ensure the basic human rights of
members of groups that have historically been subjected to discrimination, including the right of
such group members to live in peace where they wish. We do not doubt that these interests are
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compelling, and that the ordinance can be said to promote them. But the "danger of censorship"
presented by a facially content-based statute, requires that that weapon be employed only where it is
"necessary to serve the asserted [compelling] interest." The existence of adequate content-neutral
alternatives thus "undercut[s] significantly" any defense of such a statute, casting considerable doubt
on the government's protestations that "the asserted justification is in fact an accurate description of
the purpose and effect of the law." The dispositive question in this case, therefore, is whether content
discrimination is reasonably necessary to achieve St. Paul's compelling interests; it plainly is not. An
ordinance not limited to the favored topics, for example, would have precisely the same beneficial
effect. In fact, the only interest distinctively served by the content limitation is that of displaying the
city council's special hostility towards the particular biases thus singled out. That is precisely what
the First Amendment forbids. The politicians of St. Paul are entitled to express that hostility - but not
through the means of imposing unique limitations upon speakers who (however benightedly)
disagree.
Let there be no mistake about our belief that burning a cross in someone's front yard is
reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without
adding the First Amendment to the fire.
The judgment of the Minnesota Supreme Court is reversed, and the case is remanded for proceedings
not inconsistent with this opinion.
It is so ordered.
JUSTICE WHITE, WITH WHOM JUSTICE BLACKMUN AND JUSTICE O'CONNOR JOIN, AND WITH WHOM JUSTICE STEVENS
JOINS EXCEPT AS TO PART I-A, CONCURRING IN THE JUDGMENT.
I agree with the majority that the judgment of the Minnesota Supreme Court should be reversed.
However, our agreement ends there.
This case could easily be decided within the contours of established First Amendment law by holding,
as petitioner argues, that the St. Paul ordinance is fatally overbroad because it criminalizes not only
unprotected expression but expression protected by the First Amendment. * * *
Any contribution of this holding to First Amendment jurisprudence is surely a negative one, since it
necessarily signals that expressions of violence, such as the message of intimidation and racial hatred
conveyed by burning a cross on someone's lawn, are of sufficient value to outweigh the social
interest in order and morality that has traditionally placed such fighting words outside the First
Amendment. Indeed, by characterizing fighting words as a form of "debate," the majority legitimates
hate speech as a form of public discussion. * * *
As with its rejection of the Court's categorical analysis, the majority offers no reasoned basis for
discarding our firmly established strict scrutiny analysis at this time. The majority appears to believe
that its doctrinal revisionism is necessary to prevent our elected lawmakers from prohibiting libel
against members of one political party, but not another, and from enacting similarly preposterous
laws. The majority is misguided.
Although the First Amendment does not apply to categories of unprotected speech, such as fighting
words, the Equal Protection Clause requires that the regulation of unprotected speech be rationally
related to a legitimate government interest. A defamation statute that drew distinctions on the basis
of political affiliation or "an ordinance prohibiting only those legally obscene works that contain
criticism of the city government," would unquestionably fail rational-basis review. * * *
I.
[A & B omitted]
C
The Court has patched up its argument with an apparently nonexhaustive list of ad hoc exceptions, in
what can be viewed either as an attempt to confine the effects of its decision to the facts of this case,

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or as an effort to anticipate some of the questions that will arise from its radical revision of First
Amendment law.
For instance, if the majority were to give general application to the rule on which it decides this case,
today's decision would call into question the constitutionality of the statute making it illegal to
threaten the life of the President. 18 U.S.C. 871. Surely, this statute, by singling out certain threats,
incorporates a content-based distinction; it indicates that the Government especially disfavors
threats against the President, as opposed to threats against all others. But because the Government
could prohibit all threats, and not just those directed against the President, under the Court's theory,
the compelling reasons justifying the enactment of special legislation to safeguard the President
would be irrelevant, and the statute would fail First Amendment review.
To save the statute, the majority has engrafted the following exception onto its newly announced
First Amendment rule: content-based distinctions may be drawn within an unprotected category of
speech if the basis for the distinctions is "the very reason the entire class of speech at issue is
proscribable." Thus, the argument goes, the statute making it illegal to threaten the life of the
President is constitutional, since the reasons why threats of violence are outside the First
Amendment (protecting individuals from the fear of violence, from the disruption that fear
engenders, and from the possibility that the threatened violence will occur) have special force when
applied to the person of the President."
The exception swallows the majority's rule. Certainly, it should apply to the St. Paul ordinance, since
"the reasons why [fighting words] are outside the First Amendment . . . have special force when
applied to [groups that have historically been subjected to discrimination]."
To avoid the result of its own analysis, the Court suggests that fighting words are simply a mode of
communication, rather than a content-based category, and that the St. Paul ordinance has not singled
out a particularly objectionable mode of communication. Again, the majority confuses the issue. A
prohibition on fighting words is not a time, place, or manner restriction; it is a ban on a class of
speech that conveys an overriding message of personal injury and imminent violence, a message that
is at its ugliest when directed against groups that have long been the targets of discrimination.
Accordingly, the ordinance falls within the first exception to the majority's theory.
* * * As I see it, the Court's theory does not work, and will do nothing more than confuse the law. Its
selection of this case to rewrite First Amendment law is particularly inexplicable, because the whole
problem could have been avoided by deciding this case under settled First Amendment principles.
II
Although I disagree with the Court's analysis, I do agree with its conclusion: the St. Paul ordinance is
unconstitutional. However, I would decide the case on overbreadth grounds.
We have emphasized time and again that overbreadth doctrine is an exception to the established
principle that "a person to whom a statute may constitutionally be applied will not be heard to
challenge that statute on the ground that it may conceivably be applied unconstitutionally to others,
in other situations not before the Court." A defendant being prosecuted for speech or expressive
conduct may challenge the law on its face if it reaches protected expression, even when that person's
activities are not protected by the First Amendment. This is because "the possible harm to society in
permitting some unprotected speech to go unpunished is outweighed by the possibility that
protected speech of others may be muted." * * *
I agree with petitioner that the ordinance is invalid on its face. Although the ordinance, as construed,
reaches categories of speech that are constitutionally unprotected, it also criminalizes a substantial
amount of expression that - however repugnant - is shielded by the First Amendment. * * *
Our fighting words cases have made clear, however, that such generalized reactions are not sufficient
to strip expression of its constitutional protection. The mere fact that expressive activity causes hurt
feelings, offense, or resentment does not render the expression unprotected.
In the First Amendment context, “[c]riminal statutes must be scrutinized with particular care; those
that make unlawful a substantial amount of constitutionally protected conduct may be held facially
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invalid even if they also have legitimate application.” The St. Paul antibias ordinance is such a law.
Although the ordinance reaches conduct that is unprotected, it also makes criminal expressive
conduct that causes only hurt feelings, offense, or resentment, and is protected by the First
Amendment. The ordinance is therefore fatally overbroad and invalid on its face.
III
Today, the Court has disregarded two established principles of First Amendment law without
providing a coherent replacement theory. Its decision is an arid, doctrinaire interpretation, driven by
the frequently irresistible impulse of judges to tinker with the First Amendment. The decision is
mischievous at best, and will surely confuse the lower courts. I join the judgment, but not the folly of
the opinion.
JUSTICE BLACKMUN, CONCURRING IN THE JUDGMENT.
I regret what the Court has done in this case. The majority opinion signals one of two possibilities: It
will serve as precedent for future cases, or it will not. Either result is disheartening.
In the first instance, by deciding that a State cannot regulate speech that causes great harm unless it
also regulates speech that does not (setting law and logic on their heads), the Court seems to
abandon the categorical approach, and inevitably to relax the level of scrutiny applicable to contentbased laws. As Justice White points out, this weakens the traditional protections of speech. If all
expressive activity must be accorded the same protection, that protection will be scant. The simple
reality is that the Court will never provide child pornography or cigarette advertising the level of
protection customarily granted political speech. If we are forbidden from categorizing, as the Court
has done here, we shall reduce protection across the board. It is sad that, in its effort to reach a
satisfying result in this case, the Court is willing to weaken First Amendment protections.
In the second instance is the possibility that this case will not significantly alter First Amendment
jurisprudence but, instead, will be regarded as an aberration - a case where the Court manipulated
doctrine to strike down an ordinance whose premise it opposed, namely, that racial threats and
verbal assaults are of greater harm than other fighting words. I fear that the Court has been
distracted from its proper mission by the temptation to decide the issue over "politically correct
speech" and "cultural diversity," neither of which is presented here. If this is the meaning of today's
opinion, it is perhaps even more regrettable.
I see no First Amendment values that are compromised by a law that prohibits hoodlums from
driving minorities out of their homes by burning crosses on their lawns, but I see great harm in
preventing the people of Saint Paul from specifically punishing the race-based fighting words that so
prejudice their community.
I concur in the judgment, however, because I agree with Justice White that this particular ordinance
reaches beyond fighting words to speech protected by the First Amendment.
JUSTICE STEVENS, WITH WHOM JUSTICE WHITE AND JUSTICE BLACKMUN JOIN AS TO PART I, CONCURRING IN THE
JUDGMENT.
I.
* * * I am, however, even more troubled by the second step of the Court's analysis - namely, its
conclusion that the St. Paul ordinance is an unconstitutional content-based regulation of speech.
Drawing on broadly worded dicta, the Court establishes a near-absolute ban on content-based
regulations of expression, and holds that the First Amendment prohibits the regulation of fighting
words by subject matter. Thus, while the Court rejects the "all-or-nothing-at-all" nature of the
categorical approach, it promptly embraces an absolutism of its own: Within a particular
"proscribable" category of expression, the Court holds, a government must either proscribe all
speech or no speech at all. This aspect of the Court's ruling fundamentally misunderstands the role

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and constitutional status of content-based regulations on speech, conflicts with the very nature of
First Amendment jurisprudence, and disrupts well-settled principles of First Amendment law. * * *
Our First Amendment decisions have created a rough hierarchy in the constitutional protection of
speech. Core political speech occupies the highest, most protected position; commercial speech and
nonobscene, sexually explicit speech are regarded as a sort of second-class expression; obscenity and
fighting words receive the least protection of all. Assuming that the Court is correct that this last class
of speech is not wholly "unprotected," it certainly does not follow that fighting words and obscenity
receive the same sort of protection afforded core political speech. Yet, in ruling that proscribable
speech cannot be regulated based on subject matter, the Court does just that. Perversely, this gives
fighting words greater protection than is afforded commercial speech. If Congress can prohibit false
advertising directed at airline passengers without also prohibiting false advertising directed at bus
passengers, and if a city can prohibit political advertisements in its buses, while allowing other
advertisements, it is ironic to hold that a city cannot regulate fighting words based on "race, color,
creed, religion or gender," while leaving unregulated fighting words based on "union membership . . .
or homosexuality." The Court today turns First Amendment law on its head: Communication that was
once entirely unprotected (and that still can be wholly proscribed) is now entitled to greater
protection than commercial speech - and possibly greater protection than core political speech. * * *
II
Although I agree with much of Justice White's analysis, I do not join Part I-A of his opinion because I
have reservations about the "categorical approach" to the First Amendment. These concerns, which I
have noted on other occasions, lead me to find Justice White's response to the Court's analysis
unsatisfying.
Admittedly, the categorical approach to the First Amendment has some appeal: Either expression is
protected or it is not - the categories create safe harbors for governments and speakers alike. But this
approach sacrifices subtlety for clarity, and is, I am convinced, ultimately unsound. As an initial
matter, the concept of "categories" fits poorly with the complex reality of expression. Few dividing
lines in First Amendment law are straight and unwavering, and efforts at categorization inevitably
give rise only to fuzzy boundaries. Our definitions of "obscenity," and "public forum," illustrate this
all too well. The quest for doctrinal certainty through the definition of categories and subcategories
is, in my opinion, destined to fail.
Moreover, the categorical approach does not take seriously the importance of context. The meaning
of any expression and the legitimacy of its regulation can only be determined in context. Whether, for
example, a picture or a sentence is obscene cannot be judged in the abstract, but rather only in the
context of its setting, its use, and its audience. Similarly, although legislatures may freely regulate
most nonobscene child pornography, such pornography that is part of "a serious work of art, a
documentary on behavioral problems, or a medical or psychiatric teaching device" may be entitled to
constitutional protection; the "question whether a specific act of communication is protected by the
First Amendment always requires some consideration of both its content and its context." The
categorical approach sweeps too broadly when it declares that all such expression is beyond the
protection of the First Amendment. * * *
III
As the foregoing suggests, I disagree with both the Court's and part of Justice White's analysis of the
constitutionality of the St. Paul ordinance. Unlike the Court, I do not believe that all content-based
regulations are equally infirm and presumptively invalid; unlike Justice White, I do not believe that
fighting words are wholly unprotected by the First Amendment. To the contrary, I believe our
decisions establish a more complex and subtle analysis, one that considers the content and context of
the regulated speech, and the nature and scope of the restriction on speech. Applying this analysis
and assuming arguendo (as the Court does) that the St. Paul ordinance is not overbroad, I conclude
that such a selective, subject matter regulation on proscribable speech is constitutional.
Not all content-based regulations are alike; our decisions clearly recognize that some content-based
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based regulations cannot be reduced to a simple formula, we have considered a number of factors in
determining the validity of such regulations. * * *
In sum, the St. Paul ordinance (as construed by the Court) regulates expressive activity that is wholly
proscribable, and does so not on the basis of viewpoint, but rather in recognition of the different
harms caused by such activity. Taken together, these several considerations persuade me that the St.
Paul ordinance is not an unconstitutional content-based regulation of speech. Thus, were the
ordinance not overbroad, I would vote to uphold it.

Wisconsin v. Mitchell
508 U.S. 476 (1993)
CHIEF JUSTICE REHNQUIST DELIVERED THE OPINION OF THE UNANIMOUS COURT.
Respondent Todd Mitchell's sentence for aggravated battery was enhanced because he intentionally
selected his victim on account of the victim's race. The question presented in this case is whether this
penalty enhancement is prohibited by the First and Fourteenth Amendments. We hold that it is not.
On the evening of October 7, 1989, a group of young black men and boys, including Mitchell, gathered
at an apartment complex in Kenosha, Wisconsin. Several members of the group discussed a scene
from the motion picture "Mississippi Burning" in which a white man beat a young black boy who was
praying. The group moved outside and Mitchell asked them: "`Do you all feel hyped up to move on
some white people?'" Shortly thereafter, a young white boy approached the group on the opposite
side of the street where they were standing. As the boy walked by, Mitchell said: "`You all want to
fuck somebody up? There goes a white boy; go get him.'" Mitchell counted to three and pointed in the
boy's direction. The group ran toward the boy, beat him severely, and stole his tennis shoes. The boy
was rendered unconscious and remained in a coma for four days.
After a jury trial in the Circuit Court for Kenosha County, Mitchell was convicted of aggravated
battery. Wis.Stat. 939.05 and 940.19(1m) (1989-1990). That offense ordinarily carries a maximum
sentence of two years' imprisonment. But because the jury found that Mitchell had intentionally
selected his victim because of the boy's race, the maximum sentence for Mitchell's offense was
increased to seven years under 939.645. That provision enhances the maximum penalty for an
offense whenever the defendant "[i]ntentionally selects the person against whom the crime . . . is
committed . . . because of the race, religion, color, disability, sexual orientation, national origin or
ancestry of that person. . . ." 939.645(1)(b). The Circuit Court sentenced Mitchell to four years'
imprisonment for the aggravated battery.
Mitchell unsuccessfully sought postconviction relief in the Circuit Court. Then he appealed his
conviction and sentence, challenging the constitutionality of Wisconsin's penalty-enhancement
provision on First Amendment grounds. The Wisconsin Court of Appeals rejected Mitchell's
challenge, but the Wisconsin Supreme Court reversed. The Supreme Court held that the statute
"violates the First Amendment directly by punishing what the legislature has deemed to be offensive
thought." It rejected the State's contention "that the statute punishes only the `conduct' of intentional
selection of a victim." According to the court, "[t]he statute punishes the "because of" aspect of the
defendant's selection, the reason the defendant selected the victim, the motive behind the selection."
And under R.A.V. v. St. Paul (1992), "the Wisconsin legislature cannot criminalize bigoted thought
with which it disagrees."
The Supreme Court also held that the penalty-enhancement statute was unconstitutionally
overbroad. It reasoned that, in order to prove that a defendant intentionally selected his victim
because of the victim's protected status, the State would often have to introduce evidence of the
defendant's prior speech, such as racial epithets he may have uttered before the commission of the
offense. This evidentiary use of protected speech, the court thought, would have a "chilling effect" on
those who feared the possibility of prosecution for offenses subject to penalty enhancement. Finally,
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the court distinguished antidiscrimination laws, which have long been held constitutional, on the
ground that the Wisconsin statute punishes the "subjective mental process" of selecting a victim
because of his protected status, whereas antidiscrimination laws prohibit "objective acts of
discrimination."
We granted certiorari because of the importance of the question presented and the existence of a
conflict of authority among state high courts on the constitutionality of statutes similar to
Wisconsin's penalty-enhancement provision. We reverse.
Mitchell argues that we are bound by the Wisconsin Supreme Court's conclusion that the statute
punishes bigoted thought, and not conduct. There is no doubt that we are bound by a state court's
construction of a state statute. * * * But here the Wisconsin Supreme Court did not, strictly speaking,
construe the Wisconsin statute in the sense of defining the meaning of a particular statutory word or
phrase. Rather, it merely characterized the "practical effect" of the statute for First Amendment
purposes. This assessment does not bind us. Once any ambiguities as to the meaning of the statute
are resolved, we may form our own judgment as to its operative effect.
The State argues that the statute does not punish bigoted thought, as the Supreme Court of Wisconsin
said, but instead punishes only conduct. While this argument is literally correct, it does not dispose of
Mitchell's First Amendment challenge. To be sure, our cases reject the "view that an apparently
limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct
intends thereby to express an idea." United States v. O'Brien (1968); accord, R.A.V., Spence v.
Washington. Thus, a physical assault is not, by any stretch of the imagination, expressive conduct
protected by the First Amendment.
But the fact remains that, under the Wisconsin statute, the same criminal conduct may be more
heavily punished if the victim is selected because of his race or other protected status than if no such
motive obtained. Thus, although the statute punishes criminal conduct, it enhances the maximum
penalty for conduct motivated by a discriminatory point of view more severely than the same
conduct engaged in for some other reason or for no reason at all. Because the only reason for the
enhancement is the defendant's discriminatory motive for selecting his victim, Mitchell argues (and
the Wisconsin Supreme Court held) that the statute violates the First Amendment by punishing
offenders' bigoted beliefs.
Traditionally, sentencing judges have considered a wide variety of factors in addition to evidence
bearing on guilt in determining what sentence to impose on a convicted defendant. Thus, in many
States, the commission of a murder or other capital offense for pecuniary gain is a separate
aggravating circumstance under the capital sentencing statute.
But it is equally true that a defendant's abstract beliefs, however obnoxious to most people, may not
be taken into consideration by a sentencing judge. Dawson v. Delaware (1992). In Dawson, the State
introduced evidence at a capital sentencing hearing that the defendant was a member of a white
supremacist prison gang. Because "the evidence proved nothing more than [the defendant's] abstract
beliefs," we held that its admission violated the defendant's First Amendment rights. In so holding,
however, we emphasized that "the Constitution does not erect a per se barrier to the admission of
evidence concerning one's beliefs and associations at sentencing simply because those beliefs and
associations are protected by the First Amendment." Thus, in Barclay v. Florida (1983) (plurality
opinion), we allowed the sentencing judge to take into account the defendant's racial animus towards
his victim. The evidence in that case showed that the defendant's membership in the Black Liberation
Army and desire to provoke a "race war" were related to the murder of a white man for which he was
convicted. Because "the elements of racial hatred in [the] murder" were relevant to several
aggravating factors, we held that the trial judge permissibly took this evidence into account in
sentencing the defendant to death.
Mitchell suggests that Dawson and Barclay are inapposite because they did not involve application of
a penalty-enhancement provision. But in Barclay we held that it was permissible for the sentencing
court to consider the defendant's racial animus in determining whether he should be sentenced to
death, surely the most severe "enhancement" of all. And the fact that the Wisconsin Legislature has
decided, as a general matter, that bias-motivated offenses warrant greater maximum penalties across
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the board does not alter the result here. For the primary responsibility for fixing criminal penalties
lies with the legislature.
Mitchell argues that the Wisconsin penalty-enhancement statute is invalid because it punishes the
defendant's discriminatory motive, or reason, for acting. But motive plays the same role under the
Wisconsin statute as it does under federal and state antidiscrimination laws, which we have
previously upheld against constitutional challenge. 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, religion, sex, or national origin." 42 U.S.C. 2000e-2(a)(1).* * *
Nothing in our decision last Term in R.A.V. compels a different result here. That case involved a First
Amendment challenge to a municipal ordinance prohibiting the use of "`fighting words' that insult, or
provoke violence, `on the basis of race, color, creed, religion or gender.'" Because the ordinance only
proscribed a class of "fighting words" deemed particularly offensive by the city - i.e., those "that
contain . . . messages of `bias-motivated' hatred," we held that it violated the rule against contentbased discrimination. But whereas the ordinance struck down in R.A.V. was explicitly directed at
expression, the statute in this case is aimed at conduct unprotected by the First Amendment.
Moreover, the Wisconsin statute singles out for enhancement bias-inspired conduct because this
conduct is thought to inflict greater individual and societal harm. For example, according to the State
and its amici, bias-motivated crimes are more likely to provoke retaliatory crimes, inflict distinct
emotional harms on their victims, and incite community unrest. See, e.g., Brief for Petitioner 24-27;
Brief for United States as Amicus Curiae 13-15; Brief for Lawyers' Committee for Civil Rights Under
Law as Amicus Curiae 18-22; Brief for the American Civil Liberties Union as Amicus Curiae 17-19;
Brief for the Anti-Defamation League et al. as Amici Curiae 910; Brief for Congressman Charles E.
Schumer et al. as Amici Curiae 8-9. The State's desire to redress these perceived harms provides an
adequate explanation for its penalty-enhancement provision over and above mere disagreement
with offenders' beliefs or biases. As Blackstone said long ago, "it is but reasonable that, among crimes
of different natures, those should be most severely punished which are the most destructive of the
public safety and happiness."
Finally, there remains to be considered Mitchell's argument that the Wisconsin statute is
unconstitutionally overbroad because of its "chilling effect" on free speech. Mitchell argues (and the
Wisconsin Supreme Court agreed) that the statute is "overbroad" because evidence of the
defendant's prior speech or associations may be used to prove that the defendant intentionally
selected his victim on account of the victim's protected status. Consequently, the argument goes, the
statute impermissibly chills free expression with respect to such matters by those concerned about
the possibility of enhanced sentences if they should, in the future, commit a criminal offense covered
by the statute. We find no merit in this contention.
The sort of chill envisioned here is far more attenuated and unlikely than that contemplated in
traditional "overbreadth" cases. We must conjure up a vision of a Wisconsin citizen suppressing his
unpopular bigoted opinions for fear that, if he later commits an offense covered by the statute, these
opinions will be offered at trial to establish that he selected his victim on account of the victim's
protected status, thus qualifying him for penalty-enhancement. To stay within the realm of
rationality, we must surely put to one side minor misdemeanor offenses covered by the statute, such
as negligent operation of a motor vehicle for it is difficult, if not impossible, to conceive of a situation
where such offenses would be racially motivated. We are left, then, with the prospect of a citizen
suppressing his bigoted beliefs for fear that evidence of such beliefs will be introduced against him at
trial if he commits a more serious offense against person or property. This is simply too speculative a
hypothesis to support Mitchell's overbreadth claim.
The First Amendment, moreover, does not prohibit the evidentiary use of speech to establish the
elements of a crime or to prove motive or intent. Evidence of a defendant's previous declarations or
statements is commonly admitted in criminal trials subject to evidentiary rules dealing with
relevancy, reliability, and the like. Nearly half a century ago, in Haupt v. United States (1947), we
rejected a contention similar to that advanced by Mitchell here. Haupt was tried for the offense of
treason, which, as defined by the Constitution (Art. III, 3), may depend very much on proof of motive.
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To prove that the acts in question were committed out of "adherence to the enemy" rather than
"parental solicitude," the Government introduced evidence of conversations that had taken place
long prior to the indictment, some of which consisted of statements showing Haupt's sympathy with
Germany and Hitler and hostility towards the United States. We rejected Haupt's argument that this
evidence was improperly admitted. While "[s]uch testimony is to be scrutinized with care to be
certain the statements are not expressions of mere lawful and permissible difference of opinion with
our own government or quite proper appreciation of the land of birth, "we held that "these
statements . . . clearly were admissible on the question of intent and adherence to the enemy."
For the foregoing reasons, we hold that Mitchell's First Amendment rights were not violated by the
application of the Wisconsin penalty-enhancement provision in sentencing him. The judgment of the
Supreme Court of Wisconsin is therefore reversed, and the case is remanded for further proceedings
not inconsistent with this opinion.
It is so ordered.

Virginia v. Black
538 U.S. 343 (2003)
JUSTICE O'CONNOR ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED THE OPINION OF THE COURT WITH
RESPECT TO PARTS I, II, AND III, AND AN OPINION WITH RESPECT TO PARTS IV AND V, IN WHICH THE CHIEF JUSTICE,
JUSTICE STEVENS, AND JUSTICE BREYER JOIN. STEVENS, J., FILED A CONCURRING OPINION. SCALIA, J., FILED AN OPINION
CONCURRING IN PART, CONCURRING IN THE JUDGMENT IN PART, AND DISSENTING IN PART, IN WHICH THOMAS, J.,
JOINED AS TO PARTS I AND II. SOUTER, J., FILED AN OPINION CONCURRING IN THE JUDGMENT IN PART AND DISSENTING
IN PART, IN WHICH KENNEDY AND GINSBURG, JJ., JOINED. THOMAS, J., FILED A DISSENTING OPINION.
JUSTICE O’CONNOR ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED THE OPINION OF THE COURT WITH
RESPECT TO PARTS I, II, AND III, AND AN OPINION WITH RESPECT TO PARTS IV AND V, IN WHICH THE CHIEF JUSTICE,
JUSTICE STEVENS, AND JUSTICE BREYER JOIN.
In this case we consider whether the Commonwealth of Virginia's statute banning cross burning with
"an intent to intimidate a person or group of persons" violates the First Amendment. Va. Code Ann.
§18.2-423 (1996). We conclude that while a State, consistent with the First Amendment, may ban
cross burning carried out with the intent to intimidate, the provision in the Virginia statute treating
any cross burning as prima facie evidence of intent to intimidate renders the statute unconstitutional
in its current form.
I
Respondents Barry Black, Richard Elliott, and Jonathan O'Mara were convicted separately of violating
Virginia's cross-burning statute, §18.2-423. That statute provides:
"It shall be unlawful for any person or persons, with the intent of intimidating any person or group of
persons, to burn, or cause to be burned, a cross on the property of another, a highway or other public
place. Any person who shall violate any provision of this section shall be guilty of a Class 6 felony.
"Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group
of persons."

On August 22, 1998, Barry Black led a Ku Klux Klan rally in Carroll County, Virginia. Twenty-five to
thirty people attended this gathering, which occurred on private property with the permission of the
owner, who was in attendance. The property was located on an open field just off Brushy Fork Road
(State Highway 690) in Cana, Virginia.
When the sheriff of Carroll County learned that a Klan rally was occurring in his county, he went to
observe it from the side of the road. During the approximately one hour that the sheriff was present,
about 40 to 50 cars passed the site, a "few" of which stopped to ask the sheriff what was happening
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on the property. Eight to ten houses were located in the vicinity of the rally. Rebecca Sechrist, who
was related to the owner of the property where the rally took place, "sat and watched to see wha[t]
[was] going on" from the lawn of her in-laws' house. She looked on as the Klan prepared for the
gathering and subsequently conducted the rally itself.
During the rally, Sechrist heard Klan members speak about "what they were" and "what they
believed in." The speakers "talked real bad about the blacks and the Mexicans. One speaker told the
assembled gathering that "he would love to take a .30/.30 and just random[ly] shoot the blacks." The
speakers also talked about "President Clinton and Hillary Clinton," and about how their tax money
"goes to ... the black people." Sechrist testified that this language made her "very ... scared."
At the conclusion of the rally, the crowd circled around a 25- to 30-foot cross. The cross was between
300 and 350 yards away from the road. According to the sheriff, the cross "then all of a sudden ...
went up in a flame." As the cross burned, the Klan played Amazing Grace over the loudspeakers.
Sechrist stated that the cross burning made her feel "awful" and "terrible."
When the sheriff observed the cross burning, he informed his deputy that they needed to "find out
who's responsible and explain to them that they cannot do this in the State of Virginia." The sheriff
then went down the driveway, entered the rally, and asked "who was responsible for burning the
cross." Black responded, "I guess I am because I'm the head of the rally." The sheriff then told Black,
"[T]here's a law in the State of Virginia that you cannot burn a cross and I'll have to place you under
arrest for this."
Black was charged with burning a cross with the intent of intimidating a person or group of persons,
in violation of §18.2-423. At his trial, the jury was instructed that "intent to intimidate means the
motivation to intentionally put a person or a group of persons in fear of bodily harm. Such fear must
arise from the willful conduct of the accused rather than from some mere temperamental timidity of
the victim." The trial court also instructed the jury that "the burning of a cross by itself is sufficient
evidence from which you may infer the required intent." When Black objected to this last instruction
on First Amendment grounds, the prosecutor responded that the instruction was "taken straight out
of the [Virginia] Model Instructions." The jury found Black guilty, and fined him $2,500. The Court of
Appeals of Virginia affirmed Black's conviction.
On May 2, 1998, respondents Richard Elliott and Jonathan O'Mara, as well as a third individual,
attempted to burn a cross on the yard of James Jubilee. Jubilee, an African-American, was Elliott's
next-door neighbor in Virginia Beach, Virginia. Four months prior to the incident, Jubilee and his
family had moved from California to Virginia Beach. Before the cross burning, Jubilee spoke to
Elliott's mother to inquire about shots being fired from behind the Elliott home. Elliott's mother
explained to Jubilee that her son shot firearms as a hobby, and that he used the backyard as a firing
range.
On the night of May 2, respondents drove a truck onto Jubilee's property, planted a cross, and set it
on fire. Their apparent motive was to "get back" at Jubilee for complaining about the shooting in the
backyard. Respondents were not affiliated with the Klan. The next morning, as Jubilee was pulling his
car out of the driveway, he noticed the partially burned cross approximately 20 feet from his house.
After seeing the cross, Jubilee was "very nervous" because he "didn't know what would be the next
phase," and because "a cross burned in your yard ... tells you that it's just the first round."
Elliott and O'Mara were charged with attempted cross burning and conspiracy to commit cross
burning. O'Mara pleaded guilty to both counts, reserving the right to challenge the constitutionality
of the cross-burning statute. The judge sentenced O'Mara to 90 days in jail and fined him $2,500. The
judge also suspended 45 days of the sentence and $1,000 of the fine.
At Elliott's trial, the judge originally ruled that the jury would be instructed "that the burning of a
cross by itself is sufficient evidence from which you may infer the required intent." At trial, however,
the court instructed the jury that the Commonwealth must prove that "the defendant intended to
commit cross burning," that "the defendant did a direct act toward the commission of the cross
burning," and that "the defendant had the intent of intimidating any person or group of persons." The
court did not instruct the jury on the meaning of the word "intimidate," nor on the prima facie
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evidence provision of §18.2-423. The jury found Elliott guilty of attempted cross burning and
acquitted him of conspiracy to commit cross burning. It sentenced Elliott to 90 days in jail and a
$2,500 fine. The Court of Appeals of Virginia affirmed the convictions of both Elliott and O'Mara.
Each respondent appealed to the Supreme Court of Virginia, arguing that §18.2-423 is facially
unconstitutional. The Supreme Court of Virginia consolidated all three cases, and held that the statute
is unconstitutional on its face. It held that the Virginia cross-burning statute "is analytically
indistinguishable from the ordinance found unconstitutional in R. A. V. The Virginia statute, the court
held, discriminates on the basis of content since it "selectively chooses only cross burning because of
its distinctive message." The court also held that the prima facie evidence provision renders the
statute overbroad because "[t]he enhanced probability of prosecution under the statute chills the
expression of protected speech."
Three justices dissented, concluding that the Virginia cross-burning statute passes constitutional
muster because it proscribes only conduct that constitutes a true threat. The justices noted that
unlike the ordinance found unconstitutional in R.A.V., the Virginia statute does not just target cross
burning "on the basis of race, color, creed, religion or gender." Rather, "the Virginia statute applies to
any individual who burns a cross for any reason provided the cross is burned with the intent to
intimidate." The dissenters also disagreed with the majority's analysis of the prima facie provision
because the inference alone "is clearly insufficient to establish beyond a reasonable doubt that a
defendant burned a cross with the intent to intimidate." The dissent noted that the burden of proof
still remains on the Commonwealth to prove intent to intimidate. We granted certiorari.
II
Cross burning originated in the 14th century as a means for Scottish tribes to signal each other. See
M. NEWTON & J. NEWTON, THE KU KLUX KLAN: AN ENCYCLOPEDIA 145 (1991). Sir Walter Scott used cross
burnings for dramatic effect in The Lady of the Lake, where the burning cross signified both a
summons and a call to arms. See W. SCOTT, THE LADY OF THE LAKE, CANTO THIRD. Cross burning in this
country, however, long ago became unmoored from its Scottish ancestry. Burning a cross in the
United States is inextricably intertwined with the history of the Ku Klux Klan.
The first Ku Klux Klan began in Pulaski, Tennessee, in the spring of 1866. Although the Ku Klux Klan
started as a social club, it soon changed into something far different. The Klan fought Reconstruction
and the corresponding drive to allow freed blacks to participate in the political process. Soon the
Klan imposed "a veritable reign of terror" throughout the South. S. KENNEDY, SOUTHERN EXPOSURE 31
(1991) (hereinafter Kennedy). The Klan employed tactics such as whipping, threatening to burn
people at the stake, and murder. W. Wade, THE FIERY CROSS: THE KU KLUX KLAN IN AMERICA 48-49 (1987)
(hereinafter Wade). The Klan's victims included blacks, southern whites who disagreed with the
Klan, and "carpetbagger" northern whites.
The activities of the Ku Klux Klan prompted legislative action at the national level. In 1871,
"President Grant sent a message to Congress indicating that the Klan's reign of terror in the Southern
States had rendered life and property insecure." In response, Congress passed what is now known as
the Ku Klux Klan Act. See "An Act to enforce the Provisions of the Fourteenth Amendment to the
Constitution of the United States, and for other Purposes," 17 Stat. 13 (now codified at 42 U. S. C.
§§1983, 1985, and 1986). President Grant used these new powers to suppress the Klan in South
Carolina, the effect of which severely curtailed the Klan in other States as well. By the end of
Reconstruction in 1877, the first Klan no longer existed.
The genesis of the second Klan began in 1905, with the publication of Thomas Dixon's THE CLANSMEN:
AN HISTORICAL ROMANCE OF THE KU KLUX KLAN. Dixon's book was a sympathetic portrait of the first Klan,
depicting the Klan as a group of heroes "saving" the South from blacks and the "horrors" of
Reconstruction. Although the first Klan never actually practiced cross burning, Dixon's book depicted
the Klan burning crosses to celebrate the execution of former slaves. Cross burning thereby became
associated with the first Ku Klux Klan. When D. W. Griffith turned Dixon's book into the movie The
Birth of a Nation in 1915, the association between cross burning and the Klan became indelible. In
addition to the cross burnings in the movie, a poster advertising the film displayed a hooded

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Klansman riding a hooded horse, with his left hand holding the reins of the horse and his right hand
holding a burning cross above his head. Soon thereafter, in November 1915, the second Klan began.
From the inception of the second Klan, cross burnings have been used to communicate both threats
of violence and messages of shared ideology. The first initiation ceremony occurred on Stone
Mountain near Atlanta, Georgia. While a 40-foot cross burned on the mountain, the Klan members
took their oaths of loyalty. This cross burning was the second recorded instance in the United States.
The first known cross burning in the country had occurred a little over one month before the Klan
initiation, when a Georgia mob celebrated the lynching of Leo Frank by burning a "gigantic cross" on
Stone Mountain that was "visible throughout" Atlanta.
The new Klan's ideology did not differ much from that of the first Klan. As one Klan publication
emphasized, "We avow the distinction between [the] races, ... and we shall ever be true to the faithful
maintenance of White Supremacy and will strenuously oppose any compromise thereof in any and all
things." Violence was also an elemental part of this new Klan. By September 1921, the New York
World newspaper documented 152 acts of Klan violence, including 4 murders, 41 floggings, and 27
tar-and-featherings.
Often, the Klan used cross burnings as a tool of intimidation and a threat of impending violence. For
example, in 1939 and 1940, the Klan burned crosses in front of synagogues and churches. After one
cross burning at a synagogue, a Klan member noted that if the cross burning did not "shut the Jews
up, we'll cut a few throats and see what happens." In Miami in 1941, the Klan burned four crosses in
front of a proposed housing project, declaring, "We are here to keep niggers out of your town ... .
When the law fails you, call on us." And in Alabama in 1942, in "a whirlwind climax to weeks of
flogging and terror," the Klan burned crosses in front of a union hall and in front of a union leader's
home on the eve of a labor election. These cross burnings embodied threats to people whom the Klan
deemed antithetical to its goals. And these threats had special force given the long history of Klan
violence.
The Klan continued to use cross burnings to intimidate after World War II. In one incident, an
African-American "school teacher who recently moved his family into a block formerly occupied only
by whites asked the protection of city police ... after the burning of a cross in his front yard." And after
a cross burning in Suffolk, Virginia during the late 1940's, the Virginia Governor stated that he would
"not allow any of our people of any race to be subjected to terrorism or intimidation in any form by
the Klan or any other organization." These incidents of cross burning, among others, helped prompt
Virginia to enact its first version of the cross-burning statute in 1950.
The decision of this Court in Brown v. Board of Education (1954), along with the civil rights
movement of the 1950's and 1960's, sparked another outbreak of Klan violence. These acts of
violence included bombings, beatings, shootings, stabbings, and mutilations. Members of the Klan
burned crosses on the lawns of those associated with the civil rights movement, assaulted the
Freedom Riders, bombed churches, and murdered blacks as well as whites whom the Klan viewed as
sympathetic toward the civil rights movement.
Throughout the history of the Klan, cross burnings have also remained potent symbols of shared
group identity and ideology. The burning cross became a symbol of the Klan itself and a central
feature of Klan gatherings. According to the Klan constitution (called the kloran), the "fiery cross"
was the "emblem of that sincere, unselfish devotedness of all klansmen to the sacred purpose and
principles we have espoused." And the Klan has often published its newsletters and magazines under
the name The Fiery Cross.
At Klan gatherings across the country, cross burning became the climax of the rally or the initiation.
Posters advertising an upcoming Klan rally often featured a Klan member holding a cross. Typically, a
cross burning would start with a prayer by the "Klavern" minister, followed by the singing of Onward
Christian Soldiers. The Klan would then light the cross on fire, as the members raised their left arm
toward the burning cross and sang The Old Rugged Cross. Wade 185. Throughout the Klan's history,
the Klan continued to use the burning cross in their ritual ceremonies.

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For its own members, the cross was a sign of celebration and ceremony. During a joint Nazi-Klan
rally in 1940, the proceeding concluded with the wedding of two Klan members who "were married
in full Klan regalia beneath a blazing cross." In response to antimasking bills introduced in state
legislatures after World War II, the Klan burned crosses in protest. On March 26, 1960, the Klan
engaged in rallies and cross burnings throughout the South in an attempt to recruit 10 million
members. Later in 1960, the Klan became an issue in the third debate between Richard Nixon and
John Kennedy, with both candidates renouncing the Klan. After this debate, the Klan reiterated its
support for Nixon by burning crosses. And cross burnings featured prominently in Klan rallies when
the Klan attempted to move toward more nonviolent tactics to stop integration. In short, a burning
cross has remained a symbol of Klan ideology and of Klan unity.
To this day, regardless of whether the message is a political one or whether the message is also
meant to intimidate, the burning of a cross is a "symbol of hate." And while cross burning sometimes
carries no intimidating message, at other times the intimidating message is the only message
conveyed. For example, when a cross burning is directed at a particular person not affiliated with the
Klan, the burning cross often serves as a message of intimidation, designed to inspire in the victim a
fear of bodily harm. Moreover, the history of violence associated with the Klan shows that the
possibility of injury or death is not just hypothetical. The person who burns a cross directed at a
particular person often is making a serious threat, meant to coerce the victim to comply with the
Klan's wishes unless the victim is willing to risk the wrath of the Klan. Indeed, as the cases of
respondents Elliott and O'Mara indicate, individuals without Klan affiliation who wish to threaten or
menace another person sometimes use cross burning because of this association between a burning
cross and violence.
In sum, while a burning cross does not inevitably convey a message of intimidation, often the cross
burner intends that the recipients of the message fear for their lives. And when a cross burning is
used to intimidate, few if any messages are more powerful.
III
A
The First Amendment, applicable to the States through the Fourteenth Amendment, provides that
"Congress shall make no law ... abridging the freedom of speech." The hallmark of the protection of
free speech is to allow "free trade in ideas"--even ideas that the overwhelming majority of people
might find distasteful or discomforting. Abrams v. United States (1919) (Holmes, J., dissenting); see
also Texas v. Johnson, (1989). Thus, the First Amendment "ordinarily" denies a State "the power to
prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens
believes to be false and fraught with evil consequence." Whitney v. California (Brandeis, J.,
concurring). The First Amendment affords protection to symbolic or expressive conduct as well as to
actual speech. See, e.g., R. A. V.v. City of St. Paul, Texas v. Johnson, United States v. O'Brien, Tinker v. Des
Moines Independent Community School Dist. (1969).
The protections afforded by the First Amendment, however, are not absolute, and we have long
recognized that the government may regulate certain categories of expression consistent with the
Constitution. See, e.g.,Chaplinsky v. New Hampshire (1942) ("There are certain well-defined and
narrowly limited classes of speech, the prevention and punishment of which has never been thought
to raise any Constitutional problem"). The First Amendment permits "restrictions upon the content
of speech in a few limited areas, which are 'of such slight social value as a step to truth that any
benefit that may be derived from them is clearly outweighed by the social interest in order and
morality.' " * * *
"True threats" encompass those statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a particular individual or group of
individuals. See Watts v. United States (1969) ("political hyberbole" is not a true threat); R.A.V. v. City
of St. Paul. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true
threats "protect[s] individuals from the fear of violence" and "from the disruption that fear
engenders," in addition to protecting people "from the possibility that the threatened violence will
occur." Intimidation in the constitutionally proscribable sense of the word is a type of true threat,
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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. Respondents do not contest that some cross burnings fit within this
meaning of intimidating speech, and rightly so. As noted in Part II, supra, the history of cross burning
in this country shows that cross burning is often intimidating, intended to create a pervasive fear in
victims that they are a target of violence.
B
The Supreme Court of Virginia ruled that in light of R.A.V. v. City of St. Paul, even if it is constitutional
to ban cross burning in a content-neutral manner, the Virginia cross-burning statute is
unconstitutional because it discriminates on the basis of content and viewpoint. It is true, as the
Supreme Court of Virginia held, that the burning of a cross is symbolic expression. The reason why
the Klan burns a cross at its rallies, or individuals place a burning cross on someone else's lawn, is
that the burning cross represents the message that the speaker wishes to communicate. Individuals
burn crosses as opposed to other means of communication because cross burning carries a message
in an effective and dramatic manner.
The fact that cross burning is symbolic expression, however, does not resolve the constitutional
question. The Supreme Court of Virginia relied upon R.A.V. v. City of St. Paul to conclude that once a
statute discriminates on the basis of this type of content, the law is unconstitutional. We disagree.
* * * We did not hold in R.A.V. that the First Amendment prohibits all forms of content-based
discrimination within a proscribable area of speech. Rather, we specifically stated that some types of
content discrimination did not violate the First Amendment:
"When the basis for the content discrimination consists entirely of the very reason the entire class of
speech at issue is proscribable, no significant danger of idea or viewpoint discrimination exists. Such a
reason, having been adjudged neutral enough to support exclusion of the entire class of speech from
First Amendment protection, is also neutral enough to form the basis of distinction within the class."

* * * Similarly, Virginia's statute does not run afoul of the First Amendment insofar as it bans cross
burning with intent to intimidate. Unlike the statute at issue in R. A. V., the Virginia statute does not
single out for opprobrium only that speech directed toward "one of the specified disfavored topics."
It does not matter whether an individual burns a cross with intent to intimidate because of the
victim's race, gender, or religion, or because of the victim's "political affiliation, union membership,
or homosexuality." Moreover, as a factual matter it is not true that cross burners direct their
intimidating conduct solely to racial or religious minorities. Indeed, in the case of Elliott and O'Mara,
it is at least unclear whether the respondents burned a cross due to racial animus.
The First Amendment permits Virginia to outlaw cross burnings 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 messages in light
of cross burning's long and pernicious history as a signal of impending violence. Thus, just as a State
may regulate only that obscenity which is the most obscene due to its prurient content, so too may a
State choose to prohibit only those forms of intimidation that are most likely to inspire fear of bodily
harm. A ban on cross burning carried out with the intent to intimidate is fully consistent with our
holding in R. A. V. and is proscribable under the First Amendment.
IV
[plurality]
The Supreme Court of Virginia ruled in the alternative that Virginia's cross-burning statute was
unconstitutionally overbroad due to its provision stating that "[a]ny such burning of a cross shall be
prima facie evidence of an intent to intimidate a person or group of persons." Va. Code Ann. §18.2423 (1996). The Commonwealth added the prima facie provision to the statute in 1968. The court
below did not reach whether this provision is severable from the rest of the cross-burning statute
under Virginia law.
The Supreme Court of Virginia has not ruled on the meaning of the prima facie evidence provision. It
has, however, stated that "the act of burning a cross alone, with no evidence of intent to intimidate,
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will nonetheless suffice for arrest and prosecution and will insulate the Commonwealth from a
motion to strike the evidence at the end of its case-in-chief." The jury in the case of Richard Elliott did
not receive any instruction on the prima facie evidence provision, and the provision was not an issue
in the case of Jonathan O'Mara because he pleaded guilty. The court in Barry Black's case, however,
instructed the jury that the provision means: "The burning of a cross, by itself, is sufficient evidence
from which you may infer the required intent." This jury instruction is the same as the Model Jury
Instruction in the Commonwealth of Virginia. See Virginia Model Jury Instructions, Criminal,
Instruction No. 10.250 (1998 and Supp. 2001).
The prima facie evidence provision, as interpreted by the jury instruction, renders the statute
unconstitutional. Because this jury instruction is the Model Jury Instruction, and because the
Supreme Court of Virginia had the opportunity to expressly disavow the jury instruction, the jury
instruction's construction of the prima facie provision "is a ruling on a question of state law that is as
binding on us as though the precise words had been written into" the statute. As construed by the
jury instruction, the prima facie provision strips away the very reason why a State may ban cross
burning with the intent to intimidate. The prima facie evidence provision permits a jury to convict in
every cross-burning case in which defendants exercise their constitutional right not to put on a
defense. And even where a defendant like Black presents a defense, the prima facie evidence
provision makes it more likely that the jury will find an intent to intimidate regardless of the
particular facts of the case. The provision permits the Commonwealth to arrest, prosecute, and
convict a person based solely on the fact of cross burning itself.
It is apparent that the provision as so interpreted "'would create an unacceptable risk of the
suppression of ideas.'" The act of burning a cross may mean that a person is engaging in
constitutionally proscribable intimidation. But that same act may mean only that the person is
engaged in core political speech. The prima facie evidence provision in this statute blurs the line
between these two meanings of a burning cross. As interpreted by the jury instruction, the provision
chills constitutionally protected political speech because of the possibility that a State will prosecute-and potentially convict--somebody engaging only in lawful political speech at the core of what the
First Amendment is designed to protect.
As the history of cross burning indicates, a burning cross is not always intended to intimidate. Rather,
sometimes the cross burning is a statement of ideology, a symbol of group solidarity. It is a ritual
used at Klan gatherings, and it is used to represent the Klan itself. Thus, "[b]urning a cross at a
political rally would almost certainly be protected expression." Indeed, occasionally a person who
burns a cross does not intend to express either a statement of ideology or intimidation. Cross
burnings have appeared in movies such as Mississippi Burning, and in plays such as the stage
adaptation of Sir Walter Scott's The Lady of the Lake.
The prima facie provision makes no effort to distinguish among these different types of cross
burnings. It does not distinguish between a cross burning done with the purpose of creating anger or
resentment and a cross burning done with the purpose of threatening or intimidating a victim. It
does not distinguish between a cross burning at a public rally or a cross burning on a neighbor's
lawn. It does not treat the cross burning directed at an individual differently from the cross burning
directed at a group of like-minded believers. It allows a jury to treat a cross burning on the property
of another with the owner's acquiescence in the same manner as a cross burning on the property of
another without the owner's permission. To this extent I agree with Justice Souter that the prima
facie evidence provision can "skew jury deliberations toward conviction in cases where the evidence
of intent to intimidate is relatively weak and arguably consistent with a solely ideological reason for
burning." Post (opinion concurring in judgment and dissenting in part).
It may be true that a cross burning, even at a political rally, arouses a sense of anger or hatred among
the vast majority of citizens who see a burning cross. But this sense of anger or hatred is not
sufficient to ban all cross burnings. * * * The prima facie evidence provision in this case ignores all of
the contextual factors that are necessary to decide whether a particular cross burning is intended to
intimidate. The First Amendment does not permit such a shortcut.

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For these reasons, the prima facie evidence provision, as interpreted through the jury instruction and
as applied in Barry Black's case, is unconstitutional on its face. We recognize that the Supreme Court
of Virginia has not authoritatively interpreted the meaning of the prima facie evidence provision.
Unlike Justice Scalia, we refuse to speculate on whether any interpretation of the prima facie
evidence provision would satisfy the First Amendment. Rather, all we hold is that because of the
interpretation of the prima facie evidence provision given by the jury instruction, the provision
makes the statute facially invalid at this point. We also recognize the theoretical possibility that the
court, on remand, could interpret the provision in a manner different from that so far set forth in
order to avoid the constitutional objections we have described. We leave open that possibility. We
also leave open the possibility that the provision is severable, and if so, whether Elliott and O'Mara
could be retried under §18.2-423.
V
With respect to Barry Black, we agree with the Supreme Court of Virginia that his conviction cannot
stand, and we affirm the judgment of the Supreme Court of Virginia. With respect to Elliott and
O'Mara, we vacate the judgment of the Supreme Court of Virginia, and remand the case for further
proceedings.
It is so ordered.
JUSTICE SCALIA, WITH WHOM JUSTICE THOMAS JOINS AS TO PARTS I AND II, CONCURRING IN PART, CONCURRING IN
THE JUDGMENT IN PART, AND DISSENTING IN PART. [OMITTED]
JUSTICE SOUTER, WITH WHOM JUSTICE KENNEDY AND JUSTICE GINSBURG JOIN, CONCURRING IN THE JUDGMENT IN
PART AND DISSENTING IN PART.
I agree with the majority that the Virginia statute makes a content-based distinction within the
category of punishable intimidating or threatening expression, the very type of distinction we
considered in R. A. V. v. St. Paul (1992). I disagree that any exception should save Virginia's law from
unconstitutionality under the holding in R. A. V. or any acceptable variation of it.
I
The ordinance struck down in R. A. V., as it had been construed by the State's highest court,
prohibited the use of symbols (including but not limited to a burning cross) as the equivalent of
generally proscribable fighting words, but the ordinance applied only when the symbol was
provocative " 'on the basis of race, color, creed, religion or gender.' " Although the Virginia statute in
issue here contains no such express "basis of" limitation on prohibited subject matter, the specific
prohibition of cross burning with intent to intimidate selects a symbol with particular content from
the field of all proscribable expression meant to intimidate. To be sure, that content often includes an
essentially intimidating message, that the cross burner will harm the victim, most probably in a
physical way, given the historical identification of burning crosses with arson, beating, and lynching.
But even when the symbolic act is meant to terrify, a burning cross may carry a further, ideological
message of white Protestant supremacy. The ideological message not only accompanies many
threatening uses of the symbol, but is also expressed when a burning cross is not used to threaten
but merely to symbolize the supremacist ideology and the solidarity of those who espouse it. As the
majority points out, the burning cross can broadcast threat and ideology together, ideology alone, or
threat alone, as was apparently the choice of respondents Elliott and O'Mara. * * *
II
[omitted]
III
As I see the likely significance of the [prima facie] evidence provision, its primary effect is to skew
jury deliberations toward conviction in cases where the evidence of intent to intimidate is relatively
weak and arguably consistent with a solely ideological reason for burning. To understand how the
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provision may work, recall that the symbolic act of burning a cross, without more, is consistent with
both intent to intimidate and intent to make an ideological statement free of any aim to threaten. One
can tell the intimidating instance from the wholly ideological one only by reference to some further
circumstance. In the real world, of course, and in real-world prosecutions, there will always be
further circumstances, and the factfinder will always learn something more than the isolated fact of
cross burning. Sometimes those circumstances will show an intent to intimidate, but sometimes they
will be at least equivocal, as in cases where a white supremacist group burns a cross at an initiation
ceremony or political rally visible to the public. In such a case, if the factfinder is aware of the prima
facie evidence provision, as the jury was in respondent Black's case, the provision will have the
practical effect of tilting the jury's thinking in favor of the prosecution. What is significant is not that
the provision permits a factfinder's conclusion that the defendant acted with proscribable and
punishable intent without any further indication, because some such indication will almost always be
presented. What is significant is that the provision will encourage a factfinder to err on the side of a
finding of intent to intimidate when the evidence of circumstances fails to point with any clarity
either to the criminal intent or to the permissible one. The effect of such a distortion is difficult to
remedy, since any guilty verdict will survive sufficiency review unless the defendant can show that,
"viewing the evidence in the light most favorable to the prosecution, [no] rational trier of fact could
have found the essential elements of the crime beyond a reasonable doubt." The provision will thus
tend to draw nonthreatening ideological expression within the ambit of the prohibition of
intimidating expression, as Justice O'Connor notes (plurality opinion).
To the extent the prima facie evidence provision skews prosecutions, then, it skews the statute
toward suppressing ideas. Thus, the appropriate way to consider the statute's prima facie evidence
term, in my view, is not as if it were an overbroad statutory definition amenable to severance or a
narrowing construction. The question here is not the permissible scope of an arguably overbroad
statute, but the claim of a clearly content-based statute to an exception from the general prohibition
of content-based proscriptions, an exception that is not warranted if the statute's terms show that
suppression of ideas may be afoot. Accordingly, the way to look at the prima facie evidence provision
is to consider it for any indication of what is afoot. And if we look at the provision for this purpose, it
has a very obvious significance as a mechanism for bringing within the statute's prohibition some
expression that is doubtfully threatening though certainly distasteful.
It is difficult to conceive of an intimidation case that could be easier to prove than one with cross
burning, assuming any circumstances suggesting intimidation are present. The provision, apparently
so unnecessary to legitimate prosecution of intimidation, is therefore quite enough to raise the
question whether Virginia's content-based statute seeks more than mere protection against a
virulent form of intimidation. It consequently bars any conclusion that an exception to the general
rule of R. A. V. is warranted on the ground "that there is no realistic [or little realistic] possibility that
official suppression of ideas is afoot," Since no R. A. V. exception can save the statute as content based,
it can only survive if narrowly tailored to serve a compelling state interest, a stringent test the statute
cannot pass; a content-neutral statute banning intimidation would achieve the same object without
singling out particular content.
IV
I conclude that the statute under which all three of the respondents were prosecuted violates the
First Amendment, since the statute's content-based distinction was invalid at the time of the charged
activities, regardless of whether the prima facie evidence provision was given any effect in any
respondent's individual case. In my view, severance of the prima facie evidence provision now could
not eliminate the unconstitutionality of the whole statute at the time of the respondents' conduct. I
would therefore affirm the judgment of the Supreme Court of Virginia vacating the respondents'
convictions and dismissing the indictments. Accordingly, I concur in the Court's judgment as to
respondent Black and dissent as to respondents Elliott and O'Mara.

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JUSTICE THOMAS, DISSENTING.
In every culture, certain things acquire meaning well beyond what outsiders can comprehend. That
goes for both the sacred, see Texas v. Johnson, and the profane. I believe that cross burning is the
paradigmatic example of the latter.
I
Although I agree with the majority's conclusion that it is constitutionally permissible to "ban ... cross
burning carried out with intent to intimidate," I believe that the majority errs in imputing an
expressive component to the activity in question. In my view, whatever expressive value cross
burning has, the legislature simply wrote it out by banning only intimidating conduct undertaken by
a particular means. A conclusion that the statute prohibiting cross burning with intent to intimidate
sweeps beyond a prohibition on certain conduct into the zone of expression overlooks not only the
words of the statute but also reality.
A
"In holding [the ban on cross burning with intent to intimidate] unconstitutional, the Court ignores
Justice Holmes' familiar aphorism that 'a page of history is worth a volume of logic.'" * * *
To me, the majority's brief history of the Ku Klux Klan only reinforces this common understanding of
the Klan as a terrorist organization, which, in its endeavor to intimidate, or even eliminate those its
dislikes, uses the most brutal of methods.
Such methods typically include cross burning--"a tool for the intimidation and harassment of racial
minorities, Catholics, Jews, Communists, and any other groups hated by the Klan." For those not
easily frightened, cross burning has been followed by more extreme measures, such as beatings and
murder. JUAN WILLIAMS, EYES ON THE PRIZE: AMERICA'S CIVIL RIGHTS YEARS 1954-1965, at 39 (1965). As the
Solicitor General points out, the association between acts of intimidating cross burning and violence
is well documented in recent American history. Brief for the United States at 3-4 & n. 2. Indeed, the
connection between cross burning and violence is well ingrained, and lower courts have so
recognized. * * *
B
Virginia's experience has been no exception. In Virginia, though facing widespread opposition in
1920s, the KKK developed localized strength in the southeastern part of the State, where there were
reports of scattered raids and floggings. Although the KKK was disbanded at the national level in
1944, a series of cross burnings in Virginia took place between 1949 and 1952.
Most of the crosses were burned on the lawns of black families, who either were business owners or
lived in predominantly white neighborhoods. At least one of the cross burnings was accompanied by
a shooting. The crosses burned near residences were about five to six feet tall; while a "huge cross
reminiscent of the Ku Klux Klan days" burned "atop a hill" as part of the initiation ceremony of the
secret organization of the Knights of Kavaliers, was twelve feet tall. These incidents were, in the
words of the time, "terroristic [sic] . . . un-American act[s], designed to intimidate Negroes from
seeking their rights as citizens."
In February 1952, in light of this series of cross burnings and attendant reports that the Klan, "long
considered dead in Virginia, is being revitalized in Richmond," Governor Battle announced that
"Virginia 'might well consider passing legislation' to restrict the activities of the Ku Klux Klan." As
newspapers reported at the time, the bill was "to ban the burning of crosses and other similar
evidences of terrorism." The bill was presented to the House of Delegates by a former FBI agent and
future two-term Governor, Delegate Mills E. Godwin, Jr. "Godwin said law and order in the State were
impossible if organized groups could create fear by intimidation."
That in the early 1950s the people of Virginia viewed cross burning as creating an intolerable
atmosphere of terror is not surprising: Although the cross took on some religious significance in the
1920's when the Klan became connected with certain southern white clergy, by the postwar period it
had reverted to its original function "as an instrument of intimidation."

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Strengthening Delegate Godwin's explanation, as well as my conclusion, that the legislature sought to
criminalize terrorizing conduct is the fact that at the time the statute was enacted, racial segregation
was not only the prevailing practice, but also the law in Virginia. And, just two years after the
enactment of this statute, Virginia's General Assembly embarked on a campaign of "massive
resistance" in response to Brown v. Board of Education (1954).
It strains credulity to suggest that a state legislature that adopted a litany of segregationist laws selfcontradictorily intended to squelch the segregationist message. Even for segregationists, violent and
terroristic conduct, the Siamese twin of cross burning, was intolerable. The ban on cross burning
with intent to intimidate demonstrates that even segregationists understood the difference between
intimidating and terroristic conduct and racist expression. It is simply beyond belief that, in passing
the statute now under review, the Virginia legislature was concerned with anything but penalizing
conduct it must have viewed as particularly vicious.
Accordingly, this statute prohibits only conduct, not expression. And, just as one cannot burn down
someone's house to make a political point and then seek refuge in the First Amendment, those who
hate cannot terrorize and intimidate to make their point. In light of my conclusion that the statute
here addresses only conduct, there is no need to analyze it under any of our First Amendment tests.
II
Even assuming that the statute implicates the First Amendment, in my view, the fact that the statute
permits a jury to draw an inference of intent to intimidate from the cross burning itself presents no
constitutional problems. Therein lies my primary disagreement with the plurality.
A
But even with respect to statutes containing a mandatory irrebuttable presumption as to intent, the
Court has not shown much concern. For instance, there is no scienter requirement for statutory rape.
That is, a person can be arrested, prosecuted, and convicted for having sex with a minor, without the
government ever producing any evidence, let alone proving beyond a reasonable doubt, that a minor
did not consent. In fact, "[f]or purposes of the child molesting statute . . . consent is irrelevant. The
legislature has determined in such cases that children under the age of sixteen (16) cannot, as a
matter of law, consent to have sexual acts performed upon them, or consent to engage in a sexual act
with someone over the age of sixteen (16)." The legislature finds the behavior so reprehensible that
the intent is satisfied by the mere act committed by a perpetrator. Considering the horrific effect
cross burning has on its victims, it is also reasonable to presume intent to intimidate from the act
itself.
Statutes prohibiting possession of drugs with intent to distribute operate much the same way as
statutory rape laws. Under these statutes, the intent to distribute is effectively satisfied by possession
of some threshold amount of drugs. As with statutory rape, the presumption of intent in such statutes
is irrebuttable--not only can a person be arrested for the crime of possession with intent to distribute
(or "trafficking") without any evidence of intent beyond quantity of drugs, but such person cannot
even mount a defense to the element of intent. However, as with statutory rape statutes, our cases do
not reveal any controversy with respect to the presumption of intent in these drug statutes.
Because the prima facie clause here is an inference, not an irrebuttable presumption, there is all the
more basis under our Due Process precedents to sustain this statute.
B
The plurality, however, is troubled by the presumption because this is a First Amendment case. The
plurality laments the fate of an innocent cross-burner who burns a cross, but does so without an
intent to intimidate. The plurality fears the chill on expression because, according to the plurality, the
inference permits "the Commonwealth to arrest, prosecute and convict a person based solely on the
fact of cross burning itself." First, it is, at the very least, unclear that the inference comes into play
during arrest and initiation of a prosecution, that is, prior to the instructions stage of an actual trial.
Second, as I explained above, the inference is rebuttable and, as the jury instructions given in this
case demonstrate, Virginia law still requires the jury to find the existence of each element, including
intent to intimidate, beyond a reasonable doubt.
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Moreover, even in the First Amendment context, the Court has upheld such regulations where
conduct that initially appears culpable, ultimately results in dismissed charges. A regulation of
pornography is one such example. While possession of child pornography is illegal, Ferber v. New
York (1982), possession of adult pornography, as long as it is not obscene, is allowed, Miller v.
California (1973). As a result, those pornographers trafficking in images of adults who look like
minors, may be not only deterred but also arrested and prosecuted for possessing what a jury might
find to be legal materials. This "chilling" effect has not, however, been a cause for grave concern with
respect to overbreadth of such statutes among the members of this Court.
That the First Amendment gives way to other interests is not a remarkable proposition. What is
remarkable is that, under the plurality's analysis, the determination of whether an interest is
sufficiently compelling depends not on the harm a regulation in question seeks to prevent, but on the
area of society at which it aims. For instance, in Hill v. Colorado (2000), the Court upheld a restriction
on protests near abortion clinics, explaining that the State had a legitimate interest, which was
sufficiently narrowly tailored, in protecting those seeking services of such establishments "from
unwanted advice" and "unwanted communication." In so concluding, the Court placed heavy reliance
on the "vulnerable physical and emotional conditions" of patients. Thus, when it came to the rights of
those seeking abortions, the Court deemed restrictions on "unwanted advice," which, notably, can be
given only from a distance of at least 8 feet from a prospective patient, justified by the countervailing
interest in obtaining abortion. Yet, here, the plurality strikes down the statute because one day an
individual might wish to burn a cross, but might do so without an intent to intimidate anyone. That
cross burning subjects its targets, and, sometimes, an unintended audience to extreme emotional
distress, and is virtually never viewed merely as "unwanted communication," but rather, as a
physical threat, is of no concern to the plurality. Henceforth, under the plurality's view, physical
safety will be valued less than the right to be free from unwanted communications.
III
Because I would uphold the validity of this statute, I respectfully dissent.

Notes

1.
Be prepared to discuss the “categorical approach.” What is the logic of the categorical
approach? What are the differing views of how that logic should be understood when a subcategory
is involved? Should the content (or viewpoint) of that subcategory be considered?
2.
The combination of symbolic speech and hate speech/conduct as in Virginia v. Black occurs
in some First Amendment challenges to the anti-masking statutes Justice Thomas mentions in his
dissent. The Second Circuit, in Church of Am. Knights of the Ku Klux Klan v. Kerik, 356 F.3d 197 (2d Cir.
2004), took an interesting approach to a challenge to New York’s anti-masking statute. The KKK
group had sought an injunction against the statute to allow a demonstration while wearing masks.
Rejecting the First Amendment claim, the court agreed that the KKK regalia - - - the robe, hood, and
mask - - - met the threshold requirement for expressive speech, but nevertheless separated the mask
in its analysis. In the court’s view, the mask was “redundant” and did “not convey a message
independently of the robe and hood.” Thus, the mask did not rise to the level of symbolic speech.
Does this seem correct? In contexts other than the KKK?

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Note: “True Threats”

In Watts v. United States, 394 U.S. 705 (1969), the Court upheld the constitutionality of the “threats
against the President” statute, 18 U.S.C. s 871(a), in a brief per curiam opinion. However, the Court
concluded that a “threat” under the statute “must be distinguished from what is constitutionally
protected speech.”
As the Court described it:
According to an investigator for the Army Counter Intelligence Corps who was present, petitioner
[Watts] responded: ‘They always holler at us to get an education. And now I have already received my
draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going.
If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.’ ‘They are not going to
make me kill my black brothers.’

Id. at 706.
The jury found that petitioner had committed a felony by knowingly and willfully threatening the
President; a divided Court of Appeals for the D.C. Circuit affirmed. The Court concluded:
whatever the "willfullness" requirement implies, the statute initially requires the Government to prove
a true "threat." We do not believe that the kind of political hyperbole indulged in by petitioner fits
within that statutory term.

Id. at 709.
In the years since Watts, whether statements are hyperbole or true threats has become an issue in
electronic and social media communications.
In Elonis v. United States, 575 U.S. ___ (2015), the Court considered statements and “lyrics” in
facebook postings in the context of a domestic violence situation. Elonis was convicted and the Court
granted certiorari petition focused on the First Amendment and pointed to a split in the circuits
regarding an application of Virginia v. Black (2003) to a conviction of threatening another person: did
it require proof of the defendant’s subjective intent to threaten or whether it is enough to show that a
“reasonable person” would regard the statement as threatening. However, the Court's Order granting
certiorari instructed:
In addition to the question presented by the petition, the parties are directed to brief and argue the
following question: "Whether, as a matter of statutory interpretation, conviction of threatening another
person under 18 U. S. C. §875(c) requires proof of the defendant's subjective intent to threaten."

Given the Court’s instruction, not surprisingly the Court’s opinion, authored by Chief Justice Roberts,
“side-stepped” the First Amendment issue. It held that as a matter of statutory interpretation, the
instructions to the jury at trial that guilt could be predicated on a "reasonable person" standard
merited reversal. The Court added: “Given our disposition, it is not necessary to consider any First
Amendment issues.”
However, many commentators believe that the constitutional contours of true threats First
Amendment doctrine will be returning to the Court in the near future.

III. Considering “Content” in the Context of the
Military

This next pair of cases concerns the constitutionality of specific statutes Congress enacted to protect
the military from civilian speech, not unlike the wartime enactments considered in the previous
chapter. Consider how the opinions valorize - - - or not - - - the military, as well as whether how the
opinions construe “content” and “categories” in this context.

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Schacht v. United States
398 U.S. 58 (1970)
BLACK, J. DELIVERED THE OPINION OF THE COURT. HARLAN, J., FILED A CONCURRING OPINION IN WHICH THE CHIEF
JUSTICE AND STEWART, J. JOINED.
MR. JUSTICE BLACK DELIVERED THE OPINION OF THE COURT.
The petitioner, Daniel Jay Schacht, was indicted in a United States District Court for violating 18 U.S.C.
§702, which makes it a crime for any person "without authority [to wear] the uniform or a distinctive
part thereof . . . of any of the armed forces of the United States . . . ." He was tried and convicted by a
jury, and on February 29, 1968, he was sentenced to pay a fine of $250 and to serve a six-month
prison term, the maximum sentence allowable under 18 U.S.C. §702. There is no doubt that Schacht
did wear distinctive parts of the uniform of the United States Army and that he was not a member of
the Armed Forces. He has defended his conduct since the beginning, however, on the ground that he
was authorized to wear the uniform by an Act of Congress, 10 U.S.C. §772 (f), which provides as
follows:
"When wearing by persons not on active duty authorized. . . . . .
"(f) While portraying a member of the Army, Navy, Air Force, or Marine Corps, an actor in a theatrical
or motion-picture production may wear the uniform of that armed force if the portrayal does not tend
to discredit that armed force." (Emphasis added.)

Schacht argued in the trial court and in this Court that he wore the army uniform as an "actor" in a
"theatrical production" performed several times between 6:30 and 8:30 a.m. on December 4, 1967, in
front of the Armed Forces Induction Center at Houston, Texas. The street skit in which Schacht wore
the army uniform as a costume was designed, in his view, to expose the evil of the American presence
in Vietnam and was part of a larger, peaceful antiwar demonstration at the induction center that
morning. The Court of Appeals' opinion affirming the conviction summarized the facts surrounding
the skit as follows:
"The evidence indicates that the demonstration in Houston was part of a nationally coordinated
movement which was to take place contemporaneously at several places throughout the country. The
appellants and their colleagues prepared a script to be followed at the induction center and they
actually rehearsed their roles at least once prior to the appointed day before a student organization
called the `Humanists.'
"The skit was composed of three people. There was Schacht who was dressed in a uniform and cap. A
second person was wearing `military colored' coveralls. The third person was outfitted in typical Viet
Cong apparel. The first two men carried water pistols. One of them would yell, `Be an able American,'
and then they would shoot the Viet Cong with their pistols. The pistols expelled a red liquid which,
when it struck the victim, created the impression that he was bleeding. Once the victim fell down the
other two would walk up to him and exclaim, `My God, this is a pregnant woman.' Without noticeable
variation this skit was reenacted several times during the morning of the demonstration."

I.
Our previous cases would seem to make it clear that 18 U.S.C. §702, making it an offense to wear our
military uniforms without authority is, standing alone, a valid statute on its face. See, e. g., United
States v. O'Brien (1968). But the general prohibition of 18 U.S.C. §702 cannot always stand alone in
view of 10 U.S.C. §772, which authorizes the wearing of military uniforms under certain conditions
and circumstances including the circumstance of an actor portraying a member of the armed services
in a "theatrical production." 10 U.S.C. §772(f). The Government's argument in this case seems to
imply that somehow what these amateur actors did in Houston should not be treated as a "theatrical
production" within the meaning of §772(f). We are unable to follow such a suggestion. Certainly
theatrical productions need not always be performed in buildings or even on a defined area such as a
conventional stage. Nor need they be performed by professional actors or be heavily financed or
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elaborately produced. Since time immemorial, outdoor theatrical performances, often performed by
amateurs, have played an important part in the entertainment and the education of the people of the
world. Here, the record shows without dispute the preparation and repeated presentation by
amateur actors of a short play designed to create in the audience an understanding of and opposition
to our participation in the Vietnam war. It may be that the performances were crude and amateurish
and perhaps unappealing, but the same thing can be said about many theatrical performances. We
cannot believe that when Congress wrote out a special exception for theatrical productions it
intended to protect only a narrow and limited category of professionally produced plays. Of course,
we need not decide here all the questions concerning what is and what is not within the scope of
§772(f). We need only find, as we emphatically do, that the street skit in which Schacht participated
was a "theatrical production" within the meaning of that section.
This brings us to petitioner's complaint that giving force and effect to the last clause of §772(f) would
impose an unconstitutional restraint on his right of free speech. We agree. This clause on its face
simply restricts §772(f)'s authorization to those dramatic portrayals that do not "tend to discredit"
the military, but, when this restriction is read together with 18 U.S.C. §702, it becomes clear that
Congress has in effect made it a crime for an actor wearing a military uniform to say things during his
performance critical of the conduct or policies of the Armed Forces. An actor, like everyone else in
our country, enjoys a constitutional right to freedom of speech, including the right openly to criticize
the Government during a dramatic performance. The last clause of §772(f) denies this constitutional
right to an actor who is wearing a military uniform by making it a crime for him to say things that
tend to bring the military into discredit and disrepute. In the present case Schacht was free to
participate in any skit at the demonstration that praised the Army, but under the final clause of
§772(f) he could be convicted of a federal offense if his portrayal attacked the Army instead of
praising it. In light of our earlier finding that the skit in which Schacht participated was a "theatrical
production" within the meaning of §772(f), it follows that his conviction can be sustained only if he
can be punished for speaking out against the role of our Army and our country in Vietnam. Clearly
punishment for this reason would be an unconstitutional abridgment of freedom of speech. The final
clause of §772(f), which leaves Americans free to praise the war in Vietnam but can send persons like
Schacht to prison for opposing it, cannot survive in a country which has the First Amendment. To
preserve the constitutionality of §772(f) that final clause must be stricken from the section.
CONCURRING OPINIONS [OMITTED].

United States v. Alvarez
567 U.S. ___ (2012)
KENNEDY, J., ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION, IN WHICH ROBERTS, C. J., AND
GINSBURG AND SOTOMAYOR, JJ., JOINED. BREYER, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH
KAGAN, J., JOINED. ALITO, J., FILED A DISSENTING OPINION, IN WHICH SCALIA AND THOMAS, JJ., JOINED.
JUSTICE KENNEDY ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION, IN WHICH THE CHIEF
JUSTICE, JUSTICE GINSBURG, AND JUSTICE SOTOMAYOR JOIN.
Lying was his habit. Xavier Alvarez, the respondent here, lied when he said that he played hockey for
the Detroit Red Wings and that he once married a starlet from Mexico. But when he lied in
announcing he held the Congressional Medal of Honor, respondent ventured onto new ground; for
that lie violates a federal criminal statute, the Stolen Valor Act of 2005. 18 U. S. C. §704.
In 2007, respondent attended his first public meeting as a board member of the Three Valley Water
District Board. The board is a governmental entity with headquarters in Claremont, California. He
introduced himself as follows: "I'm a retired marine of 25 years. I retired in the year 2001. Back in
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1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy."
None of this was true. For all the record shows, respondent's statements were but a pathetic attempt
to gain respect that eluded him. The statements do not seem to have been made to secure
employment or financial benefits or admission to privileges reserved for those who had earned the
Medal.
Respondent was indicted under the Stolen Valor Act for lying about the Congressional Medal of
Honor at the meeting. The United States District Court for the Central District of California rejected
his claim that the statute is invalid under the First Amendment. Respondent pleaded guilty to one
count, reserving the right to appeal on his First Amendment claim. The United States Court of
Appeals for the Ninth Circuit, in a decision by a divided panel, found the Act invalid under the First
Amendment and reversed the conviction. With further opinions on the issue, and over a dissent by
seven judges, rehearing en banc was denied. This Court granted certiorari.
After certiorari was granted, and in an unrelated case, the United States Court of Appeals for the
Tenth Circuit, also in a decision by a divided panel, found the Act constitutional. United States v.
Strandlof, 667 F. 3d 1146 (2012). So there is now a conflict in the Courts of Appeals on the question
of the Act's validity.
This is the second case in two Terms requiring the Court to consider speech that can disparage, or
attempt to steal, honor that belongs to those who fought for this Nation in battle. See Snyder v. Phelps
(2011) (hateful protests directed at the funeral of a serviceman who died in Iraq). Here the statement
that the speaker held the Medal was an intended, undoubted lie.
It is right and proper that Congress, over a century ago, established an award so the Nation can hold
in its highest respect and esteem those who, in the course of carrying out the "supreme and noble
duty of contributing to the defense of the rights and honor of the nation," have acted with
extraordinary honor. And it should be uncontested that this is a legitimate Government objective,
indeed a most valued national aspiration and purpose. This does not end the inquiry, however.
Fundamental constitutional principles require that laws enacted to honor the brave must be
consistent with the precepts of the Constitution for which they fought.
The Government contends the criminal prohibition is a proper means to further its purpose in
creating and awarding the Medal. When content-based speech regulation is in question, however,
exacting scrutiny is required. Statutes suppressing or restricting speech must be judged by the
sometimes inconvenient principles of the First Amendment. By this measure, the statutory
provisions under which respondent was convicted must be held invalid, and his conviction must be
set aside.
I
Respondent's claim to hold the Congressional Medal of Honor was false. There is no room to argue
about interpretation or shades of meaning. On this premise, respondent violated §704(b); and,
because the lie concerned the Congressional Medal of Honor, he was subject to an enhanced penalty
under subsection (c). Those statutory provisions are as follows:
"(b) False Claims About Receipt of Military Decorations or Medals.--Whoever falsely represents himself
or herself, verbally or in writing, to have been awarded any decoration or medal authorized by
Congress for the Armed Forces of the United States . . . shall be fined under this title, imprisoned not
more than six months, or both.
"(c) Enhanced Penalty for Offenses Involving Congressional Medal of Honor.-"(1) In General.--If a decoration or medal involved in an offense under subsection (a) or (b) is a
Congressional Medal of Honor, in lieu of the punishment provided in that subsection, the offender shall
be fined under this title, imprisoned not more than 1 year, or both."

Respondent challenges the statute as a content-based suppression of pure speech, speech not falling
within any of the few categories of expression where content-based regulation is permissible. The
Government defends the statute as necessary to preserve the integrity and purpose of the Medal, an
integrity and purpose it contends are compromised and frustrated by the false statements the statute
prohibits. It argues that false statements "have no First Amendment value in themselves," and thus
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"are protected only to the extent needed to avoid chilling fully protected speech." Although the
statute covers respondent's speech, the Government argues that it leaves breathing room for
protected speech, for example speech which might criticize the idea of the Medal or the importance
of the military. The Government's arguments cannot suffice to save the statute.
II
"[A]s a general matter, the First Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject matter, or its content." Ashcroft v. American
Civil Liberties Union (2002). As a result, the Constitution "demands that content-based restrictions on
speech be presumed invalid . . . and that the Government bear the burden of showing their
constitutionality." Ashcroft v. American Civil Liberties Union (2004).
In light of the substantial and expansive threats to free expression posed by content-based
restrictions, this Court has rejected as "startling and dangerous" a "free-floating test for First
Amendment coverage . . . [based on] an ad hoc balancing of relative social costs and benefits." United
States v. Stevens (2010). Instead, content-based restrictions on speech have been permitted, as a
general matter, only when confined to the few " 'historic and traditional categories [of expression]
long familiar to the bar.' Among these categories are advocacy intended, and likely, to incite
imminent lawless action, see Brandenburg v. Ohio (1969) (per curiam); obscenity, see, e.g., Miller v.
California (1973); defamation, see, e.g., New York Times Co. v. Sullivan (1964) (providing substantial
protection for speech about public figures); Gertz v. Robert Welch, Inc. (imposing some limits on
liability for defaming a private figure); speech integral to criminal conduct, see, e.g., Giboney v. Empire
Storage & Ice Co. (1949); so-called "fighting words," see Chaplinsky v. New Hampshire (1942); child
pornography, see New York v. Ferber (1982); fraud, see Virginia Bd. of Pharmacy v. Virginia Citizens
Consumer Council, Inc., (1976); true threats, see Watts v. United States (1969) (per curiam); and
speech presenting some grave and imminent threat the government has the power to prevent, see
Near v. Minnesota ex rel. Olson (1931), although a restriction under the last category is most difficult
to sustain, see New York Times Co. v. United States (1971) (per curiam). These categories have a
historical foundation in the Court's free speech tradition. The vast realm of free speech and thought
always protected in our tradition can still thrive, and even be furthered, by adherence to those
categories and rules.
Absent from those few categories where the law allows content-based regulation of speech is any
general exception to the First Amendment for false statements. This comports with the common
understanding that some false statements are inevitable if there is to be an open and vigorous
expression of views in public and private conversation, expression the First Amendment seeks to
guarantee. See Sullivan v. New York Times ("Th[e] erroneous statement is inevitable in free debate").
The Government disagrees with this proposition. It cites language from some of this Court's
precedents to support its contention that false statements have no value and hence no First
Amendment protection. These isolated statements in some earlier decisions do not support the
Government's submission that false statements, as a general rule, are beyond constitutional
protection. That conclusion would take the quoted language far from its proper context. For instance,
the Court has stated "[f]alse statements of fact are particularly valueless [because] they interfere
with the truth-seeking function of the marketplace of ideas," Hustler Magazine, Inc. v. Falwell (1988),
and that false statements "are not protected by the First Amendment in the same manner as truthful
statements," Brown v. Hartlage (1982). See also, e.g., Virginia Bd. of Pharmacy ("Untruthful speech,
commercial or otherwise, has never been protected for its own sake"); Herbert v. Lando (1979)
("Spreading false information in and of itself carries no First Amendment credentials"); Gertz,
("[T]here is no constitutional value in false statements of fact"); Garrison v. Louisiana (1964) ("[T]he
knowingly false statement and the false statement made with reckless disregard of the truth, do not
enjoy constitutional protection").
These quotations all derive from cases discussing defamation, fraud, or some other legally cognizable
harm associated with a false statement, such as an invasion of privacy or the costs of vexatious
litigation. In those decisions the falsity of the speech at issue was not irrelevant to our analysis, but
neither was it determinative. The Court has never endorsed the categorical rule the Government
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advances: that false statements receive no First Amendment protection. Our prior decisions have not
confronted a measure, like the Stolen Valor Act, that targets falsity and nothing more.
Even when considering some instances of defamation and fraud, moreover, the Court has been
careful to instruct that falsity alone may not suffice to bring the speech outside the First Amendment.
The statement must be a knowing or reckless falsehood.
The Government thus seeks to use this principle for a new purpose. It seeks to convert a rule that
limits liability even in defamation cases where the law permits recovery for tortious wrongs into a
rule that expands liability in a different, far greater realm of discourse and expression. That inverts
the rationale for the exception. The requirements of a knowing falsehood or reckless disregard for
the truth as the condition for recovery in certain defamation cases exists to allow more speech, not
less. A rule designed to tolerate certain speech ought not blossom to become a rationale for a rule
restricting it.
The Government then gives three examples of regulations on false speech that courts generally have
found permissible: first, the criminal prohibition of a false statement made to a Government official,
18 U. S. C. §1001; second, laws punishing perjury; and third, prohibitions on the false representation
that one is speaking as a Government official or on behalf of the Government, see, e.g., §912; §709.
These restrictions, however, do not establish a principle that all proscriptions of false statements are
exempt from exacting First Amendment scrutiny.
The federal statute prohibiting false statements to Government officials punishes "whoever, in any
matter within the jurisdiction of the executive, legislative, or judicial branch of the Government . . .
makes any materially false, fictitious, or fraudulent statement or representation." §1001. Section
1001's prohibition on false statements made to Government officials, in communications concerning
official matters, does not lead to the broader proposition that false statements are unprotected when
made to any person, at any time, in any context.
The same point can be made about what the Court has confirmed is the "unquestioned
constitutionality of perjury statutes," both the federal statute, §1623, and its state-law equivalents. It
is not simply because perjured statements are false that they lack First Amendment protection.
Perjured testimony "is at war with justice" because it can cause a court to render a "judgment not
resting on truth. Perjury undermines the function and province of the law and threatens the integrity
of judgments that are the basis of the legal system. Unlike speech in other contexts, testimony under
oath has the formality and gravity necessary to remind the witness that his or her statements will be
the basis for official governmental action, action that often affects the rights and liberties of others.
Sworn testimony is quite distinct from lies not spoken under oath and simply intended to puff up
oneself.
Statutes that prohibit falsely representing that one is speaking on behalf of the Government, or that
prohibit impersonating a Government officer, also protect the integrity of Government processes,
quite apart from merely restricting false speech. Title 18 U. S. C. §912, for example, prohibits
impersonating an officer or employee of the United States. Even if that statute may not require
proving an "actual financial or property loss" resulting from the deception, the statute is itself
confined to "maintain[ing] the general good repute and dignity of . . . government . . . service itself."
The same can be said for prohibitions on the unauthorized use of the names of federal agencies such
as the Federal Bureau of Investigation in a manner calculated to convey that the communication is
approved, see §709, or using words such as "Federal" or "United States" in the collection of private
debts in order to convey that the communication has official authorization. These examples, to the
extent that they implicate fraud or speech integral to criminal conduct, are inapplicable here.
As our law and tradition show, then, there are instances in which the falsity of speech bears upon
whether it is protected. Some false speech may be prohibited even if analogous true speech could not
be. This opinion does not imply that any of these targeted prohibitions are somehow vulnerable. But
it also rejects the notion that false speech should be in a general category that is presumptively
unprotected.

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Although the First Amendment stands against any "freewheeling authority to declare new categories
of speech outside the scope of the First Amendment," Stevens, the Court has acknowledged that
perhaps there exist "some categories of speech that have been historically unprotected . . . but have
not yet been specifically identified or discussed . . . in our case law." Before exempting a category of
speech from the normal prohibition on content-based restrictions, however, the Court must be
presented with "persuasive evidence that a novel restriction on content is part of a long (if heretofore
unrecognized) tradition of proscription," Brown v. Entertainment Merchants Assn. (2011). The
Government has not demonstrated that false statements generally should constitute a new category
of unprotected speech on this basis.
III
The probable, and adverse, effect of the Act on freedom of expression illustrates, in a fundamental
way, the reasons for the Law's distrust of content-based speech prohibitions.
The Act by its plain terms applies to a false statement made at any time, in any place, to any person. It
can be assumed that it would not apply to, say, a theatrical performance. Still, the sweeping, quite
unprecedented reach of the statute puts it in conflict with the First Amendment. Here the lie was
made in a public meeting, but the statute would apply with equal force to personal, whispered
conversations within a home. The statute seeks to control and suppress all false statements on this
one subject in almost limitless times and settings. And it does so entirely without regard to whether
the lie was made for the purpose of material gain.
Permitting the government to decree this speech to be a criminal offense, whether shouted from the
rooftops or made in a barely audible whisper, would endorse government authority to compile a list
of subjects about which false statements are punishable. That governmental power has no clear
limiting principle. Our constitutional tradition stands against the idea that we need Oceania's
Ministry of Truth. See G. ORWELL, NINETEEN EIGHTY-FOUR (1949) (Centennial ed. 2003). Were this law
to be sustained, there could be an endless list of subjects the National Government or the States could
single out. Where false claims are made to effect a fraud or secure moneys or other valuable
considerations, say offers of employment, it is well established that the Government may restrict
speech without affronting the First Amendment. See, e.g., Virginia Bd. of Pharmacy (noting that
fraudulent speech generally falls outside the protections of the First Amendment). But the Stolen
Valor Act is not so limited in its reach. Were the Court to hold that the interest in truthful discourse
alone is sufficient to sustain a ban on speech, absent any evidence that the speech was used to gain a
material advantage, it would give government a broad censorial power unprecedented in this Court's
cases or in our constitutional tradition. The mere potential for the exercise of that power casts a chill,
a chill the First Amendment cannot permit if free speech, thought, and discourse are to remain a
foundation of our freedom.
IV
The previous discussion suffices to show that the Act conflicts with free speech principles. But even
when examined within its own narrow sphere of operation, the Act cannot survive. In assessing
content-based restrictions on protected speech, the Court has not adopted a free-wheeling approach,
but rather has applied the "most exacting scrutiny." Although the objectives the Government seeks to
further by the statute are not without significance, the Court must, and now does, find the Act does
not satisfy exacting scrutiny.
The Government is correct when it states military medals "serve the important public function of
recognizing and expressing gratitude for acts of heroism and sacrifice in military service," and also "
'foste[r] morale, mission accomplishment and esprit de corps' among service members." General
George Washington observed that an award for valor would "cherish a virtuous ambition in . . .
soldiers, as well as foster and encourage every species of military merit." Time has not diminished
this idea. In periods of war and peace alike public recognition of valor and noble sacrifice by men and
women in uniform reinforces the pride and national resolve that the military relies upon to fulfill its
mission.

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These interests are related to the integrity of the military honors system in general, and the
Congressional Medal of Honor in particular. Although millions have served with brave resolve, the
Medal, which is the highest military award for valor against an enemy force, has been given just
3,476 times. Established in 1861, the Medal is reserved for those who have distinguished themselves
"conspicuously by gallantry and intrepidity at the risk of his life above and beyond the call of duty." *
* * The Government's interest in protecting the integrity of the Medal of Honor is beyond question.
But to recite the Government's compelling interests is not to end the matter. The First Amendment
requires that the Government's chosen restriction on the speech at issue be "actually necessary" to
achieve its interest. There must be a direct causal link between the restriction imposed and the injury
to be prevented. The link between the Government's interest in protecting the integrity of the
military honors system and the Act's restriction on the false claims of liars like respondent has not
been shown. Although appearing to concede that "an isolated misrepresentation by itself would not
tarnish the meaning of military honors," the Government asserts it is "common sense that false
representations have the tendency to dilute the value and meaning of military awards." It must be
acknowledged that when a pretender claims the Medal to be his own, the lie might harm the
Government by demeaning the high purpose of the award, diminishing the honor it confirms, and
creating the appearance that the Medal is awarded more often than is true. Furthermore, the lie may
offend the true holders of the Medal. From one perspective it insults their bravery and high
principles when falsehood puts them in the unworthy company of a pretender.
Yet these interests do not satisfy the Government's heavy burden when it seeks to regulate protected
speech. The Government points to no evidence to support its claim that the public's general
perception of military awards is diluted by false claims such as those made by Alvarez. As one of the
Government's amici notes "there is nothing that charlatans such as Xavier Alvarez can do to stain [the
Medal winners'] honor." Brief for Veterans of Foreign Wars of the United States et al. as Amici Curiae
1. This general proposition is sound, even if true holders of the Medal might experience anger and
frustration.
The lack of a causal link between the Government's stated interest and the Act is not the only way in
which the Act is not actually necessary to achieve the Government's stated interest. The Government
has not shown, and cannot show, why counterspeech would not suffice to achieve its interest. The
facts of this case indicate that the dynamics of free speech, of counterspeech, of refutation, can
overcome the lie. Respondent lied at a public meeting. Even before the FBI began investigating him
for his false statements "Alvarez was perceived as a phony." Once the lie was made public, he was
ridiculed online, his actions were reported in the press, and a fellow board member called for his
resignation. There is good reason to believe that a similar fate would befall other false claimants. See
Brief for Reporters Committee for Freedom of the Press et al. as Amici Curiae 30-33 (listing
numerous examples of public exposure of false claimants). Indeed, the outrage and contempt
expressed for respondent's lies can serve to reawaken and reinforce the public's respect for the
Medal, its recipients, and its high purpose. The acclaim that recipients of the Congressional Medal of
Honor receive also casts doubt on the proposition that the public will be misled by the claims of
charlatans or become cynical of those whose heroic deeds earned them the Medal by right.
The remedy for speech that is false is speech that is true. This is the ordinary course in a free society.
The response to the unreasoned is the rational; to the uninformed, the enlightened; to the straightout lie, the simple truth. See Whitney v. California (1927) (Brandeis, J., concurring) ("If there be time
to expose through discussion the falsehood and fallacies, to avert the evil by the processes of
education, the remedy to be applied is more speech, not enforced silence"). The theory of our
Constitution is "that the best test of truth is the power of the thought to get itself accepted in the
competition of the market," Abrams v. United States (1919) (Holmes, J., dissenting). The First
Amendment itself ensures the right to respond to speech we do not like, and for good reason.
Freedom of speech and thought flows not from the beneficence of the state but from the inalienable
rights of the person. And suppression of speech by the government can make exposure of falsity
more difficult, not less so. Society has the right and civic duty to engage in open, dynamic, rational
discourse. These ends are not well served when the government seeks to orchestrate public
discussion through content-based mandates.
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Expressing its concern that counterspeech is insufficient, the Government responds that because
"some military records have been lost . . . some claims [are] un-verifiable." This proves little,
however; for without verifiable records, successful criminal prosecution under the Act would be
more difficult in any event. So, in cases where public refutation will not serve the Government's
interest, the Act will not either. In addition, the Government claims that "many [false claims] will
remain unchallenged." The Government provides no support for the contention. And in any event, in
order to show that public refutation is not an adequate alternative, the Government must
demonstrate that unchallenged claims undermine the public's perception of the military and the
integrity of its awards system. This showing has not been made.
It is a fair assumption that any true holders of the Medal who had heard of Alvarez's false claims
would have been fully vindicated by the community's expression of outrage, showing as it did the
Nation's high regard for the Medal. The same can be said for the Government's interest. The
American people do not need the assistance of a government prosecution to express their high
regard for the special place that military heroes hold in our tradition. Only a weak society needs
government protection or intervention before it pursues its resolve to preserve the truth. Truth
needs neither handcuffs nor a badge for its vindication.
In addition, when the Government seeks to regulate protected speech, the restriction must be the
"least restrictive means among available, effective alternatives." There is, however, at least one less
speech-restrictive means by which the Government could likely protect the integrity of the military
awards system. A Government-created database could list Congressional Medal of Honor winners.
Were a database accessible through the Internet, it would be easy to verify and expose false claims. It
appears some private individuals have already created databases similar to this, and at least one
database of past winners is online and fully searchable, see Congressional Medal of Honor Society,
Full Archive, http://www.cmohs.org/recipient-archive.php. The Solicitor General responds that
although Congress and the Department of Defense investigated the feasibility of establishing a
database in 2008, the Government "concluded that such a database would be impracticable and
insufficiently comprehensive." Without more explanation, it is difficult to assess the Government's
claim, especially when at least one database of Congressional Medal of Honor winners already exists.
The Government may have responses to some of these criticisms, but there has been no clear
showing of the necessity of the statute, the necessity required by exacting scrutiny.
The Nation well knows that one of the costs of the First Amendment is that it protects the speech we
detest as well as the speech we embrace. Though few might find respondent's statements anything
but contemptible, his right to make those statements is protected by the Constitution's guarantee of
freedom of speech and expression. The Stolen Valor Act infringes upon speech protected by the First
Amendment.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE BREYER, WITH WHOM JUSTICE KAGAN JOINS, CONCURRING IN THE JUDGMENT.
I agree with the plurality that the Stolen Valor Act of 2005 violates the First Amendment. But I do not
rest my conclusion upon a strict categorical analysis. Rather, I base that conclusion upon the fact that
the statute works First Amendment harm, while the Government can achieve its legitimate objectives
in less restrictive ways. * * *
JUSTICE ALITO, WITH WHOM JUSTICE SCALIA AND JUSTICE THOMAS JOIN, DISSENTING.
Only the bravest of the brave are awarded the Congressional Medal of Honor, but the Court today
holds that every American has a constitutional right to claim to have received this singular award.
The Court strikes down the Stolen Valor Act of 2005, which was enacted to stem an epidemic of false
claims about military decorations. These lies, Congress reasonably concluded, were undermining our
country's system of military honors and inflicting real harm on actual medal recipients and their
families.
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Building on earlier efforts to protect the military awards system, Congress responded to this problem
by crafting a narrow statute that presents no threat to the freedom of speech. The statute reaches
only knowingly false statements about hard facts directly within a speaker's personal knowledge.
These lies have no value in and of themselves, and proscribing them does not chill any valuable
speech.
By holding that the First Amendment nevertheless shields these lies, the Court breaks sharply from a
long line of cases recognizing that the right to free speech does not protect false factual statements
that inflict real harm and serve no legitimate interest. I would adhere to that principle and would
thus uphold the constitutionality of this valuable law.
I
* * * Congress long ago made it a federal offense for anyone to wear, manufacture, or sell certain
military decorations without authorization. See Act of Feb. 24, 1923, ch. 110, 42 Stat. 1286 (codified
as amended at 18 U. S. C. §704(a)). Although this Court has never opined on the constitutionality of
that particular provision, we have said that §702, which makes it a crime to wear a United States
military uniform without authorization, is "a valid statute on its face." Schacht v. United States (1970).
Congress passed the Stolen Valor Act in response to a proliferation of false claims concerning the
receipt of military awards. For example, in a single year, more than 600 Virginia residents falsely
claimed to have won the Medal of Honor. An investigation of the 333 people listed in the online
edition of Who's Who as having received a top military award revealed that fully a third of the claims
could not be substantiated. When the Library of Congress compiled oral histories for its Veterans
History Project, 24 of the 49 individuals who identified themselves as Medal of Honor recipients had
not actually received that award. The same was true of 32 individuals who claimed to have been
awarded the Distinguished Service Cross and 14 who claimed to have won the Navy Cross. Notorious
cases brought to Congress' attention included the case of a judge who falsely claimed to have been
awarded two Medals of Honor and displayed counterfeit medals in his courtroom; a television
network's military consultant who falsely claimed that he had received the Silver Star; and a former
judge advocate in the Marine Corps who lied about receiving the Bronze Star and a Purple Heart.
As Congress recognized, the lies proscribed by the Stolen Valor Act inflict substantial harm. In many
instances, the harm is tangible in nature: Individuals often falsely represent themselves as award
recipients in order to obtain financial or other material rewards, such as lucrative contracts and
government benefits. An investigation of false claims in a single region of the United States, for
example, revealed that 12 men had defrauded the Department of Veterans Affairs out of more than
$1.4 million in veteran's benefits. In other cases, the harm is less tangible, but nonetheless significant.
The lies proscribed by the Stolen Valor Act tend to debase the distinctive honor of military awards.
And legitimate award recipients and their families have expressed the harm they endure when an
imposter takes credit for heroic actions that he never performed. One Medal of Honor recipient
described the feeling as a " 'slap in the face of veterans who have paid the price and earned their
medals.' "
It is well recognized in trademark law that the proliferation of cheap imitations of luxury goods blurs
the " 'signal' given out by the purchasers of the originals." In much the same way, the proliferation of
false claims about military awards blurs the signal given out by the actual awards by making them
seem more common than they really are, and this diluting effect harms the military by hampering its
efforts to foster morale and esprit de corps. Surely it was reasonable for Congress to conclude that
the goal of preserving the integrity of our country's top military honors is at least as worthy as that of
protecting the prestige associated with fancy watches and designer handbags. Cf. San Francisco Arts
& Athletics, Inc. v. United States Olympic Comm., 483 U. S. 522, 539-541 (1987) (rejecting First
Amendment challenge to law prohibiting certain unauthorized uses of the word "Olympic" and
recognizing that such uses harm the U. S. Olympic Committee by "lessening the distinctiveness" of the
term).
Both the plurality and Justice Breyer argue that Congress could have preserved the integrity of
military honors by means other than a criminal prohibition, but Congress had ample reason to
believe that alternative approaches would not be adequate. The chief alternative that is
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recommended is the compilation and release of a comprehensive list or database of actual medal
recipients. If the public could readily access such a resource, it is argued, imposters would be quickly
and easily exposed, and the proliferation of lies about military honors would come to an end.
This remedy, unfortunately, will not work. The Department of Defense has explained that the most
that it can do is to create a database of recipients of certain top military honors awarded since 2001.
Because a sufficiently comprehensive database is not practicable, lies about military awards cannot
be remedied by what the plurality calls "counterspeech." Without the requisite database, many
efforts to refute false claims may be thwarted, and some legitimate award recipients may be
erroneously attacked. In addition, a steady stream of stories in the media about the exposure of
imposters would tend to increase skepticism among members of the public about the entire awards
system. This would only exacerbate the harm that the Stolen Valor Act is meant to prevent.
The plurality and the concurrence also suggest that Congress could protect the system of military
honors by enacting a narrower statute. The plurality recommends a law that would apply only to lies
that are intended to "secure moneys or other valuable considerations." In a similar vein, the
concurrence comments that "a more finely tailored statute might . . . insist upon a showing that the
false statement caused specific harm." (opinion of Breyer, J.). But much damage is caused, both to real
award recipients and to the system of military honors, by false statements that are not linked to any
financial or other tangible reward. Unless even a small financial loss--say, a dollar given to a
homeless man falsely claiming to be a decorated veteran--is more important in the eyes of the First
Amendment than the damage caused to the very integrity of the military awards system, there is no
basis for distinguishing between the Stolen Valor Act and the alternative statutes that the plurality
and concurrence appear willing to sustain.
II
A
Time and again, this Court has recognized that as a general matter false factual statements possess no
intrinsic First Amendment value.* * *
Respondent and others who join him in attacking the Stolen Valor Act take a different view.
Respondent's brief features a veritable paean to lying. According to respondent, his lie about the
Medal of Honor was nothing out of the ordinary for 21st-century Americans. "Everyone lies," he says.
"We lie all the time." "[H]uman beings are constantly forced to choose the persona we present to the
world, and our choices nearly always involve intentional omissions and misrepresentations, if not
outright deception." An academic amicus tells us that the First Amendment protects the right to
construct "self-aggrandizing fabrications such as having been awarded a military decoration."
This radical interpretation of the First Amendment is not supported by any precedent of this Court.
The lies covered by the Stolen Valor Act have no intrinsic value and thus merit no First Amendment
protection unless their prohibition would chill other expression that falls within the Amendment's
scope. I now turn to that question.
B
While we have repeatedly endorsed the principle that false statements of fact do not merit First
Amendment protection for their own sake, we have recognized that it is sometimes necessary to
"exten[d] a measure of strategic protection" to these statements in order to ensure sufficient "
'breathing space' " for protected speech. Gertz. Thus, in order to prevent the chilling of truthful
speech on matters of public concern, we have held that liability for the defamation of a public official
or figure requires proof that defamatory statements were made with knowledge or reckless
disregard of their falsity. This same requirement applies when public officials and figures seek to
recover for the tort of intentional infliction of emotional distress. See Falwell. * * *
[T]here are broad areas in which any attempt by the state to penalize purportedly false speech would
present a grave and unacceptable danger of suppressing truthful speech. Laws restricting false
statements about philosophy, religion, history, the social sciences, the arts, and other matters of
public concern would present such a threat. The point is not that there is no such thing as truth or
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falsity in these areas or that the truth is always impossible to ascertain, but rather that it is perilous
to permit the state to be the arbiter of truth.
Even where there is a wide scholarly consensus concerning a particular matter, the truth is served by
allowing that consensus to be challenged without fear of reprisal. Today's accepted wisdom
sometimes turns out to be mistaken. And in these contexts, "[e]ven a false statement may be deemed
to make a valuable contribution to public debate, since it brings about 'the clearer perception and
livelier impression of truth, produced by its collision with error.' " Sullivan (quoting J. MILL, ON
LIBERTY 15 (R. McCallum ed. 1947)).
Allowing the state to proscribe false statements in these areas also opens the door for the state to use
its power for political ends. Statements about history illustrate this point. If some false statements
about historical events may be banned, how certain must it be that a statement is false before the ban
may be upheld? And who should make that calculation? While our cases prohibiting viewpoint
discrimination would fetter the state's power to some degree, see R. A. V. v. St. Paul (1992)
(explaining that the First Amendment does not permit the government to engage in viewpoint
discrimination under the guise of regulating unprotected speech), the potential for abuse of power in
these areas is simply too great.
In stark contrast to hypothetical laws prohibiting false statements about history, science, and similar
matters, the Stolen Valor Act presents no risk at all that valuable speech will be suppressed. The
speech punished by the Act is not only verifiably false and entirely lacking in intrinsic value, but it
also fails to serve any instrumental purpose that the First Amendment might protect. Tellingly, when
asked at oral argument what truthful speech the Stolen Valor Act might chill, even respondent's
counsel conceded that the answer is none.
C
* * * Neither of the two opinions endorsed by Justices in the majority claims that the false statements
covered by the Stolen Valor Act possess either intrinsic or instrumental value. Instead, those opinions
appear to be based on the distinct concern that the Act suffers from overbreadth.
The Stolen Valor Act is a narrow law enacted to address an important problem, and it presents no
threat to freedom of expression. I would sustain the constitutionality of the Act, and I therefore
respectfully dissent.

Notes
1.
Schacht v. United States is a rare explicit viewpoint discrimination case. The statute clearly
allowed wearing the uniform in a theatrical production if it flattered the military and not if the
portray was unflattering. Is there a way in which the Stolen Valor Act at issue in United States v.
Alvarez might be analyzed as viewpoint discrimination?
2.
In June 2013, President Obama signed the Stolen Valor Act of 2013 into law. Congress
amended the law to include the type of “fraud” provision suggested in the plurality and concurring
opinions. The law now subjects to criminal penalties whoever “with intent to obtain money,
property, or other tangible benefit, fraudulently holds oneself out to be a recipient of a decoration or
medal.” Pub.L. 113–12; 18 U.S.C. §704.
Additionally, there is now a government database listing military awards, http://valor.defense.gov/.
(There are also a number of nongovernmental websites).
Do these developments undermine the arguments advanced in the dissenting opinion in Alvarez?
3. Considering the cases in the first two chapters, can you develop a structure to analyze a free
speech issue under the First Amendment? You might envision this as a flow chart, but it might be
easier at first to simply posit a series of issues. Assuming there is state action, what would the first
question be? What would the next questions be?

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Chapter Four: THE SPECIAL (OR NOT)
STATUS OF THE PRESS
This chapter considers interpretations of the “free press” clause of the First Amendment: “Congress
shall make no law . . . abridging the freedom of speech, or of the press; . . . .” An essential query is
whether infringements on “the press” are analyzed in a different manner than infringements on
“freedom of speech.” Or, as some argue, has “press” been subsumed into “speech” for purposes of
First Amendment doctrine? Consider whether or not the Court’s rhetoric, reasoning, and conclusions
are consistent with the textual inclusion of “press” in the First Amendment.

I.

Prior Restraint

The notion of “censorship” is most akin to the doctrine of prior restraint, which as the term implies, is
when the government acts to prevent speech before it can occur. In the context of the press, this is a
pre-publication injunction or criminalization rather than post-publication damages.
The preeminent case involving prior restraint is New York Times v. United States (1971), often known
as The Pentagon Papers Case. The earlier case of Near v. Minnesota (1931) is a landmark case setting
out the principles.

Near v. Minnesota
283 U.S. 697 (1931)
CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT, JOINED BY HOLMES, BRANDEIS, STONE, AND
ROBERTS, J.J. JUSTICE BUTLER ISSUED A DISSENTING OPINION JOINED BY VAN DEVANTER, MCREYNOLDS, AND
SUTHERLAND, J.J.
CHIEF JUSTICE HUGHES DELIVERED THE OPINION OF THE COURT.
Chapter 285 of the Session Laws of Minnesota for the year 1925 provides for the abatement, as a
public nuisance, of a 'malicious, scandalous and defamatory newspaper, magazine or other
periodical.' Section 1 of the act is as follows:
'Section 1. Any person who, as an individual, or as a member or employee of a firm, or association or
organization, or as an officer, director, member or employee of a corporation, shall be engaged in the
business of regularly or customarily producing, publishing or circulating, having in possession, selling
or giving away.
'(a) an obscene, lewd and lascivious newspaper, magazine, or other periodical, or
'(b) a malicious, scandalous and defamatory newspaper, magazine or other periodical,
-is guilty of a nuisance, and all persons guilty of such nuisance may be enjoined, as hereinafter
provided.

Section 2 provides that, whenever any such nuisance is committed or exists, the county attorney * * *
the Attorney General, or, upon like failure or refusal of the latter, any citizen of the county, may
maintain an action in the district court of the county in the name of the state to enjoin perpetually the
persons committing or maintaining any such nuisance from further committing or maintaining it. * *
*
[In this case] the county attorney of Hennepin county brought this action to enjoin the publication of
what was described as a 'malicious, scandalous and defamatory newspaper, magazine or other
periodical,' known as “The Saturday Press” published by the defendants in the city of Minneapolis. * *
* Without attempting to summarize the contents of the voluminous exhibits attached to the
complaint, we deem it sufficient to say that the articles charged, in substance, that a Jewish gangster
was in control of gambling, bootlegging, and racketeering in Minneapolis, and that law enforcing
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officers and agencies were not energetically performing their duties. Most of the charges were
directed against the chief of police; he was charged with gross neglect of duty, illicit relations with
gangsters, and with participation in graft. The county attorney was charged with knowing the
existing conditions and with failure to take adequate measures to remedy them. The mayor was
accused of inefficiency and dereliction. One member of the grand jury was stated to be in sympathy
with the gangsters. A special grand jury and a special prosecutor were demanded to deal with the
situation in general, and, in particular, to investigate an attempt to assassinate one Guilford, one of
the original defendants, who, it appears from the articles, was shot by gangsters after the first issue
of the periodical had been published. There is no question but that the articles made serious
accusations against the public officers named and others in connection with the prevalence of crimes
and the failure to expose and punish them.
[A state district court found against the defendant, Jay Near, the publisher of “The Saturday Press”]
and found that the defendants through these publications “did engage in the business of regularly
and customarily producing, publishing and circulating a malicious, scandalous and defamatory
newspaper,” and that “the said publication” “under said name of The Saturday Press, or any other
name, constitutes a public nuisance under the laws of the State.” Judgment was thereupon entered
adjudging that “the newspaper, magazine and periodical known as The Saturday Press,” as a public
nuisance, “be and is hereby abated.” The judgment perpetually enjoined the defendants “from
producing, editing, publishing, circulating, having in their possession, selling or giving away any
publication whatsoever which is a malicious, scandalous or defamatory newspaper, as defined by
law,” and also “from further conducting said nuisance under the name and title of said The Saturday
Press or any other name or title.” * * * [Near appealed to the Minnesota Supreme Court which
affirmed].
This statute, for the suppression as a public nuisance of a newspaper or periodical, is unusual, if not
unique, and raises questions of grave importance transcending the local interests involved in the
particular action. It is no longer open to doubt that the liberty of the press and of speech is within the
liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state
action. * * * Liberty, in each of its phases, has its history and connotation, and, in the present instance,
the inquiry is as to the historic conception of the liberty of the press and whether the statute under
review violates the essential attributes of that liberty.
* * * It is thus important to note precisely the purpose and effect of the statute as the state court has
construed it.
First. The statute is not aimed at the redress of individual or private wrongs. Remedies for libel
remain available and unaffected. * * *
Second. The statute is directed not simply at the circulation of scandalous and defamatory statements
with regard to private citizens, but at the continued publication by newspapers and periodical of
charges against public officers of corruption, malfeasance in office, or serious neglect of duty.* * *
Third. The object of the statute is not punishment, in the ordinary sense, but suppression of the
offending newspaper or periodical.* * *
Fourth. The statute not only operates to suppress the offending newspaper or periodical, but to put
the publisher under an effective censorship. When a newspaper or periodical is found to be
“malicious, scandalous and defamatory,” and is suppressed as such, resumption of publication is
punishable as a contempt of court by fine or imprisonment. * * *
If we cut through mere details of procedure, the operation and effect of the statute in substance is
that public authorities may bring the owner or publisher of a newspaper or periodical before a judge
upon a charge of conducting a business of publishing scandalous and defamatory matter- - - in
particular that the matter consists of charges against public officers of official dereliction- - - and,
unless the owner or publisher is able and disposed to bring competent evidence to satisfy the judge
that the charges are true and are published with good motives and for justifiable ends, his newspaper
or periodical is suppressed and further publication is made punishable as a contempt. This is of the
essence of censorship.
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The question is whether a statute authorizing such proceedings in restraint of publication is
consistent with the conception of the liberty of the press as historically conceived and guaranteed. In
determining the extent of the constitutional protection, it has been generally, if not universally,
considered that it is the chief purpose of the guaranty to prevent previous restraints upon
publication. The struggle in England, directed against the legislative power of the licenser, resulted in
renunciation of the censorship of the press. The liberty deemed to be established was thus described
by Blackstone: 'The liberty of the press is indeed essential to the nature of a free state; but this
consists in laying no previous restraints upon publications, and not in freedom from censure for
criminal matter when published. Every freeman has an undoubted right to lay what sentiments he
pleases before the public; to forbid this, is to destroy the freedom of the press; but if he publishes
what is improper, mischievous or illegal, he must take the consequence of his own temerity.' 4 Bl.
Com. 151, 152. See Story on the Constitution, 1884, 1889. The distinction was early pointed out
between the extent of the freedom with respect to censorship under our constitutional system and
that enjoyed in England. Here, as Madison said, 'the great and essential rights of the people are
secured against legislative as well as against executive ambition. They are secured, not by laws
paramount to prerogative, but by constitutions paramount to laws. This security of the freedom of
the press requires that it should be exempt not only from previous restraint by the Executive, as in
Great Britain, but from legislative restraint also.' REPORT ON THE VIRGINIA RESOLUTIONS, MADISON'S
WORKS, vol. IV, p. 543. This Court said, in Patterson v. Colorado (1907) : 'In the first place, the main
purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications
as had been practiced by other governments,' and they do not prevent the subsequent punishment of
such as may be deemed contrary to the public welfare. The preliminary freedom extends as well to
the false as to the true; the subsequent punishment may extend as well to the true as to the false. This
was the law of criminal libel apart from statute in most cases, if not in all.
* * * The objection has also been made that the principle as to immunity from previous restraint is
stated too broadly, if every such restraint is deemed to be prohibited. That is undoubtedly true; the
protection even as to previous restraint is not absolutely unlimited. But the limitation has been
recognized only in exceptional cases. “When a nation is at war many things that might be said in time
of peace are such a hindrance to its effort that their utterance will not be endured so long as men
fight and that no Court could regard them as protected by any constitutional right.” Schenck v. United
States (1919). No one would question but that a government might prevent actual obstruction to its
recruiting service or the publication of the sailing dates of transports or the number and location of
troops. On similar grounds, the primary requirements of decency may be enforced against obscene
publications. The security of the community life may be protected against incitements to acts of
violence and the overthrow by force of orderly government. The constitutional guaranty of free
speech does not “protect a man from an injunction against uttering words that may have all the effect
of force.” These limitations are not applicable here. * * *
The exceptional nature of its limitations places in a strong light the general conception that liberty of
the press, historically considered and taken up by the Federal Constitution, has meant, principally
although not exclusively, immunity from previous restraints or censorship. The conception of the
liberty of the press in this country had broadened with the exigencies of the colonial period and with
the efforts to secure freedom from oppressive administration. That liberty was especially cherished
for the immunity it afforded from previous restraint of the publication of censure of public officers
and charges of official misconduct. * * * Madison, who was the leading spirit in the preparation of the
First Amendment of the Federal Constitution, thus described the practice and sentiment which led to
the guaranties of liberty of the press in State Constitutions:
“In every State, probable, in the Union, the press has exerted a freedom in canvassing the merits and
measures of public men of every description which has not been confined to the strict limits of the
common law. On this footing the freedom of the press has stood; on this footing it yet stands. ... Some
degree of abuse is inseparable from the proper use of everything, and in no instance is this more true
than in that of the press. It has accordingly been decided by the practice of the States, that it is better to
leave a few of its noxious branches to their luxuriant growth, than, by pruning them away, to injure the
vigour of those yielding the proper fruits. And can the wisdom of this policy be doubted by any who
reflect that to the press alone, chequered as it is with abuses, the world is indebted for all the triumphs
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which have been gained by reason and humanity over error and oppression; who reflect that to the
same beneficent source the United States owe much of the lights which conducted them to the ranks of
a free and independent nation, and which have improved their political system into a shape so
auspicious to their happiness? Had ‘Sedition Acts,’ forbidding every publication that might bring the
constituted agents into contempt or disrepute, or that might excite the hatred of the people against the
authors of unjust or pernicious measures, been uniformly enforced against the press, might not the
United States have been languishing at this day under the infirmities of a sickly Confederation? Might
they not, possibly, be miserable colonies, groaning under a foreign yoke?”

The fact that for approximately one hundred and fifty years there has been almost an entire absence
of attempts to impose previous restraints upon publications relating to the malfeasance of public
officers is significant of the deep-seated conviction that such restraints would violate constitutional
right. * * * The general principle that the constitutional guaranty of the liberty of the press gives
immunity from previous restraints has been approved in many decisions under the provisions of
state constitutions.
The statute in question cannot be justified by reason of the fact that the publisher is permitted to
show, before injunction issues, that the matter published is true and is published with good motives
and for justifiable ends. If such a statute, authorizing suppression and injunction on such a basis, is
constitutionally valid, it would be equally permissible for the Legislature to provide that at any time
the publisher of any newspaper could be brought before a court, or even an administrative officer (as
the constitutional protection may not be regarded as resting on mere procedural details), and
required to produce proof of the truth of his publication, or of what he intended to publish and of his
motives, or stand enjoined. If this can be done, the Legislature may provide machinery for
determining in the complete exercise of its discretion what are justifiable ends and restrain
publication accordingly. And it would be but a step to a complete system of censorship. * * *
* * * For these reasons we hold the statute, so far as it authorized the proceedings in this action under
clause (b)of section 1, to be an infringement of the liberty of the press guaranteed by the Fourteenth
Amendment. We should add that this decision rests upon the operation and effect of the statute,
without regard to the question of the truth of the charges contained in the particular periodical. The
fact that the public officers named in this case, and those associated with the charges of official
dereliction, may be deemed to be impeccable, cannot affect the conclusion that the statute imposes
an unconstitutional restraint upon publication.
Judgment reversed.
DISSENTING OPINION BY BUTLER, J. JOINED BY VAN DEVANTER, MCREYNOLDS, AND SUTHERLAND, J.J., [OMITTED].

New York Times Co. v. United States
403 U.S. 713 (1971)
PER CURIAM
We granted certiorari in these cases in which the United States seeks to enjoin the New York Times
and the Washington Post from publishing the contents of a classified study entitled “History of U.S.
Decision-Making Process on Viet Nam Policy.” [“The Pentagon Papers”]
“Any system of prior restraints of expression comes to this Court bearing a heavy presumption
against its constitutional validity.” The Government “thus carries a heavy burden of showing
justification for the imposition of such a restraint.” The District Court for the Southern District of New
York in the New York Times case and the District Court for the District of Columbia and the Court of
Appeals for the District of Columbia Circuit in the Washington Post case held that the Government
had not met that burden. We agree.
* * * The stays entered June 25, 1971, by the Court are vacated. The judgments shall issue forthwith.
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MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING.
I adhere to the view that the Government's case against the Washington Post should have been
dismissed and that the injunction against the New York Times should have been vacated without oral
argument when the cases were first presented to this Court. I believe that every moment's
continuance of the injunctions against these newspapers amounts to a flagrant, indefensible, and
continuing violation of the First Amendment. * * * In my view it is unfortunate that some of my
Brethren are apparently willing to hold that the publication of news may sometimes be enjoined.
Such a holding would make a shambles of the First Amendment.
Our Government was launched in 1789 with the adoption of the Constitution. The Bill of Rights,
including the First Amendment, followed in 1791. Now, for the first time in the 182 years since the
founding of the Republic, the federal courts are asked to hold that the First Amendment does not
mean what it says, but rather means that the Government can halt the publication of current news of
vital importance to the people of this country.
In seeking injunctions against these newspapers and in its presentation to the Court, the Executive
Branch seems to have forgotten the essential purpose and history of the First Amendment.* * *
In other words, we are asked to hold that despite the First Amendment's emphatic command, the
Executive Branch, the Congress, and the Judiciary can make laws enjoining publication of current
news and abridging freedom of the press in the name of “national security.” The Government does
not even attempt to rely on any act of Congress. Instead it makes the bold and dangerously farreaching contention that the courts should take it upon themselves to “make” a law abridging
freedom of the press in the name of equity, presidential power and national security, even when the
representatives of the people in Congress have adhered to the command of the First Amendment and
refused to make such a law.* * *
The word “security” is a broad, vague generality whose contours should not be invoked to abrogate
the fundamental law embodied in the First Amendment. The guarding of military and diplomatic
secrets at the expense of informed representative government provides no real security for our
Republic. The Framers of the First Amendment, fully aware of both the need to defend a new nation
and the abuses of the English and Colonial governments, sought to give this new society strength and
security by providing that freedom of speech, press, religion, and assembly should not be abridged.
MR. JUSTICE DOUGLAS, WITH WHOM MR. JUSTICE BLACK JOINS, CONCURRING.
* * * The dominant purpose of the First Amendment was to prohibit the widespread practice of
governmental suppression of embarrassing information. It is common knowledge that the First
Amendment was adopted against the widespread use of the common law of seditious libel to punish
the dissemination of material that is embarrassing to the powers-that-be. The present cases will, I
think, go down in history as the most dramatic illustration of that principle. A debate of large
proportions goes on in the Nation over our posture in Vietnam. That debate antedated the disclosure
of the contents of the present documents. The latter are highly relevant to the debate in progress.
Secrecy in government is fundamentally anti-democratic, perpetuating bureaucratic errors. Open
debate and discussion of public issues are vital to our national health. On public questions there
should be "uninhibited, robust, and wide-open" debate. New York Times Co. v. Sullivan (1964).
The stays in these cases that have been in effect for more than a week constitute a flouting of the
principles of the First Amendment as interpreted in Near v. Minnesota (1931).
MR. JUSTICE BRENNAN, CONCURRING.
* * * The error that has pervaded these cases from the outset was the granting of any injunctive relief
whatsoever, interim or otherwise. The entire thrust of the Government's claim throughout these
cases has been that publication of the material sought to be enjoined "could," or "might," or "may"
prejudice the national interest in various ways. But the First Amendment tolerates absolutely no
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prior judicial restraints of the press predicated upon surmise or conjecture that untoward
consequences may result. Our cases, it is true, have indicated that there is a single, extremely narrow
class of cases in which the First Amendment's ban on prior judicial restraint may be overridden. Our
cases have thus far indicated that such cases may arise only when the Nation "is at war," Schenck v.
United States (1919), during which times "[n]o one would question but that a government might
prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports
or the number and location of troops." Near v. Minnesota (1931). Even if the present world situation
were assumed to be tantamount to a time of war, or if the power of presently available armaments
would justify even in peacetime the suppression of information that would set in motion a nuclear
holocaust, in neither of these actions has the Government presented or even alleged that publication
of items from or based upon the material at issue would cause the happening of an event of that
nature. "[T]he chief purpose of [the First Amendment's] guaranty [is] to prevent previous restraints
upon publication." Near v. Minnesota. Thus, only governmental allegation and proof that publication
must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the
safety of a transport already at sea can support even the issuance of an interim restraining order. In
no event may mere conclusions be sufficient: for if the Executive Branch seeks judicial aid in
preventing publication, it must inevitably submit the basis upon which that aid is sought to scrutiny
by the judiciary. And therefore, every restraint issued in this case, whatever its form, has violated the
First Amendment - and not less so because that restraint was justified as necessary to afford the
courts an opportunity to examine the claim more thoroughly. Unless and until the Government has
clearly made out its case, the First Amendment commands that no injunction may issue.
MR. JUSTICE WHITE, WITH WHOM MR. JUSTICE STEWART JOINS, CONCURRING.
I concur in today's judgments, but only because of the concededly extraordinary protection against
prior restraints enjoyed by the press under our constitutional system. I do not say that in no
circumstances would the First Amendment permit an injunction against publishing information
about government plans or operations. Nor, after examining the materials the Government
characterizes as the most sensitive and destructive, can I deny that revelation of these documents
will do substantial damage to public interests. Indeed, I am confident that their disclosure will have
that result. But I nevertheless agree that the United States has not satisfied the very heavy burden
that it must meet to warrant an injunction against publication in these cases, at least in the absence
of express and appropriately limited congressional authorization for prior restraints in
circumstances such as these.
The Government's position is simply stated: The responsibility of the Executive for the conduct of the
foreign affairs and for the security of the Nation is so basic that the President is entitled to an
injunction against publication of a newspaper story whenever he can convince a court that the
information to be revealed threatens "grave and irreparable" injury to the public interest; and the
injunction should issue whether or not the material to be published is classified, whether or not
publication would be lawful under relevant criminal statutes enacted by Congress, and regardless of
the circumstances by which the newspaper came into possession of the information.
[The remainder of Justice White’s concurring opinion, like the concurring opinion of Justice Stewart,
joined by Justice White, and the concurring opinion of Justice Marshall discuss the separation of
powers issues rather than the First Amendment issues.]
MR. CHIEF JUSTICE BURGER, DISSENTING.
So clear are the constitutional limitations on prior restraint against expression, that from the time of
Near v. Minnesota (1931) * * * we have had little occasion to be concerned with cases involving prior
restraints against news reporting on matters of public interest. There is, therefore, little variation
among the members of the Court in terms of resistance to prior restraints against publication.
Adherence to this basic constitutional principle, however, does not make these cases simple. In these
cases, the imperative of a free and unfettered press comes into collision with another imperative, the
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effective functioning of a complex modern government and specifically the effective exercise of
certain constitutional powers of the Executive. Only those who view the First Amendment as an
absolute in all circumstances - a view I respect, but reject - can find such cases as these to be simple
or easy.
These cases are not simple for another and more immediate reason. We do not know the facts of the
cases. No District Judge knew all the facts. No Court of Appeals judge knew all the facts. No member
of this Court knows all the facts.
* * * It is not disputed that the Times has had unauthorized possession of the documents for three to
four months, during which it has had its expert analysts studying them, presumably digesting them
and preparing the material for publication. During all of this time, the Times, presumably in its
capacity as trustee of the public's "right to know," has held up publication for purposes it considered
proper and thus public knowledge was delayed. No doubt this was for a good reason; the analysis of
7,000 pages of complex material drawn from a vastly greater volume of material would inevitably
take time and the writing of good news stories takes time. But why should the United States
Government, from whom this information was illegally acquired by someone, along with all the
counsel, trial judges, and appellate judges be placed under needless pressure? After these months of
deferral, the alleged "right to know" has somehow and suddenly become a right that must be
vindicated instanter.
[The dissenting opinions of Justice Harlan and of Justice Blackmun are omitted.]

Notes
1.
In their respective dissenting opinions in New York Times v. United States, both Justice Harlan
(joined by Chief Justice Burger and Justice Blackmun) and Justice Blackmun quote a passage from
Justice Oliver Wendell Holmes:
Great cases like hard cases make bad law. For great cases are called great, not by reason of their real
importance in shaping the law of the future, but because of some accident of immediate overwhelming
interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a
kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which
even well settled principles of law will bend.

Northern Securities Co. v. United States, 193 U.S. 197, 400-401 (1904). Holmes was dissenting in a
closely divided case that did not involve the First Amendment but a monopoly.
Is New York Times v. United States still a “great” case, as even the dissenters seemed to think? Has the
“immediate interest” of the case faded? Is its status as a high-water mark of First Amendment
recognition for the press an “accident”?
2.
Reconsider the role of Justice Holmes, previously discussed in a note in light of the fact that
Justice Holmes proved popular with the dissenting Justices in New York Times v. United States. In
addition to the “great cases” make “bad law” quote above, two dissenting opinions specifically
invoked Justice Holmes’ writing in Schenck v. United States (1919). (While Justice Brennan also
quotes Schenck, he does not use Holmes’ name).
Justice Blackmun’s individual dissenting opinion states that “Mr. Justice Holmes gave us a suggestion”
of “situations where restraint is in order and is constitutional” by writing in Schenck:
When a nation is at war many things that might be said in time of peace are such a hindrance to its
effort that their utterance will not be endured so long as men fight and that no Court could regard them
as protected by any constitutional right.

Chief Justice Burger’s dissenting opinion invoked Holmes and alluded to Schenck without specific
citation:
Of course, the First Amendment right itself is not an absolute, as Justice Holmes so long ago pointed out
in his aphorism concerning the right to shout “fire” in a crowded theater if there was no fire.

Would the Holmes of Abrams v. United States (1919) have agreed with the dissenters?

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3.
The doctrine of “prior restraint” is not limited to the press, but appears in speech cases as
well. The doctrine of prior restraint when it involves the press need not involve the government (as
in New York Times) or government officials (as in Near); the next section includes “prior restraint”
cases as well as “punishment” (damages) cases. Consider whether prior restraint is always more of
an infringement than punishment.

II. The Press as Guardian of the Public’s Right to
Know?

The Court has struggled to balance the freedom of the press against rights of criminal defendants and
civil litigants, as well as considering whether the press should have a right of access to information or
should be protected in its news-gathering activities.

A.

The Press v. Criminal Defendants

Consider how the balance between press access and the rights of criminal defendants is crafted and
what tools trial judges have at their disposal to balance the rights.

Sheppard v. Maxwell
384 U.S. 333 (1966)
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT [JUSTICE BLACK DISSENTED WITHOUT OPINION].
This federal habeas corpus application involves the question whether Sheppard was deprived of a
fair trial in his state conviction for the second-degree murder of his wife because of the trial judge's
failure to protect Sheppard sufficiently from the massive, pervasive and prejudicial publicity that
attended his prosecution. The United States District Court held that he was not afforded a fair trial * *
* The Court of Appeals for the Sixth Circuit reversed by a divided vote. We granted certiorari. We
have concluded that Sheppard did not receive a fair trial consistent with the Due Process Clause of
the Fourteenth Amendment and, therefore, reverse the judgment.
I.
Marilyn Sheppard, petitioner's pregnant wife, was bludgeoned to death in the upstairs bedroom of
their lakeshore home in Bay Village, Ohio, a suburb of Cleveland. * * * [on July 4, 1954].
From the outset officials focused suspicion on [Dr. Sam] Sheppard. After a search of the house and
premises on the morning of the tragedy, Dr. Gerber, the Coroner, is reported - and it is undenied - to
have told his men, "Well, it is evident the doctor did this, so let's go get the confession out of him." * *
* Until the Coroner's inquest on July 22, at which time he was subpoenaed, Sheppard made himself
available for frequent and extended questioning without the presence of an attorney.
On July 7, the day of Marilyn Sheppard's funeral, a newspaper story appeared in which Assistant
County Attorney Mahon - later the chief prosecutor of Sheppard - sharply criticized the refusal of the
Sheppard family to permit his immediate questioning. From there on headline stories repeatedly
stressed Sheppard's lack of cooperation with the police and other officials. Under the headline
"Testify Now In Death, Bay Doctor Is Ordered," one story described a visit by Coroner Gerber and
four police officers to the hospital on July 8. When Sheppard insisted that his lawyer be present, the
Coroner wrote out a subpoena and served it on him. Sheppard then agreed to submit to questioning
without counsel and the subpoena was torn up. The officers questioned him for several hours. On
July 9, Sheppard, at the request of the Coroner, re-enacted the tragedy at his home before the
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Coroner, police officers, and a group of newsmen, who apparently were invited by the Coroner. The
home was locked so that Sheppard was obliged to wait outside until the Coroner arrived. Sheppard's
performance was reported in detail by the news media along with photographs. The newspapers also
played up Sheppard's refusal to take a lie detector test and "the protective ring" thrown up by his
family. Front-page newspaper headlines announced on the same day that "Doctor Balks At Lie Test;
Retells Story." A column opposite that story contained an "exclusive" interview with Sheppard
headlined: "`Loved My Wife, She Loved Me,' Sheppard Tells News Reporter." The next day, another
headline story disclosed that Sheppard had "again late yesterday refused to take a lie detector test"
and quoted an Assistant County Attorney as saying that "at the end of a nine-hour questioning of Dr.
Sheppard, I felt he was now ruling [a test] out completely." But subsequent newspaper articles
reported that the Coroner was still pushing Sheppard for a lie detector test. More stories appeared
when Sheppard would not allow authorities to inject him with "truth serum."
On the 20th, the "editorial artillery" opened fire with a front-page charge that somebody is "getting
away with murder." The editorial attributed the ineptness of the investigation to "friendships,
relationships, hired lawyers, a husband who ought to have been subjected instantly to the same
third-degree to which any other person under similar circumstances is subjected . . . ." The following
day, July 21, another page-one editorial was headed: "Why No Inquest? Do It Now, Dr. Gerber." The
Coroner called an inquest the same day and subpoenaed Sheppard. It was staged the next day in a
school gymnasium; the Coroner presided with the County Prosecutor as his advisor and two
detectives as bailiffs. In the front of the room was a long table occupied by reporters, television and
radio personnel, and broadcasting equipment. The hearing was broadcast with live microphones
placed at the Coroner's seat and the witness stand. A swarm of reporters and photographers
attended. Sheppard was brought into the room by police who searched him in full view of several
hundred spectators. Sheppard's counsel were present during the three-day inquest but were not
permitted to participate. When Sheppard's chief counsel attempted to place some documents in the
record, he was forcibly ejected from the room by the Coroner, who received cheers, hugs, and kisses
from ladies in the audience. Sheppard was questioned for five and one-half hours about his actions
on the night of the murder, his married life, and a love affair with Susan Hayes. At the end of the
hearing the Coroner announced that he "could" order Sheppard held for the grand jury, but did not
do so.
Throughout this period the newspapers emphasized evidence that tended to incriminate Sheppard
and pointed out discrepancies in his statements to authorities. At the same time, Sheppard made
many public statements to the press and wrote feature articles asserting his innocence. During the
inquest on July 26, a headline in large type stated: "Kerr [Captain of the Cleveland Police] Urges
Sheppard's Arrest." In the story, Detective McArthur "disclosed that scientific tests at the Sheppard
home have definitely established that the killer washed off a trail of blood from the murder bedroom
to the downstairs section," a circumstance casting doubt on Sheppard's accounts of the murder. No
such evidence was produced at trial. The newspapers also delved into Sheppard's personal life.
Articles stressed his extramarital love affairs as a motive for the crime. The newspapers portrayed
Sheppard as a Lothario, fully explored his relationship with Susan Hayes, and named a number of
other women who were allegedly involved with him. The testimony at trial never showed that
Sheppard had any illicit relationships besides the one with Susan Hayes.
On July 28, an editorial entitled "Why Don't Police Quiz Top Suspect" demanded that Sheppard be
taken to police headquarters. It described him in the following language:
"Now proved under oath to be a liar, still free to go about his business, shielded by his family, protected
by a smart lawyer who has made monkeys of the police and authorities, carrying a gun part of the time,
left free to do whatever he pleases . . . ."

A front-page editorial on July 30 asked: "Why Isn't Sam Sheppard in Jail?" It was later titled "Quit
Stalling - Bring Him In." After calling Sheppard "the most unusual murder suspect ever seen around
these parts" the article said that "[e]xcept for some superficial questioning during Coroner Sam
Gerber's inquest he has been scot-free of any official grilling . . . ." It asserted that he was "surrounded
by an iron curtain of protection [and] concealment."

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That night at 10 o'clock Sheppard was arrested at his father's home on a charge of murder. He was
taken to the Bay Village City Hall where hundreds of people, newscasters, photographers and
reporters were awaiting his arrival. He was immediately arraigned - having been denied a temporary
delay to secure the presence of counsel - and bound over to the grand jury.
The publicity then grew in intensity until his indictment on August 17. Typical of the coverage during
this period is a front-page interview entitled: "DR. SAM: `I Wish There Was Something I Could Get Off
My Chest - but There Isn't.'" Unfavorable publicity included items such as a cartoon of the body of a
sphinx with Sheppard's head and the legend below: " ‘I Will Do Everything In My Power to Help Solve
This Terrible Murder.’ - Dr. Sam Sheppard." Headlines announced, inter alia, that: "Doctor Evidence is
Ready for Jury," "Corrigan Tactics Stall Quizzing," "Sheppard ‘Gay Set’ Is Revealed By Houk," "Blood Is
Found In Garage," "New Murder Evidence Is Found, Police Claim," "Dr. Sam Faces Quiz At Jail On
Marilyn's Fear Of Him." On August 18, an article appeared under the headline "Dr. Sam Writes His
Own Story." And reproduced across the entire front page was a portion of the typed statement signed
by Sheppard: "I am not guilty of the murder of my wife, Marilyn. How could I, who have been trained
to help people and devoted my life to saving life, commit such a terrible and revolting crime?" We do
not detail the coverage further. There are five volumes filled with similar clippings from each of the
three Cleveland newspapers covering the period from the murder until Sheppard's conviction in
December 1954. The record includes no excerpts from newscasts on radio and television but since
space was reserved in the courtroom for these media we assume that their coverage was equally
large.
II.
With this background the case came on for trial two weeks before the November general election at
which the chief prosecutor was a candidate for common pleas judge and the trial judge, Judge Blythin,
was a candidate to succeed himself. Twenty-five days before the case was set, 75 veniremen were
called as prospective jurors. All three Cleveland newspapers published the names and addresses of
the veniremen. As a consequence, anonymous letters and telephone calls, as well as calls from friends,
regarding the impending prosecution were received by all of the prospective jurors. The selection of
the jury began on October 18, 1954.
The courtroom in which the trial was held measured 26 by 48 feet. A long temporary table was set up
inside the bar, in back of the single counsel table. It ran the width of the courtroom, parallel to the bar
railing, with one end less than three feet from the jury box. Approximately 20 representatives of
newspapers and wire services were assigned seats at this table by the court. Behind the bar railing
there were four rows of benches. These seats were likewise assigned by the court for the entire trial.
The first row was occupied by representatives of television and radio stations, and the second and
third rows by reporters from out-of-town newspapers and magazines. One side of the last row, which
accommodated 14 people, was assigned to Sheppard's family and the other to Marilyn's. The public
was permitted to fill vacancies in this row on special passes only. Representatives of the news media
also used all the rooms on the courtroom floor, including the room where cases were ordinarily
called and assigned for trial. Private telephone lines and telegraphic equipment were installed in
these rooms so that reports from the trial could be speeded to the papers. Station WSRS was
permitted to set up broadcasting facilities on the third floor of the courthouse next door to the jury
room, where the jury rested during recesses in the trial and deliberated. Newscasts were made from
this room throughout the trial, and while the jury reached its verdict.
On the sidewalk and steps in front of the courthouse, television and newsreel cameras were
occasionally used to take motion pictures of the participants in the trial, including the jury and the
judge. Indeed, one television broadcast carried a staged interview of the judge as he entered the
courthouse. In the corridors outside the courtroom there was a host of photographers and television
personnel with flash cameras, portable lights and motion picture cameras. This group photographed
the prospective jurors during selection of the jury. After the trial opened, the witnesses, counsel, and
jurors were photographed and televised whenever they entered or left the courtroom. Sheppard was
brought to the courtroom about 10 minutes before each session began; he was surrounded by
reporters and extensively photographed for the newspapers and television. A rule of court prohibited
picture-taking in the courtroom during the actual sessions of the court, but no restraints were put on
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photographers during recesses, which were taken once each morning and afternoon, with a longer
period for lunch.
All of these arrangements with the news media and their massive coverage of the trial continued
during the entire nine weeks of the trial. The courtroom remained crowded to capacity with
representatives of news media. Their movement in and out of the courtroom often caused so much
confusion that, despite the loud-speaker system installed in the courtroom, it was difficult for the
witnesses and counsel to be heard. Furthermore, the reporters clustered within the bar of the small
courtroom made confidential talk among Sheppard and his counsel almost impossible during the
proceedings. They frequently had to leave the courtroom to obtain privacy. And many times when
counsel wished to raise a point with the judge out of the hearing of the jury it was necessary to move
to the judge's chambers. Even then, news media representatives so packed the judge's anteroom that
counsel could hardly return from the chambers to the courtroom. The reporters vied with each other
to find out what counsel and the judge had discussed, and often these matters later appeared in
newspapers accessible to the jury.
The daily record of the proceedings was made available to the newspapers and the testimony of each
witness was printed verbatim in the local editions, along with objections of counsel, and rulings by
the judge. Pictures of Sheppard, the judge, counsel, pertinent witnesses, and the jury often
accompanied the daily newspaper and television accounts. At times the newspapers published
photographs of exhibits introduced at the trial, and the rooms of Sheppard's house were featured
along with relevant testimony.
The jurors themselves were constantly exposed to the news media. Every juror, except one, testified
at voir dire to reading about the case in the Cleveland papers or to having heard broadcasts about it.
Seven of the 12 jurors who rendered the verdict had one or more Cleveland papers delivered in their
home; the remaining jurors were not interrogated on the point. Nor were there questions as to radios
or television sets in the jurors' homes, but we must assume that most of them owned such
conveniences. As the selection of the jury progressed, individual pictures of prospective members
appeared daily. During the trial, pictures of the jury appeared over 40 times in the Cleveland papers
alone. The court permitted photographers to take pictures of the jury in the box, and individual
pictures of the members in the jury room. One newspaper ran pictures of the jurors at the Sheppard
home when they went there to view the scene of the murder. Another paper featured the home life of
an alternate juror. The day before the verdict was rendered - while the jurors were at lunch and
sequestered by two bailiffs - the jury was separated into two groups to pose for photographs which
appeared in the newspapers.
III.
We now reach the conduct of the trial. While the intense publicity continued unabated, it is sufficient
to relate only the more flagrant episodes:
1. On October 9, 1954, nine days before the case went to trial, an editorial in one of the newspapers
criticized defense counsel's random poll of people on the streets as to their opinion of Sheppard's
guilt or innocence in an effort to use the resulting statistics to show the necessity for change of venue.
The article said the survey "smacks of mass jury tampering," called on defense counsel to drop it, and
stated that the bar association should do something about it. It characterized the poll as "non-judicial,
non-legal, and nonsense." The article was called to the attention of the court but no action was taken.
2. On the second day of voir dire examination a debate was staged and broadcast live over WHK radio.
The participants, newspaper reporters, accused Sheppard's counsel of throwing roadblocks in the
way of the prosecution and asserted that Sheppard conceded his guilt by hiring a prominent criminal
lawyer. Sheppard's counsel objected to this broadcast and requested a continuance, but the judge
denied the motion. When counsel asked the court to give some protection from such events, the
judge replied that "WHK doesn't have much coverage," and that "[a]fter all, we are not trying this
case by radio or in newspapers or any other means. We confine ourselves seriously to it in this
courtroom and do the very best we can."

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3. While the jury was being selected, a two-inch headline asked: "But Who Will Speak for Marilyn?"
The front-page story spoke of the "perfect face" of the accused. "Study that face as long as you want.
Never will you get from it a hint of what might be the answer . . . ." The two brothers of the accused
were described as "Prosperous, poised. His two sisters-in law. Smart, chic, well-groomed. His elderly
father. Courtly, reserved. A perfect type for the patriarch of a staunch clan." The author then noted
Marilyn Sheppard was "still off stage," and that she was an only child whose mother died when she
was very young and whose father had no interest in the case. But the author - through quotes from
Detective Chief James McArthur - assured readers that the prosecution's exhibits would speak for
Marilyn. "Her story," McArthur stated, "will come into this courtroom through our witnesses." The
article ends:
"Then you realize how what and who is missing from the perfect setting will be supplied.
"How in the Big Case justice will be done.
"Justice to Sam Sheppard.
"And to Marilyn Sheppard."

4. As has been mentioned, the jury viewed the scene of the murder on the first day of the trial.
Hundreds of reporters, cameramen and onlookers were there, and one representative of the news
media was permitted to accompany the jury while it inspected the Sheppard home. The time of the
jury's visit was revealed so far in advance that one of the newspapers was able to rent a helicopter
and fly over the house taking pictures of the jurors on their tour.
5. On November 19, a Cleveland police officer gave testimony that tended to contradict details in the
written statement Sheppard made to the Cleveland police. Two days later, in a broadcast heard over
Station WHK in Cleveland, Robert Considine likened Sheppard to a perjurer and compared the
episode to Alger Hiss' confrontation with Whittaker Chambers. Though defense counsel asked the
judge to question the jury to ascertain how many heard the broadcast, the court refused to do so. The
judge also overruled the motion for continuance based on the same ground, saying:
"Well, I don't know, we can't stop people, in any event, listening to it. It is a matter of free speech, and
the court can't control everybody. . . . We are not going to harass the jury every morning. . . . It is getting
to the point where if we do it every morning, we are suspecting the jury. I have confidence in this
jury . . . ."

6. On November 24, a story appeared under an eight-column headline: "Sam Called A `Jekyll-Hyde' By
Marilyn, Cousin To Testify." It related that Marilyn had recently told friends that Sheppard was a "Dr.
Jekyll and Mr. Hyde" character. No such testimony was ever produced at the trial. The story went on
to announce: "The prosecution has a `bombshell witness' on tap who will testify to Dr. Sam's display
of fiery temper - countering the defense claim that the defendant is a gentle physician with an even
disposition." Defense counsel made motions for change of venue, continuance and mistrial, but they
were denied. No action was taken by the court.
7. When the trial was in its seventh week, Walter Winchell broadcast over WXEL television and WJW
radio that Carole Beasley, who was under arrest in New York City for robbery, had stated that, as
Sheppard's mistress, she had borne him a child. The defense asked that the jury be queried on the
broadcast. Two jurors admitted in open court that they had heard it. The judge asked each: "Would
that have any effect upon your judgment?" Both replied, "No." This was accepted by the judge as
sufficient; he merely asked the jury to "pay no attention whatever to that type of scavenging. . . . Let's
confine ourselves to this courtroom, if you please." In answer to the motion for mistrial, the judge
said:
"Well, even, so, Mr. Corrigan, how are you ever going to prevent those things, in any event? I don't
justify them at all. I think it is outrageous, but in a sense, it is outrageous even if there were no trial
here. The trial has nothing to do with it in the Court's mind, as far as its outrage is concerned, but "Mr. CORRIGAN: I don't know what effect it had on the mind of any of these jurors, and I can't find out
unless inquiry is made.
"The COURT: How would you ever, in any jury, avoid that kind of a thing?"

8. On December 9, while Sheppard was on the witness stand he testified that he had been mistreated
by Cleveland detectives after his arrest. Although he was not at the trial, Captain Kerr of the Homicide
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Bureau issued a press statement denying Sheppard's allegations which appeared under the headline:
" ‘Bare-faced Liar’ Kerr Says of Sam." Captain Kerr never appeared as a witness at the trial.
9. After the case was submitted to the jury, it was sequestered for its deliberations, which took five
days and four nights. After the verdict, defense counsel ascertained that the jurors had been allowed
to make telephone calls to their homes every day while they were sequestered at the hotel. Although
the telephones had been removed from the jurors' rooms, the jurors were permitted to use the
phones in the bailiffs' rooms. The calls were placed by the jurors themselves; no record was kept of
the jurors who made calls, the telephone numbers or the parties called. The bailiffs sat in the room
where they could hear only the jurors' end of the conversation. The court had not instructed the
bailiffs to prevent such calls. By a subsequent motion, defense counsel urged that this ground alone
warranted a new trial, but the motion was overruled and no evidence was taken on the question.
IV.
The principle that justice cannot survive behind walls of silence has long been reflected in the "AngloAmerican distrust for secret trials." A responsible press has always been regarded as the handmaiden
of effective judicial administration, especially in the criminal field. Its function in this regard is
documented by an impressive record of service over several centuries. The press does not simply
publish information about trials but guards against the miscarriage of justice by subjecting the police,
prosecutors, and judicial processes to extensive public scrutiny and criticism. This Court has,
therefore, been unwilling to place any direct limitations on the freedom traditionally exercised by the
news media for "[w]hat transpires in the court room is public property." The "unqualified
prohibitions laid down by the framers were intended to give to liberty of the press . . . the broadest
scope that could be countenanced in an orderly society." Bridges v. California (1941). And where
there was "no threat or menace to the integrity of the trial," we have consistently required that the
press have a free hand, even though we sometimes deplored its sensationalism.
But the Court has also pointed out that "[l]egal trials are not like elections, to be won through the use
of the meeting-hall, the radio, and the newspaper." Bridges v. California. And the Court has insisted
that no one be punished for a crime without "a charge fairly made and fairly tried in a public tribunal
free of prejudice, passion, excitement, and tyrannical power." "Freedom of discussion should be given
the widest range compatible with the essential requirement of the fair and orderly administration of
justice." But it must not be allowed to divert the trial from the "very purpose of a court system . . . to
adjudicate controversies, both criminal and civil, in the calmness and solemnity of the courtroom
according to legal procedures." Among these "legal procedures" is the requirement that the jury's
verdict be based on evidence received in open court, not from outside sources. * * *
Moreover, "the burden of showing essential unfairness . . . as a demonstrable reality," need not be
undertaken when television has exposed the community "repeatedly and in depth to the spectacle of
[the accused] personally confessing in detail to the crimes with which he was later to be charged." In
Turner v. Louisiana (1965), two key witnesses were deputy sheriffs who doubled as jury shepherds
during the trial. The deputies swore that they had not talked to the jurors about the case, but the
Court nonetheless held that,
"even if it could be assumed that the deputies never did discuss the case directly with any members of
the jury, it would be blinking reality not to recognize the extreme prejudice inherent in this continual
association . . . ."

Only last Term in Estes v. Texas (1965), we set aside a conviction despite the absence of any showing
of prejudice. We said there:
"It is true that in most cases involving claims of due process deprivations we require a showing of
identifiable prejudice to the accused. Nevertheless, at times a procedure employed by the State
involves such a probability that prejudice will result that it is deemed inherently lacking in due
process." * * *

V.
It is clear that the totality of circumstances in this case also warrants such an approach. Unlike Estes,
Sheppard was not granted a change of venue to a locale away from where the publicity originated;
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nor was his jury sequestered. The Estes jury saw none of the television broadcasts from the
courtroom. On the contrary, the Sheppard jurors were subjected to newspaper, radio and television
coverage of the trial while not taking part in the proceedings. They were allowed to go their separate
ways outside of the courtroom, without adequate directions not to read or listen to anything
concerning the case. The judge's "admonitions" at the beginning of the trial are representative:
"I would suggest to you and caution you that you do not read any newspapers during the progress of
this trial, that you do not listen to radio comments nor watch or listen to television comments, insofar
as this case is concerned. You will feel very much better as the trial proceeds . . . . I am sure that we
shall all feel very much better if we do not indulge in any newspaper reading or listening to any
comments whatever about the matter while the case is in progress. After it is all over, you can read it
all to your heart's content . . . ."

