The First Amendment - Constitutional Analysis

In Speiser, a unanimous Court invalidated a veterans’ property tax exemption provided by the California Constitution, which required recipients of the exemption to compete an application form that included an oath by which the applicant asserted that he did not advocate the overthrow of the government of the United States. Brennan, J., writing for the Court, wrote that denying an exemption to claimants who engaged in certain forms of speech was, in effect, penalizing them for such speech, noting that the deterrent effect was the same as if the State were to fine them for their speech. The Court denied that the provision could be justified as targeting unlawful advocacy, because it was overbroad with respect to this speech. Further, the Court distinguished cases in which the Court had sustained the validity of loyalty oaths required for public employees. The Court noted that the government’s interest in these cases was substantially greater than California’s interest in restricting its property tax exemption to loyal soldiers. And the Court suggested that “the congressional purpose was to achieve an objective other than restraint on speech” and that the effect on speech was tangential. “The principal aim of those statutes was not to penalize political beliefs, but to deny positions to persons supposed to be dangerous because the position might be misused to the detriment of the public.” But the provision being considered in this case could not be justified on this ground. #baselines

In Regan, the Court upheld a provision of the federal tax law that conditioned tax-exempt status on the requirement that an organization not participate in lobbying or partisan political activities. The Court said that Congress had not infringed any First Amendment activity; it had merely declined to pay for TWR’s lobbying. The Court found no indication that the statute was intended to suppress any ideas or any demonstration that it has had that effect. And “a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.” The Court indicated that the case would have come out differently if Congress were to discriminate invidiously in its subsidies in such a way as to aim at the suppression of dangerous ideas.

Blackmun, J., concurred in the judgment because the tax code allowed nonprofit organizations to create a separate affiliate group to pursue its charitable goals through lobbying.

Compare this case to Citizens United. It is clear that the Regan Court did not consider political lobbying to be on par with more conventional expressive activities.

In League of Women Voters, the Court declared unconstitutional a federal statute that prohibited any noncommercial educational broadcasting station which received a grant from the Corporation for Public Broadcasting from engaging in any editorializing. The Court distinguished Regan on the ground that a broadcasting station had no means to segregate its activities according to the source of its funding.

In Velazquez, the Court used the unconstitutional conditions doctrine to invalidate a restriction on the activities of lawyers receiving funds from the federal Legal Services Corporation. The statute prevented a legal representative funded by a recipient of LSC money from seeking to amend or otherwise challenge existing welfare law. The Court found it significant that the prohibition applied to all of the activities of an LSC grantee, including those paid for by non-LSC funds. Further, the Court was concerned that the law would “distort[] the legal system by altering the traditional role of attorneys,” undermine the adversarial nature of a lawsuit involving a LSC attorney, and insulate the government’s interpretation of the constitution from judicial review. Scalia, J., dissented, arguing that there was no precedent for the proposition that the First Amendment had anything to do with government funding that – though it does not actually abridge anyone’s speech – distorts an existing speech medium. Contra Arizona v. Bennett (majority opinion joined by Scalia, J.). Scalia also found it notable that, unlike League of Women Voters, there was an opt-out option, whereby a recipient of government aid could establish an affiliate to engage in the conduct the government wished to avoid subsidizing.

In Lamont, the Court invalidated a federal statute permitting delivery of “communist political propaganda” only if the addressee specifically requested in writing that it be delivered. The Court held that the government could not impose such an affirmative obligation on an individual seeking to receive the material, arguing that the rule would have an impermissible deterrent effect on the ability of individuals to confront these materials. Compare Meese v. Keene (upholding the Foreign Agents Registration Act of 1938, which required the labeling of expressive materials deemed “political propaganda” to comply with registration, filing, and disclosure requirements, concluding that the term “propaganda” could be deemed to have a neutral meaning, and rejecting the argument that the use of the label “political propaganda” with respect to the works in question constituted a “conscious attempt to place a whole categories of materials beyond the pale of legitimate discourse.”).

In Stanley, the Court held that the First Amendment protected the possession of obscene material in the home. “The constitutional right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” In concurrence, Stewart, J., emphasized that the material was seized in violation of the Fourth Amendment. Compare Osborne v. Ohio (holding that Stanley did not apply to the possession of child pornography, even in the home).

Tribe indicated that Osborne could be reconciled with Stanley as involving a regulation designed to address the secondary effects of child pornography, and not a regulation seeking to ban sexual thoughts about children. Cf. Gonzalez v. Raich (presumably, the government has a legitimate interest only in drying up the market for a drug that has harmful secondary effects, not in stopping people from enjoying the subjective state of being high).

In Richmond Newspapers, the Court held that there is a First Amendment right for the public and the press to attend criminal trials. The plurality, per Burger, C.J., wrote that “the right to attend criminal trials is implicit in the guarantees of the First Amendment; without the freedom to attend such trials, which people have exercised for centuries, important aspects of freedom of speech and of the press could be eviscerated.” Further, the plurality noted the importance of appearances: “To work effectively, it is important that society’s criminal process satisfy the appearance of justice and the appearance of justice can best be provided by allowing people to observe it.” “Absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public.”

Brennan, J., concurred in the judgment. “The First Amendment embodies more than a commitment to free expression and communicative interchange for its own sake; it has a structural role to play in securing and fostering our republican system of self-government.” Stewart, J., concurring in the judgment, emphasized that “a trial courtroom is a place where representatives of the press and the public are not only free to be, but where their presence serves to assure the integrity of what goes on.”

In Johnson, the Court declared unconstitutional a Texas law prohibiting any person to “deface … or otherwise physically mistreat” a flag in a way that the actor knows “will seriously offend one or more persons likely to observe or discover his action.” Brennan, J., writing for the Court, emphasized that the government’s interest was not unrelated to suppression of the message; to the contrary, the law’s purpose was to keep the flag from being used to communicate protest or dissent. Further, the Court stressed that the statute did not prevent all flag destruction, but only applied where there would be offense to others. “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because it finds the idea itself offensive of disagreeable.”

In Eichman, the Court invalidated the Flag Protection Act of 1989, a federal statute enacted in response to Johnson. The Court said that the statute had the same fundamental flaw as the Texas law that had been invalidated a year earlier: The law’s primary purpose was to keep the flag from being used to communicate protest or dissent.

Note that in Eichman and Johnson the Court did not apply the O’Brien test because it concluded that the restriction on speech was directly related to the message.

In Whitney, the Court upheld a “criminal syndicalism” conviction for an individual who joined the Communist Labor Party of California. The Court held that “a state may punish those who abuse freedom of speech by utterances inimical to the public welfare, tending to incite to crime … or endanger the...