[Constitution of the United States of America:  Analysis, and Interpretation - 1992 Edition ]
[Amendments to the Constitution]
[First Amendment - Religion and Expression]
[From the U.S. Government Printing Office, www.gpo.gov]


[[Page 965]]

 
                             FIRST AMENDMENT

                               __________

                         RELIGION AND EXPRESSION

                               __________

 
                                CONTENTS

                                                                    Page
        Religion..................................................   969
        An Overview...............................................   969
                Scholarly Commentary..............................   970
                Court Tests Applied to Legislation Affecting 
                    Religion......................................   972
                Government Neutrality in Religious Disputes.......   974
        Establishment of Religion.................................   977
                Financial Assistance to Church-Related 
                    Institutions..................................   977
                Governmental Encouragement of Religion in Public 
                    Schools: Released Time........................   991
                Governmental Encouragement of Religion in Public 
                    Schools: Prayers and Bible Reading............   993
                Governmental Encouragement of Religion in Public 
                    Schools: Curriculum Restriction...............   996
                Access of Religious Groups to School Property.....   997
                Tax Exemptions of Religious Property..............   997
                Exemption of Religious Organizations from 
                    Generally Applicable Laws.....................   999
                Sunday Closing Laws...............................   999
                Conscientious Objection...........................  1000
                Regulation of Religious Solicitation..............  1001
                Religion in Governmental Observances..............  1002
                Miscellaneous.....................................  1004
        Free Exercise of Religion.................................  1005
                The Belief-Conduct Distinction....................  1007
                The Mormon Cases..................................  1009
                The Jehovah's Witnesses Cases.....................  1010
                Free Exercise Exemption from General Governmental 
                    Requirements..................................  1011
                Religious Test Oaths..............................  1019
                Religious Disqualification........................  1019
        Freedom of Expression--Speech and Press...................  1020
        Adoption and Common Law Background........................  1020
        Freedom of Expression: The Philosophical Basis............  1025
        Freedom of Expression: Is There a Difference Between 
            Speech and Press......................................  1026
        The Doctrine of Prior Restraint...........................  1029
                Injunctions and the Press in Fair Trial Cases.....  1031
                Obscenity and Prior Restraint.....................  1033
        Subsequent Punishment: Clear and Present Danger and Other 
            Tests.................................................  1034
                Clear and Present Danger..........................  1036
                The Adoption of Clear and Present Danger..........  1038
                Contempt of Court and Clear and Present Danger....  1040
                Clear and Present Danger Revised: Dennis..........  1042
                Balancing.........................................  1044
                The ``Absolutist'' View of the First Amendment, 
                    with a Note on ``Preferred Position''.........  1048
                Of Other Tests and Standards: Vagueness, 
                    Overbreadth, Least Restrictive Means, and 
                    Others........................................  1050

[[Page 966]]

                Is There a Present Test?..........................  1051
        Freedom of Belief.........................................  1053
                Flag Salute Cases.................................  1053
                Imposition of Consequences for Holding Certain 
                    Beliefs.......................................  1054
        Right of Association......................................  1056
                Political Association.............................  1061
                Conflict Between Organization and Members.........  1064
        Maintenance of National Security and the First Amendment..  1066
                Punishment of Advocacy............................  1067
                Compelled Registration of Communist Party.........  1069
                Punishment for Membership in an Organization Which 
                    Engages in Proscribed Advocacy................  1070
                Disabilities Attaching to Membership in Proscribed 
                    Organizations.................................  1071
                Employment Restrictions and Loyalty Oaths.........  1073
                Legislative Investigations and the First Amendment  1078
                Interference With War Effort......................  1079
                Suppression of Communist Propaganda in the Mails..  1080
                Exclusion of Certain Aliens as a First Amendment 
                    Problem.......................................  1080
        Particular Government Regulations Which Restrict 
            Expression............................................  1081
                Government as Employer: Political Activities......  1081
                Government as Employer: Free Expression Generally.  1084
                Government as Educator............................  1090
                Government as Regulator of the Electoral Process: 
                    Elections.....................................  1094
                Government as Regulator of the Electoral Process: 
                    Lobbying......................................  1101
                Government as Regulator of Labor Relations........  1102
                Government as Investigator: Journalist's Privilege  1102
                Government and the Conduct of Trials..............  1105
                Government as Administrator of Prisons............  1108
                Government and Power of the Purse.................  1112
        Governmental Regulation of Communications Industries......  1113
                Commercial Speech.................................  1113
                Taxation..........................................  1119
                Labor Relations...................................  1121
                Antitrust Laws....................................  1122
                Radio and Television..............................  1123
                Governmentally Compelled Right of Reply to 
                    Newspapers....................................  1127
        Government Restraint of Content of Expression.............  1127
                Seditious Speech and Seditious Libel..............  1131
                Fighting Words and Other Threats to the Peace.....  1133
                Group Libel, Hate Speech..........................  1135
                Defamation........................................  1136
                Invasion of Privacy...............................  1145
                Emotional Distress Tort Actions...................  1147
                ``Right of Publicity'' Tort Actions...............  1147
                Publication of Legally Confidential Information...  1148
                Obscenity.........................................  1149
                Child Pornography.................................  1159
                Nonobscene But Sexually Explicit and Indecent 
                    Expression....................................  1160
        Speech Plus--The Constitutional Law of Leafleting, 
            Picketing, and Demonstrating..........................  1164
                The Public Forum..................................  1164
                Quasi-Public Places...............................  1171

[[Page 967]]

                Picketing and Boycotts by Labor Unions............  1173
                Public Issue Picketing and Parading...............  1174
                Leafleting, Handbilling, and the Like.............  1180
                Sound Trucks, Noise...............................  1181
                Door-to-Door Solicitation.........................  1182
                The Problem of ``Symbolic Speech''................  1183
        Rights of Assembly and Petition...........................  1187
        Background and Development................................  1187
                The Cruikshank Case...............................  1189
                The Hague Case....................................  1190




[[Page 969]]


                             FIRST AMENDMENT
 
                         RELIGION AND EXPRESSION

                               __________


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

      An Overview

        Madison's original proposal for a bill of rights provision 
concerning religion read: ``The civil rights of none shall be abridged 
on account of religious belief or worship, nor shall any national 
religion be established, nor shall the full and equal rights of 
conscience be in any manner, or on any pretence, infringed.''\1\ The 
language was altered in the House to read: ``Congress shall make no law 
establishing religion, or to prevent the free exercise thereof, or to 
infringe the rights of conscience.''\2\ In the Senate, the section 
adopted read: ``Congress shall make no law establishing articles of 
faith, or a mode of worship, or prohibiting the free exercise of 
religion, . . .''\3\ It was in the conference committee of the two 
bodies, chaired by Madison, that the present language was written with 
its some

[[Page 970]]
what more indefinite ``respecting'' phraseology.\4\ Debate in Congress 
lends little assistance in interpreting the religion clauses; Madison's 
position, as well as that of Jefferson who influenced him, is fairly 
clear,\5\ but the intent, insofar as there was one, of the others in 
Congress who voted for the language and those in the States who voted to 
ratify is subject to speculation.

        \1\1 Annals of Congress 434 (June 8, 1789).
        \2\The committee appointed to consider Madison's proposals, and 
on which Madison served, with Vining as chairman, had rewritten the 
religion section to read: ``No religion shall be established by law, nor 
shall the equal rights of conscience be infringed.'' After some debate 
during which Madison suggested that the word ``national'' might be 
inserted before the word ``religion'' as ``point[ing] the amendment 
directly to the object it was intended to prevent,'' the House adopted a 
substitute reading: ``Congress shall make no laws touching religion, or 
infringing the rights of conscience.'' 1 Annals of Congress 729-31 
(August 15, 1789). On August 20, on motion of Fisher Ames, the language 
of the clause as quoted in the text was adopted. Id. at 766. According 
to Madison's biographer, ``[t]here can be little doubt that this was 
written by Madison.'' I. Brant, James Madison--Father of the 
Constitution 1787-1800 at 271 (1950).
        \3\This text, taken from the Senate Journal of September 9, 
1789, appears in 2 B. Schwartz (ed.), The Bill of Rights: A Documentary 
History 1153 (1971). It was at this point that the religion clauses were 
joined with the freedom of expression clauses.
        \4\1 Annals of Congress 913 (September 24, 1789). The Senate 
concurred the same day. See I. Brant, James Madison--Father of the 
Constitution 1787-1800, 271-72 (1950).
        \5\During House debate, Madison told his fellow Members that 
``he apprehended the meaning of the words to be, that Congress should 
not establish a religion, and enforce the legal observation of it by 
law, nor compel men to worship God in any Manner contrary to their 
conscience.'' 1 Annals of Congress 730 (August 15, 1789). That his 
conception of ``establishment'' was quite broad is revealed in his veto 
as President in 1811 of a bill which in granting land reserved a parcel 
for a Baptist Church in Salem, Mississippi; the action, explained 
President Madison, ``comprises a principle and precedent for the 
appropriation of funds of the United States for the use and support of 
religious societies, contrary to the article of the Constitution which 
declares that `Congress shall make no law respecting a religious 
establishment.''' 8 The Writings of James Madison (G. Hunt. ed.) 132-33 
(1904). Madison's views were no doubt influenced by the fight in the 
Virginia legislature in 1784-1785 in which he successfully led the 
opposition to a tax to support teachers of religion in Virginia and in 
the course of which he drafted his ``Memorial and Remonstrance against 
Religious Assessments'' setting forth his thoughts. Id. at 183-91; I. 
Brant, James Madison--The Nationalist 1780-1787, 343-55 (1948). Acting 
on the momentum of this effort, Madison secured passage of Jefferson's 
``Bill for Religious Liberty''. Id. at 354; D. Malone, Jefferson the 
Virginian 274-280 (1948). The theme of the writings of both was that it 
was wrong to offer public support of any religion in particular or of 
religion in general.
---------------------------------------------------------------------------

        Scholarly Commentary.--The explication of the religion clauses 
by the scholars has followed a restrained sense of their meaning. Story, 
who thought that ``the right of a society or government to interfere in 
matters of religion will hardly be contested by any persons, who believe 
that piety, religion, and morality are intimately connected with the 
well being of the state, and indispensable to the administration of 
civil justice,''\6\ looked upon the prohibition simply as an exclusion 
from the Federal Government of all power to act upon the subject. ``The 
situation . . . of the different states equally proclaimed the policy, 
as well as the necessity of such an exclusion. In some of the states, 
episcopalians constituted the predominant sect; in others presbyterians; 
in others, congregationalists; in others, quakers; and in others again, 
there was a close numerical rivalry among contending sects. It was 
impossible, that there should not arise perpetual strife and perpetual 
jealousy on the subject of ecclesiastical ascendancy, if the national 
government were left free to create a religious establishment. The only 
security was in extirpating the power. But this alone would have been an 
imperfect security, if it had not been followed up by a declaration

[[Page 971]]
of the right of the free exercise of religion, and a prohibition (as we 
have seen) of all religious tests. Thus, the whole power over the 
subject of religion is left exclusively to the state governments, to be 
acted upon according to their own sense of justice, and the state 
constitutions; and the Catholic and the Protestant, the Calvinist and 
the Arminian, the Jew and the Infidel, may sit down at the common table 
of the national councils, without any inquisition into their faith, or 
mode of worship.''\7\

        \6\3 J. Story, Commentaries on the Constitution of the United 
States 1865 (1833).
        \7\Id. at 1873.
---------------------------------------------------------------------------

        ``Probably,'' Story also wrote, ``at the time of the adoption of 
the constitution and of the amendment to it, now under consideration, 
the general, if not the universal, sentiment in America was, that 
Christianity ought to receive encouragement from the state, so far as 
was not incompatible with the private rights of conscience, and the 
freedom of religious worship. An attempt to level all religions, and to 
make it a matter of state policy to hold all in utter indifference, 
would have created universal disapprobation, if not universal 
indignation.''\8\ The object, then, of the religion clauses in this view 
was not to prevent general governmental encouragement of religion, of 
Christianity, but to prevent religious persecution and to prevent a 
national establishment.\9\

        \8\Id. at 1868.
        \9\For a late expounding of this view, see T. Cooley, General 
Principles of Constitutional Law in the United States 224-25 (3d ed. 
1898).
---------------------------------------------------------------------------

        This interpretation has long since been abandoned by the Court, 
beginning, at least, with Everson v. Board of Education,\10\ in which 
the Court, without dissent on this point, declared that the 
Establishment Clause forbids not only practices that ``aid one 
religion'' or ``prefer one religion over another,'' but as well those 
that ``aid all religions.'' Recently, in reliance on published scholarly 
research and original sources, Court dissenters have recurred to the 
argument that what the religion clauses, principally the Establishment 
Clause, prevent is ``preferential'' governmental promotion of some 
religions, allowing general governmental promotion of all religion in 
general.\11\ The Court has not responded, though Justice Souter in a 
major concurring opinion did undertake to rebut the argument and to 
restate the Everson position.\12\

        \10\330 U.S. 1, 15 (1947). Establishment Clause jurisprudence 
since, whatever its twists and turns, maintains this view.
        \11\Wallace v. Jaffree, 472 U.S. 38, 91 (1985) (then-Justice 
Rehnquist dissenting). More recently, dissenters, including now-Chief 
Justice Rehnquist, have appeared reconciled to a ``constitutional 
tradition'' in which governmental endorsement of religion is out of 
bounds, even if it is not correct as a matter of history. See Lee v. 
Weisman, 112 S. Ct. 2649, 2678, 2683-84 (1992) (Justice Scalia, joined 
by the Chief Justice and Justices White and Thomas, dissenting).
        \12\Lee v. Weisman, 112 S. Ct. 2649, 2667 (1992) (Justice 
Souter, joined by Justices Stevens and O'Connor, concurring).

---------------------------------------------------------------------------

[[Page 972]]

        Court Tests Applied to Legislation Affecting Religion.--Before 
considering the development of the two religion clauses by the Supreme 
Court, one should notice briefly the tests developed by which religion 
cases are adjudicated by the Court. While later cases rely on a series 
of rather well-defined, if difficult-to-apply, tests, the language of 
earlier cases ``may have [contained] too sweeping utterances on aspects 
of these clauses that seemed clear in relation to the particular cases 
but have limited meaning as general principles.''\13\ It is well to 
recall that ``the purpose [of the religion clauses] was to state an 
objective, not to write a statute.''\14\

        \13\Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970).
        \14\Id.
---------------------------------------------------------------------------

        In 1802, President Jefferson wrote a letter to a group of 
Baptists in Danbury, Connecticut, in which he declared that it was the 
purpose of the First Amendment to build ``a wall of separation between 
Church and State.''\15\ In Reynolds v. United States,\16\ Chief Justice 
Waite for the Court characterized the phrase as ``almost an 
authoritative declaration of the scope and effect of the amendment.'' In 
its first encounters with religion-based challenges to state programs, 
the Court looked to Jefferson's metaphor for substantial guidance.\17\ 
But a metaphor may obscure as well as illuminate, and the Court soon 
began to emphasize neutrality and voluntarism as the standard of 
restraint on governmental action.\18\

[[Page 973]]
The concept of neutrality itself is ``a coat of many colors,''\19\ and 
three standards that could be stated in objective fashion emerged as 
tests of Establishment Clause validity. The first two standards were 
part of the same formulation. ``The test may be stated as follows: what 
are the purpose and the primary effect of the enactment? If either is 
the advancement or inhibition of religion then the enactment exceeds the 
scope of legislative power as circumscribed by the Constitution. That is 
to say that to withstand the strictures of the Establishment Clause 
there must be a secular legislative purpose and a primary effect that 
neither advances nor inhibits religion.''\20\ The third test is whether 
the governmental program results in ``an excessive government 
entanglement with religion. The test is inescapably one of degree . . . 
[T]he questions are whether the involvement is excessive, and whether it 
is a continuing one calling for official and continuing surveillance 
leading to an impermissible degree of entanglement.''\21\ In 1971 these 
three tests were combined and restated in Chief Justice Burger's opinion 
for the Court in Lemon v. Kurtzman,\22\ and are frequently referred to 
by reference to that case name.

        \15\16 The Writings of Thomas Jefferson 281 (A. Libscomb ed., 
1904).
        \16\98 U.S. 145, 164 (1879).
        \17\Everson v. Board of Education, 330 U.S. 1, 16 (1947); 
Illinois ex rel. McCollum v. Board of Education, 333 U.S. 203, 211, 212 
(1948); cf. Zorach v. Clauson, 343 U.S. 306, 317 (1952) (Justice Black 
dissenting). In Lemon v. Kurtzman, 403 U.S. 602, 614 (1971), Chief 
Justice Burger remarked that ``the line of separation, far from being a 
`wall,' is a blurred, indistinct and variable barrier depending on all 
the circumstances of a particular relationship.'' Similar observations 
were repeated by the Chief Justice in his opinion for the Court in Lynch 
v. Donnelly, 465 U.S. 668, 673 (1984) (the metaphor is not ``wholly 
accurate''; the Constitution does not ``require complete separation of 
church and state [but] affirmatively mandates accommodation, not merely 
tolerance, of all religions, and forbids hostility toward any'').
        \18\Zorach v. Clauson, 343 U.S. 306, 314 (1952); Engel v. 
Vitale, 370 U.S. 421 (1962); Sherbert v. Verner, 374 U.S. 398 (1963); 
Abington School District v. Schempp, 374 U.S. 203, 305 (1963) (Justice 
Goldberg concurring); Walz v. Tax Comm'n, 397 U.S. 664, 694-97 (1970) 
(Justice Harlan concurring). In the opinion of the Court in the latter 
case, Chief Justice Burger wrote: ``The course of constitutional 
neutrality in this area cannot be an absolutely straight line; rigidity 
could well defeat the basic purpose of these provisions, which is to 
insure that no religion be sponsored or favored, none commanded, and 
none inhibited. The general principle deducible from the First Amendment 
and all that has been said by the Court is this: that we will not 
tolerate either governmentally established religion or governmental 
interference with religion. Short of those expressly proscribed 
governmental acts there is room for play in the joints productive of a 
benevolent neutrality which will permit religious exercise to exist 
without sponsorship and without interference.'' Id. at 669.
        \19\Board of Education v. Allen, 392 U.S. 236, 249 (1968) 
(Justice Harlan concurring).
        \20\Abington School District v. Schempp, 374 U.S. 203, 222 
(1963).
        \21\Walz v. Tax Comm'n, 397 U.S. 664, 674-75 (1970).
        \22\403 U.S. 602, 612-13 (1971).
---------------------------------------------------------------------------

        Although at one time accepted in principle by all of the 
Justices,\23\ the tests have sometimes been difficult to apply,\24\ have 
recently come under direct attack by some Justices,\25\ and in two in

[[Page 974]]
stances have not been applied at all by the Court.\26\ While continued 
application is uncertain, the Lemon tests nonetheless have served for 
twenty years as the standard measure of Establishment Clause validity 
and explain most of the Court's decisions in the area.\27\ As of the end 
of the Court's 1991-92 Term, there was not yet a consensus among Lemon 
critics as to what substitute test should be favored.\28\ Reliance on 
``coercion'' for that purpose would eliminate a principal distinction 
between establishment cases and free exercise cases and render the 
Establishment Clause largely duplicative of the Free Exercise 
Clause.\29\

        \23\E.g., Committee for Public Educ. & Religious Liberty v. 
Regan, 444 U.S. 646, 653 (1980), and id. at 665 (dissenting opinion); 
Stone v. Graham, 449 U.S. 39, 40 (1980), and id. at 43 (dissenting 
opinion).
        \24\The tests provide ``helpful signposts,'' Hunt v. McNair, 413 
U.S. 734, 741 (1973), and are at best ``guidelines'' rather than a 
``constitutional caliper;'' they must be used to consider ``the 
cumulative criteria developed over many years and applying to a wide 
range of governmental action.'' Inevitably, ``no `bright line' guidance 
is afforded.'' Tilton v. Richardson, 403 U.S. 672, 677-78 (1971). See 
also Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 
756, 761 & n.5, 773 n.31 (1973); Committee for Public Educ. & Religious 
Liberty v. Regan, 444 U.S. 646, 662 (1980), and id. at 663 (Justice 
Blackmun dissenting).
        \25\See, e.g., Edwards v. Aguillard, 482 U.S. 578, 636-40 (1987) 
(Justice Scalia, joined by Chief Justice Rehnquist, dissenting) 
(advocating abandonment of the ``purpose'' test); Wallace v. Jaffree, 
472 U.S. 38, 108-12 (1985) (Justice Rehnquist dissenting); Aguilar v. 
Felton, 473 U.S. 402, 426-30 (1985) (Justice O'Connor, dissenting) 
(addressing difficulties in applying the entanglement prong); Roemer v. 
Maryland Bd. of Public Works, 426 U.S. 736, 768-69 (Justice White 
concurring in judgment) (objecting to entanglement test). Justice 
Kennedy has also acknowledged criticisms of the Lemon tests, while at 
the samed time finding no need to reexamine them. See, e.g., Allegheny 
County v. Greater Pittsburgh ACLU, 492 U.S. 573, 655-56 (1989). At least 
with respect to public aid to religious schools, Justice Stevens would 
abandon the tests and simply adopt a ``no-aid'' position. Committee for 
Public Educ. & Religious Liberty v. Regan, 444 U.S. 646, 671 (1980).
        \26\See Marsh v. Chambers, 463 U.S. 783 (1983) (upholding 
legislative prayers on the basis of historical practice); Lee v. 
Weisman, 112 S. Ct. 2649, 2655 (1992) (rejecting a request to reconsider 
Lemon because the practice of invocations at public high school 
graduations was invalid under established school prayer precedents). The 
Court has also held that the tripartite test is not applicable when law 
grants a denominational preference, distinguishing between religions; 
rather, the distinction is to be subjected to the strict scrutiny of a 
suspect classification. Larson v. Valente, 456 U.S. 228, 244-46 (1982).
        \27\Justice Blackmun, concurring in Lee, contended that Marsh 
was the only one of 31 Establishment cases between 1971 and 1992 not to 
be decided on the basis on the Lemon tests. 112 S. Ct. at 2663, n.4.
        \28\In 1990 Justice Kennedy, joined by Justice Scalia, proposed 
that ``neutral'' accommodations of religion should be permissible so 
long as they do not establish a state religion, and so long as there is 
no ``coercion'' to participate in religious exercises. Westside 
Community Bd. of Educ. v. Mergens, 496 U.S. 226, 260-61. The two 
Justices parted company, however, over the permissiblity of invocations 
at public high school graduation ceremonies, Justice Scalia in dissent 
strongly criticizing Justice Kennedy's approach in the opinion of the 
Court for its reliance on psychological coercion. Justice Scalia would 
not ``expand[ ] the concept of coercion beyond acts backed by threat of 
penalty.'' Lee v. Weisman, 112 S. Ct. 2649, 2684 (1992). Chief Justice 
Rehnquist has advocated limiting application to a prohibition on 
establishing a national (or state) church or favoring one religious 
group over another. Wallace v. Jaffree, 472 U.S. 38, 98, 106 (1985) 
(dissenting).
        \29\Abington School District v. Schempp, 374 U.S. 203, 222-23 
(1963). See also Board of Education v. Allen, 392 U.S. 236, 248-49 
(1968); and Tilton v. Richardson, 403 U.S. 672, 689 (1971); Lee v. 
Weisman, 112 S. Ct. 2649, 2673 (Justice Souter concurring) (``a literal 
application of the coercion test would render the Establishment Clause a 
virtual nullity'').
---------------------------------------------------------------------------

        Government Neutrality in Religious Disputes.--One value that 
both clauses of the religion section serve is to enforce governmental 
neutrality in deciding controversies arising out of religious disputes. 
Schism sometimes develops within churches or between a local church and 
the general church, resulting in secession or expulsion of one faction 
or of the local church. A dispute over which body is to have control of 
the property of the church will then often be taken into the courts. It 
is now established that both religion clauses prevent governmental 
inquiry into religious doctrine in settling such disputes, and instead 
require courts simply to look to the decision-making body or process in 
the church and to give effect to whatever decision is officially and 
properly made.

[[Page 975]]


        The first such case was Watson v. Jones,\30\ which was decided 
on common-law grounds in a diversity action without explicit reliance on 
the First Amendment. A constitutionalization of the rule was made in 
Kedroff v. St. Nicholas Cathedral,\31\ in which the Court held 
unconstitutional a state statute that recognized the autonomy and 
authority of those North American branches of the Russian Orthodox 
Church which had declared their independence from the general church. 
Recognizing that Watson v. Jones had been decided on nonconstitutional 
grounds, the Court thought nonetheless that the opinion ``radiates . . . 
a spirit of freedom for religious organizations, and independence from 
secular control or manipulation--in short, power to decide for 
themselves, free from state interference, matters of church government 
as well as those of faith and doctrine.''\32\ The power of civil courts 
to resolve church property disputes was severely circumscribed, the 
Court held, because to permit resolution of doctrinal disputes in court 
was to jeopardize First Amendment values. What a court must do, it was 
held, is to look at the church rules: if the church is a hierarchical 
one which reposes determination of ecclesiastical issues in a certain 
body, the resolution by that body is determinative, while if the church 
is a congregational one prescribing action by a majority vote, that 
determination will prevail.\33\ On the other hand, a court confronted 
with a church property dispute could apply ``neutral principles of law, 
developed for use in all property disputes,'' when to do so would not 
require resolution of doctrinal issues.\34\ In a later case the Court 
elaborated on the limits of proper inquiry, holding that an argument 
over a matter of internal church government, the power to reorganize the 
dioceses of a hierarchical church in this country, was ``at the core of 
ecclesiastical affairs'' and a court could not interpret the church 
constitution to make an inde

[[Page 976]]
pendent determination of the power but must defer to the interpretation 
of the body authorized to decide.\35\

        \30\80 U.S. (13 Wall.) 679 (1872).
        \31\344 U.S. 94 (1952). Kedroff was grounded on the Free 
Exercise Clause. Id. at 116. But the subsequent cases used a collective 
``First Amendment'' designation.
        \32\Id. at 116. On remand, the state court adopted the same 
ruling on the merits but relied on a common-law rule rather than the 
statute. This too was struck down. Kreshik v. St. Nicholas Cathedral, 
363 U.S. 190 (1960).
        \33\Presbyterian Church v. Hull Memorial Presbyterian Church, 
393 U.S. 440, 447, 450-51 (1969); Maryland and Virginia Eldership of the 
Churches of God v. Church of God at Sharpsburg, 396 U.S. 367 (1970). For 
a similar rule of neutrality in another context, see United States v. 
Ballard, 322 U.S. 78 (1944) (denying defendant charged with mail fraud 
through dissemination of purported religious literature the right to 
present to the jury evidence of the truthfulness of the religious views 
he urged).
        \34\Presbyterian Church v. Hull Memorial Presbyterian Church, 
393 U.S. 440, 449 (1969); Maryland and Virginia Eldership of the 
Churches of God v. Church of God of Sharpsburg, 396 U.S. 367, 368 
(1970). See also id. at 368-70 (Justice Brennan concurring).
        \35\The Serbian Eastern Orthodox Diocese v. Dionisije 
Milivojevich, 426 U.S. 697, 720-25 (1976). In Gonzalez v. Archbishop, 
280 U.S. 1 (1929), the Court had permitted limited inquiry into the 
legality of the actions taken under church rules. The Serbian Eastern 
Court disapproved of this inquiry with respect to concepts of 
``arbitrariness,'' although it reserved decision on the ``fraud'' and 
``collusion'' exceptions. 426 U.S. at 708-20.
---------------------------------------------------------------------------

        In Jones v. Wolf,\36\ however, a divided Court, while formally 
adhering to these principles, appeared to depart in substance from their 
application. A schism had developed in a local church which was a member 
of a hierarchical church, and the majority voted to withdraw from the 
general church. The proper authority of the general church determined 
that the minority constituted the ``true congregation'' of the local 
church and awarded them authority over it. The Court approved the 
approach of the state court in applying neutral principles by examining 
the deeds to the church property, state statutes, and provisions of the 
general church's constitution concerning ownership and control of church 
property in order to determine that no language of trust in favor of the 
general church was contained in any of them and that the property thus 
belonged to the local congregation.\37\ Further, the Court held, the 
First Amendment did not prevent the state court from applying a 
presumption of majority rule to award control to the majority of the 
local congregation, provided that it permitted defeasance of the 
presumption upon a showing that the identity of the local church is to 
be determined by some other means as expressed perhaps in the general 
church charter.\38\ The dissent argued that to permit a court narrowly 
to view only the church documents relating to property ownership 
permitted the ignoring of the fact that the dispute was over 
ecclesiastical matters and that the general church had decided which 
faction of the congregation was the local church.\39\

        \36\443 U.S. 595 (1979). In the majority were Justices Blackmun, 
Brennan, Marshall, Rehnquist, and Stevens. Dissenting were Justices 
Powell, Stewart, White, and Chief Justice Burger.
        \37\Id. at 602-06.
        \38\Id. at 606-10. Because it was unclear whether the state 
court had applied such a rule and applied it properly, the Court 
remanded.
        \39\Id. at 610.
---------------------------------------------------------------------------

        Thus, it is unclear where the Court is on this issue. Jones v. 
Wolf restated the rule that it is improper to review an ecclesiastical 
dispute and that deference is required in those cases, but by approving 
a neutral principles inquiry which in effect can filter out the 
doctrinal issues underlying a church dispute, the Court seems

[[Page 977]]
to have approved at least an indirect limitation of the authority of 
hierarchical churches.\40\

        \40\The Court indicated that the general church could always 
expressly provide in its charter or in deeds to property the proper 
disposition of disputed property. But here the general church had 
decided which faction was the ``true congregation,'' and this would 
appear to constitute as definitive a ruling as the Court's suggested 
alternatives. Id. at 606.
---------------------------------------------------------------------------
      Establishment of Religion

        ``[F]or the men who wrote the Religion Clauses of the First 
Amendment the `establishment' of a religion connoted sponsorship, 
financial support, and active involvement of the sovereign in religious 
activity.''\41\ However, the Court's reading of the clause has never 
resulted in the barring of all assistance which aids, however 
incidentally, a religious institution. Outside this area, the decisions 
generally have more rigorously prohibited what may be deemed 
governmental promotion of religious doctrine.

        \41\Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970). ``Two great 
drives are constantly in motion to abridge, in the name of education, 
the complete division of religion and civil authority which our 
forefathers made. One is to introduce religious education and 
observances into the public schools. The other, to obtain public funds 
for the aid and support of various private religious schools. . . . In 
my opinion both avenues were closed by the Constitution.'' Everson v. 
Board of Education, 330 U.S. 1, 63 (1947) (Justice Rutledge dissenting).
---------------------------------------------------------------------------

        Financial Assistance to Church-Related Institutions.--The 
Court's first opportunity to rule on the validity of governmental 
financial assistance to a religiously affiliated institution occurred in 
1899, the assistance being a federal grant for the construction of a 
hospital owned and operated by a Roman Catholic order. The Court viewed 
the hospital as a secular institution so chartered by Congress and not 
as a religious or sectarian body, thus avoiding the constitutional 
issue.\42\ But when the right of local authorities to provide free 
transportation for children attending parochial schools reached the 
Court, it adopted very restrictive language. ``The `establishment of 
religion' clause of the First Amendment means at least this: Neither a 
state nor the Federal Government can set up a church. Neither can pass 
laws which aid one religion, aid all religions, or prefer one religion 
over another. Neither can force nor influence a person to go to or to 
remain away from church against his will or force him to profess a 
belief or disbelief in any religion. No person can be punished for 
entertaining

[[Page 978]]
or professing religious beliefs or disbeliefs, for church attendance or 
non-attendance. No tax in any amount, large or small, can be levied to 
support any religious activities or institutions, whatever they may be 
called, or whatever form they may adopt to teach or practice religion. 
Neither a state nor the Federal Government can, openly or secretly, 
participate in the affairs of any religious organizations or groups and 
vice versa. In the words of Jefferson, the clause against establishment 
of religion by law was intended to erect `a wall of separation between 
church and State.'''\43\ But the majority sustained the provision of 
transportation. While recognizing that ``it approaches the verge'' of 
the State's constitutional power, still, Justice Black thought, the 
transportation was a form of ``public welfare legislation'' which was 
being extended ``to all its citizens without regard to their religious 
belief.''\44\ ``It is undoubtedly true that children are helped to get 
to church schools. There is even a possibility that some of the children 
might not be sent to the church schools if the parents were compelled to 
pay their children's bus fares out of their own pockets when 
transportation to a public school would have been paid for by the 
State.''\45\ Transportation benefited the child, just as did police 
protection at crossings, fire protection, connections for sewage 
disposal, public highways and sidewalks. Thus was born the ``child 
benefit'' theory.\46\

        \42\Bradfield v. Roberts, 175 U.S. 291 (1899). Cf. Abington 
School District v. Schempp, 374 U.S. 203, 246 (1963) (Justice Brennan 
concurring). In Cochran v. Board of Education, 281 U.S. 370 (1930), a 
state program furnishing textbooks to parochial schools was sustained 
under a due process attack without reference to the First Amendment. See 
also Quick Bear v. Leupp, 210 U.S. 50 (1908) (statutory limitation on 
expenditures of public funds for sectarian education does not apply to 
treaty and trust funds administered by the Government for Indians).
        \43\Everson v. Board of Education, 330 U.S. 1, 15-16 (1947).
        \44\Id. at 16.
        \45\Id. at 17. It was in Everson that the Court, without much 
discussion of the matter, held that the Establishment Clause applied to 
the States through the Fourteenth Amendment and limited both national 
and state governments equally. Id. at 8, 13, 14-16. The issue is 
discussed at some length by Justice Brennan in Abington School Dist. v. 
Schempp, 374 U.S. 203, 253-58 (1963).
        \46\And see Zorach v. Clauson, 343 U.S. 306, 312-13 (1952) 
(upholding program allowing public schools to excuse students to attend 
religious instruction or exercises).
---------------------------------------------------------------------------

        The Court in 1968 relied on the ``child benefit'' theory to 
sustain state loans of textbooks to parochial school students.\47\ 
Utilizing the secular purpose and effect tests,\48\ the Court determined 
that the purpose of the loans was the ``furtherance of the educational 
opportunities available to the young,'' while the effect was hardly less 
secular. ``The law merely makes available to all children the benefits 
of a general program to lend school books free of charge. Books are 
furnished at the request of the pupil and ownership remains, at least 
technically, in the State. Thus no funds or books are furnished to 
parochial schools, and the financial benefit is to parents and children, 
not to schools. Perhaps free books make it more likely that some 
children choose to attend a sectarian

[[Page 979]]
school, but that was true of the state-paid bus fares in Everson and 
does not alone demonstrate an unconstitutional degree of support for a 
religious institution.''\49\

        \47\Board of Education v. Allen, 392 U.S. 236 (1968).
        \48\Supra, p.973.
        \49\392 U.S. at 243-44 (1968).
---------------------------------------------------------------------------

        From these beginnings, the case law on the discretion of state 
and federal governmental assistance to sectarian elementary and 
secondary schools has multiplied. Through the 1970s, at least, the law 
became as restrictive in fact as the dicta in the early cases suggested, 
save for the provision of some assistance to children under the ``child 
benefit'' theory. Recent decisions evince a somewhat more accommodating 
approach permitting public assistance if the religious missions of the 
recipient schools may be only marginally served, or if the directness of 
aid to the schools is attenuated by independent decisions of parents who 
receive the aid initially. Throughout, the Court has allowed greater 
discretion when colleges affiliated with religious institutions are 
aided. Moreover, the opinions reveal a deep division among the Justices 
over the application of the Lemon tripartite test to these 
controversies.

        A secular purpose is the first requirement to sustain the 
validity of legislation touching upon religion, and upon this standard 
the Justices display little disagreement. There are adequate legitimate, 
non-sectarian bases for legislation to assist nonpublic, religious 
schools: preservation of a healthy and safe educational environment for 
all school children, promotion of pluralism and diversity among public 
and nonpublic schools, and prevention of overburdening of the public 
school system that would accompany the financial failure of private 
schools.\50\

        \50\Committee for Public Educ. & Religious Liberty v. Nyquist, 
413 U.S. 756, 773 (1973). See also id. at 805 (Chief Justice Burger 
dissenting), 812-13 (Justice Rehnquist dissenting), 813 (Justice White 
dissenting). And see Wolman v. Walter, 433 U.S. 229, 240 (1977) 
(plurality opinion); Committee for Public Educ. & Religious Liberty v. 
Regan, 444 U.S. 646, 653-654 (1980), and id. at 665 (Justice Blackmun 
dissenting).
---------------------------------------------------------------------------

        Varied views have been expressed by the Justices, however, upon 
the tests of secular primary effect and church-state entanglement. As to 
the former test, the Court has formulated no hard-and-fast standard 
permitting easy judgment in all cases.\51\ In providing

[[Page 980]]
assistance, government must avoid aiding the religious mission of such 
schools directly or indirectly. Thus, for example, funds may not be 
given to a sectarian institution without restrictions that would prevent 
their use for such purposes as defraying the costs of building or 
maintaining chapels or classrooms in which religion is taught.\52\ Loan 
of substantial amounts of purely secular educational materials to 
sectarian schools can also result in impermissible advancement of 
sectarian activity where secular and sectarian education are 
inextricably intertwined.\53\ Even the provision of secular services in 
religious schools raises the possibility that religious instruction 
might be introduced into the class and is sufficient to condemn a 
program.\54\ The extent to which the religious mission of the entity is 
inextricably intertwined with the secular mission and the size of the 
assistance furnished are factors for the reviewing court to 
consider.\55\ But the fact that public aid to further secular purposes 
of the school will necessarily ``free up'' some of the institution's 
funds which it may apply to its religious mission is not alone 
sufficient to condemn the program.\56\ Rather, it must always be 
determined whether the religious effects are substantial or whether they 
are remote and incidental.\57\ Upon that determination and

[[Page 981]]
upon the guarantees built into any program to assure that public aid is 
used exclusively for secular, neutral, and nonideological purposes rests 
the validity of public assistance.

        \51\Justice White has argued that the primary effect test 
requires the Court to make an ``ultimate judgment'' whether the primary 
effect of a program advances religion. If the primary effect is secular, 
i.e., keeping the parochial school system alive and providing adequate 
secular education to substantial numbers of students, then the 
incidental benefit to religion was only secondary and permissible. 
Committee for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 
822-24 (1973) (dissenting). The Court rejected this view: ``[o]ur cases 
simply do not support the notion that a law found to have a `primary' 
effect to promote some legitimate end under the State's police power is 
immune from further examination to ascertain whether it also has the 
direct and immediate effect of advancing religion.'' Id. at 873 n.39.
        \52\Committee for Public Educ. & Religious Liberty v. Nyquist, 
413 U.S. 756, 774-80 (1973).
        \53\Meek v. Pittenger, 421 U.S. 349, 362-66 (1975). See also 
Wolman v. Walter, 433 U.S. 229, 248-51 (1977) (loan of same 
instructional material and equipment to pupils or their parents).
        \54\Compare Meek v. Pittenger, 421 U.S. 349, 367-72 (1975), with 
Wolman v. Walter, 433 U.S. 229, 238-48 (1977) and Committee for Public 
Educ. & Religious Liberty v. Regan, 444 U.S. 646, 654-57 (1980).
        \55\Lemon v. Kurtzman, 403 U.S. 602, 616-19 (1971). The 
existence of what the Court perceived to be massive aid and of religion-
pervasive recipients constituted a major backdrop in Committee for 
Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973), and 
Meek v. Pittenger, 421 U.S. 349 (1973). When the aid is more selective 
and its permissible use is cabined sufficiently, the character of the 
institution assumes less importance. Committee for Public Educ. & 
Religious Liberty v. Regan, 444 U.S. 646, 661-62 (1980). When the entity 
is an institution of higher education, the Court appears less concerned 
with its religious character but it still evaluates the degree to which 
it is pervasively sectarian. Hunt v. McNair, 413 U.S. 734 (1973); Roemer 
v. Maryland Public Works Bd., 426 U.S. 736 (1976).
        \56\Committee for Public Educ. & Religious Liberty v. Regan, 444 
U.S. 646, 658-59 (1980).
        \57\The form which the assistance takes may have little to do 
with the determination. One group of Justices has argued that when the 
assistance is given to parents, the dangers of impermissible primary 
effect and entanglement are avoided and it should be approved. Committee 
for Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 801-05 
(1973) (dissenting). The Court denied a controlling significance to 
delivery of funds to parents rather than schools; government must always 
ensure a secular use. Id. at 780. Another group of Justices has argued 
that the primary effect test does not permit direct financial support to 
sectarian schools, Committee for Public Educ. & Religious Liberty v. 
Regan, 444 U.S. 646, 665-69 (1980) (dissenting), but the Court held that 
provision of direct aid with adequate assurances of nonreligious use 
does not constitute a forbidden primary effect. Id. at 661-62. More 
recently, in Mueller v. Allen, 463 U.S. 388 (1983), the views of the 
first group noted above controlled.
---------------------------------------------------------------------------

        The greater the necessity of policing the entity's use of public 
funds to ensure secular effect, the greater the danger of impermissible 
entanglement of government with religious matters. Any scheme that 
requires detailed and continuing oversight of the schools and that 
requires the entity to report to and justify itself to public authority 
has the potential for impermissible entanglement.\58\ However, where the 
nature of the assistance is such that furthering of the religious 
mission is unlikely and the public oversight is concomitantly less 
intrusive, a review may be sustained.\59\

        \58\Lemon v. Kurtzman, 403 U.S. 602, 619-20, 621-22 (1971); Meek 
v. Pittenger, 421 U.S. 349, 367-72 (1975); Wolman v. Walter, 433 U.S. 
229, 254-55 (1977). Another aspect of entanglement identified by the 
Court is the danger that an aid program would encourage continuing 
political strife through disputes over annual appropriations and 
enlargements of programs. Lemon, 403 U.S. at 622-24; Committee for 
Public Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 794-98 
(1973); Meek, 421 U.S. at 372. This concern appeared to have lessened 
somewhat in subsequent cases. Roemer v. Maryland Public Works Board, 426 
U.S. 736, 763-66 (1976); Committee for Public Educ. & Religious Liberty 
v. Regan, 444 U.S. 646, 661 n.8 (1980).
        \59\ Committee for Public Educ. & Religious Liberty v. Regan, 
444 U.S. 646, 659-61 (1980); Wolman v. Walter, 433 U.S. 229, 240-41, 
242-44, 248 (1977).
---------------------------------------------------------------------------

        Thus, government aid which is directed toward furthering secular 
interests in the welfare of the child or the nonreligious functions of 
the entity will generally be permitted where the entity is not so 
pervasively religious that secular and sectarian activities may not be 
separated. But no mere statement of rules can adequately survey the 
cases.

        Substantial unanimity, at least in result, has prevailed among 
the Justices in dealing with direct financial assistance to sectarian 
schools, as might have been expected from the argument over the primary 
effect test.\60\ State aid to church-connected schools was first found 
to have gone over the ``verge''\61\ in Lemon v. Kurtzman.\62\ Involved 
were two state statutes, one of which authorized the ``purchase'' of 
secular educational services from nonpublic elementary and secondary 
schools, a form of reimbursement for the cost to religious schools of 
the teaching of such things as mathematics, modern foreign languages, 
and physical sciences, and the other of which provided salary 
supplements to nonpublic school teachers who taught courses similar to 
those found in public

[[Page 982]]
schools, used textbooks approved for use in public schools, and agreed 
not to teach any classes in religion. Accepting the secular purpose 
attached to both statutes by the legislature, the Court did not pass on 
the secular effect test, inasmuch as excessive entanglement was found. 
This entanglement arose because the legislature ``has not, and could 
not, provide state aid on the basis of a mere assumption that secular 
teachers under religious discipline can avoid conflicts. The State must 
be certain, given the Religion Clauses, that subsidized teachers do not 
inculcate religion.''\63\ Because the schools concerned were religious 
schools, because they were under the control of the church hierarchy, 
because the primary purpose of the schools was the propagation of the 
faith, a ``comprehensive, discriminating, and continuing state 
surveillance will inevitably be required to ensure that these 
restrictions [on religious utilization of aid] are obeyed and the First 
Amendment otherwise respected.''\64\ Moreover, the provision of public 
aid inevitably will draw religious conflict into the public arena as the 
contest for adequate funding goes on. Thus, the Court held, both 
programs were unconstitutional because the state supervision necessary 
to ensure a secular purpose and a secular effect inevitably involved the 
state authorities too deeply in the religious affairs of the aided 
institutions.\65\

        \60\But see discussion infra p., on the Court's recent approval 
of the Adolescent Family Life Act, involving direct grants to religious 
institutions.
        \61\Everson v. Board of Education, 330 U.S. 1, 16 (1947).
        \62\403 U.S. 602 (1971).
        \63\Id. at 619.
        \64\Id.
        \65\Only Justice White dissented. Id. at 661. In Lemon v. 
Kurtzman, 411 U.S. 192 (1973), the Court held that the State could 
reimburse schools for expenses incurred in reliance on the voided 
program up to the date the Supreme Court held the statute 
unconstitutional. But see New York v. Cathedral Academy, 434 U.S. 125 
(1977).
---------------------------------------------------------------------------

        Two programs of assistance through provision of equipment and 
services to private, including sectarian, schools were invalidated in 
Meek v. Pittenger.\66\ First, the loan of instructional material and 
equipment directly to qualifying nonpublic elementary and secondary 
schools was voided as an impermissible extension of assistance of 
religion. This conclusion was reached on the basis that 75 percent of 
the qualifying schools were church-related or religiously affiliated 
educational institutions and the assistance was available without regard 
to the degree of religious activity of the schools. The materials and 
equipment loaned were religiously neutral, but the substantial 
assistance necessarily constituted aid to the sectarian school 
enterprise as a whole and thus had a primary effect of advancing 
religion.\67\ Second, the provision of auxiliary

[[Page 983]]
services--remedial and accelerated instruction, guidance counseling and 
testing, speech and hearing services--by public employees on nonpublic 
school premises was invalidated because the Court thought the program 
had to be policed closely to ensure religious neutrality and it saw no 
way that could be done without impermissible entanglement. The fact that 
the teachers would, under this program and unlike one of the programs 
condemned in Lemon v. Kurtzman, be public employees rather than 
employees of the religious schools and possibly under religious 
discipline was insufficient to permit the State to fail to make certain 
that religion was not inculcated by subsidized teachers.\68\

        \66\421 U.S. 349 (1975). Chief Justice Burger and Justices 
Rehnquist and White dissented. Id. at 385, 387.
        \67\Id. at 362-66. See also Wolman v. Walter, 433 U.S. 229, 248-
51 (1977). The Court in Committee for Public Educ. & Religious Liberty 
v. Regan, 444 U.S. 646, 661-62 (1980), held that Meek did not forbid all 
aid that benefited religiously pervasive schools to some extent, so long 
as it was conferred in such a way as to prevent any appreciable risk of 
being used to transmit or teach religious views. See also Wolman v. 
Walter, supra at 262 (Justice Powell concurring in part and dissenting 
in part).
        \68\Meek v. Pittenger, 421 U.S. 349, 367-72 (1975). But see 
Wolman v. Walter, 433 U.S. 229, 238-48 (1977).
---------------------------------------------------------------------------

        The Court in two 1985 cases again struck down programs of public 
subsidy of instructional services provided on the premises of sectarian 
schools, and relied on the effects test as well as the entanglement 
test. In Grand Rapids School District v. Ball,\69\ the Court invalidated 
two programs conducted in leased private school classrooms, one taught 
during the regular school day by public school teachers,\70\ and the 
other taught after regular school hours by part-time ``public'' teachers 
otherwise employed as full-time teachers by the sectarian school.\71\ 
Both programs, the Court held, had the effect of promoting religion in 
three distinct ways. The teachers might be influenced by the 
``pervasively sectarian nature'' of the environment and might ``subtly 
or overtly indoctrinate the students in particular religious tenets at 
public expense''; use of the parochial school classrooms ``threatens to 
convey a message of state support for religion'' through ``the symbolic 
union of government and religion in one sectarian enterprise''; and 
``the programs in effect subsidize the religious functions of the 
parochial schools by taking over a substantial portion of their 
responsibility for teaching secular subjects.''\72\ In Aguilar v. 
Felton,\73\ the Court invalidated a

[[Page 984]]
program under which public school employees provided instructional 
services on parochial school premises to educationally deprived 
children. The program differed from those at issue in Grand Rapids 
because the classes were closely monitored for religious content. This 
``pervasive monitoring'' did not save the program, however, because, by 
requiring close cooperation and day-to-day contact between public and 
secular authorities, the monitoring ``infringes precisely those 
Establishment Clause values at the root of the prohibition of excessive 
entanglement.''\74\

        \69\473 U.S. 373 (1985).
        \70\The vote on this ``Shared Time'' program was 5-4, the 
opinion of the Court by Justice Brennan being joined by Justices 
Marshall, Blackmun, Powell, and Stevens. The Chief Justice, and Justices 
White, Rehnquist, and O'Connor dissented.
        \71\The vote on this ``Community Education'' program was 7-2, 
Chief Justice Burger and Justice O'Connor concurring with the ``Shared 
Time'' majority.
        \72\473 U.S. at 397.
        \73\473 U.S. 402 (1985). This was another 5-4 decision, with 
Justice Brennan's opinion of the Court being joined by Justices 
Marshall, Blackmun, Powell, and Stevens, and with Chief Justice Burger 
and Justices White, Rehnquist, and O'Connor dissenting.
        \74\473 U.S. at 413.
---------------------------------------------------------------------------

        A state program to reimburse nonpublic schools for a variety of 
services mandated by state law was voided because the statute did not 
distinguish between secular and potentially religious services the costs 
of which would be reimbursed.\75\ Similarly, a program of direct 
monetary grants to nonpublic schools to be used for the maintenance of 
school facilities and equipment failed to survive the primary effect 
test because it did not restrict payment to those expenditures related 
to the upkeep of facilities used exclusively for secular purposes and 
because ``within the context of these religion-oriented institutions'' 
the Court could not see how such restrictions could effectively be 
imposed.\76\ But a plan of direct monetary grants to nonpublic schools 
to reimburse them for the costs of state-mandated record-keeping and of 
administering and grading state-prepared tests and which contained 
safeguards against religious utilization of the tests was sustained even 
though the Court recognized the incidental benefit to the schools.\77\

        \75\Levitt v. Committee for Public Educ. & Religious Liberty, 
413 U.S. 472 (1973). Justice White dissented, Id. at 482. Among the 
services reimbursed was the cost of preparing and grading examinations 
in the nonpublic schools by the teachers there. In New York v. Cathedral 
Academy, 434 U.S. 125 (1977), the Court struck down a new statutory 
program entitling private schools to obtain reimbursement for expenses 
incurred during the school year in which the prior program was voided in 
Levitt.
        \76\Committee for Public Educ. & Religious Liberty v. Nyquist, 
413 U.S. 756, 774-80 (1973). Chief Justice Burger and Justice Rehnquist 
concurred, Id. at 798, and Justice White dissented. Id. at 820.
        \77\Committee for Public Educ. & Religious Liberty v. Regan, 444 
U.S. 646 (1980). Justices Blackmun, Brennan, Marshall, and Stevens 
dissented. Id. at 662, 671. The dissenters thought that the 
authorization of direct reimbursement grants was distinguishable from 
previously approved plans that had merely relieved the private schools 
of the costs of preparing and grading state-prepared tests. See Wolman 
v. Walter, 433 U.S. 229, 238-41 (1977).
---------------------------------------------------------------------------

        The ``child benefit'' theory, under which it is permissible for 
government to render ideologically neutral assistance and services to 
pupils in sectarian schools without being deemed to be aiding the 
religious mission of the schools, has not proved easy to apply. A number 
of different forms of assistance to students were at issue

[[Page 985]]
in Wolman v. Walter.\78\ The Court approved the following: standardized 
tests and scoring services used in the public schools, with private 
school personnel not involved in the test drafting and scoring; speech, 
hearing, and psychological diagnostic services provided in the private 
schools by public employees; and therapeutic, guidance, and remedial 
services for students provided off the premises of the private schools. 
In all these, the Court thought the program contained adequate built-in 
protections against religious utilization. But while the Court adhered 
to its ruling permitting the States to loan secular textbooks used in 
the public schools to pupils attending religious schools,\79\ it 
declined to extend the precedent to permit the loan to pupils or their 
parents of instructional materials and equipment, such as projectors, 
tape recorders, maps, globes and science kits, although they were 
identical to those used in the public schools.\80\ Nor was a State 
permitted to expend funds to pay the costs to religious schools of field 
trip transportation such as was provided to public school students.\81\

        \78\433 U.S. 229 (1977). The Court deemed the situation in which 
these services were performed and the nature of the services to occasion 
little danger of aiding religious functions and thus requiring little 
supervision that would give rise to entanglement. All the services fell 
``within that class of general welfare services for children that may be 
provided by the States regardless of the incidental benefit that accrues 
to church-related schools.'' Id. at 243, quoting Meek v. Pittenger, 421 
U.S. 349, 371 n. 21 (1975). Justice Brennan would have voided all the 
programs because, considered as a whole, the amount of assistance was so 
large as to constitute assistance to the religious mission of the 
schools. Id. at 433 U.S. at 255. Justice Marshall would have approved 
only the diagnostic services, id. at 256, while Justice Stevens would 
generally approve closely administered public health services. Id. at 
264.
        \79\Meek v. Pittenger, 421 U.S. 349, 359-72 (1975); Wolman v. 
Walter, 433 U.S. 229, 236-38 (1977). Allen was explained as resting on 
``the unique presumption'' that ``the educational content of textbooks 
is something that can be ascertained in advance and cannot be diverted 
to sectarian uses.'' There was ``a tension'' between Nyquist, Meek, and 
Wolman, on the one hand, and Allen on the other; while Allen was to be 
followed ``as a matter of stare decisis,'' the ``presumption of 
neutrality'' embodied in Allen would not be extended to other similar 
assistance. Id. at 251 n.18. A more recent Court majority revived the 
Allen presumption, however, applying it to uphold tax deductions for 
tuition and other school expenses in Mueller v. Allen, 463 U.S. 388 
(1983). Justice Rehnquist wrote the Court's opinion, joined by Justices 
White, Powell, and O'Connor, and by Chief Justice Burger.
        \80\433 U.S. at 248-51. See also id. at 263-64 (Justice Powell 
concurring in part and dissenting in part).
        \81\Id. at 252-55. Justice Powell joined the other three 
dissenters who would have approved this expenditure. Id. at 264.
---------------------------------------------------------------------------

        Substantially similar programs from New York and Pennsylvania 
providing for tuition reimbursement aid to parents of religious school 
children were struck down in 1973. New York's program provided 
reimbursements out of general tax revenues for tuition paid by low-
income parents to send their children to nonpublic elementary and 
secondary schools; the reimbursements were of fixed amounts but could 
not exceed 50 percent of actual tuition paid.

[[Page 986]]
Pennsylvania provided fixed-sum reimbursement for parents who send their 
children to nonpublic elementary and secondary schools, so long as the 
amount paid did not exceed actual tuition, the funds to be derived from 
cigarette tax revenues. Both programs, it was held, constituted public 
financial assistance to sectarian institutions with no attempt to 
segregate the benefits so that religion was not advanced.\82\

        \82\Committee for Public Educ. & Religious Liberty v. Nyquist, 
413 U.S. 756, 789-798 (1973) (New York); Sloan v. Lemon, 413 U.S. 825 
(1973) (Pennsylvania). The Court distinguished Everson and Allen on the 
grounds that in those cases the aid was given to all children and their 
parents and that the aid was in any event religiously neutral, so that 
any assistance to religion was purely incidental. 413 U.S. at 781-82. 
Chief Justice Burger thought that Everson and Allen were controlling. 
Id. at 798.
---------------------------------------------------------------------------

        New York had also enacted a separate program providing tax 
relief for low-income parents not qualifying for the tuition 
reimbursements; here relief was in the form of a deduction or credit 
bearing no relationship to the amounts of tuition paid, but keyed 
instead to adjusted gross income. This too was invalidated in Nyquist. 
``In practical terms there would appear to be little difference, for 
purposes of determining whether such aid has the effect of advancing 
religion, between the tax benefit allowed here and the tuition 
[reimbursement] grant. . . . The qualifying parent under either program 
receives the same form of encouragement and reward for sending his 
children to nonpublic schools. The only difference is that one parent 
receives an actual cash payment while the other is allowed to reduce by 
an arbitrary amount the sum he would otherwise be obliged to pay over to 
the State. We see no answer to Judge Hays' dissenting statement below 
that `[i]n both instances the money involved represents a charge made 
upon the state for the purpose of religious education.'''\83\ Some 
difficulty, however, was experienced in distinguishing this program from 
the tax exemption approved in Walz.\84\

        \83\Committee for Public Educ. & Religious Liberty v. Nyquist, 
413 U.S. 756, 789-94 (1973). The quoted paragraph is id. 790-91.
        \84\Id. at 791-94. Principally, Walz was said to be different 
because of the age of exemption there dealt with, because the Walz 
exemption was granted in the spirit of neutrality while the tax credit 
under consideration was not, and the fact that the Walz exemption 
promoted less entanglement while the credit would promote more.
---------------------------------------------------------------------------

        Two subsidiary arguments were rejected by the Court in these 
cases. First, it had been argued that the tuition reimbursement program 
promoted the free exercise of religion in that it permitted low-income 
parents desiring to send their children to school in accordance with 
their religious views to do so. The Court agreed that ``tension 
inevitably exists between the Free Exercise and the Establishment 
Clauses,'' but explained that the tension is ordinarily re

[[Page 987]]
solved through application of the ``neutrality'' principle: government 
may neither advance nor inhibit religion. The tuition program 
inescapably advanced religion and thereby violated this principle.\85\ 
In the Pennsylvania case, it was argued that because the program 
reimbursed parents who sent their children to nonsectarian schools as 
well as to sectarian ones, the portion respecting the former parents was 
valid and ``parents of children who attended sectarian schools are 
entitled to the same aid as a matter of equal protection. The argument 
is thoroughly spurious. . . . The Equal Protection Clause has never been 
regarded as a bludgeon with which to compel a State to violate other 
provisions of the Constitution.''\86\

        \85\Id. at 788-89. But cf. Lynch v. Donnelly, 465 U.S. 668, 673 
(1984) (due to Free Exercise Clause, Constitution ``affirmatively 
mandates accommodation, not merely tolerance, of all religions'').
        \86\Sloan v. Lemon, 413 U.S. 825, 833-35 (1973). In any event, 
the Court sustained the district court's refusal to sever the program 
and save that portion as to children attending non-sectarian schools on 
the basis that since so large a portion of the children benefitted 
attended religious schools it could not be assumed the legislature would 
have itself enacted such a limited program.
        In Wheeler v. Barrera, 417 U.S. 402 (1974), the Court held that 
States receiving federal educational funds were required by federal law 
to provide ``comparable'' but not equal services to both public and 
private school students within the restraints imposed by state 
constitutional restrictions on aid to religious schools. In the absence 
of specific plans, the Court declined to review First Amendment 
limitations on such services.
---------------------------------------------------------------------------

        The Nyquist holding was substantially undermined in 1983, the 
Court taking a more accommodationist approach toward indirect subsidy of 
parochial schools. In Mueller v. Allen,\87\ the Court upheld a Minnesota 
deduction from state income tax available to parents of elementary and 
secondary school children for expenses incurred in providing tuition, 
transportation, textbooks, and various other school supplies. Because 
the Minnesota deduction was available to parents of public and private 
schoolchildren alike, the Court termed it ``vitally different from the 
scheme struck down in Nyquist,'' and more similar to the benefits upheld 
in Everson and Allen as available to all schoolchildren.\88\ The Court 
declined to look behind the ``facial neutrality'' of the law and 
consider empirical evidence of its actual impact, citing a need for 
``certainty'' and the lack of ``principled standards'' by which to 
evaluate such evidence.\89\ Also important to the Court's refusal to 
consider the al

[[Page 988]]
leged disproportionate benefits to parents of parochial schools was the 
assertion that, ``whatever unequal effect may be attributed to the 
statutory classification can fairly be regarded as a rough return for 
the benefits . . . provided to the State and all taxpayers by parents 
sending their children to parochial schools.''\90\

        \87\463 U.S. 388 (1983).
        \88\463 U.S. at 398. Nyquist had reserved the question of 
``whether the significantly religious character of the statute's 
beneficiaries might differentiate the present cases from a case 
involving some form of public assistance (e.g., scholarships) made 
available generally without regard to the sectarian-nonsectarian, or 
public-nonpublic nature of the institution benefitted.'' 413 U.S. at 
782-83 n.38.
        \89\463 U.S. at 401. Justice Marshall's dissenting opinion, 
joined by Justices Brennan, Blackmun, and Stevens, argued that the 
tuition component of the deduction, unavailable to parents of most 
public schoolchildren, was by far the most significant, and that the 
deduction as a whole ``was little more that a subsidy of tuition 
masquerading as a subsidy of general educational expenses.'' 463 U.S. at 
408-09. Cf. Grand Rapids School Dist. v. Ball, 473 U.S. 373 (1985), 
where the Court emphasized that 40 of 41 nonpublic schools at which 
publicly funded programs operated were sectarian in nature; and Widmar 
v. Vincent, 454 U.S. 263, 275 (1981), holding that a college's open 
forum policy had no primary effect of advancing religion ``[a]t least in 
the absence of evidence that religious groups will dominate [the] 
forum.'' But cf. Bowen v. Kendrick, 487 U.S. 589 (1988), permitting 
religious institutions to be recipients under a ``facially neutral'' 
direct grant program.
        \90\463 U.S. at 402.
---------------------------------------------------------------------------

        A second factor important in Mueller, present but not 
controlling in Nyquist, was that the financial aid was provided to the 
parents of schoolchildren rather than to the school, and thus in the 
Court's view was ``attenuated'' rather than direct; since aid was 
``available only as a result of decisions of individual parents,'' there 
was no ```impramatur of state approval.''' The Court noted that, with 
the exception of Nyquist, ``all . . . of our recent cases invalidating 
state aid to parochial schools have involved the direct transmission of 
assistance from the State to the schools themselves.''\91\ Thus Mueller 
seemingly stands for the proposition that state subsidies of tuition 
expenses at sectarian schools are permissible if contained in a facially 
neutral scheme providing benefits, at least nominally, to parents of 
public and private schoolchildren alike.\92\

        \91\463 U.S. at 399.
        \92\See also Witters v. Washington Dept. of Services for the 
Blind, 474 U.S. 481 (1986), in which the Court held that provision of 
vocational assistance for the blind to a student who used the aid for 
tuition at a sectarian college did not have a primary effect of 
advancing religion. Without citing Mueller, the Court relied on the fact 
that the aid is paid directly to the student for use at the institution 
of his or her choice, so that religious institutions received aid ``only 
as a result of the genuinely independent and private choices of aid 
recipients,'' and on the additional fact that there was nothing in the 
record to indicate that ``any significant portion of the aid'' from the 
program as a whole would go to religious education. 474 U.S. at 487, 
488.
---------------------------------------------------------------------------

        The Court, although closely divided at times, has approved quite 
extensive public assistance to institutions of higher learning. On the 
same day that it first struck down an assistance program for elementary 
and secondary private schools, the Court sustained construction grants 
to church-related colleges and universities.\93\ The specific grants in 
question were for construction of two library buildings, a science 
building, a music, drama, and arts building, and a language laboratory. 
The law prohibited the financing of any facility for, or the use of any 
federally-financed building for, reli

[[Page 989]]
gious purposes, although the restriction on use ran for only twenty 
years.\94\ The Court found that the purpose and effect of the grants 
were secular and that, unlike elementary and secondary schools, 
religious colleges were not so permeated with religious 
inculcations.\95\ The supervision required to ensure conformance with 
the non-religious-use requirement was found not to constitute 
``excessive entanglement,'' inasmuch as a building is nonideological in 
character, unlike teachers, and inasmuch as the construction grants were 
onetime things and did not continue as did the state programs.

        \93\Tilton v. Richardson, 403 U.S. 672 (1971). This was a 5-4 
decision.
        \94\Because such buildings would still have substantial value 
after twenty years, a religious use then would be an unconstitutional 
aid to religion, and the period of limitation was struck down, Id. at 
682-84.
        \95\It was no doubt true, Chief Justice Burger conceded, that 
construction grants to religious-related colleges did in some measure 
benefit religion, since the grants freed money that the colleges would 
be required to spend on the facilities for which the grants were made. 
Bus transportation, textbooks, and tax exemptions similarly benefited 
religion and had been upheld. ``The crucial question is not whether some 
benefit accrues to a religious institution as a consequence of the 
legislative program, but whether its principal or primary effect 
advances religion.'' Id. at 679.
---------------------------------------------------------------------------

        Also sustained was a South Carolina program under which a state 
authority would issue revenue bonds for construction projects on 
campuses of private colleges and universities. The Court did not decide 
whether this special form of assistance could be otherwise sustained, 
because it concluded that religion was neither advanced nor inhibited, 
nor was there any impermissible public entanglement. ``Aid normally may 
be thought to have a primary effect of advancing religion when it flows 
to an institution in which religion is so pervasive that a substantial 
portion of its functions are subsumed in the religious mission or when 
it funds a specifically religious activity in an otherwise substantially 
secular setting.''\96\ The colleges involved, though they were 
affiliated with religious institutions, were not shown to be so 
pervasively religious--no religious test existed for faculty or student 
body, a substantial part of the student body was not of the religion of 
the affiliation--and state law precluded the use of any state-financed 
project for religious activities.\97\

        \96\Hunt v. McNair, 413 U.S. 734, 743 (1973).
        \97\Id. at 739-40, 741-45. Justices Brennan, Douglas, and 
Marshall, dissenting, rejected the distinction between elementary and 
secondary education and higher education and foresaw a greater danger of 
entanglement than did the Court. Id. at 749.
---------------------------------------------------------------------------

        The kind of assistance permitted by Tilton and by Hunt v. McNair 
seems to have been broadened when the Court sustained a Maryland program 
of annual subsidies to qualifying private institutions of higher 
education; the grants were noncategorical but could not be used for 
sectarian purposes, a limitation to be policed

[[Page 990]]
by the administering agency.\98\ The plurality opinion found a secular 
purpose; found that the limitation of funding to secular activities was 
meaningful,\99\ since the religiously affiliated institutions were not 
so pervasively sectarian that secular activities could not be separated 
from sectarian ones; and determined that excessive entanglement was 
improbable, given the fact that aided institutions were not pervasively 
sectarian. The annual nature of the subsidy was recognized as posing the 
danger of political entanglement, but the plurality thought that the 
character of the aided institutions--``capable of separating secular and 
religious functions''--was more important.\100\

        \98\Roemer v. Maryland Public Works Bd., 426 U.S. 736 (1976). 
Justice Blackmun's plurality opinion was joined only by Chief Justice 
Burger and Justice Powell. Justices White and Rehnquist concurred on the 
basis of secular purpose and no primary religious benefit, rejecting 
entanglement. Id. at 767. Justice Brennan, joined by Justice Marshall, 
dissented, and Justices Stewart and Stevens each dissented separately. 
Id. at 770, 773, 775.
        \99\Id. 755. In some of the schools mandatory religion courses 
were taught, the significant factor in Justice Stewart's view, id. at 
773, but overweighed by other factors in the plurality's view.
        \100\Id. at 765-66. The plurality also relied on the facts that 
the student body was not local but diverse, and that large numbers of 
non-religiously affiliated institutions received aid. A still further 
broadening of governmental power to extend aid affecting religious 
institutions of higher education may be discerned in the Court's summary 
affirmance of two lower-court decisions upholding programs of 
assistance--scholarships and tuitions grants--to students at college and 
university as well as vocational programs in both public and private--
including religious--institutions; one of the programs contained no 
secular use restriction at all and in the other one the restriction 
seemed somewhat pro forma. Smith v. Board of Governors of Univ. of North 
Carolina, 434 U.S. 803 (1977), aff'g 429 F. Supp. 871 (W.D.N.C. 1977); 
Americans United v. Blanton, 434 U.S. 803 (1977), aff'g 433 F. Supp. 97 
(M.D. Tenn. 1977). In Witters v. Washington Dep't of Services for the 
Blind, 474 U.S. 481 (1986), the Court upheld use of a vocational 
rehabilitation scholarship at a religious college, emphasizing that the 
religious institution received the public money as a result of the 
``genuinely independent and private choices of the aid recipients,'' and 
not as the result of any decision by the State to sponsor or subsidize 
religion.
---------------------------------------------------------------------------

        In Bowen v. Kendrick\101\ the Court by a 5-4 vote upheld the 
Adolescent Family Life Act (AFLA)\102\ against facial challenge. The Act 
permits direct grants to religious organizations for provision of health 
care and for counseling of adolescents on matters of pregnancy 
prevention and abortion alternatives, and requires grantees to involve 
other community groups, including religious organizations, in delivery 
of services. All of the Justices agreed that AFLA had valid secular 
purposes; their disagreement related to application of the effects and 
entanglement tests. The Court relied on

[[Page 991]]
analogy to the higher education cases rather than the cases involving 
aid to elementary and secondary schools.\103\ The case presented 
conflicting factual considerations. On the one hand, the class of 
beneficiaries was broad, with religious groups not predominant among the 
wide range of eligible community organizations. On the other hand, there 
were analogies to the parochial school aid cases: secular and religious 
teachings might easily be mixed, and the age of the targeted group 
(adolescents) suggested susceptibility. The Court resolved these 
conflicts by holding that AFLA is facially valid, there being 
insufficient indication that a significant proportion of the AFLA funds 
would be disbursed to ``pervasively sectarian'' institutions, but by 
remanding to the district court to determine whether particular grants 
to pervasively sectarian institutions were invalid. The Court emphasized 
in both parts of its opinion that the fact that ``views espoused [during 
counseling] on matters of premarital sex, abortion, and the like happen 
to coincide with the religious views of the AFLA grantee would not be 
sufficient to show [an Establishment Clause violation].''\104\

        \101\487 U.S. 589 (1988). Chief Justice Rehnquist wrote the 
Court's opinion, and was joined by Justices White, O'Connor, Scalia, and 
Kennedy; in addition, Justice O'Connor and Justice Kennedy, joined by 
Justice Scalia, filed separate concurring opinions. Justice Blackmun's 
dissenting opinion was joined by Justices Brennan, Marshall, and 
Stevens.
        \102\Pub. L. 97-35, 95 Stat. 578 (1981), codified at 42 U.S.C. 
Sec. 300z et seq.
        \103\The Court also noted that the 1899 case of Bradfield v. 
Roberts had established that religious organizations may receive direct 
aid for support of secular social-welfare cases.
        \104\487 U.S. at 621.
---------------------------------------------------------------------------

        Although the Court applied the Lemon three-part test in 
Kendrick, the case may signal a changing approach to direct aid cases. 
The distinction between facial and as-applied invalidity is new in this 
context, and may have implications for other Establishment Clause 
challenges. Also noteworthy is the fact that the Court expressed 
tolerance for a level of monitoring that would be impermissible for 
``pervasively sectarian'' organizations, rejecting the ```Catch-22' 
argument'' that excessive entanglement would result. Perhaps most 
significant is the fact that Justice Kennedy indicated in his separate 
concurring opinion that he would look behind the ``pervasively 
sectarian'' nature of aid recipients and focus on how aid money is 
actually being spent; only if aid is being spent for religious purposes 
would he hold that there has been a violation.\105\ This apparent 
contrast with the approach previously advocated by Justice Powell 
suggests that the balance on the Court may have shifted toward a less 
restrictive approach in the parochial school aid context.

        \105\Id. at 624-25.
---------------------------------------------------------------------------

        Governmental Encouragement of Religion in Public Schools: 
Released Time.--Introduction of religious education into the public 
schools, one of Justice Rutledge's ``great drives,''\106\ has

[[Page 992]]
also occasioned a substantial amount of litigation in the Court. In its 
first two encounters, the Court voided one program and upheld another, 
in which the similarities were at least as significant as the 
differences. Both cases involved ``released time'' programs, the 
establishing of a period during which pupils in public schools were to 
be allowed, upon parental request, to receive religious instruction. In 
the first, the religious classes were conducted during regular school 
hours in the school building by outside teachers furnished by a 
religious council representing the various faiths, subject to the 
approval or supervision of the superintendent of schools. Attendance 
reports were kept and reported to the school authorities in the same way 
as for other classes, and pupils not attending the religious instruction 
classes were required to continue their regular studies. ``The operation 
of the State's compulsory education system thus assists and is 
integrated with the program of religious instruction carried on by 
separate religious sects. Pupils compelled by law to go to school for 
secular education are released in part from their legal duty upon the 
condition that they attend the religious classes. This is beyond all 
question a utilization of the tax-established and tax-supported public 
school system to aid religious groups to spread their faith. And it 
falls squarely under the ban of the First Amendment . . . .''\107\ The 
case was also noteworthy because of the Court's express rejection of the 
contention ``that historically the First Amendment was intended to 
forbid only government preference of one religion over another, not an 
impartial governmental assistance of all religions.''\108\

        \106\Everson v. Board of Education, 330 U.S. 1, 63 (Justice 
Rutledge dissenting) (quoted supra p.977, n.41).
        \107\Illinois ex rel. McCollum v. Board of Education, 333 U.S. 
203, 209-10 (1948).
        \108\Id. at 211.
---------------------------------------------------------------------------

        Four years later, the Court upheld a different released-time 
program.\109\ In this one, schools released pupils during school hours, 
on written request of their parents, so that they might leave the school 
building and go to religious centers for religious instruction or 
devotional exercises. The churches reported to the schools the names of 
children released from the public schools who did not report for 
religious instruction; children not released remained in the classrooms 
for regular studies. The Court found the differences between this 
program and the program struck down in McCollum to be constitutionally 
significant. Unlike McCollum, where ``the classrooms were used for 
religious instruction and force of the public school was used to promote 
that instruction,'' religious instruction was conducted off school 
premises and ``the public schools do

[[Page 993]]
no more than accommodate their schedules.''\110\ We are a religious 
people whose institutions presuppose a Supreme Being,'' Justice Douglas 
wrote for the Court. ``When the state encourages religious instruction 
or cooperates with religious authorities by adjusting the schedule of 
public events to sectarian needs, it follows the best of our traditions. 
For it then respects the religious nature of our people and accommodates 
the public service to their spiritual needs. To hold that it may not 
would be to find in the Constitution a requirement that the government 
show a callous indifference to religious groups. That would be 
preferring those who believe in no religion over those who do 
believe.''\111\

        \109\Zorach v. Clauson, 343 U.S. 306 (1952). Justices Black, 
Frankfurter, and Jackson dissented. Id. at 315, 320, 323.
        \110\Id. at 315. See also Abington School Dist. v. Schempp, 374 
U.S. 203, 261-63 (1963) (Justice Brennan concurring) (suggesting that 
the important distinction was that ``the McCollum program placed the 
religious instruction in the public school classroom in precisely the 
position of authority held by the regular teachers of secular subjects, 
while the Zorach program did not'').
        \111\Id. at 313-14. These cases predated formulation of the 
Lemon three-part test for religious establishment, and the status of 
that test--as well as the constitutional status of released-time 
programs--is unclear. The degree of official and church cooperation may 
well not rise to a problem of excessive entanglement, but quaere, what 
is the secular purpose and secular effect of such programs? Some 
guidance may be provided by Grand Rapids School District v. Ball, 473 
U.S. 373 (1985), and Aguilar v. Felton, 473 U.S. 402 (1985), striking 
down programs using public school teachers for instruction of parochial 
school students in parochial school facilities, but these were 5-4 
decisions and the Court's membership has since changed.
---------------------------------------------------------------------------

        Governmental Encouragement of Religion in Public Schools: 
Prayers and Bible Reading.--Upon recommendation of the state governing 
board, a local New York school required each class to begin each school 
day by reading aloud the following prayer in the presence of the 
teacher: ``Almighty God, we acknowledge our dependence upon Thee, and we 
beg Thy blessing upon us, our parents, our teachers and our country.'' 
Students who wished to do so could remain silent or leave the room. Said 
the Court: ``We think that by using its public school system to 
encourage recitation of the Regents' prayer, the State of New York had 
adopted a practice wholly inconsistent with the Establishment Clause. 
There can, of course, be no doubt that New York's program of daily 
classroom invocation of God's blessings as prescribed in the Regents' 
prayer is a religious activity. . . . [W]e think that the constitutional 
prohibition against laws respecting an establishment of religion must at 
least mean that in this country it is no part of the business of 
government to compose official prayers for any group of the American 
people to recite as a part of a religious program carried on by 
government.''\112\ ``Neither the fact that the prayer may be 
nondenominationally neutral nor the fact that its observance on 

        \112\Engel v. Vitale, 370 U.S. 421, 424, 425 (1962).
        
---------------------------------------------------------------------------

[[Page 994]]


    the part of the students is voluntary can serve to free it from the 
    limitations of the Establishment Clause, as it might from the Free 
    Exercise Clause. . . . The Establishment Clause . . . does not 
    depend upon any showing of direct governmental compulsion and is 
    violated by the enactment of laws which establish an official 
    religion whether those laws operate directly to coerce nonobserving 
    individuals or not.''\113\


        \113\Id. at 430. Justice Black for the Court rejected the idea 
that the prohibition of religious services in public schools evidenced 
``a hostility toward religion or toward prayer.'' Id. at 434. Rather, 
such an application of the First Amendment protected religion from the 
coercive hand of government and government from control by a religious 
sect. Dissenting alone, Justice Stewart could not ``see how an `official 
religion' is established by letting those who want to say a prayer say 
it. On the contrary, I think that to deny the wish of these school 
children to join in reciting this prayer is to deny them the opportunity 
of sharing in the spiritual heritage of our Nation.'' Id. at 444, 445.
---------------------------------------------------------------------------

        Following the prayer decision came two cases in which parents 
and their school age children challenged the validity under the 
Establishment Clause of requirements that each school day begin with 
readings of selections from the Bible. Scripture reading, like prayers, 
the Court found, was a religious exercise. ``Given that finding the 
exercises and the law requiring them are in violation of the 
Establishment Clause.''\114\ Rejected were contentions by the State that 
the object of the programs was the promotion of secular purposes, such 
as the expounding of moral values, the contradiction of the 
materialistic trends of the times, the perpetuation of traditional 
institutions, and the teaching of literature\115\ and that to forbid the 
particular exercises was to choose a ``religion of secularism'' in their 
place.\116\ Though the ``place of religion in our society is an exalted 
one,'' the Establishment Clause, the Court continued, prescribed that in 
``the relationship between man and religion,'' the State must be 
``firmly committed to a position of neutrality.''\117\

        \114\Abington School Dist. v. Schempp, 374 U.S. 203, 223 (1963). 
``[T]he States are requiring the selection and reading at the opening of 
the school day of verses from the Holy Bible and the recitation of the 
Lord's Prayer by the students in unison. These exercises are prescribed 
as part of the curricular activities of students who are required by law 
to attend school. They are held in the school buildings under the 
supervision and with the participation of teachers employed in those 
schools. None of these factors, other than compulsory school attendance, 
was present in the program upheld in Zorach v. Clauson.'' Id.
        \115\Id. at 223-24. The Court thought the exercises were clearly 
religious.
        \116\Id. at 225. ``We agree of course that the State may not 
establish a `religion of secularism' in the sense of affirmatively 
opposing or showing hostility to religion, thus `preferring those who 
believe in no religion over those who do believe.' Zorach v. Clauson, 
supra, at 314. We do not agree, however, that this decision in any sense 
has that effect.''
        \117\Id. 226. Justice Brennan contributed a lengthy concurrence 
in which he attempted to rationalize the decisions of the Court on the 
religion clauses and to delineate the principles applicable. He 
concluded that what the establishment clause foreclosed ``are those 
involvements of religious with secular institutions which (a) serve the 
essentially religious activities of religious institutions; (b) employ 
the organs of government for essentially religious purposes; or (c) use 
essentially religious means to serve governmental ends, where secular 
means would suffice.'' Id. at 230, 295. Justice Stewart again dissented 
alone, feeling that the claims presented were essentially free exercise 
contentions which were not supported by proof of coercion or of punitive 
official action for nonparticipation.
        While numerous efforts were made over the years to overturn 
these cases, through constitutional amendment and through limitations on 
the Court's jurisdiction, the Supreme Court itself has had no occasion 
to review the area again. But see Stone v. Graham, 449 U.S. 39 (1980) 
(summarily reversing state court and invalidating statute requiring the 
posting of the Ten Commandments, purchased with private contributions, 
on the wall of each public classroom).