At intervals during the trial, the judge simply repeated his "suggestions" and "requests" that the
jurors not expose themselves to comment upon the case. Moreover, the jurors were thrust into the
role of celebrities by the judge's failure to insulate them from reporters and photographers. The
numerous pictures of the jurors, with their addresses, which appeared in the newspapers before and
during the trial itself exposed them to expressions of opinion from both cranks and friends. The fact
that anonymous letters had been received by prospective jurors should have made the judge aware
that this publicity seriously threatened the jurors' privacy.
The press coverage of the Estes trial was not nearly as massive and pervasive as the attention given
by the Cleveland newspapers and broadcasting stations to Sheppard's prosecution. Sheppard stood
indicted for the murder of his wife; the State was demanding the death penalty. For months the
virulent publicity about Sheppard and the murder had made the case notorious. Charges and
countercharges were aired in the news media besides those for which Sheppard was called to trial. In
addition, only three months before trial, Sheppard was examined for more than five hours without
counsel during a three-day inquest which ended in a public brawl. The inquest was televised live
from a high school gymnasium seating hundreds of people. Furthermore, the trial began two weeks
before a hotly contested election at which both Chief Prosecutor Mahon and Judge Blythin were
candidates for judgeships.
While we cannot say that Sheppard was denied due process by the judge's refusal to take precautions
against the influence of pretrial publicity alone, the court's later rulings must be considered against
the setting in which the trial was held. In light of this background, we believe that the arrangements
made by the judge with the news media caused Sheppard to be deprived of that “judicial serenity and
calm to which [he] was entitled.” The fact is that bedlam reigned at the courthouse during the trial
and newsmen took over practically the entire courtroom, hounding most of the participants in the
trial, especially Sheppard. At a temporary table within a few feet of the jury box and counsel table sat
some 20 reporters staring at Sheppard and taking notes. The erection of a press table for reporters
inside the bar is unprecedented. The bar of the court is reserved for counsel, providing them a safe
place in which to keep papers and exhibits, and to confer privately with client and co-counsel. It is
designed to protect the witness and the jury from any distractions, intrusions or influences, and to
permit bench discussions of the judge's rulings away from the hearing of the public and the jury.
Having assigned almost all of the available seats in the courtroom to the news media the judge lost
his ability to supervise that environment. The movement of the reporters in and out of the courtroom
caused frequent confusion and disruption of the trial. And the record reveals constant commotion
within the bar. Moreover, the judge gave the throng of newsmen gathered in the corridors of the
courthouse absolute free rein. Participants in the trial, including the jury, were forced to run a gantlet
of reporters and photographers each time they entered or left the courtroom. The total lack of
consideration for the privacy of the jury was demonstrated by the assignment to a broadcasting
station of space next to the jury room on the floor above the courtroom, as well as the fact that jurors
were allowed to make telephone calls during their five-day deliberation.
VI.
There can be no question about the nature of the publicity which surrounded Sheppard's trial. We
agree, as did the Court of Appeals, with the findings in Judge Bell's opinion for the Ohio Supreme
Court:
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"Murder and mystery, society, sex and suspense were combined in this case in such a manner as to
intrigue and captivate the public fancy to a degree perhaps unparalleled in recent annals. Throughout
the preindictment investigation, the subsequent legal skirmishes and the nine-week trial, circulationconscious editors catered to the insatiable interest of the American public in the bizarre. . . . In this
atmosphere of a ‘Roman holiday’ for the news media, Sam Sheppard stood trial for his life."

Indeed, every court that has considered this case, save the court that tried it, has deplored the
manner in which the news media inflamed and prejudiced the public.
Much of the material printed or broadcast during the trial was never heard from the witness stand,
such as the charges that Sheppard had purposely impeded the murder investigation and must be
guilty since he had hired a prominent criminal lawyer; that Sheppard was a perjurer; that he had
sexual relations with numerous women; that his slain wife had characterized him as a "Jekyll-Hyde";
that he was "a bare-faced liar" because of his testimony as to police treatment; and, finally, that a
woman convict claimed Sheppard to be the father of her illegitimate child. As the trial progressed, the
newspapers summarized and interpreted the evidence, devoting particular attention to the material
that incriminated Sheppard, and often drew unwarranted inferences from testimony. At one point, a
front-page picture of Mrs. Sheppard's blood-stained pillow was published after being "doctored" to
show more clearly an alleged imprint of a surgical instrument.
Nor is there doubt that this deluge of publicity reached at least some of the jury. On the only occasion
that the jury was queried, two jurors admitted in open court to hearing the highly inflammatory
charge that a prison inmate claimed Sheppard as the father of her illegitimate child. Despite the
extent and nature of the publicity to which the jury was exposed during trial, the judge refused
defense counsel's other requests that the jurors be asked whether they had read or heard specific
prejudicial comment about the case, including the incidents we have previously summarized. In these
circumstances, we can assume that some of this material reached members of the jury.
VII.
The court's fundamental error is compounded by the holding that it lacked power to control the
publicity about the trial. From the very inception of the proceedings the judge announced that
neither he nor anyone else could restrict prejudicial news accounts. And he reiterated this view on
numerous occasions. Since he viewed the news media as his target, the judge never considered other
means that are often utilized to reduce the appearance of prejudicial material and to protect the jury
from outside influence. We conclude that these procedures would have been sufficient to guarantee
Sheppard a fair trial and so do not consider what sanctions might be available against a recalcitrant
press nor the charges of bias now made against the state trial judge.
The carnival atmosphere at trial could easily have been avoided since the courtroom and courthouse
premises are subject to the control of the court. As we stressed in Estes, the presence of the press at
judicial proceedings must be limited when it is apparent that the accused might otherwise be
prejudiced or disadvantaged. Bearing in mind the massive pretrial publicity, the judge should have
adopted stricter rules governing the use of the courtroom by newsmen, as Sheppard's counsel
requested. The number of reporters in the courtroom itself could have been limited at the first sign
that their presence would disrupt the trial. They certainly should not have been placed inside the bar.
Furthermore, the judge should have more closely regulated the conduct of newsmen in the
courtroom. For instance, the judge belatedly asked them not to handle and photograph trial exhibits
lying on the counsel table during recesses.
Secondly, the court should have insulated the witnesses. All of the newspapers and radio stations
apparently interviewed prospective witnesses at will, and in many instances disclosed their
testimony. A typical example was the publication of numerous statements by Susan Hayes, before her
appearance in court, regarding her love affair with Sheppard. Although the witnesses were barred
from the courtroom during the trial the full verbatim testimony was available to them in the press.
This completely nullified the judge's imposition of the rule.
Thirdly, the court should have made some effort to control the release of leads, information, and
gossip to the press by police officers, witnesses, and the counsel for both sides. Much of the
information thus disclosed was inaccurate, leading to groundless rumors and confusion. That the
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judge was aware of his responsibility in this respect may be seen from his warning to Steve Sheppard,
the accused's brother, who had apparently made public statements in an attempt to discredit
testimony for the prosecution. * * *
Defense counsel immediately brought to the court's attention the tremendous amount of publicity in
the Cleveland press that "misrepresented entirely the testimony" in the case. Under such
circumstances, the judge should have at least warned the newspapers to check the accuracy of their
accounts. And it is obvious that the judge should have further sought to alleviate this problem by
imposing control over the statements made to the news media by counsel, witnesses, and especially
the Coroner and police officers. The prosecution repeatedly made evidence available to the news
media which was never offered in the trial. Much of the "evidence" disseminated in this fashion was
clearly inadmissible. The exclusion of such evidence in court is rendered meaningless when news
media make it available to the public. For example, the publicity about Sheppard's refusal to take a lie
detector test came directly from police officers and the Coroner. The story that Sheppard had been
called a "Jekyll-Hyde" personality by his wife was attributed to a prosecution witness. No such
testimony was given. The further report that there was "a `bombshell witness' on tap" who would
testify as to Sheppard's "fiery temper" could only have emanated from the prosecution. Moreover,
the newspapers described in detail clues that had been found by the police, but not put into the
record.
The fact that many of the prejudicial news items can be traced to the prosecution, as well as the
defense, aggravates the judge's failure to take any action. Effective control of these sources concededly within the court's power - might well have prevented the divulgence of inaccurate
information, rumors, and accusations that made up much of the inflammatory publicity, at least after
Sheppard's indictment.
More specifically, the trial court might well have proscribed extrajudicial statements by any lawyer,
party, witness, or court official which divulged prejudicial matters, such as the refusal of Sheppard to
submit to interrogation or take any lie detector tests; any statement made by Sheppard to officials;
the identity of prospective witnesses or their probable testimony; any belief in guilt or innocence; or
like statements concerning the merits of the case. Being advised of the great public interest in the
case, the mass coverage of the press, and the potential prejudicial impact of publicity, the court could
also have requested the appropriate city and county officials to promulgate a regulation with respect
to dissemination of information about the case by their employees. In addition, reporters who wrote
or broadcast prejudicial stories, could have been warned as to the impropriety of publishing material
not introduced in the proceedings. The judge was put on notice of such events by defense counsel's
complaint about the WHK broadcast on the second day of trial. In this manner, Sheppard's right to a
trial free from outside interference would have been given added protection without corresponding
curtailment of the news media. Had the judge, the other officers of the court, and the police placed
the interest of justice first, the news media would have soon learned to be content with the task of
reporting the case as it unfolded in the courtroom - not pieced together from extrajudicial statements.
From the cases coming here we note that unfair and prejudicial news comment on pending trials has
become increasingly prevalent. Due process requires that the accused receive a trial by an impartial
jury free from outside influences. Given the pervasiveness of modern communications and the
difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take
strong measures to ensure that the balance is never weighed against the accused. And appellate
tribunals have the duty to make an independent evaluation of the circumstances. Of course, there is
nothing that proscribes the press from reporting events that transpire in the courtroom. But where
there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial, the judge
should continue the case until the threat abates, or transfer it to another county not so permeated
with publicity. In addition, sequestration of the jury was something the judge should have raised sua
sponte with counsel. If publicity during the proceedings threatens the fairness of the trial, a new trial
should be ordered. But we must remember that reversals are but palliatives; the cure lies in those
remedial measures that will prevent the prejudice at its inception. The courts must take such steps
by rule and regulation that will protect their processes from prejudicial outside interferences.
Neither prosecutors, counsel for defense, the accused, witnesses, court staff nor enforcement officers
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coming under the jurisdiction of the court should be permitted to frustrate its function. Collaboration
between counsel and the press as to information affecting the fairness of a criminal trial is not only
subject to regulation, but is highly censurable and worthy of disciplinary measures.
Since the state trial judge did not fulfill his duty to protect Sheppard from the inherently prejudicial
publicity which saturated the community and to control disruptive influences in the courtroom, we
must reverse the denial of the habeas petition. The case is remanded to the District Court with
instructions to issue the writ and order that Sheppard be released from custody unless the State puts
him to its charges again within a reasonable time.
It is so ordered.

Nebraska Press Assn. v. Stuart
427 U.S. 539 (1976)
CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT. WHITE, J., FILED A CONCURRING OPINION. POWELL, J.,
FILED A CONCURRING OPINION. BRENNAN, J., FILED A CONCURRING OPINION, IN WHICH STEWART AND MARSHALL, J.J.,
JOINED. STEVENS FILED A CONCURRING OPINION.
CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT.
The respondent State District Judge entered an order restraining the petitioners from publishing or
broadcasting accounts of confessions or admissions made by the accused or facts "strongly
implicative" of the accused in a widely reported murder of six persons. We granted certiorari to
decide whether the entry of such an order on the showing made before the state court violated the
constitutional guarantee of freedom of the press.
I
On the evening of October 18, 1975, local police found the six members of the Henry Kellie family
murdered in their home in Sutherland, Neb., a town of about 850 people. Police released the
description of a suspect, Erwin Charles Simants, to the reporters who had hastened to the scene of
the crime. Simants was arrested and arraigned in Lincoln County Court the following morning,
ending a tense night for this small rural community.
The crime immediately attracted widespread news coverage, by local, regional, and national
newspapers, radio and television stations. * * * [A broad initial order prohibiting reporting was later
amended by the Nebraska Supreme Court and] prohibited reporting of only three matters: (a) the
existence and nature of any confessions or admissions made by the defendant to law enforcement
officers, (b) any confessions or admissions made to any third parties, except members of the press,
and (c) other facts "strongly implicative" of the accused. The Nebraska Supreme Court did not rely on
the Nebraska Bar-Press Guidelines. After construing Nebraska law to permit closure in certain
circumstances, the court remanded the case to the District Judge for reconsideration of the issue
whether pretrial hearings should be closed to the press and public.
We granted certiorari to address the important issues raised by the District Court order as modified
by the Nebraska Supreme Court, but we denied the motion to expedite review or to stay entirely the
order of the State District Court pending Simants' trial. We are informed by the parties that since we
granted certiorari, Simants has been convicted of murder and sentenced to death. His appeal is
pending in the Nebraska Supreme Court.
II
The order at issue in this case expired by its own terms when the jury was impaneled on January 7,
1976. There were no restraints on publication once the jury was selected, and there are now no
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restrictions on what may be spoken or written about the Simants case. Intervenor Simants argues
that for this reason the case is moot. * * * [We] conclude that this case is not moot, and proceed to the
merits.
III
The problems presented by this case are almost as old as the Republic. Neither in the Constitution
nor in contemporaneous writings do we find that the conflict between these two important rights
was anticipated, yet it is inconceivable that the authors of the Constitution were unaware of the
potential conflicts between the right to an unbiased jury and the guarantee of freedom of the press.
The unusually able lawyers who helped write the Constitution and later drafted the Bill of Rights
were familiar with the historic episode in which John Adams defended British soldiers charged with
homicide for firing into a crowd of Boston demonstrators; they were intimately familiar with the
clash of the adversary system and the part that passions of the populace sometimes play in
influencing potential jurors. They did not address themselves directly to the situation presented by
this case; their chief concern was the need for freedom of expression in the political arena and the
dialogue in ideas. But they recognized that there were risks to private rights from an unfettered press.
***
[Jefferson, for example, writing from Paris in 1786 concerning press attacks on John Jay * * * ; The
trial of Aaron Burr in 1807 presented Mr. Chief Justice Marshall, presiding as a trial judge, with acute
problems in selecting an unbiased jury* * * ]
The speed of communication and the pervasiveness of the modern news media have exacerbated
these problems, however, as numerous appeals demonstrate. The trial of Bruno Hauptmann in a
small New Jersey community for the abduction and murder of the Charles Lindberghs' infant child
probably was the most widely covered trial up to that time, and the nature of the coverage produced
widespread public reaction. Criticism was directed at the "carnival" atmosphere that pervaded the
community and the courtroom itself. Responsible leaders of press and the legal profession - including
other judges - pointed out that much of this sorry performance could have been controlled by a
vigilant trial judge and by other public officers subject to the control of the court.
The excesses of press and radio and lack of responsibility of those in authority in the Hauptmann
case and others of that era led to efforts to develop voluntary guidelines for courts, lawyers, press,
and broadcasters. The effort was renewed in 1965 when the American Bar Association embarked on
a project to develop standards for all aspects of criminal justice, including guidelines to accommodate
the right to a fair trial and the rights of a free press. See Powell, The Right to a Fair Trial, 51 A. B. A. J.
534 (1965) [Lewis Powell was then president of the ABA; he joined the Court as an Associate Justice
in 1972]. The resulting standards, approved by the Association in 1968, received support from most
of the legal profession. American Bar Association Project on Standards for Criminal Justice, Fair Trial
and Free Press (Approved Draft 1968). Other groups have undertaken similar studies. * * *
In practice, of course, even the most ideal guidelines are subjected to powerful strains when a case
such as Simants' arises, with reporters from many parts of the country on the scene. Reporters from
distant places are unlikely to consider themselves bound by local standards. They report to editors
outside the area covered by the guidelines, and their editors are likely to be guided only by their own
standards. To contemplate how a state court can control acts of a newspaper or broadcaster outside
its jurisdiction, even though the newspapers and broadcasts reach the very community from which
jurors are to be selected, suggests something of the practical difficulties of managing such guidelines.
The problems presented in this case have a substantial history outside the reported decisions of
courts, in the efforts of many responsible people to accommodate the competing interests. We cannot
resolve all of them, for it is not the function of this Court to write a code. We look instead to this
particular case and the legal context in which it arises.
IV
The Sixth Amendment in terms guarantees "trial, by an impartial jury . . ." in federal criminal
prosecutions. Because "trial by jury in criminal cases is fundamental to the American scheme of

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justice," the Due Process Clause of the Fourteenth Amendment guarantees the same right in state
criminal prosecutions. Duncan v. Louisiana (1968). * * *
In the overwhelming majority of criminal trials, pretrial publicity presents few unmanageable threats
to this important right. But when the case is a "sensational" one tensions develop between the right
of the accused to trial by an impartial jury and the rights guaranteed others by the First Amendment.
***
[Our cases demonstrate that] pretrial publicity - even pervasive, adverse publicity - does not
inevitably lead to an unfair trial. The capacity of the jury eventually impaneled to decide the case
fairly is influenced by the tone and extent of the publicity, which is in part, and often in large part,
shaped by what attorneys, police, and other officials do to precipitate news coverage. The trial judge
has a major responsibility. What the judge says about a case, in or out of the courtroom, is likely to
appear in newspapers and broadcasts. More important, the measures a judge takes or fails to take to
mitigate the effects of pretrial publicity - the measures described in Sheppard - may well determine
whether the defendant receives a trial consistent with the requirements of due process. That this
responsibility has not always been properly discharged is apparent from the decisions just reviewed.
* * * The state trial judge in the case before us acted responsibility, out of a legitimate concern, in an
effort to protect the defendant's right to a fair trial. What we must decided is not simply whether the
Nebraska courts erred in seeing the possibility of real danger to the defendant's rights, but whether
in the circumstances of this case the means employed were foreclosed by another provision of the
Constitution.
V
The First Amendment provides that "Congress shall make no law . . . abridging the freedom . . . of the
press," and it is "no longer open to doubt that the liberty of the press, and of speech, is within the
liberty safeguarded by the due process clause of the Fourteenth Amendment from invasion by state
action." Near v. Minnesota ex rel. Olson (1931). The Court has interpreted these guarantees to afford
special protection against orders that prohibit the publication or broadcast of particular information
or commentary - orders that impose a "previous" or "prior" restraint on speech. None of our decided
cases on prior restraint involved restrictive orders entered to protect a defendant's right to a fair and
impartial jury, but the opinions on prior restraint have a common thread relevant to this case. * * *
The thread running through all these cases is that prior restraints on speech and publication are the
most serious and the least tolerable infringement on First Amendment rights. A criminal penalty or a
judgment in a defamation case is subject to the whole panoply of protections afforded by deferring
the impact of the judgment until all avenues of appellate review have been exhausted. Only after
judgment has become final, correct or otherwise, does the law's sanction become fully operative.
A prior restraint, by contrast and 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 communication of news
and commentary on current events. Truthful reports of public judicial proceedings have been
afforded special protection against subsequent punishment. For the same reasons the protection
against prior restraint should have particular force as applied to reporting of criminal proceedings,
whether the crime in question is a single isolated act or a pattern of criminal conduct. * * *
The extraordinary protections afforded by the First Amendment carry with them something in the
nature of a fiduciary duty to exercise the protected rights responsibly - a duty widely acknowledged
but not always observed by editors and publishers. It is not asking too much to suggest that those
who exercise First Amendment rights in newspapers or broadcasting enterprises direct some effort
to protect the rights of an accused to a fair trial by unbiased jurors.
Of course, the order at issue - like the order requested in New York Times - does not prohibit but only
postpones publication. Some news can be delayed and most commentary can even more readily be
delayed without serious injury, and there often is a self-imposed delay when responsible editors call
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for verification of information. But such delays are normally slight and they are self-imposed. Delays
imposed by governmental authority are a different matter. * * *
The authors of the Bill of Rights did not undertake to assign priorities as between First Amendment
and Sixth Amendment rights, ranking one as superior to the other. In this case, the petitioners would
have us declare the right of an accused subordinate to their right to publish in all circumstances. But
if the authors of these guarantees, fully aware of the potential conflicts between them, were unwilling
or unable to resolve the issue by assigning to one priority over the other, it is not for us to rewrite the
Constitution by undertaking what they declined to do. It is unnecessary, after nearly two centuries, to
establish a priority applicable in all circumstances. Yet it is nonetheless clear that the barriers to
prior restraint remain high unless we are to abandon what the Court has said for nearly a quarter of
our national existence and implied throughout all of it. The history of even wartime suspension of
categorical guarantees, such as habeas corpus or the right to trial by civilian courts, see Ex parte
Milligan (1867), cautions against suspending explicit guarantees. * * *
VI
We turn now to the record in this case * * * and must examine the evidence before the trial judge
when the order was entered to determine (a) the nature and extent of pretrial news coverage; (b)
whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and
(c) how effectively a restraining order would operate to prevent the threatened danger. The precise
terms of the restraining order are also important. We must then consider whether the record
supports the entry of a prior restraint on publication, one of the most extraordinary remedies known
to our jurisprudence.
A
In assessing the probable extent of publicity, the trial judge had before him newspapers
demonstrating that the crime had already drawn intensive news coverage, and the testimony of the
County Judge, who had entered the initial restraining order based on the local and national attention
the case had attracted. The District Judge was required to assess the probable publicity that would be
given these shocking crimes prior to the time a jury was selected and sequestered. He then had to
examine the probable nature of the publicity and determine how it would affect prospective jurors.
Our review of the pretrial record persuades us that the trial judge was justified in concluding that
there would be intense and pervasive pretrial publicity concerning this case. He could also
reasonably conclude, based on common human experience, that publicity might impair the
defendant's right to a fair trial. He did not purport to say more, for he found only "a clear and present
danger that pre-trial publicity could impinge upon the defendant's right to a fair trial." (Emphasis
added.) His conclusion as to the impact of such publicity on prospective jurors was of necessity
speculative, dealing as he was with factors unknown and unknowable.
B
We find little in the record that goes to another aspect of our task, determining whether measures
short of an order restraining all publication would have insured the defendant a fair trial. Although
the entry of the order might be read as a judicial determination that other measures would not
suffice, the trial court made no express findings to that effect; the Nebraska Supreme Court referred
to the issue only by implication. * * *
We have therefore examined this record to determine the probable efficacy of the measures short of
prior restraint on the press and speech. There is no finding that alternative measures would not have
protected Simants' rights, and the Nebraska Supreme Court did no more than imply that such
measures might not be adequate. Moreover, the record is lacking in evidence to support such a
finding.
C
We must also assess the probable efficacy of prior restraint on publication as a workable method of
protecting Simants' right to a fair trial, and we cannot ignore the reality of the problems of managing
and enforcing pretrial restraining orders. The territorial jurisdiction of the issuing court is limited by
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concepts of sovereignty, see, e. g., Hanson v. Denckla (1958); Pennoyer v. Neff (1878). The need for in
personam jurisdiction also presents an obstacle to a restraining order that applies to publication at
large as distinguished from restraining publication within a given jurisdiction. * * *
Finally, we note that the events disclosed by the record took place in a community of 850 people. It is
reasonable to assume that, without any news accounts being printed or broadcast, rumors would
travel swiftly by word of mouth. One can only speculate on the accuracy of such reports, given the
generative propensities of rumors; they could well be more damaging than reasonably accurate news
accounts. But plainly a whole community cannot be restrained from discussing a subject intimately
affecting life within it.
Given these practical problems, it is far from clear that prior restraint on publication would have
protected Simants' rights.
D
Finally, another feature of this case leads us to conclude that the restrictive order entered here is not
supportable. * * * [The final order] enjoined reporting of (1) "[c]onfessions or admissions against
interest made by the accused to law enforcement officials"; (2) "[c]onfessions or admissions against
interest, oral or written, if any, made by the accused to third parties, excepting any statements, if any,
made by the accused to representatives of the news media"; and (3) all "[o]ther information strongly
implicative of the accused as the perpetrator of the slayings."
To the extent that this order prohibited the reporting of evidence adduced at the open preliminary
hearing, it plainly violated settled principles: "[T]here is nothing that proscribes the press from
reporting events that transpire in the courtroom." The County Court could not know that closure of
the preliminary hearing was an alternative open to it until the Nebraska Supreme Court so construed
state law; but once a public hearing had been held, what transpired there could not be subject to
prior restraint.
The third prohibition of the order was defective in another respect as well. As part of a final order,
entered after plenary review, this prohibition regarding "implicative" information is too vague and
too broad to survive the scrutiny we have given to restraints on First Amendment rights. The third
phase of the order entered falls outside permissible limits.
E
The record demonstrates, as the Nebraska courts held, that there was indeed a risk that pretrial news
accounts, true or false, would have some adverse impact on the attitudes of those who might be
called as jurors. But on the record now before us it is not clear that further publicity, unchecked,
would so distort the views of potential jurors that 12 could not be found who would, under proper
instructions, fulfill their sworn duty to render a just verdict exclusively on the evidence presented in
open court. We cannot say on this record that alternatives to a prior restraint on petitioners would
not have sufficiently mitigated the adverse effects of pretrial publicity so as to make prior restraint
unnecessary. Nor can we conclude that the restraining order actually entered would serve its
intended purpose. Reasonable minds can have few doubts about the gravity of the evil pretrial
publicity can work, but the probability that it would do so here was not demonstrated with the
degree of certainty our cases on prior restraint require.
Of necessity our holding is confined to the record before us. But our conclusion is not simply a result
of assessing the adequacy of the showing made in this case; it results in part from the problems
inherent in meeting the heavy burden of demonstrating, in advance of trial, that without prior
restraint a fair trial will be denied. The practical problems of managing and enforcing restrictive
orders will always be present. In this sense, the record now before us is illustrative rather than
exceptional. It is significant that when this Court has reversed a state conviction because of
prejudicial publicity, it has carefully noted that some course of action short of prior restraint would
have made a critical difference. However difficult it may be, we need not rule out the possibility of
showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to
justify restraint. This Court has frequently denied that First Amendment rights are absolute and has
consistently rejected the proposition that a prior restraint can never be employed.
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Our analysis ends as it began, with a confrontation between prior restraint imposed to protect one
vital constitutional guarantee and the explicit command of another that the freedom to speak and
publish shall not be abridged. We reaffirm that the guarantees of freedom of expression are not an
absolute prohibition under all circumstances, but the barriers to prior restraint remain high and the
presumption against its use continues intact. We hold that, with respect to the order entered in this
case prohibiting reporting or commentary on judicial proceedings held in public, the barriers have
not been overcome; to the extent that this order restrained publication of such material, it is clearly
invalid. To the extent that it prohibited publication based on information gained from other sources,
we conclude that the heavy burden imposed as a condition to securing a prior restraint was not met
and the judgment of the Nebraska Supreme Court is therefore
Reversed.
[Concurring opinions omitted].

Notes

1.
Why did the framers not assess the relative values of the First and Sixth (or Fifth)
Amendments? In general, do you think the First Amendment should “trump” defendants’ rights?
2.
Both Sheppard and Stuart raise issues about the ethics of the press. How does a hierarchy of
“press” entities play into the opinions? What contemporary definitions of “press” are implicated by
the opinions?
3.
In addition to “prior restraint” of publication, a state could regulate attorney speech to the
press through its professional responsibility rules as imposed upon lawyers. In Gentile v. State Bar of
Nevada, 501 U.S. 1030 (1991), a very fractured Court considered a disciplinary rule which prohibited
lawyers from making extrajudicial statements to the press that they know or reasonably should
know will have a "substantial likelihood of materially prejudicing" an adjudicative proceeding,
although it also provided that “notwithstanding” this provision lawyers “may state without
elaboration . . . the general nature of the . . . defense.” The Court found that the rule and its exception
were void for vagueness, concluding that it creates a trap for the wary as well as the unwary.
However, the Court found that the rule’s language prohibiting “substantial likelihood of materially
prejudicing" statements by attorneys was a constitutionally permissible balance between the First
Amendment rights of attorneys in pending cases and the State's interest in fair trials.
Do you know the professional responsibility rules in the state where you intend to practice regarding
interactions with the press? Do you feel confident you could abide by them? Do you have personal
values regarding dealing with the press as an attorney? How would you define “press” in these
instances?

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B.

The Press as a Party in Civil Litigation
Seattle Times Co. v. Rhinehart
467 U.S. 20 (1984)

POWELL, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. BRENNAN, J., FILED A CONCURRING OPINION, IN
WHICH MARSHALL, J., JOINED.
JUSTICE POWELL DELIVERED THE OPINION OF THE COURT.
This case presents the issue whether parties to civil litigation have a First Amendment right to
disseminate, in advance of trial, information gained through the pretrial discovery process.
I
Respondent Rhinehart is the spiritual leader of a religious group, the Aquarian Foundation. The
Foundation has fewer than 1,000 members, most of whom live in the State of Washington. Aquarian
beliefs include life after death and the ability to communicate with the dead through a medium.
Rhinehart is the primary Aquarian medium.
In recent years, the Seattle Times and the Walla Walla Union-Bulletin have published stories about
Rhinehart and the Foundation. Altogether 11 articles appeared in the newspapers during the years
1973, 1978, and 1979. The five articles that appeared in 1973 focused on Rhinehart and the manner
in which he operated the Foundation. They described seances conducted by Rhinehart in which
people paid him to put them in touch with deceased relatives and friends. The articles also stated
that Rhinehart had sold magical "stones" that had been "expelled" from his body. One article referred
to Rhinehart's conviction, later vacated, for sodomy. The four articles that appeared in 1978
concentrated on an "extravaganza" sponsored by Rhinehart at the Walla Walla State Penitentiary.
The articles stated that he had treated 1,100 inmates to a 6-hour-long show, during which he gave
away between $35,000 and $50,000 in cash and prizes. One article described a "chorus line of girls
[who] shed their gowns and bikinis and sang . . . ." The two articles that appeared in 1979 referred to
a purported connection between Rhinehart and Lou Ferrigno, star of the popular television program,
"The Incredible Hulk."
II
Rhinehart brought this action in the Washington Superior Court on behalf of himself and the
Foundation against the Seattle Times, the Walla Walla Union-Bulletin, the authors of the articles, and
the spouses of the authors. Five female members of the Foundation who had participated in the
presentation at the penitentiary joined the suit as plaintiffs. The complaint alleges that the articles
contained statements that were "fictional and untrue," and that the defendants - petitioners here knew, or should have known, they were false. According to the complaint, the articles "did and were
calculated to hold [Rhinehart] up to public scorn, hatred and ridicule, and to impeach his honesty,
integrity, virtue, religious philosophy, reputation as a person and in his profession as a spiritual
leader." With respect to the Foundation, the complaint also states: "[T]he articles have, or may have
had, the effect of discouraging contributions by the membership and public and thereby diminished
the financial ability of the Foundation to pursue its corporate purposes." The complaint alleges that
the articles misrepresented the role of the Foundation's "choir" and falsely implied that female
members of the Foundation had "stripped off all their clothes and wantonly danced naked . . . ." The
complaint requests $14,100,000 in damages for the alleged defamation and invasions of privacy.
Petitioners filed an answer, denying many of the allegations of the complaint and asserting
affirmative defenses. Petitioners promptly initiated extensive discovery. They deposed Rhinehart,
requested production of documents pertaining to the financial affairs of Rhinehart and the
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Foundation, and served extensive interrogatories on Rhinehart and the other respondents.
Respondents turned over a number of financial documents, including several of Rhinehart's income
tax returns. Respondents refused, however, to disclose certain financial information, 4 the identity of
the Foundation's donors during the preceding 10 years, and a list of its members during that period.
Petitioners filed a motion under the State's Civil Rule 37 requesting an order compelling discovery. In
their supporting memorandum, petitioners recognized that the principal issue as to discovery was
respondents'"refusa[l] to permit any effective inquiry into their financial affairs, such as the source of
their donations, their financial transactions, uses of their wealth and assets, and their financial
condition in general." Respondents opposed the motion, arguing in particular that compelled
production of the identities of the Foundation's donors and members would violate the First
Amendment rights of members and donors to privacy, freedom of religion, and freedom of
association. Respondents also moved for a protective order preventing petitioners from
disseminating any information gained through discovery. Respondents noted that petitioners had
stated their intention to continue publishing articles about respondents and this litigation, and their
intent to use information gained through discovery in future articles.
In a lengthy ruling, the trial court initially granted the motion to compel and ordered respondents to
identify all donors who made contributions during the five years preceding the date of the complaint,
along with the amounts donated. * * * Respondents filed a motion for reconsideration in which they
renewed their motion for a protective order. They submitted affidavits of several Foundation
members to support their request. * * * In general, the affidavits averred that public release of the
donor lists would adversely affect Foundation membership and income and would subject its
members to additional harassment and reprisals.
Persuaded by these affidavits, the trial court issued a protective order covering all information
obtained through the discovery process that pertained to "the financial affairs of the various
plaintiffs, the names and addresses of Aquarian Foundation members, contributors, or clients, and
the names and addresses of those who have been contributors, clients, or donors to any of the
various plaintiffs." The order prohibited petitioners from publishing, disseminating, or using the
information in any way except where necessary to prepare for and try the case. By its terms, the
order did not apply to information gained by means other than the discovery process. In an
accompanying opinion, the trial court recognized that the protective order would restrict petitioners'
right to publish information obtained by discovery, but the court reasoned that the restriction was
necessary to avoid the "chilling effect" that dissemination would have on "a party's willingness to
bring his case to court."
Respondents appealed from the trial court's production order, and petitioners appealed from the
protective order. The Supreme Court of Washington affirmed both. * * * The Supreme Court of
Washington recognized that its holding conflicts with the holdings of the United States Court of
Appeals for the District of Columbia Circuit * * * and applies a different standard from that of the
Court of Appeals for the First Circuit * * * . We granted certiorari to resolve the conflict. We affirm.
III
Most States, including Washington, have adopted discovery provisions modeled on Rules 26 through
37 of the Federal Rules of Civil Procedure. Rule 26(b)(1) provides that a party "may obtain discovery
regarding any matter, not privileged, which is relevant to the subject matter involved in the pending
action." It further provides that discovery is not limited to matters that will be admissible at trial so
long as the information sought "appears reasonably calculated to lead to the discovery of admissible
evidence."
The Rules do not differentiate between information that is private or intimate and that to which no
privacy interests attach. Under the Rules, the only express limitations are that the information sought
is not privileged, and is relevant to the subject matter of the pending action. Thus, the Rules often
allow extensive intrusion into the affairs of both litigants and third parties. If a litigant fails to comply
with a request for discovery, the court may issue an order directing compliance that is enforceable by
the court's contempt powers.

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Petitioners argue that the First Amendment imposes strict limits on the availability of any judicial
order that has the effect of restricting expression. They contend that civil discovery is not different
from other sources of information, and that therefore the information is "protected speech" for First
Amendment purposes. Petitioners assert the right in this case to disseminate any information gained
through discovery. They do recognize that in limited circumstances, not thought to be present here,
some information may be restrained. They submit, however: "When a protective order seeks to limit
expression, it may do so only if the proponent shows a compelling governmental interest. Mere
speculation and conjecture are insufficient. Any restraining order, moreover, must be narrowly
drawn and precise. Finally, before issuing such an order a court must determine that there are no
alternatives which intrude less directly on expression."
We think the rule urged by petitioners would impose an unwarranted restriction on the duty and
discretion of a trial court to oversee the discovery process.
IV
It is, of course, clear that information obtained through civil discovery authorized by modern rules of
civil procedure would rarely, if ever, fall within the classes of unprotected speech identified by
decisions of this Court. In this case, as petitioners argue, there certainly is a public interest in
knowing more about respondents. This interest may well include most - and possibly all - of what has
been discovered as a result of the court's order under Rule 26(b)(1). It does not necessarily follow,
however, that a litigant has an unrestrained right to disseminate information that has been obtained
through pretrial discovery. For even though the broad sweep of the First Amendment seems to
prohibit all restraints on free expression, this Court has observed that "[f]reedom of speech . . . does
not comprehend the right to speak on any subject at any time."
The critical question that this case presents is whether a litigant's freedom comprehends the right to
disseminate information that he has obtained pursuant to a court order that both granted him access
to that information and placed restraints on the way in which the information might be used. In
addressing that question it is necessary to consider whether the "practice in question [furthers] an
important or substantial governmental interest unrelated to the suppression of expression" and
whether "the limitation of First Amendment freedoms [is] no greater than is necessary or essential to
the protection of the particular governmental interest involved."
A
At the outset, it is important to recognize the extent of the impairment of First Amendment rights
that a protective order, such as the one at issue here, may cause. As in all civil litigation, petitioners
gained the information they wish to disseminate only by virtue of the trial court's discovery
processes. As the Rules authorizing discovery were adopted by the state legislature, the processes
thereunder are a matter of legislative grace. A litigant has no First Amendment right of access to
information made available only for purposes of trying his suit. Thus, continued court control over
the discovered information does not raise the same specter of government censorship that such
control might suggest in other situations.
Moreover, pretrial depositions and interrogatories are not public components of a civil trial. Such
proceedings were not open to the public at common law and, in general, they are conducted in
private as a matter of modern practice. Much of the information that surfaces during pretrial
discovery may be unrelated, or only tangentially related, to the underlying cause of action. Therefore,
restraints placed on discovered, but not yet admitted, information are not a restriction on a
traditionally public source of information.
Finally, it is significant to note that an order prohibiting dissemination of discovered information
before trial is not the kind of classic prior restraint that requires exacting First Amendment scrutiny.
As in this case, such a protective order prevents a party from disseminating only that information
obtained through use of the discovery process. Thus, the party may disseminate the identical
information covered by the protective order as long as the information is gained through means
independent of the court's processes. In sum, judicial limitations on a party's ability to disseminate
information discovered in advance of trial implicates the First Amendment rights of the restricted
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party to a far lesser extent than would restraints on dissemination of information in a different
context. Therefore, our consideration of the provision for protective orders contained in the
Washington Civil Rules takes into account the unique position that such orders occupy in relation to
the First Amendment.
B
Rule 26(c) furthers a substantial governmental interest unrelated to the suppression of expression.
The Washington Civil Rules enable parties to litigation to obtain information "relevant to the subject
matter involved" that they believe will be helpful in the preparation and trial of the case. Rule 26,
however, must be viewed in its entirety. Liberal discovery is provided for the sole purpose of
assisting in the preparation and trial, or the settlement, of litigated disputes. Because of the liberality
of pretrial discovery permitted by Rule 26(b)(1), it is necessary for the trial court to have the
authority to issue protective orders conferred by Rule 26(c). It is clear from experience that pretrial
discovery by depositions and interrogatories has a significant potential for abuse. This abuse is not
limited to matters of delay and expense; discovery also may seriously implicate privacy interests of
litigants and third parties. The Rules do not distinguish between public and private information. Nor
do they apply only to parties to the litigation, as relevant information in the hands of third parties
may be subject to discovery.
There is an opportunity, therefore, for litigants to obtain - incidentally or purposefully - information
that not only is irrelevant but if publicly released could be damaging to reputation and privacy. The
government clearly has a substantial interest in preventing this sort of abuse of its processes. * * *
The prevention of the abuse that can attend the coerced production of information under a State's
discovery rule is sufficient justification for the authorization of protective orders.
C
We also find that the provision for protective orders in the Washington Rules requires, in itself, no
heightened First Amendment scrutiny. To be sure, Rule 26(c) confers broad discretion on the trial
court to decide when a protective order is appropriate and what degree of protection is required. The
Legislature of the State of Washington, following the example of the Congress in its approval of the
Federal Rules of Civil Procedure, has determined that such discretion is necessary, and we find no'
reason to disagree. The trial court is in the best position to weigh fairly the competing needs and
interests of parties affected by discovery. The unique character of the discovery process requires that
the trial court have substantial latitude to fashion protective orders.
V
The facts in this case illustrate the concerns that justifiably may prompt a court to issue a protective
order. As we have noted, the trial court's order allowing discovery was extremely broad. It compelled
respondents - among other things - to identify all persons who had made donations over a 5-year
period to Rhinehart and the Aquarian Foundation, together with the amounts donated. In effect the
order would compel disclosure of membership as well as sources of financial support. The Supreme
Court of Washington found that dissemination of this information would "result in annoyance,
embarrassment and even oppression." It is sufficient for purposes of our decision that the highest
court in the State found no abuse of discretion in the trial court's decision to issue a protective order
pursuant to a constitutional state law. We therefore hold that where, as in this case, a protective
order is entered on a showing of good cause as required by Rule 26(c), is limited to the context of
pretrial civil discovery, and does not restrict the dissemination of the information if gained from
other sources, it does not offend the First Amendment.
The judgment accordingly is
Affirmed.
JUSTICE BRENNAN, WITH WHOM JUSTICE MARSHALL JOINS, CONCURRING [OMITTED].

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C.

Access by the Press
Note: “Public Proceedings”

In fractured opinions in Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980), the Court was
nevertheless clear that there is a right of the public and press to attend criminal trials. But this raises
questions about whether or not particular criminal proceedings or particular civil proceedings are
included in the definition of “trial.”
Whether or not a particular proceeding qualifies as “public” is often analyzed with resort to the
“complimentary” factors of
“experience” - whether the public has historically been granted access to the place or
process and
“logic” - whether access enhances the functioning of the particular process in question,
as derived from the “Press–Enterprise” cases.
In Press-Enterprise Co. v. Superior Court of California for Riverside County, 464 U.S. 501 (1984)
(“Press–Enterprise I”), the Court held voir dire examinations in criminal jury trial should generally be
public). In Press–Enterprise Co. v. Superior Court of California for Riverside County, 478 U.S. 1 (1986)
(“Press–Enterprise II”), the Court held that preliminary hearings in criminal trial should generally be
public).
Are executions “public” proceedings? Considering this issue, a district judge in Oklahoma applied the
Press-Enterprise cases and found that while there were many public executions and hangings, the
trend since 1915 has been to have such events occur within the prison. See Oklahoma Observer v.
Patton, No. CIV-14-0905-HE, 2014 WL 7335317 (W.D. Okla. Dec. 19, 2014).
The next case considers press access to prisons and imprisoned persons.

Houchins v. KQED, Inc.
438 U.S. 1 (1978)
CHIEF JUSTICE BURGER ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION, IN WHICH WHITE
AND REHNQUIST, JJ., JOINED. STEWART, J., FILED AN OPINION CONCURRING IN THE JUDGMENT. STEVENS, J., FILED A
DISSENTING OPINION, IN WHICH BRENNAN AND POWELL, JJ., JOINED. MARSHALL AND BLACKMUN, JJ., TOOK NO PART IN
THE CONSIDERATION OR DECISION OF THE CASE.
CHIEF JUSTICE BURGER ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED AN OPINION, IN WHICH WHITE
AND REHNQUIST, JJ., JOINED.
The question presented is whether the news media have a constitutional right of access to a county
jail, over and above that of other persons, to interview inmates and make sound recordings, films,
and photographs for publication and broadcasting by newspapers, radio, and television.
I
Petitioner Houchins, as Sheriff of Alameda County, Cal., controls all access to the Alameda County Jail
at Santa Rita. Respondent KQED operates licensed television and radio broadcasting stations which
have frequently reported newsworthy events relating to penal institutions in the San Francisco Bay
Area. On March 31, 1975, KQED reported the suicide of a prisoner in the Greystone portion of the
Santa Rita jail. The report included a statement by a psychiatrist that the conditions at the Greystone
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facility were responsible for the illnesses of his patient-prisoners there, and a statement from
petitioner denying that prison conditions were responsible for the prisoners' illnesses.
KQED requested permission to inspect and take pictures within the Greystone facility. After
permission was refused, KQED and the Alameda and Oakland branches of the National Association
for the Advancement of Colored People (NAACP) filed suit under 42 U.S.C. 1983. They alleged that
petitioner had violated the First Amendment by refusing to permit media access and failing to
provide any effective means by which the public could be informed of conditions prevailing in the
Greystone facility or learn of the prisoners' grievances. Public access to such information was
essential, they asserted, in order for NAACP members to participate in the public debate on jail
conditions in Alameda County. They further asserted that television coverage of the conditions in the
cells and facilities was the most effective way of informing the public of prison conditions.
The complaint requested a preliminary and permanent injunction to prevent petitioner from
"excluding KQED news personnel from the Greystone cells and Santa Rita facilities and generally
preventing full and accurate news coverage of the conditions prevailing therein." On June 17, 1975,
when the complaint was filed, there appears to have been no formal policy regarding public access to
the Santa Rita jail. However, according to petitioner, he had been in the process of planning a
program of regular monthly tours since he took office six months earlier. On July 8, 1975, he
announced the program and invited all interested persons to make arrangements for the regular
public tours. News media were given notice in advance of the public and presumably could have
made early reservations.
Six monthly tours were planned and funded by the county at an estimated cost of $1,800. The first six
scheduled tours were filled within a week after the July 8 announcement. A KQED reporter and
several other reporters were on the first tour on July 14, 1975.
Each tour was limited to 25 persons and permitted only limited access to the jail. The tours did not
include the disciplinary cells or the portions of the jail known as "Little Greystone," the scene of
alleged rapes, beatings, and adverse physical conditions. Photographs of some parts of the jail were
made available, but no cameras or tape recorders were allowed on the tours. Those on the tours were
not permitted to interview inmates, and inmates were generally removed from view.
In support of the request for a preliminary injunction, respondents presented testimony and
affidavits stating that other penal complexes had permitted media interviews of inmates and
substantial media access without experiencing significant security or administrative problems. They
contended that the monthly public tours at Santa Rita failed to provide adequate access to the jail for
two reasons: (a) once the scheduled tours had been filled, media representatives who had not signed
up for them had no access and were unable to cover newsworthy events at the jail; (b) the
prohibition on photography and tape recordings, the exclusion of portions of the jail from the tours,
and the practice of keeping inmates generally removed from view substantially reduced the
usefulness of the tours to the media.
In response, petitioner admitted that Santa Rita had never experimented with permitting media
access beyond that already allowed; he did not claim that disruption had been caused by media
access to other institutions. He asserted, however, that unregulated access by the media would
infringe inmate privacy, 2 and tend to create "jail celebrities," who in turn tend to generate internal
problems and undermine jail security. He also contended that unscheduled media tours would
disrupt jail operations.
Petitioner filed an affidavit noting the various means by which information concerning the jail could
reach the public. Attached to the affidavit were the current prison mail, visitation, and phone call
regulations. The regulations allowed inmates to send an unlimited number of letters to judges,
attorneys, elected officials, the Attorney General, petitioner, jail officials, or probation officers, all of
which could be sealed prior to mailing. Other letters were subject to inspection for contraband but
the regulations provided that no inmate mail would be read.
With few exceptions, all persons, including representatives of the media, who knew a prisoner could
visit him. Media reporters could interview inmates awaiting trial with the consent of the inmate, his
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attorney, the district attorney, and the court. Social services officers were permitted to contact
"relatives, community agencies, employers, etc.," by phone to assist in counseling inmates with
vocational, educational, or personal problems. Maximum-security inmates were free to make
unmonitored collect telephone calls from designated areas of the jail without limit.
After considering the testimony, affidavits, and documentary evidence presented by the parties, the
District Court preliminarily enjoined petitioner from denying KQED news personnel and "responsible
representatives" of the news media access to the Santa Rita facilities, including Greystone, "at
reasonable times and hours" and "from preventing KQED news personnel and responsible
representatives of the news media from utilizing photographic and sound equipment or from
utilizing inmate interviews in providing full and accurate coverage of the Santa Rita facilities."
The District Court rejected petitioner's contention that the media policy then in effect was necessary
to protect inmate privacy or minimize security and administrative problems. It found that the
testimony of officials involved with other jails indicated that a "more flexible press policy at Santa
Rita [was] both desirable and attainable." The District Court concluded that the respondents had
"demonstrated irreparable injury, absence of an adequate remedy at law, probability of success on
the merits, a favorable public interest, and a balance of hardships" in their favor.
On interlocutory appeal from the District Court's order, petitioner invoked Pell v. Procunier (1974),
where this Court held that "newsmen have no constitutional right of access to prisons or their
inmates beyond that afforded to the general public." He contended that the District Court had
departed from Pell and abused its discretion because it had ordered that he give the media greater
access to the jail than he gave to the general public. The Court of Appeals rejected petitioner's
argument that Pell and Saxbe v. Washington Post Co. (1974), were controlling. It concluded, albeit in
three separate opinions, that the public and the media had a First and Fourteenth Amendment right
of access to prisons and jails, and sustained the District Court's order.
II
Notwithstanding our holding in Pell v. Procunier respondents assert that the right recognized by the
Court of Appeals flows logically from our decisions construing the First Amendment. They argue that
there is a constitutionally guaranteed right to gather news under Pell v. Procunier and Branzburg v.
Hayes (1972). From the right to gather news and the right to receive information, they argue for an
implied special right of access to government-controlled sources of information. This right, they
contend, compels access as a constitutional matter. Respondents suggest further support for this
implicit First Amendment right in the language of Grosjean v. American Press Co. (1936), and Mills v.
Alabama (1966), which notes the importance of an informed public as a safeguard against
"misgovernment" and the crucial role of the media in providing information. Respondents contend
that public access to penal institutions is necessary to prevent officials from concealing prison
conditions from the voters and impairing the public's right to discuss and criticize the prison system
and its administration.
III
We can agree with many of the respondents' generalized assertions; conditions in jails and prisons
are clearly matters "of great public importance." Penal facilities are public institutions which require
large amounts of public funds, and their mission is crucial in our criminal justice system. Each person
placed in prison becomes, in effect, a ward of the state for whom society assumes broad
responsibility. It is equally true that with greater information, the public can more intelligently form
opinions about prison conditions. Beyond question, the role of the media is important; acting as the
"eyes and ears" of the public, they can be a powerful and constructive force, contributing to remedial
action in the conduct of public business. They have served that function since the beginning of the
Republic, but like all other components of our society media representatives are subject to limits.
The media are not a substitute for or an adjunct of government and, like the courts, they are "ill
equipped" to deal with problems of prison administration. We must not confuse the role of the media
with that of government; each has special, crucial functions, each complementing - and sometimes
conflicting with - the other.
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The public importance of conditions in penal facilities and the media's role of providing information
afford no basis for reading into the Constitution a right of the public or the media to enter these
institutions, with camera equipment, and take moving and still pictures of inmates for broadcast
purposes. This Court has never intimated a First Amendment guarantee of a right of access to all
sources of information within government control. Nor does the rationale of the decisions upon
which respondents rely lead to the implication of such a right.
Grosjean v. American Press Co., and Mills v. Alabama emphasized the importance of informed public
opinion and the traditional role of a free press as a source of public information. But an analysis of
those cases reveals that the Court was concerned with the freedom of the media to communicate
information once it is obtained; neither case intimated that the Constitution compels the government
to provide the media with information or access to it on demand. Grosjean involved a challenge to a
state tax on advertising revenues of newspapers, the "plain purpose" of which was to penalize the
publishers and curtail the publication of a selected group of newspapers. The Court summarized the
familiar but important history of the attempts to prevent criticism of the Crown in England by the
infamous licensing requirements and special taxes on the press, and concluded that the First
Amendment had been designed to prevent similar restrictions or any other "form of previous
restraint upon printed publications, or their circulation."
In discussing the importance of an "untrammeled press," the Court in Grosjean readily acknowledged
the need for "informed public opinion" as a restraint upon misgovernment. It also criticized the tax at
issue because it limited " the circulation of information to which the public [was] entitled." But
nothing in the Court's holding implied a special privilege of access to information as distinguished
from a right to publish information which has been obtained; Grosjean dealt only with government
attempts to burden and restrain a newspaper's communication with the public. The reference to a
public entitlement to information meant no more than that the government cannot restrain
communication of whatever information the media acquire - and which they elect to reveal. * * *
The right to receive ideas and information is not the issue in this case. The issue is a claimed special
privilege of access which the Court rejected in Pell and Saxbe, a right which is not essential to
guarantee the freedom to communicate or publish.
IV
The respondents' argument is flawed, not only because it lacks precedential support and is contrary
to statements in this Court's opinions, but also because it invites the Court to involve itself in what is
clearly a legislative task which the Constitution has left to the political processes. Whether the
government should open penal institutions in the manner sought by respondents is a question of
policy which a legislative body might appropriately resolve one way or the other.
A number of alternatives are available to prevent problems in penal facilities from escaping public
attention. The early penal reform movements in this country and England gained impetus as a result
of reports from citizens and visiting committees who volunteered or received commissions to visit
penal institutions and make reports. See T. ERIKSSON, THE REFORMERS 32-42, 69 (Djurklou translation
1976); W. CRAWFORD, REPORT ON THE PENITENTIARIES OF THE UNITED STATES vii-viii, xiii-xv, 10-11, App. 9
(1969 ed.); B. MCKELVEY, AMERICAN PRISONS 52-56, 193 (1936). Citizen task forces and prison visitation
committees continue to play an important role in keeping the public informed on deficiencies of
prison systems and need for reforms. Grand juries, with the potent subpoena power - not available to
the media - traditionally concern themselves with conditions in public institutions; a prosecutor or
judge may initiate similar inquiries, and the legislative power embraces an arsenal of weapons for
inquiry relating to tax-supported institutions. In each case, these public bodies are generally
compelled to publish their findings and, if they default, the power of the media is always available to
generate public pressure for disclosure. But the choice as to the most effective and appropriate
method is a policy decision to be resolved by legislative decision. We must not confuse what is
"good," "desirable," or "expedient" with what is constitutionally commanded by the First Amendment.
To do so is to trivialize constitutional adjudication.
Unarticulated but implicit in the assertion that media access to the jail is essential for informed
public debate on jail conditions is the assumption that media personnel are the best qualified
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persons for the task of discovering malfeasance in public institutions. But that assumption finds no
support in the decisions of this Court or the First Amendment. Editors and newsmen who inspect a
jail may decide to publish or not to publish what information they acquire. Public bodies and public
officers, on the other hand, may be coerced by public opinion to disclose what they might prefer to
conceal. No comparable pressures are available to anyone to compel publication by the media of
what they might prefer not to make known.
There is no discernible basis for a constitutional duty to disclose, or for standards governing
disclosure of or access to information. Because the Constitution affords no guidelines, absent
statutory standards, hundreds of judges would, under the Court of Appeals' approach, be at large to
fashion ad hoc standards, in individual cases, according to their own ideas of what seems "desirable"
or "expedient." We, therefore, reject the Court of Appeals' conclusory assertion that the public and
the media have a First Amendment right to government information regarding the conditions of jails
and their inmates and presumably all other public facilities such as hospitals and mental institutions.
***
Petitioner cannot prevent respondents from learning about jail conditions in a variety of ways, albeit
not as conveniently as they might prefer. Respondents have a First Amendment right to receive
letters from inmates criticizing jail officials and reporting on conditions. Respondents are free to
interview those who render the legal assistance to which inmates are entitled. They are also free to
seek out former inmates, visitors to the prison, public officials, and institutional personnel, as they
sought out the complaining psychiatrist here.
Moreover, California statutes currently provide for a prison Board of Corrections that has the
authority to inspect jails and prisons and must provide a public report at regular intervals. Health
inspectors are required to inspect prisons and provide reports to a number of officials, including the
State Attorney General and the Board of Corrections. Fire officials are also required to inspect
prisons. Following the reports of the suicide at the jail involved here, the County Board of
Supervisors called for a report from the County Administrator; held a public hearing on the report,
which was open to the media; and called for further reports when the initial report failed to describe
the conditions in the cells in the Greystone portion of the jail.
Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to
government information or sources of information within the government's control. Under our
holdings * * * until the political branches decree otherwise, as they are free to do, the media have no
special right of access to the Alameda County Jail different from or greater than that accorded the
public generally.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings.
Reversed and remanded.
JUSTICE STEWART, CONCURRING IN THE JUDGMENT.
I agree that the preliminary injunction issued against the petitioner was unwarranted, and therefore
concur in the judgment. In my view, however, KQED was entitled to injunctive relief of more limited
scope.
The First and Fourteenth Amendments do not guarantee the public a right of access to information
generated or controlled by government, nor do they guarantee the press any basic right of access
superior to that of the public generally. The Constitution does no more than assure the public and the
press equal access once government has opened its doors. Accordingly, I agree substantially with
what the opinion of The Chief Justice has to say on that score.
We part company, however, in applying these abstractions to the facts of this case. Whereas he
appears to view "equal access" as meaning access that is identical in all respects, I believe that the
concept of equal access must be accorded more flexibility in order to accommodate the practical
distinctions between the press and the general public.

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When on assignment, a journalist does not tour a jail simply for his own edification. He is there to
gather information to be passed on to others, and his mission is protected by the Constitution for
very specific reasons. * * *
That the First Amendment speaks separately of freedom of speech and freedom of the press is no
constitutional accident, but an acknowledgment of the critical role played by the press in American
society. The Constitution requires sensitivity to that role, and to the special needs of the press in
performing it effectively. A person touring Santa Rita jail can grasp its reality with his own eyes and
ears. But if a television reporter is to convey the jail's sights and sounds to those who cannot
personally visit the place, he must use cameras and sound equipment. In short, terms of access that
are reasonably imposed on individual members of the public may, if they impede effective reporting
without sufficient justification, be unreasonable as applied to journalists who are there to convey to
the general public what the visitors see.
Under these principles, KQED was clearly entitled to some form of preliminary injunctive relief. At
the time of the District Court's decision, members of the public were permitted to visit most parts of
the Santa Rita jail, and the First and Fourteenth Amendments required the Sheriff to give members of
the press effective access to the same areas. The Sheriff evidently assumed that he could fulfill this
obligation simply by allowing reporters to sign up for tours on the same terms as the public. I think
he was mistaken in this assumption, as a matter of constitutional law. * * *
I would not foreclose the possibility of further relief for KQED on remand. In my view, the availability
and scope of future permanent injunctive relief must depend upon the extent of access then
permitted the public, and the decree must be framed to accommodate equitably the constitutional
role of the press and the institutional requirements of the jail.
JUSTICE STEVENS, WITH WHOM BRENNAN AND POWELL, JJ., JOIN, DISSENTING.
The Court holds that the scope of press access to the Santa Rita jail required by the preliminary
injunction issued against petitioner is inconsistent with the holding in Pell v. Procunier that
"newsmen have no constitutional right of access to prisons or their inmates beyond that afforded the
general public" and therefore the injunction was an abuse of the District Court's discretion. I
respectfully disagree. * * *
For two reasons, which will be discussed separately, the decisions in Pell and Saxbe do not control
the propriety of the District Court's preliminary injunction. First, the unconstitutionality of
petitioner's policies which gave rise to this litigation does not rest on the premise that the press has a
greater right of access to information regarding prison conditions than do other members of the
public. Second, relief tailored to the needs of the press may properly be awarded to a representative
of the press which is successful in proving that it has been harmed by a constitutional violation and
need not await the grant of relief to members of the general public who may also have been injured
by petitioner's unconstitutional access policy but have not yet sought to vindicate their rights.
I
This litigation grew out of petitioner's refusal to allow representatives of the press access to the
inner portions of the Santa Rita facility. Following those refusals and the institution of this suit,
certain remedial action was taken by petitioner. The mail censorship was relaxed and an
experimental tour program was initiated. * * *
Here, the broad restraints on access to information regarding operation of the jail that prevailed on
the date this suit was instituted are plainly disclosed by the record. The public and the press had
consistently been denied any access to those portions of the Santa Rita facility where inmates were
confined and there had been excessive censorship of inmate correspondence. Petitioner's no-access
policy, modified only in the wake of respondents' resort to the courts, could survive constitutional
scrutiny only if the Constitution affords no protection to the public's right to be informed about
conditions within those public institutions where some of its members are confined because they
have been charged with or found guilty of criminal offenses.
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II
The preservation of a full and free flow of information to the general public has long been recognized
as a core objective of the First Amendment to the Constitution. It is for this reason that the First
Amendment protects not only the dissemination but also the receipt of information and ideas. Thus,
in Procunier v. Martinez, the Court invalidated prison regulations authorizing excessive censorship of
outgoing inmate correspondence because such censorship abridged the rights of the intended
recipients. So here, petitioner's prelitigation prohibition on mentioning the conduct of jail officers in
outgoing correspondence must be considered an impingement on the noninmate correspondent's
interest in receiving the intended communication.
In addition to safeguarding the right of one individual to receive what another elects to communicate,
the First Amendment serves an essential societal function. Our system of self-government assumes
the existence of an informed citizenry. As Madison wrote:
"A popular Government, without popular information, or the means of acquiring it, is but a Prologue to
a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who
mean to be their own Governors, must arm themselves with the power which knowledge gives."

9 WRITINGS OF JAMES MADISON 103 (G. Hunt ed. 1910).
It is not sufficient, therefore, that the channels of communication be free of governmental restraints.
Without some protection for the acquisition of information about the operation of public institutions
such as prisons by the public at large, the process of self-governance contemplated by the Framers
would be stripped of its substance.
For that reason information gathering is entitled to some measure of constitutional protection. As
this Court's decisions clearly indicate, however, this protection is not for the private benefit of those
who might qualify as representatives of the "press" but to insure that the citizens are fully informed
regarding matters of public interest and importance.
In Grosjean v. American Press Co. representatives of the "press" challenged a state tax on the
advertising revenues of newspapers. In the Court's words, the issue raised by the tax went "to the
heart of the natural right of the members of an organized society, united for their common good, to
impart and acquire information about their common interests." The opinion described the long
struggle in England against the stamp tax and tax on advertisements - the so-called "taxes on
knowledge":
"[I]n the adoption of the [taxes] the dominant and controlling aim was to prevent, or curtail the
opportunity for, the acquisition of knowledge by the people in respect of their governmental affairs. . . .
The aim of the struggle [against those taxes] was . . . to establish and preserve the right of the English
people to full information in respect of the doings or misdoings of their government. Upon the
correctness of this conclusion the very characterization of the exactions as ‘taxes on knowledge’ sheds
a flood of corroborative light. In the ultimate, an informed and enlightened public opinion was the
thing at stake."

Noting the familiarity of the Framers with this struggle, the Court held:
"[S]ince informed public opinion is the most potent of all restraints upon misgovernment, the
suppression or abridgement of the publicity afforded by a free press cannot be regarded otherwise
than with grave concern. The tax here involved is bad . . . because, in light of its history and of its
present setting, it is seen to be a deliberate and calculated device . . . to limit the circulation of
information to which the public is entitled in virtue of the constitutional guaranties."

A recognition that the "underlying right is the right of the public generally" is also implicit in the
doctrine that "newsmen have no constitutional right of access to prisons or their inmates beyond
that afforded the general public." Pell v. Procunier. In Pell it was unnecessary to consider the extent of
the public's right of access to information regarding the prison and its inmates in order to adjudicate
the press claim to a particular form of access, since the record demonstrated that the flow of
information to the public, both directly and through the press, was adequate to survive constitutional
challenge; institutional considerations justified denying the single, additional mode of access sought
by the press in that case.
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Here, in contrast, the restrictions on access to the inner portions of the Santa Rita jail that existed on
the date this litigation commenced concealed from the general public the conditions of confinement
within the facility. The question is whether petitioner's policies, which cut off the flow of information
at its source, abridged the public's right to be informed about those conditions.
The answer to that question does not depend upon the degree of public disclosure which should
attend the operation of most governmental activity. Such matters involve questions of policy which
generally must be resolved by the political branches of government. Moreover, there are
unquestionably occasions when governmental activity may properly be carried on in complete
secrecy. For example, the public and the press are commonly excluded from "grand jury proceedings,
our own conferences, [and] the meetings of other official bodies gathered in executive session . . . ."
Branzburg v. Hayes. In addition, some functions of government - essential to the protection of the
public and indeed our country's vital interests - necessarily require a large measure of secrecy,
subject to appropriate legislative oversight. In such situations the reasons for withholding
information from the public are both apparent and legitimate.
In this case, however, "[r]espondents do not assert a right to force disclosure of confidential
information or to invade in any way the decisionmaking processes of governmental officials." They
simply seek an end to petitioner's policy of concealing prison conditions from the public. Those
conditions are wholly without claim to confidentiality. While prison officials have an interest in the
time and manner of public acquisition of information about the institutions they administer, there is
no legitimate penological justification for concealing from citizens the conditions in which their
fellow citizens are being confined.
* * * The reasons which militate in favor of providing special protection to the flow of information to
the public about prisons relate to the unique function they perform in a democratic society. Not only
are they public institutions, financed with public funds and administered by public servants, they are
an integral component of the criminal justice system. The citizens confined therein are temporarily,
and sometimes permanently, deprived of their liberty as a result of a trial which must conform to the
dictates of the Constitution. By express command of the Sixth Amendment the proceeding must be a
"public trial." It is important not only that the trial itself be fair, but also that the community at large
have confidence in the integrity of the proceeding. That public interest survives the judgment of
conviction and appropriately carries over to an interest in how the convicted person is treated
during his period of punishment and hoped-for rehabilitation. While a ward of the State and subject
to its stern discipline, he retains constitutional protections against cruel and unusual punishment, a
protection which may derive more practical support from access to information about prisons by the
public than by occasional litigation in a busy court.
Some inmates - in Santa Rita, a substantial number - are pretrial detainees. Though confined pending
trial, they have not been convicted of an offense against society and are entitled to the presumption
of innocence. Certain penological objectives, i. e., punishment, deterrence, and rehabilitation, which
are legitimate in regard to convicted prisoners, are inapplicable to pretrial detainees. Society has a
special interest in ensuring that unconvicted citizens are treated in accord with their status.
In this case, the record demonstrates that both the public and the press had been consistently denied
any access to the inner portions of the Santa Rita jail, that there had been excessive censorship of
inmate correspondence, and that there was no valid justification for these broad restraints on the
flow of information. * * *
III
The preliminary injunction entered by the District Court granted relief to KQED without providing
any specific remedy for other members of the public. Moreover, it imposed duties on petitioner that
may not be required by the Constitution itself. The injunction was not an abuse of discretion for
either of these reasons. * * *
I would affirm the judgment of the Court of Appeals.

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Notes

1.
How effective do you think the Court’s suggested alternatives to press access to the prison
would be? Do you think that the current prison conditions would be improved - - - or at least
different - - - had the Court reached a different conclusion in KQED?
2.
Press access to military operations is similarly contested. In Nation Magazine v. U.S. Dep't of
Def., 762 F. Supp. 1558 (S.D.N.Y. 1991), a district judge rejected the claim of a number of publications
that the press has a First Amendment right to unlimited access to a foreign arena in which American
military forces are engaged. The plaintiffs had urged that the Department of Defense (DOD) “pooling”
regulations, which limit access to the battlefield to a specified number of press representatives and
subject them to certain restrictions, infringe on news gathering privileges accorded by the First
Amendment. The plaintiffs - - -including The Nation, Mother Jones, The Progressive Magazine, The
Village Voice, and Pacifica Radio News - - - also contended that the DOD preferences for certain news
organizations and reporters discriminated in favor of particular viewpoints, but the court found that
this claim was not adequately supported.
The subsequent process of “embedding” reporters is also subject to First Amendment
concerns, including discrimination and distortion of the news. For an excellent discussion see
Student Note, Elana J. Zeide, In Bed with the Military: First Amendment Implications of Embedded
Journalism, 80 N.Y.U. L. REV. 1309 (2005).

D.

(Un)lawful Information

Members of the press routinely use statutory or regulatory provisions such as the federal Freedom of
Information Act, 5 U.S.C. § 552, and its state counterparts to obtain “public” information.
They also use other means, including the receipt of anonymous information which may have been
gathered through unlawful means.

Note: Bartnicki v. Vopper

In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Court held that a statutory wiretapping prohibition
could not be constitutionally applied to a radio host who played a tape of an intercepted conversation
on his radio show. The host received the tape anonymously but had reason to know that the
conversation had been illegally intercepted. Title III of the Omnibus Crime Control and Safe Streets
Act of 1968, as amended, generally prohibited the interception of wire, electronic, and oral
communications. Title 18 U.S.C. § 2511(1)(a) applies to the person who willfully intercepts such
communications and subsection (c) to any person who, knowing or having reason to know that the
communication was obtained through an illegal interception, willfully discloses its contents.
The Court’s opinion, authored by Justice Stevens, stated:
The Government identifies two interests served by the statute — first, the interest in removing an
incentive for parties to intercept private conversations, and second, the interest in minimizing the
harm to persons whose conversations have been illegally intercepted. We assume that those interests
adequately justify the prohibition in § 2511(1)(d) against the interceptor's own use of information that
he or she acquired by violating § 2511(1)(a), but it by no means follows that punishing disclosures of
lawfully obtained information of public interest by one not involved in the initial illegality is an
acceptable means of serving those ends.

The Court considered the first interest not served by prohibiting third parties from disclosing the
information but took the second interest more seriously. The Court concluded, however, that in this
case - - - involving a conversation between members of a teachers’ union in negotiations and a
possible strike - - - an application of the anti-wiretap statute “implicates the core purposes of the
First Amendment because it imposes sanctions on the publication of truthful information of public
concern.” Stevens continued:
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The months of negotiations over the proper level of compensation for teachers at the Wyoming Valley
West High School were unquestionably a matter of public concern, and respondents were clearly
engaged in debate about that concern. That debate may be more mundane than the Communist
rhetoric that inspired Justice Brandeis' classic opinion in Whitney v. California (1919), but it is no less
worthy of constitutional protection.

Thus, privacy concerns gave way when balanced against the interest in publishing matters of public
importance.

E.

Reporters’ “privilege”
Branzburg v. Hayes
480 U.S. 665 (1972)

WHITE, J., WROTE THE OPINION OF THE COURT, IN WHICH BURGER, C.J., AND BLACKMUN, POWELL, AND REHNQUIST,
JJ., JOINED. POWELL, J., FILED A CONCURRING OPINION. DOUGLAS, J., FILED A DISSENTING OPINION. STEWART, J., FILED
A DISSENTING OPINION, IN WHICH BRENNAN AND MARSHALL, JJ., JOINED.
OPINION OF THE COURT BY JUSTICE WHITE, ANNOUNCED BY THE CHIEF JUSTICE
The issue in these cases is whether requiring newsmen to appear and testify before state or federal
grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold
that it does not.
[There were three consolidated cases: Branzburg was a reporter for the Louisville, Kentucky
newspaper the Courier-Journal, who published articles including his observations of people
“synthesizing hashish from marihuana” and the “drug scene” in Kentucky; Pappas was a television
reporter-photographer in Providence, Rhode Island who gained entrance to a Black Panther
headquarters waiting for a police raid that did not occur and did not write about the incident; and
Caldwell was a “reporter for the New York Times assigned to cover the Black Panther Party” in
Northern California. All three were subpoenaed by grand juries].
Petitioners Branzburg and Pappas and respondent Caldwell press First Amendment claims that may
be simply put: that to gather news it is often necessary to agree either not to identify the source of
information published or to publish only part of the facts revealed, or both; that if the reporter is
nevertheless forced to reveal these confidences to a grand jury, the source so identified and other
confidential sources of other reporters will be measurably deterred from furnishing publishable
information, all to the detriment of the free flow of information protected by the First Amendment.
Although the newsmen in these cases do not claim an absolute privilege against official interrogation
in all circumstances, they assert that the reporter should not be forced either to appear or to testify
before a grand jury or at trial until and unless sufficient grounds are shown for believing that the
reporter possesses information relevant to a crime the grand jury is investigating, that the
information the reporter has is unavailable from other sources, and that the need for the information
is sufficiently compelling to override the claimed invasion of First Amendment interests occasioned
by the disclosure. Principally relied upon are prior cases emphasizing the importance of the First
Amendment guarantees to individual development and to our system of representative government,
decisions requiring that official action with adverse impact on First Amendment rights be justified by
a public interest that is "compelling" or "paramount," and those precedents establishing the principle
that justifiable governmental goals may not be achieved by unduly broad means having an
unnecessary impact on protected rights of speech, press, or association. The heart of the claim is that
the burden on news gathering resulting from compelling reporters to disclose confidential
information outweighs any public interest in obtaining the information.
We do not question the significance of free speech, press, or assembly to the country's welfare. Nor is
it suggested that news gathering does not qualify for First Amendment protection; without some
protection for seeking out the news, freedom of the press could be eviscerated. But these cases
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involve no intrusions upon speech or assembly, no prior restraint or restriction on what the press
may publish, and no express or implied command that the press publish what it prefers to withhold.
No exaction or tax for the privilege of publishing, and no penalty, civil or criminal, related to the
content of published material is at issue here. The use of confidential sources by the press is not
forbidden or restricted; reporters remain free to seek news from any source by means within the
law. No attempt is made to require the press to publish its sources of information or indiscriminately
to disclose them on request.
The sole issue before us is the obligation of reporters to respond to grand jury subpoenas as other
citizens do and to answer questions relevant to an investigation into the commission of crime.
Citizens generally are not constitutionally immune from grand jury subpoenas; and neither the First
Amendment nor any other constitutional provision protects the average citizen from disclosing to a
grand jury information that he has received in confidence. The claim is, however, that reporters are
exempt from these obligations because if forced to respond to subpoenas and identify their sources
or disclose other confidences, their informants will refuse or be reluctant to furnish newsworthy
information in the future. This asserted burden on news gathering is said to make compelled
testimony from newsmen constitutionally suspect and to require a privileged position for them.
* * * The prevailing view is that the press is not free to publish with impunity everything and
anything it desires to publish. Although it may deter or regulate what is said or published, the press
may not circulate knowing or reckless falsehoods damaging to private reputation without subjecting
itself to liability for damages, including punitive damages, or even criminal prosecution. * * *
Despite the fact that news gathering may be hampered, the press is regularly excluded from grand
jury proceedings, our own conferences, the meetings of other official bodies gathered in executive
session, and the meetings of private organizations. Newsmen have no constitutional right of access to
the scenes of crime or disaster when the general public is excluded, and they may be prohibited from
attending or publishing information about trials if such restrictions are necessary to assure a
defendant a fair trial before an impartial tribunal. * * *
It is thus not surprising that the great weight of authority is that newsmen are not exempt from the
normal duty of appearing before a grand jury and answering questions relevant to a criminal
investigation. At common law, courts consistently refused to recognize the existence of any privilege
authorizing a newsman to refuse to reveal confidential information to a grand jury. * * *
A number of States have provided newsmen a statutory privilege of varying breadth, but the majority
have not done so, and none has been provided by federal statute. Until now the only testimonial
privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment
privilege against compelled self-incrimination. We are asked to create another by interpreting the
First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we
decline to do. * * *
MR. JUSTICE POWELL, CONCURRING.
I add this brief statement to emphasize what seems to me to be the limited nature of the Court's
holding. The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are
without constitutional rights with respect to the gathering of news or in safeguarding their sources.
Certainly, we do not hold, as suggested in Mr. Justice Stewart's dissenting opinion, that state and
federal authorities are free to "annex" the news media as "an investigative arm of government." The
solicitude repeatedly shown by this Court for First Amendment freedoms should be sufficient
assurance against any such effort, even if one seriously believed that the media - properly free and
untrammeled in the fullest sense of these terms - were not able to protect themselves.
As indicated in the concluding portion of the opinion, the Court states that no harassment of
newsmen will be tolerated. If a newsman believes that the grand jury investigation is not being
conducted in good faith he is not without remedy. Indeed, if the newsman is called upon to give
information bearing only a remote and tenuous relationship to the subject of the investigation, or if
he has some other reason to believe that his testimony implicates confidential source relationships
without a legitimate need of law enforcement, he will have access to the court on a motion to quash
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and an appropriate protective order may be entered. The asserted claim to privilege should be
judged on its facts by the striking of a proper balance between freedom of the press and the
obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of
these vital constitutional and societal interests on a case-by-case basis accords with the tried and
traditional way of adjudicating such questions. [Footnote*]
In short, the courts will be available to newsmen under circumstances where legitimate First
Amendment interests require protection.
[ Footnote * ] It is to be remembered that Caldwell asserts a constitutional privilege not even to appear
before the grand jury unless a court decides that the Government has made a showing that meets the
three preconditions specified in the dissenting opinion of Mr. Justice Stewart. To be sure, this would
require a "balancing" of interests by the court, but under circumstances and constraints significantly
different from the balancing that will be appropriate under the court's decision. The newsman witness,
like all other witnesses, will have to appear; he will not be in a position to litigate at the threshold the
State's very authority to subpoena him. Moreover, absent the constitutional preconditions that
Caldwell and that dissenting opinion would impose as heavy burdens of proof to be carried by the
State, the court - when called upon to protect a newsman from improper or prejudicial questioning would be free to balance the competing interests on their merits in the particular case. The new
constitutional rule endorsed by that dissenting opinion would, as a practical matter, defeat such a fair
balancing and the essential societal interest in the detection and prosecution of crime would be heavily
subordinated.

MR. JUSTICE DOUGLAS, DISSENTING.
* * * The starting point for decision pretty well marks the range within which the end result lies. The
New York Times, whose reporting functions are at issue here, takes the amazing position that First
Amendment rights are to be balanced against other needs or conveniences of government. My belief
is that all of the "balancing" was done by those who wrote the Bill of Rights. By casting the First
Amendment in absolute terms, they repudiated the timid, watered-down, emasculated versions of
the First Amendment which both the Government and the New York Times advance in the case. * * *
I see no way of making mandatory the disclosure of a reporter's confidential source of the
information on which he bases his news story. * * * The press has a preferred position in our
constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class,
but to bring fulfillment to the public's right to know. The right to know is crucial to the governing
powers of the people, to paraphrase Alexander Meiklejohn. Knowledge is essential to informed
decisions. * * *
* * * A reporter is no better than his source of information. Unless he has a privilege to withhold the
identity of his source, he will be the victim of governmental intrigue or aggression. If he can be
summoned to testify in secret before a grand jury, his sources will dry up and the attempted
exposure, the effort to enlighten the public, will be ended. If what the Court sanctions today becomes
settled law, then the reporter's main function in American society will be to pass on to the public the
press releases which the various departments of government issue.* * *
MR. JUSTICE STEWART, WITH WHOM MR. JUSTICE BRENNAN AND MR. JUSTICE MARSHALL JOIN, DISSENTING.
The Court's crabbed view of the First Amendment reflects a disturbing insensitivity to the critical
role of an independent press in our society. The question whether a reporter has a constitutional
right to a confidential relationship with his source is of first impression here, but the principles that
should guide our decision are as basic as any to be found in the Constitution. While Mr. Justice
Powell's enigmatic concurring opinion gives some hope of a more flexible view in the future, the
Court in these cases holds that a newsman has no First Amendment right to protect his sources when
called before a grand jury. The Court thus invites state and federal authorities to undermine the
historic independence of the press by attempting to annex the journalistic profession as an
investigative arm of government. Not only will this decision impair performance of the press'
constitutionally protected functions, but it will, I am convinced, in the long run harm rather than help
the administration of justice.
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* * * [W]hen a reporter is asked to appear before a grand jury and reveal confidences, I would hold
that the government must (1) show that there is probable cause to believe that the newsman has
information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the
information sought cannot be obtained by alternative means less destructive of First Amendment
rights; and (3) demonstrate a compelling and overriding interest in the information.

Cohen v. Cowles Media Co.
501 U.S. 663 (1991)
WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH REHNQUIST, C.J., AND STEVENS, SCALIA, AND KENNEDY,
JJ., JOINED. BLACKMUN, J., FILED A DISSENTING OPINION, IN WHICH MARSHALL AND SOUTER, JJ., JOINED, SOUTER, J.,
FILED A DISSENTING OPINION, IN WHICH MARSHALL, BLACKMUN, AND O'CONNOR, JJ., JOINED.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT.
The question before us is whether the First Amendment prohibits a plaintiff from recovering
damages, under state promissory estoppel law, for a newspaper's breach of a promise of
confidentiality given to the plaintiff in exchange for information. We hold that it does not.
During the closing days of the 1982 Minnesota gubernatorial race, Dan Cohen, an active Republican
associated with Wheelock Whitney's Independent-Republican gubernatorial campaign, approached
reporters from the St. Paul Pioneer Press Dispatch (Pioneer Press) and the Minneapolis Star and
Tribune (Star Tribune) and offered to provide documents relating to a candidate in the upcoming
election. Cohen made clear to the reporters that he would provide the information only if he was
given a promise of confidentiality. Reporters from both papers promised to keep Cohen's identity
anonymous, and Cohen turned over copies of two public court records concerning Marlene Johnson,
the Democratic-Farmer-Labor candidate for Lieutenant Governor. The first record indicated that
Johnson had been charged in 1969 with three counts of unlawful assembly, and the second that she
had been convicted in 1970 of petit theft. Both newspapers interviewed Johnson for her explanation,
and one reporter tracked down the person who had found the records for Cohen. As it turned out, the
unlawful assembly charges arose out of Johnson's participation in a protest of an alleged failure to
hire minority workers on municipal construction projects, and the charges were eventually
dismissed. The petit theft conviction was for leaving a store without paying for $6.00 worth of sewing
materials. The incident apparently occurred at a time during which Johnson was emotionally
distraught, and the conviction was later vacated.
After consultation and debate, the editorial staffs of the two newspapers independently decided to
publish Cohen's name as part of their stories concerning Johnson. In their stories, both papers
identified Cohen as the source of the court records, indicated his connection to the Whitney
campaign, and included denials by Whitney campaign officials of any role in the matter. The same
day the stories appeared, Cohen was fired by his employer.
Cohen sued respondents, the publishers of the Pioneer Press and Star Tribune, in Minnesota state
court, alleging fraudulent misrepresentation and breach of contract. The trial court rejected
respondents' argument that the First Amendment barred Cohen's lawsuit. A jury returned a verdict
in Cohen's favor, awarding him $200,000 in compensatory damages and $500,000 in punitive
damages. The Minnesota Court of Appeals, in a split decision, reversed the award of punitive
damages after concluding that Cohen had failed to establish a fraud claim, the only claim which
would support such an award. However, the court upheld the finding of liability for breach of
contract and the $200,000 compensatory damage award.
A divided Minnesota Supreme Court reversed the compensatory damages award. After affirming the
Court of Appeals' determination that Cohen had not established a claim for fraudulent
misrepresentation, the court considered his breach of contract claim and concluded that "a contract
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cause of action is inappropriate for these particular circumstances." The court then went on to
address the question whether Cohen could establish a cause of action under Minnesota law on a
promissory estoppel theory. * * * In addressing the promissory estoppel question, the court decided
that the most problematic element in establishing such a cause of action here was whether injustice
could be avoided only by enforcing the promise of confidentiality made to Cohen. The court stated
“Under a promissory estoppel analysis, there can be no neutrality towards the First Amendment. In
deciding whether it would be unjust not to enforce the promise, the court must necessarily weigh the
same considerations that are weighed for whether the First Amendment has been violated. The court
must balance the constitutional rights of a free press against the common law interest in protecting a
promise of anonymity.” After a brief discussion, the court concluded that “in this case, enforcement of
the promise of confidentiality under a promissory estoppel theory would violate defendants' First
Amendment rights.”
We granted certiorari to consider the First Amendment implications of this case.
There can be little doubt that the Minnesota doctrine of promissory estoppel is a law of general
applicability. It does not target or single out the press. Rather, insofar as we are advised, the doctrine
is generally applicable to the daily transactions of all the citizens of Minnesota. The First Amendment
does not forbid its application to the press.
Respondents and amici argue that permitting Cohen to maintain a cause of action for promissory
estoppel will inhibit truthful reporting because news organizations will have legal incentives not to
disclose a confidential source's identity even when that person's identity is itself newsworthy. Justice
Souter [in dissent] makes a similar argument. But if this is the case, it is no more than the incidental,
and constitutionally insignificant, consequence of applying to the press a generally applicable law
that requires those who make certain kinds of promises to keep them. Although we conclude that the
First Amendment does not confer on the press a constitutional right to disregard promises that
would otherwise be enforced under state law, we reject Cohen's request that, in reversing the
Minnesota Supreme Court's judgment, we reinstate the jury verdict awarding him $200,000 in
compensatory damages. The Minnesota Supreme Court's incorrect conclusion that the First
Amendment barred Cohen's claim may well have truncated its consideration of whether a
promissory estoppel claim had otherwise been established under Minnesota law, and whether
Cohen's jury verdict could be upheld on a promissory estoppel basis. Or perhaps the State
Constitution may be construed to shield the press from a promissory estoppel cause of action such as
this one. These are matters for the Minnesota Supreme Court to address and resolve in the first
instance on remand. Accordingly, the judgment of the Minnesota Supreme Court is reversed, and the
case is remanded for further proceedings not inconsistent with this opinion.
JUSTICE SOUTER, WITH WHOM JUSTICE MARSHALL, JUSTICE BLACKMUN AND JUSTICE O'CONNOR JOIN, DISSENTING.
* * * Because I do not believe the fact of general applicability to be dispositive, I find it necessary to
articulate, measure, and compare the competing interests involved in any given case to determine
the legitimacy of burdening constitutional interests, and such has been the Court's recent practice in
publication cases.
Nor can I accept the majority's position that we may dispense with balancing because the burden on
publication is in a sense "self-imposed" by the newspaper's voluntary promise of confidentiality. This
suggests both the possibility of waiver, the requirements for which have not been met here as well as
a conception of First Amendment rights as those of the speaker alone, with a value that may be
measured without reference to the importance of the information to public discourse. But freedom of
the press is ultimately founded on the value of enhancing such discourse for the sake of a citizenry
better informed, and thus more prudently self-governed.
* * * The importance of this public interest is integral to the balance that should be struck in this case.
There can be no doubt that the fact of Cohen's identity expanded the universe of information relevant
to the choice faced by Minnesota voters in that State's 1982 gubernatorial election, the publication of
which was thus of the sort quintessentially subject to strict First Amendment protection. The
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propriety of his leak to respondents could be taken to reflect on his character, which in turn could be
taken to reflect on the character of the candidate who had retained him as an adviser. An election
could turn on just such a factor; if it should, I am ready to assume that it would be to the greater
public good, at least over the long run.
This is not to say that the breach of such a promise of confidentiality could never give rise to liability.
One can conceive of situations in which the injured party is a private individual whose identity is of
less public concern than that of the petitioner; liability there might not be constitutionally prohibited.
Nor do I mean to imply that the circumstances of acquisition are irrelevant to the balance although
they may go only to what balances against, and not to diminish, the First Amendment value of any
particular piece of information.
Because I believe the State's interest in enforcing a newspaper's promise of confidentiality
insufficient to outweigh the interest in unfettered publication of the information revealed in this case,
I respectfully dissent.

Notes
1.
On remand in Cohen v. Cowles, the Minnesota Supreme Court declined to provide broader
protection under its state constitutional provision than the United States Supreme Court recognized
under the First Amendment, although recognizing it was free to do so. Its reasoning in part was
based on the novelty of the issue: “The enforceability of promises of confidentiality given a news
source is an issue of first impression, and this case presents only one variation of such promises. The
full First Amendment implications of this new issue may not yet have surfaced.” The court upheld the
award of $200,000 on the theory of promissory estoppel. Cohen v. Cowles Media Co., 479 N.W.2d 387,
391 (Minn. 1992).
2.
The meaning of Branzburg is hotly debated. In its sharply divided opinion in United States v.
Sterling, 724 F.3d 482 (4th Cir. 2013) cert. denied sub nom. Risen v. United States, 576 U.S. ___ (2014),
the Fourth Circuit majority held:
There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from
being compelled to testify by the prosecution or the defense in criminal proceedings about criminal
conduct that the reporter personally witnessed or participated in, absent a showing of bad faith,
harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to
his source. In Branzburg v. Hayes (1972), the Supreme Court “in no uncertain terms rejected the
existence of such a privilege.” In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1146
(D.C.Cir.2006).

However, the dissenting judge argued:
The full import of Justice Powell's concurrence continues to be debated. Some analogize the Branzburg
majority opinion to a plurality opinion, and therefore assert Justice Powell's concurrence as the
narrowest opinion is controlling. See In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141, 1148
(D.C.Cir.2006) (describing appellants' argument that in a five-to-four decision, “the opinion of the least
encompassing justice [ ] determines the precedent set by the decision”). Others, like my good friends in
the majority, treat Justice Powell's concurrence as ancillary, and simply rejoin that “the meaning of a
majority opinion is to be found within the opinion itself.”
Given this confusion, appellate courts have subsequently hewed closer to Justice Powell's
concurrence—and Justice Stewart's dissent—than to the majority opinion, and a number of courts
have since recognized a qualified reporter's privilege, often utilizing a three-part balancing test. See,
e.g., United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir.1986) (applying the reporter's privilege in
the criminal context); United States v. Burke, 700 F.2d 70, 76–77 (2d Cir.1983) (recognizing the
qualified privilege in criminal cases); Zerilli v. Smith, 656 F.2d 705, 711–13 (D.C.Cir.1981) (applying
the reporter's privilege in a civil case). Indeed, a mere five years after Branzburg, a federal court of
appeals confidently asserted that the existence of a qualified reporter's privilege was “no longer in
doubt.” Silkwood v. Kerr–McGee Corp., 563 F.2d 433, 437 (10th Cir.1977). In short, Justice Powell's
concurrence and the subsequent appellate history have made the lessons of Branzburg about as clear
as mud.
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3.
The cases involving a First Amendment reporter’s privilege also discuss whether there is a
common law right. Additionally, many states have reporter’s shield laws. There has also long been
pending legislation in Congress to adopt a federal reporter’s shield law, see Free Flow of Information
Act, SB 987 (available at: https://www.congress.gov/ congressional-report/113th-congress/senatereport/118/1).
Do you think a statutory remedy is a good idea? Why or why not?

F.

Right of Reply?
Miami Herald Publishing Co. v. Tornillo
418 U.S. 241 (1974)

CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE [UNANIMOUS] COURT. BRENNAN, J., FILED A CONCURRING
OPINION IN WHICH REHNQUIST, J., JOINED. WHITE, J., FILED A CONCURRING OPINION.
BURGER, C.J., FOR THE COURT.
The issue in this case is whether a state statute granting a political candidate a right to equal space to
reply to criticism and attacks on his record by a newspaper violates the guarantees of a free press.
I
In the fall of 1972, appellee, Executive Director of the Classroom Teachers Association, apparently a
teachers' collective-bargaining agent, was a candidate for the Florida House of Representatives. On
September 20, 1972, and again on September 29, 1972, appellant printed editorials critical of
appellee's candidacy. In response to these editorials appellee demanded that appellant print
verbatim his replies, defending the role of the Classroom Teachers Association and the organization's
accomplishments for the citizens of Dade County. Appellant declined to print the appellee's replies,
and appellee brought suit in Circuit Court, Dade County, seeking declaratory and injunctive relief and
actual and punitive damages in excess of $5,000. The action was premised on Florida Statute §104.38
(1973), a "right of reply" statute which provides that if a candidate for nomination or election is
assailed regarding his personal character or official record by any newspaper, the candidate has the
right to demand that the newspaper print, free of cost to the candidate, any reply the candidate may
make to the newspaper's charges. The reply must appear in as conspicuous a place and in the same
kind of type as the charges which prompted the reply, provided it does not take up more space than
the charges. Failure to comply with the statute constitutes a first-degree misdemeanor.
Appellant sought a declaration that §104.38 was unconstitutional. After an emergency hearing
requested by appellee, the Circuit Court denied injunctive relief because, absent special
circumstances, no injunction could properly issue against the commission of a crime, and held that
104.38 was unconstitutional as an infringement on the freedom of the press under the First and
Fourteenth Amendments to the Constitution. The Circuit Court concluded that dictating what a
newspaper must print was no different from dictating what it must not print. The Circuit Judge
viewed the statute's vagueness as serving "to restrict and stifle protected expression." Appellee's
cause was dismissed with prejudice.
On direct appeal, the Florida Supreme Court reversed, holding that 104.38 did not violate
constitutional guarantees. It held that free speech was enhanced and not abridged by the Florida
right-of-reply statute, which in that court's view, furthered the "broad societal interest in the free
flow of information to the public." It also held that the statute is not impermissibly vague; the statute
informs "those who are subject to it as to what conduct on their part will render them liable to its
penalties." Civil remedies, including damages, were held to be available under this statute; the case
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was remanded to the trial court for further proceedings not inconsistent with the Florida Supreme
Court's opinion.
We postponed consideration of the question of jurisdiction to the hearing of the case on the merits.
II
[jurisdictional discussion omitted]
III
A
The challenged statute creates a right to reply to press criticism of a candidate for nomination or
election. The statute was enacted in 1913, and this is only the second recorded case decided under its
provisions.
Appellant contends the statute is void on its face because it purports to regulate the content of a
newspaper in violation of the First Amendment. Alternatively it is urged that the statute is void for
vagueness since no editor could know exactly what words would call the statute into operation. It is
also contended that the statute fails to distinguish between critical comment which is and which is
not defamatory.
B
The appellee and supporting advocates of an enforceable right of access to the press vigorously argue
that government has an obligation to ensure that a wide variety of views reach the public. The
contentions of access proponents will be set out in some detail. It is urged that at the time the First
Amendment to the Constitution was ratified in 1791 as part of our Bill of Rights the press was
broadly representative of the people it was serving. While many of the newspapers were intensely
partisan and narrow in their views, the press collectively presented a broad range of opinions to
readers. Entry into publishing was inexpensive; pamphlets and books provided meaningful
alternatives to the organized press for the expression of unpopular ideas and often treated events
and expressed views not covered by conventional newspapers. A true marketplace of ideas existed in
which there was relatively easy access to the channels of communication.
Access advocates submit that although newspapers of the present are superficially similar to those of
1791 the press of today is in reality very different from that known in the early years of our national
existence. In the past half century a communications revolution has seen the introduction of radio
and television into our lives, the promise of a global community through the use of communications
satellites, and the specter of a "wired" nation by means of an expanding cable television network
with two-way capabilities. The printed press, it is said, has not escaped the effects of this revolution.
Newspapers have become big business and there are far fewer of them to serve a larger literate
population. Chains of newspapers, national newspapers, national wire and news services, and onenewspaper towns, are the dominant features of a press that has become noncompetitive and
enormously powerful and influential in its capacity to manipulate popular opinion and change the
course of events. Major metropolitan newspapers have collaborated to establish news services
national in scope. Such national news organizations provide syndicated "interpretive reporting" as
well as syndicated features and commentary, all of which can serve as part of the new school of
"advocacy journalism."
The elimination of competing newspapers in most of our large cities, and the concentration of control
of media that results from the only newspaper's being owned by the same interests which own a
television station and a radio station, are important components of this trend toward concentration
of control of outlets to inform the public.
The result of these vast changes has been to place in a few hands the power to inform the American
people and shape public opinion. Much of the editorial opinion and commentary that is printed is
that of syndicated columnists distributed nationwide and, as a result, we are told, on national and
world issues there tends to be a homogeneity of editorial opinion, commentary, and interpretive
analysis. The abuses of bias and manipulative reportage are, likewise, said to be the result of the vast
accumulations of unreviewable power in the modern media empires. In effect, it is claimed, the
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public has lost any ability to respond or to contribute in a meaningful way to the debate on issues.
The monopoly of the means of communication allows for little or no critical analysis of the media
except in professional journals of very limited readership. * * *
The obvious solution, which was available to dissidents at an earlier time when entry into publishing
was relatively inexpensive, today would be to have additional newspapers. But the same economic
factors which have caused the disappearance of vast numbers of metropolitan newspapers, have
made entry into the marketplace of ideas served by the print media almost impossible. It is urged
that the claim of newspapers to be "surrogates for the public" carries with it a concomitant fiduciary
obligation to account for that stewardship. From this premise it is reasoned that the only effective
way to insure fairness and accuracy and to provide for some accountability is for government to take
affirmative action. The First Amendment interest of the public in being informed is said to be in peril
because the "marketplace of ideas" is today a monopoly controlled by the owners of the market.
Proponents of enforced access to the press take comfort from language in several of this Court's
decisions which suggests that the First Amendment acts as a sword as well as a shield, that it imposes
obligations on the owners of the press in addition to protecting the press from government
regulation. * * *
IV
However much validity may be found in these arguments, at each point the implementation of a
remedy such as an enforceable right of access necessarily calls for some mechanism, either
governmental or consensual. If it is governmental coercion, this at once brings about a confrontation
with the express provisions of the First Amendment and the judicial gloss on that Amendment
developed over the years. * * *
We see that * * * the Court has expressed sensitivity as to whether a restriction or requirement
constituted the compulsion exerted by government on a newspaper to print that which it would not
otherwise print. The clear implication has been that any such a compulsion to publish that which
"`reason' tells them should not be published" is unconstitutional. A responsible press is an
undoubtedly desirable goal, but press responsibility is not mandated by the Constitution and like
many other virtues it cannot be legislated.
Appellee's argument that the Florida statute does not amount to a restriction of appellant's right to
speak because "the statute in question here has not prevented the Miami Herald from saying
anything it wished" begs the core question. Compelling editors or publishers to publish that which
"`reason' tells them should not be published" is what is at issue in this case. The Florida statute
operates as a command in the same sense as a statute or regulation forbidding appellant to publish
specified matter. Governmental restraint on publishing need not fall into familiar or traditional
patterns to be subject to constitutional limitations on governmental powers. The Florida statute
exacts a penalty on the basis of the content of a newspaper. The first phase of the penalty resulting
from the compelled printing of a reply is exacted in terms of the cost in printing and composing time
and materials and in taking up space that could be devoted to other material the newspaper may
have preferred to print. It is correct, as appellee contends, that a newspaper is not subject to the
finite technological limitations of time that confront a broadcaster but it is not correct to say that, as
an economic reality, a newspaper can proceed to infinite expansion of its column space to
accommodate the replies that a government agency determines or a statute commands the readers
should have available.
Faced with the penalties that would accrue to any newspaper that published news or commentary
arguably within the reach of the right-of-access statute, editors might well conclude that the safe
course is to avoid controversy. Therefore, under the operation of the Florida statute, political and
electoral coverage would be blunted or reduced. Government-enforced right of access inescapably
"dampens the vigor and limits the variety of public debate," New York Times Co. v. Sullivan (1964). *
**
Even if a newspaper would face no additional costs to comply with a compulsory access law and
would not be forced to forgo publication of news or opinion by the inclusion of a reply, the Florida
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statute fails to clear the barriers of the First Amendment because of its intrusion into the function of
editors. A newspaper is more than a passive receptacle or conduit for news, comment, and
advertising. The choice of material to go into a newspaper, and the decisions made as to limitations
on the size and content of the paper, and treatment of public issues and public officials - whether fair
or unfair - constitute the exercise of editorial control and judgment. It has yet to be demonstrated
how governmental regulation of this crucial process can be exercised consistent with First
Amendment guarantees of a free press as they have evolved to this time. Accordingly, the judgment
of the Supreme Court of Florida is reversed.
It is so ordered.
BRENNAN, J., WITH WHOM REHNQUIST, J., JOINS, CONCURRING.
I join the Court's opinion which, as I understand it, addresses only "right of reply" statutes and
implies no view upon the constitutionality of "retraction" statutes affording plaintiffs able to prove
defamatory falsehoods a statutory action to require publication of a retraction. See generally Note,
Vindication of the Reputation of a Public Official, 80 Harv. L. Rev. 1730, 1739-1747 (1967).
WHITE, J., CONCURRING [OMITTED].

Notes

1.
How have the concerns raised in Tornillo been altered by the change in media landscape in
the “information age” of the internet?
2.
Consider the First Amendment arguments against so-called “paparazzi” laws meant to limit
members of the press from invading the privacy of celebrities.
For example, California Vehicle Code § 40008 entitled “Intent to capture image, recording or
impression for a commercial purpose,” passed in 2011, provides in part:
a) Notwithstanding any other provision of law, except as otherwise provided in subdivision (c)
[providing for multiple penalties], any person who violates Section 21701[Interference with driver or
mechanism] 21703 [Following too closely], or 23103[Reckless driving] with the intent to capture any
type of visual image, sound recording, or other physical impression of another person for a commercial
purpose, is guilty of a misdemeanor and not an infraction and shall be punished by imprisonment in a
county jail for not more than six months and by a fine of not more than two thousand five hundred
dollars ($2,500).

In 2014, California Civil Code §1708.8 was amended to provide:
(a) A person is liable for physical invasion of privacy when the defendant knowingly enters onto the
land of another person without permission or otherwise committed a trespass in order to capture any
type of visual image, sound recording, or other physical impression of the plaintiff engaging in a private,
personal, or familial activity and the invasion occurs in a manner that is offensive to a reasonable
person.
(b) A person is liable for constructive invasion of privacy when the defendant attempts to capture, in a
manner that is offensive to a reasonable person, any type of visual image, sound recording, or other
physical impression of the plaintiff engaging in a private, personal, or familial activity, through the use
of a visual or auditory enhancing device, regardless of whether there is a physical trespass, if this
image, sound recording, or other physical impression could not have been achieved without a trespass
unless the visual or auditory enhancing device was used.

Do you think such laws should be upheld as constitutional?

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Note: Taxation of the Press

Taxing the press, especially as a means of regulation, restraint, and control of speech rather than the
raising of revenue, has roots in English Acts, and was arguably disfavored by the framers of the First
Amendment.
The general key in these cases is not that the press or media is subject to tax, but that this tax is
somehow discriminatory or aimed at their speech.
The United States Supreme Court’s most famous press-taxing case is Grosjean v. American Press Co.,
297 U.S. 233 (1936), in which a unanimous Court held unconstitutional a Louisiana statute taxing at
2% of gross receipts all publications with a circulation of over 20,000 copies per week. While the
Court discussed the history of taxing the press and waxed eloquent on press freedom - - - and some
of this language is quoted in subsequent cases - - - the Court found the form of the tax “suspicious.”
What is not apparent from the published opinion, but is well-documented in the briefs and other
discussions of the case, is that the tax was passed with the encouragement of Governor Huey Long,
known as the “Kingfisher,” and that the larger media outlets in the state who were being subject to
the tax were opposed to the Governor.
In Minneapolis Star & Tribune Co. v. Minnesota Com'r of Revenue, 460 U.S. 575 (1983), the Court held
unconstitutional a “use tax” on the cost of paper and ink products consumed in the production of
such a publication, exempting the first $100,000 worth of paper and ink consumed in any calendar
year. Although there was no indication of a bad motive as in Grosjean, Minnesota’s singling out the
press for special treatment, with a tax that was not structured similar to any other state tax,
suggested that the goal of the tax is not unrelated to suppression of expression, and such goal is
presumptively unconstitutional.
In Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 22 (1987), the Court held unconstitutional a tax
scheme that taxed general interest magazines, but exempted newspapers and religious, professional,
trade, and sports journals. Again, there was no Grosjean bad motive, but the Court applied strict
scrutiny finding there was content discrimination.
However, in Leathers v. Medlock, 499 U.S. 439 (1991), the Court upheld the Arkansas taxing scheme
that exempted print media from sales tax but did not exempt cable television. The Court held that
although cable television, which provides news, information, and entertainment to its subscribers, is
engaged in “speech” and is part of the “press” in much of its operation, the fact that it is taxed
differently from other media does not by itself raise First Amendment concerns. Here, the Court
found it important that there was no evidence of censorious intent and there was no discrimination
based on content; discrimination based on speakers, without more, did not merit strict scrutiny.

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IV. Freedom of the Press and Tort Actions
The “constitutionalization” of defamation and other torts is often viewed as integral to not abridging
freedom of the press. Consider how First Amendment doctrine and tort doctrine become intertwined.

A.

Defamation
New York Times Co. v. Sullivan
376 U.S. 254 (1964)

BRENNAN J., FOR THE UNANIMOUS COURT. BLACK, J., ISSUED A CONCURRING OPINION JOINED BY DOUGLAS, J.
GOLDBERG, J., ISSUED A CONCURRING OPINION JOINED BY DOUGLAS, J.
JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT.
We are required in this case to determine for the first time the extent to which the constitutional
protections for speech and press limit a State's power to award damages in a libel action brought by a
public official against critics of his official conduct.
Respondent L. B. Sullivan is one of the three elected Commissioners of the City of Montgomery,
Alabama. He testified that he was "Commissioner of Public Affairs and the duties are supervision of
the Police Department, Fire Department, Department of Cemetery and Department of Scales." He
brought this civil libel action against the four individual petitioners, who are Negroes and Alabama
clergymen, and against petitioner the New York Times Company, a New York corporation which
publishes the New York Times, a daily newspaper. A jury in the Circuit Court of Montgomery County
awarded him damages of $500,000, the full amount claimed, against all the petitioners, and the
Supreme Court of Alabama affirmed.
Respondent's complaint alleged that he had been libeled by statements in a full-page advertisement
that was carried in the New York Times on March 29, 1960. Entitled "Heed Their Rising Voices," the
advertisement began by stating that "As the whole world knows by now, thousands of Southern
Negro students are engaged in widespread non-violent demonstrations in positive affirmation of the
right to live in human dignity as guaranteed by the U.S. Constitution and the Bill of Rights." It went on
to charge that "in their efforts to uphold these guarantees, they are being met by an unprecedented
wave of terror by those who would deny and negate that document which the whole world looks
upon as setting the pattern for modern freedom. . . ." Succeeding paragraphs purported to illustrate
the "wave of terror" by describing certain alleged events. The text concluded with an appeal for funds
for three purposes: support of the student movement, "the struggle for the right-to-vote," and the
legal defense of Dr. Martin Luther King, Jr., leader of the movement, against a perjury indictment then
pending in Montgomery.
The text appeared over the names of 64 persons, many widely known for their activities in public
affairs, religion, trade unions, and the performing arts. Below these names, and under a line reading
"We in the south who are struggling daily for dignity and freedom warmly endorse this appeal,"
appeared the names of the four individual petitioners and of 16 other persons, all but two of whom
were identified as clergymen in various Southern cities. The advertisement was signed at the bottom
of the page by the "Committee to Defend Martin Luther King and the Struggle for Freedom in the
South," and the officers of the Committee were listed.
Of the 10 paragraphs of text in the advertisement, the third and a portion of the sixth were the basis
of respondent's claim of libel. They read as follows:
Third paragraph:

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"In Montgomery, Alabama, after students sang `My Country, 'Tis of Thee' on the State Capitol steps,
their leaders were expelled from school, and truckloads of police armed with shotguns and tear-gas
ringed the Alabama State College Campus. When the entire student body protested to state authorities
by refusing to re-register, their dining hall was padlocked in an attempt to starve them into
submission."

Sixth paragraph:
"Again and again the Southern violators have answered Dr. King's peaceful protests with intimidation
and violence. They have bombed his home almost killing his wife and child. They have assaulted his
person. They have arrested him seven times - for `speeding,' `loitering' and similar `offenses.' And now
they have charged him with ‘perjury’ - a felony under which they could imprison him for ten years. . . ."

Although neither of these statements mentions respondent by name, he contended that the word
"police" in the third paragraph referred to him as the Montgomery Commissioner who supervised
the Police Department, so that he was being accused of "ringing" the campus with police. He further
claimed that the paragraph would be read as imputing to the police, and hence to him, the padlocking
of the dining hall in order to starve the students into submission. 2 As to the sixth paragraph, he
contended that since arrests are ordinarily made by the police, the statement "They have arrested
[Dr. King] seven times" would be read as referring to him; he further contended that the "They" who
did the arresting would be equated with the "They" who committed the other described acts and
with the "Southern violators." Thus, he argued, the paragraph would be read as accusing the
Montgomery police, and hence him, of answering Dr. King's protests with "intimidation and
violence," bombing his home, assaulting his person, and charging him with perjury. Respondent and
six other Montgomery residents testified that they read some or all of the statements as referring to
him in his capacity as Commissioner.
It is uncontroverted that some of the statements contained in the paragraphs were not accurate
descriptions of events which occurred in Montgomery. Although Negro students staged a
demonstration on the State Capitol steps, they sang the National Anthem and not "My Country, 'Tis of
Thee." Although nine students were expelled by the State Board of Education, this was not for leading
the demonstration at the Capitol, but for demanding service at a lunch counter in the Montgomery
County Courthouse on another day. Not the entire student body, but most of it, had protested the
expulsion, not by refusing to register, but by boycotting classes on a single day; virtually all the
students did register for the ensuing semester. The campus dining hall was not padlocked on any
occasion, and the only students who may have been barred from eating there were the few who had
neither signed a preregistration application nor requested temporary meal tickets. Although the
police were deployed near the campus in large numbers on three occasions, they did not at any time
"ring" the campus, and they were not called to the campus in connection with the demonstration on
the State Capitol steps, as the third paragraph implied. Dr. King had not been arrested seven times,
but only four; and although he claimed to have been assaulted some years earlier in connection with
his arrest for loitering outside a courtroom, one of the officers who made the arrest denied that there
was such an assault.
On the premise that the charges in the sixth paragraph could be read as referring to him, respondent
was allowed to prove that he had not participated in the events described. Although Dr. King's home
had in fact been bombed twice when his wife and child were there, both of these occasions antedated
respondent's tenure as Commissioner, and the police were not only not implicated in the bombings,
but had made every effort to apprehend those who were. Three of Dr. King's four arrests took place
before respondent became Commissioner. Although Dr. King had in fact been indicted (he was
subsequently acquitted) on two counts of perjury, each of which carried a possible five-year sentence,
respondent had nothing to do with procuring the indictment.
Respondent made no effort to prove that he suffered actual pecuniary loss as a result of the alleged
libel. * * * The trial judge submitted the case to the jury under instructions that the statements in the
advertisement were "libelous per se" and were not privileged, so that petitioners might be held liable
if the jury found that they had published the advertisement and that the statements were made "of
and concerning" respondent. The jury was instructed that, because the statements were libelous per
se, "the law . . . implies legal injury from the bare fact of publication itself," "falsity and malice are
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presumed," "general damages need not be alleged or proved but are presumed," and "punitive
damages may be awarded by the jury even though the amount of actual damages is neither found nor
shown." An award of punitive damages - as distinguished from "general" damages, which are
compensatory in nature - apparently requires proof of actual malice under Alabama law, and the
judge charged that "mere negligence or carelessness is not evidence of actual malice or malice in fact,
and does not justify an award of exemplary or punitive damages." He refused to charge, however,
that the jury must be "convinced" of malice, in the sense of "actual intent" to harm or "gross
negligence and recklessness," to make such an award, and he also refused to require that a verdict for
respondent differentiate between compensatory and punitive damages. The judge rejected
petitioners' contention that his rulings abridged the freedoms of speech and of the press that are
guaranteed by the First and Fourteenth Amendments.
[The jury found for the plaintiff and the Supreme Court of Alabama affirmed]. Because of the
importance of the constitutional issues involved, we granted the separate petitions for certiorari of
the individual petitioners and of the Times. We reverse the judgment. We hold that the rule of law
applied by the Alabama courts is constitutionally deficient for failure to provide the safeguards for
freedom of speech and of the press that are required by the First and Fourteenth Amendments in a
libel action brought by a public official against critics of his official conduct. We further hold that
under the proper safeguards the evidence presented in this case is constitutionally insufficient to
support the judgment for respondent.
[The Court first held that there was state action and that the publication was not a "commercial"
advertisement unprotected by the First Amendment because it “communicated information,
expressed opinion, recited grievances, protested claimed abuses, and sought financial support on
behalf of a movement whose existence and objectives are matters of the highest public interest and
concern.”]
Under Alabama law as applied in this case, a publication is "libelous per se" if the words "tend to
injure a person . . . in his reputation" or to "bring [him] into public contempt.” * * * Once "libel per se"
has been established, the defendant has no defense as to stated facts unless he can persuade the jury
that they were true in all their particulars. * * *
The question before us is whether this rule of liability, as applied to an action brought by a public
official against critics of his official conduct, abridges the freedom of speech and of the press that is
guaranteed by the first and Fourteenth Amendments. * * * In deciding the question now, we are
compelled by neither precedent nor policy to give any more weight to the epithet "libel" than we
have to other "mere labels" of state law. Like insurrection, contempt, advocacy of unlawful acts,
breach of the peace, obscenity, solicitation of legal business, and the various other formulae for the
repression of expression that have been challenged in this court, libel can claim no talismanic
immunity from constitutional limitations. It must be measured by standards that satisfy the First
Amendment.
The general proposition that freedom of expression upon public questions is secured by the First
Amendment has long been settled by our decisions. * * *
Thus we consider this case against the background of a profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may
well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public
officials. The present advertisement, as an expression of grievance and protest on one of the major
public issues of our time, would seem clearly to qualify for the constitutional protection. The
question is whether it forfeits that protection by the falsity of some of its factual statements and by
its alleged defamation of respondent.
Authoritative interpretations of the First Amendment guarantees have consistently refused to
recognize an exception for any test of truth - whether administered by judges, juries, or
administrative officials - and especially one that puts the burden of proving truth on the speaker. The
constitutional protection does not turn upon "the truth, popularity, or social utility of the ideas and
beliefs which are offered." As Madison said, "Some degree of abuse is inseparable from the proper
use of everything; and in no instance is this more true than in that of the press." * * *
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[E]rroneous statement is inevitable in free debate, and * * * must be protected if the freedoms of
expression are to have the "breathing space" that they "need . . . to survive."
Injury to official reputation affords no more warrant for repressing speech that would otherwise be
free than does factual error. Where judicial officers are involved, this Court has held that concern for
the dignity and reputation of the courts does not justify the punishment as criminal contempt of
criticism of the judge or his decision. This is true even though the utterance contains "half-truths"
and "misinformation." Such repression can be justified, if at all, only by a clear and present danger of
the obstruction of justice. If judges are to be treated as "men of fortitude, able to thrive in a hardy
climate," surely the same must be true of other government officials, such as elected city
commissioners. Criticism of their official conduct does not lose its constitutional protection merely
because it is effective criticism and hence diminishes their official reputations.
If neither factual error nor defamatory content suffices to remove the constitutional shield from
criticism of official conduct, the combination of the two elements is no less inadequate. This is the
lesson to be drawn from the great controversy over the Sedition Act of 1798 which first crystallized a
national awareness of the central meaning of the First Amendment. That statute made it a crime,
punishable by a $5,000 fine and five years in prison, "if any person shall write, print, utter or
publish . . . any false, scandalous and malicious writing or writings against the government of the
United States, or either house of the Congress. . ., or the President . . ., with intent to defame . . . or to
bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any
of them, the hatred of the good people of the United States." The Act allowed the defendant the
defense of truth, and provided that the jury were to be judges both of the law and the facts. Despite
these qualifications, the Act was vigorously condemned as unconstitutional in an attack joined in by
Jefferson and Madison. * * *
Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the
day in the court of history. * * * [There is] a broad consensus that the Act, because of the restraint it
imposed upon criticism of government and public officials, was inconsistent with the First
Amendment. * * * There is no force in respondent's argument that the constitutional limitations
implicit in the history of the Sedition Act apply only to Congress and not to the States. * * * [T]his
distinction was eliminated with the adoption of the Fourteenth Amendment and the application to
the States of the First Amendment's restrictions.
What a State may not constitutionally bring about by means of a criminal statute is likewise beyond
the reach of its civil law of libel. The fear of damage awards under a rule such as that invoked by the
Alabama courts here may be markedly more inhibiting than the fear of prosecution under a criminal
statute. * * * The judgment awarded in this case - without the need for any proof of actual pecuniary
loss - was one thousand times greater than the maximum fine provided by the Alabama criminal
statute, and one hundred times greater than that provided by the Sedition Act. And since there is no
double-jeopardy limitation applicable to civil lawsuits, this is not the only judgment that may be
awarded against petitioners for the same publication. Whether or not a newspaper can survive a
succession of such judgments, the pall of fear and timidity imposed upon those who would give voice
to public criticism is an atmosphere in which the First Amendment freedoms cannot survive. Plainly
the Alabama law of civil libel is "a form of regulation that creates hazards to protected freedoms
markedly greater than those that attend reliance upon the criminal law."
The state rule of law is not saved by its allowance of the defense of truth. * * *
A rule compelling the critic of official conduct to guarantee the truth of all his factual assertions - and
to do so on pain of libel judgments virtually unlimited in amount - leads to a comparable "selfcensorship." Allowance of the defense of truth, with the burden of proving it on the defendant, does
not mean that only false speech will be deterred. Even courts accepting this defense as an adequate
safeguard have recognized the difficulties of adducing legal proofs that the alleged libel was true in
all its factual particulars. Under such a rule, would-be critics of official conduct may be deterred from
voicing their criticism, even though it is believed to be true and even though it is in fact true, because
of doubt whether it can be proved in court or fear of the expense of having to do so. They tend to

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make only statements which "steer far wider of the unlawful zone." The rule thus dampens the vigor
and limits the variety of public debate. It is inconsistent with the First and Fourteenth Amendments.
The constitutional guarantees require, we think, a federal rule that prohibits a public official from
recovering damages for a defamatory falsehood relating to his official conduct unless he proves that
the statement was made with "actual malice" - that is, with knowledge that it was false or with
reckless disregard of whether it was false or not. * * *
Such a privilege for criticism of official conduct is appropriately analogous to the protection accorded
a public official when he is sued for libel by a private citizen. * * * Analogous considerations support
the privilege for the citizen-critic of government. It is as much his duty to criticize as it is the official's
duty to administer. * * * We conclude that such a privilege is required by the First and Fourteenth
Amendments.
We hold today that the Constitution delimits a State's power to award damages for libel in actions
brought by public officials against critics of their official conduct. Since this is such an action, the rule
requiring proof of actual malice is applicable. While Alabama law apparently requires proof of actual
malice for an award of punitive damages, where general damages are concerned malice is
"presumed." Such a presumption is inconsistent with the federal rule.* * * Since the trial judge did not
instruct the jury to differentiate between general and punitive damages, it may be that the verdict
was wholly an award of one or the other. But it is impossible to know, in view of the general verdict
returned. Because of this uncertainty, the judgment must be reversed and the case remanded.
Since respondent may seek a new trial, we deem that considerations of effective judicial
administration require us to review the evidence in the present record to determine whether it could
constitutionally support a judgment for respondent. This Court's duty is not limited to the
elaboration of constitutional principles; we must also in proper cases review the evidence to make
certain that those principles have been constitutionally applied. This is such a case, particularly since
the question is one of alleged trespass across "the line between speech unconditionally guaranteed
and speech which may legitimately be regulated." In cases where that line must be drawn, the rule is
that we "examine for ourselves the statements in issue and the circumstances under which they were
made to see . . . whether they are of a character which the principles of the First Amendment, as
adopted by the Due Process Clause of the Fourteenth Amendment, protect." We must "make an
independent examination of the whole record," so as to assure ourselves that the judgment does not
constitute a forbidden intrusion on the field of free expression.
Applying these standards, we consider that the proof presented to show actual malice lacks the
convincing clarity which the constitutional standard demands, and hence that it would not
constitutionally sustain the judgment for respondent under the proper rule of law. * * * [T]here is
evidence that the Times published the advertisement without checking its accuracy against the news
stories in the Times' own files. The mere presence of the stories in the files does not, of course,
establish that the Times "knew" the advertisement was false, since the state of mind required for
actual malice would have to be brought home to the persons in the Times' organization having
responsibility for the publication of the advertisement. With respect to the failure of those persons to
make the check, the record shows that they relied upon their knowledge of the good reputation of
many of those whose names were listed as sponsors of the advertisement, and upon the letter from
A. Philip Randolph, known to them as a responsible individual, certifying that the use of the names
was authorized. There was testimony that the persons handling the advertisement saw nothing in it
that would render it unacceptable under the Times' policy of rejecting advertisements containing
"attacks of a personal character"; their failure to reject it on this ground was not unreasonable. We
think the evidence against the Times supports at most a finding of negligence in failing to discover
the misstatements, and is constitutionally insufficient to show the recklessness that is required for a
finding of actual malice.
We also think the evidence was constitutionally defective in another respect: it was incapable of
supporting the jury's finding that the allegedly libelous statements were made "of and concerning"
respondent. * * * There was no reference to respondent in the advertisement, either by name or
official position. A number of the allegedly libelous statements - the charges that the dining hall was
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padlocked and that Dr. King's home was bombed, his person assaulted, and a perjury prosecution
instituted against him - did not even concern the police; despite the ingenuity of the arguments which
would attach this significance to the word "They," it is plain that these statements could not
reasonably be read as accusing respondent of personal involvement in the acts in question. The
statements upon which respondent principally relies as referring to him are the two allegations that
did concern the police or police functions: that "truckloads of police . . . ringed the Alabama State
College Campus" after the demonstration on the State Capitol steps, and that Dr. King had been
"arrested . . . seven times." These statements were false only in that the police had been "deployed
near" the campus but had not actually "ringed" it and had not gone there in connection with the State
Capitol demonstration, and in that Dr. King had been arrested only four times. The ruling that these
discrepancies between what was true and what was asserted were sufficient to injure respondent's
reputation may itself raise constitutional problems, but we need not consider them here. Although
the statements may be taken as referring to the police, they did not on their face make even an
oblique reference to respondent as an individual. Support for the asserted reference must, therefore,
be sought in the testimony of respondent's witnesses. But none of them suggested any basis for the
belief that respondent himself was attacked in the advertisement beyond the bare fact that he was in
overall charge of the Police Department and thus bore official responsibility for police conduct; to the
extent that some of the witnesses thought respondent to have been charged with ordering or
approving the conduct or otherwise being personally involved in it, they based this notion not on any
statements in the advertisement, and not on any evidence that he had in fact been so involved, but
solely on the unsupported assumption that, because of his official position, he must have been. * * *
Raising as it does the possibility that a good-faith critic of government will be penalized for his
criticism, the proposition relied on by the Alabama courts strikes at the very center of the
constitutionally protected area of free expression. We hold that such a proposition may not
constitutionally be utilized to establish that an otherwise impersonal attack on governmental
operations was a libel of an official responsible for those operations. Since it was relied on exclusively
here, and there was no other evidence to connect the statements with respondent, the evidence was
constitutionally insufficient to support a finding that the statements referred to respondent.
The judgment of the Supreme Court of Alabama is reversed and the case is remanded to that court for
further proceedings not inconsistent with this opinion.
MR. JUSTICE BLACK, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING.
I concur in reversing this half-million-dollar judgment against the New York Times Company and the
four individual defendants. In reversing the Court holds that "the Constitution delimits a State's
power to award damages for libel in actions brought by public officials against critics of their official
conduct." I base my vote to reverse on the belief that the First and Fourteenth Amendments not
merely "delimit" a State's power to award damages to "public officials against critics of their official
conduct" but completely prohibit a State from exercising such a power. The Court goes on to hold
that a State can subject such critics to damages if "actual malice" can be proved against them.
"Malice," even as defined by the Court, is an elusive, abstract concept, hard to prove and hard to
disprove. The requirement that malice be proved provides at best an evanescent protection for the
right critically to discuss public affairs and certainly does not measure up to the sturdy safeguard
embodied in the First Amendment. Unlike the Court, therefore, I vote to reverse exclusively on the
ground that the Times and the individual defendants had an absolute, unconditional constitutional
right to publish in the Times advertisement their criticisms of the Montgomery agencies and officials.
***
We would, I think, more faithfully interpret the First Amendment by holding that at the very least it
leaves the people and the press free to criticize officials and discuss public affairs with impunity. This
Nation of ours elects many of its important officials; so do the States, the municipalities, the counties,
and even many precincts. These officials are responsible to the people for the way they perform their
duties. While our Court has held that some kinds of speech and writings, such as "obscenity," Roth v.
United States (1957) and "fighting words," Chaplinsky v. New Hampshire (1942) are not expression
within the protection of the First Amendment, freedom to discuss public affairs and public officials is
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unquestionably, as the Court today holds, the kind of speech the First Amendment was primarily
designed to keep within the area of free discussion. To punish the exercise of this right to discuss
public affairs or to penalize it through libel judgments is to abridge or shut off discussion of the very
kind most needed. This Nation, I suspect, can live in peace without libel suits based on public
discussions of public affairs and public officials. But I doubt that a country can live in freedom where
its people can be made to suffer physically or financially for criticizing their government, its actions,
or its officials. "For a representative democracy ceases to exist the moment that the public
functionaries are by any means absolved from their responsibility to their constituents; and this
happens whenever the constituent can be restrained in any manner from speaking, writing, or
publishing his opinions upon any public measure, or upon the conduct of those who may advise or
execute it." An unconditional right to say what one pleases about public affairs is what I consider to
be the minimum guarantee of the First Amendment. I regret that the Court has stopped short of this
holding indispensable to preserve our free press from destruction.
MR. JUSTICE GOLDBERG, WITH WHOM MR. JUSTICE DOUGLAS JOINS, CONCURRING.
The Court today announces a constitutional standard which prohibits "a public official from
recovering damages for a defamatory falsehood relating to his official conduct unless he proves that
the statement was made with `actual malice' - that is, with knowledge that it was false or with
reckless disregard of whether it was false or not." The Court thus rules that the Constitution gives
citizens and newspapers a "conditional privilege" immunizing nonmalicious misstatements of fact
regarding the official conduct of a government officer. The impressive array of history and precedent
marshaled by the Court, however, confirms my belief that the Constitution affords greater protection
than that provided by the Court's standard to citizen and press in exercising the right of public
criticism.
In my view, the First and Fourteenth Amendments to the Constitution afford to the citizen and to the
press an absolute, unconditional privilege to criticize official conduct despite the harm which may
flow from excesses and abuses.* * *

Gertz v. Robert Welch, Inc.
418 U.S. 323 (1974)
POWELL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE, MARSHALL, BLACKMUN, AND REHNQUIST, JJ.,
JOINED. BLACKMUN, J., FILED A CONCURRING OPINION. BURGER, C.J., DOUGLAS, J., BRENNAN, J., AND WHITE, J., FILED
DISSENTING OPINIONS.
JUSTICE POWELL DELIVERED THE OPINION OF THE COURT.
This Court has struggled for nearly a decade to define the proper accommodation between the law of
defamation and the freedoms of speech and press protected by the First Amendment. With this
decision we return to that effort. We granted certiorari to reconsider the extent of a publisher's
constitutional privilege against liability for defamation of a private citizen.
I
In 1968 a Chicago policeman named Nuccio shot and killed a youth named Nelson. The state
authorities prosecuted Nuccio for the homicide and ultimately obtained a conviction for murder in
the second degree. The Nelson family retained petitioner Elmer Gertz, a reputable attorney, to
represent them in civil litigation against Nuccio.
Respondent publishes American Opinion, a monthly outlet for the views of the John Birch Society.
Early in the 1960's the magazine began to warn of a nationwide conspiracy to discredit local law
enforcement agencies and create in their stead a national police force capable of supporting a
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Communist dictatorship. As part of the continuing effort to alert the public to this assumed danger,
the managing editor of American Opinion commissioned an article on the murder trial of Officer
Nuccio. For this purpose he engaged a regular contributor to the magazine. In March 1969
respondent published the resulting article under the title "FRAME-UP: Richard Nuccio and The War
On Police." The article purports to demonstrate that the testimony against Nuccio at his criminal trial
was false and that his prosecution was part of the Communist campaign against the police.
In his capacity as counsel for the Nelson family in the civil litigation, petitioner attended the coroner's
inquest into the boy's death and initiated actions for damages, but he neither discussed Officer
Nuccio with the press nor played any part in the criminal proceeding. Notwithstanding petitioner's
remote connection with the prosecution of Nuccio, respondent's magazine portrayed him as an
architect of the "frame-up." According to the article, the police file on petitioner took "a big, Irish cop
to lift." The article stated that petitioner had been an official of the "Marxist League for Industrial
Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent
seizure of our government." It labeled Gertz a "Leninist" and a "Communist-fronter." It also stated
that Gertz had been an officer of the National Lawyers Guild, described as a Communist organization
that "probably did more than any other outfit to plan the Communist attack on the Chicago police
during the 1968 Democratic Convention."
These statements contained serious inaccuracies. The implication that petitioner had a criminal
record was false. Petitioner had been a member and officer of the National Lawyers Guild some 15
years earlier, but there was no evidence that he or that organization had taken any part in planning
the 1968 demonstrations in Chicago. There was also no basis for the charge that petitioner was a
"Leninist" or a "Communist-fronter." And he had never been a member of the "Marxist League for
Industrial Democracy" or the "Intercollegiate Socialist Society."
The managing editor of American Opinion made no effort to verify or substantiate the charges
against petitioner. Instead, he appended an editorial introduction stating that the author had
"conducted extensive research into the Richard Nuccio Case." And he included in the article a
photograph of petitioner and wrote the caption that appeared under it: "Elmer Gertz of Red Guild
harrasses Nuccio." Respondent placed the issue of American Opinion containing the article on sale at
newsstands throughout the country and distributed reprints of the article on the streets of Chicago.
Petitioner filed a diversity action for libel in the United States District Court for the Northern District
of Illinois. He claimed that the falsehoods published by respondent injured his reputation as a lawyer
and a citizen. * * * After answering the complaint, respondent filed a pretrial motion for summary
judgment, claiming a constitutional privilege against liability for defamation. It asserted that
petitioner was a public official or a public figure and that the article concerned an issue of public
interest and concern. For these reasons, respondent argued, it was entitled to invoke the privilege
enunciated in New York Times Co. v. Sullivan (1964). Under this rule respondent would escape
liability unless petitioner could prove publication of defamatory falsehood "with `actual malice' - that
is, with knowledge that it was false or with reckless disregard of whether it was false or not."
Respondent claimed that petitioner could not make such a showing and submitted a supporting
affidavit by the magazine's managing editor. The editor denied any knowledge of the falsity of the
statements concerning petitioner and stated that he had relied on the author's reputation and on his
prior experience with the accuracy and authenticity of the author's contributions to American
Opinion.
The District Court denied respondent's motion for summary judgment * * * . The court did not
dispute respondent's claim to the protection of the New York Times standard. * * * It thought that
respondent's claim to the protection of the constitutional privilege depended on the contention that
petitioner was either a public official under the New York Times decision * * * apparently discounting
the argument that a privilege would arise from the presence of a public issue. After all the evidence
had been presented but before submission of the case to the jury, the court ruled in effect that
petitioner was neither a public official nor a public figure. * * * The jury awarded $50,000 to
petitioner.

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Following the jury verdict and on further reflection, the District Court concluded that the New York
Times standard should govern this case even though petitioner was not a public official or public
figure. It accepted respondent's contention that that privilege protected discussion of any public
issue without regard to the status of a person defamed therein. Accordingly, the court entered
judgment for respondent notwithstanding the jury's verdict. * * *
Petitioner appealed to contest the applicability of the New York Times standard to this case.
Although the Court of Appeals for the Seventh Circuit doubted the correctness of the District Court's
determination that petitioner was not a public figure, it did not overturn that finding. It agreed with
the District Court that respondent could assert the constitutional privilege because the article
concerned a matter of public interest * * * After reviewing the record, the Court of Appeals endorsed
the District Court's conclusion that petitioner had failed to show by clear and convincing evidence
that respondent had acted with "actual malice" as defined by New York Times. There was no evidence
that the managing editor of American Opinion knew of the falsity of the accusations made in the
article. In fact, he knew nothing about petitioner except what he learned from the article. The court
correctly noted that mere proof of failure to investigate, without more, cannot establish reckless
disregard for the truth. * * * The Court of Appeals therefore affirmed. For the reasons stated below,
we reverse.
II
The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory
falsehoods about an individual who is neither a public official nor a public figure may claim a
constitutional privilege against liability for the injury inflicted by those statements. * * *
III
We begin with the common ground. Under the First Amendment there is no such thing as a false idea.
However pernicious an opinion may seem, we depend for its correction not on the conscience of
judges and juries but on the competition of other ideas. But there is no constitutional value in false
statements of fact. Neither the intentional lie nor the careless error materially advances society's
interest in "uninhibited, robust, and wide-open" debate on public issues. New York Times Co. v.
Sullivan. They belong to that category of utterances which "are no essential part of any exposition of
ideas, and are of such slight social value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality." Chaplinsky v. New
Hampshire (1942).
Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless
inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of
1798: "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is
this more true than in that of the press." 4 J. Elliot, Debates on the Federal Constitution of 1787, p.
571 (1876). And punishment of error runs the risk of inducing a cautious and restrictive exercise of
the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of
strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual
assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by
proving the truth of all injurious statements does not accord adequate protection to First
Amendment liberties. As the Court stated in New York Times Co. v. Sullivan: "Allowance of the
defense of truth, with the burden of proving it on the defendant, does not mean that only false speech
will be deterred." The First Amendment requires that we protect some falsehood in order to protect
speech that matters.
The need to avoid self-censorship by the news media is, however, not the only societal value at issue.
If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy
an unconditional and indefeasible immunity from liability for defamation. Such a rule would, indeed,
obviate the fear that the prospect of civil liability for injurious falsehood might dissuade a timorous
press from the effective exercise of First Amendment freedoms. Yet absolute protection for the
communications media requires a total sacrifice of the competing value served by the law of
defamation.

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The legitimate state interest underlying the law of libel is the compensation of individuals for the
harm inflicted on them by defamatory falsehood. * * *
Some tension necessarily exists between the need for a vigorous and uninhibited press and the
legitimate interest in redressing wrongful injury. As Mr. Justice Harlan stated, "some antithesis
between freedom of speech and press and libel actions persists, for libel remains premised on the
content of speech and limits the freedom of the publisher to express certain sentiments, at least
without guaranteeing legal proof of their substantial accuracy." Curtis Publishing Co. v. Butts. In our
continuing effort to define the proper accommodation between these competing concerns, we have
been especially anxious to assure to the freedoms of speech and press that "breathing space"
essential to their fruitful exercise. NAACP v. Button (1963). To that end this Court has extended a
measure of strategic protection to defamatory falsehood.
The New York Times standard defines the level of constitutional protection appropriate to the
context of defamation of a public person. Those who, by reason of the notoriety of their achievements
or the vigor and success with which they seek the public's attention, are properly classed as public
figures and those who hold governmental office may recover for injury to reputation only on clear
and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with
reckless disregard for the truth. This standard administers an extremely powerful antidote to the
inducement to media self-censorship of the common-law rule of strict liability for libel and slander.
And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many
deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the
barrier of the New York Times test. Despite this substantial abridgment of the state law right to
compensation for wrongful hurt to one's reputation, the Court has concluded that the protection of
the New York Times privilege should be available to publishers and broadcasters of defamatory
falsehood concerning public officials and public figures. We think that these decisions are correct, but
we do not find their holdings justified solely by reference to the interest of the press and broadcast
media in immunity from liability. Rather, we believe that the New York Times rule states an
accommodation between this concern and the limited state interest present in the context of libel
actions brought by public persons. For the reasons stated below, we conclude that the state interest
in compensating injury to the reputation of private individuals requires that a different rule should
obtain with respect to them.
Theoretically, of course, the balance between the needs of the press and the individual's claim to
compensation for wrongful injury might be struck on a case-by-case basis. * * * But this approach
would lead to unpredictable results and uncertain expectations, and it could render our duty to
supervise the lower courts unmanageable. Because an ad hoc resolution of the competing interests at
stake in each particular case is not feasible, we must lay down broad rules of general application.
Such rules necessarily treat alike various cases involving differences as well as similarities. Thus it is
often true that not all of the considerations which justify adoption of a given rule will obtain in each
particular case decided under its authority.
With that caveat we have no difficulty in distinguishing among defamation plaintiffs. The first remedy
of any victim of defamation is self-help - using available opportunities to contradict the lie or correct
the error and thereby to minimize its adverse impact on reputation. Public officials and public figures
usually enjoy significantly greater access to the channels of effective communication and hence have
a more realistic opportunity to counteract false statements than private individuals normally enjoy.
Private individuals are therefore more vulnerable to injury, and the state interest in protecting them
is correspondingly greater.
More important than the likelihood that private individuals will lack effective opportunities for
rebuttal, there is a compelling normative consideration underlying the distinction between public
and private defamation plaintiffs. An individual who decides to seek governmental office must accept
certain necessary consequences of that involvement in public affairs. He runs the risk of closer public
scrutiny than might otherwise be the case. And society's interest in the officers of government is not
strictly limited to the formal discharge of official duties. As the Court pointed out in Garrison v.
Louisiana, the public's interest extends to "anything which might touch on an official's fitness for
office . . . . Few personal attributes are more germane to fitness for office than dishonesty,
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malfeasance, or improper motivation, even though these characteristics may also affect the official's
private character."
Those classed as public figures stand in a similar position. Hypothetically, it may be possible for
someone to become a public figure through no purposeful action of his own, but the instances of truly
involuntary public figures must be exceedingly rare. For the most part those who attain this status
have assumed roles of especial prominence in the affairs of society. Some occupy positions of such
persuasive power and influence that they are deemed public figures for all purposes. More commonly,
those classed as public figures have thrust themselves to the forefront of particular public
controversies in order to influence the resolution of the issues involved. In either event, they invite
attention and comment.
Even if the foregoing generalities do not obtain in every instance, the communications media are
entitled to act on the assumption that public officials and public figures have voluntarily exposed
themselves to increased risk of injury from defamatory falsehood concerning them. No such
assumption is justified with respect to a private individual. He has not accepted public office or
assumed an "influential role in ordering society." He has relinquished no part of his interest in the
protection of his own good name, and consequently he has a more compelling call on the courts for
redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more
vulnerable to injury than public officials and public figures; they are also more deserving of recovery.
For these reasons we conclude that the States should retain substantial latitude in their efforts to
enforce a legal remedy for defamatory falsehood injurious to the reputation of a private individual. *
* * Nor does the Constitution require us to draw so thin a line between the drastic alternatives of the
New York Times privilege and the common law of strict liability for defamatory error. The "public or
general interest" test for determining the applicability of the New York Times standard to private
defamation actions inadequately serves both of the competing values at stake. On the one hand, a
private individual whose reputation is injured by defamatory falsehood that does concern an issue of
public or general interest has no recourse unless he can meet the rigorous requirements of New York
Times. This is true despite the factors that distinguish the state interest in compensating private
individuals from the analogous interest involved in the context of public persons. On the other hand,
a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue of public
or general interest may be held liable in damages even if it took every reasonable precaution to
ensure the accuracy of its assertions. And liability may far exceed compensation for any actual injury
to the plaintiff, for the jury may be permitted to presume damages without proof of loss and even to
award punitive damages.
We hold that, so long as they do not impose liability without fault, the States may define for
themselves the appropriate standard of liability for a publisher or broadcaster of defamatory
falsehood injurious to a private individual. 10 This approach provides a more equitable boundary
between the competing concerns involved here. It recognizes the strength of the legitimate state
interest in compensating private individuals for wrongful injury to reputation, yet shields the press
and broadcast media from the rigors of strict liability for defamation. At least this conclusion obtains
where, as here, the substance of the defamatory statement "makes substantial danger to reputation
apparent." This phrase places in perspective the conclusion we announce today. Our inquiry would
involve considerations somewhat different from those discussed above if a State purported to
condition civil liability on a factual misstatement whose content did not warn a reasonably prudent
editor or broadcaster of its defamatory potential. Such a case is not now before us, and we intimate
no view as to its proper resolution.
IV
[omitted]
V
Notwithstanding our refusal to extend the New York Times privilege to defamation of private
individuals, respondent contends that we should affirm the judgment below on the ground that
petitioner is either a public official or a public figure. There is little basis for the former assertion.
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Several years prior to the present incident, petitioner had served briefly on housing committees
appointed by the mayor of Chicago, but at the time of publication he had never held any
remunerative governmental position. Respondent admits this but argues that petitioner's
appearance at the coroner's inquest rendered him a "de facto public official." Our cases recognize no
such concept. Respondent's suggestion would sweep all lawyers under the New York Times rule as
officers of the court and distort the plain meaning of the "public official" category beyond all
recognition. We decline to follow it.
Respondent's characterization of petitioner as a public figure raises a different question. That
designation may rest on either of two alternative bases. In some instances an individual may achieve
such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.
More commonly, an individual voluntarily injects himself or is drawn into a particular public
controversy and thereby becomes a public figure for a limited range of issues. In either case such
persons assume special prominence in the resolution of public questions.
Petitioner has long been active in community and professional affairs. He has served as an officer of
local civic groups and of various professional organizations, and he has published several books and
articles on legal subjects. Although petitioner was consequently well known in some circles, he had
achieved no general fame or notoriety in the community. None of the prospective jurors called at the
trial had ever heard of petitioner prior to this litigation, and respondent offered no proof that this
response was atypical of the local population. We would not lightly assume that a citizen's
participation in community and professional affairs rendered him a public figure for all purposes.
Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in
the affairs of society, an individual should not be deemed a public personality for all aspects of his life.
It is preferable to reduce the public-figure question to a more meaningful context by looking to the
nature and extent of an individual's participation in the particular controversy giving rise to the
defamation.
In this context it is plain that petitioner was not a public figure. He played a minimal role at the
coroner's inquest, and his participation related solely to his representation of a private client. He
took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the
criminal or civil litigation with the press and was never quoted as having done so. He plainly did not
thrust himself into the vortex of this public issue, nor did he engage the public's attention in an
attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to
characterize petitioner as a public figure for the purpose of this litigation.
We therefore conclude that the New York Times standard is inapplicable to this case and that the
trial court erred in entering judgment for respondent. Because the jury was allowed to impose
liability without fault and was permitted to presume damages without proof of injury, a new trial is
necessary. We reverse and remand for further proceedings in accord with this opinion.
It is so ordered.
DOUGLAS, J., DISSENTING.
The Court describes this case as a return to the struggle of "defin[ing] the proper accommodation
between the law of defamation and the freedoms of speech and press protected by the First
Amendment." It is indeed a struggle, once described by Mr. Justice Black as "the same quagmire" in
which the Court "is now helplessly struggling in the field of obscenity." I would suggest that the
struggle is a quite hopeless one, for, in light of the command of the First Amendment, no
"accommodation" of its freedoms can be "proper" except those made by the Framers themselves.
Unlike the right of privacy which, by the terms of the Fourth Amendment, must be accommodated
with reasonable searches and seizures and warrants issued by magistrates, the rights of free speech
and of a free press were protected by the Framers in verbiage whose proscription seems clear. I have
stated before my view that the First Amendment would bar Congress from passing any libel law. This
was the view held by Thomas Jefferson and it is one Congress has never challenged through
enactment of a civil libel statute. The sole congressional attempt at this variety of First Amendment
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muzzle was in the Sedition Act of 1798 - a criminal libel act never tested in this Court and one which
expired by its terms three years after enactment. As President, Thomas Jefferson pardoned those
who were convicted under the Act, and fines levied in its prosecution were repaid by Act of Congress.
The general consensus was that the Act constituted a regrettable legislative exercise plainly in
violation of the First Amendment. * * *
There can be no doubt that a State impinges upon free and open discussion when it sanctions the
imposition of damages for such discussion through its civil libel laws. Discussion of public affairs is
often marked by highly charged emotions, and jurymen, not unlike us all, are subject to those
emotions. It is indeed this very type of speech which is the reason for the First Amendment since
speech which arouses little emotion is little in need of protection. The vehicle for publication in this
case was the American Opinion, a most controversial periodical which disseminates the views of the
John Birch Society, an organization which many deem to be quite offensive. The subject matter
involved "Communist plots," "conspiracies against law enforcement agencies," and the killing of a
private citizen by the police. With any such amalgam of controversial elements pressing upon the
jury, a jury determination, unpredictable in the most neutral circumstances, becomes for those who
venture to discuss heated issues, a virtual roll of the dice separating them from liability for often
massive claims of damage.
It is only the hardy publisher who will engage in discussion in the face of such risk, and the Court's
preoccupation with proliferating standards in the area of libel increases the risks. It matters little
whether the standard be articulated as "malice" or "reckless disregard of the truth" or "negligence,"
for jury determinations by any of those criteria are virtually unreviewable. This Court, in its
continuing delineation of variegated mantles of First Amendment protection, is, like the potential
publisher, left with only speculation on how jury findings were influenced by the effect the subject
matter of the publication had upon the minds and viscera of the jury. The standard announced today
leaves the States free to "define for themselves the appropriate standard of liability for a publisher or
broadcaster" in the circumstances of this case. This of course leaves the simple negligence standard
as an option, with the jury free to impose damages upon a finding that the publisher failed to act as "a
reasonable man." With such continued erosion of First Amendment protection, I fear that it may well
be the reasonable man who refrains from speaking.
Since in my view the First and Fourteenth Amendments prohibit the imposition of damages upon
respondent for this discussion of public affairs, I would affirm the judgment below.
[THE CONCURRING OPINION OF BLACKMUN, J., AND THE SEPARATE DISSENTING OPINIONS OF BURGER, C.J., BRENNAN,
AND WHITE ARE OMITTED].

Notes

1.
In Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U.S. 749 (1985), the Court refused to
extend Gertz to a nonmedia defendant in a matter not of “public concern.” The facts, as explained in
the Court’s plurality opinion, authored by Justice Powell, and joined by Justices Rehnquist and
O’Connor were these:
Petitioner Dun & Bradstreet, a credit reporting agency, provides subscribers with financial and related
information about businesses. All the information is confidential; under the terms of the subscription
agreement the subscribers may not reveal it to anyone else. On July 26, 1976, petitioner sent a report
to five subscribers indicating that respondent, a construction contractor, had filed a voluntary petition
for bankruptcy. This report was false and grossly misrepresented respondent's assets and liabilities.
That same day, while discussing the possibility of future financing with its bank, respondent's
president was told that the bank had received the defamatory report. He immediately called
petitioner's regional office, explained the error, and asked for a correction. In addition, he requested
the names of the firms that had received the false report in order to assure them that the company was
solvent. Petitioner promised to look into the matter but refused to divulge the names of those who had
received the report.
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After determining that its report was indeed false, petitioner issued a corrective notice on or about
August 3, 1976, to the five subscribers who had received the initial report. The notice stated that one of
respondent's former employees, not respondent itself, had filed for bankruptcy and that respondent
“continued in business as usual.” Respondent told petitioner that it was dissatisfied with the notice,
and it again asked for a list of subscribers who had seen the initial report. Again petitioner refused to
divulge their names.
Respondent then brought this defamation action in Vermont state court. It alleged that the false report
had injured its reputation and sought both compensatory and punitive damages. The trial established
that the error in petitioner's report had been caused when one of its employees, a 17-year-old high
school student paid to review Vermont bankruptcy pleadings, had inadvertently attributed to
respondent a bankruptcy petition filed by one of respondent's former employees. Although petitioner's
representative testified that it was routine practice to check the accuracy of such reports with the
businesses themselves, it did not try to verify the information about respondent before reporting it.

The Court held that “actual malice,” the standard derived from New York Times v. Sullivan, was not
applicable and concluded that damages - - - even presumed damages or punitive damages - - - were
permissible. It declined to “constitutionalize the entire common law of libel.” (Id. at 761 n.7). Thus,
one might say that Dun & Bradstreet marks the limit to the Court’s First Amendment shaping of
defamation.
Moreover, Dun & Bradstreet might be most important for what it did not decide. Argued twice, it
provided an opportunity for the Court to revisit both New York Times and Gertz, as some Justices
reportedly were wont to do. See Lee Levine & Stephen Wermiel, The Landmark That Wasn't: A First
Amendment Play in Five Acts, 88 WASH. L. REV. 1 (2013). As Levine and Wermeil noted as the fiftieth
anniversary of New York Times v. Sullivan was approaching, and as remains true, the Court has not
decided another defamation case since Dun & Bradstreet. However, the Court certainly has
considered similar issues, such as false statements in United States v. Alvarez (2012), we which we
previously covered, and intentional infliction of emotional distress in Snyder v. Phelps (2011), which
we will consider in a subsequent chapter. Neither of these cases involved the press, but both rely
heavily on defamation precedent.
But in 2019, Justice Thomas in a concurring opinion from a denial of certiorari (a rather rare
occurrence), argued that New York Times v. Sullivan and its progeny are “policy driven decisions
masquerading as constitutional law,” and the notion of “public figure” did not exist in the common
law understandings of libel. See McKee v. Cosby, 586 U.S. ___ (2019) (Thomas, J., concurring in denial
of certiorari).
2.
What about bloggers who are sued for defamation? In Obsidian Fin. Grp., LLC v. Cox, 740 F.3d
1284 (9th Cir.) cert. denied, 134 S. Ct. 2680 (2014), the Ninth Circuit agreed with other circuits that
The protections of the First Amendment do not turn on whether the defendant was a trained journalist,
formally affiliated with traditional news entities, engaged in conflict-of-interest disclosure, went
beyond just assembling others' writings, or tried to get both sides of a story. As the Supreme Court has
accurately warned, a First Amendment distinction between the institutional press and other speakers
is unworkable: “With the advent of the Internet and the decline of print and broadcast media ... the line
between the media and others who wish to comment on political and social issues becomes far more
blurred.” Citizens United (2010) [Chapter 8]. In defamation cases, the public-figure status of a plaintiff
and the public importance of the statement at issue—to the identity of the speaker—provide the First
Amendment touchstones.

Id. at 1291. Yet the facts of Obsidian might be troubling to some:
Kevin Padrick is a principal of Obsidian Finance Group, LLC (Obsidian), a firm that provides advice to
financially distressed businesses. In December 2008, Summit Accommodators, Inc. (Summit), retained
Obsidian in connection with a contemplated bankruptcy. After Summit filed for reorganization, the
bankruptcy court appointed Padrick as the Chapter 11 trustee. Because Summit had misappropriated
funds from clients, Padrick's principal task was to marshal the firm's assets for the benefit of those
clients.
After Padrick's appointment, Crystal Cox published blog posts on several websites that she created,
accusing Padrick and Obsidian of fraud, corruption, money-laundering, and other illegal activities in
connection with the Summit bankruptcy. Cox apparently has a history of making similar allegations
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and seeking payoffs in exchange for retraction. See David Carr, When Truth Survives Free Speech, N.Y.
Times, Dec. 11, 2011, at B1. Padrick and Obsidian sent Cox a cease-and-desist letter, but she continued
posting allegations. This defamation suit ensued.

Id. at 1287. Do you agree that the Gertz standard should apply?

B.

Other Torts

Time, Inc. v. Hill
385 U.S. 374 (1967)

BRENNAN DELIVERED THE OPINION OF THE COURT. BLACK, J., FILED A CONCURRING OPINION IN WHICH DOUGLAS, J.,
JOINED. DOUGLAS, J., FILED A CONCURRING OPINION. HARLAN, J., FILED AN OPINION CONCURRING IN PART AND
DISSENTING IN PART. FORTAS, J., FILED A DISSENTING OPINION IN WHICH THE CHIEF JUSTICE [WARREN] AND CLARK
JOINED.
JUSTICE BRENNAN DELIVERED THE OPINION OF THE COURT.
The question in this case is whether appellant, publisher of Life Magazine, was denied constitutional
protections of speech and press by the application by the New York courts of 50-51 of the New York
Civil Rights Law [fn1] to award appellee damages on allegations that Life falsely reported that a new
play portrayed an experience suffered by appellee and his family.
[fn 1: The complete text of the New York Civil Rights Law 50-51 is as follows:
" 50. Right of privacy
"A person, firm or corporation that uses for advertising purposes, or for the purposes of trade,
the name, portrait or picture of any living person without having first obtained the written consent of
such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor."
" 51. Action for injunction and for damages
"Any person whose name, portrait or picture is used within this state for advertising
purposes or for the purposes of trade without the written consent first obtained as above provided
may maintain an equitable action in the supreme court of this state against the person, firm or
corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may
also sue and recover damages for any injuries sustained by reason of such use and if the defendant
shall have knowingly used such person's name, portrait or picture in such manner as is forbidden or
declared to be unlawful by the last section, the jury, in its discretion, may award exemplary damages.
But nothing contained in this act shall be so construed as to prevent any person, firm or corporation,
practicing the profession of photography, from exhibiting in or about his or its establishment
specimens of the work of such establishment, unless the same is continued by such person, firm or
corporation after written notice objecting thereto has been given by the person portrayed; and nothing
contained in this act shall be so construed as to prevent any person, firm or corporation from using the
name, portrait or picture of any manufacturer or dealer in connection with the goods, wares and
merchandise manufactured, produced or dealt in by him which he has sold or disposed of with such
name, portrait or picture used in connection therewith; or from using the name, portrait or picture of
any author, composer or artist in connection with his literary, musical or artistic productions which he
has sold or disposed of with such name, portrait or picture used in connection therewith." ]

The article appeared in Life in February 1955. It was entitled "True Crime Inspires Tense Play," with
the subtitle, "The ordeal of a family trapped by convicts gives Broadway a new thriller, ‘The
Desperate Hours.’" The text of the article reads as follows:
"Three years ago Americans all over the country read about the desperate ordeal of the James Hill
family, who were held prisoners in their home outside Philadelphia by three escaped convicts. Later
they read about it in Joseph Hayes's novel, The Desperate Hours, inspired by the family's experience.

