Constitution of the United States/First Amend.: Difference between revisions

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{{Breadcrumb|parent_page=Constitution of the United States|alias =First Amendment}}<font size="+3">First Amendment Fundamental Freedoms</font>
{{Breadcrumb|parent_page=Constitution of the United States|alias =First Amendment}}<font size="+3">First Amendment: Fundamental Freedoms</font>


===Overview===
===Overview===
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===Religion===
===Religion===
 
:<big>'''[[{{ROOTPAGENAME}}/First Amend./Religion|Main Article]]'''</big>
====Overview of the Religion Clauses (Establishment and Free Exercise Clauses)====
====Overview of the Religion Clauses (Establishment and Free Exercise Clauses)====


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A religious belief may fall within the scope of the clauses even if it is not consistent with the tenets of a particular Christian sect, and non-Christian religions are also protected.<ref><span id="ALDF_00021772">''See, e.g.'', ''[[Frazee]]'', 489 U.S. at 834; ''[[Cruz v. Beto]]'', 405 U.S. 319, 322 (1972).</span></ref> One 1965 case noted "the ever-broadening understanding of the modern religious community," discussing conceptions beyond even traditional theism.<ref><span id="ALDF_00021773">''[[Seeger]]'', 380 U.S. at 180.</span></ref> In an Establishment Clause case decided a few years earlier, the Court had stated that the government may not "aid all religions as against non-believers," or "aid those religions based on a belief in the existence of God as against those religions founded on different beliefs."<ref><span id="ALDF_00021774">''[[Torcaso v. Watkins]]'', 367 U.S. 488, 495 (1961).</span></ref>
A religious belief may fall within the scope of the clauses even if it is not consistent with the tenets of a particular Christian sect, and non-Christian religions are also protected.<ref><span id="ALDF_00021772">''See, e.g.'', ''[[Frazee]]'', 489 U.S. at 834; ''[[Cruz v. Beto]]'', 405 U.S. 319, 322 (1972).</span></ref> One 1965 case noted "the ever-broadening understanding of the modern religious community," discussing conceptions beyond even traditional theism.<ref><span id="ALDF_00021773">''[[Seeger]]'', 380 U.S. at 180.</span></ref> In an Establishment Clause case decided a few years earlier, the Court had stated that the government may not "aid all religions as against non-believers," or "aid those religions based on a belief in the existence of God as against those religions founded on different beliefs."<ref><span id="ALDF_00021774">''[[Torcaso v. Watkins]]'', 367 U.S. 488, 495 (1961).</span></ref>
====Historical Background====
=====Introduction to the Historical Background on the Religion Clauses=====
As the Supreme Court has recognized, many colonists left Europe and settled in America "to escape the bondage of laws which compelled them to support and attend government-favored churches."<ref><span id="ALDF_00021775">''[[Everson v. Bd. of Educ.]]'', 330 U.S. 1, 8 (1947).</span></ref> Scholars have described the modern concepts of "religious liberty" and "separation of church and state" as originating with the development of the United States.<ref><span id="ALDF_00021776">''See, e.g.'', Robert T. Miller, Religious Conscience in Colonial New England, 50 J. Church &amp; State 661, 661 (2008); Leo Pfeffer, Church State and Freedom 727 (rev. ed. 1967); Sanford Hoadley Cobb, The Rise of Religious Liberty in America vii (Johnson Reprint Corp. 1970) (1902).</span></ref> The Framers of the Religion Clauses built upon almost two centuries of historical developments that shaped this American model of religious freedom after the arrival of the earliest colonists. During these formative years--and even after the First Amendment's ratification--the concept of freedom of religion lacked a fixed meaning.<ref><span id="ALDF_00021777">''See, e.g.'', Thomas J. Curry, Church and State in Seventeenth and Eighteenth Century America, 7 J. L. &amp; Religion 261, 271-73 (1989).</span></ref> The concept evolved significantly over the colonial period in tandem with political and social movements. Accordingly, while the Supreme Court has often suggested that colonial and Revolutionary history is important in determining the meaning of the Religion Clauses,<ref><span id="ALDF_00021778">''E.g.'', ''[[Reynolds v. United States]]'', 98 U.S. 145, 162 (1878).</span></ref> jurists and historians have disagreed about which history appropriately informs the clauses, given the complexity and variability of that history.<ref><span id="ALDF_00021779">''See generally, e.g.'', Steven K. Green, The Supreme Court's Ahistorical Religion Clause Historicism, 73 Baylor L. Rev. 505 (2021).</span></ref>