---------------------------------------------------------------------------

[[Page 995]]

        In Wallace v. Jaffree,\118\ the Court held invalid an Alabama 
statute authorizing a 1-minute period of silence in all public schools 
``for meditation or prayer.'' Because the only evidence in the record 
indicated that the words ``or prayer'' had been added to the existing 
statute by amendment for the sole purpose of returning voluntary prayer 
to the public schools, the Court found that the first prong of the Lemon 
test had been violated, i.e. that the statute was invalid as being 
entirely motivated by a purpose of advancing religion. The Court 
characterized the legislative intent to return prayer to the public 
schools as ``quite different from merely protecting every student's 
right to engage in voluntary prayer during an appropriate moment of 
silence during the schoolday,''\119\ and both Justices Powell and 
O'Connor in concurring opinions suggested that other state statutes 
authorizing moments of silence might pass constitutional muster.\120\

        \118\472 U.S. 38 (1985).
        \119\Id. at 59.
        \120\Justice O'Connor's concurring opinion is notable for its 
effort to synthesize and refine the Court's Establishment and Free 
Exercise tests (see also the Justice's concurring opinion in Lynch v. 
Donnelly), and Justice Rehnquist's dissent for its effort to redirect 
Establishment Clause analysis by abandoning the tripartite test, 
discarding any requirement that government be neutral between religion 
and ``irreligion,'' and confining the scope to a prohibition on 
establishing a national church or otherwise favoring one religious group 
over another.
---------------------------------------------------------------------------

        The school prayer decisions served as precedent for the Court's 
holding in Lee v. Weisman\121\ that a school-sponsored invocation at a 
high school commencement violated the Establishment Clause. The Court 
rebuffed a request to reexamine the Lemon test, finding ``[t]he 
government involvement with religious activity in this case [to be] 
pervasive, to the point of creating a state-sponsored and state-directed 
religious exercise in a public school.'' State officials not only 
determined that an invocation and benediction should be given, but also 
selected the religious participant and provided him with guidelines for 
the content of nonsectarian prayers. The Court, in an opinion by Justice 
Kennedy, viewed this state participation

[[Page 996]]
as coercive in the elementary and secondary school setting.\122\ The 
state ``in effect required participation in a religious exercise,'' 
since the option of not attending ``one of life's most significant 
occasions'' was no real choice. ``At a minimum,'' the Court concluded, 
the Establishment Clause ``guarantees that government may not coerce 
anyone to support or participate in religion or its exercise.''

        \121\112 S. Ct. 2649 (1992).
        \122\The Court distinguished Marsh v. Chambers, 463 U.S. 783, 
792 (1983), holding that the opening of a state legislative session with 
a prayer by a state-paid chaplain does not offend the Establishment 
Clause. The Marsh Court had distinguished Abington on the basis that 
state legislators, as adults, are ``presumably not readily susceptible 
to `religious indoctrination' or `peer pressure,''' and the Lee Court 
reiterated this distinction. 112 S. Ct. at 2660.
---------------------------------------------------------------------------

        Governmental Encouragement of Religion in Public Schools: 
Curriculum Restriction.--In Epperson v. Arkansas,\123\ the Court struck 
down a state statute which made it unlawful for any teacher in any 
state-supported educational institution ``to teach the theory or 
doctrine that mankind ascended or descended from a lower order of 
animals,'' or ``to adopt or use in any such institution a textbook that 
teaches'' this theory. Agreeing that control of the curriculum of the 
public schools was largely in the control of local officials, the Court 
nonetheless held that the motivation of the statute was a fundamentalist 
belief in the literal reading of the Book of Genesis and that this 
motivation and result required the voiding of the law. ``The law's 
effort was confined to an attempt to blot out a particular theory 
because of its supposed conflict with the Biblical account, literally 
read. Plainly, the law is contrary to the mandate of the First . . . 
Amendment to the Constitution.''\124\

        \123\393 U.S. 97 (1968).
        \124\Id. at 109.
---------------------------------------------------------------------------

        Similarly invalidated as having the improper purpose of 
advancing religion was a Louisiana statute mandating balanced treatment 
of ``creation-science'' and ``evolution-science'' in the public schools. 
``The preeminent purpose of the Louisiana legislature,'' the Court found 
in Edwards v. Aguillard, ``was clearly to advance the religious 
viewpoint that a supernatural being created humankind.''\125\ The Court 
viewed as a ``sham'' the stated purpose of protecting academic freedom, 
and concluded instead that the legislature's purpose was to narrow the 
science curriculum in order to discredit evolution ``by counterbalancing 
its teaching at every turn with the teaching of creation science.''\126\

        \125\483 U.S. 578, 591 (1987).
        \126\483 U.S. at 589. The Court's conclusion was premised on its 
finding that ``the term `creation science,' as used by the legislature 
. . . embodies the religious belief that a supernatural creator was 
responsible for the creation of humankind.'' Id. at at 592.

[[Page 997]]


        Access of Religious Groups to School Property.--Although 
government may not promote religion through its educational facilities, 
it may not bar student religious groups from meeting on public school 
property if it makes those facilities available to nonreligious student 
groups. To allow religious groups equal access to a public college's 
facilities would further a secular purpose, would not constitute an 
impermissible benefit to religion, and would pose little hazard of 
entanglement.\127\ These principles apply to public secondary schools as 
well as to institutions of higher learning.\128\ In 1990 the Court 
upheld application of the Equal Access Act\129\ to prevent a secondary 
school from denying access to school premises to a student religious 
club while granting access to such other ``noncurriculum'' related 
student groups as a scuba diving club, a chess club, and a service 
club.\130\

        \127\Widmar v. Vincent, 454 U.S. 263, 270-75 (1981).
        \128\Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226 
(1990). The Court had noted in Widmar that university students ``are 
less impressionable than younger students and should be able to 
appreciate that the University's policy is one of neutrality toward 
religion,'' 454 U.S. at 274 n.14. The Mergens plurality ignored this 
distinction, suggesting that the secondary school's neutrality was also 
evident to its students. 496 U.S. at 252.
        \129\Pub. L. 98-377, title VIII, 98 Stat. 1302 (1984); 20 U.S.C. 
Sec. Sec. 4071-74.
        \130\There was no opinion of the Court on Establishment Clause 
issues, a plurality of four led by Justice O'Connor applying the three-
part Lemon test, and concurring Justices Kennedy and Scalia proposing a 
less stringent test under which ``neutral'' accommodations of religion 
would be permissible as long as they do not in effect establish a state 
religion, and as long as there is no coercion of students to participate 
in a religious activity. Id. at 2377.
---------------------------------------------------------------------------

        While the greater number of establishment cases have involved 
educational facilities, in other areas as well there have been 
contentions that legislative policies have been laws ``respecting'' the 
establishment of religion.

        Tax Exemptions of Religious Property.--Every State and the 
District of Columbia provide for tax exemptions for religious 
institutions, and the history of such exemptions goes back to the time 
of our establishment as a polity. The only expression by a Supreme Court 
Justice prior to 1970 was by Justice Brennan, who deemed tax exemptions 
constitutional because the benefit conferred was incidental to the 
religious character of the institutions concerned.\131\ Then, in 1970, a 
nearly unanimous Court sustained a state exemption from real or personal 
property taxation of ``property used exclusively for religious, 
educational or charitable purposes'' owned by a corporation or 
association which was conducted exclusively for

[[Page 998]]
one or more of these purposes and did not operate for profit.\132\ The 
first prong of a two-prong argument saw the Court adopting Justice 
Brennan's rationale. Using the secular purpose and effect test, Chief 
Justice Burger noted that the purpose of the exemption was not to single 
out churches for special favor; instead, the exemption applied to a 
broad category of associations having many common features and all 
dedicated to social betterment. Thus, churches as well as museums, 
hospitals, libraries, charitable organizations, professional 
associations, and the like, all non-profit, and all having a beneficial 
and stabilizing influence in community life, were to be encouraged by 
being treated specially in the tax laws. The primary effect of the 
exemptions was not to aid religion; the primary effect was secular and 
any assistance to religion was merely incidental.\133\

        \131\``If religious institutions benefit, it is in spite of 
rather than because of their religious character. For religious 
institutions simply share benefits which government makes generally 
available to educational, charitable, and eleemosynary groups.'' 
Abington School Dist. v. Schempp, 374 U.S. 203, 301 (1963) (concurring 
opinion).
        \132\Walz v. Tax Comm'n, 397 U.S. 664 (1970). Justice Douglas 
dissented.
        \133\Id. at 672-74.
---------------------------------------------------------------------------

        For the second prong, the Court created a new test, the 
entanglement test,\134\ by which to judge the program. There was some 
entanglement whether there were exemptions or not, Chief Justice Burger 
continued, but with exemptions there was minimal involvement. But 
termination of exemptions would deeply involve government in the 
internal affairs of religious bodies, because evaluation of religious 
properties for tax purposes would be required and there would be tax 
liens and foreclosures and litigation concerning such matters.\135\

        \134\Supra, p.973.
        \135\397 U.S. at 674-76.
---------------------------------------------------------------------------

        While the general issue is now settled, it is to be expected 
that variations of the exemption upheld in Walz will present the Court 
with an opportunity to elaborate the field still further.\136\ For 
example, the Court determined that a sales tax exemption applicable only 
to religious publications constituted a violation of the Establishment 
Clause,\137\ and, on the other hand, that application of a general sales 
and use tax provision to religious publications violates neither the 
Establishment Clause nor the Free Exercise Clause.\138\

        \136\For example, the Court subsequently accepted for review a 
case concerning property tax exemption for church property used as a 
commercial parking lot, but state law was changed, denying exemption for 
purely commercial property and requiring a pro rata exemption for mixed 
use, and the Court remanded so that the change in the law could be 
considered. Differderfer v. Central Baptist Church, 404 U.S. 412 (1972).
        \137\Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989).
        \138\Jimmy Swaggart Ministries v. California Bd. of 
Equalization, 493 U.S. 378 (1990). Similarly, there is no constitutional 
impediment to straightforward application of 26 U.S.C. Sec. 170 to 
disallow a charitable contribution for payments to a church found to 
represent a reciprocal exchange rather than a contribution or gift. 
Hernandez v. Commissioner, 490 U.S. 680 (1989).

---------------------------------------------------------------------------

[[Page 999]]

        Exemption of Religious Organizations from Generally Applicable 
Laws.--The Civil Rights Act's exemption of religious organizations from 
the prohibition against religious discrimination in employment\139\ does 
not violate the Establishment Clause when applied to a religious 
organization's secular, nonprofit activities. The Court held in 
Corporation of the Presiding Bishop v. Amos\140\ that a church-run 
gymnasium operated as a nonprofit facility open to the public could 
require that its employees be church members. Declaring that ``there is 
ample room for accommodation of religion under the Establishment 
Clause,''\141\ the Court identified a legitimate purpose in freeing a 
religious organization from the burden of predicting which of its 
activities a court will consider to be secular and which religious. The 
rule applying across-the-board to nonprofit activities and thereby 
``avoid[ing] . . . intrusive inquiry into religious belief'' also serves 
to lessen entanglement of church and state.\142\ The exemption itself 
does not have a principal effect of advancing religion, the Court 
concluded, but merely allows churches to advance religion.\143\

        \139\Section 703 of the Civil Rights Act of 1964, 42 U.S.C. 
Sec. 2000e-2, makes it unlawful for any employer to discriminate in 
employment practices on the basis of an employee's religion. Section 
702, 42 U.S.C. Sec. 2000e-1, exempts from the prohibition ``a religious 
corporation . . . with respect to the employment of individuals of a 
particular religion to perform work connected with the carrying on by 
such corporation . . . of its activities.''
        \140\483 U.S. 327 (1987).
        \141\483 U.S. at 338.
        \142\Id. at 339.
        \143\``For a law to have forbidden `effects' . . . it must be 
fair to say that the government itself has advanced religion through its 
own activities and influence.'' 483 U.S. at 337. Justice O'Connor's 
concurring opinion suggests that practically any benefit to religion can 
be ``recharacterized as simply `allowing' a religion to better advance 
itself,'' and that a ``necessary second step is to separate those 
benefits to religion that constitutionally accommodate the free exercise 
of religion from those that provide unjustifiable awards of assistance 
to religious organizations.'' Id. at 347, 348.
---------------------------------------------------------------------------

        Sunday Closing Laws.--The history of Sunday Closing Laws goes 
back into United States colonial history and far back into English 
history.\144\ Commonly, the laws require the observance of the Christian 
Sabbath as a day of rest, although in recent years they have tended to 
become honeycombed with exceptions. The Supreme Court rejected an 
Establishment Clause challenge to Sunday Closing Laws in McGowan v. 
Maryland.\145\ The Court acknowledged

[[Page 1000]]
that historically the laws had a religious motivation and were designed 
to effectuate concepts of Christian theology. However, ``[i]n light of 
the evolution of our Sunday Closing Laws through the centuries, and of 
their more or less recent emphasis upon secular considerations, it is 
not difficult to discern that as presently written and administered, 
most of them, at least, are of a secular rather than of a religious 
character, and that presently they bear no relationship to establishment 
of religion. . . .''\146\ ``[T]he fact that this [prescribed day of 
rest] is Sunday, a day of particular significance for the dominant 
Christian sects, does not bar the State from achieving its secular 
goals. To say that the States cannot prescribe Sunday as a day of rest 
for these purposes solely because centuries ago such laws had their 
genesis in religion would give a constitutional interpretation of 
hostility to the public welfare rather than one of mere separation of 
church and State.''\147\ The choice of Sunday as the day of rest, while 
originally religious, now reflected simple legislative inertia or 
recognition that Sunday was a traditional day for the choice.\148\ Valid 
secular reasons existed for not simply requiring one day of rest and 
leaving to each individual to choose the day, reasons of ease of 
enforcement and of assuring a common day in the community for rest and 
leisure.\149\ More recently, a state statute mandating that employers 
honor the Sabbath day of the employee's choice was held invalid as 
having the primary effect of promoting religion by weighing the 
employee's Sabbath choice over all other interests.\150\

        \144\The history is recited at length in the opinion of the 
Court in McGowan v. Maryland, 366 U.S. 420, 431-40 (1961), and in 
Justice Frankfurter's concurrence. Id. at 459, 470-551 and appendix.
        \145\366 U.S. 420 (1961). Decision on the establishment question 
in this case also controlled the similar decision on that question in 
Two Guys from Harrison-Allentown v. McGinley, 366 U.S. 582 (1961), 
Braunfeld v. Brown, 366 U.S. 599 (1961), and Gallagher v. Crown Kosher 
Super Market, 366 U.S. 617 (1961). On free exercise in these cases, see 
infra, pp.1011-12.
        \146\McGowan v. Maryland, 366 U.S. 420, 444 (1961).
        \147\Id. at 445.
        \148\Id. at 449-52.
        \149\Id. Justice Frankfurter, with whom Justice Harlan 
concurred, arrived at the same conclusions by a route that did not 
require approval of Everson v. Board of Education, from which he had 
dissented.
        \150\Estate of Thornton v. Caldor, Inc., 472 U.S. 703 (1985).
---------------------------------------------------------------------------

        Conscientious Objection.--Historically, Congress has provided 
for alternative service for men who had religious scruples against 
participating in either combat activities or in all forms of military 
activities; the fact that Congress chose to draw the line of exemption 
on the basis of religious belief confronted the Court with a difficult 
constitutional question, which, however, the Court chose to avoid by a 
somewhat disingenuous interpretation of the stat

[[Page 1001]]
ute.\151\ In Gillette v. United States,\152\ a further constitutional 
problem arose in which the Court did squarely confront and validate the 
congressional choice. Congress had restricted conscientious objection 
status to those who objected to ``war in any form'' and the Court 
conceded that there were religious or conscientious objectors who were 
not opposed to all wars but only to particular wars based upon 
evaluation of a number of factors by which the ``justness'' of any 
particular war could be judged; ``properly construed,'' the Court said, 
the statute did draw a line relieving from military service some 
religious objectors while not relieving others.\153\ Purporting to apply 
the secular purpose and effect test, the Court looked almost exclusively 
to purpose and hardly at all to effect. Although it is not clear, the 
Court seemed to require that a classification must be religiously based 
``on its face''\154\ or lack any ``neutral, secular basis for the lines 
government has drawn''\155\ in order that it be held to violate the 
Establishment Clause. The classification here was not religiously based 
``on its face,'' and served ``a number of valid purposes having nothing 
to do with a design to foster or favor any sect, religion, or cluster of 
religions.''\156\ These purposes, related to the difficulty in 
separating sincere conscientious objectors to particular wars from 
others with fraudulent claims, included the maintenance of a fair and 
efficient selective service system and protection of the integrity of 
democratic decision-making.\157\

        \151\In United States v. Seeger, 380 U.S. 163 (1965), a 
unanimous Court construed the language of the exemption limiting the 
status to those who by ``religious training and belief'' (that is, those 
who believed in a ``Supreme Being''), to mean that a person must have 
some belief which occupies in his life the place or role which the 
traditional concept of God occupies in the orthodox believer. After the 
``Supreme Being'' clause was deleted, a plurality in Welsh v. United 
States, 398 U.S. 333 (1970), construed the religion requirement as 
inclusive of moral, ethical, or religious grounds. Justice Harlan 
concurred on constitutional grounds, believing that the statute was 
clear that Congress had intended to restrict conscientious objection 
status to those persons who could demonstrate a traditional religious 
foundation for their beliefs and that this was impermissible under the 
Establishment Clause. Id. at 344. The dissent by Justices White and 
Stewart and Chief Justice Burger rejected both the constitutional and 
the statutory basis. Id. at 367.
        \152\401 U.S. 437 (1971).
        \153\Id. at 449.
        \154\Id. at 450.
        \155\Id. at 452.
        \156\Id.
        \157\Id. at 452-60.
---------------------------------------------------------------------------

        Regulation of Religious Solicitation.--Although the solicitation 
cases have generally been decided under the free exercise or free speech 
clauses,\158\ in one instance the Court, intertwining establishment and 
free exercise principles, voided a provision in a state charitable 
solicitations law that required only those religious organizations that 
received less than half their total contributions

[[Page 1002]]
from members or affiliated organizations to comply with the registration 
and reporting sections of the law.\159\ Applying strict scrutiny equal 
protection principles, the Court held that by distinguishing between 
older, well-established churches that had strong membership financial 
support and newer bodies lacking a contributing constituency or that may 
favor public solicitation over general reliance on financial support 
from the members, the statute granted denominational preference 
forbidden by the Establishment Clause.\160\

        \158\Infra, p.1182.
        \159\Larson v. Valente, 456 U.S. 228 (1982). Two Justices 
dissented on the merits, id. at 258 (Justices White and Rehnquist), 
while two other Justices dissented on a standing issue. Id. at 264 
(Chief Justice Burger and Justice O'Connor).
        \160\Id. at 246-51. Compare Heffron v. ISKCON, 452 U.S. 640, 
652-53 (1981), and id. at 659 n.3 (Justice Brennan, concurring in part 
and dissenting in part) (dealing with a facially neutral solicitation 
rule distinguishing between religious groups that have a religious tenet 
requiring peripatetic solicitation and those who do not).
---------------------------------------------------------------------------

        Religion in Governmental Observances.--The practice of opening 
legislative sessions with prayers by paid chaplains was upheld in Marsh 
v. Chambers,\161\ a case involving prayers in the Nebraska Legislature. 
The Court relied almost entirely on historical practice. Congress had 
paid a chaplain and opened sessions with prayers for almost 200 years; 
the fact that Congress had continued the practice after considering 
constitutional objections in the Court's view strengthened rather than 
weakened the historical argument. Similarly, the practice was well 
rooted in Nebraska and in most other states. Most importantly, the First 
Amendment had been drafted in the First Congress with an awareness of 
the chaplaincy practice, and this practice was not prohibited or 
discontinued. The Court did not address the lower court's findings,\162\ 
amplified in Justice Brennan's dissent, that each aspect of the Lemon v. 
Kurtzman tripartite test had been violated. Instead of constituting an 
application of the tests, therefore, Marsh can be read as representing 
an exception to their application.\163\

        \161\463 U.S. 783 (1983). Marsh was a 6-3 decision, with Chief 
Justice Burger's opinion for the Court being joined by Justices White, 
Blackmun, Powell, Rehnquist, and O'Connor, and with Justices Brennan, 
Marshall, and Stevens dissenting.
        \162\Chambers v. Marsh, 675 F.2d 228 (8th Cir. 1982).
        \163\School prayer cases were distinguished on the basis that 
legislators, as adults, are presumably less susceptible than are 
schoolchildren to religious indoctrination and peer pressure, 463 U.S. 
at 792, but there was no discussion of the tests themselves.
---------------------------------------------------------------------------

        A different form of governmentally sanctioned religious 
observance--inclusion of religious symbols in governmentally sponsored 
holiday displays--was twice before the Court, with varying results. In 
1984, in Lynch v. Donnelly,\164\ the Court found no violation of

[[Page 1003]]
the Establishment Clause occasioned by inclusion of a Nativity scene 
(creche) in a city's Christmas display; in 1989, in Allegheny County v. 
Greater Pittsburgh ACLU,\165\ inclusion of a creche in a holiday display 
was found to constitute a violation. Also at issue in Allegheny County 
was inclusion of a menorah in a holiday display; here the Court found no 
violation. The setting of each display was crucial to the varying 
results in these cases, the determinant being whether the Court majority 
believed that the overall effect of the display was to emphasize the 
religious nature of the symbols, or whether instead the emphasis was 
primarily secular. Perhaps equally important for future cases, however, 
was the fact that the four dissenters in Allegheny County would have 
upheld both the creche and menorah displays under a more relaxed, 
deferential standard.

        \164\465 U.S. 668 (1984). Lynch was a 5-4 decision, with Justice 
Blackmun, who voted with the majority in Marsh, joining the Marsh 
dissenters in this case. Again, Chief Justice Burger wrote the opinion 
of the Court, joined by the other majority Justices, and again Justice 
Brennan wrote a dissent, joined by the other dissenters. A concurring 
opinion was added by Justice O'Connor, and a dissenting opinion was 
added by Justice Blackmun.
        \165\492 U.S. 573 (1989).
---------------------------------------------------------------------------

        Chief Justice Burger's opinion for the Court in Lynch began by 
expanding on the religious heritage theme exemplified by Marsh; other 
evidence that ```[w]e are a religious people whose institutions 
presuppose a Supreme Being'''\166\ was supplied by reference to the 
national motto ``In God We Trust,'' the affirmation ``one nation under 
God'' in the pledge of allegiance, and the recognition of both 
Thanksgiving and Christmas as national holidays. Against that 
background, the Court then determined that the city's inclusion of the 
creche in its Christmas display had a legitimate secular purpose in 
recognizing ``the historical origins of this traditional event long 
[celebrated] as a National Holiday,''\167\ and that its primary effect 
was not to advance religion. The benefit to religion was called 
``indirect, remote, and incidental,'' and in any event no greater than 
the benefit resulting from other actions that had been found to be 
permissible, e.g. the provision of transportation and textbooks to 
parochial school students, various assistance to church-supported 
colleges, Sunday closing laws, and legislative prayers.\168\ The Court 
also reversed the lower court's finding of entanglement based only on 
``political divisiveness.''\169\

        \166\465 U.S. at 675, quoting Zorach v. Clausen, 343 U.S. 306, 
313 (1952).
        \167\465 U.S. at 680.
        \168\465 U.S. at 681-82. Note that, while the extent of benefit 
to religion was an important factor in earlier cases, it was usually 
balanced against the secular effect of the same practice rather than the 
religious effects of other practices.
        \169\465 U.S. at 683-84.
---------------------------------------------------------------------------

        Allegheny County was also decided by a 5-4 vote, Justice 
Blackmun writing the opinion of the Court on the creche issue, and

[[Page 1004]]
there being no opinion of the Court on the menorah issue.\170\ To the 
majority, the setting of the creche was distinguishable from that in 
Lynch. The creche stood alone on the center staircase of the county 
courthouse, bore a sign identifying it as the donation of a Roman 
Catholic group, and also had an angel holding a banner proclaiming 
``Gloria in Exclesis Deo.'' Nothing in the display ``detract[ed] from 
the creche's religious message,'' and the overall effect was to endorse 
that religious message.\171\ The menorah, on the other hand, was placed 
outside a government building alongside a Christmas tree and a sign 
saluting liberty, and bore no religious messages. To Justice Blackmun, 
this grouping merely recognized ``that both Christmas and Chanukah are 
part of the same winter-holiday season, which has attained a secular 
status'';\172\ to concurring Justice O'Connor, the display's ``message 
of pluralism'' did not endorse religion over nonreligion even though 
Chanukah is primarily a religious holiday and even though the menorah is 
a religious symbol.\173\ The dissenters, critical of the endorsement 
test proposed by Justice O'Connor and of the three-part Lemon test, 
would instead distill two principles from the Establishment Clause: 
``government may not coerce anyone to support or participate in any 
religion or its exercise; and it may not, in the guise of avoiding 
hostility or callous indifference, give direct benefits to religion in 
such a degree that it in fact `establishes a state religion or religious 
faith, or tends to do so.'''\174\

        \170\Justice O'Connor, who had concurred in Lynch, was the 
pivotal vote, joining the Lynch dissenters to form the majority in 
Allegheny County. Justices Scalia and Kennedy, not on the Court in 1984, 
replaced Chief Justice Burger and Justice Powell in voting to uphold the 
creche display; Justice Kennedy authored the dissenting opinion, joined 
by the other three.
        \171\492 U.S. at 598, 600.
        \172\Id. at 616.
        \173\Id. at 635.
        \174\Id. at 659.
---------------------------------------------------------------------------

        Miscellaneous.--In Larkin v. Grendel's Den,\175\ the Court held 
that the Establishment Clause is violated by a delegation of 
governmental decisionmaking to churches. At issue was a state statute 
permitting any church or school to block issuance of a liquor license to 
any establishment located within 500 feet of the church or school. While 
the statute had a permissible secular purpose of protecting churches and 
schools from the disruptions often associated with liquor 
establishments, the Court indicated that these purposes could be 
accomplished by other means, e.g. an outright ban on liquor outlets 
within a prescribed distance, or the vesting of discretionary authority 
in a governmental decisionmaker required to consider the views of 
affected parties. However, the

[[Page 1005]]
conferral of a veto authority on churches had a primary effect of 
advancing religion both because the delegation was standardless (thereby 
permitting a church to exercise the power to promote parochial 
interests), and because ``the mere appearance of a joint exercise of 
legislative authority by Church and State provides a significant 
symbolic benefit to religion in the minds of some.''\176\ Moreover, the 
Court determined, because the veto ``enmeshes churches in the processes 
of government,'' it represented an entanglement offensive to the ``core 
rationale underlying the Establishment Clause''--``[to prevent] `a 
fusion of governmental and religious functions.'''\177\

        \175\459 U.S. 116 (1982).
        \176\459 U.S. at 125-26. But cf. Marsh v. Chambers, 463 U.S. 783 
(1983), involving no explicit consideration of the possible symbolic 
implication of opening legislative sessions with prayers by paid 
chaplains.
        \177\459 U.S. at 126-27, quoting Abington, 374 U.S. 203, 222.
---------------------------------------------------------------------------
      FREE EXERCISE OF RELIGION

        ``The Free Exercise Clause . . . withdraws from legislative 
power, state and federal, the exertion of any restraint on the free 
exercise of religion. Its purpose is to secure religious liberty in the 
individual by prohibiting any invasions there by civil authority.''\178\ 
It bars ``governmental regulation of religious beliefs as such,''\179\ 
prohibiting misuse of secular governmental programs ``to impede the 
observance of one or all religions or . . . to discriminate invidiously 
between religions . . . even though the burden may be characterized as 
being only indirect.''\180\ Freedom of conscience is the basis of the 
free exercise clause, and government may not penalize or discriminate 
against an individual or a group of individuals because of their 
religious views nor may it compel persons to affirm any particular 
beliefs.\181\ Interpretation is complicated, however, by the fact that 
exercise of religion usually entails ritual or other practices that 
constitute ``conduct'' rather than pure ``belief.'' When it comes to 
protecting conduct as free exercise, the Court has been 
inconsistent.\182\ It has long been held that the Free Exercise

[[Page 1006]]
Clause does not necessarily prevent government from requiring the doing 
of some act or forbidding the doing of some act merely because religious 
beliefs underlie the conduct in question.\183\ What has changed over the 
years is the Court's willingness to hold that some religiously motivated 
conduct is protected from generally applicable prohibitions.

        \178\Abington School District v. Schempp, 374 U.S. 203, 222-23 
(1963).
        \179\Sherbert v. Verner, 374 U.S 398, 402 (1963) (emphasis in 
original).
        \180\Braunfeld v. Brown, 366 U.S. 599, 607 (1961).
        \181\Sherbert v. Verner, 374 U.S. 398, 402 (1963); Torcaso v. 
Watkins, 367 U.S. 488 (1961).
        \182\Academics as well as the Justices grapple with the extent 
to which religious practices as well as beliefs are protected by the 
Free Exercise Clause. For contrasting academic views of the origins and 
purposes of the Free Exercise Clause, compare McConnell, The Origins and 
Historical Understanding of Free Exercise of Religion, 103 Harv. L. Rev. 
1410 (1990) (concluding that constitutionally compelled exemptions from 
generally applicable laws are consistent with the Clause's origins in 
religious pluralism) with Marshall, The Case Against the 
Constitutionally Compelled Free Exercise Exemption, 40 Case W. Res. L. 
Rev. 357 (1989-90) (arguing that such exemptions establish an invalid 
preference for religious beliefs over non-religious beliefs).
        \183\E.g., Reynolds v. United States, 98 U.S. 145 (1879); 
Jacobson v. Massachusetts, 197 U.S. 11 (1905); Prince v. Massachusetts, 
321 U.S. 158 (1944); Braunfeld v. Brown, 366 U.S. 599 (1961); United 
States v. Lee, 455 U.S. 252 (1982); Employment Division v. Smith, 494 
U.S. 872 (1990).
---------------------------------------------------------------------------

        The relationship between the Free Exercise and Establishment 
Clauses varies with the expansiveness of interpretation of the two 
clauses. In a general sense both clauses proscribe governmental 
involvement with and interference in religious matters, but there is 
possible tension between a requirement of governmental neutrality 
derived from the Establishment Clause and a Free-Exercise-derived 
requirement that government accommodate some religious practices.\184\ 
So far, the Court has harmonized interpretation by denying that free-
exercise-mandated accommodations create establishment violations, and 
also by upholding some legislative accommodations not mandated by free 
exercise requirements. ``This Court has long recognized that government 
may (and sometimes must) accommodate religious practices and that it may 
do so without violating the Establishment Clause.''\185\ In holding that 
a state could not deny unemployment benefits to Sabbatarians who refused 
Saturday work, for example, the Court denied that it was ``fostering an 
`establishment' of the Seventh-Day Adventist religion, for the extension 
of unemployment benefits to Sabbatarians in common with Sunday 
worshippers reflects nothing more than the governmental obligation of 
neutrality in the face of religious differences, and does not represent 
that involvement of religious with secular institutions which it is the 
object of the Establishment Clause to forestall.''\186\ Legislation 
granting religious exemptions not held to

[[Page 1007]]
have been required by the Free Exercise Clause has also been upheld 
against Establishment Clause challenge,\187\ although it is also 
possible for legislation to go too far in promoting free exercise.\188\

        \184\``The Court has struggled to find a neutral course between 
the two Religion Clauses, both of which are cast in absolute terms, and 
either of which, if expanded to a logical extreme, would tend to clash 
with the other.'' Walz v. Tax Comm'n, 397 U.S. 668-69 (1970).
        \185\Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 144-45 
(1987). A similar accommodative approach was suggested in Walz: ``there 
is room for play in the joints productive of a benevolent neutrality 
which will permit religious exercise to exist without [governmental] 
sponsorship and without interference.'' 397 U.S. at 669.
        \186\Sherbert v. Verner, 374 U.S. 398, 409 (1963). Accord, 
Thomas v. Review Bd., 450 U.S. 707, 719-20 (1981). Dissenting in Thomas, 
Justice Rehnquist argued that Sherbert and Thomas created unacceptable 
tensions between the Establishment and Free Exercise Clauses, and that 
requiring the States to accommodate persons like Sherbert and Thomas 
because of their religious beliefs ran the risk of ``establishing'' 
religion under the Court's existing tests. He argued further, however, 
that less expansive interpretations of both clauses would eliminate this 
artificial tension. Thus, Justice Rehnquist would have interpreted the 
Free Exercise Clause as not requiring government to grant exemptions 
from general requirements that may burden religious exercise but that do 
not prohibit religious practices outright, and would have interpreted 
the Establishment Clause as not preventing government from voluntarily 
granting religious exemptions. 450 U.S. at 720-27. By 1990 these views 
had apparently gained ascendancy, Justice Scalia's opinion for the Court 
in the ``peyote'' case suggesting that accommodation should be left to 
the political process, i.e., that states could constitutionally provide 
exceptions in their drug laws for sacramental peyote use, even though 
such exceptions are not constitutionally required. Employment Div. v. 
Smith, 494 U.S. 872, 890 (1990).
        \187\See, e.g., Walz v. Tax Comm'n, 397 U.S. 664 (upholding 
property tax exemption for religious organizations); Corporation of the 
Presiding Bishop v. Amos, 483 U.S. 327 (1987) (upholding Civil Rights 
Act exemption allowing religious institutions to restrict hiring to 
members of religion); Gillette v. United States, 401 U.S. 437, 453-54 
(1971) (interpreting conscientious objection exemption from military 
service).
        \188\See, e.g., Committee for Pub. Educ. & Religious Liberty v. 
Nyquist, 413 U.S. 756, 788-89 (1973) (tuition reimbursement grants to 
parents of parochial school children violate Establishment Clause in 
spite of New York State's argument that program was designed to promote 
free exercise by enabling low-income parents to send children to church 
schools); Texas Monthly, Inc. v. Bullock, 489 U.S. 1 (1989) (state sales 
tax exemption for religious publications violates the Establishment 
Clause) (plurality opinion).
---------------------------------------------------------------------------

        The Belief-Conduct Distinction.--While the Court has 
consistently affirmed that the Free Exercise Clause protects religious 
beliefs, protection for religiously motivated conduct has waxed and 
waned over the years. The Free Exercise Clause ``embraces two concepts--
freedom to believe and freedom to act. The first is absolute, but in the 
nature of things, the second cannot be.''\189\ In its first free 
exercise case, involving the power of government to prohibit polygamy, 
the Court invoked a hard distinction between the two, saying that 
although laws ``cannot interfere with mere religious beliefs and 
opinions, they may with practices.''\190\ The rule thus propounded 
protected only belief, inasmuch as religiously motivated action was to 
be subjected to the police power of the state to the same extent as 
would similar action springing from other

[[Page 1008]]
motives. The Reynolds no-protection rule was applied in a number of 
cases,\191\ but later cases established that religiously grounded 
conduct is not always outside the protection of the free exercise 
clause.\192\ Instead, the Court began to balance the secular interest 
asserted by the government against the claim of religious liberty 
asserted by the person affected; only if the governmental interest was 
``compelling'' and if no alternative forms of regulation would serve 
that interest was the claimant required to yield.\193\ Thus, while 
freedom to engage in religious practices was not absolute, it was 
entitled to considerable protection.

        \189\Cantwell v. Connecticut, 310 U.S. 296, 304 (1940).
        \190\Reynolds v. United States, 98 U.S. 145, 166 (1878). ``Crime 
is not the less odious because sanctioned by what any particular sect 
may designate as `religion.''' Davis v. Beason, 133 U.S. 333, 345 
(1890). In another context, Justice Sutherland in United States v. 
Macintosh, 283 U.S. 605, 625 (1931), suggested a plenary governmental 
power to regulate action in denying that recognition of conscientious 
objection to military service was of a constitutional magnitude, saying 
that ``unqualified allegiance to the Nation and submission and obedience 
to the laws of the land, as well those made for war as those made for 
peace, are not inconsistent with the will of God.''
        \191\Jacobson v. Massachusetts, 197 U.S. 11 (1905) (compulsory 
vaccination); Prince v. Massachusetts 321 U.S. 158 (1944) (child labor); 
Cleveland v. United States, 329 U.S. 14 (1946) (polygamy). In Sherbert 
v. Verner, 374 U.S. 398, 403 (1963), Justice Brennan asserted that the 
``conduct or activities so regulated [in the cited cases] have 
invariably posed some substantial threat to public safety, peace or 
order.''
        \192\Sherbert v. Verner, 374 U.S. 398 (1963); Wisconsin v. 
Yoder, 406 U.S. 205 (1972); cf. Braunfeld v. Brown, 366 U.S. 599, 607 
(1961): ``[I]f the State regulates conduct by enacting a general law 
within its power, the purpose and effect of which is to advance the 
State's secular goals, the statute is valid despite its indirect burden 
on religious observance unless the State may accomplish its purpose by 
means which do not impose such a burden.''
        \193\Sherbert v. Verner, 374 U.S. 398, 403, 406-09 (1963). In 
Wisconsin v. Yoder, 406 U.S. 205 (1972), the Court recognized compelling 
state interests in provision of public education, but found insufficient 
evidence that those interests (preparing children for citizenship and 
for self-reliance) would be furthered by requiring Amish children to 
attend public schools beyond the eighth grade. Instead, the evidence 
showed that the Amish system of vocational education prepared their 
children for life in their self-sufficient communities.
---------------------------------------------------------------------------

        Recent cases evidence a narrowing of application of the 
compelling interest test, and a corresponding constriction on the 
freedom to engage in religiously motivated conduct. First, the Court 
purported to apply strict scrutiny, but upheld the governmental action 
anyhow. Next the Court held that the test is inappropriate in the 
contexts of military and prison discipline.\194\ Then, more importantly, 
the Court ruled in Employment Division v. Smith that ``if prohibiting 
the exercise of religion . . . is not the object . . . but merely the 
incidental effect of a generally applicable and otherwise valid 
provision, the First Amendment has not been offended.''\195\ Therefore, 
the Court concluded, the Free Exercise Clause does not prohibit a state 
from applying generally applicable criminal penalties to use of peyote 
in a religious ceremony, or from denying unemployment benefits to 
persons dismissed from their jobs because of religious ceremonial use of 
peyote. Accommodation of such religious practices must be found in ``the 
political process,'' the Court noted; statutory religious-practice 
exceptions are permissible, but

[[Page 1009]]
not ``constitutionally required.''\196\ The result is tantamount to a 
return to the Reynolds belief-conduct distinction.

        \194\Goldman v. Weinberger, 475 U.S. 503 (1986); O'Lone v. 
Estate of Shabazz, 482 U.S. 342 (1987).
        \195\494 U.S. 872, 878 (1990).
        \196\Id. at 890.
---------------------------------------------------------------------------

        The Mormon Cases.--The Court's first encounter with free 
exercise claims occurred in a series of cases in which the Federal 
Government and the territories moved against the Mormons because of 
their practice of polygamy. Actual prosecutions and convictions for 
bigamy presented little problem for the Court, inasmuch as it could 
distinguish between beliefs and acts.\197\ But the presence of large 
numbers of Mormons in some of the territories made convictions for 
bigamy difficult to obtain, and in 1882 Congress enacted a statute which 
barred ``bigamists,'' ``polygamists,'' and ``any person cohabiting with 
more than one woman'' from voting or serving on juries. The Court 
sustained the law, even as applied to persons entering the state prior 
to enactment of the original law prohibiting bigamy and to persons as to 
whom the statute of limitations had run.\198\ Subsequently, an act of a 
territorial legislature which required a prospective voter not only to 
swear that he was not a bigamist or polygamist but as well that ``I am 
not a member of any order, organization or association which teaches, 
advises, counsels or encourages its members, devotees or any other 
person to commit the crime of bigamy or polygamy . . . or which 
practices bigamy, polygamy or plural or celestial marriage as a 
doctrinal rite of such organization; that I do not and will not, 
publicly or privately, or in any manner whatever teach, advise, counsel 
or encourage any person to commit the crime of bigamy or polygamy . . . 
,'' was upheld in an opinion that condemned plural marriage and its 
advocacy as equal evils.\199\ And, finally, the Court sustained the 
revocation of the charter of the Mormon Church and confiscation of all 
church property not actually used for religious worship or for 
burial.\200\

        \197\Reynolds v. United States, 98 U.S. 145 (1879); cf. 
Cleveland v. United States, 329 U.S. 14 (1946) (no religious-belief 
defense to Mann Act prosecution for transporting a woman across state 
line for the ``immoral purpose'' of polygamy).
        \198\Murphy v. Ramsey, 114 U.S. 15 (1885).
        \199\Davis v. Beason, 133 U.S. 333 (1890). ``Bigamy and polygamy 
are crimes by the laws of all civilized and Christian countries. . . . 
To call their advocacy a tenet of religion is to offend the common sense 
of mankind. If they are crimes, then to teach, advise and counsel their 
practice is to aid in their commission, and such teaching and counseling 
are themselves criminal and proper subjects of punishment, as aiding and 
abetting crime are in all other cases.'' Id. at 341-42.
        \200\The Late Corporation of the Church of Jesus Christ of 
Latter-Day Saints v. United States, 136 U.S. 1 (1890). ``[T]he property 
of the said corporation . . . [is to be used to promote] the practice of 
polygamy--a crime against the laws, and abhorrent to the sentiments and 
feelings of the civilized world. . . . The organization of a community 
for the spread and practice of polygamy is, in a measure, a return to 
barbarism. It is contrary to the spirit of Christianity and of the 
civilization which Christianity had produced in the Western world.'' Id. 
at 48-49.

[[Page 1010]]


        The Jehovah's Witnesses Cases.--In contrast to the Mormons, the 
sect known as Jehovah's Witnesses, in many ways as unsettling to the 
conventional as the Mormons were,\201\ provoked from the Court a lengthy 
series of decisions\202\ expanding the rights of religious proselytizers 
and other advocates to utilize the streets and parks to broadcast their 
ideas, though the decisions may be based more squarely on the speech 
clause than on the free exercise clause. The leading case is Cantwell v. 
Connecticut.\203\ Three Jehovah's Witnesses were convicted under a 
statute which forbade the unlicensed soliciting of funds for religious 
or charitable purposes, and also under a general charge of breach of the 
peace. The solicitation count was voided as an infringement on religion 
because the issuing officer was authorized to inquire whether the 
applicant did have a religious cause and to decline a license if in his 
view the cause was not religious. Such power amounted to a previous 
restraint upon the exercise of religion and was invalid, the Court 
held.\204\ The breach of the peace count arose when the three accosted 
two Catholics in a strongly Catholic neighborhood and played them a 
phonograph record which grossly insulted the Christian religion in 
general and the Catholic Church in particular. The Court voided this 
count under the clear-and-present danger test, finding that the interest 
sought to be upheld by the State did not justify the suppression of 
religious views that simply annoyed listeners.\205\

        \201\For recent cases dealing with other religious groups 
discomfiting to the mainstream, see Heffron v. ISKCON, 452 U.S. 640 
(1981) (Hare Krishnas); Larson v. Valente, 456 U.S. 228 (1982) 
(Unification Church).
        \202\Most of the cases are collected and categorized by Justice 
Frankfurter in Niemotko v. Maryland, 340 U.S. 268, 273 (1951) 
(concurring opinion).
        \203\310 U.S. 296 (1940).
        \204\Id. at 303-07. ``The freedom to act must have appropriate 
definition to preserve the enforcement of that protection [of society]. 
In every case the power to regulate must be so exercised as not, in 
attaining a permissible end, unduly to infringe the protected freedom. 
. . . [A] State may by general and non-discriminatory legislation 
regulate the times, the places, and the manner of soliciting upon its 
streets, and of holding meetings thereon; and may in other respects 
safeguard the peace, good order and comfort of the community, without 
unconstitutionally invading the liberties protected by the Fourteenth 
Amendment.'' Id. at 304.
        \205\Id. at 307-11. ``In the realm of religious faith, and in 
that of political belief, sharp differences arise. In both fields the 
tenets of one man may seem the rankest error to his neighbor. To 
persuade others to his own point of view, the pleader, as we know, at 
times, resorts to exaggeration, to vilification of men who have been, or 
are, prominent in church or state, and even to false statement. But the 
people of this nation have ordained in the light of history, that, in 
spite of the probabilities of excesses and abuses, these liberties are 
in the long view, essential to enlightened opinion and right conduct on 
the part of the citizens of a democracy.'' Id. at 310.
---------------------------------------------------------------------------

        There followed a series of sometimes conflicting decisions. At 
first, the Court sustained the application of a non-discriminatory li

[[Page 1011]]
cense fee to vendors of religious books and pamphlets,\206\ but eleven 
months later it vacated its former decision and struck down such 
fees.\207\ A city ordinance making it unlawful for anyone distributing 
literature to ring a doorbell or otherwise summon the dwellers of a 
residence to the door to receive such literature was held in violation 
of the First Amendment when applied to distributors of leaflets 
advertising a religious meeting.\208\ But a state child labor law was 
held to be validly applied to punish the guardian of a nine-year old 
child who permitted her to engage in ``preaching work'' and the sale of 
religious publications after hours.\209\ The Court decided a number of 
cases involving meetings and rallies in public parks and other public 
places by upholding licensing and permit requirements which were 
premised on nondiscriminatory ``times, places, and manners'' terms and 
which did not seek to regulate the content of the religious message to 
be communicated.\210\

        \206\Jones v. Opelika, 316 U.S. 584 (1942).
        \207\Jones v. Opelika, 319 U.S. 103 (1943); Murdock v. 
Pennsylvania, 319 U.S. 105 (1943). See also Follett v. McCormick, 321 
U.S. 573 (1944) (invalidating a flat licensing fee for booksellers). 
Murdock and Follett were distinguished in Jimmy Swaggart Ministries v. 
California Bd. of Equalization, 493 U.S. 378, 389 (1990) as applying 
``only where a flat license fee operates as a prior restraint''; upheld 
in Swaggart was application of a general sales and use tax to sales of 
religious publications.
        \208\Martin v. City of Struthers, 319 U.S. 141 (1943). But cf. 
Breard v. City of Alexandria, 341 U.S. 622 (1951) (similar ordinance 
sustained in commercial solicitation context).
        \209\Prince v. Massachusetts, 321 U.S. 158 (1944).
        \210\E.g., Niemotko v. Maryland, 340 U.S. 268 (1951); Kunz v. 
New York, 340 U.S. 290 (1951); Fowler v. Rhode Island, 345 U.S. 67 
(1953); Poulos v. New Hampshire, 345 U.S. 395 (1953). See also Larson v. 
Valente, 456 U.S. 228 (1982) (solicitation on state fair ground by 
Unification Church members).
---------------------------------------------------------------------------

        Free Exercise Exemption From General Governmental 
Requirements.--As described above, the Court gradually abandoned its 
strict belief-conduct distinction, and developed a balancing test to 
determine when a uniform, nondiscriminatory requirement by government 
mandating action or nonaction by citizens must allow exceptions for 
citizens whose religious scruples forbid compliance. Then, in 1990, the 
Court reversed direction in Employment Division v. Smith,\211\ confining 
application of the ``compelling interest'' test to a narrow category of 
cases.

        \211\494 U.S. 872 (1990).
---------------------------------------------------------------------------

        In early cases the Court sustained the power of a State to 
exclude from its schools children who because of their religious beliefs 
would not participate in the salute to the flag,\212\ only within a 
short time to reverse itself and condemn such exclusions, but on

[[Page 1012]]
speech grounds rather than religious grounds.\213\ Also, the Court 
seemed to be clearly of the view that government could compel those 
persons religiously opposed to bearing arms to take an oath to do so or 
to receive training to do so,\214\ only in later cases by its statutory 
resolution to cast doubt on this resolution,\215\ and still more 
recently to leave the whole matter in some doubt.\216\

        \212\Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940).
        \213\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 
(1943). On the same day, the Court held that a State may not forbid the 
distribution of literature urging and advising on religious grounds that 
citizens refrain from saluting the flag. Taylor v. Mississippi, 319 U.S. 
583 (1943).
        \214\See United States v. Schwimmer, 279 U.S. 644 (1929); United 
States v. Macintosh, 283 U.S. 605 (1931); and United States v. Bland, 
283 U.S. 636 (1931) (all interpreting the naturalization law as denying 
citizenship to a conscientious objector who would not swear to bear arms 
in defense of the country), all three of which were overruled by 
Girouard v. United States, 328 U.S. 61 (1946), on strictly statutory 
grounds. See also Hamilton v. Board of Regents, 293 U.S. 245 (1934) 
(upholding expulsion from state university for a religiously based 
refusal to take a required course in military training); In re Summers, 
325 U.S. 561 (1945) (upholding refusal to admit applicant to bar because 
as conscientious objector he could not take required oath).
        \215\United States v. Seeger, 380 U.S. 163 (1965); see id. at 
188 (Justice Douglas concurring); Welsh v. United States, 398 U.S. 333 
(1970); and see id. at 344 (Justice Harlan concurring).
        \216\Gillette v. United States, 401 U.S. 437 (1971) (holding 
that secular considerations overbalanced free exercise infringement of 
religious beliefs of objectors to particular wars).
---------------------------------------------------------------------------

        Braunfeld v. Brown\217\ held that the free exercise clause did 
not mandate an exemption from Sunday Closing Laws for an Orthodox Jewish 
merchant who observed Saturday as the Sabbath and was thereby required 
to be closed two days of the week rather than one. This requirement did 
not prohibit any religious practices, the Court's plurality pointed out, 
but merely regulated secular activity in a manner making religious 
exercise more expensive.\218\ ``If the State regulates conduct by 
enacting a general law within its power, the purpose and effect of which 
is to advance the State's secular goals, the statute is valid despite 
its indirect burden on religious observance unless the State may 
accomplish its purpose by means which do not impose such a 
burden.''\219\

        \217\366 U.S. 599 (1961). On Sunday Closing Laws and the 
establishment clause, see supra, pp. 987-988.
        \218\366 U.S. at 605-06.
        \219\Id. at 607 (plurality opinion). The concurrence balanced 
the economic disadvantage suffered by the Sabbatarians against the 
important interest of the State in securing its day of rest regulation. 
McGowan v. Maryland, 366 U.S. at 512-22 (1961). Three Justices 
dissented. Id. at 561 (Justice Douglas); Braunfeld v. Brown, 366 U.S. at 
610 (Justice Brennan), 616 (Justice Stewart).
---------------------------------------------------------------------------

        Within two years the Court in Sherbert v. Verner\220\ extended 
the line of analysis to require a religious exemption from a secular, 
regulatory piece of economic legislation. Sherbert was disqualified from 
receiving unemployment compensation because, as a Seventh

[[Page 1013]]
Day Adventist, she would not accept Saturday work; according to state 
officials, this meant she was not complying with the statutory 
requirement to stand ready to accept suitable employment. This denial of 
benefits could be upheld, the Court said, only if ``her disqualification 
as a beneficiary represents no infringement by the State of her 
constitutional rights of free exercise, or [if] any incidental burden on 
the free exercise of appellant's religions may be justified by a 
`compelling state interest in the regulation of a subject within the 
State's constitutional power to regulate . . .'''\221\ First, the 
disqualification was held to impose a burden on the free exercise of 
Sherbert's religion; it was an indirect burden and it did not impose a 
criminal sanction on a religious practice, but the disqualification 
derived solely from her practice of her religion and constituted a 
compulsion upon her to forgo that practice.\222\ Second, there was no 
compelling interest demonstrated by the State. The only interest 
asserted was the prevention of the possibility of fraudulent claims, but 
that was merely a bare assertion. Even if there was a showing of 
demonstrable danger, ``it would plainly be incumbent upon the appellees 
to demonstrate that no alternative forms of regulation would combat such 
abuses without infringing First Amendment rights.''\223\

        \220\374 U.S. 398 (1963).
        \221\Id. at 403, quoting NAACP v. Button, 371 U.S. 415, 438 
(1963).
        \222\Id. at 403-06.
        \223\Id. at 407. Braunfeld was distinguished because of ``a 
countervailing factor which finds no equivalent in the instant case--a 
strong state interest in providing one uniform day of rest for all 
workers.'' That secular objective could be achieved, the Court found, 
only by declaring Sunday to be that day of rest. Requiring exemptions 
for Sabbatarians, while theoretically possible, appeared to present an 
administrative problem of such magnitude, or to afford the exempted 
class so great a competitive advantage, that such a requirement would 
have rendered the entire statutory scheme unworkable. Id. at 408-09. 
Other Justices thought that Sherbert overruled Braunfeld. Id. at 413, 
417 (Justice Stewart concurring), 418 (Justice Harlan and White 
dissenting).
---------------------------------------------------------------------------

        Sherbert was reaffirmed and applied in subsequent cases 
involving denial of unemployment benefits. Thomas v. Review Board\224\ 
involved a Jehovah's Witness who quit his job when his employer 
transferred him from a department making items for industrial use to a 
department making parts for military equipment. While his belief that 
his religion proscribed work on war materials was not shared by all 
other Jehovah's Witnesses, the Court held that it was inappropriate to 
inquire into the validity of beliefs asserted to be religious so long as 
the claims were made in good faith (and the beliefs were at least 
arguably religious). The same result was reached in a 1987 case, the 
fact that the employee's religious conversion rather than a job 
reassignment had created the conflict between work and Sabbath 
observance not being considered mate

[[Page 1014]]
rial to the determination that free exercise rights had been burdened by 
the denial of unemployment compensation.\225\ Also, a state may not deny 
unemployment benefits solely because refusal to work on the Sabbath was 
based on sincere religious beliefs held independently of membership in 
any established religious church or sect.\226\

        \224\450 U.S. 707 (1981).
        \225\Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136 (1987).
        \226\Frazee v. Illinois Dep't of Employment Security, 489 U.S. 
829 (1989). Cf. United States v. Seeger, 380 U.S. 163 (1965) 
(interpreting the religious objection exemption from military service as 
encompassing a broad range of formal and personal religious beliefs).
---------------------------------------------------------------------------

        The Court applied the Sherbert balancing test in several areas 
outside of unemployment compensation. The first two such cases involved 
the Amish, whose religion requires them to lead a simple life of labor 
and worship in a tight-knit and self-reliant community largely insulated 
from the materialism and other distractions of modern life. Wisconsin v. 
Yoder\227\ held that a state compulsory attendance law, as applied to 
require Amish children to attend ninth and tenth grades of public 
schools in contravention of Amish religious beliefs, violated the Free 
Exercise Clause. The Court first determined that the beliefs of the 
Amish were indeed religiously based and of great antiquity.\228\ Next, 
the Court rejected the State's arguments that the Free Exercise Clause 
extends no protection because the case involved ``action'' or 
``conduct'' rather than belief, and because the regulation, neutral on 
its face, did not single out religion.\229\ Instead, the Court went on 
to analyze whether a ``compelling'' governmental interest required such 
``grave interference'' with Amish belief and practices.\230\ The 
governmental interest was not the general provision of education, 
inasmuch as the State and the Amish were in agreement on education 
through the first eight grades and since the Amish provided their 
children with additional education of a primarily vocational nature. The 
State's interest was really that of providing two additional years of 
public schooling. Nothing in the record, felt the Court, showed that 
this interest outweighed the great harm which it would do to traditional 
Amish religious beliefs to impose the compulsory ninth and tenth grade 
attendance.\231\

        \227\406 U.S. 205 (1972).
        \228\Id. at 215-19. Why the Court felt impelled to make these 
points is unclear, since it is settled that it is improper for courts to 
inquire into the interpretation of religious belief. E.g., United States 
v. Lee, 455 U.S. 252, 257 (1982).
        \229\Id. at 219-21.
        \230\Id. at 221.
        \231\Id. at 221-29.
---------------------------------------------------------------------------

        But in recent years the Court's decisions evidenced increasing 
discontent with the compelling interest test. In several cases the

[[Page 1015]]
Court purported to apply strict scrutiny but nonetheless upheld the 
governmental action in question. In United States v. Lee,\232\ for 
example, the Court denied the Amish exemption from compulsory 
participation in the Social Security system. The objection was that 
payment of taxes by Amish employers and employees and the receipt of 
public financial assistance were forbidden by their religious beliefs. 
Accepting that this was true, the Court nonetheless held that the 
governmental interest was compelling and therefore sufficient to justify 
the burdening of religious beliefs.\233\ Compulsory payment of taxes was 
necessary for the vitality of the system; either voluntary participation 
or a pattern of exceptions would undermine its soundness and make the 
program difficult to administer.

        \232\455 U.S. 252 (1982).
        \233\The Court's formulation was whether the limitation on 
religious exercise was ``essential to accomplish an overriding 
governmental interest.'' 455 U.S. at 257-58. Accord, Hernandez v. 
Commissioner, 490 U.S. 680, 699-700 (1989) (any burden on free exercise 
imposed by disallowance of a tax deduction was ``justified by the `broad 
public interest in maintaining a sound tax system' free of `myriad 
exceptions flowing from a wide variety of religious beliefs''').
---------------------------------------------------------------------------

        ``A compelling governmental interest'' was also found to 
outweigh free exercise interests in Bob Jones University v. United 
States,\234\ in which the Court upheld the I.R.S.'s denial of tax 
exemptions to church-run colleges whose racially discriminatory 
admissions policies derived from religious beliefs. The Federal 
Government's ``fundamental, overriding interest in eradicating racial 
discrimination in education''--found to be encompassed in common law 
standards of ``charity'' underlying conferral of the tax exemption on 
``charitable'' institutions--``substantially outweighs'' the burden on 
free exercise. Nor could the schools' free exercise interests be 
accommodated by less restrictive means.\235\

        \234\461 U.S. 574 (1983).
        \235\461 U.S. at 604.
---------------------------------------------------------------------------

        In other cases the Court found reasons not to apply compelling 
interest analysis. Religiously motivated speech, like other speech, can 
be subjected to reasonable time, place, or manner regulation serving a 
``substantial'' rather than ``compelling'' governmental interest.\236\ 
Sherbert's threshold test, inquiring ``whether government has placed a 
substantial burden on the observation of a central religious belief or 
practice,''\237\ eliminates other issues. As long as a particular 
religion does not proscribe the payment of taxes (as was the case with 
the Amish in Lee), the Court has denied that there 

        \236\Heffron v. ISKCON, 452 U.S. 640 (1981). Requiring Krishnas 
to solicit at fixed booth sites on county fair grounds is a valid time, 
place, and manner regulation, although, as the Court acknowledged, id. 
at 652, peripatetic solicitation was an element of Krishna religious 
rites.
        \237\As restated in Hernandez v. Commissioner, 490 U.S. 680, 699 
(1989).

---------------------------------------------------------------------------

[[Page 1016]]


    is any constitutionally significant burden resulting from 
    ``imposition of a generally applicable tax [that] merely decreases 
    the amount of money [adherents] have to spend on [their] religious 
    activities.''\238\ The one caveat the Court left--that a generally 
    applicable tax might be so onerous as to ``effectively choke off an 
    adherent's religious practices''\239\--may be a moot point in light 
    of the Court's general ruling in Employment Division v. Smith, 
    discussed below.


        \238\Jimmy Swaggart Ministries v. California Bd. of 
Equalization, 493 U.S. 378, 391 (1990). See also Tony and Susan Alamo 
Found. v. Secretary of Labor, 471 U.S. 290 (1985) (the Court failing to 
perceive how application of minimum wage and overtime requirements would 
burden free exercise rights of employees of a religious foundation, 
there being no assertion that the amount of compensation was a matter of 
religious import); and Hernandez v. Commissioner, 490 U.S. 680 (1989) 
(questioning but not deciding whether any burden was imposed by 
administrative disallowal of deduction for payments deemed to be for 
commercial rather than religious or charitable purposes).
        \239\Jimmy Swaggart Ministries, 493 U.S. at 392.
---------------------------------------------------------------------------

        The Court also drew a distinction between governmental 
regulation of individual conduct, on the one hand, and restraint of 
governmental conduct as a result of individuals' religious beliefs, on 
the other. Sherbert's compelling interest test has been held 
inapplicable in cases viewed as involving attempts by individuals to 
alter governmental actions rather than attempts by government to 
restrict religious practices. Emphasizing the absence of coercion on 
religious adherents, the Court in Lyng v. Northwest Indian Cemetery 
Protective Ass'n\240\ held that the Forest Service, even absent a 
compelling justification, could construct a road through a portion of a 
national forest held sacred and used by Indians in religious 
observances. The Court distinguished between governmental actions having 
the indirect effect of frustrating religious practices and those 
actually prohibiting religious belief or conduct: ```the Free Exercise 
Clause is written in terms of what the government cannot do to the 
individual, not in terms of what the individual can exact from the 
government.'''\241\ Similarly, even a sincerely held religious belief 
that assignment of a social security number would rob a child of her 
soul was held insufficient to bar the government from using the number 
for purposes of its own recordkeeping.\242\ It mattered not how easily 
the government could accommodate the religious beliefs or practices (an 
exemption from the social security number requirement might have been 
granted with only slight impact on the government's recordkeeping 
capabilities), since the na

[[Page 1017]]
ture of the governmental actions did not implicate free exercise 
protections.\243\

        \240\485 U.S. 439 (1988).
        \241\Id. at 451, quoting Sherbert v. Verner, 374 U.S. 398, 412 
(1963) (Douglas, J., concurring).
        \242\Bowen v. Roy, 476 U.S. 693 (1986).
        \243\``In neither case . . . would the affected individuals be 
coerced by the Government's action into violating their religious 
beliefs; nor would either governmental action penalize religious 
activity.'' Lyng, 485 U.S. at 449.
---------------------------------------------------------------------------

        Compelling interest analysis is also wholly inapplicable in the 
context of military rules and regulations, where First Amendment review 
``is far more deferential than . . . review of similar laws or 
regulations designed for civilian society.''\244\ Thus the Court did not 
question the decision of military authorities to apply uniform dress 
code standards to prohibit the wearing of a yarmulke by an officer 
compelled by his Orthodox Jewish religious beliefs to wear the 
yarmulke.\245\

        \244\Goldman v. Weinberger, 475 U.S. 503, 507 (1986).
        \245\Congress reacted swiftly by enacting a provision allowing 
military personnel to wear religious apparel while in uniform, subject 
to exceptions to be made by the Secretary of the relevant military 
department for circumstances in which the apparel would interfere with 
performance of military duties or would not be ``neat and 
conservative.'' Pub. L. 100-180, Sec. 508(a)(2), 101 Stat. 1086 (1987); 
10 U.S.C. Sec. 774.
---------------------------------------------------------------------------

        A high degree of deference is also due decisions of prison 
administrators having the effect of restricting religious exercise by 
inmates. The general rule is that prison regulations impinging on 
exercise of constitutional rights by inmates are ```valid if . . . 
reasonably related to legitimate penological interests.'''\246\ Thus 
because general prison rules requiring a particular category of inmates 
to work outside of buildings where religious services were held, and 
prohibiting return to the buildings during the work day, could be viewed 
as reasonably related to legitimate penological concerns of security and 
order, no exemption was required to permit Muslim inmates to participate 
in Jumu'ah, the core ceremony of their religion.\247\ The fact that the 
inmates were left with no alternative means of attending Jumu'ah was not 
dispositive, the Court being ``unwilling to hold that prison officials 
are required by the Constitution to sacrifice legitimate penological 
objectives to that end.''\248\

        \246\O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987) 
(quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).
        \247\O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987).
        \248\Id. at 351-52 (also suggesting that the ability of the 
inmates to engage in other activities required by their faith, e.g. 
individual prayer and observance of Ramadan, rendered the restriction 
reasonable).
---------------------------------------------------------------------------

        Finally, in Employment Division v. Smith\249\ the Court 
indicated that the compelling interest test may apply only in the field 
of unemployment compensation, and in any event does not apply to require 
exemptions from generally applicable criminal laws. Criminal laws are 
``generally applicable'' when they apply across

[[Page 1018]]
the board regardless of the religious motivation of the prohibited 
conduct, and are ``not specifically directed at . . . religious 
practices.''\250\ The unemployment compensation statute at issue in 
Sherbert was peculiarly suited to application of a balancing test 
because denial of benefits required a finding that an applicant had 
refused work ``without good cause.'' Sherbert and other unemployment 
compensation cases thus ``stand for the proposition that where the State 
has in place a system of individual exemptions, it may not refuse to 
extend that system to cases of `religious hardship' without compelling 
reason.''\251\ Wisconsin v. Yoder and other decisions holding ``that the 
First Amendment bars application of a neutral, generally applicable law 
to religiously motivated action'' were distinguished as involving ``not 
the Free Exercise Clause alone, but the Free Exercise Clause in 
conjunction with other constitutional protections'' such as free speech 
or ``parental rights.''\252\ Except in the relatively uncommon 
circumstance when a statute calls for individualized consideration, 
then, the Free Exercise Clause affords no basis for exemption from a 
``neutral, generally applicable law.'' As the Court concluded in Smith, 
accommodation for religious practices incompatible with general 
requirements must ordinarily be found in ``the political process.''\253\

        \249\494 U.S. 872 (1990) (holding that state may apply criminal 
penalties to use of peyote in a religious ceremony, and may deny 
unemployment benefits to persons dismissed from their jobs because of 
religiously inspired use of peyote).
        \250\Id. at 878.
        \251\Id. at 884.
        \252\Id. at 881.
        \253\Id. at 890.
---------------------------------------------------------------------------

        The ramifications of Smith are potentially widespread. The Court 
has apparently returned to a belief-conduct dichotomy under which 
religiously motivated conduct is not entitled to special protection. 
Laws may not single out religiously motivated conduct for adverse 
treatment, but formally neutral laws of general applicability may 
regulate religious conduct (along with other conduct) regardless of the 
adverse or prohibitory effects on religious exercise. Similar rules 
govern taxation. Under the Court's rulings in Smith and Swaggart, 
religious exemptions from most taxes are a matter of legislative grace 
rather than constitutional command, since most important taxes (e.g., 
income, property, sales and use) satisfy the criteria of formal 
neutrality and general applicability, and are not license fees that can 
be viewed as prior restraints on expression.\254\ The result is equal 
protection, but not substantive protection, for

[[Page 1019]]
religious exercise.\255\ The Court's approach also accords less 
protection to religiously-based conduct than is accorded expressive 
conduct that implicates speech but not religious values.\256\ On the 
practical side, relegation of free exercise claims to the political 
process may, as concurring Justice O'Connor warned, result in less 
protection for small, unpopular religious sects.\257\

        \254\This latter condition derives from the fact that the Court 
in Swaggart distinguished earlier decisions by characterizing them as 
applying only to flat license fees. See n., supra. See also Laycock, The 
Remnants of Free Exercise, 1990 Sup. Ct. Rev. 1, 39-41.
        \255\Justice O'Connor, concurring in Smith, argued that ``the 
Free Exercise Clause protects values distinct from those protected by 
the Equal Protection Clause.'' 494 U.S. at 901.
        \256\Although neutral laws affecting expressive conduct are not 
measured by a ``compelling interest'' test, they are ``subject to a 
balancing, rather than categorical, approach.'' Smith, 494 U.S. at 902 
(O'Connor, J., concurring).
        \257\Id. at 1613.
---------------------------------------------------------------------------

        Religious Test Oaths.--However the Court has been divided in 
dealing with religiously-based conduct and governmental compulsion of 
action or nonaction, it was unanimous in voiding a state constitutional 
provision which required a notary public, as a condition of perfecting 
his appointment, to declare his belief in the existence of God. The 
First Amendment, considered with the religious oath provision of Article 
VI, makes it impossible ``for government, state or federal, to restore 
the historically and constitutionally discredited policy of probing 
religious beliefs by test oaths or limiting public offices to persons 
who have, or perhaps more properly, profess to have, a belief in some 
particular kind of religious concept.''\258\

        \258\Torcaso v. Watkins, 367 U.S. 488, 494 (1961).
---------------------------------------------------------------------------

        Religious Disqualification.--Unanimously, but with great 
differences of approach, the Court declared invalid a Tennessee statute 
barring ministers and priests from service in a specially called state 
constitutional convention.\259\ The Court's decision necessarily implied 
that the constitutional provision on which the statute was based, 
barring ministers and priests from service as state legislators, was 
also invalid.

        \259\McDaniel v. Paty, 435 U.S. 618 (1978). The plurality 
opinion by Chief Justice Burger, joined by Justices Powell, Rehnquist, 
and Stevens, found the case governed by Sherbert v. Verner's strict 
scrutiny test. The State had failed to show that its view of the dangers 
of clergy participation in the political process had any validity; 
Torcaso v. Watkins was distinguished because the State was acting on the 
status of being a clergyman rather than on one's beliefs. Justice 
Brennan, joined by Justice Marshall, found Torcaso controlling because 
imposing a restriction upon one's status as a religious person did 
penalize his religious belief, his freedom to profess or practice that 
belief. Id. at 629. Justice Stewart also found Torcaso dispositive, id. 
at 642, and Justice White found an equal protection violation because of 
the restraint upon seeking political office. Id. at 643.



[[Page 1020]]

                             FIRST AMENDMENT

                         RELIGION AND EXPRESSION
 
                 FREEDOM OF EXPRESSION--SPEECH AND PRESS


      Adoption and the Common Law Background

        Madison's version of the speech and press clauses, introduced in 
the House of Representatives on June 8, 1789, provided: ``The people 
shall not be deprived or abridged of their right to speak, to write, or 
to publish their sentiments; and the freedom of the press, as one of the 
great bulwarks of liberty, shall be inviolable.''\1\ The special 
committee rewrote the language to some extent, adding other provisions 
from Madison's draft, to make it read: ``The freedom of speech and of 
the press, and the right of the people peaceably to assemble and consult 
for their common good, and to apply to the Government for redress of 
grievances, shall not be infringed.''\2\ In this form it went to the 
Senate, which rewrote it to read: ``That Congress shall make no law 
abridging the freedom of speech, or of the press, or the right of the 
people peaceably to assemble and consult for their common good, and to 
petition the government for a redress of grievances.''\3\ Subsequently, 
the religion clauses and these clauses were combined by the Senate.\4\ 
The final language was agreed upon in conference.

        \1\1 Annals of Congress 434 (1789). Madison had also proposed 
language limiting the power of the States in a number of respects, 
including a guarantee of freedom of the press, Id. at 435. Although 
passed by the House, the amendment was defeated by the Senate, supra, 
p.957.
        \2\Id. at 731 (August 15, 1789).
        \3\The Bill of Rights: A Documentary History 1148-49 (B. 
Schwartz ed. 1971).
        \4\Id. at 1153.
---------------------------------------------------------------------------

        Debate in the House is unenlightening with regard to the meaning 
the Members ascribed to the speech and press clause and there is no 
record of debate in the Senate.\5\ In the course of debate, Madison 
warned against the dangers which would arise ``from discussing and 
proposing abstract propositions, of which the judgment may not be 
convinced. I venture to say, that if we confine ourselves to an 
enumeration of simple, acknowledged principles, the ratification will 
meet with but little difficulty.''\6\ That the ``simple, acknowledged 
principles'' embodied in the First Amendment have occasioned controversy 
without end both in the courts and out should alert one to the 
difficulties latent in such spare language. Insofar as there is likely 
to have been a consensus, it was no doubt the common law view as 
expressed by Blackstone. ``The liberty of the

[[Page 1021]]
press is indeed essential to the nature of a free state; but this 
consists in laying no previous restraints upon publications, and not in 
freedom from censure for criminal matter when published. Every freeman 
has an undoubted right to lay what sentiments he pleases before the 
public; to forbid this, is to destroy the freedom of the press: but if 
he publishes what is improper, mischievous, or illegal, he must take the 
consequences of his own temerity. To subject the press to the 
restrictive power of a licenser, as was formerly done, both before and 
since the Revolution, is to subject all freedom of sentiment to the 
prejudices of one man, and make him the arbitrary and infallible judge 
of all controverted points in learning, religion and government. But to 
punish as the law does at present any dangerous or offensive writings, 
which, when published, shall on a fair and impartial trial be adjudged 
of a pernicious tendency, is necessary for the preservation of peace and 
good order, of government and religion, the only solid foundations of 
civil liberty. Thus, the will of individuals is still left free: the 
abuse only of that free will is the object of legal punishment. Neither 
is any restraint hereby laid upon freedom of thought or inquiry; liberty 
of private sentiment is still left; the disseminating, or making public, 
of bad sentiments, destructive to the ends of society, is the crime 
which society corrects.''\7\

        \5\The House debate insofar as it touched upon this amendment 
was concerned almost exclusively with a motion to strike the right to 
assemble and an amendment to add a right of the people to instruct their 
Representatives. 1 Annals of Congress 731-49 (August 15, 1789). There 
are no records of debates in the States on ratification.
        \6\Id. at 738.
        \7\4 W. Blackstone's Commentaries on the Laws of England 151-52 
(T. Cooley 2d rev. ed. 1872). See 3 J. Story, Commentaries on the 
Constitution of the United States 1874-86 (Boston: 1833). The most 
comprehensive effort to assess theory and practice in the period prior 
to and immediately following adoption of the Amendment is L. Levy, 
Legacy of Suppression: Freedom of Speech and Press in Early American 
History (1960), which generally concluded that the Blackstonian view was 
the prevailing one at the time and probably the understanding of those 
who drafted, voted for, and ratified the Amendment.
---------------------------------------------------------------------------

        Whatever the general unanimity on this proposition at the time 
of the proposal of and ratification of the First Amendment,\8\

[[Page 1022]]
it appears that there emerged in the course of the Jeffersonian 
counterattack on the Sedition Act\9\ and the use by the Adams 
Administration of the Act to prosecute its political opponents,\10\ 
something of a libertarian theory of freedom of speech and press,\11\ 
which, however much the Jeffersonians may have departed from it upon 
assuming power,\12\ was to blossom into the theory undergirding Supreme 
Court First Amendment jurisprudence in modern times. Full acceptance of 
the theory that the Amendment operates not only to bar most prior 
restraints of expression but subsequent punishment of all but a narrow 
range of expression, in political discourse and indeed in all fields of 
expression, dates from a quite recent period, although the Court's 
movement toward that position began in its consideration of limitations 
on speech and press in the period following World War I.\13\ Thus, in 
1907, Justice Holmes

[[Page 1023]]
could observe that even if the Fourteenth Amendment embodied 
prohibitions similar to the First Amendment, ``still we should be far 
from the conclusion that the plaintiff in error would have us reach. In 
the first place, the main purpose of such constitutional provisions is 
`to prevent all such previous restraints upon publications as had been 
practiced by other governments,' and they do not prevent the subsequent 
punishment of such as may be deemed contrary to the public welfare . 
. . . The preliminary freedom extends as well to the false as to the 
true; the subsequent punishment may extend as well to the true as to the 
false. This was the law of criminal libel apart from statute in most 
cases, if not in all.''\14\ But as Justice Holmes also observed, 
``[t]here is no constitutional right to have all general propositions of 
law once adopted remain unchanged.''\15\

        \8\It would appear that Madison advanced libertarian views 
earlier than his Jeffersonian compatriots, as witness his leadership of 
a move to refuse officially to concur in Washington's condemnation of 
``[c]ertain self-created societies,'' by which the President meant 
political clubs supporting the French Revolution, and his success in 
deflecting the Federalist intention to censure such societies. I. Brant, 
James Madison--Father of the Constitution 1787-1800, 416-20 (1950). ``If 
we advert to the nature of republican government,'' Madison told the 
House, ``we shall find that the censorial power is in the people over 
the government, and not in the government over the people.'' 4 Annals of 
Congress 934 (1794). On the other hand, the early Madison, while a 
member of his county's committee on public safety, had enthusiastically 
promoted prosecution of Loyalist speakers and the burning of their 
pamphlets during the Revolutionary period. 1 Papers of James Madison 
147, 161-62, 190-92 (W. Hutchinson & W. Rachal eds. 1962). There seems 
little doubt that Jefferson held to the Blackstonian view. Writing to 
Madison in 1788, he said: ``A declaration that the federal government 
will never restrain the presses from printing anything they please, will 
not take away the liability of the printers for false facts printed.'' 
13 Papers of Thomas Jefferson 442 (J. Boyd ed. 1955). Commenting a year 
later to Madison on his proposed amendment, Jefferson suggested that the 
free speech-free press clause might read something like: ``The people 
shall not be deprived or abridged of their right to speak, to write or 
otherwise to publish anything but false facts affecting injuriously the 
life, liberty, property, or reputation of others or affecting the peace 
of the confederacy with foreign nations.'' 15 Papers, supra, at 367.
        \9\The Act, Ch. 74, 1 Stat. 596 (1798), punished anyone who 
would ``write, print, utter or publish . . . any false, scandalous and 
malicious writing or writings against the government of the United 
States, or either house of the Congress of the United States, or the 
President of the United States, with intent to defame the said 
government, or either house of the said Congress, or the said President, 
or to bring them, or either of them, into contempt or disrepute.'' See 
J. Smith, Freedom's Fetters--The Alien and Sedition Laws and American 
Civil Liberties (1956).
        \10\Id. at 159 et seq.
        \11\L. Levy, Legacy of Suppression: Freedom of Speech and Press 
in Early American History, ch. 6 (Cambridge, 1960); New York Times Co. 
v. Sullivan, 376 U.S. 254, 273-76 (1964). But compare L. Levy, Emergence 
of a Free Press (1985), a revised and enlarged edition of Legacy of 
Suppression, in which Professor Levy modifies his earlier views, arguing 
that while the intention of the Framers to outlaw the crime of seditious 
libel, in pursuit of a free speech principle, cannot be established and 
may not have been the goal, there was a tradition of robust and rowdy 
expression during the period of the framing that contradicts his prior 
view that a modern theory of free expression did not begin to emerge 
until the debate over the Alien and Sedition Acts.
        \12\L. Levy, Jefferson and Civil Liberties--The Darker Side 
(Cambridge, 1963). Thus President Jefferson wrote to Governor McKean of 
Pennsylvania in 1803: ``The federalists having failed in destroying 
freedom of the press by their gag-law, seem to have attacked it in an 
opposite direction; that is, by pushing its licentiousness and its lying 
to such a degree of prostitution as to deprive it of all credit. . . . 
This is a dangerous state of things, and the press ought to be restored 
to its credibility if possible. The restraints provided by the laws of 
the States are sufficient for this if applied. And I have, therefore, 
long thought that a few prosecutions of the most prominent offenders 
would have a wholesome effect in restoring the integrity of the presses. 
Not a general prosecution, for that would look like persecution; but a 
selected one.'' 9 Works of Thomas Jefferson 449 (P. Ford, ed. 1905).
        \13\New York Times Co. v. Sullivan, 376 U.S. 254 (1964), 
provides the principal doctrinal justification for the development, 
although the results had long since been fully applied by the Court. In 
Sullivan, Justice Brennan discerned in the controversies over the 
Sedition Act a crystallization of ``a national awareness of the central 
meaning of the First Amendment,'' id. at 273, which is that the ``right 
of free public discussion of the stewardship of public officials . . . 
[is] a fundamental principle of the American form of government.'' Id. 
at 275. This ``central meaning'' proscribes either civil or criminal 
punishment for any but the most maliciously, knowingly false criticism 
of government. ``Although the Sedition Act was never tested in this 
Court, the attack upon its validity has carried the day in the court of 
history. . . . [The historical record] reflect[s] a broad consensus that 
the Act, because of the restraint it imposed upon criticism of 
government and public officials, was inconsistent with the First 
Amendment.'' Id. at 276. Madison's Virginia Resolutions of 1798 and his 
Report in support of them brought together and expressed the theories 
being developed by the Jeffersonians and represent a solid doctrinal 
foundation for the point of view that the First Amendment superseded the 
common law on speech and press, that a free, popular government cannot 
be libeled, and that the First Amendment absolutely protects speech and 
press. 6 Writings of James Madison, 341-406 (G. Hunt. ed. 1908).
        \14\Patterson v. Colorado, 205 U.S. 454, 462 (1907) (emphasis 
original). Justice Frankfurter had similar views in 1951: ``The historic 
antecedents of the First Amendment preclude the notion that its purpose 
was to give unqualified immunity to every expression that touched on 
matters within the range of political interest. . . . `The law is 
perfectly well settled,' this Court said over fifty years ago, `that the 
first ten amendments to the Constitution, commonly known as the Bill of 
Rights, were not intended to lay down any novel principles of 
government, but simply to embody certain guaranties and immunities which 
we had inherited from our English ancestors, and which had from time 
immemorial been subject to certain well-recognized exceptions arising 
from the necessities of the case. In incorporating these principles into 
the fundamental law there was no intention of disregarding the 
exceptions, which continued to be recognized as if they had been 
formally expressed.' That this represents the authentic view of the Bill 
of Rights and the spirit in which it must be construed has been 
recognized again and again in cases that have come here within the last 
fifty years.'' Dennis v. United States, 341 U.S. 494, 521-522, 524 
(1951) (concurring opinion). The internal quotation is from Robertson v. 
Baldwin, 165 U.S. 275, 281 (1897).
        \15\Patterson v. Colorado, 205 U.S. 454, 461 (1907).
---------------------------------------------------------------------------

        But in Schenck v. United States,\16\ the first of the post-World 
War I cases to reach the Court, Justice Holmes, in the opinion of the 
Court, while upholding convictions for violating the Espionage Act by 
attempting to cause insubordination in the military service by 
circulation of leaflets, suggested First Amendment restraints on 
subsequent punishment as well as prior restraint. ``It well may be

[[Page 1024]]
that the prohibition of laws abridging the freedom of speech is not 
confined to previous restraints although to prevent them may have been 
the main purpose . . . . We admit that in many places and in ordinary 
times the defendants in saying all that was said in the circular would 
have been within their constitutional rights. But the character of every 
act depends upon the circumstances in which it is done. The most 
stringent protection of free speech would not protect a man in falsely 
shouting fire in a theater and causing a panic. . . . The question in 
every case is whether the words used are used in such a nature as to 
create a clear and present danger that they will bring about the 
substantive evils that Congress has a right to prevent.'' Justice Holmes 
along with Justice Brandeis soon went into dissent in their views that 
the majority of the Court was misapplying the legal standards thus 
expressed to uphold suppression of speech which offered no threat of 
danger to organized institutions.\17\ But it was with the Court's 
assumption that the Fourteenth Amendment restrained the power of the 
States to suppress speech and press that the doctrines developed.\18\ At 
first, Holmes and Brandeis remained in dissent, but in Fiske v. 
Kansas,\19\ the Court sustained a First Amendment type of claim in a 
state case, and in Stromberg v. California,\20\ a state law was voided 
on grounds of its interference with free speech.\21\ State common law 
was also voided, the Court in an opinion by Justice Black asserting that 
the First Amendment enlarged protections for speech, press, and religion 
beyond those enjoyed under English common law.\22\ Development over the 
years since has been uneven, but by 1964 the Court could say with 
unanimity: ``we consider this case against the background of a profound 
national commitment to the principle that debate on public issues should 
be uninhibited, robust, and wide-open, and that it may well include 
vehement, caustic and

[[Page 1025]]
sometimes unpleasantly sharp attacks on government and public 
officials.''\23\ And in 1969, it was said that the cases ``have 
fashioned the principle that the constitutional guarantees of free 
speech and free press do not permit a State to forbid or proscribe 
advocacy of the use of force or of law violation except where such 
advocacy is directed to inciting or producing imminent lawless action 
and is likely to incite or produce such action.''\24\ This development 
and its myriad applications are elaborated in the following sections.