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Now they can see the story re-enacted in Hayes's Broadway play based on the book, and next year will
see it in his movie, which has been filmed but is being held up until the play has a chance to pay off.
"The play, directed by Robert Montgomery and expertly acted, is a heart-stopping account of how a
family rose to heroism in a crisis. LIFE photographed the play during its Philadelphia tryout,
transported some of the actors to the actual house where the Hills were besieged. On the next page
scenes from the play are re-enacted on the site of the crime."

The pictures on the ensuing two pages included an enactment of the son being "roughed up" by one
of the convicts, entitled "brutish convict," a picture of the daughter biting the hand of a convict to
make him drop a gun, entitled "daring daughter," and one of the father throwing his gun through the
door after a "brave try" to save his family is foiled.
The James Hill referred to in the article is the appellee. He and his wife and five children involuntarily
became the subjects of a front-page news story after being held hostage by three escaped convicts in
their suburban, Whitemarsh, Pennsylvania, home for 19 hours on September 11-12, 1952. The family
was released unharmed. In an interview with newsmen after the convicts departed, appellee stressed
that the convicts had treated the family courteously, had not molested them, and had not been at all
violent. The convicts were thereafter apprehended in a widely publicized encounter with the police
which resulted in the killing of two of the convicts. Shortly thereafter the family moved to
Connecticut. The appellee discouraged all efforts to keep them in the public spotlight through
magazine articles or appearances on television.
In the spring of 1953, Joseph Hayes' novel, The Desperate Hours, was published. The story depicted
the experience of a family of four held hostage by three escaped convicts in the family's suburban
home. But, unlike Hill's experience, the family of the story suffer violence at the hands of the convicts;
the father and son are beaten and the daughter subjected to a verbal sexual insult.
The book was made into a play, also entitled The Desperate Hours, and it is Life's article about the
play which is the subject of appellee's action. The complaint sought damages under [the New York
statute] on allegations that the Life article was intended to, and did, give the impression that the play
mirrored the Hill family's experience, which, to the knowledge of defendant ". . . was false and
untrue." Appellant's defense was that the article was "a subject of legitimate news interest," "a
subject of general interest and of value and concern to the public" at the time of publication, and that
it was "published in good faith without any malice whatsoever . . . ." A motion to dismiss the
complaint for substantially these reasons was made at the close of the case and was denied by the
trial judge on the ground that the proofs presented a jury question as to the truth of the article.
The jury awarded appellee $50,000 compensatory and $25,000 punitive damages. On appeal the
Appellate Division of the Supreme Court ordered a new trial as to damages but sustained the jury
verdict of liability. * * *
At the new trial on damages, a jury was waived and the court awarded $30,000 compensatory
damages without punitive damages. The New York Court of Appeals affirmed the Appellate Division
"on the majority and concurring opinions at the Appellate Division," two judges dissenting. We noted
probable jurisdiction of the appeal to consider the important constitutional questions of freedom of
speech and press involved. After argument last Term, the case was restored to the docket for
reargument. We reverse and remand the case to the Court of Appeals for further proceedings not
inconsistent with this opinion.
I.
* * * The guarantees for speech and press are not the preserve of political expression or comment
upon public affairs, essential as those are to healthy government. One need only pick up any
newspaper or magazine to comprehend the vast range of published matter which exposes persons to
public view, both private citizens and public officials. Exposure of the self to others in varying
degrees is a concomitant of life in a civilized community. The risk of this exposure is an essential
incident of life in a society which places a primary value on freedom of speech and of press. "Freedom
of discussion, if it would fulfill its historic function in this nation, must embrace all issues about which
information is needed or appropriate to enable the members of society to cope with the exigencies of
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their period." "No suggestion can be found in the Constitution that the freedom there guaranteed for
speech and the press bears an inverse ratio to the timeliness and importance of the ideas seeking
expression." Bridges v. California (1941). We have no doubt that the subject of the Life article, the
opening of a new play linked to an actual incident, is a matter of public interest. * * * Erroneous
statement is no less inevitable in such a case than in the case of comment upon public affairs, and in
both, if innocent or merely negligent, ". . . it must be protected if the freedoms of expression are to
have the `breathing space' that they `need . . . to survive'. . . ." New York Times Co. v. Sullivan (1964).
As James Madison said, "Some degree of abuse is inseparable from the proper use of every thing; and
in no instance is this more true than in that of the press." Elliot's Debates on the Federal Constitution
571 (1876 ed.). We create a grave risk of serious impairment of the indispensable service of a free
press in a free society if we saddle the press with the impossible burden of verifying to a certainty the
facts associated in news articles with a person's name, picture or portrait, particularly as related to
non-defamatory matter. Even negligence would be a most elusive standard, especially when the
content of the speech itself affords no warning of prospective harm to another through falsity. A
negligence test would place on the press the intolerable burden of guessing how a jury might assess
the reasonableness of steps taken by it to verify the accuracy of every reference to a name, picture or
portrait.
In this context, sanctions against either innocent or negligent misstatement would present a grave
hazard of discouraging the press from exercising the constitutional guarantees. Those guarantees are
not for the benefit of the press so much as for the benefit of all of us. A broadly defined freedom of the
press assures the maintenance of our political system and an open society. Fear of large verdicts in
damage suits for innocent or merely negligent misstatement, even fear of the expense involved in
their defense, must inevitably cause publishers to "steer . . . wider of the unlawful zone," New York
Times Co. v. Sullivan and thus "create the danger that the legitimate utterance will be penalized."
But the constitutional guarantees can tolerate sanctions against calculated falsehood without
significant impairment of their essential function. We held in New York Times that calculated
falsehood enjoyed no immunity in the case of alleged defamation of a public official concerning his
official conduct. Similarly, calculated falsehood should enjoy no immunity in the situation here
presented us. * * *
We find applicable here the standard of knowing or reckless falsehood, not through blind application
of New York Times Co. v. Sullivan, relating solely to libel actions by public officials, but only upon
consideration of the factors which arise in the particular context of the application of the New York
statute in cases involving private individuals. This is neither a libel action by a private individual nor
a statutory action by a public official. Therefore, although the First Amendment principles
pronounced in New York Times guide our conclusion, we reach that conclusion only by applying
these principles in this discrete context. It therefore serves no purpose to distinguish the facts here
from those in New York Times. Were this a libel action, the distinction which has been suggested
between the relative opportunities of the public official and the private individual to rebut
defamatory charges might be germane. And the additional state interest in the protection of the
individual against damage to his reputation would be involved. Moreover, a different test might be
required in a statutory action by a public official, as opposed to a libel action by a public official or a
statutory action by a private individual. Different considerations might arise concerning the degree of
"waiver" of the protection the State might afford. But the question whether the same standard should
be applicable both to persons voluntarily and involuntarily thrust into the public limelight is not here
before us.
II.
Turning to the facts of the present case, the proofs reasonably would support either a jury finding of
innocent or merely negligent misstatement by Life, or a finding that Life portrayed the play as a reenactment of the Hill family's experience reckless of the truth or with actual knowledge that the
portrayal was false. * * *
The judgment of the Court of Appeals is set aside and the case is remanded for further proceedings
not inconsistent with this opinion.
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It is so ordered.
[Concurring and dissenting opinions omitted].

Hustler Magazine v. Falwell
485 U.S. 46 (1988)
REHNQUIST, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN, MARSHALL, BLACKMUN, STEVENS,
O'CONNOR, AND SCALIA, JJ., JOINED. WHITE, J., FILED AN OPINION CONCURRING IN THE JUDGMENT. KENNEDY, J., TOOK
NO PART IN THE CONSIDERATION OR DECISION OF THE CASE.
CHIEF JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT.
Petitioner Hustler Magazine, Inc., is a magazine of nationwide circulation. Respondent Jerry Falwell, a
nationally known minister who has been active as a commentator on politics and public affairs, sued
petitioner and its publisher, petitioner Larry Flynt, to recover damages for invasion of privacy, libel,
and intentional infliction of emotional distress. The District Court directed a verdict against
respondent on the privacy claim, and submitted the other two claims to a jury. The jury found for
petitioners on the defamation claim, but found for respondent on the claim for intentional infliction
of emotional distress and awarded damages. We now consider whether this award is consistent with
the First and Fourteenth Amendments of the United States Constitution.
The inside front cover of the November 1983 issue of Hustler Magazine featured a "parody" of an
advertisement for Campari Liqueur that contained the name and picture of respondent and was
entitled "Jerry Falwell talks about his first time." This parody was modeled after actual Campari ads
that included interviews with various celebrities about their "first times." Although it was apparent
by the end of each interview that this meant the first time they sampled Campari, the ads clearly
played on the sexual double entendre of the general subject of "first times." Copying the form and
layout of these Campari ads, Hustler's editors chose respondent as the featured celebrity and drafted
an alleged "interview" with him in which he states that his "first time" was during a drunken
incestuous rendezvous with his mother in an outhouse. The Hustler parody portrays respondent and
his mother as drunk and immoral, and suggests that respondent is a hypocrite who preaches only
when he is drunk. In small print at the bottom of the page, the ad contains the disclaimer, "ad parody
- not to be taken seriously." The magazine's table of contents also lists the ad as "Fiction; Ad and
Personality Parody."
Soon after the November issue of Hustler became available to the public, respondent brought this
diversity action in the United States District Court for the Western District of Virginia against Hustler
Magazine, Inc., Larry C. Flynt, and Flynt Distributing Co., Inc. Respondent stated in his complaint that
publication of the ad parody in Hustler entitled him to recover damages for libel, invasion of privacy,
and intentional infliction of emotional distress. The case proceeded to trial. At the close of the
evidence, the District Court granted a directed verdict for petitioners on the invasion of privacy claim.
The jury then found against respondent on the libel claim, specifically finding that the ad parody
could not "reasonably be understood as describing actual facts about [respondent] or actual events in
which [he] participated." The jury ruled for respondent on the intentional infliction of emotional
distress claim, however, and stated that he should be awarded $100,000 in compensatory damages,
as well as $50,000 each in punitive damages from petitioners. Petitioners' motion for judgment
notwithstanding the verdict was denied.
On appeal, the United States Court of Appeals for the Fourth Circuit affirmed the judgment against
petitioners. The court rejected petitioners' argument that the "actual malice" standard of New York
Times Co. v. Sullivan (1964), must be met before respondent can recover for emotional distress. The
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court agreed that because respondent is concededly a public figure, petitioners are "entitled to the
same level of first amendment protection in the claim for intentional infliction of emotional distress
that they received in [respondent's] claim for libel." But this does not mean that a literal application
of the actual malice rule is appropriate in the context of an emotional distress claim. * * * The Court of
Appeals then went on to reject the contention that because the jury found that the ad parody did not
describe actual facts about respondent, the ad was an opinion that is protected by the First
Amendment. As the court put it, this was "irrelevant," as the issue is "whether [the ad's] publication
was sufficiently outrageous to constitute intentional infliction of emotional distress." Petitioners then
filed a petition for rehearing en banc, but this was denied by a divided court. Given the importance of
the constitutional issues involved, we granted certiorari.
This case presents us with a novel question involving First Amendment limitations upon a State's
authority to protect its citizens from the intentional infliction of emotional distress. We must decide
whether a public figure may recover damages for emotional harm caused by the publication of an ad
parody offensive to him, and doubtless gross and repugnant in the eyes of most. Respondent would
have us find that a State's interest in protecting public figures from emotional distress is sufficient to
deny First Amendment protection to speech that is patently offensive and is intended to inflict
emotional injury, even when that speech could not reasonably have been interpreted as stating
actual facts about the public figure involved. This we decline to do.
At the heart of the First Amendment is the recognition of the fundamental importance of the free flow
of ideas and opinions on matters of public interest and concern. "[T]he freedom to speak one's mind
is not only an aspect of individual liberty - and thus a good unto itself - but also is essential to the
common quest for truth and the vitality of society as a whole." We have therefore been particularly
vigilant to ensure that individual expressions of ideas remain free from governmentally imposed
sanctions. The First Amendment recognizes no such thing as a "false" idea. Gertz v. Robert Welch, Inc.
(1974). As Justice Holmes wrote, "when men have realized that time has upset many fighting faiths,
they may come to believe even more than they believe the very foundations of their own conduct that
the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the
power of the thought to get itself accepted in the competition of the market . . . ." Abrams v. United
States (1919) (dissenting opinion).
The sort of robust political debate encouraged by the First Amendment is bound to produce speech
that is critical of those who hold public office or those public figures who are "intimately involved in
the resolution of important public questions or, by reason of their fame, shape events in areas of
concern to society at large." * * *
Of course, this does not mean that any speech about a public figure is immune from sanction in the
form of damages. Since New York Times Co. v. Sullivan (1964), we have consistently ruled that a
public figure may hold a speaker liable for the damage to reputation caused by publication of a
defamatory falsehood, but only if the statement was made "with knowledge that it was false or with
reckless disregard of whether it was false or not." False statements of fact are particularly valueless;
they interfere with the truth-seeking function of the marketplace of ideas, and they cause damage to
an individual's reputation that cannot easily be repaired by counterspeech, however persuasive or
effective. But even though falsehoods have little value in and of themselves, they are "nevertheless
inevitable in free debate," and a rule that would impose strict liability on a publisher for false factual
assertions would have an undoubted "chilling" effect on speech relating to public figures that does
have constitutional value. "Freedoms of expression require "`breathing space.'" This breathing space
is provided by a constitutional rule that allows public figures to recover for libel or defamation only
when they can prove both that the statement was false and that the statement was made with the
requisite level of culpability.
Respondent argues, however, that a different standard should apply in this case because here the
State seeks to prevent not reputational damage, but the severe emotional distress suffered by the
person who is the subject of an offensive publication. In respondent's view, and in the view of the
Court of Appeals, so long as the utterance was intended to inflict emotional distress, was outrageous,
and did in fact inflict serious emotional distress, it is of no constitutional import whether the
statement was a fact or an opinion, or whether it was true or false. It is the intent to cause injury that
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is the gravamen of the tort, and the State's interest in preventing emotional harm simply outweighs
whatever interest a speaker may have in speech of this type.
Generally speaking the law does not regard the intent to inflict emotional distress as one which
should receive much solicitude, and it is quite understandable that most if not all jurisdictions have
chosen to make it civilly culpable where the conduct in question is sufficiently "outrageous." But in
the world of debate about public affairs, many things done with motives that are less than admirable
are protected by the First Amendment. * * * Thus while such a bad motive may be deemed controlling
for purposes of tort liability in other areas of the law, we think the First Amendment prohibits such a
result in the area of public debate about public figures.
Were we to hold otherwise, there can be little doubt that political cartoonists and satirists would be
subjected to damages awards without any showing that their work falsely defamed its subject.
Webster's defines a caricature as "the deliberately distorted picturing or imitating of a person,
literary style, etc. by exaggerating features or mannerisms for satirical effect." WEBSTER'S NEW
UNABRIDGED TWENTIETH CENTURY DICTIONARY OF THE ENGLISH LANGUAGE 275 (2d ed. 1979). The appeal of
the political cartoon or caricature is often based on exploitation of unfortunate physical traits or
politically embarrassing events - an exploitation often calculated to injure the feelings of the subject
of the portrayal. The art of the cartoonist is often not reasoned or evenhanded, but slashing and onesided. One cartoonist expressed the nature of the art in these words:
"The political cartoon is a weapon of attack, of scorn and ridicule and satire; it is least effective when it
tries to pat some politician on the back. It is usually as welcome as a bee sting and is always
controversial in some quarters."

Long, The Political Cartoon: Journalism's Strongest Weapon, THE QUILL 56, 57 (Nov. 1962).
Several famous examples of this type of intentionally injurious speech were drawn by Thomas Nast,
probably the greatest American cartoonist to date, who was associated for many years during the
post-Civil War era with Harper's Weekly. In the pages of that publication Nast conducted a graphic
vendetta against William M. "Boss" Tweed and his corrupt associates in New York City's "Tweed
Ring." It has been described by one historian of the subject as "a sustained attack which in its passion
and effectiveness stands alone in the history of American graphic art." M. KELLER, THE ART AND POLITICS
OF THOMAS NAST 177 (1968). Another writer explains that the success of the Nast cartoon was
achieved "because of the emotional impact of its presentation. It continuously goes beyond the
bounds of good taste and conventional manners." C. PRESS, THE POLITICAL CARTOON 251 (1981).
Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an
ass down to the present day, graphic depictions and satirical cartoons have played a prominent role
in public and political debate. Nast's castigation of the Tweed Ring, Walt McDougall's
characterization of Presidential candidate James G. Blaine's banquet with the millionaires at
Delmonico's as "The Royal Feast of Belshazzar," and numerous other efforts have undoubtedly had
an effect on the course and outcome of contemporaneous debate. Lincoln's tall, gangling posture,
Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's jutting jaw and cigarette holder
have been memorialized by political cartoons with an effect that could not have been obtained by the
photographer or the portrait artist. From the viewpoint of history it is clear that our political
discourse would have been considerably poorer without them.
Respondent contends, however, that the caricature in question here was so "outrageous" as to
distinguish it from more traditional political cartoons. There is no doubt that the caricature of
respondent and his mother published in Hustler is at best a distant cousin of the political cartoons
described above, and a rather poor relation at that. If it were possible by laying down a principled
standard to separate the one from the other, public discourse would probably suffer little or no harm.
But we doubt that there is any such standard, and we are quite sure that the pejorative description
"outrageous" does not supply one. "Outrageousness" in the area of political and social discourse has
an inherent subjectiveness about it which would allow a jury to impose liability on the basis of the
jurors' tastes or views, or perhaps on the basis of their dislike of a particular expression. An
"outrageousness" standard thus runs afoul of our longstanding refusal to allow damages to be
awarded because the speech in question may have an adverse emotional impact on the audience. * * *
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Admittedly, these oft-repeated First Amendment principles, like other principles, are subject to
limitations. * * * But the sort of expression involved in this case does not seem to us to be governed
by any exception to the general First Amendment principles stated above.
We conclude that public figures and public officials may not recover for the tort of intentional
infliction of emotional distress by reason of publications such as the one here at issue without
showing in addition that the publication contains a false statement of fact which was made with
"actual malice," i. e., with knowledge that the statement was false or with reckless disregard as to
whether or not it was true. This is not merely a "blind application" of the New York Times standard, it
reflects our considered judgment that such a standard is necessary to give adequate "breathing
space" to the freedoms protected by the First Amendment.
Here it is clear that respondent Falwell is a "public figure" for purposes of First Amendment law. The
jury found against respondent on his libel claim when it decided that the Hustler ad parody could not
"reasonably be understood as describing actual facts about [respondent] or actual events in which
[he] participated." The Court of Appeals interpreted the jury's finding to be that the ad parody "was
not reasonably believable," and in accordance with our custom we accept this finding. Respondent is
thus relegated to his claim for damages awarded by the jury for the intentional infliction of emotional
distress by "outrageous" conduct. But for reasons heretofore stated this claim cannot, consistently
with the First Amendment, form a basis for the award of damages when the conduct in question is
the publication of a caricature such as the ad parody involved here. The judgment of the Court of
Appeals is accordingly
Reversed.
JUSTICE KENNEDY TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE.
JUSTICE WHITE, CONCURRING IN THE JUDGMENT.
As I see it, the decision in New York Times Co. v. Sullivan (1964), has little to do with this case, for here
the jury found that the ad contained no assertion of fact. But I agree with the Court that the judgment
below, which penalized the publication of the parody, cannot be squared with the First Amendment.

Notes

1.
The lines between “truth” and “opinion” and “parody” are often unclear. How important
should it be that the target of a publication is a public official or public figure under Gertz and
Falwell?
2.
Consider this action for compensatory and punitive damages alleging defamation, false light,
interference with business relations, and invasion of privacy based upon the publication of an article
by journalist Mark Warren on Esquire Magazine's Politics Blog.
The article was posted one day after the release of a book entitled “Where's the Birth Certificate? The
Case that Barack Obama is not Eligible to Be President,” written by Jerome Corsi and published by
Joseph Farah's WND Books. Farah's website, WorldNetDaily, announced the book launch with the
headline, “It's out! The book that proves Obama's ineligible: Today's the day Corsi is unleashed to tell all
about that ‘birth certificate’” (emphasis in original). Approximately three weeks earlier, President
Obama had released his long-form birth certificate showing that he was born in Hawaii. Warren's
article was entitled “BREAKING: Jerome Corsi's Birther Book Pulled from Shelves!” (emphasis in original).
It stated, in part: “In a stunning development one day after the release of [the Corsi book], [Farah] has
announced plans to recall and pulp the entire 200,000 first printing run of the book, as well as
announcing an offer to refund the purchase price to anyone who has already bought ... the book.”
Approximately ninety minutes later, Esquire published an “update” on its blog “for those who didn't
figure it out,” that Warren's article was “satire”; the “update” clarified that the article was untrue and
referenced other “serious” Esquire articles on the birth certificate issue. Farah observed the same day
that he thought the blog post was a “poorly executed parody.” Also that day, Warren told The Daily
Caller that he had no regrets about publishing the fictitious article and expressed his negative view of
the book's author; his statements were published on The Daily Caller website that day and the
following day.

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In Farah v. Esquire Magazine, 736 F.3d 528 (D.C. Cir. 2013), the Court upheld the dismissal of the
complaint for failure to state a cause of action. Interestingly, the court concluded that
[b]ecause Farah's and Corsi's defamation claim fails, so do their other tort claims based upon the same
allegedly defamatory speech. “[A] plaintiff may not use related causes of action to avoid the
constitutional requisites of a defamation claim.” The First Amendment considerations that apply to
defamation therefore apply also to Farah's and Corsi's counts for false light, and tortious interference.

This seems to “constitutionalize” a wide range of tort actions aimed at speech. Is it relevant at all that
the original blog post was not understood as parody?

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Chapter Five: GOVERNMENT AS
EMPLOYER AND EDUCATOR
This chapter considers applications of the First Amendment’s speech clause when the government is
not acting as a general sovereign but is acting as an employer or educator. The basic question in such
instances is the extent to which the First Amendment doctrine that generally applies should also
apply to the employment and educational contexts.
The doctrine plows a middle ground. The courts have rejected the antiquated notion that public
employment or education is a “privilege” that requires the abandonment of constitutional rights.
[This concept of “unconstitutional conditions” is discussed in the next chapter]. The courts have also
rejected the notion that employees and students retain the same First Amendment rights at work and
school as they do outside these contexts.

I.

The Politics of Public Employment

The First Amendment rights of public employees to engage in political speech and campaigning is in
tension with the interest in a government that is not exclusively partisan and in which public
employment positions are attributable to political patronage.

Civil Service Commission v. National Association of Letter
Carriers
413 U.S. 548 (1973)
WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C. J., AND STEWART, BLACKMUN, POWELL,
AND REHNQUIST, JJ., JOINED. DOUGLAS, J., FILED A DISSENTING OPINION, IN WHICH BRENNAN AND MARSHALL, JJ.,
JOINED.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT.
On December 11, 1972, we noted probable jurisdiction of this appeal based on a jurisdictional
statement presenting the single question whether the prohibition in § 9(a) of the Hatch Act, now
codified in 5 U.S.C. § 7324 (a)(2), against federal employees taking "an active part in political
management or in political campaigns," is unconstitutional on its face.
Section 7324(a) provides:
"An employee in an Executive agency or an individual employed by the government of the District of
Columbia may not —
"(1) use his official authority or influence for the purpose of interfering with or affecting the result of
an election; or
"(2) take an active part in political management or in political campaigns.
"For the purpose of this subsection, the phrase `an active part in political management or in political
campaigns' means those acts of political management or political campaigning which were prohibited
on the part of employees in the competitive service before July 19, 1940, by determinations of the Civil
Service Commission under the rules prescribed by the President."

A divided three-judge court sitting in the District of Columbia had held the section unconstitutional.
We reverse the judgment of the District Court.
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I
The case began when the National Association of Letter Carriers, six individual federal employees
and certain local Democratic and Republican political committees filed a complaint, asserting on
behalf of themselves and all federal employees that 5 U.S.C. § 7324 (a)(2) was unconstitutional on its
face and seeking an injunction against its enforcement. Each of the plaintiffs alleged that the Civil
Service Commission was enforcing, or threatening to enforce, the Hatch Act's prohibition against
active participation in political management or political campaigns with respect to certain defined
activity in which that plaintiff desired to engage. The Union, for example, stated among other things
that its members desired to campaign for candidates for public office. The Democratic and
Republican Committees complained of not being able to get federal employees to run for state and
local offices. Plaintiff Hummel stated that he was aware of the provision of the Hatch Act and that the
activities he desired to engage in would violate that Act as, for example, his participating as a
delegate in a party convention or holding office in a political club.
A three-judge court was convened, and the case was tried on both stipulated evidence and oral
testimony. The District Court then ruled that § 7324(a)(2) was unconstitutional on its face and
enjoined its enforcement. The court recognized the "well-established governmental interest in
restricting political activities by federal employees which [had been] asserted long before enactment
of the Hatch Act," as well as the fact that the "appropriateness of this governmental objective was
recognized by the Supreme Court of the United States when it endorsed the objectives of the Hatch
Act. * * *
II
* * * Our judgment is that neither the First Amendment nor any other provision of the Constitution
invalidates a law barring this kind of partisan political conduct by federal employees.
A
Such decision on our part would no more than confirm the judgment of history, a judgment made by
this country over the last century that it is in the best interest of the country, indeed essential, that
federal service should depend upon meritorious performance rather than political service, and that
the political influence of federal employees on others and on the electoral process should be limited.
That this judgment eventuated is indisputable, and the major steps in reaching it may be simply and
briefly set down.
Early in our history, Thomas Jefferson was disturbed by the political activities of some of those in the
Executive Branch of the Government. See 10 J. Richardson, Messages and Papers of the Presidents 98
(1899). The heads of the executive departments, in response to his directive, issued an order stating
in part that "[t]he right of any officer to give his vote at elections as a qualified citizen is not meant to
be restrained, nor, however given, shall it have any effect to his prejudice; but it is expected that he
will not attempt to influence the votes of others nor take any part in the business of electioneering,
that being deemed inconsistent with the spirit of the Constitution and his duties to it."
There were other voices raised in the 19th century against the mixing of partisan politics and routine
federal service. But until after the Civil War, the spoils system under which federal employees came
and went, depending upon party service and changing administrations, rather than meritorious
performance, was much the vogue and the prevalent basis for governmental employment and
advancement. That system did not survive. Congress authorized the President to prescribe
regulations for the creation of a civil service of federal employees in 1871, known as the Pendleton
Act, that declared that "no person in the public service is for that reason under any obligations to
contribute to any political fund, or to render any political service" and that "no person in said service
has any right to use his official authority or influence to coerce the political action of any person or
body." That Act authorized the President to promulgate rules to carry the Act into effect and created
the Civil Service Commission as the agency or administrator of the Act under the rules of the
President.
The original Civil Service rules were promulgated on May 7, 1883, by President Arthur. Civil Service
Rule I repeated the language of the Act that no one in the executive service should use his official
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authority or influence to coerce any other person or to interfere with an election, but went no further
in restricting the political activities of federal employees. Problems with political activity continued
to arise * * * [historical discussion omitted].
This account of the efforts by the Federal Government to limit partisan political activities by those
covered by the Hatch Act should not obscure the equally relevant fact that all 50 States have
restricted the political activities of their own employees.
B
Until now, the judgment of Congress, the Executive, and the country appears to have been that
partisan political activities by federal employees must be limited if the Government is to operate
effectively and fairly, elections are to play their proper part in representative government, and
employees themselves are to be sufficiently free from improper influences. The restrictions so far
imposed on federal employees are not aimed at particular parties, groups, or points of view, but
apply equally to all partisan activities of the type described. They discriminate against no racial,
ethnic, or religious minorities. Nor do they seek to control political opinions or beliefs, or to interfere
with or influence anyone's vote at the polls. * * *
It seems fundamental in the first place that employees in the Executive Branch of the Government, or
those working for any of its agencies, should administer the law in accordance with the will of
Congress, rather than in accordance with their own or the will of a political party. They are expected
to enforce the law and execute the programs of the Government without bias or favoritism for or
against any political party or group or the members thereof. A major thesis of the Hatch Act is that to
serve this great end of Government - the impartial execution of the laws - it is essential that federal
employees, for example, not take formal positions in political parties, not undertake to play
substantial roles in partisan political campaigns, and not run for office on partisan political tickets.
Forbidding activities like these will reduce the hazards to fair and effective government.
There is another consideration in this judgment: it is not only important that the Government and its
employees in fact avoid practicing political justice, but it is also critical that they appear to the public
to be avoiding it, if confidence in the system of representative Government is not to be eroded to a
disastrous extent.
Another major concern of the restriction against partisan activities by federal employees was
perhaps the immediate occasion for enactment of the Hatch Act in 1939. That was the conviction that
the rapidly expanding Government work force should not be employed to build a powerful, invincible,
and perhaps corrupt political machine. The experience of the 1936 and 1938 campaigns convinced
Congress that these dangers were sufficiently real that substantial barriers should be raised against
the party in power - or the party out of power, for that matter - using the thousands or hundreds of
thousands of federal employees, paid for at public expense, to man its political structure and political
campaigns.
A related concern, and this remains as important as any other, was to further serve the goal that
employment and advancement in the Government service not depend on political performance, and
at the same time to make sure that Government employees would be free from pressure and from
express or tacit invitation to vote in a certain way or perform political chores in order to curry favor
with their superiors rather than to act out their own beliefs. It may be urged that prohibitions against
coercion are sufficient protection; but for many years the joint judgment of the Executive and
Congress has been that to protect the rights of federal employees with respect to their jobs and their
political acts and beliefs it is not enough merely to forbid one employee to attempt to influence or
coerce another. For example, at the hearings in 1972 on proposed legislation for liberalizing the
prohibition against political activity, the Chairman of the Civil Service Commission stated that "the
prohibitions against active participation in partisan political management and partisan political
campaigns constitute the most significant safeguards against coercion . . . ." Hearings on S. 3374 and S.
3417, supra, at 52. Perhaps Congress at some time will come to a different view of the realities of
political life and Government service; but that is its current view of the matter, and we are not now in
any position to dispute it. Nor, in our view, does the Constitution forbid it.

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Neither the right to associate nor the right to participate in political activities is absolute in any event.
***
III
But however constitutional the proscription of identifiable partisan conduct in understandable
language may be, the District Court's judgment was that 7324 (a) (2) was both unconstitutionally
vague and fatally overbroad. Appellees make the same contentions here, but we cannot agree that the
section is unconstitutional on its face for either reason.
* * * Whatever might be the difficulty with a provision against taking "active part in political
management or in political campaigns," the Act specifically provides that the employee retains the
right to vote as he chooses and to express his opinion on political subjects and candidates. The Act
exempts research and educational activities supported by the District of Columbia or by religious,
philanthropic, or cultural organizations, 5 U.S.C. 7324 (c); and 7326 exempts nonpartisan political
activity: questions, that is, that are not identified with national or state political parties are not
covered by the Act, including issues with respect to constitutional amendments, referendums,
approval of municipal ordinances, and the like. Moreover, the plain import of the 1940 amendment to
the Hatch Act is that the proscription against taking an active part in the proscribed activities is not
open-ended but is limited to those rules and proscriptions that had been developed under Civil
Service Rule I up to the date of the passage of the 1940 Act. Those rules, as refined by further
adjudications within the outer limits of the 1940 rules, were restated by the Commission in 1970 in
the form of regulations specifying the conduct that would be prohibited or permitted by 7324 and its
companion sections.
We have set out these regulations in the margin. We see nothing impermissibly vague in 5 CFR
733.122, which specifies in separate paragraphs the various activities deemed to be prohibited by
7324 (a)(2). There might be quibbles about the meaning of taking an "active part in managing" or
about "actively participating in . . . fund-raising" or about the meaning of becoming a "partisan"
candidate for office; but there are limitations in the English language with respect to being both
specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those
intent on finding fault at any cost, they are set out in terms that the ordinary person exercising
ordinary common sense can sufficiently understand and comply with, without sacrifice to the public
interest. "[T]he general class of offenses to which . . . [the provisions are] directed is plainly within
[their] terms, . . . [and they] will not be struck down as vague, even though marginal cases could be
put where doubts might arise." Surely, there seemed to be little question in the minds of the plaintiffs
who brought this lawsuit as to the meaning of the law, or as to whether or not the conduct in which
they desire to engage was or was not prohibited by the Act.
The Act permits the individual employee to "express his opinion on political subjects and
candidates," 5 U.S.C. 7324 (b); and the corresponding regulation, 5 CFR 733.111 (a) (2), privileges the
employee to "[e]xpress his opinion as an individual privately and publicly on political subjects and
candidates." The section of the regulations which purports to state the partisan acts that are
proscribed, id., 733.122, forbids in subparagraph (a) (10) the endorsement of "a partisan candidate
for public office or political party office in a political advertisement, a broadcast, campaign literature,
or similar material," and in subparagraph (a) (12), prohibits "[a]ddressing a convention, caucus, rally,
or similar gathering of a political party in support of or in opposition to a partisan candidate for
public office or political party office." Arguably, there are problems in meshing 733.111 (a) (2) with
733.122 (a) (10) and (12), but we think the latter prohibitions sufficiently clearly carve out the
prohibited political conduct from the expressive activity permitted by the prior section to survive
any attack on the ground of vagueness or in the name of any of those policies that doctrine may be
deemed to further.
It is also important in this respect that the Commission has established a procedure by which an
employee in doubt about the validity of a proposed course of conduct may seek and obtain advice
from the Commission and thereby remove any doubt there may be as to the meaning of the law, at
least insofar as the Commission itself is concerned.
* * * For the foregoing reasons, the judgment of the District Court is reversed.
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JUSTICE DOUGLAS, WITH WHOM JUSTICE BRENNAN AND JUSTICE MARSHALL CONCUR, DISSENTING.
The Hatch Act by 9 (a) prohibits federal employees from taking "an active part in political
management or in political campaigns." Some of the employees, whose union is speaking for them,
want
"to run in state and local elections for the school board, for city council, for mayor";
"to write letters on political subjects to newspapers";
"to be a delegate in political convention";
"to run for an office and hold office in a political party or political club";
"to campaign for candidates for political office";
"to work at polling places in behalf of a political party."

There is no definition of what "an active part . . . in political campaigns" means. The Act incorporates
over 3,000 rulings of the Civil Service Commission between 1886 and 1940 and many hundreds of
rulings since 1940. But even with that gloss on the Act, the critical phrases lack precision. In 1971 the
Commission published a three-volume work entitled Political Activities Reporter which contains
over 800 of its decision since the enactment of the Hatch Act. One can learn from studying those
volumes that it is not "political activity" to march in a band during a political parade or to wear
political badges or to "participate fully in public affairs, except as prohibited by law, in a manner
which does not materially compromise his efficiency or integrity as an employee or the neutrality,
efficiency, or integrity of his agency."
That is to say, some things, like marching in a band, are clear. Others are pregnant with ambiguity as
"participate fully in public affairs, except as prohibited by law, in a manner which does not materially
compromise," etc. Permission to "[t]ake an active part . . . in a nonpartisan election," also raises large
questions of uncertainty because one may be partisan for a person, an issue, a candidate without
feeling an identification with one political party or the other.
* * * The chilling effect of these vague and generalized prohibitions is so obvious as not to need
elaboration. That effect would not be material to the issue of constitutionality if only the normal
contours of the police power were involved. * * * [But] We deal here with a First Amendment right to
speak, to propose, to publish, to petition Government, to assemble. Time and place are obvious
limitations. Thus no one could object if employees were barred from using office time to engage in
outside activities whether political or otherwise. But it is of no concern of Government what an
employee does in his spare time, whether religion, recreation, social work, or politics is his hobby unless what he does impairs efficiency or other facets of the merits of his job. Some things, some
activities do affect or may be thought to affect the employee's job performance. But his political creed,
like his religion, is irrelevant. In the areas of speech, like religion, it is of no concern what the
employee says in private to his wife or to the public in Constitution Hall. If Government employment
were only a "privilege," then all sorts of conditions might be attached. But it is now settled that
Government employment may not be denied or penalized "on a basis that infringes [the employee's]
constitutionally protected interests - especially, his interest in freedom of speech." * * *
Free discussion of governmental affairs is basic in our constitutional system. Laws that trench on that
area must be narrowly and precisely drawn to deal with precise ends. Overbreadth in the area of the
First Amendment has a peculiar evil, the evil of creating chilling effects which deter the exercise of
those freedoms. * * *
The present Act cannot be appropriately narrowed to meet the need for narrowly drawn language
not embracing First Amendment speech or writing without substantial revision. That rewriting
cannot be done by the Commission because Congress refused to delegate to it authority to regulate
First Amendment rights. The proposal to do so aroused a great debate in Congress and Senator Hatch
finally submitted a substitute, saying "[i]t does away with the question of the delegation of power."

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The Commission, on a case-by-case approach, has listed 13 categories of prohibited activities, 5 CFR
733.122 (b), starting with the catch-all "include but are not limited to." So the Commission ends up
with open-end discretion to penalize X or not to penalize him. For example, a "permissible" activity is
the employee's right to "[e]xpress his opinion as an individual privately and publicly on political
subjects and candidates." 5 CFR 733.111 (a) (2). Yet "soliciting votes" is prohibited. 5 CFR 733.122
(b) (7). Is an employee safe from punishment if he expresses his opinion that candidate X is the best
and candidate Y the worst? Is that crossing the forbidden line of soliciting votes?
A nursing assistant at a veterans' hospital put an ad in a newspaper reading:
"To All My Many Friends of Poplar Bluff and Butler County I want to take this opportunity to ask your
vote and support in the election, TUESDAY, AUGUST 7th. A very special person is seeking the
Democratic nomination for Sheriff. I do not have to tell you of his qualifications, his past records stand.
"This person is my dad, Lester (Less) Massingham.
"THANK YOU
"WALLACE (WALLY) MASSINGHAM"

He was held to have violated the Act. Massingham, 1 Political Activity Reporter 792, 793 (1959).
Is a letter a permissible "expression" of views or a prohibited "solicitation?" The Solicitor General
says it is a "permissible" expression; but the Commission ruled otherwise. For an employee who does
not have the Solicitor General as counsel great consequences flow from an innocent decision. He may
lose his job. Therefore the most prudent thing is to do nothing. Thus is self-imposed censorship
imposed on many nervous people who live on narrow economic margins.
I would strike this provision of the law down as unconstitutional so that a new start may be made on
this old problem that confuses and restricts nearly five million federal, state, and local public
employees today that live under the present Act.

Branti v. Finkel
445 U.S. 507 (1980)
STEVENS, J., DELIVERED THE OPINION FOR THE COURT, IN WHICH BURGER, C. J., AND BRENNAN, WHITE, MARSHALL,
AND BLACKMUN, JJ., JOINED. STEWART, J., FILED A DISSENTING OPINION; POWELL, J., FILED A DISSENTING OPINION, IN
WHICH REHNQUIST, J., JOINED AND IN PART I OF WHICH STEWART, J., JOINED.
JUSTICE STEVENS DELIVERED THE OPINION OF THE COURT.
The question presented is whether the First and Fourteenth Amendments to the Constitution protect
an assistant public defender who is satisfactorily performing his job from discharge solely because of
his political beliefs.
Respondents, Aaron Finkel and Alan Tabakman, commenced this action in the United States District
Court for the Southern District of New York in order to preserve their positions as assistant public
defenders in Rockland County, New York. On January 4, 1978, on the basis of a showing that the
petitioner public defender was about to discharge them solely because they were Republicans, the
District Court entered a temporary restraining order preserving the status quo. After hearing
evidence for eight days, the District Court entered detailed findings of fact and permanently enjoined
petitioner from terminating or attempting to terminate respondents' employment "upon the sole
grounds of their political beliefs." The Court of Appeals affirmed in an unpublished memorandum
opinion.

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The critical facts can be summarized briefly. The Rockland County Public Defender is appointed by
the County Legislature for a term of six years. He in turn appoints nine assistants who serve at his
pleasure. The two respondents have served as assistants since their respective appointments in
March 1971 and September 1975; they are both Republicans.
Petitioner Branti's predecessor, a Republican, was appointed in 1972 by a Republican-dominated
County Legislature. By 1977, control of the legislature had shifted to the Democrats and petitioner,
also a Democrat, was appointed to replace the incumbent when his term expired. As soon as
petitioner was formally appointed on January 3, 1978, he began executing termination notices for six
of the nine assistants then in office. Respondents were among those who were to be terminated. With
one possible exception, the nine who were to be appointed or retained were all Democrats and were
all selected by Democratic legislators or Democratic town chairmen on a basis that had been
determined by the Democratic caucus.
The District Court found that Finkel and Tabakman had been selected for termination solely because
they were Republicans and thus did not have the necessary Democratic sponsors* * *
Having concluded that respondents had been discharged solely because of their political beliefs, the
District Court held that those discharges would be permissible under this Court's [plurality] decision
in Elrod v. Burns (1976) only if assistant public defenders are the type of policymaking, confidential
employees who may be discharged solely on the basis of their political affiliations. The court
concluded that respondents clearly did not fall within that category. Although recognizing that they
had broad responsibilities with respect to particular cases that were assigned to them, the court
found that respondents had "very limited, if any, responsibility" with respect to the overall operation
of the public defender's office. They did not "act as advisors or formulate plans for the
implementation of the broad goals of the office" and, although though they made decisions in the
context of specific cases, "they do not make decisions about the orientation and operation of the
office in which they work."
The District Court also rejected the argument that the confidential character of respondents' work
justified conditioning their employment on political grounds. The court found that they did not
occupy any confidential relationship to the policymaking process, and did not have access to
confidential documents that influenced policymaking deliberations. Rather, the only confidential
information to which they had access was the product of their attorney-client relationship with the
office's clients; to the extent that such information was shared with the public defender, it did not
relate to the formulation of office policy.
In light of these factual findings, the District Court concluded that petitioner could not terminate
respondents' employment as assistant public defenders consistent with the First and Fourteenth
Amendments. On appeal, a panel of the Second Circuit affirmed, specifically holding that the District
Court's findings of fact were adequately supported by the record. That court also expressed "no
doubt" that the District Court "was correct in concluding that an assistant public defender was
neither a policymaker nor a confidential employee." We granted certiorari and now affirm.
Petitioner advances two principal arguments for reversal: First, that the holding in Elrod v. Burns is
limited to situations in which government employees are coerced into pledging allegiance to a
political party that they would not voluntarily support and does not apply to a simple requirement
that an employee be sponsored by the party in power; and, second, that, even if party sponsorship is
an unconstitutional condition of continued public employment for clerks, deputies, and janitors, it is
an acceptable requirement for an assistant public defender.
I
In Elrod v. Burns the Court held that the newly elected Democratic Sheriff of Cook County, Ill., had
violated the constitutional rights of certain non-civil-service employees by discharging them
"because they did not support and were not members of the Democratic Party and had failed to
obtain the sponsorship of one of its leaders." That holding was supported by two separate opinions.
Writing for the plurality, Justice Brennan identified two separate but interrelated reasons supporting
the conclusion that the discharges were prohibited by the First and Fourteenth Amendments. First,
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he analyzed the impact of a political patronage system on freedom of belief and association. Noting
that in order to retain their jobs, the Sheriff's employees were required to pledge their allegiance to
the Democratic Party, work for or contribute to the party's candidates, or obtain a Democratic
sponsor, he concluded that the inevitable tendency of such a system was to coerce employees into
compromising their true beliefs. That conclusion, in his opinion, brought the practice within the rule
of cases like West Virginia Board of Education v. Barnette (1943) [Chapter 6] condemning the use of
governmental power to prescribe what the citizenry must accept as orthodox opinion.
Second, apart from the potential impact of patronage dismissals on the formation and expression of
opinion, Justice Brennan also stated that the practice had the effect of imposing an unconstitutional
condition on the receipt of a public benefit and therefore came within the rule of cases like Perry v.
Sindermann. In support of the holding in Perry that even an employee with no contractual right to
retain his job cannot be dismissed for engaging in constitutionally protected speech, the Court had
stated:
"For at least a quarter-century, this Court has made clear that even though a person has no `right' to a
valuable governmental benefit and even though the government may deny him the benefit for any
number of reasons, there are some reasons upon which the government may not rely. It may not deny
a benefit to a person on a basis that infringes his constitutionally protected interests - especially, his
interest in freedom of speech. For if the government could deny a benefit to a person because of his
constitutionally protected speech or associations, his exercise of those freedoms would in effect be
penalized and inhibited. This would allow the government to `produce a result which [it] could not
command directly.' Such interference with constitutional rights is impermissible. . . . . .
"Thus, the respondent's lack of a contractual or tenure `right' to re-employment for the 1969-1970
academic year is immaterial to his free speech claim. Indeed, twice before, this Court has specifically
held that the non-renewal of a nontenured public school teacher's one-year contract may not be
predicated on his exercise of First and Fourteenth Amendment rights. * * *

If the First Amendment protects a public employee from discharge based on what he has said, it must
also protect him from discharge based on what he believes. Under this line of analysis, unless the
government can demonstrate "an overriding interest" "of vital importance," requiring that a person's
private beliefs conform to those of the hiring authority, his beliefs cannot be the sole basis for
depriving him of continued public employment.
* * * Petitioner argues that Elrod v. Burns should be read to prohibit only dismissals resulting from an
employee's failure to capitulate to political coercion. Thus, he argues that, so long as an employee is
not asked to change his political affiliation or to contribute to or work for the party's candidates, he
may be dismissed with impunity - even though he would not have been dismissed if he had had the
proper political sponsorship and even though the sole reason for dismissing him was to replace him
with a person who did have such sponsorship. Such an interpretation would surely emasculate the
principles set forth in Elrod. While it would perhaps eliminate the more blatant forms of coercion
described in Elrod, it would not eliminate the coercion of belief that necessarily flows from the
knowledge that one must have a sponsor in the dominant party in order to retain one's job. * * * More
importantly, petitioner's interpretation would require the Court to repudiate entirely the conclusion
* * * that the First Amendment prohibits the dismissal of a public employee solely because of his
private political beliefs.
In sum, there is no requirement that dismissed employees prove that they, or other employees, have
been coerced into changing, either actually or ostensibly, their political allegiance. To prevail in this
type of an action, it was sufficient, as Elrod holds, for respondents to prove that they were discharged
"solely for the reason that they were not affiliated with or sponsored by the Democratic Party."
II
Both opinions in Elrod recognize that party affiliation may be an acceptable requirement for some
types of government employment. Thus, if an employee's private political beliefs would interfere
with the discharge of his public duties, his First Amendment rights may be required to yield to the
State's vital interest in maintaining governmental effectiveness and efficiency. In Elrod, it was clear
that the duties of the employees - the chief deputy of the process division of the sheriff's office, a
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process server and another employee in that office, and a bailiff and security guard at the Juvenile
Court of Cook County - were not of that character, for they were "nonpolicymaking, nonconfidential"
employees.
As Justice Brennan noted in Elrod, it is not always easy to determine whether a position is one in
which political affiliation is a legitimate factor to be considered. Under some circumstances, a
position may be appropriately considered political even though it is neither confidential nor
policymaking in character. As one obvious example, if a State's election laws require that precincts be
supervised by two election judges of different parties, a Republican judge could be legitimately
discharged solely for changing his party registration. That conclusion would not depend on any
finding that the job involved participation in policy decisions or access to confidential information.
Rather, it would simply rest on the fact that party membership was essential to the discharge of the
employee's governmental responsibilities.
It is equally clear that party affiliation is not necessarily relevant to every policymaking or
confidential position. The coach of a state university's football team formulates policy, but no one
could seriously claim that Republicans make better coaches than Democrats, or vice versa, no matter
which party is in control of the state government. On the other hand, it is equally clear that the
Governor of a State may appropriately believe that the official duties of various assistants who help
him write speeches, explain his views to the press, or communicate with the legislature cannot be
performed effectively unless those persons share his political beliefs and party commitments. In sum,
the ultimate inquiry is not whether the label "policymaker" or "confidential" fits a particular position;
rather, the question is whether the hiring authority can demonstrate that party affiliation is an
appropriate requirement for the effective performance of the public office involved.
Having thus framed the issue, it is manifest that the continued employment of an assistant public
defender cannot properly be conditioned upon his allegiance to the political party in control of the
county government. The primary, if not the only, responsibility of an assistant public defender is to
represent individual citizens in controversy with the State. As we recently observed in commenting
on the duties of counsel appointed to represent indigent defendants in federal criminal proceedings:
"[T]he primary office performed by appointed counsel parallels the office of privately retained counsel.
Although it is true that appointed counsel serves pursuant to statutory authorization and in
furtherance of the federal interest in insuring effective representation of criminal defendants, his duty
is not to the public at large, except in that general way. His principal responsibility is to serve the
undivided interests of his client. Indeed, an indispensable element of the effective performance of his
responsibilities is the ability to act independently of the government and to oppose it in adversary
litigation."

Thus, whatever policymaking occurs in the public defender's office must relate to the needs of
individual clients and not to any partisan political interests. Similarly, although an assistant is bound
to obtain access to confidential information arising out of various attorney-client relationships, that
information has no bearing whatsoever on partisan political concerns. Under these circumstances, it
would undermine, rather than promote, the effective performance of an assistant public defender's
office to make his tenure dependent on his allegiance to the dominant political party.
Accordingly, the entry of an injunction against termination of respondents' employment on purely
political grounds was appropriate and the judgment of the Court of Appeals is
Affirmed.
JUSTICE POWELL, WITH WHOM JUSTICE REHNQUIST JOINS, AND WITH WHOM JUSTICE STEWART JOINS AS TO PART I,
DISSENTING.
The Court today continues the evisceration of patronage practices begun in Elrod v. Burns (1976).
With scarcely a glance at almost 200 years of American political tradition, the Court further limits the
relevance of political affiliation to the selection and retention of public employees. Many public
positions previously filled on the basis of membership in national political parties now must be
staffed in accordance with a constitutionalized civil service standard that will affect the employment
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practices of federal, state, and local governments. Governmental hiring practices long thought to be a
matter of legislative and executive discretion now will be subjected to judicial oversight. Today's
decision is an exercise of judicial lawmaking that, as The Chief Justice wrote in his Elrod dissent,
"represents a significant intrusion into the area of legislative and policy concerns." I dissent.
I
The Court contends that its holding is compelled by the First Amendment. In reaching this
conclusion, the Court largely ignores the substantial governmental interests served by patronage.
Patronage is a long-accepted practice that never has been eliminated totally by civil service laws and
regulations. The flaw in the Court's opinion lies not only in its application of First Amendment
principles, but also in its promulgation of a new, and substantially expanded, standard for
determining which governmental employees may be retained or dismissed on the basis of political
affiliation.
* * * The standard articulated by the Court is framed in vague and sweeping language certain to
create vast uncertainty. Elected and appointed officials at all levels who now receive guidance from
civil service laws, no longer will know when political affiliation is an appropriate consideration in
filling a position. Legislative bodies will not be certain whether they have the final authority to make
the delicate line-drawing decisions embodied in the civil service laws. Prudent individuals requested
to accept a public appointment must consider whether their predecessors will threaten to oust them
through legal action.
One example at the national level illustrates the nature and magnitude of the problem created by
today's holding. The President customarily has considered political affiliation in removing and
appointing United States attorneys. Given the critical role that these key law enforcement officials
play in the administration of the Department of Justice, both Democratic and Republican Attorneys
General have concluded, not surprisingly, that they must have the confidence and support of the
United States attorneys. And political affiliation has been used as one indicator of loyalty.
Yet, it would be difficult to say, under the Court's standard, that "partisan" concerns properly are
relevant to the performance of the duties of a United States attorney. This Court has noted that "`[t]he
office of public prosecutor is one which must be administered with courage and independence.'"
Nevertheless, I believe that the President must have the right to consider political affiliation when he
selects top ranking Department of Justice officials. The President and his Attorney General, not this
Court, are charged with the responsibility for enforcing the laws and administering the Department
of Justice. The Court's vague, overbroad decision may cast serious doubt on the propriety of
dismissing United States attorneys, as well as thousands of other policymaking employees at all
levels of government, because of their membership in a national political party.
A constitutional standard that is both uncertain in its application and impervious to legislative
change will now control selection and removal of key governmental personnel. Federal judges will
now be the final arbiters as to who federal, state, and local governments may employ. In my view, the
Court is not justified in removing decisions so essential to responsible and efficient governance from
the discretion of legislative and executive officials.
II
The Court errs not only in its selection of a standard, but more fundamentally in its conclusion that
the First Amendment prohibits the use of membership in a national political party as a criterion for
the dismissal of public employees. In reaching this conclusion, the Court makes new law from
inapplicable precedents. The Court suggests that its decision is mandated by the principle that
governmental action may not "prescribe what shall be orthodox in politics, nationalism, religion, or
other matters of opinion. . . ." Board of Education v. Barnette (1943). The Court also relies upon the
decisions in Perry v. Sindermann (1972), and Keyishian v. Board of Regents (1967). But the propriety
of patronage was neither questioned nor addressed in those cases.
Both Keyishian and Perry involved faculty members who were dismissed from state educational
institutions because of their political views. In Keyishian, the Court reviewed a state statute that
permitted dismissals of faculty members from state institutions for "treasonable or seditious"
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utterances or acts. The Court noted that academic freedom is "a special concern of the First
Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom." Because
of the ambiguity in the statutory language, the Court held that the law was unconstitutionally vague.
The Court also held that membership in the Communist Party could not automatically disqualify a
person from holding a faculty position in a state university. In Perry, the Court held that the Board of
Regents of a state university system could not discharge a professor in retaliation for his exercise of
free speech. In neither case did the State suggest that the governmental positions traditionally had
been regarded as patronage positions. Thus, the Court correctly held that no substantial state
interest justified the infringement of free speech. This case presents a question quite different from
that in Keyishian and Perry.
The constitutionality of appointing or dismissing public employees on the basis of political affiliation
depends upon the governmental interests served by patronage. No constitutional violation exists if
patronage practices further sufficiently important interests to justify tangential burdening of First
Amendment rights. See Buckley v. Valeo (1976). This inquiry cannot be resolved by reference to First
Amendment cases in which patronage was neither involved nor discussed. Nor can the question in
this case be answered in a principled manner without identifying and weighing the governmental
interest served by patronage.
III
Patronage appointments help build stable political parties by offering rewards to persons who
assume the tasks necessary to the continued functioning of political organizations. "As all parties are
concerned with power they naturally operate by placing members and supporters into positions of
power. Thus there is nothing derogatory in saying that a primary function of parties is patronage." J.
Jupp, Political Parties 25-26 (1968). The benefits of patronage to a political organization do not
derive merely from filling policymaking positions on the basis of political affiliation. Many, if not most,
of the jobs filled by patronage at the local level may not involve policymaking functions. The use of
patronage to fill such positions builds party loyalty and avoids "splintered parties and unrestrained
factionalism [that might] do significant damage to the fabric of government."
Until today, I would have believed that the importance of political parties was self-evident. Political
parties, dependent in many ways upon patronage, serve a variety of substantial governmental
interests. A party organization allows political candidates to muster donations of time and money
necessary to capture the attention of the electorate. Particularly in a time of growing reliance upon
expensive television advertisements, a candidate who is neither independently wealthy nor capable
of attracting substantial contributions must rely upon party workers to bring his message to the
voters. In contests for less visible offices, a candidate may have no efficient method of appealing to
the voters unless he enlists the efforts of persons who seek reward through the patronage system.
Insofar as the Court's decision today limits the ability of candidates to present their views to the
electorate, our democratic process surely is weakened.
Strong political parties also aid effective governance after election campaigns end. Elected officials
depend upon appointees who hold similar views to carry out their policies and administer their
programs. Patronage - the right to select key personnel and to reward the party "faithful" - serves the
public interest by facilitating the implementation of policies endorsed by the electorate. The Court's
opinion casts a shadow over this time-honored element of our system. It appears to recognize that
the implementation of policy is a legitimate goal of the patronage system and that some, but not all,
policymaking employees may be replaced on the basis of their political affiliation. But the Court does
not recognize that the implementation of policy often depends upon the cooperation of public
employees who do not hold policymaking posts. As one commentator has written: "What the Court
forgets is that, if government is to work, policy implementation is just as important as policymaking.
No matter how wise the chief, he has to have the right Indians to transform his ideas into action, to
get the job done." The growth of the civil service system already has limited the ability of elected
politicians to effect political change. Public employees immune to public pressure "can resist changes
in policy without suffering either the loss of their jobs or a cut in their salary." Such effects are proper
when they follow from legislative or executive decisions to withhold some jobs from the patronage
system. But the Court tips the balance between patronage and nonpatronage positions, and, in my
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view, imposes unnecessary constraints upon the ability of responsible officials to govern effectively
and to carry out new policies. * * *
In sum, the effect of the Court's decision will be to decrease the accountability and denigrate the role
of our national political parties. This decision comes at a time when an increasing number of
observers question whether our national political parties can continue to operate effectively. Broadbased political parties supply an essential coherence and flexibility to the American political scene.
They serve as coalitions of different interests that combine to seek national goals. The decline of
party strength inevitably will enhance the influence of special interest groups whose only concern all
too often is how a political candidate votes on a single issue. The quality of political debate, and
indeed the capacity of government to function in the national interest, suffer when candidates and
officeholders are forced to be more responsive to the narrow concerns of unrepresentative special
interest groups than to overarching issues of domestic and foreign policy. The Court ignores the
substantial governmental interests served by reasonable patronage. In my view, its decision will
seriously hamper the functioning of stable political parties.
IV
The facts of this case also demonstrate that the Court's decision well may impair the right of local
voters to structure their government. Consideration of the form of local government in Rockland
County, N. Y., demonstrates the antidemocratic effect of the Court's decision.
The voters of the county elect a legislative body. Among the responsibilities that the voters give to
the legislature is the selection of a county public defender. In 1972, when the county voters elected a
Republican majority in the legislature, a Republican was selected as Public Defender. The Public
Defender retained one respondent and appointed the other as Assistant Public Defenders. Not
surprisingly, both respondents are Republicans. In 1976, the voters elected a majority of Democrats
to the legislature. The Democratic majority, in turn, selected a Democratic Public Defender who
replaced both respondents with Assistant Public Defenders approved by the Democratic legislators.
The voters of Rockland County are free to elect their public defender and assistant public defenders
instead of delegating their selection to elected and appointed officials. Certainly the Court's holding
today would not preclude the voters, the ultimate "hiring authority," from choosing both public
defenders and their assistants by party membership. The voters' choice of public officials on the basis
of political affiliation is not yet viewed as an inhibition of speech; it is democracy. Nor may any
incumbent contend seriously that the voters' decision not to re-elect him because of his political
views is an impermissible infringement upon his right of free speech or affiliation. In other words,
the operation of democratic government depends upon the selection of elected officials on precisely
the basis rejected by the Court today.
Although the voters of Rockland County could have elected both the public defender and his
assistants, they have given their legislators a representative proxy to appoint the public defender.
And they have delegated to the public defender the power to choose his assistants. Presumably the
voters have adopted this course in order to facilitate more effective representative government. Of
course, the voters could have instituted a civil service system that would preclude the selection of
either the public defender or his assistants on the basis of political affiliation. But the continuation of
the present system reflects the electorate's decision to select certain public employees on the basis of
political affiliation.
The Court's decision today thus limits the ability of the voters of a county to structure their
democratic government in the way that they please. Now those voters must elect both the public
defender and his assistants if they are to fill governmental positions on a partisan basis. Because
voters certainly may elect governmental officials on the basis of party ties, it is difficult to perceive a
constitutional reason for prohibiting them from delegating that same authority to legislators and
appointed officials.
V
The benefits of political patronage and the freedom of voters to structure their representative
government are substantial governmental interests that justify the selection of the assistant public
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defenders of Rockland County on the basis of political affiliation. The decision to place certain
governmental positions within a civil service system is a sensitive political judgment that should be
left to the voters and to elected representatives of the people. But the Court's constitutional holding
today displaces political responsibility with judicial fiat. In my view, the First Amendment does not
incorporate a national civil service system. I would reverse the judgment of the Court of Appeals.

Notes

1.
In Rutan v. Republican Party of Illinois, 497 U.S. 62 (1990), a closely divided Court extended
Branti and Elrod to a range of public employment decisions. The Governor of Illinois had issued an
executive order instituting a “hiring freeze” absent the Governor’s express permission. The Governor
then allegedly used that permission to operate a “patronage system” in that Republican party
members were routinely hired, allowed to transfer, or promoted, while non-Republican party
members were not. Writing for the Court, Justice Brennan began his opinion thusly:
To the victor belong only those spoils that may be constitutionally obtained. Elrod v. Burns (1976), and
Branti v. Finkel (1980) decided that the First Amendment forbids government officials to discharge or
threaten to discharge public employees solely for not being supporters of the political party in power,
unless party affiliation is an appropriate requirement for the position involved. Today we are asked to
decide the constitutionality of several related political patronage practices — whether promotion,
transfer, recall, and hiring decisions involving low-level public employees may be constitutionally
based on party affiliation and support. We hold that they may not.

The dissenting opinion, authored by Justice Scalia, and joined by Chief Justice Rehnquist, as well as
Justices Kennedy and (in part) O'Connor, began:
Today the Court establishes the constitutional principle that party membership is not a permissible
factor in the dispensation of government jobs, except those jobs for the performance of which party
affiliation is an "appropriate requirement." It is hard to say precisely (or even generally) what that
exception means, but if there is any category of jobs for whose performance party affiliation is not an
appropriate requirement, it is the job of being a judge, where partisanship is not only unneeded but
positively undesirable. It is, however, rare that a federal administration of one party will appoint a
judge from another party. And it has always been rare. See Marbury v. Madison, 1 Cranch 137 (1803).
Thus, the new principle that the Court today announces will be enforced by a corps of judges (the
Members of this Court included) who overwhelmingly owe their office to its violation. Something must
be wrong here, and I suggest it is the Court.

2.
In O'Hare Truck Serv., Inc. v. City of Northlake, 518 U.S. 712 (1996), the Court held that the
protections of Elrod and Branti extend to an instance where government retaliates against a
contractor, or a regular provider of services, for the exercise of rights of political association or the
expression of political allegiance.
3.
Do you think there should be a distinction between prosecutors and public defenders
regarding the rule of Elrod and Branti?
4.
How do you see the relationship between The Hatch Act and patronage? Do the
controversies in the Trump Administration influence your views?

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II.

Protecting Public Employee Speech
A.

Foundational Tests

Pickering v. Board of Education of Township High School
District 205, Will County, Illinois
91 U.S. 563 (1968)
MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH WARREN, C.J., HARLAN, BRENNAN, STEWART, AND
FORTAS, JJ., JOINED. DOUGLAS, J., FILED A CONCURRING OPINION IN WHICH BLACK, J., JOINED. WHITE, J., FILED AN
OPINION CONCURRING IN PART AND DISSENTING IN PART.
JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT.
Appellant Marvin L. Pickering, a teacher in Township High School District 205, Will County, Illinois,
was dismissed from his position by the appellee Board of Education for sending a letter to a local
newspaper in connection with a recently proposed tax increase that was critical of the way in which
the Board and the district superintendent of schools had handled past proposals to raise new
revenue for the schools. Appellant's dismissal resulted from a determination by the Board, after a full
hearing, that the publication of the letter was 'detrimental to the efficient operation and
administration of the schools of the district' and hence, under the relevant Illinois statute, Ill.Rev.Stat.,
c. 122, § 10—22.4(1963), that 'interests of the schools require(d) (his dismissal).'
Appellant's claim that his writing of the letter was protected by the First and Fourteenth
Amendments was rejected. Appellant then sought review of the Board's action in the Circuit Court of
Will County, which affirmed his dismissal on the ground that the determination that appellant's letter
was detrimental to the interests of the school system was supported by substantial evidence and that
the interests of the schools overruled appellant's First Amendment rights. On appeal, the Supreme
Court of Illinois, two Justices dissenting, affirmed the judgment of the Circuit Court. We noted
probable jurisdiction of appellant's claim that the Illinois statute permitting his dismissal on the facts
of this case was unconstitutional as applied under the First and Fourteenth Amendments. For the
reasons detailed below we agree that appellant's rights to freedom of speech were violated and we
reverse.
I.
In February of 1961 the appellee Board of Education asked the voters of the school district to
approve a bond issue to raise $4,875,000 to erect two new schools. The proposal was defeated. Then,
in December of 1961, the Board submitted another bond proposal to the voters which called for the
raising of $5,500,000 to build two new schools. This second proposal passed and the schools were
built with the money raised by the bond sales. In May of 1964 a proposed increase in the tax rate to
be used for educational purposes was submitted to the voters by the Board and was defeated. Finally,
on September 19, 1964, a second proposal to increase the tax rate was submitted by the Board and
was likewise defeated. It was in connection with this last proposal of the School Board that appellant
wrote the letter to the editor (which we reproduce in an Appendix to this opinion) that resulted in
his dismissal.
Prior to the vote on the second tax increase proposal a variety of articles attributed to the District
205 Teachers' Organization appeared in the local paper. These articles urged passage of the tax
increase and stated that failure to pass the increase would result in a decline in the quality of
education afforded children in the district's schools. A letter from the superintendent of schools
making the same point was published in the paper two days before the election and submitted to the
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voters in mimeographed form the following day. It was in response to the foregoing material,
together with the failure of the tax increase to pass, that appellant submitted the letter in question to
the editor of the local paper.
The letter constituted, basically, an attack on the School Board's handling of the 1961 bond issue
proposals and its subsequent allocation of financial resources between the schools' educational and
athletic programs. It also charged the superintendent of schools with attempting to prevent teachers
in the district from opposing or criticizing the proposed bond issue.
The Board dismissed Pickering for writing and publishing the letter. Pursuant to Illinois law, the
Board was then required to hold a hearing on the dismissal. At the hearing the Board charged that
numerous statements in the letter were false and that the publication of the statements unjustifiably
impugned the 'motives, honesty, integrity, truthfulness, responsibility and competence' of both the
Board and the school administration. The Board also charged that the false statements damaged the
professional reputations of its members and of the school administrators, would be disruptive of
faculty discipline, and would tend to foment 'controversy, conflict and dissension' among teachers,
administrators, the Board of Education, and the residents of the district. Testimony was introduced
from a variety of witnesses on the truth or falsity of the particular statements in the letter with which
the Board took issue. The Board found the statements to be false as charged. No evidence was
introduced at any point in the proceedings as to the effect of the publication of the letter on the
community as a whole or on the administration of the school system in particular, and no specific
findings along these lines were made.
The Illinois courts reviewed the proceedings solely to determine whether the Board's findings were
supported by substantial evidence and whether, on the facts as found, the Board could reasonably
conclude that appellant's publication of the letter was 'detrimental to the best interests of the
schools.' Pickering's claim that his letter was protected by the First Amendment was rejected on the
ground that his acceptance of a teaching position in the public schools obliged him to refrain from
making statements about the operation of the schools 'which in the absence of such position he
would have an undoubted right to engage in.' It is not altogether clear whether the Illinois Supreme
Court held that the First Amendment had no applicability to appellant's dismissal for writing the
letter in question or whether it determined that the particular statements made in the letter were not
entitled to First Amendment protection.
In any event, it clearly rejected Pickering's claim that, on the facts of this case, he could not
constitutionally be dismissed from his teaching position.
II.
To the extent that the Illinois Supreme Court's opinion may be read to suggest that teachers may
constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy
as citizens to comment on matters of public interest in connection with the operation of the public
schools in which they work, it proceeds on a premise that has been unequivocally rejected in
numerous prior decisions of this Court. “(T)he theory that public employment which may be denied
altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly
rejected.” Keyishian v. Board of Regents (1967). At the same time 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 regulation of the speech of the citizenry in general. The
problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in
commenting upon matters of public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its employees.
III.
The Board contends that 'the teacher by virtue of his public employment has a duty of loyalty to
support his superiors in attaining the generally accepted goals of education and that, if he must speak
out publicly, he should do so factually and accurately, commensurate with his education and
experience.' Appellant, on the other hand, argues that the test applicable to defamatory statements
directed against public officials by persons having no occupational relationship with them, namely,
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that statements to be legally actionable must be made 'with knowledge that (they were) * * * false or
with reckless disregard of whether (they were) * * * false or not,' New York Times Co. v. Sullivan
(1964), should also be applied to public statements made by teachers. Because of the enormous
variety of fact situations in which critical statements by teachers and other public employees may be
thought by their superiors, against whom the statements are directed to furnish grounds for
dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard
against which all such statements may be judged. However, in the course of evaluating the conflicting
claims of First Amendment protection and the need for orderly school administration in the context
of this case, we shall indicate some of the general lines along which an analysis of the controlling
interests should run.
An examination of the statements in appellant's letter objected to by the Board reveals that they, like
the letter as a whole, consist essentially of criticism of the Board's allocation of school funds between
educational and athletic programs, and of both the Board's and the superintendent's methods of
informing, or preventing the informing of, the district's taxpayers of the real reasons why additional
tax revenues were being sought for the schools. The statements are in no way directed towards any
person with whom appellant 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 and, to a
somewhat lesser extent, with the superintendent are not the kind of close working relationships for
which it can persuasively be claimed that personal loyalty and confidence are necessary to their
proper functioning. Accordingly, to the extent that the Board's position here can be taken to suggest
that even comments on matters of public concern that are substantially correct, such as statements
(1)—(4) of appellant's letter, see Appendix, infra, may furnish grounds for dismissal if they are
sufficiently critical in tone, we unequivocally reject it.
We next consider the statements in appellant's letter which we agree to be false. The Board's original
charges included allegations that the publication of the letter damaged the professional reputations
of the Board and the superintendent and would foment controversy and conflict among the Board,
teachers, administrators, and the residents of the district. However, no evidence to support these
allegations was introduced at the hearing. So far as the record reveals, Pickering's letter was greeted
by everyone but its main target, the Board, with massive apathy and total disbelief. The Board must,
therefore, have decided, perhaps by analogy with the law of libel, that the statements were per se
harmful to the operation of the schools.
However, the only way in which the Board could conclude, absent any evidence of the actual effect of
the letter, that the statements contained therein were per se detrimental to the interest of the schools
was to equate the Board members' own interests with that of the schools. Certainly an accusation
that too much money is being spent on athletics by the administrators of the school system (which is
precisely the import of that portion of appellant's letter containing the statements that we have
found to be false, see Appendix, infra) cannot reasonably be regarded as per se detrimental to the
district's schools. Such an accusation reflects rather a difference of opinion between Pickering and
the Board as to the preferable manner of operating the school system, a difference of opinion that
clearly concerns an issue of general public interest.
In addition, the fact that particular illustrations of the Board's claimed undesirable emphasis on
athletic programs are false would not normally have any necessary impact on the actual operation of
the schools, beyond its tendency to anger the Board. For example, Pickering's letter was written after
the defeat at the polls of the second proposed tax increase. It could, therefore, have had no effect on
the ability of the school district to raise necessary revenue, since there was no showing that there
was any proposal to increase taxes pending when the letter was written.
More importantly, the question whether a school system requires additional funds is a matter of
legitimate public concern on which the judgment of the school administration, including the School
Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such
a question free and open debate is vital to informed decision-making by the electorate. Teachers are,
as a class, the members of a community most likely to have informed and definite opinions as to how

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funds allotted to the operations of the schools should be spent. Accordingly, it is essential that they
be able to speak out freely on such questions without fear of retaliatory dismissal.
In addition, the amounts expended on athletics which Pickering reported erroneously were matters
of public record on which his position as a teacher in the district did not qualify him to speak with
any greater authority than any other taxpayer. The Board could easily have rebutted appellant's
errors by publishing the accurate figures itself, either via a letter to the same newspaper or
otherwise. We are thus not presented with a situation in which a teacher has carelessly made false
statements about matters so closely related to the day-to-day operations of the schools that any
harmful impact on the public would be difficult to counter because of the teacher's presumed greater
access to the real facts. Accordingly, we have no occasion to consider at this time whether under such
circumstances a school board could reasonably require that a teacher make substantial efforts to
verify the accuracy of his charges before publishing them.
What we do have before us is a case in which a teacher has made erroneous public statements upon
issues then currently the subject of public attention, which are critical of his ultimate employer but
which are neither shown nor can be presumed to have in any way either impeded the teacher's
proper performance of his daily duties in the classroom or to have interfered with the regular
operation of the schools generally. In these circumstances we conclude that the interest of the school
administration in limiting teachers' opportunities to contribute to public debate is not significantly
greater than its interest in limiting a similar contribution by any member of the general public.
IV.
The public interest in having free and unhindered debate on matters of public importance—the core
value of the Free Speech Clause of the First Amendment—is so great that it has been held that a State
cannot authorize the recovery of damages by a public official for defamatory statements directed at
him except when such statements are shown to have been made either with knowledge of their
falsity or with reckless disregard for their truth or falsity. New York Times Co. v. Sullivan. The same
test has been applied to suits for invasion of privacy based on false statements where a 'matter of
public interest' is involved. Time, Inc. v. Hill (1967) . It is therefore perfectly clear that, were
appellant a member of the general public, the State's power to afford the appellee Board of Education
or its members any legal right to sue him for writing the letter at issue here would be limited by the
requirement that the letter be judged by the standard laid down in New York Times.
This Court has also indicated, in more general terms, that statements by public officials on matters of
public concern must be accorded First Amendment protection despite the fact that the statements
are directed at their nominal superiors. * * *
While criminal sanctions and damage awards have a somewhat different impact on the exercise of
the right to freedom of speech from dismissal from employment, it is apparent that the threat of
dismissal from public employment is nonetheless a potent means of inhibiting speech. We have
already noted our disinclination to make an across-the-board equation of dismissal from public
employment for remarks critical of superiors with awarding damages in a libel suit by a public
official for similar criticism. However, in a case such as the present one, in which the fact of
employment is only tangentially and insubstantially involved in the subject matter of the public
communication made by a teacher, we conclude that it is necessary to regard the teacher as the
member of the general public he seeks to be.
In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly
made by him, a teacher's exercise of his right to speak on issues of public importance may not furnish
the basis for his dismissal from public employment. Since no such showing has been made in this
case regarding appellant's letter, see Appendix, infra, his dismissal for writing it cannot be upheld
and the judgment of the Illinois Supreme Court must, accordingly, be reversed and the case
remanded for further proceedings not inconsistent with this opinion. It is so ordered.
Judgment reversed and case remanded with directions.
JUSTICE DOUGLAS, WITH WHOM BLACK, J., JOINS, CONCURS IN THE JUDGMENT OF THE COURT [OMITTED]
WHITE, J., CONCURRING IN PART AND DISSENTING IN PART [OMITTED].
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APPENDIX TO OPINION OF THE COURT
LETTERS TO THE EDITOR
* * * Graphic Newspapers, Inc. Thursday, September 24, 1964, Page 4
Dear Editor:
I enjoyed reading the back issues of your paper which you loaned to me. Perhaps others would enjoy
reading them in order to see just how far the two new high schools have deviated from the original
promises by the Board of Education. First, let me state that I am referring to the February thru
November, 1961 issues of your paper, so that it can be checked.
One statement in your paper declared that swimming pools, athletic fields, and auditoriums had been
left out of the program. They may have been left out but they got put back in very quickly because
Lockport West has both an auditorium and athletic field. In fact, Lockport West has a better athletic
field than Lockport Central. It has a track that isn't quite regulation distance even though the board
spent a few thousand dollars on it. Whose fault is that? Oh, I forgot, it wasn't supposed to be there in
the first place. It must have fallen out of the sky. Such responsibility has been touched on in other
letters but it seems one just can't help noticing it. I am not saying the school shouldn't have these
facilities, because I think they should, but promises are promises, or are they?
Since there seems to be a problem getting all the facts to the voter on the twice defeated bond issue,
many letters have been written to this paper and probably more will follow, I feel I must say something
about the letters and their writers. Many of these letters did not give the whole story. Letters by your
Board and Administration have stated that teachers' salaries total $1,297,746 for one year. Now that
must have been the total payroll, otherwise the teachers would be getting $10,000 a year. I teach at the
high school and I know this just isn't the case. However, this shows their 'stop at nothing' attitude. To
illustrate further, do you know that the superintendent told the teachers, and I quote, 'Any teacher that
opposes the referendum should be prepared for the consequences.' I think this gets at the reason we
have problems passing bond issues. Threats take something away; these are insults to voters in a free
society. We should try to sell a program on its merits, if it has any.
Remember those letters entitled 'District 205 Teachers Speak,' I think the voters should know that
those letters have been written and agreed to by only five or six teachers, not 98% of the teachers in
the high school. In fact, many teachers didn't even know who was writing them. Did you know that
those letters had to have the approval of the superintendent before they could be put in the paper?
That's the kind of totalitarianism teachers live in at the high school, and your children go to school in.
In last week's paper, the letter written by a few uninformed teachers threatened to close the school
cafeteria and fire its personnel. This is ridiculous and insults the intelligence of the voter because
properly managed school cafeterias do not cost the school district any money. If the cafeteria is losing
money, then the board should not be packing free lunches for athletes on days of athletic contests.
Whatever the case, the taxpayer's child should only have to pay about 30¢ for his lunch instead of 35¢
to pay for free lunches for the athletes.
In a reply to this letter your Board of Administration will probably state that these lunches are paid for
from receipts from the games. But $20,000 in receipts doesn't pay for the $200,000 a year they have
been spending on varsity sports while neglecting the wants of teachers.
You see we don't need an increase in the transportation tax unless the voters want to keep paying
$50,000 or more a year to transport athletes home after practice and to away games, etc. Rest of the
$200,000 is made up in coaches' salaries, athletic directors' salaries, baseball pitching machines,
sodded football fields, and thousands of dollars for other sports equipment.
These things are all right, provided we have enough money for them. To sod football fields on
borrowed money and then not be able to pay teachers' salaries is getting the cart before the horse.
If these things aren't enough for you, look at East High. No doors on many of the classrooms, a plant
room without any sunlight, no water in a first aid treatment room, are just a few of many things. The
taxpayers were really taken to the cleaners. A part of the sidewalk in front of the building has already
collapsed. Maybe Mr. Hess would be interested to know that we need blinds on the windows in that
building also.

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Once again, the board must have forgotten they were going to spend $3,200,000 on the West building
and $2,300,000 on the East building.
As I see it, the bond issue is a fight between the Board of Education that is trying to push tax-supported
athletics down our throats with education, and a public that has mixed emotions about both of these
items because they feel they are already paying enough taxes, and simply don't know whom to trust
with any more tax money.
I must sign this letter as a citizen, taxpayer and voter, not as a teacher, since that freedom has been
taken from the teachers by the administration. Do you really know what goes on behind those stone
walls at the high school?
Respectfully,
Marvin L. Pickering

Mt. Healthy City Board of Ed. v. Doyle
429 U.S. 274 (1977)
REHNQUIST, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.
Respondent Doyle sued petitioner Mt. Healthy Board of Education in the United States District Court
for the Southern District of Ohio. Doyle claimed that the Board's refusal to renew his contract in 1971
violated his rights under the First and Fourteenth Amendments to the United States Constitution.
After a bench trial the District Court held that Doyle was entitled to reinstatement with backpay. The
Court of Appeals for the Sixth Circuit affirmed the judgment, and we granted the Board's petition for
certiorari to consider an admixture of jurisdictional and constitutional claims.
I -III
[omitted]
IV
Having concluded that respondent's complaint sufficiently pleaded jurisdiction under 28 U.S.C. 1331,
that the Board has failed to preserve the issue whether that complaint stated a claim upon which
relief could be granted against the Board, and that the Board is not immune from suit under the
Eleventh Amendment, we now proceed to consider the merits of respondent's claim under the First
and Fourteenth Amendments.
Doyle was first employed by the Board in 1966. He worked under one-year contracts for the first
three years, and under a two-year contract from 1969 to 1971. In 1969 he was elected president of
the Teachers' Association, in which position he worked to expand the subjects of direct negotiation
between the Association and the Board of Education. During Doyle's one-year term as president of
the Association, and during the succeeding year when he served on its executive committee, there
was apparently some tension in relations between the Board and the Association.
Beginning early in 1970, Doyle was involved in several incidents not directly connected with his role
in the Teachers' Association. In one instance, he engaged in an argument with another teacher which
culminated in the other teacher's slapping him. Doyle subsequently refused to accept an apology and
insisted upon some punishment for the other teacher. His persistence in the matter resulted in the
suspension of both teachers for one day, which was followed by a walkout by a number of other
teachers, which in turn resulted in the lifting of the suspensions.
On other occasions, Doyle got into an argument with employees of the school cafeteria over the
amount of spaghetti which had been served him; referred to students, in connection with a
disciplinary complaint, as "sons of bitches"; and made an obscene gesture to two girls in connection
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with their failure to obey commands made in his capacity as cafeteria supervisor. Chronologically the
last in the series of incidents which respondent was involved in during his employment by the Board
was a telephone call by him to a local radio station. It was the Board's consideration of this incident
which the court below found to be a violation of the First and Fourteenth Amendments.
In February 1971, the principal circulated to various teachers a memorandum relating to teacher
dress and appearance, which was apparently prompted by the view of some in the administration
that there was a relationship between teacher appearance and public support for bond issues.
Doyle's response to the receipt of the memorandum - on a subject which he apparently understood
was to be settled by joint teacher-administration action - was to convey the substance of the
memorandum to a disc jockey at WSAI, a Cincinnati radio station, who promptly announced the
adoption of the dress code as a news item. Doyle subsequently apologized to the principal, conceding
that he should have made some prior communication of his criticism to the school administration.
Approximately one month later the superintendent made his customary annual recommendations to
the Board as to the rehiring of nontenured teachers. He recommended that Doyle not be rehired. The
same recommendation was made with respect to nine other teachers in the district, and in all
instances, including Doyle's, the recommendation was adopted by the Board. Shortly after being
notified of this decision, respondent requested a statement of reasons for the Board's actions. He
received a statement citing "a notable lack of tact in handling professional matters which leaves
much doubt as to your sincerity in establishing good school relationships." That general statement
was followed by references to the radio station incident and to the obscene-gesture incident.
The District Court found that all of these incidents had in fact occurred. It concluded that respondent
Doyle's telephone call to the radio station was "clearly protected by the First Amendment," and that
because it had played a "substantial part" in the decision of the Board not to renew Doyle's
employment, he was entitled to reinstatement with backpay. The District Court did not expressly
state what test it was applying in determining that the incident in question involved conduct
protected by the First Amendment, but simply held that the communication to the radio station was
such conduct. The Court of Appeals affirmed in a brief per curiam opinion.
Doyle's claims under the First and Fourteenth Amendments are not defeated by the fact that he did
not have tenure. Even though he could have been discharged for no reason whatever, and had no
constitutional right to a hearing prior to the decision not to rehire him, Board of Regents v. Roth
(1972), he may nonetheless establish a claim to reinstatement if the decision not to rehire him was
made by reason of his exercise of constitutionally protected First Amendment freedoms. Perry v.
Sindermann (1972).
That question of whether speech of a government employee is constitutionally protected expression
necessarily entails striking "a balance between the interests of the teacher, as a citizen, in
commenting upon matters of public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its employees." Pickering v. Board
of Education (1968). There is no suggestion by the Board that Doyle violated any established policy,
or that its reaction to his communication to the radio station was anything more than an ad hoc
response to Doyle's action in making the memorandum public. We therefore accept the District
Court's finding that the communication was protected by the First and Fourteenth Amendments. We
are not, however, entirely in agreement with that court's manner of reasoning from this finding to
the conclusion that Doyle is entitled to reinstatement with backpay.
The District Court made the following "conclusions" on this aspect of the case:
"1) If a non-permissible reason, e. g., exercise of First Amendment rights, played a substantial part in
the decision not to renew - even in the face of other permissible grounds - the decision may not stand
(citations omitted).
"2) A non-permissible reason did play a substantial part. That is clear from the letter of the
Superintendent immediately following the Board's decision, which stated two reasons - the one, the
conversation with the radio station clearly protected by the First Amendment. A court may not engage
in any limitation of First Amendment rights based on `tact' - that is not to say that the `tactfulness' is
irrelevant to other issues in this case."
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At the same time, though, it stated that
"[i]n fact, as this Court sees it and finds, both the Board and the Superintendent were faced with a
situation in which there did exist in fact reason . . . independent of any First Amendment rights or
exercise thereof, to not extend tenure."

Since respondent Doyle had no tenure, and there was therefore not even a state-law requirement of
"cause" or "reason" before a decision could be made not to renew his employment, it is not clear
what the District Court meant by this latter statement. Clearly the Board legally could have dismissed
respondent had the radio station incident never come to its attention. One plausible meaning of the
court's statement is that the Board and the Superintendent not only could, but in fact would have
reached that decision had not the constitutionally protected incident of the telephone call to the
radio station occurred. We are thus brought to the issue whether, even if that were the case, the fact
that the protected conduct played a "substantial part" in the actual decision not to renew would
necessarily amount to a constitutional violation justifying remedial action. We think that it would not.
A rule of causation which focuses solely on whether protected conduct played a part, "substantial" or
otherwise, in a decision not to rehire, could place an employee in a better position as a result of the
exercise of constitutionally protected conduct than he would have occupied had he done nothing. The
difficulty with the rule enunciated by the District Court is that it would require reinstatement in cases
where a dramatic and perhaps abrasive incident is inevitably on the minds of those responsible for
the decision to rehire, and does indeed play a part in that decision - even if the same decision would
have been reached had the incident not occurred. The constitutional principle at stake is sufficiently
vindicated if such an employee is placed in no worse a position than if he had not engaged in the
conduct. A borderline or marginal candidate should not have the employment question resolved
against him because of constitutionally protected conduct. But that same candidate ought not to be
able, by engaging in such conduct, to prevent his employer from assessing his performance record
and reaching a decision not to rehire on the basis of that record, simply because the protected
conduct makes the employer more certain of the correctness of its decision.
This is especially true where, as the District Court observed was the case here, the current decision to
rehire will accord "tenure." The long-term consequences of an award of tenure are of great moment
both to the employee and to the employer. They are too significant for us to hold that the Board in
this case would be precluded, because it considered constitutionally protected conduct in deciding
not to rehire Doyle, from attempting to prove to a trier of fact that quite apart from such conduct
Doyle's record was such that he would not have been rehired in any event.
In other areas of constitutional law, this Court has found it necessary to formulate a test of causation
which distinguishes between a result caused by a constitutional violation and one not so caused. We
think those are instructive in formulating the test to be applied here.
In Lyons v. Oklahoma (1944), the Court held that even though the first confession given by a
defendant had been involuntary, the Fourteenth Amendment did not prevent the State from using a
second confession obtained 12 hours later if the coercion surrounding the first confession had been
sufficiently dissipated as to make the second confession voluntary. In Wong Sun v. United States
(1963), the Court was willing to assume that a defendant's arrest had been unlawful, but held that
"the connection between the arrest and the statement [given several days later] had `become so
attenuated as to dissipate the taint.' * * * While the type of causation on which the taint cases turn
may differ somewhat from that which we apply here, those cases do suggest that the proper test to
apply in the present context is one which likewise protects against the invasion of constitutional
rights without commanding undesirable consequences not necessary to the assurance of those rights.
Initially, in this case, the burden was properly placed upon respondent to show that his conduct was
constitutionally protected, and that this conduct was a "substantial factor" - or, to put it in other
words, that it was a "motivating factor" in the Board's decision not to rehire him. Respondent having
carried that burden, however, the District Court should have gone on to determine whether the
Board had shown by a preponderance of the evidence that it would have reached the same decision
as to respondent's re-employment even in the absence of the protected conduct.

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We cannot tell from the District Court opinion and conclusions, nor from the opinion of the Court of
Appeals affirming the judgment of the District Court, what conclusion those courts would have
reached had they applied this test. The judgment of the Court of Appeals is therefore vacated, and the
case remanded for further proceedings consistent with this opinion.
So ordered.

Notes

1.
Importantly, Pickering rejects the notion that public employees abandon their First
Amendment rights as a condition of public employment. The Court relies on Keyishian v. Bd. of
Regents of Univ. of State of N. Y. (1967), decided the previous year, in which the Court held
unconstitutional a “loyalty oath” that was a prerequisite of continued state university employment.
Each plaintiff had refused to sign a “Feinberg Certificate,” that “he was not a Communist, and that if
he had ever been a Communist, he had communicated that fact to the President of the State
University of New York.” Writing for the Court in Keyishian, Justice Brennan opined:
Our Nation is deeply committed to safeguarding academic freedom, which is of transcendent value to
all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the
First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom. ‘The
vigilant protection of constitutional freedoms is nowhere more vital than in the community of
American schools.’ The classroom is peculiarly the ‘marketplace of ideas.’ The Nation's future depends
upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth
‘out of a multitude of tongues, (rather) than through any kind of authoritative selection.’

How is this notion of “academic freedom” in tension with the holding in Pickering itself?
2.
Justice White, who concurs in part and dissents in part in Pickering differed with the Court
on whether false statements would be protected:
Deliberate or reckless falsehoods serve no First Amendment ends and deserve no protection under
that Amendment. * * * As I see it, a teacher may be fired without violation of the First Amendment for
knowingly or recklessly making false statements regardless of their harmful impact on the schools.

Do White’s concerns survive United States v. Alvarez?
3.
test?

Articulate the “Pickering test” which remains valid doctrine. Why is it called a “balancing”

4.

Articulate the “Mt. Healthy test” which also remains valid doctrine. When does it apply?

5.
While doctrinal cross-fertilization is not unusual, is the other area of constitutional law that
the Court finds “instructive” one that is predictable? Have you encountered a test similar to Mt.
Healthy in other areas of law?

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B.

Applying and modifying the tests

This section considers four cases that reached the Court between 1979 and 2004 applying Pickering
and Mt. Healthy. Consider whether each case is a mere refinement of the doctrine or a substantial
change.

Givhan v. Western Line Consol. School Dist.
439 U.S. 410 (1979)
REHNQUIST, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. STEVENS, J., FILED A CONCURRING OPINION.
JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT.
Petitioner Bessie Givhan was dismissed from her employment as a junior high English teacher at the
end of the 1970-1971 school year. At the time of petitioner's termination, respondent Western Line
Consolidated School District was the subject of a desegregation order entered by the United States
District Court for the Northern District of Mississippi. Petitioner filed a complaint in intervention in
the desegregation action, seeking reinstatement on the dual grounds that nonrenewal of her contract
violated the rule laid down by the Court of Appeals for the Fifth Circuit * * * and infringed her right of
free speech secured by the First and Fourteenth Amendments of the United States Constitution. In an
effort to show that its decision was justified, respondent School District introduced evidence of,
among other things, a series of private encounters between petitioner and the school principal in
which petitioner allegedly made "petty and unreasonable demands" in a manner variously described
by the principal as "insulting," "hostile," "loud," and "arrogant." After a two-day bench trial, the
District Court held that petitioner's termination had violated the First Amendment. Finding that
petitioner had made "demands" on but two occasions and that those demands "were neither ‘petty’
nor ‘unreasonable,’ insomuch as all the complaints in question involved employment policies and
practices at [the] school which [petitioner] conceived to be racially discriminatory in purpose or
effect," the District Court concluded that "the primary reason for the school district's failure to renew
[petitioner's] contract was her criticism of the policies and practices of the school district, especially
the school to which she was assigned to teach." Accordingly, the District Court held that the dismissal
violated petitioner's First Amendment rights, as enunciated in Perry v. Sindermann (1972), and
Pickering v. Board of Education (1968), and ordered her reinstatement.
The Court of Appeals for the Fifth Circuit reversed. Although it found the District Court's findings not
clearly erroneous, the Court of Appeals concluded that because petitioner had privately expressed
her complaints and opinions to the principal, her expression was not protected under the First
Amendment. Support for this proposition was thought to be derived from Pickering, Perry, and Mt.
Healthy City Bd. of Ed. v. Doyle (1977), which were found to contain "[t]he strong implication . . . that
private expression by a public employee is not constitutionally protected." The Court of Appeals also
concluded that there is no constitutional right to "press even `good' ideas on an unwilling recipient,"
saying that to afford public employees the right to such private expression "would in effect force
school principals to be ombudsmen, for damnable as well as laudable expressions." We are unable to
agree that private expression of one's views is beyond constitutional protection, and therefore
reverse the Court of Appeals' judgment and remand the case so that it may consider the contentions
of the parties freed from this erroneous view of the First Amendment.
This Court's decisions in Pickering, Perry, and Mt. Healthy do not support the conclusion that a public
employee forfeits his protection against governmental abridgment of freedom of speech if he decides
to express his views privately rather than publicly. While those cases each arose in the context of a
public employee's public expression, the rule to be derived from them is not dependent on that
largely coincidental fact. * * *

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The First Amendment forbids abridgment of the "freedom of speech." Neither the Amendment itself
nor our decisions indicate that this freedom is lost to the public employee who arranges to
communicate privately with his employer rather than to spread his views before the public. We
decline to adopt such a view of the First Amendment.
* * * Since this case was tried before Mt. Healthy was decided, it is not surprising that respondents did
not attempt to prove in the District Court that the decision not to rehire petitioner would have been
made even absent consideration of her "demands." Thus, the case came to the Court of Appeals in
very much the same posture as Mt. Healthy was presented to this Court. And while the District Court
found that petitioner's "criticism" was the "primary" reason for the School District's failure to rehire
her, it did not find that she would have been rehired but for her criticism. Respondents' Mt. Healthy
claim called for a factual determination which could not, on this record, be resolved by the Court of
Appeals.
Accordingly, the judgment of the Court of Appeals is vacated insofar as it relates to petitioner, and the
case is remanded for further proceedings consistent with this opinion.
So ordered.
JUSTICE STEVENS, CONCURRING [OMITTED] [DISCUSSES THE REMAND PROCESS]

Connick v. Myers
61 U.S. 138 (1983)
WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C.J., POWELL, O'CONNOR AND REHNQUIST, J.J.,
JOINED. BRENNAN, J., FILED A DISSENTING OPINION, JOINED BY MARSHALL, BLACKMUN, AND STEVENS, J.J., JOINED.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT.
In Pickering v. Board of Education (1968), we stated that a public employee does not relinquish First
Amendment rights to comment on matters of public interest by virtue of government employment.
We also recognized that the State's interests as an employer in regulating the speech of its employees
"differ significantly from those it possesses in connection with regulation of the speech of the
citizenry in general." The problem, we thought, was arriving "at a balance between the interests of
the [employee], as a citizen, in commenting upon matters of public concern and the interest of the
State, as an employer, in promoting the efficiency of the public services it performs through its
employees." We return to this problem today and consider whether the First and Fourteenth
Amendments prevent the discharge of a state employee for circulating a questionnaire concerning
internal office affairs.
I
The respondent, Sheila Myers, was employed as an Assistant District Attorney in New Orleans for five
and a half years. She served at the pleasure of petitioner Harry Connick, the District Attorney for
Orleans Parish. During this period Myers competently performed her responsibilities of trying
criminal cases.
In the early part of October 1980, Myers was informed that she would be transferred to prosecute
cases in a different section of the criminal court. Myers was strongly opposed to the proposed
transfer and expressed her view to several of her supervisors, including Connick. Despite her
objections, on October 6 Myers was notified that she was being transferred. Myers again spoke with
Dennis Waldron, one of the First Assistant District Attorneys, expressing her reluctance to accept the
transfer. A number of other office matters were discussed and Myers later testified that, in response

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to Waldron's suggestion that her concerns were not shared by others in the office, she informed him
that she would do some research on the matter.
That night Myers prepared a questionnaire soliciting the views of her fellow staff members
concerning office transfer policy, office morale, the need for a grievance committee, the level of
confidence in supervisors, and whether employees felt pressured to work in political campaigns.
Early the following morning, Myers typed and copied the questionnaire. She also met with Connick
who urged her to accept the transfer. She said she would "consider" it. Connick then left the office.
Myers then distributed the questionnaire to 15 Assistant District Attorneys. Shortly after noon,
Dennis Waldron learned that Myers was distributing the survey. He immediately phoned Connick
and informed him that Myers was creating a "mini-insurrection" within the office. Connick returned
to the office and told Myers that she was being terminated because of her refusal to accept the
transfer. She was also told that her distribution of the questionnaire was considered an act of
insubordination. Connick particularly objected to the question which inquired whether employees
"had confidence in and would rely on the word" of various superiors in the office, and to a question
concerning pressure to work in political campaigns which he felt would be damaging if discovered by
the press.
Myers filed suit under 42 U. S. C. § 1983 contending that her employment was wrongfully terminated
because she had exercised her constitutionally protected right of free speech. The District Court
agreed, ordered Myers reinstated, and awarded backpay, damages, and attorney's fees. The District
Court found that although Connick informed Myers that she was being fired because of her refusal to
accept a transfer, the facts showed that the questionnaire was the real reason for her termination.
The court then proceeded to hold that Myers' questionnaire involved matters of public concern and
that the State had not "clearly demonstrated" that the survey "substantially interfered" with the
operations of the District Attorney's office.
Connick appealed to the United States Court of Appeals for the Fifth Circuit, which affirmed on the
basis of the District Court's opinion. Connick then sought review in this Court by way of certiorari,
which we granted.
II
For at least 15 years, it has been settled that a State cannot condition public employment on a basis
that infringes the employee's constitutionally protected interest in freedom of expression. Keyishian
v. Board of Regents (1967); Pickering v. Board of Education (1968); Perry v. Sindermann (1972);
Branti v. Finkel (1980). Our task, as we defined it in Pickering, is to seek "a balance between the
interests of the [employee], as a citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of the public services it performs
through its employees." The District Court, and thus the Court of Appeals as well, misapplied our
decision in Pickering and consequently, in our view, erred in striking the balance for respondent.
A.
* * * Pickering, its antecedents, and its progeny lead us to conclude that if Myers' questionnaire
cannot be fairly characterized as constituting speech on a matter of public concern, it is unnecessary
for us to scrutinize the reasons for her discharge. When employee expression cannot be fairly
considered as relating to any matter of political, social, or other concern to the community,
government officials should enjoy wide latitude in managing their offices, without intrusive oversight
by the judiciary in the name of the First Amendment. Perhaps the government employer's dismissal
of the worker may not be fair, but ordinary dismissals from government service which violate no
fixed tenure or applicable statute or regulation are not subject to judicial review even if the reasons
for the dismissal are alleged to be mistaken or unreasonable.
* * * Whether an employee's speech addresses a matter of public concern must be determined by the
content, form, and context of a given statement, as revealed by the whole record. In this case, with but
one exception, the questions posed by Myers to her co-workers do not fall under the rubric of
matters of "public concern." We view the questions pertaining to the confidence and trust that Myers'
co-workers possess in various supervisors, the level of office morale, and the need for a grievance
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committee as mere extensions of Myers' dispute over her transfer to another section of the criminal
court. Unlike the dissent, we do not believe these questions are of public import in evaluating the
performance of the District Attorney as an elected official. Myers did not seek to inform the public
that the District Attorney's Office was not discharging its governmental responsibilities in the
investigation and prosecution of criminal cases. Nor did Myers seek to bring to light actual or
potential wrongdoing or breach of public trust on the part of Connick and others. Indeed, the
questionnaire, if released to the public, would convey no information at all other than the fact that a
single employee is upset with the status quo. While discipline and morale in the workplace are
related to an agency's efficient performance of its duties, the focus of Myers' questions is not to
evaluate the performance of the office but rather to gather ammunition for another round of
controversy with her superiors. These questions reflect one employee's dissatisfaction with a
transfer and an attempt to turn that displeasure into a cause celebre.
To presume that all matters which transpire within a government office are of public concern would
mean that virtually every remark — and certainly every criticism directed at a public official —
would plant the seed of a constitutional case. While as a matter of good judgment, public officials
should be receptive to constructive criticism offered by their employees, the First Amendment does
not require a public office to be run as a roundtable for employee complaints over internal office
affairs.
One question in Myers' questionnaire, however, does touch upon a matter of public concern.
Question 11 inquires if assistant district attorneys "ever feel pressured to work in political
campaigns on behalf of office supported candidates." We have recently noted that official pressure
upon employees to work for political candidates not of the worker's own choice constitutes a
coercion of belief in violation of fundamental constitutional rights. Branti v. Finkel; Elrod v. Burns. In
addition, there is a demonstrated interest in this country that government service should depend
upon meritorious performance rather than political service. CSC v. Letter Carriers (1973). Given this
history, we believe it apparent that the issue of whether assistant district attorneys are pressured to
work in political campaigns is a matter of interest to the community upon which it is essential that
public employees be able to speak out freely without fear of retaliatory dismissal.
B
Because one of the questions in Myers' survey touched upon a matter of public concern and
contributed to her discharge, we must determine whether Connick was justified in discharging Myers.
Here the District Court again erred in imposing an unduly onerous burden on the State to justify
Myers' discharge. The District Court viewed the issue of whether Myers' speech was upon a matter of
"public concern" as a threshold inquiry, after which it became the government's burden to "clearly
demonstrate" that the speech involved "substantially interfered" with official responsibilities. Yet
Pickering unmistakably states, and respondent agrees, that the State's burden in justifying a
particular discharge varies depending upon the nature of the employee's expression. Although such
particularized balancing is difficult, the courts must reach the most appropriate possible balance of
the competing interests.
C
The Pickering balance requires full consideration of the government's interest in the effective and
efficient fulfillment of its responsibilities to the public. * * *
We agree with the District Court that there is no demonstration here that the questionnaire impeded
Myers' ability to perform her responsibilities. The District Court was also correct to recognize that "it
is important to the efficient and successful operation of the District Attorney's office for Assistants to
maintain close working relationships with their superiors." Connick's judgment, and apparently also
that of his first assistant Dennis Waldron, who characterized Myers' actions as causing a "miniinsurrection," was that Myers' questionnaire was an act of insubordination which interfered with
working relationships. When close working relationships are essential to fulfilling public
responsibilities, a wide degree of deference to the employer's judgment is appropriate. Furthermore,
we do not see the necessity for an employer to allow events to unfold to the extent that the
disruption of the office and the destruction of working relationships is manifest before taking action.
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We caution that a stronger showing may be necessary if the employee's speech more substantially
involved matters of public concern.
The District Court rejected Connick's position because "[u]nlike a statement of fact which might be
deemed critical of one's superiors, [Myers'] questionnaire was not a statement of fact but the
presentation and solicitation of ideas and opinions," which are entitled to greater constitutional
protection because " `under the First Amendment there is no such thing as a false idea.'" This
approach, while perhaps relevant in weighing the value of Myers' speech, bears no logical
relationship to the issue of whether the questionnaire undermined office relationships. Questions, no
less than forcefully stated opinions and facts, carry messages and it requires no unusual insight to
conclude that the purpose, if not the likely result, of the questionnaire is to seek to precipitate a vote
of no confidence in Connick and his supervisors. Thus, Question 10, which asked whether or not the
Assistants had confidence in and relied on the word of five named supervisors, is a statement that
carries the clear potential for undermining office relations.
Also relevant is the manner, time, and place in which the questionnaire was distributed. As noted in
Givhan: "Private expression . . . may in some situations bring additional factors to the Pickering
calculus. When a government employee personally confronts his immediate superior, the employing
agency's institutional efficiency may be threatened not only by the content of the employee's
message but also by the manner, time, and place in which it is delivered." Here the questionnaire was
prepared and distributed at the office; the manner of distribution required not only Myers to leave
her work but others to do the same in order that the questionnaire be completed. Although some
latitude in when official work is performed is to be allowed when professional employees are
involved, and Myers did not violate announced office policy, the fact that Myers, unlike Pickering,
exercised her rights to speech at the office supports Connick's fears that the functioning of his office
was endangered.
Finally, the context in which the dispute arose is also significant. This is not a case where an
employee, out of purely academic interest, circulated a questionnaire so as to obtain useful research.
Myers acknowledges that it is no coincidence that the questionnaire followed upon the heels of the
transfer notice. When employee speech concerning office policy arises from an employment dispute
concerning the very application of that policy to the speaker, additional weight must be given to the
supervisor's view that the employee has threatened the authority of the employer to run the office.
Although we accept the District Court's factual finding that Myers' reluctance to accede to the
transfer order was not a sufficient cause in itself for her dismissal, and thus does not constitute a
sufficient defense under Mt. Healthy, this does not render irrelevant the fact that the questionnaire
emerged after a persistent dispute between Myers and Connick and his deputies over office transfer
policy.
III
Myers' questionnaire touched upon matters of public concern in only a most limited sense; her
survey, in our view, is most accurately characterized as an employee grievance concerning internal
office policy. The limited First Amendment interest involved here does not require that Connick
tolerate action which he reasonably believed would disrupt the office, undermine his authority, and
destroy close working relationships. Myers' discharge therefore did not offend the First Amendment.
We reiterate, however, the caveat we expressed in Pickering, "Because of the enormous variety of fact
situations in which critical statements by. . . public employees may be thought by their superiors . . .
to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay
down a general standard against which all such statements may be judged."
Our holding today is grounded in our longstanding recognition that the First Amendment's primary
aim is the full protection of speech upon issues of public concern, as well as the practical realities
involved in the administration of a government office. Although today the balance is struck for the
government, this is no defeat for the First Amendment. For it would indeed be a Pyrrhic victory for
the great principles of free expression if the Amendment's safeguarding of a public employee's right,
as a citizen, to participate in discussions concerning public affairs were confused with the attempt to

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constitutionalize the employee grievance that we see presented here. The judgment of the Court of
Appeals is
Reversed.
APPENDIX TO OPINION OF THE COURT
Questionnaire distributed by respondent on October 7, 1980.
"PLEASE TAKE THE FEW MINUTES IT WILL REQUIRE TO FILL THIS OUT. YOU CAN FREELY EXPRESS
YOUR OPINION WITH ANONYMITY GUARANTEED.
1. How long have you been in the Office? __________________________
2. Were you moved as a result of the recent transfers? ____________
3. Were the transfers as they effected [sic] you discussed with you by any superior prior to the notice of
them being posted? __________________________________________________
4.
Do
you
think
as
a
matter
of
policy,
they
should
have
been?
__________________________________________________________
5. From your experience, do you feel office procedure regarding transfers has been fair?
_______________________________________
6. Do you believe there is a rumor mill active in the office?
7. If so, how do you think it effects [sic] overall working performance of A.D.A. personnel?
_______________________________
8. If so, how do you think it effects [sic] office morale? ___
9. Do you generally first learn of office changes and developments through rumor?
________________________________________________
10. Do you have confidence in and would you rely on the word of:
Bridget Bane ______________ Fred Harper___________ Lindsay Larson ____
Joe Meyer ________________ Dennis Waldron ______________
11. Do you ever feel pressured to work in political campaigns on behalf of office supported candidates?
________________
12. Do you feel a grievance committee would be a worthwhile addition to the office structure?
________________________
13. How would you rate office morale? _______________________
14.
Please
feel
free
to
express
any
comments
or
feelings
you
have.
____________________________________________________
THANK YOU FOR YOUR COOPERATION IN THIS SURVEY."

JUSTICE BRENNAN, WITH WHOM JUSTICE MARSHALL, JUSTICE BLACKMUN, AND JUSTICE STEVENS JOIN, DISSENTING.
Sheila Myers was discharged for circulating a questionnaire to her fellow Assistant District Attorneys
seeking information about the effect of petitioner's personnel policies on employee morale and the
overall work performance of the District Attorney's Office. The Court concludes that her dismissal
does not violate the First Amendment, primarily because the questionnaire addresses matters that, in
the Court's view, are not of public concern. It is hornbook law, however, that speech about "the
manner in which government is operated or should be operated" is an essential part of the
communications necessary for self-governance the protection of which was a central purpose of the
First Amendment. Because the questionnaire addressed such matters and its distribution did not
adversely affect the operations of the District Attorney's Office or interfere with Myers' working
relationship with her fellow employees, I dissent.
I
The Court correctly reaffirms the long-established principle that the government may not
constitutionally compel persons to relinquish their First Amendment rights as a condition of public
employment. * * *
The Court's decision today is flawed in three respects. First, the Court distorts the balancing analysis
required under Pickering by suggesting that one factor, the context in which a statement is made, is
to be weighed twice — first in determining whether an employee's speech addresses a matter of
public concern and then in deciding whether the statement adversely affected the government's
interest as an employer. Second, in concluding that the effect of respondent's personnel policies on
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employee morale and the work performance of the District Attorney's Office is not a matter of public
concern, the Court impermissibly narrows the class of subjects on which public employees may
speak out without fear of retaliatory dismissal. Third, the Court misapplies the Pickering balancing
test in holding that Myers could constitutionally be dismissed for circulating a questionnaire
addressed to at least one subject that was "a matter of interest to the community," in the absence of
evidence that her conduct disrupted the efficient functioning of the District Attorney's Office.
II
* * * The standard announced by the Court suggests that the manner and context in which a
statement is made must be weighed on both sides of the Pickering balance. It is beyond dispute that
how and where a public employee expresses his views are relevant in the second half of the Pickering
inquiry — determining whether the employee's speech adversely affects the government's interests
as an employer. The Court explicitly acknowledged this in Givhan v. Western Line Consolidated
School District (1979) * * * But the fact that a public employee has chosen to express his views in
private has nothing whatsoever to do with the first half of the Pickering calculus — whether those
views relate to a matter of public concern. This conclusion is implicit in Givhan's holding that the
freedom of speech guaranteed by the First Amendment is not "lost to the public employee who
arranges to communicate privately with his employer rather than to spread his views before the
public."
* * * Unconstrained discussion concerning the manner in which the government performs its duties
is an essential element of the public discourse necessary to informed self-government. * * *
Applying these principles, I would hold that Myers' questionnaire addressed matters of public
concern because it discussed subjects that could reasonably be expected to be of interest to persons
seeking to develop informed opinions about the manner in which the Orleans Parish District
Attorney, an elected official charged with managing a vital governmental agency, discharges his
responsibilities. The questionnaire sought primarily to obtain information about the impact of the
recent transfers on morale in the District Attorney's Office. It is beyond doubt that personnel
decisions that adversely affect discipline and morale may ultimately impair an agency's efficient
performance of its duties. Because I believe the First Amendment protects the right of public
employees to discuss such matters so that the public may be better informed about how their elected
officials fulfill their responsibilities, I would affirm the District Court's conclusion that the
questionnaire related to matters of public importance and concern.
The Court's adoption of a far narrower conception of what subjects are of public concern seems
prompted by its fears that a broader view "would mean that virtually every remark — and certainly
every criticism directed at a public official — would plant the seed of a constitutional case."
Obviously, not every remark directed at a public official by a public employee is protected by the
First Amendment. But deciding whether a particular matter is of public concern is an inquiry that, by
its very nature, is a sensitive one for judges charged with interpreting a constitutional provision
intended to put "the decision as to what views shall be voiced largely into the hands of each of
us . . . ." Cohen v. California, (1971). * * * In making such a delicate inquiry, we must bear in mind that
"the citizenry is the final judge of the proper conduct of public business."
The Court's decision ignores these precepts. Based on its own narrow conception of which matters
are of public concern, the Court implicitly determines that information concerning employee morale
at an important government office will not inform public debate. To the contrary, the First
Amendment protects the dissemination of such information so that the people, not the courts, may
evaluate its usefulness. The proper means to ensure that the courts are not swamped with routine
employee grievances mischaracterized as First Amendment cases is not to restrict artificially the
concept of "public concern," but to require that adequate weight be given to the public's important
interests in the efficient performance of governmental functions and in preserving employee
discipline and harmony sufficient to achieve that end.

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III
Although the Court finds most of Myers' questionnaire unrelated to matters of public interest, it does
hold that one question — asking whether Assistants felt pressured to work in political campaigns on
behalf of office-supported candidates — addressed a matter of public importance and concern. The
Court also recognizes that this determination of public interest must weigh heavily in the balancing
of competing interests required by Pickering. Having gone that far, however, the Court misapplies the
Pickering test and holds — against our previous authorities — that a public employer's mere
apprehension that speech will be disruptive justifies suppression of that speech when all the
objective evidence suggests that those fears are essentially unfounded. * * *
The District Court weighed all of the relevant factors identified by our cases. It found that petitioner
failed to establish that Myers violated either a duty of confidentiality or an office policy. Noting that
most of the copies of the questionnaire were distributed during lunch, it rejected the contention that
the distribution of the questionnaire impeded Myers' performance of her duties, and it concluded
that "Connick has not shown any evidence to indicate that the plaintiff's work performance was
adversely affected by her expression."
The Court accepts all of these findings. It concludes, however, that the District Court failed to give
adequate weight to the context in which the questionnaire was distributed and to the need to
maintain close working relationships in the District Attorney's Office. In particular, the Court
suggests the District Court failed to give sufficient weight to the disruptive potential of Question 10,
which asked whether the Assistants had confidence in the word of five named supervisors. The
District Court, however, explicitly recognized that this was petitioner's "most forceful argument"; but
after hearing the testimony of four of the five supervisors named in the question, it found that the
question had no adverse effect on Myers' relationship with her superiors. To this the Court responds
that an employer need not wait until the destruction of working relationships is manifest before
taking action. In the face of the District Court's finding that the circulation of the questionnaire had
no disruptive effect, the Court holds that respondent may be dismissed because petitioner
"reasonably believed [the action] would disrupt the office, undermine his authority, and destroy
close working relationships." Even though the District Court found that the distribution of the
questionnaire did not impair Myers' working relationship with her supervisors, the Court bows to
petitioner's judgment because "[w]hen close working relationships are essential to fulfilling public
responsibilities, a wide degree of deference to the employer's judgment is appropriate."
Such extreme deference to the employer's judgment is not appropriate when public employees voice
critical views concerning the operations of the agency for which they work. * * * If the employer's
judgment is to be controlling, public employees will not speak out when what they have to say is
critical of their supervisors. In order to protect public employees' First Amendment right to voice
critical views on issues of public importance, the courts must make their own appraisal of the effects
of the speech in question. * * *
IV
The Court's decision today inevitably will deter public employees from making critical statements
about the manner in which government agencies are operated for fear that doing so will provoke
their dismissal. As a result, the public will be deprived of valuable information with which to evaluate
the performance of elected officials. Because protecting the dissemination of such information is an
essential function of the First Amendment, I dissent.

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Rankin v. McPherson
483 U.S. 378 (1987)
MARSHALL, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN, BLACKMUN, POWELL, AND STEVENS, JJ.,
JOINED. POWELL, J., FILED A CONCURRING OPINION. SCALIA, J., FILED A DISSENTING OPINION, IN WHICH REHNQUIST, C.
J., AND WHITE AND O'CONNOR, JJ., JOINED.
JUSTICE MARSHALL DELIVERED THE OPINION OF THE COURT.
The issue in this case is whether a clerical employee in a county Constable's office was properly
discharged for remarking, after hearing of an attempt on the life of the President, "If they go for him
again, I hope they get him."
I
On January 12, 1981, respondent Ardith McPherson was appointed a deputy in the office of the
Constable of Harris County, Texas. The Constable is an elected official who functions as a law
enforcement officer. At the time of her appointment, McPherson, a black woman, was 19 years old
and had attended college for a year, studying secretarial science. Her appointment was conditional
for a 90-day probationary period.
Although McPherson's title was "deputy constable," this was the case only because all employees of
the Constable's office, regardless of job function, were deputy constables. She was not a
commissioned peace officer, did not wear a uniform, and was not authorized to make arrests or
permitted to carry a gun. McPherson's duties were purely clerical. Her work station was a desk at
which there was no telephone, in a room to which the public did not have ready access. Her job was
to type data from court papers into a computer that maintained an automated record of the status of
civil process in the county. Her training consisted of two days of instruction in the operation of her
computer terminal.
On March 30, 1981, McPherson and some fellow employees heard on an office radio that there had
been an attempt to assassinate the President of the United States. Upon hearing that report,
McPherson engaged a co-worker, Lawrence Jackson, who was apparently her boyfriend, in a brief
conversation, which according to McPherson's uncontroverted testimony went as follows:
"Q: What did you say?
"A: I said I felt that that would happen sooner or later.
"Q: Okay. And what did Lawrence say?
"A: Lawrence said, yeah, agreeing with me.
"Q: Okay. Now, when you - after Lawrence spoke, then what was your next comment?
"A: Well, we were talking - it's a wonder why they did that. I felt like it would be a black person that did
that, because I feel like most of my kind is on welfare and CETA, and they use medicaid, and at the time,
I was thinking that's what it was.
". . . But then after I said that, and then Lawrence said, yeah, he's cutting back medicaid and food
stamps. And I said, yeah, welfare and CETA. I said, shoot, if they go for him again, I hope they get him."

McPherson's last remark was overheard by another Deputy Constable, who, unbeknownst to
McPherson, was in the room at the time. The remark was reported to Constable Rankin, who
summoned McPherson. McPherson readily admitted that she had made the statement, but testified
that she told Rankin, upon being asked if she made the statement, "Yes, but I didn't mean anything by
it." After their discussion, Rankin fired McPherson.
McPherson brought suit in the United States District Court for the Southern District of Texas under
42 U.S.C. 1983, alleging that petitioner Rankin, in discharging her, had violated her constitutional
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rights under color of state law. She sought reinstatement, backpay, costs and fees, and other
equitable relief. The District Court held a hearing, and then granted summary judgment to Constable
Rankin, holding that McPherson's speech had been unprotected and that her discharge had therefore
been proper. The Court of Appeals for the Fifth Circuit vacated and remanded for trial on the ground
that substantial issues of material fact regarding the context in which the statement had been made
precluded the entry of summary judgment.
On remand, the District Court held another hearing and ruled once again, this time from the bench,
that the statements were not protected speech. Again, the Court of Appeals reversed. It held that
McPherson's remark had addressed a matter of public concern, requiring that society's interest in
McPherson's freedom of speech be weighed against her employer's interest in maintaining efficiency
and discipline in the workplace. Performing that balancing, the Court of Appeals concluded that the
Government's interest did not outweigh the First Amendment interest in protecting McPherson's
speech. Given the nature of McPherson's job and the fact that she was not a law enforcement officer,
was not brought by virtue of her job into contact with the public, and did not have access to sensitive
information, the Court of Appeals deemed her "duties . . . so utterly ministerial and her potential for
undermining the office's mission so trivial" as to forbid her dismissal for expression of her political
opinions. "However ill-considered Ardith McPherson's opinion was," the Court of Appeals concluded,
"it did not make her unfit" for the job she held in Constable Rankin's office. The Court of Appeals
remanded the case for determination of an appropriate remedy.
We granted certiorari and now affirm.
II
It is clearly established that a State may not discharge an employee on a basis that infringes that
employee's constitutionally protected interest in freedom of speech. Perry v. Sindermann (1972).
Even though McPherson was merely a probationary employee, and even if she could have been
discharged for any reason or for no reason at all, she may nonetheless be entitled to reinstatement if
she was discharged for exercising her constitutional right to freedom of expression.
The determination whether a public employer has properly discharged an employee for engaging in
speech requires "a balance between the interests of the [employee], as a citizen, in commenting upon
matters of public concern and the interest of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees." Pickering v. Board of Education (1968);
Connick v. Myers (1983). This balancing is necessary in order to accommodate the dual role of the
public employer as a provider of public services and as a government entity operating under the
constraints of the First Amendment. On the one hand, public employers are employers, concerned
with the efficient function of their operations; review of every personnel decision made by a public
employer could, in the long run, hamper the performance of public functions. On the other hand, "the
threat of dismissal from public employment is . . . a potent means of inhibiting speech." Pickering.
Vigilance is necessary to ensure that public employers do not use authority over employees to silence
discourse, not because it hampers public functions but simply because superiors disagree with the
content of employees' speech.
A
The threshold question in applying this balancing test is whether McPherson's speech may be "fairly
characterized as constituting speech on a matter of public concern." Connick. "Whether an
employee's speech addresses a matter of public concern must be determined by the content, form,
and context of a given statement, as revealed by the whole record." The District Court apparently
found that McPherson's speech did not address a matter of public concern. The Court of Appeals
rejected this conclusion, finding that "the life and death of the President are obviously matters of
public concern." * * *
Considering the statement in context, as Connick requires, discloses that it plainly dealt with a matter
of public concern. The statement was made in the course of a conversation addressing the policies of
the President's administration. It came on the heels of a news bulletin regarding what is certainly a
matter of heightened public attention: an attempt on the life of the President. While a statement that
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amounted to a threat to kill the President would not be protected by the First Amendment, the
District Court concluded, and we agree, that McPherson's statement did not amount to a threat
punishable under 18 U.S.C. 871(a) or 18 U.S.C. 2385, or, indeed, that could properly be criminalized
at all. The inappropriate or controversial character of a statement is irrelevant to the question
whether it deals with a matter of public concern. "[D]ebate on public issues should be uninhibited,
robust, and wideopen, and . . . may well include vehement, caustic, and sometimes unpleasantly sharp
attacks on government and public officials." New York Times Co. v. Sullivan.
B
Because McPherson's statement addressed a matter of public concern, Pickering next requires that
we balance McPherson's interest in making her statement against "the interest of the State, as an
employer, in promoting the efficiency of the public services it performs through its employees." The
State bears a burden of justifying the discharge on legitimate grounds. Connick.
In performing the balancing, the statement will not be considered in a vacuum; the manner, time, and
place of the employee's expression are relevant, as is the context in which the dispute arose. We have
previously recognized as pertinent considerations whether the statement impairs discipline by
superiors or harmony among co-workers, has a detrimental impact on close working relationships
for which personal loyalty and confidence are necessary, or impedes the performance of the
speaker's duties or interferes with the regular operation of the enterprise.
These considerations, and indeed the very nature of the balancing test, make apparent that the state
interest element of the test focuses on the effective functioning of the public employer's enterprise.
Interference with work, personnel relationships, or the speaker's job performance can detract from
the public employer's function; avoiding such interference can be a strong state interest. From this
perspective, however, petitioners fail to demonstrate a state interest that outweighs McPherson's
First Amendment rights. While McPherson's statement was made at the workplace, there is no
evidence that it interfered with the efficient functioning of the office. The Constable was evidently not
afraid that McPherson had disturbed or interrupted other employees - he did not inquire to whom
respondent had made the remark and testified that he "was not concerned who she had made it to,"
Tr. 42. In fact, Constable Rankin testified that the possibility of interference with the functions of the
Constable's office had not been a consideration in his discharge of respondent and that he did not
even inquire whether the remark had disrupted the work of the office.
Nor was there any danger that McPherson had discredited the office by making her statement in
public. McPherson's speech took place in an area to which there was ordinarily no public access; her
remark was evidently made in a private conversation with another employee. There is no suggestion
that any member of the general public was present or heard McPherson's statement. Nor is there any
evidence that employees other than Jackson who worked in the room even heard the remark. Not
only was McPherson's discharge unrelated to the functioning of the office, it was not based on any
assessment by the Constable that the remark demonstrated a character trait that made respondent
unfit to perform her work.
While the facts underlying Rankin's discharge of McPherson are, despite extensive proceedings in the
District Court, still somewhat unclear, it is undisputed that he fired McPherson based on the content
of her speech. Evidently because McPherson had made the statement, and because the Constable
believed that she "meant it," he decided that she was not a suitable employee to have in a law
enforcement agency. But in weighing the State's interest in discharging an employee based on any
claim that the content of a statement made by the employee somehow undermines the mission of the
public employer, some attention must be paid to the responsibilities of the employee within the
agency. The burden of caution employees bear with respect to the words they speak will vary with
the extent of authority and public accountability the employee's role entails. Where, as here, an
employee serves no confidential, policymaking, or public contact role, the danger to the agency's
successful functioning from that employee's private speech is minimal. We cannot believe that every
employee in Constable Rankin's office, whether computer operator, electrician, or file clerk, is equally
required, on pain of discharge, to avoid any statement susceptible of being interpreted by the
Constable as an indication that the employee may be unworthy of employment in his law
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enforcement agency. At some point, such concerns are so removed from the effective functioning of
the public employer that they cannot prevail over the free speech rights of the public employee.
This is such a case. McPherson's employment-related interaction with the Constable was apparently
negligible. Her duties were purely clerical and were limited solely to the civil process function of the
Constable's office. There is no indication that she would ever be in a position to further - or indeed to
have any involvement with - the minimal law enforcement activity engaged in by the Constable's
office. Given the function of the agency, McPherson's position in the office, and the nature of her
statement, we are not persuaded that Rankin's interest in discharging her outweighed her rights
under the First Amendment.
Because we agree with the Court of Appeals that McPherson's discharge was improper, the judgment
of the Court of Appeals is
Affirmed.
JUSTICE POWELL, CONCURRING [OMITTED]
JUSTICE SCALIA, WITH WHOM THE CHIEF JUSTICE, JUSTICE WHITE, AND JUSTICE O'CONNOR JOIN, DISSENTING.
I agree with the proposition, felicitously put by Constable Rankin's counsel, that no law enforcement
agency is required by the First Amendment to permit one of its employees to "ride with the cops and
cheer for the robbers." The issue in this case is whether Constable Rankin, a law enforcement official,
is prohibited by the First Amendment from preventing his employees from saying of the attempted
assassination of President Reagan - on the job and within hearing of other employees - "If they go for
him again, I hope they get him." The Court, applying the two-prong analysis of Connick v. Myers
(1983), holds that McPherson's statement was protected by the First Amendment because (1) it
"addressed a matter of public concern," and (2) McPherson's interest in making the statement
outweighs Rankin's interest in suppressing it. In so doing, the Court significantly and irrationally
expands the definition of "public concern"; it also carves out a new and very large class of employees
- i. e., those in "nonpolicymaking" positions - who, if today's decision is to be believed, can never be
disciplined for statements that fall within the Court's expanded definition. Because I believe the
Court's conclusions rest upon a distortion of both the record and the Court's prior decisions, I dissent.
I
* * * McPherson's statement is indeed so different from those that [we have held protected] it is only
one step removed from statements that we have previously held entitled to no First Amendment
protection even in the nonemployment context - including assassination threats against the
President (which are illegal under 18 U.S.C. 871), “fighting words,” epithets or personal abuse; and
advocacy of force or violence. A statement lying so near the category of completely unprotected
speech cannot fairly be viewed as lying within the "heart" of the First Amendment's protection; it lies
within that category of speech that can neither be characterized as speech on matters of public
concern nor properly subject to criminal penalties. Once McPherson stopped explicitly criticizing the
President's policies and expressed a desire that he be assassinated, she crossed the line.
The Court reaches the opposite conclusion only by distorting the concept of "public concern." It does
not explain how a statement expressing approval of a serious and violent crime - assassination of the
President - can possibly fall within that category. It simply rehearses the "context" of McPherson's
statement, which as we have already seen is irrelevant here, and then concludes that because of that
context, and because the statement "came on the heels of a news bulletin regarding what is certainly
a matter of heightened public attention: an attempt on the life of the President," the statement
"plainly dealt with a matter of public concern." I cannot respond to this progression of reasoning
except to say I do not understand it. Surely the Court does not mean to adopt the reasoning of the
court below, which was that McPherson's statement was "addressed to a matter of public concern"
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within the meaning of Connick because the public would obviously be "concerned" about the
assassination of the President. That is obviously untenable: The public would be "concerned" about a
statement threatening to blow up the local federal building or demanding a $1 million extortion
payment, yet that kind of "public concern" does not entitle such a statement to any First Amendment
protection at all.
II
Even if I agreed that McPherson's statement was speech on a matter of "public concern," I would still
find it unprotected. It is important to be clear on what the issue is in this part of the case. It is not, as
the Court suggests, whether "Rankin's interest in discharging [McPherson] outweighed her rights
under the First Amendment." Rather, it is whether his interest in preventing the expression of such
statements in his agency outweighed her First Amendment interest in making the statement. We are
not deliberating, in other words, (or at least should not be) about whether the sanction of dismissal
was, as the concurrence puts it, "an . . . intemperat[e] employment decision." It may well have been and personally I think it was. But we are not sitting as a panel to develop sound principles of
proportionality for adverse actions in the state civil service. We are asked to determine whether,
given the interests of this law enforcement office, McPherson had a right to say what she did - so that
she could not only not be fired for it, but could not be formally reprimanded for it, or even prevented
from repeating it endlessly into the future. It boggles the mind to think that she has such a right.
The Constable testified that he "was very concerned that this remark was made." Rightly so. As a law
enforcement officer, the Constable obviously has a strong interest in preventing statements by any of
his employees approving, or expressing a desire for, serious, violent crimes - regardless of whether
the statements actually interfere with office operations at the time they are made or demonstrate
character traits that make the speaker unsuitable for law enforcement work. * * *
Statements by the Constable's employees to the effect that "if they go for the President again, I hope
they get him" might also, to put it mildly, undermine public confidence in the Constable's office. * * *
In sum, since Constable Rankin's interest in maintaining both an esprit de corps and a public image
consistent with his office's law enforcement duties outweighs any interest his employees may have in
expressing on the job a desire that the President be killed, even assuming that such an expression
addresses a matter of public concern it is not protected by the First Amendment from suppression. I
emphasize once again that that is the issue here - and not, as both the Court's opinion and especially
the concurrence seem to assume, whether the means used to effect suppression (viz., firing) were
excessive. The First Amendment contains no "narrow tailoring" requirement that speech the
government is entitled to suppress must be suppressed by the mildest means possible. If Constable
Rankin was entitled (as I think any reasonable person would say he was) to admonish McPherson for
saying what she did on the job, within hearing of her co-workers, and to warn her that if she did it
again a formal censure would be placed in her personnel file, then it follows that he is entitled to rule
that particular speech out of bounds in that particular work environment - and that is the end of the
First Amendment analysis. The "intemperate" manner of the permissible suppression is an issue for
another forum, or at least for a more plausibly relevant provision of the Constitution.
Because the statement at issue here did not address a matter of public concern, and because, even if
it did, a law enforcement agency has adequate reason not to permit such expression, I would reverse
the judgment of the court below.

San Diego v. Roe
543 U.S. 77 (2004)
PER CURIAM.
The city of San Diego (City), a petitioner here, terminated a police officer, respondent, for selling
videotapes he made and for related activity. The tapes showed the respondent engaging in sexually
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explicit acts. Respondent brought suit alleging, among other things, that the termination violated his
First and Fourteenth Amendment rights to freedom of speech. The United States District Court for
the Southern District of California granted the City's motion to dismiss. The Court of Appeals for the
Ninth Circuit reversed.
The petition for a writ of certiorari is granted, and the judgment of the Court of Appeals is reversed.
I
Respondent John Roe, a San Diego police officer, made a video showing himself stripping off a police
uniform and masturbating. He sold the video on the adults-only section of eBay, the popular online
auction site. His user name was "Code3stud@aol.com," a word play on a high priority police radio call.
The uniform apparently was not the specific uniform worn by the San Diego police, but it was clearly
identifiable as a police uniform. Roe also sold custom videos, as well as police equipment, including
official uniforms of the San Diego Police Department (SDPD), and various other items such as men's
underwear. Roe's eBay user profile identified him as employed in the field of law enforcement.
Roe's supervisor, a police sergeant, discovered Roe's activities when, while on eBay, he came across
an official SDPD police uniform for sale offered by an individual with the user-name
"Code3stud@aol.com." He searched for other items Code3stud offered and discovered listings for
Roe's videos depicting the objectionable material. Recognizing Roe's picture, the sergeant printed
images of certain of Roe's offerings and shared them with others in Roe's chain of command,
including a police captain. The captain notified the SDPD's internal affairs department, which began
an investigation. In response to a request by an undercover officer, Roe produced a custom video. It
showed Roe, again in police uniform, issuing a traffic citation but revoking it after undoing the
uniform and masturbating.
The investigation revealed that Roe's conduct violated specific SDPD policies, including conduct
unbecoming of an officer, outside employment, and immoral conduct. When confronted, Roe
admitted to selling the videos and police paraphernalia. The SDPD ordered Roe to "cease displaying,
manufacturing, distributing or selling any sexually explicit materials or engaging in any similar
behaviors, via the internet, U. S. Mail, commercial vendors or distributors, or any other medium
available to the public." Although Roe removed some of the items he had offered for sale, he did not
change his seller's profile, which described the first two videos he had produced and listed their
prices as well as the prices for custom videos. After discovering Roe's failure to follow its orders, the
SDPD—citing Roe for the added violation of disobedience of lawful orders—began termination
proceedings. The proceedings resulted in Roe's dismissal from the police force.
Roe brought suit in the District Court * * * alleging that the employment termination violated his First
Amendment right to free speech. In granting the City's motion to dismiss, the District Court decided
that Roe had not demonstrated that selling official police uniforms and producing, marketing, and
selling sexually explicit videos for profit qualified as expression relating to a matter of "public
concern" under this Court's decision in Connick v.Myers.
In reversing, the Court of Appeals held Roe's conduct fell within the protected category of citizen
commentary on matters of public concern. Central to the Court of Appeals' conclusion was that Roe's
expression was not an internal workplace grievance, took place while he was off duty and away from
his employer's premises, and was unrelated to his employment.
II
A government employee does not relinquish all First Amendment rights otherwise enjoyed by
citizens just by reason of his or her employment. On the other hand, a governmental employer may
impose certain restraints on the speech of its employees, restraints that would be unconstitutional if
applied to the general public. The Court has recognized the right of employees to speak on matters of
public concern, typically matters concerning government policies that are of interest to the public at
large, a subject on which public employees are uniquely qualified to comment. Outside of this
category, the Court has held that when government employees speak or write on their own time on
topics unrelated to their employment, the speech can have First Amendment protection, absent some

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governmental justification "far stronger than mere speculation" in regulating it. We have little
difficulty in concluding that the City was not barred from terminating Roe under either line of cases.
A
In concluding that Roe's activities qualified as a matter of public concern, the Court of Appeals relied
heavily on the Court's decision in NTEU. [ United States v. National Treasury Employees Union (1995)].
In NTEU it was established that the speech was unrelated to the employment and had no effect on the
mission and purpose of the employer. The question was whether the Federal Government could
impose certain monetary limitations on outside earnings from speaking or writing on a class of
federal employees. The Court held that, within the particular classification of employment, the
Government had shown no justification for the outside salary limitations. The First Amendment right
of the employees sufficed to invalidate the restrictions on the outside earnings for such activities. The
Court noted that throughout history public employees who undertook to write or to speak in their
spare time had made substantial contributions to literature and art, and observed that none of the
speech at issue "even arguably [had] any adverse impact" on the employer.
The Court of Appeals' reliance on NTEU was seriously misplaced. Although Roe's activities took place
outside the workplace and purported to be about subjects not related to his employment, the SDPD
demonstrated legitimate and substantial interests of its own that were compromised by his speech.
Far from confining his activities to speech unrelated to his employment, Roe took deliberate steps to
link his videos and other wares to his police work, all in a way injurious to his employer. The use of
the uniform, the law enforcement reference in the Web site, the listing of the speaker as "in the field
of law enforcement," and the debased parody of an officer performing indecent acts while in the
course of official duties brought the mission of the employer and the professionalism of its officers
into serious disrepute.
The Court of Appeals noted the City conceded Roe's activities were "unrelated" to his employment. In
the context of the pleadings and arguments, the proper interpretation of the City's statement is
simply to underscore the obvious proposition that Roe's speech was not a comment on the workings
or functioning of the SDPD. It is quite a different question whether the speech was detrimental to the
SDPD. On that score the City's consistent position has been that the speech is contrary to its
regulations and harmful to the proper functioning of the police force. The present case falls outside
the protection afforded in NTEU. The authorities that instead control, and which are considered
below, are this Court's decisions in Pickering, Connick, and the decisions which follow them.
B
To reconcile the employee's right to engage in speech and the government employer's right to
protect its own legitimate interests in performing its mission, the Pickering Court adopted a
balancing test. It requires a court evaluating restraints on a public employee's speech to balance "the
interests of the [employee], as a citizen, in commenting upon matters of public concern and the
interest of the State, as an employer, in promoting the efficiency of the public services it performs
through its employees."
Underlying the decision in Pickering is the recognition that public employees are often the members
of the community who are likely to have informed opinions as to the operations of their public
employers, operations which are of substantial concern to the public. Were they not able to speak on
these matters, the community would be deprived of informed opinions on important public issues.
The interest at stake is as much the public's interest in receiving informed opinion as it is the
employee's own right to disseminate it.
Pickering did not hold that any and all statements by a public employee are entitled to balancing. To
require Pickering balancing in every case where speech by a public employee is at issue, no matter
the content of the speech, could compromise the proper functioning of government offices. This
concern prompted the Court in Connick to explain a threshold inquiry (implicit in Pickering itself)
that in order to merit Pickering balancing, a public employee's speech must touch on a matter of
"public concern." * * *

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Although the boundaries of the public concern test are not well defined, Connick provides some
guidance. It directs courts to examine the "content, form, and context of a given statement, as
revealed by the whole record" in assessing whether an employee's speech addresses a matter of
public concern. In addition, it notes that the standard for determining whether expression is of public
concern is the same standard used to determine whether a common-law action for invasion of
privacy is present. * * * These cases make clear that public concern is something that is a subject of
legitimate news interest; that is, a subject of general interest and of value and concern to the public at
the time of publication. The Court has also recognized that certain private remarks, such as negative
comments about the President of the United States, touch on matters of public concern and should
thus be subject to Pickering balancing.
Applying these principles to the instant case, there is no difficulty in concluding that Roe's expression
does not qualify as a matter of public concern under any view of the public concern test. He fails the
threshold test and Pickering balancing does not come into play.
Connick is controlling precedent, but to show why this is not a close case it is instructive to note that
even under the view expressed by the dissent in Connick from four Members of the Court, the speech
here would not come within the definition of a matter of public concern. The dissent in Connick
would have held that the entirety of the questionnaire circulated by the employee "discussed
subjects that could reasonably be expected to be of interest to persons seeking to develop informed
opinions about the manner in which . . . an elected official charged with managing a vital
governmental agency, discharges his responsibilities." No similar purpose could be attributed to the
employee's speech in the present case. Roe's activities did nothing to inform the public about any
aspect of the SDPD's functioning or operation. Nor were Roe's activities anything like the private
remarks at issue in Rankin, where one co-worker commented to another co-worker on an item of
political news. Roe's expression was widely broadcast, linked to his official status as a police officer,
and designed to exploit his employer's image.
The speech in question was detrimental to the mission and functions of the employer. There is no
basis for finding that it was of concern to the community as the Court's cases have understood that
term in the context of restrictions by governmental entities on the speech of their employees.
The judgment of the Court of Appeals is
Reversed.

Notes
1.
The most closely divided case of the four above cases that reached the Court between 1979
and 2004 is Connick v. Myers, a 5-4 decision in favor of the employer. Do you find the majority or
dissenting opinions more persuasive? Is the case merely an application of Pickering or does it point
to problems within the Pickering standard? How important do you think it is that Sheila Myers was
an attorney?
2.
The Court decided San Diego v. Roe without oral argument in a per curiam opinion. Was it
really so simple?

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C.

Public Employee Speech in the Roberts Court

As in the previous section, the next two cases purport to apply Pickering. Again, consider whether
these two most recent cases from the Court are modest refinements or substantial changes of
Pickering.