The colonists left a European society in which church and state were closely interconnected.<ref><span id="ALDF_00021780">John Witte, Jr. &amp; Joel A. Nichols, Religion and the American Constitutional Experiment 1 (4th ed. 2016).</span></ref> Historically, political leaders throughout the world believed that a government could not legislate to preserve public morals or maintain civil order unless the state based its rule in a religion that was followed by the populace.<ref><span id="ALDF_00021781">''See, e.g.'', Pfeffer, ''supra'' note [[#ALDF_00021776|here]], at 4; Richard Hooker, Of the Laws of Ecclesiastical Polity (1590s), ''reprinted in'' The Sacred Rights of Conscience 30-33 (Daniel L. Dreisbach &amp; Mark David Hall eds., 2009); John Locke, A Letter on Toleration (1689), ''in'' The Sacred Rights of Conscience, ''supra'', at 50.</span></ref> The features of historic state-sponsored religions, known as religious "establishments," included a government-recognized state church; laws outlining religious orthodoxy or church governance; compulsory church attendance; state financial support for the church; proscriptions on religious dissent; the limitation of political participation to the state church's members; and the use of churches for civil functions such as education or marriage.<ref><span id="ALDF_00021782">''See'' Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. &amp; Mary L. Rev. 2105, 2131 (2003); Chester James Antieau et al., Freedom from Federal Establishment 1-2 (1964).</span></ref>
Even in colonial times, there were debates about what types of state support for religion created a religious "establishment," and what level of state support was appropriate. Although some of the colonists may have fled religious persecution in England and other European countries, many New World colonies initially mandated the practice of a specific religion and persecuted those who did not comply.<ref><span id="ALDF_00021783">''See, e.g.'', ''[[Everson]]'', 330 U.S. at 9-10. ''See'' [[{{ROOTPAGENAME}}/First Amend.#State-Established Religion in the Colonies|First Amend.: State-Established Religion in the Colonies]].</span></ref> Some of the colonies that did not designate a single official religion still limited citizenship to Christians and adopted other hallmarks of an established state religion.<ref><span id="ALDF_00021784">''See'' [[{{ROOTPAGENAME}}/First Amend.#State-Established Religion in the Colonies|First Amend.: State-Established Religion in the Colonies]]; [[{{ROOTPAGENAME}}/First Amend.#Colonial Concepts of Religious Liberty|First Amend.: Colonial Concepts of Religious Liberty]].</span></ref>
During the colonial period and Revolution, however, some colonies began to recognize broader conceptions of religious liberty and embrace greater separation between church and state.<ref><span id="ALDF_00021785">''See'' [[{{ROOTPAGENAME}}/First Amend.#Virginia's Movement Towards Religious Freedom|First Amend.: Virginia's Movement Towards Religious Freedom]].</span></ref> Delegates to the Continental Congress expressed diverse views on the issue in debates leading up to the adoption of the First Amendment's Religion Clauses.<ref><span id="ALDF_00021786">''See'' [[{{ROOTPAGENAME}}/First Amend.#Virginia's Movement Towards Religious Freedom|First Amend.: Virginia's Movement Towards Religious Freedom]]; [[{{ROOTPAGENAME}}/First Amend.#Continental Congresses and Religious Freedom|First Amend.: Continental Congresses and Religious Freedom]].</span></ref> Although the Religion Clauses immediately constrained the federal government, some states continued to support religious establishments even after the First Amendment's ratification.<ref><span id="ALDF_00021787">''See'' [[{{ROOTPAGENAME}}/First Amend.#Early Interpretations of the Religion Clauses|First Amend.: Early Interpretations of the Religion Clauses]].</span></ref> Nonetheless, all states had disestablished religion decades before the Supreme Court held that states were legally obligated to comply with the Religion Clauses through the Fourteenth Amendment, reflecting continued debates and shifting attitudes towards religious liberty.<ref><span id="ALDF_00021788">''See'' [[{{ROOTPAGENAME}}/First Amend.#Early Interpretations of the Religion Clauses|First Amend.: Early Interpretations of the Religion Clauses]]. The process of disestablishment was gradual in many states, with various elements of the religious establishments being repealed at different times.</span></ref>