        \16\249 U.S. 47, 51-52 (1919) (citations omitted).
        \17\Debs v. United States, 249 U.S. 211 (1919); Abrams v. United 
States, 250 U.S. 616 (1919); Schaefer v. United States, 251 U.S. 466 
(1920); Pierce v. United States, 252 U.S. 239 (1920); United States ex 
rel. Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 
(1921). A state statute similar to the federal one was upheld in Gilbert 
v. Minnesota, 254 U.S. 325 (1920).
        \18\Gitlow v. New York, 268 U.S. 652 (1925); Whitney v. 
California, 274 U.S. 357 (1927). The Brandeis and Holmes dissents in 
both cases were important formulations of speech and press principles.
        \19\274 U.S. 380 (1927).
        \20\283 U.S. 359 (1931). By contrast, it was not until 1965 that 
a federal statute was held unconstitutional under the First Amendment. 
Lamont v. Postmaster General, 381 U.S. 301 (1965). See also United 
States v. Robel, 389 U.S. 258 (1967).
        \21\And see Near v. Minnesota ex rel. Olson, 283 U.S. 697 
(1931); Herndon v. Lowry, 301 U.S. 242 (1937); De Jonge v. Oregon, 299 
U.S. 353 (1937); Lovell v. Griffin, 303 U.S. 444 (1938).
        \22\Bridges v. California, 314 U.S. 252, 263-68 (1941) 
(overturning contempt convictions of newspaper editor and others for 
publishing commentary on pending cases).
        \23\New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
        \24\Brandenburg v. Ohio, 395 U.S. 444, 447 (1969).
---------------------------------------------------------------------------
      Freedom of Expression: The Philosophical Basis

        Probably no other provision of the Constitution has given rise 
to so many different views with respect to its underlying philosophical 
foundations, and hence proper interpretive framework, as has the 
guarantee of freedom of expression--the free speech and free press 
clauses.\25\ The argument has been fought out among the commentators. 
``The outstanding fact about the First Amendment today is that the 
Supreme Court has never developed any comprehensive theory of what that 
constitutional guarantee means and how it should be applied in concrete 
cases.''\26\ Some of the commentators argue in behalf of a complex of 
values, none of which by itself is sufficient to support a broad-based 
protection of freedom of expression.\27\ Others would limit the basis of 
the First Amendment to one only among a constellation of possible values 
and would

[[Page 1026]]
therefore limit coverage or degree of protection of the speech and press 
clauses. For example, one school of thought believes that, because of 
the constitutional commitment to free self-government, only political 
speech is within the core protected area,\28\ although some commentators 
tend to define more broadly the concept of ``political'' than one might 
suppose from the word alone. Others recur to the writings of Milton and 
Mill and argue that protecting speech, even speech in error, is 
necessary to the eventual ascertainment of the truth, through conflict 
of ideas in the marketplace, a view skeptical of our ability to ever 
know the truth.\29\ A broader-grounded view is variously expounded by 
scholars who argue that freedom of expression is necessary to promote 
individual self-fulfillment, such as the concept that when speech is 
freely chosen by the speaker to persuade others it defines and expresses 
the ``self,'' promotes his liberty,\30\ or the concept of ``self-
realization,'' the belief that free speech enables the individual to 
develop his powers and abilities and to make and influence decisions 
regarding his destiny.\31\ The literature is enormous and no doubt the 
Justices as well as the larger society are influenced by it, and yet the 
decisions, probably in large part because they are the collective 
determination of nine individuals, seldom clearly reflect a principled 
and consistent acceptance of any philosophy.

        \25\While ``expression'' is not found in the text of the First 
Amendment, it is used herein, first, as a shorthand term for the 
freedoms of speech, press, assembly, petition, association, and the 
like, which are comprehended by the Amendment, and, second, as a 
recognition of the fact that judicial interpretation of the clauses of 
the First Amendment has greatly enlarged the definition commonly 
associated with ``speech,'' as the following discussion will reveal. The 
term seems well settled, see, e.g., T. Emerson, The System of Freedom of 
Expression (1970), although it has been criticized. F. Schauer, Free 
Speech: A Philosophical Inquiry, 50-52 (1982). The term also, as used 
here, conflates the speech and press clauses, explicitly assuming they 
are governed by the same standards of interpretation and that, in fact, 
the press clause itself adds nothing significant to the speech clause as 
interpreted, an assumption briefly defended infra, pp.1026-29.
        \26\T. Emerson, The System of Freedom of Expression 15 (1970). 
The practice in the Court is largely to itemize all the possible values 
the First Amendment has been said to protect. See, e.g., Consolidated 
Edison Co. v. PSC, 447 U.S. 530, 534-35 (1980); First National Bank of 
Boston v. Bellotti, 435 U.S. 765, 776-77 (1978).
        \27\T. Emerson, The System of Freedom of Expression 6-7 (1970). 
For Emerson, the four values are (1) assuring individuals self-
fulfillment, (2) promoting discovery of truth, (3) providing for 
participation in decisionmaking by all members of society, and (4) 
promoting social stability through discussion and compromise of 
differences. For a persuasive argument in favor of an ``eclectic'' 
approach, see Shriffrin, The First Amendment and Economic Regulation: 
Away From a General Theory of the First Amendment, 78 Nw. U.L. Rev. 1212 
(1983). A compressive discussion of all the theories may be found in F. 
Schauer, Free Speech: A Philosophical Inquiry (1982).
        \28\E.g., A. Meiklejohn, Political Freedom (1960); Bork, Neutral 
Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971); 
BeVier, The First Amendment and Political Speech: An Inquiry Into the 
Substance and Limits of Principle, 30 Stan. L. Rev. 299 (1978). This 
contention does not reflect the Supreme Court's view. ``It is no doubt 
true that a central purpose of the First Amendment `was to protect the 
free discussion of governmental affairs.' . . . But our cases have never 
suggested that expression about philosophical, social, artistic, 
economic, literary, or ethical matters--to take a nonexclusive list of 
labels--is not entitled to full First Amendment protection.'' Abood v. 
Detroit Bd. of Educ., 431 U.S. 209, 231 (1977).
        \29\The ``marketplace of ideas'' metaphor is attributable to 
Justice Holmes' opinion in Abrams v. United States, 250 U.S. 616, 630 
(1919). See Scanlon, Freedom of Expression and Categories of Expression, 
40 U. Pitt. L. Rev. 519 (1979). The theory has been the dominant one in 
scholarly and judicial writings. Baker, Scope of the First Amendment 
Freedom of Speech, 25 UCLA L. Rev. 964, 967-74 (1978).
        \30\E.g., Baker ``Process of Change and the Liberty Theory of 
the First Amendment, 55 S. Cal. L. Rev. 293 (1982); Baker, Realizing 
Self-Realization: Corporate Political Expenditures and Redish's The 
Value of Free Speech, 130 U. Pa. L. Rev. 646 (1982).
        \31\Redish, The Value of Free Speech, 130 U. Pa. L. Rev. 591 
(1982).
---------------------------------------------------------------------------
      Freedom of Expression: Is There a Difference Between Speech and 
        Press

        Utilization of the single word ``expression'' to reach speech, 
press, petition, association, and the like, raises the central question 
of whether the free speech clause and the free press clause are 
coextensive; does one perhaps reach where the other does not? It has

[[Page 1027]]
been much debated, for example, whether the ``institutional press'' may 
assert or be entitled to greater freedom from governmental regulations 
or restrictions than are non-press individuals, groups, or associations. 
Justice Stewart has argued: ``That the First Amendment speaks separately 
of freedom of speech and freedom of the press is no constitutional 
accident, but an acknowledgment of the critical role played by the press 
in American society. The Constitution requires sensitivity to that role, 
and to the special needs of the press in performing it 
effectively.''\32\ But as Chief Justice Burger wrote: ``The Court has 
not yet squarely resolved whether the Press Clause confers upon the 
`institutional press' any freedom from government restraint not enjoyed 
by all others.''\33\

        \32\Houchins v. KQED, 438 U.S. 1, 17 (1978) (concurring 
opinion). Justice Stewart initiated the debate in a speech, subsequently 
reprinted as Stewart, Or of the Press, 26 Hastings L. J. 631 (1975). 
Other articles are cited in First National Bank of Boston v. Bellotti, 
435 U.S. 765, 795 (1978) (Chief Justice Burger concurring).
        \33\Id. at 798. The Chief Justice's conclusion was that the 
institutional press had no special privilege as the press.
---------------------------------------------------------------------------

        Several Court holdings do firmly point to the conclusion that 
the press clause does not confer on the press the power to compel 
government to furnish information or to give the press access to 
information that the public generally does not have.\34\ Nor in many 
respects is the press entitled to treatment different in kind than the 
treatment any other member of the public may be subjected to.\35\ 
``Generally applicable laws do not offend the First Amendment simply 
because their enforcement against the press has incidental 
effects.''\36\ Yet, it does seem clear that to some extent the press, 
because of the role it plays in keeping the public informed and in the 
dissemination of news and information, is entitled to particular if not 
special deference that others are not similarly entitled to, that its 
role constitutionally entitles it to governmental ``sensitivity,'' to 
use Justice Stewart's word.\37\ What difference such

[[Page 1028]]
a recognized ``sensitivity'' might make in deciding cases is difficult 
to say.

        \34\Houchins v. KQED, 438 U.S. 1 (1978), and id. at 16 (Justice 
Stewart concurring); Saxbe v. Washington Post, 417 U.S. 843 (1974); Pell 
v. Procunier, 417 U.S. 817 (1974); Nixon v. Warner Communications, 435 
U.S. 589 (1978). The trial access cases, whatever they may precisely 
turn out to mean, recognize a right of access of both public and press 
to trials. Richmond Newspapers v. Virginia, 448 U.S. 555 (1980); Globe 
Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).
        \35\Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury 
testimony be newspaper reporter); Zurcher v. Stanford Daily, 436 U.S. 
547 (1978) (search of newspaper offices); Herbert v. Lando, 441 U.S. 153 
(1979) (defamation by press); Cohen v. Cowles Media Co., 501 U.S. 663 
(1991) (newspaper's breach of promise of confidentiality).
        \36\Cohen v. Cowles Media, 501 U.S. 663, 669 (1991).
        \37\E.g., Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 
(1974); Landmark Communications v. Virginia, 435 U.S. 829 (1978). See 
also Zurcher v. Stanford Daily, 436 U.S. 547, 563-67 (1978), and id. at 
568 (Justice Powell concurring); Branzburg v. Hayes, 408 U.S. 665, 709 
(1972) (Justice Powell concurring). Several concurring opinions in 
Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), imply recognition 
of some right of the press to gather information that apparently may not 
be wholly inhibited by nondiscriminatory constraints. Id. at 582-84 
(Justice Stevens), 586 n.2 (Justice Brennan), 599 n.2 (Justice Stewart). 
On the other hand, the Court has also suggested that the press is 
protected in order to promote and to protect the exercise of free speech 
in the society, including the receipt of information by the people. 
E.g., Mills v. Alabama, 384 U.S. 214, 218-19 (1966); CBS v. FCC, 453 
U.S. 367, 394-95 (1981).
---------------------------------------------------------------------------

        The most interesting possibility lies in the area of First 
Amendment protection of good faith defamation.\38\ Justice Stewart 
argued that the Sullivan privilege is exclusively a free press right, 
denying that the ``constitutional theory of free speech gives an 
individual any immunity from liability for libel or slander.''\39\ To be 
sure, in all the cases to date that the Supreme Court has resolved, the 
defendant has been, in some manner, of the press,\40\ but the Court's 
decision that corporations are entitled to assert First Amendment speech 
guarantees against federal and, through the Fourteenth Amendment, state 
regulations causes the evaporation of the supposed ``conflict'' between 
speech clause protection of individuals only and of press clause 
protection of press corporations as well as of press individuals.\41\ 
The issue, the Court wrote, was not what constitutional rights 
corporations have but whether the speech which is being restricted is 
expression that the First Amendment protects because of its societal 
significance. Because the speech concerned the enunciation of views on 
the conduct of governmental affairs, it was protected regardless of its 
source; while the First Amendment protects and fosters individual self-
expression as a worthy goal, it also and as important affords the public 
access to discussion, debate, and the dissemination of information and 
ideas. Despite Bellotti's emphasis upon the nature of the contested 
speech being political, it is clear that the same principle,

[[Page 1029]]
the right of the public to receive information, governs nonpolitical, 
corporate speech.\42\

        \38\New York Times Co. v. Sullivan, 376 U.S. 254 (1964). See 
infra, pp.1136-45.
        \39\Stewart, Or of the Press, 26 Hastings, L. J. 631, 633-35 
(1975).
        \40\In Hutchinson v. Proxmire, 443 U.S. 111, 133 n.16 (1979), 
the Court noted that it has never decided whether the Times standard 
applies to an individual defendant. Some think they discern in Gertz v. 
Robert Welch, Inc., 418 U.S. 323 (1974), intimations of such leanings by 
the Court.
        \41\First National Bank of Boston v. Bellotti, 435 U.S. 765 
(1978). The decision, addressing a question not theretofore confronted, 
was 5-to-4. Justice Rehnquist would have recognized no protected First 
Amendment rights of corporations because, as entities entirely the 
creation of state law, they were not to be accorded rights enjoyed by 
natural persons. Id. at 822. Justices White, Brennan, and Marshall 
thought the First Amendment implicated but not dispositive because of 
the state interests asserted. Id. at 802. Previous decisions recognizing 
corporate free speech had involved either press corporations, id. at 
781-83; and see id. at 795 (Chief Justice Burger concurring), or 
corporations organized especially to promote the ideological and 
associational interests of their members. E.g., NAACP v. Button, 371 
U.S. 415 (1963).
        \42\Commercial speech when engaged in by a corporation is 
subject to the same standards of protection as when natural persons 
engage in it. Consolidated Edison Co. v. PSC, 447 U.S. 530, 533-35 
(1980). Nor does the status of a corporation as a government-regulated 
monopoly alter the treatment. Id. at 534 n.1; Central Hudson Gas & 
Electric Co. v. PSC, 447 U.S. 557, 566-68 (1980).
---------------------------------------------------------------------------

        With some qualifications, therefore, it is submitted that the 
speech and press clauses may be analyzed under an umbrella 
``expression'' standard, with little, if any, hazard of missing 
significant doctrinal differences.

      The Doctrine of Prior Restraint

        ``[L]iberty of the press, historically considered and taken up 
by the Federal Constitution, has meant, principally although not 
exclusively, immunity from previous restraints or censorship.''\43\ 
``Any system of prior restraints of expression comes to this Court 
bearing a heavy presumption against its constitutional validity.''\44\ 
Government ``thus carries a heavy burden of showing justification for 
the imposition of such a restraint.''\45\ Under the English licensing 
system, which expired in 1695, all printing presses and printers were 
licensed and nothing could be published without prior approval of the 
state or church authorities. The great struggle for liberty of the press 
was for the right to publish without a license that which for a long 
time could be published only with a license.\46\

        \43\Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931).
        \44\Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963).
        \45\Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 
(1971); New York Times Co. v. United States, 403 U.S. 713, 714 (1971).
        \46\Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713-14 
(1931): Lovell v. Griffin, 303 U.S. 444, 451 (1938).
---------------------------------------------------------------------------

        The United States Supreme Court's first encounter with a law 
imposing a prior restraint came in Near v. Minnesota ex rel. Olson,\47\ 
in which a five-to-four majority voided a law authorizing the permanent 
enjoining of future violations by any newspaper or periodical once found 
to have published or circulated an ``obscene, lewd and lascivious'' or a 
``malicious, scandalous and defamatory'' issue. An injunction had been 
issued after the newspaper in question had printed a series of articles 
tying local officials to gangsters. While the dissenters maintained that 
the injunction constituted no prior restraint, inasmuch as that doctrine 
applied to prohibitions of publication without advance approval of an 
executive official,\48\ the majority deemed the difference of no 
consequence, since in order to avoid a contempt citation the newspaper 
would have to clear future publications in advance with the

[[Page 1030]]
judge.\49\ Liberty of the press to scrutinize closely the conduct of 
public affairs was essential, said Chief Justice Hughes for the Court. 
``[T]he administration of government has become more complex, the 
opportunities for malfeasance and corruption have multiplied, crime has 
grown to most serious proportions, and the danger of its protection by 
unfaithful officials and of the impairment of the fundamental security 
of life and property by criminal alliances and official neglect, 
emphasizes the primary need of a vigilant and courageous press, 
especially in great cities. The fact that the liberty of the press may 
be abused by miscreant purveyors of scandal does not make any the less 
necessary the immunity of the press from previous restraint in dealing 
with official misconduct. Subsequent punishment for such abuses as may 
exist is the appropriate remedy, consistent with constitutional 
privilege.''\50\ The Court did not undertake to explore the kinds of 
restrictions to which the term ``prior restraint'' would apply nor to do 
more than assert that only in ``exceptional circumstances'' would prior 
restraint be permissible.\51\ Nor did subsequent cases substantially 
illuminate the murky interior of the doctrine. The doctrine of prior 
restraint was called upon by the Court as it struck down a series of 
loosely drawn statutes and ordinances requiring licenses to hold 
meetings and parades and to distribute literature, with uncontrolled 
discretion in the licensor whether or not to issue them, and as it 
voided other restrictions on First Amendment rights.\52\ The doctrine 
that generally emerged was that permit systems--prior licensing, if you 
will--were constitutionally valid so long as the discretion of the 
issuing official was limited to questions of times, places, and 
manners.\53\ The most recent Court encounter with the doctrine in the

[[Page 1031]]
national security area occurred when the Government attempted to enjoin 
press publication of classified documents pertaining to the Vietnam 
War\54\ and, although the Court rejected the effort, at least five and 
perhaps six Justices concurred on principle that in some circumstances 
prior restraint of publication would be constitutional.\55\ But no 
cohesive doctrine relating to the subject, its applications, and its 
exceptions has yet emerged.

        \47\283 U.S. 697 (1931).
        \48\Id. at 723, 733-36 (Justice Butler dissenting).
        \49\Id. at 712-13.
        \50\Id. at 719-20.
        \51\Id. at 715-16.
        \52\E.g., Lovell v. Griffin, 303 U.S. 444 (1938); Cantwell v. 
Connecticut, 310 U.S. 296 (1940); Kunz v. New York, 340 U.S. 290 (1951); 
Niemotko v. Maryland, 340 U.S. 268 (1951); Staub v. City of Baxley, 355 
U.S. 313 (1958). For other applications, see Grosjean v. American Press 
Co., 297 U.S. 233 (1936); Murdock v. Pennsylvania, 319 U.S. 105 (1943); 
Follett v. McCormick, 321 U.S. 573 (1944).
        \53\Cox v. New Hampshire, 312 U.S. 569 (1941); Poulos v. New 
Hampshire, 345 U.S. 395 (1953). In Carroll v. President & Comm'rs of 
Princess Anne, 393 U.S. 175 (1968), the Court held invalid the issuance 
of an ex parte injunction to restrain the holding of a protest meeting, 
holding that usually notice must be given the parties to be restrained 
and an opportunity for them to rebut the contentions presented to 
justify the sought-for restraint. In Organization for a Better Austin v. 
Keefe, 402 U.S. 415 (1971), the Court held invalid as a prior restraint 
an injunction preventing the petitioners from distributing 18,000 
pamphlets attacking respondent's alleged ``blockbusting'' real estate 
activities; he was held not to have borne the ``heavy burden'' of 
justifying the restraint. ``No prior decisions support the claim that 
the interest of an individual in being free from public criticism of his 
business practices in pamphlets or leaflets warrants use of the 
injunctive power of a court. Designating the conduct as an invasion of 
privacy . . . is not sufficient to support an injunction against 
peaceful distribution of informational literature of the nature revealed 
by this record.'' Id. at 419-20. See also City of Lakewood v. Plain 
Dealer Publishing Co., 486 U.S. 750 (1988) (ordinance vesting in the 
mayor unbridled discretion to grant or deny annual permit for location 
of newsracks on public property is facially invalid as prior restraint).
        The necessity of immediate appellate review of orders 
restraining the exercise of First Amendment rights was strongly 
emphasized in National Socialist Party v. Village of Skokie, 432 U.S. 43 
(1977), and seems to explain the Court's action in Philadelphia 
Newspapers v. Jerome, 434 U.S. 241 (1978). But see Moreland v. Sprecher, 
443 U.S. 709 (1979) (party can relinquish right to expedited review 
through failure to properly request it).
        \54\New York Times Co. v. United States, 403 U.S. 713 (1971). 
The vote was six to three, with Justices Black, Douglas, Brennan, 
Stewart, White, and Marshall in the majority and Chief Justice Burger 
and Justices Harlan and Blackmun in the minority. Each Justice issued an 
opinion.
        \55\The three dissenters thought such restraint appropriate in 
this case. Id. at 748, 752, 759. Justice Stewart thought restraint would 
be proper if disclosure ``will surely result in direct, immediate, and 
irreparable damage to our Nation or its people,'' id. at 730, while 
Justice White did not endorse any specific phrasing of a standard. Id. 
at 730-733. Justice Brennan would preclude even interim restraint except 
upon ``governmental allegation and proof that publication must 
inevitably, directly, and immediately cause the occurrence of an event 
kindred to imperiling the safety of a transport already at sea.'' Id. at 
712-13.
        The same issues were raised in United States v. Progressive, 
Inc., 467 F. Supp. 990 (W.D.Wis. 1979), in which the United States 
obtained an injunction prohibiting publication of an article it claimed 
would reveal information about nuclear weapons, thus increasing the 
dangers of nuclear proliferation. The injunction was lifted when the 
same information was published elsewhere and thus no appellate review 
was had of the order.
        With respect to the right of the Central Intelligence Agency to 
prepublication review of the writings of former agents and its 
enforcement through contractual relationships, see Snepp v. United 
States, 444 U.S. 507 (1980); Alfred A. Knopf, Inc. v. Colby, 509 F.2d 
1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975); United States v. 
Marchetti, 446 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972).
---------------------------------------------------------------------------

        Injunctions and the Press in Fair Trial Cases.--Confronting a 
claimed conflict between free press and fair trial guarantees, the Court 
unanimously set aside a state court injunction barring the publication 
of information that might prejudice the subsequent trial of a criminal 
defendant.\56\ Though agreed on result, the Justices were divided with 
respect to whether ``gag orders'' were ever permissible and if so what 
the standards for imposing them were. The opinion of the Court utilized 
the Learned Hand formulation of the ``clear and present danger'' 
test\57\ and considered as factors in

[[Page 1032]]
any decision on the imposition of a restraint upon press reporters (a) 
the nature and extent of pretrial news coverage, (b) whether other 
measures were likely to mitigate the harm, and (c) how effectively a 
restraining order would operate to prevent the threatened danger.\58\ 
One seeking a restraining order would have a heavy burden to meet to 
justify such an action, a burden that could be satisfied only on a 
showing that with a prior restraint a fair trial would be denied, but 
the Chief Justice refused to rule out the possibility of showing the 
kind of threat that would possess the degree of certainty to justify 
restraints.\59\ Justice Brennan's major concurring opinion flatly took 
the position that such restraining orders were never permissible. 
Commentary and reporting on the criminal justice system is at the core 
of First Amendment values, he would hold, and secrecy can do so much 
harm ``that there can be no prohibition on the publication by the press 
of any information pertaining to pending judicial proceedings or the 
operation of the criminal justice system, no matter how shabby the means 
by which the information is obtained.''\60\ The extremely narrow 
exceptions under which prior restraints might be permissible relate to 
probable national harm resulting from publication, the Justice 
continued; because the trial court could adequately protect a 
defendant's right to a fair trial through other means even if there were 
conflict of constitutional rights the possibility of damage to the fair 
trail right would be so speculative that the burden of justification 
could not be met.\61\ While the result does not foreclose the 
possibility of future ``gag orders,'' it does lessen the number to be 
expected and

[[Page 1033]]
shifts the focus to other alternatives for protecting trial rights.\62\ 
On a different level, however, are orders restraining the press as a 
party to litigation in the dissemination of information obtained through 
pretrial discovery. In Seattle Times Co. v. Rhinehart,\63\ the Court 
determined that such orders protecting parties from abuses of discovery 
require ``no heightened First Amendment scrutiny.''\64\

        \56\Nebraska Press Ass'n. v. Stuart, 427 U.S. 539 (1976).
        \57\Id. at 562, quoting Dennis v. United States, 183 F.2d 201, 
212 (2d Cir. 1950), aff'd., 341 U.S. 494, 510 (1951).
        \58\Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 562 (1976) 
(opinion of Chief Justice Burger, concurred in by Justices Blackmun and 
Rehnquist, and, also writing brief concurrences, Justices White and 
Powell). Applying the tests, the Chief Justice agreed that (a) there was 
intense and pervasive pretrial publicity and more could be expected, but 
that (b) the lower courts had made little effort to assess the prospects 
of other methods of preventing or mitigating the effects of such 
publicity and that (c) in any event the restraining order was unlikely 
to have the desired effect of protecting the defendant's rights. Id. at 
562-67.
        \59\The Court differentiated between two kinds of information, 
however: (1) reporting on judicial proceedings held in public, which has 
``special'' protection and requires a much higher justification than (2) 
reporting of information gained from other sources as to which the 
burden of justifying restraint is still high. Id. at 567-68, 570. See 
also Oklahoma Pub. Co. v. District Court, 430 U.S. 308 (1977) (setting 
aside injunction restraining news media from publishing name of juvenile 
involved in pending proceeding when name has been learned at open 
detention hearing that could have been closed but was not); Smith v. 
Daily Mail Pub. Co., 433 U.S. 97 (1979).
        \60\Id. at 572, 588. Justices Stewart and Marshall joined this 
opinion and Justice Stevens noted his general agreement except that he 
reserved decision in particularly egregious situations, even though 
stating that he might well agree with Justice Brennan there also. Id. at 
617. Justice White, while joining the opinion of the Court, noted that 
he had grave doubts that ``gag orders'' could ever be justified but he 
would refrain from so declaring in the Court's first case on the issue. 
Id. at 570.
        \61\Id. at 588-95.
        \62\One such alternative is the banning of communication with 
the press on trial issues by prosecution and defense attorneys, police 
officials, and court officers. This, of course, also raises First 
Amendment issues. See, e.g., Chicago Council of Lawyers v. Bauer, 522 F. 
2d 242 (7th Cir. 1975), cert. denied, 427 U.S. 912 (1976).
        \63\467 U.S. 20 (1984).
        \64\467 U.S. at 36. The decision was unanimous, all other 
Justices joining Justice Powell's opinion for the Court, but with 
Justices Brennan and Marshall noting additionally that under the facts 
of the case important interests in privacy and religious freedom were 
being protected. Id. at 37, 38.
---------------------------------------------------------------------------

        Obscenity and Prior Restraint.--Only in the obscenity area has 
there emerged a substantial consideration of the doctrine of prior 
restraint and the doctrine's use there may be based upon the proposition 
that obscenity is not a protected form of expression.\65\ In Kingsley 
Books v. Brown,\66\ the Court upheld a state statute which, while it 
embodied some features of prior restraint, was seen as having little 
more restraining effect than an ordinary criminal statute; that is, the 
law's penalties applied only after publication. But in Times Film Corp. 
v. City of Chicago,\67\ a divided Court specifically affirmed that, at 
least in the case of motion pictures, the First Amendment did not 
proscribe a licensing system under which a board of censors could refuse 
to license for public exhibition films which it found to be obscene. 
Books and periodicals may also be subjected to some forms of prior 
restraint,\68\ but the thrust of the Court's opinions in this area with 
regard to all forms of communication has been to establish strict 
standards of procedural protections to ensure that the censoring agency 
bears the burden of proof on obscenity, that only a judicial order can 
restrain exhibition, and that a prompt final judicial decision is 
assured.\69\

        \65\Infra, pp.1149-59.
        \66\354 U.S. 436 (1957). See also Bantam Books v. Sullivan, 372 
U.S. 58 (1963).
        \67\365 U.S. 43 (1961). See also Young v. American Mini 
Theatres, 427 U.S. 50 (1976) (zoning ordinance prescribing distances 
adult theaters may be located from residential areas and other theaters 
is not an impermissible prior restraint).
        \68\Cf. Kingsley Books v. Brown, 354 U.S. 436 (1957).
        \69\Freedman v. Maryland, 380 U.S. 51 (1965); Teitel Film Corp. 
v. Cusack, 390 U.S. 139 (1968); Interstate Circuit v. City of Dallas, 
390 U.S. 676 (1968); Blount v. Rizzi, 400 U.S. 410 (1971); United States 
v. Thirty-seven Photographs, 402 U.S. 363, 367-375 (1971); Southeastern 
Promotions v. Conrad, 420 U.S. 546 (1975); Erznoznik v. City of 
Jacksonville, 422 U.S. 205 (1975); FW/PBS, Inc. v. City of Dallas, 493 
U.S. 215 (1990) (ordinance requiring licensing of ``sexually oriented 
business'' places no time limit on approval by inspection agencies and 
fails to provide an avenue for prompt judicial review); Fort Wayne 
Books, Inc. v. Indiana, 489 U.S. 46 (1989) (seizure of books and films 
based on ex parte probable cause hearing under state RICO law's 
forfeiture procedures constitutes invalid prior restraint; instead, 
there must be a determination in an adversarial proceeding that the 
materials are obscene or that a RICO violation has occurred).

---------------------------------------------------------------------------

[[Page 1034]]
      Subsequent Punishment: Clear and Present Danger and Other Tests

        Granted that the context of the controversy over freedom of 
expression at the time of the ratification of the First Amendment was 
almost exclusively limited to the problem of prior restraint, still the 
words speak of laws ``abridging'' freedom of speech and press and the 
modern adjudicatory disputes have been largely fought out over 
subsequent punishment. ``The mere exemption from previous restraints 
cannot be all that is secured by the constitutional provisions, inasmuch 
as of words to be uttered orally there can be no previous censorship, 
and the liberty of the press might be rendered a mockery and a delusion, 
and the phrase itself a byword, if, while every man was at liberty to 
publish what he pleased, the public authorities might nevertheless 
punish him for harmless publications. . . .

        ``[The purpose of the speech-press clauses] has evidently been 
to protect parties in the free publication of matters of public concern, 
to secure their right to a free discussion of public events and public 
measures, and to enable every citizen at any time to bring the 
government and any person in authority to the bar of public opinion by 
any just criticism upon their conduct in the exercise of the authority 
which the people have conferred upon them. . . . The evils to be 
prevented were not the censorship of the press merely, but any action of 
the government by means of which it might prevent such free and general 
discussion of public matters as seems absolutely essential to prepare 
the people for an intelligent exercise of their rights as 
citizens.''\70\ A rule of law permitting criminal or civil liability to 
be imposed upon those who speak or write on public issues and their 
superintendence would lead to ``self-censorship'' by all which would not 
be relieved by permitting a defense of truth. ``Under such a rule, 
would-be critics of official conduct may be deterred from voicing their 
criticism, even though it is believed to be true and even though it is 
in fact true, because of doubt whether it can be proved in court or fear 
of the expense of having to do so . . . . The rule thus dampens the 
vigor and limits the variety of public debate.''\71\

        \70\2 T. Cooley, A Treatise on the Constitutional Limitations 
Which Rest Upon the Legislative Powers of the States of the American 
Union 885-86 (8th ed. 1927).
        \71\New York Times Co. v. Sullivan, 376 U.S. 254, 279 (1964). 
See also Speiser v. Randall, 357 U.S. 513, 526 (1958); Smith v. 
California, 361 U.S. 147, 153-154 (1959); Time, Inc. v. Hill, 385 U.S. 
374, 389 (1967).

---------------------------------------------------------------------------

[[Page 1035]]

        ``Persecution for the expression of opinions seems to me 
perfectly logical. If you have no doubt of your premises or your power 
and want a certain result with all your heart you naturally express your 
wishes in law and sweep away all opposition. To allow opposition by 
speech seems to indicate that you think the speech impotent, as when a 
man says that he has squared the circle, or that you do not care whole-
heartedly for the result, or that you doubt either your power or your 
premises. But when men have realized that time has upset many fighting 
faiths, they may come to believe even more than they believe the very 
foundations of their own conduct that the ultimate good desired is 
better reached by free trade in ideas, that the best test of truth is 
the power of the thought to get itself accepted in the competition of 
the market, and that truth is the only ground upon which their wishes 
safely can be carried out. That at any rate is the theory of our 
Constitution.''\72\ ``Those who won our independence believed that the 
final end of the State was to make men free to develop their faculties; 
and that in its government the deliberative forces should prevail over 
the arbitrary. They valued liberty both as an end and as a means. They 
believed liberty to be the secret of happiness and courage to be the 
secret of liberty. They believed that freedom to think as you will and 
to speak as you think are means indispensable to the discovery and 
spread of political truth; that without free speech and assembly 
discussion would be futile; that with them, discussion affords 
ordinarily adequate protection against the dissemination of noxious 
doctrine; that the greatest menace to freedom is an inert people; that 
public discussion is a political duty; and that this should be a 
fundamental principle of the American government. They recognized the 
risks to which all human institutions are subject. But they knew that 
order cannot be secured merely through fear of punishment for its 
infraction; that it is hazardous to discourage thought, hope and 
imagination; that fear breeds repression; that repression breeds hate; 
that hate menaces stable government; that the path of safety lies in the 
opportunity to discuss freely supposed grievances and proposed remedies; 
and that the fitting remedy for evil counsels is good ones. Believing in 
the power of reason as applied through public discussion, they eschewed 
silence coerced by law--the argument of force in its worst form. 
Recognizing the occasional tyrannies of governing majorities, they 
amended the Con

[[Page 1036]]
stitution so that free speech and assembly should be guaranteed.''\73\

        \72\Abrams v. United States, 250 U.S. 616, 630 (1919) (Justice 
Holmes dissenting).
        \73\Whitney v. California, 274 U.S. 357, 375-76 (1927) (Justice 
Brandeis concurring).
---------------------------------------------------------------------------

        ``But, although the rights of free speech and assembly are 
fundamental, they are not in their nature absolute. Their exercise is 
subject to restriction, if the particular restriction proposed is 
required in order to protect the State from destruction or from serious 
injury, political, economic or moral.''\74\ The fixing of a standard is 
necessary, by which it can be determined what degree of evil is 
sufficiently substantial to justify resort to abridgment of speech and 
press and assembly as a means of protection and how clear and imminent 
and likely the danger is.\75\ That standard has fluctuated over a period 
of some fifty years now and it cannot be asserted with a great degree of 
confidence that the Court has yet settled on any firm standard or any 
set of standards for differing forms of expression.\76\ The cases are 
instructive of the difficulty.

        \74\Id. at 373.
        \75\Id. at 374.
        \76\On the great range of expressive communications, see infra.
---------------------------------------------------------------------------

        Clear and Present Danger.--Certain expression, oral or written, 
may incite, urge, counsel, advocate, or importune the commission of 
criminal conduct; other expression, such as picketing, demonstrating, 
and engaging in certain forms of ``symbolic'' action may either counsel 
the commission of criminal conduct or itself constitute criminal 
conduct. Leaving aside for the moment the problem of ``speech-plus'' 
communication, it becomes necessary to determine when expression that 
may be a nexus to criminal conduct is subject to punishment and 
restraint. At first, the Court seemed disposed in the few cases reaching 
it to rule that if the conduct could be made criminal, the advocacy of 
or promotion of the conduct could be made criminal.\77\ Then, in Schenck 
v. United States,\78\ in which defendants had been convicted of seeking 
to disrupt recruitment of military personnel by dissemination of certain 
leaflets, Justice Holmes formulated the ``clear and present danger'' 
test which has ever since been the starting point of argument. ``The 
question in every case is whether the words used are used in such 
circumstances and are of such a nature as to create a clear and present 
danger that they will bring about the substantive evils that Congress 
has a right to prevent. It is a question of proximity and degree.''\79\ 
The convictions were unanimously affirmed. One week

[[Page 1037]]
later, the Court again unanimously affirmed convictions under the same 
Act with Justice Holmes speaking. ``[W]e think it necessary to add to 
what has been said in Schenck v. United States . . . only that the First 
Amendment while prohibiting legislation against free speech as such 
cannot have been, and obviously was not, intended to give immunity for 
every possible use of language. We venture to believe that neither 
Hamilton nor Madison, nor any other competent person then or later, ever 
supposed that to make criminal the counseling of a murder within the 
jurisdiction of Congress would be an unconstitutional interference with 
free speech.''\80\ And in Debs v. United States,\81\ Justice Holmes was 
found referring to ``the natural and intended effect'' and ``probable 
effect'' of the condemned speech in common-law tones.

        \77\Davis v. Beason, 133 U.S. 333 (1890); Fox v. Washington, 236 
U.S. 273 (1915).
        \78\249 U.S. 47 (1919).
        \79\Id. at 52.
        \80\Frohwerk v. United States, 249 U.S., 204, 206 (1919) 
(citations omitted).
        \81\249 U.S. 211, 215-16 (1919).
---------------------------------------------------------------------------

        But in Abrams v. United States,\82\ Justices Holmes and Brandeis 
dissented upon affirmance of the convictions of several alien anarchists 
who had printed leaflets seeking to encourage discontent with United 
States participation in the War. The majority simply referred to Schenck 
and Frohwerk to rebut the First Amendment argument, but the dissenters 
urged that the Government had made no showing of a clear and present 
danger. Another affirmance by the Court of a conviction, the majority 
simply saying that ``[t]he tendency of the articles and their efficacy 
were enough for the offense,'' drew a similar dissent.\83\ Moreover, in 
Gitlow v. New York,\84\ a conviction for distributing a manifesto in 
violation of a law making it criminal to advocate, advise, or teach the 
duty, necessity, or propriety of overthrowing organized government by 
force or violence, the Court affirmed in the absence of any evidence 
regarding the effect of the distribution and in the absence of any 
contention that it created any immediate threat to the security of the 
State. In so doing, the Court discarded Holmes' test. ``It is clear that 
the question in such cases [as this] is entirely different from that 
involved in those cases where the statute merely prohibits certain acts 
involving the danger of substantive evil, without any reference to 
language itself, and it is sought to apply its provisions to language 
used by the defendant for the purpose of bringing about the prohibited 
results. . . . In such cases it has been held that the general 
provisions of the statute may be constitutionally applied to the 
specific utterance of the defendant if its natural tendency and probable 
effect was to bring about the substantive evil which the

[[Page 1038]]
legislative body might prevent. . . . [T]he general statement in the 
Schenck Case . . . was manifestly intended . . . to apply only in cases 
of this class, and has no application to those like the present, where 
the legislative body itself has previously determined the danger of 
substantive evil arising from utterances of a specified character.''\85\ 
Thus, a state legislative determination ``that utterances advocating the 
overthrow of organized government by force, violence, and unlawful 
means, are so inimical to the general welfare, and involve such danger 
of substantive evil that they may be penalized in the exercise of its 
police power'' was almost conclusive on the Court.\86\ It is not clear 
what test, if any, the majority would have utilized, although the ``bad 
tendency'' test has usually been associated with the case. In Whitney v. 
California,\87\ the Court affirmed a conviction under a criminal 
syndicalism statute based on defendant's association with and membership 
in an organization which advocated the commission of illegal acts, 
finding again that the determination of a legislature that such advocacy 
involves ``such danger to the public peace and the security of the 
State'' was entitled to almost conclusive weight. In a technical 
concurrence which was in fact a dissent from the opinion of the Court, 
Justice Brandeis restated the ``clear and present danger'' test. 
``[E]ven advocacy of violation [of the law] . . . is not a justification 
for denying free speech where the advocacy falls short of incitement and 
there is nothing to indicate that the advocacy would be immediately 
acted on . . . . In order to support a finding of clear and present 
danger it must be shown either that immediate serious violence was to be 
expected or was advocated, or that the past conduct furnished reason to 
believe that such advocacy was then contemplated.''\88\

        \82\250 U.S. 616 (1919).
        \83\Schaefer v. United States, 251 U.S. 466, 479 (1920). See 
also Pierce v. United States, 252 U.S. 239 (1920).
        \84\268 U.S. 652 (1925)
        \85\Id. at 670-71.
        \86\Id. at 668. Justice Holmes dissented. ``If what I think the 
correct test is applied, it is manifest that there was no present danger 
of an attempt to overthrow the government by force on the part of the 
admittedly small minority who share the defendant's views. It is said 
that this manifesto was more than a theory, that it was an incitement. 
Every idea is an incitement. It offers itself for belief, and, if 
believed, is acted on unless some other belief outweighs it, or some 
failure of energy stifles the movement at its birth. The only difference 
between the expression of an opinion and an incitement in the narrower 
sense is the speaker's enthusiasm for the result. Eloquence may set fire 
to reason. But whatever may be thought of the redundant discourse before 
us, it had no chance of starting a present conflagration. If, in the 
long run, the beliefs expressed in proletarian dictatorship are destined 
to be accepted by the dominant forces of the community, the only meaning 
of free speech is that they would be given their chance and have their 
way.'' Id. at 673.
        \87\274 U.S. 357, 371-72 (1927).
        \88\Id. at 376.
---------------------------------------------------------------------------

        The Adoption of Clear and Present Danger.--The Court did not 
invariably affirm convictions during this period in cases

[[Page 1039]]
like those under consideration. In Fiske v. Kansas,\89\ it held that a 
criminal syndicalism law had been invalidly applied to convict one 
against whom the only evidence was the ``class struggle'' language of 
the constitution of the organization to which he belonged. A conviction 
for violating a ``red flag'' law was voided as the statute was found 
unconstitutionally vague.\90\ Neither case mentioned clear and present 
danger. An ``incitement'' test seemed to underlie the opinion in De 
Jonge v. Oregon,\91\ upsetting a conviction under a criminal syndicalism 
statute for attending a meeting held under the auspices of an 
organization which was said to advocate violence as a political method, 
although the meeting was orderly and no violence was advocated during 
it. In Herndon v. Lowry,\92\ the Court narrowly rejected the contention 
that the standard of guilt could be made the ``dangerous tendency'' of 
one's words, and indicated that the power of a State to abridge speech 
``even of utterances of a defined character must find its justification 
in a reasonable apprehension of danger to organized government.''

        \89\274 U.S. 380 (1927).
        \90\Stromberg v. California, 283 U.S. 359 (1931).
        \91\299 U.S. 353 (1937). See id. at 364-65.
        \92\301 U.S. 242, 258 (1937). At another point, clear and 
present danger was alluded to without any definite indication it was the 
standard. Id. at 261.
---------------------------------------------------------------------------

        Finally, in Thornhill v. Alabama,\93\ a state anti-picketing law 
was invalidated because ``no clear and present danger of destruction of 
life or property, or invasion of the right of privacy, or breach of the 
peace can be thought to be inherent in the activities of every person 
who approaches the premises of an employer and publicizes the facts of a 
labor dispute involving the latter.'' During the same term, the Court 
reversed the breach of the peace conviction of a Jehovah's Witness who 
had played an inflammatory phonograph record to persons on the street, 
the Court discerning no clear and present danger of disorder.\94\

        \93\310 U.S. 88, 105 (1940). The Court admitted that the 
picketing did result in economic injury to the employer, but found such 
injury ``neither so serious nor so imminent'' as to justify restriction. 
The role of clear and present danger was not to play a future role in 
the labor picketing cases.
        \94\Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).
---------------------------------------------------------------------------

        The stormiest fact situation faced by the Court in applying 
clear and present danger occurred in Terminiello v. City of Chicago,\95\ 
in which a five-to-four majority struck down a conviction obtained after 
the judge instructed the jury that a breach of the peace could be 
committed by speech that ``stirs the public to anger, invites dispute, 
brings about a condition of unrest, or creates a disturbance.'' ``A 
function of free speech under our system of government,'' wrote Justice 
Douglas for the majority, ``is to invite dispute.

[[Page 1040]]
It may indeed best serve its high purpose when it induces a condition of 
unrest, creates dissatisfaction with conditions as they are, or even 
stirs people to anger. Speech is often provocative and challenging. It 
may strike at prejudices and preconceptions and have profound unsettling 
effects as it presses for acceptance of an idea. That is why freedom of 
speech, though not absolute, . . . is nevertheless protected against 
censorship or punishment, unless shown likely to produce a clear and 
present danger of a serious substantive evil that rises far above public 
inconvenience, annoyance, or unrest.''\96\ The dissenters focused on the 
disorders which had actually occurred as a result of Terminiello's 
speech, Justice Jackson saying: ``Rioting is a substantive evil, which I 
take it no one will deny that the State and the City have the right and 
the duty to prevent and punish . . . . In this case the evidence proves 
beyond dispute that danger of rioting and violence in response to the 
speech was clear, present and immediate.''\97\ The Jackson position was 
soon adopted in Feiner v. New York,\98\ in which Chief Justice Vinson 
said that ``[t]he findings of the state courts as to the existing 
situation and the imminence of greater disorder coupled with 
petitioner's deliberate defiance of the police officers convince us that 
we should not reverse this conviction in the name of free speech.''

        \95\337 U.S. 1 (1949).
        \96\Id. at 4-5.
        \97\Id. at 25-26.
        \98\340 U.S. 315, 321 (1951).
---------------------------------------------------------------------------

        Contempt of Court and Clear and Present Danger.--The period 
during which clear and present danger was the standard by which to 
determine the constitutionality of governmental suppression of or 
punishment for expression was a brief one, extending roughly from 
Thornhill to Dennis.\99\ But in one area it was vigorously, though not 
without dispute, applied to enlarge freedom of utterance and it is in 
this area that it remains viable. In early contempt-of-court cases in 
which criticism of courts had been punished as contempt, the Court 
generally took the position that even if freedom of speech and press was 
protected against governmental abridgment, a publication tending to 
obstruct the administration of justice was punishable, irrespective of 
its truth.\100\ But in Bridges v. California,\101\ in which contempt 
citations had been brought against a newspaper and a labor leader for 
statements made about pending judicial proceedings, Justice Black for a 
five-to-four Court

[[Page 1041]]
majority began with application of clear and present danger, which he 
interpreted to require that ``the substantive evil must be extremely 
serious and the degree of imminence extremely high before utterances can 
be punished.''\102\ He noted that the ``substantive evil here sought to 
be averted . . . appears to be double: disrespect for the judiciary; and 
disorderly and unfair administration of justice.'' The likelihood that 
the court will suffer damage to its reputation or standing in the 
community was not, Justice Black continued, a ``substantive evil'' which 
would justify punishment of expression.\103\ The other evil, 
``disorderly and unfair administration of justice,'' ``is more plausibly 
associated with restricting publications which touch upon pending 
litigation.'' But the ``degree of likelihood'' of the evil being 
accomplished was not ``sufficient to justify summary punishment.''\104\ 
In dissent, Justice Frankfurter accepted the application of clear and 
present danger, but he interpreted it as meaning no more than a 
``reasonable tendency'' test. ``Comment however forthright is one thing. 
Intimidation with respect to specific matters still in judicial 
suspense, quite another. . . . A publication intended to teach the judge 
a lesson, or to vent spleen, or to discredit him, or to influence him in 
his future conduct, would not justify exercise of the contempt power. 
. . . It must refer to a matter under consideration and constitute in 
effect a threat to its impartial disposition. It must be calculated to 
create an atmospheric pressure incompatible with rational, impartial 
adjudication. But to interfere with justice it need not succeed. As with 
other offenses, the state should be able to proscribe attempts that fail 
because of the danger that attempts may succeed.''\105\

        \99\Thornhill v. Alabama, 310 U.S. 88 (1940); Dennis v. United 
States, 341 U.S. 494 (1951).
        \100\Patterson v. Colorado, 205 U.S. 454 (1907); Toledo 
Newspaper Co. v. United States, 247 U.S. 402 (1918).
        \101\314 U.S. 252 (1941).
        \102\Id. at 263.
        \103\Id. at 270-71.
        \104\Id. at 271-78.
        \105\Id. at 291. Joining Justice Frankfurter in dissent were 
Chief Justice Stone and Justices Roberts and Byrnes.
---------------------------------------------------------------------------

        A unanimous Court next struck down the contempt conviction 
arising out of newspaper criticism of judicial action already taken, 
although one case was pending after a second indictment. Specifically 
alluding to clear and present danger, while seeming to regard it as 
stringent a test as Justice Black had in the prior case, Justice Reed 
wrote that the danger sought to be averted, a ``threat to the impartial 
and orderly administration of justice,'' ``has not the clearness and 
immediacy necessary to close the door of permissible public 
comment.''\106\ Divided again, the Court a year later set aside contempt 
convictions based on publication, while a motion for a

[[Page 1042]]
new trial was pending, of inaccurate and unfair accounts and an 
editorial concerning the trial of a civil case. ``The vehemence of the 
language used is not alone the measure of the power to punish for 
contempt. The fires which it kindles must constitute an imminent, and 
not merely a likely, threat to the administration of justice. The danger 
must not be remote or even probable; it must immediately imperil.''\107\

        \106\Pennekampt v. Florida, 328 U.S. 331, 336, 350 (1946). To 
Justice Frankfurter, the decisive consideration was whether the judge or 
jury is, or presently will be, pondering a decision that comment seeks 
to affect. Id. at 369.
        \107\Craig v. Harney, 331 U.S. 367, 376 (1947). Dissenting with 
Chief Justice Vinson, Justice Frankfurter said: ``We cannot say that the 
Texas Court could not properly find that these newspapers asked of the 
judge, and instigated powerful sections of the community to ask of the 
judge, that which no one has any business to ask of a judge, except the 
parties and their counsel in open court, namely, that he should decide 
one way rather than another.'' Id. at 390. Justice Jackson also 
dissented. Id. at 394. See also Landmark Communications v. Virginia, 435 
U.S. 829, 844 (1978); Nebraska Press Ass'n v. Stuart, 427 U.S. 539, 562-
63 (1976).
---------------------------------------------------------------------------

        In Wood v. Georgia,\108\ the Court again divided, applying clear 
and present danger to upset the contempt conviction of a sheriff who had 
been cited for criticizing the recommendation of a county court that a 
grand jury look into African American bloc voting, vote buying, and 
other alleged election irregularities. No showing had been made, said 
Chief Justice Warren, of ``a substantive evil actually designed to 
impede the course of justice.'' The case presented no situation in which 
someone was on trial, there was no judicial proceeding pending that 
might be prejudiced, and the dispute was more political than 
judicial.\109\ A unanimous Court recently seems to have applied the 
standard to set aside a contempt conviction of a defendant who, arguing 
his own case, alleged before the jury that the trial judge by his bias 
had prejudiced his trial and that he was a political prisoner. Though 
the defendant's remarks may have been disrespectful of the court, the 
Supreme Court noted that ``[t]here is no indication . . . that 
petitioner's statements were uttered in a boisterous tone or in any wise 
actually disrupted the court proceeding'' and quoted its previous 
language about the imminence of the threat necessary to constitute 
contempt.\110\

        \108\370 U.S. 375 (1962).
        \109\Id. at 383-85, 386-90. Dissenting, Justices Harlan and 
Clark thought that the charges made by the defendant could well have 
influenced the grand jurors in their deliberations and that the fact 
that laymen rather than judicial officers were subject to influence 
should call forth a less stringent test than when the latter were the 
object of comment. Id. at 395.
        \110\In re Little, 404 U.S. 553, 555 (1972). The language from 
Craig v. Harney, 331 U.S. 367, 376 (1947), is quoted supra, text 
accompanying n.13.
---------------------------------------------------------------------------

        Clear and Present Danger Revised: Dennis.--In Dennis v. United 
States,\111\ the Court sustained the constitutionality of the Smith 
Act,\112\ which proscribed advocacy of the overthrow by force and 
violence of the government of the United States, and upheld

[[Page 1043]]
convictions under it. Dennis' importance here is in the rewriting of the 
clear and present danger test. For a plurality of four, Chief Justice 
Vinson acknowledged that the Court had in recent years relied on the 
Holmes-Brandeis formulation of clear and present danger without actually 
overruling the older cases that had rejected the test; but while clear 
and present danger was the proper constitutional test, that ``shorthand 
phrase should [not] be crystallized into a rigid rule to be applied 
inflexibly without regard to the circumstances of each case.'' It was a 
relative concept. Many of the cases in which it had been used to reverse 
convictions had turned ``on the fact that the interest which the State 
was attempting to protect was itself too insubstantial to warrant 
restriction of speech.''\113\ Here, in contrast, ``[o]verthrow of the 
Government by force and violence is certainly a substantial enough 
interest for the Government to limit speech.''\114\ And in combating 
that threat, the Government need not wait to act until the putsch is 
about to be executed and the plans are set for action. ``If Government 
is aware that a group aiming at its overthrow is attempting to 
indoctrinate its members and to commit them to a course whereby they 
will strike when the leaders feel the circumstances permit, action by 
the Government is required.''\115\ Therefore, what does the phrase 
``clear and present danger'' import for judgment? ``Chief Judge Learned 
Hand, writing for the majority below, interpreted the phrase as follows: 
`In each case [courts] must ask whether the gravity of the ``evil,'' 
discounted by its improbability, justifies such invasion of free speech 
as is necessary to avoid the danger.' 183 F.2d at 212. We adopt this 
statement of the rule. As articulated by Chief Judge Hand, it is as 
succinct and inclusive as any other we might devise at this time. It 
takes into consideration those factors which we deem relevant, and 
relates their significances. More we cannot expect from words.''\116\ 
The ``gravity of the evil, discounted by its improbability'' was found 
to justify the convictions.\117\

        \111\341 U.S. 494 (1951).
        \112\Ch. 439, 54 Stat. 670 (1940), 18 U.S.C. Sec. 2385.
        \113\Dennis v. United States, 341 U.S. 494, 508 (1951).
        \114\Id. at 509.
        \115\Id. at 508, 509.
        \116\Id. at 510. Justice Frankfurter, concurring, adopted a 
balancing test, id. at 517, discussed infra, pp. 1023-28. Justice 
Jackson appeared to proceed on a conspiracy approach rather than one 
depending on advocacy. Id. at 561. Justices Black and Douglas dissented, 
reasserting clear and present danger as the standard. Id. at 579, 581. 
Note the recurrence to the Learned Hand formulation in Nebraska Press 
Ass'n v. Stuart, 427 U.S. 539, 562 (1976), although the Court appeared 
in fact to apply balancing.
        \117\In Yates v. United States, 354 U.S. 298 (1957), the Court 
substantially limited both the Smith Act and the Dennis case by 
interpreting the Act to require advocacy of unlawful action, to require 
the urging of doing something now or in the future, rather than merely 
advocacy of forcible overthrow as an abstract doctrine, and by finding 
the evidence lacking to prove the former. Of Dennis, Justice Harlan 
wrote: ``The essence of the Dennis holding was that indoctrination of a 
group in preparation for future violent action, as well as exhortation 
to immediate action, by advocacy found to be directed to `action for the 
accomplishment' of forcible overthrow, to violence as `a rule or 
principle of action,' and employing `language of incitement,' id. at 
511-12, is not constitutionally protected when the group is of 
sufficient size and cohesiveness, is sufficiently oriented towards 
action, and other circumstances are such as reasonably to justify 
apprehension that action will occur.'' Id. at 321.

---------------------------------------------------------------------------

[[Page 1044]]

        Balancing.--Clear and present danger as a test, it seems clear, 
was a pallid restriction on governmental power after Dennis and it 
virtually disappeared from the Court's language over the next twenty 
years.\118\ Its replacement for part of this period was the much 
disputed ``balancing'' test, which made its appearance in the year prior 
to Dennis in American Communications Ass'n v. Douds.\119\ There the 
Court sustained a law barring from access to the NLRB any labor union if 
any of its officers failed to file annually an oath disclaiming 
membership in the Communist Party and belief in the violent overthrow of 
the government.\120\ For the Court, Chief Justice Vinson rejected 
reliance on the clear and present danger test. ``Government's interest 
here is not in preventing the dissemination of Communist doctrine or the 
holding of particular beliefs because it is feared that unlawful action 
will result therefrom if free speech is practiced. Its interest is in 
protecting the free flow of commerce from what Congress considers to be 
substantial evils of conduct that are not the products of speech at all. 
Section 9(h), in other words, does not interfere with speech because 
Congress fears the consequences of speech; it regulates harmful conduct 
which Congress has determined is carried on by persons who may be 
identified by their political affiliations and beliefs. The Board does 
not contend that political strikes . . . are the present or impending 
products of advocacy of the doctrines of Communism or the expression of 
belief in overthrow of the Government by force. On the contrary, it 
points out that such strikes are called by persons

[[Page 1045]]
who, so Congress has found, have the will and power to do so without 
advocacy.''\121\

        \118\Cf. Brennan, The Supreme Court and the Meiklejohn 
Interpretation of the First Amendment, 79 Harv. L. Rev. 1, 8 (1965). See 
Garner v. Louisiana, 368 U.S. 157, 185-207 (1961) (Justice Harlan 
concurring).
        \119\339 U.S. 382 (1950). See also Osman v. Douds, 339 U.S. 846 
(1950). Balancing language was used by Justice Black in his opinion for 
the Court in Martin v. City of Struthers, 319 U.S. 141, 143 (1943), but 
it seems not to have influenced the decision. Similarly, in Schneider v. 
Irvington, 308 U.S. 147, 161-62 (1939), Justice Roberts used balancing 
language which he apparently did not apply.
        \120\The law, Sec. 9(h) of the Taft-Hartley Act, 61 Stat. 146 
(1947), was repealed, 73 Stat. 525 (1959), and replaced by a section 
making it a criminal offense for any person ``who is or has been a 
member of the Communist Party'' during the preceding five years to serve 
as an officer or employee of any union. Sec. 504, 73 Stat. 536 (1959); 
29 U.S.C. Sec. 504. It was held unconstitutional in United States v. 
Brown, 381 U.S. 437 (1965).
        \121\American Communications Ass'n v. Douds, 339 U.S. 382, 396 
(1950).
---------------------------------------------------------------------------

        The test, rather, must be one of balancing of interests. ``When 
particular conduct is regulated in the interest of public order, and the 
regulation results in an indirect, conditional, partial abridgement of 
speech, the duty of the courts is to determine which of these two 
conflicting interests demands the greater protection under the 
particular circumstances presented.''\122\ Inasmuch as the interest in 
the restriction, the government's right to prevent political strikes and 
the disruption of commerce, is much more substantial than the limited 
interest on the other side in view of the relative handful of persons 
affected in only a partial manner, the Court perceived no difficulty 
upholding the statute.\123\

        \122\Id. at 399.
        \123\Id. at 400-06.
---------------------------------------------------------------------------

        Justice Frankfurter in Dennis\124\ rejected the applicability of 
clear and present danger and adopted a balancing test. ``The demands of 
free speech in a democratic society as well as the interest in national 
security are better served by candid and informed weighing of the 
competing interests, within the confines of the judicial process, than 
by announcing dogmas too inflexible for the non-Euclidian problems to be 
solved.''\125\ But the ``careful weighing of conflicting 
interests''\126\ not only placed in the scale the disparately-weighed 
interest of government in self-preservation and the interest of 
defendants in advocating illegal action, which alone would have 
determined the balance, it also involved the Justice's philosophy of the 
``confines of the judicial process'' within which the role of courts, in 
First Amendment litigation as in other, is severely limited. Thus, 
``[f]ull responsibility'' may not be placed in the courts ``to balance 
the relevant factors and ascertain which interest in the circumstances 
[is] to prevail.'' ``Courts are not representative bodies. They are not 
designed to be a good reflex of a democratic society.'' Rather, 
``[p]rimary responsibility for adjusting the interests which compete in 
the situation before us of necessity belongs to the Congress.''\127\ 
Therefore, after considering at some length the factors to be balanced, 
Justice Frankfurter concluded: ``It is not for us to decide how we would 
adjust the clash of interests which this case presents were the primary 
responsibility for reconciling it ours. Congress has determined that the 
danger created by advocacy of overthrow justifies the ensuing 
restriction on freedom of speech.

[[Page 1046]]
The determination was made after due deliberation, and the seriousness 
of the congressional purpose is attested by the volume of legislation 
passed to effectuate the same ends.''\128\ Only if the balance struck by 
the legislature is ``outside the pale of fair judgment''\129\ could the 
Court hold that Congress was deprived by the Constitution of the power 
it had exercised.\130\

        \124\Dennis v. United States, 341 U.S. 494, 517 (1951) 
(concurring opinion).
        \125\Id. at 524-25.
        \126\Id. at 542.
        \127\Id. at 525.
        \128\Id. at 550-51.
        \129\Id. at 540.
        \130\Id. at 551.
---------------------------------------------------------------------------

        Thereafter, during the 1950's and the early 1960's, the Court 
utilized the balancing test in a series of decisions in which the issues 
were not, as they were not in Douds and Dennis, matters of expression or 
advocacy as a threat but rather were governmental inquiries into 
associations and beliefs of persons or governmental regulation of 
associations of persons, based on the idea that beliefs and associations 
provided adequate standards for predicting future or intended conduct 
that was within the power of government to regulate or to prohibit. 
Thus, in the leading case on balancing, Konigsberg v. State Bar of 
California,\131\ the Court upheld the refusal of the State to certify an 
applicant for admission to the bar. Required to satisfy the Committee of 
Bar Examiners that he was of ``good moral character,'' Konigsberg 
testified that he did not believe in the violent overthrow of the 
government and that he had never knowingly been a member of any 
organization which advocated such action, but he declined to answer any 
question pertaining to membership in the Communist Party.

        \131\366 U.S. 36 (1961).
---------------------------------------------------------------------------

        For the Court, Justice Harlan began by asserting that freedom of 
speech and association were not absolutes but were subject to various 
limitations. Among the limitations, ``general regulatory statutes, not 
intended to control the content of speech but incidentally limiting its 
unfettered exercise, have not been regarded as the type of law the First 
or Fourteenth Amendment forbade Congress or the States to pass, when 
they have been found justified by subordinating valid governmental 
interests, a prerequisite to constitutionality which has necessarily 
involved a weighing of the governmental interest involved.''\132\ The 
governmental interest involved was the assurance that those admitted to 
the practice of law were committed to lawful change in society and it 
was proper for the State to believe that one possessed of ``a belief, 
firm enough to be carried over into advocacy, in the use of illegal 
means to change the form'' of government did not meet the standard of 
fitness.\133\ On the other hand, the First Amendment interest was 
limited be

[[Page 1047]]
cause there was ``minimal effect upon free association occasioned by 
compulsory disclosure'' under the circumstances. ``There is here no 
likelihood that deterrence of association may result from foreseeable 
private action . . . for bar committee interrogations such as this are 
conducted in private. . . . Nor is there the possibility that the State 
may be afforded the opportunity for imposing undetectable arbitrary 
consequences upon protected association . . . for a bar applicant's 
exclusion by reason of Communist Party membership is subject to judicial 
review, including ultimate review by this Court, should it appear that 
such exclusion has rested on substantive or procedural factors that do 
not comport with the Federal Constitution.''\134\

        \132\Id. at 50-51.
        \133\Id. at 51-52.
        \134\Id. at 52-53. See also In re Anastaplo, 366 U.S. 82 (1961). 
The status of these two cases is in doubt after Baird v. State Bar, 401 
U.S. 1 (1971), and In re Stolar, 401 U.S. 23 (1971), in which neither 
the plurality nor the concurring Justice making up the majority used a 
balancing test.
---------------------------------------------------------------------------

        Balancing was used to sustain congressional and state inquiries 
into the associations and activities of individuals in connection with 
allegations of subversion\135\ and to sustain proceedings against the 
Communist Party and its members.\136\ In certain other cases, involving 
state attempts to compel the production of membership lists of the 
National Association for the Advancement of Colored People and to 
investigate that organization, use of the balancing test resulted in a 
finding that speech and associational rights outweighed the governmental 
interest claimed.\137\ The Court used a balancing test in the late 
1960's to protect the speech rights of a public employee who had 
criticized his employers.\138\ On the other hand, balancing was not used 
when the Court struck down restrictions on receipt of materials mailed 
from Communist countries,\139\ and it was similarly not used in cases 
involving picketing, pamphleteering, and demonstrating in public 
places.\140\ But the only case in which it was specifically rejected 
involved a statutory regulation like those which had given rise to the 
test in the first

[[Page 1048]]
place. United States v. Robel\141\ held invalid under the First 
Amendment a statute which made it unlawful for any member of an 
organization which the Subversive Activities Control Board had ordered 
to register to work in a defense establishment.\142\ Although Chief 
Justice Warren for the Court asserted that the vice of the law was that 
its proscription operated per se ``without any need to establish that an 
individual's association poses the threat feared by the Government in 
proscribing it,''\143\ the rationale of the decision was not clear and 
present danger but the existence of less restrictive means by which the 
governmental interest could be accomplished.\144\ In a concluding 
footnote, the Court said: ``It has been suggested that this case should 
be decided by `balancing' the governmental interests . . . against the 
First Amendment rights asserted by the appellee. This we decline to do. 
We recognize that both interests are substantial, but we deem it 
inappropriate for this Court to label one as being more important or 
more substantial than the other. Our inquiry is more circumscribed. 
Faced with a clear conflict between a federal statute enacted in the 
interests of national security and an individual's exercise of his First 
Amendment rights, we have confined our analysis to whether Congress has 
adopted a constitutional means in achieving its concededly legitimate 
legislative goal. In making this determination we have found it 
necessary to measure the validity of the means adopted by Congress 
against both the goal it has sought to achieve and the specific 
prohibitions of the First Amendment. But we have in no way `balanced' 
those respective interests. We have ruled only that the Constitution 
requires that the conflict between congressional power and individual 
rights be accommodated by legislation drawn more narrowly to avoid the 
conflict.''\145\

        \135\Barenblatt v. United States, 360 U.S. 109 (1959); Uphaus v. 
Wyman, 360 U.S. 72 (1959); Wilkinson v. United States, 365 U.S. 399 
(1961); Braden v. United States, 365 U.S. 431 (1961).
        \136\Communist Party v. SACB, 367 U.S. 1 (1961); Scales v. 
United States, 367 U.S. 203 (1961).
        \137\NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958); 
NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964); Gibson v. Florida 
Legislative Investigating Committee, 372 U.S. 539 (1963).
        \138\Pickering v. Board of Education, 391 U.S. 563 (1968).
        \139\Lamont v. Postmaster General, 381 U.S. 301 (1965).
        \140\E.g., Cox v. Louisiana, 379 U.S. 536 and 559 (1965) (2 
cases); Edwards v. South Carolina, 372 U.S. 229 (1963); Adderley v. 
Florida, 385 U.S. 39 (1966); Brown v. Louisiana, 383 U.S. 131 (1966). 
But see Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), where balancing 
reappears and in which other considerations overbalance the First 
Amendment claims.
        \141\389 U.S. 258 (1967).
        \142\Subversive Activities Control Act of 1950, Sec. 5(a)(1)(D), 
ch. 1024, 64 Stat. 992, 50 U.S.C. Sec. 784(a)(1)(D).
        \143\United States v. Robel, 389 U.S. 258, 265 (1967).
        \144\Id. at 265-68.
        \145\Id. at 268 n.20.
---------------------------------------------------------------------------

        The ``Absolutist'' View of the First Amendment, With a Note on 
``Preferred Position''.--During much of this period, the opposition to 
the balancing test was led by Justices Black and Douglas, who espoused 
what may be called an ``absolutist'' position, denying the government 
any power to abridge speech. But the beginnings of such a philosophy may 
be gleaned in much earlier cases in which a rule of decision based on a 
preference for First Amendment liberties was prescribed. Thus, Chief 
Justice Stone in his famous Carolene Products ``footnote 4'' suggested 
that the ordinary presumption of constitutionality which prevailed when 
economic

[[Page 1049]]
regulation was in issue might very well be reversed when legislation 
which restricted ``those political processes which can ordinarily be 
expected to bring about repeal of undesirable legislation'' is called 
into question.\146\ Then in Murdock v. Pennsylvania,\147\ in striking 
down a license tax on religious colporteurs, the Court remarked that 
``[f]reedom of press, freedom of speech, freedom of religion are in a 
preferred position.'' Two years later the Court indicated that its 
decision with regard to the constitutionality of legislation regulating 
individuals is ``delicate . . . [especially] where the usual presumption 
supporting legislation is balanced by the preferred place given in our 
scheme to the great, the indispensable democratic freedoms secured by 
the First Amendment. . . . That priority gives these liberties a 
sanctity and a sanction not permitting dubious intrusions.''\148\ The 
``preferred-position'' language was sharply attacked by Justice 
Frankfurter in Kovacs v. Cooper\149\ and it dropped from the opinions, 
although its philosophy did not.

        \146\United States v. Carolene Products Co., 304 U.S. 144, 152 
n.4 (1938).
        \147\319 U.S. 105, 115 (1943). See also West Virginia State Bd. 
of Educ. v. Barnette, 319 U.S. 624, 639 (1943).
        \148\Thomas v. Collins, 323 U.S. 516, 529-30 (1945).
        \149\336 U.S. 77, 89 (1949) (collecting cases with critical 
analysis).
---------------------------------------------------------------------------

        Justice Black expressed his position in many cases but his 
Konigsberg dissent contains one of the lengthiest and clearest 
expositions of it.\150\ That a particular governmental regulation 
abridged speech or deterred it was to him ``sufficient to render the 
action of the State unconstitutional'' because he did not subscribe ``to 
the doctrine that permits constitutionally protected rights to be 
`balanced' away whenever a majority of this Court thinks that a State 
might have an interest sufficient to justify abridgment of those 
freedoms . . . I believe that the First Amendment's unequivocal command 
that there shall be no abridgment of the rights of free speech and 
assembly shows that the men who drafted our Bill of Rights did all the 
`balancing' that was to be done in this field.''\151\ As he elsewhere 
wrote: ``First Amendment rights are beyond abridgment either by 
legislation that directly restrains their exer

[[Page 1050]]
cise or by suppression or impairment through harassment, humiliation, or 
exposure by government.''\152\ But the ``First and Fourteenth Amendments 
. . . take away from government, state and federal, all power to 
restrict freedom of speech, press and assembly where people have a right 
to be for such purpose. This does not mean however, that these 
amendments also grant a constitutional right to engage in the conduct of 
picketing or patrolling whether on publicly owned streets or on 
privately owned property.''\153\ Thus, in his last years on the Court, 
the Justice, while maintaining an ``absolutist'' position, increasingly 
drew a line between ``speech'' and ``conduct which involved 
communication.''\154\

        \150\Konigsberg v. State Bar of California, 366 U.S. 36, 56 
(1961) (dissenting opinion). See also Braden v. United States, 365 U.S. 
431, 441 (1961) (dissenting); Wilkinson v. United States, 365 U.S. 399, 
422 (1961) (dissenting); Uphaus v. Wyman, 364 U.S. 388, 392 (1960) 
(dissenting); Barenblatt v. United States, 360 U.S. 109, 140 (1959) 
(dissenting); American Communications Ass'n v. Douds, 339 U.S. 382, 445 
(1950); Communist Party v. SACB, 367 U.S. 1, 137 (1961) (dissenting); 
Beauharnais v. Illinois, 343 U.S. 250, 267 (1952) (dissenting); New York 
Times Co. v. Sullivan, 376 U.S. 254, 293 (1964) (concurring); New York 
Times Co. v. United States, 403 U.S. 713, 714 (1971) (concurring). For 
Justice Douglas' position, see New York Times Co. v. United States, 
supra, 403 U.S. at 720 (concurring); Roth v. United States, 354 U.S. 
476, 508 (1957) (dissenting); Brandenburg v. Ohio, 395 U.S. 444, 450 
(1969) (concurring).
        \151\Konigsberg v. State Bar of California, 366 U.S. 36, 60-61 
(1961).
        \152\Bates v. City of Little Rock, 361 U.S. 516, 528 (1960) 
(concurring).
        \153\Cox v. Louisiana, 379 U.S. 559, 578, 581 (1965) 
(dissenting).
        \154\These cases involving important First Amendment issues are 
dealt with infra, pp. 1123-42. See Brown v. Louisiana, 383 U.S. 131 
(1966); Adderley v. Florida, 385 U.S. 39 (1966).
---------------------------------------------------------------------------

        Of Other Tests and Standards: Vagueness, Overbreadth, Least 
Restrictive Means, and Others.--In addition to the foregoing tests, the 
Court has developed certain standards that are exclusively or primarily 
applicable in First Amendment litigation. Some of these, such as the 
doctrines prevalent in the libel and obscenity areas, are very 
specialized,\155\ but others are not. Vagueness is a due process vice 
which can be brought into play with regard to any criminal and many 
civil statutes,\156\ but as applied in areas respecting expression it 
also encompasses concern that protected conduct will be deterred out of 
fear that the statute is capable of application to it. Vagueness has 
been the basis for voiding numerous such laws, especially in the fields 
of loyalty oaths,\157\ obscenity,\158\ and restrictions on public 
demonstrations.\159\ It is usually combined with the overbreadth 
doctrine, which focuses on the

[[Page 1051]]
need for precision in drafting a statute that may affect First Amendment 
rights;\160\ an overbroad statute that sweeps under its coverage both 
protected and unprotected speech and conduct will normally be struck 
down as facially invalid, although in a non-First Amendment situation 
the Court would simply void its application to protected conduct.\161\ 
Similarly, and closely related at least to the overbreadth doctrine, the 
Court has insisted that when the government seeks to carry out a 
permissible goal and it has available a variety of effective means to 
the given end, it must choose the measure which least interferes with 
rights of expression.\162\ Also, the Court has insisted that regulatory 
measures which bear on expression must relate to the achievement of the 
purpose asserted as its justification.\163\ The prevalence of these 
standards and tests in this area would appear to indicate that while 
``preferred position'' may have disappeared from the Court's language it 
has not disappeared from its philosophy.

        \155\Infra, pp.1136-45, 1149-59.
        \156\The vagueness doctrine generally requires that a statute be 
precise enough to give fair warning to actors that contemplated conduct 
is criminal, and to provide adequate standards to enforcement agencies, 
factfinders, and reviewing courts. See, e.g., Connally v. General 
Construction Co., 269 U.S. 385 (1926); Lanzetta v. New Jersey, 306 U.S. 
451 (1939); Colautti v. Franklin, 439 U.S. 379 (1979); Village of 
Hoffman Estates v. Flipside, 455 U.S. 489 (1982).
        \157\E.g., Cramp v. Board of Pub. Instruction, 368 U.S. 278 
(1961); Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of 
Regents, 385 U.S. 589 (1967). See also Gentile v. State Bar of Nevada, 
501 U.S. 1030 (1991) (attorney discipline, extrajudicial statements).
        \158\E.g., Winters v. New York, 333 U.S. 507 (1948); Burstyn v. 
Wilson, 343 U.S. 495 (1952); Interstate Circuit v. City of Dallas, 390 
U.S. 676 (1968).
        \159\E.g., Cantwell v. Connecticut, 310 U.S. 296 (1940); Gregory 
v. City of Chicago, 394 U.S. 111 (1969); Coates v. City of Cincinnati, 
402 U.S. 611 (1971). See also Smith v. Goguen, 415 U.S. 566 (1974) (flag 
desecration law); Lewis v. City of New Orleans, 415 U.S. 130 (1974) 
(punishment of opprobrious words); Hynes v. Mayor of Oradell, 425 U.S. 
610 (1976) (door-to-door canvassing). For an evident narrowing of 
standing to assert vagueness, see Young v. American Mini Theatres, 427 
U.S. 50, 60 (1976).
        \160\NAACP v. Button, 371 U.S. 415, 432-33 (1963).
        \161\E.g., Kunz v. New York, 340 U.S. 290 (1951); Aptheker v. 
Secretary of State, 378 U.S. 500 (1964); United States v. Robel, 389 
U.S. 258 (1967); Zwickler v. Koota, 389 U.S. 241 (1967); Lewis v. City 
of New Orleans, 415 U.S. 130 (1974). However, the Court's 
dissatisfaction with the reach of the doctrine, see e.g., Younger v. 
Harris, 401 U.S. 37 (1971), resulted in a curbing of it in Broadrick v. 
Oklahoma, 413 U.S. 601 (1973), a 5-to-4 decision, in which the Court 
emphasized ``that facial overbreadth adjudication is an exception to our 
traditional overbreadth adjudication,'' and held that where conduct and 
not merely speech is concerned ``the overbreadth of a statute must not 
only be real, but substantial as well, judged in relation to the 
statute's plainly legitimate sweep,'' Id. at 615. The opinion of the 
Court and Justice Brennan's dissent, id. at 621, contain extensive 
discussion of the doctrine. Other restrictive decisions are Arnett v. 
Kennedy, 416 U.S. 134, 158-64 (1974); Parker v. Levy, 417 U.S. 733, 757-
61 (1974); and New York v. Ferber, 458 U.S. 747, 766-74 (1982). 
Nonetheless, the doctrine continues to be used across a wide spectrum of 
First Amendment cases. Bigelow v. Virginia, 421 U.S. 809, 815-18 (1975); 
Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Doran v. Salem 
Inn, 422 U.S. 922, 932-34 (1975); Village of Schaumburg v. Citizens for 
a Better Environment, 444 U.S. 620, 633-39 (1980); Secretary of State of 
Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) (charitable 
solicitation statute placing 25% cap on fundraising expenditures); City 
of Houston v. Hill, 482 U.S. 451 (1987) (city ordinance making it 
unlawful to ``oppose, molest, abuse, or interrupt'' police officer in 
performance of duty); Board of Airport Comm'rs v. Jews for Jesus, 482 
U.S. 569 (1987) (resolution banning all ``First Amendment activities'' 
at airport).
        \162\Shelton v. Tucker, 364 U.S. 479 (1960); United States v. 
Robel, 389 U.S. 258 (1967); Schneider v. Smith, 390 U.S. 17 (1968); 
Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 
425 U.S. 748 (1976); Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 
557, 564, 565, 569-71 (1980).
        \163\Bates v. City of Little Rock, 361 U.S. 516, 525 (1960); 
NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 464 (1958); Louisiana 
ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961). See also Central 
Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 564, 565, 569 (1980).
---------------------------------------------------------------------------

        Is There a Present Test?--Complexities inherent in the myriad 
varieties of expression encompassed by the First Amendment guarantees of 
speech, press, and assembly probably preclude any

[[Page 1052]]
single standard. For certain forms of expression for which protection is 
claimed, the Court engages in ``definitional balancing'' to determine 
that those forms are outside the range of protection.\164\ Balancing is 
in evidence to enable the Court to determine whether certain covered 
speech is entitled to protection in the particular context in which the 
question arises.\165\ Utilization of vagueness, overbreadth and less 
intrusive means may very well operate to reduce the occasions when 
questions of protection must be answered squarely on the merits. What is 
observable, however, is the re-emergence, at least in a tentative 
fashion, of something like the clear and present danger standard in 
advocacy cases, which is the context in which it was first developed. 
Thus, in Brandenburg v. Ohio,\166\ a conviction under a criminal 
syndicalism statute of advocating the necessity or propriety of criminal 
or terroristic means to achieve political change was reversed. The 
prevailing doctrine developed in the Communist Party cases was that 
``mere'' advocacy was protected but that a call for concrete, forcible 
action even far in the future was not protected speech and knowing 
membership in an organization calling for such action was not protected 
association, regardless of the probability of success.\167\ In 
Brandenburg, however, the Court reformulated these and other rulings to 
mean ``that the constitutional guarantees of free speech and free press 
do not permit a State to forbid or proscribe advocacy of the use of 
force or of law violation except where such advocacy is directed to 
inciting or producing imminent lawless action and is likely to incite or 
produce such action.''\168\ The Court has not revisited these is

[[Page 1053]]
sues since Brandenburg, so the long-term significance of the decision is 
yet to be determined.