Garcetti v. Ceballos
547 U.S. 410 (2006)
KENNEDY, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ROBERTS, C. J., AND SCALIA, THOMAS, AND ALITO, JJ.,
JOINED. STEVENS, J., FILED A DISSENTING OPINION. SOUTER, J., FILED A DISSENTING OPINION, IN WHICH STEVENS AND
GINSBURG, JJ., JOINED. BREYER, J., FILED A DISSENTING OPINION.
JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT.
It is well settled that "a State cannot condition public employment on a basis that infringes the
employee's constitutionally protected interest in freedom of expression." The question presented by
the instant case is whether the First Amendment protects a government employee from discipline
based on speech made pursuant to the employee's official duties.
I
Respondent Richard Ceballos has been employed since 1989 as a deputy district attorney for the Los
Angeles County District Attorney's Office. During the period relevant to this case, Ceballos was a
calendar deputy in the office's Pomona branch, and in this capacity he exercised certain supervisory
responsibilities over other lawyers. In February 2000, a defense attorney contacted Ceballos about a
pending criminal case. The defense attorney said there were inaccuracies in an affidavit used to
obtain a critical search warrant. The attorney informed Ceballos that he had filed a motion to
traverse, or challenge, the warrant, but he also wanted Ceballos to review the case. According to
Ceballos, it was not unusual for defense attorneys to ask calendar deputies to investigate aspects of
pending cases.
After examining the affidavit and visiting the location it described, Ceballos determined the affidavit
contained serious misrepresentations. The affidavit called a long driveway what Ceballos thought
should have been referred to as a separate roadway. Ceballos also questioned the affidavit's
statement that tire tracks led from a stripped-down truck to the premises covered by the warrant.
His doubts arose from his conclusion that the roadway's composition in some places made it difficult
or impossible to leave visible tire tracks.
Ceballos spoke on the telephone to the warrant affiant, a deputy sheriff from the Los Angeles County
Sheriff's Department, but he did not receive a satisfactory explanation for the perceived inaccuracies.
He relayed his findings to his supervisors, petitioners Carol Najera and Frank Sundstedt, and
followed up by preparing a disposition memorandum. The memo explained Ceballos' concerns and
recommended dismissal of the case. On March 2, 2000, Ceballos submitted the memo to Sundstedt
for his review. A few days later, Ceballos presented Sundstedt with another memo, this one
describing a second telephone conversation between Ceballos and the warrant affiant.
Based on Ceballos' statements, a meeting was held to discuss the affidavit. Attendees included
Ceballos, Sundstedt, and Najera, as well as the warrant affiant and other employees from the sheriff's
department. The meeting allegedly became heated, with one lieutenant sharply criticizing Ceballos
for his handling of the case.
Despite Ceballos' concerns, Sundstedt decided to proceed with the prosecution, pending disposition
of the defense motion to traverse. The trial court held a hearing on the motion. Ceballos was called by

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the defense and recounted his observations about the affidavit, but the trial court rejected the
challenge to the warrant.
Ceballos claims that in the aftermath of these events he was subjected to a series of retaliatory
employment actions. The actions included reassignment from his calendar deputy position to a trial
deputy position, transfer to another courthouse, and denial of a promotion. Ceballos initiated an
employment grievance, but the grievance was denied based on a finding that he had not suffered any
retaliation. Unsatisfied, Ceballos sued * * * [and] alleged petitioners violated the First and Fourteenth
Amendments by retaliating against him based on his memo of March 2.
Petitioners responded that no retaliatory actions were taken against Ceballos and that all the actions
of which he complained were explained by legitimate reasons such as staffing needs. They further
contended that, in any event, Ceballos' memo was not protected speech under the First Amendment.
Petitioners moved for summary judgment, and the District Court granted their motion. Noting that
Ceballos wrote his memo pursuant to his employment duties, the court concluded he was not entitled
to First Amendment protection for the memo's contents. It held in the alternative that even if
Ceballos' speech was constitutionally protected, petitioners had qualified immunity because the
rights Ceballos asserted were not clearly established.
The Court of Appeals for the Ninth Circuit reversed, holding that "Ceballos's allegations of
wrongdoing in the memorandum constitute protected speech under the First Amendment." * * *
Having concluded that Ceballos' memo satisfied the public-concern requirement, the Court of
Appeals proceeded to balance Ceballos' interest in his speech against his supervisors' interest in
responding to it. The court struck the balance in Ceballos' favor, noting that petitioners "failed even
to suggest disruption or inefficiency in the workings of the District Attorney's Office" as a result of
the memo. The court further concluded that Ceballos' First Amendment rights were clearly
established and that petitioners' actions were not objectively reasonable.
Judge O'Scannlain specially concurred. Agreeing that the panel's decision was compelled by Circuit
precedent, he nevertheless concluded Circuit law should be revisited and overruled. Judge
O'Scannlain emphasized the distinction "between speech offered by a public employee acting as an
employee carrying out his or her ordinary job duties and that spoken by an employee acting as a
citizen expressing his or her personal views on disputed matters of public import." In his view, "when
public employees speak in the course of carrying out their routine, required employment obligations,
they have no personal interest in the content of that speech that gives rise to a First Amendment
right."
We granted certiorari and we now reverse.
II
As the Court's decisions have noted, for many years "the unchallenged dogma was that a public
employee had no right to object to conditions placed upon the terms of employment—including
those which restricted the exercise of constitutional rights." That dogma has been qualified in
important respects. The Court has made clear that public employees do not surrender all their First
Amendment rights by reason of their employment. Rather, the First Amendment protects a public
employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern.
* * * Pickering and the cases decided in its wake identify two inquiries to guide interpretation of the
constitutional protections accorded to public employee speech. The first requires determining
whether the employee spoke as a citizen on a matter of public concern. If the answer is no, the
employee has no First Amendment cause of action based on his or her employer's reaction to the
speech. If the answer is yes, then the possibility of a First Amendment claim arises. The question
becomes whether the relevant government entity had an adequate justification for treating the
employee differently from any other member of the general public. This consideration reflects the
importance of the relationship between the speaker's expressions and employment. A government
entity has broader discretion to restrict speech when it acts in its role as employer, but the
restrictions it imposes must be directed at speech that has some potential to affect the entity's
operations.
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To be sure, conducting these inquiries sometimes has proved difficult. This is the necessary product
of "the enormous variety of fact situations in which critical statements by teachers and other public
employees may be thought by their superiors . . . to furnish grounds for dismissal." The Court's
overarching objectives, though, are evident. * * *
III
With these principles in mind we turn to the instant case. Respondent Ceballos believed the affidavit
used to obtain a search warrant contained serious misrepresentations. He conveyed his opinion and
recommendation in a memo to his supervisor. That Ceballos expressed his views inside his office,
rather than publicly, is not dispositive. Employees in some cases may receive First Amendment
protection for expressions made at work. Many citizens do much of their talking inside their
respective workplaces, and it would not serve the goal of treating public employees like "any
member of the general public," to hold that all speech within the office is automatically exposed to
restriction.
The memo concerned the subject matter of Ceballos' employment, but this, too, is nondispositive. The
First Amendment protects some expressions related to the speaker's job. As the Court noted in
Pickering: "Teachers are, as a class, the members of a community most likely to have informed and
definite opinions as to how funds allotted to the operation of the schools should be spent.
Accordingly, it is essential that they be able to speak out freely on such questions without fear of
retaliatory dismissal." The same is true of many other categories of public employees.
The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a
calendar deputy. That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a
responsibility to advise his supervisor about how best to proceed with a pending case—
distinguishes Ceballos' case from those in which the First Amendment provides protection against
discipline. We hold 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 not
insulate their communications from employer discipline.
Ceballos wrote his disposition memo because that is part of what he, as a calendar deputy, was
employed to do. It is immaterial whether he experienced some personal gratification from writing
the memo; his First Amendment rights do not depend on his job satisfaction. The significant point is
that the memo was written pursuant to Ceballos' official duties. Restricting speech that owes its
existence to a public employee's professional responsibilities does not infringe any liberties the
employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control
over what the employer itself has commissioned or created. Contrast, for example, the expressions
made by the speaker in Pickering, whose letter to the newspaper had no official significance and bore
similarities to letters submitted by numerous citizens every day.
Ceballos did not act as a citizen when he went about conducting his daily professional activities, such
as supervising attorneys, investigating charges, and preparing filings. In the same way he did not
speak as a citizen by writing a memo that addressed the proper disposition of a pending criminal
case. When he went to work and performed the tasks he was paid to perform, Ceballos acted as a
government employee. The fact that his duties sometimes required him to speak or write does not
mean his supervisors were prohibited from evaluating his performance.
This result is consistent with our precedents' attention to the potential societal value of employee
speech. Refusing to recognize First Amendment claims based on government employees' work
product does not prevent them from participating in public debate. The employees retain the
prospect of constitutional protection for their contributions to the civic discourse. This prospect of
protection, however, does not invest them with a right to perform their jobs however they see fit.
Our holding likewise is supported by the emphasis of our precedents on affording government
employers sufficient discretion to manage their operations. Employers have heightened interests in
controlling speech made by an employee in his or her professional capacity. Official communications
have official consequences, creating a need for substantive consistency and clarity. Supervisors must
ensure that their employees' official communications are accurate, demonstrate sound judgment, and
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promote the employer's mission. Ceballos' memo is illustrative. It demanded the attention of his
supervisors and led to a heated meeting with employees from the sheriff's department. If Ceballos'
superiors thought his memo was inflammatory or misguided, they had the authority to take proper
corrective action.
Ceballos' proposed contrary rule, adopted by the Court of Appeals, would commit state and federal
courts to a new, permanent, and intrusive role, mandating judicial oversight of communications
between and among government employees and their superiors in the course of official business.
This displacement of managerial discretion by judicial supervision finds no support in our
precedents. When an employee speaks as a citizen addressing a matter of public concern, the First
Amendment requires a delicate balancing of the competing interests surrounding the speech and its
consequences. When, however, the employee is simply performing his or her job duties, there is no
warrant for a similar degree of scrutiny. To hold otherwise would be to demand permanent judicial
intervention in the conduct of governmental operations to a degree inconsistent with sound
principles of federalism and the separation of powers.
* * * Proper application of our precedents thus leads to the conclusion that the First Amendment does
not prohibit managerial discipline based on an employee's expressions made pursuant to official
responsibilities. Because Ceballos' memo falls into this category, his allegation of unconstitutional
retaliation must fail.
Two final points warrant mentioning. First, as indicated above, the parties in this case do not dispute
that Ceballos wrote his disposition memo pursuant to his employment duties. We thus have no
occasion to articulate a comprehensive framework for defining the scope of an employee's duties in
cases where there is room for serious debate. We reject, however, the suggestion that employers can
restrict employees' rights by creating excessively broad job descriptions. The proper inquiry is a
practical one. Formal job descriptions often bear little resemblance to the duties an employee
actually is expected to perform, and the listing of a given task in an employee's written job
description is neither necessary nor sufficient to demonstrate that conducting the task is within the
scope of the employee's professional duties for First Amendment purposes.
Second, Justice Souter [dissenting] suggests today's decision may have important ramifications for
academic freedom, at least as a constitutional value. There is some argument that expression related
to academic scholarship or classroom instruction implicates additional constitutional interests that
are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not,
and for that reason do not, decide whether the analysis we conduct today would apply in the same
manner to a case involving speech related to scholarship or teaching.
IV
Exposing governmental inefficiency and misconduct is a matter of considerable significance. * * *
These imperatives, as well as obligations arising from any other applicable constitutional provisions
and mandates of the criminal and civil laws, protect employees and provide checks on supervisors
who would order unlawful or otherwise inappropriate actions.
We reject, however, the notion that the First Amendment shields from discipline the expressions
employees make pursuant to their professional duties. Our precedents do not support the existence
of a constitutional cause of action behind every statement a public employee makes in the course of
doing his or her job.
The judgment of the Court of Appeals is reversed, and the case is remanded for proceedings
consistent with this opinion.
It is so ordered.
JUSTICE STEVENS, DISSENTING [OMITTED]
JUSTICE SOUTER, WITH WHOM JUSTICE STEVENS AND JUSTICE GINSBURG JOIN, DISSENTING.
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The Court holds 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 not
insulate their communications from employer discipline." I respectfully dissent. I agree with the
majority that a government employer has substantial interests in effectuating its chosen policy and
objectives, and in demanding competence, honesty, and judgment from employees who speak for it
in doing their work. But I would hold that private and public interests in addressing official
wrongdoing and threats to health and safety can outweigh the government's stake in the efficient
implementation of policy, and when they do public employees who speak on these matters in the
course of their duties should be eligible to claim First Amendment protection.
I
Open speech by a private citizen on a matter of public importance lies at the heart of expression
subject to protection by the First Amendment. At the other extreme, a statement by a government
employee complaining about nothing beyond treatment under personnel rules raises no greater
claim to constitutional protection against retaliatory response than the remarks of a private
employee. In between these points lies a public employee's speech unwelcome to the government
but on a significant public issue. Such an employee speaking as a citizen, that is, with a citizen's
interest, is protected from reprisal unless the statements are too damaging to the government's
capacity to conduct public business to be justified by any individual or public benefit thought to flow
from the statements. Entitlement to protection is thus not absolute.
This significant, albeit qualified, protection of public employees who irritate the government is
understood to flow from the First Amendment, in part, because a government paycheck does nothing
to eliminate the value to an individual of speaking on public matters, and there is no good reason for
categorically discounting a speaker's interest in commenting on a matter of public concern just
because the government employs him. Still, the First Amendment safeguard rests on something more,
being the value to the public of receiving the opinions and information that a public employee may
disclose. "Government employees are often in the best position to know what ails the agencies for
which they work." * * *
The difference between a case like Givhan and this one is that the subject of Ceballos's speech fell
within the scope of his job responsibilities, whereas choosing personnel was not what the teacher
was hired to do. The effect of the majority's constitutional line between these two cases, then, is that
a Givhan schoolteacher is protected when complaining to the principal about hiring policy, but a
school personnel officer would not be if he protested that the principal disapproved of hiring
minority job applicants. This is an odd place to draw a distinction, and while necessary judicial linedrawing sometimes looks arbitrary, any distinction obliges a court to justify its choice. Here, there is
no adequate justification for the majority's line categorically denying Pickering protection to any
speech uttered "pursuant to . . . official duties.”
As all agree, the qualified speech protection embodied in Pickering balancing resolves the tension
between individual and public interests in the speech, on the one hand, and the government's
interest in operating efficiently without distraction or embarrassment by talkative or headlinegrabbing employees. The need for a balance hardly disappears when an employee speaks on matters
his job requires him to address; rather, it seems obvious that the individual and public value of such
speech is no less, and may well be greater, when the employee speaks pursuant to his duties in
addressing a subject he knows intimately for the very reason that it falls within his duties.
As for the importance of such speech to the individual, it stands to reason that a citizen may well
place a very high value on a right to speak on the public issues he decides to make the subject of his
work day after day. Would anyone doubt that a school principal evaluating the performance of
teachers for promotion or pay adjustment retains a citizen's interest in addressing the quality of
teaching in the schools? (Still, the majority indicates he could be fired without First Amendment
recourse for fair but unfavorable comment when the teacher under review is the superintendent's
daughter.) Would anyone deny that a prosecutor like Richard Ceballos may claim the interest of any
citizen in speaking out against a rogue law enforcement officer, simply because his job requires him
to express a judgment about the officer's performance? (But the majority says the First Amendment
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gives Ceballos no protection, even if his judgment in this case was sound and appropriately
expressed.)
Indeed, the very idea of categorically separating the citizen's interest from the employee's interest
ignores the fact that the ranks of public service include those who share the poet's "object . . . to unite
[m]y avocation and my vocation"; these citizen servants are the ones whose civic interest rises
highest when they speak pursuant to their duties, and these are exactly the ones government
employers most want to attract. There is no question that public employees speaking on matters they
are obliged to address would generally place a high value on a right to speak, as any responsible
citizen would.
Nor is there any reason to raise the counterintuitive question whether the public interest in hearing
informed employees evaporates when they speak as required on some subject at the core of their
jobs. * * *
Nothing, then, accountable on the individual and public side of the Pickering balance changes when
an employee speaks "pursuant" to public duties. On the side of the government employer, however,
something is different, and to this extent, I agree with the majority of the Court. The majority is
rightly concerned that the employee who speaks out on matters subject to comment in doing his own
work has the greater leverage to create office uproars and fracture the government's authority to set
policy to be carried out coherently through the ranks. * * * Up to a point, then, the majority makes
good points: government needs civility in the workplace, consistency in policy, and honesty and
competence in public service.
But why do the majority's concerns, which we all share, require categorical exclusion of First
Amendment protection against any official retaliation for things said on the job? Is it not possible to
respect the unchallenged individual and public interests in the speech through a Pickering balance
without drawing the strange line I mentioned before? This is, to be sure, a matter of judgment, but
the judgment has to account for the undoubted value of speech to those, and by those, whose specific
public job responsibilities bring them face to face with wrongdoing and incompetence in government,
who refuse to avert their eyes and shut their mouths. And it has to account for the need actually to
disrupt government if its officials are corrupt or dangerously incompetent. It is thus no adequate
justification for the suppression of potentially valuable information simply to recognize that the
government has a huge interest in managing its employees and preventing the occasionally
irresponsible one from turning his job into a bully pulpit. Even there, the lesson of Pickering (and the
object of most constitutional adjudication) is still to the point: when constitutionally significant
interests clash, resist the demand for winner-take-all; try to make adjustments that serve all of the
values at stake. * * *
II
The majority seeks support in two lines of argument extraneous to Pickering doctrine. The one turns
on a fallacious reading of cases on government speech, the other on a mistaken assessment of
protection available under whistle-blower statutes.
A
The majority accepts the fallacy propounded by the county petitioners and the Federal Government
as amicus that any statement made within the scope of public employment is (or should be treated
as) the government's own speech, and should thus be differentiated as a matter of law from the
personal statements the First Amendment protects. The majority invokes * * * Rust v. Sullivan (1991)
[Chapter 6] which held there was no infringement of the speech rights of Title X funds recipients and
their staffs when the Government forbade any on-the-job counseling in favor of abortion as a method
of family planning. We have read Rust to mean that "when the government appropriates public funds
to promote a particular policy of its own it is entitled to say what it wishes."
The key to understanding the difference between this case and Rust lies in the terms of the respective
employees' jobs and, in particular, the extent to which those terms require espousal of a substantive
position prescribed by the government in advance. Some public employees are hired to "promote a
particular policy" by broadcasting a particular message set by the government, but not everyone
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working for the government, after all, is hired to speak from a government manifesto. See Legal
Services Corporation v. Velazquez (2001) [Chapter 6]. There is no claim or indication that Ceballos
was hired to perform such a speaking assignment. He was paid to enforce the law by constitutional
action: to exercise the county government's prosecutorial power by acting honestly, competently,
and constitutionally. The only sense in which his position apparently required him to hew to a
substantive message was at the relatively abstract point of favoring respect for law and its
evenhanded enforcement, subjects that are not at the level of controversy in this case and were not in
Rust. Unlike the doctors in Rust, Ceballos was not paid to advance one specific policy among those
legitimately available, defined by a specific message or limited by a particular message forbidden.
The county government's interest in his speech cannot therefore be equated with the terms of a
specific, prescribed, or forbidden substantive position comparable to the Federal Government's
interest in Rust, and Rust is no authority for the notion that government may exercise plenary control
over every comment made by a public employee in doing his job. * * *
B
The majority's second argument for its disputed limitation of Pickering doctrine is that the First
Amendment has little or no work to do here owing to an assertedly comprehensive complement of
state and national statutes protecting government whistle-blowers from vindictive bosses. But even
if I close my eyes to the tenet that "`[t]he applicability of a provision of the Constitution has never
depended on the vagaries of state or federal law,'" the majority's counsel to rest easy fails on its own
terms.
To begin with, speech addressing official wrongdoing may well fall outside protected whistleblowing, defined in the classic sense of exposing an official's fault to a third party or to the public; the
teacher in Givhan, for example, who raised the issue of unconstitutional hiring bias, would not have
qualified as that sort of whistle-blower, for she was fired after a private conversation with the school
principal. In any event, the combined variants of statutory whistle-blower definitions and protections
add up to a patchwork, not a showing that worries may be remitted to legislatures for relief. See D.
WESTMAN & N. MODESITT, WHISTLEBLOWING: LAW OF RETALIATORY DISCHARGE 67-75, 281-307 (2d ed.
2004). Some state statutes protect all government workers, including the employees of
municipalities and other subdivisions; others stop at state employees. Some limit protection to
employees who tell their bosses before they speak out; others forbid bosses from imposing any
requirement to warn. As for the federal Whistleblower Protection Act of 1989, 5 U. S. C. § 1213 et seq.
(2000 ed. and Supp. III), current case law requires an employee complaining of retaliation to show
that “ ‘a disinterested observer with knowledge of the essential facts known to and readily
ascertainable by the employee [could] reasonably conclude that the actions of the government
evidence gross mismanagement.’” And federal employees have been held to have no protection for
disclosures made to immediate supervisors, or for statements of facts publicly known already. Most
significantly, federal employees have been held to be unprotected for statements made in connection
with normal employment duties, the very speech that the majority says will be covered by "the
powerful network of legislative enactments . . . available to those who seek to expose wrongdoing."
My point is not to disparage particular statutes or speak here to the merits of interpretations by
other federal courts, but merely to show the current understanding of statutory protection:
individuals doing the same sorts of governmental jobs and saying the same sorts of things addressed
to civic concerns will get different protection depending on the local, state, or federal jurisdictions
that happened to employ them.
III
The Court remands because the Court of Appeals considered only the disposition memorandum and
because Ceballos charges retaliation for some speech apparently outside the ambit of utterances
"pursuant to their official duties." When the Court of Appeals takes up this case once again, it should
consider some of the following facts that escape emphasis in the majority opinion owing to its focus.
Ceballos says he sought his position out of a personal commitment to perform civic work. After
showing his superior, petitioner Frank Sundstedt, the disposition memorandum at issue in this case,
Ceballos complied with Sundstedt's direction to tone down some accusatory rhetoric out of concern
that the memorandum would be unnecessarily incendiary when shown to the Sheriff's Department.
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After meeting with members of that department, Ceballos told his immediate supervisor, petitioner
Carol Najera, that he thought Brady v. Maryland (1963), obliged him to give the defense his internal
memorandum as exculpatory evidence. He says that Najera responded by ordering him to write a
new memorandum containing nothing but the deputy sheriff's statements, but that he balked at that.
Instead, he proposed to turn over the existing memorandum with his own conclusions redacted as
work product, and this is what he did. The issue over revealing his conclusions arose again in
preparing for the suppression hearing. Ceballos maintains that Sundstedt ordered Najera,
representing the prosecution, to give the trial judge a full picture of the circumstances, but that
Najera told Ceballos he would suffer retaliation if he testified that the affidavit contained intentional
fabrications. In any event, Ceballos's testimony generally stopped short of his own conclusions. After
the hearing, the trial judge denied the motion to suppress, explaining that he found grounds
independent of the challenged material sufficient to show probable cause for the warrant.
Ceballos says that over the next six months his supervisors retaliated against him not only for his
written reports, but also for his spoken statements to them and his hearing testimony in the pending
criminal case. While an internal grievance filed by Ceballos challenging these actions was pending,
Ceballos spoke at a meeting of the Mexican-American Bar Association about misconduct of the
Sheriff's Department in the criminal case, the lack of any policy at the District Attorney's Office for
handling allegations of police misconduct, and the retaliatory acts he ascribed to his supervisors. Two
days later, the office dismissed Ceballos's grievance, a result he attributes in part to his bar
association speech.
Ceballos's action against petitioners under 42 U. S. C. § 1983 claims that the individuals retaliated
against him for exercising his First Amendment rights in submitting the memorandum, discussing the
matter with Najera and Sundstedt, testifying truthfully at the hearing, and speaking at the bar
meeting. As I mentioned, the Court of Appeals saw no need to address the protection afforded to
Ceballos's statements other than the disposition memorandum, which it thought was protected
under the Pickering test. Upon remand, it will be open to the Court of Appeals to consider the
application of Pickering to any retaliation shown for other statements; not all of those statements
would have been made pursuant to official duties in any obvious sense, and the claim relating to
truthful testimony in court must surely be analyzed independently to protect the integrity of the
judicial process.
JUSTICE BREYER, DISSENTING [OMITTED].

Lane v. Franks
573 U.S. ___ (2014)
SOTOMAYOR, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT. THOMAS, J., FILED A CONCURRING OPINION, IN
WHICH SCALIA AND ALITO, JJ., JOINED.
JUSTICE SOTOMAYOR DELIVERED THE OPINION OF THE COURT.
Almost 50 years ago, this Court declared that citizens do not surrender their First Amendment rights
by accepting public employment. Rather, the First Amendment protection of a public employee's
speech depends on a careful balance "between the interests of the [employee], as a citizen, in
commenting upon matters of public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through its employees." Pickering v. Board
of Ed. of Township High School Dist. 205, Will Cty. (1968). In Pickering, the Court struck the balance in
favor of the public employee, extending First Amendment protection to a teacher who was fired after
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writing a letter to the editor of a local newspaper criticizing the school board that employed him.
Today, we consider whether the First Amendment similarly protects a public employee who
provided truthful sworn testimony, compelled by subpoena, outside the course of his ordinary job
responsibilities.
We hold that it does.
I
In 2006, Central Alabama Community College (CACC) hired petitioner Edward Lane to be the
Director of Community Intensive Training for Youth (CITY), a statewide program for underprivileged
youth. CACC hired Lane on a probationary basis. In his capacity as Director, Lane was responsible for
overseeing CITY's day-to-day operations, hiring and firing employees, and making decisions with
respect to the program's finances.
At the time of Lane's appointment, CITY faced significant financial difficulties. That prompted Lane to
conduct a comprehensive audit of the program's expenses. The audit revealed that Suzanne Schmitz,
an Alabama State Representative on CITY's payroll, had not been reporting to her CITY office. After
unfruitful discussions with Schmitz, Lane shared his finding with CACC's president and its attorney.
They warned him that firing Schmitz could have negative repercussions for him and CACC.
Lane nonetheless contacted Schmitz again and instructed her to show up to the Huntsville office to
serve as a counselor. Schmitz refused; she responded that she wished to " 'continue to serve the CITY
program in the same manner as [she had] in the past.' " Lane fired her shortly thereafter. Schmitz
told another CITY employee, Charles Foley, that she intended to " 'get [Lane] back' " for firing her. She
also said that if Lane ever requested money from the state legislature for the program, she would tell
him, " '[y]ou're fired.' "
Schmitz' termination drew the attention of many, including agents of the Federal Bureau of
Investigation, which initiated an investigation into Schmitz' employment with CITY. In November
2006, Lane testified before a federal grand jury about his reasons for firing Schmitz. In January 2008,
the grand jury indicted Schmitz on four counts of mail fraud and four counts of theft concerning a
program receiving federal funds. The indictment alleged that Schmitz had collected $177,251.82 in
federal funds even though she performed " 'virtually no services,' " " 'generated virtually no work
product,' " and " 'rarely even appeared for work at the CITY Program offices.' " Id., at 1260. It further
alleged that Schmitz had submitted false statements concerning the hours she worked and the nature
of the services she performed.
Schmitz' trial, which garnered extensive press coverage, commenced in August 2008. Lane testified,
under subpoena, regarding the events that led to his terminating Schmitz. The jury failed to reach a
verdict. Roughly six months later, federal prosecutors retried Schmitz, and Lane testified once again.
This time, the jury convicted Schmitz on three counts of mail fraud and four counts of theft
concerning a program receiving federal funds. The District Court sentenced her to 30 months in
prison and ordered her to pay $177,251.82 in restitution and forfeiture.
Meanwhile, CITY continued to experience considerable budget shortfalls. In November 2008, Lane
began reporting to respondent Steve Franks, who had become president of CACC in January 2008.
Lane recommended that Franks consider layoffs to address the financial difficulties. In January 2009,
Franks decided to terminate 29 probationary CITY employees, including Lane. Shortly thereafter,
however, Franks rescinded all but 2 of the 29 terminations--those of Lane and one other employee-because of an "ambiguity in [those other employees'] probationary service." Brief for Respondent
Franks 11. Franks claims that he "did not rescind Lane's termination . . . because he believed that
Lane was in a fundamentally different category than the other employees: he was the director of the
entire CITY program, and not simply an employee." In September 2009, CACC eliminated the CITY
program and terminated the program's remaining employees. Franks later retired, and respondent
Susan Burrow, the current Acting President of CACC, replaced him while this case was pending
before the Eleventh Circuit.
In January 2011, Lane sued Franks in his individual and official capacities alleging that Franks had
violated the First Amendment by firing him in retaliation for his testimony against Schmitz. Lane
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sought damages from Franks in his individual capacity and sought equitable relief, including
reinstatement, from Franks in his official capacity.
The District Court granted Franks' motion for summary judgment. Although the court concluded that
the record raised "genuine issues of material fact . . . concerning [Franks'] true motivation for
terminating [Lane's] employment," it held that Franks was entitled to qualified immunity as to the
damages claims because "a reasonable government official in [Franks'] position would not have had
reason to believe that the Constitution protected [Lane's] testimony." The District Court relied on
Garcetti v. Ceballos (2006), which held that " 'when public employees make statements pursuant to
their official duties, the employees are not speaking as citizens for First Amendment purposes.' " The
court found no violation of clearly established law because Lane had "learned of the information that
he testified about while working as Director at [CITY]," such that his "speech [could] still be
considered as part of his official job duties and not made as a citizen on a matter of public concern.".
The Eleventh Circuit affirmed [in a summary opinion without oral argument]. * * * We granted
certiorari to resolve discord among the Courts of Appeals as to whether public employees may be
fired--or suffer other adverse employment consequences--for providing truthful subpoenaed
testimony outside the course of their ordinary job responsibilities.
II
Speech by citizens on matters of public concern lies at the heart of the First Amendment, which "was
fashioned to assure unfettered interchange of ideas for the bringing about of political and social
changes desired by the people," Roth v. United States (1957). This remains true when speech
concerns information related to or learned through public employment. After all, public employees
do not renounce their citizenship when they accept employment, and this Court has cautioned time
and again that public employers may not condition employment on the relinquishment of
constitutional rights. There is considerable value, moreover, in encouraging, rather than inhibiting,
speech by public employees. For "[g]overnment employees are often in the best position to know
what ails the agencies for which they work." "The interest at stake is as much the public's interest in
receiving informed opinion as it is the employee's own right to disseminate it."
Our precedents have also acknowledged the government's countervailing interest in controlling the
operation of its workplaces. "Government employers, like private employers, need a significant
degree of control over their employees' words and actions; without it, there would be little chance
for the efficient provision of public services."
Pickering provides the framework for analyzing whether the employee's interest or the government's
interest should prevail in cases where the government seeks to curtail the speech of its employees. It
requires "balanc[ing] . . . the interests of the [public employee], as a citizen, in commenting upon
matters of public concern and the interest of the State, as an employer, in promoting the efficiency of
the public services it performs through its employees."* * *
In Garcetti, we described a two-step inquiry into whether a public employee's speech is entitled to
protection:
"The first requires determining whether the employee spoke as a citizen on a matter of public concern.
If the answer is no, the employee has no First Amendment cause of action based on his or her
employer's reaction to the speech. If the answer is yes, then the possibility of a First Amendment claim
arises. The question becomes whether the relevant government entity had an adequate justification for
treating the employee differently from any other member of the general public."

In describing the first step in this inquiry, Garcetti distinguished between employee speech and
citizen speech. Whereas speech as a citizen may trigger protection, the 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 not insulate their communications
from employer discipline." Applying that rule to the facts before it, the Court found that an internal
memorandum prepared by a prosecutor in the course of his ordinary job responsibilities constituted
unprotected employee speech.

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III
Against this backdrop, we turn to the question presented: whether the First Amendment protects a
public employee who provides truthful sworn testimony, compelled by subpoena, outside the scope
of his ordinary job responsibilities. We hold that it does.
A
The first inquiry is whether the speech in question--Lane's testimony at Schmitz' trials--is speech as a
citizen on a matter of public concern. It clearly is.
1
Truthful testimony under oath by a public employee outside the scope of his ordinary job duties is
speech as a citizen for First Amendment purposes. That is so even when the testimony relates to his
public employment or concerns information learned during that employment.
In rejecting Lane's argument that his testimony was speech as a citizen, the Eleventh Circuit gave
short shrift to the nature of sworn judicial statements and ignored the obligation borne by all
witnesses testifying under oath. Sworn testimony in judicial proceedings is a quintessential example
of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation, to the
court and society at large, to tell the truth. When the person testifying is a public employee, he may
bear separate obligations to his employer--for example, an obligation not to show up to court dressed
in an unprofessional manner. But any such obligations as an employee are distinct and independent
from the obligation, as a citizen, to speak the truth. That independent obligation renders sworn
testimony speech as a citizen and sets it apart from speech made purely in the capacity of an
employee.
In holding that Lane did not speak as a citizen when he testified, the Eleventh Circuit read Garcetti far
too broadly. * * * The sworn testimony in this case is far removed from the speech at issue in Garcetti-an internal memorandum prepared by a deputy district attorney for his supervisors recommending
dismissal of a particular prosecution. * * *
But Garcetti said nothing about speech that simply relates to public employment or concerns
information learned in the course of public employment. The Garcetti Court made explicit that its
holding did not turn on the fact that the memo at issue "concerned the subject matter of [the
prosecutor's] employment," because "[t]he First Amendment protects some expressions related to
the speaker's job." In other words, the mere fact that a citizen's speech concerns information
acquired by virtue of his public employment does not transform that speech into employee--rather
than citizen--speech. The critical question under Garcetti is whether the speech at issue is itself
ordinarily within the scope of an employee's duties, not whether it merely concerns those duties.
It bears emphasis that our precedents dating back to Pickering have recognized that speech by public
employees on subject matter related to their employment holds special value precisely because those
employees gain knowledge of matters of public concern through their employment. In Pickering, for
example, the Court observed that "[t]eachers are . . . the members of a community most likely to have
informed and definite opinions as to how funds allotted to the operation of the schools should be
spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear
of retaliatory dismissal." Most recently, in San Diego v. Roe, the Court again observed that public
employees "are uniquely qualified to comment" on "matters concerning government policies that are
of interest to the public at large."
The importance of public employee speech is especially evident in the context of this case: a public
corruption scandal. The United States, for example, represents that because "[t]he more than 1000
prosecutions for federal corruption offenses that are brought in a typical year . . . often depend on
evidence about activities that government officials undertook while in office," those prosecutions
often "require testimony from other government employees." Brief for United States as Amicus
Curiae. It would be antithetical to our jurisprudence to conclude that the very kind of speech
necessary to prosecute corruption by public officials--speech by public employees regarding
information learned through their employment--may never form the basis for a First Amendment
retaliation claim. Such a rule would place public employees who witness corruption in an impossible
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position, torn between the obligation to testify truthfully and the desire to avoid retaliation and keep
their jobs.
Applying these principles, it is clear that Lane's sworn testimony is speech as a citizen.
2
Lane's testimony is also speech on a matter of public concern. Speech involves matters of public
concern "when it can 'be fairly considered as relating to any matter of political, social, or other
concern to the community,' or when it 'is a subject of legitimate news interest; that is, a subject of
general interest and of value and concern to the public.' " Snyder v. Phelps (2011) [Chapter 7]. The
inquiry turns on the "content, form, and context" of the speech. Connick.
The content of Lane's testimony--corruption in a public program and misuse of state funds-obviously involves a matter of significant public concern. And the form and context of the speech-sworn testimony in a judicial proceeding--fortify that conclusion. "Unlike speech in other contexts,
testimony under oath has the formality and gravity necessary to remind the witness that his or her
statements will be the basis for official governmental action, action that often affects the rights and
liberties of others." United States v. Alvarez (2013).
We hold, then, that Lane's truthful sworn testimony at Schmitz' criminal trials is speech as a citizen
on a matter of public concern.
B
This does not settle the matter, however. A public employee's sworn testimony is not categorically
entitled to First Amendment protection simply because it is speech as a citizen on a matter of public
concern. Under Pickering, if an employee speaks as a citizen on a matter of public concern, the next
question is whether the government had "an adequate justification for treating the employee
differently from any other member of the public" based on the government's needs as an employer.
As discussed previously, we have recognized that government employers often have legitimate
"interest[s] in the effective and efficient fulfillment of [their] responsibilities to the public," including
" 'promot[ing] efficiency and integrity in the discharge of official duties,' " and " 'maintain[ing] proper
discipline in public service.' " Connick. We have also cautioned, however, that "a stronger showing [of
government interests] may be necessary if the employee's speech more substantially involve[s]
matters of public concern."
Here, the employer's side of the Pickering scale is entirely empty: Respondents do not assert, and
cannot demonstrate, any government interest that tips the balance in their favor. There is no
evidence, for example, that Lane's testimony at Schmitz' trials was false or erroneous or that Lane
unnecessarily disclosed any sensitive, confidential, or privileged information while testifying. In
these circumstances, we conclude that Lane's speech is entitled to protection under the First
Amendment. The Eleventh Circuit erred in holding otherwise and dismissing Lane's claim of
retaliation on that basis.
IV
Respondent Franks argues that even if Lane's testimony is protected under the First Amendment, the
claims against him in his individual capacity should be dismissed on the basis of qualified immunity.
We agree. * * *
For the foregoing reasons, the judgment of the United States Court of Appeals for the Eleventh Circuit
is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent
with this opinion.
JUSTICE THOMAS, WITH WHOM JUSTICE SCALIA AND JUSTICE ALITO JOIN, CONCURRING.
This case presents the discrete question whether a public employee speaks "as a citizen on a matter
of public concern," when the employee gives "[t]ruthful testimony under oath . . . outside the scope of

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his ordinary job duties." Answering that question requires little more than a straightforward
application of Garcetti. * * *
We accordingly have no occasion to address the quite different question whether a public employee
speaks "as a citizen" when he testifies in the course of his ordinary job responsibilities. For some
public employees--such as police officers, crime scene technicians, and laboratory analysts--testifying
is a routine and critical part of their employment duties. Others may be called to testify in the context
of particular litigation as the designated representatives of their employers. See Fed. Rule Civ. Proc.
30(b)(6). The Court properly leaves the constitutional questions raised by these scenarios for
another day.

Notes

1.
Garcetti v. Ceballos was argued in October 2005 and reargued in March 2006. The
intervening event necessitating reargument was the retirement of Justice Sandra Day O’Connor and
her replacement by Justice Samuel Alito. This change in Justices may also have changed the outcome
in the case.
Based on the timing and practice of opinion assignments, at least one Court-watcher believes that
Justice Souter originally had been assigned the majority opinion (in which O’Connor joined). Justice
Kennedy, who had been assigned another majority opinion from that October sitting was writing a
dissenting opinion, but Alito’s preference for Kennedy’s position transformed Kennedy’s opinion into
the Court’s opinion. See Karl Blanke, The Effect of Justice Alito, ScotusBlog, June 27, 2006, available
at: http://www.scotusblog.com/2006/06/the-effect-of-justice-alito/
2.
However, even in the original oral argument there was some concern about the breadth of
“public concern” in a government office. Both Justice Breyer and Chief Justice Roberts proffered brief
examples using their own offices and law clerks. Here is a portion of the Roberts colloquy with the
attorney for Ceballos:
CHIEF JUSTICE ROBERTS: But Government misconduct -- if I get a memo from a law clerk that says,
"Justice So-and-So's jurisprudence is wacky," that goes to -[Laughter.] -- that goes to Government misconduct, under your theory, right? And I fire them, because I
think that's not appropriate to put in a memo.
***
CHIEF JUSTICE ROBERTS: And they think it's Government misconduct because of the way cases are
decided, and that they have a first amendment interest. What could be more important than how the
Court decides cases? And that violates their first-amendment rights.

How would you respond?
3.
After Garcetti v. Ceballos, the term “Garcettized” began to be used by some as many courts
began to routinely deny First Amendment protection to employees for any statements made related
to employment. Indeed, one might view Edward Lane’s claims as having been “Garcettized” when the
district judge entered summary judgment in favor of the employer and the Eleventh Circuit affirmed
in a per curiam opinion without oral argument.
4.
In Lane v. Franks the Court found that the Eleventh Circuit read Garcetti “far too broadly” and
unanimously concluded that resolving the issue in Lane v. Franks “requires little more than a
straightforward application of Garcetti.” Why then does the Court hold that the defendants are
entitled to qualified immunity?

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III. Student Speech

This section considers the First Amendment implications when public schools discipline or otherwise
regulate speech by students.

Tinker v. Des Moines Independent Community School
District
393 U.S. 503 (1969)
FORTAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH WARREN, C.J., DOUGLAS, BRENNAN, WHITE, AND
MARSHALL, J.J., JOINED. STEWART, J., FILED A CONCURRING OPINION. BLACK, J., AND HARLAN, J., FILED DISSENTING
OPINIONS.
JUSTICE FORTAS DELIVERED THE OPINION OF THE COURT.
Petitioner John F. Tinker, 15 years old, and petitioner Christopher Eckhardt, 16 years old, attended
high schools in Des Moines, Iowa. Petitioner Mary Beth Tinker, John's sister, was a 13-year-old
student in junior high school.
In December, 1965, a group of adults and students in Des Moines held a meeting at the Eckhardt
home. The group determined to publicize their objections to the hostilities in Vietnam and their
support for a truce by wearing black armbands during the holiday season and by fasting on
December 16 and New Year's Eve. Petitioners and their parents had previously engaged in similar
activities, and they decided to participate in the program.
The principals of the Des Moines schools became aware of the plan to wear armbands. On December
14, 1965, they met and adopted a policy that any student wearing an armband to school would be
asked to remove it, and, if he refused, he would be suspended until he returned without the armband.
Petitioners were aware of the regulation that the school authorities adopted.
On December 16, Mary Beth and Christopher wore black armbands to their schools. John Tinker
wore his armband the next day. They were all sent home and suspended from school until they
would come back without their armbands. They did not return to school until after the planned
period for wearing armbands had expired -- that is, until after New Year's Day.
This complaint was filed in the United States District Court by petitioners, through their fathers,
under § 1983 of Title 42 of the United States Code. It prayed for an injunction restraining the
respondent school officials and the respondent members of the board of directors of the school
district from disciplining the petitioners, and it sought nominal damages. After an evidentiary
hearing, the District Court dismissed the complaint. It upheld the constitutionality of the school
authorities' action on the ground that it was reasonable in order to prevent disturbance of school
discipline. The court referred to, but expressly declined to follow, the Fifth Circuit's holding in a
similar case that the wearing of symbols like the armbands cannot be prohibited unless it "materially
and substantially interfere[s] with the requirements of appropriate discipline in the operation of the
school." Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966).
On appeal, the Court of Appeals for the Eighth Circuit considered the case en banc. The court was
equally divided, and the District Court's decision was accordingly affirmed without opinion. We
granted certiorari.
I
The District Court recognized that the wearing of an armband for the purpose of expressing certain
views is the type of symbolic act that is within the Free Speech Clause of the First Amendment. As we
shall discuss, the wearing of armbands in the circumstances of this case was entirely divorced from
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actually or potentially disruptive conduct by those participating in it. It was closely akin to "pure
speech" which, we have repeatedly held, is entitled to comprehensive protection under the First
Amendment.
First Amendment rights, applied in light of the special characteristics of the school environment, are
available to teachers and students. It can hardly be argued that either students or teachers shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the
unmistakable holding of this Court for almost 50 years. In Meyer v. Nebraska (1923) and Bartels v.
Iowa (1923), this Court, in opinions by Mr. Justice McReynolds, held that the Due Process Clause of
the Fourteenth Amendment prevents States from forbidding the teaching of a foreign language to
young students. Statutes to this effect, the Court held, unconstitutionally interfere with the liberty of
teacher, student, and parent. See also Pierce v. Society of Sisters (1925). * * *
In West Virginia v. Barnette (1943) [Chapter 6] this Court held that, under the First Amendment, the
student in public school may not be compelled to salute the flag. * * * On the other hand, the Court
has repeatedly emphasized the need for affirming the comprehensive authority of the States and of
school officials, consistent with fundamental constitutional safeguards, to prescribe and control
conduct in the schools. Our problem lies in the area where students in the exercise of First
Amendment rights collide with the rules of the school authorities.
II
The problem posed by the present case does not relate to regulation of the length of skirts or the type
of clothing, to hair style, or deportment. It does not concern aggressive, disruptive action or even
group demonstrations. Our problem involves direct, primary First Amendment rights akin to "pure
speech."
The school officials banned and sought to punish petitioners for a silent, passive expression of
opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no
evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of
collision with the rights of other students to be secure and to be let alone. Accordingly, this case does
not concern speech or action that intrudes upon the work of the schools or the rights of other
students.
Only a few of the 18,000 students in the school system wore the black armbands. Only five students
were suspended for wearing them. There is no indication that the work of the schools or any class
was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing
armbands, but there were no threats or acts of violence on school premises.
The District Court concluded that the action of the school authorities was reasonable because it was
based upon their fear of a disturbance from the wearing of the armbands. But, in our system,
undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom
of expression. Any departure from absolute regimentation may cause trouble. Any variation from the
majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus,
that deviates from the views of another person may start an argument or cause a disturbance. But
our Constitution says we must take this risk and our history says that it is this sort of hazardous
freedom -- this kind of openness -- that is the basis of our national strength and of the independence
and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.
In order for the State in the person of school officials to justify prohibition of a particular expression
of opinion, it must be able to show that its action was caused by something more than a mere desire
to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.
Certainly where there is no finding and no showing that engaging in the forbidden conduct would
"materially and substantially interfere with the requirements of appropriate discipline in the
operation of the school," the prohibition cannot be sustained.
In the present case, the District Court made no such finding, and our independent examination of the
record fails to yield evidence that the school authorities had reason to anticipate that the wearing of
the armbands would substantially interfere with the work of the school or impinge upon the rights of

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other students. Even an official memorandum prepared after the suspension that listed the reasons
for the ban on wearing the armbands made no reference to the anticipation of such disruption.
On the contrary, the action of the school authorities appears to have been based upon an urgent wish
to avoid the controversy which might result from the expression, even by the silent symbol of
armbands, of opposition to this Nation's part in the conflagration in Vietnam. It is revealing, in this
respect, that the meeting at which the school principals decided to issue the contested regulation was
called in response to a student's statement to the journalism teacher in one of the schools that he
wanted to write an article on Vietnam and have it published in the school paper. (The student was
dissuaded.)
It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of
political or controversial significance. The record shows that students in some of the schools wore
buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a
symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a
particular symbol -- black armbands worn to exhibit opposition to this Nation's involvement in
Vietnam -- was singled out for prohibition. Clearly, the prohibition of expression of one particular
opinion, at least without evidence that it is necessary to avoid material and substantial interference
with schoolwork or discipline, is not constitutionally permissible.
In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not
possess absolute authority over their students. Students in school, as well as out of school, are
"persons" under our Constitution. They are possessed of fundamental rights which the State must
respect, just as they themselves must respect their obligations to the State. In our system, students
may not be regarded as closed-circuit recipients of only that which the State chooses to communicate.
They may not be confined to the expression of those sentiments that are officially approved. In the
absence of a specific showing of constitutionally valid reasons to regulate their speech, students are
entitled to freedom of expression of their views. * * *
The principle of these cases is not confined to the supervised and ordained discussion which takes
place in the classroom. The principal use to which the schools are dedicated is to accommodate
students during prescribed hours for the purpose of certain types of activities. Among those activities
is personal intercommunication among the students. This is not only an inevitable part of the process
of attending school; it is also an important part of the educational process. A student's rights,
therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing
field, or on the campus during the authorized hours, he may express his opinions, even on
controversial subjects like the conflict in Vietnam, if he does so without "materially and substantially
interfer[ing] with the requirements of appropriate discipline in the operation of the school" and
without colliding with the rights of others. But conduct by the student, in class or out of it, which for
any reason -- whether it stems from time, place, or type of behavior -- materially disrupts classwork
or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the
constitutional guarantee of freedom of speech.
Under our Constitution, free speech is not a right that is given only to be so circumscribed that it
exists in principle, but not in fact. Freedom of expression would not truly exist if the right could be
exercised only in an area that a benevolent government has provided as a safe haven for crackpots.
The Constitution says that Congress (and the States) may not abridge the right to free speech. This
provision means what it says. We properly read it to permit reasonable regulation of speechconnected activities in carefully restricted circumstances. But we do not confine the permissible
exercise of First Amendment rights to a telephone booth or the four corners of a pamphlet, or to
supervised and ordained discussion in a school classroom.
If a regulation were adopted by school officials forbidding discussion of the Vietnam conflict, or the
expression by any student of opposition to it anywhere on school property except as part of a
prescribed classroom exercise, it would be obvious that the regulation would violate the
constitutional rights of students, at least if it could not be justified by a showing that the students'
activities would materially and substantially disrupt the work and discipline of the school. In the

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circumstances of the present case, the prohibition of the silent, passive "witness of the armbands," as
one of the children called it, is no less offensive to the Constitution's guarantees.
As we have discussed, the record does not demonstrate any facts which might reasonably have led
school authorities to forecast substantial disruption of or material interference with school activities,
and no disturbances or disorders on the school premises in fact occurred. These petitioners merely
went about their ordained rounds in school. Their deviation consisted only in wearing on their sleeve
a band of black cloth, not more than two inches wide. They wore it to exhibit their disapproval of the
Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example,
to influence others to adopt them. They neither interrupted school activities nor sought to intrude in
the school affairs or the lives of others. They caused discussion outside of the classrooms, but no
interference with work and no disorder. In the circumstances, our Constitution does not permit
officials of the State to deny their form of expression.
We express no opinion as to the form of relief which should be granted, this being a matter for the
lower courts to determine. We reverse and remand for further proceedings consistent with this
opinion.
Reversed and remanded.
MR. JUSTICE STEWART, CONCURRING.
Although I agree with much of what is said in the Court's opinion, and with its judgment in this case, I
cannot share the Court's uncritical assumption that, school discipline aside, the First Amendment
rights of children are coextensive with those of adults. Indeed, I had thought the Court decided
otherwise just last Term in Ginsberg v. New York. I continue to hold the view I expressed in that case:
"[A] State may permissibly determine that, at least in some precisely delineated areas, a child -- like
someone in a captive audience -- is not possessed of that full capacity for individual choice which is the
presupposition of First Amendment guarantees."

Id; Cf. Prince v. Massachusetts.
MR. JUSTICE WHITE, CONCURRING [OMITTED].
MR. JUSTICE BLACK, DISSENTING.
The Court's holding in this case ushers in what I deem to be an entirely new era in which the power
to control pupils by the elected "officials of state supported public schools . . ." in the United States is
in ultimate effect transferred to the Supreme Court. The Court brought this particular case here on a
petition for certiorari urging that the First and Fourteenth Amendments protect the right of school
pupils to express their political views all the way "from kindergarten through high school." Here, the
constitutional right to "political expression" asserted was a right to wear black armbands during
school hours and at classes in order to demonstrate to the other students that the petitioners were
mourning because of the death of United States soldiers in Vietnam and to protest that war which
they were against. Ordered to refrain from wearing the armbands in school by the elected school
officials and the teachers vested with state authority to do so, apparently only seven out of the school
system's 18,000 pupils deliberately refused to obey the order. One defying pupil was Paul Tinker, 8
years old, who was in the second grade; another, Hope Tinker, was 11 years old and in the fifth
grade; a third member of the Tinker family was 13, in the eighth grade; and a fourth member of the
same family was John Tinker, 15 years old, an 11th grade high school pupil. Their father, a Methodist
minister without a church, is paid a salary by the American Friends Service Committee. Another
student who defied the school order and insisted on wearing an armband in school was Christopher
Eckhardt, an 11th grade pupil and a petitioner in this case. His mother is an official in the Women's
International League for Peace and Freedom.

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As I read the Court's opinion, it relies upon the following grounds for holding unconstitutional the
judgment of the Des Moines school officials and the two courts below. First, the Court concludes that
the wearing of armbands is "symbolic speech," which is "akin to pure speech,'" and therefore
protected by the First and Fourteenth Amendments. Secondly, the Court decides that the public
schools are an appropriate place to exercise "symbolic speech" as long as normal school functions are
not "unreasonably" disrupted. Finally, the Court arrogates to itself, rather than to the State's elected
officials charged with running the schools, the decision as to which school disciplinary regulations
are "reasonable."
Assuming that the Court is correct in holding that the conduct of wearing armbands for the purpose
of conveying political ideas is protected by the First Amendment, the crucial remaining questions are
whether students and teachers may use the schools at their whim as a platform for the exercise of
free speech -- "symbolic" or "pure" -- and whether the courts will allocate to themselves the function
of deciding how the pupils' school day will be spent. While I have always believed that, under the
First and Fourteenth Amendments, neither the State nor the Federal Government has any authority
to regulate or censor the content of speech, I have never believed that any person has a right to give
speeches or engage in demonstrations where he pleases and when he pleases. * * * While the record
does not show that any of these armband students shouted, used profane language, or were violent in
any manner, detailed testimony by some of them shows their armbands caused comments, warnings
by other students, the poking of fun at them, and a warning by an older football player that other
nonprotesting students had better let them alone. There is also evidence that a teacher of
mathematics had his lesson period practically "wrecked," chiefly by disputes with Mary Beth Tinker,
who wore her armband for her "demonstration."
Even a casual reading of the record shows that this armband did divert students' minds from their
regular lessons, and that talk, comments, etc., made John Tinker "self-conscious" in attending school
with his armband. While the absence of obscene remarks or boisterous and loud disorder perhaps
justifies the Court's statement that the few armband students did not actually "disrupt" the classwork,
I think the record overwhelmingly shows that the armbands did exactly what the elected school
officials and principals foresaw they would, that is, took the students' minds off their classwork and
diverted them to thoughts about the highly emotional subject of the Vietnam war. And I repeat that, if
the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high
schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it
is the beginning of a new revolutionary era of permissiveness in this country fostered by the
judiciary. The next logical step, it appears to me, would be to hold unconstitutional laws that bar
pupils under 21 or 18 from voting, or from being elected members of the boards of education.
* * * I deny, therefore, that it has been the "unmistakable holding of this Court for almost 50 years"
that "students" and "teachers" take with them into the "schoolhouse gate" constitutional rights to
"freedom of speech or expression."
In my view, teachers in state-controlled public schools are hired to teach there. Although Mr. Justice
McReynolds may have intimated to the contrary in Meyer v. Nebraska, supra, certainly a teacher is
not paid to go into school and teach subjects the State does not hire him to teach as a part of its
selected curriculum. Nor are public school students sent to the schools at public expense to broadcast
political or any other views to educate and inform the public. The original idea of schools, which I do
not believe is yet abandoned as worthless or out of date, was that children had not yet reached the
point of experience and wisdom which enabled them to teach all of their elders. It may be that the
Nation has outworn the old-fashioned slogan that "children are to be seen, not heard," but one may, I
hope, be permitted to harbor the thought that taxpayers send children to school on the premise that,
at their age, they need to learn, not teach.* * *
Change has been said to be truly the law of life, but sometimes the old and the tried and true are
worth holding. The schools of this Nation have undoubtedly contributed to giving us tranquility and
to making us a more law-abiding people. Uncontrolled and uncontrollable liberty is an enemy to
domestic peace. We cannot close our eyes to the fact that some of the country's greatest problems are
crimes committed by the youth, too many of school age. School discipline, like parental discipline, is
an integral and important part of training our children to be good citizens -- to be better citizens.
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Here a very small number of students have crisply and summarily refused to obey a school order
designed to give pupils who want to learn the opportunity to do so. One does not need to be a
prophet or the son of a prophet to know that, after the Court's holding today, some students in Iowa
schools -- and, indeed, in all schools -- will be ready, able, and willing to defy their teachers on
practically all orders. This is the more unfortunate for the schools since groups of students all over
the land are already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins. Many of these
student groups, as is all too familiar to all who read the newspapers and watch the television news
programs, have already engaged in rioting, property seizures, and destruction. They have picketed
schools to force students not to cross their picket lines, and have too often violently attacked earnest
but frightened students who wanted an education that the pickets did not want them to get. Students
engaged in such activities are apparently confident that they know far more about how to operate
public school systems than do their parents, teachers, and elected school officials. It is no answer to
say that the particular students here have not yet reached such high points in their demands to
attend classes in order to exercise their political pressures. Turned loose with lawsuits for damages
and injunctions against their teachers as they are here, it is nothing but wishful thinking to imagine
that young, immature students will not soon believe it is their right to control the schools, rather than
the right of the States that collect the taxes to hire the teachers for the benefit of the pupils. This case,
therefore, wholly without constitutional reasons, in my judgment, subjects all the public schools in
the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest,
students. I, for one, am not fully persuaded that school pupils are wise enough, even with this Court's
expert help from Washington, to run the 23,390 public school systems in our 50 States. I wish,
therefore, wholly to disclaim any purpose on my part to hold that the Federal Constitution compels
the teachers, parents, and elected school officials to surrender control of the American public school
system to public school students. I dissent.

Bethel School District No. 403 v. Fraser
478 U.S. 675 (1986)
BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE, POWELL, REHNQUIST, AND O'CONNOR, JJ.,
JOINED. BRENNAN J., FILED AN OPINION CONCURRING IN THE JUDGMENT. BLACKMUN, J. CONCURRED IN THE RESULT.
MARSHALL, J., AND STEVENS, J., FILED DISSENTING OPINIONS.
CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT.
We granted certiorari to decide whether the First Amendment prevents a school district from
disciplining a high school student for giving a lewd speech at a school assembly.
I
A
On April 26, 1983, respondent Matthew N. Fraser, a student at Bethel High School in Pierce County,
Washington, delivered a speech nominating a fellow student for student elective office.
Approximately 600 high school students, many of whom were 14-year-olds, attended the assembly.
Students were required to attend the assembly or to report to the study hall. The assembly was part
of a school-sponsored educational program in self-government. Students who elected not to attend
the assembly were required to report to study hall. During the entire speech, Fraser referred to his
candidate in terms of an elaborate, graphic, and explicit sexual metaphor.
Two of Fraser's teachers, with whom he discussed the contents of his speech in advance, informed
him that the speech was "inappropriate and that he probably should not deliver it," and that his
delivery of the speech might have "severe consequences."
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During Fraser's delivery of the speech, a school counselor observed the reaction of students to the
speech. Some students hooted and yelled; some by gestures graphically simulated the sexual
activities pointedly alluded to in respondent's speech. Other students appeared to be bewildered and
embarrassed by the speech. One teacher reported that, on the day following the speech, she found it
necessary to forgo a portion of the scheduled class lesson in order to discuss the speech with the
class. A Bethel High School disciplinary rule prohibiting the use of obscene language in the school
provides:
Conduct which materially and substantially interferes with the educational process is prohibited,
including the use of obscene, profane language or gestures.

The morning after the assembly, the Assistant Principal called Fraser into her office and notified him
that the school considered his speech to have been a violation of this rule. Fraser was presented with
copies of five letters submitted by teachers, describing his conduct at the assembly; he was given a
chance to explain his conduct and he admitted to having given the speech described and that he
deliberately used sexual innuendo in the speech. Fraser was then informed that he would be
suspended for three days, and that his name would be removed from the list of candidates for
graduation speaker at the school's commencement exercises.
Fraser sought review of this disciplinary action through the School District's grievance procedures.
The hearing officer determined that the speech given by respondent was "indecent, lewd, and
offensive to the modesty and decency of many of the students and faculty in attendance at the
assembly." The examiner determined that the speech fell within the ordinary meaning of "obscene,"
as used in the disruptive conduct rule, and affirmed the discipline in its entirety. Fraser served two
days of his suspension, and was allowed to return to school on the third day.
B
Respondent, by his father as guardian ad litem, then brought this action in the United States District
Court for the Western District of Washington. Respondent alleged a violation of his First Amendment
right to freedom of speech, and sought both injunctive relief and monetary damages under 42 U.S.C. §
1983. The District Court held that the school's sanctions violated respondent's right to freedom of
speech under the First Amendment to the United States Constitution, that the school's disruptive
conduct rule is unconstitutionally vague and overbroad, and that the removal of respondent's name
from the graduation speaker's list violated the Due Process Clause of the Fourteenth Amendment
because the disciplinary rule makes no mention of such removal as a possible sanction. The District
Court awarded respondent $278 in damages, $12,750 in litigation costs and attorney's fees, and
enjoined the School District from preventing respondent from speaking at the commencement
ceremonies. Respondent, who had been elected graduation speaker by a write-in vote of his
classmates, delivered a speech at the commencement ceremonies on June 8, 1983.
The Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court, holding that
respondent's speech was indistinguishable from the protest armband in Tinker v. Des Moines
Independent Community School Dist. (1969). * * *
We granted certiorari. We reverse.
II
This Court acknowledged in Tinker v. Des Moines Independent Community School Dist. that students
do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
The Court of Appeals read that case as precluding any discipline of Fraser for indecent speech and
lewd conduct in the school assembly. That court appears to have proceeded on the theory that the
use of lewd and obscene speech in order to make what the speaker considered to be a point in a
nominating speech for a fellow student was essentially the same as the wearing of an armband in
Tinker as a form of protest or the expression of a political position.
The marked distinction between the political "message" of the armbands in Tinker and the sexual
content of respondent's speech in this case seems to have been given little weight by the Court of
Appeals. In upholding the students' right to engage in a nondisruptive, passive expression of a

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political viewpoint in Tinker, this Court was careful to note that the case did "not concern speech or
action that intrudes upon the work of the schools or the rights of other students."
It is against this background that we turn to consider the level of First Amendment protection
accorded to Fraser's utterances and actions before an official high school assembly attended by 600
students.
III
The role and purpose of the American public school system were well described by two historians,
who stated:
[P]ublic education must prepare pupils for citizenship in the Republic. . . . It must inculcate the habits
and manners of civility as values in themselves conducive to happiness and as indispensable to the
practice of self-government in the community and the nation.

C. BEARD & M. BEARD, NEW BASIC HISTORY OF THE UNITED STATES 228 (1968). * * *
These fundamental values of "habits and manners of civility" essential to a democratic society must,
of course, include tolerance of divergent political and religious views, even when the views expressed
may be unpopular. But these "fundamental values" must also take into account consideration of the
sensibilities of others, and, in the case of a school, the sensibilities of fellow students. The undoubted
freedom to advocate unpopular and controversial views in schools and classrooms must be balanced
against the society's countervailing interest in teaching students the boundaries of socially
appropriate behavior. Even the most heated political discourse in a democratic society requires
consideration for the personal sensibilities of the other participants and audiences. * * *
The First Amendment guarantees wide freedom in matters of adult public discourse. A sharply
divided Court upheld the right to express an antidraft viewpoint in a public place, albeit in terms
highly offensive to most citizens. See Cohen v. California (1971). It does not follow, however, that,
simply because the use of an offensive form of expression may not be prohibited to adults making
what the speaker considers a political point, the same latitude must be permitted to children in a
public school. * * * The determination of what manner of speech in the classroom or in school
assembly is inappropriate properly rests with the school board.
The process of educating our youth for citizenship in public schools is not confined to books, the
curriculum, and the civics class; schools must teach by example the shared values of a civilized social
order. Consciously or otherwise, teachers -- and indeed the older students -- demonstrate the
appropriate form of civil discourse and political expression by their conduct and deportment in and
out of class. Inescapably, like parents, they are role models. The schools, as instruments of the state,
may determine that the essential lessons of civil, mature conduct cannot be conveyed in a school that
tolerates lewd, indecent, or offensive speech and conduct such as that indulged in by this confused
boy.
The pervasive sexual innuendo in Fraser's speech was plainly offensive to both teachers and students
-- indeed, to any mature person. By glorifying male sexuality, and in its verbal content, the speech
was acutely insulting to teenage girl students. The speech could well be seriously damaging to its less
mature audience, many of whom were only 14 years old and on the threshold of awareness of human
sexuality. Some students were reported as bewildered by the speech and the reaction of mimicry it
provoked.
This Court's First Amendment jurisprudence has acknowledged limitations on the otherwise
absolute interest of the speaker in reaching an unlimited audience where the speech is sexually
explicit and the audience may include children. * * *
We have also recognized an interest in protecting minors from exposure to vulgar and offensive
spoken language. * * *
We hold that petitioner School District acted entirely within its permissible authority in imposing
sanctions upon Fraser in response to his offensively lewd and indecent speech. Unlike the sanctions
imposed on the students wearing armbands in Tinker, the penalties imposed in this case were
unrelated to any political viewpoint. The First Amendment does not prevent the school officials from
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determining that to permit a vulgar and lewd speech such as respondent's would undermine the
school's basic educational mission. A high school assembly or classroom is no place for a sexually
explicit monologue directed towards an unsuspecting audience of teenage students. Accordingly, it
was perfectly appropriate for the school to disassociate itself to make the point to the pupils that
vulgar speech and lewd conduct is wholly inconsistent with the "fundamental values" of public
school education. * * *
IV
Respondent contends that the circumstances of his suspension violated due process because he had
no way of knowing that the delivery of the speech in question would subject him to disciplinary
sanctions. This argument is wholly without merit. * * *
The judgment of the Court of Appeals for the Ninth Circuit is
Reversed.
JUSTICE BLACKMUN CONCURS IN THE RESULT [WITHOUT OPINION].
JUSTICE BRENNAN, CONCURRING IN THE JUDGMENT.
Respondent gave the following speech at a high school assembly in support of a candidate for student
government office:
I know a man who is firm -- he's firm in his pants, he's firm in his shirt, his character is firm -- but
most . . . of all, his belief in you, the students of Bethel, is firm.
Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to
the wall. He doesn't attack things in spurts -- he drives hard, pushing and pushing until finally -- he
succeeds.
Jeff is a man who will go to the very end -- even the climax, for each and every one of you.
So vote for Jeff for A.S.B. vice-president -- he'll never come between you and the best our high school
can be.

The Court, referring to these remarks as "obscene," "vulgar," "lewd," and "offensively lewd,"
concludes that school officials properly punished respondent for uttering the speech. Having read the
full text of respondent's remarks, I find it difficult to believe that it is the same speech the Court
describes. To my mind, the most that can be said about respondent's speech -- and all that need be
said -- is that, in light of the discretion school officials have to teach high school students how to
conduct civil and effective public discourse, and to prevent disruption of school educational activities,
it was not unconstitutional for school officials to conclude, under the circumstances of this case, that
respondent's remarks exceeded permissible limits. Thus, while I concur in the Court's judgment, I
write separately to express my understanding of the breadth of the Court's holding.
The Court today reaffirms the unimpeachable proposition that students do not "‘shed their
constitutional rights to freedom of speech or expression at the schoolhouse gate.'" If respondent had
given the same speech outside of the school environment, he could not have been penalized simply
because government officials considered his language to be inappropriate. Moreover, despite the
Court's characterizations, the language respondent used is far removed from the very narrow class of
"obscene" speech which the Court has held is not protected by the First Amendment. It is true,
however, that the State has interests in teaching high school students how to conduct civil and
effective public discourse and in avoiding disruption of educational school activities. Thus, the Court
holds that, under certain circumstances, high school students may properly be reprimanded for
giving a speech at a high school assembly which school officials conclude disrupted the school's
educational mission. Respondent's speech may well have been protected had he given it in school but
under different circumstances, where the school's legitimate interests in teaching and maintaining
civil public discourse were less weighty.
In the present case, school officials sought only to ensure that a high school assembly proceed in an
orderly manner. There is no suggestion that school officials attempted to regulate respondent's
speech because they disagreed with the views he sought to express. Nor does this case involve an
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attempt by school officials to ban written materials they consider "inappropriate" for high school
students, cf. Board of Education v. Pico (1982), or to limit what students should hear, read, or learn
about. Thus, the Court's holding concerns only the authority that school officials have to restrict a
high school student's use of disruptive language in a speech given to a high school assembly.
The authority school officials have to regulate such speech by high school students is not limitless.
Under the circumstances of this case, however, I believe that school officials did not violate the First
Amendment in determining that respondent should be disciplined for the disruptive language he
used while addressing a high school assembly. Thus, I concur in the judgment reversing the decision
of the Court of Appeals.
JUSTICE MARSHALL, DISSENTING.
I agree with the principles that Justice Brennan sets out in his opinion concurring in the judgment. I
dissent from the Court's decision, however, because, in my view, the School District failed to
demonstrate that respondent's remarks were indeed disruptive. The District Court and Court of
Appeals conscientiously applied Tinker v. Des Moines Independent Community School Dist. (1969) and
concluded that the School District had not demonstrated any disruption of the educational process. I
recognize that the school administration must be given wide latitude to determine what forms of
conduct are inconsistent with the school's educational mission; nevertheless, where speech is
involved, we may not unquestioningly accept a teacher's or administrator's assertion that certain
pure speech interfered with education. Here the School District, despite a clear opportunity to do so,
failed to bring in evidence sufficient to convince either of the two lower courts that education at
Bethel School was disrupted by respondent's speech. I therefore see no reason to disturb the Court of
Appeals' judgment.
JUSTICE STEVENS, DISSENTING.
"Frankly, my dear, I don't give a damn."
When I was a high school student, the use of those words in a public forum shocked the Nation.
Today Clark Gable's four-letter expletive is less offensive than it was then. Nevertheless, I assume
that high school administrators may prohibit the use of that word in classroom discussion and even
in extracurricular activities that are sponsored by the school and held on school premises. For I
believe a school faculty must regulate the content as well as the style of student speech in carrying
out its educational mission. It does seem to me, however, that, if a student is to be punished for using
offensive speech, he is entitled to fair notice of the scope of the prohibition and the consequences of
its violation. The interest in free speech protected by the First Amendment and the interest in fair
procedure protected by the Due Process Clause of the Fourteenth Amendment combine to require
this conclusion.
* * * I would affirm the judgment of the Court of Appeals.

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Hazelwood School District v. Kuhlmeier
484 U.S. 260 (1988)
WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH REHNQUIST, C. J., AND STEVENS, O'CONNOR, AND
SCALIA, JJ., JOINED. BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH MARSHALL AND BLACKMUN, JJ., JOINED.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT.
This case concerns the extent to which educators may exercise editorial control over the contents of
a high school newspaper produced as part of the school's journalism curriculum.
I
Petitioners are the Hazelwood School District in St. Louis County, Missouri; various school officials;
Robert Eugene Reynolds, the principal of Hazelwood East High School; and Howard Emerson, a
teacher in the school district. Respondents are three former Hazelwood East students who were staff
members of Spectrum, the school newspaper. They contend that school officials violated their First
Amendment rights by deleting two pages of articles from the May 13, 1983, issue of Spectrum.
Spectrum was written and edited by the Journalism II class at Hazelwood East. The newspaper was
published every three weeks or so during the 1982-1983 school year. More than 4,500 copies of the
newspaper were distributed during that year to students, school personnel, and members of the
community.
The Board of Education allocated funds from its annual budget for the printing of Spectrum. These
funds were supplemented by proceeds from sales of the newspaper. The printing expenses during
the 1982-1983 school year totaled $4,668.50; revenue from sales was $1,166.84. The other costs
associated with the newspaper - such as supplies, textbooks, and a portion of the journalism
teacher's salary - were borne entirely by the Board.
The Journalism II course was taught by Robert Stergos for most of the 1982-1983 academic year.
Stergos left Hazelwood East to take a job in private industry on April 29, 1983, when the May 13
edition of Spectrum was nearing completion, and petitioner Emerson took his place as newspaper
adviser for the remaining weeks of the term.
The practice at Hazelwood East during the spring 1983 semester was for the journalism teacher to
submit page proofs of each Spectrum issue to Principal Reynolds for his review prior to publication.
On May 10, Emerson delivered the proofs of the May 13 edition to Reynolds, who objected to two of
the articles scheduled to appear in that edition. One of the stories described three Hazelwood East
students' experiences with pregnancy; the other discussed the impact of divorce on students at the
school.
Reynolds was concerned that, although the pregnancy story used false names "to keep the identity of
these girls a secret," the pregnant students still might be identifiable from the text. He also believed
that the article's references to sexual activity and birth control were inappropriate for some of the
younger students at the school. In addition, Reynolds was concerned that a student identified by
name in the divorce story had complained that her father "wasn't spending enough time with my
mom, my sister and I" prior to the divorce, "was always out of town on business or out late playing
cards with the guys," and "always argued about everything" with her mother. Reynolds believed that
the student's parents should have been given an opportunity to respond to these remarks or to
consent to their publication. He was unaware that Emerson had deleted the student's name from the
final version of the article.
Reynolds believed that there was no time to make the necessary changes in the stories before the
scheduled press run and that the newspaper would not appear before the end of the school year if
printing were delayed to any significant extent. He concluded that his only options under the
circumstances were to publish a four-page newspaper instead of the planned six-page newspaper,
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eliminating the two pages on which the offending stories appeared, or to publish no newspaper at all.
Accordingly, he directed Emerson to withhold from publication the two pages containing the stories
on pregnancy and divorce. He informed his superiors of the decision, and they concurred.
Respondents subsequently commenced this action in the United States District Court for the Eastern
District of Missouri seeking a declaration that their First Amendment rights had been violated,
injunctive relief, and monetary damages. After a bench trial, the District Court denied an injunction,
holding that no First Amendment violation had occurred. * * * The Court of Appeals for the Eighth
Circuit reversed. * * *
We granted certiorari and we now reverse.
II
Students in the public schools do not "shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate." Tinker. They cannot be punished merely for expressing their
personal views on the school premises - whether "in the cafeteria, or on the playing field, or on the
campus during the authorized hours," - unless school authorities have reason to believe that such
expression will "substantially interfere with the work of the school or impinge upon the rights of
other students."
We have nonetheless recognized that the First Amendment rights of students in the public schools
"are not automatically coextensive with the rights of adults in other settings," Bethel School District
No. 403 v. Fraser, and must be "applied in light of the special characteristics of the school
environment." Tinker. A school need not tolerate student speech that is inconsistent with its "basic
educational mission," Fraser, even though the government could not censor similar speech outside
the school. * * * It is in this context that respondents' First Amendment claims must be considered.
A
We deal first with the question whether Spectrum may appropriately be characterized as a forum for
public expression. The public schools do not possess all of the attributes of streets, parks, and other
traditional public forums that "time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions." Hague v. CIO (1939)
[Chapter 7]. Hence, school facilities may be deemed to be public forums only if school authorities
have "by policy or by practice" opened those facilities "for indiscriminate use by the general public,"
Perry Education Assn. v. Perry Local Educators' Assn. (1983) [Chapter 7], or by some segment of the
public, such as student organizations. Id. * * * School officials did not evince either "by policy or by
practice" any intent to open the pages of Spectrum to "indiscriminate use," by its student reporters
and editors, or by the student body generally. Instead, they "reserve[d] the forum for its intended
purpos[e]," as a supervised learning experience for journalism students. Accordingly, school officials
were entitled to regulate the contents of Spectrum in any reasonable manner. It is this standard,
rather than our decision in Tinker, that governs this case.
B
The question whether the First Amendment requires a school to tolerate particular student speech the question that we addressed in Tinker - is different from the question whether the First
Amendment requires a school affirmatively to promote particular student speech. The former
question addresses educators' ability to silence a student's personal expression that happens to
occur on the school premises. The latter question concerns educators' authority over schoolsponsored publications, theatrical productions, and other expressive activities that students, parents,
and members of the public might reasonably perceive to bear the imprimatur of the school. These
activities may fairly be characterized as part of the school curriculum, whether or not they occur in a
traditional classroom setting, so long as they are supervised by faculty members and designed to
impart particular knowledge or skills to student participants and audiences.
Educators are entitled to exercise greater control over this second form of student expression to
assure that participants learn whatever lessons the activity is designed to teach, that readers or
listeners are not exposed to material that may be inappropriate for their level of maturity, and that
the views of the individual speaker are not erroneously attributed to the school. * * * A school must
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be able to set high standards for the student speech that is disseminated under its auspices standards that may be higher than those demanded by some newspaper publishers or theatrical
producers in the "real" world - and may refuse to disseminate student speech that does not meet
those standards. In addition, a school must be able to take into account the emotional maturity of the
intended audience in determining whether to disseminate student speech on potentially sensitive
topics, which might range from the existence of Santa Claus in an elementary school setting to the
particulars of teenage sexual activity in a high school setting. A school must also retain the authority
to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol
use, irresponsible sex, or conduct otherwise inconsistent with "the shared values of a civilized social
order," Fraser, or to associate the school with any position other than neutrality on matters of
political controversy. Otherwise, the schools would be unduly constrained from fulfilling their role as
"a principal instrument in awakening the child to cultural values, in preparing him for later
professional training, and in helping him to adjust normally to his environment." Brown v. Board of
Education (1954).
Accordingly, we conclude that the standard articulated in Tinker for determining when a school may
punish student expression need not also be the standard for determining when a school may refuse
to lend its name and resources to the dissemination of student expression. Instead, we hold that
educators do not offend the First Amendment by exercising editorial control over the style and
content of student speech in school-sponsored expressive activities so long as their actions are
reasonably related to legitimate pedagogical concerns.
This standard is consistent with our oft-expressed view that the education of the Nation's youth is
primarily the responsibility of parents, teachers, and state and local school officials, and not of
federal judges. It is only when the decision to censor a school-sponsored publication, theatrical
production, or other vehicle of student expression has no valid educational purpose that the First
Amendment is so "directly and sharply implicate as to require judicial intervention to protect
students' constitutional rights.
III
We also conclude that Principal Reynolds acted reasonably in requiring the deletion from the May 13
issue of Spectrum of the pregnancy article, the divorce article, and the remaining articles that were to
appear on the same pages of the newspaper.
The initial paragraph of the pregnancy article declared that "[a]ll names have been changed to keep
the identity of these girls a secret." The principal concluded that the students' anonymity was not
adequately protected, however, given the other identifying information in the article and the small
number of pregnant students at the school. Indeed, a teacher at the school credibly testified that she
could positively identify at least one of the girls and possibly all three. It is likely that many students
at Hazelwood East would have been at least as successful in identifying the girls. Reynolds therefore
could reasonably have feared that the article violated whatever pledge of anonymity had been given
to the pregnant students. In addition, he could reasonably have been concerned that the article was
not sufficiently sensitive to the privacy interests of the students' boyfriends and parents, who were
discussed in the article but who were given no opportunity to consent to its publication or to offer a
response. The article did not contain graphic accounts of sexual activity. The girls did comment in the
article, however, concerning their sexual histories and their use or nonuse of birth control. It was not
unreasonable for the principal to have concluded that such frank talk was inappropriate in a schoolsponsored publication distributed to 14-year-old freshmen and presumably taken home to be read
by students' even younger brothers and sisters.
The student who was quoted by name in the version of the divorce article seen by Principal Reynolds
made comments sharply critical of her father. The principal could reasonably have concluded that an
individual publicly identified as an inattentive parent - indeed, as one who chose "playing cards with
the guys" over home and family - was entitled to an opportunity to defend himself as a matter of
journalistic fairness. These concerns were shared by both of Spectrum's faculty advisers for the
1982-1983 school year, who testified that they would not have allowed the article to be printed
without deletion of the student's name.
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Principal Reynolds testified credibly at trial that, at the time that he reviewed the proofs of the May
13 issue during an extended telephone conversation with Emerson, he believed that there was no
time to make any changes in the articles, and that the newspaper had to be printed immediately or
not at all. It is true that Reynolds did not verify whether the necessary modifications could still have
been made in the articles, and that Emerson did not volunteer the information that printing could be
delayed until the changes were made. We nonetheless agree with the District Court that the decision
to excise the two pages containing the problematic articles was reasonable given the particular
circumstances of this case. These circumstances included the very recent replacement of Stergos by
Emerson, who may not have been entirely familiar with Spectrum editorial and production
procedures, and the pressure felt by Reynolds to make an immediate decision so that students would
not be deprived of the newspaper altogether.
In sum, we cannot reject as unreasonable Principal Reynolds' conclusion that neither the pregnancy
article nor the divorce article was suitable for publication in Spectrum. Reynolds could reasonably
have concluded that the students who had written and edited these articles had not sufficiently
mastered those portions of the Journalism II curriculum that pertained to the treatment of
controversial issues and personal attacks, the need to protect the privacy of individuals whose most
intimate concerns are to be revealed in the newspaper, and "the legal, moral, and ethical restrictions
imposed upon journalists within [a] school community" that includes adolescent subjects and
readers. Finally, we conclude that the principal's decision to delete two pages of Spectrum, rather
than to delete only the offending articles or to require that they be modified, was reasonable under
the circumstances as he understood them. Accordingly, no violation of First Amendment rights
occurred.
The judgment of the Court of Appeals for the Eighth Circuit is therefore
Reversed.
JUSTICE BRENNAN, WITH WHOM JUSTICE MARSHALL AND JUSTICE BLACKMUN JOIN, DISSENTING.
When the young men and women of Hazelwood East High School registered for Journalism II, they
expected a civics lesson. Spectrum, the newspaper they were to publish, "was not just a class exercise
in which students learned to prepare papers and hone writing skills, it was a . . . forum established to
give students an opportunity to express their views while gaining an appreciation of their rights and
responsibilities under the First Amendment to the United States Constitution . . . ." "[A]t the
beginning of each school year," the student journalists published a Statement of Policy - tacitly
approved each year by school authorities - announcing their expectation that "Spectrum, as a
student-press publication, accepts all rights implied by the First Amendment . . . . Only speech that
`materially and substantially interferes with the requirements of appropriate discipline' can be found
unacceptable and therefore prohibited." The school board itself affirmatively guaranteed the
students of Journalism II an atmosphere conducive to fostering such an appreciation and exercising
the full panoply of rights associated with a free student press. "School sponsored student
publications," it vowed, "will not restrict free expression or diverse viewpoints within the rules of
responsible journalism."
This case arose when the Hazelwood East administration breached its own promise, dashing its
students' expectations. The school principal, without prior consultation or explanation, excised six
articles - comprising two full pages - of the May 13, 1983, issue of Spectrum. He did so not because
any of the articles would "materially and substantially interfere with the requirements of appropriate
discipline," but simply because he considered two of the six "inappropriate, personal, sensitive, and
unsuitable" for student consumption.
In my view the principal broke more than just a promise. He violated the First Amendment's
prohibitions against censorship of any student expression that neither disrupts classwork nor
invades the rights of others, and against any censorship that is not narrowly tailored to serve its
purpose.

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I
* * * [The Court has never suggested] the distinction, which the Court today finds dispositive,
between school-sponsored and incidental student expression.
II
Even if we were writing on a clean slate, I would reject the Court's rationale for abandoning Tinker in
this case. The Court offers no more than an obscure tangle of three excuses to afford educators
"greater control" over school-sponsored speech than the Tinker test would permit: the public
educator's prerogative to control curriculum; the pedagogical interest in shielding the high school
audience from objectionable viewpoints and sensitive topics; and the school's need to dissociate
itself from student expression. None of the excuses, once disentangled, supports the distinction that
the Court draws. Tinker fully addresses the first concern; the second is illegitimate; and the third is
readily achievable through less oppressive means. * * *
III
Since the censorship served no legitimate pedagogical purpose, it cannot by any stretch of the
imagination have been designed to prevent "materia[l] disrup[tion of] classwork," Tinker. Nor did the
censorship fall within the category that Tinker described as necessary to prevent student expression
from "inva[ding] the rights of others.” If that term is to have any content, it must be limited to rights
that are protected by law. "Any yardstick less exacting than [that] could result in school officials
curtailing speech at the slightest fear of disturbance," a prospect that would be completely at odds
with this Court's pronouncement that the "undifferentiated fear or apprehension of disturbance is
not enough [even in the public school context] to overcome the right to freedom of expression."
Tinker. And, as the Court of Appeals correctly reasoned, whatever journalistic impropriety these
articles may have contained, they could not conceivably be tortious, much less criminal.
Finally, even if the majority were correct that the principal could constitutionally have censored the
objectionable material, I would emphatically object to the brutal manner in which he did so. Where
"[t]he separation of legitimate from illegitimate speech calls for more sensitive tools," the principal
used a paper shredder. He objected to some material in two articles, but excised six entire articles. He
did not so much as inquire into obvious alternatives, such as precise deletions or additions (one of
which had already been made), rearranging the layout, or delaying publication. Such unthinking
contempt for individual rights is intolerable from any state official. It is particularly insidious from
one to whom the public entrusts the task of inculcating in its youth an appreciation for the cherished
democratic liberties that our Constitution guarantees.
IV
The Court opens its analysis in this case by purporting to reaffirm Tinker's time-tested proposition
that public school students "do not `shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate.'" That is an ironic introduction to an opinion that denudes high
school students of much of the First Amendment protection that Tinker itself prescribed. Instead of
"teach[ing] children to respect the diversity of ideas that is fundamental to the American system,"
and "that our Constitution is a living reality, not parchment preserved under glass," the Court today
"teach[es] youth to discount important principles of our government as mere platitudes." West
Virginia Board of Education v. Barnette. The young men and women of Hazelwood East expected a
civics lesson, but not the one the Court teaches them today.
I dissent.

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Morse v. Frederick
551 U.S. 393 (2007)
ROBERTS, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH SCALIA, KENNEDY, THOMAS, AND ALITO, JJ., JOINED.
THOMAS, J., FILED A CONCURRING OPINION. ALITO, J., FILED A CONCURRING OPINION, IN WHICH KENNEDY, J., JOINED.
BREYER, J., FILED AN OPINION CONCURRING IN THE JUDGMENT IN PART AND DISSENTING IN PART. STEVENS, J., FILED A
DISSENTING OPINION, IN WHICH SOUTER AND GINSBURG, JJ., JOINED.
CHIEF JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT.
At a school-sanctioned and school-supervised event, a high school principal saw some of her students
unfurl a large banner conveying a message she reasonably regarded as promoting illegal drug use.
Consistent with established school policy prohibiting such messages at school events, the principal
directed the students to take down the banner. One student--among those who had brought the
banner to the event--refused to do so. The principal confiscated the banner and later suspended the
student. The Ninth Circuit held that the principal's actions violated the First Amendment, and that
the student could sue the principal for damages.
Our cases make clear that students do not "shed their constitutional rights to freedom of speech or
expression at the schoolhouse gate." Tinker. At the same time, we have held that "the constitutional
rights of students in public school are not automatically coextensive with the rights of adults in other
settings," Fraser, and that the rights of students "must be 'applied in light of the special
characteristics of the school environment.' " Hazelwood School Dist. Consistent with these principles,
we hold that schools may take steps to safeguard those entrusted to their care from speech that can
reasonably be regarded as encouraging illegal drug use. We conclude that the school officials in this
case did not violate the First Amendment by confiscating the pro-drug banner and suspending the
student responsible for it.
I
On January 24, 2002, the Olympic Torch Relay passed through Juneau, Alaska, on its way to the
winter games in Salt Lake City, Utah. The torchbearers were to proceed along a street in front of
Juneau-Douglas High School (JDHS) while school was in session. Petitioner Deborah Morse, the
school principal, decided to permit staff and students to participate in the Torch Relay as an
approved social event or class trip. Students were allowed to leave class to observe the relay from
either side of the street. Teachers and administrative officials monitored the students' actions.
Respondent Joseph Frederick, a JDHS senior, was late to school that day. When he arrived, he joined
his friends (all but one of whom were JDHS students) across the street from the school to watch the
event. Not all the students waited patiently. Some became rambunctious, throwing plastic cola
bottles and snowballs and scuffling with their classmates. As the torchbearers and camera crews
passed by, Frederick and his friends unfurled a 14-foot banner bearing the phrase: "BONG HiTS 4
JESUS." The large banner was easily readable by the students on the other side of the street.
Principal Morse immediately crossed the street and demanded that the banner be taken down.
Everyone but Frederick complied. Morse confiscated the banner and told Frederick to report to her
office, where she suspended him for 10 days. Morse later explained that she told Frederick to take
the banner down because she thought it encouraged illegal drug use, in violation of established
school policy. Juneau School Board Policy No. 5520 states: "The Board specifically prohibits any
assembly or public expression that ... advocates the use of substances that are illegal to minors ... ." In
addition, Juneau School Board Policy No. 5850 subjects "[p]upils who participate in approved social
events and class trips" to the same student conduct rules that apply during the regular school
program.
Frederick administratively appealed his suspension, but the Juneau School District Superintendent
upheld it, limiting it to time served (8 days). In a memorandum setting forth his reasons, the
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superintendent determined that Frederick had displayed his banner "in the midst of his fellow
students, during school hours, at a school-sanctioned activity." He further explained that Frederick
"was not disciplined because the principal of the school 'disagreed' with his message, but because his
speech appeared to advocate the use of illegal drugs.” The superintendent continued:
"The common-sense understanding of the phrase 'bong hits' is that it is a reference to a means of
smoking marijuana. Given [Frederick's] inability or unwillingness to express any other credible
meaning for the phrase, I can only agree with the principal and countless others who saw the banner as
advocating the use of illegal drugs. [Frederick's] speech was not political. He was not advocating the
legalization of marijuana or promoting a religious belief. He was displaying a fairly silly message
promoting illegal drug usage in the midst of a school activity, for the benefit of television cameras
covering the Torch Relay. [Frederick's] speech was potentially disruptive to the event and clearly
disruptive of and inconsistent with the school's educational mission to educate students about the
dangers of illegal drugs and to discourage their use."

Relying on our decision in Fraser, the superintendent concluded that the principal's actions were
permissible because Frederick's banner was "speech or action that intrudes upon the work of the
schools." The Juneau School District Board of Education upheld the suspension.
Frederick then filed suit under 42 U. S. C. §1983, alleging that the school board and Morse had
violated his First Amendment rights. He sought declaratory and injunctive relief, unspecified
compensatory damages, punitive damages, and attorney's fees. The District Court granted summary
judgment for the school board and Morse, ruling that they were entitled to qualified immunity and
that they had not infringed Frederick's First Amendment rights. * * *
The Ninth Circuit reversed. Deciding that Frederick acted during a "school-authorized activit[y]," and
"proceed[ing] on the basis that the banner expressed a positive sentiment about marijuana use," the
court nonetheless found a violation of Frederick's First Amendment rights because the school
punished Frederick without demonstrating that his speech gave rise to a "risk of substantial
disruption." The court further concluded that Frederick's right to display his banner was so "clearly
established" that a reasonable principal in Morse's position would have understood that her actions
were unconstitutional, and that Morse was therefore not entitled to qualified immunity.
We granted certiorari on two questions: whether Frederick had a First Amendment right to wield his
banner, and, if so, whether that right was so clearly established that the principal may be held liable
for damages. We resolve the first question against Frederick, and therefore have no occasion to reach
the second.
II
At the outset, we reject Frederick's argument that this is not a school speech case--as has every other
authority to address the question. The event occurred during normal school hours. It was sanctioned
by Principal Morse "as an approved social event or class trip," and the school district's rules
expressly provide that pupils in "approved social events and class trips are subject to district rules
for student conduct." Teachers and administrators were interspersed among the students and
charged with supervising them. The high school band and cheerleaders performed. Frederick,
standing among other JDHS students across the street from the school, directed his banner toward
the school, making it plainly visible to most students. Under these circumstances, we agree with the
superintendent that Frederick cannot "stand in the midst of his fellow students, during school hours,
at a school-sanctioned activity and claim he is not at school." There is some uncertainty at the outer
boundaries as to when courts should apply school-speech precedents, but not on these facts.
III
The message on Frederick's banner is cryptic. It is no doubt offensive to some, perhaps amusing to
others. To still others, it probably means nothing at all. Frederick himself claimed "that the words
were just nonsense meant to attract television cameras." But Principal Morse thought the banner
would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is
plainly a reasonable one.

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As Morse later explained in a declaration, when she saw the sign, she thought that "the reference to a
'bong hit' would be widely understood by high school students and others as referring to smoking
marijuana." She further believed that "display of the banner would be construed by students, District
personnel, parents and others witnessing the display of the banner, as advocating or promoting
illegal drug use"--in violation of school policy.
We agree with Morse. At least two interpretations of the words on the banner demonstrate that the
sign advocated the use of illegal drugs. First, the phrase could be interpreted as an imperative:
"[Take] bong hits ..."--a message equivalent, as Morse explained in her declaration, to "smoke
marijuana" or "use an illegal drug." Alternatively, the phrase could be viewed as celebrating drug use-"bong hits [are a good thing]," or "[we take] bong hits"--and we discern no meaningful distinction
between celebrating illegal drug use in the midst of fellow students and outright advocacy or
promotion.
The pro-drug interpretation of the banner gains further plausibility given the paucity of alternative
meanings the banner might bear. The best Frederick can come up with is that the banner is
"meaningless and funny." The dissent similarly refers to the sign's message as "curious,"
"ambiguous," "nonsense," "ridiculous," "obscure," "silly," "quixotic," and "stupid." Gibberish is surely
a possible interpretation of the words on the banner, but it is not the only one, and dismissing the
banner as meaningless ignores its undeniable reference to illegal drugs.
The dissent mentions Frederick's "credible and uncontradicted explanation for the message--he just
wanted to get on television." But that is a description of Frederick's motive for displaying the banner;
it is not an interpretation of what the banner says. The way Frederick was going to fulfill his ambition
of appearing on television was by unfurling a pro-drug banner at a school event, in the presence of
teachers and fellow students.
Elsewhere in its opinion, the dissent emphasizes the importance of political speech and the need to
foster "national debate about a serious issue," as if to suggest that the banner is political speech. But
not even Frederick argues that the banner conveys any sort of political or religious message.
Contrary to the dissent's suggestion, this is plainly not a case about political debate over the
criminalization of drug use or possession.
IV
The question thus becomes whether a principal may, consistent with the First Amendment, restrict
student speech at a school event, when that speech is reasonably viewed as promoting illegal drug
use. We hold that she may.
In Tinker, this Court made clear that "First Amendment rights, applied in light of the special
characteristics of the school environment, are available to teachers and students." * * * The essential
facts of Tinker are quite stark, implicating concerns at the heart of the First Amendment. The
students sought to engage in political speech, using the armbands to express their "disapproval of the
Vietnam hostilities and their advocacy of a truce, to make their views known, and, by their example,
to influence others to adopt them." Political speech, of course, is "at the core of what the First
Amendment is designed to protect." Virginia v. Black (2003). The only interest the Court discerned
underlying the school's actions was the "mere desire to avoid the discomfort and unpleasantness that
always accompany an unpopular viewpoint," or "an urgent wish to avoid the controversy which
might result from the expression." Tinker. That interest was not enough to justify banning "a silent,
passive expression of opinion, unaccompanied by any disorder or disturbance." Id.
This Court's next student speech case was Fraser.* * * The mode of analysis employed in Fraser is not
entirely clear. The Court was plainly attuned to the content of Fraser's speech, citing the "marked
distinction between the political 'message' of the armbands in Tinker and the sexual content of
[Fraser's] speech." But the Court also reasoned that school boards have the authority to determine
"what manner of speech in the classroom or in school assembly is inappropriate."
We need not resolve this debate to decide this case. For present purposes, it is enough to distill from
Fraser two basic principles. First, Fraser's holding demonstrates that "the constitutional rights of
students in public school are not automatically coextensive with the rights of adults in other
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settings." Had Fraser delivered the same speech in a public forum outside the school context, it would
have been protected. * * * Second, Fraser established that the mode of analysis set forth in Tinker is
not absolute. Whatever approach Fraser employed, it certainly did not conduct the "substantial
disruption" analysis prescribed by Tinker.
Our most recent student speech case, Kuhlmeier, concerned "expressive activities that students,
parents, and members of the public might reasonably perceive to bear the imprimatur of the school."
***
Kuhlmeier does not control this case because no one would reasonably believe that Frederick's
banner bore the school's imprimatur. The case is nevertheless instructive because it confirms both
principles cited above. Kuhlmeier acknowledged that schools may regulate some speech "even
though the government could not censor similar speech outside the school." And, like Fraser, it
confirms that the rule of Tinker is not the only basis for restricting student speech.
* * * Congress has declared that part of a school's job is educating students about the dangers of
illegal drug use. It has provided billions of dollars to support state and local drug-prevention
programs, and required that schools receiving federal funds under the Safe and Drug-Free Schools
and Communities Act of 1994 certify that their drug prevention programs "convey a clear and
consistent message that ... the illegal use of drugs [is] wrong and harmful." 20 U. S. C. §7114(d)(6)
(2000 ed., Supp. IV).
Thousands of school boards throughout the country--including JDHS--have adopted policies aimed at
effectuating this message. Those school boards know that peer pressure is perhaps "the single most
important factor leading schoolchildren to take drugs," and that students are more likely to use drugs
when the norms in school appear to tolerate such behavior. Student speech celebrating illegal drug
use at a school event, in the presence of school administrators and teachers, thus poses a particular
challenge for school officials working to protect those entrusted to their care from the dangers of
drug abuse.
The "special characteristics of the school environment," Tinker, and the governmental interest in
stopping student drug abuse--reflected in the policies of Congress and myriad school boards,
including JDHS--allow schools to restrict student expression that they reasonably regard as
promoting illegal drug use. Tinker warned that schools may not prohibit student speech because of
"undifferentiated fear or apprehension of disturbance" or "a mere desire to avoid the discomfort and
unpleasantness that always accompany an unpopular viewpoint." Id. The danger here is far more
serious and palpable. The particular concern to prevent student drug abuse at issue here, embodied
in established school policy, extends well beyond an abstract desire to avoid controversy.
Petitioners urge us to adopt the broader rule that Frederick's speech is proscribable because it is
plainly "offensive" as that term is used in Fraser. We think this stretches Fraser too far; that case
should not be read to encompass any speech that could fit under some definition of "offensive." After
all, much political and religious speech might be perceived as offensive to some. The concern here is
not that Frederick's speech was offensive, but that it was reasonably viewed as promoting illegal
drug use.
Although accusing this decision of doing "serious violence to the First Amendment" by authorizing
"viewpoint discrimination," the dissent concludes that "it might well be appropriate to tolerate some
targeted viewpoint discrimination in this unique setting." Nor do we understand the dissent to take
the position that schools are required to tolerate student advocacy of illegal drug use at school events,
even if that advocacy falls short of inviting "imminent" lawless action. And even the dissent
recognizes that the issues here are close enough that the principal should not be held liable in
damages, but should instead enjoy qualified immunity for her actions. Stripped of rhetorical
flourishes, then, the debate between the dissent and this opinion is less about constitutional first
principles than about whether Frederick's banner constitutes promotion of illegal drug use. We have
explained our view that it does. The dissent's contrary view on that relatively narrow question hardly
justifies sounding the First Amendment bugle.

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School principals have a difficult job, and a vitally important one. When Frederick suddenly and
unexpectedly unfurled his banner, Morse had to decide to act--or not act--on the spot. It was
reasonable for her to conclude that the banner promoted illegal drug use--in violation of established
school policy--and that failing to act would send a powerful message to the students in her charge,
including Frederick, about how serious the school was about the dangers of illegal drug use. The First
Amendment does not require schools to tolerate at school events student expression that contributes
to those dangers.
The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is
remanded for further proceedings consistent with this opinion.
JUSTICE THOMAS, CONCURRING.
The Court today decides that a public school may prohibit speech advocating illegal drug use. I agree
and therefore join its opinion in full. I write separately to state my view that the standard set forth in
Tinker v. Des Moines Independent Community School Dist. (1969), is without basis in the Constitution.
* * * Today, the Court creates another exception. In doing so, we continue to distance ourselves from
Tinker, but we neither overrule it nor offer an explanation of when it operates and when it does not. I
am afraid that our jurisprudence now says that students have a right to speak in schools except when
they don't--a standard continuously developed through litigation against local schools and their
administrators. In my view, petitioners could prevail for a much simpler reason: As originally
understood, the Constitution does not afford students a right to free speech in public schools. * * *
I join the Court's opinion because it erodes Tinker's hold in the realm of student speech, even though
it does so by adding to the patchwork of exceptions to the Tinker standard. I think the better
approach is to dispense with Tinker altogether, and given the opportunity, I would do so.
JUSTICE ALITO, WITH WHOM JUSTICE KENNEDY JOINS, CONCURRING.
I join the opinion of the Court 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 of speech that can plausibly be interpreted
as commenting on any political or social issue, including speech on issues such as "the wisdom of the
war on drugs or of legalizing marijuana for medicinal use." * * *
JUSTICE STEVENS, WITH WHOM JUSTICE SOUTER AND JUSTICE GINSBURG JOIN, DISSENTING.
A significant fact barely mentioned by the Court sheds a revelatory light on the motives of both the
students and the principal of Juneau-Douglas High School (JDHS). On January 24, 2002, the Olympic
Torch Relay gave those Alaska residents a rare chance to appear on national television. As Joseph
Frederick repeatedly explained, he did not address the curious message--"BONG HiTS 4 JESUS"--to
his fellow students. He just wanted to get the camera crews' attention. Moreover, concern about a
nationwide evaluation of the conduct of the JDHS student body would have justified the principal's
decision to remove an attention-grabbing 14-foot banner, even if it had merely proclaimed "Glaciers
Melt!"
I agree with the Court that the principal should not be held liable for pulling down Frederick's banner.
I would hold, however, that the school's interest in protecting its students from exposure to speech
"reasonably regarded as promoting illegal drug use," cannot justify disciplining Frederick for his
attempt to make an ambiguous statement to a television audience simply because it contained an
oblique reference to drugs. The First Amendment demands more, indeed, much more.
The Court holds otherwise only after laboring to establish two uncontroversial propositions: first,
that the constitutional rights of students in school settings are not coextensive with the rights of
adults, and second, that deterring drug use by schoolchildren is a valid and terribly important
interest. As to the first, I take the Court's point that the message on Frederick's banner is not
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necessarily protected speech, even though it unquestionably would have been had the banner been
unfurled elsewhere. As to the second, I am willing to assume that the Court is correct that the
pressing need to deter drug use supports JDHS's rule prohibiting willful conduct that expressly
"advocates the use of substances that are illegal to minors." But it is a gross non sequitur to draw
from these two unremarkable propositions the remarkable conclusion that the school may suppress
student speech that was never meant to persuade anyone to do anything.
In my judgment, the First Amendment protects student speech if the message itself neither violates a
permissible rule nor expressly advocates conduct that is illegal and harmful to students. This
nonsense banner does neither, and the Court does serious violence to the First Amendment in
upholding--indeed, lauding--a school's decision to punish Frederick for expressing a view with which
it disagreed.
* * * Even if advocacy could somehow be wedged into Frederick's obtuse reference to marijuana, that
advocacy was at best subtle and ambiguous. There is abundant precedent, including another opinion
The Chief Justice announces today, for the proposition that when the "First Amendment is implicated,
the tie goes to the speaker," Federal Election Comm'n v. Wisconsin Right to Life, Inc. (2007) and that
"when it comes to defining what speech qualifies as the functional equivalent of express advocacy ...
we give the benefit of the doubt to speech, not censorship." If this were a close case, the tie would
have to go to Frederick's speech, not to the principal's strained reading of his quixotic message.
Among other things, the Court's ham-handed, categorical approach is deaf to the constitutional
imperative to permit unfettered debate, even among high-school students, about the wisdom of the
war on drugs or of legalizing marijuana for medicinal use. See Tinker. If Frederick's stupid reference
to marijuana can in the Court's view justify censorship, then high school students everywhere could
be forgiven for zipping their mouths about drugs at school lest some "reasonable" observer censor
and then punish them for promoting drugs.
Consider, too, that the school district's rule draws no distinction between alcohol and marijuana, but
applies evenhandedly to all "substances that are illegal to minors." Given the tragic consequences of
teenage alcohol consumption--drinking causes far more fatal accidents than the misuse of marijuana-the school district's interest in deterring teenage alcohol use is at least comparable to its interest in
preventing marijuana use. Under the Court's reasoning, must the First Amendment give way
whenever a school seeks to punish a student for any speech mentioning beer, or indeed anything else
that might be deemed risky to teenagers? While I find it hard to believe the Court would support
punishing Frederick for flying a "WINE SiPS 4 JESUS" banner--which could quite reasonably be
construed either as a protected religious message or as a pro-alcohol message--the breathtaking
sweep of its opinion suggests it would.
Although this case began with a silly, nonsensical banner, it ends with the Court inventing out of
whole cloth a special First Amendment rule permitting the censorship of any student speech that
mentions drugs, at least so long as someone could perceive that speech to contain a latent pro-drug
message. Our First Amendment jurisprudence has identified some categories of expression that are
less deserving of protection than others--fighting words, obscenity, and commercial speech, to name
a few. Rather than reviewing our opinions discussing such categories, I mention two personal
recollections that have no doubt influenced my conclusion that it would be profoundly unwise to
create special rules for speech about drug and alcohol use.
The Vietnam War is remembered today as an unpopular war. During its early stages, however, "the
dominant opinion" that Justice Harlan mentioned in his Tinker dissent regarded opposition to the
war as unpatriotic, if not treason. That dominant opinion strongly supported the prosecution of
several of those who demonstrated in Grant Park during the 1968 Democratic Convention in Chicago
and the vilification of vocal opponents of the war like Julian Bond. In 1965, when the Des Moines
students wore their armbands, the school district's fear that they might "start an argument or cause a
disturbance" was well founded. Tinker. Given that context, there is special force to the Court's
insistence that "our Constitution says we must take that risk; and our history says that it is this sort
of hazardous freedom--this kind of openness--that is the basis of our national strength and of the
independence and vigor of Americans who grow up and live in this relatively permissive, often
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disputatious, society." As we now know, the then-dominant opinion about the Vietnam War was not
etched in stone.
Reaching back still further, the current dominant opinion supporting the war on drugs in general,
and our antimarijuana laws in particular, is reminiscent of the opinion that supported the nationwide
ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as
ordinary articles of commerce, their use was then condemned with the same moral fervor that now
supports the war on drugs. The ensuing change in public opinion occurred much more slowly than
the relatively rapid shift in Americans' views on the Vietnam War, and progressed on a state-by-state
basis over a period of many years. But just as prohibition in the 1920's and early 1930's was secretly
questioned by thousands of otherwise law-abiding patrons of bootleggers and speakeasies, today the
actions of literally millions of otherwise law-abiding users of marijuana, and of the majority of voters
in each of the several States that tolerate medicinal uses of the product, lead me to wonder whether
the fear of disapproval by those in the majority is silencing opponents of the war on drugs. Surely our
national experience with alcohol should make us wary of dampening speech suggesting--however
inarticulately--that it would be better to tax and regulate marijuana than to persevere in a futile
effort to ban its use entirely.
Even in high school, a rule that permits only one point of view to be expressed is less likely to
produce correct answers than the open discussion of countervailing views. Whitney (Brandeis, J.,
concurring); Abrams (Holmes, J., dissenting); Tinker. In the national debate about a serious issue, it is
the expression of the minority's viewpoint that most demands the protection of the First Amendment.
Whatever the better policy may be, a full and frank discussion of the costs and benefits of the attempt
to prohibit the use of marijuana is far wiser than suppression of speech because it is unpopular.
I respectfully dissent.
JUSTICE BREYER, CONCURRING IN THE JUDGMENT IN PART AND DISSENTING IN PART.
This Court need not and should not decide this difficult First Amendment issue on the merits. Rather,
I believe that it should simply hold that qualified immunity bars the student's claim for monetary
damages and say no more. * * *

Notes

1.
The Tinker standard is often called the Tinker “disruption standard,” yet in Tinker the Court
includes in its pronouncement a concern for the rights of other students. For example:
A student's rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria,
or on the playing field, or on the campus during the authorized hours, he may express his opinions,
even on controversial subjects like the conflict in Vietnam, if he does so without "materially and
substantially interfer[ing] with the requirements of appropriate discipline in the operation of the
school" and without colliding with the rights of others. But conduct by the student, in class or out of it,
which for any reason -- whether it stems from time, place, or type of behavior -- materially disrupts
classwork or involves substantial disorder or invasion of the rights of others is, of course, not
immunized by the constitutional guarantee of freedom of speech.

How does attention to the “rights of others” change the constitutional reasoning? Is it important in
Fraser, Hazlewood, or Morse?
2.
How far should Tinker as well as Morse reach “outside” of the school house gates? In
Layshock ex rel. Layshock v. Hermitage Sch. Dist., 650 F.3d 205 (3d Cir. en banc 2011) and J.S. ex rel.
Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915 (3d Cir. en banc 2011), the Third Circuit en banc
considered two panel opinion cases decided the same day on similar facts reaching opposite results.
Both controversies involved students who, while off school premises, used a social networking site - - myspace.com - - - to malign their principals by creating false profiles. The en banc opinions found
that the speech in both of these cases was protected by the First Amendment, but there remained
room for finding that off-campus speech could nevertheless be disciplined under the Tinker standard.
These Third Circuit cases involved student speech directed at school officials, but what about
student-on-student speech that raises the specter of “cyber-bullying”?
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Chapter Six: UNCONSTITUTIONAL
CONDITIONS AND COMPELLED SPEECH
This chapter considers two separate doctrines - - - unconstitutional conditions and compelled (or
coerced) speech - - - concluding with a case that explicitly combines the two doctrines.

I.

Unconstitutional Conditions and Speech

The doctrine of unconstitutional conditions is not limited to the First Amendment. It can arise
whenever the government attaches conditions to funding if those conditions effect the exercise of a
constitutional right. For example, if the government requires a person to be sterilized before she
could collect unemployment benefits, this would be an example of unconstitutional conditions. When
the federal government is involved, doctrine under the Spending Clause, Article I §8 cl. 1, is
implicated. When state or local governments are involved, there may be state constitutional issues.
There are two opposing views of the doctrine of unconstitutional conditions:
•

The most expansive view is that the government cannot impose a condition on funding
unless it could impose that condition directly. In other words, the government could
mandate sterilization as a condition for unemployment benefits unless it could mandate
sterilization generally.

•

The most restrictive view is that the government can impose any condition on funding. In
other words, the “doctrine” of “unconstitutional conditions” does not exist. The government
can subsidize whatever it chooses and people are “free” to take the money or to refuse it.

When freedom of speech is the constitutional right at stake in an unconstitutional conditions case,
the issue is further complicated by questions of whether the government itself is attempting to speak
and whether there are other constitutional considerations.
The major cases on unconstitutional conditions in the First Amendment speech context are Rust v.
Sullivan (1991) and Legal Services Corp. v. Velazquez (2001).

Rust v. Sullivan
500 U.S. 173 (1991)
REHNQUIST, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH WHITE, KENNEDY, SCALIA, AND SOUTER, JJ.,
JOINED. BLACKMUN, J., FILED A DISSENTING OPINION, IN WHICH MARSHALL, J., JOINED; IN PART I OF WHICH O'CONNOR,
J., JOINED; AND IN PARTS II AND III OF WHICH STEVENS, J., JOINED. STEVENS, J., AND O'CONNOR, J., FILED DISSENTING
OPINIONS.
CHIEF JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT.
These cases concern a facial challenge to Department of Health and Human Services (HHS)
regulations which limit the ability of Title X fund recipients to engage in abortion-related activities.
***

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I.
A.
In 1970, Congress enacted Title X of the Public Health Service Act (Act), which provides federal
funding for family-planning services. The Act authorizes the Secretary to “make grants to and enter
into contracts with public or nonprofit private entities to assist in the establishment and operation of
voluntary family planning projects which shall offer a broad range of acceptable and effective family
planning methods and services.” Grants and contracts under Title X must “be made in accordance
with such regulations as the Secretary may promulgate.” Section 1008 of the Act, however, provides
that “[n]one of the funds appropriated under this subchapter shall be used in programs where
abortion is a method of family planning.” That restriction was intended to ensure that Title X funds
would “be used only to support preventive family planning services, population research, infertility
services, and other related medical, informational, and educational activities.”
In 1988, the Secretary promulgated new regulations designed to provide “‘clear and operational
guidance’ to grantees about how to preserve the distinction between Title X programs and abortion
as a method of family planning.” The regulations clarify, through the definition of the term “family
planning,” that Congress intended Title X funds “to be used only to support preventive family
planning services.” (emphasis added). Accordingly, Title X services are limited to “preconceptional
counseling, education, and general reproductive health care,” and expressly exclude “pregnancy care
(including obstetric or prenatal care).” The regulations “focus the emphasis of the Title X program on
its traditional mission: The provision of preventive family planning services specifically designed to
enable individuals to determine the number and spacing of their children, while clarifying that
pregnant women must be referred to appropriate prenatal care services.”
The regulations attach three principal conditions on the grant of federal funds for Title X projects.
First, the regulations specify that a “Title X project may not provide counseling concerning the use of
abortion as a method of family planning or provide referral for abortion as a method of family
planning.” Because Title X is limited to preconceptional services, the program does not furnish
services related to childbirth. Only in the context of a referral out of the Title X program is a pregnant
woman given transitional information. Title X projects must refer every pregnant client “for
appropriate prenatal and/or social services by furnishing a list of available providers that promote
the welfare of mother and unborn child.” The list may not be used indirectly to encourage or promote
abortion, “such as by weighing the list of referrals in favor of health care providers which perform
abortions, by including on the list of referral providers health care providers whose principal
business is the provision of abortions, by excluding available providers who do not provide abortions,
or by ‘steering’ clients to providers who offer abortion as a method of family planning.” The Title X
project is expressly prohibited from referring a pregnant woman to an abortion provider, even upon
specific request. One permissible response to such an inquiry is that “the project does not consider
abortion an appropriate method of family planning and therefore does not counsel or refer for
abortion.”
Second, the regulations broadly prohibit a Title X project from engaging in activities that “encourage,
promote or advocate abortion as a method of family planning.” Forbidden activities include lobbying
for legislation that would increase the availability of abortion as a method of family planning,
developing or disseminating materials advocating abortion as a method of family planning, providing
speakers to promote abortion as a method of family planning, using legal action to make abortion
available in any way as a method of family planning, and paying dues to any group that advocates
abortion as a method of family planning as a substantial part of its activities.
Third, the regulations require that Title X projects be organized so that they are “physically and
financially separate” from prohibited abortion activities. To be deemed physically and financially
separate, “a Title X project must have an objective integrity and independence from prohibited
activities. Mere bookkeeping separation of Title X funds from other monies is not sufficient.” The
regulations provide a list of nonexclusive factors for the Secretary to consider in conducting a caseby-case determination of objective integrity and independence, such as the existence of separate

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accounting records and separate personnel, and the degree of physical separation of the project from
facilities for prohibited activities.
B
[omitted]
II
[omitted]
III
Petitioners contend that the regulations violate the First Amendment by impermissibly
discriminating based on viewpoint because they prohibit “all discussion about abortion as a lawful
option—including counseling, referral, and the provision of neutral and accurate information about
ending a pregnancy—while compelling the clinic or counselor to provide information that promotes
continuing a pregnancy to term.” They assert that the regulations violate the “free speech rights of
private health care organizations that receive Title X funds, of their staff, and of their patients” by
impermissibly imposing “viewpoint-discriminatory conditions on government subsidies” and thus
“penaliz[e] speech funded with non-Title X monies.” Because “Title X continues to fund speech
ancillary to pregnancy testing in a manner that is not evenhanded with respect to views and
information about abortion, it invidiously discriminates on the basis of viewpoint.” Relying on Regan
v. Taxation with Representation of Wash. (1983), and Arkansas Writers' Project, Inc. v. Ragland,
(1987), petitioners also assert that while the Government may place certain conditions on the receipt
of federal subsidies, it may not “discriminate invidiously in its subsidies in such a way as to ‘ai[m] at
the suppression of dangerous ideas.’ ”
There is no question but that the statutory prohibition contained in § 1008 is constitutional. In Maher
v. Roe (1977), we upheld a state welfare regulation under which Medicaid recipients received
payments for services related to childbirth, but not for nontherapeutic abortions. The Court rejected
the claim that this unequal subsidization worked a violation of the Constitution. We held that the
government may “make a value judgment favoring childbirth over abortion, and ... implement that
judgment by the allocation of public funds.” Here the Government is exercising the authority it
possesses under Maher and Harris v. McRae (1980), to subsidize family planning services which will
lead to conception and childbirth and declining to “promote or encourage abortion.” The Government
can, without violating the Constitution, selectively fund a program to encourage certain activities it
believes to be in the public interest, without at the same time funding an alternative program which
seeks to deal with the problem in another way. In so doing, the Government has not discriminated on
the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other. “[A]
legislature's decision not to subsidize the exercise of a fundamental right does not infringe the right.”
“A refusal to fund protected activity, without more, cannot be equated with the imposition of a
‘penalty’ on that activity.” McRae, “There is a basic difference between direct state interference with a
protected activity and state encouragement of an alternative activity consonant with legislative
policy.” Maher.
The challenged regulations implement the statutory prohibition by prohibiting counseling, referral,
and the provision of information regarding abortion as a method of family planning. They are
designed to ensure that the limits of the federal program are observed. The Title X program is
designed not for prenatal care, but to encourage family planning. A doctor who wished to offer
prenatal care to a project patient who became pregnant could properly be prohibited from doing so
because such service is outside the scope of the federally funded program. The regulations
prohibiting abortion counseling and referral are of the same ilk; “no funds appropriated for the
project may be used in programs where abortion is a method of family planning,” and a doctor
employed by the project may be prohibited in the course of his project duties from counseling
abortion or referring for abortion. This is not a case of the Government “suppressing a dangerous
idea,” but of a prohibition on a project grantee or its employees from engaging in activities outside of
the project's scope.

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To hold that the Government unconstitutionally discriminates on the basis of viewpoint when it
chooses to fund a program dedicated to advance certain permissible goals, because the program in
advancing those goals necessarily discourages alternative goals, would render numerous
Government programs constitutionally suspect. When Congress established a National Endowment
for Democracy to encourage other countries to adopt democratic principles, it was not
constitutionally required to fund a program to encourage competing lines of political philosophy
such as communism and fascism. Petitioners' assertions ultimately boil down to the position that if
the government chooses to subsidize one protected right, it must subsidize analogous counterpart
rights. But the Court has soundly rejected that proposition. Within far broader limits than petitioners
are willing to concede, when the Government appropriates public funds to establish a program it is
entitled to define the limits of that program.
We believe that petitioners' reliance upon our decision in Arkansas Writers' Project is misplaced. That
case involved a state sales tax which discriminated between magazines on the basis of their content.
Relying on this fact, and on the fact that the tax “targets a small group within the press,” * * * the
Court held the tax invalid. But we have here not the case of a general law singling out a disfavored
group on the basis of speech content, but a case of the Government refusing to fund activities,
including speech, which are specifically excluded from the scope of the project funded.
Petitioners rely heavily on their claim that the regulations would not, in the circumstance of a
medical emergency, permit a Title X project to refer a woman whose pregnancy places her life in
imminent peril to a provider of abortions or abortion-related services. * * * On their face, we do not
read the regulations to bar abortion referral or counseling in such circumstances. Abortion
counseling as a “method of family planning” is prohibited, and it does not seem that a medically
necessitated abortion in such circumstances would be the equivalent of its use as a “method of family
planning.” * * *
Petitioners also contend that the restrictions on the subsidization of abortion- related speech
contained in the regulations are impermissible because they condition the receipt of a benefit, in
these cases Title X funding, on the relinquishment of a constitutional right, the right to engage in
abortion advocacy and counseling. * * *
[H]ere the Government is not denying a benefit to anyone, but is instead simply insisting that public
funds be spent for the purposes for which they were authorized. The Secretary's regulations do not
force the Title X grantee to give up abortion-related speech; they merely require that the grantee
keep such activities separate and distinct from Title X activities. Title X expressly distinguishes
between a Title X grantee and a Title X project. The grantee, which normally is a health-care
organization, may receive funds from a variety of sources for a variety of purposes. The grantee
receives Title X funds, however, for the specific and limited purpose of establishing and operating a
Title X project. The regulations govern the scope of the Title X project's activities, and leave the
grantee unfettered in its other activities. The Title X grantee can continue to perform abortions,
provide abortion-related services, and engage in abortion advocacy; it simply is required to conduct
those activities through programs that are separate and independent from the project that receives
Title X funds.
In contrast, our “unconstitutional conditions” cases involve situations in which the Government has
placed a condition on the recipient of the subsidy rather than on a particular program or service, thus
effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the
federally funded program. In FCC v. League of Women Voters of Cal. (1984), we invalidated a federal
law providing that noncommercial television and radio stations that receive federal grants may not
“engage in editorializing.” Under that law, a recipient of federal funds was “barred absolutely from all
editorializing” because it “is not able to segregate its activities according to the source of its funding”
and thus “has no way of limiting the use of its federal funds to all noneditorializing activities.” The
effect of the law was that “a noncommercial educational station that receives only 1% of its overall
income from [federal] grants is barred absolutely from all editorializing” and “barred from using
even wholly private funds to finance its editorial activity.” We expressly recognized, however, that
were Congress to permit the recipient stations to “establish ‘affiliate’ organizations which could then
use the station's facilities to editorialize with nonfederal funds, such a statutory mechanism would
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plainly be valid.” Such a scheme would permit the station “to make known its views on matters of
public importance through its nonfederally funded, editorializing affiliate without losing federal
grants for its noneditorializing broadcast activities.”
By requiring that the Title X grantee engage in abortion-related activity separately from activity
receiving federal funding, Congress has, consistent with our teachings in League of Women Voters and
Regan, not denied it the right to engage in abortion-related activities. Congress has merely refused to
fund such activities out of the public fisc, and the Secretary has simply required a certain degree of
separation from the Title X project in order to ensure the integrity of the federally funded program.
The same principles apply to petitioners' claim that the regulations abridge the free speech rights of
the grantee's staff. Individuals who are voluntarily employed for a Title X project must perform their
duties in accordance with the regulation's restrictions on abortion counseling and referral. The
employees remain free, however, to pursue abortion-related activities when they are not acting
under the auspices of the Title X project. The regulations, which govern solely the scope of the Title X
project's activities, do not in any way restrict the activities of those persons acting as private
individuals. The employees' freedom of expression is limited during the time that they actually work
for the project; but this limitation is a consequence of their decision to accept employment in a
project, the scope of which is permissibly restricted by the funding authority.
This is not to suggest that funding by the Government, even when coupled with the freedom of the
fund recipients to speak outside the scope of the Government-funded project, is invariably sufficient
to justify Government control over the content of expression. For example, this Court has recognized
that the existence of a Government “subsidy,” in the form of Government-owned property, does not
justify the restriction of speech in areas that have “been traditionally open to the public for
expressive activity.” Similarly, we have 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 restricted by the vagueness and overbreadth doctrines of the First Amendment. It could be argued
by analogy that traditional relationships such as that between doctor and patient should enjoy
protection under the First Amendment from Government regulation, even when subsidized by the
Government. We need not resolve that question here, however, because the Title X program
regulations do not significantly impinge upon the doctor-patient relationship. Nothing in them
requires a doctor to represent as his own any opinion that he does not in fact hold. Nor is the doctorpatient relationship established by the Title X program sufficiently all encompassing so as to justify
an expectation on the part of the patient of comprehensive medical advice. The program does not
provide post conception medical care, and therefore a doctor's silence with regard to abortion cannot
reasonably be thought to mislead a client into thinking that the doctor does not consider abortion an
appropriate option for her. The doctor is always free to make clear that advice regarding abortion is
simply beyond the scope of the program. In these circumstances, the general rule that the
Government may choose not to subsidize speech applies with full force.
JUSTICE BLACKMUN, WITH WHOM JUSTICE MARSHALL JOINS, WITH WHOM JUSTICE STEVENS JOINS AS TO PARTS II AND
III AND WITH WHOM JUSTICE O’CONNOR JOINS AS TO PART I, DISSENTING.
I.
[omitted]
II.
A.
Until today, the Court never has upheld viewpoint-based suppression of speech simply because that
suppression was a condition upon the acceptance of public funds. Whatever may be the
Government's power to condition the receipt of its largess upon the relinquishment of constitutional
rights, it surely does not extend to a condition that suppresses the recipient's cherished freedom of
speech based solely upon the content or viewpoint of that speech. This rule is a sound one, for, as the
Court often has noted: “ ‘A regulation of speech that is motivated by nothing more than a desire to
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curtail expression of a particular point of view on controversial issues of general interest is the
purest example of a “law ... abridging the freedom of speech, or of the press.”” League of Women
Voters. “[A]bove all else, the First Amendment means that government has no power to restrict
expression because of its message, its ideas, its subject matter, or its content.”
It cannot seriously be disputed that the counseling and referral provisions at issue in the present
cases constitute content-based regulation of speech. Title X grantees may provide counseling and
referral regarding any of a wide range of family planning and other topics, save abortion.
The regulations are also clearly viewpoint based. While suppressing speech favorable to abortion
with one hand, the Secretary compels antiabortion speech with the other. For example, the
Department of Health and Human Services' own description of the regulations makes plain that “Title
X projects are required to facilitate access to prenatal care and social services, including adoption
services, that might be needed by the pregnant client to promote her well-being and that of her child,
while making it abundantly clear that the project is not permitted to promote abortion by facilitating
access to abortion through the referral process.” (emphasis added).
Moreover, the regulations command that a project refer for prenatal care each woman diagnosed as
pregnant, irrespective of the woman's expressed desire to continue or terminate her pregnancy. If a
client asks directly about abortion, a Title X physician or counselor is required to say, in essence, that
the project does not consider abortion to be an appropriate method of family planning. Both
requirements are antithetical to the First Amendment. See Wooley v. Maynard (1977) [Chapter 6].
The regulations pertaining to “advocacy” are even more explicitly viewpoint based. These provide: “A
Title X project may not encourage, promote or advocate abortion as a method of family planning.”
(emphasis added). They explain: “This requirement prohibits actions to assist women to obtain
abortions or increase the availability or accessibility of abortion for family planning purposes.”
(emphasis added). The regulations do not, however, proscribe or even regulate anti-abortion
advocacy. These are clearly restrictions aimed at the suppression of “dangerous ideas.”
Remarkably, the majority concludes that “the Government has not discriminated on the basis of
viewpoint; it has merely chosen to fund one activity to the exclusion of the other.” But the majority's
claim that the regulations merely limit a Title X project's speech to preventive or preconceptional
services, rings hollow in light of the broad range of nonpreventive services that the regulations
authorize Title X projects to provide. By refusing to fund those family-planning projects that advocate
abortion because they advocate abortion, the Government plainly has targeted a particular viewpoint.
The majority's reliance on the fact that the regulations pertain solely to funding decisions simply
begs the question. Clearly, there are some bases upon which government may not rest its decision to
fund or not to fund. For example, the Members of the majority surely would agree that government
may not base its decision to support an activity upon considerations of race. As demonstrated above,
our cases make clear that ideological viewpoint is a similarly repugnant ground upon which to base
funding decisions.
The advocacy regulations at issue here, however, are not limited to lobbying but extend to all speech
having the effect of encouraging, promoting, or advocating abortion as a method of family planning.
Thus, in addition to their impermissible focus upon the viewpoint of regulated speech, the provisions
intrude upon a wide range of communicative conduct, including the very words spoken to a woman
by her physician. By manipulating the content of the doctor-patient dialogue, the regulations upheld
today force each of the petitioners “to be an instrument for fostering public adherence to an
ideological point of view [he or she] finds unacceptable.” Wooley v. Maynard. This type of intrusive,
ideologically based regulation of speech goes far beyond the narrow lobbying limitations approved in
Regan and cannot be justified simply because it is a condition upon the receipt of a governmental
benefit.
B
The Court concludes that the challenged regulations do not violate the First Amendment rights of
Title X staff members because any limitation of the employees' freedom of expression is simply a
consequence of their decision to accept employment at a federally funded project. But it has never
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been sufficient to justify an otherwise unconstitutional condition upon public employment that the
employee may escape the condition by relinquishing his or her job. It is beyond question “that a
government may not require an individual to relinquish rights guaranteed him by the First
Amendment as a condition of public employment.”
The majority attempts to circumvent this principle by emphasizing that Title X physicians and
counselors “remain free ... to pursue abortion-related activities when they are not acting under the
auspices of the Title X project.” “The regulations,” the majority explains, “do not in any way restrict
the activities of those persons acting as private individuals.” Under the majority's reasoning, the First
Amendment could be read to tolerate any governmental restriction upon an employee's speech so
long as that restriction is limited to the funded workplace. This is a dangerous proposition, and one
the Court has rightly rejected in the past.
In the cases at bar, the speaker's interest in the communication is both clear and vital. In addressing
the family-planning needs of their clients, the physicians and counselors who staff Title X projects
seek to provide them with the full range of information and options regarding their health and
reproductive freedom. Indeed, the legitimate expectations of the patient and the ethical
responsibilities of the medical profession demand no less. “The patient's right of self-decision can be
effectively exercised only if the patient possesses enough information to enable an intelligent choice....
The physician has an ethical obligation to help the patient make choices from among the therapeutic
alternatives consistent with good medical practice.” * * * When a client becomes pregnant, the full
range of therapeutic alternatives includes the abortion option, and Title X counselors' interest in
providing this information is compelling.
The Government's articulated interest in distorting the doctor-patient dialogue—ensuring that
federal funds are not spent for a purpose outside the scope of the program—falls far short of that
necessary to justify the suppression of truthful information and professional medical opinion
regarding constitutionally protected conduct. Moreover, the offending regulation is not narrowly
tailored to serve this interest. For example, the governmental interest at stake could be served by
imposing rigorous bookkeeping standards to ensure financial separation or adopting content-neutral
rules for the balanced dissemination of family-planning and health information. By failing to balance
or even to consider the free speech interests claimed by Title X physicians against the Government's
asserted interest in suppressing the speech, the Court falters in its duty to implement the protection
that the First Amendment clearly provides for this important message.
C
Finally, it is of no small significance that the speech the Secretary would suppress is truthful
information regarding constitutionally protected conduct of vital importance to the listener. One can
imagine no legitimate governmental interest that might be served by suppressing such information.
Concededly, the abortion debate is among the most divisive and contentious issues that our Nation
has faced in recent years. “But freedom to differ is not limited to things that do not matter much. That
would be a mere shadow of freedom. The test of its substance is the right to differ as to things that
touch the heart of the existing order.” West Virginia Bd. of Ed. v. Barnette (1943).

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Legal Services Corporation v. Velazquez
531 U.S. 533 (2001)
KENNEDY, J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEVENS, SOUTER, GINSBURG, AND BREYER, JJ.,
JOINED. SCALIA, J., FILED A DISSENTING OPINION IN WHICH REHNQUIST, C. J., AND O’CONNOR AND THOMAS, JJ., JOINED.
JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT.
In 1974, Congress enacted the Legal Services Corporation Act. The Act establishes the Legal Services
Corporation (LSC) as a District of Columbia nonprofit corporation. LSC’s mission is to distribute
funds appropriated by Congress to eligible local grantee organizations “for the purpose of providing
financial support for legal assistance in noncriminal proceedings or matters to persons financially
unable to afford legal assistance.”
LSC grantees consist of hundreds of local organizations governed, in the typical case, by local boards
of directors. In many instances the grantees are funded by a combination of LSC funds and other
public or private sources. The grantee organizations hire and supervise lawyers to provide free legal
assistance to indigent clients. Each year LSC appropriates funds to grantees or recipients that hire
and supervise lawyers for various professional activities, including representation of indigent clients
seeking welfare benefits.
This suit requires us to decide whether one of the conditions imposed by Congress on the use of LSC
funds violates the First Amendment rights of LSC grantees and their clients. For purposes of our
decision, the restriction, to be quoted in further detail, prohibits legal representation funded by
recipients of LSC moneys if the representation involves an effort to amend or otherwise challenge
existing welfare law. As interpreted by the LSC and by the Government, the restriction prevents an
attorney from arguing to a court that a state statute conflicts with a federal statute or that either a
state or federal statute by its terms or in its application is violative of the United States Constitution.
I.
From the inception of the LSC, Congress has placed restrictions on its use of funds. For instance, the
LSC Act prohibits recipients from making available LSC funds, program personnel, or equipment to
any political party, to any political campaign, or for use in “advocating or opposing any ballot
measures.” The Act further proscribes use of funds in most criminal proceedings and in litigation
involving non- therapeutic abortions, secondary school desegregation, military desertion, or
violations of the Selective Service statute. Fund recipients are barred from bringing class-action suits
unless express approval is obtained from LSC.
The restrictions at issue were part of a compromise set of restrictions enacted in the Omnibus
Consolidated Rescissions and Appropriations Act of 1996 (1996 Act), and continued in each
subsequent annual appropriations Act. The relevant portion of §504(a)(16) prohibits funding of any
organization
“that initiates legal representation or participates in any other way, in litigation, lobbying, or
rulemaking, involving an effort to reform a Federal or State welfare system, except that this paragraph
shall not be construed to preclude a recipient from representing an individual eligible client who is
seeking specific relief from a welfare agency if such relief does not involve an effort to amend or
otherwise challenge existing law in effect on the date of the initiation of the representation.”

The prohibitions apply to all of the activities of an LSC grantee, including those paid for by non-LSC
funds. We are concerned with the statutory provision which excludes LSC representation in cases
which “involve an effort to amend or otherwise challenge existing law in effect on the date of the
initiation of the representation.”
In 1997, LSC adopted final regulations clarifying §504(a)(16). LSC interpreted the statutory
provision to allow indigent clients to challenge welfare agency determinations of benefit ineligibility
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under interpretations of existing law. For example, an LSC grantee could represent a welfare claimant
who argued that an agency made an erroneous factual determination or that an agency misread or
misapplied a term contained in an existing welfare statute. According to LSC, a grantee in that
position could argue as well that an agency policy violated existing law. Under LSC’s interpretation,
however, grantees could not accept representations designed to change welfare laws, much less
argue against the constitutionality or statutory validity of those laws. Even in cases where
constitutional or statutory challenges became apparent after representation was well under way, LSC
advised that its attorneys must withdraw.
II
The United States and LSC rely on Rust v. Sullivan (1991), as support for the LSC program restrictions.
In Rust, Congress established program clinics to pro- vide subsidies for doctors to advise patients on
a variety of family planning topics. Congress did not consider abortion to be within its family
planning objectives, however, and it forbade doctors employed by the program from discussing
abortion with their patients. * * *
We upheld the law, reasoning that Congress had not discriminated against viewpoints on abortion,
but had “merely chosen to fund one activity to the exclusion of the other.” The restrictions were
considered necessary “to ensure that the limits of the federal program [were] observed.” Title X did
not single out a particular idea for suppression because it was dangerous or disfavored; rather,
Congress prohibited Title X doctors from counseling that was outside the scope of the project.
The Court in Rust did not place explicit reliance on the rationale that the counseling activities of the
doctors under Title X amounted to governmental speech; when interpreting the holding in later cases,
however, we have explained Rust on this understanding. We have said that viewpoint-based funding
decisions can be sustained in instances in which the government is itself the speaker, see Board of
Regents of Univ. of Wis. System v. Southworth (2000), or instances, like Rust, in which the government
“used private speakers to transmit specific information pertaining to its own program.” Rosenberger
v. Rector and Visitors of Univ. of Va. (1995). As we said in Rosenberger, “[w]hen the government
disburses public funds to private entities to convey a govern- mental message, it may take legitimate
and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.” The
latitude which may exist for restrictions on speech where the government’s own message is being
delivered flows in part from our observation that, “[w]hen the government speaks, for instance to
promote its own policies or to advance a particular idea, it is, in the end, accountable to the electorate
and the political process for its advocacy. If the citizenry objects, newly elected officials later could
espouse some different or contrary position.” Board of Regents of Univ. of Wis. System v. Southworth
(2000).
Neither the latitude for government speech nor its rationale applies to subsidies for private speech in
every instance, however. As we have pointed out, “[i]t does not follow . . . that viewpoint-based
restrictions are proper when the [government] does not itself speak or subsidize transmittal of a
message it favors but instead expends funds to encourage a diversity of views from private speakers.”
Although the LSC program differs from the program at issue in Rosenberger in that its purpose is not
to “encourage a diversity of views,” the salient point is that, like the program in Rosenberger, the LSC
program was designed to facilitate private speech, not to promote a governmental message. Congress
funded LSC grantees to provide attorneys to represent the interests of indigent clients. In the specific
context of §504(a)(16) suits for benefits, an LSC-funded attorney speaks on the behalf of the client in
a claim against the government for welfare benefits. The lawyer is not the government’s speaker. The
attorney defending the decision to deny benefits will deliver the government’s message in the
litigation. The LSC lawyer, however, speaks on the behalf of his or her private, indigent client.
The Government has designed this program to use the legal profession and the established Judiciary
of the States and the Federal Government to accomplish its end of assisting welfare claimants in
determination or receipt of their benefits. The advice from the attorney to the client and the
advocacy by the attorney to the courts cannot be classified as governmental speech even under a
generous understanding of the concept. In this vital respect this suit is distinguishable from Rust.

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The private nature of the speech involved here, and the extent of LSC’s regulation of private
expression, are indicated further by the circumstance that the Government seeks to use an existing
medium of expression and to control it, in a class of cases, in ways which distort its usual functioning.
Where the government uses or attempts to regulate a particular medium, we have been informed by
its accepted usage in determining whether a particular restriction on speech is necessary for the
program’s purposes and limitations. * * *
When the government creates a limited forum for speech, certain restrictions may be necessary to
define the limits and purposes of the program. The same is true when the government establishes a
subsidy for specified ends. Rust v. Sullivan (1991). As this suit involves a subsidy, limited forum cases
* * * may not be controlling in a strict sense, yet they do provide some instruction. Here the program
presumes that private, non-governmental speech is necessary, and a substantial restriction is placed
upon that speech. At oral argument and in its briefs the LSC advised us that lawyers funded in the
Government program may not undertake representation in suits for benefits if they must advise
clients respecting the questionable validity of a statute which defines benefit eligibility and the
payment structure. The limitation forecloses advice or legal assistance to question the validity of
statutes under the Constitution of the United States. It extends further, it must be noted, so that state
statutes inconsistent with federal law under the Supremacy Clause may be neither challenged nor
questioned.
By providing subsidies to LSC, the Government seeks to facilitate suits for benefits by using the state
and federal courts and the independent bar on which those courts depend for the proper
performance of their duties and responsibilities. Restricting LSC attorneys in advising their clients
and in presenting arguments and analyses to the courts distorts the legal system by altering the
traditional role of the attorneys in much the same way broadcast systems or student publication
networks were changed in the limited forum cases we have cited. Just as government in those cases
could not elect to use a broadcasting network or a college publication structure in a regime which
prohibits speech necessary to the proper functioning of those systems, it may not design a subsidy to
effect this serious and fundamental restriction on advocacy of attorneys and the functioning of the
judiciary.
LSC has advised us, furthermore, that upon determining a question of statutory validity is present in
any anticipated or pending case or controversy, the LSC-funded attorney must cease the
representation at once. This is true whether the validity issue becomes apparent during initial
attorney- client consultations or in the midst of litigation proceedings. A disturbing example of the
restriction was discussed during oral argument before the Court. It is well understood that when
there are two reasonable constructions for a statute, yet one raises a constitutional question, the
Court should prefer the interpretation which avoids the constitutional issue. [Ashwander]. Yet, as the
LSC advised the Court, if, during litigation, a judge were to ask an LSC attorney whether there was a
constitutional concern, the LSC attorney simply could not answer.
Interpretation of the law and the Constitution is the primary mission of the judiciary when it acts
within the sphere of its authority to resolve a case or controversy. Marbury v. Madison, 1 Cranch 137,
177 (1803) (“It is emphatically the province and the duty of the judicial department to say what the
law is”). An informed, independent judiciary presumes an informed, independent bar. Under §
504(a)(16), however, cases would be presented by LSC attorneys who could not advise the courts of
serious questions of statutory validity. The disability is inconsistent with the proposition that
attorneys should present all the reasonable and well-grounded arguments necessary for proper
resolution of the case. By seeking to prohibit the analysis of certain legal issues and to truncate
presentation to the courts, the enactment under review prohibits speech and expression upon which
courts must depend for the proper exercise of the judicial power. Congress cannot wrest the law
from the Constitution which is its source. “Those then who controvert the principle that the
constitution is to be considered, in court, as a paramount law, are reduced to the necessity of
maintaining that courts must close their eyes on the constitution, and see only the law.”
The restriction imposed by the statute here threatens severe impairment of the judicial function.
Section 504(a)(16) sifts out cases presenting constitutional challenges in order to insulate the
Government’s laws from judicial inquiry. If the restriction on speech and legal advice were to stand,
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the result would be two tiers of cases. In cases where LSC counsel were attorneys of record, there
would be lingering doubt whether the truncated representation had resulted in complete analysis of
the case, full advice to the client, and proper presentation to the court. The courts and the public
would come to question the adequacy and fairness of professional representations when the attorney,
either consciously to comply with this statute or unconsciously to continue the representation
despite the statute, avoided all reference to questions of statutory validity and constitutional
authority. A scheme so inconsistent with accepted separation-of-powers principles is an insufficient
basis to sustain or uphold the restriction on speech.
It is no answer to say the restriction on speech is harmless because, under LSC’s interpretation of the
Act, its attorneys can withdraw. This misses the point. The statute is an attempt to draw lines around
the LSC program to exclude from litigation those arguments and theories Congress finds
unacceptable but which by their nature are within the province of the courts to consider.
The restriction on speech is even more problematic because in cases where the attorney withdraws
from a representation, the client is unlikely to find other counsel. The explicit premise for providing
LSC attorneys is the necessity to make available representation “to persons financially unable to
afford legal assistance.” There often will be no alternative source for the client to receive vital
information respecting constitutional and statutory rights bearing upon claimed benefits. Thus, with
respect to the litigation services Congress has funded, there is no alternative channel for expression
of the advocacy Congress seeks to restrict. This is in stark contrast to Rust. There, a patient could
receive the approved Title X family planning counseling funded by the Government and later could
consult an affiliate or independent organization to receive abortion counseling. Unlike indigent
clients who seek LSC representation, the patient in Rust was not required to forfeit the Governmentfunded advice when she also received abortion counseling through alternative channels. Because LSC
attorneys must withdraw whenever a question of a welfare statute’s validity arises, an individual
could not obtain joint representation so that the constitutional challenge would be presented by a
non-LSC attorney, and other, permitted, arguments advanced by LSC counsel.
Finally, LSC and the Government maintain that §504(a)(16) is necessary to define the scope and
contours of the federal program, a condition that ensures funds can be spent for those cases most
immediate to congressional concern. In support of this contention, they suggest the challenged
limitation takes into account the nature of the grantees’ activities and provides limited congressional
funds for the provision of simple suits for benefits. In petitioners’ view, the restriction operates
neither to maintain the current welfare system nor insulate it from attack; rather, it helps the current
welfare system function in a more efficient and fair manner by removing from the program complex
challenges to existing welfare laws.
The effect of the restriction, however, is to prohibit advice or argumentation that existing welfare
laws are unconstitutional or unlawful. Congress cannot recast a condition on funding as a mere
definition of its program in every case, lest the First Amendment be reduced to a simple semantic
exercise. Here, notwithstanding Congress’ purpose to confine and limit its program, the restriction
operates to insulate current welfare laws from constitutional scrutiny and certain other legal
challenges, a condition implicating central First Amendment concerns. In no lawsuit funded by the
Government can the LSC attorney, speaking on behalf of a private client, challenge existing welfare
laws. As a result, arguments by indigent clients that a welfare statute is unlawful or unconstitutional
cannot be expressed in this Government- funded program for petitioning the courts, even though the
program was created for litigation involving welfare benefits, and even though the ordinary course of
litigation involves the expression of theories and postulates on both, or multiple, sides of an issue.
It is fundamental that the First Amendment “‘was fashioned to assure unfettered interchange of ideas
for the bringing about of political and social changes desired by the people.’” New York Times Co. v.
Sullivan (1964) (quoting Roth v. United States (1957)). There can be little doubt that the LSC Act
funds constitutionally protected expression; and in the context of this statute there is no
programmatic message of the kind recognized in Rust and which sufficed there to allow the
Government to specify the advice deemed necessary for its legitimate objectives. This serves to
distinguish §504(a)(16) from any of the Title X program restrictions upheld in Rust, and to place it
beyond any congressional funding condition approved in the past by this Court.
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Congress was not required to fund an LSC attorney to represent indigent clients; and when it did so,
it was not required to fund the whole range of legal representations or relationships. The LSC and the
United States, however, in effect ask us to permit Congress to define the scope of the litigation it
funds to exclude certain vital theories and ideas. The attempted restriction is designed to insulate the
Government’s interpretation of the Constitution from judicial challenge. The Constitution does not
permit the Government to confine litigants and their attorneys in this manner. We must be vigilant
when Congress imposes rules and conditions which in effect insulate its own laws from legitimate
judicial challenge. Where private speech is involved, even Congress’ antecedent funding decision
cannot be aimed at the suppression of ideas thought inimical to the Government’s own interest.
For the reasons we have set forth, the funding condition is invalid. * * * The judgment of the Court of
Appeals is affirmed.

JUSTICE SCALIA, WITH WHOM THE CHIEF JUSTICE, JUSTICE O’CONNOR, AND JUSTICE THOMAS JOIN, DISSENTING.
Section 504(a)(16) of the Omnibus Consolidated Rescissions and Appropriations Act of 1996
(Appropriations Act) defines the scope of a federal spending program. It does not directly regulate
speech, and it neither establishes a public forum nor discriminates on the basis of viewpoint. The
Court agrees with all this, yet applies a novel and unsupportable interpretation of our public-forum
precedents to declare §504(a)(16) facially unconstitutional. This holding not only has no foundation
in our jurisprudence; it is flatly contradicted by a recent decision that is on all fours with the present
cases. Having found the limitation upon the spending program unconstitutional, the Court then
declines to consider the question of severability, allowing a judgment to stand that lets the program
go forward under a version of the statute Congress never enacted. I respectfully dissent from both
aspects of the judgment.
I
[omitted description of LSC Act]
II
The LSC Act is a federal subsidy program, not a federal regulatory program, and “[t]here is a basic
difference between [the two].” Maher v. Roe (1977). Regulations directly restrict speech; subsidies do
not. Subsidies, it is true, may indirectly abridge speech, but only if the funding scheme is
“‘manipulated’ to have a ‘coercive effect’” on those who do not hold the subsidized position. Proving
unconstitutional coercion is difficult enough when the spending program has universal coverage and
excludes only certain speech—such as a tax exemption scheme excluding lobbying expenses. The
Court has found such programs un- constitutional only when the exclusion was “aimed at the
suppression of dangerous ideas.” Proving the requisite coercion is harder still when a spending
program is not universal but limited, providing benefits to a restricted number of recipients, see Rust
v. Sullivan. The Court has found such selective spending unconstitutionally coercive only once, when
the government created a public forum with the spending program but then discriminated in
distributing funding within the forum on the basis of view-point. When the limited spending program
does not create a public forum, proving coercion is virtually impossible, because simply denying a
subsidy “does not ‘coerce’ belief,” and because the criterion of unconstitutionality is whether denial
of the subsidy threatens “to drive certain ideas or viewpoints from the marketplace.” Absent such a
threat, “the Government may allocate . . . funding according to criteria that would be impermissible
were direct regulation of speech or a criminal penalty at stake.”
In Rust v. Sullivan, the Court applied these principles to a statutory scheme that is in all relevant
respects indistinguishable from §504(a)(16). The statute in Rust authorized grants for the provision
of family planning services, but provided that “[n]one of the funds . . . shall be used in programs
where abortion is a method of family planning.” Valid regulations implementing the statute required
funding recipients to refer pregnant clients “for appropriate prenatal . . . services by furnishing a list
of avail- able providers that promote the welfare of mother and unborn child,” but forbade them to
refer a pregnant woman specifically to an abortion provider, even upon request. We rejected a First
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Amendment free-speech challenge to the funding scheme, explaining that “[t]he Government can,
without violating the Constitution, selectively fund a program to encourage certain activities it
believes to be in the public interest, without at the same time funding an alternative program which
seeks to deal with the problem another way.” This was not, we said, the type of “discriminat[ion] on
the basis of viewpoint” that triggers strict scrutiny, because the “‘decision not to subsidize the
exercise of a fundamental right does not infringe the right.’”
The same is true here. The LSC Act, like the scheme in Rust, does not create a public forum. Far from
encouraging a diversity of views, it has always, as the Court accurately states, “placed restrictions on
its use of funds.” Nor does §504(a)(16) discriminate on the basis of viewpoint, since it funds neither
challenges to nor defenses of existing welfare law. The provision simply declines to subsidize a
certain class of litigation, and under Rust that decision “does not infringe the right” to bring such
litigation. The Court’s repeated claims that § 504(a)(16) “restricts” and “prohibits” speech, and
“insulates” laws from judicial review, are simply baseless. No litigant who, in the absence of LSC
funding, would bring a suit challenging existing welfare law is deterred from doing so by §504(a)(16).
Rust thus controls these cases and compels the conclusion that §504(a)(16) is constitutional.
The Court contends that Rust is different because the program at issue subsidized government
speech, while the LSC funds private speech. This is so unpersuasive it hardly needs response. If the
private doctors’ confidential advice to their patients at issue in Rust constituted “government speech,”
it is hard to imagine what subsidized speech would not be government speech. Moreover, the
majority’s contention that the subsidized speech in these cases is not government speech because the
lawyers have a professional obligation to represent the interests of their clients founders on the
reality that the doctors in Rust had a professional obligation to serve the interests of their patients —
which at the time of Rust we had held to be highly relevant to the permissible scope of federal
regulation. Even respondents agree that “the true speaker in Rust was not the government, but a
doctor.”
The Court further asserts that these cases are different from Rust because the welfare funding
restriction “seeks to use an existing medium of expression and to control it . . . in ways which distort
its usual functioning.” This is wrong on both the facts and the law. It is wrong on the law because
there is utterly no precedent for the novel and facially implausible proposition that the First
Amendment has anything to do with government funding that—though it does not actually abridge
anyone’s speech—“distorts an existing medium of expression.” None of the three cases cited by the
Court mentions such an odd principle. * * *
The Court’s “nondistortion” principle is also wrong on the facts, since there is no basis for believing
that §504(a)(16), by causing “cases [to] be presented by LSC attorneys who [can]not advise the
courts of serious questions of statutory validity,” will distort the operation of the courts. It may well
be that the bar of §504(a)(16) will cause LSC-funded attorneys to decline or to withdraw from cases
that involve statutory validity. But that means at most that fewer statutory challenges to welfare laws
will be presented to the courts because of the unavailability of free legal services for that purpose. So
what? The same result would ensue from excluding LSC-funded lawyers from welfare litigation
entirely. It is not the mandated, nondistortable function of the courts to inquire into all “serious
questions of statutory validity” in all cases. Courts must consider only those questions of statutory
validity that are presented by litigants, and if the Government chooses not to subsidize the
presentation of some such questions, that in no way “distorts” the courts’ role.
The only conceivable argument that can be made for distinguishing Rust is that there even patients
who wished to receive abortion counseling could receive the nonabortion services that the
Government-funded clinic offered, whereas here some potential LSC clients who wish to receive
representation on a benefits claim that does not challenge the statutes will be unable to do so
because their cases raise a reform claim that an LSC lawyer may not present. This difference, of
course, is required by the same ethical canons that the Court elsewhere does not wish to distort.
Rather than sponsor “truncated representation,” Congress chose to subsidize only those cases in
which the attorneys it subsidized could work freely. And it is impossible to see how this difference
from Rust has any bearing upon the First Amendment question, which, to repeat, is whether the
funding scheme is “‘manipulated’ to have a ‘coercive effect’” on those who do not hold the subsidized
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position. It could be claimed to have such an effect if the client in a case ineligible for LSC
representation could eliminate the ineligibility by waiving the claim that the statute is invalid; but he
cannot. No conceivable coercive effect exists.
This has been a very long discussion to make a point that is embarrassingly simple: The LSC subsidy
neither prevents anyone from speaking nor coerces anyone to change speech, and is
indistinguishable in all relevant respects from the subsidy upheld in Rust v. Sullivan. There is no
legitimate basis for declaring § 504(a)(16) facially unconstitutional.

Notes

1.
Rust and Velazquez reach opposite conclusions regarding the constitutionality of conditions
placed on speech of medical and legal actors. Is the difference simply between that of doctors and
lawyers? Is the distinguishing of Rust in the majority opinion of Velazquez convincing?
2.
The majority in Velazquez cites Marbury v. Madison. How does this support the Court’s
conclusion?
3.
In National Endowment for Arts v. Finley, 524 U. S. 569 (1998), cited in Velazquez, the Court
upheld the constitutionality of a condition requiring “taking into consideration general standards of
decency and respect for the diverse beliefs and values of the American public” in the award of
prestigious National Endowment for the Arts (NEA) grants to artists. Only Justice Souter dissented,
concluding that such a requirement, even in the context of funding, was “viewpoint discrimination.”
The Court’s opinion, authored by Justice O’Connor, stated:
as we held in Rust, Congress may “selectively fund a program to encourage certain activities it believes
to be in the public interest, without at the same time funding an alternative program which seeks to
deal with the problem in another way.” In doing so, “the Government has not discriminated on the
basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other.”

Are there distinctions among the purposes of the funding - - - abortion services in Rust; legal services
in Velazquez; and individual artist grants in Finley - - - that you would draw? How about grants for
computers in public libraries? See United States v. American Library Ass'n, Inc., 539 U.S. 194 (2003)
(upholding provision of Children's Internet Protection Act (CIPA), which required public libraries to
use Internet filters as condition for receipt of federal funds). Further discussion of Finley and
American Library Ass’n is in Chapter 10.

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II.

Compelled Speech

This section considers First Amendment challenges to coerced or compelled speech. It begins with
the foundational cases of West Virginia Board of Education v. Barnette and Wooley v. Maynard.
The second subsection discusses the problems of compelled speech when mandatory dues and fees
are used for organizational speech that individuals within the organization do not support.
The third and final subsection involves anti-discrimination laws that would require an organization
to accept persons (and their speech) which it believes undermines its own speech.

A.

Foundational Cases of Compelled Speech

West Virginia Board of Education v. Barnette
319 U.S. 624 (1943)
JACKSON, J., FOR THE COURT. BLACK, J. AND DOUGLAS, J., CONCURRING. MURPHY, J., CONCURRING. ROBERTS, J. AND
REED, J., DISSENTING. FRANKFURTER, J., DISSENTING WITH OPINION.
MR. JUSTICE JACKSON DELIVERED THE OPINION OF THE COURT.
Following the decision by this Court on June 3, 1940, in Minersville School District v. Gobitis, the West
Virginia legislature amended its statutes to require all schools therein to conduct courses of
instruction in history, civics, and in the Constitutions of the United States and of the State "for the
purpose of teaching, fostering and perpetuating the ideals, principles and spirit of Americanism, and
increasing the knowledge of the organization and machinery of the government." Appellant Board of
Education was directed, with advice of the State Superintendent of Schools, to "prescribe the courses
of study covering these subjects" for public schools. * * *
The Board of Education on January 9, 1942, adopted a resolution containing recitals taken largely
from the Court's Gobitis opinion and ordering that the salute to the flag become "a regular part of the
program of activities in the public schools," that all teachers and pupils "shall be required to
participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal
to salute the Flag be regarded as an act of insubordination, and shall be dealt with accordingly."
The resolution originally required the "commonly accepted salute to the Flag" which it defined.
Objections to the salute as "being too much like Hitler's" were raised. * * * Some modification appears
to have been made in deference to these objections, but no concession was made to Jehovah's
Witnesses. What is now required is the "stiff-arm" salute, the saluter to keep the right hand raised
with palm turned up while the following is repeated: "I pledge allegiance to the Flag of the United
States of America and to the Republic for which it stands; one Nation, indivisible, with liberty and
justice for all."
Failure to conform is "insubordination" dealt with by expulsion. Readmission is denied by statute
until compliance. Meanwhile the expelled child is "unlawfully absent" and may be proceeded against
as a delinquent. His parents or guardians are liable to prosecution, and if convicted are subject to fine
not exceeding $50 and jail term not exceeding thirty days.
Appellees, citizens of the United States and of West Virginia, brought suit in the United States District
Court for themselves and others similarly situated asking its injunction to restrain enforcement of
these laws and regulations against Jehovah's Witnesses. The Witnesses are an unincorporated body
teaching that the obligation imposed by law of God is superior to that of laws enacted by temporal
government. Their religious beliefs include a literal version of Exodus, Chapter 20, verses 4 and 5,
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which says: "Thou shalt not make unto thee any graven image, or any likeness of anything that is in
heaven above, or that is in the earth beneath, or that is in the water under the earth; thou shalt not
bow down thyself to them nor serve them." They consider that the flag is an "image" within this
command. For this reason they refuse to salute it.
This case calls upon us to reconsider a precedent decision, as the Court throughout its history often
has been required to do. Before turning to the Gobitis case, however, it is desirable to notice certain
characteristics by which this controversy is distinguished.
The freedom asserted by these appellees does not bring them into collision with rights asserted by
any other individual. It is such conflicts which most frequently require intervention of the State to
determine where the rights of one end and those of another begin. But the refusal of these persons to
participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any
question in this case that their behavior is peaceable and orderly. The sole conflict is between
authority and rights of the individual. The State asserts power to condition access to public education
on making a prescribed sign and profession and at the same time to coerce attendance by punishing
both parent and child. The latter stand on a right of self-determination in matters that touch
individual opinion and personal attitude.
As the present Chief Justice said in dissent in the Gobitis case, the State may "require teaching by
instruction and study of all in our history and in the structure and organization of our government,
including the guaranties of civil liberty, which tend to inspire patriotism and love of country." Here,
however, we are dealing with a compulsion of students to declare a belief. They are not merely made
acquainted with the flag salute so that they may be informed as to what it is or even what it means.
The issue here is whether this slow and easily neglected route to aroused loyalties constitutionally
may be short-cut by substituting a compulsory salute and slogan. * * *
There is no doubt that, in connection with the pledges, the flag salute is a form of utterance.
Symbolism is a primitive but effective way of communicating ideas. The use of an emblem or flag to
symbolize some system, idea, institution, or personality, is a short cut from mind to mind. Causes and
nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings
to a flag or banner, a color or design. The State announces rank, function, and authority through
crowns and maces, uniforms and black robes; the church speaks through the Cross, the Crucifix, the
altar and shrine, and clerical raiment. Symbols of State often convey political ideas just as religious
symbols come to convey theological ones. Associated with many of these symbols are appropriate
gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets
from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's
jest and scorn.
Over a decade ago Chief Justice Hughes led this Court in holding that the display of a red flag as a
symbol of opposition by peaceful and legal means to organized government was protected by the free
speech guaranties of the Constitution. Here it is the State that employs a flag as a symbol of
adherence to government as presently organized. It requires the individual to communicate by word
and sign his acceptance of the political ideas it thus bespeaks. Objection to this form of
communication when coerced is an old one, well known to the framers of the Bill of Rights. [fn: “Early
Christians were frequently persecuted for their refusal to participate in ceremonies before the statue
of the emperor or other symbol of imperial authority. The story of William Tell's sentence to shoot an
apple off his son's head for refusal to salute a bailiff's hat is an ancient one. 21 ENCYCLOPEDIA
BRITANNICA (14th ed.) 911-912. The Quakers, William Penn included, suffered punishment, rather
than uncover their heads in deference to any civil authority. BRAITHWAITE, THE BEGINNINGS OF
QUAKERISM (1912) 200, 229-230, 232-233, 447, 451; FOX, QUAKERS COURAGEOUS (1941) 113.”]
It is also to be noted that the compulsory flag salute and pledge requires affirmation of a belief and an
attitude of mind. It is not clear whether the regulation contemplates that pupils forego any contrary
convictions of their own and become unwilling converts to the prescribed ceremony or whether it
will be acceptable if they simulate assent by words without belief and by a gesture barren of
meaning. It is now a commonplace that censorship or suppression of expression of opinion is
tolerated by our Constitution only when the expression presents a clear and present danger of action
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of a kind the State is empowered to prevent and punish. It would seem that involuntary affirmation
could be commanded only on even more immediate and urgent grounds than silence. But here the
power of compulsion is invoked without any allegation that remaining passive during a flag salute
ritual creates a clear and present danger that would justify an effort even to muffle expression. To
sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the
individual's right to speak his own mind, left it open to public authorities to compel him to utter what
is not in his mind.
Whether the First Amendment to the Constitution will permit officials to order observance of ritual
of this nature does not depend upon whether as a voluntary exercise we would think it to be good,
bad or merely innocuous. Any credo of nationalism is likely to include what some disapprove or to
omit what others think essential, and to give off different overtones as it takes on different accents or
interpretations. If official power exists to coerce acceptance of any patriotic creed, what it shall
contain cannot be decided by courts, but must be largely discretionary with the ordaining authority,
whose power to prescribe would no doubt include power to amend. Hence validity of the asserted
power to force an American citizen publicly to profess any statement of belief or to engage in any
ceremony of assent to one, presents questions of power that must be considered independently of
any idea we may have as to the utility of the ceremony in question.
Nor does the issue as we see it turn on one's possession of particular religious views or the sincerity
with which they are held. While religion supplies appellees' motive for enduring the discomforts of
making the issue in this case, many citizens who do not share these religious views hold such a
compulsory rite to infringe constitutional liberty of the individual. It is not necessary to inquire
whether non-conformist beliefs will exempt from the duty to salute unless we first find power to
make the salute a legal duty.
The Gobitis decision, however, assumed, as did the argument in that case and in this, that power exists
in the State to impose the flag salute discipline upon school children in general. The Court only
examined and rejected a claim based on religious beliefs of immunity from an unquestioned general
rule. The question which underlies the flag salute controversy is whether such a ceremony so
touching matters of opinion and political attitude may be imposed upon the individual by official
authority under powers committed to any political organization under our Constitution. We examine
rather than assume existence of this power and, against this broader definition of issues in this case,
reexamine specific grounds assigned for the Gobitis decision.
It was said that the flag-salute controversy confronted the Court with "the problem which Lincoln
cast in memorable dilemma: ‘Must a government of necessity be too strong for the liberties of its
people, or too weak to maintain its own existence?'" and that the answer must be in favor of strength.
We think these issues may be examined free of pressure or restraint growing out of such
considerations.
It may be doubted whether Mr. Lincoln would have thought that the strength of government to
maintain itself would be impressively vindicated by our confirming power of the State to expel a
handful of children from school. Such oversimplification, so handy in political debate, often lacks the
precision necessary to postulates of judicial reasoning. If validly applied to this problem, the
utterance cited would resolve every issue of power in favor of those in authority and would require
us to override every liberty thought to weaken or delay execution of their policies.
Government of limited power need not be anemic government. Assurance that rights are secure
tends to diminish fear and jealousy of strong government, and by making us feel safe to live under it
makes for its better support. Without promise of a limiting Bill of Rights it is doubtful if our
Constitution could have mustered enough strength to enable its ratification. To enforce those rights
today is not to choose weak government over strong government. It is only to adhere as a means of
strength to individual freedom of mind in preference to officially disciplined uniformity for which
history indicates a disappointing and disastrous end.
The subject now before us exemplifies this principle. Free public education, if faithful to the ideal of
secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or
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faction. If it is to impose any ideological discipline, however, each party or denomination must seek
to control, or failing that, to weaken the influence of the educational system. Observance of the
limitations of the Constitution will not weaken government in the field appropriate for its exercise.
The Gobitis opinion reasoned that this is a field "where courts possess no marked and certainly no
controlling competence," that it is committed to the legislatures as well as the courts to guard
cherished liberties and that it is constitutionally appropriate to "fight out the wise use of legislative
authority in the forum of public opinion and before legislative assemblies rather than to transfer such
a contest to the judicial arena," since all the "effective means of inducing political changes are left
free."
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political
controversy, to place them beyond the reach of majorities and officials and to establish them as legal
principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free
press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote;
they depend on the outcome of no elections.
In weighing arguments of the parties it is important to distinguish between the due process clause of
the Fourteenth Amendment as an instrument for transmitting the principles of the First Amendment
and those cases in which it is applied for its own sake. The test of legislation which collides with the
Fourteenth Amendment, because it also collides with the principles of the First, is much more
definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process
clause disappears when the specific prohibitions of the First become its standard. The right of a State
to regulate, for example, a public utility may well include, so far as the due process test is concerned,
power to impose all of the restrictions which a legislature may have a "rational basis" for adopting.
But freedoms of speech and of press, of assembly, and of worship may not be infringed on such
slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to
interests which the State may lawfully protect. It is important to note that while it is the Fourteenth
Amendment which bears directly upon the State it is the more specific limiting principles of the First
Amendment that finally govern this case.
Nor does our duty to apply the Bill of Rights to assertions of official authority depend upon our
possession of marked competence in the field where the invasion of rights occurs. True, the task of
translating the majestic generalities of the Bill of Rights, conceived as part of the pattern of liberal
government in the eighteenth century, into concrete restraints on officials dealing with the problems
of the twentieth century, is one to disturb self-confidence. These principles grew in soil which also
produced a philosophy that the individual was the center of society, that his liberty was attainable
through mere absence of governmental restraints, and that government should be entrusted with
few controls and only the mildest supervision over men's affairs. We must transplant these rights to
a soil in which the laissez-faire concept or principle of non-interference has withered at least as to
economic affairs, and social advancements are increasingly sought through closer integration of
society and through expanded and strengthened governmental controls. These changed conditions
often deprive precedents of reliability and cast us more than we would choose upon our own
judgment. But we act in these matters not by authority of our competence but by force of our
commissions. We cannot, because of modest estimates of our competence in such specialties as
public education, withhold the judgment that history authenticates as the function of this Court when
liberty is infringed.
Lastly, and this is the very heart of the Gobitis opinion, it reasons that "National unity is the basis of
national security," that the authorities have "the right to select appropriate means for its attainment,"
and hence reaches the conclusion that such compulsory measures toward "national unity" are
constitutional. Upon the verity of this assumption depends our answer in this case.
The case is made difficult not because the principles of its decision are obscure but because the flag
involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that
freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social
organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and
spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our
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institutions to free minds. We can have intellectual individualism and the rich cultural diversities that
we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes.
When they are so harmless to others or to the State as those we deal with here, the price is not too
great. But freedom to differ is not limited to things that do not matter much. That would be a mere
shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of
the existing order.
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can
prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or
force citizens to confess by word or act their faith therein. If there are any circumstances which
permit an exception, they do not now occur to us.
We think the action of the local authorities in compelling the flag salute and pledge transcends
constitutional limitations on their power and invades the sphere of intellect and spirit which it is the
purpose of the First Amendment to our Constitution to reserve from all official control.
The decision of this Court in Minersville School District v. Gobitis and the holdings of those few per
curiam decisions which preceded and foreshadowed it are overruled, and the judgment enjoining
enforcement of the West Virginia Regulation is Affirmed.
MR. JUSTICE FRANKFURTER, DISSENTING.
One who belongs to the most vilified and persecuted minority in history is not likely to be insensible
to the freedoms guaranteed by our Constitution. Were my purely personal attitude relevant I should
wholeheartedly associate myself with the general libertarian views in the Court's opinion,
representing as they do the thought and action of a lifetime. But as judges we are neither Jew nor
Gentile, neither Catholic nor agnostic. We owe equal attachment to the Constitution and are equally
bound by our judicial obligations whether we derive our citizenship from the earliest or the latest
immigrants to these shores. As a member of this Court I am not justified in writing my private
notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous
I may deem their disregard. The duty of a judge who must decide which of two claims before the
Court shall prevail, that of a State to enact and enforce laws within its general competence or that of
an individual to refuse obedience because of the demands of his conscience, is not that of the
ordinary person. It can never be emphasized too much that one's own opinion about the wisdom or
evil of a law should be excluded altogether when one is doing one's duty on the bench. The only
opinion of our own even looking in that direction that is material is our opinion whether legislators
could in reason have enacted such a law. In the light of all the circumstances, including the history of
this question in this Court, it would require more daring than I possess to deny that reasonable
legislators could have taken the action which is before us for review. Most unwillingly, therefore, I
must differ from my brethren with regard to legislation like this. I cannot bring my mind to believe
that the "liberty" secured by the Due Process Clause gives this Court authority to deny to the State of
West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely,
the promotion of good citizenship, by employment of the means here chosen.
Law is concerned with external behavior and not with the inner life of man. It rests in large measure
upon compulsion. Socrates lives in history partly because he gave his life for the conviction that duty
of obedience to secular law does not presuppose consent to its enactment or belief in its virtue. The
consent upon which free government rests is the consent that comes from sharing in the process of
making and unmaking laws. The state is not shut out from a domain because the individual
conscience may deny the state's claim. The individual conscience may profess what faith it chooses. It
may affirm and promote that faith — in the language of the Constitution, it may "exercise" it freely —
but it cannot thereby restrict community action through political organs in matters of community
concern, so long as the action is not asserted in a discriminatory way either openly or by stealth. One
may have the right to practice one's religion and at the same time owe the duty of formal obedience
to laws that run counter to one's beliefs. Compelling belief implies denial of opportunity to combat it
and to assert dissident views. Such compulsion is one thing. Quite another matter is submission to

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conformity of action while denying its wisdom or virtue and with ample opportunity for seeking its
change or abrogation.
The flag salute exercise has no kinship whatever to the oath tests so odious in history. For the oath
test was one of the instruments for suppressing heretical beliefs. Saluting the flag suppresses no
belief nor curbs it. Children and their parents may believe what they please, avow their belief and
practice it. It is not even remotely suggested that the requirement for saluting the flag involves the
slightest restriction against the fullest opportunity on the part both of the children and of their
parents to dis-avow as publicly as they choose to do so the meaning that others attach to the gesture
of salute. All channels of affirmative free expression are open to both children and parents. Had we
before us any act of the state putting the slightest curbs upon such free expression, I should not lag
behind any member of this Court in striking down such an invasion of the right to freedom of thought
and freedom of speech protected by the Constitution.
Of course patriotism can not be enforced by the flag salute. But neither can the liberal spirit be
enforced by judicial invalidation of illiberal legislation. Our constant preoccupation with the
constitutionality of legislation rather than with its wisdom tends to preoccupation of the American
mind with a false value. The tendency of focusing attention on constitutionality is to make
constitutionality synonymous with wisdom, to regard a law as all right if it is constitutional. Such an
attitude is a great enemy of liberalism. Particularly in legislation affecting freedom of thought and
freedom of speech much which should offend a free-spirited society is constitutional. Reliance for the
most precious interests of civilization, therefore, must be found outside of their vindication in courts
of law. Only a persistent positive translation of the faith of a free society into the convictions and
habits and actions of a community is the ultimate reliance against unabated temptations to fetter the
human spirit.