=====England and Religious Freedom=====
Religious freedom has played a central role in the mythos of the United States' Founding.<ref><span id="ALDF_00021789">''See, e.g.'', Samuel Adams, The Rights of the Colonists, A List of Violations of Rights and a Letter of Correspondence (1772), ''reprinted in'' The Sacred Rights of Conscience 202-04 (Daniel L. Dreisbach &amp; Mark David Hall eds., 2009); IV. The Declaration as Adopted by Congress, Nat'l Archives, Founders Online (July 6, 1775), [https://founders.archives.gov/documents/Jefferson/01-01-02-0113-0005]. ''Cf., e.g.'', Robert T. Miller, Religious Conscience in Colonial New England, 50 J. Church &amp; State 661, 662 (2008) (stating that English colonization of North America was motivated by a variety of factors, including not only religious motives but also "imperialism, economic and social pressures, humanitarianism, and the spirit of adventure").</span></ref> Accordingly, the Supreme Court has sometimes looked to state sponsorship of religion prior to the Founding to determine what the drafters of the First Amendment's Religion Clauses intended to reject.<ref><span id="ALDF_00021790">''See, e.g.'', ''[[Engel v. Vitale]]'', 370 U.S. 421, 425-26 (1962).</span></ref> While a unified church and state was once the dominant governance model worldwide,<ref><span id="ALDF_00021791">''See, e.g.'', Leo Pfeffer, Church State and Freedom 3 (1967).</span></ref> the Church of England provides one particularly salient example of a state religion that was familiar to the Founders.<ref><span id="ALDF_00021792">''See, e.g.'', Frank Lambert, The Founding Fathers and the Place of Religion in America 184-94 (2003) (discussing the influence of English dissenters on the Founders).</span></ref>
King Henry VIII established the Church of England through the Act of Supremacy in 1534,<ref><span id="ALDF_00021793">John Witte, Jr. &amp; Joel A. Nichols, Religion and the American Constitutional Experiment 16 (4th ed. 2016).</span></ref> and Queen Elizabeth reestablished the Church in 1559 after a period of political and religious turbulence.<ref><span id="ALDF_00021794">Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. &amp; Mary L. Rev. 2105, 2112-13, 2113 n.30 (2003). ''See also'' Lambert, ''supra'' note [[#ALDF_00021792|here]], at 37-40 (discussing political and religious developments in this period).</span></ref> The Church of England's establishment placed the country's ecclesiastical courts under domestic control rather than under the control of the Pope.<ref><span id="ALDF_00021795">R.B. Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500-1860, at 15 (J.H. Baker ed., 2006). ''See also'' ''id.'' (noting arguments that the break with Rome led to the decline of these courts); ''id.'' at 68-77 (discussing these arguments as well as contemporaneous criticisms of the courts).</span></ref> These ecclesiastical courts, which operated in parallel with England's civil courts, had jurisdiction over purely religious matters such as spiritual nonconformity; so-called moral offenses such as drunkenness or adultery; and disputes over marriages, tithes, wills, and defamation.<ref><span id="ALDF_00021796">''Id.'' at 5-7.</span></ref>
Following the end of the English Civil War in 1651, four acts collectively known as the Clarendon Code reentrenched the church.<ref><span id="ALDF_00021797">Clarendon Code, Encyclopedia Britannica, [https://www.britannica.com/event/Clarendon-Code] (last visited June 1, 2022).</span></ref> One of these laws, the Act of Uniformity of 1662, prescribed a common form of worship and required ministers to follow this form of worship to hold religious office.<ref><span id="ALDF_00021798">''Id.''</span></ref> Other laws limited officeholding to Anglicans and restricted non-Anglican worship.<ref><span id="ALDF_00021799">''See'' ''id.''</span></ref> The ecclesiastical courts were also restored in 1661 with largely unchanged jurisdiction, although use of the courts declined significantly over the ensuing decades.<ref><span id="ALDF_00021800">Outhwaite, ''supra'' note [[#ALDF_00021795|here]], at 79, 95.</span></ref>