        \164\Thus, obscenity, by definition, is outside the coverage of 
the First Amendment, Roth v. United States, 354 U.S. 476 (1957); Paris 
Adult Theatre v. Slaton, 413 U.S. 49 (1973), as are malicious 
defamation, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and 
``fighting words,'' Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 
The Court must, of course, decide in each instance whether the 
questioned expression definitionally falls within one of these or 
another category. See, e.g., Jenkins v. Georgia, 418 U.S. 153 (1974); 
Gooding v. Wilson, 405 U.S. 518 (1972).
        \165\E.g., the multifaceted test for determining when commercial 
speech is protected, Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 
557, 566 (1980); the standard for determining when expressive conduct is 
protected, United States v. O'Brien, 391 U.S. 367, 377 (1968); the 
elements going into decision with respect to access at trials, Globe 
Newspaper Co. v. Superior Court, 457 U.S. 596, 606-10 (1982); and the 
test for reviewing press ``gag orders'' in criminal trials, Nebraska 
Press Ass'n v. Stuart, 427 U.S. 539, 562-67 (1976), are but a few 
examples.
        \166\395 U.S. 444 (1969).
        \167\Yates v. United States, 354 U.S. 298 (1957); Scales v. 
United States 367 U.S. 203 (1961): Noto v. United States, 367 U.S. 290 
(1961). And see Bond v. Floyd, 385 U.S. 116 (1966); Watts v. United 
States, 394 U.S. 705 (1969).
        \168\395 U.S. at 447 (1969). Subsequent cases relying on 
Brandenburg indicate the standard has considerable bite, but do not 
elaborate sufficiently enough to begin filling in the outlines of the 
test. Hess v. Indiana, 414 U.S. 105 (1973); NAACP v. Claiborne Hardware 
Co., 458 U.S. 886, 928 (1982). But see Haig v. Agee, 453 U.S. 280, 308-
09 (1981).
---------------------------------------------------------------------------

                             FIRST AMENDMENT

                         RELIGION AND EXPRESSION

                 FREEDOM OF EXPRESSION--SPEECH AND PRESS


      Freedom of Belief

        The First Amendment does not expressly speak in terms of liberty 
to hold such beliefs as one chooses, but in both the religion and the 
expression clauses, it is clear, liberty of belief is the foundation of 
the liberty to practice what religion one chooses and to express oneself 
as one chooses.\169\ ``If there is any fixed star in our constitutional 
constellation, it is that no official, high or petty, can prescribe what 
shall be orthodox in politics, nationalism, religion, or other matters 
of opinion or force citizens to confess by word or act their faith 
therein.''\170\ Speaking in the context of religious freedom, the Court 
at one point said that while the freedom to act on one's beliefs could 
be limited, the freedom to believe what one will ``is absolute.''\171\ 
But matters are not so simple.

        \169\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 
(1943); Cantwell v. Connecticut, 310 U.S. 296, 303-04 (1940); United 
States v. Ballard, 322 U.S. 78 (1944); Torcaso v. Watkins, 367 U.S. 488 
(1961); American Communications Ass'n v. Douds, 339 U.S. 382, 408 
(1950); Bond v. Floyd, 385 U.S. 116, 132 (1966); Speiser v. Randall, 357 
U.S. 513 (1958); Baird v. State Bar of Arizona, 401 U.S. 1, 5-6 (1971), 
and id. at 9-10 (Justice Stewart concurring).
        \170\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 
642 (1943).
        \171\Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
---------------------------------------------------------------------------

        Flag Salute Cases.--That government generally may not compel a 
person to affirm a belief is the principle of the second Flag Salute 
Case.\172\ In Minersville School District v. Gobitis,\173\ the Court 
upheld the power of the State to expel from its schools certain 
children, Jehovah's Witnesses, who refused upon religious grounds to 
join in a flag salute ceremony and recitation of the pledge of 
allegiance. ``Conscientious scruples have not, in the course of the long 
struggle for religious toleration, relieved the individual from 
obedience to a general law not aimed at the promotion or restriction of 
religious beliefs.''\174\ But three years later, a six-to-three majority 
of the Court reversed itself.\175\ Justice Jackson for 

        \172\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 
(1943).
        \173\310 U.S. 586 (1940).
        \174\Id. at 594. Justice Stone alone dissented, arguing that the 
First Amendment religion and speech clauses forbade coercion of ``these 
children to express a sentiment which, as they interpret it, they do not 
entertain, and which violates their deepest religious convictions.'' Id. 
at 601.
        \175\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 
(1943). Justices Roberts and Reed simply noted their continued adherence 
to Gobitis. Id. at 642. Justice Frankfurter dissented at some length, 
denying that the First Amendment authorized the Court ``to deny to the 
State of West Virginia the attainment of that which we all recognize as 
a legitimate legislative end, namely, the promotion of good citizenship, 
by employment of the means here chosen.'' Id. at 646, 647.

---------------------------------------------------------------------------

[[Page 1054]]


    the Court chose to ignore the religious argument and to ground the 
    decision upon freedom of speech. The state policy, he said, 
    constituted ``a compulsion of students to declare a belief. . . . It 
    requires the individual to communicate by word and sign his 
    acceptance of the political ideas [the flag] bespeaks.''\176\ But 
    the power of a State to follow a policy that ``requires affirmation 
    of a belief and an attitude of mind'' is limited by the First 
    Amendment, which, under the standard then prevailing, required the 
    State to prove that the act of the students in remaining passive 
    during the ritual ``creates a clear and present danger that would 
    justify an effort even to muffle expression.''\177\


        \176\Id. at 631, 633.
        \177\Id. at 633-34. Barnette was the focus of the Court's 
decision in Wooley v. Maynard, 430 U.S. 705 (1977), voiding the state's 
requirement that motorists display auto license plates bearing the motto 
``Live Free or Die.'' Acting on the complaint of a Jehovah's Witness, 
the Court held that one may not be compelled to display on his private 
property a message making an ideological statement. Compare PruneYard 
Shopping Center v. Robins, 447 U.S. 74, 85-88 (1980), and id. at 96 
(Justice Powell concurring).
---------------------------------------------------------------------------

        However, the principle of Barnette does not extend so far as to 
bar government from requiring of its employees or of persons seeking 
professional licensing or other benefits an oath generally but not 
precisely based on the oath required of federal officers, which is set 
out in the Constitution, that the taker of the oath will uphold and 
defend the Constitution.\178\ It is not at all clear, however, to what 
degree the government is limited in probing the sincerity of the person 
taking the oath.\179\

        \178\Cole v. Richardson, 405 U.S. 676 (1972); Connell v. 
Higginbotham, 403 U.S. 207 (1971); Bond v. Floyd, 385 U.S. 116 (1966); 
Knight v. Board of Regents, 269 F. Supp. 339 (S.D.N.Y. 1967) (three-
judge court), aff'd, 390 U.S. 36 (1968); Hosack v. Smiley, 276 F. Supp. 
876 (C.D. Colo. 1967) (three-judge court), aff'd, 390 U.S. 744 (1968); 
Ohlson v. Phillips, 304 F. Supp. 1152 (C.D. Colo. 1969) (three-judge 
court), aff'd., 397 U.S. 317 (1970); Law Students Civil Rights Research 
Council v. Wadmond, 401 U.S. 154, 161 (1971); Fields v. Askew, 279 So. 
2d 822 (Fla. 1973), aff'd per curiam, 414 U.S. 1148 (1974).
        \179\Compare Bond v. Floyd, 385 U.S. 116 (1966), with Law 
Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971).
---------------------------------------------------------------------------

        Imposition of Consequences for Holding Certain Beliefs.--Despite 
the Cantwell dictum that freedom of belief is absolute,\180\ government 
has been permitted to inquire into the holding of certain beliefs and to 
impose consequences on the believers, primarily with regard to its own 
employees and to licensing certain professions.\181\ It is not clear 
what precise limitations the Court has placed on these practices.

        \180\Cantwell v. Connecticut, 310 U.S. 296, 303 (1940).
        \181\The issue has also arisen in the context of criminal 
sentencing. Evidence that racial hatred was a motivation for a crime may 
be taken into account, Barclay v. Florida, 463 U.S. 939, 949 (1983), but 
evidence of the defendant's membership in a racist group is inadmissible 
where race was not a factor and no connection had been established 
between the defendant's crime and the group's objectives. Dawson v. 
Delaware, 112 S. Ct. 4197 (1992). See also United States v. Abel, 469 
U.S. 45 (1984) (defense witness could be impeached by evidence that both 
witness and defendant belonged to group whose members were sworn to lie 
on each other's behalf).

---------------------------------------------------------------------------

[[Page 1055]]

        In its disposition of one of the first cases concerning the 
federal loyalty security program, the Court of Appeals for the District 
of Columbia asserted broadly that ``so far as the Constitution is 
concerned there is no prohibition against dismissal of Government 
employees because of their political beliefs, activities or 
affiliations.''\182\ On appeal, this decision was affirmed by an equally 
divided Court, it being impossible to determine whether this issue was 
one treated by the Justices.\183\ Thereafter, the Court dealt with the 
loyalty-security program in several narrow decisions not confronting the 
issue of denial or termination of employment because of beliefs or 
``beliefs plus.'' But the same issue was also before the Court in 
related fields. In American Communications Ass'n v. Douds,\184\ the 
Court was again evenly divided over a requirement that, in order for a 
union to have access to the NLRB, each of its officers must file an 
affidavit that he neither believed in, nor belonged to an organization 
that believed in, the overthrow of government by force or by illegal 
means. Chief Justice Vinson thought the requirement reasonable because 
it did not prevent anyone from believing what he chose but only 
prevented certain people from being officers of unions, and because 
Congress could reasonably conclude that a person with such beliefs was 
likely to engage in political strikes and other conduct which Congress 
could prevent.\185\ Dissenting, Justice Frankfurter thought the 
provision too vague,\186\ Justice Jackson thought that Congress could 
impose no disqualification upon anyone for an opinion or belief which 
had not manifested itself in any overt act,\187\ and Justice Black 
thought that government had no power to penalize beliefs in any 
way.\188\ Fi

[[Page 1056]]
nally, in Konigsberg v. State Bar of California,\189\ a majority of the 
Court was found supporting dictum in Justice Harlan's opinion in which 
he justified some inquiry into beliefs, saying that ``[i]t would indeed 
be difficult to argue that a belief, firm enough to be carried over into 
advocacy, in the use of illegal means to change the form of the State or 
Federal Government is an unimportant consideration in determining the 
fitness of applicants for membership in a profession in whose hands so 
largely lies the safekeeping of this country's legal and political 
institutions.''

        \182\Bailey v. Richardson, 182 F. 2d 46, 59 (D.C. Cir. 1950). 
The premise of the decision was that government employment is a 
privilege rather than a right and that access thereto may be conditioned 
as the Government pleases. But this basis, as the Court has said, ``has 
been thoroughly undermined in the ensuing years.'' Board of Regents v. 
Roth, 408 U.S. 564, 571 n.9 (1972). For the vitiation of the right-
privilege distinction, see infra, p.1085.
        \183\Bailey v. Richardson, 341 U.S. 918 (1951). See also 
Washington v. McGrath, 341 U.S. 923 (1951), aff'g by an equally divided 
Court, 182 F. 2d 375 (D.C. Cir. 1950). While no opinions were written in 
these cases, several Justices expressed themselves on the issues in 
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S. 123 (1951), 
decided the same day.
        \184\339 U.S. 382 (1950). In a later case raising the same 
point, the Court was again equally divided. Osman v. Douds, 339 U.S. 846 
(1950).
        \185\339 U.S. at 408-09, 412.
        \186\Id. at 415.
        \187\Id. at 422.
        \188\Id. at 445.
        \189\336 U.S. 36, 51-52 (1961). See also In re Anastaplo, 336 
U.S. 82, 89 (1961). Justice Black, joined by Justice Douglas and Chief 
Justice Warren, dissented on the ground that the refusal to admit the 
two to the state bars was impermissibly based upon their beliefs. Id. at 
56, 97.
---------------------------------------------------------------------------

        When the same issue returned to the Court years later, three 
five-to-four decisions left the principles involved unclear.\190\ Four 
Justices endorsed the view that beliefs could not be inquired into as a 
basis for determining qualifications for admission to the bar;\191\ four 
Justices endorsed the view that while mere beliefs might not be 
sufficient grounds to debar one from admission, the States were not 
precluded from inquiring into them for purposes of determining whether 
one was prepared to advocate violent overthrow of the government and to 
act on his beliefs.\192\ The decisive vote in each case was cast by a 
single Justice who would not permit denial of admission based on beliefs 
alone but would permit inquiry into those beliefs to an unspecified 
extent for purposes of determining that the required oath to uphold and 
defend the Constitution could be taken in good faith.\193\ Changes in 
Court personnel following this decision would seem to leave the 
questions presented open to further litigation.

        \190\Baird v. State Bar of Arizona, 401 U.S. 1 (1971); In re 
Stolar, 401 U.S. 23 (1971); Law Students Civil Rights Research Council 
v. Wadmond, 401 U.S. 154 (1971).
        \191\401 U.S. at 5-8; id. at 28-29 (plurality opinions of 
Justices Black, Douglas, Brennan, and Marshall in Baird and Stolar, 
respectively); id. at 174-76, 178-80 (Justices Black and Douglas 
dissenting in Wadmond), 186-90 (Justices Marshall and Brennan dissenting 
in Wadmond).
        \192\401 U.S. at 17-19, 21-22 (Justices Blackmun, Harlan, and 
White, and Chief Justice Burger dissenting in Baird).
        \193\401 U.S. at 9-10; id. at 31 (Justice Stewart concurring in 
Baird and Stolar, respectively). How far Justice Stewart would permit 
government to go is not made clear by his majority opinion in Wadmond. 
Id. at 161-66.
---------------------------------------------------------------------------
      Right of Association

        ``It is beyond debate that freedom to engage in association for 
the advancement of beliefs and ideas is an inseparable aspect of the 
`liberty' assured by the Due Process Clause of the Fourteenth Amendment, 
which embraces freedom of speech. . . . Of course, it

[[Page 1057]]
is immaterial whether the beliefs sought to be advanced by association 
pertain to political, economic, religious or cultural matters, and state 
action which may have the effect of curtailing the freedom to associate 
is subject to the closest scrutiny.''\194\ It would appear from the 
Court's opinions that the right of association is derivative from the 
First Amendment guarantees of speech, assembly, and petition,\195\ 
although it has at times seemingly been referred to as a separate, 
independent freedom protected by the First Amendment.\196\ The doctrine 
is a fairly recent construction, the problems associated with it having 
previously arisen primarily in the context of loyalty-security 
investigations of Communist Party membership, and these cases having 
been resolved without giving rise to any separate theory of 
association.\197\

        \194\NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460-61 
(1958).
        \195\Id.; Bates v. City of Little Rock, 361 U.S. 516, 522-23 
(1960); United Transportation Union v. State Bar of Michigan, 401 U.S. 
576, 578-79 (1971); Healy v. James, 408 U.S. 169, 181 (1972).
        \196\NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 461, 463 
(1958); NAACP v. Button, 371 U.S. 415, 429-30 (1963); Cousins v. Wigoda, 
419 U.S. 477, 487 (1975); In re Primus, 436 U.S. 412, 426 (1978); 
Democratic Party v. Wisconsin, 450 U.S. 107, 121 (1981).
        \197\Infra, pp.1067-78.
---------------------------------------------------------------------------

        Freedom of association as a concept thus grew out of a series of 
cases in the 1950's and 1960's in which certain States were attempting 
to curb the activities of the National Association for the Advancement 
of Colored People. In the first case, the Court unanimously set aside a 
contempt citation imposed after the organization refused to comply with 
a court order to produce a list of its members within the State. 
``Effective advocacy of both public and private points of view, 
particularly controversial ones, is undeniably enhanced by group 
association, as this Court has more than once recognized by remarking 
upon the close nexus between the freedoms of speech and assembly.''\198\ 
``[T]hese indispensable liberties, whether of speech, press, or 
association,''\199\ may be abridged by governmental action either 
directly or indirectly, wrote Justice Harlan, and the State had failed 
to demonstrate a need for the lists which would outweigh the harm to 
associational rights which disclosure would produce.

        \198\NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 
(1958).
        \199\Id. at 461.
---------------------------------------------------------------------------

        Applying the concept in subsequent cases, the Court again held 
in Bates v. City of Little Rock,\200\ that the disclosure of membership 
lists, because of the harm to be caused to ``the right of association,'' 
could only be compelled upon a showing of a subordinating interest; 
ruled in Shelton v. Tucker,\201\ that while a State had a broad inter

[[Page 1058]]
est to inquire into the fitness of its school teachers, that interest 
did not justify a regulation requiring all teachers to list all 
organizations to which they had belonged within the previous five years; 
again struck down an effort to compel membership lists from the 
NAACP;\202\ and overturned a state court order barring the NAACP from 
doing any business within the State because of alleged 
improprieties.\203\ Certain of the activities condemned in the latter 
case, the Court said, were protected by the First Amendment and, while 
other actions might not have been, the State could not so infringe on 
the ``right of association'' by ousting the organization 
altogether.\204\

        \200\361 U.S. 516 (1960).
        \201\364 U.S. 479 (1960).
        \202\Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961).
        \203\NAACP v. Alabama ex rel. Flowers, 377 U.S. 288 (1964).
        \204\Id. at 308, 309.
---------------------------------------------------------------------------

        A state order prohibiting the NAACP from urging persons to seek 
legal redress for alleged wrongs and from assisting and representing 
such persons in litigation opened up new avenues when the Court struck 
the order down as violating the First Amendment.\205\ ``[A]bstract 
discussion is not the only species of communication which the 
Constitution protects; the First Amendment also protects vigorous 
advocacy, certainly of lawful ends, against governmental intrusion. 
. . . In the context of NAACP objectives, litigation is not a technique 
of resolving private differences; it is a means for achieving the lawful 
objectives of equality of treatment by all government, federal, state 
and local, for the members of the Negro community in this country. It is 
thus a form of political expression. . . .

        \205\NAACP v. Button, 371 U.S. 415 (1963).
---------------------------------------------------------------------------

        ``We need not, in order to find constitutional protection for 
the kind of cooperative, organizational activity disclosed by this 
record, whereby Negroes seek through lawful means to achieve legitimate 
political ends, subsume such activity under a narrow, literal conception 
of freedom of speech, petition or assembly. For there is no longer any 
doubt that the First and Fourteenth Amendments protect certain forms of 
orderly group activity.''\206\ This decision was

[[Page 1059]]
followed in three subsequent cases in which the Court held that labor 
unions enjoyed First Amendment protection in assisting their members in 
pursuing their legal remedies to recover for injuries and other actions. 
In the first case, the union advised members to seek legal advice before 
settling injury claims and recommended particular attorneys;\207\ in the 
second the union retained attorneys on a salary basis to represent 
members;\208\ in the third, the union maintained a legal counsel 
department which recommended certain attorneys who would charge a 
limited portion of the recovery and which defrayed the cost of getting 
clients together with attorneys and of investigation of accidents.\209\ 
Wrote Justice Black: ``[T]he First Amendment guarantees of free speech, 
petition, and assembly give railroad workers the rights to cooperate in 
helping and advising one another in asserting their rights. . . .''\210\

        \206\Id. at 429-30. Button was applied in In re Primus, 436 U.S. 
412 (1978), in which the Court found foreclosed by the First and 
Fourteenth Amendments the discipline visited upon a volunteer lawyer for 
the American Civil Liberties Union who had solicited someone to utilize 
the ACLU to bring suit to contest the sterilization of Medicaid 
recipients. Both the NAACP and the ACLU were organizations that engaged 
in extensive litigation as well as lobbying and educational activities, 
all of which were means of political expression. ``[T]he efficacy of 
litigation as a means of advancing the cause of civil liberties often 
depends on the ability to make legal assistance available to suitable 
litigants.'' Id. at 431. ``[C]ollective activity undertaken to obtain 
meaningful access to the courts is a fundamental right within the 
protection of the First Amendment.'' Id. at 426. However, ordinary law 
practice for commercial ends is not given special protection. ``A 
lawyer's procurement of remunerative employment is a subject only 
marginally affected with First Amendment concerns.'' Ohralik v. Ohio 
State Bar Ass'n, 436 U.S. 447, 459 (1978). See also Bates v. State Bar 
of Arizona, 433 U.S. 350, 376 n.32 (1977).
        \207\Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 
(1964).
        \208\United Mine Workers v. Illinois State Bar Ass'n, 389 U.S. 
217 (1967).
        \209\United Transportation Union v. State Bar of Michigan, 401 
U.S. 576 (1971).
        \210\Id. at 578-79. These cases do not, however, stand for the 
proposition that individuals are always entitled to representation of 
counsel in administrative proceedings. See Walters v. Nat'l Ass'n of 
Radiation Survivors, 473 U.S. 305 (1985) (upholding limitation to $10 of 
fee that may be paid attorney in representing veteran's death or 
disability claims before VA).
---------------------------------------------------------------------------

        Thus, a right to associate together to further political and 
social views is protected against unreasonable burdening,\211\ but the 
evolution of this right in recent years has passed far beyond the 
relatively narrow contexts in which it was given birth.

        \211\E.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-15 
(1982) (concerted activities of group protesting racial bias); Healy v. 
James, 408 U.S. 169 (1972) (denial of official recognition to student 
organization by public college without justification abridged right of 
association). The right does not, however, protect the decision of 
entities not truly private to exclude minorities. Runyon v. McCrary, 427 
U.S. 160, 175-76 (1976); Norwood v. Harrison, 413 U.S. 455, 469-70 
(1973); Railway Mail Ass'n v. Corsi, 326 U.S. 88, 93-94 (1945); Roberts 
v. United States Jaycees, 468 U.S. 609 (1984).
---------------------------------------------------------------------------

        Social contacts that fall short of organization or association 
to ``engage in speech'' may be unprotected, however. In holding that a 
state may restrict admission to certain licensed dance halls to persons 
between the age of 14 and 18, the Court declared that there is no 
``generalized right of `social association' that includes chance 
encounters in dance halls.''\212\

        \212\City of Dallas v. Stanglin, 490 U.S. 19 (1989). The narrow 
factual setting--a restriction on adults dancing with teenagers in 
public--may be contrasted with the Court's broad assertion that ``coming 
together to engage in recreational dancing . . . is not protected by the 
First Amendment.'' Id. at 25.
---------------------------------------------------------------------------

        In a series of three decisions, the Court explored the extent to 
which associational rights may be burdened by nondiscrimination

[[Page 1060]]
requirements. First, Roberts v. United States Jaycees\213\ upheld 
application of the Minnesota Human Rights Act to prohibit the United 
States Jaycees from excluding women from full membership. Three years 
later in Board of Directors of Rotary Int'l v. Rotary Club of 
Duarte,\214\ the Court applied Roberts in upholding application of a 
similar California law to prevent Rotary International from excluding 
women from membership. Then, in New York State Club Ass'n v. New York 
City,\215\ the Court upheld against facial challenge New York City's 
Human Rights Law, which prohibits race, creed, sex, and other 
discrimination in places ``of public accommodation, resort, or 
amusement,'' and applies to clubs of more than 400 members providing 
regular meal service and supported by nonmembers for trade or business 
purposes. In Roberts, both the Jaycees' nearly indiscriminate membership 
requirements and the State's compelling interest in prohibiting 
discrimination against women were important to the Court's analysis. On 
the one hand, the Court found, ``the local chapters of the Jaycees are 
large and basically unselective groups,'' age and sex being the only 
established membership criteria in organizations otherwise entirely open 
to public participation. The Jaycees, therefore, ``lack the distinctive 
characteristics [e.g. small size, identifiable purpose, selectivity in 
membership, perhaps seclusion from the public eye] that might afford 
constitutional protection to the decision of its members to exclude 
women.''\216\ Similarly, the Court determined in Rotary International 
that Rotary Clubs, designed as community service organizations 
representing a cross section of business and professional occupations, 
also do not represent ``the kind of intimate or private relation that 
warrants constitutional protection.''\217\ And in the New York City 
case, the fact that the ordinance ``certainly could be constitutionally 
applied at least to some of the large clubs, under [the] decisions in 
Rotary and Roberts, the applicability criteria ``pinpointing 
organizations which are `commercial' in nature,'' helped to defeat the 
facial challenge.\218\

        \213\468 U.S. 609 (1984).
        \214\481 U.S. 537 (1987).
        \215\487 U.S. 1 (1988).
        \216\468 U.S. at 621.
        \217\481 U.S. at 546.
        \218\487 U.S. at 12.
---------------------------------------------------------------------------

        Some amount of First Amendment protection is still due such 
organizations; the Jaycees and its members had taken public positions on 
a number of issues, and had engaged in ``a variety of civic, charitable, 
lobbying, fundraising and other activities worthy of constitutional 
protection.'' However, the Roberts Court could find ``no basis in the 
record for concluding that admission of women as full

[[Page 1061]]
voting members will impede the organization's ability to engage in these 
protected activities or to disseminate its preferred views.''\219\ 
Moreover, the State had a ``compelling interest to prevent . . . acts of 
invidious discrimination in the distribution of publicly available 
goods, services, and other advantages.''\220\

        \219\468 U.S. at 626-27.
        \220\468 U.S. at 628.
---------------------------------------------------------------------------

        Because of the near-public nature of the Jaycees and Rotary 
Clubs--the Court in Roberts likening the situation to a large business 
attempting to discriminate in hiring or in selection of customers--the 
cases may be limited in application, and should not be read as governing 
membership discrimination by private social clubs.\221\ In New York 
City, the Court noted that ``opportunities for individual associations 
to contest the constitutionality of the Law as it may be applied against 
them are adequate to assure that any overbreadth . . . will be curable 
through case-by-case analysis of specific facts.''\222\

        \221\The Court in Rotary rejected an assertion that Roberts had 
recognized that Kiwanis Clubs are constitutionally distinguishable, and 
suggested that a case-by-case approach is necessary to determine whether 
``the `zone of privacy' extends to a particular club or entity.'' 481 
U.S. at 547 n.6.
        \222\487 U.S. at 15.
---------------------------------------------------------------------------

        Political Association.--The major expansion of the right of 
association has occurred in the area of political rights. ``There can no 
longer be any doubt that freedom to associate with others for the common 
advancement of political beliefs and ideas is a form of `orderly group 
activity' protected by the First and Fourteenth Amendments. . . . The 
right to associate with the political party of one's choice is an 
integral part of this basic constitutional freedom.''\223\ Usually in 
combination with an equal protection analysis, the Court since Williams 
v. Rhodes\224\ has passed on numerous state restrictions that have an 
impact upon the ability of individuals or groups to join one or the 
other of the major parties or to form and join an independent political 
party to further political, social and economic goals.\225\ Of course, 
the right is not absolute. The Court has recognized that there must be 
substantial state regulation of the election process which necessarily 
will work a diminu

[[Page 1062]]
tion of the individual's right to vote and to join with others for 
political purposes. The validity of governmental regulation must be 
determined by assessing the degree of infringement of the right of 
association against the legitimacy, strength, and necessity of the 
governmental interests and the means of implementing those 
interests.\226\ Many restrictions upon political association have 
survived this sometimes exacting standard of review, in large measure 
upon the basis of some of the governmental interests found 
compelling.\227\

        \223\Kusper v. Pontikes, 414 U.S. 51, 56-57 (1973).
        \224\393 U.S. 23 (1968).
        \225\E.g., Rosario v. Rockefeller, 410 U.S. 752 (1973) (time 
deadline for enrollment in party in order to vote in next primary); 
Kusper v. Pontikes, 414 U.S. 51 (1973) (barring voter from party primary 
if he voted in another party's primary within preceding 23 months); 
American Party of Texas v. White, 415 U.S. 767 (1974) (ballot access 
restriction); Illinois State Bd. of Elections v. Socialist Workers 
Party, 440 U.S. 173 (1979) (number of signatures to get party on 
ballot); Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290 
(1982) (limit on contributions to associations formed to support or 
oppose referendum measure); Clements v. Fashing, 457 U.S. 957 (1982) 
(resign-to-run law).
        \226\Williams v. Rhodes, 393 U.S. 23, 30-31 (1968); Bullock v. 
Carter, 405 U.S. 134, 142-143 (1972); Storer v. Brown, 415 U.S. 724, 730 
(1974); Illinois State Bd. of Elections v. Socialist Workers Party, 440 
U.S. 173, 183 (1979).
        \227\Thus, in Storer v. Brown, 415 U.S. 724, 736 (1974), the 
Court found ``compelling'' the state interest in achieving stability 
through promotion of the two-party system, and upheld a bar on any 
independent candidate who had been affiliated with any other party 
within one year. Compare Williams v. Rhodes, 393 U.S. 23, 31-32 (1968) 
(casting doubt on state interest in promoting Republican and Democratic 
voters). The state interest in protecting the integrity of political 
parties was held to justify requiring enrollment of a person in the 
party up to eleven months before a primary election, Rosario v. 
Rockefeller, 410 U.S. 752 (1973), but not to justify requiring one to 
forgo one election before changing parties. Kusper v. Pontikes, 414 U.S. 
51 (1973). See also Civil Service Comm'n v. National Ass'n of Letter 
Carriers, 413 U.S. 548 (1973) (efficient operation of government 
justifies limits on employee political activity); Rodriguez v. Popular 
Democratic Party, 457 U.S. 1 (1982) (permitting political party to 
designate replacement in office vacated by elected incumbent of that 
party serves valid governmental interests). Storer v. Brown was 
distinguished in Anderson v. Celebrezze, 460 U.S. 780 (1983), holding 
invalid a requirement that independent candidates for President and 
Vice-President file nominating petitions by March 20 in order to qualify 
for the November ballot; state interests in assuring voter education, 
treating all candidates equally (candidates participating in a party 
primary also had to declare candidacy in March), and preserving 
political stability, were deemed insufficient to justify the substantial 
impediment to independent candidates and their supporters. See also 
Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986) (state 
interests are insubstantial in imposing ``closed primary'' under which a 
political party is prohibited from allowing independents to vote in its 
primaries).
---------------------------------------------------------------------------

        A significant extension of First Amendment association rights in 
the political context occurred when the Court curtailed the already 
limited political patronage system. At first holding that a nonpolicy-
making, nonconfidential government employee cannot be discharged from a 
job that he is satisfactorily performing upon the sole ground of his 
political beliefs or affiliations,\228\ the Court subsequently held that 
``the question is whether the hiring authority can demonstrate that 
party affiliation is an appropriate requirement for the effective 
performance of the public office involved.''\229\

[[Page 1063]]
The concept of policymaking, confidential positions was abandoned, the 
Court noting that some such positions would nonetheless be protected 
whereas some people filling positions not reached by the description 
would not be.\230\ The opinion of the Court makes difficult an 
evaluation of the ramifications of the decision, but it seems clear that 
a majority of the Justices adhere to a doctrine of broad associational 
political freedom that will have substantial implications for 
governmental employment. Refusing to confine Elrod and Branti to their 
facts, the court in Rutan v. Republican Party of Illinois\231\ held that 
restrictions on patronage apply not only to dismissal or its substantial 
equivalent, but also to promotion, transfer, recall after layoffs, and 
hiring of low-level public employees.

        \228\Elrod v. Burns, 427 U.S. 347 (1976). The limited 
concurrence of Justices Stewart and Blackmun provided the qualification 
for an otherwise expansive plurality opinion. Id. at 374.
        \229\Branti v. Finkel, 445 U.S. 507, 518 (1980). On the same 
page, the Court refers to a position in which ``party membership was 
essential to a discharge of the employee's governmental 
responsibilities.'' (emphasis supplied). A great gulf separates 
``appropriate'' from ``essential,'' so that much depends on whether the 
Court was using the two words interchangeably or whether the stronger 
word was meant to characterize the position noted and not to 
particularize the standard.
        \230\Justice Powell's dissents in both cases contain lengthy 
treatments of and defenses of the patronage system as a glue 
strengthening necessary political parties. Id. at 520.
        \231\497 U.S. 62 (1990). Rutan was a 5-4 decision, with Justice 
Brennan writing the Court's opinion. The four dissenters indicated, in 
an opinion by Justice Scalia, that they would not only rule differently 
in Rutan, but that they would also overrule Elrod and Branti.
---------------------------------------------------------------------------

        The protected right of association extends as well to coverage 
of party principles, enabling a political party to assert against some 
state regulation an overriding interest sufficient to overcome the 
legitimate interests of the governing body. Thus, a Wisconsin law that 
mandated an open primary election, with party delegates bound to support 
at the national convention the wishes of the voters expressed in that 
primary election, while legitimate and valid in and of itself, had to 
yield to a national party rule providing for the acceptance of delegates 
chosen only in an election limited to those voters who affiliated with 
the party.\232\

        \232\Democratic Party v. Wisconsin ex rel. LaFollette, 450 U.S. 
107 (1981). See also Cousins v. Wigoda, 419 U.S. 477 (1975) (party 
rules, not state law, governed which delegation from State would be 
seated at national convention; national party had protected 
associational right to sit delegates it chose).
---------------------------------------------------------------------------

        Provisions of the Federal Election Campaign Act requiring the 
reporting and disclosure of contributions and expenditures to and by 
political organizations, including the maintenance by such organizations 
of records of everyone contributing more than $10 and the reporting by 
individuals and groups that are not candidates or political committees 
who contribute or expend more than $100 a year for the purpose of 
advocating the election or defeat of an identified candidate, were 
sustained.\233\ ``[C]ompelled disclosure, in itself, can seriously 
infringe on privacy of association and belief guaranteed by the First 
Amendment. . . . We long have recognized

[[Page 1064]]
the significant encroachments on First Amendment rights of the sort that 
compelled disclosure imposes cannot be justified by a mere showing of 
some legitimate governmental interest. . . . We have required that the 
subordinating interests of the State must survive exacting scrutiny. We 
have also insisted that there be a `relevant correlation' or 
`substantial relation' between the governmental interest and the 
information required to be disclosed.''\234\ The governmental interests 
effectuated by these requirements--providing the electorate with 
information, deterring corruption and the appearance of corruption, and 
gathering data necessary to detect violations--were found to be of 
sufficient magnitude to be validated even though they might incidentally 
deter some persons from contributing.\235\ A claim that contributions to 
minor parties and independents should have a blanket exemption from 
disclosure was rejected inasmuch as an injury was highly speculative; 
but any such party making a showing of a reasonable probability that 
compelled disclosure of contributors' names would subject them to 
threats or reprisals could obtain an exemption from the courts.\236\ The 
Buckley Court also narrowly construed the requirement of reporting 
independent contributions and expenditures in order to avoid 
constitutional problems.\237\

        \233\Buckley v. Valeo, 424 U.S. 1, 60-84 (1976).
        \234\Id. at 64 (footnote citations omitted).
        \235\Id. at 66-68.
        \236\Id. at 68-74. Such a showing, based on past governmental 
and private hostility and harassment, was made in Brown v. Socialist 
Wrokers '74 Campaign Comm., 459 U.S. 87 (1982).
        \237\424 U.S. at 74-84.
---------------------------------------------------------------------------

        Conflict Between Organization and Members.--It is to be expected 
that disputes will arise between an organization and some of its 
members, and that First Amendment principles may be implicated. Of 
course, unless there is some governmental connection, there will be no 
federal constitutional application to any such controversy.\238\ But at 
least in some instances, when government compels membership in an 
organization or in some manner lends its authority to such compulsion, 
there may well be constitutional limitations. Disputes implicating such 
limitations can arise in connection with union shop labor agreements 
permissible under the National Labor Relations Act and the Railway Labor 
Act.\239\

        \238\The Labor Management Reporting and Disclosure Act of 1959, 
73 Stat. 537, 29 U.S.C. Sec. Sec. 411-413, enacted a bill of rights for 
union members, designed to protect, inter alia, freedom of speech and 
assembly and the right to participate in union meetings on political and 
economic subjects.
        \239\Sec. 8(a)(3) of the Labor-Management Relations Act of 1947, 
61 Stat. 140, 29 U.S.C. Sec. 158(a)(3), permits the negotiation of union 
shop but not closed shop agreements, which, however, may be outlawed by 
contrary state laws. Sec. 14(b), 61 Stat. 151, 29 U.S.C. Sec. 164(b). 
See Lincoln Federal Labor Union v. Northwestern Iron & Metal Co., 335 
U.S. 525 (1949); AFL v. American Sash & Door Co., 335 U.S. 538 (1949). 
In industries covered by the Railway Labor Act, union shop agreements 
may be negotiated regardless of contrary state laws. 64 Stat. 1238, 45 
U.S.C. Sec. 152, Eleventh; Railway Employees Dept. v. Hanson, 351 U.S. 
225 (1956).

---------------------------------------------------------------------------

[[Page 1065]]

        Initially, the Court avoided constitutional issues in resolving 
a challenge by union shop employees to use of their dues money for 
political causes. Acknowledging ``the utmost gravity'' of the 
constitutional issues, the Court determined that Congress had intended 
that dues money obtained through union shop agreements should be used 
only to support collective bargaining and not in support of other 
causes.\240\ Justices Black and Douglas, in separate opinions, would 
have held that Congress could not constitutionally provide for 
compulsory membership in an organization which could exact from members 
money which the organization would then spend on causes which the 
members opposed; Justices Frankfurter and Harlan, also reaching the 
constitutional issue, would have held that the First Amendment was not 
violated when government did not compel membership but merely permitted 
private parties to enter into such agreements and that in any event so 
long as members were free to espouse their own political views the use 
by a union of dues money to support political causes which some members 
opposed did not violate the First Amendment.\241\

        \240\International Ass'n of Machinists v. Street, 367 U.S. 740 
(1961). The quoted phrase is at 749.
        \241\Id. at 775 (Justice Douglas concurring), 780 (Justice Black 
dissenting), 797 (Justices Frankfurter and Harlan dissenting). On the 
same day, a majority of the Court declined, in Lathrop v. Donohue, 367 
U.S. 820 (1961), to reach the constitutional issues presented by roughly 
the same fact situation in a suit by lawyers compelled to join an 
``integrated bar.'' These issues were faced squarely in Keller v. State 
Bar of California, 496 U.S. 1 (1990). An integrated state bar may not, 
against a members' wishes, devote compulsory dues to ideological or 
other political activities not ``necessarily or reasonably incurred for 
the purpose of regulating the legal profession or improving the quality 
of legal service available to the people of the State.'' Id. at 14.
---------------------------------------------------------------------------

        In Abood v. Detroit Board of Education,\242\ the Court applied 
Hanson and Street to the public employment context. Recognizing that 
employee associational rights were clearly restricted by any system of 
compelled support, because the employees had a right not to associate, 
not to support, the Court nonetheless found the governmental interests 
served by the agency shop provision--the promotion of labor peace and 
stability of employer-employee relations--to be of overriding importance 
and to justify the impact upon employee freedom.\243\ But a different 
balance was drawn

[[Page 1066]]
when the Court considered whether employees compelled to support the 
union were constitutionally entitled to object to the use of those 
exacted funds to support political candidates or to advance ideological 
causes not germane to the union's duties as collective-bargaining 
representative. To compel one to expend funds in such a way is to 
violate his freedom of belief and the right to act on those beliefs just 
as much as if government prohibited him from acting to further his own 
beliefs.\244\ However, the remedy was not to restrain the union from 
making non-collective bargaining related expenditures but to require 
that those funds come only from employees who do not object. Therefore, 
the lower courts were directed to oversee development of a system 
whereby employees could object generally to such use of union funds and 
could obtain either a proportionate refund or reduction of future 
exactions.\245\ Later, the Court further tightened the requirements. A 
proportionate refund is inadequate because ``even then the union obtains 
an involuntary loan for purposes to which the employee objects;''\246\ 
an advance reduction of dues corrects the problem only if accompanied by 
sufficient information by which employees may gauge the propriety of the 
union's fee.\247\ Therefore, the union procedure must also ``provide for 
a reasonably prompt decision by an impartial decisionmaker.''\248\

        \242\431 U.S. 209 (1977). That a public entity was the employer 
and the employees consequently were public employees was deemed 
constitutionally immaterial for the application of the principles of 
Hanson and Street, id. at 226-32, but Justice Powell found the 
distinction between public and private employment crucial. Id. at 244.
        \243\Id. at 217-23. The compelled support was through the agency 
shop device. Id. at 211, 217 n. 10. Justice Powell, joined by Chief 
Justice Burger and Justice Blackmun, would have held that compelled 
support by public employees of unions violated their First Amendment 
rights. Id. at 244. For an argument over the issue of corporate 
political contributions and shareholder rights, see First National Bank 
v. Bellotti, 435 U.S. 765, 792-95 (1978), and id. at 802, 812-21 
(Justice White dissenting).
        \244\431 U.S. at 232-37.
        \245\Id. at 237-42. On the other hand, nonmembers may be charged 
for such general union expenses as contributions to state and national 
affiliates, expenses of sending delegates to state and national union 
conventions, and costs of a union newsletter. Lehnert v. Ferris Faculty 
Ass'n, 500 U.S. 507 (1991).
        \246\Ellis v. Brotherhood of Railway, Airline & Steamship 
Clerks, 466 U.S. 435 (1984).
        \247\Chicago Teachers Union v. Hudson, 475 U.S. 292 (1986).
        \248\Id. at 309.
---------------------------------------------------------------------------

        On a related matter, the Court held that a labor relations body 
could not prevent a union member or employee represented exclusively by 
a union from speaking out at a public meeting on an issue of public 
concern, simply because the issue was a subject of collective bargaining 
between the union and the employer.\249\

        \249\Madison School Dist. v. WERC, 429 U.S. 167 (1977).
---------------------------------------------------------------------------
      Maintenance of National Security and the First Amendment

        Preservation of the security of the Nation from its enemies, 
foreign and domestic, is the obligation of government and one of the 
foremost reasons for government to exist. Pursuit of this goal may

[[Page 1067]]
lead government officials at times to trespass in areas protected by the 
guarantees of speech and press and may require the balancing away of 
rights which might be preserved inviolate at other times. The drawing of 
the line is committed, not exclusively but finally, to the Supreme 
Court. In this section, we consider a number of areas in which the 
necessity to draw lines has arisen.

        Punishment of Advocacy.--Criminal punishment for the advocacy of 
illegal or of merely unpopular goals and of ideas did not originate in 
the United States in the post-World War II concern with Communism. 
Enactment of and prosecutions under the Sedition Act of 1798\1\ and 
prosecutions under the federal espionage laws\2\ and state sedition and 
criminal syndicalism laws\3\ in the 1920's and early 1930's have been 
alluded to earlier.\4\ But it was in the 1950's and the 1960's that the 
Supreme Court confronted First Amendment concepts fully in determining 
the degree to which government could proceed against persons and 
organizations which it believed were plotting and conspiring both to 
advocate the overthrow of government and to accomplish that goal.

        \1\Supra, p.1022.
        \2\Supra, pp.1022-24, 1036-38. The cases included Schenck v. 
United States, 249 U.S. 47 (1919) (affirming conviction for attempting 
to disrupt conscription by circulation of leaflets bitterly condemning 
the draft); Debs v. United States, 249 U.S. 211 (1919) (affirming 
conviction for attempting to create insubordination in armed forces 
based on one speech advocating socialism and opposition to war, and 
praising resistance to the draft); Abrams v. United States, 250 U.S. 616 
(1919) (affirming convictions based on two leaflets, one of which 
attacked President Wilson as a coward and hypocrite for sending troops 
into Russia and the other of which urged workers not to produce 
materials to be used against their brothers).
        \3\Supra, p.1039. The cases included Gitlow v. New York, 268 
U.S. 652 (1925) (affirming conviction based on publication of 
``manifesto'' calling for the furthering of the ``class struggle'' 
through mass strikes and other mass action); Whitney v. California, 274 
U.S. 357 (1927) (affirming conviction based upon adherence to party 
which had platform rejecting parliamentary methods and urging a 
``revolutionary class struggle,'' the adoption of which defendant had 
opposed).
        \4\See also Taylor v. Mississippi, 319 U.S. 583 (1943), setting 
aside convictions of three Jehovah's Witnesses under a statute which 
prohibited teaching or advocacy intended to encourage violence, 
sabotage, or disloyalty to the government after the defendants had said 
that it was wrong for the President ``to send our boys across in uniform 
to fight our enemies'' and that boys were being killed ``for no purpose 
at all.'' The Court found no evil or sinister purpose, no advocacy of or 
incitement to subversive action, and no threat of clear and present 
danger to government.
---------------------------------------------------------------------------

        The Smith Act of 1940\5\ made it a criminal offense for anyone 
to knowingly or willfully advocate, abet, advise, or teach the duty, 
necessity, desirability, or propriety of overthrowing the Government of 
the United States or of any State by force or violence, or for anyone to 
organize any association which teaches, advises, or encourages such an 
overthrow, or for anyone to become a member of or to affiliate with any 
such association. No case involving pros

[[Page 1068]]
ecution under this law was reviewed by the Supreme Court until in Dennis 
v. United States\6\ it considered the convictions of eleven Communist 
Party leaders on charges of conspiracy to violate the advocacy and 
organizing sections of the statute. Chief Justice Vinson's plurality 
opinion for the Court applied a revised clear and present danger test\7\ 
and concluded that the evil sought to be prevented was serious enough to 
justify suppression of speech. ``If, then, this interest may be 
protected, the literal problem which is presented is what has been meant 
by the use of the phrase `clear and present danger' of the utterances 
bringing about the evil within the power of Congress to punish. 
Obviously, the words cannot mean that before the Government may act, it 
must wait until the putsch is about to be executed, the plans have been 
laid and the signal is awaited. If Government is aware that a group 
aiming at its overthrow is attempting to indoctrinate its members and to 
commit them to a course whereby they will strike when the leaders feel 
the circumstances permit, action by the Government is required.''\8\ 
``The mere fact that from the period 1945 to 1948 petitioners' 
activities did not result in an attempt to overthrow the Government by 
force and violence is of course no answer to the fact that there was a 
group that was ready to make the attempt. The formation by petitioners 
of such a highly organized conspiracy, with rigidly disciplined members 
subject to call when the leaders, these petitioners, felt that the time 
had come for action, coupled with the inflammable nature of world 
conditions, similar uprisings in other countries, and the touch-and-go 
nature of our relations with countries with whom petitioners were in the 
very least ideologically attuned, convince us that their convictions 
were justified on this score.''\9\

        \5\Ch. 439, 54 Stat. 670, 18 U.S.C. Sec. 2385.
        \6\341 U.S. 494 (1951).
        \7\Id. at 510, quoted supra, p. 1023.
        \8\Id. at 509.
        \9\Id. at 510-11.
---------------------------------------------------------------------------

        Justice Frankfurter in concurrence developed a balancing test, 
which, however, he deferred to the congressional judgment in applying, 
concluding that ``there is ample justification for a legislative 
judgment that the conspiracy now before us is a substantial threat to 
national order and security.''\10\ Justice Jackson's concurrence was 
based on his reading of the case as involving ``a conviction of 
conspiracy, after a trial for conspiracy, on an indictment charging 
conspiracy, brought under a statute outlawing conspiracy.'' Here the 
Government was dealing with ``permanently organized, well-financed, 
semi-secret, and highly disciplined organizations'' plotting

[[Page 1069]]
to overthrow the Government; under the First Amendment ``it is not 
forbidden to put down force and violence, it is not forbidden to punish 
its teaching or advocacy, and the end being punishable, there is no 
doubt of the power to punish conspiracy for the purpose.''\11\ Justices 
Black and Douglas dissented separately, the former viewing the Smith Act 
as an invalid prior restraint and calling for reversal of the 
convictions for lack of a clear and present danger, the latter applying 
the Holmes-Brandeis formula of clear and present danger to conclude that 
``[t]o believe that petitioners and their following are placed in such 
critical positions as to endanger the Nation is to believe the 
incredible.''\12\

        \10\Id. at 517, 542
        \11\Id. at 561, 572, 575.
        \12\Id. at 579 (Justice Black dissenting), 581, 589 (Justice 
Douglas dissenting).
---------------------------------------------------------------------------

        In Yates v. United States,\13\ the convictions of several 
second-string Communist Party leaders were set aside, a number ordered 
acquitted, and others remanded for retrial. The decision was based upon 
construction of the statute and appraisal of the evidence rather than on 
First Amendment claims, although each prong of the ruling seems to have 
been informed with First Amendment considerations. Thus, Justice Harlan 
for the Court wrote that the trial judge had given faulty instructions 
to the jury in advising that all advocacy and teaching of forcible 
overthrow was punishable, whether it was language of incitement or not, 
so long as it was done with an intent to accomplish that purpose. But 
the statute, the Justice continued, prohibited ``advocacy of action,'' 
not merely ``advocacy in the realm of ideas.'' ``The essential 
distinction is that those to whom the advocacy is addressed must be 
urged to do something, now or in the future, rather than merely to 
believe in something.''\14\ Second, the Court found the evidence 
insufficient to establish that the Communist Party had engaged in the 
required advocacy of action, requiring the Government to prove such 
advocacy in each instance rather than presenting evidence generally 
about the Party. Additionally, the Court found the evidence insufficient 
to link five of the defendants to advocacy of action, but sufficient 
with regard to the other nine.\15\

        \13\354 U.S. 298 (1957).
        \14\Id. at 314, 315-16, 320, 324-25.
        \15\Id. at 330-31, 332. Justices Black and Douglas would have 
held the Smith Act unconstitutional. Id. at 339. Justice Harlan's 
formulation of the standard by which certain advocacy could be punished 
was noticeably stiffened in Brandenburg v. Ohio, 395 U.S. 444 (1969).
---------------------------------------------------------------------------

        Compelled Registration of Communist Party.--The Internal 
Security Act of 1950 provided for a comprehensive regulatory scheme by 
which ``Communist-action organizations'' and ``Com

[[Page 1070]]
munist-front organizations'' could be curbed.\16\ Organizations found to 
fall within one or the other of these designations were required to 
register and to provide for public inspection membership lists, 
accountings of all money received and expended, and listings of all 
printing presses and duplicating machines; members of organizations 
which failed to register were required to register and members were 
subject to comprehensive restrictions and criminal sanctions. After a 
lengthy series of proceedings, a challenge to the registration 
provisions reached the Supreme Court, which sustained the 
constitutionality of the section under the First Amendment, only Justice 
Black dissenting on this ground.\17\ Employing the balancing test, 
Justice Frankfurter for himself and four other Justices concluded that 
the threat to national security posed by the Communist conspiracy 
outweighed considerations of individual liberty, the impact of the 
registration provision in this area in any event being limited to 
whatever ``public opprobrium and obloquy'' might attach.\18\ Three 
Justices based their conclusion on the premise that the Communist Party 
was an anti-democratic, secret organization, subservient to a foreign 
power, utilizing speech-plus in attempting to achieve its ends and 
therefore subject to extensive governmental regulation.\19\

        \16\Ch. 1024, 64 Stat. 987. Sections of the Act requiring 
registration of Communist-action and Communist-front organizations and 
their members were repealed in 1968. Pub. L. 90-237, Sec. 5, 81 Stat. 
766.
        \17\Communist Party v. SACB, 367 U.S. 1 (1961). The Court 
reserved decision on the self-incrimination claims raised by the Party. 
The registration provisions ultimately floundered on this claim. 
Albertson v. SACB, 382 U.S. 70 (1965).
        \18\Id. at 88-105. The quoted phrase is id. at 102.
        \19\Id. at 170-175 (Justice Douglas dissenting on other 
grounds), 191 (Justice Brennan and Chief Justice Warren dissenting on 
other grounds). Justice Black's dissent on First Amendment grounds 
argued that ``Congress has [no] power to outlaw an association, group or 
party either on the ground that it advocates a policy of violent 
overthrow of the existing Government at some time in the distant future 
or on the ground that it is ideologically subservient to some foreign 
country.'' Id. at 147.
---------------------------------------------------------------------------

        Punishment for Membership in an Organization Which Engages in 
Proscribed Advocacy.--It was noted above that the Smith Act also 
contained a provision making it a crime to organize or become a member 
of an organization which teaches, advocates, or encourages the overthrow 
of government by force or violence.\20\ The Government used this 
authority to proceed against Communist Party members. In Scales v. 
United States,\21\ the Court affirmed a conviction under this section 
and held it constitutional against First Amendment attack. Advocacy such 
as the Communist Party 

        \20\Supra, p.1067.
        \21\367 U.S. 203 (1961). Justices Black and Douglas dissented on 
First Amendment grounds, id. at 259, 262, while Justice Brennan and 
Chief Justice Warren dissented on statutory grounds. Id. at 278

---------------------------------------------------------------------------

[[Page 1071]]


    engaged in, Justice Harlan wrote for the Court, was unprotected 
    under Dennis, and he could see no reason why membership which 
    constituted a purposeful form of complicity in a group engaging in 
    such advocacy should be a protected form of association. Of course, 
    ``[i]f there were a similar blanket prohibition of association with 
    a group having both legal and illegal aims, there would indeed be a 
    real danger that legitimate political expression or association 
    would be impaired, but . . . [t]he clause does not make criminal all 
    association with an organization which has been shown to engage in 
    illegal advocacy.'' Only an ``active'' member of the Party--one who 
    with knowledge of the proscribed advocacy intends to accomplish the 
    aims of the organization--was to be punished, the Court said, not a 
    ``nominal, passive, inactive or purely technical'' member.\22\


        \22\Id. 228-30. In Noto v. United States, 367 U.S. 290 (1961), 
the Court reversed a conviction under the membership clause because the 
evidence was insufficient to prove that the Party had engaged in 
unlawful advocacy. ``[T]he mere abstract teaching of Communist theory, 
including the teaching of the moral propriety or even moral necessity 
for a resort to force and violence is not the same as preparing a group 
for violent action and steeling it to such action. There must be some 
substantial direct or circumstantial evidence of a call to violence now 
or in the future which is both sufficiently strong and sufficiently 
pervasive to lend color to the otherwise ambiguous theoretical material 
regarding Communist Party teaching, and to justify the inference that 
such a call to violence may fairly be imputed to the Party as a whole, 
and not merely to some narrow segment of it.'' Id. at 297-98.
---------------------------------------------------------------------------

        Disabilities Attaching to Membership in Proscribed 
Organizations.--The consequences of being or becoming a member of a 
proscribed organization can be severe. Aliens are subject to deportation 
for such membership.\23\ Congress made it unlawful for any member of an 
organization required to register as a ``Communist-action'' or a 
``Communist-front'' organization to apply for a passport or to use a 
passport.\24\ A now-repealed statute required as a condition of access 
to NLRB processes by any union that each of

[[Page 1072]]
its officers must file affidavits that he was not a member of the 
Communist Party or affiliated with it.\25\ The Court has sustained state 
bar associations in their efforts to probe into applicants' membership 
in the Communist Party in order to determine whether there was knowing 
membership on the part of one sharing a specific intent to further the 
illegal goals of the organization.\26\ A section of the Communist 
Control Act of 1954 was designed to keep the Communist Party off the 
ballot in all elections.\27\ The most recent interpretation of this type 
of disability is United States v. Robel,\28\ in which the Court held 
unconstitutional under the First Amendment a section of the Internal 
Security Act which made it unlawful for any member of an organization 
compelled to register as a ``Communist-action'' or ``Communist-front'' 
organization to work thereafter in any defense facility. For the Court, 
Chief Justice Warren wrote that a statute which so infringed upon 
freedom of association must be much more narrowly drawn to take precise 
account of the evils at which it permissibly could be aimed. One could 
be disqualified from holding sensitive positions on the basis of active, 
knowing membership with a specific intent to further the unlawful goals 
of an organization, but that membership which was passive or inactive, 
or by a person unaware of the organization's unlawful aims, or by one 
who disagreed with those aims, could not be grounds for 
disqualification, certainly not for a non-sensitive position.\29\

        \23\Supra, pp.280-81. See 66 Stat. 205 (1952), 8 U.S.C. 
Sec. 1251(a)(6). ``Innocent'' membership in an organization which 
advocates violent overthrow of the government is apparently insufficient 
to save an alien from deportation. Galvan v. Press, 347 U.S. 522 (1954). 
More recent cases, however, seem to impose a high standard of proof on 
the Government to show a ``meaningful association,'' as a matter of 
statutory interpretation. Rowoldt v. Perfetto, 355 U.S. 115 (1957); 
Gastelum-Quinones v. Kennedy, 374 U.S. 469 (1963).
        \24\Subversive Activities Control Act of 1950, Sec. 6, ch. 1024, 
64 Stat. 993, 50 U.S.C. Sec. 785. The section was declared 
unconstitutional in Aptheker v. Secretary of State, 378 U.S. 500 (1964), 
as an infringement of the right to travel, a liberty protected by the 
due process clause of the Fifth Amendment. But the Court considered the 
case as well in terms of its restrictions on ``freedom of association,'' 
emphasizing that the statute reached membership whether it was with 
knowledge of the organization's illegal aims or not, whether it was 
active or not, and whether the member intended to further the 
organization's illegal aims. Id. at 507-14. But see Zemel v. Rusk, 381 
U.S. 1, 16-17 (1965), in which the Court denied that State Department 
area restrictions in its passport policies violated the First Amendment, 
because the policy inhibited action rather than expression, a 
distinction the Court continued in Haig v. Agee, 453 U.S. 280, 304-10 
(1981).
        \25\This part of the oath was sustained in American 
Communications Ass'n v. Douds, 339 U.S. 382 (1950), and Osman v. Douds, 
339 U.S. 846 (1950). With regard to another part of the required oath, 
see supra, p.1055.
        \26\Konigsberg v. State Bar of California, 366 U.S. 36 (1961); 
In re Anastaplo, 366 U.S. 82 (1961); Law Students Civil Rights Research 
Council v. Wadmond, 401 U.S. 154 (1971). Membership alone, however, 
appears to be an inadequate basis on which to deny admission. Id. at 
165-66; Baird v. State Bar of Arizona, 401 U.S. 1 (1971); Schware v. 
Board of Bar Examiners, 353 U.S. 232 (1957).
        \27\Ch. 886, Sec. 3, 68 Stat. 775, 50 U.S.C. Sec. 842. The 
section was at issue without a ruling on the merits in Mitchell v. 
Donovan, 290 F. Supp. 642 (D. Minn. 1968) (ordering names of Communist 
Party candidates put on ballot); 300 F. Supp. 1145 (D. Minn. 1969) 
(dismissing action as moot); 398 U.S. 427 (1970) (dismissing appeal for 
lack of jurisdiction).
        \28\389 U.S. 258 (1967).
        \29\Id. at 265-66. See also Schneider v. Smith, 390 U.S. 17 
(1968).
---------------------------------------------------------------------------

        A somewhat different matter is disqualifying a person for public 
benefits of some sort because of membership in a proscribed organization 
or because of some other basis ascribable to doubts about his loyalty. 
The First Amendment was raised only in dissent when in Flemming v. 
Nestor\30\ the Court sustained a statute which required the termination 
of Social Security old age benefits to an

[[Page 1073]]
alien who was deported on grounds of membership in the Communist Party. 
Proceeding on the basis that no one was ``entitled'' to Social Security 
benefits, Justice Harlan for the Court concluded that a rational 
justification for the law might be the deportee's inability to aid the 
domestic economy by spending the benefits locally, although a passage in 
the opinion could be read to suggest that termination was permissible 
because alien Communists are undeserving of benefits.\31\ Of 
considerable significance in First Amendment jurisprudence is Speiser v. 
Randall,\32\ in which the Court struck down a state scheme for denying 
veterans' property tax exemptions to ``disloyal'' persons. The system, 
as interpreted by the state courts, denied the exemption only to persons 
who engaged in speech which could be criminally punished consistent with 
the First Amendment, but the Court found the vice of the provision to be 
that after each claimant had executed an oath disclaiming his engagement 
in unlawful speech, the tax assessor could disbelieve the oath taker and 
deny the exemption, thus placing on the claimant the burden of proof of 
showing that he was loyal. ``The vice of the present procedure is that, 
where particular speech falls close to the line separating the lawful 
and the unlawful, the possibility of mistaken fact-finding--inherent in 
all litigation--will create the danger that the legitimate utterance 
will be penalized. The man who knows that he must bring forth proof and 
persuade another of the lawfulness of his conduct necessarily must steer 
far wider of the unlawful zone than if the State must bear these burdens 
. . . . In practical operation, therefore, this procedural device must 
necessarily produce a result which the State could not command directly. 
It can only result in a deterrence of speech which the Constitution 
makes free.''\33\

        \30\363 U.S. 603 (1960). Justice Black argued the applicability 
of the First Amendment. Id. at 628 (dissenting). Chief Justice Warren 
and Justices Douglas and Brennan also dissented. Id. at 628, 634.
        \31\Id. at 612. The suggestive passage reads: ``Nor . . . can it 
be deemed irrational for Congress to have concluded that the public 
purse should not be utilized to contribute to the support of those 
deported on the grounds specified in the statute.'' Ibid. But see 
Sherbert v. Verner, 374 U.S. 398, 404-05, 409 n.9 (1963). While the 
right-privilege distinction is all but moribund, Flemming has been 
strongly reaffirmed in recent cases by emphasis on the noncontractual 
nature of such benefits. Richardson v. Belcher, 404 U.S. 78, 80-81 
(1971); United States Railroad Retirement Board v. Fritz, 449 U.S. 166, 
174 (1980).
        \32\357 U.S. 513 (1958).
        \33\Id. at 526. For a possible limiting application of the 
principle, see Law Students Civil Rights Research Council v. Wadmond, 
401 U.S. 154, 162-64 (1971), and id. at 176-78 (Justices Black and 
Douglas dissenting), id. at 189 n.5 (Justices Marshall and Brennan 
dissenting).
---------------------------------------------------------------------------

        Employment Restrictions and Loyalty Oaths.--An area in which 
significant First Amendment issues are often raised is the establishment 
of loyalty-security standards for government employees. Such programs 
generally take one of two forms or may com

[[Page 1074]]
bine the two. First, government may establish a system investigating 
employees or prospective employees under standards relating to presumed 
loyalty. Second, government may require its employees or prospective 
employees to subscribe to a loyalty oath disclaiming belief in or 
advocacy of, or membership in an organization which stands for or 
advocates, unlawful or disloyal action. The Federal Government's 
security investigation program has been tested numerous times and First 
Amendment issues raised, but the Supreme Court has never squarely 
confronted the substantive constitutional issues, and it has not dealt 
with the loyalty oath features of the federal program.\34\ The Court 
has, however, had a long running encounter with state loyalty oath 
programs.\35\

        \34\The federal program is primarily grounded in two Executive 
Orders by President Truman and President Eisenhower, E.O. 9835, 12 Fed. 
Reg. 1935 (1947), and E.O. 10450, 18 Fed. Reg. 2489 (1953), and a 
significant amendatory Order issued by President Nixon, E.O. 11605, 36 
Fed. Reg. 12831 (1971). Statutory bases include 5 U.S.C. Sec. Sec. 7311, 
7531-32. Cases involving the program were decided either on lack of 
authority for the action being reviewed, e.g., Cole v. Young, 351 U.S. 
536 (1956); and Peters v. Hobby, 349 U.S. 331 (1955), or on procedural 
due process grounds, Greene v. McElroy, 360 U.S. 474 (1959); Cafeteria & 
Restaurant Workers Union v. McElroy, 367 U.S. 886 (1961). But cf. United 
States v. Robel, 389 U.S. 258 (1967); Schneider v. Smith, 390 U.S. 17 
(1968). A series of three-judge district court decisions, however, 
invalidated federal loyalty oaths and inquiries. Soltar v. Postmaster 
General, 277 F. Supp. 579 (N.D. Calif. 1967); Haskett v. Washington, 294 
F. Supp. 912 (D.D.C. 1968); Stewart v. Washington, 301 F. Supp. 610 
(D.D.C. 1969); National Ass'n of Letter Carriers v. Blount, 305 F. Supp. 
546 (D.D.C. 1969) (no-strike oath).
        \35\So-called negative oaths or test oaths are dealt with in 
this section; for the positive oaths, see supra, pp.1055-56.
---------------------------------------------------------------------------

        First encountered\36\ was a loyalty oath for candidates for 
public office rather than one for public employees. Accepting the state 
court construction that the law required each candidate to ``make oath 
that he is not a person who is engaged `in one way or another in the 
attempt to overthrow the government by force or violence,' and that he 
is not knowingly a member of an organization engaged in such an 
attempt,'' the Court unanimously sustained the provision in a one-
paragraph per curiam opinion.\37\ Less than two months later, the Court 
did uphold a requirement that employees take an oath that they had not 
within a prescribed period advised, advocated, or taught the overthrow 
of government by unlawful

[[Page 1075]]
means, nor been a member of an organization with similar objectives; 
every employee was also required to swear that he was not and had not 
been a member of the Communist Party.\38\ For the Court, Justice Clark 
perceived no problem with the inquiry into Communist Party membership 
but cautioned that no issue had been raised whether an employee who was 
or had been a member could be discharged merely for that reason.\39\ 
With regard to the oath, the Court did not discuss First Amendment 
considerations but stressed that it believed the appropriate authorities 
would not construe the oath adversely against persons who were innocent 
of an organization's purpose during their affiliation, or persons who 
had severed their associations upon knowledge of an organization's 
purposes, or persons who had been members of an organization at a time 
when it was not unlawfully engaged.\40\ Otherwise, the oath requirement 
was valid as ``a reasonable regulation to protect the municipal service 
by establishing an employment qualification of loyalty'' and as being 
``reasonably designed to protect the integrity and competency of the 
service.''\41\

        \36\Test oaths had first reached the Court in the period 
following the Civil War, at which time they were voided as ex post facto 
laws and bills of attainder. Cummings v. Missouri, 71 U.S. (4 Wall.) 277 
(1867); Ex parte Garland, 71 U.S. (4 Wall.) 333 (1867)
        \37\Gerende v. Board of Supervisors of Elections, 341 U.S. 56 
(1951) (emphasis original). In Indiana Communist Party v. Whitcomb, 414 
U.S. 411 (1974), a requirement that parties and candidates seeking 
ballot space subscribe to a similar oath was voided because the oath's 
language did not comport with the advocacy standards of Brandenburg v. 
Ohio, 395 U.S. 444 (1969). Four Justices concurred more narrowly. 414 
U.S. at 452 n.3. See also Whitcomb v. Communist Party of Indiana, 410 
U.S. 976 (1973).
        \38\Garner v. Board of Public Works, 341 U.S. 716 (1951). 
Justice Frankfurter dissented in part on First Amendment grounds, id. at 
724, Justice Burton dissented in part, id. at 729, and Justices Black 
and Douglas dissented completely, on bill of attainder grounds, id. at 
731.
        \39\Id. at 720. Justices Frankfurter and Burton agreed with this 
ruling. Id. at 725-26, 729-30.
        \40\Id. at 723-24.
        \41\Id. at 720-21. Justice Frankfurter objected that the oath 
placed upon the takers the burden of assuring themselves that every 
organization to which they belonged or had been affiliated with for a 
substantial period of time had not engaged in forbidden advocacy.
---------------------------------------------------------------------------

        In the following Term, the Court sustained a state statute 
disqualifying for government employment persons who advocated the 
overthrow of government by force or violence or persons who were members 
of organizations which so advocated; the statute had been supplemented 
by a provision applicable to teachers calling for the drawing up of a 
list of organizations which advocated violent overthrow and making 
membership in any listed organization prima facie evidence of 
disqualification.\42\ Justice Minton observed that everyone had a right 
to assemble, speak, think, and believe as he pleased, but had no right 
to work for the State in its public school system except upon compliance 
with the State's reasonable terms. ``If they do not choose to work on 
such terms, they are at liberty to retain their beliefs and associations 
and go elsewhere. Has the State thus deprived them of any right to free 
speech or assembly?

[[Page 1076]]
We think not.''\43\ A State could deny employment based on a person's 
advocacy of overthrow of the government by force or violence or based on 
unexplained membership in an organization so advocating with knowledge 
of the advocacy.\44\ With regard to the required list, the Justice 
observed that the state courts had interpreted the law to provide that a 
person could rebut the presumption attached to his mere membership.\45\

        \42\Adler v. Board of Education, 342 U.S. 485 (1952). Justice 
Frankfurter dissented because he thought no party had standing. Id. at 
497. Justices Black and Douglas dissented on First Amendment grounds. 
Id. at 508.
        \43\Id. at 492.
        \44\Ibid.
        \45\Id. at 494-96.
---------------------------------------------------------------------------

        Invalidated the same year was an oath requirement, addressed to 
membership in the Communist Party and other proscribed organizations, 
which the state courts had interpreted to disqualify from employment 
``solely on the basis of organizational membership.'' Stressing that 
membership might be innocent, that one might be unaware of an 
organization's aims, or that he might have severed a relationship upon 
learning of its aims, the Court struck the law down; one must be or have 
been a member with knowledge of illegal aims.\46\ But subsequent cases 
firmly reiterated the power of governmental agencies to inquire into the 
associational relationships of their employees for purposes of 
determining fitness and upheld dismissals for refusal to answer relevant 
questions.\47\ In Shelton v. Tucker,\48\ however, a five-to-four 
majority held that, while a State could inquire into the fitness and 
competence of its teachers, a requirement that every teacher annually 
list every organization to which he belonged or had belonged in the 
previous five years was invalid because it was too broad, bore no 
rational relationship to the State's interests, and had a considerable 
potential for abuse.

        \46\Wieman v. Updegraff, 344 U.S. 183 (1952).
        \47\Beilan v. Board of Education, 357 U.S. 399 (1958); Lerner v. 
Casey, 357 U.S. 458 (1958); Nelson v. County of Los Angeles, 362 U.S. 1 
(1960). Compare Slochower v. Board of Higher Education, 350 U.S. 551 
(1956). The self-incrimination aspects of these cases are considered 
infra, under analysis of the Fifth Amendment.
        \48\364 U.S. 479 (1960). ``It is not disputed that to compel a 
teacher to disclose his every associational tie is to impair that 
teacher's right of free association, a right closely allied to freedom 
of speech and a right which, like free speech, lies at the foundation of 
a free society.'' Id. at 485-86. Justices Frankfurter, Clark, Harlan, 
and Whittaker dissented. Id. at 490, 496.
---------------------------------------------------------------------------

        Vagueness was then employed by the Court when loyalty oaths 
aimed at ``subversives'' next came before it. Cramp v. Board of Public 
Instruction\49\ unanimously held too vague an oath which required one to 
swear, inter alia, that ``I have not and will not lend my aid, support, 
advice, counsel or influence to the Communist

[[Page 1077]]
Party.'' Similarly, in Baggett v. Bullitt,\50\ two oaths, one requiring 
teachers to swear that they ``will by precept and example promote 
respect for the flag and the institutions of the United States of 
America and the State of Washington, reverence for law and order and 
undivided allegiance to the government,'' and the other requiring all 
state employees to swear, inter alia, that they would not ``aid in the 
commission of any act intended to overthrow, destroy, or alter or assist 
in the overthrow, destruction, or alteration'' of government. Although 
couched in vagueness terms, the Court's opinion stressed that the 
vagueness was compounded by its effect on First Amendment rights and 
seemed to emphasize that the State could not deny employment to one 
simply because he unintentionally lent indirect aid to the cause of 
violent overthrow by engaging in lawful activities that he knew might 
add to the power of persons supporting illegal overthrow.\51\

        \49\368 U.S. 278 (1961). For further proceedings on this oath, 
see Connell v. Higginbotham, 305 F. Supp. 445 (M.D. Fla. 1970). aff'd in 
part and rev'd in part, 403 U.S. 207 (1971).
        \50\377 U.S. 360 (1964). Justices Clark and Harlan dissented. 
Id. at 380
        \51\Id. at 369-70.
---------------------------------------------------------------------------

        More precisely drawn oaths survived vagueness attacks but fell 
before First Amendment objections in the next three cases. Elfbrandt v. 
Russell\52\ involved an oath that as supplemented would have been 
violated by one who ``knowingly and willfully becomes or remains a 
member of the communist party . . . or any other organization having for 
its purposes the overthrow by force or violence of the government'' with 
``knowledge of said unlawful purpose of said organization.'' The law's 
blanketing in of ``knowing but guiltless'' membership was invalid, wrote 
Justice Douglas for the Court, because one could be a knowing member but 
not subscribe to the illegal goals of the organization; moreover, it 
appeared that one must also have participated in the unlawful activities 
of the organization before public employment could be denied.\53\ Next, 
in Keyishian v. Board of Regents,\54\ the oath provisions sustained in 
Adler\55\ were declared unconstitutional. A number of provisions were 
voided as vague,\56\ but the Court held invalid a new provision making 
Communist Party membership prima facie evidence of disqualification for 
employment because the opportunity to rebut the presumption was too 
limited. It could be rebutted only by denying membership, denying 
knowledge of advocacy of illegal overthrow,

[[Page 1078]]
or denying that the organization advocates illegal overthrow. But 
``legislation which sanctions membership unaccompanied by specific 
intent to further the unlawful goals of the organization or which is not 
active membership violates constitutional limitations.''\57\ Similarly, 
in Whitehill v. Elkins,\58\ the oath, revised, upheld in Gerende,\59\ 
was voided because the Court thought it might include within its 
proscription innocent membership in an organization which advocated 
illegal overthrow of government.

        \52\384 U.S. 11 (1966). Justices White, Clark, Harlan, and 
Stewart dissented. Id. at 20.
        \53\Id. at 16, 17, 19. ``Those who join an organization but do 
not share its unlawful purposes and who do not participate in its 
unlawful activities pose no threat, either as citizens or public 
employees.'' Id. at 17.
        \54\385 U.S. 589 (1967). Justices Clark, Harlan, Stewart, and 
White dissented. Id. at 620.
        \55\Adler v. Board of Education, 342 U.S. 485 (1952).
        \56\Keyishian v. Board of Regents, 385 U.S. 589, 597-604 (1967).
        \57\Id. at 608. Note that the statement here makes specific 
intent or active membership alternatives in addition to knowledge while 
Elfbrandt v. Russell, 384 U.S. 11, 19 (1966), requires both in addition 
to knowledge.
        \58\389 U.S. 54 (1967). Justices Harlan, Stewart, and White 
dissented. Id. at 62.
        \59\Gerende v. Board of Supervisors of Elections, 341 U.S. 56 
(1951).
---------------------------------------------------------------------------

        More recent cases do not illuminate whether membership changes 
in the Court presage a change in view with regard to the loyalty-oath 
question. In Connell v. Higginbotham\60\ an oath provision reading 
``that I do not believe in the overthrow of the Government of the United 
States or of the State of Florida by force or violence'' was invalidated 
because the statute provided for summary dismissal of an employee 
refusing to take the oath, with no opportunity to explain that refusal. 
Cole v. Richardson\61\ upheld a clause in an oath ``that I will oppose 
the overthrow of the government of the United States of America or of 
this Commonwealth by force, violence, or by any illegal or 
unconstitutional method'' upon the construction that this clause was 
mere ``repetition, whether for emphasis or cadence,'' of the first part 
of the oath, which was a valid ``uphold and defend'' positive oath.

        \60\403 U.S. 207 (1971).
        \61\405 U.S. 676, 683-84 (1972).
---------------------------------------------------------------------------

        Legislative Investigations and the First Amendment.--The power 
of inquiry by congressional and state legislative committees in order to 
develop information as a basis for legislation\62\ is subject to some 
uncertain limitation when the power as exercised results in deterrence 
or penalization of protected beliefs, associations and conduct. While 
the Court initially indicated that it would scrutinize closely such 
inquiries in order to curb First Amendment infringement,\63\ later cases 
balanced the interests of the legislative bodies in inquiring about both 
protected and unprotected associations and conduct against what were 
perceived to be limited restraints upon the speech and association 
rights of witnesses, and

[[Page 1079]]
upheld wide-ranging committee investigations.\64\ More recently, the 
Court has placed the balance somewhat differently and required that the 
investigating agency show ``a subordinating interest which is 
compelling'' to justify the restraint on First Amendment rights which 
the Court found would result from the inquiry.\65\ The issues in this 
field, thus, must be considered to be unsettled pending further judicial 
consideration.