Wooley v. Maynard
430 U.S. 705 (1977)

BURGER, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN, STEWART, MARSHALL, POWELL, AND
STEVENS, JJ., JOINED, AND IN WHICH WHITE, J., JOINED, EXCEPT INSOFAR AS IT AFFIRMS THE DISTRICT COURT'S
ISSUANCE OF AN INJUNCTION. WHITE, J., FILED A OPINION DISSENTING IN PART, IN WHICH BLACKMUN AND REHNQUIST,
JJ., JOINED. REHNQUIST, J., FILED A DISSENTING OPINION, IN WHICH BLACKMUN, J., JOINED.
MR. CHIEF JUSTICE BURGER DELIVERED THE OPINION OF THE COURT.
The issue on appeal is whether the State of New Hampshire may constitutionally enforce criminal
sanctions against persons who cover the motto "Live Free or Die" on passenger vehicle license plates
because that motto is repugnant to their moral and religious beliefs.
Since 1969, New Hampshire has required that noncommercial vehicles bear license plates embossed
with the state motto, "Live Free or Die." Another New Hampshire statute makes it a misdemeanor
"knowingly [to obscure] . . . the figures or letters on any number plate." The term "letters" in this
section has been interpreted by the State's highest court to include the state motto.
Appellees George Maynard and his wife Maxine are followers of the Jehovah's Witnesses faith. The
Maynards consider the New Hampshire State motto to be repugnant to their moral, religious, and
political beliefs, and therefore assert it objectionable to disseminate this message by displaying it on
their automobiles. Pursuant to these beliefs, the Maynards began early in 1974 to cover up the motto
on their license plates. [On three different occasions, George Maynard was charged with violating the
New Hampshire statutory scheme. He was found guilty, fined, and then sentenced to 15 days jail for
failure to pay the fines.]

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The District Court held that, by covering up the state motto "Live Free or Die" on his automobile
license plate, Mr. Maynard was engaging in symbolic speech, and that New Hampshire's interest in
the enforcement of its defacement statute is not sufficient to justify the restriction on [appellee's]
constitutionally protected expression. We find it unnecessary to pass on the "symbolic speech" issue,
since we find more appropriate First Amendment grounds to affirm the judgment of the District
Court. We turn instead to what, in our view, is the essence of appellees' objection to the requirement
that they display the motto "Live Free or Die" on their automobile license plates. This is succinctly
summarized in the statement made by Mr. Maynard in his affidavit filed with the District Court:
I refuse to be coerced by the State into advertising a slogan which I find morally, ethically, religiously
and politically abhorrent.

We are thus faced with the question of whether the State may constitutionally require an individual
to participate in the dissemination of an ideological message by displaying it on his private property
in a manner and for the express purpose that it be observed and read by the public. We hold that the
State may not do so.
We begin with the proposition that the right of freedom of thought protected by the First
Amendment against state action includes both the right to speak freely and the right to refrain from
speaking at all. A system which secures the right to proselytize religious, political, and ideological
causes must also guarantee the concomitant right to decline to foster such concepts. The right to
speak and the right to refrain from speaking are complementary components of the broader concept
of "individual freedom of mind."
The Court in Barnette, was faced with a state statute which required public school students to
participate in daily public ceremonies by honoring the flag both with words and traditional salute
gestures. * * * Compelling the affirmative act of a flag salute involved a more serious infringement
upon personal liberties than the passive act of carrying the state motto on a license plate, but the
difference is essentially one of degree.
* * * New Hampshire's statute in effect requires that appellees use their private property as a "mobile
billboard" for the State's ideological message -- or suffer a penalty, as Maynard already has. As a
condition to driving an automobile -- a virtual necessity for most Americans -- the Maynards must
display "Live Free or Die" to hundreds of people each day. The fact that most individuals agree with
the thrust of New Hampshire's motto is not the test; most Americans also find the flag salute
acceptable. The First Amendment protects the right of individuals to hold a point of view different
from the majority, and to refuse to foster, in the way New Hampshire commands, an idea they find
morally objectionable.
Identifying the Maynards' interests as implicating First Amendment protections does not end our
inquiry however. We must also determine whether the State's countervailing interest is sufficiently
compelling to justify requiring appellees to display the state motto on their license plates. See, e.g.,
United States v. O'Brien (1968). The two interests advanced by the State are that display of the motto
(1) facilitates the identification of passenger vehicles, and (2) promotes appreciation of history,
individualism, and state pride.
The State first points out that passenger vehicles, but not commercial, trailer, or other vehicles are
required to display the state motto. Thus, the argument proceeds, officers of the law are more easily
able to determine whether passenger vehicles are carrying the proper plates. However, the record
here reveals that New Hampshire passenger license plates normally consist of a specific
configuration of letters and numbers, which makes them readily distinguishable from other types of
plates, even without reference to the state motto. Even were we to credit the State's reasons, and
“even though the governmental purpose be legitimate and substantial, that purpose cannot be
pursued by means that broadly stifle fundamental personal liberties when the end can be more
narrowly achieved. The breadth of legislative abridgment must be viewed in the light of less drastic
means for achieving the same basic purpose.”
The State's second claimed interest is not ideologically neutral. The State is seeking to communicate
to others an official view as to proper appreciation of history, state pride, and individualism. Of
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course, the State may legitimately pursue such interests in any number of ways. However, where the
State's interest is to disseminate an ideology, no matter how acceptable to some, such interest cannot
outweigh an individual's First Amendment right to avoid becoming the courier for such message.
We conclude that the State of New Hampshire my not require appellees to display the state motto
upon their vehicle license plates; and, accordingly, we affirm the judgment of the District Court.
MR. JUSTICE REHNQUIST, WITH WHOM MR. JUSTICE BLACKMUN JOINS, DISSENTING.
The Court holds that a State is barred by the Federal Constitution from requiring that the state motto
be displayed on a state license plate. The path that the Court travels to reach this result demonstrates
the difficulty in supporting it. The Court holds that the required display of the motto is an
unconstitutional "required affirmation of belief." The District Court, however, expressly refused to
consider this contention, * * * found for appellees on the ground that the obscuring of the motto was
protected "symbolic speech." This Court, in relying upon a ground expressly avoided by the District
Court, appears to disagree with the ground adopted by the District Court. * * *
I not only agree with the Court's implicit recognition that there is no protected "symbolic speech" in
this case, but I think that that conclusion goes far to undermine the Court's ultimate holding that
there is an element of protected expression here. The State has not forced appellees to "say" anything,
and it has not forced them to communicate ideas with nonverbal actions reasonably likened to
"speech," such as wearing a lapel button promoting a political candidate or waving a flag as a
symbolic gesture. The State has simply required that all noncommercial automobiles bear license
tags with the state motto, "Live Free or Die." Appellees have not been forced to affirm or reject that
motto; they are simply required by the State, under its police power, to carry a state auto license tag
for identification and registration purposes.
* * * [T]he Court relies almost solely on Board of Education v. Barnette (1943). The Court cites
Barnette for the proposition that there is a constitutional right, in some cases, to "refrain from
speaking." What the Court does not demonstrate is that there is any "speech" or "speaking" in the
context of this case. The Court also relies upon the "right to decline to foster [religious, political, and
ideological] concepts," and treats the state law in this case as if it were forcing appellees to
proselytize, or to advocate an ideological point of view. But this begs the question. The issue,
unconfronted by the Court, is whether appellees, in displaying, as they are required to do, state
license tags, the format of which is known to all as having been prescribed by the State, would be
considered to be advocating political or ideological views.
The Court recognizes, as it must, that this case substantially differs from Barnette, in which school
children were forced to recite the pledge of allegiance while giving the flag salute. However, the Court
states "the difference is essentially one of degree." But having recognized the rather obvious
differences between these two cases, the Court does not explain why the same result should obtain.
The Court suggests that the test is whether the individual is forced "to be an instrument for fostering
public adherence to an ideological point of view he finds unacceptable." But, once again, these are
merely conclusory words, barren of analysis. For example, were New Hampshire to erect a multitude
of billboards, each proclaiming "Live Free or Die," and tax all citizens for the cost of erection and
maintenance, clearly the message would be "fostered" by the individual citizen-taxpayers, and, just as
clearly, those individuals would be "instruments" in that communication. Certainly, however, that
case would not fall within the ambit of Barnette. In that case, as in this case, there is no affirmation of
belief. For First Amendment principles to be implicated, the State must place the citizen in the
position of either apparently or actually "asserting as true" the message. This was the focus of
Barnette, and clearly distinguishes this case from that one.
In holding that the New Hampshire statute does not run afoul of our holding in Barnette, the New
Hampshire Supreme Court aptly articulated why there is no required affirmation of belief in this
case:

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The defendants' membership in a class of persons required to display plates bearing the State motto
carries no implication, and is subject to no requirement, that they endorse that motto or profess to
adopt it as matter of belief.

As found by the New Hampshire Supreme Court [in a previous case], there is nothing in state law
which precludes appellees from displaying their disagreement with the state motto as long as the
methods used do not obscure the license plates. Thus appellees could place on their bumper a
conspicuous bumper sticker explaining in no uncertain terms that they do not profess the motto
"Live Free or Die," and that they violently disagree with the connotations of that motto. Since any
implication that they affirm the motto can be so easily displaced, I cannot agree that the state
statutory system for motor vehicle identification and tourist promotion may be invalidated under the
fiction that appellees are unconstitutionally forced to affirm, or profess belief in, the state motto.
The logic of the Court's opinion leads to startling, and, I believe, totally unacceptable, results. For
example, the mottoes "In God We Trust" and "E Pluribus Unum" appear on the coin and currency of
the United States. I cannot imagine that the statutes, proscribing defacement of United States
currency impinge upon the First Amendment rights of an atheist. The fact that an atheist carries and
uses United States currency does not, in any meaningful sense, convey any affirmation of belief on his
part in the motto "In God We Trust." Similarly, there is no affirmation of belief involved in the display
of state license tags upon the private automobiles involved here.

Notes
1.
The Court in Barnette explicitly overruled Minersville School District v. Gobitis, decided only
three years earlier. Note that Justice Frankfurter wrote the opinion for the Court in Gobitis; the only
dissenting opinion was by Justice Harlan Stone, who would be elevated to Chief Justice by FDR in
1941. What traces of the historical events in 1940 – 1943 are evident in the Barnette opinions?
2.
George Maynard eventually left New Hampshire, moving to Connecticut, and covering up the
license plate motto “The Constitution State.” He later left the Jehovah’s Witnesses as well, although he
continued to resist secular government. As for his representation by the ACLU, he reportedly stated
that “they did right by me in my case and I still appreciate that.” He objected, however, to ACLU
involvement in “bad things, such as protecting pornography and homosexuality — things that
conflict with the teachings of the Bible.” See David Hudson, George Maynard recalls license-plate
ordeal, free-speech victory, freedom forum.org (November 30, 2001), available at: http://www.
freedomforum.org/templates/document.asp?documentID=15440.
3.
Are all license plates subject to a First Amendment compelled speech claim? In 2014, on
remand from the Tenth Circuit, a court considered a challenge to the image on the Oklahoma license
plate of a person, presumably a Native American male, with an arrow pointed at the sky. The plate
also contained the words “Native America” to which there was no objection. What result? See
Cressman v. Thompson, 2014 WL 131715 (January 14, 2014), available at:
http://lawprofessors.typepad.com/conlaw/2014/01/oklahomas-license-plate-survivesconstitutional-challenge.html
For the Court’s view on “specialty license plates” see Walker v. Texas Division, Sons of
Confederate Veterans (2015) in the next chapter.

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B.

Fees and Dues
Keller v. State Bar of California
496 U.S. 1 (1990)

REHNQUIST, C.J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.
Petitioners, members of respondent State Bar of California, sued that body, claiming its use of their
membership dues to finance certain ideological or political activities to which they were opposed
violated their rights under the First Amendment of the United States Constitution. The Supreme
Court of California rejected this challenge on the grounds that the State Bar is a state agency and, as
such, may use the dues for any purpose within its broad statutory authority. We agree that lawyers
admitted to practice in the State may be required to join and pay dues to the State Bar, but disagree
as to the scope of permissible dues-financed activities in which the State Bar may engage.
The State Bar is an organization created under California law to regulate the State's legal profession.
It is an entity commonly referred to as an "integrated bar" - an association of attorneys in which
membership and dues are required as a condition of practicing law in a State. Respondent's broad
statutory mission is to "promote `the improvement of the administration of justice.'" The association
performs a variety of functions such as "examining applicants for admission, formulating rules of
professional conduct, disciplining members for misconduct, preventing unlawful practice of the law,
and engaging in study and recommendation of changes in procedural law and improvement of the
administration of justice." Respondent also engages in a number of other activities which are the
subject of the dispute in this case. "[T]he State Bar for many years has lobbied the Legislature and
other governmental agencies, filed amicus curiae briefs in pending cases, held an annual conference
of delegates at which issues of current interest are debated and resolutions approved, and engaged in
a variety of education programs." These activities are financed principally through the use of
membership dues.
Petitioners, 21 members of the State Bar, sued in state court claiming that through these activities
respondent expends mandatory dues payments to advance political and ideological causes to which
they do not subscribe. Asserting that their compelled financial support of such activities violates their
First and Fourteenth Amendment rights to freedom of speech and association, petitioners requested,
inter alia, an injunction restraining respondent from using mandatory bar dues or the name of the
State Bar to advance political and ideological causes or beliefs. * * *
In Abood v. Detroit Board of Education (1977), the Court confronted the issue whether, consistent
with the First Amendment, agency-shop dues of nonunion public employees could be used to support
political and ideological causes of the union which were unrelated to collective-bargaining activities.
We held that while the Constitution did not prohibit a union from spending "funds for the expression
of political views . . . or toward the advancement of other ideological causes not germane to its duties
as collective-bargaining representative," the Constitution did require that such expenditures be
"financed from charges, dues, or assessments paid by employees who [did] not object to advancing
those ideas and who [were] not coerced into doing so against their will by the threat of loss of
governmental employment." The Court noted that just as prohibitions on making contributions to
organizations for political purposes implicate fundamental First Amendment concerns, see Buckley v.
Valeo (1976), "compelled . . . contributions for political purposes works no less an infringement of . . .
constitutional rights." The Court acknowledged Thomas Jefferson's view that "`to compel a man to
furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and
tyrannical.'" * * *
There is, by contrast [to the California Supreme Court’s holding], a substantial analogy between the
relationship of the State Bar and its members, on the one hand, and the relationship of employee
unions and their members, on the other. The reason behind the legislative enactment of "agencyshop" laws is to prevent "free riders" - those who receive the benefit of union negotiation with their
employers, but who do not choose to join the union and pay dues - from avoiding their fair share of
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the cost of a process from which they benefit. The members of the State Bar concededly do not
benefit as directly from its activities as do employees from union negotiations with management, but
the position of the organized bars has generally been that they prefer a large measure of selfregulation to regulation conducted by a government body which has little or no connection with the
profession. The plan established by California for the regulation of the profession is for
recommendations as to admission to practice, the disciplining of lawyers, codes of conduct, and the
like to be made to the courts or the legislature by the organized bar. It is entirely appropriate that all
of the lawyers who derive benefit from the unique status of being among those admitted to practice
before the courts should be called upon to pay a fair share of the cost of the professional involvement
in this effort.
But the very specialized characteristics of the State Bar of California discussed above served to
distinguish it from the role of the typical government official or agency. Government officials are
expected as a part of the democratic process to represent and to espouse the views of a majority of
their constituents. With countless advocates outside of the government seeking to influence its policy,
it would be ironic if those charged with making governmental decisions were not free to speak for
themselves in the process. If every citizen were to have a right to insist that no one paid by public
funds express a view with which he disagreed, debate over issues of great concern to the public
would be limited to those in the private sector, and the process of government as we know it
radically transformed.
The State Bar of California was created, not to participate in the general government of the State, but
to provide specialized professional advice to those with the ultimate responsibility of governing the
legal profession. Its members and officers are such not because they are citizens or voters, but
because they are lawyers. We think that these differences between the State Bar, on the one hand,
and traditional government agencies and officials, on the other hand, render unavailing respondent's
argument that it is not subject to the same constitutional rule with respect to the use of compulsory
dues as are labor unions representing public and private employees.
Respondent would further distinguish the two situations on the grounds that the compelled
association in the context of labor unions serves only a private economic interest in collective
bargaining, while the State Bar serves more substantial public interests. But legislative recognition
that the agency-shop arrangements serve vital national interests in preserving industrial peace,
indicates that such arrangements serve substantial public interests as well. We are not possessed of
any scales which would enable us to determine that the one outweighs the other sufficiently to
produce a different result here.
Abood held that a union could not expend a dissenting individual's dues for ideological activities not
"germane" to the purpose for which compelled association was justified: collective bargaining. Here
the compelled association and integrated bar are justified by the State's interest in regulating the
legal profession and improving the quality of legal services. The State Bar may therefore
constitutionally fund activities germane to those goals out of the mandatory dues of all members. It
may not, however, in such manner fund activities of an ideological nature which fall outside of those
areas of activity. The difficult question, of course, is to define the latter class of activities.
Petitioners assert that the State Bar has engaged in, inter alia, lobbying for or against state legislation
(1) prohibiting state and local agency employers from requiring employees to take polygraph tests;
(2) prohibiting possession of armor-piercing handgun ammunition; (3) creating an unlimited right of
action to sue anybody causing air pollution; and (4) requesting Congress to refrain from enacting a
guest-worker program or from permitting the importation of workers from other countries.
Petitioners' complaint also alleges that the conference of delegates funded and sponsored by the
State Bar endorsed a gun control initiative, disapproved statements of a United States senatorial
candidate regarding court review of a victim's bill of rights, endorsed a nuclear weapons freeze
initiative, and opposed federal legislation limiting federal-court jurisdiction over abortions, public
school prayer, and busing.
Precisely where the line falls between those State Bar activities in which the officials and members of
the Bar are acting essentially as professional advisers to those ultimately charged with the regulation
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of the legal profession, on the one hand, and those activities having political or ideological coloration
which are not reasonably related to the advancement of such goals, on the other, will not always be
easy to discern. But the extreme ends of the spectrum are clear: Compulsory dues may not be
expended to endorse or advance a gun control or nuclear weapons freeze initiative; at the other end
of the spectrum petitioners have no valid constitutional objection to their compulsory dues being
spent for activities connected with disciplining members of the Bar or proposing ethical codes for the
profession.
The judgment of the Supreme Court of California is reversed. * * *

Board of Regents of the University of Wisconsin System v.
Southworth
529 U.S. 217 (2000)
KENNEDY, J., DELIVERED THE OPINION OF THE COURT, IN WHICH REHNQUIST, C. J., AND O'CONNOR, SCALIA, THOMAS,
AND GINSBURG, JJ., JOINED. SOUTER, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH STEVENS AND
BREYER, JJ., JOINED.
JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT.
For the second time in recent years we consider constitutional questions arising from a program
designed to facilitate extracurricular student speech at a public university. Respondents are a group
of students at the University of Wisconsin. They brought a First Amendment challenge to a
mandatory student activity fee imposed by petitioner Board of Regents of the University of
Wisconsin and used in part by the University to support student organizations engaging in political
or ideological speech. Respondents object to the speech and expression of some of the student
organizations. Relying upon our precedents which protect members of unions and bar associations
from being required to pay fees used for speech the members find objectionable, both the District
Court and the Court of Appeals invalidated the University's student fee program. The University
contends that its mandatory student activity fee and the speech which it supports are appropriate to
further its educational mission.
We reverse. The First Amendment permits a public university to charge its students an activity fee
used to fund a program to facilitate extracurricular student speech if the program is viewpoint
neutral. We do not sustain, however, the student referendum mechanism of the University's program,
which appears to permit the exaction of fees in violation of the viewpoint neutrality principle. As to
that aspect of the program, we remand for further proceedings.
I
* * * It seems that since its founding the University has required full-time students enrolled at its
Madison campus to pay a nonrefundable activity fee. For the 1995-1996 academic year, when this
suit was commenced, the activity fee amounted to $331.50 per year. The fee is segregated from the
University's tuition charge. Once collected, the activity fees are deposited by the University into the
accounts of the State of Wisconsin. The fees are drawn upon by the University to support various
campus services and extracurricular student activities. In the University's view, the activity fees
"enhance the educational experience" of its students by "promot[ing] extracurricular activities,"
"stimulating advocacy and debate on diverse points of view," enabling "participa[tion] in political
activity," "promot[ing] student participa[tion] in campus administrative activity," and providing
"opportunities to develop social skills," all consistent with the University's mission.

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The board of regents classifies the segregated fee into allocable and nonallocable portions. The
nonallocable portion approximates 80% of the total fee and covers expenses such as student health
services, intramural sports, debt service, and the upkeep and operations of the student union
facilities. Respondents did not challenge the purposes to which the University commits the
nonallocable portion of the segregated fee.
The allocable portion of the fee supports extracurricular endeavors pursued by the University's
registered student organizations or RSO's. To qualify for RSO status students must organize as a notfor-profit group, limit membership primarily to students, and agree to undertake activities related to
student life on campus. During the 1995-1996 school year, 623 groups had RSO status on the
Madison campus. To name but a few, RSO's included the Future Financial Gurus of America; the
International Socialist Organization; the College Democrats; the College Republicans; and the
American Civil Liberties Union Campus Chapter. As one would expect, the expressive activities
undertaken by RSO's are diverse in range and content, from displaying posters and circulating
newsletters throughout the campus, to hosting campus debates and guest speakers, and to what can
best be described as political lobbying.
RSO's may obtain a portion of the allocable fees in one of three ways. Most do so by seeking funding
from the Student Government Activity Fund (SGAF), administered by the ASM. SGAF moneys may be
issued to support an RSO's operations and events, as well as travel expenses "central to the purpose
of the organization." As an alternative, an RSO can apply for funding from the General Student
Services Fund (GSSF), administered through the ASM's finance committee. During the 1995-1996
academic year, 15 RSO's received GSSF funding. These RSO's included a campus tutoring center, the
student radio station, a student environmental group, a gay and bisexual student center, a
community legal office, an AIDS support network, a campus women's center, and the Wisconsin
Student Public Interest Research Group (WISPIRG). The University acknowledges that, in addition to
providing campus services ( e.g., tutoring and counseling), the GSSF-funded RSO's engage in political
and ideological expression.
The GSSF, as well as the SGAF, consists of moneys originating in the allocable portion of the
mandatory fee. The parties have stipulated that, with respect to SGAF and GSSF funding, "[t]he
process for reviewing and approving allocations for funding is administered in a viewpoint-neutral
fashion," and that the University does not use the fee program for "advocating a particular point of
view."
A student referendum provides a third means for an RSO to obtain funding. While the record is
sparse on this feature of the University's program, the parties inform us that the student body can
vote either to approve or to disapprove an assessment for a particular RSO. One referendum resulted
in an allocation of $45,000 to WISPIRG during the 1995-1996 academic year. At oral argument,
counsel for the University acknowledged that a referendum could also operate to defund an RSO or
to veto a funding decision of the ASM. In October 1996, for example, the student body voted to
terminate funding to a national student organization to which the University belonged. Both parties
confirmed at oral argument that their stipulation regarding the program's viewpoint neutrality does
not extend to the referendum process. * * *
II.
It is inevitable that government will adopt and pursue programs and policies within its constitutional
powers but which nevertheless are contrary to the profound beliefs and sincere convictions of some
of its citizens. The government, as a general rule, may support valid programs and policies by taxes
or other exactions binding on protesting parties. Within this broader principle it seems inevitable
that funds raised by the government will be spent for speech and other expression to advocate and
defend its own policies. The case we decide here, however, does not raise the issue of the
government's right, or, to be more specific, the state-controlled University's right, to use its own
funds to advance a particular message. The University's whole justification for fostering the
challenged expression is that it springs from the initiative of the students, who alone give it purpose
and content in the course of their extracurricular endeavors.

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The University of Wisconsin exacts the fee at issue for the sole purpose of facilitating the free and
open exchange of ideas by, and among, its students. We conclude the objecting students may insist
upon certain safeguards with respect to the expressive activities which they are required to support.
Our public forum cases are instructive here by close analogy. This is true even though the student
activities fund is not a public forum in the traditional sense of the term and despite the circumstance
that those cases most often involve a demand for access, not a claim to be exempt from supporting
speech. The standard of viewpoint neutrality found in the public forum cases provides the standard
we find controlling. We decide that the viewpoint neutrality requirement of the University program
is in general sufficient to protect the rights of the objecting students. The student referendum aspect
of the program for funding speech and expressive activities, however, appears to be inconsistent with
the viewpoint neutrality requirement.
We must begin by recognizing that the complaining students are being required to pay fees which are
subsidies for speech they find objectionable, even offensive. The Abood and Keller cases, then,
provide the beginning point for our analysis. While those precedents identify the interests of the
protesting students, the means of implementing First Amendment protections adopted in those
decisions are neither applicable nor workable in the context of extracurricular student speech at a
university.
* * * If the University conditions the opportunity to receive a college education, an opportunity
comparable in importance to joining a labor union or bar association, on an agreement to support
objectionable, extracurricular expression by other students, the rights acknowledged in Abood and
Keller become implicated. It infringes on the speech and beliefs of the individual to be required, by
this mandatory student activity fee program, to pay subsidies for the objectionable speech of others
without any recognition of the State's corresponding duty to him or her. Yet recognition must be
given as well to the important and substantial purposes of the University, which seeks to facilitate a
wide range of speech.
In Abood and Keller the constitutional rule took the form of limiting the required subsidy to speech
germane to the purposes of the union or bar association. The standard of germane speech as applied
to student speech at a university is unworkable, however, and gives insufficient protection both to
the objecting students and to the University program itself. * * * To insist upon asking what speech is
germane would be contrary to the very goal the University seeks to pursue. It is not for the Court to
say what is or is not germane to the ideas to be pursued in an institution of higher learning.
Just as the vast extent of permitted expression makes the test of germane speech inappropriate for
intervention, so too does it underscore the high potential for intrusion on the First Amendment
rights of the objecting students. It is all but inevitable that the fees will result in subsidies to speech
which some students find objectionable and offensive to their personal beliefs. If the standard of
germane speech is inapplicable, then, it might be argued the remedy is to allow each student to list
those causes which he or she will or will not support. If a university decided that its students' First
Amendment interests were better protected by some type of optional or refund system it would be
free to do so. We decline to impose a system of that sort as a constitutional requirement, however.
The restriction could be so disruptive and expensive that the program to support extracurricular
speech would be ineffective. The First Amendment does not require the University to put the
program at risk.
The University may determine that its mission is well served if students have the means to engage in
dynamic discussions of philosophical, religious, scientific, social, and political subjects in their
extracurricular campus life outside the lecture hall. If the University reaches this conclusion, it is
entitled to impose a mandatory fee to sustain an open dialogue to these ends.
The University must provide some protection to its students' First Amendment interests, however.
The proper measure, and the principal standard of protection for objecting students, we conclude, is
the requirement of viewpoint neutrality in the allocation of funding support. * * * When a university
requires its students to pay fees to support the extracurricular speech of other students, all in the
interest of open discussion, it may not prefer some viewpoints to others. There is symmetry then in
our holding here and in Rosenberger[v. Rector and Visitors of Univ. of Va. (1995)]: Viewpoint
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neutrality is the justification for requiring the student to pay the fee in the first instance and for
ensuring the integrity of the program's operation once the funds have been collected. We conclude
that the University of Wisconsin may sustain the extracurricular dimensions of its programs by using
mandatory student fees with viewpoint neutrality as the operational principle.
The parties have stipulated that the program the University has developed to stimulate
extracurricular student expression respects the principle of viewpoint neutrality. If the stipulation is
to continue to control the case, the University's program in its basic structure must be found
consistent with the First Amendment.
Our decision ought not to be taken to imply that in other instances the University, its agents or
employees, or--of particular importance--its faculty, are subject to the First Amendment analysis
which controls in this case. Where the University speaks, either in its own name through its regents
or officers, or in myriad other ways through its diverse faculties, the analysis likely would be
altogether different. The Court has not held, or suggested, that when the government speaks the rules
we have discussed come into play.
III
It remains to discuss the referendum aspect of the University's program. While the record is not well
developed on the point, it appears that by majority vote of the student body a given RSO may be
funded or defunded. It is unclear to us what protection, if any, there is for viewpoint neutrality in this
part of the process. To the extent the referendum substitutes majority determinations for viewpoint
neutrality it would undermine the constitutional protection the program requires. The whole theory
of viewpoint neutrality is that minority views are treated with the same respect as are majority views.
Access to a public forum, for instance, does not depend upon majoritarian consent. That principle is
controlling here. A remand is necessary and appropriate to resolve this point; and the case in all
events must be reexamined in light of the principles we have discussed.
The judgment of the Court of Appeals is reversed. * * *

Johanns v. Livestock Marketing Ass’n
544 U.S. 550 (2005)
SCALIA, J., DELIVERED THE OPINION OF THE COURT, IN WHICH REHNQUIST, C. J., AND O’CONNOR, THOMAS, AND
BREYER, JJ., JOINED. THOMAS, J., AND BREYER, J., FILED CONCURRING OPINIONS. GINSBURG, J., FILED AN OPINION
CONCURRING IN THE JUDGMENT. KENNEDY, J., FILED A DISSENTING OPINION. SOUTER, J., FILED A DISSENTING OPINION,
IN WHICH STEVENS AND KENNEDY, JJ., JOINED.
JUSTICE SCALIA DELIVERED THE OPINION OF THE COURT.
For the third time in eight years, we consider whether a federal program that finances generic
advertising to promote an agricultural product violates the First Amendment. In these cases, unlike
the previous two, the dispositive question is whether the generic advertising at issue is the
Government’s own speech and therefore is exempt from First Amendment scrutiny.
I
A
The Beef Promotion and Research Act of 1985 (Beef Act or Act), announces a federal policy of
promoting the marketing and consumption of “beef and beef products,” using funds raised by an
assessment on cattle sales and importation. The statute directs the Secretary of Agriculture to
implement this policy by issuing a Beef Promotion and Research Order (Beef Order or Order), and
specifies four key terms it must contain: The Secretary is to appoint a Cattlemen’s Beef Promotion
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and Research Board (Beef Board or Board), whose members are to be a geographically
representative group of beef producers and importers, nominated by trade associations. The Beef
Board is to convene an Operating Committee, composed of 10 Beef Board members and 10
representatives named by a federation of state beef councils. The Secretary is to impose a $1-perhead assessment (or “checkoff”) on all sales or importation of cattle and a comparable assessment on
imported beef products. And the assessment is to be used to fund beef-related projects, including
promotional campaigns, designed by the Operating Committee and approved by the Secretary.
The Secretary promulgated the Beef Order with the specified terms. The assessment is collected
primarily by state beef councils, which then forward the proceeds to the Beef Board. The Operating
Committee proposes projects to be funded by the checkoff, including promotion and research. The
Secretary or his designee approves each project and, in the case of promotional materials, the
content of each communication. * * * Many promotional messages funded by the checkoff (though not
all) bear the attribution “Funded by America’s Beef Producers.” Most print and television messages
also bear a Beef Board logo, usually a check-mark with the word “BEEF.”
II
We have sustained First Amendment challenges to allegedly compelled expression in two categories
of cases: true “compelled speech” cases, in which an individual is obliged personally to express a
message he disagrees with, imposed by the government; and “compelled subsidy” cases, in which an
individual is required by the government to subsidize a message he disagrees with, expressed by a
private entity. We have not heretofore considered the First Amendment consequences of
government-compelled subsidy of the government’s own speech.
We first invalidated an outright compulsion of speech in West Virginia Bd. of Ed. v. Barnette (1943).
The State required every schoolchild to recite the Pledge of Allegiance while saluting the American
flag, on pain of expulsion from the public schools. We held that the First Amendment does not
“le[ave] it open to public authorities to compel [a person] to utter” a message with which he does not
agree. Likewise, in Wooley v. Maynard (1977), we held that requiring a New Hampshire couple to
bear the State’s motto, “Live Free or Die,” on their cars’ license plates was an impermissible
compulsion of expression. Obliging people to “use their private property as a ‘mobile billboard’ for
the State’s ideological message” amounted to impermissible compelled expression.
The reasoning of these compelled-speech cases has been carried over to certain instances in which
individuals are compelled not to speak, but to subsidize a private message with which they disagree.
Thus, although we have upheld state-imposed requirements that lawyers be members of the state
bar and pay its annual dues, and that public- school teachers either join the labor union representing
their “shop” or pay “service fees” equal to the union dues, we have invalidated the use of the
compulsory fees to fund speech on political matters. See Keller v. State Bar of Cal. (1990); Abood v.
Detroit Bd. of Ed. (1977). Bar or union speech with such content, we held, was not germane to the
regulatory interests that justified compelled membership, and accordingly, making those who
disagreed with it pay for it violated the First Amendment.
These latter cases led us to sustain a compelled-subsidy challenge to an assessment very similar to
the beef check-off, imposed to fund mushroom advertising. Deciding the case on the assumption that
the advertising was private speech, not government speech, we concluded that Abood and Keller
were controlling. As in those cases, mushroom producers were obliged by “law or necessity” to pay
the checkoff; although Abood and Keller would permit the mandatory fee if it were “germane” to a
“broader regulatory scheme,” in United States v. United Foods (2001) the only regulatory purpose was
the funding of the advertising.
In all of the cases invalidating exactions to subsidize speech, the speech was, or was presumed to be,
that of an entity other than the government itself. * * * Our compelled-subsidy cases have
consistently respected the principle that “[c]ompelled support of a private association is
fundamentally different from compelled support of government.” Abood (Powell, J., concurring in
judgment). “Compelled support of government”—even those programs of government one does not
approve—is of course perfectly constitutional, as every taxpayer must attest. And some government
programs involve, or entirely consist of, advocating a position. “The government, as a general rule,
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may support valid programs and policies by taxes or other exactions binding on protesting parties.
Within this broader principle it seems inevitable that funds raised by the government will be spent
for speech and other expression to advocate and defend its own policies.” Southworth. We have
generally assumed, though not yet squarely held, that compelled funding of government speech does
not alone raise First Amendment concerns. * * *
III
Respondents do not seriously dispute these principles, nor do they contend that, as a general matter,
their First Amendment challenge requires them to show only that their checkoff dollars pay for
speech with which they disagree. Rather, they assert that the challenged promotional campaigns
differ dispositively from the type of government speech that, our cases suggest, is not susceptible to
First Amendment challenge. They point to the role of the Beef Board and its Operating Committee in
designing the promotional campaigns, and to the use of a mandatory assessment on beef producers
to fund the advertising. We consider each in turn.
A
The Secretary of Agriculture does not write ad copy himself. Rather, the Beef Board’s promotional
campaigns are designed by the Beef Board’s Operating Committee, only half of whose members are
Beef Board members appointed by the Secretary. (All members of the Operating Committee are
subject to removal by the Secretary.) Respondents contend that speech whose content is effectively
controlled by a nongovernmental entity—the Operating Committee—cannot be considered
“government speech.” We need not address this contention, because we reject its premise: The
message of the promotional campaigns is effectively controlled by the Federal Government itself.
Moreover, the record demonstrates that the Secretary exercises final approval authority over every
word used in every promotional campaign. All proposed promotional messages are reviewed by
Department officials both for substance and for wording, and some proposals are rejected or
rewritten by the Department. Nor is the Secretary’s role limited to final approval or rejection:
officials of the Department also attend and participate in the open meetings at which proposals are
developed.
This degree of governmental control over the message funded by the checkoff distinguishes these
cases from Keller. * * * When, as here, the government sets the overall message to be communicated
and approves every word that is disseminated, it is not precluded from relying on the governmentspeech doctrine merely because it solicits assistance from nongovernmental sources in developing
specific messages.
B
Respondents also contend that the beef program does not qualify as “government speech” because it
is funded by a targeted assessment on beef producers, rather than by general revenues. This funding
mechanism, they argue, has two relevant effects: it gives control over the beef program not to
politically accountable legislators, but to a narrow interest group that will pay no heed to
respondents’ dissenting views, and it creates the perception that the advertisements speak for beef
producers such as respondents.
We reject the first point. The compelled-subsidy analysis is altogether unaffected by whether the
funds for the promotions are raised by general taxes or through a targeted assessment. Citizens may
challenge compelled support of private speech, but have no First Amendment right not to fund
government speech. And that is no less true when the funding is achieved through targeted
assessments devoted exclusively to the program to which the assessed citizens object. * * *
Here, the beef advertisements are subject to political safeguards more than adequate to set them
apart from private messages. The program is authorized and the basic message prescribed by federal
statute, and specific requirements for the promotions’ content are imposed by federal regulations
promulgated after notice and comment. The Secretary of Agriculture, a politically accountable
official, oversees the program, appoints and dismisses the key personnel, and retains absolute veto
power over the advertisements’ content, right down to the wording. And Congress, of course, retains
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oversight authority, not to mention the ability to reform the program at any time. No more is
required.
As to the second point, respondents’ argument proceeds as follows: They contend that crediting the
advertising to “America’s Beef Producers” impermissibly uses not only their money but also their
seeming endorsement to pro- mote a message with which they do not agree. Communications cannot
be “government speech,” they argue, if they are attributed to someone other than the government;
and the person to whom they are attributed, when he is, by compulsory funding, made the unwilling
instrument of communication, may raise a First Amendment objection.
We need not determine the validity of this argument— which relates to compelled speech rather than
compelled subsidy—with regard to respondents’ facial challenge. Since neither the Beef Act nor the
Beef Order requires attribution, neither can be the cause of any possible First Amendment harm.
Whether the individual respondents who are beef producers would be associated with speech labeled
as coming from “America’s Beef Producers” is a question on which the trial record is altogether silent.
We have only the funding tagline itself, a trademarked term that, standing alone, is not sufficiently
specific to convince a reasonable factfinder that any particular beef producer, or all beef producers,
would be tarred with the content of each trademarked ad. We therefore conclude that on the record
before us an as-applied First Amendment challenge to the individual advertisements affords no basis
on which to sustain the Eighth Circuit’s judgment, even in part.

Janus v. American Federation of State, County, and
Municipal Employees
585 U.S. ___ (2018)
ALITO, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ROBERTS, C. J., AND KENNEDY, THOMAS, AND, GORSUCH, JJ.,
JOINED. SOTOMAYOR, J., FILED A DISSENTING OPINION. KAGAN, J., FILED A DISSENTING OPINION, IN WHICH GINSBURG,
BREYER, AND SOTOMAYOR, JJ., JOINED.
JUSTICE ALITO DELIVERED THE OPINION OF THE COURT.
Under Illinois law, public employees are forced to subsidize a union, even if they choose not to join
and strongly object to the positions the union takes in collective bargaining and related activities. We
conclude that this arrangement violates the free speech rights of nonmembers by compelling them to
subsidize private speech on matters of substantial public concern.
We upheld a similar law in Abood v. Detroit Bd. of Ed. (1977), and we recognize the importance of
following precedent unless there are strong reasons for not doing so. But there are very strong
reasons in this case. Fundamental free speech rights are at stake. Abood was poorly reasoned. It has
led to practical problems and abuse. It is inconsistent with other First Amendment cases and has
been undermined by more recent decisions. Developments since Abood was handed down have shed
new light on the issue of agency fees, and no reliance interests on the part of public-sector unions are
sufficient to justify the perpetuation of the free speech violations that Abood has countenanced for
the past 41 years. Abood is therefore overruled.
I
A
Under the Illinois Public Labor Relations Act (IPLRA), employees of the State and its political
subdivisions are permitted to unionize. If a majority of the employees in a bargaining unit vote to be
represented by a union, that union is designated as the exclusive representative of all the employees.
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Employees in the unit are not obligated to join the union selected by their co-workers, but whether
they join or not, that union is deemed to be their sole permitted representative.
Once a union is so designated, it is vested with broad authority. Only the union may negotiate with
the employer on matters relating to “pay, wages, hours[,] and other conditions of employment.” And
this authority extends to the negotiation of what the IPLRA calls “policy matters,” such as merit pay,
the size of the work force, layoffs, privatization, promotion methods, and non-discrimination policies.
Designating a union as the employees’ exclusive representative substantially restricts the rights of
individual employees. Among other things, this designation means that individual employees may
not be represented by any agent other than the designated union; nor may individual employees
negotiate directly with their employer. Protection of the employees’ interests is placed in the hands
of the union, and therefore the union is required by law to provide fair representation for all
employees in the unit, members and nonmembers alike.
Employees who decline to join the union are not assessed full union dues but must instead pay what
is generally called an “agency fee,” which amounts to a percentage of the union dues. Under Abood,
nonmembers may be charged for the portion of union dues attributable to activities that are
“germane to [the union’s] duties as collective-bargaining representative,” but nonmembers may not
be required to fund the union’s political and ideological projects. In labor-law parlance, the outlays in
the first category are known as “chargeable” expenditures, while those in the latter are labeled
“nonchargeable.”
Illinois law does not specify in detail which expenditures are chargeable and which are not. The
IPLRA provides that an agency fee may compensate a union for the costs incurred in “the collective
bargaining process, contract administration[,] and pursuing matters affecting wages, hours[,] and
conditions of employment.” Excluded from the agency-fee calculation are union expenditures
“related to the election or support of any candidate for political office.”
Applying this standard, a union categorizes its expenditures as chargeable or nonchargeable and thus
determines a nonmember’s “proportionate share;” this determination is then audited; the amount of
the “proportionate share” is certified to the employer; and the employer automatically deducts that
amount from the nonmembers’ wages. Nonmembers need not be asked, and they are not required to
consent before the fees are deducted.
* * * As illustrated by the record in this case, unions charge nonmembers, not just for the cost of
collective bargaining per se, but also for many other supposedly connected activities. Here, the
nonmembers were told that they had to pay for “[l]obbying,” “[s]ocial and recreational activities,”
“advertising,” “[m]embership meetings and conventions,” and “litigation,” as well as other
unspecified “[s]ervices” that “may ultimately inure to the benefit of the members of the local
bargaining unit.” The total chargeable amount for nonmembers was 78.06% of full union dues.
B
Petitioner Mark Janus is employed by the Illinois Department of Healthcare and Family Services as a
child support specialist. The employees in his unit are among the 35,000 public employees in Illinois
who are represented by respondent American Federation of State, County, and Municipal Employees,
Council 31 (Union). Janus refused to join the Union because he opposes “many of the public policy
positions that [it] advocates,” including the positions it takes in collective bargaining. Janus believes
that the Union’s “behavior in bargaining does not appreciate the current fiscal crises in Illinois and
does not reflect his best interests or the interests of Illinois citizens.” Therefore, if he had the choice,
he “would not pay any fees or otherwise subsidize [the Union].” Under his unit’s collective-bargaining
agreement, however, he was required to pay an agency fee of $44.58 per month —which would
amount to about $535 per year.
Janus’s concern about Illinois’ current financial situation is shared by the Governor of the State, and it
was the Governor who initially challenged the statute authorizing the imposition of agency fees. The
Governor commenced an action in federal court, asking that the law be declared unconstitutional,
and the Illinois attorney general (a respondent here) intervened to defend the law. Janus and two
other state employees also moved to intervene—but on the Governor’s side.
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* * * * The amended complaint claims that all “nonmember fee deductions are coerced political
speech” and that “the First Amendment forbids coercing any money from the nonmembers.”
Respondents moved to dismiss the amended complaint, correctly recognizing that the claim it
asserted was foreclosed by Abood. The District Court granted the motion and the Court of Appeals for
the Seventh Circuit affirmed.
Janus then sought review in this Court, asking us to overrule Abood and hold that public-sector
agency-fee arrangements are unconstitutional. We granted certiorari to consider this important
question.
II
[omitted discussion of intervention and standing]
III
In Abood, the Court upheld the constitutionality of an agency-shop arrangement like the one now
before us, but in more recent cases we have recognized that this holding is “something of an anomaly,”
Knox v. Service Employees (2012), and that Abood’s “analysis is questionable on several grounds,”
Harris v. Quinn (2014) (discussing flaws in Abood’s reasoning). We have therefore refused to extend
Abood to situations where it does not squarely control, while leaving for another day the question
whether Abood should be overruled, Harris; Knox.
We now address that question. We first consider whether Abood’s holding is consistent with
standard First Amendment principles.
A
The First Amendment, made applicable to the States by the Fourteenth Amendment, forbids
abridgment of the freedom of speech. We have held time and again that freedom of speech “includes
both the right to speak freely and the right to refrain from speaking at all.” Wooley v. Maynard
(1977); Miami Herald Publishing Co. v. Tornillo (1974). The right to eschew association for expressive
purposes is likewise protected. Roberts v. United States Jaycees (1984) (“Freedom of association . . .
plainly presupposes a freedom not to associate”). As Justice Jackson memorably put it: “If there is any
fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what
shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to
confess by word or act their faith therein.” West Virginia Bd. of Ed. v. Barnette (1943) (emphasis
added).
Compelling individuals to mouth support for views they find objectionable violates that cardinal
constitutional command, and in most contexts, any such effort would be universally condemned.
Suppose, for example, that the State of Illinois required all residents to sign a document expressing
support for a particular set of positions on controversial public issues—say, the platform of one of
the major political parties. No one, we trust, would seriously argue that the First Amendment permits
this.
Perhaps because such compulsion so plainly violates the Constitution, most of our free speech cases
have involved restrictions on what can be said, rather than laws compelling speech. But measures
compelling speech are at least as threatening.
Free speech serves many ends. It is essential to our democratic form of government and it furthers
the search for truth. Whenever the Federal Government or a State prevents individuals from saying
what they think on important matters or compels them to voice ideas with which they disagree, it
undermines these ends.
When speech is compelled, however, additional damage is done. In that situation, individuals are
coerced into betraying their convictions. Forcing free and independent individuals to endorse ideas
they find objectionable is always demeaning, and for this reason, one of our landmark free speech
cases said that a law commanding “involuntary affirmation” of objected-to beliefs would require
“even more immediate and urgent grounds” than a law demanding silence. Barnette.

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Compelling a person to subsidize the speech of other private speakers raises similar First
Amendment concerns. Knox; United States v. United Foods, Inc. (2001); Abood. As Jefferson famously
put it, “to compel a man to furnish contributions of money for the propagation of opinions which he
disbelieves and abhor[s] is sinful and tyrannical.” A Bill for Establishing Religious Freedom, in 2
Papers of Thomas Jefferson 545 (J. Boyd ed. 1950) (emphasis deleted and footnote omitted. We have
therefore recognized that a “‘significant impingement on First Amendment rights’” occurs when
public employees are required to provide financial support for a union that “takes many positions
during collective bargaining that have powerful political and civic consequences.” Knox.
Because the compelled subsidization of private speech seriously impinges on First Amendment rights,
it cannot be casually allowed. Our free speech cases have identified “levels of scrutiny” to be applied
in different contexts, and in three recent cases, we have considered the standard that should be used
in judging the constitutionality of agency fees. See Knox; Harris; and Friedrichs v. California Teachers
Assn.(2016) (per curiam) (affirming decision below by equally divided Court).
In Knox, the first of these cases, we found it sufficient to hold that the conduct in question was
unconstitutional under even the test used for the compulsory subsidization of commercial speech.
Even though commercial speech has been thought to enjoy a lesser degree of protection, see, e.g.,
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y. (1980) [ chapter 9], prior precedent in
that area, specifically United Foods, had applied what we characterized as “exacting” scrutiny, Knox, a
less demanding test than the “strict” scrutiny that might be thought to apply outside the commercial
sphere. Under “exacting” scrutiny, we noted, a compelled subsidy must “serve a compelling state
interest that cannot be achieved through means significantly less restrictive of associational
freedoms.”
In Harris, the second of these cases, we again found that an agency-fee requirement failed “exacting
scrutiny.” But we questioned whether that test provides sufficient protection for free speech rights,
since “it is apparent that the speech compelled” in agency-fee cases “is not commercial speech.”
Picking up that cue, petitioner in the present case contends that the Illinois law at issue should be
subjected to “strict scrutiny.” The dissent, on the other hand, proposes that we apply what amounts
to rational-basis review, that is, that we ask only whether a government employer could reasonably
believe that the exaction of agency fees serves its interests. (Kagan, J., dissenting) (“A government
entity could reasonably conclude that such a clause was needed”). This form of minimal scrutiny is
foreign to our free-speech jurisprudence, and we reject it here. At the same time, we again find it
unnecessary to decide the issue of strict scrutiny because the Illinois scheme cannot survive under
even the more permissive standard applied in Knox and Harris.
In the remainder of this part of our opinion (Parts III–B and III–C), we will apply this standard to the
justifications for agency fees adopted by the Court in Abood. Then, in Parts IV and V, we will turn to
alternative rationales proffered by respondents and their amici.
B
In Abood, the main defense of the agency-fee arrangement was that it served the State’s interest in
“labor peace.” By “labor peace,” the Abood Court meant avoidance of the conflict and disruption that
it envisioned would occur if the employees in a unit were represented by more than one union. In
such a situation, the Court predicted, “inter-union rivalries” would foster “dissension within the work
force,” and the employer could face “conflicting demands from different unions.” Confusion would
ensue if the employer entered into and attempted to “enforce two or more agreements specifying
different terms and conditions of employment.” And a settlement with one union would be “subject
to attack from [a] rival labor organizatio[n].”
We assume that “labor peace,” in this sense of the term, is a compelling state interest, but Abood cited
no evidence that the pandemonium it imagined would result if agency fees were not allowed, and it is
now clear that Abood’s fears were unfounded. The Abood Court assumed that designation of a union
as the exclusive representative of all the employees in a unit and the exaction of agency fees are
inextricably linked, but that is simply not true. Harris.

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The federal employment experience is illustrative. Under federal law, a union chosen by majority
vote is designated as the exclusive representative of all the employees, but federal law does not
permit agency fees. * * * Likewise, millions of public employees in the 28 States that have laws
generally prohibiting agency fees are represented by unions that serve as the exclusive
representatives of all the employees. Whatever may have been the case 41 years ago when Abood
was handed down, it is now undeniable that “labor peace” can readily be achieved “through means
significantly less restrictive of associational freedoms” than the assessment of agency fees. Harris.
C
In addition to the promotion of “labor peace,” Abood cited “the risk of ‘free riders’” as justification for
agency fees. Respondents and some of their amici endorse this reasoning, contending that agency
fees are needed to prevent nonmembers from enjoying the benefits of union representation without
shouldering the costs.
Petitioner strenuously objects to this free-rider label. He argues that he is not a free rider on a bus
headed for a destination that he wishes to reach but is more like a person shanghaied for an
unwanted voyage.
Whichever description fits the majority of public employees who would not subsidize a union if given
the option, avoiding free riders is not a compelling interest. As we have noted, “free-rider
arguments . . . are generally insufficient to overcome First Amendment objections.” Knox. To hold
otherwise across the board would have startling consequences. Many private groups speak out with
the objective of obtaining government action that will have the effect of benefiting nonmembers. May
all those who are thought to benefit from such efforts be compelled to subsidize this speech?
Suppose that a particular group lobbies or speaks out on behalf of what it thinks are the needs of
senior citizens or veterans or physicians, to take just a few examples. Could the government require
that all seniors, veterans, or doctors pay for that service even if they object? It has never been
thought that this is permissible. “[P]rivate speech often furthers the interests of nonspeakers,” but
“that does not alone empower the state to compel the speech to be paid for.” Lehnert v. Ferris Faculty
Assn. (1991) (Scalia, J., concurring in judgment in part and dissenting in part). In simple terms, the
First Amendment does not permit the government to compel a person to pay for another party’s
speech just because the government thinks that the speech furthers the interests of the person who
does not want to pay.
Those supporting agency fees contend that the situation here is different because unions are
statutorily required to “represen[t] the interests of all public employees in the unit,” whether or not
they are union members. Why might this matter?
We can think of two possible arguments. It might be argued that a State has a compelling interest in
requiring the payment of agency fees because (1) unions would otherwise be unwilling to represent
nonmembers or (2) it would be fundamentally unfair to require unions to provide fair representation
for nonmembers if nonmembers were not required to pay. Neither of these arguments is sound.
First, it is simply not true that unions will refuse to serve as the exclusive representative of all
employees in the unit if they are not given agency fees. As noted, unions represent millions of public
employees in jurisdictions that do not permit agency fees. No union is ever compelled to seek that
designation. On the contrary, designation as exclusive representative is avidly sought. Why is this so?
Even without agency fees, designation as the exclusive representative confers many benefits. As
noted, that status gives the union a privileged place in negotiations over wages, benefits, and working
conditions. Not only is the union given the exclusive right to speak for all the employees in collective
bargaining, but the employer is required by state law to listen to and to bargain in good faith with
only that union. Designation as exclusive representative thus “results in a tremendous increase in the
power” of the union. American Communications Assn. v. Douds (1950).
In addition, a union designated as exclusive representative is often granted special privileges, such as
obtaining information about employees, and having dues and fees deducted directly from employee
wages. The collective-bargaining agreement in this case guarantees a long list of additional privileges.
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These benefits greatly outweigh any extra burden imposed by the duty of providing fair
representation for nonmembers. What this duty entails, in simple terms, is an obligation not to “act
solely in the interests of [the union’s] own members.”
What does this mean when it comes to the negotiation of a contract? The union may not negotiate a
collective-bargaining agreement that discriminates against nonmembers, see Steele v. Louisville &
Nashville R. Co. (1944), but the union’s bargaining latitude would be little different if state law simply
prohibited public employers from entering into agreements that discriminate in that way. And for
that matter, it is questionable whether the Constitution would permit a public-sector employer to
adopt a collective-bargaining agreement that discriminates against nonmembers. See id (analogizing
a private-sector union’s fair-representation duty to the duty “the Constitution imposes upon a
legislature to give equal protection to the interests of those for whom it legislates”); cf. Rumsfeld v.
Forum for Academic and Institutional Rights, Inc. (2006) (recognizing that government may not
“impose penalties or withhold benefits based on membership in a disfavored group” where doing so
“ma[kes] group membership less attractive”). To the extent that an employer would be barred from
acceding to a discriminatory agreement anyway, the union’s duty not to ask for one is superfluous. It
is noteworthy that neither respondents nor any of the 39 amicus briefs supporting them—nor the
dissent—has explained why the duty of fair representation causes public-sector unions to incur
significantly greater expenses than they would otherwise bear in negotiating collective-bargaining
agreements.
What about the representation of nonmembers in grievance proceedings? Unions do not undertake
this activity solely for the benefit of nonmembers—which is why Illinois law gives a public-sector
union the right to send a representative to such proceedings even if the employee declines union
representation. Representation of nonmembers furthers the union’s interest in keeping control of the
administration of the collective-bargaining agreement, since the resolution of one employee’s grievance can
affect others. And when a union controls the grievance process, it may, as a practical matter, effectively
subordinate “the interests of [an] individual employee . . . to the collective interests of all employees in the
bargaining unit.” Alexander v. Gardner-Denver Co (1974).
In any event, whatever unwanted burden is imposed by the representation of nonmembers in
disciplinary matters can be eliminated “through means significantly less restrictive of associational
freedoms” than the imposition of agency fees. Harris. Individual nonmembers could be required to
pay for that service or could be denied union representation altogether. Thus, agency fees cannot be
sustained on the ground that unions would otherwise be unwilling to represent nonmembers.
Nor can such fees be justified on the ground that it would otherwise be unfair to require a union to
bear the duty of fair representation. That duty is a necessary concomitant of the authority that a
union seeks when it chooses to serve as the exclusive representative of all the employees in a unit. * *
*
In sum, we do not see any reason to treat the free-rider interest any differently in the agency-fee
context than in any other First Amendment context. See Knox. We therefore hold that agency fees
cannot be upheld on free-rider grounds.
IV
Implicitly acknowledging the weakness of Abood’s own reasoning, proponents of agency fees have
come forward with alternative justifications for the decision, and we now address these arguments.
A
The most surprising of these new arguments is the Union respondent’s originalist defense of Abood.
According to this argument, Abood was correctly decided because the First Amendment was not
originally understood to provide any protection for the free speech rights of public employees.
As an initial matter, we doubt that the Union—or its members—actually want us to hold that public
employees have “no [free speech] rights.”
It is particularly discordant to find this argument in a brief that trumpets the importance of stare
decisis. Taking away free speech protection for public employees would mean overturning decades of
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landmark precedent. Under the Union’s theory, Pickering v. Board of Ed. of Township High School Dist.
205, Will Cty. (1968), and its progeny would fall. Yet Pickering, as we will discuss, is now the
foundation for respondents’ chief defense of Abood. And indeed, Abood itself would have to go if
public employees have no free speech rights, since Abood holds that the First Amendment prohibits
the exaction of agency fees for political or ideological purposes. Our political patronage cases would
be doomed. See, e.g., Rutan v. Republican Party of Ill.(1990); Branti v. Finkel (1980); Elrod v. Burns
(1976). Also imperiled would be older precedents like Wieman v. Updegraff (1952) (loyalty oaths),
Shelton v. Tucker (1960) (disclosure of memberships and contributions), and Keyishian v. Board of
Regents of Univ. of State of N. Y., (1967) (subversive speech). Respondents presumably want none of
this, desiring instead that we apply the Constitution’s supposed original meaning only when it suits
them—to retain the part of Abood that they like. We will not engage in this halfway originalism.
Nor, in any event, does the First Amendment’s original meaning support the Union’s claim. The Union
offers no persuasive founding-era evidence that public employees were understood to lack free
speech protections. While it observes that restrictions on federal employees’ activities have existed
since the First Congress, most of its historical examples involved limitations on public officials’
outside business dealings, not on their speech. The only early speech restrictions the Union identifies
are an 1806 statute prohibiting military personnel from using “‘contemptuous or disrespectful words
against the President’” and other officials, and an 1801 directive limiting electioneering by top
government employees. But those examples at most show that the government was understood to
have power to limit employee speech that threatened important governmental interests (such as
maintaining military discipline and preventing corruption)—not that public employees’ speech was
entirely unprotected. Indeed, more recently this Court has upheld similar restrictions even while
recognizing that government employees possess First Amendment rights. See, e.g., Brown v. Glines
(1980) (upholding military restriction on speech that threatened troop readiness); Civil Service
Comm’n v. Letter Carriers (1973) (upholding limits on public employees’ political activities).
Ultimately, the Union relies, not on founding-era evidence, but on dictum from a 1983 opinion of this
Court stating that, “[f]or most of th[e 20th] century, the unchallenged dogma was that a public
employee had no right to object to conditions placed upon the terms of employment—including
those which restricted the exercise of constitutional rights.” Connick v. Myers. Even on its own terms,
this dictum about 20th-century views does not purport to describe how the First Amendment was
understood in 1791. And a careful examination of the decisions by this Court that Connick cited to
support its dictum reveals that none of them rested on the facile premise that public employees are
unprotected by the First Amendment. Instead, they considered (much as we do today) whether
particular speech restrictions were “necessary to protect” fundamental government interests.
The Union has also failed to show that, even if public employees enjoyed free speech rights, the First
Amendment was nonetheless originally understood to allow forced subsidies like those at issue here.
We can safely say that, at the time of the adoption of the First Amendment, no one gave any thought
to whether public-sector unions could charge nonmembers agency fees. Entities resembling labor
unions did not exist at the founding, and public-sector unions did not emerge until the mid-20th
century. The idea of public-sector unionization and agency fees would astound those who framed and
ratified the Bill of Rights. Thus, the Union cannot point to any accepted founding-era practice that
even remotely resembles the compulsory assessment of agency fees from public-sector employees.
We do know, however, that prominent members of the founding generation condemned laws
requiring public employees to affirm or support beliefs with which they disagreed. As noted,
Jefferson denounced compelled support for such beliefs as “ ‘sinful and tyrannical,’ and others
expressed similar views.
In short, the Union has offered no basis for concluding that Abood is supported by the original
understanding of the First Amendment.
B
The principal defense of Abood advanced by respondents and the dissent is based on our decision in
Pickering, which held that a school district violated the First Amendment by firing a teacher for
writing a letter critical of the school administration. Under Pickering and later cases in the same line,
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employee speech is largely unprotected if it is part of what the employee is paid to do, see Garcetti
(2006), or if it involved a matter of only private concern, see Connick. On the other hand, when a
public employee speaks as a citizen on a matter of public concern, the employee’s speech is protected
unless “‘the interest of the state, as an employer, in promoting the efficiency of the public services it
performs through its employees’ outweighs ‘the interests of the [employee], as a citizen, in
commenting upon matters of public concern.’” Harris (quoting Pickering). Pickering was the
centerpiece of the defense of Abood in Harris and we found the argument unpersuasive. The
intervening years have not improved its appeal.
1
As we pointed out in Harris, Abood was not based on Pickering. The Abood majority cited the case
exactly once—in a footnote—and then merely to acknowledge that “there may be limits on the extent
to which an employee in a sensitive or policymaking position may freely criticize his superiors and
the policies they espouse.” That aside has no bearing on the agency-fee issue here.
Respondents’ reliance on Pickering is thus “an effort to find a new justification for the decision in
Abood.” * * * We see no good reason, at this late date, to try to shoehorn Abood into the Pickering
framework.
2
Even if that were attempted, the shoe would be a painful fit for at least three reasons.
First, the Pickering framework was developed for use in a very different context—in cases that
involve “one employee’s speech and its impact on that employee’s public responsibilities.” * * * The
end product of those adjustments is a test that more closely resembles exacting scrutiny than the
traditional Pickering analysis.
The core collective-bargaining issue of wages and benefits illustrates this point. Suppose that a single
employee complains that he or she should have received a 5% raise. This individual complaint would
likely constitute a matter of only private concern and would therefore be unprotected under
Pickering. But a public-sector union’s demand for a 5% raise for the many thousands of employees it
represents would be another matter entirely. Granting such a raise could have a serious impact on
the budget of the government unit in question, and by the same token, denying a raise might have a
significant effect on the performance of government services. When a large number of employees
speak through their union, the category of speech that is of public concern is greatly enlarged, and
the category of speech that is of only private concern is substantially shrunk. By disputing this, the
dissent denies the obvious.
Second, the Pickering framework fits much less well where the government compels speech or
speech subsidies in support of third parties. Pickering is based on the insight that the speech of a
public-sector employee may interfere with the effective operation of a government office. When a
public employer does not simply restrict potentially disruptive speech but commands that its
employees mouth a message on its own behalf, the calculus is very different. Of course, if the speech
in question is part of an employee’s official duties, the employer may insist that the employee deliver
any lawful message. See Garcetti. Otherwise, however, it is not easy to imagine a situation in which a
public employer has a legitimate need to demand that its employees recite words with which they
disagree. And we have never applied Pickering in such a case.
Consider our decision in Connick. In that case, we held that an assistant district attorney’s complaints
about the supervisors in her office were, for the most part, matters of only private concern. As a
result, we held, the district attorney could fire her for making those comments. Now, suppose that the
assistant had not made any critical comments about the supervisors but that the district attorney, out
of the blue, demanded that she circulate a memo praising the supervisors. Would her refusal to go
along still be a matter of purely private concern? And if not, would the order be justified on the
ground that the effective operation of the office demanded that the assistant voice complimentary
sentiments with which she disagreed? If Pickering applies at all to compelled speech—a question that
we do not decide—it would certainly require adjustment in that context.

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Third, although both Pickering and Abood divided speech into two categories, the cases’
categorization schemes do not line up. Superimposing the Pickering scheme on Abood would
significantly change the Abood regime.
Let us first look at speech that is not germane to collective bargaining but instead concerns political
or ideological issues. Under Abood, a public employer is flatly prohibited from permitting
nonmembers to be charged for this speech, but under Pickering, the employees’ free speech interests
could be overcome if a court found that the employer’s interests outweighed the employees’.
A similar problem arises with respect to speech that is germane to collective bargaining. The parties
dispute how much of this speech is of public concern, but respondents concede that much of it falls
squarely into that category. Under Abood, nonmembers may be required to pay for all this speech,
but Pickering would permit that practice only if the employer’s interests outweighed those of the
employees. Thus, recasting Abood as an application of Pickering would substantially alter the Abood
scheme.
For all these reasons, Pickering is a poor fit indeed.
V
Even if we were to apply some form of Pickering, Illinois’ agency-fee arrangement would not survive.
A
Respondents begin by suggesting that union speech in collective-bargaining and grievance
proceedings should be treated like the employee speech in Garcetti, i.e., as speech “pursuant to [an
employee’s] official duties.” Many employees, in both the public and private sectors, are paid to write
or speak for the purpose of furthering the interests of their employers. There are laws that protect
public employees from being compelled to say things that they reasonably believe to be untrue or
improper, but in general when public employees are performing their job duties, their speech may be
controlled by their employer. Trying to fit union speech into this framework, respondents now
suggest that the union speech funded by agency fees forms part of the official duties of the union
officers who engage in the speech.
This argument distorts collective bargaining and grievance adjustment beyond recognition. When an
employee engages in speech that is part of the employee’s job duties, the employee’s words are really
the words of the employer. The employee is effectively the employer’s spokesperson. But when a
union negotiates with the employer or represents employees in disciplinary proceedings, the union
speaks for the employees, not the employer. Otherwise, the employer would be negotiating with itself
and disputing its own actions. That is not what anybody understands to be happening.
What is more, if the union’s speech is really the employer’s speech, then the employer could dictate
what the union says. Unions, we trust, would be appalled by such a suggestion. For these reasons,
Garcetti is totally inapposite here.
B
Since the union speech paid for by agency fees is not controlled by Garcetti, we move on to the next
step of the Pickering framework and ask whether the speech is on a matter of public or only private
concern. In Harris, the dissent’s central argument in defense of Abood was that union speech in
collective bargaining, including speech about wages and benefits, is basically a matter of only private
interest. (Kagan, J., dissenting). We squarely rejected that argument and the facts of the present case
substantiate what we said at that time: “[I]t is impossible to argue that the level of . . . state spending
for employee benefits . . . is not a matter of great public concern.”
Illinois, like some other States and a number of counties and cities around the country, suffers from
severe budget problems. * * *
In addition to affecting how public money is spent, union speech in collective bargaining addresses
many other important matters. As the examples offered by respondents’ own amici show, unions
express views on a wide range of subjects—education, child welfare, healthcare, and minority rights,

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to name a few. What unions have to say on these matters in the context of collective bargaining is of
great public importance.
Take the example of education, which was the focus of briefing and argument in Friedrichs. The
public importance of subsidized union speech is especially apparent in this field, since educators
make up by far the largest category of state and local government employees, and education is
typically the largest component of state and local government expenditures.
Speech in this area also touches on fundamental questions of education policy. Should teacher pay be
based on seniority, the better to retain experienced teachers? Or should schools adopt merit-pay
systems to encourage teachers to get the best results out of their students? Should districts transfer
more experienced teachers to the lower performing schools that may have the greatest need for their
skills, or should those teachers be allowed to stay where they have put down roots? Should teachers
be given tenure protection and, if so, under what conditions? On what grounds and pursuant to what
procedures should teachers be subject to discipline or dismissal? How should teacher performance
and student progress be measured—by standardized tests or other means?
Unions can also speak out in collective bargaining on controversial subjects such as climate change,
the Confederacy, sexual orientation and gender identity, evolution, and minority religions. These are
sensitive political topics, and they are undoubtedly matters of profound “‘value and concern to the
public.’” Snyder v. Phelps (2011). We have often recognized that such speech “‘occupies the highest
rung of the hierarchy of First Amendment values’” and merits “‘special protection.’”
* * * In short, the union speech at issue in this case is overwhelmingly of substantial public concern.
C
The only remaining question under Pickering is whether the State’s proffered interests justify the
heavy burden that agency fees inflict on nonmembers’ First Amendment interests. We have already
addressed the state interests asserted in Abood—promoting “labor peace” and avoiding free riders —
and we will not repeat that analysis.
* * * We readily acknowledge, as Pickering did, that “the State has interests as an employer in
regulating the speech of its employees that differ significantly from those it possesses in connection
with regulation of the speech of the citizenry in general.” Our analysis is consistent with that
principle. The exacting scrutiny standard we apply in this case was developed in the context of
commercial speech, another area where the government has traditionally enjoyed greater-than-usual
power to regulate speech. It is also not disputed that the State may require that a union serve as
exclusive bargaining agent for its employees—itself a significant impingement on associational
freedoms that would not be tolerated in other contexts. We simply draw the line at allowing the
government to go further still and require all employees to support the union irrespective of whether
they share its views. Nothing in the Pickering line of cases requires us to uphold every speech
restriction the government imposes as an employer.
VI
For the reasons given above, we conclude that public-sector agency-shop arrangements violate the
First Amendment, and Abood erred in concluding otherwise. There remains the question whether
stare decisis nonetheless counsels against overruling Abood. It does not.
“Stare decisis is the preferred course because it promotes the evenhanded, predictable, and
consistent development of legal principles, fosters reliance on judicial decisions, and contributes to
the actual and perceived integrity of the judicial process.” We will not overturn a past decision unless
there are strong grounds for doing so. But as we have often recognized, stare decisis is “‘not an
inexorable command.’”
The doctrine “is at its weakest when we interpret the Constitution because our interpretation can be
altered only by constitutional amendment or by overruling our prior decisions.” And stare decisis
applies with perhaps least force of all to decisions that wrongly denied First Amendment rights: “This
Court has not hesitated to overrule decisions offensive to the First Amendment (a fixed star in our
constitutional constellation, if there is one).” Federal Election Comm’n v. Wisconsin Right to Life, Inc.
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(2007) (Scalia, J., concurring in part and concurring in judgment) (internal quotation marks omitted);
see also Citizens United (overruling Austin); Barnette (overruling Minersville School Dist. v. Gobitis).
Our cases identify factors that should be taken into account in deciding whether to overrule a past
decision. Five of these are most important here: the quality of Abood’s reasoning, the workability of
the rule it established, its consistency with other related decisions, developments since the decision
was handed down, and reliance on the decision. After analyzing these factors, we conclude that stare
decisis does not require us to retain Abood.
*

*

*

We recognize that the loss of payments from nonmembers may cause unions to experience
unpleasant transition costs in the short term, and may require unions to make adjustments in order
to attract and retain members. But we must weigh these disadvantages against the considerable
windfall that unions have received under Abood for the past 41 years. It is hard to estimate how
many billions of dollars have been taken from nonmembers and transferred to public-sector unions
in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue
indefinitely.
All these reasons—that Abood’s proponents have abandoned its reasoning, that the precedent has
proved unworkable, that it conflicts with other First Amendment decisions, and that subsequent
developments have eroded its underpinnings—provide the “ ‘special justification[s]’ ” for overruling
Abood.
VII
For these reasons, States and public-sector unions may no longer extract agency fees from
nonconsenting employees. *
*
*
Abood was wrongly decided and is now overruled. The judgment of the United States Court of
Appeals for the Seventh Circuit is reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.

JUSTICE KAGAN, WITH WHOM JUSTICE GINSBURG, JUSTICE BREYER, AND JUSTICE SOTOMAYOR JOIN, DISSENTING.
For over 40 years, Abood v. Detroit Bd. of Ed., (1977), struck a stable balance between public
employees’ First Amendment rights and government entities’ interests in running their workforces
as they thought proper. Under that decision, a government entity could require public employees to
pay a fair share of the cost that a union incurs when negotiating on their behalf over terms of
employment. But no part of that fair-share payment could go to any of the union’s political or
ideological activities.
That holding fit comfortably with this Court’s general framework for evaluating claims that a
condition of public employment violates the First Amendment. The Court’s decisions have long made
plain that government entities have substantial latitude to regulate their employees’ speech—
especially about terms of employment—in the interest of operating their workplaces effectively.
Abood allowed governments to do just that. While protecting public employees’ expression about
non-workplace matters, the decision enabled a government to advance important managerial
interests—by ensuring the presence of an exclusive employee representative to bargain with. Far
from an “anomaly,” the Abood regime was a paradigmatic example of how the government can
regulate speech in its capacity as an employer.
Not any longer. Today, the Court succeeds in its 6-year campaign to reverse Abood. See Friedrichs v.
California Teachers Assn. (2016) (per curiam); Harris v. Quinn (2014); Knox v. Service Employees
(2012). Its decision will have large-scale consequences. Public employee unions will lose a secure
source of financial support. State and local governments that thought fair-share provisions furthered
their interests will need to find new ways of managing their workforces. Across the country, the
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relationships of public employees and employers will alter in both predictable and wholly
unexpected ways.
Rarely if ever has the Court overruled a decision—let alone one of this import—with so little regard
for the usual principles of stare decisis. There are no special justifications for reversing Abood. It has
proved workable. No recent developments have eroded its underpinnings. And it is deeply
entrenched, in both the law and the real world. More than 20 States have statutory schemes built on
the decision. Those laws underpin thousands of ongoing contracts involving millions of employees.
Reliance interests do not come any stronger than those surrounding Abood. And likewise, judicial
disruption does not get any greater than what the Court does today. I respectfully dissent.
I
I begin with Abood, the 41-year-old precedent the majority overrules. * * *
II
Unlike the majority, I see nothing “questionable” about Abood’s analysis. The decision’s account of
why some government entities have a strong interest in agency fees (now often called fair-share
fees) is fundamentally sound. And the balance Abood struck between public employers’ interests and
public employees’ expression is right at home in First Amendment doctrine.
A
Abood’s reasoning about governmental interests has three connected parts. First, exclusive
representation arrangements benefit some government entities because they can facilitate stable
labor relations. In particular, such arrangements eliminate the potential for inter-union conflict and
streamline the process of negotiating terms of employment. Second, the government may be unable
to avail itself of those benefits unless the single union has a secure source of funding. The various
tasks involved in representing employees cost money; if the union doesn’t have enough, it can’t be an
effective employee representative and bargaining partner. And third, agency fees are often needed to
ensure such stable funding. That is because without those fees, employees have every incentive to
free ride on the union dues paid by others.
The majority does not take issue with the first point. (It is “not disputed that the State may require
that a union serve as exclusive bargaining agent for its employees” in order to advance the State’s
“interests as an employer”). The majority claims that the second point never appears in Abood, but is
willing to assume it for the sake of argument, but see Abood (The tasks of an exclusive representative
“often entail expenditure of much time and money”). So the majority stakes everything on the third
point—the conclusion that maintaining an effective system of exclusive representation often entails
agency fees. (It “is simply not true” that exclusive representation and agency fees are “inextricably
linked”).
But basic economic theory shows why a government would think that agency fees are necessary for
exclusive representation to work. What ties the two together, as Abood recognized, is the likelihood
of free-riding when fees are absent. Remember that once a union achieves exclusive-representation
status, the law compels it to fairly represent all workers in the bargaining unit, whether or not they
join or contribute to the union. Because of that legal duty, the union cannot give special advantages to
its own members. And that in turn creates a collective action problem of nightmarish proportions.
Everyone—not just those who oppose the union, but also those who back it—has an economic
incentive to withhold dues; only altruism or loyalty—as against financial self-interest—can explain
why an employee would pay the union for its services. And so emerged Abood’s rule allowing fairshare agreements: That rule ensured that a union would receive sufficient funds, despite its legally
imposed disability, to effectively carry out its duties as exclusive representative of the government’s
employees. * * *
There is no sugarcoating today’s opinion. The majority overthrows a decision entrenched in this
Nation’s law—and in its economic life—for over 40 years. As a result, it prevents the American
people, acting through their state and local officials, from making important choices about workplace
governance. And it does so by weaponizing the First Amendment, in a way that unleashes judges,
now and in the future, to intervene in economic and regulatory policy.
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Departures from stare decisis are supposed to be “exceptional action[s]” demanding “special
justification” —but the majority offers nothing like that here. In contrast to the vigor of its attack on
Abood, the majority’s discussion of stare decisis barely limps to the finish line. And no wonder: The
standard factors this Court considers when deciding to overrule a decision all cut one way. Abood’s
legal underpinnings have not eroded over time: Abood is now, as it was when issued, consistent with
this Court’s First Amendment law. Abood provided a workable standard for courts to apply. And
Abood has generated enormous reliance interests. The majority has overruled Abood for no
exceptional or special reason, but because it never liked the decision. It has overruled Abood because
it wanted to.
Because, that is, it wanted to pick the winning side in what should be—and until now, has been—an
energetic policy debate. Some state and local governments (and the constituents they serve) think
that stable unions promote healthy labor relations and thereby improve the provision of services to
the public. Other state and local governments (and their constituents) think, to the contrary, that
strong unions impose excessive costs and impair those services. Americans have debated the pros
and cons for many decades—in large part, by deciding whether to use fair-share arrangements.
Yesterday, 22 States were on one side, 28 on the other (ignoring a couple of in-betweeners). Today,
that healthy—that democratic—debate ends. The majority has adjudged who should prevail. Indeed,
the majority is bursting with pride over what it has accomplished: Now those 22 States, it crows, “can
follow the model of the federal government and 28 other States.”
And maybe most alarming, the majority has chosen the winners by turning the First Amendment into
a sword, and using it against workaday economic and regulatory policy. Today is not the first time
the Court has wielded the First Amendment in such an aggressive way. See, e.g., National Institute of
Family and Life Advocates v. Becerra (invalidating a law requiring medical and counseling facilities to
provide relevant information to users) [ chapter 9]; Sorrell v. IMS Health Inc. (2011) (striking down a
law that restricted pharmacies from selling various data) [chapter 9]. And it threatens not to be the
last. Speech is everywhere—a part of every human activity (employment, health care, securities
trading, you name it). For that reason, almost all economic and regulatory policy affects or touches
speech. So the majority’s road runs long. And at every stop are black-robed rulers overriding citizens’
choices. The First Amendment was meant for better things. It was meant not to undermine but to
protect democratic governance—including over the role of public-sector unions.

Notes

1.
In considering the factors relevant to stare decisis, Justice Alito’s opinion for the five Justice
majority included economic developments since Abood:
It is also significant that the Court decided Abood against a very different legal and economic backdrop.
Public-sector unionism was a relatively new phenomenon in 1977. The first State to permit collective
bargaining by government employees was Wisconsin in 1959, R. Kearney & P. Mareschal, Labor
Relations in the Public Sector 64 (5th ed. 2014), and public-sector union membership remained
relatively low until a “spurt” in the late 1960’s and early 1970’s, shortly before Abood was decided,
Freeman, Unionism Comes to the Public Sector, 24 J. Econ. Lit. 41, 45 (1986). Since then, public-sector
union membership has come to surpass private-sector union membership, even though there are
nearly four times as many total private-sector employees as public-sector employees. B. Hirsch & D.
Macpherson, Union Membership and Earnings Data Book 9–10, 12, 16 (2013 ed.).
This ascendance of public-sector unions has been marked by a parallel increase in public spending. In
1970, total state and local government expenditures amounted to $646 per capita in nominal terms, or
about $4,000 per capita in 2014 dollars. See Dept. of Commerce, Statistical Abstract of the United
States: 1972, p. 419; CPI Inflation Calculator, BLS, http://data.bls.gov/cgi-bin/cpicalc.pl. By 2014, that
figure had ballooned to approximately $10,238 per capita. ProQuest, Statistical Abstract of the United
States: 2018, pp. 17, Table 14, 300, Table 469. Not all that increase can be attributed to public-sector
unions, of course, but the mounting costs of public-employee wages, benefits, and pensions
undoubtedly played a substantial role. We are told, for example, that Illinois’ pension funds are
underfunded by $129 billion as a result of generous public-employee retirement packages. Brief for
Jason R. Barclay et al. as Amici Curiae 9, 14. Unsustainable collective-bargaining agreements have also
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been blamed for multiple municipal bankruptcies. See Brief for State of Michigan et al. as Amici Curiae
10–19. These developments, and the political debate over public spending and debt they have spurred,
have given collective-bargaining issues a political valence that Abood did not fully appreciate.

On the reliance interest, Alito essentially argued that the Court had been indicating it was going to
overrule Abood for several years:
This is especially so because public-sector unions have been on notice for years regarding this Court’s
misgivings about Abood. In Knox, decided in 2012, we described Abood as a First Amendment
“anomaly.” Two years later in Harris, we were asked to overrule Abood, and while we found it
unnecessary to take that step, we cataloged Abood’s many weaknesses. In 2015, we granted a petition
for certiorari asking us to review a decision that sustained an agency-fee arrangement under Abood.
Friedrichs v. California Teachers Assn. After exhaustive briefing and argument on the question whether
Abood should be overruled, we affirmed the decision below by an equally divided vote. (2016) (per
curiam). During this period of time, any public-sector union seeking an agency-fee provision in a
collective-bargaining agreement must have understood that the constitutionality of such a provision
was uncertain.

Indeed, in January 2015, the Court granted certiorari in Friedrichs v. Cal. Teachers Association and
certified the first question as "Should Abood be overruled?" Most commentators believed that the
oral argument indicated that a majority of the Court was leaning toward overruling Abood. However,
a little over a month after Justice Scalia’s death in February 2016, the equally divided Court of 8
Justices issued a per curiam opinion reading in full : “The judgment is affirmed by an equally divided
Court.” Thus the Ninth Circuit’s opinion affirming the constitutionality of the California union scheme
was upheld.
3.
Given the Court’s discussions in Keller and Southworth, how would you advise a bar
association or law school at a university regarding “ideological” causes that might be promoted?
Would this include a mandatory pro bono requirement for attorneys or law students? Or a loan
forgiveness program for lawyers employed in “public interest” positions? Or “diversifying” the bar?
4.
As footnote 2 in Johanns states, the United States Department of Agriculture has
administered many similar “programs of promotional advertising, funded by checkoffs, for a number
of other agricultural commodities. See 7 CFR §1205.10 et seq. (2004) (cotton); §1207.301 et seq.
(potatoes); §1210.301 et seq. (watermelons); §1215.1 et seq. (popcorn); §1216.1 et seq. (peanuts);
§1218.1 et seq. (blueberries); §1219.1 et seq. (Hass avocados); §1220.101 et seq. (soybeans);
§1230.1 et seq. (pork); §1240.1 et seq. (honey); §1250.301 et seq. (eggs); §1280.101 et seq. (lamb).”
If you have ever seen such advertising, or seen the “Beef: It’s What’s for Dinner” advertising, did you
think it was sponsored by the federal government?

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C.

Compelled Speech and Association

Can an anti-discrimination law or policy violate the First Amendment’s protection of freedom of
association? Recall that the text of the First Amendment does not include “association” but that the
concept is included within freedom of speech. There is some overlap in these cases between
compelled association and compelled speech, although the speech is not necessarily direct.

Hurley v. Irish-American Gay, Lesbian & Bisexual Group of
Boston
515 U.S. 557 (1995)
SOUTER, J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.
March 17 is set aside for two celebrations in South Boston. As early as 1737, some people in Boston
observed the feast of the apostle to Ireland, and since 1776 the day has marked the evacuation of
royal troops and Loyalists from the city, prompted by the guns captured at Ticonderoga and set up on
Dorchester Heights under General Washington's command. Washington himself reportedly drew on
the earlier tradition in choosing "St. Patrick" as the response to "Boston," the password used in the
colonial lines on evacuation day. * * * Although the General Court of Massachusetts did not officially
designate March 17 as Evacuation Day until 1938, the City Council of Boston had previously
sponsored public celebrations of Evacuation Day, including notable commemorations on the
centennial in 1876, and on the 125th anniversary in 1901, with its parade, salute, concert, and
fireworks display. * * *
The tradition of formal sponsorship by the city came to an end in 1947, however, when Mayor James
Michael Curley himself granted authority to organize and conduct the St. Patrick's Day Evacuation
Day Parade to the petitioner South Boston Allied War Veterans Council, an unincorporated
association of individuals elected from various South Boston veterans groups. Every year since that
time, the Council has applied for and received a permit for the parade, which at times has included as
many as 20,000 marchers and drawn up to 1 million watchers. No other applicant has ever applied
for that permit. Through 1992, the city allowed the Council to use the city's official seal, and provided
printing services as well as direct funding.
1992 was the year that a number of gay, lesbian, and bisexual descendants of the Irish immigrants
joined together with other supporters to form the respondent organization, GLIB, to march in the
parade as a way to express pride in their Irish heritage as openly gay, lesbian, and bisexual
individuals, to demonstrate that there are such men and women among those so descended, and to
express their solidarity with like individuals who sought to march in New York's St. Patrick's Day
Parade. Although the Council denied GLIB's application to take part in the 1992 parade, GLIB
obtained a state court order to include its contingent, which marched "uneventfully" among that
year's 10,000 participants and 750,000 spectators.
In 1993, after the Council had again refused to admit GLIB to the upcoming parade, the organization
and some of its members filed this suit against the Council, the individual petitioner John J. "Wacko"
Hurley, and the City of Boston, alleging violations of the State and Federal Constitutions and of the
state public accommodations law, which prohibits "any distinction, discrimination or restriction on
account of . . . sexual orientation . . . relative to the admission of any person to, or treatment in any
place of public accommodation, resort or amusement." After finding that "[f]or at least the past 47
years, the Parade has traveled the same basic route along the public streets of South Boston,
providing entertainment, amusement, and recreation to participants and spectators alike," the state
trial court ruled that the parade fell within the statutory definition of a public accommodation, which
includes "any place . . . which is open to and accepts or solicits the patronage of the general public
and, without limiting the generality of this definition, whether or not it be . . . (6) a boardwalk or
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other public highway [or] . . . (8) a place of public amusement, recreation, sport, exercise or
entertainment," Mass. Gen. Laws §272:92A. The court found that the Council had no written criteria
and employed no particular procedures for admission, voted on new applications in batches, had
occasionally admitted groups who simply showed up at the parade without having submitted an
application, and did "not generally inquire into the specific messages or views of each applicant." The
court consequently rejected the Council's contention that the parade was "private" (in the sense of
being exclusive), holding instead that "the lack of genuine selectivity in choosing participants and
sponsors demonstrates that the Parade is a public event." It found the parade to be "eclectic,"
containing a wide variety of "patriotic, commercial, political, moral, artistic, religious, athletic, public
service, trade union, and eleemosynary themes," as well as conflicting messages. While noting that
the Council had indeed excluded the Ku Klux Klan and ROAR (an antibusing group), it attributed little
significance to these facts, concluding ultimately that "[t]he only common theme among the
participants and sponsors is their public involvement in the Parade."
The court rejected the Council's assertion that the exclusion of "groups with sexual themes merely
formalized [the fact] that the Parade expresses traditional religious and social values," and found the
Council's "final position [to be] that GLIB would be excluded because of its values and its message,
i.e., its members' sexual orientation." This position, in the court's view, was not only violative of the
public accommodations law but "paradoxical" as well, since "a proper celebration of St. Patrick's and
Evacuation Day requires diversity and inclusiveness." The court rejected the notion that GLIB's
admission would trample on the Council's First Amendment rights since the court understood that
constitutional protection of any interest in expressive association would "requir[e] focus on a specific
message, theme, or group" absent from the parade. "Given the [Council's] lack of selectivity in
choosing participants and failure to circumscribe the marchers' message," the court found it
"impossible to discern any specific expressive purpose entitling the Parade to protection under the
First Amendment." It concluded that the parade is "not an exercise of [the Council's] constitutionally
protected right of expressive association," but instead "an open recreational event that is subject to
the public accommodations law."
If there were no reason for a group of people to march from here to there except to reach a
destination, they could make the trip without expressing any message beyond the fact of the march
itself. Some people might call such a procession a parade, but it would not be much of one. Real
"[p]arades are public dramas of social relations, and in them performers define who can be a social
actor and what subjects and ideas are available for communication and consideration." S. DAVIS,
PARADES AND POWER: STREET THEATRE IN NINETEENTH CENTURY PHILADELPHIA 6 (1986). Hence, we use the
word "parade" to indicate marchers who are making some sort of collective point, not just to each
other but to bystanders along the way. Indeed a parade's dependence on watchers is so extreme that
nowadays, as with Bishop Berkeley's celebrated tree, "if a parade or demonstration receives no
media coverage, it may as well not have happened." Parades are thus a form of expression, not just
motion, and the inherent expressiveness of marching to make a point explains our cases involving
protest marches. In Gregory v. Chicago (1969), for example, petitioners had taken part in a
procession to express their grievances to the city government, and we held that such a "march, if
peaceful and orderly, falls well within the sphere of conduct protected by the First Amendment."
Similarly, in Edwards v. South Carolina (1963), where petitioners had joined in a march of protest and
pride, carrying placards and singing The Star Spangled Banner, we held that the activities "reflect an
exercise of these basic constitutional rights in their most pristine and classic form."
The protected expression that inheres in a parade is not limited to its banners and songs, however,
for the Constitution looks beyond written or spoken words as mediums of expression. Noting that
"[s]ymbolism is a primitive but effective way of communicating ideas," West Virginia Bd. of Ed. v.
Barnette (1943), our cases have recognized that the First Amendment shields such acts as saluting a
flag (and refusing to do so), wearing an arm band to protest a war, Tinker v. Des Moines Independent
Community School Dist. (1969), displaying a red flag, Stromberg v. California (1931), and even
"[m]arching, walking or parading" in uniforms displaying the swastika, National Socialist Party of
America v. Skokie (1977). As some of these examples show, a narrow, succinctly articulable message
is not a condition of constitutional protection, which if confined to expressions conveying a
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"particularized message," cf. Spence v. Washington 1974) (per curiam), would never reach the
unquestionably shielded painting of Jackson Pollock, music of Arnold Schönberg, or Jabberwocky
verse of Lewis Carroll.
Not many marches, then, are beyond the realm of expressive parades, and the South Boston
celebration is not one of them. Spectators line the streets; people march in costumes and uniforms,
carrying flags and banners with all sorts of messages (e.g., "England get out of Ireland," "Say no to
drugs"); marching bands and pipers play, floats are pulled along, and the whole show is broadcast
over Boston television. To be sure, we agree with the state courts that in spite of excluding some
applicants, the Council is rather lenient in admitting participants. But a private speaker does not
forfeit constitutional protection simply by combining multifarious voices, or by failing to edit their
themes to isolate an exact message as the exclusive subject matter of the speech. Nor, under our
precedent, does First Amendment protection require a speaker to generate, as an original matter,
each item featured in the communication. Cable operators, for example, are engaged in protected
speech activities even when they only select programming originally produced by others. Turner
Broadcasting System, Inc. v. FCC (1994). For that matter, the presentation of an edited compilation of
speech generated by other persons is a staple of most newspapers' opinion pages, which, of course,
fall squarely within the core of First Amendment security, as does even the simple selection of a paid
noncommercial advertisement for inclusion in a daily paper. The selection of contingents to make a
parade is entitled to similar protection.
Respondents' participation as a unit in the parade was equally expressive. GLIB was formed for the
very purpose of marching in it, as the trial court found, in order to celebrate its members' identity as
openly gay, lesbian, and bisexual descendants of the Irish immigrants, to show that there are such
individuals in the community, and to support the like men and women who sought to march in the
New York parade. The organization distributed a fact sheet describing the members' intentions, and
the record otherwise corroborates the expressive nature of GLIB's participation. In 1993, members
of GLIB marched behind a shamrock strewn banner with the simple inscription "Irish American Gay,
Lesbian and Bisexual Group of Boston." GLIB understandably seeks to communicate its ideas as part
of the existing parade, rather than staging one of its own.
The Massachusetts public accommodations law under which respondents brought suit has a
venerable history. At common law, innkeepers, smiths, and others who "made profession of a public
employment," were prohibited from refusing, without good reason, to serve a customer.
In the case before us, however, the Massachusetts law has been applied in a peculiar way. Its
enforcement does not address any dispute about the participation of openly gay, lesbian, or bisexual
individuals in various units admitted to the parade. The petitioners disclaim any intent to exclude
homosexuals as such, and no individual member of GLIB claims to have been excluded from parading
as a member of any group that the Council has approved to march. Instead, the disagreement goes to
the admission of GLIB as its own parade unit carrying its own banner. Since every participating unit
affects the message conveyed by the private organizers, the state courts' application of the statute
produced an order essentially requiring petitioners to alter the expressive content of their parade.
Although the state courts spoke of the parade as a place of public accommodation, once the
expressive character of both the parade and the marching GLIB contingent is understood, it becomes
apparent that the state courts' application of the statute had the effect of declaring the sponsors'
speech itself to be the public accommodation. Under this approach any contingent of protected
individuals with a message would have the right to participate in petitioners' speech, so that the
communication produced by the private organizers would be shaped by all those protected by the
law who wished to join in with some expressive demonstration of their own. But this use of the
State's power violates the fundamental rule of protection under the First Amendment, that a speaker
has the autonomy to choose the content of his own message.
"Since all speech inherently involves choices of what to say and what to leave unsaid," Pacific Gas &
Electric Co. v. Public Utilities Comm'n of Cal. (1986) (plurality opinion) (emphasis in original), one
important manifestation of the principle of free speech is that one who chooses to speak may also
decide "what not to say."

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Petitioners' claim to the benefit of this principle of autonomy to control one's own speech is as sound
as the South Boston parade is expressive. Rather like a composer, the Council selects the expressive
units of the parade from potential participants, and though the score may not produce a
particularized message, each contingent's expression in the Council's eyes comports with what
merits celebration on that day. Even if this view gives the Council credit for a more considered
judgment than it actively made, the Council clearly decided to exclude a message it did not like from
the communication it chose to make, and that is enough to invoke its right as a private speaker to
shape its expression by speaking on one subject while remaining silent on another. The message it
disfavored is not difficult to identify. Although GLIB's point (like the Council's) is not wholly
articulate, a contingent marching behind the organization's banner would at least bear witness to the
fact that some Irish are gay, lesbian, or bisexual, and the presence of the organized marchers would
suggest their view that people of their sexual orientations have as much claim to unqualified social
acceptance as heterosexuals and indeed as members of parade units organized around other
identifying characteristics. The parade's organizers may not believe these facts about Irish sexuality
to be so, or they may object to unqualified social acceptance of gays and lesbians or have some other
reason for wishing to keep GLIB's message out of the parade. But whatever the reason, it boils down
to the choice of a speaker not to propound a particular point of view, and that choice is presumed to
lie beyond the government's power to control.
Parades and demonstrations, in contrast [to cable broadcasting] are not understood to be so
neutrally presented or selectively viewed. Unlike the programming offered on various channels by a
cable network, the parade does not consist of individual, unrelated segments that happen to be
transmitted together for individual selection by members of the audience. Although each parade unit
generally identifies itself, each is understood to contribute something to a common theme, and
accordingly there is no customary practice whereby private sponsors disavow "any identity of
viewpoint" between themselves and the selected participants. Practice follows practicability here, for
such disclaimers would be quite curious in a moving parade. * * * Without deciding on the precise
significance of the likelihood of misattribution, it nonetheless becomes clear that in the context of an
expressive parade, as with a protest march, the parade's overall message is distilled from the
individual presentations along the way, and each unit's expression is perceived by spectators as part
of the whole.
Our holding today rests not on any particular view about the Council's message but on the Nation's
commitment to protect freedom of speech. Disapproval of a private speaker's statement does not
legitimize use of the Commonwealth's power to compel the speaker to alter the message by including
one more acceptable to others. Accordingly, the judgment of the Supreme Judicial Court [of
Massachusetts] is reversed * * *

Boy Scouts of America v. Dale
530 U. S. 640 (2000)
REHNQUIST, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH O’CONNOR, SCALIA, KENNEDY, AND THOMAS, JJ.,
JOINED. STEVENS, J., FILED A DISSENTING OPINION, IN WHICH SOUTER, GINSBURG, AND BREYER, JJ., JOINED. SOUTER, J.,
FILED A DISSENTING OPINION, IN WHICH GINSBURG AND BREYER, JJ., JOINED.
CHIEF JUSTICE REHNQUIST DELIVERED THE OPINION OF THE COURT.
Petitioners are the Boy Scouts of America and the Monmouth Council, a division of the Boy Scouts of
America (collectively, Boy Scouts). The Boy Scouts is a private, not-for- profit organization engaged in
instilling its system of values in young people. The Boy Scouts asserts that homosexual conduct is
inconsistent with the values it seeks to instill. Respondent is James Dale, a former Eagle Scout whose
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adult membership in the Boy Scouts was revoked when the Boy Scouts learned that he is an avowed
homosexual and gay rights activist. The New Jersey Supreme Court held that New Jersey’s public
accommodations law requires that the Boy Scouts readmit Dale. This case presents the question
whether applying New Jersey’s public accommodations law in this way violates the Boy Scouts’ First
Amendment right of expressive association. We hold that it does.
I
James Dale entered Scouting in 1978 at the age of eight by joining Monmouth Council’s Cub Scout
Pack 142. Dale became a Boy Scout in 1981 and remained a Scout until he turned 18. By all accounts,
Dale was an exemplary Scout. In 1988, he achieved the rank of Eagle Scout, one of Scouting’s highest
honors.
Dale applied for adult membership in the Boy Scouts in 1989. The Boy Scouts approved his
application for the position of assistant scoutmaster of Troop 73. Around the same time, Dale left
home to attend Rutgers University. After arriving at Rutgers, Dale first acknowledged to himself and
others that he is gay. He quickly became involved with, and eventually became the copresident of, the
Rutgers University Lesbian/Gay Alliance. In 1990, Dale attended a seminar addressing the
psychological and health needs of lesbian and gay teenagers. A newspaper covering the event interviewed Dale about his advocacy of homosexual teenagers’ need for gay role models. In early July
1990, the news- paper published the interview and Dale’s photograph over a caption identifying him
as the copresident of the Lesbian/ Gay Alliance.
Later that month, Dale received a letter from Monmouth Council Executive James Kay revoking his
adult membership. Dale wrote to Kay requesting the reason for Monmouth Council’s decision. Kay
responded by letter that the Boy Scouts “specifically forbid membership to homosexuals.”
In 1992, Dale filed a complaint against the Boy Scouts in the New Jersey Superior Court. The
complaint alleged that the Boy Scouts had violated New Jersey’s public accommodations statute and
its common law by revoking Dale’s membership based solely on his sexual orientation. New Jersey’s
public accommodations statute prohibits, among other things, discrimination on the basis of sexual
orientation in places of public accommodation. * * * The New Jersey Supreme Court affirmed the
judgment of the Appellate Division [in Dale’s favor].
II
In Roberts v. United States Jaycees (1984), we observed that “implicit in the right to engage in
activities protected by the First Amendment” is “a corresponding right to associate with others in
pursuit of a wide variety of political, social, economic, educational, religious, and cultural ends.” This
right is crucial in preventing the majority from imposing its views on groups that would rather
express other, perhaps unpopular, ideas. Government actions that may unconstitutionally burden
this freedom may take many forms, one of which is “intrusion into the internal structure or affairs of
an association” like a “regulation that forces the group to accept members it does not desire.” Forcing
a group to accept certain members may impair the ability of the group to express those views, and
only those views, that it intends to express. Thus, “[f]reedom of association . . . plainly presupposes a
freedom not to associate.”
The forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive
association if the presence of that person affects in a significant way the group’s ability to advocate
public or private viewpoints. But the freedom of expressive association, like many freedoms, is not
absolute. We have held that the freedom could be overridden “by regulations adopted to serve
compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through
means significantly less restrictive of associational freedoms.”
To determine whether a group is protected by the First Amendment’s expressive associational right,
we must determine whether the group engages in “expressive association.” The First Amendment’s
protection of expressive association is not reserved for advocacy groups. But to come within its
ambit, a group must engage in some form of expression, whether it be public or private.
Because this is a First Amendment case where the ultimate conclusions of law are virtually
inseparable from findings of fact, we are obligated to independently review the factual record to
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ensure that the state court’s judgment does not unlawfully intrude on free expression. See Hurley.
The record reveals the following. The Boy Scouts is a private, nonprofit organization. According to its
mission statement:
“It is the mission of the Boy Scouts of America to serve others by helping to instill values in young
people and, in other ways, to prepare them to make ethical choices over their lifetime in achieving their
full potential.
“The values we strive to instill are based on those found in the Scout Oath and Law:
“Scout Oath
“On my honor I will do my best “To do my duty to God and my country “and to obey the Scout Law;
“To help other people at all times; “To keep myself physically strong, “mentally awake, and morally
straight.
“A Scout is: “Trustworthy “Loyal “Helpful “Friendly “Courteous “Kind
“Scout Law
Obedient Cheerful Thrifty Brave Clean Reverent.”

Thus, the general mission of the Boy Scouts is clear: “[T]o instill values in young people.” The Boy
Scouts seeks to instill these values by having its adult leaders spend time with the youth members,
instructing and engaging them in activities like camping, archery, and fishing. During the time spent
with the youth members, the scoutmasters and assistant scoutmasters inculcate them with the Boy
Scouts’ values—both expressly and by example. It seems indisputable that an association that seeks
to transmit such a system of values engages in expressive activity. See Roberts (O’Connor, J.,
concurring) (“Even the training of outdoor survival skills or participation in community service
might become expressive when the activity is intended to develop good morals, reverence, patriotism,
and a desire for self-improvement”).
Given that the Boy Scouts engages in expressive activity, we must determine whether the forced
inclusion of Dale as an assistant scoutmaster would significantly affect the Boy Scouts’ ability to
advocate public or private viewpoints. This inquiry necessarily requires us first to explore, to a
limited extent, the nature of the Boy Scouts’ view of homosexuality.
The values the Boy Scouts seeks to instill are “based on” those listed in the Scout Oath and Law. The
Boy Scouts explains that the Scout Oath and Law provide “a positive moral code for living; they are a
list of ‘do’s’ rather than ‘don’ts.’” The Boy Scouts asserts that homosexual conduct is inconsistent with
the values embodied in the Scout Oath and Law, particularly with the values represented by the
terms “morally straight” and “clean.”
Obviously, the Scout Oath and Law do not expressly mention sexuality or sexual orientation. And the
terms “morally straight” and “clean” are by no means self-defining. Different people would attribute
to those terms very different meanings. For example, some people may believe that engaging in
homosexual conduct is not at odds with being “morally straight” and “clean.” And others may believe
that engaging in homosexual conduct is contrary to being “morally straight” and “clean.” The Boy
Scouts says it falls within the latter category.
The New Jersey Supreme Court analyzed the Boy Scouts’ beliefs and found that the “exclusion of
members solely on the basis of their sexual orientation is inconsistent with Boy Scouts’ commitment
to a diverse and ‘representative’ membership . . . [and] contradicts Boy Scouts’ overarching objective
to reach ‘all eligible youth.’” The court concluded that the exclusion of members like Dale “appears
antithetical to the organization’s goals and philosophy.” But our cases reject this sort of inquiry; it is
not the role of the courts to reject a group’s expressed values because they disagree with those values
or find them internally inconsistent.
The Boy Scouts asserts that it “teach[es] that homosexual conduct is not morally straight,” and that it
does “not want to promote homosexual conduct as a legitimate form of behavior.” We accept the Boy
Scouts’ assertion. We need not inquire further to determine the nature of the Boy Scouts’ expression
with respect to homosexuality. But because the record before us contains written evidence of the Boy
Scouts’ view- point, we look to it as instructive, if only on the question of the sincerity of the
professed beliefs.
We cannot doubt that the Boy Scouts sincerely holds this view.
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We must then determine whether Dale’s presence as an assistant scoutmaster would significantly
burden the Boy Scouts’ desire to not “promote homosexual conduct as a legitimate form of behavior.”
As we give deference to an association’s assertions regarding the nature of its expression, we must
also give deference to an association’s view of what would impair its expression. That is not to say
that an expressive association can erect a shield against antidiscrimination laws simply by asserting
that mere acceptance of a member from a particular group would impair its message. But here Dale,
by his own admission, is one of a group of gay Scouts who have “become leaders in their community
and are open and honest about their sexual orientation.” Dale was the copresident of a gay and
lesbian organization at college and remains a gay rights activist. Dale’s presence in the Boy Scouts
would, at the very least, force the organization to send a message, both to the youth members and the
world, that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior.
Hurley is illustrative on this point. There we considered whether the application of Massachusetts’
public accommodations law to require the organizers of a private St. Patrick’s Day parade to include
among the marchers an Irish- American gay, lesbian, and bisexual group, GLIB, violated the parade
organizers’ First Amendment rights. We noted that the parade organizers did not wish to exclude the
GLIB members because of their sexual orientations, but because they wanted to march behind a GLIB
banner. * * *
Here, we have found that the Boy Scouts believes that homo- sexual conduct is inconsistent with the
values it seeks to instill in its youth members; it will not “promote homosexual conduct as a
legitimate form of behavior.” As the presence of GLIB in Boston’s St. Patrick’s Day parade would have
interfered with the parade organizers’ choice not to propound a particular point of view, the
presence of Dale as an assistant scoutmaster would just as surely interfere with the Boy Scout’s
choice not to propound a point of view contrary to its beliefs.
The New Jersey Supreme Court determined that the Boy Scouts’ ability to disseminate its message
was not significantly affected by the forced inclusion of Dale as an assistant scoutmaster because of
the following findings:
“Boy Scout members do not associate for the purpose of disseminating the belief that homosexuality is
immoral; Boy Scouts discourages its leaders from disseminating any views on sexual issues; and Boy
Scouts includes sponsors and members who subscribe to different views in respect of homosexuality.”

We disagree with the New Jersey Supreme Court’s conclusion drawn from these findings.
First, associations do not have to associate for the “purpose” of disseminating a certain message in
order to be entitled to the protections of the First Amendment. An association must merely engage in
expressive activity that could be impaired in order to be entitled to protection. For example, the
purpose of the St. Patrick’s Day parade in Hurley was not to espouse any views about sexual
orientation, but we held that the parade organizers had a right to exclude certain participants
nonetheless.
Second, even if the Boy Scouts discourages Scout leaders from disseminating views on sexual
issues—a fact that the Boy Scouts disputes with contrary evidence—the First Amendment protects
the Boy Scouts’ method of expression. If the Boy Scouts wishes Scout leaders to avoid questions of
sexuality and teach only by example, this fact does not negate the sincerity of its belief discussed
above.
Third, the First Amendment simply does not require that every member of a group agree on every
issue in order for the group’s policy to be “expressive association.” The Boy Scouts takes an official
position with respect to homosexual conduct, and that is sufficient for First Amendment purposes. In
this same vein, Dale makes much of the claim that the Boy Scouts does not revoke the membership of
heterosexual Scout leaders that openly disagree with the Boy Scouts’ policy on sexual orientation.
But if this is true, it is irrelevant. The presence of an avowed homosexual and gay rights activist in an
assistant scoutmaster’s uniform sends a distinctly different message from the presence of a
heterosexual assistant scoutmaster who is on record as disagreeing with Boy Scouts policy. The Boy
Scouts has a First Amendment right to choose to send one message but not the other. The fact that
the organization does not trumpet its views from the housetops, or that it tolerates dissent within its
ranks, does not mean that its views receive no First Amendment protection.
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Having determined that the Boy Scouts is an expressive association and that the forced inclusion of
Dale would significantly affect its expression, we inquire whether the application of New Jersey’s
public accommodations law to require that the Boy Scouts accept Dale as an assistant scoutmaster
runs afoul of the Scouts’ freedom of expressive association. We conclude that it does.
In Hurley, we applied traditional First Amendment analysis to hold that the application of the
Massachusetts public accommodations law to a parade violated the First Amendment rights of the
parade organizers. Although we did not explicitly deem the parade in Hurley an expressive
association, the analysis we applied there is similar to the analysis we apply here. We have already
concluded that a state requirement that the Boy Scouts retain Dale as an assistant scoutmaster would
significantly burden the organization’s right to oppose or disfavor homosexual conduct. The state
interests embodied in New Jersey’s public accommodations law do not justify such a severe intrusion
on the Boy Scouts’ rights to freedom of expressive association. That being the case, we hold that the
First Amendment prohibits the State from imposing such a requirement through the application of its
public accommodations law.
We are not, as we must not be, guided by our views of whether the Boy Scouts’ teachings with respect
to homosexual conduct are right or wrong; public or judicial disapproval of a tenet of an
organization’s expression does not justify the State’s effort to compel the organization to accept
members where such acceptance would derogate from the organization’s expressive message. “While
the law is free to pro- mote all sorts of conduct in place of harmful behavior, it is not free to interfere
with speech for no better reason than promoting an approved message or discouraging a disfavored
one, however enlightened either purpose may strike the government.”
The judgment of the New Jersey Supreme Court is reversed. * * *
JUSTICE STEVENS, WITH WHOM JUSTICE SOUTER, JUSTICE GINSBURG, AND JUSTICE BREYER JOIN, DISSENTING.
* * * The majority holds that New Jersey’s law violates BSA’s right to associate and its right to free
speech. But that law does not “impos[e] any serious burdens” on BSA’s “collective effort on behalf of
[its] shared goals,” nor does it force BSA to communicate any message that it does not wish to
endorse. New Jersey’s law, therefore, abridges no constitutional right of BSA.
I
* * * In this case, BSA contends that it teaches the young boys who are Scouts that homosexuality is
immoral. Consequently, it argues, it would violate its right to associate to force it to admit
homosexuals as members, as doing so would be at odds with its own shared goals and values. This
contention, quite plainly, requires us to look at what, exactly, are the values that BSA actually teaches.
BSA’s mission statement reads as follows: “It is the mission of the Boy Scouts of America to serve
others by helping to instill values in young people and, in other ways, to prepare them to make
ethical choices over their lifetime in achieving their full potential.” Its federal charter declares its
purpose is “to promote, through organization, and cooperation with other agencies, the ability of
boys to do things for themselves and others, to train them in scoutcraft, and to teach them patriotism,
courage, self-reliance, and kindred values, using the methods which were in common use by Boy
Scouts on June 15, 1916.” BSA describes itself as having a “representative membership,” which it
defines as “boy membership [that] reflects proportionately the characteristics of the boy population
of its service area.” In particular, the group emphasizes that “[n]either the charter nor the by- laws of
the Boy Scouts of America permits the exclusion of any boy. . . . To meet these responsibilities we
have made a commitment that our membership shall be representative of all the population in every
community, district, and council.” (emphasis in original).
To instill its shared values, BSA has adopted a “Scout Oath” and a “Scout Law” setting forth its central
tenets. For example, the Scout Law requires a member to promise, among other things, that he will be
“obedient.” Accompanying definitions for the terms found in the Oath and Law are provided in the
Boy Scout Handbook and the Scoutmaster Handbook. For instance, the Boy Scout Handbook defines
“obedient” as follows:
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“A Scout is OBEDIENT. A Scout follows the rules of his family, school, and troop. He obeys the laws of
his community and country. If he thinks these rules and laws are unfair, he tries to have them changed
in an orderly manner rather than disobey them.”

To bolster its claim that its shared goals include teaching that homosexuality is wrong, BSA directs
our attention to two terms appearing in the Scout Oath and Law. The first is the phrase “morally
straight,” which appears in the Oath (“On my honor I will do my best . . . To keep myself . . . morally
straight”); the second term is the word “clean,” which appears in a list of 12 characteristics together
constituting the Scout Law.
The Boy Scout Handbook defines “morally straight,” as such:
“To be a person of strong character, guide your life with honesty, purity, and justice. Respect and
defend the rights of all people. Your relationships with others should be honest and open. Be clean in
your speech and actions, and faithful in your religious beliefs. The values you follow as a Scout will help
you become virtuous and self-reliant.”

The Scoutmaster Handbook emphasizes these points about being “morally straight”:
“In any consideration of moral fitness, a key word has to be ‘courage.’ A boy’s courage to do what his
head and his heart tell him is right. And the courage to re- fuse to do what his heart and his head say is
wrong. Moral fitness, like emotional fitness, will clearly present opportunities for wise guidance by an
alert Scoutmaster.”

As for the term “clean,” the Boy Scout Handbook offers the following:
“A Scout is CLEAN. A Scout keeps his body and mind fit and clean. He chooses the company of those who
live by these same ideals. He helps keep his home and community clean.
“You never need to be ashamed of dirt that will wash off. If you play hard and work hard you can’t help
getting dirty. But when the game is over or the work is done, that kind of dirt disappears with soap and
water. “There’s another kind of dirt that won’t come off by washing. It is the kind that shows up in foul
language and harmful thoughts.
“Swear words, profanity, and dirty stories are weapons that ridicule other people and hurt their
feelings. The same is true of racial slurs and jokes making fun of ethnic groups or people with physical
or mental limitations. A Scout knows there is no kindness or honor in such mean-spirited behavior. He
avoids it in his own words and deeds. He defends those who are targets of insults.” (emphasis in
original).

It is plain as the light of day that neither one of these principles—“morally straight” and “clean”—
says the slightest thing about homosexuality. Indeed, neither term in the Boy Scouts’ Law and Oath
expresses any position whatsoever on sexual matters.
BSA’s published guidance on that topic underscores this point. Scouts, for example, are directed to
receive their sex education at home or in school, but not from the organization: “Your parents or
guardian or a sex education teacher should give you the facts about sex that you must know.” To be
sure, Scouts are not forbidden from asking their Scoutmaster about issues of a sexual nature, but
Scoutmasters are, literally, the last person Scouts are encouraged to ask: “If you have questions about
growing up, about relationships, sex, or making good decisions, ask. Talk with your parents, religious
leaders, teachers, or Scoutmaster.” Moreover, Scoutmasters are specifically directed to steer curious
adolescents to other sources of information:
“If Scouts ask for information regarding . . . sexual activity, answer honestly and factually, but stay
within your realm of expertise and comfort. If a Scout has serious concerns that you cannot answer,
refer him to his family, religious leader, doctor, or other professional.”

More specifically, BSA has set forth a number of rules for Scoutmasters when these types of issues
come up:
“You may have boys asking you for information or ad- vice about sexual matters. . . . “How should you
handle such matters? “Rule number 1: You do not undertake to instruct Scouts, in any formalized
manner, in the subject of sex and family life. The reasons are that it is not construed to be Scouting’s
proper area, and that you are probably not well qualified to do this.

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“Rule number 2: If Scouts come to you to ask questions or to seek advice, you would give it within your
competence. A boy who appears to be asking about sexual intercourse, however, may really only be
worried about his pimples, so it is well to find out just what information is needed.
“Rule number 3: You should refer boys with sexual problems to persons better qualified than you [are]
to handle them. If the boy has a spiritual leader or a doctor who can deal with them, he should go there.
If such persons are not available, you may just have to do the best you can. But don’t try to play a highly
professional role. And at the other extreme, avoid passing the buck.”

In light of BSA’s self-proclaimed ecumenism, furthermore, it is even more difficult to discern any
shared goals or common moral stance on homosexuality. Insofar as religious matters are concerned,
BSA’s bylaws state that it is “absolutely nonsectarian in its attitude toward . . . religious training.”
“The BSA does not define what constitutes duty to God or the practice of religion. This is the
responsibility of parents and religious leaders.” In fact, many diverse religious organizations sponsor
local Boy Scout troops. Because a number of religious groups do not view homosexuality as immoral
or wrong and reject discrimination against homosexuals, it is exceedingly difficult to believe that BSA
nonetheless adopts a single particular religious or moral philosophy when it comes to sexual
orientation. This is especially so in light of the fact that Scouts are advised to seek guidance on sexual
matters from their religious leaders (and Scoutmasters are told to refer Scouts to them); BSA surely
is aware that some religions do not teach that homosexuality is wrong.
II
The Court seeks to fill the void by pointing to a statement of “policies and procedures relating to
homosexuality and Scouting,” signed by BSA’s President and Chief Scout Executive in 1978 and
addressed to the members of the Executive Committee of the national organization. The letter says
that the BSA does “not believe that homosexuality and leadership in Scouting are appropriate.” But
when the entire 1978 letter is read, BSA’s position is far more equivocal:
“4. Q. May an individual who openly declares himself to be a homosexual be employed by the Boy
Scouts of America as a professional or non-professional?
“A. Boy Scouts of America does not knowingly em- ploy homosexuals as professionals or nonprofessionals. We are unaware of any present laws which would prohibit this policy.
“5. Q. Should a professional or non-professional individual who openly declares himself to be a
homosexual be terminated?
“A. Yes, in the absence of any law to the contrary. At the present time we are unaware of any statute or
ordinance in the United States which prohibits discrimination against individual’s employment upon
the basis of homosexuality. In the event that such a law was applicable, it would be necessary for the Boy
Scouts of America to obey it, in this case as in Paragraph 4 above. It is our position, however, that
homosexuality and professional or non-professional employment in Scouting are not appropriate.”

Four aspects of the 1978 policy statement are relevant to the proper disposition of this case. First, at
most this letter simply adopts an exclusionary membership policy. But simply adopting such a policy
has never been considered sufficient, by itself, to prevail on a right to associate claim.
Second, the 1978 policy was never publicly expressed—unlike, for example, the Scout’s duty to be
“obedient.” It was an internal memorandum, never circulated beyond the few members of BSA’s
Executive Committee. It remained, in effect, a secret Boy Scouts policy. Far from claiming any intent
to express an idea that would be burdened by the presence of homosexuals, BSA’s public posture—to
the world and to the Scouts themselves—remained what it had always been: one of tolerance,
welcoming all classes of boys and young men. In this respect, BSA’s claim is even weaker than those
we have rejected in the past.
Third, it is apparent that the draftsmen of the policy statement foresaw the possibility that laws
against discrimination might one day be amended to protect homosexuals from employment
discrimination. Their statement clearly provided that, in the event such a law conflicted with their
policy, a Scout’s duty to be “obedient” and “obe[y] the laws,” even if “he thinks [the laws] are unfair,”
would prevail in such a contingency. * * *
Fourth, the 1978 statement simply says that homosexuality is not “appropriate.” It makes no effort to
connect that statement to a shared goal or expressive activity of the Boy Scouts. Whatever values BSA
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seeks to instill in Scouts, the idea that homosexuality is not “appropriate” appears entirely
unconnected to, and is mentioned nowhere in, the myriad of publicly declared values and creeds of
the BSA. That idea does not appear to be among any of the principles actually taught to Scouts. Rather,
the 1978 policy appears to be no more than a private statement of a few BSA executives that the
organization wishes to exclude gays—and that wish has nothing to do with any expression BSA
actually engages in.
The majority also relies on four other policy statements that were issued between 1991 and 1993. All
of them were written and issued after BSA revoked Dale’s membership. Accordingly, they have little,
if any, relevance to the legal question before this Court. In any event, they do not bolster BSA’s claim.
It is clear, then, that nothing in these policy statements supports BSA’s claim. The only policy written
before the revocation of Dale’s membership was an equivocal, undisclosed statement that evidences
no connection between the group’s discriminatory intentions and its expressive interests. The later
policies demonstrate a brief—though ultimately abandoned—attempt to tie BSA’s exclusion to its
expression, but other than a single sentence, BSA fails to show that it ever taught Scouts that
homosexuality is not “morally straight” or “clean,” or that such a view was part of the group’s
collective efforts to foster a belief. Furthermore, BSA’s policy statements fail to establish any clear,
consistent, and unequivocal position on homosexuality. Nor did BSA have any reason to think Dale’s
sexual conduct, as opposed to his orientation, was contrary to the group’s values.
III
BSA’s claim finds no support in our cases. We have recognized “a right to associate for the purpose of
engaging in those activities protected by the First Amendment— speech, assembly, petition for the
redress of grievances, and the exercise of religion.” Roberts. And we have acknowledged that “when
the State interferes with individuals’ selection of those with whom they wish to join in a common
endeavor, freedom of association . . . may be implicated.” But “[t]he right to associate for expressive
purposes is not . . . absolute”; rather, “the nature and degree of constitutional protection afforded
freedom of association may vary depending on the extent to which . . . the constitutionally protected
liberty is at stake in a given case.” Indeed, the right to associate does not mean “that in every setting
in which individuals exercise some discrimination in choosing associates, their selective process of
inclusion and exclusion is protected by the Constitution.” For example, we have routinely and easily
rejected assertions of this right by expressive organizations with discriminatory membership
policies, such as private schools, law firms, and labor organizations. In fact, until today, we have
never once found a claimed right to associate in the selection of members to prevail in the face of a
State’s anti- discrimination law. To the contrary, we have squarely held that a State’s
antidiscrimination law does not violate a group’s right to associate simply because the law conflicts
with that group’s exclusionary membership policy.
In Roberts v. United States Jaycees (1984), we addressed just such a conflict. The Jaycees was a nonprofit membership organization “‘designed to inculcate in the individual membership . . . a spirit of
genuine American- ism and civic interest, and . . . to provide . . . an avenue for intelligent participation
by young men in the affairs of their community.’” The organization was di- vided into local chapters,
described as “ ‘young men’s organization[s],’” in which regular membership was restricted to males
between the ages of 18 and 35. But Minnesota’s Human Rights Act, which applied to the Jaycees,
made it unlawful to “‘deny any person the full and equal enjoyment of . . . a place of public
accommodation because of . . . sex.’” The Jaycees, however, claimed that applying the law to it
violated its right to associate—in particular its right to maintain its selective membership policy.
We rejected that claim. Cautioning that the right to associate is not “absolute,” we held that
“[i]nfringements on that right may be justified by regulations adopted to serve compelling state
interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly
less restrictive of associational freedoms.” We found the State’s purpose of eliminating
discrimination is a compelling state interest that is unrelated to the suppression of ideas. We also
held that Minnesota’s law is the least restrictive means of achieving that interest. The Jaycees had
“failed to demonstrate that the Act imposes any serious burdens on the male members’ freedom of
expressive association.” Though the Jaycees had “taken public positions on a number of diverse
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issues, [and] . . . regularly engage in a variety of . . . activities worthy of constitutional protection
under the First Amendment,” there was “no basis in the record for concluding that admission of
women as full voting members will impede the organization’s ability to engage in these protected
activities or to disseminate its preferred views.” “The Act,” we held, “requires no change in the
Jaycees’ creed of promoting the interest of young men, and it imposes no restrictions on the
organization’s ability to exclude individuals with ideologies or philosophies different from those of
its existing members.”
The evidence before this Court makes it exceptionally clear that BSA has, at most, simply adopted an
exclusionary membership policy and has no shared goal of disapproving of homosexuality. BSA’s
mission statement and federal charter say nothing on the matter; its official membership policy is
silent; its Scout Oath and Law—and accompanying definitions—are devoid of any view on the topic;
its guidance for Scouts and Scoutmasters on sexuality declare that such matters are “not construed to
be Scouting’s proper area,” but are the province of a Scout’s parents and pastor; and BSA’s posture
respecting religion tolerates a wide variety of views on the issue of homosexuality. Moreover, there is
simply no evidence that BSA otherwise teaches anything in this area, or that it instructs Scouts on
matters involving homosexuality in ways not conveyed in the Boy Scout or Scoutmaster Handbooks.
In short, Boy Scouts of America is simply silent on homosexuality. There is no shared goal or
collective effort to foster a belief about homosexuality at all—let alone one that is significantly
burdened by admitting homosexuals.
Equally important is BSA’s failure to adopt any clear position on homosexuality. BSA’s temporary,
though ultimately abandoned, view that homosexuality is incompatible with being “morally straight”
and “clean” is a far cry from the clear, unequivocal statement necessary to prevail on its claim.
Despite the solitary sentences in the 1991 and 1992 policies, the group continued to disclaim any
single religious or moral position as a general matter and actively eschewed teaching any lesson on
sexuality. It also continued to define “morally straight” and “clean” in the Boy Scout and Scoutmaster
Handbooks without any reference to homosexuality. As noted earlier, nothing in our cases suggests
that a group can prevail on a right to expressive association if it, effectively, speaks out of both sides
of its mouth. A State’s anti- discrimination law does not impose a “serious burden” or a “substantial
restraint” upon the group’s “shared goals” if the group itself is unable to identify its own stance with
any clarity.
IV
The majority pretermits this entire analysis. It finds that BSA in fact “‘teach[es] that homosexual
conduct is not morally straight.’” This conclusion, remarkably, rests entirely on statements in BSA’s
briefs. Moreover, the majority insists that we must “give deference to an association’s assertions
regarding the nature of its expression” and “we must also give deference to an association’s view of
what would impair its expression.” * * *
This is an astounding view of the law. I am unaware of any previous instance in which our analysis of
the scope of a constitutional right was determined by looking at what a litigant asserts in his or her
brief and inquiring no further. It is even more astonishing in the First Amendment area, because, as
the majority itself acknowledges, “we are obligated to independently review the factual record.” It is
an odd form of independent review that consists of deferring entirely to whatever a litigant claims.
But the majority insists that our inquiry must be “limited,” because “it is not the role of the courts to
reject a group’s expressed values because they disagree with those values or find them internally
inconsistent.”
But nothing in our cases calls for this Court to do any such thing. An organization can adopt the
message of its choice, and it is not this Court’s place to disagree with it. But we must inquire whether
the group is, in fact, expressing a message (whatever it may be) and whether that message (if one is
expressed) is significantly affected by a State’s antidiscrimination law. More critically, that inquiry
requires our independent analysis, rather than deference to a group’s litigating posture. Reflection on
the subject dictates that such an inquiry is required.
Surely there are instances in which an organization that truly aims to foster a belief at odds with the
purposes of a State’s antidiscrimination laws will have a First Amendment right to association that
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precludes forced compliance with those laws. But that right is not a freedom to discriminate at will,
nor is it a right to maintain an exclusionary membership policy simply out of fear of what the public
reaction would be if the group’s membership were opened up. It is an implicit right designed to
protect the enumerated rights of the First Amendment, not a license to act on any discriminatory
impulse. To prevail in asserting a right of expressive association as a defense to a charge of violating
an anti- discrimination law, the organization must at least show it has adopted and advocated an
unequivocal position inconsistent with a position advocated or epitomized by the person whom the
organization seeks to exclude. If this Court were to defer to whatever position an organization is
prepared to assert in its briefs, there would be no way to mark the proper boundary between
genuine exercises of the right to associate, on the one hand, and sham claims that are simply attempts to insulate nonexpressive private discrimination, on the other hand.
V
Even if BSA’s right to associate argument fails, it nonetheless might have a First Amendment right to
refrain from including debate and dialogue about homosexuality as part of its mission to instill values
in Scouts. It can, for example, advise Scouts who are entering adulthood and have questions about sex
to talk “with your parents, religious leaders, teachers, or Scoutmaster,” and, in turn, it can direct
Scoutmasters who are asked such questions “not undertake to instruct Scouts, in any formalized
manner, in the subject of sex and family life” because “it is not construed to be Scouting’s proper area.”
Dale’s right to advocate certain beliefs in a public forum or in a private debate does not include a
right to advocate these ideas when he is working as a Scoutmaster. And BSA cannot be compelled to
include a message about homosexuality among the values it actually chooses to teach its Scouts, if it
would prefer to remain silent on that subject.
In West Virginia Bd. of Ed. v. Barnette (1943), we recognized that the government may not “requir[e]
affirmation of a belief and an attitude of mind,” nor “force an American citizen publicly to profess any
statement of belief,” even if doing so does not require the person to “forego any contrary convictions
of their own.” “[O]ne important manifestation of the principle of free speech is that one who chooses
to speak may also decide ‘what not to say.’” Hurley. Though the majority mistakenly treats this
statement as going to the right to associate, it actually refers to a free speech claim. See Hurley
(noting distinction between free speech and right to associate claims). As with the right to associate
claim, though, the court is obligated to engage in an independent inquiry into whether the mere
inclusion of homosexuals would actually force BSA to proclaim a message it does not want to send.
In its briefs, BSA implies, even if it does not directly argue, that Dale would use his Scoutmaster
position as a “bully pulpit” to convey immoral messages to his troop, and therefore his inclusion in
the group would compel BSA to include a message it does not want to impart. Even though the
majority does not endorse that argument, I think it is important to explain why it lacks merit, before
considering the argument the majority does accept.
BSA has not contended, nor does the record support, that Dale had ever advocated a view on
homosexuality to his troop before his membership was revoked.
Though Hurley has a superficial similarity to the present case, a close inspection reveals a wide gulf
between that case and the one before us today.
First, it was critical to our analysis that GLIB was actually conveying a message by participating in the
parade—otherwise, the parade organizers could hardly claim that they were being forced to include
any unwanted message at all. Our conclusion that GLIB was conveying a message was inextricably
tied to the fact that GLIB wanted to march in a parade, as well as the manner in which it intended to
march. We noted the “inherent expressiveness of marching [in a parade] to make a point,” and in
particular that GLIB was formed for the purpose of making a particular point about gay pride. More
specifically, GLIB “distributed a fact sheet describing the members’ intentions” and, in a previous
parade, had “marched behind a shamrock-strewn banner with the simple inscription ‘Irish American
Gay, Lesbian and Bisexual Group of Boston.’” “[A] contingent marching behind the organization’s
banner,” we said, would clearly convey a message. Indeed, we expressly distinguished between the
members of GLIB, who marched as a unit to express their views about their own sexual orientation,

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on the one hand, and homosexuals who might participate as individuals in the parade without
intending to express anything about their sexuality by doing so.
Second, we found it relevant that GLIB’s message “would likely be perceived” as the parade
organizers’ own speech. That was so because “[p]arades and demonstrations . . . are not understood
to be so neutrally presented or selectively viewed” as, say, a broadcast by a cable operator, who is
usually considered to be “merely ‘a conduit’ for the speech” produced by others. Rather, parade
organizers are usually understood to make the “customary determination about a unit admitted to
the parade.”
Dale’s inclusion in the Boy Scouts is nothing like the case in Hurley. His participation sends no
cognizable message to the Scouts or to the world. Unlike GLIB, Dale did not carry a banner or a sign;
he did not distribute any factsheet; and he expressed no intent to send any message. If there is any
kind of message being sent, then, it is by the mere act of joining the Boy Scouts. Such an act does not
constitute an instance of symbolic speech under the First Amendment.
It is true, of course, that some acts are so imbued with symbolic meaning that they qualify as “speech”
under the First Amendment. See United States v. O’Brien (1968). At the same time, however, “[w]e
cannot accept the view that an apparently limitless variety of con- duct can be labeled ‘speech’
whenever the person engaging in the conduct intends thereby to express an idea.” Though
participating in the Scouts could itself conceivably send a message on some level, it is not the kind of
act that we have recognized as speech. Indeed, if merely joining a group did constitute symbolic
speech; and such speech were attributable to the group being joined; and that group has the right to
exclude that speech (and hence, the right to exclude that person from joining), then the right of free
speech effectively becomes a limitless right to exclude for every organization, whether or not it
engages in any expressive activities. That cannot be, and never has been, the law.
Furthermore, it is not likely that BSA would be understood to send any message, either to Scouts or
to the world, simply by admitting someone as a member. Over the years, BSA has generously
welcomed over 87 million young Americans into its ranks. In 1992 over one million adults were
active BSA members. The notion that an organization of that size and enormous prestige implicitly
endorses the views that each of those adults may express in a non-Scouting context is simply mind
boggling. Indeed, in this case there is no evidence that the young Scouts in Dale’s troop, or members
of their families, were even aware of his sexual orientation, either before or after his public
statements at Rutgers University. It is equally farfetched to assert that Dale’s open declaration of his
homosexuality, reported in a local newspaper, will effectively force BSA to send a message to anyone
simply because it allows Dale to be an Assistant Scoutmaster. For an Olympic gold medal winner or a
Wimbledon tennis champion, being “openly gay” perhaps communicates a message—for example,
that openness about one’s sexual orientation is more virtuous than concealment; that a homosexual
person can be a capable and virtuous person who should be judged like anyone else; and that
homosexuality is not immoral— but it certainly does not follow that they necessarily send a message
on behalf of the organizations that sponsor the activities in which they excel.* * *
JUSTICE SOUTER, WITH WHOM JUSTICE GINSBURG AND JUSTICE BREYER JOIN, DISSENTING. [OMITTED]

Notes

1.
The Court in Hurley is unanimous while the Justices in Dale are closely divided, with Justice
Souter, the author of the Court’s opinion in Hurley, joining the four dissenting Justices in Dale. (Justice
Souter also writes separately to emphasize that what one feels about homosexuality is not pertinent).
What are the distinctions the dissenters draw between the St Patrick’s Day parade and the
organization of the Boy Scouts? Between GLIB and James Dale?
2.
Notice the analytic structure in both Hurley and Dale. First, the plaintiffs must be engaged in
speech or association that has a “message.” Second, the person who seeks to be included must also be
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engaged in speech that has a “message.” Third, those messages must be different, so that the plaintiffs
are being forced to “say” something they would not otherwise say.
3.
In Elane Photography LLC v. Wilcox, 309 P.3d 53 (N.M. 2013), the New Mexico Supreme Court
held that a photography company violated a state anti-discrimination law when it refused to
photograph a same-sex wedding. The court rejected the First Amendment free speech claim of
compelled speech derived from “two lines” of cases, concluding that the photographers were not
being compelled to speak the government’s message (as in Barnette and Wooley) or being compelled
to include a third parties’ message that would change its own (as in Hurley and Dale).
4.
As you read the next case, Rumsfeld v. Forum for Academic and Institutional Rights, Inc.,
consider whether it is more like Barnette/Wooley or more like Hurley/Dale. Also consider the role of
“unconstitutional conditions” in the Court’s analysis.