Thus, English laws preferred members of the established Church of England, excluded dissenters, and commingled ecclesiastical and civil functions.<ref><span id="ALDF_00021801">Chester James Antieau et al., Freedom from Federal Establishment 3 (1964).</span></ref> The government dictated official modes of worship, claimed jurisdiction over areas such as education and marriage that had previously been governed by the Roman Catholic Church, required membership in the established church to be considered a legal citizen, and criminalized religious dissent.<ref><span id="ALDF_00021802">Witte &amp; Nichols, ''supra'' note [[#ALDF_00021793|here]], at 16-17.</span></ref> Nonetheless, the government did not view the Act of Uniformity as violating freedom of conscience: in England's view, while it dictated ''public'' observance of religion and prevented dissenters from undermining the established church, it did not dictate ''private'' beliefs.<ref><span id="ALDF_00021803">Lambert, ''supra'' note [[#ALDF_00021792|here]], at 40. ''Cf., e.g.'', Douglas Laycock, Continuity and Change in the Threat to Religious Liberty: The Reformation Era and the Late Twentieth Century, 80 Minn. L. Rev. 1047, 1064 (1996) (discussing English imprisonment of Quakers and execution of Catholics).</span></ref>
The Toleration Act of 1689 lifted criminal penalties for nonconformists' public worship if the dissenters took certain oaths or declared their loyalty to the crown and professed their Christian belief.<ref><span id="ALDF_00021804">Toleration Act, Encylopedia Britannica, [https://www.britannica.com/event/Toleration-Act-Great-Britain-1689] (last visited June 1, 2022).</span></ref> However, the law did not extend the right of public worship to Roman Catholics or other non-Protestant dissenters, and all non-Anglicans continued to be barred from holding public office.<ref><span id="ALDF_00021805">Toleration Act, 1689, The Jacobite Heritage(Oct. 26, 2003), [http://www.jacobite.ca/documents/1689toleration.htm].</span></ref> Furthermore, the Church of England retained its special status. England considered the Toleration Act to apply directly to the colonies.<ref><span id="ALDF_00021806">The application was debated by the colonies, but in 1752, a Presbyterian minister seeking licenses to preach in Virginia obtained an opinion from the British attorney general saying that the Toleration Act did apply in the colonies and the minister should receive his licenses. George William Pilcher, Samuel Davies and Religious Toleration in Virginia, 28 The Historian 48, 62-63 (1965).</span></ref> As discussed in subsequent essays, this Act granted more religious liberty than some of the colonies did at the time and influenced those colonies to move toward further religious freedom.<ref><span id="ALDF_00021807">''See'' [[{{ROOTPAGENAME}}/First Amend.#England and Religious Freedom|First Amend.: England and Religious Freedom]]; ''see also, e.g.'', Pfeffer, ''supra'' note [[#ALDF_00021791|here]], at 93.</span></ref>
=====State-Established Religion in the Colonies=====
At least initially, the colonies largely continued the historical practice of having state-established religion in America; although not every colony had one officially designated state religion, every colonial government had some elements of a religious "establishment," as defined in an earlier essay.<ref><span id="ALDF_00021808">[[{{ROOTPAGENAME}}/First Amend.#Introduction to the Historical Background on the Religion Clauses|First Amend.: Introduction to the Historical Background on the Religion Clauses]].</span></ref> Nonetheless, even the colonies that did designate and support an official religion viewed their own governments as quite different from the English system.<ref><span id="ALDF_00021809">Thomas J. Curry, The First Freedoms 133, 209-13 (1986).</span></ref>
