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Establishment of religion
{{main|Establishment Clause of the First Ame'[ When considering private authority figures (such as a child's parents or an employee's employer), Constitutional free speech provides no protection. A private authority figure may reserve the right to censor their subordinate's speech, or discriminate on the basis of speech, without any legal consequences. For example, per the at will employment doctrine, an employee may be fired from their occupation for speaking out against a politician that the employer likes.
Political speech
Main article: campaign finance reformThe Federal Election Campaign Act of 1971 and related laws restricted the monetary contributions that may be made to political campaigns and expenditure by candidates. The Supreme Court considered the constitutionality of the Act in Buckley v. Valeo, 424 U.S. 1 (1976). The Court affirmed some parts of the Act and rejected others. The Court concluded that limits on campaign contributions "serve the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion." At the same time, the Court overturned the expenditure limits, which it found imposed "substantial restraints on the quantity of political speech."
Further rules on campaign finance were scrutinized by the Court when it determined McConnell v. Federal Election Commission 540 U.S. 93 (2003). The case centered on the Bipartisan Campaign Reform Act of 2002, a law that introduced several new restrictions on campaign financing. The Supreme Court upheld provisions which barred the raising of soft money by national parties and the use of soft money by private organizations to finance certain election-related advertisements. At the same time, the Court struck down the "choice of expenditure" rule, which required that parties could either make coordinated expenditures for all its candidates, or permit candidates to spend independently, but not both, further stating that a "provision place an unconstitutional burden on the parties' right to make unlimited independent expenditures." The Supreme Court also ruled that the provision preventing minors from making political contributions was unconstitutional, relying on the precedent on the Tinker case. In Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. ___ (2007), the Supreme Court sustained an "as applied" challenge to provisions of the 2002 law dealing with advertising shortly before a primary/caucus or an election. In Davis v. Federal Election Commission, 554 U. S. ____ (2008), the Supreme Court declared the "Millionaire's Amendment" provisions of the BCRA to be unconstitutional. The Court held that easing BCRA restrictions for an opponent of a self-financing candidate spending at least $350,000 of his own money violated the freedom of speech of the self-financing candidate.
Free speech zones are areas set aside in public places for political activists to exercise their right of free speech as an exercise of what is commonly called "TPM" or "time, place manner" regulation of speech. Free speech zones are set up by the Secret Service who scout locations near which the president is to pass or speak. Officials may target those displaying signs and escort them to the free speech zones prior to and during the event. Protesters who refuse to go to free speech zones could be arrested and charged with trespassing, disorderly conduct and resisting arrest. In 2003, a seldom-used federal law was brought up that says that "willfully and knowingly to enter or remain in any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the Secret Service is or will be temporarily visiting" is a crime.
Involuntary commitment
A small minority has questioned whether involuntary commitment laws, when the diagnosis of mental illness leading, in whole or in part, to the commitment, was made to some degree on the basis of the speech or writings of the committed individual, violates the right of freedom of speech of such individuals.
The First Amendment implications of involuntary administration of psychotropic medication have also been questioned. Though the United States District Court for the District of Massachusetts, in Mills v. Rogers, 457 U.S. 291 (1982) found that "whatever powers the Constitution has granted our government, involuntary mind control is not one of them," this finding was not of precedential value, and the Supreme Court ruling was essentially inconclusive. A 1978 case in the United States District Court for the District of New Jersey, Rennie v. Klein, 462 F. Supp. 1131 (D.N.J. 1978), held that an involuntarily committed patient has the right to refuse medication.
In the landmark decision O'Connor v. Donaldson, 422 U.S. 563 (1975), the Supreme Court ruled that a patient cannot be involuntarily committed without due process. The mental health bar, spearheaded by the American Civil Liberties Union (ACLU), has interpreted this decision to mean it is unconstitutional to commit a person for treatment who is not imminently a danger to himself or others and is capable to a minimal degree of surviving on his own. This interpretation has hampered efforts to implement changes in commitment laws through out the United States, as most states insist the person meet the "imminent danger" standard, accepting the ACLU's interpretation of the Donaldson case.
Memoirs of convicted criminals
In some states, there are laws prohibiting convicted criminals from publishing memoirs for profit. These laws are collectively and colloquially called Son of Sam laws, after a murderer nicknamed Son of Sam. In 1991, the Supreme Court struck down a law of this type in New York as a violation of the First Amendment in the case Simon & Schuster v. Crime Victims Board, 502 U.S. 105 (1991). That statute did not outlaw publication of a memoir by a convicted criminal. Instead, it provided that all profits from the book were to be put in escrow for a period of time. The interest from the escrow account was used to fund the New York State Crime Victims Board — an organization that pays the medical and related bills of victims of crime. Similar laws in other states remain unchallenged.
Freedom of the press
Main article: Freedom of the pressFreedom of the press, like freedom of speech, is subject to restrictions on bases such as defamation law. Restrictions, however, have been struck down if they are aimed at the political message or content of newspapers.
In Branzburg v. Hayes, 408 U.S. 665 (1972), the Court placed limits on the ability of the Press to refuse a subpoena from a Grand Jury based on claims of Freedom of the Press. The issue decided in the case was whether a reporter could refuse to "appear and testify before state and Federal grand juries" basing the refusal on the contention that such appearance and testimony "abridges the freedom of speech and press guaranteed by the First Amendment." The 5-4 decision was that such a protection was not provided by the First Amendment.