III. Combining Unconstitutional Conditions and
Compelled Speech
Rumsfeld v. Forum for Academic and Institutional Rights,
Inc.
547 U.S. 47 (2006)
ROBERTS, C.J., DELIVERED THE OPINION OF THE COURT, IN WHICH ALL OTHER MEMBERS JOINED, EXCEPT ALITO, J.,
WHO TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE.
CHIEF JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT.
When law schools began restricting the access of military recruiters to their students because of
disagreement with the Government’s policy on homosexuals in the military, Congress responded by
enacting the Solomon Amendment. See 10 U. S. C. §983 (Supp. 2005). That provision specifies that if
any part of an institution of higher education denies military recruiters access equal to that provided
other recruiters, the entire institution would lose certain federal funds. The law schools responded
by suing, alleging that the Solomon Amendment infringed their First Amendment freedoms of speech
and association. The District Court disagreed but was reversed by a divided panel of the Court of
Appeals for the Third Circuit, which ordered the District Court to enter a preliminary injunction
against enforcement of the Solomon Amendment. We granted certiorari.
I
Respondent Forum for Academic and Institutional Rights, Inc. (FAIR), is an association of law schools
and law faculties. Its declared mission is “to promote academic freedom, support educational
institutions in opposing discrimination and vindicate the rights of institutions of higher education.”
FAIR members have adopted policies expressing their opposition to discrimination based on, among
other factors, sexual orientation. They would like to restrict military recruiting on their campuses
because they object to the policy Congress has adopted with respect to homosexuals in the military.
The Solomon Amendment, however, forces institutions to choose between enforcing their
nondiscrimination policy against military recruiters in this way and continuing to receive specified
federal funding.
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II
The Solomon Amendment denies federal funding to an institution of higher education that “has a
policy or practice . . . that either prohibits, or in effect prevents” the military “from gaining access to
campuses, or access to students . . . on campuses, for purposes of military recruiting in a manner that
is at least equal in quality and scope to the access to campuses and to students that is provided to any
other employer.” The statute provides an exception for an institution with “a longstanding policy of
pacifism based on historical religious affiliation.” The Government and FAIR agree on what this
statute requires: In order for a law school and its university to receive federal funding, the law school
must offer military recruiters the same access to its campus and students that it provides to the
nonmilitary recruiter receiving the most favorable access.
III
The Constitution grants Congress the power to “provide for the common Defence,” “[t]o raise and
support Armies,” and “[t]o provide and maintain a Navy.” Art. I, §8, cls. 1, 12–13. Congress’ power in
this area “is broad and sweeping,” and there is no dispute in this case that it includes the authority to
require campus access for military recruiters. That is, of course, unless Congress exceeds
constitutional limitations on its power in enacting such legislation. But the fact that legislation that
raises armies is subject to First Amendment constraints does not mean that we ignore the purpose of
this legislation when determining its constitutionality; * * * “judicial deference . . . is at its apogee”
when Congress legislates under its authority to raise and support armies.
Although Congress has broad authority to legislate on matters of military recruiting, it nonetheless
chose to secure campus access for military recruiters indirectly, through its Spending Clause power.
The Solomon Amendment gives universities a choice: Either allow military recruiters the same access
to students afforded any other recruiter or forgo certain federal funds. Congress’ decision to proceed
indirectly does not reduce the deference given to Congress in the area of military affairs. Congress’
choice to promote its goal by creating a funding condition deserves at least as deferential treatment
as if Congress had imposed a mandate on universities.
Congress’ power to regulate military recruiting under the Solomon Amendment is arguably greater
because universities are free to decline the federal funds. In Grove City College v. Bell (1984), we
rejected a private college’s claim that conditioning federal funds on its compliance with Title IX of the
Education Amendments of 1972 violated the First Amendment. We thought this argument
“warrant[ed] only brief consideration” because “Congress is free to attach reasonable and
unambiguous conditions to federal financial assistance that educational institutions are not obligated
to accept.” We concluded that no First Amendment violation had occurred—without reviewing the
substance of the First Amendment claims—because Grove City could decline the Government’s funds.
Other decisions, however, recognize a limit on Congress’ ability to place conditions on the receipt of
funds. We recently held that “‘the government may not deny a benefit to a person on a basis that
infringes his constitutionally protected . . . freedom of speech even if he has no entitlement to that
benefit.’” United States v. American Library Assn., Inc. (2003). Under this principle, known as the
unconstitutional conditions doctrine, the Solomon Amendment would be unconstitutional if Congress
could not directly require universities to provide military recruiters equal access to their students.
This case does not require us to determine when a condition placed on university funding goes
beyond the “reasonable” choice offered in Grove City and becomes an unconstitutional condition. It is
clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed
directly. 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 federal funds.
A
The Solomon Amendment neither limits what law schools may say nor requires them to say anything.
Law schools remain free under the statute to express whatever views they may have on the military’s
congressionally mandated employment policy, all the while retaining eligibility for federal funds. See
Tr. of Oral Arg. 25 (Solicitor General acknowledging that law schools “could put signs on the bulletin
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board next to the door, they could engage in speech, they could help organize student protests”). As a
general matter, the Solomon Amendment regulates conduct, not speech. It affects what law schools
must do—afford equal access to military recruiters—not what they may or may not say.
Nevertheless, the Third Circuit concluded that the Solomon Amendment violates law schools’
freedom of speech in a number of ways. First, in assisting military recruiters, law schools provide
some services, such as sending e-mails and distributing flyers, that clearly involve speech. The Court
of Appeals held that in supplying these services law schools are unconstitutionally compelled to
speak the Government’s message. Second, military recruiters are, to some extent, speaking while they
are on campus. The Court of Appeals held that, by forcing law schools to permit the military on
campus to express its message, the Solomon Amendment unconstitutionally requires law schools to
host or accommodate the military’s speech. Third, although the Court of Appeals thought that the
Solomon Amendment regulated speech, it held in the alternative that, if the statute regulates conduct,
this conduct is expressive and regulating it unconstitutionally infringes law schools’ right to engage
in expressive con- duct. We consider each issue in turn.
1
Some of this Court’s leading First Amendment precedents have established the principle that
freedom of speech prohibits the government from telling people what they must say. In West Virginia
Bd. of Ed. v. Barnette (1943), we held unconstitutional a state law requiring schoolchildren to recite
the Pledge of Allegiance and to salute the flag. And in Wooley v. Maynard (1977), we held
unconstitutional another that required New Hampshire motorists to display the state motto—“Live
Free or Die”—on their license plates.
The Solomon Amendment does not require any similar expression by law schools. Nonetheless,
recruiting assistance provided by the schools often includes elements of speech. For example, schools
may send e-mails or post notices on bulletin boards on an employer’s behalf. Law schools offering
such services to other recruiters must also send e-mails and post notices on behalf of the military to
comply with the Solomon Amendment. As FAIR points out, these compelled statements of fact (“The
U. S. Army recruiter will meet interested students in Room 123 at 11 a.m.”), like compelled
statements of opinion, are subject to First Amendment scrutiny.
This sort of recruiting assistance, however, is a far cry from the compelled speech in Barnette and
Wooley. The Solomon Amendment, unlike the laws at issue in those cases, does not dictate the
content of the speech at all, which is only “compelled” if, and to the extent, the school provides such
speech for other recruiters. There is nothing in this case approaching a Government-mandated
pledge or motto that the school must endorse.
The compelled speech to which the law schools point is plainly incidental to the Solomon
Amendment’s regulation of conduct, and “it has never been deemed an abridgment of freedom of
speech or press to make a course of conduct illegal merely because the conduct was in part initiated,
evidenced, or carried out by means of language, either spoken, written, or printed.” Congress, for
example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this
will require an employer to take down a sign reading “White Applicants Only” hardly means that the
law should be analyzed as one regulating the employer’s speech rather than conduct. See R. A. V. v. St.
Paul, (1992) (“[W]ords can in some circumstances violate laws directed not against speech but
against conduct”). Compelling a law school that sends scheduling e-mails for other recruiters to send
one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing
a Jehovah’s Witness to display the motto “Live Free or Die,” and it trivializes the freedom protected in
Barnette and Wooley to suggest that it is.
2
Our compelled-speech cases are not limited to the situation in which an individual must personally
speak the government’s message. We have also in a number of instances limited the government’s
ability to force one speaker to host or accommodate another speaker’s message. * * *
The compelled-speech violation in each of our prior cases, however, resulted from the fact that the
complaining speaker’s own message was affected by the speech it was forced to accommodate. The
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expressive nature of a parade was central to our holding in Hurley. We concluded that because “every
participating unit affects the message conveyed by the [parade’s] private organizers,” a law dictating
that a particular group must be included in the parade “alter[s] the expressive content of th[e]
parade.” As a result, we held that the State’s public accommodation law, as applied to a private
parade, “violates the fundamental rule of protection under the First Amendment, that a speaker has
the autonomy to choose the content of his own message.”
In this case, accommodating the military’s message does not affect the law schools’ speech, because
the schools are not speaking when they host interviews and recruiting receptions. Unlike a parade
organizer’s choice of parade contingents, a law school’s decision to allow recruiters on campus is not
inherently expressive. Law schools facilitate recruiting to assist their students in obtaining jobs. A
law school’s recruiting services lack the expressive quality of a parade, a newsletter, or the editorial
page of a news- paper; its accommodation of a military recruiter’s message is not compelled speech
because the accommodation does not sufficiently interfere with any message of the school.
The schools respond that if they treat military and nonmilitary recruiters alike in order to comply
with the Solomon Amendment, they could be viewed as sending the message that they see nothing
wrong with the military’s policies, when they do. We rejected a similar argument in PruneYard
Shopping Center v. Robins (1980). In that case, we upheld a state law requiring a shopping center
owner to allow certain expressive activities by others on its property. We explained that there was
little likelihood that the views of those engaging in the expressive activities would be identified with
the owner, who remained free to disassociate himself from those views and who was “not . . . being
compelled to affirm [a] belief in any governmentally prescribed position or view.”
The same is true here. 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
military’s policies. We have held that high school students can appreciate the difference between
speech a school sponsors and speech the school permits because legally required to do so, pursuant
to an equal access policy. Surely students have not lost that ability by the time they get to law school.
3
Having rejected the view that the Solomon Amendment impermissibly regulates speech, we must still
consider whether the expressive nature of the conduct regulated by the statute brings that conduct
within the First Amendment’s protection. In O’Brien, we recognized that some forms of “‘symbolic
speech’” were deserving of First Amendment protection. But we rejected the view that “conduct can
be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea.”
Instead, we have extended First Amendment protection only to conduct that is inherently expressive.
In Texas v. Johnson (1989), for example, we applied O’Brien and held that burning the American flag
was sufficiently expressive to warrant First Amendment protection.
Unlike flag burning, the conduct regulated by the Solomon Amendment is not inherently expressive.
Prior to the adoption of the Solomon Amendment’s equal-access requirement, law schools
“expressed” their disagreement with the military by treating military recruiters differently from
other recruiters. But these actions were expressive only because the law schools accompanied their
conduct with speech explaining it. For example, the point of requiring military interviews to be
conducted on the undergraduate campus is not “overwhelmingly apparent.” An observer who sees
military recruiters interviewing away from the law school has no way of knowing whether the law
school is expressing its disapproval of the military, all the law school’s interview rooms are full, or
the military recruiters decided for reasons of their own that they would rather interview someplace
else.
The expressive component of a law school’s actions is not created by the conduct itself but by the
speech that accompanies it. The fact that such explanatory speech is necessary is strong evidence
that the conduct at issue here is not so inherently expressive that it warrants protection under
O’Brien. If combining speech and conduct were enough to create expressive conduct, a regulated
party could always transform conduct into “speech” simply by talking about it. For instance, if an
individual announces that he intends to express his disapproval of the Internal Revenue Service by

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refusing to pay his income taxes, we would have to apply O’Brien to determine whether the Tax Code
violates the First Amendment. Neither O’Brien nor its progeny supports such a result.
Although the Third Circuit also concluded that O’Brien does not apply, it held in the alternative that
the Solomon Amendment does not pass muster under O’Brien because the Government failed to
produce evidence establishing that the Solomon Amendment was necessary and effective. The Court
of Appeals surmised that “the military has ample resources to recruit through alternative means,”
suggesting “loan repayment programs” and “television and radio advertisements.” As a result, the
Government—according to the Third Circuit— failed to establish that the statute’s burden on speech
is no greater than essential to furthering its interest in military recruiting.
We disagree with the Court of Appeals’ reasoning and result. We have held that “an incidental burden
on speech is no greater than is essential, and therefore is permissible under O’Brien, so long as the
neutral regulation promotes a substantial government interest that would be achieved less
effectively absent the regulation.” The Solomon Amendment clearly satisfies this requirement.
Military recruiting promotes the substantial Government interest in raising and supporting the
Armed Forces—an objective that would be achieved less effectively if the military were forced to
recruit on less favorable terms than other employers. The Court of Appeals’ proposed alternative
methods of recruiting are beside the point. The issue is not whether other means of raising an army
and providing for a navy might be adequate. That is a judgment for Congress, not the courts. It
suffices that the means chosen by Congress add to the effectiveness of military recruitment.
Accordingly, even if the Solomon Amendment were regarded as regulating expressive conduct, it
would not violate the First Amendment under O’Brien.
B
The Solomon Amendment does not violate law schools’ freedom of speech, but the First
Amendment’s protection extends beyond the right to speak. We have recognized a First Amendment
right to associate for the purpose of speaking, which we have termed a “right of expressive
association.” See, e.g., Boy Scouts of America v. Dale (2000). The reason we have extended First
Amendment protection in this way is clear: The right to speak is often exercised most effectively by
combining one’s voice with the voices of others. See Roberts v. United States Jaycees (1984). If the
government were free to restrict individuals’ ability to join together and speak, it could essentially
silence views that the First Amendment is intended to protect.
FAIR argues that the Solomon Amendment violates law schools’ freedom of expressive association.
According to FAIR, law schools’ ability to express their message that discrimination on the basis of
sexual orientation is wrong is significantly affected by the presence of military recruiters on campus
and the schools’ obligation to assist them. Relying heavily on our decision in Dale, the Court of
Appeals agreed.
The Solomon Amendment, however, does not similarly affect a law school’s associational rights. To
comply with the statute, law schools must allow military recruiters on campus and assist them in
whatever way the school chooses to assist other employers. Law schools therefore “associate” with
military recruiters in the sense that they interact with them. But recruiters are not part of the law
school. Recruiters are, by definition, outsiders who come onto campus for the limited purpose of
trying to hire students—not to become members of the school’s expressive association. This
distinction is critical. Unlike the public accommodations law in Dale, the Solomon Amendment does
not force a law school “‘to accept members it does not desire.’” The law schools say that allowing
military recruiters equal access impairs their own expression by requiring them to associate with the
recruiters, but just as saying conduct is undertaken for expressive purposes cannot make it symbolic
speech, so too a speaker cannot “erect a shield” against laws requiring access “simply by asserting”
that mere association “would impair its message.”
FAIR correctly notes that the freedom of expressive association protects more than just a group’s
membership decisions. For example, we have held laws unconstitutional that require disclosure of
membership lists for groups seeking anonymity, Brown v. Socialist Workers ’74 Campaign Comm.
(Ohio) (1982), or impose penalties or withhold benefits based on membership in a disfavored group,
Healy v. James (1972). Although these laws did not directly interfere with an organization’s
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composition, they made group membership less attractive, raising the same First Amendment
concerns about affecting the group’s ability to express its message.
The Solomon Amendment has no similar effect on a law school’s associational rights. Students and
faculty are free to associate to voice their disapproval of the military’s message; nothing about the
statute affects the composition of the group by making group membership less desirable. The
Solomon Amendment therefore does not violate a law school’s First Amendment rights. A military
recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of
how repugnant the law school considers the recruiter’s message.
In this case, FAIR has attempted to stretch a number of First Amendment doctrines well beyond the
sort of activities these doctrines protect. The law schools object to having to treat military recruiters
like other recruiters, but that regulation of conduct does not violate the First Amendment. To the
extent that the Solomon Amendment incidentally affects expression, the law schools’ effort to cast
themselves as just like the schoolchildren in Barnette, the parade organizers in Hurley, and the Boy
Scouts in Dale plainly overstates the expressive nature of their activity and the impact of the Solomon
Amendment on it, while exaggerating the reach of our First Amendment precedents.
Because Congress could require law schools to provide equal access to military recruiters without
violating the schools’ freedoms of speech or association, the Court of Appeals erred in holding that
the Solomon Amendment likely violates the First Amendment. We therefore reverse the judgment of
the Third Circuit. * * *

Agency for International Development v. Alliance for
Open Society International, Inc.
570 U.S. ___ (2013)

ROBERTS, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH KENNEDY, GINSBURG, BREYER, ALITO, AND
SOTOMAYOR, JJ., JOINED. SCALIA, J., FILED A DISSENTING OPINION, IN WHICH THOMAS, J., JOINED. KAGAN, J., TOOK NO
PART IN THE CONSIDERATION OR DECISION OF THE CASE.
CHIEF JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT.
The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act of 2003 (Leadership
Act) outlined a comprehensive strategy to combat the spread of HIV/AIDS around the world. As part
of that strategy, Congress authorized the appropriation of billions of dollars to fund efforts by
nongovernmental organizations to assist in the fight. The Act imposes two related conditions on that
funding: First, no funds made available by the Act “may be used to promote or advocate the
legalization or practice of prostitution or sex trafficking.” And second, no funds may be used by an
organization “that does not have a policy explicitly opposing prostitution and sex trafficking.” This
case concerns the second of these conditions, referred to as the Policy Requirement. The question is
whether that funding condition violates a recipient’s First Amendment rights.
I
Congress passed the Leadership Act in 2003 after finding that HIV/AIDS had “assumed pandemic
proportions, spreading from the most severely affected regions, sub- Saharan Africa and the
Caribbean, to all corners of the world, and leaving an unprecedented path of death and devastation.”
According to congressional findings, more than 65 million people had been infected by HIV and more
than 25 million had lost their lives, making HIV/AIDS the fourth highest cause of death worldwide. In
sub-Saharan Africa alone, AIDS had claimed the lives of more than 19 million individuals and was
projected to kill a full quarter of the population of that area over the next decade. The disease not

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only directly endangered those infected, but also increased the potential for social and political
instability and economic devastation, posing a security issue for the entire international community.
In the Leadership Act, Congress directed the President to establish a “comprehensive, integrated”
strategy to combat HIV/AIDS around the world. The Act sets out 29 different objectives the
President’s strategy should seek to fulfill, reflecting a multitude of approaches to the problem. The
strategy must include, among other things, plans to increase the availability of treatment for infected
individuals, prevent new infections, support the care of those affected by the disease, promote
training for physicians and other health care workers, and accelerate research on HIV/AIDS
prevention methods, all while providing a framework for cooperation with international
organizations and partner countries to further the goals of the program.
The Act “make[s] the reduction of HIV/AIDS behavioral risks a priority of all prevention efforts.” The
Act’s approach to reducing behavioral risks is multi- faceted. The President’s strategy for addressing
such risks must, for example, promote abstinence, encourage monogamy, increase the availability of
condoms, promote voluntary counseling and treatment for drug users, and, as relevant here,
“educat[e] men and boys about the risks of procuring sex commercially” as well as “promote
alternative livelihoods, safety, and social reintegration strategies for commercial sex workers.”
Congress found that the “sex industry, the trafficking of individuals into such industry, and sexual
violence” were factors in the spread of the HIV/AIDS epidemic, and deter- mined that “it should be
the policy of the United States to eradicate” prostitution and “other sexual victimization.”
The United States has enlisted the assistance of non- governmental organizations to help achieve the
many goals of the program. Such organizations “with experience in health care and HIV/AIDS
counseling,” Congress found, “have proven effective in combating the HIV/AIDS pandemic and can be
a resource in . . . provid[ing] treatment and care for individuals infected with HIV/AIDS.” Since 2003,
Congress has authorized the appropriation of billions of dollars for funding these organizations’ fight
against HIV/AIDS around the world.
Those funds, however, come with two conditions: First, no funds made available to carry out the
Leadership Act “may be used to promote or advocate the legalization or practice of prostitution or
sex trafficking.” Second, no funds made available may “provide assistance to any group or
organization that does not have a policy explicitly opposing prostitution and sex trafficking, except . .
. to the Global Fund to Fight AIDS, Tuberculosis and Malaria, the World Health Organization, the
International AIDS Vaccine Initiative or to any United Nations agency.” It is this second condition—
the Policy Requirement—that is at issue here.
The Department of Health and Human Services (HHS) and the United States Agency for International
Development (USAID) are the federal agencies primarily responsible for overseeing implementation
of the Leadership Act. To enforce the Policy Requirement, the agencies have directed that the
recipient of any funding under the Act agree in the award document that it is opposed to
“prostitution and sex trafficking because of the psychological and physical risks they pose for women,
men, and children.”
II
Respondents are a group of domestic organizations engaged in combating HIV/AIDS overseas. In
addition to substantial private funding, they receive billions annually in financial assistance from the
United States, including under the Leadership Act. Their work includes programs aimed at limiting
injection drug use in Uzbekistan, Tajikistan, and Kyrgyzstan, preventing mother-to-child HIV
transmission in Kenya, and promoting safer sex practices in India. Respondents fear that adopting a
policy explicitly opposing prostitution may alienate certain host governments, and may diminish the
effectiveness of some of their programs by making it more difficult to work with prostitutes in the
fight against HIV/AIDS. They are also concerned that the Policy Requirement may require them to
censor their privately funded discussions in publications, at conferences, and in other forums about
how best to prevent the spread of HIV/AIDS among prostitutes.
In 2005, respondents Alliance for Open Society International and Pathfinder International
commenced this litigation, seeking a declaratory judgment that the Government’s implementation of
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the Policy Requirement violated their First Amendment rights. Respondents sought a preliminary
injunction barring the Government from cut- ting off their funding under the Act for the duration of
the litigation, from unilaterally terminating their cooperative agreements with the United States, or
from otherwise taking action solely on the basis of respondents’ own privately funded speech. The
District Court granted such a preliminary injunction, and the Government appealed.
While the appeal was pending, HHS and USAID issued guidelines on how recipients of Leadership Act
funds could retain funding while working with affiliated organizations not bound by the Policy
Requirement. The guidelines permit funding recipients to work with affiliated organizations that
“engage[] in activities inconsistent with the recipient’s opposition to the practices of prostitution and
sex trafficking” as long as the recipients retain “objective integrity and independence from any
affiliated organization.” Whether sufficient separation exists is determined by the totality of the
circumstances, including “but not . . . limited to” (1) whether the organizations are legally separate;
(2) whether they have separate personnel; (3) whether they keep separate accounting records; (4)
the degree of separation in the organizations’ facilities; and (5) the extent to which signs and other
forms of identification distinguish the organizations.
The Court of Appeals summarily remanded the case to the District Court to consider whether the
preliminary injunction was still appropriate in light of the new guidelines. On remand, the District
Court issued a new preliminary injunction along the same lines as the first, and the Government
renewed its appeal.
The Court of Appeals affirmed, concluding that respondents had demonstrated a likelihood of success
on the merits of their First Amendment challenge under this Court’s “unconstitutional conditions”
doctrine. Under this doctrine, the court reasoned, “the government may not place a condition on the
receipt of a benefit or subsidy that infringes upon the recipient’s constitutionally protected rights,
even if the government has no obligation to offer the benefit in the first instance.” And a condition
that compels recipients “to espouse the government’s position” on a subject of international debate
could not be squared with the First Amendment. The court concluded that “the Policy Requirement,
as implemented by the Agencies, falls well beyond what the Supreme Court . . . ha[s] upheld as
permissible funding conditions.”
Judge Straub dissented, expressing his view that the Policy Requirement was an “entirely rational
exercise of Congress’s powers pursuant to the Spending Clause.”
We granted certiorari.
III
The Policy Requirement mandates that recipients of Leadership Act funds explicitly agree with the
Government’s policy to oppose prostitution and sex trafficking. It is, however, a basic First
Amendment principle that “freedom of speech prohibits the government from telling people what
they must say.” Rumsfeld v. Forum for Academic and Institutional Rights, Inc. (2006) (citing West
Virginia Bd. of Ed. v. Barnette (1943), and Wooley v. Maynard (1977)). “At the heart of the First
Amendment lies the principle that each person should decide for himself or herself the ideas and
beliefs deserving of expression, consideration, and adherence.” Were it enacted as a direct regulation
of speech, the Policy Requirement would plainly violate the First Amendment. The question is
whether the Government may nonetheless impose that requirement as a condition on the receipt of
federal funds.
A
The Spending Clause of the Federal Constitution grants Congress the power “[t]o lay and collect
Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and
general Welfare of the United States.” Art. I, §8, cl. 1. The Clause provides Congress broad discretion
to tax and spend for the “general Welfare,” including by funding particular state or private programs
or activities. That power includes the authority to impose limits on the use of such funds to ensure
they are used in the manner Congress intends. Rust v. Sullivan (1991) (“Congress’ power to allocate
funds for public purposes includes an ancillary power to ensure that those funds are properly
applied to the prescribed use.”).
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As a general matter, if a party objects to a condition on the receipt of federal funding, its recourse is
to decline the funds. This remains true when the objection is that a condition may affect the
recipient’s exercise of its First Amendment rights.
At the same time, however, we have held that the Government “‘may not deny a benefit to a person
on a basis that infringes his constitutionally protected . . . freedom of speech even if he has no
entitlement to that benefit.’” In some cases, a funding condition can result in an unconstitutional
burden on First Amendment rights.
The dissent thinks that can only be true when the condition is not relevant to the objectives of the
program (although it has its doubts about that), or when the condition is actually coercive, in the
sense of an offer that cannot be refused. * * * Our precedents, however, are not so limited. In the
present context, the relevant distinction that has emerged from our cases is between conditions that
define the limits of the government spending program—those that specify the activities Congress
wants to subsidize—and conditions that seek to leverage funding to regulate speech outside the
contours of the program itself. The line is hardly clear, in part because the definition of a particular
program can always be manipulated to subsume the challenged condition. We have held, however,
that “Congress cannot recast a condition on funding as a mere definition of its program in every case,
lest the First Amendment be reduced to a simple semantic exercise.” Legal Services Corporation v.
Velazquez (2001).
B
As noted, the distinction drawn in these cases—between conditions that define the federal program
and those that reach outside it—is not always self-evident. As Justice Cardozo put it in a related
context, “Definition more precise must abide the wisdom of the future.” Steward Machine Co. v. Davis,
301 U. S. 548, 591 (1937). Here, however, we are confident that the Policy Requirement falls on the
unconstitutional side of the line.
To begin, it is important to recall that the Leadership Act has two conditions relevant here. The
first— unchallenged in this litigation—prohibits Leadership Act funds from being used “to promote
or advocate the legalization or practice of prostitution or sex trafficking.” * * *
The Policy Requirement therefore must be doing something more—and it is. The dissent views the
Requirement as simply a selection criterion by which the Government identifies organizations “who
believe in its ideas to carry them to fruition.” As an initial matter, whatever purpose the Policy
Requirement serves in selecting funding recipients, its effects go beyond selection. The Policy
Requirement is an ongoing condition on recipients’ speech and activities, a ground for terminating a
grant after selection is complete. In any event, as the Government acknowledges, it is not simply
seeking organizations that oppose prostitution. Rather, it explains, “Congress has expressed its
purpose ‘to eradicate’ prostitution and sex trafficking, and it wants recipients to adopt a similar
stance” (emphasis added). This case is not about the Government’s ability to enlist the assistance of
those with whom it already agrees. It is about compelling a grant recipient to adopt a particular belief
as a condition of funding.
By demanding that funding recipients adopt—as their own—the Government’s view on an issue of
public concern, the condition by its very nature affects “protected conduct outside the scope of the
federally funded program.” Rust. A recipient cannot avow the belief dictated by the Policy
Requirement when spending Leadership Act funds, and then turn around and assert a contrary
belief, or claim neutrality, when participating in activities on its own time and dime. By requiring
recipients to profess a specific belief, the Policy Requirement goes beyond defining the limits of the
federally funded program to defining the recipient.
The Government contends that the affiliate guidelines, established while this litigation was pending,
save the program. Under those guidelines, funding recipients are permitted to work with affiliated
organizations that do not abide by the condition, as long as the recipients retain “objective integrity
and independence” from the unfettered affiliates. The Government suggests the guidelines alleviate
any unconstitutional burden on the respondents’ First Amendment rights by allowing them to either:
(1) accept Leadership Act funding and comply with Policy Requirement, but establish affiliates to
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communicate contrary views on prostitution; or (2) decline funding themselves (thus remaining free
to express their own views or remain neutral), while creating affiliates whose sole purpose is to
receive and administer Leadership Act funds, thereby “cabin[ing] the effects” of the Policy
Requirement within the scope of the federal program.
Neither approach is sufficient. When we have noted the importance of affiliates in this context, it has
been because they allow an organization bound by a funding condition to exercise its First
Amendment rights outside the scope of the federal program. Affiliates cannot serve that purpose
when the condition is that a funding recipient espouse a specific belief as its own. If the affiliate is
distinct from the recipient, the arrangement does not afford a means for the recipient to express its
beliefs. If the affiliate is more clearly identified with the recipient, the recipient can express those
beliefs only at the price of evident hypocrisy. The guidelines themselves make that clear. See 45 CFR
§89.3 (allowing funding recipients to work with affiliates whose conduct is “inconsistent with the
recipient’s opposition to the practices of prostitution and sex trafficking” (emphasis added)).
The Government suggests that the Policy Requirement is necessary because, without it, the grant of
federal funds could free a recipient’s private funds “to be used to promote prostitution or sex
trafficking.” That argument assumes that federal funding will simply supplant private funding, rather
than pay for new programs or expand existing ones. The Government offers no support for that
assumption as a general matter, or any reason to believe it is true here. * * *
The Government cites but one case to support that argument, Holder v. Humanitarian Law Project.
That case concerned the quite different context of a ban on providing material support to terrorist
organizations, where the record indicated that support for those organizations’ nonviolent
operations was funneled to support their violent activities.
Pressing its argument further, the Government contends that “if organizations awarded federal funds
to implement Leadership Act programs could at the same time promote or affirmatively condone
prostitution or sex trafficking, whether using public or private funds, it would undermine the
government’s program and confuse its message opposing prostitution and sex trafficking.” But the
Policy Requirement goes beyond preventing recipients from using private funds in a way that would
undermine the federal program. It requires them to pledge allegiance to the Government’s policy of
eradicating prostitution. As to that, we cannot improve upon what Justice Jackson wrote for the Court
70 years ago: “If there is any fixed star in our constitutional constellation, it is that no official, high or
petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith therein.” Barnette.
The Policy Requirement compels as a condition of federal funding the affirmation of a belief that by
its nature cannot be confined within the scope of the Government program. In so doing, it violates the
First Amendment and cannot be sustained. The judgment of the Court of Appeals is affirmed.
It is so ordered.
JUSTICE SCALIA, WITH WHOM JUSTICE THOMAS JOINS, DISSENTING.
The Leadership Act provides that “any group or organization that does not have a policy explicitly
opposing prostitution and sex trafficking” may not receive funds appropriated under the Act. This
Policy Requirement is nothing more than a means of selecting suitable agents to implement the
Government’s chosen strategy to eradicate HIV/AIDS. That is perfectly permissible under the
Constitution.
The First Amendment does not mandate a viewpoint-neutral government. Government must choose
between rival ideas and adopt some as its own: competition over cartels, solar energy over coal,
weapon development over disarmament, and so forth. Moreover, the government may enlist the
assistance of those who believe in its ideas to carry them to fruition; and it need not enlist for that
purpose those who oppose or do not support the ideas. That seems to me a matter of the most
common common sense. For example: One of the purposes of America’s foreign-aid programs is the
fostering of good will towards this country. If the organization Hamas—reputed to have an efficient
system for delivering welfare—were excluded from a program for the distribution of U. S. food
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assistance, no one could reasonably object. And that would remain true if Hamas were an
organization of United States citizens entitled to the protection of the Constitution. So long as the
unfunded organization remains free to engage in its activities (including anti-American propaganda)
“without federal assistance,” refusing to make use of its assistance for an enterprise to which it is
opposed does not abridge its speech. And the same is true when the rejected organization is not
affirmatively opposed to, but merely unsupportive of, the object of the federal program, which
appears to be the case here. (Respondents do not promote prostitution, but neither do they wish to
oppose it.) A federal program to encourage healthy eating habits need not be administered by the
American Gourmet Society, which has nothing against healthy food but does not insist upon it.
The argument is that this commonsense principle will enable the government to discriminate against,
and injure, points of view to which it is opposed. Of course the Constitution does not prohibit
government spending that discriminates against, and injures, points of view to which the government
is opposed; every government program which takes a position on a controversial issue does that.
Anti-smoking programs injure cigar aficionados, programs encouraging sexual abstinence injure
free-love advocates, etc. The constitutional prohibition at issue here is not a prohibition against
discriminating against or injuring opposing points of view, but the First Amendment’s prohibition
against the coercing of speech. I am frankly dubious that a condition for eligibility to participate in a
minor federal program such as this one runs afoul of that prohibition even when the condition is
irrelevant to the goals of the program. Not every disadvantage is a coercion.
But that is not the issue before us here. Here the views that the Government demands an applicant
forswear—or that the Government insists an applicant favor—are relevant to the program in
question. The program is valid only if the Government is entitled to disfavor the opposing view (here,
advocacy of or toleration of prostitution). And if the program can disfavor it, so can the selection of
those who are to administer the program. There is no risk that this principle will enable the
Government to discriminate arbitrarily against positions it disfavors. It would not, for example,
permit the Government to exclude from bidding on defense contracts anyone who refuses to abjure
prostitution. But here a central part of the Government’s HIV/AIDS strategy is the suppression of
prostitution, by which HIV is transmitted. It is entirely reasonable to admit to participation in the
program only those who believe in that goal.
According to the Court, however, this transgresses a constitutional line between conditions that
operate inside a spending program and those that control speech outside of it. I am at a loss to
explain what this central pillar of the Court’s opinion—this distinction that the Court itself admits is
“hardly clear” and “not always self-evident,” —has to do with the First Amendment. The distinction
was alluded to, to be sure, in Rust v. Sullivan (1991), but not as (what the Court now makes it) an
invariable requirement for First Amendment validity. That the pro-abortion speech prohibition was
limited to “inside the program” speech was relevant in Rust because the program itself was not an
anti-abortion program. The Government remained neutral on that controversial issue, but did not
wish abortion to be promoted within its family-planning-services program. The statutory objective
could not be impaired, in other words, by “outside the program” pro-abortion speech. The purpose of
the limitation was to prevent Government funding from providing the means of pro-abortion
propaganda, which the Government did not wish (and had no constitutional obligation) to provide.
The situation here is vastly different. Elimination of prostitution is an objective of the HIV/AIDS
program, and any promotion of prostitution— whether made inside or outside the program—does
harm the program.
Of course the most obvious manner in which the admission to a program of an ideological opponent
can frustrate the purpose of the program is by freeing up the opponent’s funds for use in its
ideological opposition. To use the Hamas example again: Subsidizing that organization’s provision of
social services enables the money that it would otherwise use for that purpose to be used, instead,
for anti-American propaganda. Perhaps that problem does not exist in this case since the
respondents do not affirmatively promote prostitution. But the Court’s analysis categorically rejects
that justification for ideological requirements in all cases, demanding “record indica[tion]” that
“federal funding will simply supplant private funding, rather than pay for new programs.” This seems
to me quite naive. Money is fungible. The economic reality is that when NGOs can conduct their AIDS
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work on the Government’s dime, they can expend greater resources on policies that undercut the
Leadership Act. The Government need not establish by record evidence that this will happen. To
make it a valid consideration in determining participation in federal programs, it suffices that this is a
real and obvious risk.
The Court makes a head-fake at the unconstitutional conditions doctrine, but that doctrine is of no
help. There is no case of ours in which a condition that is relevant to a statute’s valid purpose and
that is not in itself unconstitutional (e.g., a religious-affiliation condition that violates the
Establishment Clause) has been held to violate the doctrine. Moreover, as I suggested earlier, the
contention that the condition here “coerces” respondents’ speech is on its face implausible. Those
organizations that wish to take a different tack with respect to prostitution “are as unconstrained
now as they were before the enactment of [the Leadership Act].” As the Court acknowledges, “[a]s a
general matter, if a party objects to a condition on the receipt of federal funding, its recourse is to
decline the funds,” and to draw on its own coffers.
The majority cannot credibly say that this speech condition is coercive, so it does not. It pussyfoots
around the lack of coercion by invalidating the Leadership Act for “requiring recipients to profess a
specific belief” and “demanding that funding recipients adopt—as their own—the Government’s view
on an issue of public concern.” But like King Cnut’s commanding of the tides, here the Government’s
“requiring” and “demanding” have no coercive effect. In the end, and in the circumstances of this
case, “compell[ing] as a condition of federal funding the affirmation of a belief,” is no compulsion at
all. It is the reasonable price of admission to a limited government-spending program that each
organization remains free to accept or reject. * * *
Ideological-commitment requirements such as the one here are quite rare; but making the choice
between competing applicants on relevant ideological grounds is undoubtedly quite common. As far
as the Constitution is concerned, it is quite impossible to distinguish between the two. If the
government cannot demand a relevant ideological commitment as a condition of application, neither
can it distinguish between applicants on a relevant ideological ground. And that is the real evil of
today’s opinion. One can expect, in the future, frequent challenges to the denial of government
funding for relevant ideological reasons.
The Court’s opinion contains stirring quotations from cases like West Virginia Bd. of Ed. v. Barnette
(1943), and Turner Broadcasting System, Inc. v. FCC (1994). They serve only to distract attention from
the elephant in the room: that the Government is not forcing anyone to say anything. What Congress
has done here—requiring an ideological commitment relevant to the Government task at hand—is
approved by the Constitution itself. Americans need not support the Constitution; they may be
Communists or anarchists. But “[t]he Senators and Representatives . . . , and the Members of the
several State Legislatures, and all executive and judicial Officers, both of the United States and of the
several States, shall be bound by Oath or Affirmation, to support [the] Constitution.” U. S. Const., Art.
VI, cl. 3. The Framers saw the wisdom of imposing affirmative ideological commitments prerequisite
to assisting in the government’s work. And so should we.

Notes

1.
In USAID v. Alliance for Open Society, the Court explicitly recognizes the doctrine of
unconstitutional conditions in the First Amendment free speech context. The Court articulates the
“relevant distinction” as “between conditions that define the limits of the government spending
program—those that specify the activities Congress wants to subsidize” (which would be presumably
constitutional) and “conditions that seek to leverage funding to regulate speech outside the contours
of the program itself” (which could be unconstitutional. As the Court states, this “line is hardly clear,
in part because the definition of a particular program can always be manipulated to subsume the
challenged condition.”

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If you were a Congressperson who wanted to enact a new version of The United States Leadership
Against HIV/AIDS, Tuberculosis, and Malaria Act (Leadership Act), how might you “manipulate” a
program within the Act to “subsume” the condition of the anti-prostitution pledge?
2.
Given the inside/outside distinction in USAID, how would this have applied if the Court had
found a First Amendment violation in Rumsfeld v. FAIR? Recall that the Solomon Amendment
penalized failure of the law school to include military recruiters as denying funding from the
Departments of Defense, Homeland Security, Transportation, Labor, Health and Human Services, and
Education, and the Central Intelligence Agency and the National Nuclear Security Administration of
the Department of Energy universitywide.
3.
An “unconstitutional conditions” challenge requires government funding and speech. A
compelled speech challenge requires government compulsion to speak, either by conveying the
government’s message or by including the speech of third parties. These doctrines can overlap with
other doctrines, including forum and time, place, or manner doctrines discussed in the next chapter.

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Chapter Seven: FORUMS, TIME, PLACE,
MANNER, GOVERNMENT SPEECH
This chapter considers the doctrines of “public forums” (as opposed to private property) and “time
place or manner” (TPM) (as opposed to content). These doctrines - - - which often intersect - - - have
developed to govern situations in which the government is regulating speech in a variety of contexts
including protests, leafleting, state-sponsored groups, and the particularly vexing problem of signs.
The possibility of government speaking rather than regulating operates as an “escape clause” to these
doctrines.
Consider when the Court applies — or rejects — these doctrines in favor of an analysis under
content-restrictions or even viewpoint-restrictions.

I. Historical Perspectives on Public Assembly and
Public Forums
Note: The Assembly Clause

Recall that the text of the First Amendment provides “Congress shall make no law . . . . abridging . . .
the right of the people peaceably to assemble.”
The Assembly Clause has not been given a robust role in First Amendment doctrine. Perhaps this is
unsurprising given the history of its inclusion in the text. The following is adapted from RUTHANN
ROBSON, DRESSING CONSTITUTIONALLY (2013):
When the members of the First Congress debated including the right to assemble in what is now the
First Amendment, Representative Theodore Sedgwick of Massachusetts argued that the assembly
clause was unnecessary: it was encompassed by the speech clause; it was self-evident; it would never
be called into question; and it was derogatory to the dignity of the House of Representatives to descend
into such minutiae. In support of all his arguments, Sedgwick contended the amendment might just as
well declare “a man should have a right to wear his hat if he pleased.”
It proved not to be the best analogy. As Representative John Page noted, just as “a man has been
obliged to pull off his hat when he appeared before the face of authority,” so too have people “been
prevented from assembling together on their lawful occasions.” This reference had tremendous
resonance for the members of the First Congress who would have understood it as alluding to William
Penn’s famous trial. A decade before Penn would receive the large land grant in America that would
become the state of Pennsylvania, Penn and his co-defendant William Mead were prosecuted in
England for “tumultuous assembly” and disturbing the peace. They had preached outside a Quaker
meeting house that had recently been closed by Restoration regulations limiting religious dissent from
the recently re-established Church of England. Originally a pamphlet and purported trial transcript,
The Peoples Ancient and Just Liberties Asserted, In the Tryal of William Penn and William Mead at the Old
Bailey, 22 Charles II 1670, written by themselves, became an essential American document. It portrayed
Penn and Mead as heroes seeking their rights as Englishmen under the Magna Carta but stymied by
arbitrary officials in the King’s court.
Their hats were central to this portrait. As Quakers, Penn and Mead denied so-called “hat honor,” the
male practice of doffing one’s cap to a superior including removing one’s hat in court. The refusal of hat
honor, intended to challenge hierarchy, had become a well-known characteristic of the Quakers; a fair
number of Quakers had been beaten, jailed, whipped, or fined because of their practice by the time of
the Penn and Mead trial. Thus, this colloquy was not surprising:
RECORDER. Do you know where you are?
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PENN. Yes.
RECORDER. Do you know it is the King's Court?
PENN. I know it to be a Court, and I suppose it to be the King's Court.
RECORDER. Do you not know there is respect due to the Court?
PENN. Yes.
RECORDER. Why do you not pay it then?
PENN. I do so.
RECORDER. Why do you not put off your hat then?
PENN. Because I do not believe that to be any respect.
RECORDER. Well, the Court sets forty marks a piece upon your heads as a fine for your
contempt of the Court.
However, shortly before this interchange, Penn and Mead had been waiting, hatless, for their case to be
called. When an official noticed their hats were off, he ordered an officer to “put on their hats again.”
Seemingly, this command was merely for the purpose of immediately issuing the order to Penn to
remove his hat, an order the court would have known as problematic for the Quaker William Penn.
Immediately after the Recorder’s fine, Penn and Mead both spoke:
PENN. I desire it might be observed, that we came into the Court with our hats off (that is,
taken off) and if they have been put on since, it was by order from the Bench, and therefore
not we but the Bench should be fined.
MEAD. I have a question to ask the Recorder. Am I fined also?
RECORDER. Yes.
MEAD. I desire the jury and all people to take notice of this injustice of the recorder, who
spake not to me to pull off my hat, and yet hath he put a fine upon my head.

The court’s actions regarding the hats - - - provocative, arbitrary, and lacking the essentials of
fairness - - - set the scene for the remaining injustices of the trial, the eventual jury acquittal, the
prosecution of the jurors for that acquittal, and the imprisonment of Penn and Mead for contempt for
failure to remove their hats.
Thus, Representative Sedgwick’s comparison of the right to wear or not wear a hat and the right to
assembly as equally trivial rights was not likely to be accepted by those familiar with the Penn and
Mead trial. Sedgwick’s motion to strike “assembly” from the text of the First Amendment failed by a
large margin. But perhaps Sedgwick was correct. Recent constitutional doctrine tends to support the
argument that assembly is mere surplusage and the right is encompassed by freedom of speech,
although there is an argument that the Assembly Clause should be more relevant. See John D. Inazu,
The Forgotten Freedom of Assembly, 84 TULANE LAW REVIEW 565 (2010).

Davis v. Commonwealth of Massachusetts
167 U.S. 43 (1897)
WHITE [EDWARD DOUGLAS], J., DELIVERED THE OPINION FOR A UNANIMOUS COURT.
[Revised Ordinances of the City of Boston (1893), Section 66 provided:
Sec. 66. No person shall, in or upon any of the public grounds, make any public address, discharge any
cannon or firearm, expose for sale any goods, wares or merchandise, erect or maintain any booth,
stand, tent or apparatus for the purposes of public amusement or show, except in accordance with a
permit from the mayor.

The Court held “A city ordinance providing that no person shall make any public address in any of the
public grounds of the city, ‘except in accordance with a permit from the mayor,’ does not violate the
fourteenth amendment to the constitution of the United States.”]
It is therefore conclusively determined there was no right in the plaintiff in error to use the common
except in such mode and subject to such regulations as the legislature, in its wisdom may have
deemed proper to prescribe. The fourteenth amendment to the constitution of the United States does
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not destroy the power of the states to enact police regulations as to the subjects within their control
and does not have the effect of creating a particular and personal right in the citizen to use public
property in defiance of the constitution and laws of the state.
The assertion that, although it be conceded that the power existed in the state or municipality to
absolutely control the use of the common, the particular ordinance in question is nevertheless void,
because arbitrary and unreasonable, in that it vests in the mayor the power to determine when he
will grant a permit, in truth, while admitting on the one hand the power to control, on the other
denies its existence. The right to absolutely exclude all right to use necessarily includes the authority
to determine under what circumstances such use may be availed of, as the greater power contains
the lesser. The finding of the court of last resort of the state of Massachusetts, being that no particular
right was possessed by the plaintiff in error to the use of the common, is in reason, therefore,
conclusive of the controversy which the record presents, entirely aside from the fact that the power
conferred upon the chief executive officer of the city of Boston by the ordinance in question may be
fairly claimed to be a mere administrative function vested in the mayor in order to effectuate the
purpose for which the common was maintained and by which its use was regulated. The plaintiff in
error cannot avail himself of the right granted by the state, and yet obtain exemption from the lawful
regulations to which this right on his part was subjected by law.

Hague v. Committee for Industrial Organization [CIO]
307 U.S. 496 (1939)
ROBERTS, J., DELIVERED THE OPINION IN WHICH BLACK, J., CONCURS. STONE, J., ISSUED AN OPINION IN WHICH REED, J.,
CONCURS. HUGHES, C.J., ISSUED A CONCURRING OPINION. MCREYNOLDS, J., AND BUTLER, J., ISSUED DISSENTING
OPINIONS. FRANKFURTER, J., AND DOUGLAS, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE.
ROBERTS, J.:
We granted certiorari as the case presents important questions in respect of the asserted privilege
and immunity of citizens of the United States to advocate action pursuant to a federal statute, by
distribution of printed matter and oral discussion in peaceable assembly; and the jurisdiction of
federal courts of suits to restrain the abridgment of such privilege and immunity. The respondents
individual citizens, unincorporated labor organizations composed of such citizens and a membership
corporation, brought suit in the United States District Court against the petitioners, the Mayor, the
Director of Public Safety, and the Chief of Police of Jersey City, New Jersey, and the Board of
Commissioners, the governing body of the city.
The bill alleges that acting under a city ordinance forbidding the leasing of any hall, without a permit
from the Chief of Police, for a public meeting at which a speaker shall advocate obstruction of the
Government of the United States or a state, or a change of government by other than lawful means,
the petitioners, and their subordinates, have denied respondents the right to hold lawful meetings in
Jersey City on the ground that they are Communists or Communist organizations; that pursuant to an
unlawful plan, the petitioners have caused the eviction from the municipality of persons they
considered undesirable because of their labor organization activities, and have announced that they
will continue so to do. It further alleges that acting under an ordinance which forbids any person to
'distribute or cause to be distributed or strewn about any street or public place any newspapers,
paper, periodical, book magazine, circular, card or pamphlet', the petitioners have discriminated
against the respondents by prohibiting and interfering with distribution of leaflets and pamphlets by
the respondents while permitting others to distribute similar printed matter; that pursuant to a plan
and conspiracy to deny the respondents their Constitutional rights as citizens of the United States,
the petitioners have caused respondents, and those acting with them, to be arrested for distributing
printed matter in the streets, and have caused them, and their associates, to be carried beyond the
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limits of the city or to remote places therein, and have compelled them to board ferry boats destined
for New York; have, with violence and force, interfered with the distribution of pamphlets discussing
the rights of citizens under the National Labor Relations Act, 29 U.S.C. 151 et seq.; have unlawfully
searched persons coming into the city and seized printed matter in their possession; have arrested
and prosecuted respondents, and those acting with them, for attempting to distribute such printed
matter; and have threatened that if respondents attempt to hold public meetings in the city to discuss
rights afforded by the National Labor Relations Act, they would be arrested; and unless restrained,
the petitioners will continue in their unlawful conduct. The bill further alleges that respondents have
repeatedly applied for permits to hold public meetings in the city for the stated purpose, as required
by ordinance,1 although they do not admit the validity of the ordinance; but in execution of a
common plan and purpose, the petitioners have consistently refused to issue any permits for
meetings to be held by, or sponsored by, respondents, and have thus prevented the holding of such
meetings; that the respondents did not, and do not, purpose to advocate the destruction or
overthrow of the government of the United States, or that of New Jersey, but that their sole purpose
is to explain to workingmen the purposes of the National Labor Relations act, the benefits to be
derived from it, and the aid which the Committee for Industrial Organization would furnish
workingmen to that end; and all the activities in which they seek to engage in Jersey City were, and
are, to be performed peacefully, without intimidation, fraud, violence, or other unlawful methods.
The bill charges that the suit is to redress 'the deprivation, under color of state law, statute and
ordinance, of rights privileges and immunities secured by the Constitution of the United States and of
rights secured by laws of the United States providing for equal rights of citizens of the United
States ....' It charges that the petitioners' conduct 'is in violation of their (respondents) rights and
privileges as guaranteed by the Constitution of the United States.' It alleges that the petitioners'
conduct has been 'in pursuance of an unlawful conspiracy ... to injure oppress threaten and
intimidate citizens of the United States, including the individual plaintiffs herein, ... in the free
exercise and enjoyment of the rights and privileges secured to them by the Constitution and laws of
the United States. ...'
The bill charges that the ordinances are unconstitutional and void, or are being enforced against
respondents in an unconstitutional and discriminatory way; and that the petitioners, as officials of
the city, purporting to act under the ordinances, have deprived respondents of the privileges of free
speech and peaceable assembly secured to them, as citizens of the United States, by the Fourteenth
Amendment * * *
The question now presented is whether freedom to disseminate information concerning the
provisions of the National Labor Relations Act, to assemble peaceably for discussion of the Act, and of
the opportunities and advantages offered by it, is a privilege or immunity of a citizen of the United
States secured against State abridgment by Section 1 of the Fourteenth Amendment * * * This is the
narrow question presented by the record, and we confine our decision to it, without consideration of
broader issues which the parties urge. The bill, the answer and the findings fully present the question.
The bill alleges, and the findings sustain the allegation, that the respondents had no other purpose
than to inform citizens of Jersey City by speech, and by the written word, respecting matters growing
out of national legislation, the constitutionality of which this court has sustained.
Although it has been held that the Fourteenth Amendment created no rights in citizens of the United
States, but merely secured existing rights against state abridgment, it is clear that the right peaceably
to assemble and to discuss these topics, and to communicate respecting them, whether orally or in
writing, is a privilege inherent in citizenship of the United States which the Amendment protects. * * *
We have no occasion to determine whether, on the facts disclosed, the Davis Case [Davis v.
Commonwealth of Massachusetts (1897)] was rightly decided, but we cannot agree that it rules the
instant case. Wherever the title of streets and parks may rest, they have immemorially been held in
trust for the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions. Such use of the streets
and public places has, from ancient times, been a part of the privileges, immunities, rights, and
liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for
communication of views on national questions may be regulated in the interest of all; it is not
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absolute, but relative, and must be exercised in subordination to the general comfort and
convenience, and in consonance with peace and good order; but it must not, in the guise of regulation,
be abridged or denied.
We think the court below was right in holding the ordinance * * * void upon its face. It does not make
comfort or convenience in the use of streets or parks the standard of official action. It enables the
Director of Safety to refuse a permit on his mere opinion that such refusal will prevent ‘riots,
disturbances or disorderly assemblage.’ It can thus, as the record discloses, be made the instrument
of arbitrary suppression of free expression of views on national affairs for the prohibition of all
speaking will undoubtedly ‘prevent’ such eventualities. But uncontrolled official suppression of the
privilege cannot be made a substitute for the duty to maintain order in connection with the exercise
of the right.
MR. JUSTICE STONE.
I do not doubt that the decree below, modified as has been proposed, is rightly affirmed, but I am
unable to follow the path by which some of my brethren have attained that end, and I think the
matter is of sufficient importance to merit discussion in some detail.
It has been explicitly and repeatedly affirmed by this Court, without a dissenting voice, that freedom
of speech and of assembly for any lawful purpose are rights of personal liberty secured to all persons,
without regard to citizenship, by the due process clause of the Fourteenth Amendment, Gitlow v. New
York (1925); Whitney v. California (1927) * * * . It has never been held that either is a privilege or
immunity peculiar to citizenship of the United States, to which alone the privileges and immunities
clause refers, and neither can be brought within the protection of that clause without enlarging the
category of privileges and immunities of United States citizenship as it has hitherto been defined. * * *
MR. JUSTICE BUTLER, DISSENTING.
I am of opinion that the challenged ordinance is not void on its face; that in principle it does not differ
from the Boston ordinance, as applied and upheld by this Court, speaking through Mr. Justice White,
in Davis v. Massachusetts, affirming the Supreme Judicial Court of Massachusetts, speaking through
Mr. Justice Holmes, in Commonwealth v. Davis, and that the decree of the Circuit Court of Appeals
should be reversed.

Notes

1.
Much of the disagreement in Hague v. CIO concerns jurisdictional issues that intersect with
whether the First Amendment is applicable to the states through the Fourteenth Amendment’s
Privileges or Immunities Clause (as in Justice Roberts’s plurality opinion) or the Due Process Clause
(as in Justice Stone’s opinion). It is Justice Stone’s opinion, citing cases such as Gitlow and Whitney
that had previously found the First Amendment applicable to the states through the Due Process
Clause, that remains consistent with current doctrine.
Writing for the Court in an opinion soon after Hague, Justice Roberts noted that
This court has characterized the freedom of speech and that of the press as fundamental personal
rights and liberties. The phrase is not an empty one and was not lightly used. It reflects the belief of the
framers of the Constitution that exercise of the rights lies at the foundation of free government by free
men. It stresses, as do many opinions of this court, the importance of preventing the restriction of
enjoyment of these liberties.

Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 161 (1939). The Court held the four
ordinances before it prohibiting or restricting handbilling or leaftletting unconstitutional. In a
footnote, Justice Roberts cited both Gitlow and Whitney and stated:

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There is no averment or proof in any of the cases that the appellants or petitioners are citizens of the
United States, and in the Young case, No. 13, the applicable provisions of the municipal code were
challenged on the sole ground that they infringed the due process clause of the Fourteenth Amendment.

Id. at 160n.8
2.
Justice Roberts’s opinion in Hague v. CIO is generally read as establishing public forum
doctrine. Its most famous passage regards “streets and parks” as having “immemorially been held in
trust for the use of the public and, time out of mind, have been used for purposes of assembly,
communicating thoughts between citizens, and discussing public questions.”
3.
As Mayor of Jersey City, New Jersey, Frank Hague was opposed to the labor organizing
efforts of the CIO at a time of great social unrest. For a discussion of Hague v. CIO as an important
labor case and Mayor Hague’s interesting relations with labor and unions, see Kenneth M. Casebeer,
"Public . . . Since Time Immemorial": The Labor History of Hague v. CIO, 66 RUTGERS L. REV. 147 (2013).
4.
What might a robust interpretation of the Assembly Clause add to First Amendment
doctrine? Should “assembly” and “leafleting” be distinguished as First Amendment activities?

II.

Public and Other Forums
Southeastern Promotions, Ltd. v. Conrad
420 U.S. 546 (1975)

BLACKMUN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BRENNAN, STEWART, MARSHALL, AND POWELL, JJ.,
JOINED. DOUGLAS, J., FILED AN OPINION DISSENTING IN PART AND CONCURRING IN THE RESULT IN PART. WHITE, J.,
FILED A DISSENTING OPINION, IN WHICH BURGER, C. J., JOINED. REHNQUIST, J., FILED A DISSENTING OPINION.
JUSTICE BLACKMUN DELIVERED THE OPINION OF THE COURT.
The issue in this case is whether First Amendment rights were abridged when respondents denied
petitioner the use of a municipal facility in Chattanooga, Tenn., for the showing of the controversial
rock musical "Hair." It is established, of course, that the Fourteenth Amendment has made applicable
to the States the First Amendment's guarantee of free speech.
I
Petitioner, Southeastern Promotions, Ltd., is a New York corporation engaged in the business of
promoting and presenting theatrical productions for profit. On October 29, 1971, it applied for the
use of the Tivoli, a privately owned Chattanooga theater under long-term lease to the city, to present
"Hair" there for six days beginning November 23. This was to be a road company showing of the
musical that had played for three years on Broadway, and had appeared in over 140 cities in the
United States.
Respondents are the directors of the Chattanooga Memorial Auditorium, a municipal theater. Shortly
after receiving Southeastern's application, the directors met, and, after a brief discussion, voted to
reject it. None of them had seen the play or read the script, but they understood from outside reports
that the musical, as produced elsewhere, involved nudity and obscenity on stage. Although no
conflicting engagement was scheduled for the Tivoli, respondents determined that the production
would not be "in the best interest of the community." Southeastern was so notified but no written
statement of reasons was provided.
On November 1 petitioner, alleging that respondents' action abridged its First Amendment rights,
sought a preliminary injunction from the United States District Court for the Eastern District of
Tennessee. Respondents did not then file an answer to the complaint. A hearing was held on
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November 4. The District Court took evidence as to the play's content, and respondent Conrad gave
the following account of the board's decision:
"We use the general terminology in turning down the request for its use that we felt it was not in the
best interest of the community and I can't speak beyond that. That was the board's determination.
"Now, I would have to speak for myself, the policy to which I would refer, as I mentioned, basically
indicates that we will, as a board, allow those productions which are clean and healthful and culturally
uplifting, or words to that effect. They are quoted in the original dedication booklet of the Memorial
Auditorium."

The court denied preliminary relief, concluding that petitioner had failed to show that it would be
irreparably harmed pending a final judgment since scheduling was "purely a matter of financial loss
or gain" and was compensable.
Southeastern some weeks later pressed for a permanent injunction permitting it to use the larger
auditorium, rather than the Tivoli, on Sunday, April 9, 1972. The District Court held three days of
hearings beginning April 3. On the issue of obscenity vel non, presented to an advisory jury, it took
evidence consisting of the full script and libretto, with production notes and stage instructions, a
recording of the musical numbers, a souvenir program, and the testimony of seven witnesses who
had seen the production elsewhere. The jury returned a verdict that "Hair" was obscene. The District
Court agreed. It concluded that conduct in the production - group nudity and simulated sex - would
violate city ordinances and state statutes 5 making public nudity and obscene acts criminal offenses.
This criminal conduct, the court reasoned, was neither speech nor symbolic speech, and was to be
viewed separately from the musical's speech elements. Being pure conduct, comparable to rape or
murder, it was not entitled to First Amendment protection. Accordingly, the court denied the
injunction.
On appeal, the United States Court of Appeals for the Sixth Circuit, by a divided vote, affirmed. The
majority relied primarily on the lower court's reasoning. Neither the judges of the Court of Appeals
nor the District Court saw the musical performed. Because of the First Amendment overtones, we
granted certiorari.
Petitioner urges reversal on the grounds that (1) respondents' action constituted an unlawful prior
restraint, (2) the courts below applied an incorrect standard for the determination of the issue of
obscenity vel non, and (3) the record does not support a finding that "Hair" is obscene. We do not
reach the latter two contentions, for we agree with the first. We hold that respondents' rejection of
petitioner's application to use this public forum accomplished a prior restraint under a system
lacking in constitutionally required minimal procedural safeguards. Accordingly, on this narrow
ground, we reverse.
II
Respondents' action here is indistinguishable in its censoring effect from the official actions
consistently identified as prior restraints in a long line of this Court's decisions. In these cases, the
plaintiffs asked the courts to provide relief where public officials had forbidden the plaintiffs the use
of public places to say what they wanted to say. The restraints took a variety of forms, with officials
exercising control over different kinds of public places under the authority of particular statutes. All,
however, had this in common: they gave public officials the power to deny use of a forum in advance
of actual expression.
Invariably, the Court has felt obliged to condemn systems in which the exercise of such authority was
not bounded by precise and clear standards. The reasoning has been, simply, that the danger of
censorship and of abridgment of our precious First Amendment freedoms is too great where officials
have unbridled discretion over a forum's use. Our distaste for censorship - reflecting the natural
distaste of a free people - is deep-written in our law.
* * * In Hague v. CIO (1939) a Jersey City ordinance that forbade public assembly in the streets or
parks without a permit from the local director of safety, who was empowered to refuse the permit
upon his opinion that he would thereby prevent "`riots, disturbances or disorderly assemblage,'" was
held void on its face. (opinion of Roberts, J.).
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In Cantwell v. Connecticut (1940) a unanimous Court held invalid an act which proscribed the
solicitation of money or any valuable thing for "any alleged religious, charitable or philanthropic
cause" unless that cause was approved by the secretary of the public welfare council. * * *
The elements of prior restraint identified in Cantwell and other cases were clearly present in the
system by which the Chattanooga board regulated the use of its theaters. One seeking to use a theater
was required to apply to the board. The board was empowered to determine whether the applicant
should be granted permission - in effect, a license or permit - on the basis of its review of the content
of the proposed production. Approval of the application depended upon the board's affirmative
action. Approval was not a matter of routine; instead, it involved the "appraisal of facts, the exercise
of judgment, and the formation of an opinion" by the board.
The board's judgment effectively kept the musical off stage. Respondents did not permit the show to
go on and rely on law enforcement authorities to prosecute for anything illegal that occurred. Rather,
they denied the application in anticipation that the production would violate the law. See New York
Times Co. v. United States (1971) (White, J., concurring).
Respondents' action was no less a prior restraint because the public facilities under their control
happened to be municipal theaters. The Memorial Auditorium and the Tivoli were public forums
designed for and dedicated to expressive activities. There was no question as to the usefulness of
either facility for petitioner's production. There was no contention by the board that these facilities
could not accommodate a production of this size. None of the circumstances qualifying as an
established exception to the doctrine of prior restraint was present. Petitioner was not seeking to use
a facility primarily serving a competing use. Nor was rejection of the application based on any
regulation of time, place, or manner related to the nature of the facility or applications from other
users. No rights of individuals in surrounding areas were violated by noise or any other aspect of the
production. There was no captive audience.
Whether petitioner might have used some other, privately owned, theater in the city for the
production is of no consequence. There is reason to doubt on this record whether any other facility
would have served as well as these, since none apparently had the seating capacity, acoustical
features, stage equipment, and electrical service that the show required. Even if a privately owned
forum had been available, that fact alone would not justify an otherwise impermissible prior
restraint. * * *
Only if we were to conclude that live drama is unprotected by the First Amendment - or subject to a
totally different standard from that applied to other forms of expression - could we possibly find no
prior restraint here. Each medium of expression, of course, must be assessed for First Amendment
purposes by standards suited to it, for each may present its own problems. By its nature, theater
usually is the acting out - or singing out - of the written word, and frequently mixes speech with live
action or conduct. But that is no reason to hold theater subject to a drastically different standard. * * *
III
Labeling respondents' action a prior restraint does not end the inquiry. Prior restraints are not
unconstitutional per se. See Near v. Minnesota ex rel. Olson, (1931). * * *
Any system of prior restraint, however, "comes to this Court bearing a heavy presumption against its
constitutional validity." New York Times Co. v. United States; Near v. Minnesota ex rel. Olson. The
presumption against prior restraints is heavier - and the degree of protection broader - than that
against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply
etched in our law: a free society prefers to punish the few who abuse rights of speech after they
break the law than to throttle them and all others beforehand. It is always difficult to know in
advance what an individual will say, and the line between legitimate and illegitimate speech is often
so finely drawn that the risks of freewheeling censorship are formidable.
In order to be held lawful, respondents' action, first, must fit within one of the narrowly defined
exceptions to the prohibition against prior restraints, and, second, must have been accomplished
with procedural safeguards that reduce the danger of suppressing constitutionally protected speech.
We do not decide whether the performance of "Hair" fits within such an exception or whether, as a
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substantive matter, the board's standard for resolving that question was correct, for we conclude
that the standard, whatever it may have been, was not implemented by the board under a system
with appropriate and necessary procedural safeguards.
* * * [A] system of prior restraint runs afoul of the First Amendment if it lacks certain safeguards:
First, the burden of instituting judicial proceedings, and of proving that the material is unprotected,
must rest on the censor. Second, any restraint prior to judicial review can be imposed only for a
specified brief period and only for the purpose of preserving the status quo. Third, a prompt final
judicial determination must be assured.
* * * If a scheme that restricts access to the mails must furnish the procedural safeguards set forth in
Freedman v. Maryland (1965), no less must be expected of a system that regulates use of a public
forum. Respondents here had the same powers of licensing and censorship exercised by postal
officials in Blount v. Rizzi (1971) and by boards and officials in other cases.
The theory underlying the requirement of safeguards is applicable here with equal if not greater
force. An administrative board assigned to screening stage productions - and keeping off stage
anything not deemed culturally uplifting or healthful may well be less responsive than a court, an
independent branch of government, to constitutionally protected interests in free expression. And if
judicial review is made unduly onerous, by reason of delay or otherwise, the board's determination
in practice may be final.
* * * The perils of prior restraint are well illustrated by this case, where neither the Board nor the
lower courts could have known precisely the extent of nudity or simulated sex in the musical, or even
that either would appear, before the play was actually performed.
Procedural safeguards were lacking here in several respects. The board's system did not provide a
procedure for prompt judicial review. Although the District Court commendably held a hearing on
petitioner's motion for a preliminary injunction within a few days of the board's decision, it did not
review the merits of the decision at that time. The question at the hearing was whether petitioner
should receive preliminary relief. i.e., whether there was likelihood of success on the merits and
whether petitioner would suffer irreparable injury pending full review. Effective review on the
merits was not obtained until more than five months later. Throughout, it was petitioner, not the
board, that bore the burden of obtaining judicial review. It was petitioner that had the burden of
persuasion at the preliminary hearing if not at the later stages of the litigation. Respondents did not
file a formal answer to the complaint for five months after petitioner sought review. During the time
prior to judicial determination, the restraint altered the status quo. Petitioner was forced to forgo the
initial dates planned for the engagement and to seek to schedule the performance at a later date. The
delay and uncertainty inevitably discouraged use of the forum.
The procedural shortcomings that form the basis for our decision are unrelated to the standard that
the board applied. Whatever the reasons may have been for the board's exclusion of the musical, it
could not escape the obligation to afford appropriate procedural safeguards. We need not decide
whether the standard of obscenity applied by respondents or the courts below was sufficiently
precise or substantively correct, or whether the production is in fact obscene. The standard,
whatever it may be, must be implemented under a system that assures prompt judicial review with a
minimal restriction of First Amendment rights necessary under the circumstances.
Reversed.
JUSTICE DOUGLAS, DISSENTING IN PART AND CONCURRING IN THE RESULT IN PART.
While I agree with the Court's conclusion that the actions of the respondents constituted an
impermissible prior restraint upon the performance of petitioner's rock musical, I am compelled to
write separately in order to emphasize my view that the injuries inflicted upon petitioner's First
Amendment rights cannot be treated adequately or averted in the future by the simple application of
a few procedural band-aids. The critical flaw in this case lies, not in the absence of procedural

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safeguards, but rather in the very nature of the content screening in which respondents have
engaged.
* * * A municipal theater is no less a forum for the expression of ideas than is a public park, or a
sidewalk; the forms of expression adopted in such a forum may be more expensive and more
structured than those typically seen in our parks and streets, but they are surely no less entitled to
the shelter of the First Amendment. As soon as municipal officials are permitted to pick and choose,
as they are in all existing socialist regimes, between those productions which are "clean and healthful
and culturally uplifting" in content and those which are not, the path is cleared for a regime of
censorship under which full voice can be given only to those views which meet with the approval of
the powers that be.
There was much testimony in the District Court concerning the pungent social and political
commentary which the musical "Hair" levels against various sacred cows of our society: the Vietnam
war, the draft, and the puritanical conventions of the Establishment. This commentary is
undoubtedly offensive to some, but its contribution to social consciousness and intellectual ferment
is a positive one. In this respect, the musical's often ribald humor and trenchant social satire may
someday merit comparison to the most highly regarded works of Aristophanes, a fellow debunker of
established tastes and received wisdom, yet one whose offerings would doubtless meet with a
similarly cold reception at the hands of Establishment censors. No matter how many procedural
safeguards may be imposed, any system which permits governmental officials to inhibit or control
the flow of disturbing and unwelcome ideas to the public threatens serious diminution of the breadth
and richness of our cultural offerings.
JUSTICE WHITE, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING.
* * * The Court asserts that "Hair" contains a nude scene and that this is "the most controversial
portion" of the musical. This almost completely ignores the District Court's description of the play as
involving not only nudity but repeated "simulated acts of anal intercourse, frontal intercourse,
heterosexual intercourse, homosexual intercourse, and group intercourse . . . ."
Given this description of "Hair," the First Amendment in my view does not compel municipal
authorities to permit production of the play in municipal facilities. Whether or not a production as
described by the District Court is obscene and may be forbidden to adult audiences, it is apparent to
me that the State of Tennessee could constitutionally forbid exhibition of the musical to children, and
that Chattanooga may reserve its auditorium for productions suitable for exhibition to all the citizens
of the city, adults and children alike. "Hair" does not qualify in this respect, and without holding
otherwise, it is improvident for the Court to mandate the showing of "Hair" in the Chattanooga
auditorium.
JUSTICE REHNQUIST, DISSENTING.
The Court treats this case as if it were on all fours with Freedman v. Maryland (1965), which it is not.
Freedman dealt with the efforts of the State of Maryland to prohibit the petitioner in that case from
showing a film "at his Baltimore theater.” Petitioner here did not seek to show the musical
production "Hair" at its Chattanooga theater, but rather at a Chattanooga theater owned by the city of
Chattanooga.
The Court glosses over this distinction by treating a community-owned theater as if it were the same
as a city park or city street, which it is not. The Court's decisions have recognized that city streets and
parks are traditionally open to the public, and that permits or licenses to use them are not ordinarily
required. "[O]ne who is rightfully on a street which the state has left open to the public carries with
him there as elsewhere the constitutional right to express his views in an orderly fashion. This right
extends to the communication of ideas by handbills and literature as well as by the spoken word."
The Court has therefore held that where municipal authorities seek to exact a license or permit for
those who wish to use parks or streets for the purpose of exercising their right of free speech, the
standards governing the licensing authority must be objective, definite, and nondiscriminatory. But
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until this case the Court has not equated a public auditorium, which must of necessity schedule
performances by a process of inclusion and exclusion, with public streets and parks.
* * * The Court * * * [insists] that the municipal auditorium and the theater were "public forums
designed for and dedicated to expressive activities," and that the rejection of petitioner's application
was not based on "any regulation of time, place, or manner related to the nature of the facility or
applications from other users." But the apparent effect of the Court's decision is to tell the managers
of municipal auditoriums that they may exercise no selective role whatsoever in deciding what
performances may be booked. The auditoriums in question here have historically been devoted to
"clean, healthful entertainment"; they have accepted only productions not inappropriate for viewing
by children so that the facilities might serve as a place for entertaining the whole family. Viewed
apart from any constitutional limitations, such a policy would undoubtedly rule out much
worthwhile adult entertainment. But if it is the desire of the citizens of Chattanooga, who presumably
have paid for and own the facilities, that the attractions to be shown there should not be of the kind
which would offend any substantial number of potential theatergoers, I do not think the policy can be
described as arbitrary or unreasonable. Whether or not the production of the version of "Hair" here
under consideration is obscene, the findings of fact made by the District Court and affirmed on appeal
do indicate that it is not entertainment designed for the whole family.
If every municipal theater or auditorium which is "designed for and dedicated to expressive
activities" becomes subject to the rule enunciated by the Court in this case, consequences unforeseen
and perhaps undesired by the Court may well ensue. May an opera house limit its productions to
operas, or must it also show rock musicals? May a municipal theater devote an entire season to
Shakespeare, or is it required to book any potential producer on a first come, first served basis?
These questions are real ones in light of the Court's opinion, which by its terms seems to give no
constitutionally permissible role in the way of selection to the municipal authorities.
But these substantive aspects of the Court's opinion are no more troubling than the farrago of
procedural requirements with which it has saddled municipal authorities. * * *

Perry Education Assn. v. Perry Local Educators' Assn.
460 U.S. 37 (1983)
WHITE, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C. J., AND BLACKMUN, REHNQUIST, AND
O'CONNOR, JJ., JOINED. BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH MARSHALL, POWELL, AND STEVENS, JJ.,
JOINED.
JUSTICE WHITE DELIVERED THE OPINION OF THE COURT.
Perry Education Association is the duly elected exclusive bargaining representative for the teachers
of the Metropolitan School District of Perry Township, Ind. A collective-bargaining agreement with
the Board of Education provided that Perry Education Association, but no other union, would have
access to the interschool mail system and teacher mail-boxes in the Perry Township schools. The
issue in this case is whether the denial of similar access to the Perry Local Educators' Association, a
rival teacher group, violates the First and Fourteenth Amendments.
I
The Metropolitan School District of Perry Township, Ind., operates a public school system of 13
separate schools. Each school building contains a set of mailboxes for the teachers. Interschool
delivery by school employees permits messages to be delivered rapidly to teachers in the District.
The primary function of this internal mail system is to transmit official messages among the teachers
and between the teachers and the school administration. In addition, teachers use the system to send

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personal messages, and individual school building principals have allowed delivery of messages from
various private organization.
Prior to 1977, both the Perry Education Association (PEA) and the Perry Local Educators' Association
(PLEA) represented teachers in the School District and apparently had equal access to the
interschool mail system. In 1977, PLEA challenged PEA's status as de facto bargaining representative
for the Perry Township teachers by filing an election petition with the Indiana Education
Employment Relations Board (Board). PEA won the election and was certified as the exclusive
representative, as provided by Indiana law.
The Board permits a school district to provide access to communication facilities to the union
selected for the discharge of the exclusive representative duties of representing the bargaining unit
and its individual members without having to provide equal access to rival unions. Following the
election, PEA and the School District negotiated a labor contract in which the School Board gave PEA
"access to teachers' mailboxes in which to insert material" and the right to use the interschool mail
delivery system to the extent that the School District incurred no extra expense by such use. The
labor agreement noted that these access rights were being accorded to PEA "acting as the
representative of the teachers" and went on to stipulate that these access rights shall not be granted
to any other "school employee organization" - a term of art defined by Indiana law to mean "any
organization which has school employees as members and one of whose primary purposes is
representing school employees in dealing with their school employer." The PEA contract with these
provisions was renewed in 1980 and is presently in force.
The exclusive-access policy applies only to use of the mail-boxes and school mail system. PLEA is not
prevented from using other school facilities to communicate with teachers. PLEA may post notices on
school bulletin boards; may hold meetings on school property after school hours; and may, with
approval of the building principals, make announcements on the public address system. Of course,
PLEA also may communicate with teachers by word of mouth, telephone, or the United States mail.
Moreover, under Indiana law, the preferential access of the bargaining agent may continue only while
its status as exclusive representative is insulated from challenge. While a representation contest is in
progress, unions must be afforded equal access to such communication facilities.
PLEA and two of its members filed this action under 42 U.S.C. §1983 against PEA and individual
members of the Perry Township School Board. Plaintiffs contended that PEA's preferential access to
the internal mail system violates the First Amendment and the Equal Protection Clause of the
Fourteenth Amendment. They sought injunctive and declaratory relief and damages. Upon crossmotions for summary judgment, the District Court entered judgment for the defendants.
The Court of Appeals for the Seventh Circuit reversed. The court held that once the School District
"opens its internal mail system to PEA but denies it to PLEA, it violates both the Equal Protection
Clause and the First Amendment." It acknowledged that PEA had "legal duties to the teachers that
PLEA does not have" but reasoned that "[w]ithout an independent reason why equal access for other
labor groups and individual teachers is undesirable, the special duties of the incumbent do not justify
opening the system to the incumbent alone."
PEA now seeks review of this judgment by way of appeal. We postponed consideration of our
jurisdiction to the hearing of the case on the merits.
II
[The Court discussed the jurisdictional issue]. Nevertheless, the decision below is subject to our
review by writ of certiorari. The constitutional issues presented are important and the decision
below conflicts with the judgment of other federal and state courts. Therefore, regarding PEA's
jurisdictional statement as a petition for a writ of certiorari, we grant certiorari.
III
The primary question presented is whether the First Amendment, applicable to the States by virtue
of the Fourteenth Amendment, is violated when a union that has been elected by public school
teachers as their exclusive bargaining representative is granted access to certain means of
communication, while such access is denied to a rival union. There is no question that constitutional
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interests are implicated by denying PLEA use of the interschool mail system. "It can hardly be argued
that either students or teachers shed their constitutional rights to freedom of speech or expression at
the schoolhouse gate." Tinker v. Des Moines School District (1969). The First Amendment's guarantee
of free speech applies to teacher's mailboxes as surely as it does elsewhere within the school, Tinker
and on sidewalks outside. But this is not to say that the First Amendment requires equivalent access
to all parts of a school building in which some form of communicative activity occurs. * * * The
existence of a right of access to public property and the standard by which limitations upon such a
right must be evaluated differ depending on the character of the property at issue.
A
In places which by long tradition or by government fiat have been devoted to assembly and debate,
the rights of the State to limit expressive activity are sharply circumscribed. At one end of the
spectrum are streets and parks which "have immemorially been held in trust for the use of the public
and, time out of mind, have been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions." Hague v. CIO (1939). In these quintessential public forums,
the government may not prohibit all communicative activity. For the State to enforce a content-based
exclusion it must show that its regulation is necessary to serve a compelling state interest and that it
is narrowly drawn to achieve that end. The State may also enforce 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.
A second category consists of public property which the State has opened for use by the public as a
place for expressive activity. The Constitution forbids a State to enforce certain exclusions from a
forum generally open to the public even if it was not required to create the forum in the first place.
Although a State is not required to indefinitely retain the open character of the facility, as long as it
does so it is bound by the same standards as apply in a traditional public forum. Reasonable time,
place, and manner regulations are permissible, and a content-based prohibition must be narrowly
drawn to effectuate a compelling state interest.
Public property which is not by tradition or designation a forum for public communication is
governed by different standards. We have recognized that the "First Amendment does not guarantee
access to property simply because it is owned or controlled by the government." In addition to time,
place, and manner regulations, the State may reserve the forum for its intended purposes,
communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to
suppress expression merely because public officials oppose the speaker's view. As we have stated on
several occasions, “[t]he State, no less than a private owner of property, has power to preserve the
property under its control for the use to which it is lawfully dedicated.”
The school mail facilities at issue here fall within this third category. The Court of Appeals recognized
that Perry School District's interschool mail system is not a traditional public forum: "We do not hold
that a school's internal mail system is a public forum in the sense that a school board may not close it
to all but official business if it chooses." On this point the parties agree. Nor do the parties dispute
that, as the District Court observed, the "normal and intended function [of the school mail facilities] is
to facilitate internal communication of school-related matters to the teachers." The internal mail
system, at least by policy, is not held open to the general public. It is instead PLEA's position that the
school mail facilities have become a "limited public forum" from which it may not be excluded
because of the periodic use of the system by private non-school-connected groups, and PLEA's own
unrestricted access to the system prior to PEA's certification as exclusive representative.
Neither of these arguments is persuasive. The use of the internal school mail by groups not affiliated
with the schools is no doubt a relevant consideration. If by policy or by practice the Perry School
District has opened its mail system for indiscriminate use by the general public, then PLEA could
justifiably argue a public forum has been created. This, however, is not the case. As the case comes
before us, there is no indication in the record that the school mailboxes and interschool delivery
system are open for use by the general public. Permission to use the system to communicate with
teachers must be secured from the individual building principal. There is no court finding or
evidence in the record which demonstrates that this permission has been granted as a matter of
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course to all who seek to distribute material. We can only conclude that the schools do allow some
outside organizations such as the YMCA, Cub Scouts, and other civic and church organizations to use
the facilities. This type of selective access does not transform government property into a public
forum. * * *
Moreover, even if we assume that by granting access to the Cub Scouts, YMCA's, and parochial
schools, the School District has created a "limited" public forum, the constitutional right of access
would in any event extend only to other entities of similar character. While the school mail facilities
thus might be a forum generally open for use by the Girl Scouts, the local boys' club, and other
organizations that engage in activities of interest and educational relevance to students, they would
not as a consequence be open to an organization such as PLEA, which is concerned with the terms
and conditions of teacher employment.
PLEA also points to its ability to use the school mailboxes and delivery system on an equal footing
with PEA prior to the collective-bargaining agreement signed in 1978. Its argument appears to be
that the access policy in effect at that time converted the school mail facilities into a limited public
forum generally open for use by employee organizations, and that once this occurred, exclusions of
employee organizations thereafter must be judged by the constitutional standard applicable to public
forums. The fallacy in the argument is that it is not the forum, but PLEA itself, which has changed.
Prior to 1977, there was no exclusive representative for the Perry School District teachers. PEA and
PLEA each represented its own members. Therefore the School District's policy of allowing both
organizations to use the school mail facilities simply reflected the fact that both unions represented
the teachers and had legitimate reasons for use of the system. PLEA's previous access was consistent
with the School District's preservation of the facilities for school-related business, and did not
constitute creation of a public forum in any broader sense.
Because the school mail system is not a public forum, the School District had no "constitutional
obligation per se to let any organization use the school mail boxes." In the Court of Appeals' view,
however, the access policy adopted by the Perry schools favors a particular viewpoint, that of PEA, on
labor relations, and consequently must be strictly scrutinized regardless of whether a public forum is
involved. There is, however, no indication that the School Board intended to discourage one
viewpoint and advance another. We believe it is more accurate to characterize the access policy as
based on the status of the respective unions rather than their views. Implicit in the concept of the
nonpublic forum is the right to make distinctions in access on the basis of subject matter and speaker
identity. These distinctions may be impermissible in a public forum but are inherent and inescapable
in the process of limiting a nonpublic forum to activities compatible with the intended purpose of the
property. The touchstone for evaluating these distinctions is whether they are reasonable in light of
the purpose which the forum at issue serves.
B
The differential access provided PEA and PLEA is reasonable because it is wholly consistent with the
District's legitimate interest in "preserv[ing] the property . . . for the use to which it is lawfully
dedicated." Use of school mail facilities enables PEA to perform effectively its obligations as exclusive
representative of all Perry Township teachers. Conversely, PLEA does not have any official
responsibility in connection with the School District and need not be entitled to the same rights of
access to school mailboxes. We observe that providing exclusive access to recognized bargaining
representatives is a permissible labor practice in the public sector. We have previously noted that the
"designation of a union as exclusive representative carries with it great responsibilities. The tasks of
negotiating and administering a collective-bargaining agreement and representing the interests of
employees in settling disputes and processing grievances are continuing and difficult ones." Abood v.
Detroit Bd. of Ed. (1977). Moreover, exclusion of the rival union may reasonably be considered a
means of insuring labor peace within the schools. The policy “serves to prevent the District's schools
from becoming a battlefield for inter-union squabbles.”
The Court of Appeals accorded little or no weight to PEA's special responsibilities. In its view these
responsibilities, while justifying PEA's access, did not justify denying equal access to PLEA. The Court
of Appeals would have been correct if a public forum were involved here. But the internal mail
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system is not a public forum. As we have already stressed, when government property is not
dedicated to open communication the government may - without further justification - restrict use to
those who participate in the forum's official business.
Finally, the reasonableness of the limitations on PLEA's access to the school mail system is also
supported by the substantial alternative channels that remain open for union-teacher
communication to take place. These means range from bulletin boards to meeting facilities to the
United States mail. During election periods, PLEA is assured of equal access to all modes of
communication. There is no showing here that PLEA's ability to communicate with teachers is
seriously impinged by the restricted access to the internal mail system. The variety and type of
alternative modes of access present here compare favorably with those in other nonpublic forum
cases where we have upheld restrictions on access.
IV
The Court of Appeals also held that the differential access provided the rival unions constituted
impermissible content discrimination in violation of the Equal Protection Clause of the Fourteenth
Amendment. We have rejected this contention when cast as a First Amendment argument, and it
fares no better in equal protection garb. * * *
V
The Court of Appeals invalidated the limited privileges PEA negotiated as the bargaining voice of the
Perry Township teachers by misapplying our cases that have dealt with the rights of free expression
on streets, parks, and other fora generally open for assembly and debate. Virtually every other court
to consider this type of exclusive-access policy has upheld it as constitutional, and today, so do we.
The judgment of the Court of Appeals is
Reversed.
JUSTICE BRENNAN, WITH WHOM JUSTICE MARSHALL, JUSTICE POWELL, AND JUSTICE STEVENS JOIN, DISSENTING.
The Court today holds that an incumbent teachers' union may negotiate a collective-bargaining
agreement with a school board that grants the incumbent access to teachers' mailboxes and to the
interschool mail system and denies such access to a rival union. Because the exclusive-access
provision in the collective-bargaining agreement amounts to viewpoint discrimination that infringes
the respondents' First Amendment rights and fails to advance any substantial state interest, I dissent.
The Court properly acknowledges that teachers have protected First Amendment rights within the
school context. See Tinker v. Des Moines School District (1969). In particular, we have held that
teachers may not be "compelled to relinquish the First Amendment rights they would otherwise
enjoy as citizens to comment on matters of public interest in connection with the operation of the
public schools in which they work." Pickering v. Board of Education (1968). * * *
From this point of departure the Court veers sharply off course. Based on a finding that the
interschool mail system is not a "public forum," the Court states that the respondents have no right of
access to the system and that the School Board is free "to make distinctions in access on the basis of
subject matter and speaker identity if the distinctions are "reasonable in light of the purpose which
the forum at issue serves." According to the Court, the petitioner's status as the exclusive bargaining
representative provides a reasonable basis for the exclusive-access policy.
The Court fundamentally misperceives the essence of the respondents' claims and misunderstands
the thrust of the Court of Appeals' well-reasoned opinion. This case does not involve an "absolute
access" claim. It involves an "equal access" claim. As such it does not turn on whether the internal
school mail system is a "public forum." In focusing on the public forum issue, the Court disregards the
First Amendment's central proscription against censorship, in the form of viewpoint discrimination,
in any forum, public or nonpublic.
* * * Once the government permits discussion of certain subject matter, it may not impose
restrictions that discriminate among viewpoints on those subjects whether a nonpublic forum is
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involved or not. * * * We have never held that government may allow discussion of a subject and then
discriminate among viewpoints on that particular topic, even if the government for certain reasons
may entirely exclude discussion of the subject from the forum. In this context, the greater power does
not include the lesser because for First Amendment purposes exercise of the lesser power is more
threatening to core values. Viewpoint discrimination is censorship in its purest form and government
regulation that discriminates among viewpoints threatens the continued vitality of "free speech."
Against this background, it is clear that the Court's approach to this case is flawed. By focusing on
whether the interschool mail system is a public forum, the Court disregards the independent First
Amendment protection afforded by the prohibition against viewpoint discrimination. This case does
not involve a claim of an absolute right of access to the forum to discuss any subject whatever. If it
did, public forum analysis might be relevant. This case involves a claim of equal access to discuss a
subject that the Board has approved for discussion in the forum. In essence, the respondents are not
asserting a right of access at all; they are asserting a right to be free from discrimination. The critical
inquiry, therefore, is whether the Board's grant of exclusive access to the petitioner amounts to
prohibited viewpoint discrimination.
* * * Addressing the question of viewpoint discrimination directly, free of the Court's irrelevant
public forum analysis, it is clear that the exclusive-access policy discriminates on the basis of
viewpoint. The Court of Appeals found that "[t]he access policy adopted by the Perry schools, in form
a speaker restriction, favors a particular viewpoint on labor relations in the Perry schools . . .: the
teachers inevitably will receive from [the petitioner] self-laudatory descriptions of its activities on
their behalf and will be denied the critical perspective offered by [the respondents]." This assessment
of the effect of the policy is eminently reasonable. Moreover, certain other factors strongly suggest
that the policy discriminates among viewpoints. * * *
* * * In this case the Board has infringed the respondents' First Amendment rights by granting
exclusive access to an effective channel of communication to the petitioner and denying such access
to the respondents. In view of the petitioner's failure to establish even a substantial state interest
that is advanced by the exclusive-access policy, the policy must be held to be constitutionally infirm.
The decision of the Court of Appeals should be affirmed.

Notes

1.
The Court in Perry identifies three types of public fora. Along with an additional category
that might be called a non-forum (“not a forum”), these are the fora in current First Amendment
doctrine.
A forum analysis involves two separate steps:
First, define the forum and then apply that definition to any set of facts.
Second, articulate the standard for that forum and apply that standard to the facts.
2.
The relationship of forum doctrine to other First Amendment doctrines is complex and often
highly contested in individual cases. The briefly excerpted but extensive dissenting opinion in Perry
joined by four dissenting Justices essentially argues that a forum analysis should be irrelevant.
3.
Reconsidering Conrad after Perry, is there an argument that the theater was not a (full)
public forum?

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Christian Legal Society Chapter of the University of
California, Hastings College of the Law v. Martinez
561 U.S. 661 (2010)
GINSBURG, J., DELIVERED THE OPINION OF THE COURT, IN WHICH STEVENS, KENNEDY, BREYER, AND SOTOMAYOR, JJ.,
JOINED. STEVENS, J., AND KENNEDY, J., FILED CONCURRING OPINIONS. ALITO, J., FILED A DISSENTING OPINION, IN
WHICH ROBERTS, C. J., AND SCALIA AND THOMAS, JJ., JOINED.
JUSTICE GINSBURG DELIVERED THE OPINION OF THE COURT.
In a series of decisions, this Court has emphasized that the First Amendment generally precludes
public universities from denying student organizations access to school-sponsored forums because
of the groups' viewpoints. This case concerns a novel question regarding student activities at public
universities: May a public law school condition its official recognition of a student group--and the
attendant use of school funds and facilities--on the organization's agreement to open eligibility for
membership and leadership to all students?
In the view of petitioner Christian Legal Society (CLS), an accept-all-comers policy impairs its First
Amendment rights to free speech, expressive association, and free exercise of religion by prompting
it, on pain of relinquishing the advantages of recognition, to accept members who do not share the
organization's core beliefs about religion and sexual orientation. From the perspective of respondent
Hastings College of the Law (Hastings or the Law School), CLS seeks special dispensation from an
across-the-board open-access requirement designed to further the reasonable educational purposes
underpinning the school's student-organization program.
In accord with the District Court and the Court of Appeals, we reject CLS's First Amendment
challenge. Compliance with Hastings' all-comers policy, we conclude, is a reasonable, viewpointneutral condition on access to the student-organization forum. In requiring CLS--in common with all
other student organizations--to choose between welcoming all students and forgoing the benefits of
official recognition, we hold, Hastings did not transgress constitutional limitations. CLS, it bears
emphasis, seeks not parity with other organizations, but a preferential exemption from Hastings'
policy. The First Amendment shields CLS against state prohibition of the organization's expressive
activity, however exclusionary that activity may be. But CLS enjoys no constitutional right to state
subvention of its selectivity.
I
Founded in 1878, Hastings was the first law school in the University of California public-school
system. Like many institutions of higher education, Hastings encourages students to form
extracurricular associations that "contribute to the Hastings community and experience." These
groups offer students "opportunities to pursue academic and social interests outside of the
classroom [to] further their education" and to help them "develo[p] leadership skills."
Through its "Registered Student Organization" (RSO) program, Hastings extends official recognition
to student groups. Several benefits attend this school-approved status. RSOs are eligible to seek
financial assistance from the Law School, which subsidizes their events using funds from a
mandatory student-activity fee imposed on all students. RSOs may also use Law-School channels to
communicate with students: They may place announcements in a weekly Office-of-Student-Services
newsletter, advertise events on designated bulletin boards, send e-mails using a Hastingsorganization address, and participate in an annual Student Organizations Fair designed to advance
recruitment efforts. In addition, RSOs may apply for permission to use the Law School's facilities for
meetings and office space. Finally, Hastings allows officially recognized groups to use its name and
logo.

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In exchange for these benefits, RSOs must abide by certain conditions. Only a "non-commercial
organization whose membership is limited to Hastings students may become [an RSO]." A
prospective RSO must submit its bylaws to Hastings for approval, and if it intends to use the Law
School's name or logo, it must sign a license agreement. Critical here, all RSOs must undertake to
comply with Hastings' "Policies and Regulations Applying to College Activities, Organizations and
Students."
The Law School's Policy on Nondiscrimination (Nondiscrimination Policy), which binds RSOs, states:
"[Hastings] is committed to a policy against legally impermissible, arbitrary or unreasonable
discriminatory practices. All groups, including administration, faculty, student governments,
[Hastings]-owned student residence facilities and programs sponsored by [Hastings], are governed by
this policy of nondiscrimination. [Hasting's] policy on nondiscrimination is to comply fully with
applicable law.
"[Hastings] shall not discriminate unlawfully on the basis of race, color, religion, national origin,
ancestry, disability, age, sex or sexual orientation. This nondiscrimination policy covers admission,
access and treatment in Hastings-sponsored programs and activities."

Hastings interprets the Nondiscrimination Policy, as it relates to the RSO program, to mandate
acceptance of all comers: School-approved groups must "allow any student to participate, become a
member, or seek leadership positions in the organization, regardless of [her] status or beliefs." Other
law schools have adopted similar all-comers policies. See, e.g., Georgetown University Law Center,
Office of Student Life: Student Organizations, available at http://www.law.georgetown.edu/
StudentLife/StudentOrgs/NewGroup.htm (Membership in registered groups must be "open to all
students."); Hofstra Law School Student Handbook 2009-2010, p. 49, available at http://
law.hofstra.edu/pdf/StudentLife/StudentAffairs/Handbook/
stuhb_handbook.pdf ("[Student]
organizations are open to all students."). From Hastings' adoption of its Nondiscrimination Policy in
1990 until the events stirring this litigation, "no student organization at Hastings ... ever sought an
exemption from the Policy."
In 2004, CLS became the first student group to do so. At the beginning of the academic year, the
leaders of a predecessor Christian organization--which had been an RSO at Hastings for a decade-formed CLS by affiliating with the national Christian Legal Society (CLS-National). CLS-National, an
association of Christian lawyers and law students, charters student chapters at law schools
throughout the country. CLS chapters must adopt bylaws that, inter alia, require members and
officers to sign a "Statement of Faith" and to conduct their lives in accord with prescribed principles.
Among those tenets is the belief that sexual activity should not occur outside of marriage between a
man and a woman; CLS thus interprets its bylaws to exclude from affiliation anyone who engages in
"unrepentant homosexual conduct." CLS also excludes students who hold religious convictions
different from those in the Statement of Faith.
On September 17, 2004, CLS submitted to Hastings an application for RSO status, accompanied by all
required documents, including the set of bylaws mandated by CLS-National. Several days later, the
Law School rejected the application; CLS's bylaws, Hastings explained, did not comply with the
Nondiscrimination Policy because CLS barred students based on religion and sexual orientation.
CLS formally requested an exemption from the Nondiscrimination Policy, but Hastings declined to
grant one. "[T]o be one of our student-recognized organizations," Hastings reiterated, "CLS must
open its membership to all students irrespective of their religious beliefs or sexual orientation." If
CLS instead chose to operate outside the RSO program, Hastings stated, the school "would be pleased
to provide [CLS] the use of Hastings facilities for its meetings and activities." CLS would also have
access to chalkboards and generally available campus bulletin boards to announce its events. In other
words, Hastings would do nothing to suppress CLS's endeavors, but neither would it lend RSO-level
support for them.
Refusing to alter its bylaws, CLS did not obtain RSO status. It did, however, operate independently
during the 2004-2005 academic year. CLS held weekly Bible-study meetings and invited Hastings
students to Good Friday and Easter Sunday church services. It also hosted a beach barbeque,

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Thanksgiving dinner, campus lecture on the Christian faith and the legal practice, several fellowship
dinners, an end-of-year banquet, and other informal social activities.
On October 22, 2004, CLS filed suit against various Hastings officers and administrators under 42 U. S.
C. §1983. Its complaint alleged that Hastings' refusal to grant the organization RSO status violated
CLS's First and Fourteenth Amendment rights to free speech, expressive association, and free
exercise of religion. The suit sought injunctive and declaratory relief.
On cross-motions for summary judgment, the U. S. District Court for the Northern District of
California ruled in favor of Hastings. The Law School's all-comers condition on access to a limited
public forum, the court held, was both reasonable and viewpoint neutral, and therefore did not
violate CLS's right to free speech.
Nor, in the District Court's view, did the Law School impermissibly impair CLS's right to expressive
association. "Hastings is not directly ordering CLS to admit [any] studen[t]," the court observed;
"[r]ather, Hastings has merely placed conditions on" the use of its facilities and funds, ibid. "Hastings'
denial of official recognition," the court added, "was not a substantial impediment to CLS's ability to
meet and communicate as a group."
The court also rejected CLS's Free Exercise Clause argument. "[T]he Nondiscrimination Policy does
not target or single out religious beliefs," the court noted; rather, the policy "is neutral and of general
applicability." "CLS may be motivated by its religious beliefs to exclude students based on their
religion or sexual orientation," the court explained, "but that does not convert the reason for
Hastings' [Nondiscrimination Policy] to be one that is religiously-based."
On appeal, the Ninth Circuit affirmed [in a brief opinion]. We granted certiorari and now affirm the
Ninth Circuit's judgment.
II
Before considering the merits of CLS's constitutional arguments, we must resolve a preliminary
issue: CLS urges us to review the Nondiscrimination Policy as written--prohibiting discrimination on
several enumerated bases, including religion and sexual orientation--and not as a requirement that
all RSOs accept all comers. The written terms of the Nondiscrimination Policy, CLS contends, "targe[t]
solely those groups whose beliefs are based on religion or that disapprove of a particular kind of
sexual behavior," and leave other associations free to limit membership and leadership to individuals
committed to the group's ideology. For example, "[a] political ... group can insist that its leaders
support its purposes and beliefs," CLS alleges, but "a religious group cannot."
CLS's assertion runs headlong into the stipulation of facts it jointly submitted with Hastings at the
summary-judgment stage. In that filing, the parties specified:
"Hastings requires that registered student organizations allow any student to participate, become a
member, or seek leadership positions in the organization, regardless of [her] status or beliefs. Thus, for
example, the Hastings Democratic Caucus cannot bar students holding Republican political beliefs from
becoming members or seeking leadership positions in the organization."

App. 221 (Joint Stipulation ¶18) (emphasis added; citations omitted).
Under the District Court's local rules, stipulated facts are deemed "undisputed." Civil Local Rule 56-2
(ND Cal. 2010). See also Pet. for Cert. 2 ("The material facts of this case are undisputed.").
Litigants, we have long recognized, "[a]re entitled to have [their] case tried upon the assumption
that ... facts, stipulated into the record, were established." This entitlement is the bookend to a party's
undertaking to be bound by the factual stipulations it submits. * * *
Time and again, the dissent races away from the facts to which CLS stipulated. But factual
stipulations are "formal concessions ... that have the effect of withdrawing a fact from issue and
dispensing wholly with the need for proof of the fact. Thus, a judicial admission ... is conclusive in the
case."
In light of the joint stipulation, both the District Court and the Ninth Circuit trained their attention on
the constitutionality of the all-comers requirement, as described in the parties' accord. We reject
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CLS's unseemly attempt to escape from the stipulation and shift its target to Hastings' policy as
written. This opinion, therefore, considers only whether conditioning access to a studentorganization forum on compliance with an all-comers policy violates the Constitution.
III
A
In support of the argument that Hastings' all-comers policy treads on its First Amendment rights to
free speech and expressive association, CLS draws on two lines of decisions. First, in a progression of
cases, this Court has employed forum analysis to determine when a governmental entity, in
regulating property in its charge, may place limitations on speech. Recognizing a State's right "to
preserve the property under its control for the use to which it is lawfully dedicated," Cornelius v.
NAACP Legal Defense & Ed. Fund, Inc. (1985) the Court has permitted restrictions on access to a
limited public forum, like the RSO program here, with this key caveat: Any access barrier must be
reasonable and viewpoint neutral.
Second, as evidenced by another set of decisions, this Court has rigorously reviewed laws and
regulations that constrain associational freedom. In the context of public accommodations, we have
subjected restrictions on that freedom to close scrutiny; such restrictions are permitted only if they
serve "compelling state interests" that are "unrelated to the suppression of ideas"--interests that
cannot be advanced "through ... significantly less restrictive [means]." Roberts v. United States Jaycees
(1984). See also, e.g., Boy Scouts of America v. Dale (2000). "Freedom of association," we have
recognized, "plainly presupposes a freedom not to associate." Roberts. Insisting that an organization
embrace unwelcome members, we have therefore concluded, "directly and immediately affects
associational rights." Dale.
CLS would have us engage each line of cases independently, but its expressive-association and freespeech arguments merge: Who speaks on its behalf, CLS reasons, colors what concept is conveyed. It
therefore makes little sense to treat CLS's speech and association claims as discrete. Instead, three
observations lead us to conclude that our limited-public-forum precedents supply the appropriate
framework for assessing both CLS's speech and association rights.
First, the same considerations that have led us to apply a less restrictive level of scrutiny to speech in
limited public forums as compared to other environments, apply with equal force to expressive
association occurring in limited public forums. As just noted, speech and expressive-association
rights are closely linked. Roberts v. United States Jaycees (Associational freedom is "implicit in the
right to engage in activities protected by the First Amendment."). When these intertwined rights
arise in exactly the same context, it would be anomalous for a restriction on speech to survive
constitutional review under our limited-public-forum test only to be invalidated as an impermissible
infringement of expressive association. That result would be all the more anomalous in this case, for
CLS suggests that its expressive-association claim plays a part auxiliary to speech's starring role.
Second, and closely related, the strict scrutiny we have applied in some settings to laws that burden
expressive association would, in practical effect, invalidate a defining characteristic of limited public
forums--the State may "reserv[e] [them] for certain groups." See also Perry Ed. Assn., ("Implicit in the
concept" of a limited public forum is the State's "right to make distinctions in access on the basis of ...
speaker identity.").
An example sharpens the tip of this point: Schools, including Hastings, ordinarily, and without
controversy, limit official student-group recognition to organizations comprising only students--even
if those groups wish to associate with nonstudents. The same ground rules must govern both speech
and association challenges in the limited-public-forum context, lest strict scrutiny trump a public
university's ability to "confin[e] a [speech] forum to the limited and legitimate purposes for which it
was created."
Third, this case fits comfortably within the limited-public-forum category, for CLS, in seeking what is
effectively a state subsidy, faces only indirect pressure to modify its membership policies; CLS may
exclude any person for any reason if it forgoes the benefits of official recognition. The expressiveassociation precedents on which CLS relies, in contrast, involved regulations that compelled a group
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to include unwanted members, with no choice to opt out. See, e.g., Dale (regulation "forc[ed] [the Boy
Scouts] to accept members it [did] not desire" (internal quotation marks omitted)); Roberts ("There
can be no clearer example of an intrusion into the internal structure or affairs of an association than"
forced inclusion of unwelcome participants.).
In diverse contexts, our decisions have distinguished between policies that require action and those
that withhold benefits. Application of the less-restrictive limited-public-forum analysis better
accounts for the fact that Hastings, through its RSO program, is dangling the carrot of subsidy, not
wielding the stick of prohibition.
In sum, we are persuaded that our limited-public-forum precedents adequately respect both CLS's
speech and expressive-association rights, and fairly balance those rights against Hastings' interests
as property owner and educational institution. We turn to the merits of the instant dispute, therefore,
with the limited-public-forum decisions as our guide.
B
As earlier pointed out, we do not write on a blank slate; we have three times before considered
clashes between public universities and student groups seeking official recognition or its attendant
benefits. First, in Healy v. James (1972), a state college denied school affiliation to a student group
that wished to form a local chapter of Students for a Democratic Society (SDS). Characterizing SDS's
mission as violent and disruptive, and finding the organization's philosophy repugnant, the college
completely banned the SDS chapter from campus; in its effort to sever all channels of communication
between students and the group, university officials went so far as to disband a meeting of SDS
members in a campus coffee shop. The college, we noted, could require "that a group seeking official
recognition affirm in advance its willingness to adhere to reasonable campus law," including
"reasonable standards respecting conduct." But a public educational institution exceeds
constitutional bounds, we held, when it "restrict[s] speech or association simply because it finds the
views expressed by [a] group to be abhorrent."
We later relied on Healy in Widmar v. Vincent (1981). In that case, a public university, in an effort to
avoid state support for religion, had closed its facilities to a registered student group that sought to
use university space for religious worship and discussion. "A university's mission is education," we
observed, "and decisions of this Court have never denied a university's authority to impose
reasonable regulations compatible with that mission upon the use of its campus and facilities." But
because the university singled out religious organizations for disadvantageous treatment, we
subjected the university's regulation to strict scrutiny. The school's interest "in maintaining strict
separation of church and State," we held, was not "sufficiently compelling to justify ... [viewpoint]
discrimination against ... religious speech."
Most recently and comprehensively, in Rosenberger v. Rector and Visitors of Univ. of Virginia (1995),
we reiterated that a university generally may not withhold benefits from student groups because of
their religious outlook. The officially recognized student group in Rosenberger was denied studentactivity-fee funding to distribute a newspaper because the publication discussed issues from a
Christian perspective. By "select[ing] for disfavored treatment those student journalistic efforts with
religious editorial viewpoints," we held, the university had engaged in "viewpoint discrimination,
which is presumed impermissible when directed against speech otherwise within the forum's
limitations."
In all three cases, we ruled that student groups had been unconstitutionally singled out because of
their points of view. "Once it has opened a limited [public] forum," we emphasized, "the State must
respect the lawful boundaries it has itself set." The constitutional constraints on the boundaries the
State may set bear repetition here: "The State may not exclude speech where its distinction is not
reasonable in light of the purpose served by the forum, ... nor may it discriminate against speech on
the basis of ... viewpoint."
C
We first consider whether Hastings' policy is reasonable taking into account the RSO forum's
function and "all the surrounding circumstances."
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1
Our inquiry is shaped by the educational context in which it arises: "First Amendment rights," we
have observed, "must be analyzed in light of the special characteristics of the school environment."
Widmar. This Court is the final arbiter of the question whether a public university has exceeded
constitutional constraints, and we owe no deference to universities when we consider that question.
Cognizant that judges lack the on-the-ground expertise and experience of school administrators,
however, we have cautioned courts in various contexts to resist "substitut[ing] their own notions of
sound educational policy for those of the school authorities which they review."
A college's commission--and its concomitant license to choose among pedagogical approaches--is not
confined to the classroom, for extracurricular programs are, today, essential parts of the educational
process. Schools, we have emphasized, enjoy "a significant measure of authority over the type of
officially recognized activities in which their students participate." We therefore "approach our task
with special caution," mindful that Hastings' decisions about the character of its student-group
program are due decent respect.
2
With appropriate regard for school administrators' judgment, we review the justifications Hastings
offers in defense of its all-comers requirement. First, the open-access policy "ensures that the
leadership, educational, and social opportunities afforded by [RSOs] are available to all students."
Just as "Hastings does not allow its professors to host classes open only to those students with a
certain status or belief," so the Law School may decide, reasonably in our view, "that the ...
educational experience is best promoted when all participants in the forum must provide equal
access to all students." RSOs, we count it significant, are eligible for financial assistance drawn from
mandatory student-activity fees; the all-comers policy ensures that no Hastings student is forced to
fund a group that would reject her as a member.
Second, the all-comers requirement helps Hastings police the written terms of its Nondiscrimination
Policy without inquiring into an RSO's motivation for membership restrictions. To bring the RSO
program within CLS's view of the Constitution's limits, CLS proposes that Hastings permit exclusion
because of belief but forbid discrimination due to status. See Tr. of Oral Arg. 18. But that proposal
would impose on Hastings a daunting labor. How should the Law School go about determining
whether a student organization cloaked prohibited status exclusion in belief-based garb? If a
hypothetical Male-Superiority Club barred a female student from running for its presidency, for
example, how could the Law School tell whether the group rejected her bid because of her sex or
because, by seeking to lead the club, she manifested a lack of belief in its fundamental philosophy?
This case itself is instructive in this regard. CLS contends that it does not exclude individuals because
of sexual orientation, but rather "on the basis of a conjunction of conduct and the belief that the
conduct is not wrong." Our decisions have declined to distinguish between status and conduct in this
context. See Lawrence v. Texas (2003).
Third, the Law School reasonably adheres to the view that an all-comers policy, to the extent it brings
together individuals with diverse backgrounds and beliefs, "encourages tolerance, cooperation, and
learning among students." And if the policy sometimes produces discord, Hastings can rationally
rank among RSO-program goals development of conflict-resolution skills, toleration, and readiness to
find common ground.
Fourth, Hastings' policy, which incorporates--in fact, subsumes--state-law proscriptions on
discrimination, conveys the Law School's decision "to decline to subsidize with public monies and
benefits conduct of which the people of California disapprove." State law, of course, may not
command that public universities take action impermissible under the First Amendment. But so long
as a public university does not contravene constitutional limits, its choice to advance state-law goals
through the school's educational endeavors stands on firm footing.
In sum, the several justifications Hastings asserts in support of its all-comers requirement are surely
reasonable in light of the RSO forum's purposes.

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3
The Law School's policy is all the more creditworthy in view of the "substantial alternative channels
that remain open for [CLS-student] communication to take place." Perry Ed. Assn. If restrictions on
access to a limited public forum are viewpoint discriminatory, the ability of a group to exist outside
the forum would not cure the constitutional shortcoming. But when access barriers are viewpoint
neutral, our decisions have counted it significant that other available avenues for the group to
exercise its First Amendment rights lessen the burden created by those barriers.
In this case, Hastings offered CLS access to school facilities to conduct meetings and the use of
chalkboards and generally available bulletin boards to advertise events. Although CLS could not take
advantage of RSO-specific methods of communication, the advent of electronic media and socialnetworking sites reduces the importance of those channels. See App. 114-115 (CLS maintained a
Yahoo! message group to disseminate information to students.); Christian Legal Society v. Walker, 453
F. 3d 853, 874 (7th Cir. 2006) (Wood, J., dissenting) ("Most universities and colleges, and most
college-aged students, communicate through email, websites, and hosts like MySpace ... . If CLS had
its own website, any student at the school with access to Google--that is, all of them--could easily
have found it."). See also Brief for Associated Students of the University of California, Hastings College
of Law as Amicus Curiae 14-18 (describing host of ways CLS could communicate with Hastings'
students outside official channels).
Private groups, from fraternities and sororities to social clubs and secret societies, commonly
maintain a presence at universities without official school affiliation. Based on the record before us,
CLS was similarly situated: It hosted a variety of activities the year after Hastings denied it
recognition, and the number of students attending those meetings and events doubled. "The variety
and type of alternative modes of access present here," in short, "compare favorably with those in
other [limited public] forum cases where we have upheld restrictions on access." Perry Ed. Assn. It is
beyond dissenter's license, we note again, constantly to maintain that nonrecognition of a student
organization is equivalent to prohibiting its members from speaking.
4
CLS nevertheless deems Hastings' all-comers policy "frankly absurd." "There can be no diversity of
viewpoints in a forum," it asserts, "if groups are not permitted to form around viewpoints." This
catchphrase confuses CLS's preferred policy with constitutional limitation--the advisability of
Hastings' policy does not control its permissibility. Instead, we have repeatedly stressed that a State's
restriction on access to a limited public forum "need not be the most reasonable or the only
reasonable limitation."
CLS also assails the reasonableness of the all-comers policy in light of the RSO forum's function by
forecasting that the policy will facilitate hostile takeovers; if organizations must open their arms to
all, CLS contends, saboteurs will infiltrate groups to subvert their mission and message. This
supposition strikes us as more hypothetical than real. CLS points to no history or prospect of RSOhijackings at Hastings. Students tend to self-sort and presumably will not endeavor en masse to join-let alone seek leadership positions in--groups pursuing missions wholly at odds with their personal
beliefs. And if a rogue student intent on sabotaging an organization's objectives nevertheless
attempted a takeover, the members of that group would not likely elect her as an officer.
RSOs, moreover, in harmony with the all-comers policy, may condition eligibility for membership and
leadership on attendance, the payment of dues, or other neutral requirements designed to ensure
that students join because of their commitment to a group's vitality, not its demise. Several RSOs at
Hastings limit their membership rolls and officer slates in just this way. * * *
Hastings, furthermore, could reasonably expect more from its law students than the disruptive
behavior CLS hypothesizes--and to build this expectation into its educational approach. A reasonable
policy need not anticipate and preemptively close off every opportunity for avoidance or
manipulation. If students begin to exploit an all-comers policy by hijacking organizations to distort or
destroy their missions, Hastings presumably would revisit and revise its policy.

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Finally, CLS asserts (and the dissent repeats) that the Law School lacks any legitimate interest--let
alone one reasonably related to the RSO forum's purposes--in urging "religious groups not to favor
co-religionists for purposes of their religious activities." CLS's analytical error lies in focusing on the
benefits it must forgo while ignoring the interests of those it seeks to fence out: Exclusion, after all,
has two sides. Hastings, caught in the crossfire between a group's desire to exclude and students'
demand for equal access, may reasonably draw a line in the sand permitting all organizations to
express what they wish but no group to discriminate in membership.
D
We next consider whether Hastings' all-comers policy is viewpoint neutral.
1
Although this aspect of limited-public-forum analysis has been the constitutional sticking point in our
prior decisions, as earlier recounted, we need not dwell on it here. It is, after all, hard to imagine a
more viewpoint-neutral policy than one requiring all student groups to accept all comers. In contrast
to Healy, Widmar, and Rosenberger, in which universities singled out organizations for disfavored
treatment because of their points of view, Hastings' all-comers requirement draws no distinction
between groups based on their message or perspective. An all-comers condition on access to RSO
status, in short, is textbook viewpoint neutral.
2
Conceding that Hastings' all-comers policy is "nominally neutral," CLS attacks the regulation by
pointing to its effect: The policy is vulnerable to constitutional assault, CLS contends, because "it
systematically and predictably burdens most heavily those groups whose viewpoints are out of favor
with the campus mainstream." This argument stumbles from its first step because "[a] regulation that
serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental
effect on some speakers or messages but not others." Ward v. Rock Against Racism (1989).
Even if a regulation has a differential impact on groups wishing to enforce exclusionary membership
policies, "[w]here the [State] does not target conduct on the basis of its expressive content, acts are
not shielded from regulation merely because they express a discriminatory idea or philosophy." R. A.
V. v. St. Paul (1992).
Hastings' requirement that student groups accept all comers, we are satisfied, "is justified without
reference to the content [or viewpoint] of the regulated speech." The Law School's policy aims at the
act of rejecting would-be group members without reference to the reasons motivating that behavior:
Hastings' "desire to redress th[e] perceived harms" of exclusionary membership policies "provides
an adequate explanation for its [all-comers condition] over and above mere disagreement with [any
student group's] beliefs or biases." Wisconsin v. Mitchell (1993). CLS's conduct--not its Christian
perspective--is, from Hastings' vantage point, what stands between the group and RSO status. "In the
end," as Hastings observes, "CLS is simply confusing its own viewpoint-based objections to ...
nondiscrimination laws (which it is entitled to have and [to] voice) with viewpoint discrimination."
Brief for Hastings 31.
Finding Hastings' open-access condition on RSO status reasonable and viewpoint neutral, we reject
CLS' free-speech and expressive-association claims.
IV
In its reply brief, CLS contends that "[t]he peculiarity, incoherence, and suspect history of the allcomers policy all point to pretext." Neither the District Court nor the Ninth Circuit addressed an
argument that Hastings selectively enforces its all-comers policy, and this Court is not the proper
forum to air the issue in the first instance. On remand, the Ninth Circuit may consider CLS's pretext
argument if, and to the extent, it is preserved.
For the foregoing reasons, we affirm the Court of Appeals' ruling that the all-comers policy is
constitutional and remand the case for further proceedings consistent with this opinion.
It is so ordered.
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JUSTICE STEVENS, CONCURRING.
The Court correctly confines its discussion to the narrow issue presented by the record, and correctly
upholds the all-comers policy. I join its opinion without reservation. Because the dissent has
volunteered an argument that the school's general Nondiscrimination Policy would be "plainly"
unconstitutional if applied to this case (opinion of Alito, J.), a brief response is appropriate. In my
view, both policies are plainly legitimate. * * *
It is critical, in evaluating CLS's challenge to the Nondiscrimination Policy, to keep in mind that an
RSO program is a limited forum--the boundaries of which may be delimited by the proprietor. When
a religious association, or a secular association, operates in a wholly public setting, it must be allowed
broad freedom to control its membership and its message, even if its decisions cause offense to
outsiders. Profound constitutional problems would arise if the State of California tried to "demand
that all Christian groups admit members who believe that Jesus was merely human." (Alito, J.,
dissenting). But the CLS chapter that brought this lawsuit does not want to be just a Christian group;
it aspires to be a recognized student organization. The Hastings College of Law is not a legislature.
And no state actor has demanded that anyone do anything outside the confines of a discrete,
voluntary academic program. Although it may be the case that to some "university students, the
campus is their world," it does not follow that the campus ought to be equated with the public square.
The campus is, in fact, a world apart from the public square in numerous respects, and religious
organizations, as well as all other organizations, must abide by certain norms of conduct when they
enter an academic community. Public universities serve a distinctive role in a modern democratic
society. Like all specialized government entities, they must make countless decisions about how to
allocate resources in pursuit of their role. Some of those decisions will be controversial; many will
have differential effects across populations; virtually all will entail value judgments of some kind. As
a general matter, courts should respect universities' judgments and let them manage their own
affairs.
The RSO forum is no different. It is not an open commons that Hastings happens to maintain. It is a
mechanism through which Hastings confers certain benefits and pursues certain aspects of its
educational mission. Having exercised its discretion to establish an RSO program, a university must
treat all participants evenhandedly. But the university need not remain neutral--indeed it could not
remain neutral--in determining which goals the program will serve and which rules are best suited to
facilitate those goals. These are not legal questions but policy questions; they are not for the Court
but for the university to make. When any given group refuses to comply with the rules, the RSO
sponsor need not admit that group at the cost of undermining the program and the values reflected
therein. On many levels, a university administrator has a "greater interest in the content of student
activities than the police chief has in the content of a soapbox oration." Widmar v. Vincent (1981)
(Stevens, J., concurring in judgment). * * *
JUSTICE KENNEDY, CONCURRING.
To be effective, a limited forum often will exclude some speakers based on their affiliation (e.g.,
student versus nonstudent) or based on the content of their speech, interests, and expertise (e.g., art
professor not chosen as speaker for conference on public transit). When the government does
exclude from a limited forum, however, other content-based judgments may be impermissible. For
instance, an otherwise qualified and relevant speaker may not be excluded because of hostility to his
or her views or beliefs. * * *
In the instant case, however, if the membership qualification were enforced, it would contradict a
legitimate purpose for having created the limited forum in the first place. Many educational
institutions, including respondent Hastings College of Law, have recognized that the process of
learning occurs both formally in a classroom setting and informally outside of it. Students may be
shaped as profoundly by their peers as by their teachers. Extracurricular activities, such as those in
the Hastings "Registered Student Organization" program, facilitate interactions between students,
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enabling them to explore new points of view, to develop interests and talents, and to nurture a
growing sense of self. The Hasting program is designed to allow all students to interact with their
colleagues across a broad, seemingly unlimited range of ideas, views, and activities. See Regents of
Univ. of Cal. v. Bakke (1978) (opinion of Powell, J.) ("[A] great deal of learning ... occurs through
interactions among students ... who have a wide variety of interests, talents, and perspectives; and
who are able, directly or indirectly, to learn from their differences and to stimulate one another to
reexamine even their most deeply held assumptions about themselves and their world" (alteration in
original; internal quotation marks omitted)).
Law students come from many backgrounds and have but three years to meet each other and
develop their skills. They do so by participating in a community that teaches them how to create
arguments in a convincing, rational, and respectful manner and to express doubt and disagreement
in a professional way. A law school furthers these objectives by allowing broad diversity in registered
student organizations. But these objectives may be better achieved if students can act cooperatively
to learn from and teach each other through interactions in social and intellectual contexts. A vibrant
dialogue is not possible if students wall themselves off from opposing points of view.
The school's objectives thus might not be well served if, as a condition to membership or
participation in a group, students were required to avow particular personal beliefs or to disclose
private, off-campus behavior. Students whose views are in the minority at the school would likely
fare worse in that regime. Indeed, were those sorts of requirements to become prevalent, it might
undermine the principle that in a university community--and in a law school community specifically-speech is deemed persuasive based on its substance, not the identity of the speaker. The era of
loyalty oaths is behind us. A school quite properly may conclude that allowing an oath or beliefaffirming requirement, or an outside conduct requirement, could be divisive for student relations and
inconsistent with the basic concept that a view's validity should be tested through free and open
discussion. The school's policy therefore represents a permissible effort to preserve the value of its
forum. * * *
JUSTICE ALITO, WITH WHOM THE CHIEF JUSTICE, JUSTICE SCALIA, AND JUSTICE THOMAS JOIN, DISSENTING.
The proudest boast of our free speech jurisprudence is that we protect the freedom to express "the
thought that we hate." United States v. Schwimmer, (1929) (Holmes, J., dissenting). Today's decision
rests on a very different principle: no freedom for expression that offends prevailing standards of
political correctness in our country's institutions of higher learning.
* * * While I think that Healy [v. James (1972)] is largely controlling, I am content to address the
constitutionality of Hastings' actions under our limited public forum cases, which lead to exactly the
same conclusion.
In this case, the forum consists of the RSO program. Once a public university opens a limited public
forum, it "must respect the lawful boundaries it has itself set." Rosenberger v. Rector and Visitors of
Univ. of Va. (1995). The university "may not exclude speech where its distinction is not 'reasonable in
light of the purpose served by the forum.' " And the university must maintain strict viewpoint
neutrality. Board of Regents of Univ. of Wis. System v. Southworth (2000); Rosenberger.
This requirement of viewpoint neutrality extends to the expression of religious viewpoints. * * *
We have applied this analysis in cases in which student speech was restricted because of the
speaker's religious viewpoint, and we have consistently concluded that such restrictions constitute
viewpoint discrimination.
* * * The accept-all-comers policy is antithetical to the design of the RSO forum for the same reason
that a state-imposed accept-all-comers policy would violate the First Amendment rights of private
groups if applied off campus. As explained above, a group's First Amendment right of expressive
association is burdened by the "forced inclusion" of members whose presence would "affec[t] in a
significant way the group's ability to advocate public or private viewpoints." Dale. The Court has
therefore held that the government may not compel a group that engages in "expressive association"
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to admit such a member unless the government has a compelling interest, " 'unrelated to the
suppression of ideas, that cannot be achieved through means significantly less restrictive of
associational freedoms.' "
There can be no dispute that this standard would not permit a generally applicable law mandating
that private religious groups admit members who do not share the groups' beliefs. Religious groups
like CLS obviously engage in expressive association, and no legitimate state interest could override
the powerful effect that an accept-all-comers law would have on the ability of religious groups to
express their views. The State of California surely could not demand that all Christian groups admit
members who believe that Jesus was merely human. Jewish groups could not be required to admit
anti-Semites and Holocaust deniers. Muslim groups could not be forced to admit persons who are
viewed as slandering Islam.
While there can be no question that the State of California could not impose such restrictions on all
religious groups in the State, the Court now holds that Hastings, a state institution, may impose these
very same requirements on students who wish to participate in a forum that is designed to foster the
expression of diverse viewpoints. * * *
I do not think it is an exaggeration to say that today's decision is a serious setback for freedom of
expression in this country. Our First Amendment reflects a "profound national commitment to the
principle that debate on public issues should be uninhibited, robust, and wide-open." New York Times
Co. v. Sullivan, (1964). Even if the United States is the only Nation that shares this commitment to the
same extent, I would not change our law to conform to the international norm. I fear that the Court's
decision marks a turn in that direction. Even those who find CLS's views objectionable should be
concerned about the way the group has been treated--by Hastings, the Court of Appeals, and now this
Court. I can only hope that this decision will turn out to be an aberration.

Notes
1.
Christian Legal Society (CLS) v. Martinez again illustrates that First Amendment cases often
present a dizzying array of different doctrines to analyze and decide any particular dispute. How
does the forum analysis shape the outcome for the Court’s opinion?
2.
In the dissenting opinion, Justice Alito argues that he is “content to address the
constitutionality of Hastings' actions under our limited public forum cases, which lead to exactly the
same conclusion” and explains that “the forum consists of the RSO program.” However, the dissenting
opinion also states
The accept-all-comers policy is antithetical to the design of the RSO forum for the same reason that a
state-imposed accept-all-comers policy would violate the First Amendment rights of private groups if
applied off campus.

Does this mean the forum analysis is irrelevant?
3.
Recall that in Board of Regents of Univ. of Wisconsin System v. Southworth, 529 U.S. 217
(2000) [Chapter 6] the Court held invalid the collection of a student fee awarded to RSO’s. The Court
noted:
Our public forum cases are instructive here by close analogy. This is true even though the student
activities fund is not a public forum in the traditional sense of the term and despite the circumstance
that those cases most often involve a demand for access, not a claim to be exempt from supporting
speech.

It added that the university “is free to enact viewpoint neutral rules restricting off-campus travel or
other expenditures by RSO's, for it may create what is tantamount to a limited public forum if the
principles of viewpoint neutrality are respected.” It then distinguished this from situations in which
“the University speaks, either in its own name through its regents or officers, or in myriad other ways

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through its diverse faculties, the analysis likely would be altogether different,” citing Rust v. Sullivan
(1991).
Would it be possible for a public law school (or university) to require RSO’s to be “dedicated
to social justice”?

Note: Trespassing in a Public Forum?

In Virginia v. Hicks, 539 U.S. 113 (2003), Justice Scalia wrote for a unanimous Court and upheld the
constitutionality of a housing authority’s trespass policy. As the Court explained:
The Richmond Redevelopment and Housing Authority (RRHA) owns and operates a housing
development for low-income residents called Whitcomb Court. Until June 23, 1997, the city of
Richmond owned the streets within Whitcomb Court. The city council decided, however, to "privatize"
these streets in an effort to combat rampant crime and drug dealing in Whitcomb Court--much of it
committed and conducted by nonresidents. * * *
The city then conveyed these streets by a recorded deed to the RRHA (which is a political subdivision
of the Commonwealth of Virginia). This deed required the RRHA to " 'give the appearance that the
closed street, particularly at the entrances, are no longer public streets and that they are in fact private
streets.' " To this end, the RRHA posted red-and-white signs on each apartment building--and every
100 feet along the streets--of Whitcomb Court, which state: " 'NO TRESPASSING[.] PRIVATE
PROPERTY[.] YOU ARE NOW ENTERING PRIVATE PROPERTY AND STREETS OWNED BY RRHA.
UNAUTHORIZED PERSONS WILL BE SUBJECT TO ARREST AND PROSECUTION. UNAUTHORIZED
VEHICLES WILL BE TOWED AT OWNERS EXPENSE.' The RRHA also enacted a policy authorizing the
Richmond police “'to serve notice, either orally or in writing, to any person who is found on Richmond
Redevelopment and Housing Authority property when such person is not a resident, employee, or such
person cannot demonstrate a legitimate business or social purpose for being on the premises. Such
notice shall forbid the person from returning to the property. Finally, Richmond Redevelopment and
Housing Authority authorizes Richmond Police Department officers to arrest any person for
trespassing after such person, having been duly notified, either stays upon or returns to Richmond
Redevelopment and Housing Authority property.' "

Respondent Kevin Hicks, a nonresident of Whitcomb Court, received a notice from the manager
excluding him from the property; he was later convicted for trespassing at Whitcomb Court.
At trial, Hicks maintained that the RRHA's policy limiting access to Whitcomb Court was both
unconstitutionally overbroad and void for vagueness. On appeal of his conviction, a three-judge panel
of the Court of Appeals of Virginia initially rejected Hicks' contentions, but the en banc Court of Appeals
reversed. That court held that the streets of Whitcomb Court were a "traditional public forum,"
notwithstanding the city ordinance declaring them closed, and vacated Hicks' conviction on the ground
that RRHA's policy violated the First Amendment. The Virginia Supreme Court affirmed the en banc
Court of Appeals, but for different reasons. Without deciding whether the streets of Whitcomb Court
were a public forum, the Virginia Supreme Court concluded that the RRHA policy was
unconstitutionally overbroad. While acknowledging that the policy was "designed to punish activities
that are not protected by the First Amendment," the court held that "the policy also prohibits speech
and conduct that are clearly protected by the First Amendment." The court found the policy defective
because it vested too much discretion in Whitcomb Court's manager to determine whether an
individual's presence at Whitcomb Court is "authorized," allowing her to "prohibit speech that she
finds personally distasteful or offensive even though such speech may be protected by the First
Amendment."

The Court concluded:
Even assuming the streets of Whitcomb Court are a public forum, the notice-barment rule subjects to
arrest those who reenter after trespassing and after being warned not to return-- regardless of
whether, upon their return, they seek to engage in speech. Neither the basis for the barment sanction
(the prior trespass) nor its purpose (preventing future trespasses) has anything to do with the First
Amendment. Punishing its violation by a person who wishes to engage in free speech no more
implicates the First Amendment than would the punishment of a person who has (pursuant to lawful
regulation) been banned from a public park after vandalizing it, and who ignores the ban in order to
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take part in a political demonstration. Here, as there, it is Hicks' nonexpressive conduct--his entry in
violation of the notice-barment rule--not his speech, for which he is punished as a trespasser.
Most importantly, both the notice-barment rule and the "legitimate business or social purpose" rule
apply to all persons who enter the streets of Whitcomb Court, not just to those who seek to engage in
expression. The rules apply to strollers, loiterers, drug dealers, roller skaters, bird watchers, soccer
players, and others not engaged in constitutionally protected conduct--a group that would seemingly
far outnumber First Amendment speakers.

The Court further noted that
Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically
addressed to speech or to conduct necessarily associated with speech (such as picketing or
demonstrating). Applications of the RRHA policy that violate the First Amendment can still be
remedied through as-applied litigation, but the Virginia Supreme Court should not have used the
"strong medicine" of overbreadth to invalidate the entire RRHA trespass policy.

Does the Court’s outcome undermine the language from Hague v. CIO 1939) regarding the use of
streets - wherever the title may rest – as “immemorially” held “in trust” for the use of the public? Is
the Court’s conclusion that Hicks was engaged in nonexpressive conduct convincing?

III. Time, Place, or Manner

Government regulation that is not directed at content (or viewpoint) may be “merely” a time, place,
or manner restriction subject to a more lenient level of judicial scrutiny.

Ward v. Rock Against Racism
491 U.S. 781 (1989)
KENNEDY, J., DELIVERED THE OPINION OF THE COURT, IN WHICH REHNQUIST, C.J., AND WHITE, O'CONNOR, , AND
SCALIA, JJ., JOINED. BLACKMUN, J., CONCURRED IN THE RESULT. MARSHALL, J., FILED A DISSENTING OPINION, IN WHICH
BRENNAN AND STEVENS, JJ., JOINED.
JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT.
In the southeast portion of New York City's Central Park, about 10 blocks upward from the park's
beginning point at 59th Street, there is an amphitheater and stage structure known as the Naumberg
Acoustic Bandshell. The bandshell faces west across the remaining width of the park. In close
proximity to the bandshell, and lying within the directional path of its sound, is a grassy open area
called the Sheep Meadow. The city has designated the Sheep Meadow as a quiet area for passive
recreations like reclining, walking, and reading. Just beyond the park, and also within the potential
sound range of the bandshell, are the apartments and residences of Central Park West.
This case arises from the city's attempt to regulate the volume of amplified music at the bandshell so
the performances are satisfactory to the audience without intruding upon those who use the Sheep
Meadow or live on Central Park West and in its vicinity.
The city's regulation requires bandshell performers to use sound-amplification equipment and a
sound technician provided by the city. The challenge to this volume control technique comes from
the sponsor of a rock concert. The trial court sustained the noise control measures, but the Court of
Appeals for the Second Circuit reversed. We granted certiorari to resolve the important First
Amendment issues presented by the case.

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I
Rock Against Racism, respondent in this case, is an unincorporated association which, in its own
words, is "dedicated to the espousal and promotion of antiracist views." Each year from 1979
through 1986, RAR has sponsored a program of speeches and rock music at the bandshell. RAR has
furnished the sound equipment and sound technician used by the various performing groups at these
annual events.
Over the years, the city received numerous complaints about excessive sound amplification at
respondent's concerts from park users and residents of areas adjacent to the park. On some
occasions RAR was less than cooperative when city officials asked that the volume be reduced; at one
concert, police felt compelled to cut off the power to the sound system, an action that caused the
audience to become unruly and hostile.
Before the 1984 concert, city officials met with RAR representatives to discuss the problem of
excessive noise. It was decided that the city would monitor sound levels at the edge of the concert
ground, and would revoke respondent's event permit if specific volume limits were exceeded. Sound
levels at the concert did exceed acceptable levels for sustained periods of time, despite repeated
warnings and requests that the volume be lowered. Two citations for excessive volume were issued
to respondent during the concert. When the power was eventually shut off, the audience became
abusive and disruptive.
The following year, when respondent sought permission to hold its upcoming concert at the
bandshell, the city declined to grant an event permit, citing its problems with noise and crowd
control at RAR's previous concerts. The city suggested some other city-owned facilities as alternative
sites for the concert. RAR declined the invitation and filed suit in United States District Court against
the city, its mayor, and various police and parks department officials, seeking an injunction directing
issuance of an event permit. After respondent agreed to abide by all applicable regulations, the
parties reached agreement and a permit was issued.
The city then undertook to develop comprehensive New York City Parks Department Use Guidelines
for the Naumberg Bandshell. A principal problem to be addressed by the guidelines was controlling
the volume of amplified sound at bandshell events. A major concern was that at some bandshell
performances the event sponsors had been unable to "provide the amplification levels required and
`crowds unhappy with the sound became disappointed or unruly.'" The city found that this problem
had several causes, including inadequate sound equipment, sound technicians who were either
unskilled at mixing sound outdoors or unfamiliar with the acoustics of the bandshell and its
surroundings, and the like. Because some performers compensated for poor sound mix by raising
volume, these factors tended to exacerbate the problem of excess noise.
The city considered various solutions to the sound-amplification problem. The idea of a fixed decibel
limit for all performers using the bandshell was rejected because the impact on listeners of a single
decibel level is not constant, but varies in response to changes in air temperature, foliage, audience
size, and like factors. The city also rejected the possibility of employing a sound technician to operate
the equipment provided by the various sponsors of bandshell events, because the city's technician
might have had difficulty satisfying the needs of sponsors while operating unfamiliar, and perhaps
inadequate, sound equipment. Instead, the city concluded that the most effective way to achieve
adequate but not excessive sound amplification would be for the city to furnish high quality sound
equipment and retain an independent, experienced sound technician for all performances at the
bandshell. After an extensive search the city hired a private sound company capable of meeting the
needs of all the varied users of the bandshell.
The Use Guidelines were promulgated on March 21, 1986. After learning that it would be expected to
comply with the guidelines at its upcoming annual concert in May 1986, respondent returned to the
District Court and filed a motion for an injunction against the enforcement of certain aspects of the
guidelines. The District Court preliminarily enjoined enforcement of the sound-amplification rule on
May 1, 1986. Under the protection of the injunction, and alone among users of the bandshell in the
1986 season, RAR was permitted to use its own sound equipment and technician, just as it had done

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in prior years. RAR's 1986 concert again generated complaints about excessive noise from park users
and nearby residents.
After the concert, respondent amended its complaint to seek damages and a declaratory judgment
striking down the guidelines as facially invalid. After hearing five days of testimony about various
aspects of the guidelines, the District Court issued its decision upholding the sound-amplification
guideline. The court found that the city had been "motivated by a desire to obtain top-flight sound
equipment and experienced operators" in selecting an independent contractor to provide the
equipment and technician for bandshell events, and that the performers who did use the city's sound
system in the 1986 season, in performances "which ran the full cultural gamut from grand opera to
salsa to reggae," were uniformly pleased with the quality of the sound provided.
Although the city's sound technician controlled both sound volume and sound mix by virtue of his
position at the mixing board, the court found that "[t]he City's practice for events at the Bandshell is
to give the sponsor autonomy with respect to the sound mix: balancing treble with bass, highlighting
a particular instrument or voice, and the like," and that the city's sound technician "does all he can to
accommodate the sponsor's desires in those regards." Ibid. Even with respect to volume control, the
city's practice was to confer with the sponsor before making any decision to turn the volume down.
In some instances, as with a New York Grand Opera performance, the sound technician
accommodated the performers' unique needs by integrating special microphones with the city's
equipment. The court specifically found that "[t]he City's implementation of the Bandshell guidelines
provides for a sound amplification system capable of meeting RAR's technical needs and leaves
control of the sound `mix' in the hands of RAR." Applying this Court's three-part test for judging the
constitutionality of government regulation of the time, place, or manner of protected speech, the
court found the city's regulation valid.
The Court of Appeals reversed. After recognizing that "[c]ontent neutral time, place and manner
regulations are permissible so long as they are narrowly tailored to serve a substantial government
interest and do not unreasonably limit alternative avenues of expression," the court added the
proviso that "the method and extent of such regulation must be reasonable, that is, it must be the
least intrusive upon the freedom of expression as is reasonably necessary to achieve a legitimate
purpose of the regulation." Applying this test, the court determined that the city's guideline was valid
only to the extent necessary to achieve the city's legitimate interest in controlling excessive volume,
but found there were various alternative means of controlling volume without also intruding on
respondent's ability to control the sound mix. For example, the city could have directed respondent's
sound technician to keep the volume below specified levels. Alternatively, a volume-limiting device
could have been installed; and as a "last resort," the court suggested, "the plug can be pulled on the
sound to enforce the volume limit." In view of the potential availability of these seemingly less
restrictive alternatives, the Court of Appeals concluded that the sound-amplification guideline was
invalid because the city had failed to prove that its regulation "was the least intrusive means of
regulating the volume."
We granted certiorari to clarify the legal standard applicable to governmental regulation of the time,
place, or manner of protected speech. Because the Court of Appeals erred in requiring the city to
prove that its regulation was the least intrusive means of furthering its legitimate governmental
interests, and because the ordinance is valid on its face, we now reverse.
II
Music is one of the oldest forms of human expression. From Plato's discourse in the Republic to the
totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the
emotions, and have censored musical compositions to serve the needs of the state. See 2 DIALOGUES OF
PLATO, REPUBLIC, bk. 3, pp. 231, 245-248 (B. Jowett transl., 4th ed. 1953) ("Our poets must sing in
another and a nobler strain"); Musical Freedom and Why Dictators Fear It, N. Y. TIMES, Aug. 23, 1981,
section 2, p. 1, col. 5; Soviet Schizophrenia toward Stravinsky, N. Y. TIMES, June 26, 1982, section 1, p.
25, col. 2; Symphonic Voice from China Is Heard Again, N. Y. TIMES, Oct. 11, 1987, section 2, p. 27, col. 1.
The Constitution prohibits any like attempts in our own legal order. Music, as a form of expression
and communication, is protected under the First Amendment. In the case before us the performances
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apparently consisted of remarks by speakers, as well as rock music, but the case has been presented
as one in which the constitutional challenge is to the city's regulation of the musical aspects of the
concert; and, based on the principle we have stated, the city's guideline must meet the demands of
the First Amendment. The parties do not appear to dispute that proposition.
We need not here discuss whether a municipality which owns a bandstand or stage facility may
exercise, in some circumstances, a proprietary right to select performances and control their quality.
See Southeastern Promotions, Ltd. v. Conrad (1975) (Rehnquist, J., dissenting). Though it did
demonstrate its own interest in the effort to insure high quality performances by providing the
equipment in question, the city justifies its guideline as a regulatory measure to limit and control
noise. Here the bandshell was open, apparently, to all performers; and we decide the case as one in
which the bandshell is a public forum for performances in which the government's right to regulate
expression is subject to the protections of the First Amendment. Our cases make clear, however, that
even in a public forum the government may impose reasonable restrictions on the time, place, or
manner of protected speech, provided the restrictions "are justified without reference to the content
of the regulated speech, that they are narrowly tailored to serve a significant governmental interest,
and that they leave open ample alternative channels for communication of the information." We
consider these requirements in turn.
A
The principal inquiry in determining content neutrality, in speech cases generally and in time, place,
or manner cases in particular, is whether the government has adopted a regulation of speech because
of disagreement with the message it conveys. The government's purpose is the controlling
consideration. A regulation that serves purposes unrelated to the content of expression is deemed
neutral, even if it has an incidental effect on some speakers or messages but not others. Government
regulation of expressive activity is content neutral so long as it is "justified without reference to the
content of the regulated speech."
The principal justification for the sound-amplification guideline is the city's desire to control noise
levels at bandshell events, in order to retain the character of the Sheep Meadow and its more sedate
activities, and to avoid undue intrusion into residential areas and other areas of the park. This
justification for the guideline "ha[s] nothing to do with content," and it satisfies the requirement that
time, place, or manner regulations be content neutral.
The only other justification offered below was the city's interest in "ensur[ing] the quality of sound at
Bandshell events." Respondent urges that this justification is not content neutral because it is based
upon the quality, and thus the content, of the speech being regulated. In respondent's view, the city is
seeking to assert artistic control over performers at the bandshell by enforcing a bureaucratically
determined, value-laden conception of good sound. That all performers who have used the city's
sound equipment have been completely satisfied is of no moment, respondent argues, because "[t]he
First Amendment does not permit and cannot tolerate state control of artistic expression merely
because the State claims that [its] efforts will lead to `top-quality' results."
While respondent's arguments that the government may not interfere with artistic judgment may
have much force in other contexts, they are inapplicable to the facts of this case. The city has
disclaimed in express terms any interest in imposing its own view of appropriate sound mix on
performers. To the contrary, as the District Court found, the city requires its sound technician to
defer to the wishes of event sponsors concerning sound mix. On this record, the city's concern with
sound quality extends only to the clearly content-neutral goals of ensuring adequate sound
amplification and avoiding the volume problems associated with inadequate sound mix. Any
governmental attempt to serve purely esthetic goals by imposing subjective standards of acceptable
sound mix on performers would raise serious First Amendment concerns, but this case provides us
with no opportunity to address those questions. As related above, the District Court found that the
city's equipment and its sound technician could meet all of the standards requested by the
performers, including RAR.
Respondent argues further that the guideline, even if not content based in explicit terms, is
nonetheless invalid on its face because it places unbridled discretion in the hands of city officials
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charged with enforcing it. According to respondent, there is nothing in the language of the guideline
to prevent city officials from selecting wholly inadequate sound equipment or technicians, or even
from varying the volume and quality of sound based on the message being conveyed by the
performers.
As a threshold matter, it is far from clear that respondent should be permitted to bring a facial
challenge to this aspect of the regulation. Our cases permitting facial challenges to regulations that
allegedly grant officials unconstrained authority to regulate speech have generally involved licensing
schemes that "ves[t] unbridled discretion in a government official over whether to permit or deny
expressive activity." The grant of discretion that respondent seeks to challenge here is of an entirely
different, and lesser, order of magnitude, because respondent does not suggest that city officials
enjoy unfettered discretion to deny bandshell permits altogether. Rather, respondent contends only
that the city, by exercising what is concededly its right to regulate amplified sound, could choose to
provide inadequate sound for performers based on the content of their speech. Since respondent
does not claim that city officials enjoy unguided discretion to deny the right to speak altogether, it is
open to question whether respondent's claim falls within the narrow class of permissible facial
challenges to allegedly unconstrained grants of regulatory authority.
We need not decide, however, whether the "extraordinary doctrine" that permits facial challenges to
some regulations of expression should be extended to the circumstances of this case, for
respondent's facial challenge fails on its merits. The city's guideline states that its goals are to
"provide the best sound for all events" and to "insure appropriate sound quality balanced with
respect for nearby residential neighbors and the mayorally decreed quiet zone of [the] Sheep
Meadow." While these standards are undoubtedly flexible, and the officials implementing them will
exercise considerable discretion, perfect clarity and precise guidance have never been required even
of regulations that restrict expressive activity. By its own terms the city's sound-amplification
guideline must be interpreted to forbid city officials purposely to select inadequate sound systems or
to vary the sound quality or volume based on the message being delivered by performers. The
guideline is not vulnerable to respondent's facial challenge.
Even if the language of the guideline were not sufficient on its face to withstand challenge, our
ultimate conclusion would be the same, for the city has interpreted the guideline in such a manner as
to provide additional guidance to the officials charged with its enforcement. The District Court
expressly found that the city's policy is to defer to the sponsor's desires concerning sound quality.
With respect to sound volume, the city retains ultimate control, but city officials "mak[e] it a practice
to confer with the sponsor if any questions of excessive sound arise, before taking any corrective
action." The city's goal of ensuring that "the sound amplification [is] sufficient to reach all listeners
within the defined concertground," serves to limit further the discretion of the officials on the scene.
Administrative interpretation and implementation of a regulation are, of course, highly relevant to
our analysis, for "[i]n evaluating a facial challenge to a state law, a federal court must . . . consider any
limiting construction that a state court or enforcement agency has proffered." Any inadequacy on the
face of the guideline would have been more than remedied by the city's narrowing construction.
B
The city's regulation is also "narrowly tailored to serve a significant governmental interest." Despite
respondent's protestations to the contrary, it can no longer be doubted that government "ha[s] a
substantial interest in protecting its citizens from unwelcome noise." This interest is perhaps at its
greatest when government seeks to protect "`the well-being, tranquility, and privacy of the home,'"
but it is by no means limited to that context, for the government may act to protect even such
traditional public forums as city streets and parks from excessive noise.
We think it also apparent that the city's interest in ensuring the sufficiency of sound amplification at
bandshell events is a substantial one. The record indicates that inadequate sound amplification has
had an adverse affect on the ability of some audiences to hear and enjoy performances at the
bandshell. The city enjoys a substantial interest in ensuring the ability of its citizens to enjoy
whatever benefits the city parks have to offer, from amplified music to silent meditation.

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* * * The Court of Appeals erred in sifting through all the available or imagined alternative means of
regulating sound volume in order to determine whether the city's solution was "the least intrusive
means" of achieving the desired end. This "less-restrictive-alternative analysis . . . has never been a
part of the inquiry into the validity of a time, place, and manner regulation." Instead, our cases quite
clearly hold that restrictions on the time, place, or manner of protected speech are not invalid
"simply because there is some imaginable alternative that might be less burdensome on speech."
The Court of Appeals apparently drew its least-intrusive-means requirement from United States v.
O'Brien, the case in which we established the standard for judging the validity of restrictions on
expressive conduct. The court's reliance was misplaced, however, for we have held that the O'Brien
test "in the last analysis is little, if any, different from the standard applied to time, place, or manner
restrictions." * * *
Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or
manner of protected speech must be narrowly tailored to serve the government's legitimate, contentneutral interests but that it need not be the least restrictive or least intrusive means of doing so.
Rather, the requirement of narrow tailoring is satisfied "so long as the . . . regulation promotes a
substantial government interest that would be achieved less effectively absent the regulation." To be
sure, this standard does not mean that a time, place, or manner regulation may burden substantially
more speech than is necessary to further the government's legitimate interests. Government may not
regulate expression in such a manner that a substantial portion of the burden on speech does not
serve to advance its goals. So long as the means chosen are not substantially broader than necessary
to achieve the government's interest, however, the regulation will not be invalid simply because a
court concludes that the government's interest could be adequately served by some less-speechrestrictive alternative. "The validity of [time, place, or manner] regulations does not turn on a judge's
agreement with the responsible decisionmaker concerning the most appropriate method for
promoting significant government interests" or the degree to which those interests should be
promoted.
It is undeniable that the city's substantial interest in limiting sound volume is served in a direct and
effective way by the requirement that the city's sound technician control the mixing board during
performances. Absent this requirement, the city's interest would have been served less well, as is
evidenced by the complaints about excessive volume generated by respondent's past concerts. The
alternative regulatory methods hypothesized by the Court of Appeals reflect nothing more than a
disagreement with the city over how much control of volume is appropriate or how that level of
control is to be achieved. The Court of Appeals erred in failing to defer to the city's reasonable
determination that its interest in controlling volume would be best served by requiring bandshell
performers to utilize the city's sound technician.
The city's second content-neutral justification for the guideline, that of ensuring "that the sound
amplification [is] sufficient to reach all listeners within the defined concert-ground," also supports
the city's choice of regulatory methods. By providing competent sound technicians and adequate
amplification equipment, the city eliminated the problems of inexperienced technicians and
insufficient sound volume that had plagued some bandshell performers in the past. No doubt this
concern is not applicable to respondent's concerts, which apparently were characterized by morethan-adequate sound amplification. But that fact is beside the point, for the validity of the regulation
depends on the relation it bears to the overall problem the government seeks to correct, not on the
extent to which it furthers the government's interests in an individual case. Here, the regulation's
effectiveness must be judged by considering all the varied groups that use the bandshell, and it is
valid so long as the city could reasonably have determined that its interests overall would be served
less effectively without the sound-amplification guideline than with it. Considering these proffered
justifications together, therefore, it is apparent that the guideline directly furthers the city's
legitimate governmental interests and that those interests would have been less well served in the
absence of the sound-amplification guideline.
Respondent nonetheless argues that the sound-amplification guideline is not narrowly tailored
because, by placing control of sound mix in the hands of the city's technician, the guideline sweeps
far more broadly than is necessary to further the city's legitimate concern with sound volume.
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According to respondent, the guideline "targets . . . more than the exact source of the `evil' it seeks to
remedy."
If the city's regulatory scheme had a substantial deleterious effect on the ability of bandshell
performers to achieve the quality of sound they desired, respondent's concerns would have
considerable force. The District Court found, however, that pursuant to city policy, the city's sound
technician "give[s] the sponsor autonomy with respect to the sound mix . . . [and] does all that he can
to accommodate the sponsor's desires in those regards." The court squarely rejected respondent's
claim that the city's "technician is not able properly to implement a sponsor's instructions as to
sound quality or mix," finding that "[n]o evidence to that effect was offered at trial; as noted, the
evidence is to the contrary." In view of these findings, which were not disturbed by the Court of
Appeals, we must conclude that the city's guideline has no material impact on any performer's ability
to exercise complete artistic control over sound quality. Since the guideline allows the city to control
volume without interfering with the performer's desired sound mix, it is not "substantially broader
than necessary" to achieve the city's legitimate ends and thus it satisfies the requirement of narrow
tailoring.
C
The final requirement, that the guideline leave open ample alternative channels of communication, is
easily met. Indeed, in this respect the guideline is far less restrictive than regulations we have upheld
in other cases, for it does not attempt to ban any particular manner or type of expression at a given
place or time. Rather, the guideline continues to permit expressive activity in the bandshell, and has
no effect on the quantity or content of that expression beyond regulating the extent of amplification.
That the city's limitations on volume may reduce to some degree the potential audience for
respondent's speech is of no consequence, for there has been no showing that the remaining avenues
of communication are inadequate.
III
The city's sound-amplification guideline is narrowly tailored to serve the substantial and contentneutral governmental interests of avoiding excessive sound volume and providing sufficient
amplification within the bandshell concert ground, and the guideline leaves open ample channels of
communication. Accordingly, it is valid under the First Amendment as a reasonable regulation of the
place and manner of expression. The judgment of the Court of Appeals is
Reversed.
JUSTICE BLACKMUN CONCURS IN THE RESULT [WITHOUT SEPARATE OPINION].
JUSTICE MARSHALL, WITH WHOM JUSTICE BRENNAN AND JUSTICE STEVENS JOIN, DISSENTING.
No one can doubt that government has a substantial interest in regulating the barrage of excessive
sound that can plague urban life. Unfortunately, the majority plays to our shared impatience with
loud noise to obscure the damage that it does to our First Amendment rights. Until today, a key
safeguard of free speech has been government's obligation to adopt the least intrusive restriction
necessary to achieve its goals. By abandoning the requirement that time, place, and manner
regulations must be narrowly tailored, the majority replaces constitutional scrutiny with mandatory
deference. The majority's willingness to give government officials a free hand in achieving their
policy ends extends so far as to permit, in this case, government control of speech in advance of its
dissemination. Because New York City's Use Guidelines (Guidelines) are not narrowly tailored to
serve its interest in regulating loud noise, and because they constitute an impermissible prior
restraint, I dissent.
I
The majority sets forth the appropriate standard for assessing the constitutionality of the Guidelines.
A time, place, and manner regulation of expression must be content neutral, serve a significant
government interest, be narrowly tailored to serve that interest, and leave open ample alternative
channels of communication. The Guidelines indisputably are content neutral as they apply to all
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bandshell users irrespective of the message of their music. They also serve government's significant
interest in limiting loud noise in public places by giving the city exclusive control of all sound
equipment.
My complaint is with the majority's serious distortion of the narrow tailoring requirement. Our cases
have not, as the majority asserts, "clearly" rejected a less-restrictive-alternative test. * * * In Schneider
[v. State (1939)], for example, the Court invalidated a ban on handbill distribution on public streets,
notwithstanding that it was the most effective means of serving government's legitimate interest in
minimizing litter, noise, and traffic congestion, and in preventing fraud. The Court concluded that
punishing those who actually litter or perpetrate frauds was a much less intrusive, albeit not quite as
effective, means to serve those significant interests.
The Court's past concern for the extent to which a regulation burdens speech more than would a
satisfactory alternative is noticeably absent from today's decision. The majority requires only that
government show that its interest cannot be served as effectively without the challenged restriction.
It will be enough, therefore, that the challenged regulation advances the government's interest only
in the slightest, for any differential burden on speech that results does not enter the calculus. Despite
its protestations to the contrary, the majority thus has abandoned the requirement that restrictions
on speech be narrowly tailored in any ordinary use of the phrase. Indeed, after today's decision, a city
could claim that bans on handbill distribution or on door-to-door solicitation are the most effective
means of avoiding littering and fraud, or that a ban on loudspeakers and radios in a public park is the
most effective means of avoiding loud noise. Logically extended, the majority's analysis would permit
such far-reaching restrictions on speech. * * *
Had the majority not abandoned the narrow tailoring requirement, the Guidelines could not possibly
survive constitutional scrutiny. Government's interest in avoiding loud sounds cannot justify giving
government total control over sound equipment, any more than its interest in avoiding litter could
justify a ban on handbill distribution. In both cases, government's legitimate goals can be effectively
and less intrusively served by directly punishing the evil - the persons responsible for excessive
sounds and the persons who litter. Indeed, the city concedes that it has an ordinance generally
limiting noise but has chosen not to enforce it.
By holding that the Guidelines are valid time, place, and manner restrictions, notwithstanding the
availability of less intrusive but effective means of controlling volume, the majority deprives the
narrow tailoring requirement of all meaning. Today, the majority enshrines efficacy but sacrifices
free speech.
II
The majority's conclusion that the city's exclusive control of sound equipment is constitutional is
deeply troubling for another reason. It places the Court's imprimatur on a quintessential prior
restraint, incompatible with fundamental First Amendment values. * * *
III
Today's decision has significance far beyond the world of rock music. Government no longer need
balance the effectiveness of regulation with the burdens on free speech. After today, government
need only assert that it is most effective to control speech in advance of its expression. Because such
a result eviscerates the First Amendment, I dissent.

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McCullen v. Coakley
573 U. S. ____ (2014)
ROBERTS, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH GINSBURG, BREYER, SOTOMAYOR, AND KAGAN, JJ.,
JOINED. SCALIA, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH KENNEDY AND THOMAS, JJ., JOINED.
ALITO, J., FILED AN OPINION CONCURRING IN THE JUDGMENT.
CHIEF JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT.
A Massachusetts statute makes it a crime to knowingly stand on a "public way or sidewalk" within 35
feet of an entrance or driveway to any place, other than a hospital, where abortions are performed.
Mass. Gen. Laws, ch. 266, §§120E½(a), (b) (West 2012). Petitioners are individuals who approach
and talk to women outside such facilities, attempting to dissuade them from having abortions. The
statute prevents petitioners from doing so near the facilities' entrances. The question presented is
whether the statute violates the First Amendment.
I
A
In 2000, the Massachusetts Legislature enacted the Massachusetts Reproductive Health Care
Facilities Act, Mass. Gen. Laws, ch. 266, §120E½ (West 2000). The law was designed to address
clashes between abortion opponents and advocates of abortion rights that were occurring outside
clinics where abortions were performed. The Act established a defined area with an 18-foot radius
around the entrances and driveways of such facilities. §120E½(b). Anyone could enter that area, but
once within it, no one (other than certain exempt individuals) could knowingly approach within six
feet of another person--unless that person consented--"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
person." A separate provision subjected to criminal punishment anyone who "knowingly obstructs,
detains, hinders, impedes or blocks another person's entry to or exit from a reproductive health care
facility." §120E½(e).
The statute was modeled on a similar Colorado law that this Court had upheld in Hill v. Colorado
(2000). Relying on Hill, the United States Court of Appeals for the First Circuit sustained the
Massachusetts statute against a First Amendment challenge.
By 2007, some Massachusetts legislators and law enforcement officials had come to regard the 2000
statute as inadequate. At legislative hearings, multiple witnesses recounted apparent violations of the
law. Massachusetts Attorney General Martha Coakley, for example, testified that protestors violated
the statute "on a routine basis." To illustrate this claim, she played a video depicting protestors
approaching patients and clinic staff within the buffer zones, ostensibly without the latter
individuals' consent. Clinic employees and volunteers also testified that protestors congregated near
the doors and in the driveways of the clinics, with the result that prospective patients occasionally
retreated from the clinics rather than try to make their way to the clinic entrances or parking lots.
Captain William B. Evans of the Boston Police Department, however, testified that his officers had
made "no more than five or so arrests" at the Planned Parenthood clinic in Boston and that what few
prosecutions had been brought were unsuccessful. Witnesses attributed the dearth of enforcement to
the difficulty of policing the six-foot no-approach zones. Captain Evans testified that the 18-foot
zones were so crowded with protestors that they resembled "a goalie's crease," making it hard to
determine whether a protestor had deliberately approached a patient or, if so, whether the patient
had consented. For similar reasons, Attorney General Coakley concluded that the six-foot noapproach zones were "unenforceable." What the police needed, she said, was a fixed buffer zone
around clinics that protestors could not enter. Captain Evans agreed, explaining that such a zone
would "make our job so much easier."

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To address these concerns, the Massachusetts Legislature amended the statute in 2007, replacing the
six-foot no-approach zones (within the 18-foot area) with a 35-foot fixed buffer zone from which
individuals are categorically excluded. The statute now provides:
"No person shall knowingly enter or remain on a public way or sidewalk adjacent to a reproductive
health care facility within a radius of 35 feet of any portion of an entrance, exit or driveway of a
reproductive health care facility or within the area within a rectangle created by extending the outside
boundaries of any entrance, exit or driveway of a reproductive health care facility in straight lines to
the point where such lines intersect the sideline of the street in front of such entrance, exit or
driveway."