The first English colony, Virginia, illustrates the evolving approach to government and religion. Virginia established the Church of England as the colony's official church.<ref><span id="ALDF_00021810">Michael W. McConnell, Establishment and Disestablishment at the Founding, Part I: Establishment of Religion, 44 Wm. &amp; Mary L. Rev. 2105, 2116 (2003) (discussing the first and second Virginia charters); ''see also'' Curry, ''supra'' note [[#ALDF_00021809|here]], at 29 (discussing early religious legislation, including regulations of the Virginia Company).</span></ref> Early governors adopted martial laws requiring daily worship and prohibiting blasphemy, among other provisions prescribing religious order.<ref><span id="ALDF_00021811">Articles, Laws, and Orders, Virginia (1610-11), ''reprinted in'' The Sacred Rights of Conscience 84-86 (Daniel L. Dreisbach &amp; Mark David Hall eds., 2009). Later forms of government in the colony continued to intertwine religious and civil authority. ''See'' Frank Lambert, The Founding Fathers and the Place of Religion in America 54-56 (2003).</span></ref> The government supported and required conformity to the established church, and church vestries exercised semi-civil political functions.<ref><span id="ALDF_00021812">''See'' Sanford Hoadley Cobb, The Rise of Religious Liberty in America 80-81, 87 (Johnson Reprint Corp. 1970) (1902).</span></ref> As England reetrenched the established church after the English Civil War, Virginia followed the crown's instructions by supporting the church.<ref><span id="ALDF_00021813">''Id.'' at 91-92.</span></ref> Among other provisions, Virginia laws adopted in 1661 and 1662 required colonists to erect churches and support ministers at public expense, prescribed proper forms of worship, and punished those who publicly worshipped outside the established church.<ref><span id="ALDF_00021814">McConnell, ''supra'' note [[#ALDF_00021810|here]], at 2118-19.</span></ref> However, in contrast to England, the civil government rather than church authorities assumed jurisdiction over marriages, wills, and the appointment of ministers<ref><span id="ALDF_00021815">Curry, ''supra'' note [[#ALDF_00021809|here]], at 30.</span></ref>--although such functions were, by law, carried out in accordance with the Church of England's doctrines.<ref><span id="ALDF_00021816">McConnell, ''supra'' note [[#ALDF_00021810|here]], at 2118-19.</span></ref> The Church of England was also established in the Carolinas, but those colonies tolerated a greater diversity of religious views than Virginia.<ref><span id="ALDF_00021817">''See'' Cobb, ''supra'' note [[#ALDF_00021812|here]], at 116-19; Curry, ''supra'' note [[#ALDF_00021809|here]], at 56-62.</span></ref>
The New England colonies of Plymouth, Massachusetts, Connecticut, and New Haven were established by Puritans who similarly provided for colonial government sponsorship of that religion. These colonies sought to establish a unified community operating according to a "pure" religious doctrine<ref><span id="ALDF_00021818">Curry, ''supra'' note [[#ALDF_00021809|here]], at 3-5. ''Cf.'' McConnell, ''supra'' note [[#ALDF_00021810|here]], at 2121-22 (distinguishing the Pilgrim settlers of Plymouth from other New England Puritans).</span></ref> that followed "the first Plantation of the Primitive Church" rather than the established Church of England.<ref><span id="ALDF_00021819">John Cotton, Sermon, Gods Promise to His Plantation (1630), [https://digitalcommons.unl.edu/etas/22].</span></ref> In Massachusetts Bay, Puritans mandated the construction and financial support of Congregational churches.<ref><span id="ALDF_00021820">Frank Lambert, The Founding Fathers and the Place of Religion in America 76 (2003).</span></ref> A public confession of faith was necessary to become a citizen of the colony.<ref><span id="ALDF_00021821">''Id.'' at 78-79.</span></ref> Dissenters in these colonies were punished harshly with imprisonment or expulsion, and Massachusetts executed four Quakers between 1658 and 1661.<ref><span id="ALDF_00021822">Curry, ''supra'' note [[#ALDF_00021809|here]], at 21-22.</span></ref> Nonetheless, Puritan churches were independent associations that lacked a central church authority in the manner of the Church of England.<ref><span id="ALDF_00021823">Curry, ''supra'' note [[#ALDF_00021809|here]], at 5; Lambert, ''supra'' note [[#ALDF_00021820|here]], at 82.</span></ref>