        \62\Supra, pp.93-105.
        \63\See United States v. Rumely, 345 U.S. 41 (1953); Watkins v. 
United States, 354 U.S. 178, 197-98 (1957); Sweezy v. New Hampshire, 354 
U.S. 234, 249-51 (1957). Concurring in the last case, Justices 
Frankfurter and Harlan would have ruled that the inquiry there was 
precluded by the First Amendment. Id. at 255.
        \64\Barenblatt v. United States, 360 U.S. 109 (1959); Uphaus v. 
Wyman, 360 U.S. 72 (1959); Wilkinson v. United States, 365 U.S. 399 
(1961); Braden v. United States, 365 U.S. 431 (1961). Chief Justice 
Warren and Justices Black, Douglas, and Brennan dissented in each case.
        \65\Gibson v. Florida Legislative Investigation Committee, 372 
U.S. 539 (1963). Justices Harlan, Clark, Stewart, and White dissented. 
Id. at 576, 583. See also DeGregory v. Attorney General of New 
Hampshire, 383 U.S. 825 (1966).
---------------------------------------------------------------------------

        Interference With War Effort.--Unlike the dissent to United 
States participation in World War I, which provoked several 
prosecutions,\66\ the dissent to United States action in Vietnam was 
subjected to little legal attack. Possibly the most celebrated 
governmental action, the prosecution of Dr. Spock and four others for 
conspiring to counsel, aid, and abet persons to evade or to refuse 
obligations under the Selective Service System, failed to reach the 
Supreme Court.\67\ Aside from a comparatively minor case,\68\ the 
Court's sole encounter with a Vietnam War protest allegedly involving 
protected ``symbolic conduct'' was United States v. O'Brien.\69\ That 
case affirmed a conviction and upheld a congressional prohibition 
against destruction of draft registration certificates; O'Brien had 
publicly burned his card. ``We cannot accept the view that an apparently 
limitless variety of conduct can be labeled `speech' whenever the person 
engaging in the conduct intends thereby to express an idea. However, 
even on the assumption that the alleged communicative element in 
O'Brien's conduct is sufficient to bring into play the First Amendment, 
it does not necessarily follow that the destruction of a registration 
certificate is constitutionally protected activity. This Court has held 
that when `speech' and `nonspeech' elements are combined in the same 
course of conduct, a sufficiently important governmental interest in 
regulating the nonspeech element can justify incidental limitations on

[[Page 1080]]
First Amendment freedoms.''\70\ Finding that the Government's interest 
in having registrants retain their cards at all times was an important 
one and that the prohibition of destruction of the cards worked no 
restriction of First Amendment freedoms broader than that needed to 
serve the interest, the Court upheld the statute. More recently, the 
Court upheld a ``passive enforcement'' policy singling out for 
prosecution for failure to register for the draft those young men who 
notified authorities of an intention not to register for the draft and 
those reported by others.\71\

        \66\Supra, pp.1036-38.
        \67\United States v. Spock, 416 F.2d 165 (1st Cir. 1969).
        \68\In Schacht v. United States, 398 U.S. 58 (1970), the Court 
reversed a conviction under 18 U.S.C. Sec. 702 for wearing a military 
uniform without authority. The defendant had worn the uniform in a skit 
in an on-the-street anti-war demonstration, and 10 U.S.C. Sec. 772(f) 
authorized the wearing of a military uniform in a ``theatrical 
production'' so long as the performance did not ``tend to discredit'' 
the military. This last clause the Court held unconstitutional as an 
invalid limitation of freedom of speech.
        \69\391 U.S. 367 (1968).
        \70\Id. at 376-77. For recent cases with suggestive language, 
see Snepp v. United States, 444 U.S. 507 (1980); Haig v. Agee, 453 U.S. 
280 (1981).
        \71\Wayte v. United States, 470 U.S. 598 (1985). The incidental 
restriction on First Amendment rights to speak out against the draft was 
no greater than necessary to further the government's interests in 
``prosecutorial efficiency,'' obtaining sufficient proof prior to 
prosecution, and promoting general deterrence (or not appearing to 
condone open defiance of the law). See also United States v. Albertini, 
472 U.S. 675 (1985) (order banning a civilian from entering military 
base valid as applied to attendance at base open house by individual 
previously convicted of destroying military property).
---------------------------------------------------------------------------

        Suppression of Communist Propaganda in the Mails.--A 1962 
statute authorizing the Post Office Department to retain all mail from 
abroad which was determined to be ``communist political propaganda'' and 
to forward it to an addressee only upon his request was held 
unconstitutional in Lamont v. Postmaster General.\72\ The Court held 
that to require anyone to request receipt of mail determined to be 
undesirable by the Government was certain to deter and inhibit the 
exercise of First Amendment rights to receive information.\73\ 
Distinguishing Lamont, the Court in 1987 upheld statutory classification 
as ``political propaganda'' of communications or expressions by or on 
behalf of foreign governments, foreign ``principals,'' or their agents, 
and reasonably adapted or intended to influence United States foreign 
policy.\74\ ``The physical detention of materials, not their mere 
designation as `communist political propaganda,' was the offending 
element of the statutory scheme [in Lamont].''\75\

        \72\381 U.S. 301 (1965). The statute, Pub. L. 87-793, Sec. 305, 
76 Stat. 840, was the first federal law ever struck down by the Court as 
an abridgment of the First Amendment speech and press clauses.
        \73\Id. at 307. Justices Brennan, Harlan, and Goldberg 
concurred, spelling out in some detail the rationale of the protected 
right to receive information as the basis for the decision.
        \74\Meese v. Keene, 481 U.S. 465 (1987).
        \75\Id. at 480.
---------------------------------------------------------------------------

        Exclusion of Certain Aliens as a First Amendment Problem.--While 
a nonresident alien might be able to present no claim, based on the 
First Amendment or on any other constitutional provision, to overcome a 
governmental decision to exclude him from the country, it was arguable 
that United States citizens who could

[[Page 1081]]
assert a First Amendment interest in hearing the alien and receiving 
information from him, such as the right recognized in Lamont, could be 
able to contest such exclusion.\76\ But the Court declined to reach the 
First Amendment issue and to place it in balance when it found that a 
governmental refusal to waive a statutory exclusion\77\ was on facially 
legitimate and neutral grounds; the Court's emphasis, however, upon the 
``plenary'' power of Congress over admission or exclusion of aliens 
seemed to indicate where such a balance might be drawn.\78\

        \76\The right to receive information has been prominent in the 
rationale of several cases, e.g., Martin v. City of Struthers, 319 U.S. 
141 (1943); Thomas v. Collins, 323 U.S. 516 (1945); Stanley v. Georgia, 
394 U.S. 557 (1969).
        \77\By Sec. Sec. 212(a)(28)(D) and (G) of the Immigration and 
Nationality Act of 1952, 8 U.S.C. Sec. Sec. 1182(a)(28)(D) and (G), 
aliens who advocate or write and publish ``the economic, international, 
and governmental doctrines of world communism'' are made ineligible to 
receive visas and are thus excluded from the United States. Upon the 
recommendation of the Secretary of State, however, the Attorney General 
is authorized to waive these provisions and to admit such an alien 
temporarily into the country. INA Sec. 212(d)(3)(A), 8 U.S.C. 
Sec. 1182(d)(3)(A).
        \78\Kleindienst v. Mandel, 408 U.S. 753 (1972).
---------------------------------------------------------------------------

                             FIRST AMENDMENT

                         RELIGION AND EXPRESSION

                 FREEDOM OF EXPRESSION--SPEECH AND PRESS


      Particular Governmental Regulations Which Restrict Expression

        Government adopts and enforces many measures which are designed 
to further a valid interest but which may have restrictive effects upon 
freedom of expression. As an employer, government is interested in 
attaining and maintaining full production from its employees in a 
harmonious environment. As enforcer of the democratic method of carrying 
out selection of public officials, it is interested in outlawing 
``corrupt practices'' and promoting a fair and smoothly-functioning 
electoral process. As regulator of economic affairs, its interests are 
extensive. As educator, it desires to impart knowledge and training to 
the young with as little distraction as possible. All of these interests 
may be achieved with some restriction upon expression, but if the 
regulation goes too far expression may be abridged and the regulation 
will fail.\79\

        \79\Highly relevant in this and subsequent sections dealing with 
governmental incidental restraints upon expression is the distinction 
the Court has drawn between content-based and content-neutral 
regulations, a distinction designed to ferret out those regulations 
which indeed serve other valid governmental interests from those which 
in fact are imposed because of the content of the expression reached. 
Compare Police Department v. Mosley, 408 U.S. 92 (1972); Erznoznik v. 
City of Jacksonville, 422 U.S. 205 (1975); and Schacht v. United States, 
398 U.S. 58 (1970), with Greer v. Spock, 424 U.S. 828 (1976); Civil 
Service Commission v. National Association of Letter Carriers, 413 U.S. 
548 (1973); and United States v. O'Brien, 391 U.S. 367 (1968). Content-
based regulations are subjected to strict scrutiny, while content-
neutral regulations are not.
---------------------------------------------------------------------------

        Government as Employer: Political Activities.--Abolition of the 
``spoils system'' in federal employment brought with it con

[[Page 1082]]
sequent restrictions upon political activities by federal employees. In 
1876, federal employees were prohibited from requesting from, giving to, 
or receiving from any other federal employee money for political 
purposes, and the Civil Service Act of 1883 more broadly forbade civil 
service employees to use their official authority or influence to coerce 
political action of any person or to interfere with elections.\80\ By 
the Hatch Act, federal employees, and many state employees as well, are 
forbidden to ``take any active part in political management or in 
political campaigns.''\81\ As applied through the regulations and 
rulings of the Office of Personnel Management, formerly the Civil 
Service Commission, the Act prevents employees from running for public 
office, distributing campaign literature, playing an active role at 
political meetings, circulating nomination petitions, attending a 
political convention except as a spectator, publishing a letter 
soliciting votes for a candidate, and all similar activity.\82\ The 
question is whether government, which may not prohibit citizens in 
general from engaging in these activities, may nonetheless so control 
the off-duty activities of its own employees.

        \80\Ch. 287, 19 Stat. 169, Sec. 6, 18 U.S.C. Sec. Sec. 602-03, 
sustained in Ex parte Curtis, 106 U.S. 371 (1882); Ch. 27, 22 Stat. 403, 
as amended, 5 U.S.C. Sec. 7323.
        \81\Ch. 410, 53 Stat. 1148 Sec. 9(a), (1939), as amended, 5 
U.S.C. Sec. 7324(a)(2). By Ch. 640, 54 Stat. 767 (1940), as amended, 5 
U.S.C. Sec. Sec. 1501-08, the restrictions on political activity were 
extended to state and local governmental employees working in programs 
financed in whole or in part with federal funds. This provision was 
sustained against federalism challenges in Oklahoma v. Civil Service 
Comm'n, 330 U.S. 127 (1947). All the States have adopted laws patterned 
on the Hatch Act. See Broadrick v. Oklahoma, 413 U.S. 601, 604 (1973).
        \82\The Commission on Political Activity of Government 
Personnel, Findings and Recommendations 11, 19-24 (Washington: 1968).
---------------------------------------------------------------------------

        In United Public Workers v. Mitchell,\83\ the Court answered in 
the affirmative. While the Court refused to consider the claims of 
persons who had not yet engaged in forbidden political activities, it 
did rule against a mechanical employee of the Mint who had done so. The 
opinion of the Court, by Justice Reed, recognized that the restrictions 
of political activities imposed by the Act did in some measure impair 
First Amendment and other constitutional rights,\84\ but it placed its 
decision upon the established principle that no right is absolute. The 
standard by which the Court judged the validity of the permissible 
impairment of First Amendment rights, however, was a due process 
standard of reasonableness.\85\ Thus, changes in the standards of 
judging incidental restrictions on expression suggested the possibility 
of a reconsideration of Mitch

[[Page 1083]]
ell.\86\ But a divided Court, reaffirming Mitchell, sustained the Act's 
limitations upon political activity against a range of First Amendment 
challenges.\87\ It emphasized that the interest of the Government in 
forbidding partisan political activities by its employees was so 
substantial that it overrode the rights of those employees to engage in 
political activities and association;\88\ therefore, a statute which 
barred in plain language a long list of activities would be clearly 
valid.\89\ The issue in Letter Carriers, however, was whether the 
language Congress did enact, forbidding employees to take ``an active 
part in political management or in political campaigns,'' was 
unconstitutional on its face, either because the statute was too 
imprecise to allow government employees to determine what was forbidden 
and what was permitted, or because the statute swept in under its 
coverage conduct that Congress could not forbid as well as conduct 
subject to prohibition or regulation. In respect to vagueness, 
plaintiffs contended and the lower court had held that the quoted 
proscription was inadequate to provide sufficient guidance and that the 
only further elucidation Congress had provided was to enact that the 
forbidden activities were the same activities which the Commission had 
as of 1940, and reaching back to 1883, ``determined are at the time of 
the passage of this act prohibited on the part of employees . . . by the 
provisions of the civil-service rules. . . .'' This language had been 
included, it was contended, to deprive the Commission of power to alter 
thousands of rulings made by it which were not available to employees 
and which were in any event mutually inconsistent and too broad.

        \83\330 U.S. 75, 94-104 (1947). The decision was 4-to-3, with 
Justice Frankfurter joining the Court on the merits only after arguing 
the Court lacked jurisdiction.
        \84\Id. at 94-95.
        \85\Id. at 101, 102.
        \86\The Act was held unconstitutional by a divided three-judge 
district court. National Ass'n of Letter Carriers v. Civil Service 
Comm'n, 346 F. Supp. 578 (D.D.C. 1972).
        \87\Civil Service Comm'n v. National Ass'n of Letter Carriers, 
413 U.S. 548 (1973). In Broadrick v. Oklahoma, 413 U.S. 601 (1973), the 
Court refused to consider overbreadth attacks on a state statute of much 
greater coverage because the plaintiffs had engaged in conduct that the 
statute could clearly constitutionally proscribe.
        \88\The interests recognized by the Court as served by the 
proscription on partisan activities were (1) the interest in the 
efficient and fair operation of governmental activities and the 
appearance of such operation, (2) the interest in fair elections, and 
(3) the interest in protecting employees from improper political 
influences. 413 U.S. at 557-67.
        \89\Id. at 556.
---------------------------------------------------------------------------

        The Court held, on the contrary, that Congress had intended to 
confine the Commission to the boundaries of its rulings as of 1940 but 
had further intended the Commission by a process of case-by-case 
adjudication to flesh out the prohibition and to give content to it. 
That the Commission had done. It had regularly summarized in 
understandable terms the rules which it applied, and it was authorized 
as well to issue advisory opinions to employees un

[[Page 1084]]
certain of the propriety of contemplated conduct. ``[T]here are 
limitations in the English language with respect to being both specific 
and manageably brief,'' said the Court, but it thought the prohibitions 
as elaborated in Commission regulations and rulings were ``set out in 
terms that the ordinary person exercising ordinary common sense can 
sufficiently understand and comply with, without sacrifice to the public 
interests.''\90\ There were conflicts, the Court conceded, between some 
of the things forbidden and some of the protected expressive activities, 
but these were at most marginal. Thus, some conduct arguably protected 
did under some circumstances so partake of partisan activities as to be 
properly proscribable. But the Court would not invalidate the entire 
statute for this degree of overbreadth.\91\ More recently, in Bush v. 
Lucas\92\ the Court held that the civil service laws and regulations are 
sufficiently ``elaborate [and] comprehensive'' so as to afford federal 
employees adequate remedy for deprivation of First Amendment rights as a 
result of disciplinary actions by supervisors, and that therefore there 
is no need to create an additional judicial remedy for the 
constitutional violation.

        \90\Id. at 578-79.
        \91\Id. at 580-81.
        \92\462 U.S. 367 (1983).
---------------------------------------------------------------------------

        Government as Employer: Free Expression Generally.--Change has 
occurred in many contexts, in the main with regard to state and local 
employees and with regard to varying restrictions placed upon such 
employees. Foremost among the changes has been the general disregarding 
of the ``right-privilege'' distinction. Application of that distinction 
to the public employment context was epitomized in the famous sentence 
of Justice Holmes: ``The petitioner may have a constitutional right to 
talk politics, but he has no constitutional right to be a 
policeman.''\93\ The Supreme Court embraced this application in the 
early 1950s, first affirming a lower court decision by equally divided 
vote,\94\ and soon after applying the distinction itself. Upholding a 
prohibition on employment as

[[Page 1085]]
teachers of persons who advocated the desirability of overthrowing the 
government, the Court declared that ``[i]t is clear that such persons 
have the right under our law to assemble, speak, think and believe as 
they will. . . . It is equally clear that they have no right to work for 
the state in the school system on their own terms. They may work for the 
school system under reasonable terms laid down by the proper authorities 
of New York. If they do not choose to work on such terms, they are at 
liberty to retain their beliefs and associations and go elsewhere. Has 
the State thus deprived them of any right to free speech or assembly? We 
think not.''\95\

        \93\McAuliffe v. Mayor of New Bedford, 155 Mass. 216, 220, 29 
N.E. 517 (1892).
        \94\Bailey v. Richardson, 182 F. 2d 46, 59 (D.C. Cir. 1950), 
aff'd by an equally divided Court, 341 U.S. 918 (1951). The appeals 
court majority, upholding the dismissal of a government employee against 
due process and First Amendment claims, asserted that ``the plain hard 
fact is that so far as the Constitution is concerned there is no 
prohibition against the dismissal of Government employees because of 
their political beliefs, activities or affiliations. . . . The First 
Amendment guarantees free speech and assembly, but it does not guarantee 
Government employ.'' Although the Supreme Court issued no opinion in 
Bailey, several Justices touched on the issues in Joint Anti-Fascist 
Refugee Committee v. McGrath, 341 U.S. 123 (1951). Justices Douglas and 
Jackson in separate opinions rejected the privilege doctrine as applied 
by the lower court in Bailey. Id. at 180, 185. Justice Black had 
previously rejected the doctrine in United Public Workers v. Mitchell, 
330 U.S. 75, 105 (1947) (dissenting opinion).
        \95\Adler v. Board of Education, 342 U.S. 458, 492-93 (1952). 
Justices Douglas and Black dissented, again rejecting the privilege 
doctrine. Id. at 508. Justice Frankfurter, who dissented on other 
grounds, had previously rejected the doctrine in another case, Garner v. 
Board of Public Works, 341 U.S. 716, 725 (1951) (concurring in part and 
dissenting in part).
---------------------------------------------------------------------------

        The same year, however, saw the express rejection of the right-
privilege doctrine in another loyalty case. Voiding a loyalty oath 
requirement conditioned on mere membership in suspect organizations, the 
Court reasoned that the interest of public employees in being free of 
such an imposition was substantial. ``There can be no dispute about the 
consequences visited upon a person excluded from public employment on 
disloyalty grounds. In the view of the community, the stain is a deep 
one; indeed, it has become a badge of infamy. . . . [W]e need not pause 
to consider whether an abstract right to public employment exists. It is 
sufficient to say that constitutional protection does extend to the 
public servant whose exclusion pursuant to a statute is patently 
arbitrary or discriminatory.''\96\ The premise here that if removal or 
rejection injures one in some fashion he is therefore entitled to raise 
constitutional claims against the dismissal or rejection has faded in 
subsequent cases; the rationale now is that while government may deny 
employment, or any benefit for that matter, for any number of reasons, 
it may not deny employment or other benefits on a basis that infringes 
that person's constitutionally protected interests. ``For if the 
government could deny a benefit to a person because of his 
constitutionally protected speech or associations, his exercise of those 
freedoms would in effect be penalized and inhibited. This would allow 
the government to `produce a result which [it] could not command 
directly.' . . . Such interference with constitutional rights is 
impermissible.''\97\

        \96\Wieman v. Updegraff, 344 U.S. 183, 190-91, 192 (1952). Some 
earlier cases had utilized a somewhat qualified statement of the 
privilege. United Public Workers v. Mitchell, 330 U.S. 75, 100 (1947); 
Garner v. Board of Public Works, 341 U.S. 716, 722 (1951).
        \97\Perry v. Sindermann, 408 U.S. 593, 597 (1972). In a 
companion case, the Court noted that the privilege basis for the appeals 
court's due process holding in Bailey ``has been thoroughly undermined 
in the ensuing years.'' Board of Regents v. Roth, 408 U.S. 564, 571 n.9 
(1972). The test now in due process and other such cases is whether 
government has conferred a property right in employment which it must 
respect, see infra, pp. 1622-31, but the inquiry when it is alleged that 
an employee has been penalized for the assertion of a constitutional 
right is that stated in the text. A finding, however, that protected 
expression or conduct played a substantial part in the decision to 
dismiss or punish does not conclude the case; the employer may show by a 
preponderance of the evidence that the same decision would have been 
reached in the absence of the protected expression or conduct. Mt. 
Healthy City Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977); Givhan v. 
Western Line Consol. Sch. Dist., 439 U.S. 410, 416 (1979).

---------------------------------------------------------------------------

[[Page 1086]]

        However, the fact that government does not have carte blanche in 
dealing with the constitutional rights of its employees does not mean it 
has no power at all. ``[I]t cannot be gainsaid that the State has 
interests as an employer in regulating the speech of its employees that 
differ significantly from those it possesses in connection with 
regulation of the speech of the citizenry in general.''\98\ Pickering 
concerned the dismissal of a high school teacher who had written a 
critical letter to a local newspaper reflecting on the administration of 
the school system. The letter also contained several factual errors. 
``The problem in any case,'' Justice Marshall wrote for the Court, ``is 
to arrive at a balance between the interests of the teacher, as a 
citizen, in commenting upon matters of public concern and the interest 
of the State, as an employer, in promoting the efficiency of the public 
services it performs through its employees.''\99\ No general standard 
was laid down by the Court, but a suggestive analysis was undertaken. 
Dismissal of a public employee for criticism of his superiors was 
improper, the Court indicated, where the relationship of employee to 
superior was not so close, such as day-to-day personal contact, that 
problems of discipline or of harmony among coworkers, or problems of 
personal loyalty and confidence, would arise.\100\ The school board had 
not shown that any harm had resulted from the false statements in the 
letter, and it could not proceed on the assumption that the false 
statements were per se harmful, inasmuch as the statements primarily 
reflected a difference of opinion between the teacher and the board 
about the allocation of funds. Moreover, the allocation of funds is a 
matter of important public concern about which teachers have informed 
and definite opinions that the community should be aware of. ``In these 
circumstances we conclude that the interest of the school adminis

[[Page 1087]]
tration in limiting teachers' opportunities to contribute to public 
debate is not significantly greater than its interest in limiting a 
similar contribution by any member of the general public.''\101\

        \98\Pickering v. Board of Education, 391 U.S. 563, 568 (1968).
        \99\Id.
        \100\Id. at 568-70. Contrast Connick v. Myers, 461 U.S. 138 
(1983), where Pickering was distinguished on the basis that the 
employee, an assistant district attorney, worked in an environment where 
a close personal relationship involving loyalty and harmony was 
important. ``When close working relationships are essential to 
fulfilling public responsibilities, a wide degree of deference to the 
employer's judgment is appropriate.'' Id. at 151-52.
        \101\Id. at 570-73. Pickering was extended to private 
communications of an employee's views to the employer in Givhan v. 
Western Line Consol. Sch. Dist., 439 U.S. 410 (1979), although the Court 
recognized that different considerations might arise in context. That 
is, with respect to public speech, content may be determinative in 
weighing impairment of the government's interests, whereas with private 
speech, manner, time, and place of delivery may be as or more important. 
Id. at 415 n.4.
---------------------------------------------------------------------------

        Combining a balancing test of governmental interest and employee 
rights with a purportedly limiting statutory construction, the Court, in 
Arnett v. Kennedy,\102\ sustained the constitutionality of a provision 
of federal law authorizing removal or suspension without pay of an 
employee ``for such cause as will promote the efficiency of the 
service'' when the ``cause'' cited concerned speech by the employee. He 
had charged that his superiors had made an offer of a bribe to a private 
person. The quoted statutory phrase, the Court held, ``is without doubt 
intended to authorize dismissal for speech as well as other conduct.'' 
But, recurring to its Letter Carriers analysis,\103\ it noted that the 
authority conferred was not impermissibly vague, inasmuch as it is not 
possible to encompass within a statutory enactment all the myriad 
situations that arise in the course of employment and the language used 
was informed by developed principles of agency adjudication coupled with 
a procedure for obtaining legal counsel from the agency on the 
interpretation of the law.\104\ Neither was the language overbroad, 
continued the Court, because it ``proscribes only that public speech 
which improperly damages and impairs the reputation and efficiency of 
the employing agency, and it thus imposes no greater controls on the 
behavior of federal employees than are necessary for the protection of 
the Government as an employer. . . . We hold that the language `such 
cause as will promote the efficiency of the service' in the Act excludes 
constitutionally protected speech, and that the statute is therefore not 
overbroad.''\105\

        \102\416 U.S. 134 (1974). The quoted language is from 5 U.S.C. 
Sec. 7501(a).
        \103\Civil Service Comm'n v. National Ass'n of Letter Carriers, 
413 U.S. 548, 578-79 (1973).
        \104\Arnett v. Kennedy, 416 U.S. 134, 158-64 (1974).
        \105\Id. at 162. In dissent, Justice Marshall argued: ``The 
Court's answer is no answer at all. To accept this response is 
functionally to eliminate overbreadth from the First Amendment lexicon. 
No statute can reach and punish constitutionally protected speech. The 
majority has not given the statute a limiting construction but merely 
repeated the obvious.'' Id. at 229.
---------------------------------------------------------------------------

        Pickering was distinguished in Connick v. Myers,\106\ involving 
what the Court characterized in the main as an employee grievance

[[Page 1088]]
rather than an effort to inform the public on a matter of public 
concern. The employee, an assistant district attorney involved in a 
dispute with her supervisor over transfer to a different section, was 
fired for insubordination after she circulated a questionnaire among her 
peers soliciting views on matters relating to employee morale. This 
firing the Court found permissible. ``When employee expression cannot be 
fairly considered as relating to any matter of political, social, or 
other concern to the community, government officials should enjoy wide 
latitude in managing their offices, without intrusive oversight by the 
judiciary in the name of the First Amendment.''\107\ Whether an 
employee's speech addresses a matter of public concern, the Court 
indicated, must be determined not only by its content, but also by its 
form and context.\108\ Because one aspect of the employee's speech did 
raise matters of public concern, Connick also applied Pickering's 
balancing test, holding that ``a wide degree of deference is 
appropriate'' when ``close working relationships'' between employer and 
employee are involved.\109\ The issue of public concern is not only a 
threshold inquiry, but under Connick still figures in the balancing of 
interests: ``the State's burden in justifying a particular discharge 
varies depending upon the nature of the employee's expression'' and its 
importance to the public.\110\

        \106\461 U.S. 138 (1983).
        \107\461 U.S. at 146. Connick was a 5-4 decision, with Justice 
White's opinion of the Court being joined by Chief Justice Burger and 
Justices Powell, Rehnquist, and O'Connor. Justice Brennan, joined by 
Justices Marshall, Blackmun, and Stevens, dissented, arguing that 
information concerning morale at an important government office is a 
matter of public concern, and that the Court extended too much deference 
to the employer's judgment as to disruptive effect. Id. at 163-65.
        \108\Id. at 147-48. Justice Brennan objected to this 
introduction of context, admittedly of interest in balancing interests, 
into the threshold issue of public concern.
        \109\Id. at 151-52.
        \110\Id. at 150. The Court explained that ``a stronger showing 
[of interference with governmental interests] may be necessary if the 
employee's speech more substantially involve[s] matters of public 
concern.'' Id. at 152.
---------------------------------------------------------------------------

        On the other hand, the Court has indicated that an employee's 
speech may be protected as relating to matters of public concern even in 
the absence of any effort or intent to inform the public.\111\ In Rankin 
v. McPherson\112\ the Court held protected an employee's comment, made 
to a coworker upon hearing of an unsuccessful attempt to assassinate the 
President, and in a context critical of the

[[Page 1089]]
President's policies, ``If they go for him again, I hope they get him.'' 
Indeed, the Court in McPherson emphasized the clerical employee's lack 
of contact with the public in concluding that the employer's interest in 
maintaining the efficient operation of the office (including public 
confidence and good will) was insufficient to outweigh the employee's 
First Amendment rights.\113\

        \111\This conclusion was implicit in Givhan, supra n.101, 
characterized by the Court in Connick as involving ``an employee 
speak[ing] out as a citizen on a matter of general concern, not tied to 
a personal employment dispute, but [speaking] privately.'' 461 U.S. at 
148 n.8.
        \112\483 U.S. 378 (1987). This was a 5-4 decision, with Justice 
Marshall's opinion of the Court being joined by Justices Brennan, 
Blackmun, Powell, and Stevens, and with Justice Scalia's dissent being 
joined by Chief Justice Rehnquist, and by Justices White and O'Connor. 
Justice Powell added a separate concurring opinion.
        \113\``Where . . . an employee serves no confidential, 
policymaking, or public contact role, the danger to the agency's 
successful function from that employee's private speech is minimal.'' 
483 U.S. at 390-91.
---------------------------------------------------------------------------

        Thus, although the public employer cannot muzzle its employees 
or penalize them for their expressions and associations to the same 
extent that a private employer can (the First Amendment, inapplicable to 
the private employer, is applicable to the public employer),\114\ the 
public employer nonetheless has broad leeway in restricting employee 
speech. If the employee speech does not relate to a matter of ``public 
concern,'' then Connick applies and the employer is largely free of 
constitutional restraint. If the speech does relate to a matter of 
public concern, then Pickering's balancing test (as modified by Connick) 
is employed, the governmental interests in efficiency, workplace 
harmony, and the satisfactory performance of the employee's duties\115\ 
being balanced against the employee's First Amendment rights. While the 
general approach is relatively easy to describe, it has proven difficult 
to apply.\116\ The First Amendment, however, does not stand alone in 
protecting the

[[Page 1090]]
speech of public employees; statutory protections for ``whistleblowers'' 
add to the mix.\117\

        \114\See, e.g., Elrod v. Burns, 427 U.S. 347 (1976), and Branti 
v. Finkel, 445 U.S. 507 (1980) (political patronage systems 
impermissibly infringe protected belief and associational rights of 
employees); Madison School Dist. v. WERC, 429 U.S. 167 (1977) (school 
teacher may not be prevented from speaking at a public meeting in 
opposition to position advanced by union with exclusive representation 
rights). The public employer may, as may private employers, permit 
collective bargaining and confer on representatives of its employees the 
right of exclusive representation, Abood v. Detroit Bd. of Educ., 431 
U.S. 209, 223-32 (1977), but the fact that its employees may speak does 
not compel government to listen to them. See Smith v. Arkansas State 
Highway Employees, 441 U.S. 463 (1979) (employees have right to 
associate to present their positions to their employer but employer not 
constitutionally required to engage in collective bargaining). See also 
Minnesota State Bd. for Community Colleges v. Knight, 465 U.S. 271 
(1984) (public employees not members of union have no First Amendment 
right to meet separately with public employers compelled by state law to 
``meet and confer'' with exclusive bargaining representative). 
Government may also inquire into the fitness of its employees and 
potential employees, but it must do so in a manner that does not 
needlessly endanger the expression and associational rights of those 
persons. See, e.g., Shelton v. Tucker, 364 U.S. 479 (1969).
        \115\In some contexts, the governmental interest is more far-
reaching. See Snepp v. United States, 444 U.S. 507, 509 n.3 (1980) 
(interest in protecting secrecy of foreign intelligence sources).
        \116\For analysis of the efforts of lower courts to apply 
Pickering and Connick, see Massaro, Significant Silences: Freedom of 
Speech in the Public Sector Workplace, 61 S. Cal. L. Rev. 1 (1987); and 
Allred, From Connick to Confusion: The Struggle to Define Speech on 
Matters of Public Concern, 64 Ind. L.J. 43 (1988).
        \117\The principal federal law is the Whistleblower Protection 
Act of 1989, Pub. L. No. 101-12, 103 Stat. 16, 5 U.S.C. Sec. 1201 et 
seq.
---------------------------------------------------------------------------

        Government as Educator.--While the Court had previously made 
clear that students in public schools were entitled to some 
constitutional protection\118\ and that minors generally were not 
outside the range of constitutional protection,\119\ its first attempt 
to establish standards of First Amendment expression guarantees against 
curtailment by school authorities came in Tinker v. Des Moines 
Independent Community School District.\120\ There, high school 
principals had banned the wearing of black armbands by students in 
school as a symbol of protest against United States actions in Viet Nam. 
Reversing the refusal of lower courts to reinstate students who had been 
suspended for violating the ban, the Court set out the balance to be 
drawn. ``First Amendment rights, applied in light of the special 
characteristics of the school environment, are available to teachers and 
students. It can hardly be argued that either students or teachers shed 
their constitutional rights to freedom of speech or expression at the 
school house gate. . . . On the other hand, the Court has repeatedly 
emphasized the need for affirming the comprehensive authority of the 
States and of school officials, consistent with fundamental 
constitutional safeguards, to prescribe and control conduct in the 
schools.''\121\ Restriction on expression by school authorities is only 
permissible to prevent disruption of educational discipline. ``In order 
for the State in the person of school officials to justify prohibition 
of a particular expression of opinion, it must be able to show that its 
action was caused by something more than a mere desire to avoid the 
discomfort and unpleasantness that always accompany an unpopular 
viewpoint. Certainly where there is no finding and no showing that 
engaging in the forbidden conduct would `materially and substantially 
interfere with the requirements of appropriate discipline in the 
operation of the school,' the prohibition cannot be sustained.''\122\

        \118\West Virginia State Board of Education v. Barnette, 319 
U.S. 624 (1943) (flag salute); Meyer v. Nebraska, 262 U.S. 390 (1923) 
(limitation of language curriculum to English); Pierce v. Society of 
Sisters, 268 U.S. 510 (1925) (compulsory school attendance in public 
rather than choice of public or private schools).
        \119\In re Gault, 387 U.S. 1 (1967). Of course, children are in 
a number of respects subject to restrictions which would be 
impermissible were adults involved. E.g., Ginsberg v. New York, 390 U.S. 
629 (1968); Rowan v. Post Office Dept., 397 U.S. 728 (1970) (access to 
objectionable and perhaps obscene materials).
        \120\393 U.S. 503 (1969).
        \121\Id. at 506, 507.
        \122\Id. at 509. The internal quotation is from Burnside v. 
Byars, 363 F.2d 744, 749 (5th Cir. 1966). See also Papish v. Board of 
Curators, 410 U.S. 667 (1973) (state university could not expel a 
student for using ``indecent speech'' in campus newspaper). However, 
offensive ``indecent'' speech in the context of a high school assembly 
is punishable by school authorities. See Bethel School Dist. No. 403 v. 
Fraser, 478 U.S. 675 (1986) (upholding 2-day suspension, and withdrawal 
of privilege of speaking at graduation, for student who used sophomoric 
sexual metaphor in speech given to school assembly).

---------------------------------------------------------------------------

[[Page 1091]]

        Tinker was reaffirmed by the Court in Healy v. James,\123\ in 
which it held that the withholding of recognition by a public college 
administration from a student organization violated the students' right 
of association, which is a construct of First Amendment liberties. 
Denial of recognition, the Court held, was impermissible if it had been 
based on the local organization's affiliation with the national SDS, or 
on disagreement with the organization's philosophy, or on a fear of 
disruption with no evidentiary support. ``First Amendment rights must 
always be applied `in light of the special characteristics of the . . . 
environment' in the particular case. . . . And, where state-operated 
educational institutions are involved, this Court has long recognized 
`the need for affirming the comprehensive authority of the States and of 
school officials, consistent with fundamental constitutional safeguards, 
to prescribe and control conduct in the schools.'. . . Yet, the 
precedents of this Court leave no room for the view that, because of the 
acknowledged need for order, First Amendment protections should apply 
with less force on college campuses than in the community at large. 
Quite to the contrary, `[t]he vigilant protection of constitutional 
freedoms is nowhere more vital than in the community of American 
schools.' . . . The college classroom with its surrounding environs is 
peculiarly the `market place of ideas' and we break no new 
constitutional ground in reaffirming this Nation's dedication to 
safeguarding academic freedom.''\124\ But a college may impose 
reasonable regulations to maintain order and preserve an atmosphere in 
which learning may take place, and it may impose as a condition of 
recognition that each organization affirm in advance its willingness to 
adhere to reasonable campus law.\125\

        \123\408 U.S. 169 (1972).
        \124\Id. at 180. The internal quotations are from Tinker, 393 
U.S. 503, 506, 507 (1969), and from Shelton v. Tucker, 364 U.S. 479, 487 
(1960).
        \125\Healy v. James, 408 U.S. at 193. Because a First Amendment 
right was in issue, the burden was on the college to justify its 
rejection of a request for recognition rather than upon the requesters 
to justify affirmatively their right to be recognized. Id. at 184. 
Justice Rehnquist concurred in the result, because in his view a school 
administration could impose upon students reasonable regulations that 
would be impermissible if imposed by the government upon all citizens; 
consequently, cases cited by the Court which had arisen in the latter 
situation he did not think controlling. Id. at 201. See also Grayned v. 
City of Rockford, 408 U.S. 104 (1972), in which the Court upheld an 
antinoise ordinance that forbade persons on grounds adjacent to a school 
to willfully make noise or to create any other diversion during school 
hours that ``disturbs or tends to disturb'' normal school activities.

---------------------------------------------------------------------------

[[Page 1092]]

        While a public college may not be required to open its 
facilities generally for use by student groups, once it has done so it 
must justify any discriminations and exclusions under applicable 
constitutional norms, such as those developed under the public forum 
doctrine. Thus, it was constitutionally impermissible for a college to 
close off its facilities, otherwise open, to students wishing to engage 
in religious speech.\126\ To be sure, a decision to permit access by 
religious groups had to be evaluated under First Amendment religion 
standards, but equal access did not violate the religion clauses. 
Compliance with stricter state constitutional provisions on church-state 
was a substantial interest, but it could not justify a content-based 
discrimination in violation of the First Amendment speech clause.\127\ 
By enactment of the Equal Access Act in 1984,\128\ Congress applied the 
same ``limited open [public] forum'' principles to public high schools, 
and the Court upheld the Act against First Amendment challenge.\129\

        \126\Widmar v. Vincent, 454 U.S. 263 (1981).
        \127\Id. at 270-76. Whether the holding extends beyond the 
college level to students in high school or below who are more 
``impressionable'' and perhaps less able to appreciate that equal access 
does not compromise the school's neutrality toward religion, id. at 274 
n.14, is unclear. See Brandon v. Board of Education, 635 F.2d 971 (2d 
Cir. 1980), cert. denied, 454 U.S. 1123 (1981).
        \128\Pub. L. No. 98-377, title VII, 98 Stat. 1302, 20 U.S.C. 
Sec. Sec. 4071-74.
        \129\Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226 
(1990). There was no opinion of the Court on the Establishment Clause 
holding. A plurality opinion, id. at 247-53, rejected Justice Marshall's 
contention, id. at 263, that compulsory attendance and other structured 
aspects of the particular high school setting in Mergens differed so 
significantly from the relatively robust, open college setting in Widmar 
as to suggest state endorsement of religion.
---------------------------------------------------------------------------

        When faced with another conflict between a school system's 
obligation to inculcate community values in students and the expression 
rights of those students, the Court splintered badly, remanding for full 
trial a case challenging the authority of a school board to remove 
certain books from high school and junior high school libraries.\130\ In 
dispute were the school board's reasons for removing the books--whether, 
as the board alleged, because of vulgarity and other content-neutral 
reasons, or whether also because of political disagreement with 
contents. The plurality conceded that school boards must be permitted 
``to establish and apply their curriculum in such a way as to transmit 
community values,'' and that ``there is a legitimate and substantial 
community interest in promoting respect for authority and traditional 
values be they social, moral, or political.'' At the same time, the 
plurality thought that students retained substantial free expression 
protections and that among these was the right to receive information 
and ideas. Carefully limiting its discussion to the removal of books 
from a school library,

[[Page 1093]]
thereby excluding acquisition of books as well as questions of school 
curricula, the plurality would hold a school board constitutionally 
disabled from removing library books in order to deny access to ideas 
with which it disagrees for political reasons.\131\ The four dissenters 
basically rejected the contention that school children have a protected 
right to receive information and ideas and thought that the proper role 
of education was to inculcate the community's values, a function into 
which the federal courts could rarely intrude.\132\ The decision 
provides little guidance to school officials and to the lower courts and 
assures a revisiting of the controversy by the Supreme Court.

        \130\Board of Education v. Pico, 457 U.S. 853 (1982).
        \131\Id. 862, 864-69, 870-72. Only Justices Marshall and Stevens 
joined fully Justice Brennan's opinion. Justice Blackmun joined it for 
the most part with differing emphases. Id. at 875. Justice White 
refrained from joining any of the opinions but concurred in the result 
solely because he thought there were unresolved issues of fact that 
required a trial. Id. at 883.
        \132\The principal dissent was by Justice Rehnquist. Id. at 904. 
See also id. at 885 (Chief Justice Burger), 893 (Justice Powell), 921 
(Justice O'Connor).
---------------------------------------------------------------------------

        Tinker was distinguished in Hazelwood School Dist. v. 
Kuhlmeier,\133\ the Court relying on public forum analysis to hold that 
editorial control and censorship of a student newspaper sponsored by a 
public high school need only be ``reasonably related to legitimate 
pedagogical concerns.''\134\ ``The question whether the First Amendment 
requires a school to tolerate particular student speech--the question 
that we addressed in Tinker--is different from the question whether the 
First Amendment requires a school affirmatively to promote particular 
student speech.''\135\ The student newspaper had been created by school 
officials as a part of the school curriculum, and served ``as a 
supervised learning experience for journalism students.'' Because no 
public forum had been created, school officials could maintain editorial 
control subject only to a reasonableness standard. Thus, a principal's 
decisions to excise from the publication an article describing student 
pregnancy in a manner believed inappropriate for younger students, and 
another article on divorce critical of a named parent, were upheld.

        \133\484 U.S.260 (1988).
        \134\Id. at 273.
        \135\Id. at 270-71.
---------------------------------------------------------------------------

        The category of school-sponsored speech subject to Kuhlmeier 
analysis appears to be far broader than the category of student 
expression still governed by Tinker. School-sponsored activities, the 
Court indicated, can include ``publications, theatrical productions, and 
other expressive activities that students, parents, and members of the 
public might reasonably perceive to bear the imprimatur of the school. 
These activities may fairly be characterized as part of the school 
curriculum, whether or not they occur in a tradi

[[Page 1094]]
tional classroom setting, so long as they are supervised by faculty 
members and designed to impart particular knowledge or skills to student 
participants and audiences.''\136\ Because most primary, intermediate, 
and secondary school environments are tightly structured, with few 
opportunities for unsupervised student expression,\137\ Tinker 
apparently has limited applicability. It may be, for example, that 
students are protected for off-premises production of ``underground'' 
newspapers (but not necessarily for attempted distribution on school 
grounds) as well as for non-disruptive symbolic speech. For most student 
speech at public schools, however, Tinker's tilt in favor of student 
expression, requiring school administrators to premise censorship on 
likely disruptive effects, has been replaced by Kuhlmeier's tilt in 
favor of school administrators' pedagogical discretion.\138\

        \136\Id. at 271. Selection of materials for school libraries may 
fall within this broad category, depending upon what is meant by 
``designed to impart particular knowledge or skills.'' See generally 
Stewart, The First Amendment, the Public Schools, and the Inculcation of 
Community Values, 18 J. Law & Educ. 23 (1989).
        \137\The Court in Kuhlmeier declined to decide ``whether the 
same degree of deference is appropriate with respect to school-sponsored 
expressive activities at the college and university level.'' 484 U.S. at 
274 n.7.
        \138\One exception may exist for student religious groups 
covered by the Equal Access Act; in this context the Court seemed to 
step back from Kuhlmeier's broad concept of curriculum-relatedness, 
seeing no constitutionally significant danger of perceived school 
sponsorship of religion arising from application of the Act's 
requirement that high schools provide meeting space for student 
religious groups on the same basis that they provide such space for 
student clubs. Westside Community Bd. of Educ. v. Mergens, 496 U.S. 226 
(1990).
---------------------------------------------------------------------------

        Governmental regulation of the school and college administration 
can also implicate the First Amendment. But the Court dismissed as too 
attenuated a claim to a First Amendment-based academic freedom privilege 
to withhold peer review materials from EEOC subpoena in an investigation 
of a charge of sex discrimination in a faculty tenure decision.\139\

        \139\University of Pennsylvania v. EEOC, 493 U.S. 182 (1990).
---------------------------------------------------------------------------

        Government as Regulator of the Electoral Process: Elections.--
Government has increasingly regulated the electoral system by which 
candidates are nominated and elected, requiring disclosure of 
contributions and expenditures, limiting contributions and expenditures, 
and imposing other regulations.\140\ These regula- 

        \140\The basic federal legislation regulating campaign finances 
is spread over several titles of the United States Code. The relevant, 
principal modern laws are the Federal Election Campaign Act of 1971, 86 
Stat. 3, as amended by the Federal Election Campaign Act Amendments of 
1974, 88 Stat. 1263, and the Federal Election Campaign Act Amendments of 
1979, 93 Stat. 1339, 2 U.S.C. 431 et seq., and sections of Titles 18 and 
26. The Federal Corrupt Practices Act of 1925, 43 Stat. 1074, was upheld 
in Burroughs v. United States, 290 U.S. 534 (1934), but there was no 
First Amendment challenge. All States, of course, extensively regulate 
elections.

---------------------------------------------------------------------------

[[Page 1095]]


    tions restrict freedom of expression, which comprehends the rights 
    to join together for political purposes, to promote candidates and 
    issues, and to participate in the political process.\141\ The Court 
    is divided with respect to many of these federal and state 
    restrictions, but when government acts to bar or penalize political 
    speech directly the Justices are united. Thus, when Kentucky 
    attempted to void an election on the grounds that the winner's 
    campaign promise to serve at a lower salary than that affixed to the 
    office violated a law prohibiting candidates from offering material 
    benefits to voters in consideration for their votes, the Court ruled 
    unanimously that the state's action violated the First 
    Amendment.\142\ Similarly, California could not prohibit official 
    governing bodies of political parties from endorsing or opposing 
    candidates in primary elections.\143\


        \141\See, e.g., Mills v. Alabama, 384 U.S. 214, 218-19 (1966); 
Buckley v. Valeo, 424 U.S. 1, 14, 19 (1976); First National Bank of 
Boston v. Bellotti, 435 U.S. 765, 776-78 (1978); Brown v. Hartlage, 456 
U.S. 45, 52-54 (1982).
        \142\Brown v. Hartlage, 456 U.S. 45 (1982). See also Mills v. 
Alabama, 384 U.S. 214 (1966) (setting aside a conviction and voiding a 
statute which punished electioneering or solicitation of votes for or 
against any proposition on the day of the election, applied to 
publication of a newspaper editorial on election day supporting an issue 
on the ballot); Vanasco v. Schwartz, 401 F. Supp. 87 (E.D.N.Y. 1975) 
(three-judge court), aff'd, 423 U.S. 1041 (1976) (statute barring 
malicious, scurrilous, and false and misleading campaign literature is 
unconstitutionally overbroad).
        \143\Eu v. San Francisco County Democratic Central Comm., 489 
U.S. 214 (1989). Cf. Burson v. Freeman, 112 S. Ct. 1846 (1992) 
(upholding Tennessee law prohibiting solicitation of votes and 
distribution of campaign literature within 100 feet of the entrance to a 
polling place; plurality found a ``compelling'' interest in preventing 
voter intimidation and election fraud).
---------------------------------------------------------------------------

        In 1971 and 1974, Congress imposed new and stringent regulation 
of and limitations on contributions to and expenditures by political 
campaigns, as well as disclosure of most contributions and expenditures, 
setting the stage for the landmark Buckley v. Valeo decision probing the 
scope of protection afforded political activities by the First 
Amendment.\144\ In basic unanimity, but with several Justices feeling 
that the sustained provisions trenched on protected expression, the 
Court sustained the contribution and disclosure sections of the statute 
but voided the limitations on expenditures.\145\

        \144\424 U.S. 1 (1976).
        \145\The Court's lengthy opinion was denominated per curiam, but 
five Justices filed separate opinions.
---------------------------------------------------------------------------

        ``Discussion of public issues and debate on the qualifications 
of candidates are integral to the operation of the system of government 
established by our Constitution. . . . A restriction on the amount of 
money a person or group can spend on political communication during a 
campaign necessarily reduces the quantity of expression by restricting 
the number of issues discussed, the depth

[[Page 1096]]
of their exploration, and the size of the audience reached.''\146\ The 
expenditure of money in political campaigns may involve speech alone, 
conduct alone, or mixed speech-conduct, the Court noted, but all forms 
of it involve communication, and when governmental regulation is aimed 
directly at suppressing communication it matters not how that 
communication is defined. As such, the regulation must be subjected to 
close scrutiny and justified by compelling governmental interests. When 
this process was engaged in, the contribution limitations, with some 
construed exceptions, survived, but the expenditure limitation did not.

        \146\Id. at 14, 19.
---------------------------------------------------------------------------

        The contribution limitation was sustained as imposing only a 
marginal restriction upon the contributor's ability to engage in free 
communication, inasmuch as the contribution is a generalized expression 
of support for a candidate but it is not a communication of reasons for 
the support; ``the size of the contribution provides a very rough index 
of the intensity of the contributors' support for the candidate.''\147\ 
The political expression really occurs when the funds are spent by a 
candidate; only if the restrictions were set so low as to impede this 
communication would there arise a constitutional infringement. This 
incidental restraint upon expression may therefore be justified by 
Congress' purpose to limit the actuality and appearance of corruption 
resulting from large individual financial contributions.\148\

        \147\Id. at 21.
        \148\Id. at 14-38. Chief Justice Burger and Justice Blackmun 
would have struck down the contribution limitations. Id. at 235, 241-46, 
290. See also California Medical Ass'n v. FEC, 453 U.S. 182 (1981), 
sustaining a provision barring individuals and unincorporated 
associations from contributing more than $5,000 per year to any 
multicandidate political action committee, on the basis of the standards 
applied to contributions in Buckley; and FEC v. National Right to Work 
Committee, 459 U.S. 197 (1982), sustaining a provision barring nonstock 
corporations from soliciting contributions from persons other than their 
members when the corporation uses the funds for designated federal 
election purposes.
---------------------------------------------------------------------------

        Of considerable importance to the analysis of the validity of 
the limitations on contributions was the Court's conclusion voiding a 
section restricting to $1,000 a year the aggregate expenditure anyone 
could make to advocate the election or defeat of a ``clearly identified 
candidate.'' Though the Court treated the restricted spending as purely 
an expenditure it seems to partake equally of the nature of a 
contribution on behalf of a candidate that is not given to the candidate 
but that is spent on his behalf. ``Advocacy of the election or defeat of 
candidates for federal office is no less entitled to protection under 
the First Amendment than the discussion of political policy generally or 
advocacy of the passage or de

[[Page 1097]]
feat of legislation.''\149\ The Court found that none of the 
justifications offered in support of a restriction on such expression 
was adequate; independent expenditures did not appear to pose the 
dangers of corruption that contributions did and it was an impermissible 
purpose to attempt to equalize the ability of some individuals and 
groups to express themselves by restricting the speech of other 
individuals and groups.\150\

        \149\Id. at 48.
        \150\Id. at 39-51. Justice White dissented. Id. at 257. In an 
oblique return to the right-privilege distinction, the Court agreed that 
Congress could condition receipt of public financing funds upon 
acceptance of expenditure limitations. Id. at 108-09. In Common Cause v. 
Schmitt, 512 F. Supp. 489 (D.C. 1980), aff'd by an equally divided 
Court, 455 U.S. 129 (1982), a provision was invalidated which limited 
independent political committees to expenditures of no more than $1,000 
to further the election of any presidential candidate who received 
public funding. An equally divided affirmance is of limited precedential 
value. When the validity of this provision, 26 U.S.C. Sec. 9012(f), was 
again before the Court in 1985, the Court invalidated it by vote of 7-2. 
FEC v. National Conservative Political Action Comm., 470 U.S. 480 
(1985). In an opinion by Justice Rehnquist, the Court determined that 
the governmental interest in preventing corruption or the appearance of 
corruption was insufficient justification for restricting the First 
Amendment rights of committees interested in making independent 
expenditures on behalf of a candidate, since ``the absence of 
prearrangement and coordination undermines the value of the expenditure 
to the candidate, and thereby alleviates the danger that expenditures 
will be given as a quid pro quo for improper commitments from the 
candidate.'' Id. at 498.
---------------------------------------------------------------------------

        Similarly, limitations upon the amount of funds a candidate 
could spend out of his own resources or those of his immediate family 
were voided. A candidate, no less than any other person, has a First 
Amendment right to advocate.\151\ The limitations upon total 
expenditures by candidates seeking nomination or election to federal 
office could not be justified: the evil associated with dependence on 
large contributions was met by limitations on contributions, the purpose 
of equalizing candidate financial resources was impermissible, and the 
First Amendment did not permit government to determine that expenditures 
for advocacy were excessive or wasteful.\152\

        \151\Id. at 51-54. Justices Marshall and White disagreed with 
this part of the decision. Id. at 286.
        \152\Id. at 54-59. The reporting and disclosure requirements 
were sustained. Id. at 60-84. See supra, pp.1063-64.
---------------------------------------------------------------------------

        Although the Court in Buckley upheld the Act's reporting and 
disclosure requirements, it indicated that under some circumstances the 
First Amendment might require exemption for minor parties able to show 
``a reasonable probability that the compelled disclosure of a party's 
contributors' names will subject them to threats, harassment, or 
reprisals from either Government officials or private parties.''\153\ 
This standard was applied both to disclosure of contributors' names and 
to disclosure of recipients of

[[Page 1098]]
campaign expenditures in Brown v. Socialist Workers '74 Campaign 
Committee,\154\ in which the Court held that the minor party had 
established the requisite showing of likely reprisals through proof of 
past governmental and private hostility and harassment. Disclosure of 
recipients of campaign expenditures, the Court reasoned, could not only 
dissuade supporters and workers who might receive reimbursement for 
expenses, but could also dissuade various entities from performing 
routine commercial services for the party and thereby ``cripple a minor 
party's ability to operate effectively.''\155\

        \153\424 U.S. at 74.
        \154\459 U.S. 87 (1982).
        \155\Id. at 97-98.
---------------------------------------------------------------------------

        Outside the context of contributions to candidates, however, the 
Court has not been convinced of the justifications for limiting such 
uses of money for political purposes. Thus, a municipal ordinance 
regulating the maximum amount that could be contributed to or accepted 
by an association formed to take part in a city referendum was 
invalidated.\156\ While Buckley had sustained limits on contributions as 
a prophylactic measure to prevent corruption or its appearance, no risk 
of corruption was found in giving or receiving funds in connection with 
a referendum. Similarly, the Court invalidated a criminal prohibition on 
payment of persons to circulate petitions for a ballot initiative.\157\

        \156\Citizens Against Rent Control v. City of Berkeley, 454 U.S. 
290 (1980). It is not clear from the opinion whether the Court was 
applying a contribution or an expenditure analysis to the ordinance, see 
id. at 301 (Justice Marshall concurring), or whether in this context it 
makes any difference.
        \157\Meyer v. Grant, 486 U.S. 414 (1988).
---------------------------------------------------------------------------

        Venturing into the area of the constitutional validity of 
governmental limits upon political spending or contributions by 
corporations, a closely-divided Court struck down a state law that 
prohibited corporations from expending funds in order to influence 
referendum votes on any measure save proposals that materially affected 
corporate business, property, or assets. The free discussion of 
governmental affairs ``is the type of speech indispensable to 
decisionmaking in a democracy,'' the Court said, ``and this is no less 
true because the speech comes from a corporation rather than an 
individual''\158\ It is the nature of the speech, not the status of the 
speaker, that is relevant for First Amendment analysis, thus allowing 
the Court to pass by the question of the rights a corporate person may 
have. The ``materially affecting'' requirement was found to

[[Page 1099]]
be an impermissible proscription of speech based on content and identity 
of interests. The ``exacting scrutiny'' that restrictions on speech must 
pass was not satisfied by any of the justifications offered and the 
Court in any event found some of them impermissible.

        \158\First National Bank of Boston v. Bellotti, 435 U.S. 765 
(1978). Justice Powell wrote the opinion of the Court. Dissenting, 
Justices White, Brennan, and Marshall argued that while corporations 
were entitled to First Amendment protection, they were subject to more 
regulation than were individuals, and substantial state interests 
supported the restrictions. Id. at 802. Justice Rehnquist went further 
in dissent, finding no corporate constitutional protection. Id. at 822.
---------------------------------------------------------------------------

        Bellotti called into some question the constitutionality of the 
federal law that makes it unlawful for any corporation or labor union 
``to make a contribution or expenditure in connection with any 
election'' for federal office or ``in connection with any primary 
election or political convention or caucus held to select candidates'' 
for such office.\159\ Three times the opportunity has arisen for the 
Court to assess the validity of the statute and each time it has passed 
it by.\160\ One of the dissents in Bellotti suggested its application to 
the federal law, but the Court saw several distinctions.\161\

        \159\2 U.S.C. Sec. 441b. The provision began as Sec. 313 of the 
Federal Corrupt Practices Act of 1925, 43 Stat. 1074, prohibiting 
contributions by corporations. It was made temporarily applicable to 
labor unions in the War Labor Disputes Act of 1943, 57 Stat. 167, and 
became permanently applicable in Sec. 304 of the Taft-Hartley Act. 61 
Stat. 159.
        \160\All three cases involved labor unions and were decided on 
the basis of statutory interpretation, apparently informed with some 
constitutional doubts. United States v. CIO, 335 U.S. 106 (1948); United 
States v. United Automobile Workers, 352 U.S. 567 (1957); Pipefitters v. 
United States, 407 U.S. 385 (1972).
        \161\First National Bank of Boston v. Bellotti, 435 U.S. 765, 
811-12 (1978) (Justice White dissenting). The Court emphasized that 
Bellotti was a referendum case, not a case involving corporate 
expenditures in the context of partisan candidate elections, in which 
the problem of corruption of elected representatives was a weighty 
problem. ``Congress might well be able to demonstrate the existence of a 
danger of real or apparent corruption in independent expenditures by 
corporations to influence candidate elections.'' Id. at 787-88 & n.26.
---------------------------------------------------------------------------

        Other aspects of the federal provision have been interpreted by 
the Court. First, in FEC v. National Right to Work Committee,\162\ the 
Court unanimously upheld section 441b's prohibition on corporate 
solicitation of money from corporate nonmembers for use in federal 
elections. Relying on Bellotti for the proposition that government may 
act to prevent ``both actual corruption and the appearance of corruption 
of elected representatives,'' the Court concluded that ``there is no 
reason why . . . unions, corporations, and similar organizations [may 
not be] treated differently from individuals.''\163\ However, an 
exception to this general principle was recognized by a divided Court in 
FEC v. Massachusetts Citizens for Life, Inc.,\164\ holding the section's 
independent expenditure limitations (not limiting expenditures but 
requiring only that such expendi

[[Page 1100]]
tures be financed by voluntary contributions to a separate segregated 
fund) unconstitutional as applied to a corporation organized to promote 
political ideas, having no stockholders, and not serving as a front for 
a ``business corporation'' or union. One of the rationales for the 
special rules on corporate participation in elections--elimination of 
``the potential for unfair deployment of [corporate] wealth for 
political purposes''--has no applicability to such a corporation 
``formed to disseminate political ideas, not to amass capital.''\165\ 
The other principal rationale--protection of corporate shareholders and 
other contributors from having their money used to support political 
candidates to whom they may be opposed--was also deemed inapplicable. 
The Court distinguished National Right to Work Committee because 
``restrictions on contributions require less compelling justification 
than restrictions on independent spending,'' and also explained that, 
``given a contributor's awareness of the political activity of [MCFL], 
as well as the readily available remedy of refusing further donations, 
the interest protecting contributors is simply insufficient to support 
Sec. 441b's restriction on . . . independent spending.''\166\ What the 
Court did not address directly was whether the same analysis could have 
led to a different result in National Right to Work Committee.\167\

        \162\459 U.S. 197 (1982).
        \163\459 U.S. at 210-11.
        \164\479 U.S. 238 (1986). Justice Brennan's opinion for the 
Court was joined by Justices Marshall, Powell, O'Connor, and Scalia; 
Chief Justice Rehnquist, author of the Court's opinion in National Right 
to Work Comm., dissented from the constitutional ruling, and was joined 
by Justices White, Blackmun, and Stevens.
        \165\479 U.S. at 259.
        \166\Id. at 259-60, 262.
        \167\The Court did not spell out whether there was any 
significant distinction between the two organizations, NRWC and MCFL; 
Chief Justice Rehnquist's dissent suggested that there was not. See id. 
at 266.
---------------------------------------------------------------------------

        Clarification of Massachusetts Citizens for Life was afforded by 
Austin v. Michigan State Chamber of Commerce,\168\ in which the Court 
upheld application to a nonprofit corporation of Michigan's restrictions 
on independent expenditures by corporations. The Michigan law, like 
federal law, prohibited such expenditures from corporate treasury funds, 
but allowed them to be made from separate ``segregated'' funds. This 
arrangement, the Court decided, serves the state's compelling interest 
in assuring that corporate wealth, accumulated with the help of special 
advantages conferred by state law, does not unfairly influence 
elections. The law was sufficiently ``narrowly tailored'' because it 
permits corporations to make independent political expenditures through 
segregated funds that ``accurately reflect contributors' support for the 
corporation's political views.''\169\ Also, the Court concluded that the 
Chamber of Commerce was unlike the MCFL in each of the three 
distinguishing features that had justified an exemption from operation 
of the federal law. Unlike MCFL, the Chamber was not organized solely

[[Page 1101]]
to promote political ideas; although it had no stockholders, the 
Chamber's members had similar disincentives to forego benefits of 
membership in order to protest the Chamber's political expression; and, 
by accepting corporate contributions, the Chamber could serve as a 
conduit for corporations to circumvent prohibitions on direct corporate 
contributions and expenditures.\170\

        \168\494 U.S. 652 (1990).
        \169\Id. at 660-61.
        \170\Id. at 661-65.
---------------------------------------------------------------------------

        Government as Regulator of the Electoral Process: Lobbying.--
Inasmuch as legislators may be greatly dependent upon representations 
made to them and information supplied to them by interested parties, 
legislators may desire to know what the real interests of those parties 
are, what groups or persons they represent, and other such information. 
But everyone is constitutionally entitled to write his congressman or 
his state legislator, to encourage others to write or otherwise contact 
legislators, and to make speeches and publish articles designed to 
influence legislators. Conflict is inherent. In the Federal Regulation 
of Lobbying Act,\171\ Congress by broadly phrased and ambiguous language 
seemed to require detailed reporting and registration by all persons who 
solicited, received, or expended funds for purposes of lobbying, that is 
to influence congressional action directly or indirectly. In United 
States v. Harriss,\172\ the Court, stating that it was construing the 
Act to avoid constitutional doubts,\173\ interpreted covered lobbying as 
meaning only direct attempts to influence legislation through direct 
communication with members of Congress.\174\ So construed, the Act was 
constitutional; Congress had ``merely provided for a modicum of 
information from those who for hire attempt to influence legislation or 
who collect or spend funds for that purpose,'' and this was simply a 
measure of ``self-protection.''\175\

        \171\Ch. 753, 60 Stat 812, 839 (1946), 2 U.S.C. Sec. Sec. 261-
70.
        \172\347 U.S. 612 (1954).
        \173\Id. at 623.
        \174\Id. at 617-624.
        \175\Id. at 625. Justices Douglas, Black, and Jackson dissented. 
Id. at 628, 633. They thought the Court's interpretation too narrow and 
would have struck the statute down as being too broad and too vague, but 
would not have denied Congress the power to enact narrow legislation to 
get at the substantial evils of the situation. See also United States v. 
Rumely, 345 U.S. 41 (1953).
---------------------------------------------------------------------------

        Other statutes and governmental programs affect lobbying and 
lobbying activities. It is not impermissible for the Federal Government 
to deny a business expense tax deduction for money spent to defeat 
legislation which would adversely affect one's business.\176\ But the 
antitrust laws may not be applied to a concert of business enterprises 
that have joined to lobby the legislative branch to pass and the 
executive branch to enforce laws which would have a det

[[Page 1102]]
rimental effect upon competitors, even if the lobbying was conducted 
unethically.\177\ On the other hand, allegations that competitors 
combined to harass and deter others from having free and unlimited 
access to agencies and courts by resisting before those bodies all 
petitions of competitors for purposes of injury to competition are 
sufficient to implicate antitrust principles.\178\

        \176\Cammarano v. United States, 358 U.S. 498 (1959).
        \177\Eastern R.R. Presidents Conference v. Noerr Motor Freight, 
365 U.S. 127 (1961). See also UMW v. Pennington, 381 U.S. 657, 669-71 
(1965).
        \178\California Motor Transport Co. v. Trucking Unlimited, 404 
U.S. 508 (1972). Justices Stewart and Brennan thought that joining to 
induce administrative and judicial action was as protected as the 
concert in Noerr but concurred in the result because the complaint could 
be read as alleging that defendants sought to forestall access to 
agencies and courts by plaintiffs. Id. at 516.
---------------------------------------------------------------------------

        Government as Regulator of Labor Relations.--Numerous problems 
may arise in this area,\179\ but the issue here considered is the 
balance to be drawn between the free speech rights of an employer and 
the statutory rights of his employees to engage or not engage in 
concerted activities free of employer coercion, which may well include 
threats or promises or other oral or written communications. The Court 
has upheld prohibitions against employer interference with union 
activity through speech so long as the speech is coercive,\180\ and that 
holding has been reduced to statutory form.\181\ Nonetheless, there is a 
First Amendment tension in this area, with its myriad variations of 
speech forms that may be denominated ``predictions,'' especially since 
determination whether particular utterances have an impermissible impact 
on workers is vested with an agency with no particular expertise in the 
protection of freedom of expression.\182\

        \179\E.g., the speech and associational rights of persons 
required to join a union, Railway Employees Dep't v. Hanson, 351 U.S. 
225 (1956); International Ass'n of Machinists v. Street, 367 U.S. 740 
(1961); and see Abood v. Detroit Bd. of Educ. 431 U.S. 209 (1977) 
(public employees), restrictions on picketing and publicity campaigns, 
Babbitt v. United Farm Workers, 442 U.S. 289 (1979), and application of 
collective bargaining laws in sensitive areas, NLRB v. Yeshiva Univ., 
444 U.S. 672 (1980) (faculty collective bargaining in private 
universities); NLRB v. Catholic Bishop, 440 U.S. 490 (1979) (collective 
bargaining in religious schools).
        \180\NLRB v. Virginia Electric & Power Co., 314 U.S. 469 (1941).
        \181\Ch. 120, 61 Stat, 142, Sec. 8(c) (1947), 29 U.S.C. 
Sec. 158(c).
        \182\Cf. NLRB v. Gissel Packing Co., 395 U.S. 575, 616-20 
(1969).
---------------------------------------------------------------------------

        Government as Investigator: Journalist's Privilege.--News 
organizations have claimed that the First Amendment status of the press 
compels a recognition by government of an exception to the ancient rule 
that every citizen owes to his government a duty to give what testimony 
he is capable of giving.\183\ The argument for a limited exemption to 
permit journalists to conceal their sources and to keep confidential 
certain information they obtain

[[Page 1103]]
and choose at least for the moment not to publish was rejected in 
Branzburg v. Hayes\184\ by a closely divided Court. ``Fair and effective 
law enforcement aimed at providing security for the person and property 
of the individual is a fundamental function of government, and the grand 
jury plays an important, constitutionally mandated role in this process. 
On the records now before us, we perceive no basis for holding that the 
public interest in law enforcement and in ensuring effective grand jury 
proceedings is insufficient to override the consequential, but 
uncertain, burden on news gathering which is said to result from 
insisting that reporters, like other citizens, respond to relevant 
questions put to them in the course of a valid grand jury investigation 
or criminal trial.''\185\ Not only was it uncertain to what degree 
confidential informants would be deterred from providing information, 
said Justice White for the Court, but the conditional nature of the 
privilege claimed might not mitigate the deterrent effect, leading to 
claims for an absolute privilege. Confidentiality could be protected by 
the secrecy of grand jury proceedings and by the experience of law 
enforcement officials in themselves dealing with informers. Difficulties 
would arise as well in identifying who should have the privilege and who 
should not. But the principal basis of the holding was that the 
investigation and exposure of criminal conduct was a governmental 
function of such importance that it overrode the interest of newsmen in 
avoiding the incidental burden on their newsgathering activities 
occasioned by such governmental inquiries.\186\

        \183\8 J. Wigmore, Evidence 2192 (3d ed. 1940). See Blair v. 
United States, 250 U.S. 273, 281 (1919); United States v. Bryan, 339 
U.S. 323, 331 (1950).
        \184\408 U.S. 665 (1972). ``The claim is, however, that 
reporters are exempt from these obligations because if forced to respond 
to subpoenas and identify their sources or disclose other confidences, 
their informants will refuse or be reluctant to furnish newsworthy 
information in the future. This asserted burden on news gathering is 
said to make compelled testimony from newsmen constitutionally suspect 
and to require a privileged position for them.'' Id. at 682.
        \185\Id. at 690-91.
        \186\Chief Justice Burger and Justices Blackmun, Powell, and 
Rehnquist joined the Court's opinion. Justice Powell also submitted a 
concurring opinion in which he suggested that newsmen might be able to 
assert a privilege of confidentiality if in each individual case they 
demonstrated that responding to the governmental inquiry at hand would 
result in a deterrence of First Amendment rights and privilege and that 
the governmental interest asserted was entitled to less weight than 
their interest. Id. at 709. Justice Stewart dissented, joined by 
Justices Brennan and Marshall, and argued that the First Amendment 
required a privilege which could only be overcome by a governmental 
showing that the information sought is clearly relevant to a precisely 
defined subject of inquiry, that it is reasonable to think that the 
witness has that information, and that there is not any means of 
obtaining the information less destructive of First Amendment liberties. 
Id. at 725. Justice Douglas also dissented. Id. at 711.
        The courts have construed Branzburg as recognizing a limited 
privilege which must be balanced against other interests. See In re 
Pennington, 224 Kan. 573, 581 P.2d 812 (1978), cert. denied, 440 U.S. 
929 (1979); Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979); 
United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980); cf. United 
States v. Criden, 633 F.2d 346 (3d Cir. 1980).

---------------------------------------------------------------------------

[[Page 1104]]

        The Court observed that Congress and the States were free to 
develop by statute privileges for reporters as narrowly or as broadly as 
they chose; while efforts in Congress failed, many States have enacted 
such laws.\187\ The assertion of a privilege in civil cases has met with 
mixed success in the lower courts, the Supreme Court having not yet 
confronted the issue.\188\

        \187\At least 26 States have enacted some form of journalists' 
shield law. E.g., Cal. Evid. Code Sec. 1070; N.J. Rev. Stat. 2A:84A-21, 
21a, -29. The reported cases evince judicial hesitancy to give effect to 
these statutes. See, e.g., Farr v. Pitchess, 522 F. 2d 464 (9th Cir. 
1975), cert. denied, 427 U.S. 912 (1976); Rosato v. Superior Court, 51 
Cal. App. 3d 190, 124 Cal. Rptr. 427 (1975), cert. denied, 427 U.S. 912 
(1976). The greatest difficulty these laws experience, however, is the 
possibility of a constitutional conflict with the Fifth and Sixth 
Amendment rights of criminal defendants. See Matter of Farber, 78 N.J. 
259, 394 A. 2d 330, cert. denied sub. nom., New York Times v. New 
Jersey, 439 U.S. 997 (1978). See also New York Times v. Jascalevich, 439 
U.S. 1301, 1304, 1331 (1978) (applications to Circuit Justices for 
stay), and id. at 886 (vacating stay).
        \188\E.g., Baker v. F. & F. Investment Co., 470 F.2d 778 (2d 
Cir. 1972), cert. denied, 411 U.S. 966 (1973); Democratic National Comm. 
v. McCord, 356 F. Supp. 1394 (D.D.C. 1973).
---------------------------------------------------------------------------

        Nor does the status of an entity as a newspaper (or any other 
form of news medium) protect it from issuance and execution on probable 
cause of a search warrant for evidence or other material properly sought 
in a criminal investigation.\189\ The press had argued that to permit 
searches of newsrooms would threaten the ability to gather, analyze, and 
disseminate news, because searches would be disruptive, confidential 
sources would be deterred from coming forward with information because 
of fear of exposure, reporters would decline to put in writing their 
information, and internal editorial deliberations would be exposed. The 
Court thought that First Amendment interests were involved, although it 
seemed to doubt that the consequences alleged would occur, but it 
observed that the built-in protections of the warrant clause would 
adequately protect those interests and noted that magistrates could 
guard against abuses when warrants were sought to search newsrooms by 
requiring particularizations of the type, scope, and intrusiveness that 
would be permitted in the searches.\190\

        \189\Zurcher v. Stanford Daily, 436 U.S. 547, 563-67 (1978). 
Justice Powell thought it appropriate that ``a magistrate asked to issue 
a warrant for the search of press offices can and should take cognizance 
of the independent values protected by the First Amendment'' when he 
assesses the reasonableness of a warrant in light of all the 
circumstances. Id. at 568 (concurring). Justices Stewart and Marshall 
would have imposed special restrictions upon searches when the press was 
the object, id. at 570 (dissenting), and Justice Stevens dissented on 
Fourth Amendment grounds. Id. at 577.
        \190\Congress has enacted the Privacy Protection Act of 1980, 
Pub. L. No. 96-440, 94 Stat. 1879, 42 U.S.C. Sec. 2000aa, to protect the 
press and other persons having material intended for publication from 
federal or state searches in specified circumstances, and creating 
damage remedies for violations.

---------------------------------------------------------------------------

[[Page 1105]]

        Government and the Conduct of Trials.--Conflict between 
constitutionally protected rights is not uncommon. One of the most 
difficult to resolve is the conflict between a criminal defendant's 
Fifth and Sixth Amendment rights to a fair trial and the First 
Amendment's protection of the rights to obtain and publish information 
about defendants and trials. Convictions obtained in the context of 
prejudicial pre-trial publicity\191\ and during trials that were media 
``spectaculars''\192\ have been reversed, but the prevention of such 
occurrences is of paramount importance to the governmental and public 
interest in the finality of criminal trials and the successful 
prosecution of criminals. However, the imposition of ``gag orders'' on 
press publication of information directly confronts the First Amendment 
bar on prior restraints,\193\ although the courts have a good deal more 
discretion in preventing the information from becoming public in the 
first place.\194\ Perhaps the most profound debate that has arisen in 
recent years concerns the right of access of the public and the press to 
trial and pre-trial proceedings, and in those cases the Court has 
enunciated several important theorems of First Amendment interpretation.

        \191\Irvin v. Dowd, 366 U.S. 717 (1961); Rideau v. Louisiana, 
373 U.S. 723 (1963).
        \192\Sheppard v. Maxwell, 384 U.S. 333 (1966); compare Estes v. 
Texas, 381 U.S. 532 (1965), with Chandler v. Florida, 449 U.S. 560 
(1981).
        \193\Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976).
        \194\See, e.g., Gentile v. State Bar of Nevada, 501 U.S. 1030 
(1991) (disciplinary rules restricting extrajudicial comments by 
attorneys are void for vagueness, but such attorney speech may be 
regulated if it creates a ``substantial likelihood of material 
prejudice'' to the trial of a client); Seattle Times Co. v. Rhinehart, 
467 U.S. 20 (1984) (press, as party to action, restrained from 
publishing information obtained through discovery).
---------------------------------------------------------------------------

        When the Court held that the Sixth Amendment right to a public 
trial did not guarantee access of the public and the press to pre-trial 
suppression hearings,\195\ a major debate flowered that implicated all 
the various strands of the extent to which, if at all, the speech and 
press clauses protected the public and the press in seeking to attend 
trials.\196\ The right of access to criminal trials against the wishes 
of the defendant was held protected in Richmond Newspapers v. 
Virginia,\197\ but the Justices could not agree upon a majority 
rationale that would permit principled application of the holding to 
other areas in which access is sought.

        \195\Gannett Co. v. DePasquale, 443 U.S. 368 (1979).
        \196\DePasquale rested solely on the Sixth Amendment, the Court 
reserving judgment on whether there is a First Amendment right of public 
access. 443 U.S. at 392.
        \197\448 U.S. 555 (1980). The decision was 7-to-1, Justice 
Rehnquist dissenting, id. at 604, and Justice Powell not participating. 
Justice Powell, however, had taken the view in Gannett Co. v. 
DePasquale, 443 U.S. 368, 397 (1979) (concurring), that the First 
Amendment did protect access to trials.

---------------------------------------------------------------------------

[[Page 1106]]

        Chief Justice Burger pronounced the judgment of the Court, but 
his opinion was joined by only two other Justices (and one of them in a 
separate concurrence drew conclusions probably going beyond the Chief 
Justice's opinion).\198\ Basic to the Chief Justice's view was an 
historical treatment which demonstrated that trials were traditionally 
open. This openness, moreover, was no ``quirk of history'' but ``an 
indispensable attribute of an Anglo-American trial.'' This 
characteristic flowed from the public interest in seeing fairness and 
proper conduct in the administration of criminal trials; the 
``therapeutic value'' to the public of seeing its criminal laws in 
operation, purging the society of the outrage felt with the commission 
of many crimes, convincingly demonstrated why the tradition developed 
and was maintained. Thus, ``a presumption of openness inheres in the 
very nature of a criminal trial under our system of justice.'' The 
presumption has more than custom to command it. ``[I]n the context of 
trials . . . the First Amendment guarantees of speech and press, 
standing alone, prohibit government from summarily closing courtroom 
doors which had long been open to the public at the time that amendment 
was adopted.''\199\

        \198\See Richmond Newspapers v. Virginia, 448 U.S. 555, 582 
(1980) (Justice Stevens concurring).
        \199\Id. at 564-69. The emphasis on experience and history was 
repeated by the Chief Justice in his opinion for the Court in Press-
Enterprise Co. v. Superior Court, 478 U.S. 1 (1986) (Press-Enterprise 
II).
---------------------------------------------------------------------------

        Justice Brennan, joined by Justice Marshall, followed a 
significantly different route to the same conclusion. In his view, ``the 
First Amendment . . . has a structural role to play in securing and 
fostering our republican system of self-government.'' It preserves and 
protects meaningful control over government through public discussion of 
its operation, and government therefore is compelled to see to the 
availability of information that people need to engage in that 
meaningful discussion. Thus, there is in fact a right of access that 
arises in the context of situations implicating self-government, 
including, but not limited to, trials.\200\

        \200\Id. at 585-93.
---------------------------------------------------------------------------

        The trial court in Richmond Newspapers had made no findings of 
necessity for closure, and neither Chief Justice Burger nor Justice 
Brennan found the need to articulate a standard for determining when the 
government's or the defendant's interests could outweigh the public 
right of access. That standard was developed two years later. Globe 
Newspaper Co. v. Superior Court\201\ involved a

[[Page 1107]]
statute, unique to one State, that mandated the exclusion of the public 
and the press from trials during the testimony of a sex-crime victim 
under the age of 18. For the Court, Justice Brennan wrote that the First 
Amendment guarantees press and public access to criminal trials, both 
because of the tradition of openness\202\ and because public scrutiny of 
a criminal trial serves the valuable functions of enhancing the quality 
and safeguards of the integrity of the factfinding process, of fostering 
the appearance of fairness, and of permitting public participation in 
the judicial process. The right is not absolute, but in order to close 
all or part of a trial government must show that ``the denial is 
necessitated by a compelling governmental interest, and [that it] is 
narrowly tailored to serve that interest.''\203\ The Court was explicit 
that the right of access was to criminal trials,\204\ so that the 
question of the openness of civil trials remains.

        \201\457 U.S. 596 (1982). Joining Justice Brennan's opinion of 
the Court were Justices White, Marshall, Blackmun, and Powell. Justice 
O'Connor concurred in the judgment. Chief Justice Burger, with Justice 
Rehnquist, dissented, arguing that the tradition of openness that 
underlay Richmond Newspapers, was absent with respect to sex crimes and 
youthful victims and that Richmond Newspapers was unjustifiably 
extended. Id. at 612. Justice Stevens dissented on mootness grounds. Id. 
at 620.
        \202\That there was no tradition of openness with respect to the 
testimony of minor victims of sex crimes was irrelevant, the Court 
argued. As a general matter, all criminal trials have been open. The 
presumption of openness thus attaches to all criminal trials and to 
close any particular kind or part of one because of a particular reason 
requires justification on the basis of the governmental interest 
asserted. Id. at 605 n.13.
        \203\Id. at 606-07. Protecting the well-being of minor victims 
was a compelling interest, the Court held, and might justify exclusion 
in specific cases, but it did not justify a mandatory closure rule. The 
other asserted interest, encouraging minors to come forward and report 
sex crimes, was not well served by the statute.
        \204\The Court throughout the opinion identifies the right as 
access to criminal trials, even italicizing the word at one point. Id. 
at 605.
---------------------------------------------------------------------------

        The Court next applied and extended the right of access in 
several other areas, striking down state efforts to exclude the public 
from voir dire proceedings, from a suppression hearing, and from a 
preliminary hearing. The Court determined in Press-Enterprise I\205\ 
that historically voir dire had been open to the public, and that 
``[t]he presumption of openness may be overcome only by an overriding 
interest based on findings that closure is essential to preserve higher 
values and is narrowly tailored to serve that interest.''\206\ No such 
findings had been made by the state court, which had ordered closed, in 
the interest of protecting the privacy interests of some prospective 
jurors, 41 of the 44 days of voir dire in a rape-murder case. The trial 
court also had not considered the possibility of less restrictive 
alternatives, e.g. in camera consideration of jurors' requests for 
protection from publicity. In Waller v. Georgia,\207\ the Court held 
that ``under the Sixth Amendment, any clo

[[Page 1108]]
sure of a suppression hearing over the objections of the accused\208\ 
must meet the tests set out in Press Enterprise,'' and noted that the 
need for openness at suppression hearings ``may be particularly strong'' 
due to the fact that the conduct of police and prosecutor is often at 
issue.\209\ And in Press Enterprise II,\210\ the Court held that there 
is a similar First Amendment right of the public to access to most 
criminal proceedings (here a preliminary hearing) even when the accused 
requests that the proceedings be closed. Thus, an accused's Sixth 
Amendment-based request for closure must meet the same stringent test 
applied to governmental requests to close proceedings: there must be 
``specific findings . . . demonstrating that first, there is a 
substantial probability that the defendant's right to a fair trial will 
be prejudiced by publicity that closure would prevent, and second, 
reasonable alternatives to closure cannot adequately protect the 
defendant's fair trial rights.''\211\ Openness of preliminary hearings 
was deemed important because, under California law, the hearings can be 
``the final and most important step in the criminal proceeding'' and 
therefore may be ```the sole occasion for public observation of the 
criminal justice system,''' and also because the safeguard of a jury is 
unavailable at preliminary hearings.\212\

        \205\Press-Enterprise Co. v. Superior Court, 464 U.S. 501 
(1984).
        \206\464 U.S. at 510.
        \207\467 U.S. 39 (1984).
        \208\Gannett Co. v. DePasquale, supra n., did not involve 
assertion by the accused of his 6th Amendment right to a public trial; 
instead, the accused in that case had requested closure. ``[T]he 
constitutional guarantee of a public trial is for the benefit of the 
defendant.'' DePasquale, 443 U.S. at 381.
        \209\467 U.S. at 47.
        \210\Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986).
        \211\Id. at 14.
        \212\Id. at 12.
---------------------------------------------------------------------------

        Government as Administrator of Prisons.--A prison inmate retains 
only those First Amendment rights that are not inconsistent with his 
status as a prisoner or with the legitimate penological objectives of 
the corrections system.\213\ The identifiable governmental interests at 
stake in administration of prisons are the preservation of internal 
order and discipline, the maintenance of institutional security against 
escape or unauthorized entry, and the rehabilitation of the 
prisoners.\214\ In applying these general standards, the Court at first 
arrived at somewhat divergent points in assessing prison restrictions on 
mail and on face-to-face news interviews between newsmen and prisoners. 
The Court's more recent deferential approach to regulation of prisoners' 
mail has lessened the differences.