Mass. Gen. Laws, ch. 266, §120E½(b) (West 2012).
A "reproductive health care facility," in turn, is defined as "a place, other than within or upon the
grounds of a hospital, where abortions are offered or performed." §120E½(a).
The 35-foot buffer zone applies only "during a facility's business hours," and the area must be
"clearly marked and posted." §120E½(c). In practice, facilities typically mark the zones with painted
arcs and posted signs on adjacent sidewalks and streets. A first violation of the statute is punishable
by a fine of up to $500, up to three months in prison, or both, while a subsequent offense is
punishable by a fine of between $500 and $5,000, up to two and a half years in prison, or both.
§120E½(d).
The Act exempts four classes of individuals: (1) "persons entering or leaving such facility"; (2)
"employees or agents of such facility acting within the scope of their employment"; (3) "law
enforcement, ambulance, firefighting, construction, utilities, public works and other municipal agents
acting within the scope of their employment"; and (4) "persons using the public sidewalk or street
right-of-way adjacent to such facility solely for the purpose of reaching a destination other than such
facility." §120E½(b)(1)-(4). The legislature also retained the separate provision from the 2000
version that proscribes the knowing obstruction of access to a facility. §120E½(e).
B
Some of the individuals who stand outside Massachusetts abortion clinics are fairly described as
protestors, who express their moral or religious opposition to abortion through signs and chants or,
in some cases, more aggressive methods such as face-to-face confrontation. Petitioners take a
different tack. They attempt to engage women approaching the clinics in what they call "sidewalk
counseling," which involves offering information about alternatives to abortion and help pursuing
those options. Petitioner Eleanor McCullen, for instance, will typically initiate a conversation this
way: "Good morning, may I give you my literature? Is there anything I can do for you? I'm available if
you have any questions." If the woman seems receptive, McCullen will provide additional information.
McCullen and the other petitioners consider it essential to maintain a caring demeanor, a calm tone
of voice, and direct eye contact during these exchanges. Such interactions, petitioners believe, are a
much more effective means of dissuading women from having abortions than confrontational
methods such as shouting or brandishing signs, which in petitioners' view tend only to antagonize
their intended audience. In unrefuted testimony, petitioners say they have collectively persuaded
hundreds of women to forgo abortions.
The buffer zones have displaced petitioners from their previous positions outside the clinics.
McCullen offers counseling outside a Planned Parenthood clinic in Boston, as do petitioners Jean
Zarrella and Eric Cadin. Petitioner Gregory Smith prays the rosary there. The clinic occupies its own
building on a street corner. Its main door is recessed into an open foyer, approximately 12 feet back
from the public sidewalk. Before the Act was amended to create the buffer zones, petitioners stood
near the entryway to the foyer. Now a buffer zone--marked by a painted arc and a sign--surrounds
the entrance. This zone extends 23 feet down the sidewalk in one direction, 26 feet in the other, and
outward just one foot short of the curb. The clinic's entrance adds another seven feet to the width of
the zone. The upshot is that petitioners are effectively excluded from a 56-foot-wide expanse of the
public sidewalk in front of the clinic.

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Petitioners Mark Bashour and Nancy Clark offer counseling and information outside a Planned
Parenthood clinic in Worcester. Unlike the Boston clinic, the Worcester clinic sits well back from the
public street and sidewalks. Patients enter the clinic in one of two ways. Those arriving on foot turn
off the public sidewalk and walk down a nearly 54-foot-long private walkway to the main entrance.
More than 85% of patients, however, arrive by car, turning onto the clinic's driveway from the street,
parking in a private lot, and walking to the main entrance on a private walkway.
Bashour and Clark would like to stand where the private walkway or driveway intersects the
sidewalk and offer leaflets to patients as they walk or drive by. But a painted arc extends from the
private walkway 35 feet down the sidewalk in either direction and outward nearly to the curb on the
opposite side of the street. Another arc surrounds the driveway's entrance, covering more than 93
feet of the sidewalk (including the width of the driveway) and extending across the street and nearly
six feet onto the sidewalk on the opposite side. Bashour and Clark must now stand either some
distance down the sidewalk from the private walkway and driveway or across the street.
Petitioner Cyril Shea stands outside a Planned Parenthood clinic in Springfield, which, like the
Worcester clinic, is set back from the public streets. Approximately 90% of patients arrive by car and
park in the private lots surrounding the clinic. Shea used to position himself at an entrance to one of
the five driveways leading to the parking lots. Painted arcs now surround the entrances, each
spanning approximately 100 feet of the sidewalk parallel to the street (again, including the width of
the driveways) and extending outward well into the street. Like petitioners at the Worcester clinic,
Shea now stands far down the sidewalk from the driveway entrances.
Petitioners at all three clinics claim that the buffer zones have considerably hampered their
counseling efforts. Although they have managed to conduct some counseling and to distribute some
literature outside the buffer zones--particularly at the Boston clinic--they say they have had many
fewer conversations and distributed many fewer leaflets since the zones went into effect.
The second statutory exemption allows clinic employees and agents acting within the scope of their
employment to enter the buffer zones. Relying on this exemption, the Boston clinic uses "escorts" to
greet women as they approach the clinic, accompanying them through the zones to the clinic
entrance. Petitioners claim that the escorts sometimes thwart petitioners' attempts to communicate
with patients by blocking petitioners from handing literature to patients, telling patients not to "pay
any attention" or "listen to" petitioners, and disparaging petitioners as "crazy."
C
In January 2008, petitioners sued Attorney General Coakley and other Commonwealth officials. They
sought to enjoin enforcement of the Act, alleging that it violates the First and Fourteenth
Amendments, both on its face and as applied to them. The District Court denied petitioners' facial
challenge after a bench trial based on a stipulated record.
The Court of Appeals for the First Circuit affirmed.
Relying extensively on its previous decisions upholding the 2000 version of the Act, the court upheld
the 2007 version as a reasonable "time, place, and manner" regulation under the test set forth in
Ward v. Rock Against Racism (1989). It also rejected petitioners' arguments that the Act was
substantially overbroad, void for vagueness, and an impermissible prior restraint.
The case then returned to the District Court, which held that the First Circuit's decision foreclosed all
but one of petitioners' as-applied challenges. After another bench trial, it denied the remaining asapplied challenge, finding that the Act left petitioners ample alternative channels of communication.
The Court of Appeals once again affirmed.
We granted certiorari.
II
By its very terms, the Massachusetts Act regulates access to "public way[s]" and "sidewalk[s]." Mass.
Gen. Laws, ch. 266, §120E½(b) (Supp. 2007). Such areas occupy a "special position in terms of First
Amendment protection" because of their historic role as sites for discussion and debate. These
places--which we have labeled "traditional public fora"--" 'have immemorially been held in trust for
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the use of the public and, time out of mind, have been used for purposes of assembly, communicating
thoughts between citizens, and discussing public questions.' "
It is no accident that public streets and sidewalks have developed as venues for the exchange of ideas.
Even today, they remain one of the few places where a speaker can be confident that he is not simply
preaching to the choir. With respect to other means of communication, an individual confronted with
an uncomfortable message can always turn the page, change the channel, or leave the Web site. Not
so on public streets and sidewalks. There, a listener often encounters speech he might otherwise tune
out. In light of the First Amendment's purpose "to preserve an uninhibited marketplace of ideas in
which truth will ultimately prevail," this aspect of traditional public fora is a virtue, not a vice.
In short, traditional public fora are areas that have historically been open to the public for speech
activities. Thus, even though the Act says nothing about speech on its face, there is no doubt--and
respondents do not dispute--that it restricts access to traditional public fora and is therefore subject
to First Amendment scrutiny. See Brief for Respondents 26 (although "[b]y its terms, the Act
regulates only conduct," it "incidentally regulates the place and time of protected speech").
Consistent with the traditionally open character of public streets and sidewalks, we have held that
the government's ability to restrict speech in such locations is "very limited." In particular, the
guiding First Amendment principle that the "government has no power to restrict expression
because of its message, its ideas, its subject matter, or its content" applies with full force in a
traditional public forum. As a general rule, in such a forum the government may not "selectively . . .
shield the public from some kinds of speech on the ground that they are more offensive than others."
We have, however, afforded the government somewhat wider leeway to regulate features of speech
unrelated to its content. "[E]ven in a public forum the government may impose reasonable
restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified
without reference to the content of the regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open ample alternative channels for
communication of the information.'" Ward.
While the parties agree that this test supplies the proper framework for assessing the
constitutionality of the Massachusetts Act, they disagree about whether the Act satisfies the test's
three requirements.
III
Petitioners contend that the Act is not content neutral for two independent reasons: First, they argue
that it discriminates against abortion-related speech because it establishes buffer zones only at
clinics that perform abortions. Second, petitioners contend that the Act, by exempting clinic
employees and agents, favors one viewpoint about abortion over the other. If either of these
arguments is correct, then the Act must satisfy strict scrutiny--that is, it must be the least restrictive
means of achieving a compelling state interest. Respondents do not argue that the Act can survive
this exacting standard.
Justice Scalia [concurring] objects to our decision to consider whether the statute is content based
and thus subject to strict scrutiny, given that we ultimately conclude that it is not narrowly tailored.
But we think it unexceptional to perform the first part of a multipart constitutional analysis first. The
content-neutrality prong of the Ward test is logically antecedent to the narrow-tailoring prong,
because it determines the appropriate level of scrutiny. It is not unusual for the Court to proceed
sequentially in applying a constitutional test, even when the preliminary steps turn out not to be
dispositive. See, e.g., Holder v. Humanitarian Law Project (2010) (concluding that a law was content
based even though it ultimately survived strict scrutiny).
The Court does sometimes assume, without deciding, that a law is subject to a less stringent level of
scrutiny, as we did earlier this Term in McCutcheon v. Federal Election Commission (2014) (plurality
opinion)[Chapter 8]. But the distinction between that case and this one seems clear: Applying any
standard of review other than intermediate scrutiny in McCutcheon--the standard that was assumed
to apply--would have required overruling a precedent. There is no similar reason to forgo the
ordinary order of operations in this case.
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At the same time, there is good reason to address content neutrality. In discussing whether the Act is
narrowly tailored, we identify a number of less-restrictive alternative measures that the
Massachusetts Legislature might have adopted. Some apply only at abortion clinics, which raises the
question whether those provisions are content neutral. While we need not (and do not) endorse any
of those measures, it would be odd to consider them as possible alternatives if they were
presumptively unconstitutional because they were content based and thus subject to strict scrutiny.
A
The Act applies only at a "reproductive health care facility," defined as "a place, other than within or
upon the grounds of a hospital, where abortions are offered or performed." Mass. Gen. Laws, ch. 266,
§120E½(a). Given this definition, petitioners argue, "virtually all speech affected by the Act is speech
concerning abortion," thus rendering the Act content based.
We disagree. To begin, the Act does not draw content-based distinctions on its face. Contrast Boos v.
Barry (1988) (ordinance prohibiting the display within 500 feet of a foreign embassy of any sign that
tends to bring the foreign government into " 'public odium' " or " 'public disrepute' "); Carey v. Brown
(1980) (statute prohibiting all residential picketing except "peaceful labor picketing"). The Act would
be content based if it required "enforcement authorities" to "examine the content of the message that
is conveyed to determine whether" a violation has occurred. But it does not. Whether petitioners
violate the Act "depends" not "on what they say," Humanitarian Law Project, but simply on where
they say it. Indeed, petitioners can violate the Act merely by standing in a buffer zone, without
displaying a sign or uttering a word.
It is true, of course, that by limiting the buffer zones to abortion clinics, the Act has the "inevitable
effect" of restricting abortion-related speech more than speech on other subjects. But a facially
neutral law does not become content based simply because it may disproportionately affect speech
on certain topics. On the contrary, "[a] regulation that serves purposes unrelated to the content of
expression is deemed neutral, even if it has an incidental effect on some speakers or messages but
not others." Ward. The question in such a case is whether the law is " 'justified without reference to
the content of the regulated speech.'".
The Massachusetts Act is. Its stated purpose is to "increase forthwith public safety at reproductive
health care facilities." Respondents have articulated similar purposes before this Court--namely,
"public safety, patient access to healthcare, and the unobstructed use of public sidewalks and
roadways." It is not the case [as Justice Scalia argues] that "[e]very objective indication shows that
the provision's primary purpose is to restrict speech that opposes abortion".
We have previously deemed the foregoing concerns to be content neutral. Obstructed access and
congested sidewalks are problems no matter what caused them. A group of individuals can obstruct
clinic access and clog sidewalks just as much when they loiter as when they protest abortion or
counsel patients.
To be clear, the Act would not be content neutral if it were concerned with undesirable effects that
arise from "the direct impact of speech on its audience" or "[l]isteners' reactions to speech." If, for
example, the speech outside Massachusetts abortion clinics caused offense or made listeners
uncomfortable, such offense or discomfort would not give the Commonwealth a content-neutral
justification to restrict the speech. All of the problems identified by the Commonwealth here,
however, arise irrespective of any listener's reactions. Whether or not a single person reacts to
abortion protestors' chants or petitioners' counseling, large crowds outside abortion clinics can still
compromise public safety, impede access, and obstruct sidewalks.
Petitioners do not really dispute that the Commonwealth's interests in ensuring safety and
preventing obstruction are, as a general matter, content neutral. But petitioners note that these
interests "apply outside every building in the State that hosts any activity that might occasion protest
or comment," not just abortion clinics. By choosing to pursue these interests only at abortion clinics,
petitioners argue, the Massachusetts Legislature evinced a purpose to "single[ ] out for regulation
speech about one particular topic: abortion."

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We cannot infer such a purpose from the Act's limited scope. The broad reach of a statute can help
confirm that it was not enacted to burden a narrower category of disfavored speech. See Kagan,
Private Speech, Public Purpose: The Role of Governmental Motive in First Amendment Doctrine, 63 U.
CHI. L. REV. 413, 451-452 (1996). At the same time, however, "States adopt laws to address the
problems that confront them. The First Amendment does not require States to regulate for problems
that do not exist." The Massachusetts Legislature amended the Act in 2007 in response to a problem
that was, in its experience, limited to abortion clinics. There was a record of crowding, obstruction,
and even violence outside such clinics. There were apparently no similar recurring problems
associated with other kinds of healthcare facilities, let alone with "every building in the State that
hosts any activity that might occasion protest or comment." In light of the limited nature of the
problem, it was reasonable for the Massachusetts Legislature to enact a limited solution. When
selecting among various options for combating a particular problem, legislatures should be
encouraged to choose the one that restricts less speech, not more.
Justice Scalia objects that the statute does restrict more speech than necessary, because "only one
[Massachusetts abortion clinic] is known to have been beset by the problems that the statute
supposedly addresses." But there are no grounds for inferring content-based discrimination here
simply because the legislature acted with respect to abortion facilities generally rather than
proceeding on a facility-by-facility basis. On these facts, the poor fit noted by Justice Scalia goes to the
question of narrow tailoring, which we consider below.
B
Petitioners also argue that the Act is content based because it exempts four classes of individuals,
Mass. Gen. Laws, ch. 266, §§120E½(b)(1)-(4), one of which comprises "employees or agents of [a
reproductive healthcare] facility acting within the scope of their employment." §120E½(b)(2). This
exemption, petitioners say, favors one side in the abortion debate and thus constitutes viewpoint
discrimination--an "egregious form of content discrimination," Rosenberger v. Rector and Visitors of
Univ. of Va. (1995). In particular, petitioners argue that the exemption allows clinic employees and
agents--including the volunteers who "escort" patients arriving at the Boston clinic--to speak inside
the buffer zones.
It is of course true that "an exemption from an otherwise permissible regulation of speech may
represent a governmental 'attempt to give one side of a debatable public question an advantage in
expressing its views to the people.'" City of Ladue v. Gilleo (1994). At least on the record before us,
however, the statutory exemption for clinic employees and agents acting within the scope of their
employment does not appear to be such an attempt.
There is nothing inherently suspect about providing some kind of exemption to allow individuals
who work at the clinics to enter or remain within the buffer zones. In particular, the exemption
cannot be regarded as simply a carve-out for the clinic escorts; it also covers employees such as the
maintenance worker shoveling a snowy sidewalk or the security guard patrolling a clinic entrance.
Given the need for an exemption for clinic employees, the "scope of their employment" qualification
simply ensures that the exemption is limited to its purpose of allowing the employees to do their jobs.
It performs the same function as the identical "scope of their employment" restriction on the
exemption for "law enforcement, ambulance, fire-fighting, construction, utilities, public works and
other municipal agents." §120E½(b)(3). Contrary to the suggestion of Justice Scalia, there is little
reason to suppose that the Massachusetts Legislature intended to incorporate a common law
doctrine developed for determining vicarious liability in tort when it used the phrase "scope of their
employment" for the wholly different purpose of defining the scope of an exemption to a criminal
statute. The limitation instead makes clear--with respect to both clinic employees and municipal
agents--that exempted individuals are allowed inside the zones only to perform those acts authorized
by their employers. There is no suggestion in the record that any of the clinics authorize their
employees to speak about abortion in the buffer zones. The "scope of their employment" limitation
thus seems designed to protect against exactly the sort of conduct that petitioners and Justice Scalia
fear.

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Petitioners did testify in this litigation about instances in which escorts at the Boston clinic had
expressed views about abortion to the women they were accompanying, thwarted petitioners'
attempts to speak and hand literature to the women, and disparaged petitioners in various ways. It is
unclear from petitioners' testimony whether these alleged incidents occurred within the buffer zones.
There is no viewpoint discrimination problem if the incidents occurred outside the zones because
petitioners are equally free to say whatever they would like in that area.
Even assuming the incidents occurred inside the zones, the record does not suggest that they
involved speech within the scope of the escorts' employment. If the speech was beyond the scope of
their employment, then each of the alleged incidents would violate the Act's express terms.
Petitioners' complaint would then be that the police were failing to enforce the Act equally against
clinic escorts. While such allegations might state a claim of official viewpoint discrimination, that
would not go to the validity of the Act. In any event, petitioners nowhere allege selective enforcement.
It would be a very different question if it turned out that a clinic authorized escorts to speak about
abortion inside the buffer zones. In that case, the escorts would not seem to be violating the Act
because the speech would be within the scope of their employment. The Act's exemption for clinic
employees would then facilitate speech on only one side of the abortion debate--a clear form of
viewpoint discrimination that would support an as-applied challenge to the buffer zone at that clinic.
But the record before us contains insufficient evidence to show that the exemption operates in this
way at any of the clinics, perhaps because the clinics do not want to doom the Act by allowing their
employees to speak about abortion within the buffer zones.4
We thus conclude that the Act is neither content nor viewpoint based and therefore need not be
analyzed under strict scrutiny.
IV
Even though the Act is content neutral, it still must be "narrowly tailored to serve a significant
governmental interest." Ward. The tailoring requirement does not simply guard against an
impermissible desire to censor. The government may attempt to suppress speech not only because it
disagrees with the message being expressed, but also for mere convenience. Where certain speech is
associated with particular problems, silencing the speech is sometimes the path of least resistance.
But by demanding a close fit between ends and means, the tailoring requirement prevents the
government from too readily "sacrific[ing] speech for efficiency."
For a content-neutral time, place, or manner regulation to be narrowly tailored, it must not "burden
substantially more speech than is necessary to further the government's legitimate interests." Ward.
Such a regulation, unlike a content-based restriction of speech, "need not be the least restrictive or
least intrusive means of" serving the government's interests. But the government still "may not
regulate expression in such a manner that a substantial portion of the burden on speech does not
serve to advance its goals."
A
As noted, respondents claim that the Act promotes "public safety, patient access to healthcare, and
the unobstructed use of public sidewalks and roadways." Petitioners do not dispute the significance
of these interests. We have, moreover, previously recognized the legitimacy of the government's
interests in "ensuring public safety and order, promoting the free flow of traffic on streets and
sidewalks, protecting property rights, and protecting a woman's freedom to seek pregnancy-related
services." The buffer zones clearly serve these interests.
At the same time, the buffer zones impose serious burdens on petitioners' speech. At each of the
three Planned Parenthood clinics where petitioners attempt to counsel patients, the zones carve out
a significant portion of the adjacent public sidewalks, pushing petitioners well back from the clinics'
entrances and driveways. The zones thereby compromise petitioners' ability to initiate the close,
personal conversations that they view as essential to "sidewalk counseling."
For example, in uncontradicted testimony, McCullen explained that she often cannot distinguish
patients from passersby outside the Boston clinic in time to initiate a conversation before they enter
the buffer zone. And even when she does manage to begin a discussion outside the zone, she must
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stop abruptly at its painted border, which she believes causes her to appear "untrustworthy" or
"suspicious." Given these limitations, McCullen is often reduced to raising her voice at patients from
outside the zone--a mode of communication sharply at odds with the compassionate message she
wishes to convey. Clark gave similar testimony about her experience at the Worcester clinic.
These burdens on petitioners' speech have clearly taken their toll. Although McCullen claims that she
has persuaded about 80 women not to terminate their pregnancies since the 2007 amendment, she
also says that she reaches "far fewer people" than she did before the amendment. Zarrella reports an
even more precipitous decline in her success rate: She estimated having about 100 successful
interactions over the years before the 2007 amendment, but not a single one since. And as for the
Worcester clinic, Clark testified that "only one woman out of 100 will make the effort to walk across
[the street] to speak with [her]."
The buffer zones have also made it substantially more difficult for petitioners to distribute literature
to arriving patients. As explained, because petitioners in Boston cannot readily identify patients
before they enter the zone, they often cannot approach them in time to place literature near their
hands--the most effective means of getting the patients to accept it. In Worcester and Springfield, the
zones have pushed petitioners so far back from the clinics' driveways that they can no longer even
attempt to offer literature as drivers turn into the parking lots. In short, the Act operates to deprive
petitioners of their two primary methods of communicating with patients.
The Court of Appeals and respondents are wrong to downplay these burdens on petitioners' speech.
As the Court of Appeals saw it, the Constitution does not accord "special protection" to close
conversations or "handbilling." But while the First Amendment does not guarantee a speaker the
right to any particular form of expression, some forms--such as normal conversation and leafletting
on a public sidewalk--have historically been more closely associated with the transmission of ideas
than others.
In the context of petition campaigns, we have observed that "one-on-one communication" is "the
most effective, fundamental, and perhaps economical avenue of political discourse." And "handing
out leaflets in the advocacy of a politically controversial viewpoint . . . is the essence of First
Amendment expression"; "[n]o form of speech is entitled to greater constitutional protection." When
the government makes it more difficult to engage in these modes of communication, it imposes an
especially significant First Amendment burden.
Respondents also emphasize that the Act does not prevent petitioners from engaging in various
forms of "protest"--such as chanting slogans and displaying signs--outside the buffer zones. That
misses the point. Petitioners are not protestors. They seek not merely to express their opposition to
abortion, but to inform women of various alternatives and to provide help in pursuing them.
Petitioners believe that they can accomplish this objective only through personal, caring, consensual
conversations. And for good reason: It is easier to ignore a strained voice or a waving hand than a
direct greeting or an outstretched arm. While the record indicates that petitioners have been able to
have a number of quiet conversations outside the buffer zones, respondents have not refuted
petitioners' testimony that the conversations have been far less frequent and far less successful since
the buffer zones were instituted. It is thus no answer to say that petitioners can still be "seen and
heard" by women within the buffer zones. If all that the women can see and hear are vociferous
opponents of abortion, then the buffer zones have effectively stifled petitioners' message.
Finally, respondents suggest that, at the Worcester and Springfield clinics, petitioners are prevented
from communicating with patients not by the buffer zones but by the fact that most patients arrive by
car and park in the clinics' private lots. It is true that the layout of the two clinics would prevent
petitioners from approaching the clinics' doorways, even without the buffer zones. But petitioners do
not claim a right to trespass on the clinics' property. They instead claim a right to stand on the public
sidewalks by the driveway as cars turn into the parking lot. Before the buffer zones, they could do so.
Now they must stand a substantial distance away. The Act alone is responsible for that restriction on
their ability to convey their message.

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B
1
The buffer zones burden substantially more speech than necessary to achieve the Commonwealth's
asserted interests. At the outset, we note that the Act is truly exceptional: Respondents and their
amici identify no other State with a law that creates fixed buffer zones around abortion clinics. That
of course does not mean that the law is invalid. It does, however, raise concern that the
Commonwealth has too readily forgone options that could serve its interests just as well, without
substantially burdening the kind of speech in which petitioners wish to engage.
That is the case here. The Commonwealth's interests include ensuring public safety outside abortion
clinics, preventing harassment and intimidation of patients and clinic staff, and combating deliberate
obstruction of clinic entrances. The Act itself contains a separate provision, subsection (e)-unchallenged by petitioners--that prohibits much of this conduct. That provision subjects to criminal
punishment "[a]ny person who knowingly obstructs, detains, hinders, impedes or blocks another
person's entry to or exit from a reproductive health care facility." Mass. Gen. Laws, ch. 266,
§120E½(e). If Massachusetts determines that broader prohibitions along the same lines are
necessary, it could enact legislation similar to the federal Freedom of Access to Clinic Entrances Act
of 1994 (FACE Act), 18 U. S. C. §248(a)(1), which subjects to both criminal and civil penalties anyone
who "by force or threat of force or by physical obstruction, intentionally injures, intimidates or
interferes with or attempts to injure, intimidate or interfere with any person because that person is
or has been, or in order to intimidate such person or any other person or any class of persons from,
obtaining or providing reproductive health services." Some dozen other States have done so. If the
Commonwealth is particularly concerned about harassment, it could also consider an ordinance such
as the one adopted in New York City that not only prohibits obstructing access to a clinic, but also
makes it a crime "to follow and harass another person within 15 feet of the premises of a
reproductive health care facility." N. Y. C. Admin. Code §8-803(a)(3) (2014).
The Commonwealth points to a substantial public safety risk created when protestors obstruct
driveways leading to the clinics. That is, however, an example of its failure to look to less intrusive
means of addressing its concerns. Any such obstruction can readily be addressed through existing
local ordinances. See, e.g., Worcester, Mass., Revised Ordinances of 2008, ch. 12, §25(b) ("No person
shall stand, or place any obstruction of any kind, upon any street, sidewalk or crosswalk in such a
manner as to obstruct a free passage for travelers thereon"); Boston, Mass., Municipal Code, ch. 1641.2(d) (2013) ("No person shall solicit while walking on, standing on or going into any street or
highway used for motor vehicle travel, or any area appurtenant thereto (including medians, shoulder
areas, bicycle lanes, ramps and exit ramps)").
All of the foregoing measures are, of course, in addition to available generic criminal statutes
forbidding assault, breach of the peace, trespass, vandalism, and the like.
In addition, subsection (e) of the Act, the FACE Act, and the New York City anti-harassment ordinance
are all enforceable not only through criminal prosecutions but also through public and private civil
actions for injunctions and other equitable relief. See Mass. Gen. Laws §120E½(f); 18 U. S. C.
§248(c)(1); N. Y. C. Admin. Code §§8-804, 8-805. We have previously noted the First Amendment
virtues of targeted injunctions as alternatives to broad, prophylactic measures. Such an injunction
"regulates the activities, and perhaps the speech, of a group," but only "because of the group's past
actions in the context of a specific dispute between real parties." Moreover, given the equitable
nature of injunctive relief, courts can tailor a remedy to ensure that it restricts no more speech than
necessary. In short, injunctive relief focuses on the precise individuals and the precise conduct
causing a particular problem. The Act, by contrast, categorically excludes non-exempt individuals
from the buffer zones, unnecessarily sweeping in innocent individuals and their speech.
The Commonwealth also asserts an interest in preventing congestion in front of abortion clinics.
According to respondents, even when individuals do not deliberately obstruct access to clinics, they
can inadvertently do so simply by gathering in large numbers. But the Commonwealth could address
that problem through more targeted means. Some localities, for example, have ordinances that
require crowds blocking a clinic entrance to disperse when ordered to do so by the police, and that
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forbid the individuals to reassemble within a certain distance of the clinic for a certain period. We
upheld a similar law forbidding three or more people “to congregate within 500 feet of [a foreign
embassy], and refuse to disperse after having been ordered so to do by the police.”
And to the extent the Commonwealth argues that even these types of laws are ineffective, it has
another problem. The portions of the record that respondents cite to support the anticongestion
interest pertain mainly to one place at one time: the Boston Planned Parenthood clinic on Saturday
mornings. Respondents point us to no evidence that individuals regularly gather at other clinics, or at
other times in Boston, in sufficiently large groups to obstruct access. For a problem shown to arise
only once a week in one city at one clinic, creating 35-foot buffer zones at every clinic across the
Commonwealth is hardly a narrowly tailored solution.
The point is not that Massachusetts must enact all or even any of the proposed measures discussed
above. The point is instead that the Commonwealth has available to it a variety of approaches that
appear capable of serving its interests, without excluding individuals from areas historically open for
speech and debate.
2
Respondents have but one reply: "We have tried other approaches, but they do not work."
Respondents emphasize the history in Massachusetts of obstruction at abortion clinics, and the
Commonwealth's allegedly failed attempts to combat such obstruction with injunctions and
individual prosecutions. They also point to the Commonwealth's experience under the 2000 version
of the Act, during which the police found it difficult to enforce the six-foot no-approach zones given
the "frenetic" activity in front of clinic entrances. According to respondents, this history shows that
Massachusetts has tried less restrictive alternatives to the buffer zones, to no avail.
We cannot accept that contention. Although respondents claim that Massachusetts "tried other laws
already on the books," they identify not a single prosecution brought under those laws within at least
the last 17 years. And while they also claim that the Commonwealth "tried injunctions," , the last
injunctions they cite date to the 1990s. In short, the Commonwealth has not shown that it seriously
undertook to address the problem with less intrusive tools readily available to it. Nor has it shown
that it considered different methods that other jurisdictions have found effective.
Respondents contend that the alternatives we have discussed suffer from two defects: First, given the
"widespread" nature of the problem, it is simply not "practicable" to rely on individual prosecutions
and injunctions. But far from being "widespread," the problem appears from the record to be limited
principally to the Boston clinic on Saturday mornings. Moreover, by their own account, the police
appear perfectly capable of singling out lawbreakers. The legislative testimony preceding the 2007
Act revealed substantial police and video monitoring at the clinics, especially when large gatherings
were anticipated. Captain Evans testified that his officers are so familiar with the scene outside the
Boston clinic that they "know all the players down there." And Attorney General Coakley relied on
video surveillance to show legislators conduct she thought was "clearly against the law." If
Commonwealth officials can compile an extensive record of obstruction and harassment to support
their preferred legislation, we do not see why they cannot do the same to support injunctions and
prosecutions against those who might deliberately flout the law.
The second supposed defect in the alternatives we have identified is that laws like subsection (e) of
the Act and the federal FACE Act require a showing of intentional or deliberate obstruction,
intimidation, or harassment, which is often difficult to prove. As Captain Evans predicted in his
legislative testimony, fixed buffer zones would "make our job so much easier."
Of course they would. But that is not enough to satisfy the First Amendment. To meet the
requirement of narrow tailoring, the government must demonstrate that alternative measures that
burden substantially less speech would fail to achieve the government's interests, not simply that the
chosen route is easier. A painted line on the sidewalk is easy to enforce, but the prime objective of the
First Amendment is not efficiency. In any case, we do not think that showing intentional obstruction
is nearly so difficult in this context as respondents suggest. To determine whether a protestor

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intends to block access to a clinic, a police officer need only order him to move. If he refuses, then
there is no question that his continued conduct is knowing or intentional.
For similar reasons, respondents' reliance on our decision in Burson v. Freeman (1992) is misplaced.
There, we upheld a state statute that established 100-foot buffer zones outside polling places on
election day within which no one could display or distribute campaign materials or solicit votes. We
approved the buffer zones as a valid prophylactic measure, noting that existing "[i]ntimidation and
interference laws fall short of serving a State's compelling interests because they 'deal with only the
most blatant and specific attempts' to impede elections." Such laws were insufficient because "[v]oter
intimidation and election fraud are . . . difficult to detect." Burson. Obstruction of abortion clinics and
harassment of patients, by contrast, are anything but subtle.
We also noted in Burson that under state law, "law enforcement officers generally are barred from
the vicinity of the polls to avoid any appearance of coercion in the electoral process," with the result
that "many acts of interference would go undetected." Not so here. Again, the police maintain a
significant presence outside Massachusetts abortion clinics. The buffer zones in Burson were justified
because less restrictive measures were inadequate. Respondents have not shown that to be the case
here.
Given the vital First Amendment interests at stake, it is not enough for Massachusetts simply to say
that other approaches have not worked.
Petitioners wish to converse with their fellow citizens about an important subject on the public
streets and sidewalks--sites that have hosted discussions about the issues of the day throughout
history. Respondents assert undeniably significant interests in maintaining public safety on those
same streets and sidewalks, as well as in preserving access to adjacent healthcare facilities. But here
the Commonwealth has pursued those interests by the extreme step of closing a substantial portion
of a traditional public forum to all speakers. It has done so without seriously addressing the problem
through alternatives that leave the forum open for its time-honored purposes. The Commonwealth
may not do that consistent with the First Amendment.
The judgment of the Court of Appeals for the First Circuit is reversed, and the case is remanded for
further proceedings consistent with this opinion.
It is so ordered.
JUSTICE SCALIA, WITH WHOM JUSTICE KENNEDY AND JUSTICE THOMAS JOIN, CONCURRING IN THE JUDGMENT.
Today's opinion carries forward this Court's practice of giving abortion-rights advocates a pass when
it comes to suppressing the free-speech rights of their opponents. There is an entirely separate,
abridged edition of the First Amendment applicable to speech against abortion. See, e.g., Hill v.
Colorado (2000); Madsen v. Women's Health Center, Inc. (1994).
The second half of the Court's analysis today, invalidating the law at issue because of inadequate
"tailoring," is certainly attractive to those of us who oppose an abortion-speech edition of the First
Amendment. But think again. This is an opinion that has Something for Everyone, and the more
significant portion continues the onward march of abortion-speech-only jurisprudence. That is the
first half of the Court's analysis, which concludes that a statute of this sort is not content based and
hence not subject to so-called strict scrutiny. The Court reaches out to decide that question
unnecessarily--or at least unnecessarily insofar as legal analysis is concerned.
I disagree with the Court's dicta (Part III) and hence see no reason to opine on its holding (Part IV).
I. The Court's Content-Neutrality Discussion Is Unnecessary
The gratuitous portion of today's opinion is Part III, which concludes--in seven pages of the purest
dicta--that subsection (b) of the Massachusetts Reproductive Health Care Facilities Act is not
specifically directed at speech opposing (or even concerning) abortion and hence need not meet the
strict-scrutiny standard applicable to content-based speech regulations. Inasmuch as Part IV holds
that the Act is unconstitutional because it does not survive the lesser level of scrutiny associated with
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content-neutral "time, place, and manner" regulations, there is no principled reason for the majority
to decide whether the statute is subject to strict scrutiny. * * *
II. The Statute Is Content Based and Fails Strict Scrutiny
Having eagerly volunteered to take on the level-of-scrutiny question, the Court provides the wrong
answer. Petitioners argue for two reasons that subsection (b) articulates a content-based speech
restriction--and that we must therefore evaluate it through the lens of strict scrutiny.
A. Application to Abortion Clinics Only
* * * It blinks reality to say, as the majority does, that a blanket prohibition on the use of streets and
sidewalks where speech on only one politically controversial topic is likely to occur--and where that
speech can most effectively be communicated--is not content based. Would the Court exempt from
strict scrutiny a law banning access to the streets and sidewalks surrounding the site of the
Republican National Convention? Or those used annually to commemorate the 1965 Selma-toMontgomery civil rights marches? Or those outside the Internal Revenue Service? Surely not. * * *
B. Exemption for Abortion-Clinic Employees or Agents
Petitioners contend that the Act targets speech opposing abortion (and thus constitutes a
presumptively invalid viewpoint-discriminatory restriction) for another reason as well: It exempts
"employees or agents" of an abortion clinic "acting within the scope of their employment,"
§120E½(b)(2).
It goes without saying that "[g]ranting waivers to favored speakers (or . . . denying them to
disfavored speakers) would of course be unconstitutional." Thomas v. Chicago Park Dist. (2002). The
majority opinion sets forth a two-part inquiry for assessing whether a regulation is content based,
but when it comes to assessing the exemption for abortion-clinic employees or agents, the Court
forgets its own teaching. Its opinion jumps right over the prong that asks whether the provision
"draw[s] . . . distinctions on its face," and instead proceeds directly to the purpose-related prong, see ,
asking whether the exemption "represent[s] a governmental attempt to give one side of a debatable
public question an advantage in expressing its views to the people." I disagree with the majority's
negative answer to that question, but that is beside the point if the text of the statute--whatever its
purposes might have been--"license[s] one side of a debate to fight freestyle, while requiring the
other to follow Marquis of Queensberry rules." R. A. V. v. St. Paul (1992).
Is there any serious doubt that abortion-clinic employees or agents "acting within the scope of their
employment" near clinic entrances may--indeed, often will--speak in favor of abortion ("You are
doing the right thing")? Or speak in opposition to the message of abortion opponents--saying, for
example, that "this is a safe facility" to rebut the statement that it is not? The Court's contrary
assumption is simply incredible. And the majority makes no attempt to establish the further
necessary proposition that abortion-clinic employees and agents do not engage in nonspeech
activities directed to the suppression of antiabortion speech by hampering the efforts of counselors
to speak to prospective clients. Are we to believe that a clinic employee sent out to "escort"
prospective clients into the building would not seek to prevent a counselor like Eleanor McCullen
from communicating with them? He could pull a woman away from an approaching counselor, cover
her ears, or make loud noises to drown out the counselor's pleas.
The Court points out that the exemption may allow into the speech-free zones clinic employees other
than escorts, such as "the maintenance worker shoveling a snowy sidewalk or the security guard
patrolling a clinic entrance." I doubt that Massachusetts legislators had those people in mind, but
whether they did is in any event irrelevant. Whatever other activity is permitted, so long as the
statute permits speech favorable to abortion rights while excluding antiabortion speech, it
discriminates on the basis of viewpoint. * * *
C. Conclusion
In sum, the Act should be reviewed under the strict-scrutiny standard applicable to content-based
legislation. That standard requires that a regulation represent "the least restrictive means" of

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furthering "a compelling Government interest." Respondents do not even attempt to argue that
subsection (b) survives this test. * * *
JUSTICE ALITO, CONCURRING IN THE JUDGMENT (OMITTED).

Notes

1.
Is the similarity of the “time, place, or manner” standard of review to the expressive conduct
standard of United States v. O’Brien sensible? Would you suggest a higher standard for one or the
other?
2.
The government practice of establishing “designated protest areas” or “free speech zones” is
generally analyzed as a time, place, or manner restriction. Do such practices undermine the notion of
“public forum”?
3.
An ordinance bans all registered sex offenders from entering a municipal library. How would
you analyze the ban using time, place, or manner and fora doctrines? What result? See Doe v. City of
Albuquerque, 667 F.3d 1111 (10th Cir. 2012).
4.
McCullen v. Coakley is a unanimous but highly contentious decision in large part because of
the disagreement over whether the Massachusetts statute should be analyzed as a content (or even
viewpoint) regulation or a “time, place, or manner” regulation. How do you think the concurring
Justices would view the statutes directed at funeral protests as described in the next note.

Note: Funeral Protests

In Snyder v. Phelps, 562 U.S. 443 (2011), the Court considered a jury verdict against Fred Phelps,
certain members of his family, and his organization, the Westboro Baptist Church, for intentional
infliction of emotional distress on behalf of Albert Snyder, the father of Marine Lance Corporal
Matthew Snyder. The Westboro Baptist Church has become well known for its picketing of various
funerals, including those of soldiers. On the day of the memorial service for Snyder, the Westboro
congregation members picketed on public land adjacent to public streets near the Maryland State
House, the United States Naval Academy, and Matthew Snyder's funeral. The Westboro picketers
carried signs that were largely the same at all three locations. They stated, for instance: “God Hates
the USA/Thank God for 9/11,” “America is Doomed,” “Don't Pray for the USA,” “Thank God for IEDs,”
“Thank God for Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys,” “God Hates Fags,” “You're Going to
Hell,” and “God Hates You.”
In an opinion by Chief Justice Roberts, the Court found that the picketing was protected by the First
Amendment and a damages awarded precluded. The Court stated
Westboro conducted its picketing peacefully on matters of public concern at a public place adjacent to
a public street. Such space occupies a “special position in terms of First Amendment protection.” “[W]e
have repeatedly referred to public streets as the archetype of a traditional public forum,” noting that
“ ‘[t]ime out of mind’ public streets and sidewalks have been used for public assembly and debate.”

However, the Court noted:
Westboro's choice of where and when to conduct its picketing is not beyond the Government's
regulatory reach—it is “subject to reasonable time, place, or manner restrictions” that are consistent
with the standards announced in this Court's precedents. Maryland now has a law imposing
restrictions on funeral picketing, Md. Crim. Law Code Ann. § 10–205 (Lexis Supp.2010), as do 43 other
States and the Federal Government. See Brief for American Legion as Amicus Curiae 18–19, n. 2 (listing
statutes). To the extent these laws are content neutral, they raise very different questions from the tort
verdict at issue in this case. Maryland's law, however, was not in effect at the time of the events at issue
here, so we have no occasion to consider how it might apply to facts such as those before us, or
whether it or other similar regulations are constitutional.

But are such statutes “content neutral”? Consider this typical ordinance, from Manchester, Missouri.
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Manchester Code § 210.264 provides:
Funeral Protests Prohibited, When—Citation of Law—Definition
A. Every citizen may freely speak, write and publish the person's sentiments on all subjects, being
responsible for the abuse of the right, but no person shall picket or engage in other protest activities,
nor shall any association or corporation cause picketing or other protest activities to occur within
three hundred (300) feet of any residence, cemetery, funeral home, church, synagogue, or other
establishment during or within one (1) hour before or one (1) hour after the conducting of any actual
funeral or burial service at that place.
B. As used in this Section, “other protest activities” means any action that is disruptive or undertaken
to disrupt or disturb a funeral or burial service.
C. As used in this Section, “funeral ” and “burial service ” mean the ceremonies and memorial services
held in conjunction with the burial or cremation of the dead, but this Section does not apply to
processions while they are in transit beyond any three hundred (300) foot zone that is established
under Subsection (A) above.

The Eighth Circuit in Phelps-Roper v. City of Manchester, Mo., 697 F.3d 678, 695 (8th Cir. 2012),
relying in large part on Hill v. Colorado (discussed in McCullen v. Coakley), upheld the Manchester
ordinance, finding that:
Manchester's ordinance is content neutral. A person may be regulated under the ordinance for
disrupting or attempting to disrupt a funeral or burial service with speech concerning any topic or
viewpoint. The ordinance makes “no reference to the content of the speech” and is only a “regulation of
the places where some speech may occur.” [citing Hill v. Colorado]. It simply limits when and where
picketing and other protest activities may occur in relation to a funeral or burial service without regard
for the speaker's viewpoint.

Applying the standard of review for time, place, or manner restrictions, the court concluded
that the Phelps–Ropers have not shown in their facial challenge to Manchester's amended ordinance
that the city has imposed unconstitutional limits on the time, place, and manner of their picketing.
Manchester only limits picketing and other protest activities within 300 feet of a funeral or burial
service while it is occurring and for one hour before and after, and it survives First Amendment
scrutiny because it serves a significant government interest, it is narrowly tailored, and it leaves open
ample alternative channels for communication.

Packingham v. North Carolina
582 U.S. ___ (2017)

KENNEDY, J., DELIVERED THE OPINION OF THE COURT, IN WHICH GINSBURG, BREYER, SOTOMAYOR, AND KAGAN, JJ.,
JOINED. ALITO, J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH ROBERTS, C. J., AND THOMAS, J.,
JOINED. GORSUCH, J., TOOK NO PART IN THE CONSIDERATION OR DECISION OF THE CASE.
JUSTICE KENNEDY DELIVERED THE OPINION OF THE COURT.
In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain
access to a number of websites, including commonplace social media websites like Facebook and
Twitter. The question presented is whether that law is permissible under the First Amendment’s
Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth
Amendment.

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I
A
North Carolina law makes it a felony for a registered sex offender “to access a commercial social
networking Web site where the sex offender knows that the site permits minor children to become
members or to create or maintain personal Web pages.” N. C. Gen. Stat. Ann. §§14–202.5(a), (e)
(2015). A “commercial social networking Web site” is defined as a website that meets four criteria.
First, it “[i]s operated by a person who derives revenue from membership fees, advertising, or other
sources related to the operation of the Web site.” §14–202.5(b).
Second, it “[f]acilitates the social introduction between two or more persons for the purposes of
friendship, meeting other persons, or information exchanges.” Third, it “[a]llows users to create Web
pages or personal profiles that contain information such as the name or nickname of the user,
photographs placed on the personal Web page by the user, other personal information about the user,
and links to other personal Web pages on the commercial social networking Web site of friends or
associates of the user that may be accessed by other users or visitors to the Web site.” And fourth, it
“[p]rovides users or visitors . . . mechanisms to communicate with other users, such as a message
board, chat room, electronic mail, or instant messenger.”
The statute includes two express exemptions. The statutory bar does not extend to websites that
“[p]rovid[e] only one of the following discrete services: photo-sharing, electronic mail, instant
messenger, or chat room or message board platform.” §14–202.5(c)(1). The law also does not
encompass websites that have as their “primary purpose the facilitation of commercial transactions
involving goods or services between [their] members or visitors.” §14–202.5(c)(2).
According to sources cited to the Court, §14–202.5 applies to about 20,000 people in North Carolina
and the State has prosecuted over 1,000 people for violating it.
B
In 2002, petitioner Lester Gerard Packingham—then a 21-year-old college student—had sex with a
13-year-old girl. He pleaded guilty to taking indecent liberties with a child. Because this crime
qualifies as “an offense against a minor,” petitioner was required to register as a sex offender—a
status that can endure for 30 years or more. See §14–208.6A; see §14–208.7(a). As a registered sex
offender, petitioner was barred under §14–202.5 from gaining access to commercial social
networking sites. In 2010, a state court dismissed a traffic ticket against petitioner. In response, he
logged on to Facebook.com and posted the following statement on his personal profile:
“Man God is Good! How about I got so much favor they dismissed the ticket before court even started?
No fine, no court cost, no nothing spent. . . . . .Praise be to GOD, WOW! Thanks JESUS!”

At the time, a member of the Durham Police Department was investigating registered sex offenders
who were thought to be violating §14–202.5. The officer noticed that a “‘J.R. Gerrard’” had posted the
statement quoted above. By checking court records, the officer discovered that a traffic citation for
petitioner had been dismissed around the time of the post. Evidence obtained by search warrant
confirmed the officer’s suspicions that petitioner was J. R. Gerrard.
Petitioner was indicted by a grand jury for violating §14–202.5. The trial court denied his motion to
dismiss the indictment on the grounds that the charge against him violated the First Amendment.
Petitioner was ultimately convicted and given a suspended prison sentence. At no point during trial
or sentencing did the State allege that petitioner contacted a minor—or committed any other illicit
act—on the Internet.
Petitioner appealed to the Court of Appeals of North Carolina. That court struck down §14–202.5 on
First Amendment grounds, explaining that the law is not narrowly tailored to serve the State’s
legitimate interest in protecting minors from sexual abuse. Rather, the law “arbitrarily burdens all
registered sex offenders by preventing a wide range of communication and expressive activity
unrelated to achieving its purported goal.” The North Carolina Supreme Court reversed, concluding
that the law is “constitutional in all respects.” Among other things, the court explained that the law is
“carefully tailored . . . to prohibit registered sex offenders from accessing only those Web sites that
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allow them the opportunity to gather information about minors.” The court also held that the law
leaves open adequate alternative means of communication because it permits petitioner to gain
access to websites that the court believed perform the “same or similar” functions as social media,
such as the Paula Deen Network and the website for the local NBC affiliate. Two justices dissented.
They stated that the law impermissibly “creates a criminal prohibition of alarming breadth and
extends well beyond the evils the State seeks to combat.”
The Court granted certiorari and now reverses.
II
A fundamental principle of the First Amendment is that all persons have access to places where they
can speak and listen, and then, after reflection, speak and listen once more. The Court has sought to
protect the right to speak in this spatial context. A basic rule, for example, is that a street or a park is
a quintessential forum for the exercise of First Amendment rights. See Ward v. Rock Against Racism
(1989). Even in the modern era, these places are still essential venues for public gatherings to
celebrate some views, to protest others, or simply to learn and inquire.
While in the past there may have been difficulty in identifying the most important places (in a spatial
sense) for the exchange of views, today the answer is clear. It is cyberspace—the “vast democratic
forums of the Internet” in general, Reno v. American Civil Liberties Union (1997), and social media in
particular. Seven in ten American adults use at least one Internet social networking service. Brief for
Electronic Frontier Foundation et al. as Amici Curiae 5–6. One of the most popular of these sites is
Facebook, the site used by petitioner leading to his conviction in this case. According to sources cited
to the Court in this case, Facebook has 1.79 billion active users. Id., at 6. This is about three times the
population of North America.
Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.” Reno. On
Facebook, for example, users can debate religion and politics with their friends and neighbors or
share vacation photos. On LinkedIn, users can look for work, advertise for employees, or review tips
on entrepreneurship. And on Twitter, users can petition their elected representatives and otherwise
engage with them in a direct manner. Indeed, Governors in all 50 States and almost every Member of
Congress have set up accounts for this purpose. See Brief for Electronic Frontier Foundation 15–16.
In short, social media users employ these websites to engage in a wide array of protected First
Amendment activity on topics “as diverse as human thought.” Reno.
The nature of a revolution in thought can be that, in its early stages, even its participants may be
unaware of it. And when awareness comes, they still may be unable to know or foresee where its
changes lead. Cf. D. HAWKE, BENJAMIN RUSH: REVOLUTIONARY GADFLY 341 (1971) (quoting Rush as
observing: “‘The American war is over; but this is far from being the case with the American
revolution. On the contrary, nothing but the first act of the great drama is closed’”). So too here. While
we now may be coming to the realization that the Cyber Age is a revolution of historic proportions,
we cannot appreciate yet its full dimensions and vast potential to alter how we think, express
ourselves, and define who we want to be. The forces and directions of the Internet are so new, so
protean, and so far reaching that courts must be conscious that what they say today might be
obsolete tomorrow.
This case is one of the first this Court has taken to address the relationship between the First
Amendment and the modern Internet. As a result, the Court must exercise extreme caution before
suggesting that the First Amendment provides scant protection for access to vast networks in that
medium.
III
This background informs the analysis of the North Carolina statute at issue. Even making the
assumption that the statute is content neutral and thus subject to intermediate scrutiny, the
provision cannot stand. In order to survive intermediate scrutiny, a law must be “narrowly tailored
to serve a significant governmental interest.” McCullen v. Coakley (2014). In other words, the law
must not “burden substantially more speech than is necessary to further the government’s legitimate
interests.” Id.
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For centuries now, inventions heralded as advances in human progress have been exploited by the
criminal mind. New technologies, all too soon, can become instruments used to commit serious
crimes. The railroad is one example, see M. CRICHTON, THE GREAT TRAIN ROBBERY, p. xv (1975), and the
telephone another, see 18 U. S. C. §1343. So it will be with the Internet and social media.
There is also no doubt that, as this Court has recognized, “[t]he sexual abuse of a child is a most
serious crime and an act repugnant to the moral instincts of a decent people.” Ashcroft v. Free Speech
Coalition (2002). And it is clear that a legislature “may pass valid laws to protect children” and other
victims of sexual assault “from abuse.” See id; accord, New York v. Ferber (1982) [Chapter 10]. The
government, of course, need not simply stand by and allow these evils to occur. But the assertion of a
valid governmental interest “cannot, in every context, be insulated from all constitutional
protections.” Stanley v. Georgia (1969) [Chapter 10].
It is necessary to make two assumptions to resolve this case. First, given the broad wording of the
North Carolina statute at issue, it might well bar access not only to commonplace social media
websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com. The
Court need not decide the precise scope of the statute. It is enough to assume that the law applies (as
the State concedes it does) to social networking sites “as commonly understood”—that is, websites
like Facebook, LinkedIn, and Twitter. Second, this opinion should not be interpreted as barring a
State from enacting more specific laws than the one at issue. Specific criminal acts are not protected
speech even if speech is the means for their commission. See Brandenburg v. Ohio (1969) ( per
curiam). Though the issue is not before the Court, it can be assumed that the First Amendment
permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in
conduct that often presages a sexual crime, like contacting a minor or using a website to gather
information about a minor. Specific laws of that type must be the State’s first resort to ward off the
serious harm that sexual crimes inflict. (Of importance, the troubling fact that the law imposes severe
restrictions on persons who already have served their sentence and are no longer subject to the
supervision of the criminal justice system is also not an issue before the Court.)
Even with these assumptions about the scope of the law and the State’s interest, the statute here
enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media
allows users to gain access to information and communicate with one another about it on any subject
that might come to mind. By prohibiting sex offenders from using those websites, North Carolina
with one broad stroke bars access to what for many are the principal sources for knowing current
events, checking ads for employment, speaking and listening in the modern public square, and
otherwise exploring the vast realms of human thought and knowledge. These websites can provide
perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard.
They allow a person with an Internet connection to “become a town crier with a voice that resonates
farther than it could from any soapbox.” Reno.
In sum, to foreclose access to social media altogether is to prevent the user from engaging in the
legitimate exercise of First Amendment rights. It is unsettling to suggest that only a limited set of
websites can be used even by persons who have completed their sentences. Even convicted
criminals—and in some instances especially convicted criminals—might receive legitimate benefits
from these means for access to the world of ideas, in particular if they seek to reform and to pursue
lawful and rewarding lives.
IV
The primary response from the State is that the law must be this broad to serve its preventative
purpose of keeping convicted sex offenders away from vulnerable victims. The State has not,
however, met its burden to show that this sweeping law is necessary or legitimate to serve that
purpose. See McCullen.
It is instructive that no case or holding of this Court has approved of a statute as broad in its reach.
The closest analogy that the State has cited is Burson v. Freeman (1992). There, the Court upheld a
prohibition on campaigning within 100 feet of a polling place. That case gives little or no support to
the State. The law in Burson was a limited restriction that, in a context consistent with constitutional
tradition, was enacted to protect another fundamental right—the right to vote. The restrictions there
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were far less onerous than those the State seeks to impose here. The law in Burson meant only that
the last few seconds before voters entered a polling place were “their own, as free from interference
as possible.” And the Court noted that, were the buffer zone larger than 100 feet, it “could effectively
become an impermissible burden” under the First Amendment. The better analogy to this case is
Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc. (1987), where the Court struck down an
ordinance prohibiting any “First Amendment activities” at Los Angeles International Airport because
the ordinance covered all manner of protected, nondisruptive behavior including “talking and
reading, or the wearing of campaign buttons or symbolic clothing.” If a law prohibiting “all protected
expression” at a single airport is not constitutional, it follows with even greater force that the State
may not enact this complete bar to the exercise of First Amendment rights on websites integral to the
fabric of our modern society and culture.
* * *
It is well established that, as a general rule, the Government “may not suppress lawful speech as the
means to suppress unlawful speech.” Ashcroft v. Free Speech Coalition. That is what North Carolina
has done here. Its law must be held invalid.
The judgment of the North Carolina Supreme Court is reversed, and the case is remanded for further
proceedings not inconsistent with this opinion.
It is so ordered.
JUSTICE GORSUCH TOOK NO PART IN THE CONSIDERATION OR DECISION OF THIS CASE.
JUSTICE ALITO, WITH WHOM THE CHIEF JUSTICE AND JUSTICE THOMAS JOIN, CONCURRING IN THE JUDGMENT.
I
[extensive discussion omitted]
II
While I thus agree with the Court that the particular law at issue in this case violates the First
Amendment, I am troubled by the Court’s loose rhetoric. After noting that “a street or a park is a
quintessential forum for the exercise of First Amendment rights,” the Court states that “cyberspace”
and “social media in particular” are now “the most important places (in a spatial sense) for the
exchange of views.” The Court declines to explain what this means with respect to free speech law,
and the Court holds no more than that the North Carolina law fails the test for content-neutral “time,
place, and manner” restrictions. But if the entirety of the internet or even just “social media” sites are
the 21st century equivalent of public streets and parks, then States may have little ability to restrict
the sites that may be visited by even the most dangerous sex offenders. May a State preclude an adult
previously convicted of molesting children from visiting a dating site for teenagers? Or a site where
minors communicate with each other about personal problems? The Court should be more attentive
to the implications of its rhetoric for, contrary to the Court’s suggestion, there are important
differences between cyberspace and the physical world.
I will mention a few that are relevant to internet use by sex offenders. First, it is easier for parents to
monitor the physical locations that their children visit and the individuals with whom they speak in
person than it is to monitor their internet use. Second, if a sex offender is seen approaching children
or loitering in a place frequented by children, this conduct may be observed by parents, teachers, or
others. Third, the internet offers an unprecedented degree of anonymity and easily permits a wouldbe molester to assume a false identity. The Court is correct that we should be cautious in applying
our free speech precedents to the internet. Cyberspace is different from the physical world, and if it is
true, as the Court believes, that “we cannot appreciate yet” the “full dimensions and vast potential” of
“the Cyber Age,” we should proceed circumspectly, taking one step at a time. It is regrettable that the
Court has not heeded its own admonition of caution.

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IV. Signage Regulations: Content or TPM?
City Council v. Taxpayers for Vincent
466 U.S. 789 (1984)
STEVENS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH BURGER, C. J., AND WHITE, POWELL, REHNQUIST, AND
O'CONNOR, JJ., JOINED. BRENNAN, J., FILED A DISSENTING OPINION, IN WHICH MARSHALL AND BLACKMUN, JJ., JOINED.
JUSTICE STEVENS DELIVERED THE OPINION OF THE COURT.
Section 28.04 of the Los Angeles Municipal Code prohibits the posting of signs on public property.
The question presented is whether that prohibition abridges appellees' freedom of speech within the
meaning of the First Amendment.
In March 1979, Roland Vincent was a candidate for election to the Los Angeles City Council. A group
of his supporters known as Taxpayers for Vincent (Taxpayers) entered into a contract with a political
sign service company known as Candidates' Outdoor Graphics Service (COGS) to fabricate and post
signs with Vincent's name on them. COGS produced 15- by 44-inch cardboard signs and attached
them to utility poles at various locations by draping them over crosswires which support the poles
and stapling the cardboard together at the bottom. The signs' message was: "Roland Vincent - City
Council."
Acting under the authority of 28.04 of the Municipal Code, employees of the city's Bureau of Street
Maintenance routinely removed all posters attached to utility poles and similar objects covered by
the ordinance, including the COGS signs. The weekly sign removal report covering the period March
1-March 7, 1979, indicated that among the 1,207 signs removed from public property during that
week, 48 were identified as "Roland Vincent" signs. Most of the other signs identified in that report
were apparently commercial in character.
On March 12, 1979, Taxpayers and COGS filed this action in the United States District Court for the
Central District of California, naming the city, the Director of the Bureau of Street Maintenance, and
members of the City Council as defendants. They sought an injunction against enforcement of the
ordinance as well as compensatory and punitive damages. After engaging in discovery, the parties
filed cross-motions for summary judgment on the issue of liability. The District Court entered
findings of fact, concluded that the ordinance was constitutional, and granted the City's motion.
The District Court's findings do not purport to resolve any disputed issue of fact; instead, they
summarize material in the record that appears to be uncontroverted. The findings recite that the
principal responsibility for locating and removing signs and handbills posted in violation of 28.04 is
assigned to the Street Use Inspection Division of the city's Bureau of Street Maintenance. The court
found that both political and nonpolitical signs are illegally posted and that they are removed
"without regard to their content."
After explaining the purposes for which the City's zoning code had been enacted, and noting that the
prohibition in 28.04 furthered those purposes, the District Court found that the large number of
illegally posted signs "constitute a clutter and visual blight." With specific reference to the posting of
the COGS signs on utility pole crosswires, the District Court found that such posting "would add
somewhat to the blight and inevitably would encourage greatly increased posting in other
unauthorized and unsightly places . . . ."
In addition, the District Court found that placing signs on utility poles creates a potential safety
hazard, and that other violations of 28.04 "block views and otherwise cause traffic hazards." Finally,
the District Court concluded that the sign prohibition does not prevent taxpayers or COGS "from
exercising their free speech rights on the public streets and in other public places; they remain free to

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picket and parade, to distribute handbills, to carry signs and to post their signs and handbills on their
automobiles and on private property with the permission of the owners thereof."
In its conclusions of law the District Court characterized the esthetic and economic interests in
improving the beauty of the City "by eliminating clutter and visual blight" as "legitimate and
compelling." Those interests, together with the interest in protecting the safety of workmen who
must scale utility poles and the interest in eliminating traffic hazards, adequately supported the sign
prohibition as a reasonable regulation affecting the time, place, and manner of expression.
The Court of Appeals did not question any of the District Court's findings of fact, but it rejected some
of its conclusions of law. The Court of Appeals reasoned that the ordinance was presumptively
unconstitutional because significant First Amendment interests were involved. It noted that the City
had advanced three separate justifications for the ordinance, but concluded that none of them was
sufficient. The Court of Appeals held that the City had failed to make a sufficient showing that its
asserted interests in esthetics and preventing visual clutter were substantial because it had not
offered to demonstrate that the City was engaged in a comprehensive effort to remove other
contributions to an unattractive environment in commercial and industrial areas. The City's interest
in minimizing traffic hazards was rejected because it was readily apparent that no substantial traffic
problems would result from permitting the posting of certain kinds of signs on many of the publicly
owned objects covered by the ordinance. Finally, while acknowledging that a flat prohibition against
signs on certain objects such as fire hydrants and traffic signals would be a permissible method of
preventing interference with the intended use of public property, and that regulation of the size,
design, and construction of posters, or of the method of removing them, might be reasonable, the
Court of Appeals concluded that the City had not justified its total ban.
In its appeal to this Court the City challenges the Court of Appeals' holding that 28.04 is
unconstitutional on its face. Taxpayers and COGS defend that holding and also contend that the
ordinance is unconstitutional as applied to their posting of political campaign signs on the crosswires
of utility poles. There are two quite different ways in which a statute or ordinance may be considered
invalid "on its face" - either because it is unconstitutional in every conceivable application, or
because it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally
"overbroad." We shall analyze the "facial" challenges to the ordinance, and then address its specific
application to appellees.
I
[The Court rejected a facial overbreadth argument]. In light of these arguments, appellees' attack on
the ordinance is basically a challenge to the ordinance as applied to their activities. We therefore
limit our analysis of the constitutionality of the ordinance to the concrete case before us, and now
turn to the arguments that it is invalid as applied to the expressive activity of Taxpayers and COGS.
II
The ordinance prohibits appellees from communicating with the public in a certain manner, and
presumably diminishes the total quantity of their communication in the City. The application of the
ordinance to appellees' expressive activities surely raises the question whether the ordinance
abridges their "freedom of speech" within the meaning of the First Amendment, and appellees
certainly have standing to challenge the application of the ordinance to their own expressive
activities. "But to say the ordinance presents a First Amendment issue is not necessarily to say that it
constitutes a First Amendment violation." Metromedia, Inc. v. San Diego (1981) (Burger, C. J.,
dissenting). It has been clear since this Court's earliest decisions concerning the freedom of speech
that the state may sometimes curtail speech when necessary to advance a significant and legitimate
state interest. Schenck v. United States (1919).
* * * [T]here are some purported interests - such as a desire to suppress support for a minority party
or an unpopular cause, or to exclude the expression of certain points of view from the marketplace of
ideas - that are so plainly illegitimate that they would immediately invalidate the rule. The general
principle that has emerged from this line of cases is that the First Amendment forbids the
government to regulate speech in ways that favor some viewpoints or ideas at the expense of others.
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That general rule has no application to this case. For there is not even a hint of bias or censorship in
the City's enactment or enforcement of this ordinance. There is no claim that the ordinance was
designed to suppress certain ideas that the City finds distasteful or that it has been applied to
appellees because of the views that they express. The text of the ordinance is neutral - indeed it is
silent - concerning any speaker's point of view, and the District Court's findings indicate that it has
been applied to appellees and others in an evenhanded manner.
In United States v. O'Brien (1968), the Court set forth the appropriate framework for reviewing a
viewpoint-neutral regulation of this kind: "[A] government regulation is sufficiently justified if it is
within the constitutional power of the Government; if it furthers an important or substantial
governmental interest; if the governmental interest is unrelated to the suppression of free
expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than
is essential to the furtherance of that interest."
It is well settled that the state may legitimately exercise its police powers to advance esthetic values.
***
In this case, taxpayers and COGS do not dispute that it is within the constitutional power of the City to
attempt to improve its appearance, or that this interest is basically unrelated to the suppression of
ideas. Therefore the critical inquiries are whether that interest is sufficiently substantial to justify the
effect of the ordinance on appellees' expression, and whether that effect is no greater than necessary
to accomplish the City's purpose.
III
* * * We reaffirm the conclusion of the majority in Metromedia [v. San Diego (1981)]. The problem
addressed by this ordinance - the visual assault on the citizens of Los Angeles presented by an
accumulation of signs posted on public property - constitutes a significant substantive evil within the
City's power to prohibit. "[T]he city's interest in attempting to preserve [or improve] the quality of
urban life is one that must be accorded high respect." Young v. American Mini Theatres, Inc. (1976)
(plurality opinion).
IV
We turn to the question whether the scope of the restriction on appellees' expressive activity is
substantially broader than necessary to protect the City's interest in eliminating visual clutter. The
incidental restriction on expression which results from the City's attempt to accomplish such a
purpose is considered justified as a reasonable regulation of the time, place, or manner of expression
if it is narrowly tailored to serve that interest. The District Court found that the signs prohibited by
the ordinance do constitute visual clutter and blight. By banning these signs, the City did no more
than eliminate the exact source of the evil it sought to remedy. The plurality wrote in Metromedia: "It
is not speculative to recognize that bill-boards by their very nature, wherever located and however
constructed, can be perceived as an `esthetic harm.'" The same is true of posted signs.
It is true that the esthetic interest in preventing the kind of litter that may result from the
distribution of leaflets on the public streets and sidewalks cannot support a prophylactic prohibition
against the citizen's exercise of that method of expressing his views. In Schneider v. State (1939), the
Court held that ordinances that absolutely prohibited handbilling on the streets were invalid. The
Court explained that cities could adequately protect the esthetic interest in avoiding litter without
abridging protected expression merely by penalizing those who actually litter. Taxpayers contend
that their interest in supporting Vincent's political campaign, which affords them a constitutional
right to distribute brochures and leaflets on the public streets of Los Angeles, provides equal support
for their asserted right to post temporary signs on objects adjacent to the streets and sidewalks. They
argue that the mere fact that their temporary signs "add somewhat" to the city's visual clutter is
entitled to no more weight than the temporary unsightliness of discarded handbills and the
additional street-cleaning burden that were insufficient to justify the ordinances reviewed in
Schneider.
The rationale of Schneider is inapposite in the context of the instant case. There, individual citizens
were actively exercising their right to communicate directly with potential recipients of their
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message. The conduct continued only while the speakers or distributors remained on the scene. In
this case, appellees posted dozens of temporary signs throughout an area where they would remain
unattended until removed. As the Court expressly noted in Schneider, the First Amendment does not
"deprive a municipality of power to enact regulations against throwing literature broadcast in the
streets. Prohibition of such conduct would not abridge the constitutional liberty since such activity
bears no necessary relationship to the freedom to speak, write, print or distribute information or
opinion." In short, there is no constitutional impediment to "the punishment of those who actually
throw papers on the streets." A distributor of leaflets has no right simply to scatter his pamphlets in
the air - or to toss large quantities of paper from the window of a tall building or a low flying airplane.
Characterizing such an activity as a separate means of communication does not diminish the State's
power to condemn it as a public nuisance. The right recognized in Schneider is to tender the written
material to the passerby who may reject it or accept it, and who thereafter may keep it, dispose of it
properly, or incur the risk of punishment if he lets it fall to the ground. One who is rightfully on a
street open to the public "carries with him there as elsewhere the constitutional right to express his
views in an orderly fashion. This right extends to the communication of ideas by handbills and
literature as well as by the spoken word."
With respect to signs posted by appellees, however, it is the tangible medium of expressing the
message that has the adverse impact on the appearance of the landscape. In Schneider, an
antilittering statute could have addressed the substantive evil without prohibiting expressive activity,
whereas application of the prophylactic rule actually employed gratuitously infringed upon the right
of an individual to communicate directly with a willing listener. Here, the substantive evil - visual
blight - is not merely a possible byproduct of the activity, but is created by the medium of expression
itself. In contrast to Schneider, therefore, the application of the ordinance in this case responds
precisely to the substantive problem which legitimately concerns the City. The ordinance curtails no
more speech than is necessary to accomplish its purpose.
V
The Court of Appeals accepted the argument that a prohibition against the use of unattractive signs
cannot be justified on esthetic grounds if it fails to apply to all equally unattractive signs wherever
they might be located. A comparable argument was categorically rejected in Metromedia. In that case
it was argued that the city could not simultaneously permit billboards to be used for onsite
advertising and also justify the prohibition against offsite advertising on esthetic grounds, since both
types of advertising were equally unattractive. The Court held, however, that the city could
reasonably conclude that the esthetic interest was outweighed by the countervailing interest in one
kind of advertising even though it was not outweighed by the other. So here, the validity of the
esthetic interest in the elimination of signs on public property is not compromised by failing to
extend the ban to private property. The private citizen's interest in controlling the use of his own
property justifies the disparate treatment. Moreover, by not extending the ban to all locations, a
significant opportunity to communicate by means of temporary signs is preserved, and private
property owners' esthetic concerns will keep the posting of signs on their property within
reasonable bounds. Even if some visual blight remains, a partial, content-neutral ban may
nevertheless enhance the City's appearance.
Furthermore, there is no finding that in any area where appellees seek to place signs, there are
already so many signs posted on adjacent private property that the elimination of appellees' signs
would have an inconsequential effect on the esthetic values with which the City is concerned. There
is simply no predicate in the findings of the District Court for the conclusion that the prohibition
against the posting of appellees' signs fails to advance the City's esthetic interest.
VI
While the First Amendment does not guarantee the right to employ every conceivable method of
communication at all times and in all places, a restriction on expressive activity may be invalid if the
remaining modes of communication are inadequate. The Los Angeles ordinance does not affect any
individual's freedom to exercise the right to speak and to distribute literature in the same place
where the posting of signs on public property is prohibited. To the extent that the posting of signs on
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public property has advantages over these forms of expression, there is no reason to believe that
these same advantages cannot be obtained through other means. To the contrary, the findings of the
District Court indicate that there are ample alternative modes of communication in Los Angeles.
Notwithstanding appellees' general assertions in their brief concerning the utility of political posters,
nothing in the findings indicates that the posting of political posters on public property is a uniquely
valuable or important mode of communication, or that appellees' ability to communicate effectively
is threatened by ever-increasing restrictions on expression.
VII
Appellees suggest that the public property covered by the ordinance either is itself a "public forum"
for First Amendment purposes, or at least should be treated in the same respect as the "public
forum" in which the property is located. "Traditional public forum property occupies a special
position in terms of First Amendment protection," and appellees maintain that their sign-posting
activities are entitled to this protection.
In Hague v. CIO (1939) (opinion of Roberts, J.), it was recognized: "Wherever the title of streets and
parks may rest, they have immemorially been held in trust for the use of the public, and, time out of
mind, have been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions. Such use of the streets and public places has, from ancient times, been a
part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the
United States to use the streets and parks for communication of views on national questions may be
regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination
to the general comfort and convenience, and in consonance with peace and good order; but it must
not, in the guise of regulation, be abridged or denied."
Appellees' reliance on the public forum doctrine is misplaced. They fail to demonstrate the existence
of a traditional right of access respecting such items as utility poles for purposes of their
communication comparable to that recognized for public streets and parks, and it is clear that "the
First Amendment does not guarantee access to government property simply because it is owned or
controlled by the government." Rather, the "existence of a right of access to public property and the
standard by which limitations upon such a right must be evaluated differ depending on the character
of the property at issue." Perry Education Assn. v. Perry Local Educators' Assn. (1983).
Lampposts can of course be used as signposts, but the mere fact that government property can be
used as a vehicle for communication does not mean that the Constitution requires such uses to be
permitted. Public property which is not by tradition or designation a forum for public
communication may be reserved by the State "for its intended purposes, communicative or otherwise,
as long as the regulation on speech is reasonable and not an effort to suppress expression merely
because public officials oppose the speaker's view." Perry Education Assn. v. Perry Local Educators'
Assn. Given our analysis of the legitimate interest served by the ordinance, its viewpoint neutrality,
and the availability of alternative channels of communication, the ordinance is certainly
constitutional as applied to appellees under this standard.
VIII
Finally, Taxpayers and COGS argue that Los Angeles could have written an ordinance that would have
had a less severe effect on expressive activity such as theirs, by permitting the posting of any kind of
sign at any time on some types of public property, or by making a variety of other more specific
exceptions to the ordinance: for signs carrying certain types of messages (such as political campaign
signs), for signs posted during specific time periods (perhaps during political campaigns), for
particular locations (perhaps for areas already cluttered by an excessive number of signs on adjacent
private property), or for signs meeting design specifications (such as size or color). Plausible public
policy arguments might well be made in support of any such exception, but it by no means follows
that it is therefore constitutionally mandated, nor is it clear that some of the suggested exceptions
would even be constitutionally permissible. For example, even though political speech is entitled to
the fullest possible measure of constitutional protection, there are a host of other communications
that command the same respect. An assertion that "Jesus Saves," that "Abortion is Murder," that
every woman has the "Right to Choose," or that "Alcohol Kills," may have a claim to a constitutional
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exemption from the ordinance that is just as strong as "Roland Vincent - City Council." To create an
exception for appellees' political speech and not these other types of speech might create a risk of
engaging in constitutionally forbidden content discrimination. Moreover, the volume of permissible
postings under such a mandated exemption might so limit the ordinance's effect as to defeat its aim
of combating visual blight.
Any constitutionally mandated exception to the City's total prohibition against temporary signs on
public property would necessarily rest on a judicial determination that the City's traffic control and
safety interests had little or no applicability within the excepted category, and that the City's
interests in esthetics are not sufficiently important to justify the prohibition in that category. But the
findings of the District Court provide no basis for questioning the substantiality of the esthetic
interest at stake, or for believing that a uniquely important form of communication has been
abridged for the categories of expression engaged in by Taxpayers and COGS. Therefore, we accept
the City's position that it may decide that the esthetic interest in avoiding "visual clutter" justifies a
removal of signs creating or increasing that clutter. The findings of the District Court that COGS signs
add to the problems addressed by the ordinance and, if permitted to remain, would encourage others
to post additional signs, are sufficient to justify application of the ordinance to these appellees.
As recognized in Metromedia, if the city has a sufficient basis for believing that billboards are traffic
hazards and are unattractive, "then obviously the most direct and perhaps the only effective
approach to solving the problems they create is to prohibit them." As is true of billboards, the
esthetic interests that are implicated by temporary signs are presumptively at work in all parts of the
city, including those where appellees posted their signs, and there is no basis in the record in this
case upon which to rebut that presumption. These interests are both psychological and economic.
The character of the environment affects the quality of life and the value of property in both
residential and commercial areas. We hold that on this record these interests are sufficiently
substantial to justify this content-neutral, impartially administered prohibition against the posting of
appellees' temporary signs on public property and that such an application of the ordinance does not
create an unacceptable threat to the "profound national commitment to the principle that debate on
public issues should be uninhibited, robust, and wide-open." New York Times Co. v. Sullivan, (1964).
The judgment of the Court of Appeals is reversed, and the case is remanded to that Court.
It is so ordered.
JUSTICE BRENNAN, WITH WHOM JUSTICE MARSHALL AND JUSTICE BLACKMUN JOIN, DISSENTING. [OMITTED]

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Reed v. Town of Gilbert
576 U. S. ____ (2015)
THOMAS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ROBERTS, C. J., AND SCALIA, KENNEDY, ALITO, AND
SOTOMAYOR, JJ., JOINED. ALITO, J., FILED A CONCURRING OPINION, IN WHICH KENNEDY AND SOTOMAYOR, JJ., JOINED.
BREYER, J., FILED AN OPINION CONCURRING IN THE JUDGMENT. KAGAN, J., FILED AN OPINION CONCURRING IN THE
JUDGMENT, IN WHICH GINSBURG AND BREYER, JJ., JOINED
JUSTICE THOMAS DELIVERED THE OPINION OF THE COURT.
The town of Gilbert, Arizona (or Town), has adopted a comprehensive code governing the manner in
which people may display outdoor signs. Gilbert, Ariz., Land Development Code (Sign Code or Code),
ch. 1, §4.402 (2005).1 The Sign Code identifies various categories of signs based on the type of
information they convey, then subjects each category to different restrictions. One of the categories is
"Temporary Directional Signs Relating to a Qualifying Event," loosely defined as signs directing the
public to a meeting of a nonprofit group. §4.402(P). The Code imposes more stringent restrictions on
these signs than it does on signs conveying other messages. We hold that these provisions are
content-based regulations of speech that cannot survive strict scrutiny.
I
A
The Sign Code prohibits the display of outdoor signs anywhere within the Town without a permit,
but it then exempts 23 categories of signs from that requirement. These exemptions include
everything from bazaar signs to flying banners. Three categories of exempt signs are particularly
relevant here.
The first is "Ideological Sign[s]." This category includes any "sign communicating a message or ideas
for noncommercial purposes that is not a Construction Sign, Directional Sign, Temporary Directional
Sign Relating to a Qualifying Event, Political Sign, Garage Sale Sign, or a sign owned or required by a
governmental agency." Of the three categories discussed here, the Code treats ideological signs most
favorably, allowing them to be up to 20 square feet in area and to be placed in all "zoning districts"
without time limits.
The second category is "Political Sign[s]." This includes any "temporary sign designed to influence
the outcome of an election called by a public body." The Code treats these signs less favorably than
ideological signs. The Code allows the placement of political signs up to 16 square feet on residential
property and up to 32 square feet on nonresidential property, undeveloped municipal property, and
"rights-of-way." These signs may be displayed up to 60 days before a primary election and up to 15
days following a general election.
The third category is "Temporary Directional Signs Relating to a Qualifying Event." This includes any
"Temporary Sign intended to direct pedestrians, motorists, and other passersby to a 'qualifying
event.' " A "qualifying event" is defined as any "assembly, gathering, activity, or meeting sponsored,
arranged, or promoted by a religious, charitable, community service, educational, or other similar
non-profit organization." Ibid. The Code treats temporary directional signs even less favorably than
political signs. Temporary directional signs may be no larger than six square feet. They may be placed
on private property or on a public right-of-way, but no more than four signs may be placed on a
single property at any time. And, they may be displayed no more than 12 hours before the "qualifying
event" and no more than 1 hour afterward.
B
Petitioners Good News Community Church (Church) and its pastor, Clyde Reed, wish to advertise the
time and location of their Sunday church services. The Church is a small, cash-strapped entity that
owns no building, so it holds its services at elementary schools or other locations in or near the Town.
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In order to inform the public about its services, which are held in a variety of different locations, the
Church began placing 15 to 20 temporary signs around the Town, frequently in the public right-ofway abutting the street. The signs typically displayed the Church's name, along with the time and
location of the upcoming service. Church members would post the signs early in the day on Saturday
and then remove them around midday on Sunday. The display of these signs requires little money
and manpower, and thus has proved to be an economical and effective way for the Church to let the
community know where its services are being held each week.
This practice caught the attention of the Town's Sign Code compliance manager, who twice cited the
Church for violating the Code. The first citation noted that the Church exceeded the time limits for
displaying its temporary directional signs. The second citation referred to the same problem, along
with the Church's failure to include the date of the event on the signs. Town officials even confiscated
one of the Church's signs, which Reed had to retrieve from the municipal offices.
Reed contacted the Sign Code Compliance Department in an attempt to reach an accommodation. His
efforts proved unsuccessful. The Town's Code compliance manager informed the Church that there
would be "no leniency under the Code" and promised to punish any future violations.
Shortly thereafter, petitioners filed a complaint in the United States District Court for the District of
Arizona, arguing that the Sign Code abridged their freedom of speech in violation of the First and
Fourteenth Amendments. The District Court denied the petitioners' motion for a preliminary
injunction. The Court of Appeals for the Ninth Circuit affirmed, holding that the Sign Code's provision
regulating temporary directional signs did not regulate speech on the basis of content. It reasoned
that, even though an enforcement officer would have to read the sign to determine what provisions
of the Sign Code applied to it, the " 'kind of cursory examination' " that would be necessary for an
officer to classify it as a temporary directional sign was "not akin to an officer synthesizing the
expressive content of the sign." It then remanded for the District Court to determine in the first
instance whether the Sign Code's distinctions among temporary directional signs, political signs, and
ideological signs nevertheless constituted a content-based regulation of speech.
On remand, the District Court granted summary judgment in favor of the Town. The Court of Appeals
again affirmed, holding that the Code's sign categories were content neutral. The court concluded
that "the distinctions between Temporary Directional Signs, Ideological Signs, and Political Signs . . .
are based on objective factors relevant to Gilbert's creation of the specific exemption from the permit
requirement and do not otherwise consider the substance of the sign." Relying on this Court's
decision in Hill v. Colorado (2000), the Court of Appeals concluded that the Sign Code is content
neutral. As the court explained, "Gilbert did not adopt its regulation of speech because it disagreed
with the message conveyed" and its "interests in regulat[ing] temporary signs are unrelated to the
content of the sign." Accordingly, the court believed that the Code was "content-neutral as that term
[has been] defined by the Supreme Court." In light of that determination, it applied a lower level of
scrutiny to the Sign Code and concluded that the law did not violate the First Amendment.
We granted certiorari, and now reverse.
II
A
The First Amendment, applicable to the States through the Fourteenth Amendment, prohibits the
enactment of laws "abridging the freedom of speech." U. S. Const., Amdt. 1. Under that Clause, a
government, including a municipal government vested with state authority, "has no power to restrict
expression because of its message, its ideas, its subject matter, or its content." Police Dept. of Chicago
v. Mosley (1972). Content-based laws--those that target speech based on its communicative content-are presumptively unconstitutional and may be justified only if the government proves that they are
narrowly tailored to serve compelling state interests. R. A. V. v. St. Paul (1992); Simon & Schuster, Inc.
v. Members of N. Y. State Crime Victims Bd. (1991).
Government regulation of speech is content based if a law applies to particular speech because of the
topic discussed or the idea or message expressed. E.g., Sorrell v. IMS Health, Inc. (2011) [ Chapter 9];
Carey v. Brown (1980); Mosley. This commonsense meaning of the phrase "content based" requires a
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court to consider whether a regulation of speech "on its face" draws distinctions based on the
message a speaker conveys. Some facial distinctions based on a message are obvious, defining
regulated speech by particular subject matter, and others are more subtle, defining regulated speech
by its function or purpose. Both are distinctions drawn based on the message a speaker conveys, and,
therefore, are subject to strict scrutiny.
Our precedents have also recognized a separate and additional category of laws that, though facially
content neutral, will be considered content-based regulations of speech: laws that cannot be "
'justified without reference to the content of the regulated speech,' " or that were adopted by the
government "because of disagreement with the message [the speech] conveys," Ward v. Rock Against
Racism (1989). Those laws, like those that are content based on their face, must also satisfy strict
scrutiny.
B
The Town's Sign Code is content based on its face. It defines "Temporary Directional Signs" on the
basis of whether a sign conveys the message of directing the public to church or some other
"qualifying event." It defines "Political Signs" on the basis of whether a sign's message is "designed to
influence the outcome of an election." And it defines "Ideological Signs" on the basis of whether a sign
"communicat[es] a message or ideas" that do not fit within the Code's other categories. It then
subjects each of these categories to different restrictions.
The restrictions in the Sign Code that apply to any given sign thus depend entirely on the
communicative content of the sign. If a sign informs its reader of the time and place a book club will
discuss John Locke's Two Treatises of Government, that sign will be treated differently from a sign
expressing the view that one should vote for one of Locke's followers in an upcoming election, and
both signs will be treated differently from a sign expressing an ideological view rooted in Locke's
theory of government. More to the point, the Church's signs inviting people to attend its worship
services are treated differently from signs conveying other types of ideas. On its face, the Sign Code is
a content-based regulation of speech. We thus have no need to consider the government's
justifications or purposes for enacting the Code to determine whether it is subject to strict scrutiny.
C
In reaching the contrary conclusion, the Court of Appeals offered several theories to explain why the
Town's Sign Code should be deemed content neutral. None is persuasive.
1
The Court of Appeals first determined that the Sign Code was content neutral because the Town "did
not adopt its regulation of speech [based on] disagree[ment] with the message conveyed," and its
justifications for regulating temporary directional signs were "unrelated to the content of the sign."
In its brief to this Court, the United States similarly contends that a sign regulation is content neutral-even if it expressly draws distinctions based on the sign's communicative content--if those
distinctions can be " 'justified without reference to the content of the regulated speech.' "
But this analysis skips the crucial first step in the content-neutrality analysis: determining whether
the law is content neutral on its face. A law that is content based on its face is subject to strict
scrutiny regardless of the government's benign motive, content-neutral justification, or lack of
"animus toward the ideas contained" in the regulated speech. Cincinnati v. Discovery Network, Inc.
(1993). We have thus made clear that " '[i]llicit legislative intent is not the sine qua non of a violation
of the First Amendment,'" and a party opposing the government "need adduce 'no evidence of an
improper censorial motive.'" Simon & Schuster. Although "a content-based purpose may be sufficient
in certain circumstances to show that a regulation is content based, it is not necessary." Turner
Broadcasting System, Inc. v. FCC (1994). In other words, an innocuous justification cannot transform a
facially content-based law into one that is content neutral.
That is why we have repeatedly considered whether a law is content neutral on its face before
turning to the law's justification or purpose. See, e.g., Sorrell (statute was content based "on its face,"
and there was also evidence of an impermissible legislative motive); Members of City Council of Los
Angeles v. Taxpayers for Vincent (1984) ("The text of the ordinance is neutral," and "there is not even
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a hint of bias or censorship in the City's enactment or enforcement of this ordinance"); Clark v.
Community for Creative Non-Violence, (1984) (requiring that a facially content-neutral ban on
camping must be "justified without reference to the content of the regulated speech"); United States
v. O'Brien (1968) (noting that the statute "on its face deals with conduct having no connection with
speech," but examining whether the "the governmental interest is unrelated to the suppression of
free expression"). Because strict scrutiny applies either when a law is content based on its face or
when the purpose and justification for the law are content based, a court must evaluate each
question before it concludes that the law is content neutral and thus subject to a lower level of
scrutiny.
The Court of Appeals and the United States misunderstand our decision in Ward as suggesting that a
government's purpose is relevant even when a law is content based on its face. That is incorrect. * * *
Ward's framework "applies only if a statute is content neutral." Hill (Kennedy, J., dissenting). Its rules
thus operate "to protect speech," not "to restrict it." Id.
The First Amendment requires no less. Innocent motives do not eliminate the danger of censorship
presented by a facially content-based statute, as future government officials may one day wield such
statutes to suppress disfavored speech. That is why the First Amendment expressly targets the
operation of the laws--i.e., the "abridg[ement] of speech"--rather than merely the motives of those
who enacted them. U. S. Const., Amdt. 1. " 'The vice of content-based legislation . . . is not that it is
always used for invidious, thought-control purposes, but that it lends itself to use for those
purposes.'" Hill (Scalia, J., dissenting).
* * * [O]ne could easily imagine a Sign Code compliance manager who disliked the Church's
substantive teachings deploying the Sign Code to make it more difficult for the Church to inform the
public of the location of its services. Accordingly, we have repeatedly "rejected the argument that
'discriminatory . . . treatment is suspect under the First Amendment only when the legislature
intends to suppress certain ideas.' " Discovery Network. We do so again today.
2
The Court of Appeals next reasoned that the Sign Code was content neutral because it "does not
mention any idea or viewpoint, let alone single one out for differential treatment." It reasoned that,
for the purpose of the Code provisions, "[i]t makes no difference which candidate is supported, who
sponsors the event, or what ideological perspective is asserted."
The Town seizes on this reasoning, insisting that "content based" is a term of art that "should be
applied flexibly" with the goal of protecting "viewpoints and ideas from government censorship or
favoritism." In the Town's view, a sign regulation that "does not censor or favor particular viewpoints
or ideas" cannot be content based. The Sign Code allegedly passes this test because its treatment of
temporary directional signs does not raise any concerns that the government is "endorsing or
suppressing 'ideas or viewpoints,' " and the provisions for political signs and ideological signs "are
neutral as to particular ideas or viewpoints" within those categories.
This analysis conflates two distinct but related limitations that the First Amendment places on
government regulation of speech. Government discrimination among viewpoints--or the regulation
of speech based on "the specific motivating ideology or the opinion or perspective of the speaker"--is
a "more blatant" and "egregious form of content discrimination." Rosenberger v. Rector and Visitors of
Univ. of Va. (1995). But it is well established that "[t]he First Amendment's hostility to content-based
regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public
discussion of an entire topic." Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y. (1980).
Thus, a speech regulation targeted at specific subject matter is content based even if it does not
discriminate among viewpoints within that subject matter. For example, a law banning the use of
sound trucks for political speech--and only political speech--would be a content-based regulation,
even if it imposed no limits on the political viewpoints that could be expressed. The Town's Sign Code
likewise singles out specific subject matter for differential treatment, even if it does not target
viewpoints within that subject matter. Ideological messages are given more favorable treatment than
messages concerning a political candidate, which are themselves given more favorable treatment
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than messages announcing an assembly of like-minded individuals. That is a paradigmatic example of
content-based discrimination.
3
Finally, the Court of Appeals characterized the Sign Code's distinctions as turning on " 'the contentneutral elements of who is speaking through the sign and whether and when an event is occurring.' "
That analysis is mistaken on both factual and legal grounds.
To start, the Sign Code's distinctions are not speaker based. The restrictions for political, ideological,
and temporary event signs apply equally no matter who sponsors them. If a local business, for
example, sought to put up signs advertising the Church's meetings, those signs would be subject to
the same limitations as such signs placed by the Church. And if Reed had decided to display signs in
support of a particular candidate, he could have made those signs far larger--and kept them up for far
longer--than signs inviting people to attend his church services. If the Code's distinctions were truly
speaker based, both types of signs would receive the same treatment.
In any case, the fact that a distinction is speaker based does not, as the Court of Appeals seemed to
believe, automatically render the distinction content neutral. Because "[s]peech restrictions based on
the identity of the speaker are all too often simply a means to control content," Citizens United v.
Federal Election Comm'n (2010) [Chapter 8], we have insisted that "laws favoring some speakers
over others demand strict scrutiny when the legislature's speaker preference reflects a content
preference," Turner Broadcasting System, Inc. v. FCC. Thus, a law limiting the content of newspapers,
but only newspapers, could not evade strict scrutiny simply because it could be characterized as
speaker based. Likewise, a content-based law that restricted the political speech of all corporations
would not become content neutral just because it singled out corporations as a class of speakers. See
Citizens United. Characterizing a distinction as speaker based is only the beginning--not the end--of
the inquiry.
Nor do the Sign Code's distinctions hinge on "whether and when an event is occurring." The Code
does not permit citizens to post signs on any topic whatsoever within a set period leading up to an
election, for example. Instead, come election time, it requires Town officials to determine whether a
sign is "designed to influence the outcome of an election" (and thus "political") or merely
"communicating a message or ideas for noncommercial purposes" (and thus "ideological"). That
obvious content-based inquiry does not evade strict scrutiny review simply because an event (i.e., an
election) is involved.
And, just as with speaker-based laws, the fact that a distinction is event based does not render it
content neutral. The Court of Appeals cited no precedent from this Court supporting its novel theory
of an exception from the content-neutrality requirement for event-based laws. As we have explained,
a speech regulation is content based if the law applies to particular speech because of the topic
discussed or the idea or message expressed. A regulation that targets a sign because it conveys an
idea about a specific event is no less content based than a regulation that targets a sign because it
conveys some other idea. Here, the Code singles out signs bearing a particular message: the time and
location of a specific event. This type of ordinance may seem like a perfectly rational way to regulate
signs, but a clear and firm rule governing content neutrality is an essential means of protecting the
freedom of speech, even if laws that might seem "entirely reasonable" will sometimes be "struck
down because of their content-based nature." City of Ladue v. Gilleo (1994) (O'Connor, J., concurring).
III
Because the Town's Sign Code imposes content-based restrictions on speech, those provisions can
stand only if they survive strict scrutiny, " 'which requires the Government to prove that the
restriction furthers a compelling interest and is narrowly tailored to achieve that interest,' " Arizona
Free Enterprise Club's Freedom Club PAC v. Bennett (2011). Thus, it is the Town's burden to
demonstrate that the Code's differentiation between temporary directional signs and other types of
signs, such as political signs and ideological signs, furthers a compelling governmental interest and is
narrowly tailored to that end.

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The Town cannot do so. It has offered only two governmental interests in support of the distinctions
the Sign Code draws: preserving the Town's aesthetic appeal and traffic safety. Assuming for the sake
of argument that those are compelling governmental interests, the Code's distinctions fail as
hopelessly underinclusive.
Starting with the preservation of aesthetics, temporary directional signs are "no greater an eyesore,"
Discovery Network, than ideological or political ones. Yet the Code allows unlimited proliferation of
larger ideological signs while strictly limiting the number, size, and duration of smaller directional
ones. The Town cannot claim that placing strict limits on temporary directional signs is necessary to
beautify the Town while at the same time allowing unlimited numbers of other types of signs that
create the same problem.
The Town similarly has not shown that limiting temporary directional signs is necessary to eliminate
threats to traffic safety, but that limiting other types of signs is not. The Town has offered no reason
to believe that directional signs pose a greater threat to safety than do ideological or political signs. If
anything, a sharply worded ideological sign seems more likely to distract a driver than a sign
directing the public to a nearby church meeting.
In light of this underinclusiveness, the Town has not met its burden to prove that its Sign Code is
narrowly tailored to further a compelling government interest. Because a " 'law cannot be regarded
as protecting an interest of the highest order, and thus as justifying a restriction on truthful speech,
when it leaves appreciable damage to that supposedly vital interest unprohibited,' " Republican Party
of Minn. v. White (2002) [Chapter 8], the Sign Code fails strict scrutiny.
IV
Our decision today will not prevent governments from enacting effective sign laws. The Town asserts
that an " 'absolutist' " content-neutrality rule would render "virtually all distinctions in sign laws . . .
subject to strict scrutiny," but that is not the case. Not "all distinctions" are subject to strict scrutiny,
only content-based ones are. Laws that are content neutral are instead subject to lesser scrutiny.
The Town has ample content-neutral options available to resolve problems with safety and
aesthetics. For example, its current Code regulates many aspects of signs that have nothing to do with
a sign's message: size, building materials, lighting, moving parts, and portability. And on public
property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it
does so in an evenhanded, content-neutral manner. See Taxpayers for Vincent (upholding contentneutral ban against posting signs on public property). Indeed, some lower courts have long held that
similar content-based sign laws receive strict scrutiny, but there is no evidence that towns in those
jurisdictions have suffered catastrophic effects.
We acknowledge that a city might reasonably view the general regulation of signs as necessary
because signs "take up space and may obstruct views, distract motorists, displace alternative uses for
land, and pose other problems that legitimately call for regulation." City of Ladue. At the same time,
the presence of certain signs may be essential, both for vehicles and pedestrians, to guide traffic or to
identify hazards and ensure safety. A sign ordinance narrowly tailored to the challenges of protecting
the safety of pedestrians, drivers, and passengers--such as warning signs marking hazards on private
property, signs directing traffic, or street numbers associated with private houses--well might
survive strict scrutiny. The signs at issue in this case, including political and ideological signs and
signs for events, are far removed from those purposes. As discussed above, they are facially content
based and are neither justified by traditional safety concerns nor narrowly tailored.
We reverse the judgment of the Court of Appeals and remand the case for proceedings consistent
with this opinion.
It is so ordered.
JUSTICE ALITO, WITH WHOM JUSTICE KENNEDY AND JUSTICE SOTOMAYOR JOIN, CONCURRING.
I join the opinion of the Court but add a few words of further explanation.

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As the Court holds, what we have termed "content-based" laws must satisfy strict scrutiny. Contentbased laws merit this protection because they present, albeit sometimes in a subtler form, the same
dangers as laws that regulate speech based on viewpoint. Limiting speech based on its "topic" or
"subject" favors those who do not want to disturb the status quo. Such regulations may interfere with
democratic self-government and the search for truth. See Consolidated Edison Co. of N. Y. v. Public
Serv. Comm'n of N. Y. (1980).
As the Court shows, the regulations at issue in this case are replete with content-based distinctions,
and as a result they must satisfy strict scrutiny. This does not mean, however, that municipalities are
powerless to enact and enforce reasonable sign regulations. I will not attempt to provide anything
like a comprehensive list, but here are some rules that would not be content based:
Rules regulating the size of signs. These rules may distinguish among signs based on any contentneutral criteria, including any relevant criteria listed below.
Rules regulating the locations in which signs may be placed. These rules may distinguish between freestanding signs and those attached to buildings.
Rules distinguishing between lighted and unlighted signs.
Rules distinguishing between signs with fixed messages and electronic signs with messages that
change.
Rules that distinguish between the placement of signs on private and public property.
Rules distinguishing between the placement of signs on commercial and residential property.
Rules distinguishing between on-premises and off-premises signs.
Rules restricting the total number of signs allowed per mile of roadway.
Rules imposing time restrictions on signs advertising a one-time event. Rules of this nature do not
discriminate based on topic or subject and are akin to rules restricting the times within which oral
speech or music is allowed.

In addition to regulating signs put up by private actors, government entities may also erect their own
signs consistent with the principles that allow governmental speech. See Pleasant Grove City v.
Summum (2009). They may put up all manner of signs to promote safety, as well as directional signs
and signs pointing out historic sites and scenic spots.
Properly understood, today's decision will not prevent cities from regulating signs in a way that fully
protects public safety and serves legitimate esthetic objectives.
JUSTICE BREYER, CONCURRING IN THE JUDGMENT (OMITTED)
JUSTICE KAGAN, WITH WHOM JUSTICE GINSBURG AND JUSTICE BREYER JOIN, CONCURRING IN THE JUDGMENT.
Countless cities and towns across America have adopted ordinances regulating the posting of signs,
while exempting certain categories of signs based on their subject matter. For example, some
municipalities generally prohibit illuminated signs in residential neighborhoods, but lift that ban for
signs that identify the address of a home or the name of its owner or occupant. See, e.g., City of Truth
or Consequences, N. M., Code of Ordinances, ch. 16, Art. XIII, §§11-13-2.3, 11-13-2.9(H)(4) (2014). In
other municipalities, safety signs such as "Blind Pedestrian Crossing" and "Hidden Driveway" can be
posted without a permit, even as other permanent signs require one. See, e.g., Code of Athens-Clarke
County, Ga., Pt. III, §7-4-7(1) (1993). Elsewhere, historic site markers--for example, "George
Washington Slept Here"--are also exempt from general regulations. See, e.g., Dover, Del., Code of
Ordinances, Pt. II, App. B, Art. 5, §4.5(F) (2012). And similarly, the federal Highway Beautification Act
limits signs along interstate highways unless, for instance, they direct travelers to "scenic and
historical attractions" or advertise free coffee. See 23 U. S. C. §§131(b), (c)(1), (c)(5).
Given the Court's analysis, many sign ordinances of that kind are now in jeopardy. Says the majority:
When laws "single[ ] out specific subject matter," they are "facially content based"; and when they are
facially content based, they are automatically subject to strict scrutiny. And although the majority
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holds out hope that some sign laws with subject-matter exemptions "might survive" that stringent
review, the likelihood is that most will be struck down. After all, it is the "rare case[ ] in which a
speech restriction withstands strict scrutiny." Williams-Yulee v. Florida Bar (2015) [Chapter 8]. To
clear that high bar, the government must show that a content-based distinction "is necessary to serve
a compelling state interest and is narrowly drawn to achieve that end." Arkansas Writers' Project, Inc.
v. Ragland (1987). So on the majority's view, courts would have to determine that a town has a
compelling interest in informing passersby where George Washington slept. And likewise, courts
would have to find that a town has no other way to prevent hidden-driveway mishaps than by
specially treating hidden-driveway signs. (Well-placed speed bumps? Lower speed limits? Or how
about just a ban on hidden driveways?) The consequence--unless courts water down strict scrutiny
to something unrecognizable--is that our communities will find themselves in an unenviable bind:
They will have to either repeal the exemptions that allow for helpful signs on streets and sidewalks,
or else lift their sign restrictions altogether and resign themselves to the resulting clutter.*
Although the majority insists that applying strict scrutiny to all such ordinances is "essential" to
protecting First Amendment freedoms, I find it challenging to understand why that is so. This Court's
decisions articulate two important and related reasons for subjecting content-based speech
regulations to the most exacting standard of review. The first is "to preserve an uninhibited
marketplace of ideas in which truth will ultimately prevail." McCullen v. Coakley (2014). The second is
to ensure that the government has not regulated speech "based on hostility--or favoritism--towards
the underlying message expressed." R. A. V. v. St. Paul (1992). Yet the subject-matter exemptions
included in many sign ordinances do not implicate those concerns. Allowing residents, say, to install
a light bulb over "name and address" signs but no others does not distort the marketplace of ideas.
Nor does that different treatment give rise to an inference of impermissible government motive.
We apply strict scrutiny to facially content-based regulations of speech, in keeping with the
rationales just described, when there is any "realistic possibility that official suppression of ideas is
afoot." R. A. V. That is always the case when the regulation facially differentiates on the basis of
viewpoint. See Rosenberger v. Rector and Visitors of Univ. of Va. (1995). It is also the case (except in
non-public or limited public forums) when a law restricts "discussion of an entire topic" in public
debate. Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y. (1980) (invalidating a limitation
on speech about nuclear power). We have stated that "[i]f the marketplace of ideas is to remain free
and open, governments must not be allowed to choose 'which issues are worth discussing or
debating.' " Id. And we have recognized that such subject-matter restrictions, even though viewpointneutral on their face, may "suggest[ ] an attempt to give one side of a debatable public question an
advantage in expressing its views to the people." First Nat. Bank of Boston v. Bellotti (1978). Subjectmatter regulation, in other words, may have the intent or effect of favoring some ideas over others.
When that is realistically possible--when the restriction "raises the specter that the Government may
effectively drive certain ideas or viewpoints from the marketplace"--we insist that the law pass the
most demanding constitutional test. R. A. V.
But when that is not realistically possible, we may do well to relax our guard so that "entirely
reasonable" laws imperiled by strict scrutiny can survive. This point is by no means new. Our
concern with content-based regulation arises from the fear that the government will skew the
public's debate of ideas--so when "that risk is inconsequential, . . . strict scrutiny is unwarranted." To
do its intended work, of course, the category of content-based regulation triggering strict scrutiny
must sweep more broadly than the actual harm; that category exists to create a buffer zone
guaranteeing that the government cannot favor or disfavor certain viewpoints. But that buffer zone
need not extend forever. We can administer our content-regulation doctrine with a dose of common
sense, so as to leave standing laws that in no way implicate its intended function.
And indeed we have done just that: Our cases have been far less rigid than the majority admits in
applying strict scrutiny to facially content-based laws--including in cases just like this one. In
Members of City Council of Los Angeles v. Taxpayers for Vincent (1984), the Court declined to apply
strict scrutiny to a municipal ordinance that exempted address numbers and markers
commemorating "historical, cultural, or artistic event[s]" from a generally applicable limit on
sidewalk signs. After all, we explained, the law's enactment and enforcement revealed "not even a
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hint of bias or censorship." And another decision involving a similar law provides an alternative
model. In City of Ladue v. Gilleo (1994), the Court assumed arguendo that a sign ordinance's
exceptions for address signs, safety signs, and for-sale signs in residential areas did not trigger strict
scrutiny. We did not need to, and so did not, decide the level-of-scrutiny question because the law's
breadth made it unconstitutional under any standard.
The majority could easily have taken Ladue's tack here. The Town of Gilbert's defense of its sign
ordinance--most notably, the law's distinctions between directional signs and others--does not pass
strict scrutiny, or intermediate scrutiny, or even the laugh test. The Town, for example, provides no
reason at all for prohibiting more than four directional signs on a property while placing no limits on
the number of other types of signs. Similarly, the Town offers no coherent justification for restricting
the size of directional signs to 6 square feet while allowing other signs to reach 20 square feet. The
best the Town could come up with at oral argument was that directional signs "need to be smaller
because they need to guide travelers along a route." Why exactly a smaller sign better helps travelers
get to where they are going is left a mystery. The absence of any sensible basis for these and other
distinctions dooms the Town's ordinance under even the intermediate scrutiny that the Court
typically applies to "time, place, or manner" speech regulations. Accordingly, there is no need to
decide in this case whether strict scrutiny applies to every sign ordinance in every town across this
country containing a subject-matter exemption.
I suspect this Court and others will regret the majority's insistence today on answering that question
in the affirmative. As the years go by, courts will discover that thousands of towns have such
ordinances, many of them "entirely reasonable." And as the challenges to them mount, courts will
have to invalidate one after the other. (This Court may soon find itself a veritable Supreme Board of
Sign Review.) And courts will strike down those democratically enacted local laws even though no
one--certainly not the majority--has ever explained why the vindication of First Amendment values
requires that result. Because I see no reason why such an easy case calls for us to cast a constitutional
pall on reasonable regulations quite unlike the law before us, I concur only in the judgment.

Notes

1.
Is it possible after Reed v. Town of Gilbert for a municipality to require removal of signs after
the event to which they refer has ended? What might you suggest to a town if you were a town
attorney?
2.
What is the likelihood that the Court will soon find itself “a veritable Supreme Board of Sign
Review”? The federal courts?

V. The “Escape Clause” of Government Speech
Pleasant Grove City v. Summum
555 U.S. 460 (2009)
ALITO, J., DELIVERED THE OPINION OF THE COURT, IN WHICH ROBERTS, C. J., AND STEVENS, SCALIA, KENNEDY,
THOMAS, GINSBURG, AND BREYER, JJ., JOINED. STEVENS, J., FILED A CONCURRING OPINION, IN WHICH GINSBURG, J.,
JOINED. SCALIA, J., FILED A CONCURRING OPINION, IN WHICH THOMAS, J., JOINED. BREYER, J., FILED A CONCURRING
OPINION. SOUTER, J., FILED AN OPINION CONCURRING IN THE JUDGMENT.
JUSTICE ALITO DELIVERED THE OPINION OF THE COURT.
This case presents the question whether the Free Speech Clause of the First Amendment entitles a
private group to insist that a municipality permit it to place a permanent monument in a city park in
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which other donated monuments were previously erected. The Court of Appeals held that the
municipality was required to accept the monument because a public park is a traditional public
forum. We conclude, however, that although a park is a traditional public forum for speeches and
other transitory expressive acts, the display of a permanent monument in a public park is not a form
of expression to which forum analysis applies. Instead, the placement of a permanent monument in a
public park is best viewed as a form of government speech and is therefore not subject to scrutiny
under the Free Speech Clause.
I
A
Pioneer Park (or Park) is a 2.5 acre public park located in the Historic District of Pleasant Grove City
(or City) in Utah. The Park currently contains 15 permanent displays, at least 11 of which were
donated by private groups or individuals. These include an historic granary, a wishing well, the City's
first fire station, a September 11 monument, and a Ten Commandments monument donated by the
Fraternal Order of Eagles in 1971.
Respondent Summum is a religious organization founded in 1975 and headquartered in Salt Lake
City, Utah. On two separate occasions in 2003, Summum's president wrote a letter to the City's mayor
requesting permission to erect a "stone monument," which would contain "the Seven Aphorisms of
SUMMUM" and be similar in size and nature to the Ten Commandments monument. The City denied
the requests and explained that its practice was to limit monuments in the Park to those that "either
(1) directly relate to the history of Pleasant Grove, or (2) were donated by groups with longstanding
ties to the Pleasant Grove community." The following year, the City passed a resolution putting this
policy into writing. The resolution also mentioned other criteria, such as safety and esthetics.
In May 2005, respondent's president again wrote to the mayor asking to erect a monument, but the
letter did not describe the monument, its historical significance, or Summum's connection to the
community. The city council rejected this request.
B
In 2005, respondent filed this action against the City and various local officials (petitioners),
asserting, among other claims, that petitioners had violated the Free Speech Clause of the First
Amendment by accepting the Ten Commandments monument but rejecting the proposed Seven
Aphorisms monument. Respondent sought a preliminary injunction directing the City to permit
Summum to erect its monument in Pioneer Park. After the District Court denied Summum's
preliminary injunction request, respondent appealed, pressing solely its free speech claim.
A panel of the Tenth Circuit reversed. The panel noted that it had previously found the Ten
Commandments monument to be private rather than government speech. Noting that public parks
have traditionally been regarded as public forums, the panel held that the City could not reject the
Seven Aphorisms monument unless it had a compelling justification that could not be served by more
narrowly tailored means. The panel then concluded that the exclusion of respondent's monument
was unlikely to survive this strict scrutiny, and the panel therefore held that the City was required to
erect Summum's monument immediately.
The Tenth Circuit denied the City's petition for rehearing en banc by an equally divided vote. Judge
Lucero dissented, arguing that the Park was not a traditional public forum for the purpose of
displaying monuments. Judge McConnell also dissented, contending that the monuments in the Park
constitute government speech.
We granted certiorari and now reverse.
II
No prior decision of this Court has addressed the application of the Free Speech Clause to a
government entity's acceptance of privately donated, permanent monuments for installation in a
public park, and the parties disagree sharply about the line of precedents that governs this situation.
Petitioners contend that the pertinent cases are those concerning government speech. Respondent,
on the other hand, agrees with the Court of Appeals panel that the applicable cases are those that
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analyze private speech in a public forum. The parties' fundamental disagreement thus centers on the
nature of petitioners' conduct when they permitted privately donated monuments to be erected in
Pioneer Park. Were petitioners engaging in their own expressive conduct? Or were they providing a
forum for private speech?
A
If petitioners were engaging in their own expressive conduct, then the Free Speech Clause has no
application. The Free Speech Clause restricts government regulation of private speech; it does not
regulate government speech. A government entity has the right to "speak for itself." Board of Regents
of Univ. of Wis. System v. Southworth (2000). "[I]t is entitled to say what it wishes," Rosenberger v.
Rector and Visitors of Univ. of Va. (1995), and to select the views that it wants to express. See Rust v.
Sullivan (1991); National Endowment for Arts v. Finley (1998) (Scalia, J., concurring in judgment) ("It
is the very business of government to favor and disfavor points of view").
Indeed, it is not easy to imagine how government could function if it lacked this freedom. * * *
A government entity may exercise this same freedom to express its views when it receives assistance
from private sources for the purpose of delivering a government-controlled message. * * *
This does not mean that there are no restraints on government speech. For example, government
speech must comport with the Establishment Clause. The involvement of public officials in advocacy
may be limited by law, regulation, or practice. And of course, a government entity is ultimately
"accountable to the electorate and the political process for its advocacy." Southworth. "If the citizenry
objects, newly elected officials later could espouse some different or contrary position." Id.
B
While government speech is not restricted by the Free Speech Clause, the government does not have
a free hand to regulate private speech on government property. This Court long ago recognized that
members of the public retain strong free speech rights when they venture into public streets and
parks, "which 'have immemorially been held in trust for the use of the public and, time out of mind,
have been used for purposes of assembly, communicating thoughts between citizens, and discussing
public questions.' " Perry Ed. Assn. v. Perry Local Educators' Assn. (1983) (quoting Hague v. Committee
for Industrial Organization (1939) (opinion of Roberts, J.)). In order to preserve this freedom,
government entities are strictly limited in their ability to regulate private speech in such "traditional
public fora." Reasonable time, place, and manner restrictions are allowed, see Perry Ed. Assn, but any
restriction based on the content of the speech must satisfy strict scrutiny, that is, the restriction must
be narrowly tailored to serve a compelling government interest, and restrictions based on viewpoint
are prohibited.
With the concept of the traditional public forum as a starting point, this Court has recognized that
members of the public have free speech rights on other types of government property and in certain
other government programs that share essential attributes of a traditional public forum. We have
held that a government entity may create "a designated public forum" if government property that
has not traditionally been regarded as a public forum is intentionally opened up for that purpose.
Government restrictions on speech in a designated public forum are subject to the same strict
scrutiny as restrictions in a traditional public forum.
The Court has also held that a government entity may create a forum that is limited to use by certain
groups or dedicated solely to the discussion of certain subjects. Perry Ed. Assn. In such a forum, a
government entity may impose restrictions on speech that are reasonable and viewpoint-neutral.
III
There may be situations in which it is difficult to tell whether a government entity is speaking on its
own behalf or is providing a forum for private speech, but this case does not present such a situation.
Permanent monuments displayed on public property typically represent government speech.
Governments have long used monuments to speak to the public. Since ancient times, kings, emperors,
and other rulers have erected statues of themselves to remind their subjects of their authority and
power. Triumphal arches, columns, and other monuments have been built to commemorate military
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victories and sacrifices and other events of civic importance. A monument, by definition, is a
structure that is designed as a means of expression. When a government entity arranges for the
construction of a monument, it does so because it wishes to convey some thought or instill some
feeling in those who see the structure. Neither the Court of Appeals nor respondent disputes the
obvious proposition that a monument that is commissioned and financed by a government body for
placement on public land constitutes government speech.
Just as government-commissioned and government-financed monuments speak for the government,
so do privately financed and donated monuments that the government accepts and displays to the
public on government land. It certainly is not common for property owners to open up their property
for the installation of permanent monuments that convey a message with which they do not wish to
be associated. And because property owners typically do not permit the construction of such
monuments on their land, persons who observe donated monuments routinely--and reasonably-interpret them as conveying some message on the property owner's behalf. In this context, there is
little chance that observers will fail to appreciate the identity of the speaker. This is true whether the
monument is located on private property or on public property, such as national, state, or city park
land.
We think it is fair to say that throughout our Nation's history, the general government practice with
respect to donated monuments has been one of selective receptivity. A great many of the monuments
that adorn the Nation's public parks were financed with private funds or donated by private parties.
Sites managed by the National Park Service contain thousands of privately designed or funded
commemorative objects, including the Statue of Liberty, the Marine Corps War Memorial (the Iwo
Jima monument), and the Vietnam Veterans Memorial. States and cities likewise have received
thousands of donated monuments. By accepting monuments that are privately funded or donated,
government entities save tax dollars and are able to acquire monuments that they could not have
afforded to fund on their own.
But while government entities regularly accept privately funded or donated monuments, they have
exercised selectivity. An example discussed by the city of New York as amicus curiae is illustrative. In
the wake of the controversy generated in 1876 when the city turned down a donated monument to
honor Daniel Webster, the city adopted rules governing the acceptance of artwork for permanent
placement in city parks, requiring, among other things, that "any proposed gift of art had to be
viewed either in its finished condition or as a model before acceptance." Brief for City of New York as
Amicus Curiae 4-5 (hereinafter NYC Brief). Across the country, "municipalities generally exercise
editorial control over donated monuments through prior submission requirements, design input,
requested modifications, written criteria, and legislative approvals of specific content proposals."
Public parks are often closely identified in the public mind with the government unit that owns the
land. City parks--ranging from those in small towns, like Pioneer Park in Pleasant Grove City, to those
in major metropolises, like Central Park in New York City--commonly play an important role in
defining the identity that a city projects to its own residents and to the outside world. Accordingly,
cities and other jurisdictions take some care in accepting donated monuments. Government
decisionmakers select the monuments that portray what they view as appropriate for the place in
question, taking into account such content-based factors as esthetics, history, and local culture. The
monuments that are accepted, therefore, are meant to convey and have the effect of conveying a
government message, and they thus constitute government speech.
IV
A
In this case, it is clear that the monuments in Pleasant Grove's Pioneer Park represent government
speech. Although many of the monuments were not designed or built by the City and were donated in
completed form by private entities, the City decided to accept those donations and to display them in
the Park. Respondent does not claim that the City ever opened up the Park for the placement of
whatever permanent monuments might be offered by private donors. Rather, the City has "effectively
controlled" the messages sent by the monuments in the Park by exercising "final approval authority"
over their selection. The City has selected those monuments that it wants to display for the purpose
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of presenting the image of the City that it wishes to project to all who frequent the Park; it has taken
ownership of most of the monuments in the Park, including the Ten Commandments monument that
is the focus of respondent's concern; and the City has now expressly set forth the criteria it will use in
making future selections.
B
Respondent voices the legitimate concern that the government speech doctrine not be used as a
subterfuge for favoring certain private speakers over others based on viewpoint. Respondent's
suggested solution is to require a government entity accepting a privately donated monument to go
through a formal process of adopting a resolution publicly embracing "the message" that the
monument conveys.
We see no reason for imposing a requirement of this sort. The parks of this country contain
thousands of donated monuments that government entities have used for their own expressive
purposes, usually without producing the sort of formal documentation that respondent now says is
required to escape Free Speech Clause restrictions. Requiring all of these jurisdictions to go back and
proclaim formally that they adopt all of these monuments as their own expressive vehicles would be
a pointless exercise that the Constitution does not mandate.
In this case, for example, although respondent argues that Pleasant Grove City has not adequately
"controll[ed] the message" of the Ten Commandments monument, the City took ownership of that
monument and put it on permanent display in a park that it owns and manages and that is linked to
the City's identity. All rights previously possessed by the monument's donor have been relinquished.
The City's actions provided a more dramatic form of adoption than the sort of formal endorsement
that respondent would demand, unmistakably signifying to all Park visitors that the City intends the
monument to speak on its behalf. And the City has made no effort to abridge the traditional free
speech rights--the right to speak, distribute leaflets, etc.--that may be exercised by respondent and
others in Pioneer Park.
What respondent demands, however, is that the City "adopt" or "embrace" "the message" that it
associates with the monument. Respondent seems to think that a monument can convey only one
"message"--which is, presumably, the message intended by the donor--and that, if a government
entity that accepts a monument for placement on its property does not formally embrace that
message, then the government has not engaged in expressive conduct.
This argument fundamentally misunderstands the way monuments convey meaning. * * * Even when
a monument features the written word, the monument may be intended to be interpreted, and may
in fact be interpreted by different observers, in a variety of ways. Monuments called to our attention
by the briefing in this case illustrate this phenomenon.
What, for example, is "the message" of the Greco-Roman mosaic of the word "Imagine" that was
donated to New York City's Central Park in memory of John Lennon? See NYC Brief 18. Some
observers may "imagine" the musical contributions that John Lennon would have made if he had not
been killed. Others may think of the lyrics of the Lennon song that obviously inspired the mosaic and
may "imagine" a world without religion, countries, possessions, greed, or hunger. [FN 2 contains the
lyrics to “Imagine”].
Or, to take another example, what is "the message" of the "large bronze statue displaying the word
'peace' in many world languages" that is displayed in Fayetteville, Arkansas?
These text-based monuments are almost certain to evoke different thoughts and sentiments in the
minds of different observers, and the effect of monuments that do not contain text is likely to be even
more variable. Consider, for example, the statue of Pancho Villa that was given to the city of Tucson,
Arizona, in 1981 by the Government of Mexico with, according to a Tucson publication, "a wry sense
of irony." Does this statue commemorate a "revolutionary leader who advocated for agrarian reform
and the poor" or "a violent bandit"?
Contrary to respondent's apparent belief, it frequently is not possible to identify a single "message"
that is conveyed by an object or structure, and consequently, the thoughts or sentiments expressed
by a government entity that accepts and displays such an object may be quite different from those of
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either its creator or its donor. By accepting a privately donated monument and placing it on city
property, a city engages in expressive conduct, but the intended and perceived significance of that
conduct may not coincide with the thinking of the monument's donor or creator. Indeed, when a
privately donated memorial is funded by many small donations, the donors themselves may differ in
their interpretation of the monument's significance. By accepting such a monument, a government
entity does not necessarily endorse the specific meaning that any particular donor sees in the
monument.
The message that a government entity conveys by allowing a monument to remain on its property
may also be altered by the subsequent addition of other monuments in the same vicinity. For
example, following controversy over the original design of the Vietnam Veterans Memorial, a
compromise was reached that called for the nearby addition of a flagstaff and bronze Three Soldiers
statue, which many believed changed the overall effect of the memorial. See, e.g., J. MAYO, WAR
MEMORIALS AS POLITICAL LANDSCAPE: THE AMERICAN EXPERIENCE AND BEYOND 202-203, 205 (1988); K. HASS,
CARRIED TO THE WALL: AMERICAN MEMORY AND THE VIETNAM VETERANS MEMORIAL 15-18 (1998).
The "message" conveyed by a monument may change over time. A study of war memorials found that
"people reinterpret" the meaning of these memorials as "historical interpretations" and "the society
around them changes."
A striking example of how the interpretation of a monument can evolve is provided by one of the
most famous and beloved public monuments in the United States, the Statue of Liberty. The statue
was given to this country by the Third French Republic to express republican solidarity and
friendship between the two countries. See J. Res. 6, 44th Cong., 2d Sess. (1877), 19 Stat. 410
(accepting the statue as an "expressive and felicitous memorial of the sympathy of the citizens of our
sister Republic"). At the inaugural ceremony, President Cleveland saw the statue as an emblem of
international friendship and the widespread influence of American ideals. See INAUGURATION OF THE
STATUE OF LIBERTY ENLIGHTENING THE WORLD 30 (1887). Only later did the statue come to be viewed as a
beacon welcoming immigrants to a land of freedom. See PUBLIC PAPERS OF THE PRESIDENTS, RONALD
REAGAN, Vol. 2, July 3, 1986, pp. 918-919 (1989), Remarks at the Opening Ceremonies of the Statue of
Liberty Centennial Celebration in New York, New York; J. Higham, The Transformation of the Statue of
Liberty, in SEND THESE TO ME 74-80 (rev. ed. 1984).
C
Respondent and the Court of Appeals analogize the installation of permanent monuments in a public
park to the delivery of speeches and the holding of marches and demonstrations, and they thus
invoke the rule that a public park is a traditional public forum for these activities. But "public forum
principles . . . are out of place in the context of this case." United States v. American Library Assn., Inc.
(2003). The forum doctrine has been applied in situations in which government-owned property or a
government program was capable of accommodating a large number of public speakers without
defeating the essential function of the land or the program. For example, a park can accommodate
many speakers and, over time, many parades and demonstrations. The Combined Federal Campaign
permits hundreds of groups to solicit donations from federal employees. A public university's
student activity fund can provide money for many campus activities. A public university's buildings
may offer meeting space for hundreds of student groups. A school system's internal mail facilities can
support the transmission of many messages to and from teachers and school administrators.
By contrast, public parks can accommodate only a limited number of permanent monuments. Public
parks have been used, " 'time out of mind, . . . for purposes of assembly, communicating thoughts
between citizens, and discussing public questions,' " Perry Ed. Assn. (quoting Hague), but "one would
be hard pressed to find a 'long tradition' of allowing people to permanently occupy public space with
any manner of monuments." (Lucero, J., dissenting from denial of rehearing en banc) [in Tenth
Circuit].
Speakers, no matter how long-winded, eventually come to the end of their remarks; persons
distributing leaflets and carrying signs at some point tire and go home; monuments, however, endure.
They monopolize the use of the land on which they stand and interfere permanently with other uses
of public space. A public park, over the years, can provide a soapbox for a very large number of
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orators--often, for all who want to speak--but it is hard to imagine how a public park could be opened
up for the installation of permanent monuments by every person or group wishing to engage in that
form of expression.
Respondent contends that this issue "can be dealt with through content-neutral time, place and
manner restrictions, including the option of a ban on all unattended displays." On this view, when
France presented the Statue of Liberty to the United States in 1884, this country had the option of
either (a) declining France's offer or (b) accepting the gift, but providing a comparable location in the
harbor of New York for other statues of a similar size and nature (e.g., a Statue of Autocracy, if one
had been offered by, say, the German Empire or Imperial Russia).
While respondent and some of its amici deride the fears expressed about the consequences of the
Court of Appeals holding in this case, those concerns are well founded. If government entities must
maintain viewpoint neutrality in their selection of donated monuments, they must either "brace
themselves for an influx of clutter" or face the pressure to remove longstanding and cherished
monuments. (McConnell, J., dissenting from denial of rehearing en banc)[in Tenth Circuit]. Every
jurisdiction that has accepted a donated war memorial may be asked to provide equal treatment for a
donated monument questioning the cause for which the veterans fought. New York City, having
accepted a donated statue of one heroic dog (Balto, the sled dog who brought medicine to Nome,
Alaska, during a diphtheria epidemic) may be pressed to accept monuments for other dogs who are
claimed to be equally worthy of commemoration. The obvious truth of the matter is that if public
parks were considered to be traditional public forums for the purpose of erecting privately donated
monuments, most parks would have little choice but to refuse all such donations. And where the
application of forum analysis would lead almost inexorably to closing of the forum, it is obvious that
forum analysis is out of place.
* * * To be sure, there are limited circumstances in which the forum doctrine might properly be
applied to a permanent monument--for example, if a town created a monument on which all of its
residents (or all those meeting some other criterion) could place the name of a person to be honored
or some other private message. But as a general matter, forum analysis simply does not apply to the
installation of permanent monuments on public property.
V
In sum, we hold that the City's decision to accept certain privately donated monuments while
rejecting respondent's is best viewed as a form of government speech. As a result, the City's decision
is not subject to the Free Speech Clause, and the Court of Appeals erred in holding otherwise. We
therefore reverse.
It is so ordered.
CONCURRING OPINIONS OMITTED.

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Walker v. Texas Division, Sons of Confederate Veterans
576 U. S. ____ (2015)
BREYER, J., DELIVERED THE OPINION OF THE COURT, IN WHICH THOMAS, GINSBURG, SOTOMAYOR, AND KAGAN, JJ.,
JOINED. ALITO, J., FILED A DISSENTING OPINION, IN WHICH ROBERTS, C. J., AND SCALIA AND KENNEDY, JJ., JOINED.
JUSTICE BREYER DELIVERED THE OPINION OF THE COURT.
Texas offers automobile owners a choice between ordinary and specialty license plates. Those who
want the State to issue a particular specialty plate may propose a plate design, comprising a slogan, a
graphic, or (most commonly) both. If the Texas Department of Motor Vehicles Board approves the
design, the State will make it available for display on vehicles registered in Texas.
In this case, the Texas Division of the Sons of Confederate Veterans proposed a specialty license plate
design featuring a Confederate battle flag. The Board rejected the proposal. We must decide whether
that rejection violated the Constitution's free speech guarantees. We conclude that it did not.
I
A
Texas law requires all motor vehicles operating on the State's roads to display valid license plates.
And Texas makes available several kinds of plates. Drivers may choose to display the State's generalissue license plates. Each of these plates contains the word "Texas," a license plate number, a
silhouette of the State, a graphic of the Lone Star, and the slogan "The Lone Star State." In the
alternative, drivers may choose from an assortment of specialty license plates. Each of these plates
contains the word "Texas," a license plate number, and one of a selection of designs prepared by the
State. Finally, Texas law provides for personalized plates (also known as vanity plates). Pursuant to
the personalization program, a vehicle owner may request a particular alphanumeric pattern for use
as a plate number, such as "BOB" or "TEXPL8."
Here we are concerned only with the second category of plates, namely specialty license plates, not
with the personalization program. Texas offers vehicle owners a variety of specialty plates, generally
for an annual fee. And Texas selects the designs for specialty plates through three distinct processes.
First, the state legislature may specifically call for the development of a specialty license plate. The
legislature has enacted statutes authorizing, for example, plates that say "Keep Texas Beautiful" and
"Mothers Against Drunk Driving," plates that "honor" the Texas citrus industry, and plates that
feature an image of the World Trade Center towers and the words "Fight Terrorism."
Second, the Board may approve a specialty plate design proposal that a state-designated private
vendor has created at the request of an individual or organization. Among the plates created through
the private-vendor process are plates promoting the "Keller Indians" and plates with the slogan "Get
it Sold with RE/MAX."
Third, the Board "may create new specialty license plates on its own initiative or on receipt of an
application from a" nonprofit entity seeking to sponsor a specialty plate. A nonprofit must include in
its application "a draft design of the specialty license plate." And Texas law vests in the Board
authority to approve or to disapprove an application. The relevant statute says that the Board "may
refuse to create a new specialty license plate" for a number of reasons, for example "if the design
might be offensive to any member of the public . . . or for any other reason established by rule."
Specialty plates that the Board has sanctioned through this process include plates featuring the
words "The Gator Nation," together with the Florida Gators logo, and plates featuring the logo of
Rotary International and the words "SERVICE ABOVE SELF."

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B
In 2009, the Sons of Confederate Veterans, Texas Division (a nonprofit entity), applied to sponsor a
specialty license plate through this last-mentioned process. SCV's application included a draft plate
design. At the bottom of the proposed plate were the words "SONS OF CONFEDERATE VETERANS."
At the side was the organization's logo, a square Confederate battle flag framed by the words "Sons of
Confederate Veterans 1896." A faint Confederate battle flag appeared in the background on the lower
portion of the plate. Additionally, in the middle of the plate was the license plate number, and at the
top was the State's name and silhouette. The Board's predecessor denied this application.
In 2010, SCV renewed its application before the Board. The Board invited public comment on its
website and at an open meeting. After considering the responses, including a number of letters sent
by elected officials who opposed the proposal, the Board voted unanimously against issuing the plate.
The Board explained that it had found "it necessary to deny th[e] plate design application, specifically
the confederate flag portion of the design, because public comments ha[d] shown that many
members of the general public find the design offensive, and because such comments are
reasonable." The Board added "that a significant portion of the public associate the confederate flag
with organizations advocating expressions of hate directed toward people or groups that is
demeaning to those people or groups."
In 2012, SCV and two of its officers (collectively SCV) brought this lawsuit against the chairman and
members of the Board (collectively Board). SCV argued that the Board's decision violated the Free
Speech Clause of the First Amendment, and it sought an injunction requiring the Board to approve
the proposed plate design. The District Court entered judgment for the Board. A divided panel of the
Court of Appeals for the Fifth Circuit reversed. It held that Texas's specialty license plate designs are
private speech and that the Board, in refusing to approve SCV's design, engaged in constitutionally
forbidden viewpoint discrimination. The dissenting judge argued that Texas's specialty license plate
designs are government speech, the content of which the State is free to control.
We granted the Board's petition for certiorari, and we now reverse.
II
When government speaks, it is not barred by the Free Speech Clause from determining the content of
what it says. Pleasant Grove City v. Summum (2009). That freedom in part reflects the fact that it is
the democratic electoral process that first and foremost provides a check on government speech. See
Board of Regents of Univ. of Wis. System v. Southworth (2000). Thus, government statements (and
government actions and programs that take the form of speech) do not normally trigger the First
Amendment rules designed to protect the marketplace of ideas. See Johanns v. Livestock Marketing
Assn. (2005). Instead, the Free Speech Clause helps produce informed opinions among members of
the public, who are then able to influence the choices of a government that, through words and deeds,
will reflect its electoral mandate. See Stromberg v. California (1931) (observing that "our
constitutional system" seeks to maintain "the opportunity for free political discussion to the end that
government may be responsive to the will of the people").
Were the Free Speech Clause interpreted otherwise, government would not work. How could a city
government create a successful recycling program if officials, when writing householders asking
them to recycle cans and bottles, had to include in the letter a long plea from the local trash disposal
enterprise demanding the contrary? How could a state government effectively develop programs
designed to encourage and provide vaccinations, if officials also had to voice the perspective of those
who oppose this type of immunization? "[I]t is not easy to imagine how government could function if
it lacked th[e] freedom" to select the messages it wishes to convey. Summum.
We have therefore refused "[t]o hold that the Government unconstitutionally discriminates on the
basis of viewpoint when it chooses to fund a program dedicated to advance certain permissible goals,
because the program in advancing those goals necessarily discourages alternative goals." Rust v.
Sullivan (1991). We have pointed out that a contrary holding "would render numerous Government
programs constitutionally suspect." Id. Cf. Keller v. State Bar of Cal. (1990) ("If every citizen were to
have a right to insist that no one paid by public funds express a view with which he disagreed, debate
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over issues of great concern to the public would be limited to those in the private sector, and the
process of government as we know it radically transformed"). And we have made clear that "the
government can speak for itself." Southworth.
That is not to say that a government's ability to express itself is without restriction. Constitutional
and statutory provisions outside of the Free Speech Clause may limit government speech. Summum.
And the Free Speech Clause itself may constrain the government's speech if, for example, the
government seeks to compel private persons to convey the government's speech. But, as a general
matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to
take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.
III
In our view, specialty license plates issued pursuant to Texas's statutory scheme convey government
speech. Our reasoning rests primarily on our analysis in Summum, a recent case that presented a
similar problem. We conclude here, as we did there, that our precedents regarding government
speech (and not our precedents regarding forums for private speech) provide the appropriate
framework through which to approach the case.
A
In Summum, we considered a religious organization's request to erect in a 2.5-acre city park a
monument setting forth the organization's religious tenets. * * * We held that the city had not
"provid[ed] a forum for private speech" with respect to monuments. Rather, the city, even when
"accepting a privately donated monument and placing it on city property," had "engage[d] in
expressive conduct." The speech at issue, this Court decided, was "best viewed as a form of
government speech" and "therefore [was] not subject to scrutiny under the Free Speech Clause."
We based our conclusion on several factors. First, history shows that "[g]overnments have long used
monuments to speak to the public." Thus, we observed that "[w]hen a government entity arranges
for the construction of a monument, it does so because it wishes to convey some thought or instill
some feeling in those who see the structure."
Second, we noted that it "is not common for property owners to open up their property for the
installation of permanent monuments that convey a message with which they do not wish to be
associated." As a result, "persons who observe donated monuments routinely--and reasonably-interpret them as conveying some message on the property owner's behalf." And "observers" of such
monuments, as a consequence, ordinarily "appreciate the identity of the speaker."
Third, we found relevant the fact that the city maintained control over the selection of monuments.
We thought it "fair to say that throughout our Nation's history, the general government practice with
respect to donated monuments has been one of selective receptivity." And we observed that the city
government in Summum " 'effectively controlled' the messages sent by the monuments in the [p]ark
by exercising 'final approval authority' over their selection."
In light of these and a few other relevant considerations, the Court concluded that the expression at
issue was government speech. And, in reaching that conclusion, the Court rejected the premise that
the involvement of private parties in designing the monuments was sufficient to prevent the
government from controlling which monuments it placed in its own public park.
B
Our analysis in Summum leads us to the conclusion that here, too, government speech is at issue.
First, the history of license plates shows that, insofar as license plates have conveyed more than state
names and vehicle identification numbers, they long have communicated messages from the States.
In 1917, Arizona became the first State to display a graphic on its plates. J. FOX, LICENSE PLATES OF THE
UNITED STATES (1997); J. MINARD & T. STENTIFORD, A MOVING HISTORY (2004). The State presented a
depiction of the head of a Hereford steer. In the years since, New Hampshire plates have featured the
profile of the "Old Man of the Mountain," Massachusetts plates have included a representation of the
Commonwealth's famous codfish, and Wyoming plates have displayed a rider atop a bucking bronco.

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In 1928, Idaho became the first State to include a slogan on its plates. The 1928 Idaho plate
proclaimed "Idaho Potatoes" and featured an illustration of a brown potato, onto which the license
plate number was superimposed in green. The brown potato did not catch on, but slogans on license
plates did. Over the years, state plates have included the phrases "North to the Future" (Alaska),
"Keep Florida Green" (Florida), "Hoosier Hospitality" (Indiana), "The Iodine Products State" (South
Carolina), "Green Mountains" (Vermont), and "America's Dairyland" (Wisconsin). States have used
license plate slogans to urge action, to promote tourism, and to tout local industries.
Texas, too, has selected various messages to communicate through its license plate designs. By 1919,
Texas had begun to display the Lone Star emblem on its plates. In 1936, the State's general-issue
plates featured the first slogan on Texas license plates: the word "Centennial." In 1968, Texas plates
promoted a San Antonio event by including the phrase "Hemisfair 68." In 1977, Texas replaced the
Lone Star with a small silhouette of the State. And in 1995, Texas plates celebrated "150 Years of
Statehood." Additionally, the Texas Legislature has specifically authorized specialty plate designs
stating, among other things, "Read to Succeed," "Houston Livestock Show and Rodeo," "Texans
Conquer Cancer," and "Girl Scouts." This kind of state speech has appeared on Texas plates for
decades.
Second, Texas license plate designs "are often closely identified in the public mind with the [State]."
Each Texas license plate is a government article serving the governmental purposes of vehicle
registration and identification. The governmental nature of the plates is clear from their faces: The
State places the name "TEXAS" in large letters at the top of every plate. Moreover, the State requires
Texas vehicle owners to display license plates, and every Texas license plate is issued by the State.
Texas also owns the designs on its license plates, including the designs that Texas adopts on the basis
of proposals made by private individuals and organizations. And Texas dictates the manner in which
drivers may dispose of unused plates.
Texas license plates are, essentially, government IDs. And issuers of ID "typically do not permit" the
placement on their IDs of "message[s] with which they do not wish to be associated." Summum.
Consequently, "persons who observe" designs on IDs "routinely--and reasonably--interpret them as
conveying some message on the [issuer's] behalf."
Indeed, a person who displays a message on a Texas license plate likely intends to convey to the
public that the State has endorsed that message. If not, the individual could simply display the
message in question in larger letters on a bumper sticker right next to the plate. But the individual
prefers a license plate design to the purely private speech expressed through bumper stickers. That
may well be because Texas's license plate designs convey government agreement with the message
displayed.
Third, Texas maintains direct control over the messages conveyed on its specialty plates. Texas law
provides that the State "has sole control over the design, typeface, color, and alphanumeric pattern
for all license plates." The Board must approve every specialty plate design proposal before the
design can appear on a Texas plate. And the Board and its predecessor have actively exercised this
authority. Texas asserts, and SCV concedes, that the State has rejected at least a dozen proposed
designs. Accordingly, like the city government in Summum, Texas "has 'effectively controlled' the
messages [conveyed] by exercising 'final approval authority' over their selection." (quoting Johanns).
This final approval authority allows Texas to choose how to present itself and its constituency. Thus,
Texas offers plates celebrating the many educational institutions attended by its citizens. But it need
not issue plates deriding schooling. Texas offers plates that pay tribute to the Texas citrus industry.
But it need not issue plates praising Florida's oranges as far better. And Texas offers plates that say
"Fight Terrorism." But it need not issue plates promoting al Qaeda.
These considerations, taken together, convince us that the specialty plates here in question are
similar enough to the monuments in Summum to call for the same result. That is not to say that every
element of our discussion in Summum is relevant here. For instance, in Summum we emphasized that
monuments were "permanent" and we observed that "public parks can accommodate only a limited
number of permanent monuments." We believed that the speech at issue was government speech
rather than private speech in part because we found it "hard to imagine how a public park could be
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opened up for the installation of permanent monuments by every person or group wishing to engage
in that form of expression." Here, a State could theoretically offer a much larger number of license
plate designs, and those designs need not be available for time immemorial.
But those characteristics of the speech at issue in Summum were particularly important because the
government speech at issue occurred in public parks, which are traditional public forums for "the
delivery of speeches and the holding of marches and demonstrations" by private citizens. By contrast,
license plates are not traditional public forums for private speech.
And other features of the designs on Texas's specialty license plates indicate that the message
conveyed by those designs is conveyed on behalf of the government. Texas, through its Board, selects
each design featured on the State's specialty license plates. Texas presents these designs on
government-mandated, government-controlled, and government-issued IDs that have traditionally
been used as a medium for government speech. And it places the designs directly below the large
letters identifying "TEXAS" as the issuer of the IDs. "The [designs] that are accepted, therefore, are
meant to convey and have the effect of conveying a government message, and they thus constitute
government speech."
C
SCV believes that Texas's specialty license plate designs are not government speech, at least with
respect to the designs (comprising slogans and graphics) that were initially proposed by private
parties. According to SCV, the State does not engage in expressive activity through such slogans and
graphics, but rather provides a forum for private speech by making license plates available to display
the private parties' designs. We cannot agree.
We have previously used what we have called "forum analysis" to evaluate government restrictions
on purely private speech that occurs on government property. Cornelius v. NAACP Legal Defense & Ed.
Fund, Inc. (1985). But forum analysis is misplaced here. Because the State is speaking on its own
behalf, the First Amendment strictures that attend the various types of government-established
forums do not apply.
The parties agree that Texas's specialty license plates are not a "traditional public forum," such as a
street or a park, "which ha[s] immemorially been held in trust for the use of the public and, time out
of mind, ha[s] been used for purposes of assembly, communicating thoughts between citizens, and
discussing public questions." Perry Ed. Assn. v. Perry Local Educators' Assn. (1983). * * *
It is equally clear that Texas's specialty plates are neither a " 'designated public forum,' " which exists
where "government property that has not traditionally been regarded as a public forum is
intentionally opened up for that purpose," nor a "limited public forum," which exists where a
government has "reserv[ed a forum] for certain groups or for the discussion of certain topics." A
government "does not create a public forum by inaction or by permitting limited discourse, but only
by intentionally opening a nontraditional forum for public discourse." And in order "to ascertain
whether [a government] intended to designate a place not traditionally open to assembly and debate
as a public forum," this Court "has looked to the policy and practice of the government" and to "the
nature of the property and its compatibility with expressive activity."
Texas's policies and the nature of its license plates indicate that the State did not intend its specialty
license plates to serve as either a designated public forum or a limited public forum. First, the State
exercises final authority over each specialty license plate design. This authority militates against a
determination that Texas has created a public forum. Second, Texas takes ownership of each
specialty plate design, making it particularly untenable that the State intended specialty plates to
serve as a forum for public discourse. Finally, Texas license plates have traditionally been used for
government speech, are primarily used as a form of government ID, and bear the State's name. These
features of Texas license plates indicate that Texas explicitly associates itself with the speech on its
plates.
For similar reasons, we conclude that Texas's specialty license plates are not a "nonpublic for[um],"
which exists "[w]here the government is acting as a proprietor, managing its internal operations."
With respect to specialty license plate designs, Texas is not simply managing government property,
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but instead is engaging in expressive conduct. As we have described, we reach this conclusion based
on the historical context, observers' reasonable interpretation of the messages conveyed by Texas
specialty plates, and the effective control that the State exerts over the design selection process.
Texas's specialty license plate designs "are meant to convey and have the effect of conveying a
government message." Summum. They "constitute government speech." Ibid.
The fact that private parties take part in the design and propagation of a message does not extinguish
the governmental nature of the message or transform the government's role into that of a mere
forum-provider. In Summum, private entities "financed and donated monuments that the
government accept[ed] and display[ed] to the public." Here, similarly, private parties propose
designs that Texas may accept and display on its license plates. In this case, as in Summum, the
"government entity may exercise [its] freedom to express its views" even "when it receives
assistance from private sources for the purpose of delivering a government-controlled message." And
in this case, as in Summum, forum analysis is inapposite.
Of course, Texas allows many more license plate designs than the city in Summum allowed
monuments. But our holding in Summum was not dependent on the precise number of monuments
found within the park. Indeed, we indicated that the permanent displays in New York City's Central
Park also constitute government speech. And an amicus brief had informed us that there were, at the
time, 52 such displays. Further, there may well be many more messages that Texas wishes to convey
through its license plates than there were messages that the city in Summum wished to convey
through its monuments. Texas's desire to communicate numerous messages does not mean that the
messages conveyed are not Texas's own.
Additionally, the fact that Texas vehicle owners pay annual fees in order to display specialty license
plates does not imply that the plate designs are merely a forum for private speech. While some
nonpublic forums provide governments the opportunity to profit from speech, the existence of
government profit alone is insufficient to trigger forum analysis. Thus, if the city in Summum had
established a rule that organizations wishing to donate monuments must also pay fees to assist in
park maintenance, we do not believe that the result in that case would have been any different. Here,
too, we think it sufficiently clear that Texas is speaking through its specialty license plate designs,
such that the existence of annual fees does not convince us that the specialty plates are a nonpublic
forum.
Finally, we note that this case does not resemble other cases in which we have identified a nonpublic
forum. This case is not like Perry Ed. Assn., where we found a school district's internal mail system to
be a nonpublic forum for private speech. There, it was undisputed that a number of private
organizations, including a teachers' union, had access to the mail system. It was therefore clear that
private parties, and not only the government, used the system to communicate. Here, by contrast,
each specialty license plate design is formally approved by and stamped with the imprimatur of
Texas.
Nor is this case like Lehman [ v. Shaker Heights (1974) (plurality)], where we found the advertising
space on city buses to be a nonpublic forum. There, the messages were located in a context
(advertising space) that is traditionally available for private speech. And the advertising space, in
contrast to license plates, bore no indicia that the speech was owned or conveyed by the government.
Nor is this case like Cornelius [v. NAACP Legal Defense & Ed. Fund, Inc. (1985)] where we determined
that a charitable fundraising program directed at federal employees constituted a nonpublic forum.
That forum lacked the kind of history present here. The fundraising drive had never been a medium
for government speech. Instead, it was established "to bring order to [a] solicitation process" which
had previously consisted of ad hoc solicitation by individual charitable organizations. The drive "was
designed to minimize . . . disruption to the [federal] workplace," not to communicate messages from
the government. Further, the charitable solicitations did not appear on a government ID under the
government's name. In contrast to the instant case, there was no reason for employees to "interpret
[the solicitation] as conveying some message on the [government's] behalf." Summum.
IV

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Our determination that Texas's specialty license plate designs are government speech does not mean
that the designs do not also implicate the free speech rights of private persons. We have
acknowledged that drivers who display a State's selected license plate designs convey the messages
communicated through those designs. See Wooley v. Maynard (1977) (observing that a vehicle "is
readily associated with its operator" and that drivers displaying license plates "use their private
property as a 'mobile billboard' for the State's ideological message"). And we have recognized that
the First Amendment stringently limits a State's authority to compel a private party to express a view
with which the private party disagrees. Wooley; Hurley v. Irish-American Gay, Lesbian and Bisexual
Group of Boston, Inc. (1995); West Virginia Bd. of Ed. v. Barnette (1943). But here, compelled private
speech is not at issue. And just as Texas cannot require SCV to convey "the State's ideological
message," Wooley, SCV cannot force Texas to include a Confederate battle flag on its specialty license
plates.
*. *. *.
For the reasons stated, we hold that Texas's specialty license plate designs constitute government
speech and that Texas was consequently entitled to refuse to issue plates featuring SCV's proposed
design. Accordingly, the judgment of the United States Court of Appeals for the Fifth Circuit is
Reversed.
JUSTICE ALITO, WITH WHOM THE CHIEF JUSTICE, JUSTICE SCALIA, AND JUSTICE KENNEDY JOIN, DISSENTING.
The Court's decision passes off private speech as government speech and, in doing so, establishes a
precedent that threatens private speech that government finds displeasing. Under our First
Amendment cases, the distinction between government speech and private speech is critical. The
First Amendment "does not regulate government speech," and therefore when government speaks, it
is free "to select the views that it wants to express." Pleasant Grove City v. Summum (2009). By
contrast, "[i]n the realm of private speech or expression, government regulation may not favor one
speaker over another." Rosenberger v. Rector and Visitors of Univ. of Va. (1995).
Unfortunately, the Court's decision categorizes private speech as government speech and thus strips
it of all First Amendment protection. The Court holds that all the privately created messages on the
many specialty plates issued by the State of Texas convey a government message rather than the
message of the motorist displaying the plate. Can this possibly be correct?
Here is a test. Suppose you sat by the side of a Texas highway and studied the license plates on the
vehicles passing by. You would see, in addition to the standard Texas plates, an impressive array of
specialty plates. (There are now more than 350 varieties.) You would likely observe plates that honor
numerous colleges and universities. You might see plates bearing the name of a high school, a
fraternity or sorority, the Masons, the Knights of Columbus, the Daughters of the American
Revolution, a realty company, a favorite soft drink, a favorite burger restaurant, and a favorite
NASCAR driver.
As you sat there watching these plates speed by, would you really think that the sentiments reflected
in these specialty plates are the views of the State of Texas and not those of the owners of the cars? If
a car with a plate that says "Rather Be Golfing" passed by at 8:30 am on a Monday morning, would
you think: "This is the official policy of the State--better to golf than to work?" If you did your viewing
at the start of the college football season and you saw Texas plates with the names of the University
of Texas's out-of-state competitors in upcoming games--Notre Dame, Oklahoma State, the University
of Oklahoma, Kansas State, Iowa State--would you assume that the State of Texas was officially (and
perhaps treasonously) rooting for the Longhorns' opponents? And when a car zipped by with a plate
that reads "NASCAR - 24 Jeff Gordon," would you think that Gordon (born in California, raised in
Indiana, resides in North Carolina) is the official favorite of the State government?
The Court says that all of these messages are government speech. It is essential that government be
able to express its own viewpoint, the Court reminds us, because otherwise, how would it promote
its programs, like recycling and vaccinations? So when Texas issues a "Rather Be Golfing" plate, but
not a "Rather Be Playing Tennis" or "Rather Be Bowling" plate, it is furthering a state policy to
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promote golf but not tennis or bowling. And when Texas allows motorists to obtain a Notre Dame
license plate but not a University of Southern California plate, it is taking sides in that long-time
rivalry.
This capacious understanding of government speech takes a large and painful bite out of the First
Amendment. Specialty plates may seem innocuous. They make motorists happy, and they put money
in a State's coffers. But the precedent this case sets is dangerous. While all license plates
unquestionably contain some government speech (e.g., the name of the State and the numbers and/or
letters identifying the vehicle), the State of Texas has converted the remaining space on its specialty
plates into little mobile billboards on which motorists can display their own messages. And what
Texas did here was to reject one of the messages that members of a private group wanted to post on
some of these little billboards because the State thought that many of its citizens would find the
message offensive. That is blatant viewpoint discrimination.
If the State can do this with its little mobile billboards, could it do the same with big, stationary
billboards? Suppose that a State erected electronic billboards along its highways. Suppose that the
State posted some government messages on these billboards and then, to raise money, allowed
private entities and individuals to purchase the right to post their own messages. And suppose that
the State allowed only those messages that it liked or found not too controversial. Would that be
constitutional?
What if a state college or university did the same thing with a similar billboard or a campus bulletin
board or dorm list serve? What if it allowed private messages that are consistent with prevailing
views on campus but banned those that disturbed some students or faculty? Can there be any doubt
that these examples of viewpoint discrimination would violate the First Amendment? I hope not, but
the future uses of today's precedent remain to be seen.* * *
I
A
[omitted]
B
The Texas Division of Sons of Confederate Veterans (SCV) is an organization composed of
descendants of Confederate soldiers. The group applied for a Texas specialty license plate in 2009
and again in 2010. Their proposed design featured a controversial symbol, the Confederate battle
flag, surrounded by the words "Sons of Confederate Veterans 1896" and a gold border. The Texas
Department of Motor Vehicles Board (or Board) invited public comments and considered the plate
design at a meeting in April 2011. At that meeting, one board member was absent, and the remaining
eight members deadlocked on whether to approve the plate. The Board thus reconsidered the plate
at its meeting in November 2011. This time, many opponents of the plate turned out to voice
objections. The Board then voted unanimously against approval and issued an order stating:
"The Board has considered the information and finds it necessary to deny this plate design
application, specifically the confederate flag portion of the design, because public comments have
shown that many members of the general public find the design offensive, and because such
comments are reasonable. The Board finds that a significant portion of the public associate the
confederate flag with organizations advocating expressions of hate directed toward people or groups
that is demeaning to those people or groups."
The Board also saw "a compelling public interest in protecting a conspicuous mechanism for
identification, such as a license plate, from degrading into a possible public safety issue." And it
thought that the public interest required rejection of the plate design because the controversy
surrounding the plate was so great that "the design could distract or disturb some drivers to the
point of being unreasonably dangerous."
At the same meeting, the Board approved a Buffalo Soldiers plate design by a 5-to-3 vote. Proceeds
from fees paid by motorists who select that plate benefit the Buffalo Soldier National Museum in
Houston, which is "dedicated primarily to preserving the legacy and honor of the African American
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soldier." Buffalo Soldier National Museum, online at http://www.buffalosoldiermuseum.com.
"Buffalo Soldiers" is a nickname that was originally given to black soldiers in the Army's 10th Cavalry
Regiment, which was formed after the Civil War, and the name was later used to describe other black
soldiers. The original Buffalo Soldiers fought with distinction in the Indian Wars, but the "Buffalo
Soldiers" plate was opposed by some Native Americans. One leader commented that he felt " 'the
same way about the Buffalo Soldiers' " as African-Americans felt about the Confederate flag. “'When
we see the U. S. Cavalry uniform,' " he explained, " 'we are forced to relive an American holocaust.' "
II
[omitted]
III
What Texas has done by selling space on its license plates is to create what we have called a limited
public forum. It has allowed state property (i.e., motor vehicle license plates) to be used by private
speakers according to rules that the State prescribes. Under the First Amendment, however, those
rules cannot discriminate on the basis of viewpoint. See Rosenberger. But that is exactly what Texas
did here. The Board rejected Texas SCV's design, "specifically the confederate flag portion of the
design, because public comments have shown that many members of the general public find the
design offensive, and because such comments are reasonable." These statements indisputably
demonstrate that the Board denied Texas SCV's design because of its viewpoint.
The Confederate battle flag is a controversial symbol. To the Texas Sons of Confederate Veterans, it is
said to evoke the memory of their ancestors and other soldiers who fought for the South in the Civil
War. To others, it symbolizes slavery, segregation, and hatred. Whatever it means to motorists who
display that symbol and to those who see it, the flag expresses a viewpoint. The Board rejected the
plate design because it concluded that many Texans would find the flag symbol offensive. That was
pure viewpoint discrimination.
If the Board's candid explanation of its reason for rejecting the SCV plate were not alone sufficient to
establish this point, the Board's approval of the Buffalo Soldiers plate at the same meeting dispels
any doubt. The proponents of both the SCV and Buffalo Soldiers plates saw them as honoring soldiers
who served with bravery and honor in the past. To the opponents of both plates, the images on the
plates evoked painful memories. The Board rejected one plate and approved the other.
Like these two plates, many other specialty plates have the potential to irritate and perhaps even
infuriate those who see them. Texas allows a plate with the words "Choose Life," but the State of New
York rejected such a plate because the message " '[is] so incredibly divisive,' " and the Second Circuit
recently sustained that decision. Children First Foundation, Inc. v. Fiala (2nd Cir. 2015). Texas allows a
specialty plate honoring the Boy Scouts, but the group's refusal to accept gay leaders angers some.
Virginia, another State with a proliferation of specialty plates, issues plates for controversial
organizations like the National Rifle Association, controversial commercial enterprises (raising
tobacco and mining coal), controversial sports (fox hunting), and a professional sports team with a
controversial name (the Washington Redskins). Allowing States to reject specialty plates based on
their potential to offend is viewpoint discrimination.
The Board's decision cannot be saved by its suggestion that the plate, if allowed, "could distract or
disturb some drivers to the point of being unreasonably dangerous." This rationale cannot withstand
strict scrutiny. Other States allow specialty plates with the Confederate Battle Flag, and Texas has not
pointed to evidence that these plates have led to incidents of road rage or accidents. Texas does not
ban bumper stickers bearing the image of the Confederate battle flag. Nor does it ban any of the many
other bumper stickers that convey political messages and other messages that are capable of exciting
the ire of those who loathe the ideas they express.
Messages that are proposed by private parties and placed on Texas specialty plates are private
speech, not government speech. Texas cannot forbid private speech based on its viewpoint. That is
what it did here. Because the Court approves this violation of the First Amendment, I respectfully
dissent.