Although New England Puritans operated their colonies according to religious doctrine, they distinguished civil from religious authority, and clergy could exercise authority only over religious affairs.<ref><span id="ALDF_00021824">Lambert, ''supra'' note [[#ALDF_00021820|here]], at 82.</span></ref> Notably, the Puritans did not create ecclesiastical courts,<ref><span id="ALDF_00021825">Curry, ''supra'' note [[#ALDF_00021809|here]], at 5.</span></ref> which they had protested in England.<ref><span id="ALDF_00021826">R.B. Outhwaite, The Rise and Fall of the English Ecclesiastical Courts, 1500-1860, at 72, 76-77 (J.H. Baker ed., 2006). For more discussion of the English ecclesiastical courts, see [[{{ROOTPAGENAME}}/First Amend.#Introduction to the Historical Background on the Religion Clauses|First Amend.: Introduction to the Historical Background on the Religion Clauses]].</span></ref> The Puritans' conception of separate spheres of authority, however, did not preclude the civil government from prosecuting idolatry or blasphemy.<ref><span id="ALDF_00021827">Lambert, ''supra'' note [[#ALDF_00021820|here]], at 84.</span></ref> In the Puritans' view, liberty of conscience did not encompass the liberty to practice religious error.<ref><span id="ALDF_00021828">Curry, ''supra'' note [[#ALDF_00021809|here]], at 6. ''See also, e.g.'', ''id.'' at 88-89 (discussing Massachusetts prosecutions of those who criticized Congregationalism or the colony's treatment of religious dissenters); Lambert, ''supra'' note [[#ALDF_00021820|here]], at 90 (describing Puritan thinkers who defined religious liberty "in terms of religious purity").</span></ref> Accordingly, punishing those who deviated from religious doctrine did not violate liberty of conscience, and the government could punish public deviations or errors without improperly invading the church's authority.<ref><span id="ALDF_00021829">Curry, ''supra'' note [[#ALDF_00021809|here]], at 6, 8; ''see also'' John Witte, Jr. &amp; Joel A. Nichols, Religion and the American Constitutional Experiment 26-27 (4th ed. 2016) (discussing the cooperation of church and state in Puritan colonies).</span></ref>
There is some debate over whether there was an established church in the colony of New York, in the sense of an officially designated state church.<ref><span id="ALDF_00021830">''See, e.g.'', Curry, ''supra'' note [[#ALDF_00021809|here]], at 71.</span></ref> New York, like the Carolinas, demonstrated the conflict between the unpopular established Church of England and other, more popular religious causes.<ref><span id="ALDF_00021831">Curry, ''supra'' note [[#ALDF_00021809|here]], at 76.</span></ref> The colony guaranteed free religious exercise to all Christians but required parishes to select ministers and collect taxes to establish and support churches at the local level.<ref><span id="ALDF_00021832">Curry, ''supra'' note [[#ALDF_00021809|here]], at 62-63; McConnell, ''supra'' note [[#ALDF_00021810|here]], at 2130.</span></ref> Following the Toleration Act's adoption in England, New York excluded Catholics from guarantees of the liberty of conscience and adopted the Ministry Act of 1693, which required "the settling of a ministry."<ref><span id="ALDF_00021833">Curry, ''supra'' note [[#ALDF_00021809|here]], at 64-65.</span></ref> There was debate over whether this act referred only to Anglican ministers, or whether the language was broad enough to allow towns to select other Protestant ministers.<ref><span id="ALDF_00021834">Curry, ''supra'' note [[#ALDF_00021809|here]], at 65-67.</span></ref>
Maryland somewhat similarly faced pressure from the Church of England after initially tolerating more religious diversity.<ref><span id="ALDF_00021835">''See'' McConnell, ''supra'' note [[#ALDF_00021810|here]], at 2128.</span></ref> Early colonial leaders were Catholic and seemed to hope that Catholics and Protestants could live together peacefully in Maryland.<ref><span id="ALDF_00021836">Kenneth Lasson, Free Exercise in the Free State: Maryland's Role in the Development of First Amendment Jurisprudence, 31 J. Church &amp; St. 419, 422-23 (1989); Curry, ''supra'' note [[#ALDF_00021809|here]], at 31-33.</span></ref> Lord Baltimore largely ignored his authority from England to build and dedicate Anglican churches, along with requests from Catholics for special government recognition.