        \213\Pell v. Procunier, 417 U.S. 817, 822 (1974).
        \214\Procunier v. Martinez, 416 U.S. 396, 412 (1974).
        
---------------------------------------------------------------------------

[[Page 1109]]

        First, in Procunier v. Martinez,\215\ the Court invalidated mail 
censorship regulations that permitted authorities to hold back or to 
censor mail to and from prisoners whenever they thought that the letters 
``unduly complain,'' ``express inflammatory . . . views or beliefs,'' or 
were ``defamatory'' or ``otherwise inappropriate.'' The Court based this 
ruling not on the rights of the prisoner, but instead on the outsider's 
right to communicate with the prisoner either by sending or by receiving 
mail. Under this framework, the Court held, regulation of mail must 
further an important interest unrelated to the suppression of 
expression; regulation must be shown to further the substantial interest 
of security, order, and rehabilitation, and it must not be utilized 
simply to censor opinions or other expressions. Further, a restriction 
must be no greater than is necessary or essential to the protection of 
the particular government interest involved.

        \215\416 U.S. 396 (1974). But see Jones v. North Carolina 
Prisoners' Union, 433 U.S. 119 (1977), in which the Court sustained, 
while recognizing the First Amendment implications, prison regulations 
barring solicitation of prisoners by other prisoners to join a union, 
banning union meetings, and denying bulk mailings concerning the union 
from outside sources. The reasonable fears of correctional officers that 
organizational activities of the sort advocated by the union could 
impair discipline and lead to possible disorders justified the 
regulations.
---------------------------------------------------------------------------

        However, in Turner v. Safley,\216\ the Court made clear that a 
more deferential standard is applicable when only the communicative 
rights of inmates are at stake. In upholding a Missouri rule barring 
inmate-to-inmate correspondence, while striking down a prohibition on 
inmate marriages absent compelling reason such as pregnancy or birth of 
a child, the Court announced the appropriate standard. ``[W]hen a 
regulation impinges on inmates' constitutional rights, the regulation is 
valid if it is reasonably related to legitimate penological 
interests.''\217\ Several considerations are appropriate in determining 
reasonableness of a regulation. First, there must be a rational relation 
to a legitimate, content-neutral objective. Prison security, broadly 
defined, is one such objective.\218\ Availability of other avenues for 
exercise of the inmate right suggests reasonableness. A further indicium 
of reasonableness is present if accommodation would have a negative 
effect on liberty or safety of guards or other inmates. On the other 
hand, an alternative to regulation ``that fully accommodated the 
prisoner's rights at de minimis cost to valid penological interests'' 
suggests

[[Page 1110]]
unreasonableness.\219\ Two years after Safley, the Court directly 
limited Martinez, restricting it to regulation of outgoing 
correspondence. In the Court's current view the needs of prison security 
justify a more deferential standard for prison regulations restricting 
incoming material, whether those incoming materials are correspondence 
from other prisoners, correspondence from nonprisoners, or outside 
publications.\220\

        \216\482 U.S. 78 (1987).
        \217\Id. at 89.
        \218\All that is required is that the underlying governmental 
objective be content neutral; the regulation itself may discriminate on 
the basis of content. See Thornburgh v. Abbott, 490 U.S. 401 (1989) 
(upholding Federal Bureau of Prisons regulation allowing prison 
authorities to reject incoming publications found to be detrimental to 
prison security).
        \219\482 U.S. at 91.
        \220\Thornburgh v. Abbott, 490 U.S. 401, 411-14 (1989).
---------------------------------------------------------------------------

        Neither prisoners nor newsmen have any affirmative First 
Amendment right to face-to-face interviews, when general public access 
to prisons is restricted and when there are alternatives by which the 
news media can obtain information respecting prison policies and 
conditions.\221\ Prison restrictions on such interviews do indeed 
implicate the First Amendment rights of prisoners, the Court held, but 
the justification for the restraint lay in the implementation of 
security arrangements, affected by the entry of persons into prisons, 
and the carrying out of rehabilitation objectives, affected by the 
phenomenon of the ``big wheel,'' the exploitation of access to the news 
media by certain prisoners; alternatives to face-to-face interviews 
existed, such as mail and visitation with family, attorneys, clergy, and 
friends. The existence of alternatives and the presence of 
justifications for the restraint served to weigh the balance against the 
asserted First Amendment right, the Court held.\222\

        \221\Pell v. Procunier, 417 U.S. 817 (1974). Justices Douglas, 
Brennan, and Marshall dissented. Id. at 836.
        \222\Id. at 829-35.
---------------------------------------------------------------------------

        While agreeing with a previous affirmation that ``newsgathering 
is not without some First Amendment protection,''\223\ the Court denied 
that the First Amendment accorded newsmen any affirmative obligation on 
the part of government. ``The First and Fourteenth Amendments bar 
government from interfering in any way with a free press. The 
Constitution does not, however, require government to accord the press 
special access to information not shared by members of the public 
generally.''\224\ Government has an obligation not to impair the freedom 
of journalists to seek out newsworthy information, and not to restrain 
the publication of news. But it cannot be argued, the Court continued, 
``that the Constitution imposes upon government the affirmative

[[Page 1111]]
duty to make available to journalists sources of information not 
available to members of the public generally.''\225\

        \223\Branzburg v. Hayes, 408 U.S. 665, 707 (1972), quoted in 
Pell v. Procunier, 417 U.S. 817, 833 (1974).
        \224\Id. at 834.
        \225\Id. The holding was applied to federal prisons in Saxbe v. 
Washington Post, 417 U.S. 843 (1974). Dissenting, Justices Powell, 
Brennan, and Marshall argued that an important societal function of the 
First Amendment is to preserve free public discussion of governmental 
affairs, that the press' role was to make this discussion informed 
through providing the requisite information, and that the ban on face-
to-face interviews unconstitutionally fettered this role of the press. 
Id. at 850.
---------------------------------------------------------------------------

        Pell and Saxbe did not delineate whether the ``equal access'' 
rule applied only in cases in which there was public access, so that a 
different rule for the press might follow when general access was 
denied, nor did they purport to begin defining what the rules of equal 
access are. No greater specificity emerged from Houchins v. KQED,\226\ 
in which the broadcaster had sued for access to a prison from which 
public and press alike were barred and as to which there was 
considerable controversy over conditions of incarceration. Following 
initiation of the suit, the administrator of the prison authorized 
limited public tours. The tours were open to the press, but cameras and 
recording devices were not permitted, there was no opportunity to talk 
to inmates, and the tours did not include the maximum security area 
about which much of the controversy centered. The Supreme Court 
overturned the injunction obtained in the lower courts, the plurality 
reiterating that ``[n]either the First Amendment nor the Fourteenth 
Amendment mandates a right of access to government information or 
sources of information within the government's control. . . . [U]ntil 
the political branches decree otherwise, as they are free to do, the 
media have no special right of access to the Alameda County Jail 
different from or greater than that accorded the public 
generally.''\227\ Justice Stewart, whose vote was necessary to the 
disposition of the case, agreed with the equal access holding but would 
have approved an injunction more narrowly drawn to protect the press' 
right to use cameras and recorders so as to enlarge public access to the 
information.\228\ Thus, any question of special press access appears 
settled by the decision; yet there still remain the questions raised 
above. May everyone be barred from access and, once access is accorded, 
does the Constitution necessitate any limitation on the discretion of 
prison administrators?\229\

        \226\438 U.S. 1 (1978). The decision's imprecision of meaning is 
partly attributable to the fact that there was no opinion of the Court. 
A plurality opinion represented the views of only three Justices; two 
Justices did not participate, three Justices dissented, and one Justice 
concurred with views that departed somewhat from the plurality.
        \227\Id. at 15-16.
        \228\Id. at 16.
        \229\The dissenters, Justices Stevens, Brennan, and Powell, 
believed that the Constitution protects the public's right to be 
informed about conditions within the prison and that total denial of 
access, such as existed prior to institution of the suit, was 
unconstitutional. They would have sustained the more narrowly drawn 
injunctive relief to the press on the basis that no member of the public 
had yet sought access. Id. at 19. It is clear that Justice Stewart did 
not believe the Constitution affords any relief. Id. at 16. While the 
plurality opinion of the Chief Justice Burger and Justices White and 
Rehnquist may be read as not deciding whether any public right of access 
exists, overall it appears to proceed on the unspoken basis that there 
is none. The second question, when Justice Stewart's concurring opinion 
and the dissenting opinion are combined, appears to be answerable 
qualifiedly in the direction of constitutional constraints upon the 
nature of access limitation once access is granted.

---------------------------------------------------------------------------

[[Page 1112]]

        Government and Power of the Purse.--In exercise of the spending 
power, Congress may refuse to subsidize exercise of First Amendment 
rights, but it may not deny benefits solely on the basis of exercise of 
these rights. The distinction between these two closely related 
principles seemed, initially at least, to hinge on the severity and 
pervasiveness of the restriction placed on exercise of First Amendment 
rights. What has emerged is the principle that Congress may condition 
the receipt of federal funds on acceptance of speech limitations on 
persons working for the project receiving the federal funding--even if 
the project also receives non-federal funds--provided that the speech 
limitations do not extend to the use of nonfederal funds outside of the 
federally funded project. In Regan v. Taxation With Representation,\230\ 
the Court held that Congress could constitutionally limit tax-exempt 
status under Sec. 501(c)(3) of the Internal Revenue Code to charitable 
organizations that do not engage in lobbying. ``Congress has merely 
refused to pay for the lobbying out of public moneys,'' the Court 
concluded.\231\ The effect of the ruling on the organization's lobbying 
activities was minimal, however, since it could continue to receive tax-
deductible contributions by creating a separate affiliate to conduct the 
lobbying. In FCC v. League of Women Voters,\232\ on the other hand, the 
Court held that the First Amendment rights of public broadcasting 
stations were abridged by a prohibition on all editorializing by any 
recipient of public funds. There was no alternative means, as there had 
been in Taxation With Representation, by which the stations could 
continue to receive public funding and create an affiliate to engage in 
the prohibited speech. The Court rejected dissenting Justice Rehnquist's 
argument that the general principles of Taxation With Representation and 
Oklahoma v. Civil Service Comm'n\233\

[[Page 1113]]
should be controlling.\234\ Several years later, however, Chief Justice 
Rehnquist asserted for the Court that restrictions on abortion 
counseling and referral imposed on recipients of family planning funding 
under the Public Health Service Act did not constitute discrimination on 
the basis of viewpoint, but instead represented government's decision 
``to fund one activity to the exclusion of the other.''\235\ It remains 
to be seen what application this decision will have outside the 
contentious area of abortion regulation.\236\

        \230\461 U.S. 540 (1983).
        \231\Id. at 545. See also Cammarano v. United States, 358 U.S. 
498, 512-13 (1959) (exclusion of lobbying expenses from income tax 
deduction for ordinary and necessary business expenses is not a 
regulation aimed at the suppression of dangerous ideas, and does not 
violate the First Amendment).
        \232\468 U.S. 364 (1984).
        \233\330 U.S. 127 (1947). See discussion supra p.156.
        \234\468 U.S. at 399-401, & 401 n.27.
        \235\Rust v. Sullivan, 111 S. Ct. 1759, 1772 (1991). Dissenting 
Justice Blackmun contended that Taxation With Representation was easily 
distinguishable because its restriction was on all lobbying activity 
regardless of content or viewpoint. Id. at 1780-81.
        \236\The Court attempted to minimize the potential sweep of its 
ruling in Rust. ``This is not to suggest that funding by the Government, 
even when coupled with the freedom of the fund recipient to speak 
outside the scope of the Government-funded project, is invariably 
sufficient to justify government control over the content of 
expression.'' 111 S. Ct. at 1776. The Court noted several possible 
exceptions to the general principle: government ownership of a public 
forum does not justify restrictions on speech; the university setting 
requires heightened protections through application of vagueness and 
overbreadth principles; and the doctor-patient relationship may also be 
subject to special First Amendment protection. (The Court denied, 
however, that the doctor-patient relationship was significantly impaired 
by the regulatory restrictions at issue.) Lower courts were quick to 
pick up on these suggestions. See, e.g., Stanford Univ. v. Sullivan, 773 
F. Supp. 472, 476-78 (D.D.C. 1991) (confidentiality clause in federal 
grant research contract is invalid because, inter alia, of application 
of vagueness principles in a university setting); Gay Men's Health 
Crisis v. Sullivan, 792 F. Supp. 278 (S.D.N.Y. 1992) (``offensiveness'' 
guidelines restricting Center for Disease Control grants for preparation 
of AIDS-related educational materials are unconstitutionally vague); 
Finley v. National Endowment for the Arts, 795 F. Supp. 1457 (C.D.Cal. 
1992) (``decency clause'' restricting grants by the National Endowment 
for the Arts is void for vagueness under Fifth Amendment and overbroad 
under First Amendment; artistic expression is entitled to the same level 
of protection as academic freedom).
---------------------------------------------------------------------------

                             FIRST AMENDMENT

                         RELIGION AND EXPRESSION

                 FREEDOM OF EXPRESSION--SPEECH AND PRESS


      Governmental Regulation of Communications Industries

        As in the previous section, the governmental regulations here 
considered may have only the most indirect relation to freedom of 
expression, or may clearly implicate that freedom even though the 
purpose of the particular regulation is not to reach the content of the 
message. First, however, the judicially-formulated doctrine 
distinguishing commercial expression from other forms is briefly 
considered.

        Commercial Speech.--In recent years, the Court's treatment of 
``commercial speech'' has undergone a transformation, from total 
nonprotection under the First Amendment to qualified protection. The 
conclusion that expression proposing a commercial transaction is a 
different order of speech was arrived at almost casually in Val

[[Page 1114]]
entine v. Chrestensen,\1\ in which the Court upheld a city ordinance 
prohibiting distribution on the street of ``commercial and business 
advertising matter,'' as applied to an exhibitor of a submarine who 
distributed leaflets describing his submarine on one side and on the 
other side protesting the city's refusal of certain docking facilities. 
The doctrine was in any event limited to promotion of commercial 
activities; the fact that expression was disseminated for profit or 
through commercial channels did not expose it to any greater regulation 
than if it were offered for free.\2\ The doctrine lasted in this form 
for more than twenty years.

        \1\316 U.S. 52 (1942). See also Breard v. City of Alexandria, 
341 U.S. 622 (1951). The doctrine was one of the bases upon which the 
banning of all commercials for cigarettes from radio and television was 
upheld. Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (D.D.C. 
1971) (three-judge court), aff'd per curiam, 405 U.S. 1000 (1972).
        \2\Books that are sold for profit, Smith v. California, 361 U.S. 
147, 150 (1959); Ginzburg v. United States, 383 U.S. 463, 474-75 (1966), 
advertisements dealing with political and social matters which 
newspapers carry for a fee, New York Times Co. v. Sullivan, 376 U.S. 
254, 265-66 (1964), motion pictures which are exhibited for an admission 
fee, United States v. Paramount Pictures, 334 U.S. 131, 166 (1948); 
Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 501-02 (1952), were all 
during this period held entitled to full First Amendment protection 
regardless of the commercial element involved.
---------------------------------------------------------------------------

        ``Commercial speech,'' the Court has held, is protected ``from 
unwarranted governmental regulation,'' although its nature makes such 
communication subject to greater limitations than can be imposed on 
expression not solely related to the economic interests of the speaker 
and its audience.\3\ Overturning of this exception in free expression 
doctrine was accomplished within a brief span of time in which the 
Justices haltingly but then decisively moved to a new position. 
Reasserting the doctrine at first in a narrow five-to-four decision, the 
Court sustained the application of a city's ban on employment 
discrimination to bar sex-designated employment advertising in a 
newspaper.\4\ Granting that speech does not lose its constitutional 
protection simply because it appears in a commercial context, Justice 
Powell, for the Court, found the placing of want-ads in newspapers to be 
``classic examples of commercial speech,'' devoid of expressions of 
opinions with respect to issues of social policy; the ad ``did no more 
than propose a commercial transaction.'' But the Justice also noted that 
employment discrimination, which was facilitated by the advertisements, 
was itself illegal.\5\

        \3\Central Hudson Gas & Electric Corp. v. Public Service Comm'n, 
447 U.S. 557, 561 (1980).
        \4\Pittsburgh Press Co. v. Comm'n on Human Relations, 413 U.S. 
376 (1973).
        \5\Id. at 385, 389. The Court continues to hold that government 
may ban commercial speech related to illegal activity. Central Hudson 
Gas & Electric Corp. v. Public Service Comm'n, 447 U.S. 557, 563-64 
(1980).

---------------------------------------------------------------------------

[[Page 1115]]

        Next, the Court overturned a conviction under a state statute 
making it illegal, by sale or circulation of any publication, to 
encourage or prompt the obtaining of an abortion, as applied to an 
editor of a weekly newspaper who published an advertisement announcing 
the availability of legal and safe abortions in another State and 
detailing the assistance that would be provided state residents in going 
to and obtaining abortions in the other State.\6\ The Court discerned 
that the advertisements conveyed information of other than a purely 
commercial nature, that they related to services that were legal in the 
other jurisdiction, and that the State could not prevent its residents 
from obtaining abortions in the other State or punish them for doing so.

        \6\Bigelow v. Virginia, 421 U.S. 809 (1975).
---------------------------------------------------------------------------

        Then, all these distinctions were swept away as the Court voided 
a statute declaring it unprofessional conduct for a licensed pharmacist 
to advertise the prices of prescription drugs.\7\ Accepting a suit 
brought by consumers to protect their right to receive information, the 
Court held that speech that does no more than propose a commercial 
transaction is nonetheless of such social value as to be entitled to 
protection. Consumers' interests in receiving factual information about 
prices may even be of greater value than political debate, but in any 
event price competition and access to information about it is in the 
public interest. State interests asserted in support of the ban, 
protection of professionalism and the quality of prescription goods, 
were found either badly served or not served by the statute.\8\

        \7\Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer 
Council, 425 U.S. 748 (1976). Justice Rehnquist dissented. Id. at 781.
        \8\Id. at 763-64 (consumers' interests), 764-65 (social 
interest), 766-70 (justifications for the ban).
---------------------------------------------------------------------------

        Turning from the interests of consumers to receive information 
to the asserted right of advertisers to communicate, the Court voided 
several restrictions. The Court voided a municipal ordinance which 
barred the display of ``For sale'' and ``Sold'' signs on residential 
lawns, purportedly so as to limit ``white flight'' resulting from a 
``fear psychology'' that developed among white residents following sale 
of homes to nonwhites. The right of owners to communicate their 
intention to sell a commodity and the right of potential buyers to 
receive the message was protected, the Court determined; the community 
interest could have been achieved by less restrictive means and in any 
event could not be achieved by restricting the free flow of truthful 
information.\9\ Similarly, deciding a question it had reserved in the 
Virginia Pharmacy case, the Court held that a State could not forbid 
lawyers from advertising the prices they

[[Page 1116]]
charged for the performance of routine legal services.\10\ None of the 
proffered state justifications for the ban was deemed sufficient to 
overcome the private and societal interest in the free exchange of this 
form of speech.\11\ Nor may a state categorically prohibit attorney 
advertising through mailings that target persons known to face 
particular legal problems,\12\ or prohibit an attorney from holding 
himself out as a certified civil trial specialist.\13\ However, a State 
has been held to have a much greater countervailing interest in 
regulating person-to-person solicitation of clients by attorneys; 
therefore, especially since in-person solicitation is ``a business 
transaction in which speech is an essential but subordinate component,'' 
the state interest need only be important rather than compelling.\14\

        \9\Linmark Ass'n v. Township of Willingboro, 431 U.S. 85 (1977).
        \10\Bates v. State Bar of Arizona, 433 U.S. 350 (1977). Chief 
Justice Burger and Justices Powell, Stewart, and Rehnquist dissented. 
Id. at 386, 389, 404.
        \11\Id. at 368-79. See also In re R.M.J., 455 U.S. 191 (1982) 
(invalidating sanctions imposed on attorney for deviating in some 
respects from rigid prescriptions of advertising style and for engaging 
in some proscribed advertising practices, because the State could show 
neither that his advertising was misleading nor that any substantial 
governmental interest was served by the restraints).
        \12\Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988).
        \13\Peel v. Illinois Attorney Registration and Disciplinary 
Comm'n, 496 U.S. 91 (1990).
        \14\Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978). But 
compare In re Primus, 426 U.S. 412 (1978). The distinction between in-
person and other attorney advertising was continued in Zauderer v. 
Office of Disciplinary Counsel, 471 U.S. 626 (1985) (``print advertising 
. . . in most cases . . . will lack the coercive force of the personal 
presence of the trained advocate'').
---------------------------------------------------------------------------

        Moreover, a statute prohibiting the practice of optometry under 
a trade name was sustained because there was ``a significant 
possibility'' that the public might be misled through deceptive 
utilization of the same or similar trade names.\15\ But a state 
regulatory commission prohibition of utility advertisements ``intended 
to stimulate the purchase of utility services'' was held unjustified by 
the asserted interests in energy consumption and avoidance of 
subsidization of additional energy costs by all consumers.\16\

        \15\Friedman v. Rogers, 440 U.S. 1 (1979).
        \16\Central Hudson Gas & Electric Corp. v. Public Service 
Comm'n, 447 U.S. 557 (1980). See also Consolidated Edison Co. v. Public 
Service Comm'n, 447 U.S. 530 (1980) (voiding a ban on utility's 
inclusion in monthly bills of inserts discussing controversial issues of 
public policy). However, the linking of a product to matters of public 
debate does not thereby entitle an ad to the increased protection 
afforded noncommercial speech. Bolger v. Youngs Drug Products Corp., 463 
U.S. 60 (1983).
---------------------------------------------------------------------------

        While commercial speech is entitled to First Amendment 
protection, the Court has clearly held that it is not wholly 
undifferentiable from other forms of expression; it has remarked on the 
commonsense differences between speech that does no more

[[Page 1117]]
than propose a commercial transaction and other varieties.\17\ 
Initially, the Court developed a four-pronged test to measure the 
validity of restraints upon commercial expression. Recent indications 
are that the Court has relaxed aspects of the test, making it more 
deferential to governmental regulation.

        \17\Commercial speech is viewed by the Court as usually hardier 
than other speech; because advertising is the sine qua non of commercial 
profits, it is less likely to be chilled by regulation. Thus, the 
difference inheres in both the nature of the speech and the nature of 
the governmental interest. Virginia State Bd. of Pharmacy v. Virginia 
Citizens Consumer Council, 425 U.S. 748, 771-72 n.24 (1976); Ohralik v. 
Ohio State Bar Ass'n, 436 U.S. 447, 455-56 (1978). It is, of course, 
important to develop distinctions between commercial speech and other 
speech for purposes of determining when broader regulation is 
permissible. The Court's definitional statements have been general, 
referring to commercial speech as that ``proposing a commercial 
transaction,'' Ohralik v. Ohio State Bar Ass'n, supra, or as 
``expression related solely to the economic interests of the speaker and 
its audience.'' Central Hudson Gas & Electric Corp. v. Public Service 
Comm'n, 447 U.S. 557, 561 (1980). It has simply viewed as noncommercial 
the advertising of views on public policy that would inhere to the 
economic benefit of the speaker. Consolidated Edison Co. v. Public 
Service Comm'n, 447 U.S. 530 (1980). So too, the Court has refused to 
treat as commercial speech charitable solicitation undertaken by 
professional fundraisers, characterizing the commercial component as 
``inextricably intertwined with otherwise fully protected speech.'' 
Riley v. National Fed'n of the Blind, 487 U.S. 781, 796 (1988). By 
contrast, a mixing of home economics information with a sales pitch at a 
``Tupperware'' party did not remove the transaction from commercial 
speech. Board of Trustees v. Fox, 492 U.S. 469 (1989).
---------------------------------------------------------------------------

        Under the first prong of the test as originally formulated, 
certain commercial speech is not entitled to protection; the 
informational function of advertising is the First Amendment concern and 
if it does not accurately inform the public about lawful activity, it 
can be suppressed.\18\

        \18\Central Hudson Gas & Electric Co. v. Public Service Comm'n, 
447 U.S. 557, 563, 564 (1980). Within this category fall the cases 
involving the possibility of deception through such devices as use of 
trade names, Friedman v. Rogers, 440 U.S. 1 (1979), and solicitation of 
business by lawyers, Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 
(1978), as well as the proposal of an unlawful transaction, Pittsburgh 
Press Co. v. Comm'n on Human Relations, 413 U.S. 376 (1973).
---------------------------------------------------------------------------

        Second, if the speech is protected, the interest of the 
government in regulating and limiting it must be assessed. The State 
must assert a substantial interest to be achieved by restrictions on 
commercial speech.\19\

        \19\Central Hudson Gas & Electric Co. v. Public Service Comm'n, 
447 U.S. 557, 564, 568-69 (1980). The Court deemed the State's interests 
to be clear and substantial. The pattern here is similar to much due 
process and equal protection litigation as well as expression and 
religion cases in which the Court accepts the proffered interests as 
legitimate and worthy. See also San Francisco Arts & Athletics, Inc. v. 
United States Olympic Comm., 483 U.S. 522 (1987) (governmental interest 
in protecting USOC's exclusive use of word ``Olympic'' is substantial). 
However, in Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), 
the Court deemed insubstantial a governmental interest in protecting 
postal patrons from offensive but not obscene materials. For deferential 
treatment of the governmental interest, see Posadas de Puerto Rico 
Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986) (Puerto 
Rico's ``substantial'' interest in discouraging casino gambling by 
residents justifies ban on ads aimed at residents even though residents 
may legally engage in casino gambling, and even though ads aimed at 
tourists are permitted).

---------------------------------------------------------------------------

[[Page 1118]]

        Third, the restriction cannot be sustained if it provides only 
ineffective or remote support for the asserted purpose.\20\

        \20\Id. at 569. The ban here was found to directly advance one 
of the proffered interests. Contrast this holding with Bates v. State 
Bar of Arizona, 433 U.S. 350 (1977); Virginia State Bd. of Pharmacy v. 
Virginia Citizens Consumer Council, 425 U.S. 748 (1976); and Bolger v. 
Youngs Drug Products Corp., 463 U.S. 60 (1983), where the restraints 
were deemed indirect or ineffectual.
---------------------------------------------------------------------------

        Fourth, if the governmental interest could be served as well by 
a more limited restriction on commercial speech, the excessive 
restriction cannot survive.\21\ The Court has rejected the idea that a 
``least restrictive means'' test is required. Instead, what is now 
required is a ``reasonable fit'' between means and ends, with the means 
``narrowly tailored to achieve the desired objective.''\22\

        \21\Central Hudson Gas & Electric Co. v. Public Service Comm'n, 
447 U.S. 557, 565, 569-71 (1980). This test is, of course, the ``least 
restrictive means'' standard. Shelton v. Tucker, 364 U.S. 479, 488 
(1960). In Central Hudson, the Court found the ban more extensive than 
was necessary to effectuate the governmental purpose. And see Bolger v. 
Youngs Drug Products Corp., 463 U.S. 60 (1983), where the Court held 
that the governmental interest in not interfering with parental efforts 
at controlling children's access to birth control information could not 
justify a ban on commercial mailings about birth control products; 
``[t]he level of discourse reaching a mailbox simply cannot be limited 
to that which would be suitable for a sandbox.'' Id. at 74. Note, 
however, that in San Francisco Arts & Athletics, Inc. v. United States 
Olympic Comm., 483 U.S. 522 (1987), the Court applied the test in a 
manner deferential to Congress: ``the restrictions [at issue] are not 
broader than Congress reasonably could have determined to be necessary 
to further these interests.''
        \22\Board of Trustees v. Fox, 492 U.S. 469, 480 (1989)
---------------------------------------------------------------------------

        Thus, the ``different degree of protection'' accorded commercial 
speech means that government need not tolerate inaccuracies to the same 
extent it must in other areas and it may require that a commercial 
message appear in such a form, or include such additional information, 
warnings, and disclaimers, as are necessary to prevent it being 
deceptive.\23\ Somewhat broader times, places, and manner regulations 
are to be tolerated.\24\ The rule against prior re

[[Page 1119]]
straints may be inapplicable\25\ and disseminators of commercial speech 
are not protected by the overbreadth doctrine.\26\ Whether government 
may ban all commercial advertising of a service or product that is legal 
to sell is a matter of current debate. In Posadas de Puerto Rico 
Associates v. Tourism Co. of Puerto Rico,\27\ the Court upheld a Puerto 
Rico ban on advertising of casino gambling aimed at residents, who 
nonetheless were not prohibited from engaging in casino gambling. The 
advertising ban was far from complete, however, since ads aimed at the 
lucrative tourist trade were still permitted. In any event, courts must 
now analyze with some care regulations of and limitations on commercial 
expression, the demise of the exception permitting easy resolution no 
longer.\28\

        \23\Bates v. State Bar of Arizona, 433 U.S. 350, 383-84 (1977); 
Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978). Requirements 
that advertisers disclose more information than they otherwise choose to 
are upheld ``as long as [they] are reasonably related to the State's 
interest in preventing deception of consumers,'' the Court explaining 
that ``[t]he right of a commercial speaker not to divulge accurate 
information regarding his services is not . . . a fundamental right'' 
requiring strict scrutiny of the disclosure requirement. Zauderer v. 
Office of Disciplinary Counsel, 471 U.S. 626, 651 & n.14 (1985) 
(upholding requirement that attorney's contingent fees ad mention that 
unsuccessful plaintiffs might still be liable for court costs).
        \24\Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer 
Council, 425 U.S. 748, 771 (1976); Bates v. State Bar of Arizona, 433 
U.S. 350, 384 (1977). But in Linmark Associates v. Township of 
Willingboro, 431 U.S. 85, 93-94 (1977), the Court refused to accept a 
times, places, and manner defense of an ordinance prohibiting ``For 
Sale'' signs on residential lawns. First, ample alternative channels of 
communication were not available, and second, the ban was seen rather as 
a content limitation.
        \25\Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer 
Council, 425 U.S. 748, 771-72 n.24 (1976); Central Hudson & Electric Co. 
v. Public Service Comm'n, 447 U.S. 557, 571 n.13 (1980).
        \26\Bates v. State Bar of Arizona, 433 U.S. 350, 379-81 (1977); 
Central Hudson Gas & Electric Co. v. Public Service Comm'n, 477 U.S. 
557, 565 n.8 (1980).
        \27\478 U.S. 328 (1986). The Court's opinion by Justice 
Rehnquist distinguished earlier cases (Carey and Bigelow) invalidating 
bans on advertisements of contraceptives and abortion services because 
there ``the underlying conduct that was the subject of the advertising 
restrictions was constitutionally protected and could not have been 
prohibited.'' Casino gambling, on the other hand, is not such protected 
conduct, and the Court announced a potentially sweeping principle that 
``the greater power to completely ban casino gambling necessarily 
includes the lesser power to ban advertising of casino gambling.'' 478 
U.S. at 345-46. For discussion of the case, see P. Kurland, Posadas de 
Puerto Rico v. Tourism Company: ``'Twas Strange, 'Twas Passing Strange; 
'Twas Pitiful, 'Twas Wondrous Pitiful,'' 1986 Sup. Ct. Rev. 1. For 
qualification based on the commercial nature of speech in Posadas, see 
Meyer v. Grant, 486 U.S. 414, 424-25 (1988) (power to ban ballot 
initiatives entirely does not include power to limit discussion of 
political issues raised by initiative petitions).
        \28\Easy resolution of controversies is also made impossible by 
Supreme Court divisions. See, e.g., Metromedia v. City of San Diego, 453 
U.S. 490 (1981), in which the Court held unconstitutional an ordinance 
prohibiting billboards and other outdoor sign displays, both commercial 
and noncommercial, subject to a wide array of exceptions which in some 
respects treated noncommercial signs more severely than commercial ones. 
It was on the basis of the divergence of treatment that the ordinance 
was held to fail. Seven of the Justices appeared to endorse the view 
that bans on commercial billboards are permissible ways to implement the 
substantial governmental interests in traffic safety and aesthetics. Id. 
at 503-12 (plurality opinion of Justices White, Stewart, Marshall, and 
Powell), 540 (Justice Stevens dissenting), 555 (Chief Justice Burger 
dissenting), 569 (Justice Rehnquist dissenting).
---------------------------------------------------------------------------

        Taxation.--Disclaiming any intimation ``that the owners of 
newspapers are immune from any of the ordinary forms of taxation for 
support of the government,'' the Court voided a state two-percent tax on 
the gross receipts of advertising in newspapers with a circulation 
exceeding 20,000 copies a week.\29\ In the Court's view, the tax was 
analogous to the Eighteenth Century English practice of imposing 
advertising and stamp taxes on newspapers for the express purpose of 
pricing the opposition penny press beyond the

[[Page 1120]]
means of the mass of the population.\30\ The tax at issue focused 
exclusively upon newspapers, it imposed a serious burden on the 
distribution of news to the public, and it appeared to be a 
discriminatorily selective tax aimed almost solely at the opposition to 
the state administration.\31\ Combined with the standard that government 
may not impose a tax directly upon the exercise of a constitutional 
right itself,\32\ these tests seem to permit general business taxes upon 
receipts of businesses engaged in communicating protected expression 
without raising any First Amendment issues.\33\

        \29\Grosjean v. American Press Co., 297 U.S. 233, 250 (1936).
        \30\Id. at 245-48.
        \31\Id. at 250-51. Grosjean was distinguished on this latter 
basis in Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 
460 U.S. 575 (1983).
        \32\Murdock v. Pennsylvania, 319 U.S. 105 (1943); Follett v. 
McCormick, 321 U.S. 573 (1944) (license taxes upon Jehovah's Witnesses 
selling religious literature invalid).
        \33\Cf. City of Corona v. Corona Daily Independent, 115 Cal. 
App. 2d 382, 252 P.2d 56 (1953), cert. den., 346 U.S. 833 (1953) 
(Justices Black and Douglas dissenting). And see Cammarano v. United 
States, 358 U.S. 498 (1959) (no First Amendment violation to deny 
business expense tax deduction for expenses incurred in lobbying about 
measure affecting one's business); Leathers v. Medlock, 499 U.S. 439 
(1991) (no First Amendment violation in applying general gross receipts 
tax to cable television services while exempting other communications 
media).
---------------------------------------------------------------------------

        Ordinarily, a tax singling out the press for differential 
treatment is highly suspect, and creates a heavy burden of justification 
on the state. This is so, the Court explained in 1983, because such ``a 
powerful weapon'' to single out a small group carries with it a lessened 
political constraint than do those measures affecting a broader based 
constituency, and because ``differential treatment, unless justified by 
some special characteristic of the press, suggests that the goal of the 
regulation is not unrelated to suppression of expression.''\34\ The 
state's interest in raising revenue is not sufficient justification for 
differential treatment of the press. Moreover, the Court refused to 
adopt a rule permitting analysis of the ``effective burden'' imposed by 
a differential tax; even if the current effective tax burden could be 
measured and upheld, the threat of increasing the burden on the press 
might have ``censorial effects,'' and ``courts as institutions are 
poorly equipped to evaluate with precision the relative burdens of 
various methods of taxation.''\35\

        \34\Minneapolis Star & Tribune Co. v. Minnesota Comm'r of 
Revenue, 460 U.S. 575, 585 (1983) (invalidating a Minnesota use tax on 
the cost of paper and ink products used in a publication, and exempting 
the first $100,000 of such costs each calendar year; Star & Tribune paid 
roughly two-thirds of all revenues the state raised by the tax). The 
Court seemed less concerned, however, when the affected group within the 
press was not so small, upholding application of a gross receipts tax to 
cable television services even though other segments of the 
communications media were exempted. Leathers v. Medlock, 499 U.S. 439 
(1991).
        \35\460 U.S. at 588, 589.
        
---------------------------------------------------------------------------

[[Page 1121]]

        Also difficult to justify is taxation that targets specific 
subgroups within a segment of the press for differential treatment. An 
Arkansas sales tax exemption for newspapers and for ``religious, 
professional, trade, and sports journals'' published within the state 
was struck down as an invalid content-based regulation of the press.\36\ 
Entirely as a result of content, some magazines were treated less 
favorably than others. The general interest in raising revenue was again 
rejected as a ``compelling'' justification for such treatment, and the 
measure was viewed as not narrowly tailored to achieve other asserted 
state interests in encouraging ``fledgling'' publishers and in fostering 
communications.

        \36\Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221 
(1987).
---------------------------------------------------------------------------

        The Court seemed to change course somewhat in 1991, upholding a 
state tax that discriminated among different components of the 
communications media, and proclaiming that ``differential taxation of 
speakers, even members of the press, does not implicate the First 
Amendment unless the tax is directed at, or presents the danger of 
suppressing, particular ideas.''\37\

        \37\Leathers v. Medlock, 499 U.S. 439, 453 (1991) (tax applied 
to all cable television systems within the state, but not to other 
segments of the communications media).
---------------------------------------------------------------------------

        The general principle that government may not impose a financial 
burden based on the content of speech underlay the Court's invalidation 
of New York's ``Son of Sam'' law, which provided that a criminal's 
income from publications describing his crime was to be placed in escrow 
and made available to victims of the crime.\38\ While the Court 
recognized a compelling state interest in ensuring that criminals do not 
profit from their crimes, and in compensating crime victims, the law was 
not narrowly tailored to those ends. It applied only to income derived 
from speech, not to income from other sources, and it was significantly 
overinclusive because it reached a wide range of literature (e.g., the 
Confessions of Saint Augustine and Thoreau's Civil Disobedience) ``that 
did not enable a criminal to profit from his crime while a victim 
remains uncompensated.''\39\

        \38\Simon & Schuster v. New York Crime Victims Bd., 112 S. Ct. 
501 (1991).
        \39\112 S. Ct. at 511.
---------------------------------------------------------------------------

        Labor Relations.--Just as newspapers and other communications 
businesses are subject to nondiscriminatory taxation, they are entitled 
to no immunity from the application of general laws regulating their 
relations with their employees and prescribing wage and hour standards. 
In Associated Press v. NLRB,\40\ the application of the National Labor 
Relations Act to a newsgathering agency was found to raise no 
constitutional problem. ``The publisher of a news

[[Page 1122]]
paper has no special immunity from the application of general laws. He 
has no special privilege to invade the rights and liberties of others. 
. . . The regulation here in question has no relation whatever to the 
impartial distribution of news.'' Similarly, the Court has found no 
problem with requiring newspapers to pay minimum wages and observe 
maximum hours.\41\

        \40\301 U.S. 103, 132 (1937).
        \41\Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186 (1946).
---------------------------------------------------------------------------

        Antitrust Laws.--Resort to the antitrust laws to break up 
restraints on competition in the newsgathering and publishing field was 
found not only to present no First Amendment problem but to comport with 
government's obligation under that Amendment. Said Justice Black: ``It 
would be strange indeed, however, if the grave concern for freedom of 
the press which prompted adoption of the First Amendment should be read 
as a command that the government was without power to protect that 
freedom. The First Amendment, far from providing an argument against 
application of the Sherman Act, here provides powerful reasons to the 
contrary. That Amendment rests on the assumption that the widest 
possible dissemination of information from diverse and antagonistic 
sources is essential to the welfare of the public, that a free press is 
a condition of a free society. Surely a command that the government 
itself shall not impede the free flow of ideas does not afford 
nongovernmental combinations a refuge if they impose restraints upon 
that constitutionally guaranteed freedom. Freedom to publish means 
freedom for all and not for some. Freedom to publish is guaranteed by 
the Constitution, but freedom to combine to keep others from publishing 
is not.''\42\

        \42\Associated Press v. United States, 326 U.S. 1, 20 (1945).
---------------------------------------------------------------------------

        Thus, both newspapers and broadcasters, as well as other such 
industries, may not engage in monopolistic and other anticompetitive 
activities free of possibility of antitrust law attack,\43\ even though 
it may be contended that freedom of the press may thereby be 
preserved.\44\

        \43\Lorain Journal Co. v. United States, 342 U.S. 143 (1951) 
(refusal of newspaper publisher who enjoyed a substantial monopoly to 
sell advertising to persons also advertising over a competing radio 
station violates antitrust laws); United States v. Radio Corporation of 
America, 358 U.S. 334 (1959) (FCC approval no bar to antitrust suit); 
United States v. Greater Buffalo Press. Inc., 402 U.S. 549 (1971) 
(monopolization of color comic supplements). See also FCC v. National 
Citizens Comm. for Broadcasting, 436 U.S. 775 (1978) (upholding FCC 
rules prospectively barring, and in some instances requiring divesting 
to prevent, the common ownership of a radio or television broadcast 
station and a daily newspaper located in the same community).
        \44\Citizen Publishing Co. v. United States, 394 U.S. 131 (1969) 
(pooling arrangement between two newspapers violates antitrust laws; 
First Amendment argument that one paper will fail if arrangement is 
outlawed rejected). In response to this decision, Congress enacted the 
Newspaper Preservation Act to sanction certain joint arrangements where 
one paper is in danger of failing. 84 Stat. 466 (1970), 15 U.S.C. 
Sec. Sec. 1801-1804.

---------------------------------------------------------------------------

[[Page 1123]]

        Radio and Television.--Because there are a limited number of 
broadcast frequencies for radio and non-cable television use, the 
Federal Government licenses access to these frequencies, permitting some 
applicants to utilize them and denying the greater number of applicants 
such permission. Even though this licensing system is in form a variety 
of prior restraint, the Court has held that it does not present a First 
Amendment issue because of the unique characteristic of scarcity.\45\ 
Thus, the Federal Communications Commission has broad authority to 
determine the right of access to broadcasting,\46\ although, of course, 
the regulation must be exercised in a manner that is neutral with regard 
to the content of the materials broadcast.\47\

        \45\NBC v. United States, 319 U.S. 190 (1943); see also Red Lion 
Broadcasting Co. v. FCC, 395 U.S. 367, 375-79, 387-89 (1969); FCC v. 
National Citizens Comm. for Broadcasting, 436 U.S. 775, 798-802 (1978).
        \46\NBC v. United States, 319 U.S. 190 (1943); Federal Radio 
Comm. v. Nelson Brothers Bond & Mortgage Co., 289 U.S. 266 (1933); FCC 
v. Pottsville, 309 U.S. 134 (1940); FCC v. ABC, 347 U.S. 284 (1954); 
Farmers Union v. WDAY, 360 U.S. 525 (1958).
        \47\``But Congress did not authorize the Commission to choose 
among applicants upon the basis of their political, economic or social 
views or upon any other capricious basis. If it did, or if the 
Commission by these regulations proposed a choice among applicants upon 
some such basis, the issue before us would be wholly different.'' NBC v. 
United States, 319 U.S. 190, 226 (1943).
---------------------------------------------------------------------------

        In certain respects, however, governmental regulation does 
implicate First Amendment values to a great degree; insistence that 
broadcasters afford persons attacked on the air an opportunity to reply 
and that they afford a right to reply from opposing points of view when 
they editorialize on the air was unanimously found to be 
constitutional.\48\ In Red Lion, Justice White explained that 
differences in the characteristics of various media justify differences 
in First Amendment standards applied to them.\49\ Thus, while there is a 
protected right of everyone to speak, write, or publish as he will, 
subject to very few limitations, there is no comparable right of 
everyone to broadcast. The frequencies are limited and some few must be 
given the privilege over others. The particular licensee, however, has 
no First Amendment right to hold that license and his exclusive 
privilege may be qualified. Qualification by censorship of content is 
impermissible, but the First Amendment does not prevent a governmental 
insistence that a licensee ``conduct

[[Page 1124]]
himself as a proxy or fiduciary with obligations to present those views 
and voices which are representative of his community and which would 
otherwise, by necessity, be barred from the airwaves.'' Further, said 
Justice White, ``[b]ecause of the scarcity of radio frequencies, the 
Government is permitted to put restraints on licensees in favor of 
others whose views should be expressed on this unique medium. But the 
people as a whole retain their interest in free speech by radio and 
their collective right to have the medium function consistently with the 
ends and purposes of the First Amendment. It is the right of the viewers 
and listeners, not the right of the broadcasters, which is 
paramount.''\50\ The broadcasters had argued that if they were required 
to provide equal time at their expense to persons attacked and to points 
of view different from those expressed on the air, expression would be 
curbed through self-censorship, for fear of controversy and economic 
loss. Justice White thought this possibility ``at best speculative,'' 
but if it should materialize ``the Commission is not powerless to insist 
that they give adequate and fair attention to public issues.''\51\

        \48\Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969). ``The 
Federal Communications Commission has for many years imposed on radio 
and television broadcasters the requirement that discussion of public 
issues be presented on broadcast stations, and that each side of those 
issues must be given fair coverage. This is known as the fairness 
doctrine, . . . .'' Id. at 369. The two issues passed on in Red Lion 
were integral parts of the doctrine.
        \49\Id. at 386.
        \50\Id. at 388-90.
        \51\Id. at 392-93.
---------------------------------------------------------------------------

        In Columbia Broadcasting System v. Democratic National 
Committee,\52\ the Court rejected claims of political groups that the 
broadcast networks were constitutionally required to sell them 
broadcasting time for the presentation of views on controversial issues. 
The ruling terminated a broad drive to obtain that result, but the 
fragmented nature of the Court's multiple opinions precluded a 
satisfactory evaluation of the constitutional implications of the case. 
However, in CBS v. FCC,\53\ the Court held that Congress had conferred 
on candidates seeking federal elective office an affirmative, promptly 
enforceable right of reasonable access to the use of broadcast stations, 
to be administered through FCC control over license revocations, and 
held such right of access to be within Congress' power to grant, the 
First Amendment notwithstanding. The constitutional analysis was brief 
and merely restated the spectrum scarcity rationale and the role of the 
broadcasters as fiduciaries for the public interest.

        \52\412 U.S. 94 (1973).
        \53\453 U.S. 367 (1981). The dissent argued that the FCC had 
assumed, and the Court had confirmed it in assuming, too much authority 
under the congressional enactment. In its view, Congress had not meant 
to do away with the traditional deference to the editorial judgments of 
the broadcasters. Id. at 397 (Justices White, Rehnquist, and Stevens).
---------------------------------------------------------------------------

        In FCC v. League of Women Voters,\54\ the Court took the same 
general approach to governmental regulation of public broadcast

[[Page 1125]]
ing, but struck down a total ban on editorializing by stations receiving 
public funding. In summarizing the principles guiding analysis in this 
area, the Court reaffirmed that Congress may regulate in ways that would 
be impermissible in other contexts, but indicated that broadcasters are 
entitled to greater protection than may have been suggested by Red Lion. 
``[A]lthough the broadcasting industry plainly operates under restraints 
not imposed upon other media, the thrust of these restrictions has 
generally been to secure the public's First Amendment interest in 
receiving a balanced presentation of views on diverse matters of public 
concern. . . . [T]hese restrictions have been upheld only when we were 
satisfied that the restriction is narrowly tailored to further a 
substantial governmental interest.''\55\ However, the earlier cases were 
distinguished. ``[I]n sharp contrast to the restrictions upheld in Red 
Lion or in [CBS v. FCC], which left room for editorial discretion and 
simply required broadcast editors to grant others access to the 
microphone, Sec. 399 directly prohibits the broadcaster from speaking 
out on public issues even in a balanced and fair manner.''\56\ The ban 
on all editorializing was deemed too severe and restrictive a means of 
accomplishing the governmental purposes--protecting public broadcasting 
stations from being coerced, through threat or fear of withdrawal of 
public funding, into becoming ``vehicles for governmental 
propagandizing,'' and also keeping the stations ``from becoming 
convenient targets for capture by private interest groups wishing to 
express their own partisan viewpoints.''\57\ Expression of editorial 
opinion was described as a ``form of speech . . . that lies at the heart 
of First Amendment protection,''\58\ and the ban was said to be 
``defined solely on the basis of . . . content,'' the assumption being 
that editorial speech is speech directed at ``controversial issues of 
public importance.''\59\ Moreover, the ban on editorializing was both 
overinclusive, applying to commentary on local issues of no likely 
interest to Congress, and underinclusive, not applying at all to 
expression of controversial opinion in the context of regular 
programming. Therefore, the Court concluded, the restriction was not 
narrowly enough tailored to fulfill the government's purposes.

        \54\468 U.S. 364 (1984), holding unconstitutional Sec. 399 of 
the Public Broadcasting Act of 1967, as amended. The decision was 5-4, 
with Justice Brennan's opinion for the Court being joined by Justices 
Marshall, Blackmun, Powell, and O'Connor, and with Justices White, 
Rehnquist (joined by Chief Justice Burger and by Justice White), and 
Stevens filing dissenting opinions.
        \55\468 U.S. at 380. The Court rejected the suggestion that only 
a ``compelling'' rather than ``substantial'' governmental interest can 
justify restrictions.
        \56\468 U.S. at 385.
        \57\468 U.S. at 384-85. Dissenting Justice Stevens thought that 
the ban on editorializing served an important purpose of ``maintaining 
government neutrality in the free marketplace of ideas.'' Id. at 409.
        \58\468 U.S. at 381.
        \59\468 U.S. at 383.
        
---------------------------------------------------------------------------

[[Page 1126]]

        Sustaining FCC discipline of a broadcaster who aired a record 
containing a series of repeated ``barnyard'' words, considered 
``indecent'' but not obscene, the Court posited a new theory to explain 
why the broadcast industry is less entitled to full constitutional 
protection than are other communications entities.\60\ ``First, the 
broadcast media have established a uniquely pervasive presence in the 
lives of all Americans. Patently offensive, indecent material presented 
over the airwaves confronts the citizens, not only in public, but also 
in the privacy of the home, where the individual's right to be left 
alone plainly outweighs the First Amendment rights of an intruder. . . . 
Second, broadcasting is uniquely accessible to children, even those too 
young to read. . . . The ease with which children may obtain access to 
broadcast material . . . amply justif[ies] special treatment of indecent 
broadcasting.''\61\ The purport of the Court's new theory is hard to 
divine; while its potential is broad, the Court emphasized the 
contextual ``narrowness'' of its holding, which ``requires consideration 
of a host of variables.''\62\ Time of day of broadcast, the likely 
audience, the differences between radio, television, and perhaps closed-
circuit transmissions were all relevant in the Court's view. It may be, 
then, that the case will be limited in the future to its particular 
facts; yet, the pronunciation of a new theory sets in motion a tendency 
the application of which may not be so easily cabined.

        \60\FCC v. Pacifica Foundation, 438 U.S. 726 (1978).
        \61\Id. at 748-51. This was the only portion of the 
constitutional discussion that obtained the support of a majority of the 
Court. Justice Stevens' opinion was joined by Chief Justice Burger and 
Justices Rehnquist, Powell, and Blackmun. Justices Powell and Blackmun, 
id. 755, concurred also in a separate opinion, which reiterated the 
points made in the text. Justices Brennan and Marshall dissented with 
respect to the constitutional arguments made by Justices Stevens and 
Powell. Id. at 762. Justices Stewart and White dissented on statutory 
grounds, not reaching the constitutional arguments. Id. at 777.
        \62\Id. at 750. See also id. at 742-43 (plurality opinion), and 
id. 755-56 (Justice Powell concurring) (``Court reviews only the 
Commission's holding that Carlin's monologue was indecent `as broadcast' 
at two o'clock in the afternoon, and not the broad sweep of the 
Commission's opinion.'').
---------------------------------------------------------------------------

        The Court has ruled that cable television ``implicates First 
Amendment interests,'' since a franchisee communicates ideas through 
selection of original programming and through exercise of editorial 
discretion in determining which stations to include in its offering, but 
has left for future decision how these interests are to be balanced 
against a community's interests in limiting franchises and preserving 
utility space.\63\

        \63\City of Los Angeles v. Preferred Communications, 476 U.S. 
488 (1986). See also Leathers v. Medlock, 499 U.S. 439 (1991) 
(application of state gross receipts tax to cable industry permissible 
even though other segments of the communications media were exempted).

[[Page 1127]]


        Governmentally Compelled Right of Reply to Newspapers.--However 
divided it may have been in dealing with access to the broadcast media, 
the Court was unanimous in holding void under the First Amendment a 
state law that granted a political candidate a right to equal space to 
answer criticism and attacks on his record by a newspaper.\64\ Granting 
that the number of newspapers had declined over the years, that 
ownership had become concentrated, and that new entries were 
prohibitively expensive, the Court agreed with proponents of the law 
that the problem of newspaper responsibility was a great one. But press 
responsibility, while desirable, ``is not mandated by the 
Constitution,'' while freedom is. The compulsion exerted by government 
on a newspaper to print that which it would not otherwise print, ``a 
compulsion to publish that which `reason tells them should not be 
published,''' runs afoul of the free press clause.\65\

        \64\Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974).
        \65\Id. at 256. The Court also adverted to the imposed costs of 
the compelled printing of replies but this seemed secondary to the 
quoted conclusion. The Court has also held that a state may not require 
a privately owned utility company to include in its billing envelopes 
views of a consumer group with which it disagrees. While a plurality 
opinion adhered to by four Justices relied heavily on Tornillo, there 
was not a Court majority consensus as to rationale. Pacific Gas & Elec. 
v. Public Utilities Comm'n, 475 U.S. 1 (1986).
---------------------------------------------------------------------------

                             FIRST AMENDMENT

                         RELIGION AND EXPRESSION

                 FREEDOM OF EXPRESSION--SPEECH AND PRESS


      Government Restraint of Content of Expression

        The three previous sections considered primarily but not 
exclusively incidental restraints on expression as a result of 
governmental regulatory measures aimed at goals other than control of 
the content of expression; this section considers the permissibility of 
governmental measures which are directly concerned with the content of 
expression.\66\ As a general matter, government may not regulate speech 
``because of its message, its ideas, its subject matter, or its 
content.''\67\ Invalid content regulation includes not only

[[Page 1128]]
restrictions on particular viewpoints, but also prohibitions on public 
discussion of an entire topic.\68\

        \66\The distinction was sharply drawn by Justice Harlan in 
Konigsberg v. State Bar of California, 366 U.S. 36, 49-51 (1961): 
``Throughout its history this Court has consistently recognized at least 
two ways in which constitutionally protected freedom of speech is 
narrower than an unlimited license to talk. On the one hand certain 
forms of speech, or speech in certain contexts, have been considered 
outside the scope of constitutional protection. . . . On the other hand, 
general regulatory statutes not intended to control the content of 
speech but incidentally limiting its unfettered exercise, have not been 
regarded as the type of law the First or Fourteenth Amendments forbade 
Congress or the states to pass, when they have been found justified by 
subordinating valid governmental interests, a prerequisite to 
constitutionality which has necessarily involved a weighing of the 
governmental interest involved.''
        \67\Police Dep't v. Mosley, 408 U.S. 92, 95 (1972). See also 
Erznoznik v. City of Jacksonville, 422 U.S. 205, 208-12 (1975); First 
National Bank of Boston v. Bellotti, 435 U.S. 765 (1978); Carey v. 
Brown, 447 U.S. 455 (1980); Metromedia v. City of San Diego, 453 U.S. 
490 (1981) (plurality opinion); Widmar v. Vincent, 454 U.S. 263 (1981); 
Regan v. Time, Inc., 468 U.S. 641 (1984).
        \68\Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 
230 (1987) (citing Consolidated Edison Co. v. Public Service Comm'n, 447 
U.S. 530, 537 (1980)).
---------------------------------------------------------------------------

        Originally the Court took a ``two-tier'' approach to content-
oriented regulation of expression. Under the ``definitional balancing'' 
of this approach, some forms of expression are protected by the First 
Amendment and certain categories of expression are not entitled to 
protection. This doctrine traces to Chaplinsky v. New Hampshire,\69\ in 
which the Court opined that ``certain well-defined and narrowly limited 
classes of speech . . . are no essential part of any exposition of 
ideas, and are of such slight social value as a step to truth'' that 
government may prevent those utterances and punish those uttering them 
without raising any constitutional problems. If speech fell within the 
Chaplinsky categories, it was unprotected, regardless of its effect; if 
it did not, it was covered by the First Amendment and it was protected 
unless the restraint was justified by some test relating to harm, such 
as clear and present danger or a balancing of presumptively protected 
expression against a governmental interest which must be compelling.

        \69\315 U.S. 568, 571-72 (1942).
---------------------------------------------------------------------------

        For several decades, the decided cases reflected a fairly 
consistent and sustained march by the Court to the elimination of, or a 
severe narrowing of, the ``two-tier'' doctrine. The result was 
protection of much expression that hitherto would have been held 
absolutely unprotected (e.g., seditious speech and seditious libel, 
fighting words, defamation, and obscenity). More recently, the march has 
been deflected by a shift in position with respect to obscenity and by 
the creation of a new category of non-obscene child pornography. But in 
the course of this movement, differences surfaced among the Justices on 
the permissibility of regulation based on content and the interrelated 
issue of a hierarchy of speech values, according to which some forms of 
expression, while protected, may be more readily subject to official 
regulation and perhaps suppression than other protected expression. 
These differences were compounded in cases in which First Amendment 
expression values came into conflict with other values, either 
constitutionally protected values such as the right to fair trials in 
criminal cases, or societally valued interests such as those in privacy, 
reputation, and the protection from disclosure of certain kinds of 
information.

        Attempts to work out these differences are elaborated in the 
following pages, but the effort to formulate a doctrine of permissible 
content regulation within categories of protected expression

[[Page 1129]]
necessitates a brief treatment. It remains standard doctrine that it is 
impermissible to posit regulation of protected expression upon its 
content.\70\ But in recent Terms, Justice Stevens has articulated a 
theory that would permit some governmental restraint based upon content. 
In Justice Stevens' view, there is a hierarchy of speech; where the 
category of speech at issue fits into that hierarchy determines the 
appropriate level of protection under the First Amendment. A category's 
place on the continuum is guided by Chaplinsky's formulation of whether 
it is ``an essential part of any exposition of ideas'' and what its 
``social value as a step to truth'' is.\71\ Thus, offensive but 
nonobscene words and portrayals dealing with sex and excretion may be 
regulated when the expression plays no role or a minimal role in the 
exposition of ideas.\72\ ``Whether political oratory or philosophical 
discussion moves us to applaud or to despise what is said, every 
schoolchild can understand why our duty to defend the right to speak 
remains the same. But few of us would march our sons and daughters off 
to war to preserve the citizen's right to see `Specified Sexual 
Activities' exhibited in the theaters of our choice.''\73\

        \70\See, e.g., Simon & Schuster v. New York Crime Victims Bd., 
112 S. Ct. 501 (1991).
        \71\Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).
        \72\Young v. American Mini Theatres, 427 U.S. 50, 63-73 (1976) 
(plurality opinion); Smith v. United States, 431 U.S. 291, 317-19 (1977) 
(Justice Stevens dissenting); Carey v. Population Services Int., 431 
U.S. 678, 716 (1977) (Justice Stevens concurring in part and concurring 
in the judgment); FCC v. Pacifica Found., 438 U.S. 726, 744-48 (1978) 
(plurality opinion); Schad v. Borough of Mount Ephraim, 452 U.S. 61, 80, 
83 (1981) (Justice Stevens concurring in judgment); New York v. Ferber, 
458 U.S. 747, 781 (1982) (Justice Stevens concurring in judgment); R. A. 
V. v. City of St. Paul, 112 S. Ct. 2538, 2564 (1992) (Justice Stevens 
concurring in the judgment).
        \73\Young v. American Mini Theatres, 427 U.S. 50, 70 (1976) 
(plurality opinion).
---------------------------------------------------------------------------

        While a majority of the Court has not joined in approving 
Justice Stevens' theory,\74\ the Court has in some contexts of covered 
expression approved restrictions based on content,\75\ and in still 
other areas, such as privacy, it has implied that some content-

[[Page 1130]]
based restraints on expression would be approved.\76\ Moreover, the 
Court in recent years has emphasized numerous times the role of the 
First Amendment in facilitating, indeed making possible, political 
dialogue and the operation of democratic institutions.\77\ While this 
emphasis may be read as being premised on a hierarchical theory of the 
worthiness of political speech and the subordinate position of less 
worthy forms of speech, more likely it is merely a celebration of the 
most worthy role speech plays, and not a suggestion that other roles and 
other kinds of discourses are relevant in determining the measure of 
protection enjoyed under the First Amendment.\78\

        \74\In New York v. Ferber, 458 U.S. 747, 763 (1982), a majority 
of the Court joined an opinion quoting much of Justice Stevens' language 
in these cases, but the opinion rather clearly adopts the proposition 
that the disputed expression, child pornography, is not covered by the 
First Amendment, not that it is covered but subject to suppression 
because of its content. Id. at 764. And see id. at 781 (Justice Stevens 
concurring in judgment).
        \75\E.g., commercial speech, which is covered by the First 
Amendment but is less protected than other speech, is subject to 
content-based regulation. Central Hudson Gas & Electric Co. v. Public 
Service Comm'n, 447 U.S. 557, 568-69 (1980). See also Rowan v. Post 
Office Dep't, 397 U.S. 728 (1970) (sexually-oriented, not necessarily 
obscene mailings); and Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991) 
(nonobscene, erotic dancing).
        \76\E.g., Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). 
See also Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 
(1977).
        \77\E.g., First National Bank of Boston v. Bellotti, 435 U.S. 
765, 776-77, 781-83 (1978); Citizens Against Rent Control v. City of 
Berkeley, 454 U.S. 290, 299-300 (1982).
        \78\E.g., First National Bank v. Bellotti, 435 U.S. 765, 783 
(1978); Consolidated Edison Co. v. Public Service Comm'n, 447 U.S.C. 
530, 534 n.2 (1980).
---------------------------------------------------------------------------

        That there can be a permissible content regulation within a 
category of protected expression was questioned in theory, and rejected 
in application, in Hustler Magazine, Inc. v. Falwell.\79\ In Falwell the 
Court refused to recognize a distinction between permissible political 
satire and ``outrageous'' parodies ``doubtless gross and repugnant in 
the eyes of most.''\80\ ``If it were possible by laying down a 
principled standard to separate the one from the other,'' the Court 
suggested, ``public discourse would probably suffer little or no harm. 
But we doubt that there is any such standard, and we are quite sure that 
the pejorative description `outrageous' does not supply one.''\81\ 
Falwell can also be read as consistent with the hierarchical theory of 
interpretation; the offensive advertisement parody was protected as 
within ``the world of debate about public affairs,'' and was not 
``governed by any exception to . . . general First Amendment 
principles.''\82\

        \79\485 U.S. 46 (1988).
        \80\Id. at 50, 55.
        \81\Id. at 55.
        \82\Id. at 53.
---------------------------------------------------------------------------

        So too, there can be impermissible content regulation within a 
category of otherwise unprotected expression. In R. A. V. v. City of St. 
Paul,\83\ the Court struck down a hate crimes ordinance construed by the 
state courts to apply only to use of ``fighting words.'' The difficulty, 
the Court found, was that the ordinance made a further content 
discrimination, proscribing only those fighting words that would arouse 
anger, alarm, or resentment in others on the basis of race, color, 
creed, religion, or gender. This amounted to

[[Page 1131]]
``special prohibitions on those speakers who express views on disfavored 
subjects.''\84\ The fact that government may proscribe areas of speech 
such as obscenity, defamation, or fighting words does not mean that 
these areas ``may be made the vehicles for content discrimination 
unrelated to their distinctly proscribable content. . . . [G]overnment 
may proscribe libel; but it may not make the further content 
discrimination of proscribing only libel critical of the 
government.''\85\

        \83\112 S. Ct. 2538 (1992).
        \84\Id. at 2547.
        \85\Id. at 2543.
---------------------------------------------------------------------------

        Content regulation of protected expression is measured by a 
compelling interest test derived from equal protection analysis: 
government ``must show that its regulation is necessary to serve a 
compelling [governmental] interest and is narrowly drawn to achieve that 
end.''\86\ Application of this test ordinarily results in invalidation 
of the regulation.\87\ Objecting to the balancing approach inherent in 
this test because it ``might be read as a concession that [government] 
may censor speech whenever they believe there is a compelling 
justification for doing so,'' Justice Kennedy argues instead for a rule 
of per se invalidity.\88\ But compelling interest analysis can still be 
useful, the Justice suggests, in determining whether a regulation is 
actually content-based or instead is content-neutral; in those cases in 
which the government tenders ``a plausible justification unrelated to 
the suppression of expression,'' application of the compelling interest 
test may help to determine ``whether the asserted justification is in 
fact an accurate description of the purpose and effect of the law.''\89\

        \86\Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 
231 (1987); Simon & Shuster v. New York Crime Victims Bd., 112 S. Ct. 
501, 509 (1991).
        \87\But see Burson v. Freeman, 112 S. Ct. 1846 (1992) (state law 
prohibiting the solicitation of votes and the display or distribution of 
campaign literature within 100 feet of a polling place upheld as applied 
to the traditional public forum of streets and sidewalks). The Burson 
plurality phrased the test not in terms of whether the law was 
``narrowly tailored,'' but instead in terms of whether the law was 
``necessary'' to serve compelling state interests. 112 S. Ct. at 1852, 
1855.
        \88\Simon & Shuster v. New York Crime Victims Bd., 112 S. Ct. 
501, 513 (1991) (concurring).
        \89\Burson v. Freeman, 112 S. Ct. 1846, 1859 (1992) 
(concurring).
---------------------------------------------------------------------------

        Seditious Speech and Seditious Libel.--Opposition to government 
through speech alone has been subject to punishment throughout much of 
history under laws proscribing ``seditious'' utterances. In this 
country, the Sedition Act of 1798 made criminal, inter alia, malicious 
writings which defamed, brought into contempt or disrepute, or excited 
the hatred of the people against the Government, the President, or the 
Congress, or which stirred peo

[[Page 1132]]
ple to sedition.\90\ In New York Times Co. v. Sullivan,\91\ the Court 
surveyed the controversy surrounding the enactment and enforcement of 
the Sedition Act and concluded that debate ``first crystallized a 
national awareness of the central meaning of the First Amendment. . . . 
Although the Sedition Act was never tested in this Court, the attack 
upon its validity has carried the day in the court of history . . . . 
[That history] reflect[s] a broad consensus that the Act, because of the 
restraint it imposed upon criticism of government and public officials, 
was inconsistent with the First Amendment.'' The ``central meaning'' 
discerned by the Court, quoting Madison's comment that in a republican 
government ``the censorial power is in the people over the Government, 
and not in the Government over the people,'' is that ``[t]he right of 
free public discussion of the stewardship of public officials was thus, 
in Madison's view, a fundamental principle of the American form of 
government.''

        \90\Ch. 74, 1 Stat. 596, supra, p.1022, n.9. Note also that the 
1918 amendment of the Espionage Act of 1917, ch. 75, 40 Stat. 553, 
reached ``language intended to bring the form of government of the 
United States . . . or the Constitution . . . or the flag . . . or the 
uniform of the Army or Navy into contempt, scorn, contumely, or 
disrepute.'' Cf. Abrams v. United States, 250 U.S. 616 (1919). For a 
brief history of seditious libel here and in Great Britain, see Z. 
Chafee, Free Speech in the United States 19-35, 497-516 (1941).
        \91\376 U.S. 254, 273-76 (1964). See also Abrams v. United 
States, 250 U.S. 616, 630 (1919) (Justice Holmes dissenting).
---------------------------------------------------------------------------

        Little opportunity to apply this concept of the ``central 
meaning'' of the First Amendment in the context of sedition and criminal 
syndicalism laws has been presented to the Court. In Dombrowski v. 
Pfister\92\ the Court, after expanding on First Amendment grounds the 
discretion of federal courts to enjoin state court proceedings, struck 
down as vague and as lacking procedural due process protections certain 
features of a state ``Subversive Activities and Communist Control Law.'' 
In Brandenburg v. Ohio,\93\ a state criminal syndicalism statute was 
held unconstitutional because its condemnation of advocacy of crime, 
violence, or unlawful methods of terrorism swept within its terms both 
mere advocacy as well as incitement to imminent lawless action. A 
seizure of books, pamphlets, and other documents under a search warrant 
pursuant to

[[Page 1133]]
a state subversives suppression law was struck down under the Fourth 
Amendment in an opinion heavy with First Amendment overtones.\94\

        \92\380 U.S. 479, 492-96 (1965). A number of state laws were 
struck down by three-judge district courts pursuant to the latitude 
prescribed by this case. E.g., Ware v. Nichols, 266 F. Supp. 564 (N.D. 
Miss. 1967) (criminal syndicalism law); Carmichael v. Allen, 267 F. 
Supp. 985 (N.D. Ga. 1966) (insurrection statute); McSurely v. Ratliff, 
282 F. Supp. 848 (E.D. Ky. 1967) (criminal syndicalism). This latitude 
was then circumscribed in cases attacking criminal syndicalism and 
criminal anarchy laws. Younger v. Harris, 401 U.S. 37 (1971); Samuels v. 
Mackell, 401 U.S. 66 (1971).
        \93\395 U.S. 444 (1969). See also Garrison v. Louisiana, 379 
U.S. 64 (1964); Ashton v. Kentucky, 384 U.S. 195 (1966), considered 
infra. pp.1137-38.
        \94\Stanford v. Texas, 379 U.S. 476 (1965). In United States v. 
United States District Court, 407 U.S. 297 (1972), a Government claim to 
be free to wiretap in national security cases was rejected on Fourth 
Amendment grounds in an opinion which called attention to the relevance 
of the First Amendment.
---------------------------------------------------------------------------

        Fighting Words and Other Threats to the Peace.--In Chaplinsky v. 
New Hampshire,\95\ the Court unanimously sustained a conviction under a 
statute proscribing ``any offensive, derisive, or annoying word'' 
addressed to any person in a public place under the state court's 
interpretation of the statute as being limited to ``fighting words''--
i.e., to ``words . . . [which] have a direct tendency to cause acts of 
violence by the person to whom, individually, the remark is addressed.'' 
The statute was sustained as ``narrowly drawn and limited to define and 
punish specific conduct lying within the domain of state power, the use 
in a public place of words likely to cause a breach of the peace.''\96\ 
The case is best known for Justice Murphy's famous dictum. ``[I]t is 
well understood that the right of free speech is not absolute at all 
times and under all circumstances. There are certain well-defined and 
narrowly limited classes of speech, the prevention and punishment of 
which have never been thought to raise any Constitutional problem. These 
include the lewd and obscene, the profane, the libelous, and the 
insulting or `fighting' words--those which by their very utterance 
inflict injury or tend to incite an immediate breach of the peace. It 
has been well observed that such utterances are no essential part of any 
exposition of ideas, and are of such slight social value as a step to 
truth that any benefit that may be derived from them is clearly 
outweighed by the social interest in order and morality.''\97\

        \95\315 U.S. 568 (1942).
        \96\Id. at 573.
        \97\Id. at 571-72.
---------------------------------------------------------------------------

        Chaplinsky still remains viable for the principle that ``the 
States are free to ban the simple use, without a demonstration of 
additional justifying circumstances, of so-called `fighting words,' 
those personally abusive epithets which, when addressed to the ordinary 
citizen, are, as a matter of common knowledge, inherently likely to 
provoke violent reaction.''\98\ But, in actuality, the Court has closely 
scrutinized statutes on vagueness and overbreadth

[[Page 1134]]
grounds and set aside convictions as not being within the doctrine. 
Chaplinsky thus remains formally alive but of little vitality.\99\

        \98\Cohen v. California, 403 U.S. 15, 20 (1971). Cohen's 
conviction for breach of peace, occasioned by his appearance in public 
with an ``offensive expletive'' lettered on his jacket, was reversed, in 
part because the words were not a personal insult and there was no 
evidence of audience objection.
        \99\The cases hold that government may not punish profane, 
vulgar, or opprobrious words simply because they are offensive, but only 
if they are ``fighting words'' that do have a direct tendency to cause 
acts of violence by the person to whom they are directed. Gooding v. 
Wilson, 405 U.S. 518 (1972); Hess v. Indiana, 414 U.S. 105 (1973); Lewis 
v. City of New Orleans, 415 U.S. 130 (1974); Lucas v. Arkansas, 416 U.S. 
919 (1974); Kelly v. Ohio, 416 U.S. 923 (1974); Karlan v. City of 
Cincinnati, 416 U.S. 924 (1974); Rosen v. California, 416 U.S. 924 
(1974); and see Eaton v. City of Tulsa, 416 U.S. 697 (1974).
---------------------------------------------------------------------------

        On the obverse side, the ``hostile audience'' situation, the 
Court once sustained a conviction for disorderly conduct of one who 
refused police demands to cease speaking after his speech seemingly 
stirred numbers of his listeners to mutterings and threatened 
disorders.\100\ But this case has been significantly limited by cases 
which hold protected the peaceful expression of views which stirs people 
to anger because of the content of the expression, or perhaps because of 
the manner in which it is conveyed, and that breach of the peace and 
disorderly conduct statutes may not be used to curb such expression.

        \100\Feiner v. New York, 340 U.S. 315 (1951). See also Milk 
Wagon Drivers v. Meadowmoor Dairies, 312 U.S. 287 (1941), in which the 
Court held that a court could enjoin peaceful picketing because violence 
occurring at the same time against the businesses picketed could have 
created an atmosphere in which even peaceful, otherwise protected 
picketing could be illegally coercive. But compare NAACP v. Claiborne 
Hardware Co., 458 U.S. 886 (1982).
---------------------------------------------------------------------------

        The cases are not clear to what extent the police must go in 
protecting the speaker against hostile audience reaction or whether only 
actual disorder or a clear and present danger of disorder will entitle 
the authorities to terminate the speech or other expressive 
conduct.\101\ Neither, in the absence of incitement to illegal action, 
may government punish mere expression or proscribe ideas,\102\ 
regardless of the trifling or annoying caliber of the expression.\103\

        \101\The principle actually predates Feiner. See Cantwell v. 
Connecticut, 310 U.S. 296 (1940); Terminiello v. Chicago, 337 U.S. 1 
(1949). For subsequent application, see Edwards v. South Carolina, 372 
U.S. 229 (1963); Cox v. Louisiana, 379 U.S. 536 (1965); Brown v. 
Louisiana, 383 U.S. 131 (1966); Gregory v. City of Chicago, 394 U.S. 111 
(1969); Bachellar v. Maryland, 397 U.S. 564 (1970). Significant is 
Justice Harlan's statement of the principle reflected by Feiner. ``Nor 
do we have here an instance of the exercise of the State's police power 
to prevent a speaker from intentionally provoking a given group to 
hostile reaction. Cf. Feiner v. New York, 340 U.S. 315 (1951).'' Cohen 
v. California, 403 U.S. 15, 20 (1970).
        \102\Cohen v. California, 403 U.S. 15 (1971); Bachellar v. 
Maryland, 397 U.S. 564 (1970); Street v. New York, 394 U.S. 576 (1969); 
Schacht v. United States, 398 U.S. 58 (1970); Joseph Burstyn, Inc. v. 
Wilson, 343 U.S. 495 (1952); Kingsley Pictures Corp. v. Regents, 360 
U.S. 684 (1959); Stromberg v. California, 283 U.S. 359 (1931).
        \103\Coates v. City of Cincinnati, 402 U.S. 611 (1971); Cohen v. 
California, 403 U.S. 15 (1971); Gooding v. Wilson, 405 U.S. 518 (1972).

---------------------------------------------------------------------------

[[Page 1135]]

        Group Libel, Hate Speech.--In Beauharnais v. Illinois,\104\ 
relying on dicta in past cases,\105\ the Court upheld a state group 
libel law which made it unlawful to defame a race or class of people. 
The defendant had been convicted under this statute after he had 
distributed a leaflet, a part of which was in the form of a petition to 
his city government, taking a hard-line white supremacy position and 
calling for action to keep African Americans out of white neighborhoods. 
Justice Frankfurter for the Court sustained the statute along the 
following reasoning. Libel of an individual, he established, was a 
common-law crime and was now made criminal by statute in every State in 
the Union. These laws raise no constitutional difficulty because libel 
is within that class of speech which is not protected by the First 
Amendment. If an utterance directed at an individual may be the object 
of criminal sanctions, no good reason appears to deny a State the power 
to punish the same utterances when they are directed at a defined group, 
``unless we can say that this is a willful and purposeless restriction 
unrelated to the peace and well-being of the State.''\106\ The Justice 
then reviewed the history of racial strife in Illinois to conclude that 
the legislature could reasonably fear substantial evils from 
unrestrained racial utterances. Neither did the Constitution require the 
State to accept a defense of truth, inasmuch as historically a defendant 
had to show not only truth but publication with good motives and for 
justifiable ends.\107\ ``Libelous utterances not being within the area 
of constitutionally protected speech, it is unnecessary . . . to 
consider the issues behind the phrase `clear and present danger.'''\108\

        \104\343 U.S. 250 (1952).
        \105\Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942); 
Near v. Minnesota ex rel. Olson, 283 U.S. 697, 707-08 (1931).
        \106\Beauharnais v. Illinois, 343 U.S. 250, 254-58 (1952).
        \107\Id. at 265-66.
        \108\Id. at 266.
---------------------------------------------------------------------------

        Beauharnais has little continuing vitality as precedent. Its 
holding, premised in part on the categorical exclusion of defamatory 
statements from First Amendment protection, has been substantially 
undercut by subsequent developments, not the least of which are the 
Court's subjection of defamation law to First Amendment challenge and 
its ringing endorsement of ``uninhibited, robust, and wide-open'' debate 
on public issues in New York Times Co. v. Sullivan.\109\ In R. A. V. v. 
City of St. Paul, the Court, in an

[[Page 1136]]
opinion by Justice Scalia, explained and qualified the categorical 
exclusions for defamation, obscenity, and fighting words. These 
categories of speech are not ``entirely invisible to the Constitution,'' 
but instead ``can, consistently with the First Amendment, be regulated 
because of their constitutionally proscribable content.''\110\ Content 
discrimination unrelated to that ``distinctively proscribable content'' 
runs afoul of the First Amendment. Therefore, the city's bias-motivated 
crime ordinance, interpreted as banning the use of fighting words known 
to offend on the basis of race, color, creed, religion, or gender, but 
not on such other possible bases as political affiliation, union 
membership, or homosexuality, was invalidated for its content 
discrimination. ``The First Amendment does not permit [the city] to 
impose special prohibitions on those speakers who express views on 
disfavored subjects.''\111\

        \109\376 U.S. 254 (1964). See also Collin v. Smith, 447 F. Supp. 
676 (N.D.Ill.) (ordinances prohibiting distribution of materials 
containing racial slurs are unconstitutional), aff'd, 578 F.2d 1197 (7th 
Cir.), stay denied, 436 U.S. 953 (1978), cert. denied, 439 U.S. 916 
(1978) (Justices Blackmun and Rehnquist dissenting on basis that Court 
should review case that is in ``some tension'' with Beauharnais). But 
see New York v. Ferber, 458 U.S. 747, 763 (1982) (obliquely citing 
Beauharnais with approval).
        \110\112 S. Ct. at 2543 (emphasis original).
        \111\Id. at 2547.
---------------------------------------------------------------------------

        Defamation.--One of the most seminal shifts in constitutional 
jurisprudence occurred in 1964 with the Court's decision in New York 
Times Co. v. Sullivan.\112\ The Times had published a paid advertisement 
by a civil rights organization criticizing the response of a Southern 
community to demonstrations led by Dr. Martin Luther King, and 
containing several factual errors. The plaintiff, a city commissioner in 
charge of the police department, claimed that the advertisement had 
libeled him even though he was not referred to by name or title and even 
though several of the incidents described had occurred prior to his 
assumption of office. Unanimously, the Court reversed the lower court's 
judgment for the plaintiff. To the contention that the First Amendment 
did not protect libelous publications, the Court replied that 
constitutional scrutiny could not be foreclosed by the ``label'' 
attached to something. ``Like . . . the various other formulae for the 
repression of expression that have been challenged in this Court, libel 
can claim no talismanic immunity from constitutional limitations. It 
must be measured by standards that satisfy the First Amendment.''\113\ 
``The general proposition,'' the Court continued, ``that freedom of 
expression upon public questions is secured by the First Amendment has 
long been settled by our decisions . . . . [W]e consider this case 
against the background of a profound national commitment to the 
principle that debate on public issues should be uninhibited, robust, 
and wide-open, and that it may well include vehement, caustic, and 
sometimes un

[[Page 1137]]
pleasantly sharp attacks on government and public officials.''\114\ 
Because the advertisement was ``an expression of grievance and protest 
on one of the major public issues of our time, [it] would seem clearly 
to qualify for the constitutional protection . . . [unless] it forfeits 
that protection by the falsity of some of its factual statements and by 
its alleged defamation of respondent.''\115\

        \112\376 U.S. 254 (1964).
        \113\Id. at 269. Justices Black, Douglas, and Goldberg, 
concurring, would have held libel laws per se unconstitutional. Id. at 
293, 297.
        \114\Id. at 269, 270.
        \115\Id. at 271.
---------------------------------------------------------------------------

        Erroneous statement is protected, the Court asserted, there 
being no exception ``for any test of truth.'' Error is inevitable in any 
free debate and to place liability upon that score, and especially to 
place on the speaker the burden of proving truth, would introduce self-
censorship and stifle the free expression which the First Amendment 
protects.\116\ Nor would injury to official reputation afford a warrant 
for repressing otherwise free speech. Public officials are subject to 
public scrutiny and ``[c]riticism of their official conduct does not 
lose its constitutional protection merely because it is effective 
criticism and hence diminishes their official reputation.''\117\ That 
neither factual error nor defamatory content could penetrate the 
protective circle of the First Amendment was the ``lesson'' to be drawn 
from the great debate over the Sedition Act of 1798, which the Court 
reviewed in some detail to discern the ``central meaning of the First 
Amendment.''\118\ Thus, it appears, the libel law under consideration 
failed the test of constitutionality because of its kinship with 
seditious libel, which violated the ``central meaning of the First 
Amendment.'' ``The constitutional guarantees require, we think, a 
federal rule that prohibits a public official from recovering damages 
for a defamatory falsehood relating to his official conduct unless he 
proves that the statement was made with `actual malice'--that is, with 
knowledge that it was false or with reckless disregard of whether it was 
false or not.''\119\

        \116\Id. at 271-72, 278-79. Of course, the substantial truth of 
an utterance is ordinarily a defense to defamation. See Masson v. New 
Yorker Magazine, 111 S. Ct. 2419, 2433 (1991).
        \117\Id. at 272-73.
        \118\Id. at 273. See supra, p.1022 n.13.
        \119\Id. at 279-80. The same standard applies for defamation 
contained in petitions to the government, the Court having rejected the 
argument that the petition clause requires absolute immunity. McDonald 
v. Smith, 472 U.S. 479 (1985).
---------------------------------------------------------------------------

        In the wake of the Times ruling, the Court decided two cases 
involving the type of criminal libel statute upon which Justice 
Frankfurter had relied in analogy to uphold the group libel law in 
Beauharnais.\120\ In neither case did the Court apply the concept of 
Times to void them altogether. Garrison v. Louisiana\121\ held that

[[Page 1138]]
a statute that did not incorporate the Times rule of ``actual malice'' 
was invalid, while in Ashton v. Kentucky\122\ a common-law definition of 
criminal libel as ``any writing calculated to create disturbances of the 
peace, corrupt the public morals or lead to any act, which, when done, 
is indictable'' was too vague to be constitutional.