Taxation of the press
State governments retain the right to tax newspapers, just as they may tax other commercial products. Generally, however, taxes that focus exclusively on newspapers have been found unconstitutional. In Grosjean v. American Press Co. 297 U.S. 233 (1936), the Court invalidated a state tax on newspaper advertising revenues. Similarly, some taxes that give preferential treatment to the press have been struck down. In 1987, for instance, the Court invalidated an Arkansas law exempting "religious, professional, trade and sports journals" from taxation since the law amounted to the regulation of newspaper content.
In Leathers v. Medlock, 499 U.S. 439 (1991), the Supreme Court found that states may treat different types of the media differently, such as by taxing cable television, but not newspapers. The Court found 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."
Content regulation
The courts have rarely treated content-based regulation of the press with any sympathy. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974), the Court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses. The state claimed that the law had been passed to ensure press responsibility. Finding that only freedom, and not press responsibility, is mandated by the First Amendment, the Supreme Court ruled that the government may not force newspapers to publish that which they do not desire to publish.
Content-based regulation of television and radio, however, have been sustained by the Supreme Court in various cases. Since there are a limited number of frequencies for non-cable television and radio stations, the government licenses them to various companies. The Supreme Court, however, has ruled that the problem of scarcity does not permit the raising of a First Amendment issue. The government may restrain broadcasters, but only on a content-neutral basis.
In Federal Communications Commission v. Pacifica Foundation, 438 U.S. 726 (1978), the Supreme Court upheld the authority of the FCC to restrict the use of profane language in broadcasting.
Petition and assembly
Main articles: Right to petition in the United States and Freedom of assemblyThe right to petition the government has been interpreted as extending to petitions of all three branches: the Congress, the executive and the judiciary. The Supreme Court has interpreted "redress of grievances" broadly; thus, it is possible for one to request the government to exercise its powers in furtherance of the general public good. However, a few times Congress has directly limited the right to petition. During the 1790s, Congress passed the Alien and Sedition Acts, punishing opponents of the Federalist Party; the Supreme Court never ruled on the matter. In 1835 the House of Representatives adopted the "Gag Rule," barring abolitionist petitions calling for the end of slavery. The Supreme Court did not hear a case related to the rule, which was in any event abolished in 1844. During World War I, individuals petitioning for the repeal of sedition and espionage laws (see above) were punished; again, the Supreme Court did not rule on the matter.
The right of assembly was originally closely tied to the right to petition. One significant case involving the two rights was United States v. Cruikshank, 92 U.S. 542 (1875). There, the Supreme Court held that citizens may "assemble for the purpose of petitioning Congress for a redress of grievances." Essentially, it was held that the right to assemble was secondary, while the right to petition was primary. Later cases, however, have expanded the meaning of the right to assembly. Hague v. CIO, 307 U.S. 496 (1939), for instance, refers to the right to assemble for the "communication of views on national questions" and for "disseminating information."
International significance
Most provisions of the United States Bill of Rights are based on the English Bill of Rights (1689) and on other aspects of English law. The English Bill of Rights, however, does not include many of the protections found in the First Amendment. For example, while the First Amendment guarantees freedom of speech to the general populace, the English Bill of Rights only protected "freedom of speech and debates or proceedings in Parliament." The Declaration of the Rights of Man and of the Citizen, a French revolutionary document passed only weeks before Congress proposed the Bill of Rights, contains certain guarantees that are similar to the First Amendment's. For instance, it suggests that "every citizen may, accordingly, speak, write, and print with freedom."
While the First Amendment does not explicitly set restrictions on freedom of speech, other declarations of rights sometimes do so. The European Convention on Human Rights, for example, permits restrictions "in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." Similarly the Indian constitution allows "reasonable" restrictions upon free speech to serve "public order, security of State, decency or morality."
The First Amendment was one of the first guarantees of religious freedom: neither the English Bill of Rights, nor the French Declaration of Rights, contains an equivalent guarantee.
References
- A synopsis of the FEC v. WRTL decision
- Synopsis of Davis v. FEC
- 18 U.S.C. § 1752
- United States v. Bursey, 416 F.3d 301 (2005)
- "O'Connor v. Donaldson, 422 U.S. 563 (1975)". Retrieved 2007-10-03.
{{cite web}}: Cite has empty unknown parameter:|month=(help) - Arkansas Writers' Project V. Ragland, 481 U.S. 221 (1987)
- English translation Declaration of the Rights of Man, art. 11
- European Convention on Human Rights art. 10 (entered into force Sept. 3, 1953)
- Const. of India, art. 19, cl. 2 (in English)
See also
- American Constitutional Amendments
- Establishment Clause
- Frank Murphy
- Free Exercise Clause
- Freedom of association
- Freedom of thought
- Lemon v. Kurtzman - Established the Lemon Test for evaluating government violations of the Establishment Clause.
- Marketplace of ideas
- United States Supreme Court cases involving the First Amendment
Sources
- Kilman, J. & Costello, G. (Eds). (2000). The Constitution of the United States of America: Analysis and Interpretation.
- Haynes, C. "Religious liberty in public life." (2004).
- Hoover Institution. "Campaign Finance." (2004).
- Irons, P. (1999). A People's History of the Supreme Court. New York: Penguin.
- Emerson, Thomas I. (1963). "Toward a General Theory of the First Amendment". Yale Law Journal. 72 (5): 877–956. doi:10.2307/794655.
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External links
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- Cornell Law School - Annotated Constitution
- First Amendment Center - The First Amendment Library
- First Amendment Articles at the Legal Satyricon