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Notes

1.
Note that the consequence of a finding of “government speech” removes the subject from
First Amendment analysis.
2.
Consider Justice Thomas’s position in the majority of the 5-4 decision in Walker v. Texas
Division, Sons of Confederate Veterans. Recall that Thomas authored the other 2014-15 Term First
Amendment decision in this chapter, Reed v. Town of Gilbert.
3.
How would you explain the difference between a forum opened by the government for
“private speech” and a “forum” that is government speech?
4.
The Court announced its decision in Walker on the morning of June 18, 2015. The previous
evening, a white male about 21 years of age entered an historically black church, Emanuel African
Methodist Episcopal Church in downtown Charleston, South Carolina, participated in a Bible study
session, and then opened fire with a handgun, killing nine people, including a state senator. Images of
the alleged perpetrator, Dylann Roof, were later publicized including one in which he posed with a
car bearing a Confederate battle flag license plate and another in which he brandished a gun in front
of a Confederate flag. On July 9, 2015, the state Governor signed legislation removing the Confederate
flag from the state capitol grounds, where it had been displayed since 1962, although relocated in
2000.

VI. Patent Restrictions in the Roberts Court
In this pair of cases, consider all the arguments regarding the unconstitutionality of provisions of the
Lanham Act governing registration of trademarks.

Matal v. Tam
582 U.S. ___(2017)

ALITO, J., ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED THE OPINION OF THE COURT WITH RESPECT TO
PARTS I, II, AND III–A, IN WHICH ROBERTS, C. J., AND KENNEDY, GINSBURG, BREYER, SOTOMAYOR, AND KAGAN, JJ.,
JOINED, AND IN WHICH THOMAS, J., JOINED EXCEPT FOR PART II, AND AN OPINION WITH RESPECT TO PARTS III–B, III–
C, AND IV, IN WHICH ROBERTS, C. J., AND THOMAS AND BREYER, JJ., JOINED. KENNEDY, J., FILED AN OPINION
CONCURRING IN PART AND CONCURRING IN THE JUDGMENT, IN WHICH GINSBURG, SOTOMAYOR, AND KAGAN, JJ., JOINED.
THOMAS, J., FILED AN OPINION CONCURRING IN PART AND CONCURRING IN THE JUDGMENT. GORSUCH, J., TOOK NO PART
IN THE CONSIDERATION OR DECISION OF THE CASE.
JUSTICE ALITO ANNOUNCED THE JUDGMENT OF THE COURT AND DELIVERED THE OPINION OF THE COURT WITH
RESPECT TO PARTS I, II, AND III–A, AND AN OPINION WITH RESPECT TO PARTS III–B, III–C, AND IV, IN WHICH THE
CHIEF JUSTICE, JUSTICE THOMAS, AND JUSTICE BREYER JOIN.
This case concerns a dance-rock band’s application for federal trademark registration of the band’s
name, “The Slants.” “Slants” is a derogatory term for persons of Asian descent, and members of the
band are Asian-Americans. But the band members believe that by taking that slur as the name of
their group, they will help to “reclaim” the term and drain its denigrating force.
The Patent and Trademark Office (PTO) denied the application based on a provision of federal law
prohibiting the registration of trademarks that may “disparage . . . or bring . . . into contemp[t] or
disrepute” any “persons, living or dead.” 15 U. S. C. §1052(a). We now hold that this provision
violates the Free Speech Clause of the First Amendment. It offends a bedrock First Amendment
principle: Speech may not be banned on the ground that it expresses ideas that offend.

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I
A
“The principle underlying trademark protection is that distinctive marks—words, names, symbols,
and the like— can help distinguish a particular artisan’s goods from those of others.” A trademark
“designate[s] the goods as the product of a particular trader” and “protect[s] his good will against the
sale of another’s product as his.” It helps consumers identify goods and services that they wish to
purchase, as well as those they want to avoid.
“[F]ederal law does not create trademarks.” Trademarks and their precursors have ancient origins,
and trademarks were protected at common law and in equity at the time of the founding of our
country. For most of the 19th century, trademark protection was the province of the States.
Eventually, Congress stepped in to provide a degree of national uniformity, passing the first federal
legislation protecting trademarks in 1870. See Act of July 8, 1870, §§77–84, 16 Stat. 210–212. The
foundation of current federal trademark law is the Lanham Act, enacted in 1946. See Act of July 5,
1946, ch. 540, 60 Stat. 427. By that time, trademark had expanded far beyond phrases that do no
more than identify a good or service. Then, as now, trademarks often consisted of catchy phrases that
convey a message. Under the Lanham Act, trademarks that are “used in commerce” may be placed on
the “principal register,” that is, they may be federally registered. 15 U. S. C. §1051(a)(1). And some
marks “capable of distinguishing [an] applicant’s goods or services and not registrable on the
principal register . . . which are in lawful use in commerce by the owner thereof” may instead be
placed on a different federal register: the supplemental register. §1091(a). There are now more than
two million marks that have active federal certificates of registration. This system of federal
registration helps to ensure that trademarks are fully protected and supports the free flow of
commerce. “[N]ational protection of trademarks is desirable,” we have explained, “because
trademarks foster competition and the maintenance of quality by securing to the producer the
benefits of good reputation.” San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.
S. 522, 531 (1987) (internal quotation marks omitted).
B
Without federal registration, a valid trademark may still be used in commerce. And an unregistered
trademark can be enforced against would-be infringers in several ways. Most important, even if a
trademark is not federally registered, it may still be enforceable under §43(a) of the Lanham Act,
which creates a federal cause of action for trademark infringement. Unregistered trademarks may
also be entitled to protection under other federal statutes, such as the Anticybersquatting Consumer
Protection Act, 15 U. S. C. §1125(d). And an unregistered trademark can be enforced under state
common law, or if it has been registered in a State, under that State’s registration system.
Registration on the principal [federal] register (1) “serves as ‘constructive notice of the registrant’s
claim of ownership’ of the mark;” (2) “is ‘prima facie evidence of the validity of the registered mark
and of the registration of the mark, of the owner’s ownership of the mark, and of the owner’s
exclusive right to use the registered mark in commerce on or in connection with the goods or
services specified in the certificate,’” and (3) can make a mark “‘incontestable’” once a mark has been
registered for five years.” Registration also enables the trademark holder “to stop the importation
into the United States of articles bearing an infringing mark.”
C
The Lanham Act contains provisions that bar certain trademarks from the principal register. For
example, a trademark cannot be registered if it is “merely descriptive or deceptively misdescriptive”
of goods, §1052(e)(1), or if it is so similar to an already registered trademark or trade name that it is
“likely . . . to cause confusion, or to cause mistake, or to deceive,” §1052(d).
At issue in this case is one such provision, which we will call “the disparagement clause.” This
provision prohibits the registration of a trademark “which may disparage . . . persons, living or dead,
institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” §1052(a). This
clause appeared in the original Lanham Act and has remained the same to this day.

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When deciding whether a trademark is disparaging, an examiner at the PTO generally applies a “twopart test.” The examiner first considers “the likely meaning of the matter in question, taking into
account not only dictionary definitions, but also the relationship of the matter to the other elements
in the mark, the nature of the goods or services, and the manner in which the mark is used in the
marketplace in connection with the goods or services.” TRADEMARK MANUAL OF EXAMINING PROCEDURE
§1203.03(b)(i). “If that meaning is found to refer to identifiable persons, institutions, beliefs or
national symbols,” the examiner moves to the second step, asking “whether that meaning may be
disparaging to a substantial composite [fn: “component”] of the referenced group.” Ibid. If the
examiner finds that a “substantial composite, although not necessarily a majority, of the referenced
group would find the proposed mark . . . to be disparaging in the context of contemporary attitudes,”
a prima facie case of disparagement is made out, and the burden shifts to the applicant to prove that
the trademark is not disparaging. Ibid. What is more, the PTO has specified that “[t]he fact that an
applicant may be a member of that group or has good intentions underlying its use of a term does not
obviate the fact that a substantial composite of the referenced group would find the term
objectionable.” Ibid.
D
Simon Tam is the lead singer of “The Slants.” He chose this moniker in order to “reclaim” and “take
ownership” of stereotypes about people of Asian ethnicity. The group “draws inspiration for its lyrics
from childhood slurs and mocking nursery rhymes” and has given its albums names such as “The
Yellow Album” and “Slanted Eyes, Slanted Hearts.”
Tam sought federal registration of “THE SLANTS,” on the principal register, but an examining
attorney at the PTO rejected the request, applying the PTO’s two part framework and finding that
“there is . . . a substantial composite of persons who find the term in the applied for mark offensive.”
The examining attorney relied in part on the fact that “numerous dictionaries define ‘slants’ or ‘slanteyes’ as a derogatory or offensive term.” The examining attorney also relied on a finding that “the
band’s name has been found offensive numerous times”—citing a performance that was canceled
because of the band’s moniker and the fact that “several bloggers and commenters to articles on the
band have indicated that they find the term and the applied-for mark offensive.”
Tam contested the denial of registration before the examining attorney and before the PTO’s
Trademark Trial and Appeal Board (TTAB) but to no avail. Eventually, he took the case to federal
court, where the en banc Federal Circuit ultimately found the disparagement clause facially
unconstitutional under the First Amendment’s Free Speech Clause. The majority found that the
clause engages in viewpoint-based discrimination, that the clause regulates the expressive
component of trademarks and consequently cannot be treated as commercial speech, and that the
clause is subject to and cannot satisfy strict scrutiny. The majority also rejected the Government’s
argument that registered trademarks constitute government speech, as well as the Government’s
contention that federal registration is a form of government subsidy. And the majority opined that
even if the disparagement clause were analyzed under this Court’s commercial speech cases, the
clause would fail the “intermediate scrutiny” that those cases prescribe.
Several judges wrote separately, advancing an assortment of theories. Concurring, Judge O’Malley
agreed with the majority’s reasoning but added that the disparagement clause is unconstitutionally
vague. Judge Dyk concurred in part and dissented in part. He argued that trademark registration is a
government subsidy and that the disparagement clause is facially constitutional, but he found the
clause unconstitutional as applied to THE SLANTS because that mark constitutes “core expression”
and was not adopted for the purpose of disparaging Asian-Americans. In dissent, Judge Lourie agreed
with Judge Dyk that the clause is facially constitutional but concluded for a variety of reasons that it
is also constitutional as applied in this case. Judge Reyna also dissented, maintaining that trademarks
are commercial speech and that the disparagement clause survives intermediate scrutiny because it
“directly advances the government’s substantial interest in the orderly flow of commerce.”
The Government filed a petition for certiorari, which we granted in order to decide whether the
disparagement clause “is facially invalid under the Free Speech Clause of the First Amendment.”

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II
[omitted; Court rejected argument that disparagement clause did not apply]
III
Because the disparagement clause applies to marks that disparage the members of a racial or ethnic
group, we must decide whether the clause violates the Free Speech Clause of the First Amendment.
And at the outset, we must consider three arguments that would either eliminate any First
Amendment protection or result in highly permissive rational-basis review. Specifically, the
Government contends (1) that trademarks are government speech, not private speech, (2) that
trademarks are a form of government subsidy, and (3) that the constitutionality of the
disparagement clause should be tested under a new “government-program” doctrine. We address
each of these arguments below.
A
The First Amendment prohibits Congress and other government entities and actors from “abridging
the freedom of speech”; the First Amendment does not say that Congress and other government
entities must abridge their own ability to speak freely. And our cases recognize that “[t]he Free
Speech Clause . . . does not regulate government speech.” Pleasant Grove City v. Summum (2009); see
Johanns v. Livestock Marketing Assn. (2005) (“[T]he Government’s own speech . . . is exempt from
First Amendment scrutiny”); Board of Regents of Univ. of Wis. System v. Southworth (2000).
As we have said, “it is not easy to imagine how government could function” if it were subject to the
restrictions that the First Amendment imposes on private speech. Summum, see Walker v. Texas Div.,
Sons of Confederate Veterans, Inc., (2015) “‘[T]he First Amendment forbids the government to
regulate speech in ways that favor some viewpoints or ideas at the expense of others,’” Lamb’s Chapel
v. Center Moriches Union Free School Dist. (1993), but imposing a requirement of viewpoint-neutrality
on government speech would be paralyzing. When a government entity embarks on a course of
action, it necessarily takes a particular viewpoint and rejects others. The Free Speech Clause does not
require government to maintain viewpoint neutrality when its officers and employees speak about
that venture.
Here is a simple example. During the Second World War, the Federal Government produced and
distributed millions of posters to promote the war effort. There were posters urging enlistment, the
purchase of war bonds, and the conservation of scarce resources. These posters expressed a
viewpoint, but the First Amendment did not demand that the Government balance the message of
these posters by producing and distributing posters encouraging Americans to refrain from engaging
in these activities.
But while the government-speech doctrine is important—indeed, essential—it is a doctrine that is
susceptible to dangerous misuse. If private speech could be passed off as government speech by
simply affixing a government seal of approval, government could silence or muffle the expression of
disfavored viewpoints. For this reason, we must exercise great caution before extending our
government-speech precedents.
At issue here is the content of trademarks that are registered by the PTO, an arm of the Federal
Government. The Federal Government does not dream up these marks, and it does not edit marks
submitted for registration. Except as required by the statute involved here, 15 U. S. C. §1052(a), an
examiner may not reject a mark based on the viewpoint that it appears to express. Thus, unless that
section is thought to apply, an examiner does not inquire whether any viewpoint conveyed by a mark
is consistent with Government policy or whether any such viewpoint is consistent with that
expressed by other marks already on the principal register. Instead, if the mark meets the Lanham
Act’s viewpoint-neutral requirements, registration is mandatory. Ibid. (requiring that “[n]o
trademark . . . shall be refused registration on the principal register on account of its nature unless” it
falls within an enumerated statutory exception). And if an examiner finds that a mark is eligible for
placement on the principal register, that decision is not reviewed by any higher official unless the
registration is challenged. See §§1062(a), 1071; 37 CFR §41.31(a) (2016). Moreover, once a mark is
registered, the PTO is not authorized to remove it from the register unless a party moves for
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cancellation, the registration expires, or the Federal Trade Commission initiates proceedings based
on certain grounds. See 15 U. S. C. §§1058(a), 1059, 1064; 37 CFR §§2.111(b), 2.160. In light of all this,
it is far-fetched to suggest that the content of a registered mark is government speech. If the federal
registration of a trademark makes the mark government speech, the Federal Government is babbling
prodigiously and incoherently. It is saying many unseemly things. It is expressing contradictory
views. It is unashamedly endorsing a vast array of commercial products and services. And it is
providing Delphic advice to the consuming public.
For example, if trademarks represent government speech, what does the Government have in mind
when it advises Americans to “make believe” (Sony), “Think different” (Apple), “Just do it” (Nike), or
“Have it your way” (Burger King)? Was the Government warning about a coming disaster when it
registered the mark “EndTime Ministries”?
The PTO has made it clear that registration does not constitute approval of a mark. See In re Old Glory
Condom Corp., 26 USPQ 2d 1216, 1220, n. 3 (TTAB 1993) (“[I]ssuance of a trademark registration . . .
is not a government imprimatur”). And it is unlikely that more than a tiny fraction of the public has
any idea what federal registration of a trademark means.
None of our government speech cases even remotely supports the idea that registered trademarks
are government speech. In Johanns, we considered advertisements promoting the sale of beef
products. A federal statute called for the creation of a program of paid advertising “‘to advance the
image and desirability of beef and beef products.’” Congress and the Secretary of Agriculture
provided guidelines for the content of the ads, Department of Agriculture officials attended the
meetings at which the content of specific ads was discussed, and the Secretary could edit or reject
any proposed ad. Noting that “[t]he message set out in the beef promotions [was] from beginning to
end the message established by the Federal Government,” we held that the ads were government
speech. The Government’s involvement in the creation of these beef ads bears no resemblance to
anything that occurs when a trademark is registered. Our decision in Summum is similarly far afield.
A small city park contained 15 monuments. Eleven had been donated by private groups, and one of
these displayed the Ten Commandments. A religious group claimed that the city, by accepting
donated monuments, had created a limited public forum for private speech and was therefore
obligated to place in the park a monument expressing the group’s religious beliefs. Holding that the
monuments in the park represented government speech, we cited many factors. Governments have
used monuments to speak to the public since ancient times; parks have traditionally been selective in
accepting and displaying donated monuments; parks would be overrun if they were obligated to
accept all monuments offered by private groups; “[p]ublic parks are often closely identified in the
public mind with the government unit that owns the land”; and “[t]he monuments that are
accepted . . . are meant to convey and have the effect of conveying a government message.”
Trademarks share none of these characteristics. Trademarks have not traditionally been used to
convey a Government message. With the exception of the enforcement of 15 U. S. C. §1052(a), the
viewpoint expressed by a mark has not played a role in the decision whether to place it on the
principal register. And there is no evidence that the public associates the contents of trademarks with
the Federal Government.
This brings us to the case on which the Government relies most heavily, Walker, which likely marks
the outer bounds of the government-speech doctrine. Holding that the messages on Texas specialty
license plates are government speech, the Walker Court cited three factors distilled from Summum.
First, license plates have long been used by the States to convey state messages. Second, license
plates “are often closely identified in the public mind” with the State, since they are manufactured
and owned by the State, generally designed by the State, and serve as a form of “government ID.”
Third, Texas “maintain[ed] direct control over the messages conveyed on its specialty plates.” As
explained above, none of these factors are present in this case.
In sum, the federal registration of trademarks is vastly different from the beef ads in Johanns, the
monuments in Summum, and even the specialty license plates in Walker. Holding that the registration
of a trademark converts the mark into government speech would constitute a huge and dangerous
extension of the government-speech doctrine. For if the registration of trademarks constituted
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government speech, other systems of government registration could easily be characterized in the
same way.
Perhaps the most worrisome implication of the Government’s argument concerns the system of
copyright registration. If federal registration makes a trademark government speech and thus
eliminates all First Amendment protection, would the registration of the copyright for a book
produce a similar transformation?
The Government attempts to distinguish copyright on the ground that it is “‘the engine of free
expression,’” but as this case illustrates, trademarks often have an expressive content. Companies
spend huge amounts to create and publicize trademarks that convey a message. It is true that the
necessary brevity of trademarks limits what they can say. But powerful messages can sometimes be
conveyed in just a few words.
Trademarks are private, not government, speech.
B
We next address the Government’s argument that this case is governed by cases in which this Court
has upheld the constitutionality of government programs that subsidized speech expressing a
particular viewpoint. These cases implicate a notoriously tricky question of constitutional law. “[W]e
have held that the Government ‘may not deny a benefit to a person on a basis that infringes his
constitutionally protected . . . freedom of speech even if he has no entitlement to that benefit.’” Agency
for Int’l Development v. Alliance for Open Society Int’l, Inc. (2013) (But at the same time, government is
not required to subsidize activities that it does not wish to promote.) Determining which of these
principles applies in a particular case “is not always self-evident,” but no difficult question is
presented here.
Unlike the present case, the decisions on which the Government relies all involved cash subsidies or
their equivalent. In Rust v. Sullivan (1991), a federal law provided funds to private parties for family
planning services. In National Endowment for Arts v. Finley (1998), cash grants were awarded to
artists. And federal funding for public libraries was at issue in United States v. American Library Assn.,
Inc. (2003). In other cases, we have regarded tax benefits as comparable to cash subsidies. The
federal registration of a trademark is nothing like the programs at issue in these cases. The PTO does
not pay money to parties seeking registration of a mark. Quite the contrary is true: An applicant for
registration must pay the PTO a filing fee of $225–$600. 37 CFR §2.6(a)(1). (Tam submitted a fee of
$275 as part of his application to register THE SLANTS.) And to maintain federal registration, the
holder of a mark must pay a fee of $300–$500 every 10 years. §2.6(a)(5); see also 15 U. S. C. §1059(a).
The Federal Circuit concluded that these fees have fully supported the registration system for the
past 27 years. The Government responds that registration provides valuable non-monetary benefits
that “are directly traceable to the resources devoted by the federal government to examining,
publishing, and issuing certificates of registration for those marks.” But just about every government
service requires the expenditure of government funds. This is true of services that benefit everyone,
like police and fire protection, as well as services that are utilized by only some, e.g., the adjudication
of private lawsuits and the use of public parks and highways. Trademark registration is not the only
government registration scheme. For example, the Federal Government registers copyrights and
patents. State governments and their subdivisions register the title to real property and security
interests; they issue driver’s licenses, motor vehicle registrations, and hunting, fishing, and boating
licenses or permits.
Cases like Rust and Finley are not instructive in analyzing the constitutionality of restrictions on
speech imposed in connection with such services.
C
Finally, the Government urges us to sustain the disparagement clause under a new doctrine that
would apply to “government-program” cases. For the most part, this argument simply merges our
government-speech cases and the previously discussed subsidy cases in an attempt to construct a
broader doctrine that can be applied to the registration of trademarks. The only new element in this
construct consists of two cases involving a public employer’s collection of union dues from its
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employees. But those cases occupy a special area of First Amendment case law, and they are far
removed from the registration of trademarks.
In Davenport v. Washington Ed. Assn. (2007), a Washington law permitted a public employer
automatically to deduct from the wages of employees who chose not to join the union the portion of
union dues used for activities related to collective bargaining. But unless these employees
affirmatively consented, the law did not allow the employer to collect the portion of union dues that
would be used in election activities. A public employee union argued that this law unconstitutionally
restricted its speech based on its content; that is, the law permitted the employer to assist union
speech on matters relating to collective bargaining but made it harder for the union to collect money
to support its election activities. Upholding this law, we characterized it as imposing a “modest
limitation” on an “extraordinary benefit,” namely, taking money from the wages of non-union
members and turning it over to the union free of charge. Refusing to confer an even greater benefit,
we held, did not upset the marketplace of ideas and did not abridge the union’s free speech rights.
Ysursa v. Pocatello Ed. Assn. (2009), is similar. There, we considered an Idaho law that allowed public
employees to elect to have union dues deducted from their wages but did not allow such a deduction
for money remitted to the union’s political action committee. We reasoned that the “the
government . . . [was] not required to assist others in funding the expression of particular ideas.”
Davenport and Ysursa are akin to our subsidy cases. Although the laws at issue in Davenport and
Ysursa did not provide cash subsidies to the unions, they conferred a very valuable benefit—the right
to negotiate a collective bargaining agreement under which non-members would be obligated to pay
an agency fee that the public employer would collect and turn over to the union free of charge. As in
the cash subsidy cases, the laws conferred this benefit because it was thought that this arrangement
served important government interests. See Abood v. Detroit Bd. of Ed. (1977). But the challenged
laws did not go further and provide convenient collection mechanisms for money to be used in
political activities. In essence, the Washington and Idaho lawmakers chose to confer a substantial
non-cash benefit for the purpose of furthering activities that they particularly desired to promote but
not to provide a similar benefit for the purpose of furthering other activities. Thus, Davenport and
Ysursa are no more relevant for present purposes than the subsidy cases previously discussed.
Potentially more analogous are cases in which a unit of government creates a limited public forum
for private speech. See, e.g., Good News Club v. Milford Central School (2001); Rosenberger v. Rector
and Visitors of Univ. of Va. (1995). When government creates such a forum, in either a literal or
“metaphysical” sense, see Rosenberger, some content- and speaker-based restrictions may be allowed.
However, even in such cases, what we have termed “viewpoint discrimination” is forbidden.
Our cases use the term “viewpoint” discrimination in a broad sense, and in that sense, the
disparagement clause discriminates on the bases of “viewpoint.” To be sure, the clause evenhandedly
prohibits disparagement of all groups. It applies equally to marks that damn Democrats and
Republicans, capitalists and socialists, and those arrayed on both sides of every possible issue. It
denies registration to any mark that is offensive to a substantial percentage of the members of any
group. But in the sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint.
We have said time and again that “the public expression of ideas may not be prohibited merely
because the ideas are themselves offensive to some of their hearers.” Street v. New York (1969). See
also Texas v. Johnson (1989) (“If there is a bedrock principle underlying the First Amendment, it is
that the government may not prohibit the expression of an idea simply because society finds the idea
itself offensive or disagreeable”); Hustler Magazine, Inc. v. Falwell (1988); Tinker v. Des Moines
Independent Community School Dist., (1969); Cox v. Louisiana (1965); Cantwell v. Connecticut (1940);
Schneider v. State (Town of Irvington) (1939); De Jonge v. Oregon (1937).
For this reason, the disparagement clause cannot be saved by analyzing it as a type of government
program in which some content- and speaker-based restrictions are permitted.
IV
Having concluded that the disparagement clause cannot be sustained under our government-speech
or subsidy cases or under the Government’s proposed “government program” doctrine, we must
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confront a dispute between the parties on the question whether trademarks are commercial speech
and are thus subject to the relaxed scrutiny outlined in Central Hudson Gas & Elec. Corp. v. Public Serv.
Comm’n of N. Y. (1980) [Chapter 9]. The Government and amici supporting its position argue that all
trademarks are commercial speech. They note that the central purposes of trademarks are
commercial and that federal law regulates trademarks to promote fair and orderly interstate
commerce. Tam and his amici, on the other hand, contend that many, if not all, trademarks have an
expressive component. In other words, these trademarks do not simply identify the source of a
product or service but go on to say something more, either about the product or service or some
broader issue. The trademark in this case illustrates this point. The name “The Slants” not only
identifies the band but expresses a view about social issues.
We need not resolve this debate between the parties because the disparagement clause cannot
withstand even Central Hudson review.
Under Central Hudson, a restriction of speech must serve “a substantial interest,” and it must be
“narrowly drawn.” This means, among other things, that “[t]he regulatory technique may extend only
as far as the interest it serves.” The disparagement clause fails this requirement.
It is claimed that the disparagement clause serves two interests. The first is phrased in a variety of
ways in the briefs. Echoing language in one of the opinions below, the Government asserts an interest
in preventing “‘underrepresented groups’” from being “‘bombarded with demeaning messages in
commercial advertising.’” An amicus supporting the Government refers to “encouraging racial
tolerance and protecting the privacy and welfare of individuals.” Brief for Native American
Organizations as Amici Curiae 21. But no matter how the point is phrased, its unmistakable thrust is
this: The Government has an interest in preventing speech expressing ideas that offend. And, as we
have explained, that idea strikes at the heart of the First Amendment. Speech that demeans on the
basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the
proudest boast of our free speech jurisprudence is that we protect the freedom to express “the
thought that we hate.” United States v. Schwimmer (1929) (Holmes, J., dissenting).
The second interest asserted is protecting the orderly flow of commerce. Commerce, we are told, is
disrupted by trademarks that “involv[e] disparagement of race, gender, ethnicity, national origin,
religion, sexual orientation, and similar demographic classification.” Such trademarks are analogized
to discriminatory conduct, which has been recognized to have an adverse effect on commerce. See
Brief for Native American Organizations as Amici Curiae.
A simple answer to this argument is that the disparagement clause is not “narrowly drawn” to drive
out trademarks that support invidious discrimination. The clause reaches any trademark that
disparages any person, group, or institution. It applies to trademarks like the following: “Down with
racists,” “Down with sexists,” “Down with homophobes.” It is not an anti-discrimination clause; it is a
happy-talk clause. In this way, it goes much further than is necessary to serve the interest asserted.
The clause is far too broad in other ways as well. The clause protects every person living or dead as
well as every institution. Is it conceivable that commerce would be disrupted by a trademark saying:
“James Buchanan was a disastrous president” or “Slavery is an evil institution”? There is also a
deeper problem with the argument that commercial speech may be cleansed of any expression likely
to cause offense. The commercial market is well stocked with merchandise that disparages
prominent figures and groups, and the line between commercial and non-commercial speech is not
always clear, as this case illustrates. If affixing the commercial label permits the suppression of any
speech that may lead to political or social “volatility,” free speech would be endangered.
For these reasons, we hold that the disparagement clause violates the Free Speech Clause of the First
Amendment. The judgment of the Federal Circuit is affirmed.
It is so ordered.
JUSTICE KENNEDY, WITH WHOM JUSTICE GINSBURG, JUSTICE SOTOMAYOR, AND JUSTICE KAGAN JOIN, CONCURRING IN
PART AND CONCURRING IN THE JUDGMENT.

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The Patent and Trademark Office (PTO) has denied the substantial benefits of federal trademark
registration to the mark THE SLANTS. The PTO did so under the mandate of the disparagement
clause in 15 U. S. C. §1052(a), which prohibits the registration of marks that may “disparage . . . or
bring . . . into contemp[t] or disrepute” any “persons, living or dead, institutions, beliefs, or national
symbols.”
As the Court is correct to hold, §1052(a) constitutes viewpoint discrimination—a form of speech
suppression so potent that it must be subject to rigorous constitutional scrutiny. The Government’s
action and the statute on which it is based cannot survive this scrutiny. The Court is correct in its
judgment, and I join Parts I, II, and III–A of its opinion. This separate writing explains in greater detail
why the First Amendment’s protections against viewpoint discrimination apply to the trademark
here. It submits further that the viewpoint discrimination rationale renders unnecessary any
extended treatment of other questions raised by the parties.
I
Those few categories of speech that the government can regulate or punish—for instance, fraud,
defamation, or incitement—are well established within our constitutional tradition. See United States
v. Stevens (2010) [Chapter 10]. Aside from these and a few other narrow exceptions, it is a
fundamental principle of the First Amendment that the government may not punish or suppress
speech based on disapproval of the ideas or perspectives the speech conveys. See Rosenberger v.
Rector and Visitors of Univ. of Va. (1995).
The First Amendment guards against laws “targeted at specific subject matter,” a form of speech
suppression known as content based discrimination. Reed v. Town of Gilbert (2015). This category
includes a subtype of laws that go further, aimed at the suppression of “particular views . . . on a
subject.” Rosenberger. A law found to discriminate based on viewpoint is an “egregious form of
content discrimination,” which is “presumptively unconstitutional.”
At its most basic, the test for viewpoint discrimination is whether—within the relevant subject
category—the government has singled out a subset of messages for disfavor based on the views
expressed. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc. (1985) (“[T]he government violates
the First Amendment when it denies access to a speaker solely to suppress the point of view he
espouses on an otherwise includible subject”). In the instant case, the disparagement clause the
Government now seeks to implement and enforce identifies the relevant subject as “persons, living or
dead, institutions, beliefs, or national symbols.” 15 U. S. C. §1052(a). Within that category, an
applicant may register a positive or benign mark but not a derogatory one. The law thus reflects the
Government’s disapproval of a subset of messages it finds offensive. This is the essence of viewpoint
discrimination.
The Government disputes this conclusion. It argues, to begin with, that the law is viewpoint neutral
because it applies in equal measure to any trademark that demeans or offends. This misses the point.
A subject that is first defined by content and then regulated or censored by mandating only one sort
of comment is not viewpoint neutral. To prohibit all sides from criticizing their opponents makes a
law more viewpoint based, not less so. Cf. Rosenberger (“The . . . declaration that debate is not skewed
so long as multiple voices are silenced is simply wrong; the debate is skewed in multiple ways”). The
logic of the Government’s rule is that a law would be viewpoint neutral even if it provided that public
officials could be praised but not condemned. The First Amendment’s viewpoint neutrality principle
protects more than the right to identify with a particular side. It protects the right to create and
present arguments for particular positions in particular ways, as the speaker chooses. By mandating
positivity, the law here might silence dissent and distort the marketplace of ideas.
The Government next suggests that the statute is viewpoint neutral because the disparagement
clause applies to trademarks regardless of the applicant’s personal views or reasons for using the
mark. Instead, registration is denied based on the expected reaction of the applicant’s audience. In
this way, the argument goes, it cannot be said that Government is acting with hostility toward a
particular point of view. For example, the Government does not dispute that respondent seeks to use
his mark in a positive way. Indeed, respondent endeavors to use The Slants to supplant a racial
epithet, using new insights, musical talents, and wry humor to make it a badge of pride. Respondent’s
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application was denied not because the Government thought his object was to demean or offend but
because the Government thought his trademark would have that effect on at least some AsianAmericans. The Government may not insulate a law from charges of viewpoint discrimination by
tying censorship to the reaction of the speaker’s audience. The Court has suggested that viewpoint
discrimination occurs when the government intends to suppress a speaker’s beliefs, Reed, but
viewpoint discrimination need not take that form in every instance. The danger of viewpoint
discrimination is that the government is attempting to remove certain ideas or perspectives from a
broader debate. That danger is all the greater if the ideas or perspectives are ones a particular
audience might think offensive, at least at first hearing. An initial reaction may prompt further
reflection, leading to a more reasoned, more tolerant position.
Indeed, a speech burden based on audience reactions is simply government hostility and
intervention in a different guise. The speech is targeted, after all, based on the government’s
disapproval of the speaker’s choice of message. And it is the government itself that is attempting in
this case to decide whether the relevant audience would find the speech offensive. For reasons like
these, the Court’s cases have long prohibited the government from justifying a First Amendment
burden by pointing to the offensiveness of the speech to be suppressed.
The Government’s argument in defense of the statute assumes that respondent’s mark is a negative
comment. In addressing that argument on its own terms, this opinion is not intended to imply that
the Government’s interpretation is accurate. From respondent’s submissions, it is evident he would
disagree that his mark means what the Government says it does. The trademark will have the effect,
respondent urges, of reclaiming an offensive term for the positive purpose of celebrating all that
Asian-Americans can and do contribute to our diverse Nation. While thoughtful persons can agree or
disagree with this approach, the dissonance between the trademark’s potential to teach and the
Government’s insistence on its own, opposite, and negative interpretation confirms the constitutional
vice of the statute.
II
[omitted]

Iancu v. Brunetti
588 U.S. ___ (2019)
KAGAN, J., DELIVERED THE OPINION OF THE COURT, IN WHICH THOMAS, GINSBURG, ALITO, GORSUCH AND
KAVANAUGH, JJ., JOINED. ALITO, J., FILED A CONCURRING OPINION. ROBERTS, C. J., AND BREYER, J., FILED OPINIONS
CONCURRING IN PART AND DISSENTING IN PART. SOTOMAYOR, J., FILED AN OPINION CONCURRING IN PART AND
DISSENTING IN PART, IN WHICH BREYER, J., JOINED.
JUSTICE KAGAN DELIVERED THE OPINION OF THE COURT.
Two Terms ago, in Matal v. Tam (2017), this Court invalidated the Lanham Act’s bar on the
registration of “disparag[ing]” trademarks. 15 U. S. C. §1052(a). Although split between two nonmajority opinions, all Members of the Court agreed that the provision violated the First Amendment
because it discriminated on the basis of viewpoint. Today we consider a First Amendment challenge
to a neighboring provision of the Act, prohibiting the registration of “immoral[] or scandalous”
trademarks. We hold that this provision infringes the First Amendment for the same reason: It too
disfavors certain ideas.

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I
Respondent Erik Brunetti is an artist and entrepreneur who founded a clothing line that uses the
trademark FUCT. According to Brunetti, the mark (which functions as the clothing’s brand name) is
pronounced as four letters, one after the other: F-U-C-T. But you might read it differently and, if so,
you would hardly be alone. See Tr. of Oral Arg. 5 (describing the brand name as “the equivalent of
[the] past participle form of a well-known word of profanity”). That common perception caused
difficulties for Brunetti when he tried to register his mark with the U. S. Patent and Trademark Office
(PTO).
Under the Lanham Act, the PTO administers a federal registration system for trademarks. See 15 U. S.
C. §§1051, 1052 * * * until we invalidated the criterion two years ago, the PTO could not register a
mark that “disparage[d]” a “per- son[], living or dead.” §1052(a); see Tam.
This case involves another of the Lanham Act’s prohibitions on registration—one applying to marks
that “[c]onsist[] of or comprise[] immoral[] or scandalous matter.” §1052(a). The PTO applies that
bar as a “unitary provision,” rather than treating the two adjectives in it separately. To determine
whether a mark fits in the category, the PTO asks whether a “substantial composite of the general
public” would find the mark “shocking to the sense of truth, decency, or propriety”; “giving offense to
the conscience or moral feelings”; “calling out for condemnation”; “disgraceful”; “offensive”;
“disreputable”; or “vulgar.”
Both a PTO examining attorney and the PTO’s Trademark Trial and Appeal Board decided that
Brunetti’s mark flunked that test. The attorney determined that FUCT was “a total vulgar” and
“therefore[] unregistrable.” On review, the Board stated that the mark was “highly offensive” and
“vulgar,” and that it had “decidedly negative sexual connotations.” As part of its review, the Board
also considered evidence of how Brunetti used the mark. It found that Brunetti’s website and
products contained imagery, near the mark, of “extreme nihilism” and “anti-social” behavior. In that
context, the Board thought, the mark communicated “misogyny, depravity, [and] violence.” The
Board concluded: “Whether one considers [the mark] as a sexual term, or finds that [Brunetti] has
used [the mark] in the context of extreme misogyny, nihilism or violence, we have no question but
that [the term is] extremely offensive.”
Brunetti then brought a facial challenge to the “immoral or scandalous” bar in the Court of Appeals
for the Federal Circuit. That court found the prohibition to violate the First Amendment. As usual
when a lower court has invalidated a federal statute, we granted certiorari.
II
This Court first considered a First Amendment challenge to a trademark registration restriction in
Tam, just two Terms ago. There, the Court declared unconstitutional the Lanham Act’s ban on
registering marks that “disparage” any “person[], living or dead.” §1052(a). The eight-Justice Court
divided evenly between two opinions and could not agree on the overall framework for deciding the
case. (In particular, no majority emerged to resolve whether a Lanham Act bar is a condition on a
government benefit or a simple restriction on speech.) But all the Justices agreed on two propositions.
First, if a trademark registration bar is viewpoint-based, it is unconstitutional, (opinion of Alito, J.);
(opinion of Kennedy, J.). And second, the disparagement bar was viewpoint-based, (opinion of Alito,
J.); (opinion of Kennedy, J.).
The Justices thus found common ground in a core postulate of free speech law: The government may
not discriminate against speech based on the ideas or opinions it conveys. See Rosenberger v. Rector
and Visitors of Univ. of Va., (1995) (explaining that viewpoint discrimination is an “egregious form of
content discrimination” and is “presumptively unconstitutional”). In Justice Kennedy’s explanation,
the disparagement bar allowed a trademark owner to register a mark if it was “positive” about a
person, but not if it was “derogatory.” That was the “essence of viewpoint discrimination,” he
continued, because “[t]he law thus reflects the Government’s disapproval of a subset of messages it
finds offensive.” Justice Alito emphasized that the statute “denie[d] registration to any mark” whose
disparaging message was “offensive to a substantial percentage of the members of any group.” The
bar thus violated the “bedrock First Amendment principle” that the government cannot discriminate
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against “ideas that offend.” Slightly different explanations, then, but a shared conclusion: Viewpoint
discrimination doomed the disparagement bar.
If the “immoral or scandalous” bar similarly discriminates on the basis of viewpoint, it must also
collide with our First Amendment doctrine. The Government does not argue otherwise. In briefs and
oral argument, the Government offers a theory for upholding the bar if it is viewpoint-neutral
(essentially, that the bar would then be a reasonable condition on a government benefit). But the
Government agrees that under Tam it may not “deny registration based on the views expressed” by a
mark. Tr. of Oral Arg. 24. “As the Court’s Tam decision establishes,” the Government says, “the criteria
for federal trademark registration” must be “viewpoint-neutral to survive Free Speech Clause review.”
So the key question becomes: Is the “immoral or scandalous” criterion in the Lanham Act viewpointneutral or viewpoint-based?
It is viewpoint-based. The meanings of “immoral” and “scandalous” are not mysterious, but resort to
some dictionaries still helps to lay bare the problem. When is expressive material “immoral”?
According to a standard definition, when it is “inconsistent with rectitude, purity, or good morals”;
“wicked”; or “vicious.” WEBSTER’S NEW INTERNATIONAL DICTIONARY 1246 (2d ed. 1949). Or again, when it
is “opposed to or violating morality”; or “morally evil.” SHORTER OXFORD ENGLISH DICTIONARY 961 (3d ed.
1947). So the Lanham Act permits registration of marks that champion society’s sense of rectitude
and morality, but not marks that denigrate those concepts. And when is such material “scandalous”?
Says a typical definition, when it “giv[es] offense to the conscience or moral feelings”; “excite[s]
reprobation”; or “call[s] out condemnation.” WEBSTER’S NEW INTERNATIONAL DICTIONARY, at 2229. Or
again, when it is “shocking to the sense of truth, decency, or propriety”; “disgraceful”; “offensive”; or
“disreputable.” FUNK & WAGNALLS NEW STANDARD DICTIONARY 2186 (1944). So the Lanham Act allows
registration of marks when their messages accord with, but not when their messages defy, society’s
sense of decency or propriety. Put the pair of overlapping terms together and the statute, on its face,
distinguishes between two opposed sets of ideas: those aligned with conventional moral standards
and those hostile to them; those inducing societal nods of approval and those provoking offense and
condemnation. The statute favors the former, and disfavors the latter. “Love rules”? “Always be
good”? Registration follows. “Hate rules”? “Always be cruel”? Not according to the Lanham Act’s
“immoral or scandalous” bar.
The facial viewpoint bias in the law results in viewpoint-discriminatory application. Recall that the
PTO itself describes the “immoral or scandalous” criterion using much the same language as in the
dictionary definitions recited above. The PTO, for example, asks whether the public would view the
mark as “shocking to the sense of truth, decency, or propriety”; “calling out for condemnation”;
“offensive”; or “disreputable.” Using those guideposts, the PTO has refused to register marks
communicating “immoral” or “scandalous” views about (among other things) drug use, religion, and
terrorism. But all the while, it has approved registration of marks expressing more accepted views on
the same topics.
Here are some samples. The PTO rejected marks conveying approval of drug use (YOU CAN’T SPELL
HEALTHCARE WITHOUT THC for pain-relief medication, MARIJUANA COLA and KO KANE for
beverages) because it is scandalous to “inappropriately glamoriz[e] drug abuse.” PTO, Office Action of
Aug. 28, 2010, Serial No. 85038867; see Office Action of Dec. 24, 2009, Serial No. 77833964; Office
Action of Nov. 17, 2009, Serial No. 77671304. But at the same time, the PTO registered marks with
such sayings as D.A.R.E. TO RESIST DRUGS AND VIOLENCE and SAY NO TO DRUGS—REALITY IS THE
BEST TRIP IN LIFE. See PTO, Reg. No. 2975163 (July 26, 2005); Reg. No. 2966019 (July 12, 2005).
Similarly, the PTO disapproved registration for the mark BONG HITS 4 JESUS because it “suggests
that people should engage in an illegal activity [in connection with] worship” and because “Christians
would be morally out- raged by a statement that connects Jesus Christ with illegal drug use.” Office
Action of Mar. 15, 2008, Serial No. 77305946. And the PTO refused to register trade- marks
associating religious references with products (AGNUS DEI for safes and MADONNA for wine)
because they would be “offensive to most individuals of the Christian faith” and “shocking to the
sense of propriety.” Ex parte Summit Brass & Bronze Works, 59 USPQ 22, 23 (Dec. Com. Pat. 1943);
In re Riverbank Canning Co., 95 F. 2d 327, 329 (CCPA 1938). But once again, the PTO ap- proved
marks—PRAISE THE LORD for a game and JESUS DIED FOR YOU on clothing—whose message
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suggested religious faith rather than blasphemy or irreverence. See Reg. No. 5265121 (Aug. 15,
2017); Reg. No. 3187985 (Dec. 19, 2006). Finally, the PTO rejected marks reflecting support for alQaeda (BABY AL QAEDA and AL-QAEDA on t-shirts) “because the bombing of civilians and other
terrorist acts are shocking to the sense of decency and call out for condemnation.” Office Action of
Nov. 22, 2004, Serial No. 78444968; see Office Action of Feb. 23. Yet it approved registration of a
mark with the words WAR ON TERROR MEMORIAL. Reg. No. 5495362 (Jun. 19, 2018). Of course, all
these decisions are understandable. The rejected marks express opinions that are, at the least,
offensive to many Americans. But as the Court made clear in Tam, a law disfavoring “ideas that offend”
discriminates based on viewpoint, in violation of the First Amendment.
How, then, can the Government claim that the “immoral or scandalous” bar is viewpoint-neutral? The
Government basically asks us to treat decisions like those described above as PTO examiners’
mistakes. Still more, the Government tells us to ignore how the Lanham Act’s language, on its face,
disfavors some ideas. In urging that course, the Government does not dispute that the statutory
language—and words used to define it—have just that effect. At oral argument, the Government
conceded: “[I]f you just looked at the words like ‘shocking’ and ‘offensive’ on their face and gave them
their ordinary meanings[,] they could easily encompass material that was shocking [or offensive]
because it ex- pressed an outrageous point of view or a point of view that most members” of society
reject. But no matter, says the Government, because the statute is “susceptible of” a limiting
construction that would remove this viewpoint bias. Id., at 7 (arguing that the Court should “attempt
to construe [the] statute in a way that would render it constitutional”). The Government’s idea,
abstractly phrased, is to narrow the statutory bar to “marks that are offensive [or] shocking to a
substantial segment of the public because of their mode of expression, independent of any views that
they may express.” More concretely, the Government explains that this reinterpretation would
mostly restrict the PTO to refusing marks that are “vulgar”—meaning “lewd,” “sexually explicit or
profane.” Such a reconfigured bar, the Government says, would not turn on viewpoint, and so we
could uphold it.
But we cannot accept the Government’s proposal, because the statute says something markedly
different. This Court, of course, may interpret “ambiguous statutory language” to “avoid serious
constitutional doubts.” FCC v. Fox Television Stations, Inc. (2009) [Chapter 10]. But that canon of
construction applies only when ambiguity exists. “We will not rewrite a law to conform it to
constitutional requirements.” United States v. Stevens (2010) [Chapter 10]. So even assuming the
Government’s reading would eliminate First Amendment problems, we may adopt it only if we can
see it in the statutory language. And we cannot. The “immoral or scandalous” bar stretches far
beyond the Government’s proposed construction. The statute as written does not draw the line at
lewd, sexually explicit, or profane marks. Nor does it refer only to marks whose “mode of expression,”
independent of viewpoint, is particularly offensive. It covers the universe of immoral or scandalous—
or (to use some PTO synonyms) offensive or disreputable—material. Whether or not lewd or profane.
Whether the scandal and immorality comes from mode or instead from viewpoint. To cut the statute
off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new
one.
[FN: We reject the dissent’s statutory surgery for the same reason. Although conceding that the term
“immoral” cannot be saved, the dissent thinks that the term “scandalous” can be read as the
Government proposes. But that term is not “ambiguous,” as the dissent argues; it is just broad.
Remember that the dictionaries define it to mean offensive, disreputable, exciting reprobation, and
so forth. Even if hived off from “immoral” marks, the category of scandalous marks thus includes both
marks that offend by the ideas they convey and marks that offend by their mode of expression. And
its coverage of the former means that it discriminates based on viewpoint. We say nothing at all
about a statute that covers only the latter—or, in the Government’s more concrete description, a
statute limited to lewd, sexually explicit, and profane marks. Nor do we say anything about how to
evaluate viewpoint-neutral restrictions on trademark registration —because the “scandalous” bar
(whether or not attached to the “immoral” bar) is not one.]

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And once the “immoral or scandalous” bar is interpreted fairly, it must be invalidated. The
Government just barely argues otherwise. In the last paragraph of its brief, the Government gestures
toward the idea that the provision is salvageable by virtue of its constitutionally permissible
applications (in the Government’s view, its applications to lewd, sexually explicit, or profane marks).
In other words, the Government invokes our First Amendment overbreadth doctrine, and asks us to
uphold the statute against facial attack because its unconstitutional applications are not “substantial”
relative to “the statute’s plainly legitimate sweep.” Stevens. But to begin with, this Court has never
applied that kind of analysis to a viewpoint-discriminatory law. In Tam, for example, we did not
pause to consider whether the disparagement clause might admit some permissible applications (say,
to certain libelous speech) before striking it down. The Court’s finding of viewpoint bias ended the
matter. And similarly, it seems unlikely we would compare permissible and impermissible
applications if Congress outright banned “offensive” (or to use some other examples, “divisive” or
“subversive”) speech. Once we have found that a law “aim[s] at the suppression of” views, why would
it matter that Congress could have captured some of the same speech through a viewpoint-neutral
statute? Tam (opinion of Kennedy, J.) (slip op., at 2). But in any event, the “immoral or scandalous”
bar is substantially overbroad. There are a great many immoral and scandalous ideas in the world
(even more than there are swearwords), and the Lanham Act covers them all. It therefore violates the
First Amendment.
We accordingly affirm the judgment of the Court of Appeals.
It is so ordered.
JUSTICE ALITO, CONCURRING.
For the reasons explained in the opinion of the Court, the provision of the Lanham Act at issue in this
case violates the Free Speech Clause of the First Amendment because it discriminates on the basis of
viewpoint and cannot be fixed without rewriting the statute. Viewpoint discrimination is poison to a
free society. But in many countries with constitutions or legal traditions that claim to protect
freedom of speech, serious viewpoint discrimination is now tolerated, and such discrimination has
become increasingly prevalent in this country. At a time when free speech is under attack, it is
especially important for this Court to remain firm on the principle that the First Amendment does not
tolerate viewpoint discrimination. We reaffirm that principle today.
Our decision is not based on moral relativism but on the recognition that a law banning speech
deemed by government officials to be “immoral” or “scandalous” can easily be exploited for
illegitimate ends. Our decision does not prevent Congress from adopting a more carefully focused
statute that precludes the registration of marks containing vulgar terms that play no real part in the
expression of ideas. The particular mark in question in this case could be denied registration under
such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as
commonly used today, generally signifies nothing except emotion and a severely limited vocabulary.
The registration of such marks serves only to further coarsen our popular culture. But we are not
legislators and cannot substitute a new statute for the one now in force.
CHIEF JUSTICE ROBERTS, CONCURRING IN PART AND DISSENTING IN PART.
The Lanham Act directs the Patent and Trademark Office to refuse registration to marks that consist
of or comprise “immoral, deceptive, or scandalous matter.” 15 U. S. C. §1052(a). Although the statute
lists “immoral” and “scandalous” separately, the PTO has long read those terms together to constitute
a unitary bar on “immoral or scandalous” marks. * * * As Justice Sotomayor explains, however, the
“scandalous” portion of the provision is susceptible of such a narrowing construction. Standing alone,
the term “scandalous” need not be understood to reach marks that offend because of the ideas they
convey; it can be read more narrowly to bar only marks that offend because of their mode of
expression—marks that are obscene, vulgar, or profane. That is how the PTO now understands the
term, in light of our decision in Matal v. Tam (2017). I agree with Justice Sotomayor that such a
narrowing construction is appropriate in this context. * * *
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JUSTICE SOTOMAYOR WITH WHOM JUSTICE BREYER JOINS, CONCURRING IN PART AND DISSENTING IN PART.
The Court’s decision today will beget unfortunate results. With the Lanham Act’s scandalous-marks
provision, 15 U. S. C. §1052(a), struck down as unconstitutional viewpoint discrimination, the
Government will have no statutory basis to refuse (and thus no choice but to begin) registering
marks containing the most vulgar, profane, or obscene words and images imaginable.
The coming rush to register such trademarks—and the Government’s immediate powerlessness to
say no—is eminently avoidable. Rather than read the relevant text as the majority does, it is equally
possible to read that provision’s bar on the registration of “scandalous” marks to address only
obscenity, vulgarity, and profanity. Such a narrowing construction would save that duly enacted
legislative text by rendering it a reasonable, viewpoint neutral restriction on speech that is
permissible in the context of a beneficial governmental initiative like the trademark-registration
system. I would apply that narrowing construction to the term “scandalous” and accordingly reject
petitioner Erik Brunetti’s facial challenge.
I
Trademark registration, as the majority notes, is not required for using, owning, or suing others for
infringing a trademark. Rather, the trademark-registration system is an ancillary system set up by
the Government that confers a small number of noncash benefits on trademark-holders who register
their marks.
The Government need not provide this largely commercial benefit at all. Once the Government does
provide the benefit, however, it may not restrict access on the basis of the viewpoint expressed by
the relevant mark. For that reason, the Court concluded in Matal v. Tam (2017), that §1052(a)’s
provision directing the U. S. Patent and Trademark Office (PTO) to deny registration to “disparag[ing]”
trademarks was unconstitutional * * * The majority finds viewpoint discrimination here by treating
the terms “scandalous” and “immoral” as comprising a unified standard that allows messages
“aligned with conventional moral standards” but forbids messages “hostile to” such standards. While
the majority’s interpretation of the statute is a reasonable one, it is not the only reasonable one.
A
As the majority notes, there are dictionary definitions for both “immoral” and “scandalous” that do
suggest a viewpoint-discriminatory meaning. And as for the word “immoral,” I agree with the
majority that there is no tenable way to read it that would ameliorate the problem. The word clearly
connotes a preference for “rectitude and morality” over its opposite. It is with regard to the word
“scandalous” that I part ways with the majority. Unquestionably, “scandalous” can mean something
similar to “immoral” and thus favor some viewpoints over others. But it does not have to be read that
way.* * *
Here, Congress used not only the word “scandalous,” but also the words “immoral” and “disparage,”
in the same block of statutory text—each as a separate feature that could render a mark
unregistrable. * * *
With marks that are offensive because they are disparaging and marks that are offensive because
they are immoral already covered, what work did Congress intend for “scandalous” to do? A logical
answer is that Congress meant for “scandalous” to target a third and distinct type of offensiveness:
offensiveness in the mode of communication rather than the idea. The other two words cover marks
that are offensive because of the ideas they express; the “scandalous” clause covers marks that are
offensive because of the mode of expression, apart from any particular message or idea. * * *
The most obvious ways—indeed, perhaps the only conceivable ways—in which a trademark can be
expressed in a shocking or offensive manner are when the speaker employs obscenity, vulgarity, or
profanity. Obscenity has long been defined by this Court’s decision in Miller v. California (1973)
[Chapter 10]. As for what constitutes “scandalous” vulgarity or profanity, I do not offer a list, but I do
interpret the term to allow the PTO to restrict (and potentially promulgate guidance to clarify) the
small group of lewd words or “swear” words that cause a visceral reaction, that are not commonly
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used around children, and that are prohibited in comparable settings. Cf. 18 U. S. C. §1464
(prohibiting “obscene, indecent, or profane language” in radio communications); FCC v. Pacifica
Foundation (1978) (opinion of Stevens, J.) (regulator’s objection to a monologue containing various
“four-letter words” was not to its “point of view, but to the way in which it [wa]s expressed”); 46 CFR
§67.117(b)(3) (2018) (Coast Guard regulation prohibiting vessel names that “contain” or are
“phonetically identical to obscene, indecent, or profane language, or to racial or ethnic epithets”); see
also Jacobs, The Public Sensibilities Forum, 95 NW. U. L. REV. 1357, 1416–1417, and n. 432 (2001)
(noting that “swear words” are “perhaps more than any other categor[y] capable of specific
articulation” and citing one state agency’s list). Of course, “scandalous” offers its own limiting
principle: if a word, though not exactly polite, cannot be said to be “scandalous”—e.g., “shocking” or
“extremely offensive,” 8 CENTURY DICTIONARY 5374—it is clearly not the kind of vulgarity or profanity
that Congress intended to target. Everyone can think of a small number of words (including the
apparent homonym of Brunetti’s mark) that would, however, plainly qualify.
B
A limiting construction like the one just discussed is both appropriate in this context and consistent
with past precedent.
First, while a limiting construction must always be at least reasonable, there are contexts in which
imposing such a construction is more appropriate than others. The most obvious example of a setting
where more caution is required is in the realm of criminal statutes, where considerations such as the
prohibition against vagueness and the rule of lenity come into play. * * * Here, however, the question
is only whether the Government must be forced to provide the ancillary benefit of trademark
registration to pre-existing trademarks that use even the most extreme obscenity, vulgarity, or
profanity. The stakes are far removed from a situation in which, say, Brunetti was facing a threat to
his liberty, or even his right to use and enforce his trademark in commerce.
Second, the Court has in the past accepted or applied similarly narrow constructions to avoid
constitutional infirmities. In Chaplinsky v. New Hampshire (1942), for example, the Court accepted
the New Hampshire Supreme Court’s narrowing of a state statute covering “‘any offensive, derisive
or annoying word,’” to reach only those words that would strike the average person as being “plainly
likely to cause a breach of the peace by the addressee.” “[T]hus construed,” this Court decided, the
statute did not violate the right to free speech. Ibid.; see also Boos v. Barry (1988) (accepting Court of
Appeals’ construction of a statute making it illegal “‘to congregate within 500 feet of any [embassy,
legation, or consulate] and refuse to disperse after having been ordered so to do by the police’” to
reach only “congregations that are directed at an embassy” and “‘only when the police reasonably
believe that a threat to the security or peace of the embassy is present’”).
In Frisby v. Schultz (1988), the Court addressed an ordinance that prohibited “‘picketing before or
about the residence or dwelling of any individual.’” The Court construed the statute to reach only
“focused picketing taking place solely in front of a particular residence.” Given that “narrow scope,”
the statute was not facially unconstitutional.
Taking the word “scandalous” to target only those marks that employ an offensive mode of
expression follows a similar practice. To be sure, the word could be read more broadly, thereby
sweeping unconstitutionally into viewpoint discrimination. And imposing a limiting construction is,
of course, “not a license for the judiciary to rewrite language enacted by the legislature.” But where
the Court can reasonably read a statute like this one to save it, the Court should do so.
II
Adopting a narrow construction for the word “scandalous”—interpreting it to regulate only
obscenity, vulgarity, and profanity—would save it from unconstitutionality. Properly narrowed,
“scandalous” is a viewpoint-neutral form of content discrimination that is permissible in the kind of
discretionary governmental program or limited forum typified by the trademark-registration system.
A
Content discrimination occurs whenever a government regulates “particular speech because of the
topic discussed or the idea or message expressed.” Reed v. Town of Gilbert (2015); see also Ward v.
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Rock Against Racism (1989) (“Government regulation of expressive activity is content neutral so long
as it is ‘justified without reference to the content of the regulated speech’”). Viewpoint discrimination
is “an egregious form of content discrimination” in which “the government targets not subject matter,
but particular views taken by speakers on a subject.” Rosenberger v. Rector and Visitors of Univ. of Va.
(1995).
While the line between viewpoint-based and viewpoint neutral content discrimination can be
“slippery,” see Corbin, Mixed Speech: When Speech Is Both Private and Governmental, 83 N. Y. U. L. REV.
605, 651 (2008), it is in any event clear that a regulation is not viewpoint discriminatory (or even
content discriminatory) simply because it has an “incidental effect” on a certain subset of views.
Ward. Some people, for example, may have the viewpoint that society should be more sexually
liberated and feel that they cannot express that view sufficiently without the use of pornographic
words or images. That does not automatically make a restriction on pornography into viewpoint
discrimination, despite the fact that such a restriction limits communicating one’s views on sexual
liberation in that way. See ibid.; Renton v. Playtime Theatres, Inc. (1986). Restrictions on particular
modes of expression do not inherently qualify as viewpoint discrimination; they are not by nature
examples of “the government target[ing] . . . particular views taken by speakers on a subject.”
Rosenberger. For example, a ban on lighting fires in the town square does not facially violate the First
Amendment simply because it makes it marginally harder for would-be flag-burners to express their
views in that place. See R. A. V. v. St. Paul (1992). By the same token, “fighting words are categorically
excluded from the protection of the First Amendment” not because they have no content or express
no viewpoint (often quite the opposite), but because “their content embodies a particularly
intolerable (and socially unnecessary) mode of expressing whatever idea the speaker wishes to
convey.” Id.; cf. Bolger v. Youngs Drug Products Corp. (1983) (Stevens, J., concurring in judgment) (“It
matters whether a law regulates communications for their ideas or for their style”).
A restriction on trademarks featuring obscenity, vulgarity, or profanity is similarly viewpoint neutral,
though it is naturally content-based. See R. A. V. (kinds of speech like “obscenity, defamation, etc.”
may “be regulated because of their constitutionally proscribable content” (emphasis deleted)); see
also Bethel School Dist. No. 403 v. Fraser (1986) (treating punishment of “offensively lewd and
indecent speech” as viewpoint neutral); Pacifica (treating regulation of profane monologue as
viewpoint neutral). Indeed, the statute that the Court upheld in Chaplinsky itself had been construed
to cover, among other kinds of “disorderly words,” “profanity, obscenity and threats,” despite the fact
that such words had been used in that case to communicate an expressive message. To treat a
restriction on vulgarity, profanity, or obscenity as viewpoint discrimination would upend decades of
precedent.
Brunetti invokes Cohen v. California (1971) to argue that the restriction at issue here is viewpoint
discriminatory. But Cohen—which did not employ the precise taxonomy that is more common
today—does not reach as far as Brunetti wants. Cohen arose in the criminal context: Cohen had been
arrested and imprisoned under a California criminal statute targeting disturbances of the peace
because he was “wearing a jacket bearing the words ‘F[* * * ] the Draft.’” {ellipses in original}. The
Court held that applying that statute to Cohen because of his jacket violated the First Amendment.
But the Court did not suggest that the State had targeted Cohen to suppress his view itself (i.e., his
sharp distaste for the draft), such that it would have accepted an equally colorful statement of praise
for the draft (or hostility toward war protesters). Rather, the Court suggested that the State had
simply engaged in what later courts would more precisely call viewpoint-neutral content
discrimination—it had regulated “the form or content of individual expression.” Id.
Cohen also famously recognized that “words are often chosen as much for their emotive as their
cognitive force,” and that “one man’s vulgarity is another’s lyric.” That is all consistent with observing
that a plain, blanket restriction on profanity (regardless of the idea to which it is attached) is a
viewpoint-neutral form of content discrimination. The essence of Cohen’s discussion is that profanity
can serve to tweak (or amplify) the viewpoint that a message expresses, such that it can be hard to
disentangle the profanity from the underlying message— without the profanity, the message is not
quite the same. But those statements merely reinforce that profanity is still properly understood as
protected First Amendment content. See also R. A. V. Cohen’s discussion does not also go further to
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declare, as Brunetti suggests, that a provision that treats all instances of profanity equally is
nevertheless by nature an instance of “the government target[ing] . . . particular views taken by
speakers on a subject.” Rosenberger. To be sure, such a restriction could have the incidental effect of
tamping down the overall volume of debate on all sides. But differential effects alone, as explained
above, do not render a restriction viewpoint (or even content) discriminatory. See Ward.
Cohen therefore does not resolve this case in Brunetti’s favor. Yes, Brunetti has been, as Cohen was,
subject to content discrimination, but that content discrimination is properly understood as
viewpoint neutral. And whereas even viewpoint-neutral content discrimination is (in all but the most
compelling cases, such as threats) impermissible in the context of a criminal prosecution like the one
that Cohen faced, Brunetti is subject to such regulation only in the context of the federal trademarkregistration system. I discuss next why that distinction matters.
B
While the Court has often subjected even viewpoint neutral content discrimination to strict
constitutional scrutiny, see, e.g., Reed, there are contexts in which it does not, see, e.g., Rosenberger.
When that is the case, the difference between viewpoint-based and viewpoint-neutral content
discrimination can be decisive. The federal trademark-registration system is such a context.
Rights to a trademark itself arise through use, not registration. Regardless of whether a trademark is
registered, it can be used, owned, and enforced against would be infringers. Trademark registration,
meanwhile, confers several ancillary benefits on trademark-holders who meet Congress’
specifications, including for example, additional protections against infringers. Registering a mark in
the Government’s searchable register puts the world on notice (whether actual or constructive) that
a party is asserting ownership of that mark. Registration, in short, is a helpful system, but it is one
that the Government is under no obligation to establish and that is collateral to the existence and use
of trademarks themselves. There is no evidence that speech or commerce would be endangered if the
Government were not to provide it at all.
When the Court has talked about governmental initiatives like this one before, it has usually used one
of two general labels. In several cases, the Court has treated such initiatives as a limited public (or
nonpublic) forum. See, e.g., Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v.
Martinez (2010) (“‘Registered Student Organization’” program providing various financial and
nonfinancial benefits to recognized law-school student groups); Rosenberger (“Student Activities
Fund” for registered campus student groups); Cornelius v. NAACP Legal Defense & Ed. Fund, Inc.
(1985) (“Combined Federal Campaign” literature enabling approved charitable organizations to
solicit donations from federal employees). In other situations, the Court has discussed similar
initiatives as government programs or subsidies. See, e.g., Legal Services Corporation v. Velazquez
(2001) (government program distributing funds to legal-services organizations); National
Endowment for Arts v. Finley, 524 (1998) (competitive government grant-making program to support
the arts). In each of these situations, a governmental body established an initiative that supported
some forms of expression without restricting others. Some speakers were better off, but no speakers
were worse off. Regardless of the finer distinctions between these labels, reasonable, viewpointneutral content discrimination is generally permissible under either framework. See Christian Legal
Soc. (“Any access barrier must be reasonable and viewpoint neutral”); Velazquez, (analogizing to
limited forum cases and explaining that “[w]here private speech is involved, even Congress’
antecedent funding decision cannot be aimed at the suppression of ideas thought inimical to the
Government’s own interest”); see also Ysursa v. Pocatello Ed. Assn. (2009) (finding government
conduct that did not restrict speech but simply “decline[d] to promote” it valid where it was
“reasonable in light of the State’s interest”). Perhaps for that reason, the Court has often discussed
the two frameworks as at least closely related. See, e.g., Christian Legal Society (“[T]his case fits
comfortably within the limited-public forum category, for [the plaintiff], in seeking what is effectively
a state subsidy, faces only indirect pressure . . . ”); Velazquez (“As this suit involves a subsidy, limited
forum cases . . . may not be controlling in a strict sense, yet they do provide some instruction”).
Whichever label one chooses here, the federal system of trademark registration fits: It is, in essence,
an opportunity to include one’s trademark on a list and thereby secure the ancillary benefits that
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come with registration. Just as in the limited-forum and government-program cases, some speakers
benefit, but no speakers are harmed. Brunetti, for example, can use, own, and enforce his mark
regardless of whether it has been registered. Whether he may register his mark can therefore turn on
reasonable, viewpoint-neutral content regulations.
C
Prohibiting the registration of obscene, profane, or vulgar marks qualifies as reasonable, viewpointneutral, content-based regulation. Apart from any interest in regulating commerce itself, the
Government has an interest in not promoting certain kinds of speech, whether because such speech
could be perceived as suggesting governmental favoritism or simply because the Government does
not wish to involve itself with that kind of speech. See, e.g., Ysursa; Cornelius. While “there is no
evidence that the public associates the contents of trademarks with the Federal Government,” Tam,
registration nevertheless entails Government involvement in promoting a particular mark.
Registration requires the Government to publish the mark, as well as to take steps to combat
international infringement. The Government has a reasonable interest in refraining from lending its
ancillary support to marks that are obscene, vulgar, or profane. Cf. Hustler Magazine, Inc. v. Falwell
(1988) (“[S]peech that is vulgar, offensive, and shocking is not entitled to absolute constitutional
protection under all circumstances.”
III
“The cardinal principle of statutory construction is to save and not to destroy.” * * *
That said, I emphasize that Brunetti’s challenge is a facial one. That means that he must show that “‘a
substantial number of [the scandalous-marks provision’s] applications are unconstitutional, judged
in relation to the [provision’s] plainly legitimate sweep.’” United States v. Stevens (2010) [Chapter 10].
With “scandalous” narrowed to reach only obscene, profane, and vulgar content, the provision would
not be overly broad. Cf. Frisby (rejecting a facial challenge after adopting a limiting construction);
Boos (same). Even so, hard cases would remain, and I would expect courts to take seriously asapplied challenges demonstrating a danger that the provision had been used to restrict speech based
on the views expressed rather than the mode of expression. Cf. Finley (reserving the possibility of asapplied challenges).
Freedom of speech is a cornerstone of our society, and the First Amendment protects Brunetti’s right
to use words like the one at issue here. The Government need not, however, be forced to confer on
Brunetti’s trademark (and some more extreme) the ancillary benefit of trademark registration, when
“scandalous” in §1052(a) can reasonably be read to bar the registration of only those marks that are
obscene, vulgar, or profane. Though I concur as to the unconstitutionality of the term “immoral” in
§1052(a), I respectfully dissent as to the term “scandalous” in the same statute and would instead
uphold it under the narrow construction discussed here.

Notes

1.
An important background to the dispute in Matal v. Tam are the controversies over Native
American “mascots” and names trademarked by (non-Native American) sports teams. See e.g.,
Gabriela M. Kirkland, An Offensive Mark on Offensive Lines: The Question of Violating the First
Amendment Through the Cancellation of the Washington Redskins' Trademark, 44 HASTINGS CONST. L.Q.
479 (2017). What result after Tam? See Doori Song, Blackhorse's Last Stand?: The First Amendment
Battle Against the Washington "Redskins" Trademark After Matal v. Tam, 19 WAKE FOREST J. BUS. &
INTELL. PROP. L. 173 (2019).
2.
The plaintiff in Matal v. Tam, Simon Tam, has written a memoir about his band and his choice
to litigate, Simon Tam, SLATED: HOW AN ASIAN-AMERICAN TROUBLEMAKER TOOK ON THE SUPREME COURT
(2019). In its review of the book, THE WASHINGTON POST quotes Tam:
“The government believed that they were protecting Asian Americans from ourselves,” Tam writes. But
“they were imposing their own ideas of justice and order on us, without actually consulting what we
wanted. . . . That’s the ultimate privilege: being able to live in a world where you can determine what
racism looks like for other people.”
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Tam moved forward with his “battle for self-identity” and made it public, saying: “Let’s blow the doors
open on this. Everyone should know what’s happening.

Diana Yap, He named his band the Slants to reclaim a slur. Not everyone approved., WASH. POST. (May
16, 2019) (https://www.washingtonpost.com/entertainment/books/he-named-his-band-the-slantsto-reclaim-a-slur-not-everyone-approved/2019/05/15/b939275a-700d-11e9-8be0ca575670e91c_story.html).
Tam seemingly acknowledged that his arguments would impact the Native American controversies
discussed in Note 1.
Still, Tam struggled with the unintended consequences of the decision. The Federal Circuit court’s
power to strike down the law could allow “more vile trademarks to be registered,” such as the
Washington football team’s. “I didn’t take that choice lightly,” he writes. Policymakers and activists
urged him to “focus on whatever would create more options for those who had the least. For me, that
was the power of expression.”

Id. How would you resolve the tensions between Tam’s argument and the sports teams
controversies? Is there a possible First Amendment resolution?
3.
Considering the Court’s decisions in Matal v. Tam and Iancu v. Brunetti does the categorical
approach to the First Amendment make sense? How has your structure of analysis of First
Amendment issues developed earlier changed? Are the cases in this chapter more support for the
“choice of doctrines” problem?

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Chapter Eight: THE POLITICAL PROCESS
This chapter considers election and campaign finance cases, including the right to be anonymous,
campaign finance, and judicial elections.

I.

At the Polls
Minnesota Voters Alliance v. Mansky
585 U.S. ___ (2018).

ROBERTS, C. J., DELIVERED THE OPINION OF THE COURT, IN WHICH KENNEDY, THOMAS, GINSBURG, ALITO, KAGAN,
AND GORSUCH, JJ., JOINED. SOTOMAYOR, J., FILED A DISSENTING OPINION, IN WHICH BREYER, J., JOINED.
CHIEF JUSTICE ROBERTS DELIVERED THE OPINION OF THE COURT.
Under Minnesota law, voters may not wear a political badge, political button, or anything bearing
political insignia inside a polling place on Election Day. The question presented is whether this ban
violates the Free Speech Clause of the First Amendment.
I
A
Today, Americans going to their polling places on Election Day expect to wait in a line, briefly interact
with an election official, enter a private voting booth, and cast an anonymous ballot. Little about this
ritual would have been familiar to a voter in the mid-to-late nineteenth century. For one thing, voters
typically deposited privately prepared ballots at the polls instead of completing official ballots on-site.
These pre-made ballots often took the form of “party tickets”—printed slates of candidate selections,
often distinctive in appearance, that political parties distributed to their supporters and pressed
upon others around the polls. See E. EVANS, A HISTORY OF THE AUSTRALIAN BALLOT SYSTEM IN THE UNITED
STATES 6–11 (1917); R. BENSEL, THE AMERICAN BALLOT BOX IN THE MID- NINETEENTH CENTURY 14–15
(2004).
The physical arrangement confronting the voter was also different. The polling place often consisted
simply of a “voting window” through which the voter would hand his ballot to an election official
situated in a separate room with the ballot box. BENSEL; see, e.g., C. ROWELL, DIGEST OF CONTESTEDELECTION CASES IN THE FIFTY-FIRST CONGRESS 224 (1891) (report of Rep. Lacey) (considering whether
“the ability to reach the window and actually tender the ticket to the [election] judges” is “essential in
all cases to constitute a good offer to vote”); Holzer, Election Day 1860, SMITHSONIAN MAGAZINE (Nov.
2008), pp. 46, 52 (describing the interior voting window on the third floor of the Springfield, Illinois
courthouse where Abraham Lincoln voted). As a result of this arrangement, “the actual act of voting
was usually performed in the open,” frequently within view of interested onlookers. Rusk, The Effect
of the Australian Ballot Reform on Split Ticket Voting: 1876–1908, AM. POL. SCI. REV. 1220, 1221 (1970);
see EVANS 11–13.
As documented in Burson v. Freeman (1992), “[a]pproaching the polling place under this system was
akin to entering an open auction place.” (plurality opinion). The room containing the ballot boxes
was “usually quiet and orderly,” but “[t]he public space outside the window . . . was chaotic.”
Electioneering of all kinds was permitted. Crowds would gather to heckle and harass voters who
appeared to be supporting the other side. Indeed, “[u]nder the informal conventions of the period,
election etiquette required only that a ‘man of ordinary courage’ be able to make his way to the
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voting window.” “In short, these early elections were not a very pleasant spectacle for those who
believed in democratic government.” Burson (plurality opinion).
By the late nineteenth century, States began implementing reforms to address these vulnerabilities
and improve the reliability of elections. Between 1888 and 1896, nearly every State adopted the
secret ballot. Because voters now needed to mark their state-printed ballots on-site and in secret,
voting moved into a sequestered space where the voters could “deliberate and make a decision in . . .
privacy.” In addition, States enacted “viewpoint-neutral restrictions on election-day speech” in the
immediate vicinity of the polls. Burson (Scalia, J., concurring in judgment) (by 1900, 34 of 45 States
had such restrictions). Today, all 50 States and the District of Columbia have laws curbing various
forms of speech in and around polling places on Election Day.
Minnesota’s such law contains three prohibitions, only one of which is challenged here. See Minn.
Stat. §211B.11(1) (Supp. 2017). The first sentence of §211B.11(1) forbids any person to “display
campaign material, post signs, ask, solicit, or in any manner try to induce or persuade a voter within a
polling place or within 100 feet of the building in which a polling place is situated” to “vote for or
refrain from voting for a candidate or ballot question.” The second sentence prohibits the
distribution of “political badges, political buttons, or other political insignia to be worn at or about
the polling place.” The third sentence—the “political apparel ban”—states that a “political badge,
political button, or other political insignia may not be worn at or about the polling place.” Versions of
all three prohibitions have been on the books in Minnesota for over a century. See 1893 Minn. Laws
ch. 4, §108, pp. 51–52; 1912 Minn. Laws, 1st Spec. Sess., ch. 3, p. 24; 1988 Minn. Laws ch. 578, Art. 3,
§11, p. 594 (reenacting the prohibitions as part of §211B.11).
There is no dispute that the political apparel ban applies only within the polling place, and covers
articles of clothing and accessories with “political insignia” upon them. Minnesota election judges—
temporary government employees working the polls on Election Day—have the authority to decide
whether a particular item falls within the ban. If a voter shows up wearing a prohibited item, the
election judge is to ask the individual to conceal or remove it. If the individual refuses, the election
judge must allow him to vote, while making clear that the incident “will be recorded and referred to
appropriate authorities.” Violators are subject to an administrative process before the Minnesota
Office of Administrative Hearings, which, upon finding a violation, may issue a reprimand or impose a
civil penalty. That administrative body may also refer the complaint to the county attorney for
prosecution as a petty misdemeanor; the maximum penalty is a $300 fine. §§211B.11(4) (Supp.
2017), 211B.35(2) (2014), 609.02(4a) (2016).
B
Petitioner Minnesota Voters Alliance (MVA) is a non- profit organization that “seeks better
government through election reforms.” Petitioner Andrew Cilek is a registered voter in Hennepin
County and the executive director of MVA; petitioner Susan Jeffers served in 2010 as a Ramsey
County election judge. Five days before the November 2010 election, MVA, Jeffers, and other
likeminded groups and individuals filed a lawsuit in Federal District Court challenging the political
apparel ban on First Amendment grounds. The groups—calling themselves “Election Integrity
Watch” (EIW)—planned to have supporters wear buttons to the polls printed with the words “Please
I. D. Me,” a picture of an eye, and a telephone number and web address for EIW. (Minnesota law does
not require individuals to show identification to vote.) One of the individual plaintiffs also planned to
wear a “Tea Party Patriots” shirt. The District Court denied the plaintiffs’ request for a temporary
restraining order and preliminary injunction and allowed the apparel ban to remain in effect for the
upcoming election.
In response to the lawsuit, officials for Hennepin and Ramsey Counties distributed to election judges
an “Election Day Policy,” providing guidance on the enforcement of the political apparel ban. The
Minnesota Secretary of State also distributed the Policy to election officials throughout the State. The
Policy specified that examples of apparel falling within the ban “include, but are not limited to”:
“Any item including the name of a political party in Minnesota, such as the Republican, [DemocraticFarmer-Labor], Independence, Green or Libertarian parties.
Any item including the name of a candidate at any election.
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Any item in support of or opposition to a ballot question at any election.
Issue oriented material designed to influence or impact voting (including specifically the ‘Please I. D.
Me’ buttons).
Material promoting a group with recognizable political views (such as the Tea Party, MoveOn.org, and
so on).”

As alleged in the plaintiffs’ amended complaint and supporting declarations, some voters associated
with EIW ran into trouble with the ban on Election Day. One individual was asked to cover up his Tea
Party shirt. Another refused to conceal his “Please I. D. Me” button, and an election judge recorded his
name and address for possible referral. And petitioner Cilek—who was wearing the same button and
a T-shirt with the words “Don’t Tread on Me” and the Tea Party Patriots logo—was twice turned
away from the polls altogether, then finally permitted to vote after an election judge recorded his
information.
Back in court, MVA and the other plaintiffs (now joined by Cilek) argued that the ban was
unconstitutional both on its face and as applied to their apparel. The District Court granted the
State’s motions to dismiss, and the Court of Appeals for the Eighth Circuit affirmed in part and
reversed in part. In evaluating MVA’s facial challenge, the Court of Appeals observed that this Court
had previously upheld a state law restricting speech “related to a political campaign” in a 100-foot
zone outside a polling place; [Burson], the Court of Appeals determined that Minnesota’s law likewise
passed constitutional muster. The Court of Appeals reversed the dismissal of the plaintiffs’ as-applied
challenge, however, finding that the District Court had improperly considered matters outside the
pleadings. Judge Shepherd concurred in part and dissented in part. In his view, Minnesota’s broad
restriction on political apparel did not “rationally and reasonably” serve the State’s asserted
interests. On remand, the District Court granted summary judgment for the State on the as- applied
challenge, and this time the Court of Appeals affirmed.
MVA, Cilek, and Jeffers (hereinafter MVA) petitioned for review of their facial First Amendment claim
only. We granted certiorari.
II
The First Amendment prohibits laws “abridging the freedom of speech.” Minnesota’s ban on wearing
any “political badge, political button, or other political insignia” plainly restricts a form of expression
within the protection of the First Amendment.
But the ban applies only in a specific location: the interior of a polling place. It therefore implicates
our “‘forum based’ approach for assessing restrictions that the government seeks to place on the use
of its property.” International Soc. for Krishna Consciousness, Inc. v. Lee (1992) (ISKCON). Generally
speaking, our cases recognize three types of government-controlled spaces: traditional public
forums, designated public forums, and nonpublic forums. In a traditional public forum—parks,
streets, sidewalks, and the like—the government may impose reasonable time, place, and manner
restrictions on private speech, but restrictions based on content must satisfy strict scrutiny, and
those based on viewpoint are prohibited. See Pleasant Grove City v. Summum (2009). The same
standards apply in designated public forums—spaces that have “not traditionally been regarded as a
public forum” but which the government has “intentionally opened up for that purpose.” Id. In a
nonpublic forum, on the other hand—a space that “is not by tradition or designation a forum for
public communication”—the government has much more flexibility to craft rules limiting speech.
Perry Ed. Assn. v. Perry Local Educators’ Assn. (1983). The government may reserve such a forum “for
its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable
and not an effort to suppress expression merely because public officials oppose the speaker’s view.”
This Court employs a distinct standard of review to assess speech restrictions in nonpublic forums
because the government, “no less than a private owner of property,” retains the “power to preserve
the property under its control for the use to which it is lawfully dedicated.” Adderley v. Florida
(1966). “Nothing in the Constitution requires the Government freely to grant access to all who wish
to exercise their right to free speech on every type of Government property without regard to the
nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius
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v. NAACP Legal Defense & Ed. Fund, Inc. (1985). Accordingly, our decisions have long recognized that
the government may impose some content- based restrictions on speech in nonpublic forums,
including restrictions that exclude political advocates and forms of political advocacy.
A polling place in Minnesota qualifies as a nonpublic forum. It is, at least on Election Day,
government- controlled property set aside for the sole purpose of voting. The space is “a special
enclave, subject to greater restriction.” ISKCON. Rules strictly govern who may be present, for what
purpose, and for how long. See Minn. Stat. §204 C.06 (2014). And while the four-Justice plurality in
Burson and Justice Scalia’s concurrence in the judgment parted ways over whether the public
sidewalks and streets surrounding a polling place qualify as a nonpublic forum, neither opinion
suggested that the interior of the building was anything but.
We therefore evaluate MVA’s First Amendment challenge under the nonpublic forum standard. The
text of the apparel ban makes no distinction based on the speaker’s political persuasion, so MVA does
not claim that the ban discriminates on the basis of viewpoint on its face. The question accordingly is
whether Minnesota’s ban on political apparel is “reasonable in light of the purpose served by the
forum”: voting. Cornelius.
III
A
We first consider whether Minnesota is pursuing a permissible objective in prohibiting voters from
wearing particular kinds of expressive apparel or accessories while inside the polling place. The
natural starting point for evaluating a First Amendment challenge to such a restriction is this Court’s
decision in Burson, which upheld a Tennessee law imposing a 100-foot campaign-free zone around
polling place entrances. Under the Tennessee law—much like Minnesota’s buffer-zone provision—no
person could solicit votes for or against a candidate, party, or ballot measure, distribute campaign
materials, or “display . . . campaign posters, signs or other campaign mate- rials” within the restricted
zone. The plurality found that the law withstood even the strict scrutiny applicable to speech
restrictions in traditional public forums. In his opinion concurring in the judgment, Justice Scalia
argued that the less rigorous “reasonableness” standard of review should apply, and found the law
“at least reasonable” in light of the plurality’s analysis.
That analysis emphasized the problems of fraud, voter intimidation, confusion, and general disorder
that had plagued polling places in the past. Against that historical backdrop, the plurality and Justice
Scalia upheld Tennessee’s determination, supported by overwhelming consensus among the States
and “common sense,” that a campaign-free zone outside the polls was “necessary” to secure the
advantages of the secret ballot and protect the right to vote. As the plurality explained, “[t]he State of
Tennessee has decided that [the] last 15 seconds before its citizens enter the polling place should be
their own, as free from interference as possible.” That was not “an unconstitutional choice.”
MVA disputes the relevance of Burson to Minnesota’s apparel ban. On MVA’s reading, Burson
considered only “active campaigning” outside the polling place by campaign workers and others
trying to engage voters approaching the polls. Minnesota’s law, by contrast, prohibits what MVA
characterizes as “passive, silent” self-expression by voters themselves when voting. MVA also points
out that the plurality focused on the extent to which the restricted zone combated “voter intimidation
and election fraud”—concerns that, in MVA’s view, have little to do with a prohibition on certain
types of voter apparel.
Campaign buttons and apparel did come up in the Burson briefing and argument, but neither the
plurality nor Justice Scalia expressly addressed such applications of the law. Nor did either opinion
specifically consider the interior of the polling place as opposed to its environs, and it is true that the
plurality’s reasoning focused on campaign activities of a sort not likely to occur in an area where, for
the most part, only voters are permitted while voting. At the same time, Tennessee’s law swept
broadly to ban even the plain “display” of a campaign-related message, and the Court upheld the law
in full. The plurality’s conclusion that the State was warranted in designating an area for the voters as
“their own” as they enter the polling place suggests an interest more significant, not less, within that
place.
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In any event, we see no basis for rejecting Minnesota’s determination that some forms of advocacy
should be excluded from the polling place, to set it aside as “an island of calm in which voters can
peacefully contemplate their choices.” Casting a vote is a weighty civic act, akin to a jury’s return of a
verdict, or a representative’s vote on a piece of legislation. It is a time for choosing, not campaigning.
The State may reasonably decide that the interior of the polling place should reflect that distinction.
To be sure, our decisions have noted the “nondisruptive” nature of expressive apparel in more
mundane settings. Board of Airport Comm’rs of Los Angeles v. Jews for Jesus, Inc. (1987) (so
characterizing “the wearing of a T-shirt or button that contains a political message” in an airport);
Tinker v. Des Moines Independent Community School Dist. (1969) (students wearing black armbands
to protest the Vietnam War engaged in “silent, passive expression of opinion, unaccompanied by any
disorder or disturbance”). But those observations do not speak to the unique context of a polling
place on Election Day. Members of the public are brought together at that place, at the end of what
may have been a divisive election season, to reach considered decisions about their government and
laws. The State may reasonably take steps to ensure that partisan discord not follow the voter up to
the voting booth, and distract from a sense of shared civic obligation at the moment it counts the
most. That interest may be thwarted by displays that do not raise significant concerns in other
situations.
Other States can see the matter differently, and some do. The majority, however, agree with
Minnesota that at least some kinds of campaign-related clothing and accessories should stay outside.
That broadly shared judgment is entitled to respect. Cf. Burson (plurality opinion) (finding that a
“widespread and time- tested consensus” supported the constitutionality of campaign buffer zones).
Thus, in light of the special purpose of the polling place itself, Minnesota may choose to prohibit
certain apparel there because of the message it conveys, so that voters may focus on the important
decisions immediately at hand.
B
But the State must draw a reasonable line. Although there is no requirement of narrow tailoring in a
nonpublic forum, the State must be able to articulate some sensible basis for distinguishing what may
come in from what must stay out. See Cornelius. Here, the unmoored use of the term “political” in the
Minnesota law, combined with haphazard interpretations the State has provided in official guidance
and representations to this Court, cause Minnesota’s restriction to fail even this for- giving test.
Again, the statute prohibits wearing a “political badge, political button, or other political insignia.” It
does not define the term “political.” And the word can be expansive. It can encompass anything “of or
relating to government, a government, or the conduct of governmental affairs,” WEBSTER’S THIRD NEW
INTERNATIONAL DICTIONARY 1755 (2002), or anything “[o]f, relating to, or dealing with the structure or
affairs of government, politics, or the state,” AMERICAN HERITAGE DICTIONARY 1401 (3d ed. 1996). Under
a literal reading of those definitions, a button or T-shirt merely imploring others to “Vote!” could
qualify.
The State argues that the apparel ban should not be read so broadly. According to the State, the
statute does not prohibit “any conceivably ‘political’ message” or cover “all ‘political’ speech, broadly
construed.” Instead, the State interprets the ban to proscribe “only words and symbols that an
objectively reasonable observer would perceive as conveying a message about the electoral choices
at issue in [the] polling place.” (the ban “applies not to any message regarding government or its
affairs, but to messages relating to questions of governmental affairs facing voters on a given election
day”).
At the same time, the State argues that the category of “political” apparel is not limited to campaign
apparel. After all, the reference to “campaign material” in the first sentence of the statute—describing
what one may not “display” in the buffer zone as well as inside the polling place—implies that the
distinct term “political” should be understood to cover a broader class of items. As the State’s counsel
explained to the Court, Minnesota’s law “expand[s] the scope of what is prohibited from campaign
speech to additional political speech.” Tr. of Oral Arg. 50.

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We consider a State’s “authoritative constructions” in interpreting a state law. Forsyth County v.
Nationalist Movement (1992). But far from clarifying the indeterminate scope of the political apparel
provision, the State’s “electoral choices” construction introduces confusing line-drawing problems.
Cf. Jews for Jesus (a resolution banning all “First Amendment activities” in an airport could not be
saved by a “murky” construction excluding “airport-related” activity).
For specific examples of what is banned under its standard, the State points to the 2010 Election Day
Policy—which it continues to hold out as authoritative guidance regarding implementation of the
statute. The first three examples in the Policy are clear enough: items displaying the name of a
political party, items displaying the name of a candidate, and items demonstrating “support of or
opposition to a ballot question.”
But the next example—“[i]ssue oriented material designed to influence or impact voting,” raises
more questions than it answers. What qualifies as an “issue”? The answer, as far as we can tell from
the State’s briefing and argument, is any subject on which a political candidate or party has taken a
stance. See Tr. of Oral Arg. 37 (explaining that the “electoral choices” test looks at the “issues that
have been raised” in a campaign “that are relevant to the election”). For instance, the Election Day
Policy specifically notes that the “Please I. D. Me” buttons are prohibited. But a voter identification
requirement was not on the ballot in 2010, so a Minnesotan would have had no explicit “electoral
choice” to make in that respect. The buttons were nonetheless covered, the State tells us, because the
Republican candidates for Governor and Secretary of State had staked out positions on whether
photo identification should be required.
A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms
and positions of every candidate and party on the ballot is not reasonable. Candidates for statewide
and federal office and major political parties can be expected to take positions on a wide array of
subjects of local and national import. See, e.g., Democratic Platform Committee, 2016 Democratic
Party Platform (approved July 2016) (stating positions on over 90 issues); Republican Platform
Committee, Republican Platform 2016 (approved July 2016) (similar). Would a “Support Our Troops”
shirt be banned, if one of the candidates or parties had expressed a view on military funding or aid
for veterans? What about a “#MeToo” shirt, referencing the movement to increase awareness of
sexual harassment and assault? At oral argument, the State indicated that the ban would cover such
an item if a candidate had “brought up” the topic. Tr. of Oral Arg. 64–65.
The next broad category in the Election Day Policy—any item “promoting a group with recognizable
political views,” makes matters worse. The State construes the category as limited to groups with
“views” about “the issues confronting voters in a given election.” The State does not, however,
confine that category to groups that have endorsed a candidate or taken a position on a ballot
question.
Any number of associations, educational institutions, businesses, and religious organizations could
have an opinion on an “issue[] confronting voters in a given election.” For instance, the American
Civil Liberties Union, the AARP, the World Wildlife Fund, and Ben & Jerry’s all have stated positions
on matters of public concern. If the views of those groups align or conflict with the position of a
candidate or party on the ballot, does that mean that their insignia are banned? Brief for
Respondents (representing that “AFL–CIO or Chamber of Commerce apparel” would be banned if
those organizations “had objectively recognizable views on an issue in the election at hand”). Take
another example: In the run-up to the 2012 election, Presidential candidates of both major parties
issued public statements regarding the then-existing policy of the Boy Scouts of America to exclude
members on the basis of sexual orientation. Should a Scout leader in 2012 stopping to vote on his
way to a troop meeting have been asked to cover up his uniform?
The State emphasizes that the ban covers only apparel promoting groups whose political positions
are sufficiently “well-known.” Tr. of Oral Arg. 37. But that requirement, if anything, only increases the
potential for erratic application. Well known by whom? The State tells us the lodestar is the “typical
observer” of the item. Brief for Respondents 21. But that measure may turn in significant part on the
background knowledge and media consumption of the particular election judge applying it.

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The State’s “electoral choices” standard, considered together with the nonexclusive examples in the
Election Day Policy, poses riddles that even the State’s top lawyers struggle to solve. A shirt declaring
“All Lives Matter,” we are told, could be “perceived” as political. Tr. of Oral Arg. 41. How about a shirt
bearing the name of the National Rifle Association? Definitely out. Id., at 39–40. That said, a shirt
displaying a rainbow flag could be worn “unless there was an issue on the ballot” that “related somehow . . . to gay rights.” Id., at 38 (emphasis added). A shirt simply displaying the text of the Second
Amendment? Prohibited. Id., at 40. But a shirt with the text of the First Amendment? “It would be
allowed.” Ibid.
“[P]erfect clarity and precise guidance have never been required even of regulations that restrict
expressive activity.” Ward v. Rock Against Racism (1989). But the State’s difficulties with its
restriction go beyond close calls on borderline or fanciful cases. And that is a serious matter when the
whole point of the exercise is to prohibit the expression of political views.
It is “self-evident” that an indeterminate prohibition carries with it “[t]he opportunity for abuse,
especially where [it] has received a virtually open-ended interpretation.” Jews for Jesus; Heffron v.
International Soc. for Krishna Consciousness, Inc. (1981) (warning of the “more covert forms of
discrimination that may result when arbitrary discretion is vested in some governmental authority”).
Election judges “have the authority to decide what is political” when screening individuals at the
entrance to the polls. We do not doubt that the vast majority of election judges strive to enforce the
statute in an evenhanded manner, nor that some degree of discretion in this setting is necessary. But
that discretion must be guided by objective, workable standards. Without them, an election judge’s
own politics may shape his views on what counts as “political.” And if voters experience or witness
episodes of unfair or inconsistent enforcement of the ban, the State’s interest in maintaining a polling
place free of distraction and disruption would be undermined by the very measure intended to
further it.
That is not to say that Minnesota has set upon an impossible task. Other States have laws proscribing
displays (including apparel) in more lucid terms. See, e.g., Cal. Elec. Code Ann. §319.5 (West Cum.
Supp. 2018) (prohibiting “the visible display . . . of information that advocates for or against any
candidate or measure,” including the “display of a candidate’s name, likeness, or logo,” the “display of
a ballot measure’s number, title, subject, or logo,” and “[b]uttons, hats,” or “shirts” containing such
information); Tex. Elec. Code Ann. §61.010(a) (West 2010) (prohibiting the wearing of “a badge,
insignia, emblem, or other similar communicative device relating to a candidate, measure, or political
party appearing on the ballot, or to the conduct of the election”). We do not suggest that such
provisions set the outer limit of what a State may proscribe, and do not pass on the constitutionality
of laws that are not before us. But we do hold that if a State wishes to set its polling places apart as
areas free of partisan discord, it must employ a more discernible approach than the one Minnesota
has offered here.

* * *
Cases like this “present[] us with a particularly difficult reconciliation: the accommodation of the
right to engage in political discourse with the right to vote.” Burson (plurality opinion). Minnesota,
like other States, has sought to strike the balance in a way that affords the voter the opportunity to
exercise his civic duty in a setting removed from the clamor and din of electioneering. While that
choice is generally worthy of our respect, Minnesota has not supported its good intentions with a law
capable of reasoned application.
The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings
consistent with this opinion.
It is so ordered.
JUSTICE SOTOMAYOR, WITH WHOM JUSTICE BREYER JOINS, DISSENTING.
I agree with the Court that “[c]asting a vote is a weighty civic act” and that “State[s] may reasonably
take steps to ensure that partisan discord not follow the voter up to the voting booth,” including by
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“prohibit[ing] certain apparel [in polling places] because of the message it conveys.” I disagree,
however, with the Court’s decision to declare Minnesota’s political apparel ban unconstitutional on
its face because, in its view, the ban is not “capable of reasoned application,” when the Court has not
first afforded the Minnesota state courts “‘a reasonable opportunity to pass upon’” and construe the
statute, Babbitt v. Farm Workers (1979). I would certify this case to the Minnesota Supreme Court for
a definitive interpretation of the political apparel ban under Minn. Stat. §211B.11(1) (Supp. 2017),
which likely would obviate the hypothetical line-drawing problems that form the basis of the Court’s
decision today.
I
[omitted]
II
* * * It is at least “fairly possible” that the state court could “ascertain . . . a construction . . . that will
contain the statute within constitutional bounds.” Ultimately, the issue comes down to the meaning
of the adjective “political,” as used to describe what constitutes a “political badge, political button, or
other political insignia.” §211B.11(1). The word “political” is, of course, not inherently incapable of
definition. This Court elsewhere has encountered little difficulty discerning its meaning in the context
of statutes subject to First Amendment challenges. See, e.g., Civil Service Comm’n v. Letter Carriers
(1973) (rejecting First Amendment overbreadth and vagueness challenge to §9(a) of the Hatch Act,
then codified at 5 U. S. C. §7324(a)(2), which prohibited federal employees from taking “‘an active
part in political management or in political campaigns’ ”); Broadrick v. Oklahoma (1973) (rejecting
First Amendment overbreadth and vagueness challenge to a similar Oklahoma law that “restricts the
political activities of the State’s classified civil servants”).
Even here, the majority recognizes a substantial amount of speech that “clear[ly]” qualifies as
“political,” such as “items displaying the name of a political party, items displaying the name of a
candidate, and items demonstrating support of or opposition to a ballot question.” The fact that the
majority has some difficulty deciphering guidance to §211B.11(1) that also proscribes “[i]ssue
oriented material designed to influence or impact voting” and “[m]aterial promoting a group with
recognizable political views,” does not mean that the statute as a whole is not subject to a
construction that falls within constitutional bounds. As this Court has made clear in the context of the
First Amendment overbreadth doctrine, the “mere fact” that petitioners “can conceive of some
impermissible applications of [the] statute is not sufficient to render it” unconstitutional. United
States v. Williams (2008). That is especially so where the state court is capable of clarifying the
boundaries of state law in a manner that would permit the Court to engage in a comprehensive
constitutional analysis. See, e.g., Virginia v. American Booksellers Assn., Inc. (1988) (certifying
questions to the Virginia Supreme Court for clarification as to whether a state statute was readily
susceptible to a narrowing construction that would not violate the First Amendment);
Commonwealth v. American Booksellers Assn., Inc., 236 Va. 168, 372 S. E. 2d 618 (1988) (responding
to certification with such a narrowing construction).
Furthermore, the Court also should consider the history of Minnesota’s “implementation” of the
statute in evaluating the facial challenge here. Forsyth County v. Nationalist Movement (1992). That
history offers some assurance that the statute has not been interpreted or applied in an unreasonable
manner. There is no evidence that any individual who refused to remove a political item has been
prohibited from voting, and respondents maintain that no one has been referred for prosecution for
violating the provision. Since the political apparel ban was enacted in the late 19th century, this is the
first time the statute has been challenged on the basis that certain speech is not “political.” Tr. of Oral
Arg. 44. Even then, petitioners’ as-applied challenge was rejected by the District Court and the Court
of Appeals for the Eighth Circuit. Petitioners did not seek review of those claims in this Court. On the
whole, the historical application of the law helps illustrate that the statute is not so “indeterminate”
so as to “carr[y] with it ‘[t]he opportunity for abuse.’”

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III
Especially where there are undisputedly many constitutional applications of a state law that further
weighty state interests, the Court should be wary of invalidating a law without giving the State’s
highest court an opportunity to pass upon it. Because the Court declines to take the obvious step of
certification in this case, I respectfully dissent.

Notes

1.
The Court included an Appendix with citations to “state laws prohibiting accessories or
apparel in the polling place.” The Court included N.Y. ELEC. LAW ANN. §8-104(1). This statute provides:
The American flag shall be kept displayed at each polling place throughout the election. Facsimile
ballots, voter information posting and distance markers shall not be taken down, torn or defaced
during the election. While the polls are open no person shall do any electioneering within the polling
place, or in any public street, within a one hundred foot radial measured from the entrances designated
by the inspectors of election, to such polling place or within such distance in any place in a public
manner; and no political banner, button, poster or placard shall be allowed in or upon the polling place
or within such one hundred foot radial. While the polls are open no person shall consume any alcoholic
beverages within the polling place.

Is this statute constitutional after Minnesota Voters Alliance?
2.

Does the Court hold that the term “political” is a content regulation?

II.

Anonymity and Political Life
NAACP. v. Alabama
357 U.S. 449 (1958)

JUSTICE HARLAN DELIVERED THE OPINION OF THE UNANIMOUS COURT.
We review from the standpoint of its validity under the Federal Constitution a judgment of civil
contempt entered against petitioner, the National Association for the Advancement of Colored People
[NAACP] in the courts of Alabama. The question presented is whether Alabama, consistently with the
Due Process Clause of the Fourteenth Amendment, can compel petitioner to reveal to the State's
Attorney General the names and addresses of all its Alabama members and agents, without regard to
their positions or functions in the Association. The judgment of contempt was based upon
petitioner's refusal to comply fully with a court order requiring in part the production of
membership lists. Petitioner's claim is that the order, in the circumstances shown by this record,
violated rights assured to petitioner and its members under the Constitution.
Alabama has a statute similar to those of many other States which requires a foreign corporation,
except as exempted, to qualify before doing business by filing its corporate charter with the Secretary
of State and designating a place of business and an agent to receive service of process. The statute
imposes a fine on a corporation transacting intrastate business before qualifying and provides for
criminal prosecution of officers of such a corporation. Ala. Code, 1940, Tit. 10, 192-198. The National
Association for the Advancement of Colored People is a nonprofit membership corporation organized
under the laws of New York. Its purposes, fostered on a nationwide basis, are those indicated by its
name, and it operates through chartered affiliates which are independent unincorporated
associations, with membership therein equivalent to membership in petitioner. The first Alabama
affiliates were chartered in 1918. Since that time the aims of the Association have been advanced
through activities of its affiliates, and in 1951 the Association itself opened a regional office in

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Alabama, at which it employed two supervisory persons and one clerical worker. The Association has
never complied with the qualification statute, from which it considered itself exempt.
In 1956 the Attorney General of Alabama brought an equity suit in the State Circuit Court,
Montgomery County, to enjoin the Association from conducting further activities within, and to oust
it from, the State. Among other things the bill in equity alleged that the Association had opened a
regional office and had organized various affiliates in Alabama; had recruited members and solicited
contributions within the State; had given financial support and furnished legal assistance to Negro
students seeking admission to the state university; and had supported a Negro boycott of the bus
lines in Montgomery to compel the seating of passengers without regard to race. The bill recited that
the Association, by continuing to do business in Alabama without complying with the qualification
statute, was ". . . causing irreparable injury to the property and civil rights of the residents and
citizens of the State of Alabama for which criminal prosecution and civil actions at law afford no
adequate relief . . . ." On the day the complaint was filed, the Circuit Court issued ex parte an order
restraining the Association, pendente lite, from engaging in further activities within the State and
forbidding it to take any steps to qualify itself to do business therein.
Petitioner demurred to the allegations of the bill and moved to dissolve the restraining order. It
contended that its activities did not subject it to the qualification requirements of the statute and that
in any event what the State sought to accomplish by its suit would violate rights to freedom of speech
and assembly guaranteed under the Fourteenth Amendment to the Constitution of the United States.
Before the date set for a hearing on this motion, the State moved for the production of a large number
of the Association's records and papers, including bank statements, leases, deeds, and records
containing the names and addresses of all Alabama "members" and "agents" of the Association. It
alleged that all such documents were necessary for adequate preparation for the hearing, in view of
petitioner's denial of the conduct of intrastate business within the meaning of the qualification
statute. Over petitioner's objections, the court ordered the production of a substantial part of the
requested records, including the membership lists, and postponed the hearing on the restraining
order to a date later than the time ordered for production.
Thereafter petitioner filed its answer to the bill in equity. It admitted its Alabama activities
substantially as alleged in the complaint and that it had not qualified to do business in the State.
Although still disclaiming the statute's application to it, petitioner offered to qualify if the bar from
qualification made part of the restraining order were lifted, and it submitted with the answer an
executed set of the forms required by the statute. However petitioner did not comply with the
production order, and for this failure was adjudged in civil contempt and fined $10,000. The
contempt judgment provided that the fine would be subject to reduction or remission if compliance
were forthcoming within five days but otherwise would be increased to $100,000.
At the end of the five-day period petitioner produced substantially all the data called for by the
production order except its membership lists, as to which it contended that Alabama could not
constitutionally compel disclosure, and moved to modify or vacate the contempt judgment, or stay its
execution pending appellate review. This motion was denied. While a similar stay application, which
was later denied, was pending before the Supreme Court of Alabama, the Circuit Court made a
further order adjudging petitioner in continuing contempt and increasing the fine already imposed to
$100,000. Under Alabama law the effect of the contempt adjudication was to foreclose petitioner
from obtaining a hearing on the merits of the underlying ouster action, or from taking any steps to
dissolve the temporary restraining order which had been issued ex parte, until it purged itself of
contempt.
The State Supreme Court thereafter twice dismissed petitions for certiorari to review this final
contempt judgment, the first time for insufficiency of the petition's allegations and the second time
on procedural grounds. We granted certiorari because of the importance of the constitutional
questions presented.

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I.
We address ourselves first to respondent's contention that we lack jurisdiction because the denial of
certiorari by the Supreme Court of Alabama rests on an independent nonfederal ground, namely, that
petitioner in applying for certiorari had pursued the wrong appellate remedy under state law. * * *
We hold that this Court has jurisdiction to entertain petitioner's federal claims.
II.
The Association both urges that it is constitutionally entitled to resist official inquiry into its
membership lists, and that it may assert, on behalf of its members, a right personal to them to be
protected from compelled disclosure by the State of their affiliation with the Association as revealed
by the membership lists. We think that petitioner argues more appropriately the rights of its
members, and that its nexus with them is sufficient to permit that it act as their representative before
this Court. In so concluding, we reject respondent's argument that the Association lacks standing to
assert here constitutional rights pertaining to the members, who are not of course parties to the
litigation. * * *
III.
We thus reach petitioner's claim that the production order in the state litigation trespasses upon
fundamental freedoms protected by the Due Process Clause of the Fourteenth Amendment.
Petitioner argues that in view of the facts and circumstances shown in the record, the effect of
compelled disclosure of the membership lists will be to abridge the rights of its rank-and-file
members to engage in lawful association in support of their common beliefs. It contends that
governmental action which, although not directly suppressing association, nevertheless carries this
consequence, can be justified only upon some overriding valid interest of the State.
Effective advocacy of both public and private points of view, particularly controversial ones, is
undeniably enhanced by group association, as this Court has more than once recognized by
remarking upon the close nexus between the freedoms of speech and assembly. It is beyond debate
that freedom to engage in association for the advancement of beliefs and ideas is an inseparable
aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment, which
embraces freedom of speech. See Gitlow v. New York (1925); Palko v. Connecticut (1937); Cantwell v.
Connecticut (1940); Staub v. City of Baxley (1958). Of course, it is immaterial whether the beliefs
sought to be advanced by association pertain to political, economic, religious or cultural matters, and
state action which may have the effect of curtailing the freedom to associate is subject to the closest
scrutiny.
The fact that Alabama, so far as is relevant to the validity of the contempt judgment presently under
review, has taken no direct action to restrict the right of petitioner's members to associate freely,
does not end inquiry into the effect of the production order. In the domain of these indispensable
liberties, whether of speech, press, or association, the decisions of this Court recognize that
abridgment of such rights, even though unintended, may inevitably follow from varied forms of
governmental action. * * * The governmental action challenged may appear to be totally unrelated to
protected liberties. Statutes imposing taxes upon rather than prohibiting particular activity have
been struck down when perceived to have the consequence of unduly curtailing the liberty of
freedom of press assured under the Fourteenth Amendment. Grosjean v. American Press Co. (1936);
Murdock v. Pennsylvania (1943).
It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in
advocacy may constitute as effective a restraint on freedom of association as the forms of
governmental action in the cases above were thought likely to produce upon the particular
constitutional rights there involved. This Court has recognized the vital relationship between
freedom to associate and privacy in one's associations. When referring to the varied forms of
governmental action which might interfere with freedom of assembly, it said in American
Communications Assn. v. Douds (1950), "A requirement that adherents of particular religious faiths or
political parties wear identifying arm-bands, for example, is obviously of this nature." Compelled
disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same
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order. Inviolability of privacy in group association may in many circumstances be indispensable to
preservation of freedom of association, particularly where a group espouses dissident beliefs.
We think that the production order, in the respects here drawn in question, must be regarded as
entailing the likelihood of a substantial restraint upon the exercise by petitioner's members of their
right to freedom of association. Petitioner has made an uncontroverted showing that on past
occasions revelation of the identity of its rank-and-file members has exposed these members to
economic reprisal, loss of employment, threat of physical coercion, and other manifestations of
public hostility. Under these circumstances, we think it apparent that compelled disclosure of
petitioner's Alabama membership is likely to affect adversely the ability of petitioner and its
members to pursue their collective effort to foster beliefs which they admittedly have the right to
advocate, in that it may induce members to withdraw from the Association and dissuade others from
joining it because of fear of exposure of their beliefs shown through their associations and of the
consequences of this exposure.
It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory
disclosure of names of petitioner's members may have upon participation by Alabama citizens in
petitioner's activities follows not from state action but from private community pressures. The
crucial factor is the interplay of governmental and private action, for it is only after the initial
exertion of state power represented by the production order that private action takes hold.
We turn to the final question whether Alabama has demonstrated an interest in obtaining the
disclosures it seeks from petitioner which is sufficient to justify the deterrent effect which we have
concluded these disclosures may well have on the free exercise by petitioner's members of their
constitutionally protected right of association. Such a ". . . subordinating interest of the State must be
compelling," It is not of moment that the State has here acted solely through its judicial branch, for
whether legislative or judicial, it is still the application of state power which we are asked to
scrutinize.
It is important to bear in mind that petitioner asserts no right to absolute immunity from state
investigation, and no right to disregard Alabama's laws. As shown by its substantial compliance with
the production order, petitioner does not deny Alabama's right to obtain from it such information as
the State desires concerning the purposes of the Association and its activities within the State.
Petitioner has not objected to divulging the identity of its members who are employed by or hold
official positions with it. It has urged the rights solely of its ordinary rank-and-file members. This is
therefore not analogous to a case involving the interest of a State in protecting its citizens in their
dealings with paid solicitors or agents of foreign corporations by requiring identification.
Whether there was "justification" in this instance turns solely on the substantiality of Alabama's
interest in obtaining the membership lists. During the course of a hearing before the Alabama Circuit
Court on a motion of petitioner to set aside the production order, the State Attorney General
presented at length, under examination by petitioner, the State's reason for requesting the
membership lists. The exclusive purpose was to determine whether petitioner was conducting
intrastate business in violation of the Alabama foreign corporation registration statute, and the
membership lists were expected to help resolve this question. The issues in the litigation commenced
by Alabama by its bill in equity were whether the character of petitioner and its activities in Alabama
had been such as to make petitioner subject to the registration statute, and whether the extent of
petitioner's activities without qualifying suggested its permanent ouster from the State. Without
intimating the slightest view upon the merits of these issues, we are unable to perceive that the
disclosure of the names of petitioner's rank-and-file members has a substantial bearing on either of
them. As matters stand in the state court, petitioner (1) has admitted its presence and conduct of
activities in Alabama since 1918; (2) has offered to comply in all respects with the state qualification
statute, although preserving its contention that the statute does not apply to it; and (3) has
apparently complied satisfactorily with the production order, except for the membership lists, by
furnishing the Attorney General with varied business records, its charter and statement of purposes,
the names of all of its directors and officers, and with the total number of its Alabama members and
the amount of their dues. These last items would not on this record appear subject to constitutional
challenge and have been furnished, but whatever interest the State may have in obtaining names of
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ordinary members has not been shown to be sufficient to overcome petitioner's constitutional
objections to the production order.
From what has already been said, we think it apparent that Bryant v. Zimmerman (1928) cannot be
relied on in support of the State's position, for that case involved markedly different considerations
in terms of the interest of the State in obtaining disclosure. There, this Court upheld, as applied to a
member of a local chapter of the Ku Klux Klan, a New York statute requiring any unincorporated
association which demanded an oath as a condition to membership to file with state officials copies
of its ". . . constitution, by-laws, rules, regulations and oath of membership, together with a roster of
its membership and a list of its officers for the current year." N. Y. Laws 1923, c. 664, 53, 56. In its
opinion, the Court took care to emphasize the nature of the organization which New York sought to
regulate. The decision was based on the particular character of the Klan's activities, involving acts of
unlawful intimidation and violence, which the Court assumed was before the state legislature when it
enacted the statute, and of which the Court itself took judicial notice. Furthermore, the situation
before us is significantly different from that in Bryant, because the organization there had made no
effort to comply with any of the requirements of New York's statute but rather had refused to furnish
the State with any information as to its local activities.
We hold that the immunity from state scrutiny of membership lists which the Association claims on
behalf of its members is here so related to the right of the members to pursue their lawful private
interests privately and to associate freely with others in so doing as to come within the protection of
the Fourteenth Amendment. And we conclude that Alabama has fallen short of showing a controlling
justification for the deterrent effect on the free enjoyment of the right to associate which disclosure
of membership lists is likely to have. Accordingly, the judgment of civil contempt and the $100,000
fine which resulted from petitioner's refusal to comply with the production order in this respect
must fall.
IV.
Petitioner joins with its attack upon the production order a challenge to the constitutionality of the
State's ex parte temporary restraining order preventing it from soliciting support in Alabama, and it
asserts that the Fourteenth Amendment precludes such state action. But as noted above, petitioner
has never received a hearing on the merits of the ouster suit, and we do not consider these questions
properly here. * * * Only from the disposition of such an appeal can review be sought here.
For the reasons stated, the judgment of the Supreme Court of Alabama must be reversed and the case
remanded for proceedings not inconsistent with this opinion.
Reversed.

McIntyre v. Ohio Elections Comm'n
514 U.S. 334 (1995)
STEVENS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH O'CONNOR, KENNEDY, SOUTER, GINSBURG, AND
BREYER, JJ., JOINED. GINSBURG, J., FILED A CONCURRING OPINION. THOMAS, J., FILED AN OPINION CONCURRING IN THE
JUDGMENT. SCALIA, J., FILED A DISSENTING OPINION, IN WHICH REHNQUIST, C. J., JOINED.
JUSTICE STEVENS DELIVERED THE OPINION OF THE COURT.
The question presented is whether an Ohio statute that prohibits the distribution of anonymous
campaign literature is a "law . . . abridging the freedom of speech" within the meaning of the First
Amendment.
I
On April 27, 1988, Margaret McIntyre distributed leaflets to persons attending a public meeting at
the Blendon Middle School in Westerville, Ohio. At this meeting, the superintendent of schools
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planned to discuss an imminent referendum on a proposed school tax levy. The leaflets expressed
Mrs. McIntyre's opposition to the levy. [FN: The following is one of Mrs. McIntyre's leaflets, in its
original typeface:
•
VOTE NO
•
ISSUE 19 SCHOOL TAX LEVY
Last election Westerville Schools, asked us to vote yes for
new buildings and expansions programs. We gave them what they asked. We
knew there was crowded conditions and new growth in the district.
Now we find out there is a 4 million dollar deficit - WHY?
We are told the 3 middle schools must be split because of
over-crowding, and yet we are told 3 schools are being closed - WHY?
A magnet school is not a full operating school, but a specials
school.
Residents were asked to work on a 20 member commission to help
formulate the new boundaries For 4 weeks they worked long and hard and
came up with a very workable plan. Their plan was totally disregarded –
WHY?
WASTE of tax payers dollars must be stopped. Our children's
education and welfare must come first. WASTE CAN NO LONGER BE TOLERATED.
PLEASE VOTE
ISSUE 19

NO
THANK YOU,
CONCERNED PARENTS
AND
TAX PAYERS

There is no suggestion that the text of her message was false, misleading, or libelous. She had
composed and printed it on her home computer and had paid a professional printer to make
additional copies. Some of the handbills identified her as the author; others merely purported to
express the views of "CONCERNED PARENTS AND TAX PAYERS." Except for the help provided by her
son and a friend, who placed some of the leaflets on car windshields in the school parking lot, Mrs.
McIntyre acted independently.
While Mrs. McIntyre distributed her handbills, an official of the school district, who supported the tax
proposal, advised her that the unsigned leaflets did not conform to the Ohio election laws.
Undeterred, Mrs. McIntyre appeared at another meeting on the next evening and handed out more of
the handbills.
The proposed school levy was defeated at the next two elections, but it finally passed on its third try
in November 1988. Five months later, the same school official filed a complaint with the Ohio
Elections Commission charging that Mrs. McIntyre's distribution of unsigned leaflets violated
3599.09(A) of the Ohio Code [prohibiting participation in publications “designed to promote the
nomination or election or defeat of a candidate, or to promote the adoption or defeat of any issue, or
to influence the voters in any election, or make an expenditure for the purpose of financing political
communications” “unless there appears on such form of publication in a conspicuous place or is
contained within said statement the name and residence or business address of the chairman,
treasurer, or secretary of the organization issuing the same, or the person who issues, makes, or is
responsible therefor.” ] The Commission agreed and imposed a fine of $100.
The Franklin County Court of Common Pleas reversed. Finding that Mrs. McIntyre did not "mislead
the public nor act in a surreptitious manner," the court concluded that the statute was
unconstitutional as applied to her conduct. The Ohio Court of Appeals, by a divided vote, reinstated
the fine. Notwithstanding doubts about the continuing validity of a 1922 decision of the Ohio
Supreme Court upholding the statutory predecessor of §3599.09(A), the majority considered itself
bound by that precedent. The dissenting judge thought that our intervening decision in Talley v.
California (1960), in which we invalidated a city ordinance prohibiting all anonymous leafletting,
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compelled the Ohio court to adopt a narrowing construction of the statute to save its
constitutionality.
The Ohio Supreme Court affirmed by a divided vote. The majority distinguished Mrs. McIntyre's case
from Talley on the ground that §3599.09(A) "has as its purpose the identification of persons who
distribute materials containing false statements." The Ohio court believed that such a law should be
upheld if the burdens imposed on the First Amendment rights of voters are "reasonable" and
"nondiscriminatory." Under that standard, the majority concluded that the statute was plainly valid.*
**
Mrs. McIntyre passed away during the pendency of this litigation. Even though the amount in
controversy is only $100, petitioner, as the executor of her estate, has pursued her claim in this Court.
Our grant of certiorari reflects our agreement with his appraisal of the importance of the question
presented.
II
Ohio maintains that the statute under review is a reasonable regulation of the electoral process. The
State does not suggest that all anonymous publications are pernicious or that a statute totally
excluding them from the marketplace of ideas would be valid. This is a wise (albeit implicit)
concession, for the anonymity of an author is not ordinarily a sufficient reason to exclude her work
product from the protections of the First Amendment.
"Anonymous pamphlets, leaflets, brochures and even books have played an important role in the
progress of mankind." Talley v. California (1960). Great works of literature have frequently been
produced by authors writing under assumed names. Despite readers' curiosity and the public's
interest in identifying the creator of a work of art, an author generally is free to decide whether or
not to disclose her true identity. The decision in favor of anonymity may be motivated by fear of
economic or official retaliation, by concern about social ostracism, or merely by a desire to preserve
as much of one's privacy as possible. Whatever the motivation may be, at least in the field of literary
endeavor, the interest in having anonymous works enter the marketplace of ideas unquestionably
outweighs any public interest in requiring disclosure as a condition of entry. Accordingly, an author's
decision to remain anonymous, like other decisions concerning omissions or additions to the content
of a publication, is an aspect of the freedom of speech protected by the First Amendment.
The freedom to publish anonymously extends beyond the literary realm. In Talley, the Court held that
the First Amendment protects the distribution of unsigned handbills urging readers to boycott
certain Los Angeles merchants who were allegedly engaging in discriminatory employment practices.
Writing for the Court, Justice Black noted that "[p]ersecuted groups and sects from time to time
throughout history have been able to criticize oppressive practices and laws either anonymously or
not at all." Justice Black recalled England's abusive press licensing laws and seditious libel
prosecutions, and he reminded us that even the arguments favoring the ratification of the
Constitution advanced in the Federalist Papers were published under fictitious names. On occasion,
quite apart from any threat of persecution, an advocate may believe her ideas will be more
persuasive if her readers are unaware of her identity. Anonymity thereby provides a way for a writer
who may be personally unpopular to ensure that readers will not prejudge her message simply
because they do not like its proponent. Thus, even in the field of political rhetoric, where "the identity
of the speaker is an important component of many attempts to persuade," City of Ladue v. Gilleo
(1994), the most effective advocates have sometimes opted for anonymity. The specific holding in
Talley related to advocacy of an economic boycott, but the Court's reasoning embraced a respected
tradition of anonymity in the advocacy of political causes. This tradition is perhaps best exemplified
by the secret ballot, the hard-won right to vote one's conscience without fear of retaliation.
III
California had defended the Los Angeles ordinance at issue in Talley as a law "aimed at providing a
way to identify those responsible for fraud, false advertising and libel." We rejected that argument
because nothing in the text or legislative history of the ordinance limited its application to those evils.
We then made clear that we did "not pass on the validity of an ordinance limited to prevent these or
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any other supposed evils." The Ohio statute likewise contains no language limiting its application to
fraudulent, false, or libelous statements; to the extent, therefore, that Ohio seeks to justify
3599.09(A) as a means to prevent the dissemination of untruths, its defense must fail for the same
reason given in Talley. As the facts of this case demonstrate, the ordinance plainly applies even when
there is no hint of falsity or libel.
Ohio's statute does, however, contain a different limitation: It applies only to unsigned documents
designed to influence voters in an election. In contrast, the Los Angeles ordinance prohibited all
anonymous handbilling "in any place under any circumstances." For that reason, Ohio correctly
argues that Talley does not necessarily control the disposition of this case. We must, therefore, decide
whether and to what extent the First Amendment's protection of anonymity encompasses documents
intended to influence the electoral process.
Ohio places its principal reliance on cases such as Anderson v. Celebrezze (1983) [filing deadlines];
Storer v. Brown (1974) [ballot access]; and Burdick v. Takushi (1992) [write-in voting], in which we
reviewed election code provisions governing the voting process itself. In those cases we refused to
adopt "any `litmus-paper test' that will separate valid from invalid restrictions." Instead, we pursued
an analytical process comparable to that used by courts "in ordinary litigation": we considered the
relative interests of the State and the injured voters, and we evaluated the extent to which the State's
interests necessitated the contested restrictions. Applying similar reasoning in this case, the Ohio
Supreme Court upheld §3599.09(A) as a "reasonable" and "nondiscriminatory" burden on the rights
of voters.
The "ordinary litigation" test does not apply here. Unlike the statutory provisions challenged in
Storer and Anderson, §3599.09(A) of the Ohio Code does not control the mechanics of the electoral
process. It is a regulation of pure speech. Moreover, even though this provision applies evenhandedly
to advocates of differing viewpoints, it is a direct regulation of the content of speech. Every written
document covered by the statute must contain "the name and residence or business address of the
chairman, treasurer, or secretary of the organization issuing the same, or the person who issues,
makes, or is responsible therefor." Ohio Rev. Code Ann. §3599.09(A) (1988). Furthermore, the
category of covered documents is defined by their content - only those publications containing
speech designed to influence the voters in an election need bear the required markings.
Consequently, we are not faced with an ordinary election restriction; this case "involves a limitation
on political expression subject to exacting scrutiny." Meyer v. Grant (1988).
Indeed, as we have explained on many prior occasions, the category of speech regulated by the Ohio
statute occupies the core of the protection afforded by the First Amendment. * * * [extensive
quotation from Buckley v. Valeo (1976)].
Of course, core political speech need not center on a candidate for office. The principles enunciated in
Buckley [v. Valeo] extend equally to issue-based elections such as the school-tax referendum that Mrs.
McIntyre sought to influence through her handbills. Indeed, the speech in which Mrs. McIntyre
engaged - handing out leaflets in the advocacy of a politically controversial viewpoint - is the essence
of First Amendment expression. That this advocacy occurred in the heat of a controversial
referendum vote only strengthens the protection afforded to Ms. McIntyre's expression: urgent,
important, and effective speech can be no less protected than impotent speech, lest the right to speak
be relegated to those instances when it is least needed. No form of speech is entitled to greater
constitutional protection than Mrs. McIntyre's.
When a law burdens core political speech, we apply "exacting scrutiny," and we uphold the
restriction only if it is narrowly tailored to serve an overriding state interest. Our precedents thus
make abundantly clear that the Ohio Supreme Court applied a significantly more lenient standard
than is appropriate in a case of this kind.
IV
Nevertheless, the State argues that even under the strictest standard of review, the disclosure
requirement in 3599.09(A) is justified by two important and legitimate state interests. Ohio judges
its interest in preventing fraudulent and libelous statements and its interest in providing the
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electorate with relevant information to be sufficiently compelling to justify the anonymous speech
ban. These two interests necessarily overlap to some extent, but it is useful to discuss them
separately.
Insofar as the interest in informing the electorate means nothing more than the provision of
additional information that may either buttress or undermine the argument in a document, we think
the identity of the speaker is no different from other components of the document's content that the
author is free to include or exclude. We have already held that the State may not compel a newspaper
that prints editorials critical of a particular candidate to provide space for a reply by the candidate.
Miami Herald Publishing Co. v. Tornillo (1974). The simple interest in providing voters with
additional relevant information does not justify a state requirement that a writer make statements or
disclosures she would otherwise omit. Moreover, in the case of a handbill written by a private citizen
who is not known to the recipient, the name and address of the author adds little, if anything, to the
reader's ability to evaluate the document's message. Thus, Ohio's informational interest is plainly
insufficient to support the constitutionality of its disclosure requirement.
The state interest in preventing fraud and libel stands on a different footing. We agree with Ohio's
submission that this interest carries special weight during election campaigns when false statements,
if credited, may have serious adverse consequences for the public at large. Ohio does not, however,
rely solely on 3599.09(A) to protect that interest. Its Election Code includes detailed and specific
prohibitions against making or disseminating false statements during political campaigns. Ohio Rev.
Code Ann. 3599.09.1(B), 3599.09.2(B) (1988). These regulations apply both to candidate elections
and to issue-driven ballot measures. Thus, Ohio's prohibition of anonymous leaflets plainly is not its
principal weapon against fraud. Rather, it serves as an aid to enforcement of the specific prohibitions
and as a deterrent to the making of false statements by unscrupulous prevaricators. Although these
ancillary benefits are assuredly legitimate, we are not persuaded that they justify 3599.09(A)'s
extremely broad prohibition.
As this case demonstrates, the prohibition encompasses documents that are not even arguably false
or misleading. It applies not only to the activities of candidates and their organized supporters, but
also to individuals acting independently and using only their own modest resources. It applies not
only to elections of officers, but also to ballot issues that present neither a substantial risk of libel nor
any potential appearance of corrupt advantage. It applies not only to leaflets distributed on the eve of
an election, when the opportunity for reply is limited, but also to those distributed months in
advance. It applies no matter what the character or strength of the author's interest in anonymity.
Moreover, as this case also demonstrates, the absence of the author's name on a document does not
necessarily protect either that person or a distributor of a forbidden document from being held
responsible for compliance with the election code. Nor has the State explained why it can more easily
enforce the direct bans on disseminating false documents against anonymous authors and
distributors than against wrongdoers who might use false names and addresses in an attempt to
avoid detection. We recognize that a State's enforcement interest might justify a more limited
identification requirement, but Ohio has shown scant cause for inhibiting the leafletting at issue here.
V
Finally, Ohio vigorously argues that our opinions in First Nat. Bank of Boston v. Bellotti (1978) and
Buckley v. Valeo (1976) amply support the constitutionality of its disclosure requirement. Neither
case is controlling: the former concerned the scope of First Amendment protection afforded to
corporations; the relevant portion of the latter concerned mandatory disclosure of campaign-related
expenditures. Neither case involved a prohibition of anonymous campaign literature. * * *
VI
Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an
honorable tradition of advocacy and of dissent. Anonymity is a shield from the tyranny of the
majority. See generally J. S. MILL, ON LIBERTY, in ON LIBERTY AND CONSIDERATIONS ON REPRESENTATIVE
GOVERNMENT 1, 3-4 (R. McCallum ed. 1947). It thus exemplifies the purpose behind the Bill of Rights,
and of the First Amendment in particular: to protect unpopular individuals from retaliation - and
their ideas from suppression - at the hand of an intolerant society. The right to remain anonymous
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may be abused when it shields fraudulent conduct. But political speech by its nature will sometimes
have unpalatable consequences, and, in general, our society accords greater weight to the value of
free speech than to the dangers of its misuse. See Abrams v. United States (1919) (Holmes, J.,
dissenting). Ohio has not shown that its interest in preventing the misuse of anonymous electionrelated speech justifies a prohibition of all uses of that speech. The State 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 prevented.
One would be hard pressed to think of a better example of the pitfalls of Ohio's blunderbuss
approach than the facts of the case before us.
The judgment of the Ohio Supreme Court is reversed.
It is so ordered.
JUSTICE GINSBURG, CONCURRING.
The dissent is stirring in its appreciation of democratic values. But I do not see the Court's opinion as
unguided by "bedrock principle," tradition, or our case law. Margaret McIntyre's case, it seems to me,
bears a marked resemblance to Margaret Gilleo's case [City of Ladue v. Gilleo (1994)] and Mary
Grace's [United States v. Grace (1983)]. All three decisions, I believe, are sound, and hardly
sensational, applications of our First Amendment jurisprudence.
In for a calf is not always in for a cow. The Court's decision finds unnecessary, overintrusive, and
inconsistent with American ideals the State's imposition of a fine on an individual leafleteer who,
within her local community, spoke her mind, but sometimes not her name. We do not thereby hold
that the State may not in other, larger circumstances, require the speaker to disclose its interest by
disclosing its identity. Appropriately leaving open matters not presented by McIntyre's handbills, the
Court recognizes that a State's interest in protecting an election process "might justify a more limited
identification requirement." But the Court has convincingly explained why Ohio lacks "cause for
inhibiting the leafletting at issue here."
JUSTICE THOMAS, CONCURRING IN THE JUDGMENT.
I agree with the majority's conclusion that Ohio's election law, Ohio Rev. Code Ann. 3599.09(A), is
inconsistent with the First Amendment. I would apply, however, a different methodology to this case.
Instead of asking whether "an honorable tradition" of anonymous speech has existed throughout
American history, or what the "value" of anonymous speech might be, we should determine whether
the phrase "freedom of speech, or of the press," as originally understood, protected anonymous
political leafletting. I believe that it did.
* * * [Extensive discussion of history omitted].
I cannot join the majority's analysis because it deviates from our settled approach to interpreting the
Constitution and because it superimposes its modern theories concerning expression upon the
constitutional text. Whether "great works of literature" - by Voltaire or George Eliot have been
published anonymously should be irrelevant to our analysis, because it sheds no light on what the
phrases "free speech" or "free press" meant to the people who drafted and ratified the First
Amendment. Similarly, whether certain types of expression have "value" today has little significance;
what is important is whether the Framers in 1791 believed anonymous speech sufficiently valuable
to deserve the protection of the Bill of Rights. And although the majority faithfully follows our
approach to "content-based" speech regulations, we need not undertake this analysis when the
original understanding provides the answer. * * *
JUSTICE SCALIA, WITH WHOM THE CHIEF JUSTICE JOINS, DISSENTING.
At a time when both political branches of Government and both political parties reflect a popular
desire to leave more decisionmaking authority to the States, today's decision moves in the opposite
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direction, adding to the legacy of inflexible central mandates (irrevocable even by Congress) imposed
by this Court's constitutional jurisprudence. In an opinion which reads as though it is addressing
some peculiar law like the Los Angeles municipal ordinance at issue in Talley v. California (1960), the
Court invalidates a species of protection for the election process that exists, in a variety of forms, in
every State except California, and that has a pedigree dating back to the end of the 19th century.
Preferring the views of the English utilitarian philosopher John Stuart Mill to the considered
judgment of the American people's elected representatives from coast to coast, the Court discovers a
hitherto unknown right-to-be-unknown while engaging in electoral politics. I dissent from this
imposition of free-speech imperatives that are demonstrably not those of the American people today,
and that there is inadequate reason to believe were those of the society that begat the First
Amendment or the Fourteenth.
The question posed by the present case is not the easiest sort to answer for those who adhere to the
Court's (and the society's) traditional view that the Constitution bears its original meaning and is
unchanging. * * *
But to prove that anonymous electioneering was used frequently is not to establish that it is a
constitutional right. Quite obviously, not every restriction upon expression that did not exist in 1791
or in 1868 is ipso facto unconstitutional, or else modern election laws * * * would be prohibited, as
would (to mention only a few other categories) modern antinoise regulation * * * and modern
parade-permitting regulation * * * .
Evidence that anonymous electioneering was regarded as a constitutional right is sparse, and as far
as I am aware evidence that it was generally regarded as such is nonexistent. * * *
* * * I do not know where the Court derives its perception that "anonymous pamphleteering is not a
pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent." I can imagine
no reason why an anonymous leaflet is any more honorable, as a general matter, than an anonymous
phone call or an anonymous letter. It facilitates wrong by eliminating accountability, which is
ordinarily the very purpose of the anonymity. There are of course exceptions, and where anonymity
is needed to avoid "threats, harassment, or reprisals" the First Amendment will require an exemption
from the Ohio law. But to strike down the Ohio law in its general application - and similar laws of 48
other States and the Federal Government - on the ground that all anonymous communication is in
our society traditionally sacrosanct, seems to me a distortion of the past that will lead to a coarsening
of the future.
I respectfully dissent.

Watchtower Bible & Tract Society of New York, Inc. v.
Village of Stratton
536 U.S. 150 (2002)
STEVENS, J., DELIVERED THE OPINION OF THE COURT, IN WHICH O' CONNOR, KENNEDY, SOUTER, GINSBURG, AND
BREYER, JJ., JOINED. BREYER, J., FILED A CONCURRING OPINION, IN WHICH SOUTER AND GINSBURG, JJ., JOINED. SCALIA,
J., FILED AN OPINION CONCURRING IN THE JUDGMENT, IN WHICH THOMAS, J., JOINED. REHNQUIST, C. J., FILED A
DISSENTING OPINION.
JUSTICE STEVENS DELIVERED THE OPINION OF THE COURT.
Petitioners contend that a village ordinance making it a misdemeanor to engage in door-to-door
advocacy with- out first registering with the mayor and receiving a permit violates the First
Amendment. Through this facial challenge, we consider the door-to-door canvassing regulation not

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only as it applies to religious proselytizing, but also to anonymous political speech and the
distribution of handbills.
I
Petitioner Watchtower Bible and Tract Society of New York, Inc., coordinates the preaching activities
of Jehovah's Witnesses throughout the United States and publishes Bibles and religious periodicals
that are widely distributed. Petitioner Wellsville, Ohio, Congregation of Jehovah's Witnesses, Inc.,
supervises the activities of approximately 59 members in a part of Ohio that includes the Village of
Stratton (Village). Petitioners offer religious literature without cost to anyone interested in reading it.
They allege that they do not solicit contributions or orders for the sale of merchandise or services,
but they do accept donations.
Petitioners brought this action against the Village and its mayor in the United States District Court for
the Southern District of Ohio, seeking an injunction against the enforcement of several sections of
Ordinance No. 1998-5 regulating uninvited peddling and solicitation on private property in the
Village. Petitioners' complaint alleged that the ordinance violated several constitutional rights,
including the free exercise of religion, free speech, and the freedom of the press. The District Court
conducted a bench trial at which evidence of the administration of the ordinance and its effect on
petitioners was introduced.
Section 116.01 prohibits "canvassers" and others from "going in and upon" private residential
property for the purpose of promoting any "cause" without first having obtained a permit pursuant
to §116.03.1 That section provides that any canvasser who intends to go on private property to
promote a cause, must obtain a "Solicitation Permit" from the office of the mayor; there is no charge
for the permit, and apparently one is issued routinely after an applicant fills out a fairly detailed
"Solicitor's Registration Form." The canvasser is then authorized to go upon premises that he listed
on the registration form, but he must carry the permit upon his person and exhibit it whenever
requested to do so by a police officer or by a resident. The ordinance sets forth grounds for the denial
or revocation of a permit, but the record before us does not show that any application has been
denied or that any permit has been revoked. Petitioners did not apply for a permit.
A section of the ordinance that petitioners do not challenge establishes a procedure by which a
resident may prohibit solicitation even by holders of permits. If the resident files a "No Solicitation
Registration Form" with the mayor, and also posts a "No Solicitation" sign on his property, no
uninvited canvassers may enter his property, unless they are specifically authorized to do so in the
"No Solicitation Registration Form" itself. Only 32 of the Village's 278 residents filed such forms. Each
of the forms in the record contains a list of 19 suggested exceptions; on one form, a resident checked
17 exceptions, thereby excluding only "Jehovah's Witnesses" and "Political Candidates" from the list
of invited canvassers. Although Jehovah's Witnesses do not consider themselves to be "solicitors"
because they make no charge for their literature or their teaching, leaders of the church testified at
trial that they would honor "no solicitation" signs in the Village. They also explained at trial that they
did not apply for a permit because they derive their authority to preach from Scripture. "For us to
seek a permit from a municipality to preach we feel would almost be an insult to God."
Petitioners introduced some evidence that the ordinance was the product of the mayor's hostility to
their ministry, but the District Court credited the mayor's testimony that it had been designed to
protect the privacy rights of the Village residents, specifically to protect them "from ‘flim flam’ con
artists who prey on small town populations." Nevertheless, the court concluded that the terms of the
ordinance applied to the activities of petitioners as well as to "business or political canvassers."
The District Court upheld most provisions of the ordinance as valid, content-neutral regulations that
did not infringe on petitioners' First Amendment rights. The court did, however, require the Village
to accept narrowing constructions of three provisions. First, the court viewed the requirement in
§116.03(b)(5) that the applicant must list the specific address of each residence to be visited as
potentially invalid, but cured by the Village's agreement to attach to the form a list of willing
residents. Second, it held that petitioners could comply with §116.03(b)(6) by merely stating their
purpose as "the Jehovah's Witness ministry." And third, it held that §116.05, which limited
canvassing to the hours before 5 p.m., was invalid on its face and should be replaced with a provision
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referring to "reasonable hours of the day." As so modified, the court held the ordinance
constitutionally valid as applied to petitioners and dismissed the case.
The Court of Appeals for the Sixth Circuit affirmed. It held that the ordinance was "content neutral
and of general applicability and therefore subject to intermediate scrutiny." It rejected petitioners'
reliance on the discussion of laws affecting both the free exercise of religion and free speech in
Employment Div., Dept. of Human Resources of Ore. v. Smith (1990) [Chapter 14] because that
"language was dicta and therefore not binding." It also rejected petitioners' argument that the
ordinance is overbroad because it impairs the right to distribute pamphlets anonymously that we
recognized in McIntyre v. Ohio Elections Comm'n (1995), reasoning that "the very act of going door-todoor requires the canvassers to reveal a portion of their identities." The Court of Appeals concluded
that the interests promoted by the Village--"protecting its residents from fraud and undue
annoyance"--as well as the harm that it seeks to prevent--"criminals posing as canvassers in order to
defraud its residents"--though "by no means overwhelming," were sufficient to justify the regulation.
The court distinguished earlier cases protecting the Jehovah's Witnesses ministry because those
cases either involved a flat prohibition on the dissemination of ideas or an ordinance that left the
issuance of a permit to the discretion of a municipal officer.
In dissent, Judge Gilman expressed the opinion that by subjecting noncommercial solicitation to the
permit requirements, the ordinance significantly restricted a substantial quantity of speech
unrelated to the Village's interest in eliminating fraud and unwanted annoyance. In his view, the
Village "failed to demonstrate either the reality of the harm or the efficacy of the restriction."
We granted certiorari to decide the following question: "Does a municipal ordinance that requires
one to obtain a permit prior to engaging in the door-to-door advocacy of a political cause and to
display upon demand the permit, which contains one's name, violate the First Amendment protection
accorded to anonymous pamphleteering or discourse?"
II
For over 50 years, the Court has invalidated restrictions on door-to-door canvassing and
pamphleteering. It is more than historical accident that most of these cases involved First
Amendment challenges brought by Jehovah's Witnesses, because door-to-door canvassing is
mandated by their religion. As we noted in Murdock v. Pennsylvania (1943), the Jehovah's Witnesses
"claim to follow the example of Paul, teaching `publicly, and from house to house.' Acts 20:20. They
take literally the mandate of the Scriptures, `Go ye into all the world, and preach the gospel to every
creature.' Mark 16:15. In doing so they believe that they are obeying a commandment of God."
Moreover, because they lack significant financial resources, the ability of the Witnesses to proselytize
is seriously diminished by regulations that burden their efforts to canvass door-to-door.
Although our past cases involving Jehovah's Witnesses, most of which were decided shortly before
and during World War II, do not directly control the question we confront today, they provide both a
historical and analytical backdrop for consideration of petitioners' First Amendment claim that the
breadth of the Village's ordinance offends the First Amendment. Those cases involved petty offenses
that raised constitutional questions of the most serious magnitude--questions that implicated the
free exercise of religion, the freedom of speech, and the freedom of the press. From these decisions,
several themes emerge that guide our consideration of the ordinance at issue here.
First, the cases emphasize the value of the speech involved. For example, in Murdock v. Pennsylvania,
the Court noted that "hand distribution of religious tracts is an age-old form of missionary
evangelism--as old as the history of printing presses. It has been a potent force in various religious
movements down through the years... . This form of religious activity occupies the same high estate
under the First Amendment as do worship in the churches and preaching from the pulpits. It has the
same claim to protection as the more orthodox and conventional exercises of religion. It also has the
same claim as the others to the guarantees of freedom of speech and freedom of the press."
In addition, the cases discuss extensively the historical importance of door-to-door canvassing and
pamphleteering as vehicles for the dissemination of ideas. In Schneider v. State (Town of Irvington)
(1939), the petitioner was a Jehovah's Witness who had been convicted of canvassing without a
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permit based on evidence that she had gone from house to house offering to leave books or booklets.
Writing for the Court, Justice Roberts stated that "pamphlets have proved most effective instruments
in the dissemination of opinion. And perhaps the most effective way of bringing them to the notice of
individuals is their distribution at the homes of the people. On this method of communication the
ordinance imposes censorship, abuse of which engendered the struggle in England which eventuated
in the establishment of the doctrine of the freedom of the press embodied in our Constitution. To
require a censorship through license which makes impossible the free and unhampered distribution
of pamphlets strikes at the very heart of the constitutional guarantees." (emphasis added).
Despite the emphasis on the important role that door-to-door canvassing and pamphleteering has
played in our constitutional tradition of free and open discussion, these early cases also recognized
the interests a town may have in some form of regulation, particularly when the solicitation of money
is involved. In Cantwell v. Connecticut (1940), the Court held that an ordinance requiring Jehovah's
Witnesses to obtain a license before soliciting door to door was invalid because the issuance of the
license depended on the exercise of discretion by a city official. Our opinion recognized that "a State
may protect its citizens from fraudulent solicitation by requiring a stranger in the community, before
permitting him publicly to solicit funds for any purpose, to establish his identity and his authority to
act for the cause which he purports to represent." Similarly, in Martin v. City of Struthers, the Court
recognized crime prevention as a legitimate interest served by these ordinances and noted that
"burglars frequently pose as canvassers, either in order that they may have a pretense to discover
whether a house is empty and hence ripe for burglary, or for the purpose of spying out the premises
in order that they may return later." Despite recognition of these interests as legitimate, our
precedent is clear that there must be a balance between these interests and the effect of the
regulations on First Amendment rights. We "must `be astute to examine the effect of the challenged
legislation' and must `weigh the circumstances and ... appraise the substantiality of the reasons
advanced in support of the regulation.' "
Finally, the cases demonstrate that efforts of the Jehovah's Witnesses to resist speech regulation have
not been a struggle for their rights alone. In Martin, after cataloging the many groups that rely
extensively upon this method of communication, the Court summarized that "[d]oor to door
distribution of circulars is essential to the poorly financed causes of little people."
That the Jehovah's Witnesses are not the only "little people" who face the risk of silencing by
regulations like the Village's is exemplified by our cases involving nonreligious speech. In Thomas [v.
Collins (1945)], the issue was whether a labor leader could be required to obtain a permit before
delivering a speech to prospective union members. After reviewing the Jehovah's Witnesses cases
discussed above, the Court observed:
"As a matter of principle a requirement of registration in order to make a public speech would seem
generally incompatible with an exercise of the rights of free speech and free assembly... .
.....
"If the exercise of the rights of free speech and free assembly cannot be made a crime, we do not think
this can be accomplished by the device of requiring previous registration as a condition for exercising
them and making such a condition the foundation for restraining in advance their exercise and for
imposing a penalty for violating such a restraining order. So long as no more is involved than exercise
of the rights of free speech and free assembly, it is immune to such a restriction. If one who solicits
support for the cause of labor may be required to register as a condition to the exercise of his right to
make a public speech, so may he who seeks to rally support for any social, business, religious or
political cause. We think a requirement that one must register before he undertakes to make a public
speech to enlist support for a lawful movement is quite incompatible with the requirements of the First
Amendment."

Although these World War II-era cases provide guidance for our consideration of the question
presented, they do not answer one preliminary issue that the parties adamantly dispute. That is,
what standard of review ought we use in assessing the constitutionality of this ordinance. We find it
unnecessary, however, to resolve that dispute because the breadth of speech affected by the
ordinance and the nature of the regulation make it clear that the Court of Appeals erred in upholding
it.
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III
The Village argues that three interests are served by its ordinance: the prevention of fraud, the
prevention of crime, and the protection of residents' privacy. We have no difficulty concluding, in
light of our precedent, that these are important interests that the Village may seek to safeguard
through some form of regulation of solicitation activity. We must also look, however, to the amount
of speech covered by the ordinance and whether there is an appropriate balance between the
affected speech and the governmental interests that the ordinance purports to serve.
The text of the Village's ordinance prohibits "canvassers" from going on private property for the
purpose of explaining or promoting any "cause," unless they receive a permit and the residents
visited have not opted for a "no solicitation" sign. Had this provision been construed to apply only to
commercial activities and the solicitation of funds, arguably the ordinance would have been tailored
to the Village's interest in protecting the privacy of its residents and preventing fraud. Yet, even
though the Village has explained that the ordinance was adopted to serve those interests, it has never
contended that it should be so narrowly interpreted. To the contrary, the Village's administration of
its ordinance unquestionably demonstrates that the provisions apply to a significant number of
noncommercial "canvassers" promoting a wide variety of "causes." Indeed, on the "No Solicitation
Forms" provided to the residents, the canvassers include "Camp Fire Girls," "Jehovah's Witnesses,"
"Political Candidates," "Trick or Treaters during Halloween Season," and "Persons Affiliated with
Stratton Church." The ordinance unquestionably applies, not only to religious causes, but to political
activity as well. It would seem to extend to "residents casually soliciting the votes of neighbors," or
ringing doorbells to enlist support for employing a more efficient garbage collector.
The mere fact that the ordinance covers so much speech raises constitutional concerns. It is
offensive--not only to the values protected by the First Amendment, but to the very notion of a free
society--that in the context of everyday public discourse a citizen must first inform the government of
her desire to speak to her neighbors and then obtain a permit to do so. Even if the issuance of
permits by the mayor's office is a ministerial task that is performed promptly and at no cost to the
applicant, a law requiring a permit to engage in such speech constitutes a dramatic departure from
our national heritage and constitutional tradition. Three obvious examples illustrate the pernicious
effect of such a permit requirement.
First, as our cases involving distribution of unsigned handbills demonstrate, there are a significant
number of persons who support causes anonymously. "The decision to favor anonymity may be
motivated by fear of economic or official retaliation, by concern about social ostracism, or merely by
a desire to preserve as much of one's privacy as possible." McIntyre v. Ohio Elections Comm'n. The
requirement that a canvasser must be identified in a permi
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