        \120\Beauharnais v. Illinois, 343 U.S. 250, 254-58 (1952).
        \121\379 U.S. 64 (1964).
        \122\384 U.S. 195 (1966).
---------------------------------------------------------------------------

        The teaching of Times and the cases following after it is that 
expression on matters of public interest is protected by the First 
Amendment. Within that area of protection is commentary about the public 
actions of individuals. The fact that expression contains falsehoods 
does not deprive it of protection, because otherwise such expression in 
the public interest would be deterred by monetary judgments and self-
censorship imposed for fear of judgments. But, over the years, the Court 
has developed an increasingly complex set of standards governing who is 
protected to what degree with respect to which matters of public and 
private interest.

        Individuals to whom the Times rule applies presented one of the 
first issues for determination. At first, the Court keyed it to the 
importance of the position held. ``There is, first, a strong interest in 
debate on public issues, and, second, a strong interest in debate about 
those persons who are in a position significantly to influence the 
resolution of those issues. Criticism of government is at the very 
center of the constitutionally protected area of free discussion. 
Criticism of those responsible for government operations must be free, 
lest criticism of government itself be penalized. It is clear, 
therefore, that the `public official' designation applies at the very 
least to those among the hierarchy of government employees who have, or 
appear to the public to have, substantial responsibility for or control 
over the conduct of governmental affairs.''\123\ But over time, this 
focus seems to have become diffused and the concept of ``public 
official'' has appeared to take on overtones of anyone holding public 
elective or appointive office.\124\ Moreover, candidates for public 
office were subject to the Times rule and comment on their

[[Page 1139]]
character or past conduct, public or private, insofar as it touches upon 
their fitness for office, is protected.\125\

        \123\Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
        \124\Id. (supervisor of a county recreation area employed by and 
responsible to the county commissioners may be public official within 
Times rule). See Garrison v. Louisiana, 379 U.S. 64 (1964) (elected 
municipal judges); Henry v. Collins, 380 U.S. 356 (1965) (county 
attorney and chief of police); St. Amant v. Thompson, 390 U.S. 727 
(1968) (deputy sheriff); Greenbelt Cooperative Pub. Ass'n v. Bresler, 
398 U.S. 6 (1970) (state legislator who was major real estate developer 
in area); Time, Inc. v. Pape, 401 U.S. 279 (1971) (police captain). The 
categorization does not, however, include all government employees. 
Hutchinson v. Proxmire, 443 U.S. 111, 119 n.8 (1979).
        \125\Monitor Patriot Co. v. Roy, 401 U.S. 265 (1971); Ocala 
Star-Banner Co. v. Damron, 401 U.S. 295 (1971).
---------------------------------------------------------------------------

        Thus, with respect to both public officials and candidates, a 
wide range of reporting about them is protected. Certainly, the conduct 
of official duties by public officials is subject to the widest scrutiny 
and criticism.\126\ But the Court has held as well that criticism that 
reflects generally upon an official's integrity and honesty is 
protected.\127\ Candidates for public office, the Court has said, place 
their whole lives before the public, and it is difficult to see what 
criticisms could not be related to their fitness.\128\

        \126\Rosenblatt v. Baer, 383 U.S. 75, 85 (1966).
        \127\Garrison v. Louisiana, 379 U.S. 64 (1964), involved charges 
that judges were inefficient, took excessive vacations, opposed official 
investigations of vice, and were possibly subject to ``racketeer 
influences.'' The Court rejected an attempted distinction that these 
criticisms were not of the manner in which the judges conducted their 
courts but were personal attacks upon their integrity and honesty. ``Of 
course, any criticism of the manner in which a public official performs 
his duties will tend to affect his private, as well as his public, 
reputation. . . . The public-official rule protects the paramount public 
interest in a free flow of information to the people concerning public 
officials, their servants. To this end, anything which might touch on an 
official's fitness for office is relevant. Few personal attributes are 
more germane to fitness for office than dishonesty, malfeasance, or 
improper motivation, even though these characteristics may also affect 
the official's private character.'' Id. at 76-77.
        \128\In Monitor Patriot Co. v. Roy, 401 U.S. 265, 274-75 (1971), 
the Court said: ``The principal activity of a candidate in our political 
system, his `office,' so to speak, consists in putting before the voters 
every conceivable aspect of his public and private life that he thinks 
may lead the electorate to gain a good impression of him. A candidate 
who, for example, seeks to further his cause through the prominent 
display of his wife and children can hardly argue that his qualities as 
a husband or father remain of `purely private' concern. And the 
candidate who vaunts his spotless record and sterling integrity cannot 
convincingly cry `Foul' when an opponent or an industrious reporter 
attempts to demonstrate the contrary. . . . Given the realities of our 
political life, it is by no means easy to see what statements about a 
candidate might be altogether without relevance to his fitness for the 
office he seeks. The clash of reputations is the staple of election 
campaigns and damage to reputation is, of course, the essence of libel. 
But whether there remains some exiguous area of defamation against which 
a candidate may have full recourse is a question we need not decide in 
this case.''
---------------------------------------------------------------------------

        For a time, the Court's decisional process threatened to expand 
the Times privilege so as to obliterate the distinction between private 
and public figures. First, the Court created a subcategory of ``public 
figure,'' which included those otherwise private individuals who have 
attained some prominence, either through their own efforts or because it 
was thrust upon them, with respect to a matter of public interest, or, 
in Chief Justice Warren's words, those persons who are ``intimately 
involved in the resolution of important public questions or, by reason 
of their fame, shape events in areas

[[Page 1140]]
of concern to society at large.''\129\ More recently, the Court has 
curtailed the definition of ``public figure'' by playing down the matter 
of public interest and emphasizing the voluntariness of the assumption 
of a role in public affairs that will make of one a ``public 
figure.''\130\

        \129\Curtis Publishing Co. v. Butts, 388 U.S. 130, 164 (1967) 
(Chief Justice Warren concurring in the result). Curtis involved a 
college football coach, and Associated Press v. Walker, decided in the 
same opinion, involved a retired general active in certain political 
causes. The suits arose from reporting that alleged, respectively, the 
fixing of a football game and the leading of a violent crowd in 
opposition to enforcement of a desegregation decree. The Court was 
extremely divided, but the rule that emerged was largely the one 
developed in the Chief Justice's opinion. Essentially, four Justices 
opposed application of the Times standard to ``public figures,'' 
although they would have imposed a lesser but constitutionally-based 
burden on public figure plaintiffs. Id. at 133 (plurality opinion of 
Justices Harlan, Clark, Stewart, and Fortas). Three Justices applied 
Times, id. at 162 (Chief Justice Warren), and 172 (Justices Brennan and 
White). Two Justices would have applied absolute immunity. Id. at 170 
(Justices Black and Douglas). See also Greenbelt Cooperative Pub. Ass'n 
v. Bresler, 398 U.S. 6 (1970).
        \130\Public figures ``[f]or the most part [are] those who . . . 
have assumed roles of especial prominence in the affairs of society. 
Some occupy positions of such persuasive power and influence that they 
are deemed public figures for all purposes. More commonly, those classed 
as public figures have thrust themselves to the forefront of particular 
public controversies in order to influence the resolution of the issues 
involved.'' Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974).
---------------------------------------------------------------------------

        Second, in a fragmented ruling, the Court applied the Times 
standard to private citizens who had simply been involved in events of 
public interest, usually, though not invariably, not through their own 
choosing.\131\ But, in Gertz v. Robert Welch, Inc.\132\ the Court set 
off on a new path of limiting recovery for defamation by private 
persons. Henceforth, persons who are neither public officials nor public 
figures may recover for the publication of defamatory falsehoods so long 
as state defamation law establishes a standard higher than strict 
liability, such as negligence; damages may not be presumed, however, but 
must be proved, and punitive damages will be recoverable only upon the 
Times showing of ``actual malice.''

        \131\Rosenbloom v. Metromedia, 403 U.S. 29 (1971). Rosenbloom 
had been prefigured by Time, Inc., v. Hill, 385 U.S. 374 (1967), a 
``false light'' privacy case considered infra.
        \132\418 U.S. 323 (1974).
---------------------------------------------------------------------------

        The Court's opinion by Justice Powell established competing 
constitutional considerations. On the one hand, imposition upon the 
press of liability for every misstatement would deter not only false 
speech but much truth as well; the possibility that the press might have 
to prove everything it prints would lead to self-censorship and the 
consequent deprivation of the public of its access to information. On 
the other hand, there is a legitimate state interest in compensating 
individuals for the harm inflicted on them by de

[[Page 1141]]
famatory falsehoods. An individual's right to the protection of his own 
good name is, at bottom, but a reflection of our society's concept of 
the worth of the individual. Therefore, an accommodation must be 
reached. The Times rule had been a proper accommodation when public 
officials or public figures were concerned, inasmuch as by their own 
efforts they had brought themselves into the public eye, had created a 
need in the public for information about them, and had at the same time 
attained an ability to counter defamatory falsehoods published about 
them. Private individuals are not in the same position and need greater 
protection. ``We hold that, so long as they do not impose liability 
without fault, the States may define for themselves the appropriate 
standard of liability for a publisher or broadcaster of defamatory 
falsehood injurious to a private individual.''\133\ Some degree of fault 
must be shown, then.

        \133\Id. at 347.
---------------------------------------------------------------------------

        Generally, juries may award substantial damages in tort for 
presumed injury to reputation merely upon a showing of publication. But 
this discretion of juries had the potential to inhibit the exercise of 
freedom of the press, and moreover permitted juries to penalize 
unpopular opinion through the awarding of damages. Therefore, defamation 
plaintiffs who do not prove actual malice--that is, knowledge of falsity 
or reckless disregard for the truth--will be limited to compensation for 
actual provable injuries, such as out-of-pocket loss, impairment of 
reputation and standing, personal humiliation, and mental anguish and 
suffering. A plaintiff who proves actual malice will be entitled as well 
to collect punitive damages.\134\

        \134\Id. at 348-50. Justice Brennan would have adhered to 
Rosenbloom, id. at 361, while Justice White thought the Court went too 
far in constitutionalizing the law of defamation. Id. at 369.
---------------------------------------------------------------------------

        Subsequent cases have revealed a trend toward narrowing the 
scope of the ``public figure'' concept. A socially prominent litigant in 
a particularly messy divorce controversy was held not to be such a 
person,\135\ and a person convicted years before of contempt after 
failing to appear before a grand jury was similarly not a public figure 
even as to commentary with respect to his conviction.\136\ Also not a 
public figure for purposes of allegedly defamatory comment about the 
value of his research was a scientist who sought and received federal 
grants for research, the results of which were published in scientific 
journals.\137\ Public figures, the Court reiterated, are those who (1) 
occupy positions of such persuasive power and influence that they are 
deemed public figures for all purposes or (2)

[[Page 1142]]
have thrust themselves to the forefront of particular public 
controversies in order to influence the resolution of the issues 
involved, and are public figures with respect to comment on those 
issues.\138\

        \135\Time, Inc. v. Firestone, 424 U.S. 448 (1976).
        \136\Wolston v. Reader's Digest Ass'n, 443 U.S. 157 (1979).
        \137\Hutchinson v. Proxmire, 443 U.S. 111 (1979).
        \138\Id. at 134 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 
323, 345 (1974)).
---------------------------------------------------------------------------

        Commentary about matters of ``public interest'' when it defames 
someone is apparently, after Firestone\139\ and Gertz, to be protected 
to the degree that the person defamed is a public official or candidate 
for public office, public figure, or private figure. That there is a 
controversy, that there are matters that may be of ``public interest,'' 
is insufficient to make a private person a ``public figure'' for 
purposes of the standard of protection in defamation actions.

        \139\Time, Inc. v. Firestone, 424 U.S. 448, 454 (1976). See also 
Wolston v. Reader's Digest Ass'n, 443 U.S. 157 (1979).
---------------------------------------------------------------------------

        The Court has elaborated on the principles governing defamation 
actions brought by private figures. First, when a private plaintiff sues 
a media defendant for publication of information that is a matter of 
public concern--the Gertz situation, in other words--the burden is on 
the plaintiff to establish the falsity of the information. Thus, the 
Court held in Philadelphia Newspapers v. Hepps,\140\ the common law rule 
that defamatory statements are presumptively false must give way to the 
First Amendment interest that true speech on matters of public concern 
not be inhibited. This means, as the dissenters pointed out, that a 
Gertz plaintiff must establish falsity in addition to establishing some 
degree of fault (e.g. negligence).\141\ On the other hand, the Court 
held in Dun & Bradstreet v. Greenmoss Builders that the Gertz standard 
limiting award of presumed and punitive damages applies only in cases 
involving matters of public concern, and that the sale of credit 
reporting information to subscribers is not such a matter of public 
concern.\142\ What significance, if any, is to be attributed to the fact 
that a media defendant rather than a private defendant has been sued is 
left unclear. The plurality in Dun & Bradstreet declined to follow the 
lower court's rationale that Gertz protections are unavailable to 
nonmedia defendants, and a majority of Justices were

[[Page 1143]]
in agreement on that point.\143\ But in Philadelphia Newspapers, the 
Court expressly reserved the issue of ``what standards would apply if 
the plaintiff sues a nonmedia defendant.''\144\

        \140\475 U.S. 767 (1986). Justice O'Connor's opinion of the 
Court was joined by Justices Brennan, Marshall, Blackmun, and Powell; 
Justice Stevens' dissent was joined by Chief Justice Burger and by 
Justices White and Rehnquist.
        \141\475 U.S. at 780 (Stevens, J., dissenting).
        \142\472 U.S. 749 (1985). Justice Powell wrote a plurality 
opinion joined by Justices Rehnquist and O'Connor, and Chief Justice 
Burger and Justice White, both of whom had dissented in Gertz, added 
brief concurring opinions agreeing that the Gertz standard should not 
apply to credit reporting. Justice Brennan, joined by Justices Marshall, 
Blackmun, and Stevens, dissented, arguing that Gertz had not been 
limited to matters of public concern, and should not be extended to do 
so.
        \143\472 U.S. at 753 (plurality); id. at 773 (Justice White); 
id. at 781-84 (dissent).
        \144\465 U.S. at 779 n.4. Justice Brennan added a brief 
concurring opinion expressing his view that such a distinction is 
untenable. Id. at 780.
---------------------------------------------------------------------------

        Satellite considerations besides the issue of who is covered by 
the Times privilege are of considerable importance. The use in the cases 
of the expression ``actual malice'' has been confusing in many respects, 
because it is in fact a concept distinct from the common law meaning of 
malice or the meanings common understanding might give to it.\145\ 
Constitutional ``actual malice'' means that the defamation was published 
with knowledge that it was false or with reckless disregard of whether 
it was false.\146\ Reckless disregard is not simply negligent behavior, 
but publication with serious doubts as to the truth of what is 
uttered.\147\ A defamation plaintiff under the Times or Gertz standard 
has the burden of proving by ``clear and convincing'' evidence, not 
merely by the preponderance of evidence standard ordinarily borne in 
civil cases, that the defendant acted with knowledge of falsity or with 
reckless disregard.\148\ Moreover, the Court has held, a Gertz plaintiff 
has the burden of proving the actual falsity of the defamatory 
publication.\149\ A plaintiff suing the press\150\ for defamation under 
the Times or Gertz standards is not limited to attempting to prove his 
case without resort to discovery of the defendant's editorial processes 
in the establish

[[Page 1144]]
ment of ``actual malice.''\151\ The state of mind of the defendant may 
be inquired into and the thoughts, opinions, and conclusions with 
respect to the material gathered and its review and handling are proper 
subjects of discovery. As with other areas of protection or qualified 
protection under the First Amendment (as well as some other 
constitutional provisions), appellate courts, and ultimately the Supreme 
Court, must independently review the findings below to ascertain that 
constitutional standards were met.\152\

        \145\See, e.g., Herbert v. Lando, 441 U.S. 153, 199 (1979) 
(Justice Stewart dissenting).
        \146\New York Times Co. v. Sullivan, 376 U.S. 254, 280 (1964); 
Garrison v. Louisiana, 379 U.S. 64, 78 (1964); Cantrell v. Forest City 
Publishing Co., 419 U.S. 245, 251-52 (1974).
        \147\St. Amant v. Thompson, 390 U.S. 727, 730-33 (1968); Beckley 
Newspapers Corp. v. Hanks, 389 U.S. 81 (1967). A finding of ``highly 
unreasonable conduct constituting an extreme departure from the 
standards of investigation and reporting ordinarily adhered to by 
responsible publishers'' is alone insufficient to establish actual 
malice. Harte-Hanks Communications v. Connaughton, 491 U.S. 657 (1989) 
(nonetheless upholding the lower court's finding of actual malice based 
on the ``entire record'').
        \148\Gertz v. Robert Welch, Inc., 418 U.S. 323, 331-32 (1974); 
Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 83 (1967). See New York 
Times Co. v. Sullivan, 376 U.S. 254, 285-86 (1964) (``convincing 
clarity''). A corollary is that the issue on motion for summary judgment 
in a New York Times case is whether the evidence is such that a 
reasonable jury might find that actual malice has been shown with 
convincing clarity. Anderson v. Liberty Lobby, 477 U.S. 242 (1986).
        \149\Philadelphia Newspapers v. Hepps, 475 U.S. 767 (1986) 
(leaving open the issue of what ``quantity'' or standard of proof must 
be met).
        \150\Because the defendants in these cases have typically been 
media defendants (but see Garrison v. Louisiana, 379 U.S. 64 (1964); 
Henry v. Collins, 380 U.S. 356 (1965)), and because of the language in 
the Court's opinions, some have argued that only media defendants are 
protected under the press clause and individuals and others are not 
protected by the speech clause in defamation actions. See supra, 
pp.1026-29.
        \151\Herbert v. Lando, 441 U.S. 153 (1979).
        \152\New York Times Co. v. Sullivan, 376 U.S. 254, 284-86 
(1964). See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 933-34 
(1982). Harte-Hanks Communications v. Connaughton, 491 U.S. 657, 688 
(1989) (``the reviewing court must consider the factual record in 
full''); Bose Corp. v. Consumers Union of United States, 466 U.S. 485 
(1984) (the ``clearly erroneous'' standard of Federal Rule of Civil 
Procedure 52(a) must be subordinated to this constitutional principle).
---------------------------------------------------------------------------

        There had been some indications that statements of opinion, 
unlike assertions of fact, are absolutely protected,\153\ but the Court 
held in Milkovich v. Lorain Journal Co.\154\ that there is no 
constitutional distinction between fact and opinion, hence no 
``wholesale defamation exemption'' for any statement that can be labeled 
``opinion.''\155\ The issue instead is whether, regardless of the 
context in which a statement is uttered, it is sufficiently factual to 
be susceptible of being proved true or false. Thus, if statements of 
opinion may ``reasonably be interpreted as stating actual facts about an 
individual,''\156\ then the truthfulness of the factual assertions may 
be tested in a defamation action. There are sufficient protections for 
free public discourse already available in defamation law, the Court 
concluded, without creating ``an artificial dichotomy between `opinion' 
and fact.''\157\

        \153\See, e.g., Gertz v. Robert Welch, Inc., 418 U.S. 323, 339 
(1974) (``under the First Amendment there is no such thing as a false 
idea''); Greenbelt Cooperative Publishing Ass'n v. Bresler, 398 U.S. 6 
(1970) (holding protected the accurate reporting of a public meeting in 
which a particular position was characterized as ``blackmail''); Letter 
Carriers v. Austin, 418 U.S. 264 (1974) (holding protected a union 
newspaper's use of epithet ``scab'').
        \154\497 U.S. 1 (1990).
        \155\Id. at 18.
        \156\Id. at 20. In Milkovich the Court held to be actionable 
assertions and implications in a newspaper sports column that a high 
school wrestling coach had committed perjury in testifying about a fight 
involving his team.
        \157\Id. at 19.
---------------------------------------------------------------------------

        Substantial meaning is also the key to determining whether 
inexact quotations are defamatory. Journalistic conventions allow some 
alterations to correct grammar and syntax, but the Court in Masson v. 
New Yorker Magazine\158\ refused to draw a distinction on that narrow 
basis. Instead, ``a deliberate alteration of words [in a quotation] does 
not equate with knowledge of falsity for purposes

[[Page 1145]]
of [New York Times] unless the alteration results in a material change 
in the meaning conveyed by the statement.''\159\

        \158\111 S. Ct. 2419 (1991).
        \159\111 S. Ct. at 2433.
---------------------------------------------------------------------------

        Invasion of Privacy.--Governmental power to protect the privacy 
interests of its citizens by penalizing publication or authorizing 
causes of action for publication implicates directly First Amendment 
rights. Privacy is a concept composed of several aspects.\160\ As a tort 
concept, it embraces at least four branches of protected interests: 
protection from unreasonable intrusion upon one's seclusion, from 
appropriation of one's name or likeness, from unreasonable publicity 
given to one's private life, and from publicity which unreasonably 
places one in a false light before the public.\161\

        \160\See, e.g., William Prosser, Law of Torts 117 (4th ed. 
1971); Prosser, Privacy, 48 Calif. L. Rev. 383 (1960); J. Thomas 
McCarthy, The Rights of Publicity and Privacy (1987); Thomas Emerson, 
The System of Freedom of Expression 544-61 (1970). It should be noted 
that we do not have here the question of the protection of one's privacy 
from governmental invasion.
        \161\Restatement (Second), of Torts Sec. Sec. 652A-652I (1977). 
These four branches were originally propounded in Prosser's 1960 article 
(supra n.), incorporated in the Restatement, and now ``routinely 
accept[ed].'' McCarthy, supra n.160, Sec. 5.8[A].
---------------------------------------------------------------------------

        While the Court has variously recognized valid governmental 
interests in extending protection to privacy,\162\ it has at the same 
time interposed substantial free expression interests in the balance. 
Thus, in Time, Inc. v. Hill,\163\ the Times privilege was held to 
preclude recovery under a state privacy statute that permitted recovery 
for harm caused by exposure to public attention in any publication which 
contained factual inaccuracies, although not necessarily defamatory 
inaccuracies, in communications on matters of public interest. When in 
Gertz v. Robert Welch, Inc.,\164\ the Court held that the Times 
privilege was not applicable in defamation cases unless the plaintiff is 
a public official or public figure, even though plaintiff may have been 
involved in a matter of public interest, the question arose whether Hill 
applies to all ``false-light'' cases or only such cases involving public 
officials or public figures.\165\ And, more important, Gertz left 
unresolved the issue ``whether the State may ever define and protect an 
area of privacy free from unwanted publicity in the press.''\166\

        \162\Time. Inc. v. Hill, 385 U.S. 374, 383 n.7 (1967); and id. 
402, 404 (Justice Harlan, concurring in part and dissenting in part), 
411, 412-15 (Justice Fortas dissenting); Cox Broadcasting Corp. v. Cohn, 
420 U.S. 469, 487-89 (1975).
        \163\385 U.S. 374 (1967). See also Cantrell v. Forest City 
Publishing Co., 419 U.S. 245 (1974).
        \164\418 U.S. 323 (1974).
        \165\Cf. Cantrell v. Forest City Publishing Co., 419 U.S. 245, 
250-51 (1974); Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 490 n.19 
(1975).
        \166\Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 491 (1975).
---------------------------------------------------------------------------

        In Cox Broadcasting, the Court declined to pass on the broad 
question, holding instead that the accurate publication of informa

[[Page 1146]]
tion obtained from public records is absolutely privileged. Thus, the 
State could not permit a civil recovery for invasion of privacy 
occasioned by the reporting of the name of a rape victim obtained from 
court records and from a proceeding in open court.\167\ Nevertheless, 
the Court in appearing to retreat from what had seemed to be settled 
principle, that truth is a constitutionally required defense in any 
defamation action, whether plaintiff be a public official, public 
figure, or private individual, may have preserved for itself the 
discretion to recognize a constitutionally permissible tort of invasion 
of privacy through publication of truthful information.\168\ But in 
recognition of the conflicting interests--in expression and in privacy--
it is evident that the judicial process in this area will be cautious.

        \167\More specifically, the information was obtained ``from 
judicial records which are maintained in connection with a public 
prosecution and which themselves are open to public inspection.'' Id. at 
491. There was thus involved both the First Amendment and the 
traditional privilege of the press to report the events of judicial 
proceedings. Id. at 493, 494-96.
        \168\Thus, Justice White for the Court noted that the defense of 
truth is constitutionally required in suits by public officials or 
public figures. But ``[t]he Court has nevertheless carefully left open 
the question whether the First and Fourteenth Amendments require that 
truth be recognized as a defense in a defamatory action brought by a 
private person as distinguished from a public official or public 
figure.'' Id. at 490. If truth is not a constitutionally required 
defense, then it would be possible for the States to make truthful 
defamation of private individuals actionable and, more important, 
truthful reporting of matters that constitute invasions of privacy 
actionable. See Brasco v. Reader's Digest, 4 Cal. 3d 520, 483 P. 2d 34, 
93 Cal. Rptr. 866 (1971); Commonwealth v. Wiseman, 356 Mass. 251, 249 
N.E. 2d 610 (1969), cert. den., 398 U.S. 960 (1970). Concurring in Cohn, 
420 U.S., 497, Justice Powell contended that the question of truth as a 
constitutionally required defense was long settled in the affirmative 
and that Gertz itself, which he wrote, was explainable on no other 
basis. But he too would reserve the question of actionable invasions of 
privacy through truthful reporting. ``In some instances state actions 
that are denominated actions in defamation may in fact seek to protect 
citizens from injuries that are quite different from the wrongful damage 
to reputation flowing from false statements of fact. In such cases, the 
Constitution may permit a different balance. And, as today's opinion 
properly recognizes, causes of action grounded in a State's desire to 
protect privacy generally implicate interests that are distinct from 
those protected by defamation actions.'' Id. at 500.
---------------------------------------------------------------------------

        Continuing to adhere to ``limited principles that sweep no more 
broadly than the appropriate context of the instant case,'' the Court 
invalidated an award of damages against a newspaper for printing the 
name of a sexual assault victim lawfully obtained from a sheriff's 
department press release. The state was unable to demonstrate that 
imposing liability served a ``need'' to further a state interest of the 
highest order, since the same interest could have been served by the 
more limited means of self regulation by the police, since the 
particular per se negligence statute precluded inquiry into the extent 
of privacy invasion (e.g., inquiry into whether the victim's identity 
was already widely known), and since the statute sin

[[Page 1147]]
gled out ``mass communications'' media for liability rather than 
applying evenhandedly to anyone disclosing a victim's identity.\169\

        \169\The Florida Star v. B.J.F., 491 U.S. 524 (1989).
---------------------------------------------------------------------------

        Emotional Distress Tort Actions.--In Hustler Magazine, Inc. v. 
Falwell,\170\ the Court applied the New York Times v. Sullivan standard 
to recovery of damages by public officials and public figures for the 
tort of intentional infliction of emotional distress. The case involved 
an advertisement ``parody'' portraying the plaintiff, described by the 
Court as a ``nationally known minister active as a commentator on 
politics and public affairs,'' as engaged in ``a drunken incestuous 
rendezvous with his mother in an outhouse.''\171\ Affirming liability in 
this case, the Court believed, would subject ``political cartoonists and 
satirists . . .. to damage awards without any showing that their work 
falsely defamed its subject.''\172\ A proffered ``outrageousness'' 
standard for distinguishing such parodies from more traditional 
political cartoons was rejected. While not doubting that ``the 
caricature of respondent . . .. is at best a distant cousin of [some] 
political cartoons . . .. and a rather poor relation at that,'' the 
Court explained that ```[o]utrageousness''' in the area of political and 
social discourse has an inherent subjectiveness about it which would 
allow a jury to impose liability on the basis of the jurors' tastes or 
views.''\173\ Therefore, proof of intent to cause injury, ``the gravamen 
of the tort,'' is insufficient ``in the area of public debate about 
public figures.'' Additional proof that the publication contained a 
false statement of fact made with actual malice was necessary, the Court 
concluded, in order ``to give adequate `breathing space' to the freedoms 
protected by the First Amendment.''\174\

        \170\485 U.S. 46 (1988).
        \171\485 U.S. at 47-48.
        \172\Id. at 53.
        \173\Id. at 55.
        \174\Id. at 52-53.
---------------------------------------------------------------------------

        ``Right of Publicity'' Tort Actions.--In Zacchini v. Scripps-
Howard Broadcasting Co.,\175\ the Court held unprotected by the First 
Amendment a broadcast of a video tape of the ``entire act'' of a ``human 
cannonball'' in the context of the performer's suit for damages against 
the company for having ``appropriated'' his act, thereby injuring his 
right to the publicity value of his performance. The Court emphasized 
two differences between the legal action permitted here and the legal 
actions found unprotected or not fully

[[Page 1148]]
protected in defamation and other privacy-type suits. First, the 
interest sought to be protected was, rather than a party's right to his 
reputation and freedom from mental distress, the right of the performer 
to remuneration for putting on his act. Second, the other torts if 
permitted decreased the information which would be made available to the 
public, whereas permitting this tort action would have an impact only on 
``who gets to do the publishing.''\176\ In both respects, the tort 
action was analogous to patent and copyright laws in that both provide 
an economic incentive to persons to make the investment required to 
produce a performance of interest to the public.\177\

        \175\433 U.S. 562 (1977). The ``right of publicity'' tort is 
conceptually related to one of the privacy strands, ``appropriation'' of 
one's name or likeness for commercial purposes. Id. at 569-72. Justices 
Powell, Brennan, and Marshall dissented, finding the broadcast 
protected, id. at 579, and Justice Stevens dissented on other grounds. 
Id. at 582.
        \176\Id. at 573-74. Plaintiff was not seeking to bar the 
broadcast but rather to be paid for the value he lost through the 
broadcasting.
        \177\Id. at 576-78. This discussion is the closest the Court has 
come in considering how copyright laws in particular are to be 
reconciled with the First Amendment. The Court's emphasis is that they 
encourage the production of work for the public's benefit.
---------------------------------------------------------------------------

        Publication of Legally Confidential Information.--While a State 
may have numerous and important valid interests in assuring the 
confidentiality of certain information, it may not maintain this 
confidentiality through the criminal prosecution of nonparticipant third 
parties, including the press, who disclose or publish the 
information.\178\ The case arose in the context of the investigation of 
a state judge by an official disciplinary body; both by state 
constitutional provision and by statute, the body's proceedings were 
required to be confidential and the statute made the divulging of 
information about the proceeding a misdemeanor. For publishing an 
accurate report about an investigation of a sitting judge, the newspaper 
was indicted and convicted of violating the statute, which the state 
courts construed to apply to nonparticipant divulging. Although the 
Court recognized the importance of confidentiality to the effectiveness 
of such a proceeding, it held that the publication here ``lies near the 
core of the First Amendment'' because the free discussion of public 
affairs, including the operation of the judicial system, is primary and 
the State's interests were simply insufficient to justify the 
encroachment on freedom of speech and of the press.\179\ The scope of 
the privilege thus conferred by this decision on the press and on 
individuals is, however, somewhat unclear, because the Court appeared to 
reserve consideration of broader questions than those presented by the 
facts of the

[[Page 1149]]
case.\180\ It does appear, however, that government would find it 
difficult to punish the publication of almost any information by a 
nonparticipant to the process in which the information was developed to 
the same degree as it would be foreclosed from obtaining prior restraint 
of such publication.\181\ There are also limits on the extent to which 
government may punish disclosures by participants in the criminal 
process, the Court having invalidated a restriction on a grand jury 
witness's disclosure of his own testimony after the grand jury had been 
discharged.\182\

        \178\Landmark Communications v. Virginia, 435 U.S. 829 (1978). 
The decision by Chief Justice Burger was unanimous, Justices Brennan and 
Powell not participating, but Justice Stewart would have limited the 
holding to freedom of the press to publish. Id. at 848. See also Smith 
v. Daily Mail Pub. Co., 433 U.S. 97 (1979).
        \179\Id. at 838-42. The state court's utilization of the clear-
and-present-danger test was disapproved in its application; 
additionally, the Court questioned the relevance of the test in this 
case. Id. at 842-45.
        \180\Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975), in the 
context of a civil proceeding, had held that the First Amendment did not 
permit the imposition of liability on the press for truthful publication 
of information released to the public in official court records, id. at 
496, but had expressly reserved the question ``whether the publication 
of truthful information withheld by law from the public domain is 
similarly privileged,'' id. at 497 n.27, and Landmark on its face 
appears to answer the question affirmatively. Caution is impelled, 
however, by the Court's similar reservation. ``We need not address all 
the implications of that question here, but only whether in the 
circumstances of this case Landmark's publication is protected by the 
First Amendment.'' 435 U.S. at 840.
        \181\See Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976).
        \182\Butterworth v. Smith, 494 U.S. 624 (1990).
---------------------------------------------------------------------------

        Obscenity.--Although public discussion of political affairs is 
at the core of the First Amendment, the guarantees of speech and press, 
it should have been noticed from the previous subsections, are broader. 
``We do not accede to appellee's suggestion that the constitutional 
protection for a free press applies only to the exposition of ideas. The 
line between the informing and the entertaining is too elusive for the 
protection of that basic right.''\1\ The right to impart and to receive 
``information and ideas, regardless of their social worth . . . is 
fundamental to our free society.''\2\ Indeed, it is primarily with 
regard to the entertaining function of expression that the law of 
obscenity is concerned, inasmuch as the Court has rejected any concept 
of ``ideological'' obscenity.\3\ However, this function is not the 
reason why obscenity is outside the protection of the

[[Page 1150]]
First Amendment, although the Court has never really been clear about 
what that reason is.

        \1\Winters v. New York, 333 U.S. 507, 510 (1948). Illustrative 
of the general observation is the fact that ``[m]usic, as a form of 
expression and communication, is protected under the First Amendment.'' 
Ward v. Rock Against Racism, 491 U.S. 781, 790 (1989).
        \2\Stanley v. Georgia, 394 U.S. 557, 564 (1969).
        \3\Winters v. New York, 333 U.S. 507 (1948); Burstyn v. Wilson, 
343 U.S 495 (1952); Commercial Pictures Corp. v. Regents, 346 U.S. 587 
(1954); Kingsley Pictures Corp. v. Regents, 360 U.S. 684 (1959). The 
last case involved the banning of the movie Lady Chatterley's Lover on 
the ground that it dealt too sympathetically with adultery. ``It is 
contended that the State's action was justified because the motion 
picture attractively portrays a relationship which is contrary to the 
moral standards, the religious precepts, and the legal code of its 
citizenry. This argument misconceives what it is that the Constitution 
protects. Its guarantee is not confined to the expression of ideas that 
are conventional or shared by a majority. It protects advocacy of the 
opinion that adultery may sometimes be proper no less than advocacy of 
socialism or the single tax. And in the realm of ideas it protects 
expression which is eloquent no less than that which is unconvincing.'' 
Id. at 688-89.
---------------------------------------------------------------------------

        Adjudication over the constitutional law of obscenity began in 
Roth v. United States,\4\ in which the Court in an opinion by Justice 
Brennan settled in the negative the ``dispositive question'' ``whether 
obscenity is utterance within the area of protected speech and 
press.''\5\ The Court then undertook a brief historical survey to 
demonstrate that ``the unconditional phrasing of the First Amendment was 
not intended to protect every utterance.'' All or practically all of the 
States which ratified the First Amendment had laws making blasphemy or 
profanity or both crimes, and provided for prosecutions of libels as 
well. It was this history which had caused the Court in Beauharnais to 
conclude that ``libelous utterances are not within the area of 
constitutionally protected speech,'' and this history was deemed to 
demonstrate that ``obscenity, too, was outside the protection intended 
for speech and press.''\6\ ``The protection given speech and press was 
fashioned to assure unfettered interchange of ideas for the bringing 
about of political and social changes desired by the people . . . . All 
ideas having even the slightest redeeming social importance--unorthodox 
ideas, controversial ideas, even ideas hateful to the prevailing climate 
of opinion--have the full protection of the guaranties, unless 
excludable because they encroach upon the limited area of more important 
interests. But implicit in the history of the First Amendment is the 
rejection of obscenity as utterly without redeeming social 
importance.''\7\ It was objected that obscenity legislation punishes 
because of incitation to impure thoughts and without proof that obscene 
materials create a clear and present danger of antisocial conduct. But 
since obscenity was not protected at all, such tests as clear and 
present danger were irrelevant.\8\

        \4\354 U.S. 476 (1957). Heard at the same time and decided in 
the same opinion was Alberts v. California, involving, of course, a 
state obscenity law. The Court's first opinion in the obscenity field 
was Butler v. Michigan, 352 U.S. 380 (1957), considered infra, p. 1113 
n.18. Earlier the Court had divided four-to-four and thus affirmed a 
state court judgment that Edmund Wilson's Memoirs of Hecate County was 
obscene. Doubleday & Co. v. New York, 335 U.S. 848 (1948).
        \5\Roth v. United States, 354 U.S. 476, 481 (1957). Justice 
Brennan later changed his mind on this score, arguing that, because the 
Court had failed to develop a workable standard for distinguishing the 
obscene from the non-obscene, regulation should be confined to the 
protection of children and non-consenting adults. See Paris Adult 
Theatre I v. Slaton, 413 U.S. 49, 73 (1973), and discussion infra 
p.1209, n.29.
        \6\354 U.S. at 482-83. The reference is to Beauharnais v. 
Illinois, 343 U.S. 250 (1952).
        \7\Roth v. United States, 354 U.S. 476, 484 (1957). There then 
followed the well-known passage from Chaplinsky v. New Hampshire, 315 
U.S. 568, 571-72 (1942); see supra, p.1133.
        \8\354 U.S. at 486, also quoting Beauharnais v. Illinois, 343 
U.S. 250, 266 (1952).

---------------------------------------------------------------------------

[[Page 1151]]

        ``However,'' Justice Brennan continued, ``sex and obscenity are 
not synonymous. Obscene material is material which deals with sex in a 
manner appealing to prurient interest. The portrayal of sex, e.g., in 
art, literature and scientific works, is not itself sufficient reason to 
deny material the constitutional protection of freedom of speech and 
press . . . . It is therefore vital that the standards for judging 
obscenity safeguard the protection of freedom of speech and press for 
material which does not treat sex in a manner appealing to prurient 
interest.''\9\ The standard which the Court thereupon adopted for the 
designation of material as unprotected obscenity was ``whether to the 
average person, applying contemporary community standards, the dominant 
theme of the material taken as a whole appeals to prurient 
interest.''\10\ The Court defined material appealing to prurient 
interest as ``material having a tendency to excite lustful thoughts,'' 
and defined prurient interest as ``a shameful or morbid interest in 
nudity, sex, or excretion.''\11\

        \9\354 U.S. at 487, 488.
        \10\Id. at 489.
        \11\Id. at 487 n.20. A statute defining ``prurient'' as ``that 
which incites lasciviousness or lust'' covers more than obscenity, the 
Court later indicated in Brockett v. Spokane Arcades, Inc., 472 U.S. 
491, 498 (1984); obscenity consists in appeal to ``a shameful or 
morbid'' interest in sex, not in appeal to ``normal, healthy sexual 
desires.'' Brockett involved a facial challenge to the statute, so the 
Court did not have to explain the difference between ``normal, healthy'' 
sexual desires and ``shameful'' or ``morbid'' sexual desires.
---------------------------------------------------------------------------

        In the years after Roth, the Court struggled with many obscenity 
cases with varying degrees of success. The cases can be grouped 
topically, but with the exception of those cases dealing with protec

[[Page 1152]]
tion of children,\12\ unwilling adult recipients,\13\and procedure,\14\ 
these cases are best explicated chronologically.

        \12\In Butler v. Michigan, 352 U.S. 380 (1957), the Court 
unanimously reversed a conviction under a statute which punished general 
distribution of materials unsuitable for children. Protesting that the 
statute ``reduce[d] the adult population of Michigan to reading only 
what is fit for children,'' the Court pronounced the statute void. 
Narrowly drawn proscriptions for distribution or exhibition to children 
of materials which would not be obscene for adults are permissible, 
Ginsberg v. New York, 390 U.S. 629 (1968), although the Court insists on 
a high degree of specificity. Interstate Circuit, Inc. v. City of 
Dallas, 390 U.S. 676 (1968); Rabeck v. New York, 391 U.S. 462 (1968). 
Protection of children in this context is concurred in even by those 
Justices who would proscribe obscenity regulation for adults. Paris 
Adult Theatre I v. Slaton, 413 U.S. 49, 73, 113 (1973) (Justice Brennan 
dissenting). But children do have First Amendment protection and 
government may not bar dissemination of everything to them. ``Speech 
that is neither obscene as to youths nor subject to some other 
legitimate proscription cannot be suppressed solely to protect the young 
from ideas or images that a legislative body thinks unsuitable for 
them.'' Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-14 (1975) 
(in context of nudity on movie screen). See also FCC v. Pacifica Found., 
438 U.S. 726, 749-50 (1978); Pinkus v. United States, 436 U.S. 293, 296-
98 (1978).
        \13\Protection of unwilling adults was the emphasis in Rowan v. 
Post Office Dep't, 397 U.S. 728 (1970), which upheld a scheme by which 
recipients of objectionable mail could put their names on a list and 
require the mailer to send no more such material. But, absent intrusions 
into the home, FCC v. Pacifica Found., 438 U.S. 726 (1978), or a degree 
of captivity that makes it impractical for the unwilling viewer or 
auditor to avoid exposure, government may not censor content, in the 
context of materials not meeting constitutional standards for 
denomination as pornography, to protect the sensibilities of some. It is 
up to offended individuals to turn away. Erznoznik v. City of 
Jacksonville, 422 U.S. 205, 208-12 (1975). But see Pinkus v. United 
States, 436 U.S. 293, 298-301 (1978) (jury in passing on what community 
standards are must include ``sensitive persons'' within the community).
        \14\The First Amendment requires that procedures for suppressing 
distribution of obscene materials provide for expedited consideration, 
for placing the burden of proof on government, and for hastening 
judicial review. Supra, p.1033. Additionally, Fourth Amendment search 
and seizure law has been suffused with First Amendment principles, so 
that the law governing searches for and seizures of allegedly obscene 
materials is more stringent than in most other areas. Marcus v. Search 
Warrant, 367 U.S. 717 (1961); A Quantity of Books v. Kansas, 378 U.S. 
205 (1964); Heller v. New York, 413 U.S. 483 (1973); Roaden v. Kentucky, 
413 U.S. 496 (1973); Lo-Ji Sales v. New York, 442 U.S. 319 (1979); and 
see Walter v. United States, 447 U.S. 649 (1980). Scienter--that is, 
knowledge of the nature of the materials--is a prerequisite to 
conviction, Smith v. California, 361 U.S. 147 (1959), but the 
prosecution need only prove the defendant knew the contents of the 
material, not that he knew they were legally obscene. Hamling v. United 
States, 418 U.S. 87, 119-24 (1974). See also Vance v. Universal 
Amusement Co., 445 U.S. 308 (1980) (public nuisance injunction of 
showing future films on basis of past exhibition of obscene films 
constitutes prior restraint); McKinney v. Alabama, 424 U.S. 669 (1976) 
(criminal defendants may not be bound by a finding of obscenity of 
materials in prior civil proceeding to which they were not parties).
---------------------------------------------------------------------------

        Manual Enterprises v. Day\15\ upset a Post Office ban upon the 
mailing of certain magazines addressed to homosexual audiences, but 
resulted in no majority opinion of the Court. Nor did a majority opinion 
emerge in Jacobellis v. Ohio, in which conviction for exhib

[[Page 1153]]
iting a motion picture was reversed.\16\ Chief Justice Warren's 
concurrence in Roth\17\ was adopted by a majority in Ginzburg v. United 
States,\18\ in which Justice Brennan for the Court held that in 
``close'' cases borderline materials could be determined to be obscene 
if the seller ``pandered'' them in a way that indicated he was catering 
to prurient interests. The same five-Justice majority, with Justice 
Harlan concurring, the same day affirmed a state conviction of a 
distributor of books addressed to a sado-masochistic audience, applying 
the ``pandering'' test and concluding that material could be held 
legally obscene if it appealed to the prurient interests of the deviate 
group to which it was directed.\19\ Unanimity was shattered, however, 
when on the same day the Court held that Fanny Hill, a novel at that 
point 277 years old, was not legally obscene.\20\ The prevailing opinion 
again restated the Roth tests that, to be considered obscene, material 
must (1) have a dominant theme in the work considered as a whole that 
appeals to prurient interest, (2) be patently offensive because it goes 
beyond contemporary community standards, and (3) be utterly without 
redeeming social value.\21\

        \15\370 U.S. 478 (1962).
        \16\378 U.S. 184 (1964). Without opinion, citing Jacobellis, the 
Court reversed a judgment that Henry Miller's Tropic of Cancer was 
obscene. Grove Press v. Gerstein, 378 U.S. 577 (1964). Jacobellis is 
best known for Justice Stewart's concurrence, contending that criminal 
prohibitions should be limited to ``hard-core pornography.'' The 
category ``may be indefinable,'' he added, but ``I know it when I see 
it, and the motion picture involved in this case is not that.'' Id. at 
197. The difficulty with this visceral test is that other members of the 
Court did not always ``see it'' the same way; two years later, for 
example, Justice Stewart was on opposite sides in two obscenity 
decisions decided on the same day. A Book Named ``John Cleland's Memoirs 
of a Woman of Pleasure'' v. Attorney General of Massachusetts, 383 U.S. 
413, 421 (1966) (concurring on basis that book was not obscene); Mishkin 
v. New York, 383 U.S. 502, 518 (1966) (dissenting from finding that 
material was obscene).
        \17\Roth v. United States, 354 U.S. 476, 494 (1957).
        \18\383 U.S. 463 (1966). Pandering remains relevant in 
pornography cases. Splawn v. California, 431 U.S. 595 (1977); Pinkus v. 
United States, 436 U.S. 293, 303-04 (1978).
        \19\Mishkin v. New York, 383 U.S. 502 (1966). See id. at 507-10 
for discussion of the legal issue raised by the limited appeal of the 
material. The Court relied on Mishkin in Ward v. Illinois, 431 U.S. 767, 
772 (1977).
        \20\A Book Named ``John Cleland's Memoirs of a Woman of 
Pleasure'' v. Attorney General of Massachusetts, 383 U.S. 413 (1966).
        \21\Id. at 418. On the precedential effect of the Memoirs 
plurality opinion, see Marks v. United States, 430 U.S. 188, 192-94 
(1977).
---------------------------------------------------------------------------

        After the divisions engendered by the disparate opinions in the 
three 1966 cases, the Court over the next several years submerged its 
differences by per curiam dispositions of nearly three dozen cases, in 
all but one of which it reversed convictions or civil determinations of 
obscenity. The initial case was Redrup v. New York,\22\ in which, after 
noting that the cases involved did not present special questions 
requiring other treatment, such as concern for juve

[[Page 1154]]
niles, protection of unwilling adult recipients, or proscription of 
pandering,\23\ the Court succinctly summarized the varying positions of 
the seven Justices in the majority and said: ``[w]hichever of the 
constitutional views is brought to bear upon the cases before us, it is 
clear that the judgments cannot stand . . . .''\24\ And so things went 
for several years.\25\

        \22\386 U.S. 767 (1967).
        \23\Id. at 771.
        \24\Id. at 770-71. The majority was thus composed of Chief 
Justice Warren and Justices Black, Douglas, Brennan, Stewart, White, and 
Fortas.
        \25\See Paris Adult Theatre I v. Slaton, 413 U.S. 49, 82-83 & 
n.8 (1973) (Justice Brennan dissenting) (describing Redrup practice and 
listing 31 cases decided on the basis of it).
---------------------------------------------------------------------------

        Changing membership on the Court raised increasing speculation 
about the continuing vitality of Roth; it seemed unlikely the Court 
would long continue its Redrup approach.\26\ The change when it occurred 
strengthened the powers of government, federal, state, and local, to 
outlaw or restrictively regulate the sale and dissemination of materials 
found objectionable, and developed new standards for determining which 
objectionable materials are legally obscene.

        \26\See United States v. Reidel, 402 U.S. 351 (1971) (federal 
prohibition of dissemination of obscene materials through the mails is 
constitutional); United States v. Thirty-Seven Photographs, 402 U.S. 363 
(1971) (customs seizures of obscene materials from baggage of travelers 
are constitutional). In Grove Press v. Maryland State Board of Censors, 
401 U.S. 480 (1971), a state court determination that the motion picture 
``I Am Curious (Yellow)'' was obscene was affirmed by an equally divided 
Court, Justice Douglas not participating. And Stanley v. Georgia, 394 
U.S. 557, 560-64, 568 (1969), had insisted that Roth remained the 
governing standard.
---------------------------------------------------------------------------

        At the end of the October 1971 Term, the Court requested 
argument on the question whether the display of sexually oriented films 
or of sexually oriented pictorial magazines, when surrounded by notice 
to the public of their nature and by reasonable protection against 
exposure to juveniles, was constitutionally protected.\27\ By a five-to-
four vote the following Term, the Court in Paris Adult Theatre I v. 
Slaton adhered to the principle established in Roth that obscene 
material is not protected by the First and Fourteenth Amendments even if 
access is limited to consenting adults.\28\ Chief Justice Burger for the 
Court observed that the States have wider interests than protecting 
juveniles and unwilling adults from exposure to pornography; legitimate 
state interests, effectuated through the exercise of the police power, 
exist in protecting and improving the quality of life and the total 
community environment, in improving the tone of commerce in the cities, 
and in protecting public safety. It matters not that the States may be 
acting on the basis

[[Page 1155]]
of unverifiable assumptions in arriving at the decision to suppress the 
trade in pornography; the Constitution does not require in the context 
of the trade in ideas that governmental courses of action be subject to 
empirical verification any more than it does in other fields. Nor does 
the Constitution embody any concept of laissez faire, or of privacy, or 
of Millsean ``free will,'' that curbs governmental efforts to suppress 
pornography.\29\

        \27\Paris Adult Theatre I v. Slaton, 408 U.S. 921 (1972); 
Alexander v. Virginia, 408 U.S. 921 (1972).
        \28\413 U.S. 49 (1973).
        \29\Id. at 57, 60-62, 63-64, 65-68. Delivering the principal 
dissent, Justice Brennan argued that the Court's Roth approach allowing 
the suppression of pornography was a failure, that the Court had not and 
could not formulate standards by which protected materials could be 
distinguished from unprotected materials, and that the First Amendment 
had been denigrated through the exposure of numerous persons to 
punishment for the dissemination of materials that fell close to one 
side of the line rather than the other, but more basically by deterrence 
of protected expression caused by the uncertainty. Id. at 73. ``I would 
hold, therefore, that at least in the absence of distribution to 
juveniles or obtrusive exposure to unconsenting adults, the First and 
Fourteenth Amendments prohibit the State and Federal Governments from 
attempting wholly to suppress sexually oriented materials on the basis 
of their allegedly `obscene' contents.'' Id. at 113. Justices Stewart 
and Marshall joined this opinion; Justice Douglas dissented separately, 
adhering to the view that the First Amendment absolutely protected all 
expression. Id. at 70.
---------------------------------------------------------------------------

        In Miller v. California,\30\ the Court then undertook to 
enunciate standards by which unprotected pornographic materials were to 
be identified. Because of the inherent dangers in undertaking to 
regulate any form of expression, laws to regulate pornography must be 
carefully limited; their scope is to be confined ``to works which depict 
or describe sexual conduct.'' That conduct must be specifically defined 
by the applicable statute, whether as written or as authoritatively 
construed by the courts.\31\ The law ``must also be limited to works 
which, taken as a whole, appeal to the prurient interest in sex, which 
portray sexual conduct in a patently offensive way, and which, taken as 
a whole, do not have serious literary, artistic, political, or 
scientific value.''\32\ The standard that a work must be ``utterly 
without redeeming social value'' before it may be suppressed was 
disavowed and discarded. In determining whether material appeals to a 
prurient interest or is patently offensive, the

[[Page 1156]]
trier of fact, whether a judge or a jury, is not bound by a hypothetical 
national standard but may apply the local community standard where the 
trier of fact sits.\33\ Prurient interest and patent offensiveness, the 
Court indicated, ``are essentially questions of fact.''\34\ By contrast, 
the third or ``value'' prong of the Miller test is not subject to a 
community standards test; instead, the appropriate standard is ``whether 
a reasonable person would find [literary, artistic, political, or 
scientific] value in the material, taken as a whole.''\35\ The Court in 
Miller reiterated that it was not permitting an unlimited degree of 
suppression of materials. Only ``hard core'' materials were to be deemed 
without the protection of the First Amendment; its idea of the content 
of ``hard core'' pornography was revealed in its example of the types of 
conduct that could not be portrayed: ``(a) Patently offensive 
representations or descriptions of ultimate sexual acts, normal or 
perverted, actual or simulated. (b) Patently offensive representations 
or descriptions of masturbation, excretory functions, and lewd 
exhibition of the genitals.''\36\ Portrayal need not be limited to 
pictorial representation; books containing only descriptive language, no 
pictures, were subject to suppression under the standards.\37\

        \30\413 U.S. 15 (1973).
        \31\Miller v. California, 413 U.S. 15, 24 (1973). The Court 
stands ready to import into the general phrasings of federal statutes 
the standards it has now formulated. United States v. 12 200-Ft. Reels 
of Film, 413 U.S. 123, 130 n.7 (1973) (Court is prepared to construe 
statutes proscribing materials that are ``obscene,'' ``lewd,'' 
``lascivious,'' ``filthy,'' ``indecent,'' and ``immoral'' as limited to 
the types of ``hard core'' pornography reachable under the Miller 
standards). For other cases applying Miller standards to federal 
statutes, see Hamling v. United States, 418 U.S. 87, 110-16 (1974) (use 
of the mails); United States v. Orito, 413 U.S. 139 (1973) 
(transportation of pornography in interstate commerce). The Court's 
insistence on specificity in state statutes, either as written by the 
legislature or as authoritatively construed by the state court, appears 
to have been significantly weakened, in fact if not in enunciation, in 
Ward v. Illinois, 431 U.S. 767 (1977).
        \32\Miller v. California, 413 U.S. at 24.
        \33\It is the unprotected nature of obscenity that allows this 
inquiry; offensiveness to local community standards is, of course, a 
principle completely at odds with mainstream First Amendment 
jurisprudence. See, e.g., Texas v. Johnson, 491 U.S. 397 (1989); R. A. 
V. v. City of St. Paul, 112 S. Ct. 2538 (1992).
        \34\Id. at 30-34. ``A juror is entitled to draw on his knowledge 
of the views of the average person in the community or vicinage from 
which he comes for making the required determination, just as he is 
entitled to draw on his knowledge of the propensities of a `reasonable' 
person in other areas of the law.'' Hamling v. United States, 418 U.S. 
87, 104 (1974). The holding does not compel any particular circumscribed 
area to be used as a ``community.'' In federal cases, it will probably 
be the judicial district from which the jurors are drawn, Id. at 105-
106. Indeed, the jurors may be instructed to apply ``community 
standards'' without any definition being given of the ``community.'' 
Jenkins v. Georgia, 418 U.S. 153, 157 (1974). In a federal prosecution 
for use of the mails to transmit pornography, the fact that the 
legislature of the State within which the transaction takes place has 
abolished pornography regulation except for dealings with children does 
not preclude permitting the jurors in the federal case to make their own 
definitions of what is offensive to contemporary community standards; 
they may be told of the legislature's decision but they are not bound by 
it. Smith v. United States, 431 U.S. 291 (1977).
        \35\Pope v. Illinois, 481 U.S. 497, 500-01 (1987).
        \36\Miller v. California, 413 U.S. 15, 25-28 (1973). Quoting 
Miller's language in Hamling v. United States, 418 U.S. 87, 114 (1974), 
the Court reiterated that it was only ``hard-core'' material that was 
unprotected. ``While the particular descriptions there contained were 
not intended to be exhaustive, they clearly indicate that there is a 
limit beyond which neither legislative draftsmen nor juries may go in 
concluding that particular material is `patently offensive' within the 
meaning of the obscenity test set forth in the Miller cases.'' Referring 
to this language in Ward v. Illinois, 431 U.S. 767 (1977), the Court 
upheld a state court's power to construe its statute to reach 
sadomasochistic materials not within the confines of the Miller 
language.
        \37\Kaplan v. California, 413 U.S. 115 (1973).
        
---------------------------------------------------------------------------

[[Page 1157]]

        First Amendment values, the Court stressed in Miller, ``are 
adequately protected by the ultimate power of appellate courts to 
conduct an independent review of constitutional claims when 
necessary.''\38\ But the Court had conferred on juries as triers of fact 
the determination, based upon their understanding of community 
standards, whether material was ``patently offensive.'' Did not this 
virtually immunize these questions from appellate review? In Jenkins v. 
Georgia,\39\ the Court, while adhering to the Miller standards, stated 
that ``juries [do not] have unbridled discretion in determining what is 
`patently offensive.''' Miller was intended to make clear that only 
``hard-core'' materials could be suppressed and this concept and the 
Court's descriptive itemization of some types of hardcore materials were 
``intended to fix substantive constitutional limitations, deriving from 
the First Amendment, on the type of material subject to such a 
determination.'' The Court's own viewing of the motion picture in 
question convinced it that ``[n]othing in the movie falls within either 
of the two examples given in Miller of material which may 
constitutionally be found to meet the `patently offensive' element of 
those standards, nor is there anything sufficiently similar to such 
material to justify similar treatment.''\40\ But in a companion case, 
the Court found that a jury determination of obscenity ``was supported 
by the evidence and consistent with'' the standards.\41\

        \38\413 U.S. at 25.
        \39\418 U.S. 153 (1974).
        \40\Id. at 161. The film at issue was Carnal Knowledge.
        \41\Hamling v. United States, 418 U.S. 87 (1974). In Smith v. 
United States, 431 U.S. 291, 305-06 (1977), the Court explained that 
jury determinations in accordance with their own understanding of the 
tolerance of the average person in their community are not unreviewable. 
Judicial review would pass on (1) whether the jury was properly 
instructed to consider the entire community and not simply the members' 
own subjective reaction or the reactions of a sensitive or of a callous 
minority, (2) whether the conduct depicted fell within the examples 
specified in Miller, (3) whether the work lacked serious literary, 
artistic, political, or scientific value, and (4) whether the evidence 
was sufficient. The Court indicated that the value test of Miller ``was 
particularly amenable to judicial review.'' The value test is not to be 
measured by community standards, the Court later held in Pope v. 
Illinois, 481 U.S. 497 (1987), but instead by a ``reasonable person'' 
standard. An erroneous instruction on this score, however, may be 
``harmless error.'' Id. at 503.
---------------------------------------------------------------------------

        The decisions from the Paris Adult Theatre and Miller era were 
rendered by narrow majorities,\42\ but nonetheless have guided the Court 
since. There is no indication that the dissenting viewpoints in those 
cases will gain ascendancy in the foreseeable future;\43\ if anything, 
government authority to define and regulate

[[Page 1158]]
obscenity may be strengthened. Also, the Court's willingness to allow 
substantial regulation of non-obscene but sexually explicit or indecent 
expression reduces the importance (outside the criminal area) of whether 
material is classified as obscene.

        \42\For other five-to-four decisions of the era, see Marks v. 
United States, 430 U.S. 188 (1977); Smith v. United States, 431 U.S. 291 
(1977); Splawn v. California, 431 U.S. 595 (1977); and Ward v. Illinois, 
431 U.S. 767 (1977).
        \43\None of the dissenters in Miller and Paris Adult Theatre 
(Douglas, Brennan, Stewart, and Marshall) remain on the Court. Justice 
Stevens agrees with Justice Brennan that ``government may not 
constitutionally criminalize mere possession or sale of obscene 
literature, absent some connection to minors or obtrusive display to 
unconsenting adults,'' Pope v. Illinois, 481 U.S. 497, 513 (Stevens, J., 
dissenting), but it is doubtful whether any other members of the current 
Court share this view. Justice White's dissenting opinion in Barnes v. 
Glen Theatre, Inc., 111 S. Ct. 2456, 2472 (1991), joined by Justice 
Blackmun and the now-retired Justice Marshall, seems to reflect similar 
views with respect to regulation of non-obscene nude dancing, but does 
not address regulation of obscenity. Both Justice White and Justice 
Blackmun voted with the majority in Miller and Paris Adult Theatre.
---------------------------------------------------------------------------

        Even as to materials falling within the constitutional 
definition of obscene, the Court has recognized a limited private, 
protected interest in possession within the home,\44\ unless those 
materials constitute child pornography. Stanley v. Georgia was an appeal 
from a state conviction for possession of obscene films discovered in 
appellant's home by police officers armed with a search warrant for 
other items which were not found. Unanimously,\45\ the Court reversed, 
holding that the mere private possession of obscene materials in the 
home cannot be made a criminal offense. The Constitution protects the 
right to receive information and ideas, the Court said, regardless of 
their social value, and ``that right takes on an added dimension'' in 
the context of a prosecution for possession of something in one's own 
home. ``For also fundamental is the right to be free, except in very 
limited circumstances, from unwanted governmental intrusions into one's 
privacy.''\46\ Despite the unqualified assertion in Roth that obscenity 
was not protected by the First Amendment, the Court observed, it and the 
cases following were concerned with the governmental interest in 
regulating commercial distribution of obscene materials.'' Roth and the 
cases following that decision are not impaired by today's decision,'' 
the Court insisted,\47\ but in its rejection of each of the state 
contentions made in support of the conviction the Court appeared to be 
rejecting much of the basis of Roth. First, there is no governmental 
interest in protecting an individual's mind from the effect of 
obscenity. Second, the absence of ideological content in the films was 
irrelevant, since the Court will not draw a line between transmission of 
ideas

[[Page 1159]]
and entertainment. Third, there is no empirical evidence to support a 
contention that exposure to obscene materials may incite a person to 
antisocial conduct; even if there were such evidence, enforcement of 
laws proscribing the offensive conduct is the answer. Fourth, punishment 
of mere possession is not necessary to punishment of distribution. 
Fifth, there was little danger that private possession would give rise 
to the objections underlying a proscription upon public dissemination, 
exposure to children and unwilling adults.\48\

        \44\Stanley v. Georgia, 394 U.S. 557 (1969).
        \45\Justice Marshall wrote the opinion of the Court and was 
joined by Justices Douglas, Harlan, and Fortas, and Chief Justice 
Warren. Justice Black concurred. Id. at 568. Justice Stewart concurred 
and was joined by Justices Brennan and White on a search and seizure 
point. Justice Stewart, however, had urged the First Amendment ground in 
an earlier case. Mapp v. Ohio, 367 U.S. 643, 686 (1961) (concurring 
opinion).
        \46\394 U.S. at 564.
        \47\Id. at 560-64, 568.
        \48\Id. at 565-68.
---------------------------------------------------------------------------

        Stanley's broad rationale has been given a restrictive reading, 
and the holding has been confined to its facts. Any possible implication 
that Stanley was applicable outside the home and recognized a right to 
obtain pornography or a right in someone to supply it was soon 
dispelled.\49\ The Court has consistently rejected Stanley's theoretical 
underpinnings, upholding morality-based regulation of the behavior of 
consenting adults.\50\ Also, Stanley has been held inapplicable to 
possession of child pornography in the home, the Court determining that 
the state interest in protecting children from sexual exploitation far 
exceeds the interest in Stanley of protecting adults from 
themselves.\51\ Apparently for this reason, a state's conclusion that 
punishment of mere possession is a necessary or desirable means of 
reducing production of child pornography will not be closely 
scrutinized.\52\

        \49\Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-68 (1973). 
Transportation of unprotected material for private use may be 
prohibited, United States v. Orito, 413 U.S. 139 (1973), and the mails 
may be closed, United States v. Reidel, 402 U.S. 351 (1971), as may 
channels of international movement, United States v. Thirty-Seven 
Photographs, 402 U.S. 363 (1971); United States v. 12 200-Ft. Reels of 
Film, 413 U.S. 123 (1973).
        \50\Paris Adult Theatre I v. Slaton, 413 U.S. 49, 65-70 (1973) 
(commercial showing of obscene films to consenting adults); Bowers v. 
Hardwick, 478 U.S. 186 (1986) (private, consensual, homosexual conduct); 
Barnes v. Glen Theatre, Inc., 111 S. Ct. 2456 (1991) (regulation of non-
obscene, nude dancing restricted to adults).
        \51\Osborne v. Ohio, 495 U.S. 103 (1990).
        \52\Id. at 109-10.
---------------------------------------------------------------------------

        Child Pornography.--In New York v. Ferber,\53\ the Court 
recognized another category of expression that is outside the coverage 
of the First Amendment, the pictorial representation of children in 
films or still photographs in a variety of sexual activities or 
exposures of the genitals. The basic reason such depictions could be 
prohibited was the governmental interest in protecting the physical

[[Page 1160]]
and psychological well-being of children whose participation in the 
production of these materials would subject them to exploitation and 
harm. The state may go beyond a mere prohibition on the use of the 
children, because it is not possible to protect children adequately 
without prohibiting the exhibition and dissemination of the materials 
and advertising about them. Thus, ``the evil to be restricted so 
overwhelmingly outweighs the expressive interests, if any, at stake, 
that no process of case-by-case adjudication is required.''\54\ But, 
since expression is involved, government must carefully define what 
conduct is to be prohibited and may reach only ``works that visually 
depict sexual conduct by children below a specified age.''\55\

        \53\458 U.S. 747 (1982). Decision of the Court was unanimous, 
although there were several limiting concurrences. Compare, e.g., 775 
(Justice Brennan, arguing for exemption of ``material with serious 
literary, scientific, or educational value''), with 774 (Justice 
O'Connor, arguing that such material need not be excepted). The Court 
did not pass on the question, inasmuch as the materials before it were 
well within the prohibitable category. Id. at 766-74.
        \54\Id. at 763-64.
        \55\Id. at 764 (emphasis original). The Court's statement of the 
modified Miller standards for child pornography is at id., 764-65.
---------------------------------------------------------------------------

        The reach of the state may even extend to private possession of 
child pornography in the home. In Osborne v. Ohio\56\ the Court upheld a 
state law criminalizing the possession or viewing of child pornography 
as applied to someone who possessed such materials in his home. 
Distinguishing Stanley v. Georgia, the Court ruled that Ohio's interest 
in preventing exploitation of children far exceeded what it 
characterized as Georgia's ``paternalistic interest'' in protecting the 
minds of adult viewers of pornography.\57\ Because of the greater 
importance of the state interest involved, the Court saw less need to 
require states to demonstrate a strong necessity for regulating private 
possession as well as commercial distribution and sale.

        \56\495 U.S. 103 (1990).
        \57\Id. at 108.
---------------------------------------------------------------------------

        Non-obscene But Sexually Explicit and Indecent Expression.--
There is expression, either spoken or portrayed, which is offensive to 
some but is not within the constitutional standards of unprotected 
obscenity. Nudity portrayed in films or stills cannot be presumed 
obscene\58\ nor can offensive language ordinarily be punished simply 
because it offends someone.\59\ Nonetheless, govern

[[Page 1161]]
ment may regulate sexually explicit but non-obscene expression in a 
variety of ways. Legitimate governmental interests may be furthered by 
appropriately narrow regulation, and the Court's view of how narrow 
regulation must be is apparently influenced not only by its view of the 
strength of the government's interest in regulation, but also by its 
view of the importance of the expression itself. In other words, 
sexually explicit expression does not receive the same degree of 
protection afforded purely political speech.\60\

        \58\Erznoznik v. City of Jacksonville, 422 U.S. 205, 212-14 
(1975).
        \59\E.g., Cohen v. California, 403 U.S. 15 (1971). Special rules 
apply to broadcast speech, which, because of its intrusion into the home 
and the difficulties of protecting children, is accorded ``the most 
limited First Amendment protection'' of all forms of communication; non-
obscene but indecent language may be curtailed, the time of day and 
other circumstances determining the extent of curtailment. FCC v. 
Pacifica Found., 438 U.S. 726, 748 (1978). However, recent efforts by 
Congress and the FCC to extend the indecency ban to 24 hours a day have 
been rebuffed by an appeals court. Action for Children's Television v. 
FCC, 932 F.2d 1504 (D.C. Cir. 1991) (invalidating regulations 
promulgated pursuant to Pub. L. No. 100-459, Sec. 608), cert. denied, 
112 S. Ct. 1281, 1282. Earlier, the same court had invalidated an FCC 
restriction on indecent, non-obscene broadcasts to the hours of midnight 
to 6 a.m., finding that the FCC had failed to adduce sufficient evidence 
to support the restraint. Action for Children's Television v. FCC, 852 
F.2d 1332, 1335 (D.C. Cir. 1988). Congress has now imposed a similar 6 
a.m.-to-midnight ban on indecent programming, with a 10 p.m.-to-midnight 
exception for stations that go off the air at midnight. Pub. L. 102-356, 
Sec. 16 (1992), 47 U.S.C. Sec. 303 note.
        \60\Justice Scalia, concurring in Sable Communications v. FCC, 
492 U.S. 115, 132 (1989), suggested that there should be a ``sliding 
scale'' taking into account the definition of obscenity: ``[t]he more 
narrow the understanding of what is `obscene,' and hence the more 
pornographic what is embraced within the residual category of 
`indecency,' the more reasonable it becomes to insist upon greater 
assurance of insulation from minors.'' Barnes v. Glen Theatre, 111 S. 
Ct. 2456 (1991), upholding regulation of nude dancing even in the 
absence of threat to minors, may illustrate a general willingness by the 
Court to apply soft rather than strict scrutiny to regulation of more 
sexually explicit expression.
---------------------------------------------------------------------------

        Government has a ``compelling'' interest in the protection of 
children from seeing or hearing indecent material, but total bans 
applicable to adults and children alike are constitutionally 
suspect.\61\ Also, government may take notice of objective conditions 
attributable to the commercialization of sexually explicit but non-
obscene materials. Thus, the Court recognized a municipality's authority 
to zone land to prevent deterioration of urban areas, upholding an 
ordinance providing that ``adult theaters'' showing motion pictures that 
depicted ``specified sexual activities'' or ``specified anatomical 
areas'' could not be located within 100 feet of any two other 
establishments included within the ordinance or within 500 feet of a 
residential area.\62\ Similarly, an adult bookstore is subject

[[Page 1162]]
to closure as a public nuisance if it is being used as a place for 
prostitution and illegal sexual activities, since the closure ``was 
directed at unlawful conduct having nothing to do with books or other 
expressive activity.''\63\ However, a city was held constitutionally 
powerless to prohibit drive-in motion picture theaters from showing 
films containing nudity if the screen is visible from a public street or 
place.\64\ Also, the FCC was unable to justify a ban on transmission of 
``indecent'' but not obscene telephone messages.\65\

        \61\See Sable Communications v. FCC, 492 U.S. 115 (1989) (FCC's 
``dial-a-porn'' rules imposing a total ban on ``indecent'' speech are 
unconstitutional, given less restrictive alternatives--e.g., credit 
cards or user IDs--of preventing access by children). Pacifica 
Foundation is distinguishable, the Court reasoned, because that case did 
not involve a ``total ban'' on broadcast, and also because there is no 
``captive audience'' for the ``dial-it'' medium, as there is for the 
broadcast medium. 492 U.S. at 127-28.
        \62\Young v. American Mini Theatres, 427 U.S. 50 (1976). Four of 
the five majority Justices thought the speech involved deserved less 
First Amendment protection than other expression, id. at 63-71, while 
Justice Powell, concurring, thought the ordinance was sustainable as a 
measure that served valid governmental interests and only incidentally 
affected expression. Id. at 73. Justices Stewart, Brennan, Marshall, and 
Blackmun dissented. Id. at 84, 88. Young was followed in City of Renton 
v. Playtime Theatres, 475 U.S. 41 (1986), upholding a city ordinance 
prohibiting location of adult theaters within 1,000 feet of residential 
areas, churches, or parks, and within one mile of any school. Rejecting 
the claim that the ordinance regulated content of speech, the Court 
indicated that such time, place and manner regulations are valid if 
``designed to serve a substantial governmental interest'' and if 
``allow[ing] for reasonable alternative avenues of communication.'' Id. 
at 39. The city had a substantial interest in regulating the 
``undesirable secondary effects'' of such businesses. And, while the 
suitability for adult theaters of the remaining 520 acres within the 
city was disputed, the Court held that the theaters ``must fend for 
themselves in the real estate market,'' and are entitled only to ``a 
reasonable opportunity to open and operate.'' Id. at 42.
        \63\Arcara v. Cloud Books, 478 U.S. 697 (1986).
        \64\Erznoznik v. City of Jacksonville, 422 U.S. 204 (1975). 
Dissenting from Justice Powell's opinion for the Court were Chief 
Justice Burger and Justices White and Rehnquist. Id. at 218, 224. Only 
Justice Blackmun, of the Justices in the majority, remains on the Court 
in 1992, and it seems questionable whether the current Court would reach 
the same result.
        \65\Sable Communications of California v. FCC, 492 U.S. 115 
(1989).
---------------------------------------------------------------------------

        The Court has recently held, however, that ``live'' productions 
containing nudity can be regulated to a greater extent than had been 
allowed for films and publications. Whether this represents a 
distinction between live performances and other entertainment media, or 
whether instead it signals a more permissive approach overall to 
governmental regulation of non-obscene but sexually explicit material, 
remains to be seen. In Barnes v. Glen Theatre, Inc.,\66\ the Court 
upheld application of Indiana's public indecency statute to require that 
dancers in public performances of nude, non-obscene erotic dancing wear 
``pasties'' and a ``G-string'' rather than appear totally nude. There 
was no opinion of the Court, three Justices viewing the statute as a 
permissible regulation of ``societal order and morality,''\67\ one 
viewing it as a permissible means of regulating supposed secondary 
effects of prostitution and other criminal activity,\68\ and a fifth 
Justice seeing no need for special First Amendment protection from a law 
of general applicability directed at conduct rather than expression.\69\ 
All but one of the Justices agreed that nude dancing is entitled to some 
First Amendment protection,\70\ but the result of Barnes was a bare 
minimum

[[Page 1163]]
of protection. Numerous questions remain unanswered. In addition to the 
uncertainty over applicability of Barnes to regulation of the content of 
films or other shows in ``adult'' theaters,\71\ there is also the issue 
of its applicability to nudity in operas or theatrical productions not 
normally associated with commercial exploitation of sex.\72\ But broad 
implications for First Amendment doctrine are probably unwarranted.\73\ 
The Indiana statute was not limited in application to barrooms; had it 
been, then the Twenty-first Amendment would have afforded additional 
authority to regulate the erotic dancing.\74\

        \66\111 S. Ct. 2456 (1991).
        \67\Id. (Chief Justice Rehnquist, joined by Justices O'Connor 
and Kennedy).
        \68\Id. at 2468 (Justice Souter).
        \69\Id. at 2463 (Justice Scalia). The Justice thus favored 
application of the same approach recently applied to free exercise of 
religion in Employment Division v. Smith, 494 U.S. 872 (1990).
        \70\Earlier cases had established as much. See California v. 
LaRue, 409 U.S. 109, 118 (1972); Southeastern Promotions v. Conrad, 420 
U.S. 546, 557-58 (1975); Doran v. Salem Inn, 422 U.S. 922, 932 (1975); 
Schad v. Borough of Mount Ephraim, 452 U.S. 61, 66 (1981); New York 
State Liquor Auth. v. Bellanca, 452 U.S. 714, 716, 718 (1981). 
Presumably, then, the distinction between barroom erotic dancing, 
entitled to minimum protection, and social ``ballroom'' dancing, not 
expressive and hence not entitled to First Amendment protection (see 
City of Dallas v. Stanglin, 490 U.S. 19, 24 (1989)), still hangs by a 
few threads. Justice Souter, concurring in Barnes, 111 S. Ct. 2468, 
recognized the validity of the distinction between ballroom and erotic 
dancing, a validity that had been questioned by a dissent in the lower 
court. Miller v. Civil City of South Bend, 904 F.2d 1081, 1128-29 (7th 
Cir. 1990) (Easterbrook, J.).
        \71\Although Justice Souter relied on what were essentially 
zoning cases (Young v. American Mini Theatres and Renton v. Playtime 
Theatres) to justify regulation of expression itself, he nonetheless 
pointed out that a pornographic movie featuring one of the respondent 
dancers was playing nearby without interference by the authorities. This 
suggests that, at least with respect to direct regulation of the degree 
of permissible nudity, he might draw a distinction between ``live'' and 
film performances even while acknowledging the harmful ``secondary'' 
effects associated with both.
        \72\ The Court has not ruled directly on such issues. See 
Southeastern Promotions v. Conrad, 420 U.S. 546 (1975) (invalidating the 
denial of use of a public auditorium for a production of the musical 
``Hair,'' in the absence of procedural safeguards that must accompany a 
system of prior restraint). Presumably the Barnes plurality's public 
morality rationale would apply equally to the ``adult'' stage and to the 
operatic theater, while Justice Souter's secondary effects rationale 
would not. But the plurality ducked this issue, reinterpreting the lower 
court record to deny that Indiana had distinguished between ``adult'' 
and theatrical productions. 111 S. Ct. at 2459 n.1 (Chief Justice 
Rehnquist); id. at 2464 n.2 (Justice Scalia). On the other hand, the 
fact that the state authorities disclaimed any intent to apply the 
statute to theatrical productions demonstrated to dissenting Justice 
White (who was joined by Justices Marshall, Blackmun, and Stevens) that 
the statute was not a general prohibition on public nudity, but instead 
was targeted at ``the communicative aspect of the erotic dance.'' 111 S. 
Ct. at 2473.
        \73\The Court had only recently affirmed that music is entitled 
to First Amendment protection independently of the message conveyed by 
any lyrics (Ward v. Rock Against Racism, 491 U.S. 781 (1989)), so it 
seems implausible that the Court is signalling a narrowing of protection 
to only ideas and opinions. Rather, the Court seems willing to give 
government the benefit of the doubt when it comes to legitimate 
objectives in regulating expressive conduct that is sexually explicit. 
For an extensive discourse on the expressive aspects of dance and the 
arts in general, and the striptease in particular, see Judge Posner's 
concurring opinion in the lower court's disposition of Barnes. Miller v. 
Civil City of South Bend, 904 F.2d 1081, 1089 (7th Cir. 1990).
        \74\California v. LaRue, 409 U.S. 109 (1972); New York State 
Liquor Auth. v. Bellanca, 452 U.S. 714 (1981).

---------------------------------------------------------------------------

[[Page 1164]]
                             FIRST AMENDMENT

                         RELIGION AND EXPRESSION

                 FREEDOM OF EXPRESSION--SPEECH AND PRESS


      Speech Plus--The Constitutional Law of Leafleting, Picketing, and 
        Demonstrating

        Communication of political, economic, social, and other views is 
not accomplished solely by face-to-face speech, broadcast speech, or 
writing in newspapers, periodicals, and pamphlets. There is also 
``expressive conduct,'' which includes picketing, patrolling, and 
marching, distribution of leaflets and pamphlets and addresses to 
publicly assembled audiences, door-to-door solicitation and many forms 
of ``sit-ins.'' There is also a class of conduct now only vaguely 
defined which has been denominated ``symbolic conduct,'' which includes 
such actions as flag desecration and draft-card burnings. Because all 
these ways of expressing oneself involve conduct--action--rather than 
mere speech, they are all much more subject to regulation and 
restriction than is simple speech. Some of them may be forbidden 
altogether. But to the degree that these actions are intended to 
communicate a point of view the First Amendment is relevant and protects 
some of them to a great extent. Sorting out the conflicting lines of 
principle and doctrine is the point of this section.

        The Public Forum.--In 1895 while he was a member of the highest 
court of Massachusetts, Justice Holmes rejected a contention that public 
property was by right open to the public as a place where the right of 
speech could be recognized,\75\ a rejection endorsed in its rationale on 
review by the United States Supreme Court.\76\ This point of view was 
rejected by the Court in Hague v. CIO,\77\ where Justice Roberts wrote: 
``Wherever the title of streets and parks may rest, they have 
immemorially been held in trust for the use of the public and, time out 
of mind, have been used for purposes of assembly, communicating thoughts 
between citizens, and discussing public questions. Such use of the 
streets and public places has from ancient times, been a part of the 
privileges, immunities, rights, and liberties of citizens.'' While this 
opinion was not itself joined by a majority of the Justices, the view 
was subsequently endorsed by the Court in several opinions.\78\

        \75\Commonwealth v. Davis, 162 Mass. 510, 511 (1895). ``For the 
Legislature absolutely or conditionally to forbid public speaking in a 
highway or public park is no more an infringement of rights of a member 
of the public than for the owner of a private house to forbid it in the 
house.''
        \76\Davis v. Massachusetts, 167 U.S. 43, 48 (1897).
        \77\307 U.S. 496, 515 (1939). Only Justice Black joined the 
opinion and Chief Justice Hughes generally concurred in it, but only 
Justices McReynolds and Butler dissented from the result.
        \78\E.g., Schneider v. State, 308 U.S. 147, 163 (1939); Kunz v. 
New York, 340 U.S. 290, 293 (1951).

---------------------------------------------------------------------------

[[Page 1165]]

        It was called into question in the 1960's, however, when the 
Court seemed to leave the issue open\79\ and when a majority endorsed an 
opinion of Justice Black's asserting his own narrower view of speech 
rights in public places.\80\ More recent decisions have restated and 
quoted the Roberts language from Hague and that is now the position of 
the Court.\81\ Public streets and parks,\82\ including those adjacent to 
courthouses\83\ and foreign embassies,\84\ as well as public 
libraries\85\ and the grounds of legislative bodies,\86\ are open to 
public demonstrations, although the uses to which public areas are 
dedicated may shape the range of permissible expression and conduct that 
may occur there.\87\ Moreover, not all public

[[Page 1166]]
properties are thereby public forums. ``[T]he First Amendment does not 
guarantee access to property simply because it is owned or controlled by 
the government.''\88\ ``The crucial question is whether the manner of 
expression is basically compatible with the normal activity of a 
particular place at a particular time.''\89\ Thus, by the nature of the 
use to which the property is put or by tradition, some sites are simply 
not as open for expression as streets and parks are.\90\ But if 
government does open non-traditional forums for expressive activities, 
it may not discriminate on the basis of content or viewpoint in 
according access.\91\ The Court in accepting the public forum concept 
has nevertheless been divided with respect to the reach of the 
doctrine.\92\ The concept is likely, therefore, to continue be a focal 
point of judicial debate in coming years.

        \79\Cox v. Louisiana, 379 U.S. 536, 555 (1965). For analysis of 
this case in the broader context, see Kalven, The Concept of the Public 
Forum: Cox v. Louisiana, 1965 Sup. Ct. Rev. 1.
        \80\Adderley v. Florida, 385 U.S. 39 (1966). See id. at 47-48; 
Cox v. Louisiana, 379 U.S. 559, 578 (1965) (Justice Black concurring in 
part and dissenting in part); Jamison v. Texas, 318 U.S. 413, 416 (1943) 
(Justice Black for the Court).
        \81\E.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 152 
(1969); Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); Carey v. 
Brown, 447 U.S. 455, 460 (1980).
        \82\Hague v. CIO, 307 U.S. 496 (1939); Niemotko v. Maryland, 340 
U.S. 268 (1951); Kunz v. New York, 340 U.S. 290 (1951); Shuttlesworth v. 
City of Birmingham, 394 U.S. 147 (1969); Coates v. City of Cincinnati, 
402 U.S. 611 (1971); Grayned v. City of Rockford, 408 U.S. 104 (1972); 
Greer v. Spock, 424 U.S. 828, 835-36 (1976); Carey v. Brown, 447 U.S. 
455 (1980).
        \83\Narrowly drawn statutes which serve the State's interests in 
security and in preventing obstruction of justice and influencing of 
judicial officers are constitutional. Cox v. Louisiana, 379 U.S. 559 
(1965). A restriction on carrying signs or placards on the grounds of 
the Supreme Court is unconstitutional as applied to the public sidewalks 
surrounding the Court, since it does not sufficiently further the 
governmental purposes of protecting the building and grounds, 
maintaining proper order, or insulating the judicial decisionmaking 
process from lobbying. United States v. Grace, 461 U.S. 171 (1983).
        \84\In Boos v. Barry, 485 U.S. 312 (1988), the Court struck down 
as content-based a District of Columbia law prohibiting the display of 
any sign within 500 feet of a foreign embassy if the sign tends to bring 
the foreign government into ``public odium'' or ``public disrepute.'' 
However, another aspect of the District's law, making it unlawful for 
three or more persons to congregate within 500 feet of an embassy and 
refuse to obey a police dispersal order, was upheld; under a narrowing 
construction, the law had been held applicable only to congregations 
directed at an embassy, and reasonably believed to present a threat to 
the peace or security of the embassy.
        \85\Brown v. Louisiana, 383 U.S. 131 (1966) (sit-in in library 
reading room).
        \86\Edwards v. South Carolina, 372 U.S. 229 (1963); Jeanette 
Rankin Brigade v. Capitol Police Chief, 342 F. Supp. 575 (D.C. 1972) 
(three-judge court), aff'd, 409 U.S. 972 (1972) (voiding statute 
prohibiting parades and demonstrations on United States Capitol 
grounds).
        \87\E.g., Grayned v. City of Rockford, 408 U.S. 104 (1972) 
(sustaining ordinance prohibiting noisemaking adjacent to school if that 
noise disturbs or threatens to disturb the operation of the school); 
Brown v. Louisiana, 383 U.S. 131 (1966) (silent vigil in public library 
protected while noisy and disruptive demonstration would not be); Tinker 
v. Des Moines Independent School District, 393 U.S. 503 (1969) (wearing 
of black armbands as protest protected but not if it results in 
disruption of school); Cameron v. Johnson, 390 U.S. 611 (1968) 
(preservation of access to courthouse); Frisby v. Schultz, 487 U.S. 474 
(1988) (ordinance prohibiting picketing ``before or about'' any 
residence or dwelling, narrowly construed as prohibiting only picketing 
that targets a particular residence, upheld as furthering significant 
governmental interest in protecting the privacy of the home).
        \88\United States Postal Service v. Council of Greenburgh Civic 
Ass'ns, 453 U.S. 114, 129 (1981).
        \89\Grayned v. City of Rockford, 408 U.S. 104, 116 (1972).
        \90\E.g., Adderley v. Florida, 385 U.S. 39 (1966) (jails); 
Lehman v. City of Shaker Heights, 418 U.S. 298 (1974) (advertising space 
in city rapid transit cars); Greer v. Spock, 424 U.S. 828 (1976) 
(military bases); United States Postal Service v. Council of Greenburgh 
Civic Ass'ns, 453 U.S. 114 (1981) (private mail boxes); Perry Educ. 
Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37 (1983) (interschool 
mail system); ISKCON v. Lee, 112 S. Ct. 2701 (1992) (publicly owned 
airport terminal).
        \91\E.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 
(1975) (municipal theater); Madison School District v. WERC, 429 U.S. 
167 (1976) (school board meeting); Heffron v. ISKCON, 452 U.S. 640 
(1981) (state fair grounds); Widmar v. Vincent, 454 U.S. 263 (1981) 
(university meeting facilities).
        \92\Compare United States Postal Service v. Council of 
Greenburgh Civic Ass'ns, 454 U.S. 114, 128-31 (1981), with id. at 136-40 
(Justice Brennan concurring), and 142 (Justice Marshall dissenting). For 
evidence of continuing division, compare ISKCON v. Lee, 112 S. Ct. 2701 
(1992) with id. at 27 (Justice Kennedy concurring).
---------------------------------------------------------------------------

        Speech in public forums is subject to time, place, and manner 
regulations, which take into account such matters as control of traffic 
in the streets, the scheduling of two meetings or demonstrations at the 
same time and place, the preventing of blockages of building entrances, 
and the like.\93\ Such regulations are closely scrutinized in order to 
protect free expression, and, to be valid, must be justified without 
reference to the content or subject matter

[[Page 1167]]
of speech,\94\ must serve a significant governmental interest,\95\ and 
must leave open ample alternative channels for communication of the 
information.\96\ A recent formulation is that a time, place, or manner 
regulation ``must be narrowly tailored to serve the government's 
legitimate content-neutral interests, but . . . need not be the least-
restrictive or least-intrusive means of doing so.'' All that is required 
is that ``the means chosen are not substantially broader than necessary 
to achieve the government's interest.''\97\ Corollary to the rule 
forbidding regulation premised on content is the principle, a merging of 
free expression and equal protection standards, that government may not 
discriminate between different kinds of messages in affording 
access.\98\ In order to ensure against covert forms of discrimination 
against expression and between different kinds of content, the Court has 
insisted that licensing systems be constructed as free as possible of 
the opportunity for arbitrary administration.\99\ The Court has also 
applied its general strictures

[[Page 1168]]
against prior restraints in the contexts of permit systems and judicial 
restraint of expression.\100\

        \93\See, e.g., Heffron v. ISKCON, 452 U.S. 640, 647-50 (1981), 
and id. at 656 (Justice Brennan concurring in part and dissenting in 
part) (stating law and discussing cases); Clark v. Community for 
Creative Non-Violence, 468 U.S. 288 (1984) (prohibition of sleep-in 
demonstration in area of park not designated for overnight camping).
        \94\Niemotko v. Maryland, 340 U.S. 268 (1951); Cox v. Louisiana, 
379 U.S. 536 (1965); Police Department v. Mosley, 408 U.S. 92 (1972); 
Madison School District v. WERC, 429 U.S. 167 (1976); Carey v. Brown, 
447 U.S. 455 (1980); Widmar v. Vincent, 454 U.S. 263 (1981). In Lehman 
v. City of Shaker Heights, 418 U.S. 298 (1974), a divided Court 
permitted the city to sell commercial advertising space on the walls of 
its rapid transit cars but to refuse to sell political advertising 
space.
        \95\E.g., the governmental interest in safety and convenience of 
persons using public forum, Heffron v. ISKCON, 452 U.S. 640, 650 (1981); 
the interest in preservation of a learning atmosphere in school, Grayned 
v. City of Rockford, 408 U.S. 104, 115 (1972); and the interest in 
protecting traffic and pedestrian safety in the streets, Cox v. 
Louisiana, 379 U.S. 536, 554-55 (1965); Kunz v. New York, 340 U.S. 290, 
293-94 (1951); Hague v. CIO, 307 U.S. 496, 515-16 (1939).
        \96\Heffron v. ISKCON, 452 U.S. 640, 654-55 (1981); Consolidated 
Edison Co. v. PSC, 447 U.S. 530, 535 (1980).
        \97\Ward v. Rock Against Racism, 491 U.S. 781, 798, 800 (1989).
        \98\Police Department v. Mosley, 408 U.S. 92 (1972) (ordinance 
void which barred all picketing around school building except labor 
picketing); Carey v. Brown, 447 U.S. 455 (1980) (same); Widmar v. 
Vincent, 454 U.S. 263 (1981) (college rule permitting access to all 
student organizations except religious groups); Niemotko v. Maryland, 
340 U.S. 268 (1951) (permission to use parks for some groups but not for 
others). These principles apply only to the traditional public forum and 
to the governmentally created ``limited public forum.'' Government may, 
without creating a limited public forum, place ``reasonable'' 
restrictions on access to nonpublic areas. See, e.g. Perry Educ. Ass'n 
v. Perry Local Educators' Ass'n, 460 U.S. 37, 48 (1983) (use of school 
mail system); and Cornelius v. NAACP Legal Defense and Educational Fund, 
473 U.S. 788 (1985) (charitable solicitation of federal employees at 
workplace). See also Lehman v. City of Shaker Heights, 418 U.S. 298 
(1974) (city may sell commercial advertising space on the walls of its 
rapid transit cars but refuse to sell political advertising space).
        \99\E.g., Hague v. CIO, 307 U.S. 496, 516 (1939); Schneider v. 
State, 308 U.S. 147, 164 (1939); Cox v. New Hampshire, 312 U.S. 569 
(1941); Poulos v. New Hampshire, 345 U.S. 395 (1953); Staub v. City of 
Baxley, 355 U.S. 313, 321-25 (1958); Cox v. Louisiana, 379 U.S. 536, 
555-58 (1965); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-53 
(1969). Justice Stewart for the Court described these and other cases as 
``holding that a law subjecting the exercise of First Amendment freedoms 
to the prior restraint of a license without narrow, objective, and 
definite standards to guide the licensing authority is 
unconstitutional.'' Id. at 150-51. A person faced with an 
unconstitutional licensing law may ignore it, engage in the desired 
conduct, and challenge the constitutionality of the permit system upon a 
subsequent prosecution for violating it. Id. at 151; Jones v. Opelika, 
316 U.S. 584, 602 (1942) (Chief Justice Stone dissenting), adopted per 
curiam on rehearing, 319 U.S. 103 (1943). See also City of Lakewood v. 
Plain Dealer Publishing Co., 486 U.S. 750 (1988) (upholding facial 
challenge to ordinance vesting in the mayor unbridled discretion to 
grant or deny annual permit for location of newsracks on public 
property); Riley v. National Fed'n of the Blind, 487 U.S. 781 (1988) 
(invalidating as permitting ``delay without limit'' licensing 
requirement for professional fundraisers); Forsyth County v. Nationalist 
Movement, 112 S. Ct. 2395 (1992). But see Walker v. City of Birmingham, 
388 U.S. 307 (1967) (same rule not applicable to injunctions).
        \100\In Shuttlesworth v. City of Birmingham, 394 U.S. 147 
(1969), the Court reaffirmed the holdings of the earlier cases, and, 
additionally, both Justice Stewart, for the Court, id. at 155 n.4, and 
Justice Harlan concurring, id. at 162-64, asserted that the principles 
of Freedman v. Maryland, 380 U.S. 51 (1965), governing systems of prior 
censorship of motion pictures, were relevant to permit systems for 
parades and demonstrations. These standards include prompt and 
expeditious administrative handling of requests and prompt judicial 
review of adverse actions. See National Socialist Party v. Village of 
Skokie, 432 U.S. 43 (1977). The Court also voided an injunction against 
a protest meeting which was issued ex parte, without notice to the 
protestors and with, or course, no opportunity for them to rebut the 
representations of the seekers of the injunction. Carroll v. President 
and Comm'rs of Princess Anne, 393 U.S. 175 (1968).
---------------------------------------------------------------------------

        It appears that government may not deny access to the public 
forum for demonstrators on the ground that the past meetings of these 
demonstrators resulted in violence,\101\ and may not vary a 
demonstration licensing fee based on an estimate of the amount of 
hostility likely to be engendered,\102\ but the Court's position with 
regard to the ``heckler's veto,'' the governmental termination of a 
speech or demonstration because of hostile crowd reaction, remains quite 
unclear.\103\

        \101\The only available precedent is Kunz v. New York, 340 U.S. 
290 (1951). The holding was on a much narrower basis, but in dictum the 
Court said: ``The court below has mistakenly derived support for its 
conclusions from the evidence produced at the trial that appellant's 
religious meetings had, in the past, caused some disorder. There are 
appropriate public remedies to protect the peace and order of the 
community if appellant's speeches should result in disorder and 
violence.'' Id. at 294. A different rule applies to labor picketing. See 
Milk Wagon Drivers Local 753 v. Meadowmoor Dairies, 312 U.S. 287 (1941) 
(background of violence supports prohibition of all peaceful picketing). 
The military may ban a civilian, previously convicted of destroying 
government property, from reentering a military base, and may apply the 
ban to prohibit the civilian from reentering the base for purposes of 
peaceful demonstration during an Armed Forces Day ``open house.'' United 
States v. Albertini, 472 U.S. 675 (1985).
        \102\Forsyth County v. Nationalist Movement, 112 S. Ct. 2395 
(1992) (a fee based on anticipated crowd response necessarily involves 
examination of the content of the speech, and is invalid as a content 
regulation).
        \103\Dicta clearly indicate that a hostile reaction will not 
justify suppression of speech, Hague v. CIO, 307 U.S. 496, 502 (1939); 
Cox v. Louisiana, 379 U.S. 536, 551 (1965); Bachellar v. Maryland, 397 
U.S. 564, 567 (1970), and one holding appears to point this way. Gregory 
v. City of Chicago, 394 U.S. 111 (1969). On the other hand, the Court 
has upheld a breach of the peace conviction of a speaker who refused to 
cease speaking upon the demand of police who feared imminent violence. 
Feiner v. New York, 340 U.S. 315 (1951). In Niemotko v. Maryland, 340 
U.S. 268, 273 (1951) (concurring opinion), Justice Frankfurter wrote: 
``It is not a constitutional principle that, in acting to preserve 
order, the police must proceed against the crowd whatever its size and 
temper and not against the speaker.''

---------------------------------------------------------------------------

[[Page 1169]]

        The Court has defined three different categories of public 
property for public forum analysis. First, there is the public forum, 
places such as streets and parks which have traditionally been used for 
public assembly and debate, where the government may not prohibit all 
communicative activity and must justify content-neutral time, place, and 
manner restrictions as narrowly tailored to serve some legitimate 
interest. Government may also open property for communicative activity, 
and thereby create a public forum. Such a forum may be limited--hence 
the expression ``limited public forum''--for ``use by certain groups, 
e.g. Widmar v. Vincent (student groups), or for discussion of certain 
subjects, e.g. City of Madison Joint School District v. Wisconsin PERC 
(school board business),''\104\ but within the framework of such 
legitimate limitations discrimination based on content must be justified 
by compelling governmental interests.\105\ Thirdly, government ``may 
reserve a forum for its intended purposes, communicative or otherwise, 
as long as the regulation on speech is reasonable and not an effort to 
suppress expression merely because public officials oppose the speaker's 
view.''\106\ The distinction between the second and third categories can 
therefore determine the outcome of a case, since speakers may be 
excluded from the second category only for a ``compelling'' governmental 
interest, while exclusion from the third category need only be 
``reasonable.'' Yet, distinguishing between the two categories creates 
no small difficulty, as evidenced by recent case law.

        \104\Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 
37, 45-46 (1983).
        \105\460 U.S. at 46.
        \106\Id.
---------------------------------------------------------------------------

        The Court has held that a school system did not create a limited 
public forum by opening an interschool mail system to use by selected 
civic groups ``that engage in activities of interest and educational 
relevance to students,'' and that, in any event, if a limited public 
forum had thereby been created a teachers union rivaling the exclusive 
bargaining representative could still be excluded as not being ``of a 
similar character'' to the civic groups.\107\ Less problematic was the 
Court's conclusion that utility poles and other mu

[[Page 1170]]
nicipal property did not constitute a public forum for the posting of 
signs.\108\ More problematic was the Court's conclusion that the 
Combined Federal Campaign, the Federal Government's forum for 
coordinated charitable solicitation of federal employees, is not a 
limited public forum. Exclusion of various advocacy groups from 
participation in the Campaign was upheld as furthering ``reasonable'' 
governmental interests in offering a forum to ``traditional health and 
welfare charities,'' avoiding the appearance of governmental favoritism 
of particular groups or viewpoints, and avoiding disruption of the 
federal workplace by controversy.\109\ The Court pinpointed the 
government's intention as the key to whether a public forum has been 
created: ``[t]he government does not create a public forum by inaction 
or by permitting limited discourse, but only by intentionally opening a 
non-traditional forum for public discourse.''\110\ Under this 
categorical approach, the government has wide discretion in maintaining 
the nonpublic character of its forums, and may regulate in ways that 
would be impermissible were it to designate a limited public forum.\111\

        \107\Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 
37 (1983). This was a 5-4 decision, with Justice White's opinion of the 
Court being joined by Chief Justice Burger and by Justices Blackmun, 
Rehnquist, and O'Connor, and with Justice Brennan's dissent being joined 
by Justices Marshall, Powell, and Stevens. See also Hazelwood School 
Dist. v. Kuhlmeier, 484 U.S. 260 (1988) (student newspaper published as 
part of journalism class is not a public forum).
        \108\City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) 
(upholding an outright ban on use of utility poles for signs). The Court 
noted that ``it is of limited utility in the context of this case to 
focus on whether the tangible property itself should be deemed a public 
forum.'' Id. at 815 n.32.
        \109\Cornelius v. NAACP Legal Defense and Educational Fund, 473 
U.S. 788 (1985). Precedential value of Cornelius may be subject to 
question, since it was decided by 4-3 vote, the non-participating 
Justices (Marshall and Powell) having dissented in Perry. Justice 
O'Connor wrote the opinion of the Court, joined by Chief Justice Burger 
and by Justices White and Rehnquist. Justice Blackmun, joined by Justice 
Brennan, dissented, and Justice Stevens dissented separately.
        \110\473 U.S. at 802. Justice Blackmun criticized ``the Court's 
circular reasoning that the CFC is not a limited public forum because 
the Government intended to limit the forum to a particular class of 
speakers.'' Id. at 813-14.
        \111\Justice Kennedy criticized this approach in ISKCON v. Lee, 
112 S. Ct. 2701, 27, (1992) (concurring), contending that recognition of 
government's authority to designate the forum status of property ignores 
the nature of the First Amendment as ``a limitation on government, not a 
grant of power.'' Justice Brennan voiced similar misgivings in his 
dissent in United States v. Kokinda: ``public forum categories--
originally conceived of as a way of preserving First Amendment rights--
have been used . . . as a means of upholding restrictions on speech''. 
497 U.S. at 741 (emphasis original) (citation omitted).
---------------------------------------------------------------------------

        Application of the doctrine continues to create difficulty. A 
majority of Justices could not agree on the public forum status of a 
sidewalk located entirely on Postal Service property.\112\ The Court was 
also divided over whether nonsecured areas of an airport terminal, 
including shops and restaurants, constituted a public forum. Holding 
that the terminal was not a public forum, the Court upheld restrictions 
on the solicitation and receipt of funds.\113\ But

[[Page 1171]]
the Court also invalidated a ban on the sale or distribution of 
literature to passers-by within the same terminal, four Justices 
believing that the terminal constituted a public forum, and a fifth 
contending that the multipurpose nature of the forum (shopping mall as 
well as airport) made restrictions on expression less 
``reasonable.''\114\

        \112\United States v. Kokinda, 497 U.S. 720 (1990) (upholding a 
ban on solicitation on the sidewalk).
        \113\ISKCON v. Lee, 112 S. Ct. 2701 (1992).
        \114\Lee v. ISKCON, 112 S. Ct. 2709 (1992).
---------------------------------------------------------------------------

        Quasi-Public Places.--The First Amendment precludes government 
restraint of expression and it does not require individuals to turn over 
their homes, businesses or other property to those wishing to 
communicate about a particular topic.\115\ But it may be that in some 
instances private property is so functionally akin to public property 
that private owners may not forbid expression upon it. In Marsh v. 
Alabama,\116\ the Court held that the private owner of a company town 
could not forbid distribution of religious materials by a Jehovah's 
Witness on a street in the town's business district. The town, wholly 
owned by a private corporation, had all the attributes of any American 
municipality, aside from its ownership, and was functionally like any 
other town. In those circumstances, the Court reasoned, ``the more an 
owner, for his advantage, opens up his property for use by the public in 
general, the more do his rights become circumscribed by the statutory 
and constitutional rights of those who use it.''\117\ This precedent lay 
unused for some twenty years until the Court first indicated a 
substantial expansion of it, and then withdrew to a narrow 
interpretation.

        \115\In Garner v. Louisiana, 368 U.S. 157, 185, 201-07 (1961), 
Justice Harlan, concurring, would have reversed breach of the peace 
convictions of ``sit-in'' demonstrators who conducted their ``sit-in'' 
at lunch counters of department stores. He asserted that the protesters 
were sitting at the lunch counters where they knew they would not be 
served in order to demonstrate that segregation at such counters 
existed. ``Such a demonstration . . . is as much a part of the `free 
trade in ideas' . . . as is verbal expression, more commonly thought of 
as `speech.''' Conviction for breach of peace was void in the absence of 
a clear and present danger of disorder. The Justice would not, however 
protect ``demonstrations conducted on private property over the 
objection of the owner . . . , just as it would surely not encompass 
verbal expression in a private home if the owner has not consented.'' He 
had read the record to indicate that the demonstrators were invitees in 
the stores and that they had never been asked to leave by the owners or 
managers. See also Frisby v. Schultz, 487 U.S. 474 (1988) (government 
may protect residential privacy by prohibiting altogether picketing that 
targets a single residence).
        \116\326 U.S. 501 (1946).
        \117\Id. at 506.
---------------------------------------------------------------------------

        First, in Food Employees Union v. Logan Valley Plaza,\118\ the 
Court held constitutionally protected the picketing of a store located 
in a shopping center by a union objecting to the store's employment of 
nonunion labor. Finding that the shopping center was

[[Page 1172]]
the functional equivalent of the business district involved in Marsh, 
the Court announced there was ``no reason why access to a business 
district in a company town for the purpose of exercising First Amendment 
rights should be constitutionally required, while access for the same 
purpose to property functioning as a business district should be limited 
simply because the property surrounding the `business district' is not 
under the same ownership.''\119\ [T]he State,'' said Justice Marshall, 
``may not delegate the power, through the use of its trespass laws, 
wholly to exclude those members of the public wishing to exercise their 
First Amendment rights on the premises in a manner and for a purpose 
generally consonant with the use to which the property is actually 
put.''\120\ The Court observed that it would have been hazardous to 
attempt to distribute literature at the entrances to the center and it 
reserved for future decision ``whether respondents' property rights 
could, consistently with the First Amendment, justify a bar on picketing 
which was not thus directly related in its purpose to the use to which 
the shopping center property was being put.''\121\

        \118\Amalgamated Food Employees Union Local 590 v. Logan Valley 
Plaza, 391 U.S. 308 (1968).
        \119\Id. at 319. Justices Black, Harlan, and White dissented. 
Id. at 327, 333, 337.
        \120\Id. at 319-20.
        \121\Id. at 320 n.9.
---------------------------------------------------------------------------

        Four years later, the Court answered the reserved question in 
the negative.\122\ Several members of an antiwar group had attempted to 
distribute leaflets on the mall of a large shopping center, calling on 
the public to attend a protest meeting. Center guards invoked a trespass 
law against them, and the Court held they could rightfully be excluded. 
The center had not dedicated its property to a public use, the Court 
said; rather, it invited the public in specifically to carry on business 
with those stores located in the center. Plaintiffs' leafleting, not 
directed to any store or to the customers qua customers of any of the 
stores, was unrelated to any activity in the center. Unlike the 
situation in Logan Valley Plaza, there were reasonable alternatives by 
which plaintiffs could reach those who used the center. Thus, in the 
absence of a relationship between the purpose of the expressive activity 
and the business of the shopping center, the property rights of the 
center owner will overbalance the expressive rights to persons who would 
use their property for communicative purposes.

        \122\Lloyd Corp. v. Tanner, 407 U.S. 551 (1972).
---------------------------------------------------------------------------

        Then, the Court formally overruled Logan Valley Plaza, holding 
that shopping centers are not functionally equivalent to the company 
town involved in Marsh.\123\ Suburban malls may be the

[[Page 1173]]
``new town squares'' in the view of sociologists, but they are private 
property in the eye of the law. The ruling came in a case in which a 
union of employees engaged in an economic strike against one store in a 
shopping center was barred from picketing the store within the mall. The 
rights of employees in such a situation are generally to be governed by 
federal labor laws\124\ rather than the First Amendment, although there 
is also the possibility that state constitutional provisions may be 
interpreted more expansively by state courts to protect some kinds of 
public issue picketing in shopping centers and similar places.\125\ 
Henceforth, only when private property ```has taken on all the 
attributes of a town''' is it to be treated as a public forum.\126\

        \123\Hudgens v. NLRB, 424 U.S. 507 (1976). Justice Stewart's 
opinion for the Court asserted that Logan Valley had in fact been 
overruled by Lloyd Corp., id. at 517-18, but Justice Powell, the author 
of the Lloyd Corp. opinion, did not believe that to be the case, id. at 
523.
        \124\But see Sears, Roebuck & Co. v. Carpenters, 436 U.S. U.S. 
180 (1978).
        \125\In PruneYard Shopping Center v. Robins, 447 U.S. 74 (1980), 
the Court held that a state court interpretation of the state 
constitution to protect picketing in a privately owned shopping center 
did not deny the property owner any federal constitutional rights. But 
cf. Pacific Gas & Elec. v. Public Utilities Comm'n, 475 U.S. 1 (1986), 
holding that a state may not require a privately owned utility company 
to include in its billing envelopes views of a consumer group with which 
it disagrees, a majority of Justices distinguishing PruneYard as not 
involving such forced association with others' beliefs.
        \126\Hudgens v. NLRB, 424 U.S. 507, 516-17 (1976) (quoting 
Justice Black's dissent in Logan Valley Plaza, 391 U.S. 308, 332-33 
(1968).
---------------------------------------------------------------------------

        Picketing and Boycotts by Labor Unions.--Though ``logically 
relevant'' to what might be called ``public issue'' picketing, the cases 
dealing with the invocation of economic pressures by labor unions are 
set apart by different ``economic and social interests.''\127\ 
Therefore, these cases are dealt with separately here. It was, however, 
in a labor case that the Court first held picketing to be entitled to 
First Amendment protection.\128\ Striking down a flat prohibition on 
picketing to influence or induce someone to do something, the Court 
said: ``In the circumstances of our times the dissemination of 
information concerning the facts of a labor dispute must be regarded as 
within that area of free discussion that is guaranteed by the 
Constitution . . . .

        \127\Niemotko v. Maryland, 340 U.S. 268, 276 (1951) (Justice 
Frankfurter concurring).
        \128\Thornhill v. Alabama, 310 U.S. 88, 102, 104-05 (1940). 
Picketing as an aspect of communication was recognized in Senn v. Tile 
Layers Union, 301 U.S. 468 (1937).
---------------------------------------------------------------------------

        ``[T]he group in power at any moment may not impose penal 
sanctions on peaceful and truthful discussion of matters of public 
interest merely on a showing that others may thereby be persuaded to 
take action inconsistent with its interests. Abridgment of the liberty 
of such discussion can be justified only where the clear danger of 
substantive evils arises under circumstances affording no oppor

[[Page 1174]]
tunity to test the merits of ideas by competition for acceptance in the 
market of public opinion.''\129\ Peaceful picketing in a situation in 
which violence had occurred and was continuing, however, was held 
proscribable.\130\ In the absence of violence, the Court continued to 
find picketing protected,\131\ but there soon was decided a class of 
cases in which the Court sustained injunctions against peaceful 
picketing in the course of a labor controversy when such picketing was 
counter to valid state policies in a domain open to state 
regulation.\132\ These cases proceeded upon a distinction drawn by 
Justice Douglas. ``Picketing by an organized group is more than free 
speech, since it involves patrol of a particular locality and since the 
very presence of a picket line may induce action of one kind or another, 
quite irrespective of the nature of the ideas which are being 
disseminated. Hence those aspects of picketing make it the subject of 
restrictive regulations.''\133\ The apparent culmination of this course 
of decision was the Vogt case in which Justice Frankfurter broadly 
rationalized all the cases and derived the rule that ``a State, in 
enforcing some public policy, whether of its criminal or its civil law, 
and whether announced by its legislature or its courts, could 
constitutionally enjoin peaceful picketing aimed at preventing 
effectuation of that policy.''\134\ There the matters rests, although 
there is some indication that Thornhill stands for something more than 
that a State may not enforce a blanket prohibition on picketing.\135\

        \129\See also Carlson v. California, 310 U.S. 106 (1940). In AFL 
v. Swing, 312 U.S. 321 (1941), the Court held unconstitutional an 
injunction against peaceful picketing based on a State's common-law 
policy against picketing in the absence of an immediate dispute between 
employer and employee.
        \130\Milk Wagon Drivers Union v. Meadowmoor Dairies, 312 U.S. 
287 (1941).
        \131\Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769 (1942); 
Carpenters & Joiners Union v. Ritter's Cafe, 315 U.S. 722 (1942); 
Cafeteria Employees Union v. Angelos, 320 U.S. 293 (1943).
        \132\Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949); 
International Bhd. of Teamsters Union v. Hanke, 339 U.S. 470 (1950); 
Building Service Emp. Intern. Union v. Gazzam, 339 U.S. 532 (1950); 
Local Union, Journeymen v. Graham, 345 U.S. 192 (1953).
        \133\Bakery & Pastry Drivers Local v. Wohl, 315 U.S. 769, 776-77 
(1942) (concurring opinion).
        \134\International Bhd. of Teamsters v. Vogt, 354 U.S. 284, 293 
(1957). See also American Radio Ass'n v. Mobile Steamship Ass'n, 419 
U.S. 215, 228-32 (1974); NLRB v. Retail Store Employees, 447 U.S. 607 
(1980); International Longshoremens' Ass'n v. Allied International, 456 
U.S. 212, 226-27 (1982).
        \135\Cf. the opinions in NLRB v. Fruit & Vegetable Packers, 377 
U.S. 58 (1964); Youngdahl v. Rainfair, 355 U.S. 131, 139 (1957) 
(indicating that where violence is scattered through time and much of it 
was unconnected with the picketing, the State should proceed against the 
violence rather than the picketing).
---------------------------------------------------------------------------

        Public Issue Picketing and Parading.--The early cases held that 
picketing and parading were forms of expression entitled

[[Page 1175]]
to some First Amendment protection.\136\ Those early cases did not, 
however, explicate the difference in application of First Amendment 
principles which the difference between mere expression and speech-plus 
would entail. Many of these cases concerned disruptions or feared 
disruptions of the public peace occasioned by the expressive activity 
and the ramifications of this on otherwise protected activity.\137\ A 
series of other cases concerned the permissible characteristics of 
permit systems in which parades and meetings were licensed, and more 
recent cases have expanded the procedural guarantees which must 
accompany a permissible licensing system.\138\ In one case, however, the 
Court applied the rules developed with regard to labor picketing to 
uphold an injunction against the picketing of a grocery chain by a black 
group to compel the chain to adopt a quota-hiring system for blacks. The 
Supreme Court affirmed the state courts' ruling that, while no law 
prevented the chain from hiring blacks on a quota basis, picketing to 
coerce the adoption of racially discriminatory hiring was contrary to 
state public policy.\139\

        \136\Hague v. CIO, 307 U.S. 496 (1939); Cox v. New Hampshire, 
312 U.S. 569 (1941); Kunz v. New York; 340 U.S. 290 (1951); Niemotko v. 
Maryland, 340 U.S. 268 (1951).
        \137\Cantwell v. Connecticut, 310 U.S. 296 (1940); Chaplinsky v. 
New Hampshire, 315 U.S. 568 (1942); Terminiello v. City of Chicago, 337 
U.S. 1 (1949); Feiner v. New York, 340 U.S. 315 (1951).
        \138\Supra, p.1167.
        \139\Hughes v. Superior Court, 339 U.S. 460 (1950). This ruling, 
allowing content-based restriction, seems inconsistent with NAACP v. 
Claiborne Hardware, infra, text accompanying nn.147-61.
---------------------------------------------------------------------------

        A series of civil rights picketing and parading cases led the 
Court to formulate standards much like those it had established in the 
labor field, but more protective of expressive activity. The process 
began with Edwards v. South Carolina,\140\ in which the Court reversed a 
breach of the peace conviction of several blacks for their refusal to 
disperse as ordered by police. The statute was so vague, the Court 
concluded, that demonstrators could be convicted simply because their 
presence ``disturbed'' people. Describing the demonstration upon the 
grounds of the legislative building in South Carolina's capital, Justice 
Stewart observed that ``[t]he circumstances in this case reflect an 
exercise of these basic [First Amendment] constitutional rights in their 
most pristine and classic form.''\141\ In subsequent cases, the Court 
observed: ``We emphatically reject the notion urged by appellant that 
the First and Fourteenth Amendments afford the same kind of freedom to 
those who would communicate ideas by conduct such as patrolling, 
marching,

[[Page 1176]]
and picketing on streets and highways, as those amendments afford to 
those who communicate ideas by pure speech.''\142\ ``The conduct which 
is the subject to this statute--picketing and parading--is subject to 
regulation even though intertwined with expression and association. The 
examples are many of the application by this Court of the principle that 
certain forms of conduct mixed with speech may be regulated or 
prohibited.''\143\

        \140\372 U.S. 229 (1963).
        \141\Id. at 235. See also Fields v. South Carolina, 375 U.S. 44 
(1963); Henry v. City of Rock Hill, 376 U.S. 776 (1964).
        \142\Cox v. Louisiana, 379 U.S. 536, 555 (1965).
        \143\Id. at 563.
---------------------------------------------------------------------------

        The Court must determine, of course, whether the regulation is 
aimed primarily at conduct, as is the case with time, place, and manner 
regulations, or whether instead the aim is to regulate content of 
speech. In a series of decisions, the Court refused to permit 
restrictions on parades and demonstrations, and reversed convictions 
imposed for breach of the peace and similar offenses, when, in the 
Court's view, disturbance had resulted from opposition to the messages 
being uttered by demonstrators.\144\ More recently, however, the Court 
upheld a ban on residential picketing in Frisby v. Shultz,\145\ finding 
that the city ordinance was narrowly tailored to serve the 
``significant'' governmental interest in protecting residential privacy. 
As interpreted, the ordinance banned only picketing that targets a 
single residence, and it is unclear whether the Court would uphold a 
broader restriction on residential picketing.\146\

        \144\Edwards v. South Carolina, 372 U.S. 229 (1963); Cox v. 
Louisiana, 379 U.S. 536 (1965); Gregory v. City of Chicago, 394 U.S. 111 
(1969); Bachellar v. Maryland, 397 U.S. 564 (1970). See also Collin v. 
Smith, 447 F. Supp. 676 (N.D.Ill.), aff'd, 578 F.2d 1197 (7th Cir.), 
stay den., 436 U.S. 953, cert. denied, 439 U.S. 916 (1978).
        \145\487 U.S. 474 (1988).
        \146\An earlier case involving residential picketing had been 
resolved on equal protection rather than First Amendment grounds, the 
ordinance at issue making an exception for labor picketing. Carey v. 
Brown, 447 U.S. 455 (1980).
---------------------------------------------------------------------------

        In 1982 the Justices confronted a case, that, like Hughes v. 
Superior Court,\147\ involved a ``contrary-to-public-policy'' 
restriction on picketing and parading. NAACP v. Claiborne Hardware 
Co.\148\ may join in terms of importance such cases as New York Times 
Co. v. Sullivan\149\ in requiring the States to observe new and enhanced 
constitutional standards in order to impose liability upon persons for 
engaging in expressive conduct implicating the First Amendment. The case 
arose in the context of a protest against racial conditions by black 
citizens of Port Gibson, Mississippi. Listing demands that included 
desegregation of public facilities, hiring of black policemen, hiring of 
more black employees by local stores,

[[Page 1177]]
and ending of verbal abuse by police, a group of several hundred blacks 
unanimously voted to boycott the area's white merchants. The boycott was 
carried out through speeches and nonviolent picketing and solicitation 
of others to cease doing business with the merchants. Individuals were 
designated to watch stores and identify blacks patronizing the stores; 
their names were then announced at meetings and published. Persuasion of 
others included social pressures and threats of social ostracism. Acts 
of violence did occur from time to time, directed in the main at blacks 
who did not observe the boycott.

        \147\339 U.S. 460 (1950).
        \148\458 U.S. 886 (1982). The decision was unanimous, with 
Justice Rehnquist concurring in the result and Justice Marshall not 
participating. The Court's decision was by Justice Stevens.
        \149\376 U.S. 254 (1964).
---------------------------------------------------------------------------

        The state Supreme Court imposed liability, joint and several, 
upon leaders and participants in the boycott, and upon the NAACP, for 
all of the merchants' lost earnings during a seven-year period on the 
basis of the common law tort of malicious interference with the 
merchants' business, holding that the existence of acts of physical 
force and violence and the use of force, violence, and threats to 
achieve the ends of the boycott deprived it of any First Amendment 
protection.

        Reversing, the Court observed that the goals of the boycotters 
were legal and that most of their means were constitutionally protected; 
while violence was not protected, its existence alone did not deprive 
the other activities of First Amendment coverage. Thus, speeches and 
nonviolent picketing, both to inform the merchants of grievances and to 
encourage other blacks to join the boycott, were protected activities, 
and association for those purposes was also protected.\150\ That some 
members of the group might have engaged in violence or might have 
advocated violence did not result in loss of protection for association, 
absent a showing that those associating had joined with intent to 
further the unprotected activities.\151\ Nor was protection to be denied 
because nonparticipants had been urged to join by speech, by picketing, 
by identification, by threats of social ostracism, and by other 
expressive acts: ``[s]peech does not lose its protected character . . . 
simply because it may embarrass others or coerce them into 
action.''\152\ The boycott had a disruptive

[[Page 1178]]
effect upon local economic conditions and resulted in loss of business 
for the merchants, but these consequences did not justify suppression of 
the boycott. Government may certainly regulate certain economic 
activities having an incidental effect upon speech (e.g., labor 
picketing or business conspiracies to restrain competition),\153\ but 
that power of government does not extend to suppression of picketing and 
other boycott activities involving, as this case did, speech upon 
matters of public affairs with the intent of affecting governmental 
action and motivating private actions to achieve racial equality.\154\

        \150\NAACP v. Claiborne Hardware Co., 458 U.S. 886, 907-08 
(1982).
        \151\Id. at 908.
        \152\Id. at 910. The Court cited Thomas v. Collins, 323 U.S. 
516, 537 (1945), a labor picketing case, and Organization for a Better 
Austin v. Keefe, 402 U.S. 415, 419 (1971), a public issues picketing 
case, which had also relied on the labor cases. Compare NLRB v. Retail 
Store Employees, 447 U.S. 607, 618-19 (1980) (Justice Stevens 
concurring) (labor picketing that coerces or ``signals'' others to 
engage in activity that violates valid labor policy, rather than 
attempting to engage reason, prohibitable). To the contention that 
liability could be imposed on ``store watchers'' and on a group known as 
``Black Hats'' who also patrolled stores and identified black 
patronizers of the businesses, the Court did not advert to the 
``signal'' theory. ``There is nothing unlawful in standing outside a 
store and recording names. Similarly, there is nothing unlawful in 
wearing black hats, although such apparel may cause apprehension in 
others.'' Id. at 458 U.S., 925.
        \153\See, e.g., FTC v. Superior Court Trial Lawyers Ass'n, 493 
U.S. 411 (1990) (upholding application of per se antitrust liability to 
trial lawyers association's boycott designed to force higher fees for 
representation of indigent defendants by court-appointed counsel).
        \154\Id. at 912-15. In evaluating the permissibility of 
government regulation in this context that has an incidental effect on 
expression, the Court applied the standards of United States v. O'Brien, 
391 U.S. 367, 376-77 (1968), which requires that the regulation be 
within the constitutional power of government, that it further an 
important or substantial governmental interest, that it be unrelated to 
the suppression of speech, and that it impose no greater restraint on 
expression than is essential to achievement of the interest.
---------------------------------------------------------------------------

        The critical issue, however, had been the occurrence of violent 
acts and the lower court's conclusion that they deprived otherwise 
protected conduct of protection. ``The First Amendment does not protect 
violence . . . . No federal rule of law restricts a State from imposing 
tort liability for business losses that are caused by violence and by 
threats of violence. When such conduct occurs in the context of 
constitutionally protected activity, however, `precision of regulation' 
is demanded . . . . Specifically, the presence of activity protected by 
the First Amendment imposes restraints on the grounds that may give rise 
to damages liability and on the persons who may be held accountable for 
those damages.''\155\ In other words, the States may impose damages for 
the consequences of violent conduct, but they may not award compensation 
for the consequences of nonviolent, protected activity.\156\ Thus, the 
state courts had to compute, upon proof by the merchants, what damages 
had been the result of violence, and could not include losses suffered 
as a result of all the other activities comprising the boycott. And only 
those nonviolent persons who associated with others with an awareness of 
violence and an intent to further it could similarly be held 
liable.\157\ Since most of the acts of violence had occurred

[[Page 1179]]
early on, in 1966, there was no way constitutionally that much if any of 
the later losses of the merchants could be recovered in damages.\158\ As 
to the head of the local NAACP, the Court refused to permit imposition 
of damages based upon speeches that could be read as advocating 
violence, inasmuch as any violent acts that occurred were some time 
after the speeches, and a ``clear and present danger'' analysis of the 
speeches would not find them punishable.\159\ The award against the 
NAACP fell with the denial of damages against its local head, and, in 
any event, the protected right of association required a rule that would 
immunize the NAACP without a finding that it ``authorized--either 
actually or apparently--or ratified unlawful conduct.''\160\

        \155\Id. at 458 U.S., 916-17.
        \156\Id. at 917-18.
        \157\Id. at 918-29, relying on a series of labor cases and on 
the subversive activities association cases, e.g., Scales v. United 
States, 367 U.S. 203 (1961), and Noto v. United States, 367 U.S. 290 
(1961).
        \158\458 U.S. at 920-26. The Court distinguished Milk Wagon 
Drivers Union v. Meadowmoor Dairies, 312 U.S. 287 (1941), in which an 
injunction had been sustained against both violent and nonviolent 
activity, not on the basis of special rules governing labor picketing, 
but because the violence had been ``pervasive.'' 458 U.S. at 923.
        \159\458 U.S. at 926-29. The head's ``emotionally charged 
rhetoric . . . did not transcend the bounds of protected speech set 
forth in Brandenburg v. Ohio, 395 U.S. 444 (1969).''
        \160\Id. at 931. In ordinary business cases, the rule of 
liability of an entity for actions of its agents is broader. E.g., 
American Soc'y of Mech. Eng'rs v. Hydrolevel Corp., 456 U.S. 556 (1982). 
The different rule in cases of organizations formed to achieve political 
purposes rather than economic goals appears to require substantial 
changes in the law of agency with respect to such entities. Note, 96 
Harv. L. Rev. 171, 174-76 (1982).
---------------------------------------------------------------------------

        Claiborne Hardware is, thus, a seminal decision in the Court's 
effort to formulate standards governing state power to regulate or to 
restrict expressive conduct that comes close to or crosses over the line 
to encompass some violent activities; it requires great specificity and 
the drawing of fine discriminations by government so as to reach only 
that portion of the activity that does involve violence or the threat of 
violence, and forecloses the kind of ``public policy'' limit on 
demonstrations that was approved in Hughes v. Superior Court.\161\

        \161\``Concerted action is a powerful weapon. History teaches 
that special dangers are associated with conspiratorial activity. And 
yet one of the foundations of our society is the right of individuals to 
combine with other persons in pursuit of a common goal by lawful means.
        ``[P]etitioners' ultimate objectives were unquestionably 
legitimate. The charge of illegality . . . derives from the means 
employed by the participants to achieve those goals. The use of 
speeches, marches, and threats of social ostracism cannot provide the 
basis for a damages award. But violent conduct is beyond the pale of 
constitutional protection.
        ``The taint of violence colored the conduct of some of the 
petitioners. They, of course, may be held liable for the consequences of 
their violent deeds. The burden of demonstrating that it colored the 
entire collective effort, however, is not satisfied by evidence that 
violence occurred or even that violence contributed to the success of 
the boycott. [The burden can be met only] by findings that adequately 
disclose the evidentiary basis for concluding that specific parties 
agreed to use unlawful means, that carefully identify the impact of such 
unlawful conduct, and that recognizes the importance of avoiding the 
imposition of punishment for constitutionally protected activity. . . . 
A court must be wary of a claim that the true color of a forest is 
better revealed by reptiles hidden in the weeds than by the foliage of 
countless freestanding trees.'' 458 U.S. at 933-34.

---------------------------------------------------------------------------

[[Page 1180]]

        Leafleting, Handbilling, and the Like.--In Lovell v. City of 
Griffin,\162\ the Court struck down a permit system applying to the 
distribution of circulars, handbills, or literature of any kind. The 
First Amendment, the Court said, ``necessarily embraces pamphlets and 
leaflets. These indeed have been historic weapons in the defense of 
liberty, as the pamphlets of Thomas Paine and others in our own history 
abundantly attest.''\163\ State courts, responding to what appeared to 
be a hint in Lovell that prevention of littering and other interests 
might be sufficient to sustain a flat ban on literature 
distribution,\164\ upheld total prohibitions and were reversed. ``Mere 
legislative preferences or beliefs respecting matters of public 
convenience may well support regulation directed at other personal 
activities, but be insufficient to justify such as diminishes the 
exercise of rights so vital to the maintenance of democratic 
institutions . . . . We are of the opinion that the purpose to keep the 
streets clean and of good appearance is insufficient to justify an 
ordinance which prohibits a person rightfully on a public street from 
handing literature to one willing to receive it. Any burden imposed upon 
the city authorities in cleaning and caring for the streets as an 
indirect consequence of such distribution results from the 
constitutional protection of the freedom of speech and press.''\165\ In 
Talley v. California,\166\ the Court struck down an ordinance which 
banned all handbills that did not carry the name and address of the 
author, printer, and sponsor; conviction for violating the ordinance was 
set aside on behalf of one distributing leaflets urging boycotts against 
certain merchants because of their employment discrimination. The basis 
of the decision is not readily ascertainable. On the one hand, the Court 
celebrated anonymity. ``Anonymous pamphlets, leaflets, brochures and 
even books have played an important role in the progress of mankind. 
Persecuted groups and sects from time to time throughout history have 
been able to criticize oppressive practices and laws either anonymously 
or not at all . . . . [I]dentification and fear of reprisal might deter 
perfectly peaceful discussion of public matters of importance.''\167\ On 
the

[[Page 1181]]
other hand, responding to the City's defense that the ordinance was 
aimed at providing a means to identify those responsible for fraud, 
false advertising, and the like, the Court noted that it ``is in no 
manner so limited . . . [and] [t]herefore we do not pass on the validity 
of an ordinance limited to these or any other supposed evils.''\168\

        \162\303 U.S. 444 (1938).
        \163\Id. at 452.
        \164\Id. at 451.
        \165\Schneider v. Town of Irvington, 308 U.S. 147, 161, 162 
(1939). The Court noted that the right to distribute leaflets was 
subject to certain obvious regulations, id. at 160, and called for a 
balancing, with the weight inclined to the First Amendment rights. See 
also Jamison v. Texas, 318 U.S. 413 (1943).
        \166\362 U.S. 60 (1960).
        \167\Id. at 64, 65.
        \168\Id. at 64. In Zwickler v. Koota, 389 U.S. 241 (1967), the 
Court directed a lower court to consider the constitutionality of a 
statute which made it a criminal offense to publish or distribute 
election literature without identification of the name and address of 
the printer and of the persons sponsoring the literature. The lower 
court voided the law, but changed circumstances on a new appeal caused 
the Court to dismiss. Golden v. Zwickler, 394 U.S. 103 (1969).
---------------------------------------------------------------------------

        The handbilling cases were distinguished in City Council v. 
Taxpayers for Vincent,\169\ in which the Court held that a city may 
prohibit altogether the use of utility poles for posting of signs. While 
a city's concern over visual blight could be addressed by an anti-
littering ordinance not restricting the expressive activity of 
distributing handbills, in the case of posting signs ``it is the medium 
of expression itself'' that creates the visual blight. Hence, a 
prohibition on posting signs, unlike a prohibition on distributing 
handbills, is narrowly tailored to curtail no more speech than necessary 
to accomplish the city's legitimate purpose.\170\

        \169\466 U.S. 789 (1984).
        \170\Justice Brennan argued in dissent that adequate alternative 
forms of communication were not readily available because handbilling or 
other person-to-person methods would be substantially more expensive, 
and that the regulation for the sake of aesthetics was not adequately 
justified.
---------------------------------------------------------------------------

        Sound Trucks, Noise.--Physical disruption may occur by other 
means than the presence of large numbers of demonstrators. For example, 
the use of sound trucks to convey a message on the streets may disrupt 
the public peace and may disturb the privacy of persons off the streets. 
The cases, however, afford little basis for a general statement of 
constitutional principle. Saia v. New York,\171\ while it spoke of 
``loud-speakers as today indispensable instruments of effective public 
speech,'' held only that a particular prior licensing system was void. A 
five-to-four majority upheld a statute in Kovacs v. Cooper,\172\ which 
was ambiguous with regard to whether all sound trucks were banned or 
only ``loud and raucous'' trucks and which the state court had 
interpreted as having the latter meaning. In another case, the Court 
upheld an antinoise ordinance which the state courts had interpreted 
narrowly to bar only noise that actually or immediately threatened to 
disrupt normal school activity during school hours.\173\ But the Court 
was careful to tie its ruling to the principle that the particular 
requirements

[[Page 1182]]
of education necessitated observance of rules designed to preserve the 
school environment.\174\ More recently, reaffirming that government has 
``a substantial interest in protecting its citizens from unwelcome 
noise,'' the Court applied time, place, and manner analysis to uphold 
New York City's sound amplification guidelines designed to prevent 
excessive noise and assure sound quality at outdoor concerts in Central 
Park.\175\

        \171\334 U.S. 558, 561 (1948).
        \172\336 U.S. 77 (1949).
        \173\Grayned v. City of Rockford, 408 U.S. 104 (1972).
        \174\Id. at 117. Citing Saia and Kovacs as examples of 
reasonable time, place, and manner regulation, the Court observed: ``If 
overamplifled loudspeakers assault the citizenry, government may turn 
them down.'' Id. at 116.
        \175\Ward v. Rock Against Racism, 491 U.S. 781 (1989).
---------------------------------------------------------------------------

        Door-to-Door Solicitation.--In another Jehovah's Witness case, 
the Court struck down an ordinance forbidding solicitors or distributors 
of literature from knocking on residential doors in a community, the 
aims of the ordinance being to protect privacy, to protect the sleep of 
many who worked nightshifts, and to protect against burglars posing as 
canvassers. The five-to-four majority concluded that on balance ``[t]he 
dangers of distribution can so easily be controlled by traditional legal 
methods, leaving to each householder the full right to decide whether he 
will receive strangers as visitors, that stringent prohibition can serve 
no purpose but that forbidden by the Constitution, the naked restriction 
of the dissemination of ideas.''\176\

        \176\Martin v. City of Struthers, 319 U.S. 141, 147 (1943).
---------------------------------------------------------------------------

        More recently, while striking down an ordinance because of 
vagueness, the Court observed that it ``has consistently recognized a 
municipality's power to protect its citizens from crime and undue 
annoyance by regulating soliciting and canvassing. A narrowly drawn 
ordinance, that does not vest in municipal officers the undefined power 
to determine what messages residents will hear, may serve these 
important interests without running afoul of the First Amendment.''\177\ 
The Court indicated that its precedents supported measures that would 
require some form of notice to officials and the obtaining of 
identification in order that persons could canvas house-to-house for 
charitable or political purposes.

        \177\Hynes v. Mayor of Oradell, 425 U.S. 610, 616-17 (1976). 
Justices Brennan and Marshall did not agree with the part of the opinion 
approving the regulatory power. Id. at 623.
---------------------------------------------------------------------------

        However, an ordinance which limited solicitation of 
contributions door-to-door by charitable organizations to those which 
use at least 75% of their receipts directly for charitable purposes, 
defined so as to exclude the expenses of solicitation, salaries, 
overhead, and other administrative expenses, was invalidated as 
overbroad.\178\ A

[[Page 1183]]
privacy rationale was rejected, inasmuch as just as much intrusion was 
likely by permitted solicitors as by unpermitted ones. A rationale of 
prevention of fraud was unavailing, inasmuch as it could not be said 
that all associations that spent more than 25% of their receipts on 
overhead were actually engaged in a profit making enterprise, and, in 
any event, more narrowly drawn regulations, such as disclosure 
requirements, could serve this governmental interest.

        \178\Village of Schaumburg v. Citizens for a Better Environment, 
444 U.S. 620 (1980). See also Larson v. Valente, 456 U.S. 228 (1982) 
(state law distinguishing between religious organizations and their 
solicitation of funds on basis of whether organizations received more 
than half of their total contributions from members or from public 
solicitation violates establishment clause). Meyer v. Grant, 486 U.S. 
414 (1988) (criminal penalty on use of paid circulators to obtain 
signatures for ballot initiative suppresses political speech in 
violation of First and Fourteenth Amendments).
---------------------------------------------------------------------------

        Shaumberg was extended in Secretary of State of Maryland v. 
Joseph H. Munson Co.,\179\ and Riley v. National Fed'n of the 
Blind.\180\ In Munson the Court invalidated a Maryland statute limiting 
professional fundraisers to 25% of the amount collected plus certain 
costs, and allowing waiver of this limitation if it would effectively 
prevent the charity from raising contributions. And in Riley the Court 
invalidated a North Carolina fee structure containing even more 
flexibility.\181\ The Court sees ``no nexus between the percentage of 
funds retained by the fundraiser and the likelihood that the 
solicitation is fraudulent,'' and is similarly hostile to any scheme 
that shifts the burden to the fundraiser to show that a fee structure is 
reasonable.\182\ Moreover, a requirement that fundraisers disclose to 
potential donors the percentage of donated funds previously used for 
charity was also invalidated in Riley, the Court indicating that the 
``more benign and narrowly tailored'' alternative of disclosure to the 
state (accompanied by state publishing of disclosed percentages) could 
make the information publicly available without so threatening the 
effectiveness of solicitation.\183\

        \179\467 U.S. 947 (1984).
        \180\487 U.S. 781 (1988).
        \181\A fee of up to 20% of collected receipts was deemed 
reasonable, a fee between 20 and 35% was permissible if the solicitation 
involved advocacy or the dissemination of information, and a fee in 
excess of 35% was presumptively unreasonable, but could be upheld upon 
one of two showings: that advocacy or dissemination of information was 
involved, or that otherwise the charity's ability to collect money or 
communicate would be significantly diminished.
        \182\487 U.S. at 793.
        \183\Id. at 800. North Carolina's requirement for licensing of 
professional fundraisers was also invalidated in Riley, id. at 801-02.
---------------------------------------------------------------------------

        The Problem of ``Symbolic Speech.''--Very little expression is 
``mere'' speech. If it is oral, it may be noisy enough to be 
disturbing,\184\ and, if it is written, it may be litter;\185\ in either 
case, it may amount to conduct that is prohibitable in specific cir

[[Page 1184]]
cumstances.\186\ Moving beyond these simple examples, one may see as 
well that conduct may have a communicative content, intended to express 
a point of view. Expressive conduct may consist in flying a particular 
flag as a symbol\187\ or in refusing to salute a flag as a symbol.\188\ 
Sit-ins and stand-ins may effectively express a protest about certain 
things.\189\

        \184\E.g., Saia v. New York, 334 U.S. 558 (1948); Kovacs v. 
Cooper, 336 U.S. 77 (1949).
        \185\E.g., Schneider v. Town of Irvington, 308 U.S. 147 (1939).
        \186\Cf. Cohen v. California, 403 U.S. 15 (1971).
        \187\Stromberg v. California, 283 U.S. 359 (1931).
        \188\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 
(1943).
        \189\In Brown v. Louisiana, 383 U.S. 131 (1966), the Court held 
protected a peaceful, silent stand-in in a segregated public library. 
Speaking of speech and assembly, Justice Fortas said for the Court: ``As 
this Court has repeatedly stated, these rights are not confined to 
verbal expression. They embrace appropriate types of action which 
certainly include the right in a peaceable and orderly manner to protest 
by silent and reproachful presence, in a place where the protestant has 
every right to be, the unconstitutional segregation of public 
facilities.'' Id. at 141-42. See also Garner v. Louisiana, 368 U.S. 157, 
185, 201 (1961) (Justice Harlan concurring). On a different footing is 
expressive conduct in a place where such conduct is prohibited for 
reasons other than suppressing speech. See Clark v. Community for 
Creative Non-Violence, 468 U.S. 288 (1984) (upholding Park Service 
restriction on overnight sleeping as applied to demonstrators wishing to 
call attention to the plight of the homeless).
---------------------------------------------------------------------------

        Justice Jackson wrote: ``There is no doubt that, in connection 
with the pledge, the flag salute is a form of utterance. Symbolism is a 
primitive but effective way of communicating ideas. The use of an emblem 
or flag to symbolize some system, idea, institution, or personality is a 
short cut from mind to mind.''\190\ When conduct or action has a 
communicative content to it, governmental regulation or prohibition 
implicates the First Amendment, but this does not mean that such conduct 
or action is necessarily immune from governmental process. Thus, while 
the Court has had few opportunities to formulate First Amendment 
standards in this area, in upholding a congressional prohibition on 
draft-card burnings, it has stated the generally applicable rule. ``[A] 
government regulation is sufficiently justified if it is within the 
constitutional power of Government; if it furthers an important or 
substantial governmental interest; if the governmental interest is 
unrelated to the suppression of free expression; and if the incidental 
restriction on alleged First Amendment freedom is no greater than is 
essential to the furtherance of that government interest.''\191\ The 
Court has suggested that this standard is virtually identical to that 
applied to time, place, or manner restrictions on expression.\192\

        \190\West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 
632 (1943).
        \191\United States v. O'Brien, 391 U.S. 367, 377 (1968).
        \192\Clark v. Community for Creative Non-Violence, 468 U.S. 288, 
298 & n.8 (1984).
---------------------------------------------------------------------------

        Although almost unanimous in formulating and applying the test 
in O'Brien, the Court splintered when it had to deal with one

[[Page 1185]]
of the more popular forms of ``symbolic'' conduct of the late 1960s and 
early 1970s--flag burning and other forms of flag desecration. The Court 
remains closely divided to this day. No unifying theory capable of 
application to a wide range of possible flag abuse actions emerged from 
the early cases. Thus, in Street v. New York,\193\ the defendant had 
been convicted under a statute punishing desecration ``by words or act'' 
upon evidence that when he burned the flag he had uttered contemptuous 
words. The conviction was set aside because it might have been premised 
on his words alone or on his words and the act together, and no valid 
governmental interest supported penalizing verbal contempt for the 
flag.\194\

        \193\394 U.S. 576 (1969).
        \194\Id. at 591-93. Four dissenters concluded that the First 
Amendment did not preclude a flat proscription of flag burning or flag 
desecration for expressive purposes. Id. at 594 (Chief Justice Warren), 
609 (Justice Black), 610 (Justice White), and 615 (Justice Fortas). In 
Radich v. New York, 401 U.S. 531 (1971), aff'g 26 N.Y. 2d 114, 257 N.E. 
2d 30 (1970), an equally divided Court, Justice Douglas not 
participating, sustained a flag desecration conviction of one who 
displayed sculptures in a gallery, using the flag in some apparently 
sexually bizarre ways to register a social protest. Defendant 
subsequently obtained his release on habeas corpus, United States ex 
rel. Radich v. Criminal Court, 459 F.2d 745 (2d Cir. 1972), cert. denied 
409 U.S. 115 (1973).
---------------------------------------------------------------------------

        A few years later the Court reversed two other flag desecration 
convictions, one on due process/vagueness grounds, the other under the 
First Amendment. were decided by the Court in a manner that indicated an 
effort to begin to resolve the standards of First Amendment protection 
of ``symbolic conduct.'' In Smith v. Goguen,\195\ a statute punishing 
anyone who ``publicly . . . treats contemptuously the flag of the United 
States . . . ,'' was held unconstitutionally vague, and a conviction for 
wearing trousers with a small United States flag sewn to the seat was 
overturned. The language subjected the defendant to criminal liability 
under a standard ``so indefinite that police, court, and jury were free 
to react to nothing more than their own preferences for treatment of the 
flag.''\196\

        \195\415 U.S. 566 (1974).
        \196\Id. at 578.
---------------------------------------------------------------------------

        The First Amendment was the basis for reversal in Spence v. 
Washington,\197\ in which a conviction under a statute punishing the 
display of a United States flag to which something is attached or 
superimposed was set aside; Spence had hung his flag from his apartment 
window upside down with a peace symbol taped to the front and back. The 
act, the Court thought, was a form of communication, and because of the 
nature of the act, the factual context and environment in which it was 
undertaken, the Court held it to be protected. The context included the 
fact that the flag was pri

[[Page 1186]]
vately owned, that it was displayed on private property, and that there 
was no danger of breach of the peace. The nature of the act was that it 
was intended to express an idea and it did so without damaging the flag. 
The Court assumed that the State had a valid interest in preserving the 
flag as a national symbol, but whether that interest extended beyond 
protecting the physical integrity of the flag was left unclear.\198\

        \197\418 U.S. 405 (1974).
        \198\Id. at 408-11, 412-13. Subsequently, the Court vacated, 
over the dissents of Chief Justice Burger and Justices White, Blackmun, 
and Rehnquist, two convictions for burning flags and sent them back for 
reconsideration in the light of Goguen and Spence. Sutherland v. 
Illinois, 418 U.S. 907 (1974); Farrell v. Iowa, 418 U.S. 907 (1974). The 
Court did, however, dismiss, ``for want of a substantial federal 
question,'' an appeal from a flag desecration conviction of one who, 
with no apparent intent to communicate but in the course of 
``horseplay,'' blew his nose on a flag, simulated masturbation on it, 
and finally burned it. Van Slyke v. Texas, 418 U.S. 907 (1974).
---------------------------------------------------------------------------

        The underlying assumption that flag burning could be prohibited 
as a means of protecting the flag's symbolic value was later rejected. 
Twice, in 1989 and again in 1990, the Court held that prosecutions for 
flag burning at a public demonstration violated the First Amendment. 
First, in Texas v. Johnson\199\ the Court rejected a state desecration 
statute designed to protect the flag's symbolic value, and then in 
United States v. Eichman\200\ rejected a more limited federal statute 
purporting to protect only the flag's physical integrity. Both cases 
were decided by 5-to-4 votes, with Justice Brennan writing the Court's 
opinions.\201\ The Texas statute invalidated in Johnson defined the 
prohibited act of ``desecration'' as any physical mistreatment of the 
flag that the actor knew would seriously offend other persons. This 
emphasis on causing offense to others meant that the law was not 
``unrelated to the suppression of free expression'' and that 
consequently the deferential standard of United States v. O'Brien was 
inapplicable. Applying strict scrutiny, the Court ruled that the State's 
prosecution of someone who burned a flag at a political protest was not 
justified under the State's asserted interest in preserving the flag as 
a symbol of nationhood and national unity. The Court's opinion left 
little doubt that the existing Federal statute, 18 U.S.C. Sec. 700, and 
the flag desecration laws of 47 other states would suffer a similar fate 
in a similar case. Doubt remained, however, as to whether the Court

[[Page 1187]]
would uphold a ``content-neutral'' statute protecting the physical 
integrity of the flag.

        \199\491 U.S. 397 (1989).
        \200\496 U.S. 310 (1990).
        \201\In each case Justice Brennan's opinion for the Court was 
joined by Justices Marshall, Blackmun, Scalia, and Kennedy, and in each 
case Chief Justice Rehnquist and Justices White, Stevens, and O'Connor 
dissented. In Johnson the Chief Justice's dissent was joined by Justices 
White and O'Connor, and Justice Stevens dissented separately. In Eichman 
Justice Stevens wrote the only dissenting opinion, to which the other 
dissenters subscribed.
---------------------------------------------------------------------------

        Immediately following Johnson, Congress enacted a new flag 
protection statute providing punishment for anyone who ``knowingly 
mutilates, defaces, physically defiles, burns, maintains on the floor or 
ground, or tramples upon any flag of the United States.''\202\ The law 
was designed to be content-neutral, and to protect the ``physical 
integrity'' of the flag.\203\ Nonetheless, in upholding convictions of 
flag burners, the Court found that the law suffered from ``the same 
fundamental flaw'' as the Texas law in Johnson. The government's 
underlying interest, characterized by the Court as resting upon ``a 
perceived need to preserve the flag's status as a symbol of our Nation 
and certain national ideals,''\204\ still related to the suppression of 
free expression. Support for this interpretation was found in the fact 
that most of the prohibited acts are usually associated with 
disrespectful treatment of the flag; this suggested to the Court ``a 
focus on those acts likely to damage the flag's symbolic value.''\205\ 
As in Johnson, such a law could not withstand ``most exacting scrutiny'' 
analysis.

        \202\The Flag Protection Act of 1989, Pub. L. 101-131.
        \203\See H.R. Rep. No. 231, 101st Cong., 1st Sess. 8 (1989) 
(``The purpose of the bill is to protect the physical integrity of 
American flags in all circumstances, regardless of the motive or 
political message of any flag burner'').
        \204\United States v. Eichman, 496 U.S. at 316.
        \205\Id. at 317.
---------------------------------------------------------------------------

        The Court's ruling in Eichman rekindled congressional efforts, 
postponed with enactment of the Flag Protection Act, to amend the 
Constitution to authorize flag desecration legislation at the federal 
and state levels. In both the House and the Senate these measures failed 
to receive the necessary two-thirds vote.\206\

        \206\The House defeated H.J. Res. 350 by vote of 254 in favor to 
177 against (136 Cong. Rec. H4086 (daily ed. June 21, 1990); the Senate 
defeated S.J. Res. 332 by vote of 58 in favor to 42 against (136 Cong. 
Rec. S8737 (daily ed. June 26, 1990).
---------------------------------------------------------------------------



                             FIRST AMENDMENT

                         RELIGION AND EXPRESSION

 
                     RIGHTS OF ASSEMBLY AND PETITION

      Background and Development

        The right of petition took its rise from the modest provision 
made for it in chapter 61 of Magna Carta (1215).\207\ To this meagre 
beginning are traceable, in some measure, Parliament itself and its 
procedures in the enactment of legislation, the equity jurisdiction of 
the Lord Chancellor, and proceedings against the Crown by ``petition of 
right.'' Thus, while the King summoned Parliament for the purpose of 
supply, the latter--but especially the House of Com

[[Page 1188]]
mons--petitioned the King for a redress of grievances as its price for 
meeting the financial needs of the Monarch, and as it increased in 
importance it came to claim the right to dictate the form of the King's 
reply, until, in 1414, Commons declared itself to be ``as well assenters 
as petitioners.'' Two hundred and fifty years later, in 1669, Commons 
further resolved that every commoner in England possessed ``the inherent 
right to prepare and present petitions'' to it ``in case of grievance,'' 
and of Commons ``to receive the same'' and to judge whether they were 
``fit'' to be received. Finally Chapter 5 of the Bill of Rights of 1689 
asserted the right of the subjects to petition the King and ``all 
commitments and prosecutions for such petitioning to be illegal.''\208\

        \207\C. Stephenson & F. Marcham, Sources of English 
Constitutional History 125 (1937).
        \208\12 Encyclopedia of the Social Sciences 98 (1934).
---------------------------------------------------------------------------

        Historically, therefore, the right of petition is the primary 
right, the right peaceably to assemble a subordinate and instrumental 
right, as if the First Amendment read: ``the right of the people 
peaceably to assemble'' in order to ``petition the government.''\209\ 
Today, however, the right of peaceable assembly is, in the language of 
the Court, ``cognate to those of free speech and free press and is 
equally fundamental. . . . [It] is one that cannot be denied without 
violating those fundamental principles of liberty and justice which lie 
at the base of all civil and political institutions--principles which 
the Fourteenth Amendment embodies in the general terms of its due 
process clause. . . . The holding of meetings for peaceable political 
action cannot be proscribed. Those who assist in the conduct of such 
meetings cannot be branded as criminals on that score. The question 
. . . is not as to the auspices under which the meeting is held but as 
to its purposes; not as to the relation of the speakers, but whether 
their utterances transcend the bounds of the freedom of speech which the 
Constitution protects.''\210\ Furthermore, the right of petition has 
expanded. It is no longer confined to demands for ``a redress of 
grievances,'' in any accurate meaning of these words, but comprehends 
demands for an exercise by the Government of its powers in furtherance 
of the interest and prosperity of the petitioners and of their views on 
politically contentious matters.\211\ The right extends to the 
``approach of citizens or groups of them to administrative agencies 
(which are both creatures of the legislature, and arms of the executive) 
and to courts, the third branch of Government. Certainly the right to 
petition extends to all departments of the Government. The right of ac

[[Page 1189]]
cess to the courts is indeed but one aspect of the right of 
petition.''\212\

        \209\United States v. Cruikshank, 92 U.S. 542, 552 (1876), 
reflects this view.
        \210\De Jonge v. Oregon, 299 U.S. 353, 364, 365 (1937). See also 
Herndon v. Lowry, 301 U.S. 242 (1937).
        \211\See Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 
365 U.S. 127 (1961).
        \212\California Motor Transport Co. v. Trucking Unlimited, 404 
U.S. 508, 510 (1972). See also NAACP v. Claiborne Hardware Co., 458 U.S. 
886, 913-15 (1982); Missouri v. NOW, 620 F.2d 1301 (8th Cir.), cert. 
denied, 449 U.S. 842 (1980) (boycott of States not ratifying ERA may not 
be subjected to antitrust suits for economic losses because of its 
political nature).
---------------------------------------------------------------------------

        The right of petition recognized by the First Amendment first 
came into prominence in the early 1830's, when petitions against slavery 
in the District of Columbia began flowing into Congress in a constantly 
increasing stream, which reached its climax in the winter of 1835. 
Finally on January 28, 1840, the House adopted as a standing rule: 
``That no petition, memorial, resolution, or other paper praying the 
abolition of slavery in the District of Columbia, or any State or 
Territories of the United States in which it now exists, shall be 
received by this House, or entertained in any way whatever.'' Because of 
efforts of John Quincy Adams, this rule was repealed five years 
later.\213\ For many years now the rules of the House of Representatives 
have provided that members having petitions to present may deliver them 
to the Clerk and the petitions, except such as in the judgment of the 
Speaker are of an obscene or insulting character, shall be entered on 
the Journal and the Clerk shall furnish a transcript of such record to 
the official reporters of debates for publication in the Record.\214\ 
Even so, petitions for the repeal of the espionage and sedition laws and 
against military measures for recruiting resulted, in World War I, in 
imprisonment.\215\ Processions for the presentation of petitions in the 
United States have not been particularly successful. In 1894 General 
Coxey of Ohio organized armies of unemployed to march on Washington and 
present petitions, only to see their leaders arrested for unlawfully 
walking on the grass of the Capitol. The march of the veterans on 
Washington in 1932 demanding bonus legislation was defended as an 
exercise of the right of petition. The Administration, however, regarded 
it as a threat against the Constitution and called out the army to expel 
the bonus marchers and burn their camps. Marches and encampments have 
become more common since, but the results have been mixed.

        \213\The account is told in many sources. E.g., S. Bemis, John 
Quincy Adams and the Union, chs. 17, 18 and pp. 446-47 (1956).
        \214\Rule 22, para. 1, Rules of the House of Representatives, 
H.R. Doc. No. 256, 101st Congress, 2d sess. 571 (1991).
        \215\1918 Att'y Gen. Ann. Rep. 48.
---------------------------------------------------------------------------

        The Cruikshank Case.--The right of assembly was first before the 
Supreme Court in 1876\216\ in the famous case of United

[[Page 1190]]
States v. Cruikshank.\217\ The Enforcement Act of 1870\218\ forbade 
conspiring or going onto the highways or onto the premises of another to 
intimidate any other person from freely exercising and enjoying any 
right or privilege granted or secured by the Constitution of the United 
States. Defendants had been indicted under this Act on charges of having 
deprived certain citizens of their right to assemble together peaceably 
with other citizens ``for a peaceful and lawful purpose.'' While the 
Court held the indictment inadequate because it did not allege that the 
attempted assembly was for a purpose related to the Federal Government, 
its dicta broadly declared the outlines of the right of assembly. ``The 
right of the people peaceably to assemble for the purpose of petitioning 
Congress for a redress of grievances, or for anything else connected 
with the powers or the duties of the National Government, is an 
attribute of national citizenship, and, as such, under the protection 
of, and guaranteed by, the United States. The very idea of a government, 
republican in form, implies a right on the part of its citizens to meet 
peaceably for consultation in respect to public affairs and to petition 
for a redress of grievances. If it had been alleged in these counts that 
the object of the defendants was to prevent a meeting for such a 
purpose, the case would have been within the statute, and within the 
scope of the sovereignty of the United States.''\219\ Absorption of the 
assembly and petition clauses into the liberty protected by the due 
process clause of the Fourteenth Amendment means, or course, that the 
Cruikshank limitation is no longer applicable.\220\

        \216\See, however, Crandall v. Nevada, 73 U.S. (6 Wall.) 35 
(1868), in which the Court gave as one of its reasons for striking down 
a tax on persons leaving the State its infringement of the right of 
every citizen to come to the seat of government and to transact any 
business he might have with it.
        \217\92 U.S. 542 (1876).
        \218\Act of May 31, 1870, ch.114, 16 Stat. 141 (1870).
        \219\United States v. Cruikshank, 92 U.S 542, 552-53 (1876).
        \220\De Jonge v. Oregon, 299 U.S. 353 (1937); Hague v. CIO, 307 
U.S. 496 (1939); Bridges v. California, 314 U.S. 252 (1941); Thomas v. 
Collins, 323 U.S. 516 (1945).
---------------------------------------------------------------------------

        The Hague Case.--Illustrative of this expansion is Hague v. 
CIO,\221\ in which the Court, though splintered with regard to reasoning 
and rationale, struck down an ordinance which vested an uncontrolled 
discretion in a city official to permit or deny any group the 
opportunity to conduct a public assembly in a public place. Justice 
Roberts, in an opinion which Justice Black joined and with which Chief 
Justice Hughes concurred, found protection against state abridgment of 
the rights of assembly and petition in the privileges and immunities 
clause of the Fourteenth Amendment. ``The privilege of a citizen of the 
United States to use the streets and parks for communication of views on 
national questions

[[Page 1191]]
may be regulated in the interest of all; it is not absolute, but 
relative, and must be exercised in subordination to the general comfort 
and convenience, and in consonance with peace and good order; but it 
must not, in the guise of regulation, be abridged or denied.''\222\ 
Justices Stone and Reed invoked the due process clause of the Fourteenth 
Amendment for the result, thereby claiming the rights of assembly and 
petition for aliens as well as citizens. ``I think respodents' right to 
maintain it does not depend on their citizenship and cannot rightly be 
made to turn on the existence or non-existence of a purpose to 
disseminate information about the National Labor Relations Act. It is 
enough that petitioners have prevented respondents from holding meetings 
and disseminating information whether for the organization of labor 
unions or for any other lawful purpose.''\223\ This due process view of 
Justice Stone has carried the day over the privileges and immunities 
approach.

        \221\307 U.S. 496 (1939).
        \222\Id. at 515. For another holding that the right to petition 
is not absolute, see McDonald v. Smith, 472 U.S. 479 (1985) (the fact 
that defamatory statements were made in the context of a petition to 
government does not provide absolute immunity from libel).
        \223\Id. at 525.
---------------------------------------------------------------------------

        Later cases tend to merge the rights of assembly and petition 
into the speech and press clauses, and, indeed, all four rights may well 
be considered as elements of an inclusive right to freedom of 
expression. Certain conduct may call forth a denomination of 
petition\224\ or assembly,\225\ but there seems little question that no 
substantive issue turns upon whether one may be said to be engaged in 
speech or assembly or petition.

        \224\E.g., United States v. Harriss, 347 U.S. 612 (1954); 
Eastern R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 
(1961).
        \225\E.g., Coates v. City of Cincinnati, 402 U.S. 611 (1971).