<ref><span id="ALDF_00021837">Curry, ''supra'' note [[#ALDF_00021809|here]], at 35-36.</span></ref> In 1649, Maryland adopted the Act Concerning Religion, which guaranteed that no person "professing to believe in Jesus Christ" could be troubled in the free exercise of religion--but also decreed strict penalties for blasphemy by non-Trinitarians.<ref><span id="ALDF_00021838">Curry, ''supra'' note [[#ALDF_00021809|here]], at 38-39; Lasson, ''supra'' note [[#ALDF_00021836|here]], at 428-29.</span></ref> However, following political and religious upheaval in the colony, in the late 1600s and early 1700s, the Maryland government adopted laws depriving Catholics of their previously held civil rights and, ultimately, establishing the Church of England.<ref><span id="ALDF_00021839">Curry, ''supra'' note [[#ALDF_00021809|here]], at 35-48; Lasson, ''supra'' note [[#ALDF_00021836|here]], at 435.</span></ref>
=====Colonial Concepts of Religious Liberty=====
Although the colonies did not grant full religious freedom as the concept would be understood today, some nonetheless refrained from establishing an official state-sponsored church and granted more religious liberty than, for example, Virginia or the Puritan colonies.<ref><span id="ALDF_00021840">In addition to Rhode Island and Pennsylvania, discussed here, New Jersey also did not have an established church. Thomas J. Curry, The First Freedoms 72 (1986). ''Cf.'' Sanford Hoadley Cobb, The Rise of Religious Liberty in America 416 (Johnson Reprint Corp. 1970) (1902) (saying instructions from the crown to support the Church of England "kept up the fiction of an establishment in New Jersey"). Further, although Georgia established the Church of England, it also guaranteed freedom of religion to non-Catholics and tolerated significant religious diversity. ''Id.'', at 419, 152-53. For a definition of religious "establishment," ''see'' [[{{ROOTPAGENAME}}/First Amend.#Introduction to the Historical Background on the Religion Clauses|First Amend.: Introduction to the Historical Background on the Religion Clauses]].</span></ref>
Rhode Island granted more religious liberty than other New England colonies. Roger Williams, the founder of Rhode Island, was expelled from Massachusetts Bay for criticizing the Puritan government and arguing for a stronger separation between church and state.<ref><span id="ALDF_00021841">Frank Lambert, The Founding Fathers and the Place of Religion in America 88-89 (2003).</span></ref> Williams was himself a Puritan minister who sought to propagate the "true church"--but he believed this could be achieved only by maintaining "a wall of Separation between the Garden of the Church and the Wildernes[s] of the world."<ref><span id="ALDF_00021842">Roger Williams, Mr. Cottons Letter Lately Printed, Examined and Answered (1644), ''reprinted in'' The Sacred Rights of Conscience 147 (Daniel L. Dreisbach &amp; Mark David Hall eds., 2009); ''see also'' Curry, ''supra'' note [[#ALDF_00021840|here]], at 15, 17.</span></ref> In a pamphlet published in England, Williams argued against civil persecution for matters of conscience, writing that civil states should not be the judges of spiritual matters.<ref><span id="ALDF_00021843">Roger Williams, The Bloudy Tenent, of Persecution for Cause of Conscience (1644), ''reprinted in'' 5 The Founder's Constitution 48-49 (Philip B. Kurland &amp; Ralph Lerner eds., 1987).</span></ref>
Rhode Island's royal charter granted liberty of conscience, providing that no person would be "molested, punished, disquieted or called in question, for any differences in opinion in matters of religion," so long as the person did not "actually disturb the civil peace."<ref><span id="ALDF_00021844">Rhode Island Royal Charter, 1663, R.I. Sec'y of State, [https://www.sos.ri.gov/assets/downloads/documents/RI-Charter-annotated.pdf] (last visited June 14, 2022).</span></ref> To preserve this civil peace, however, the civil government prohibited crimes such as adultery and fornication, and required observance of the Sabbath.<ref><span id="ALDF_00021845">Curry, ''supra'' note [[#ALDF_00021840|here]], at 20-21.</span></ref> Furthermore, the colony adopted laws limiting citizenship and public office to Protestants.<ref><span id="ALDF_00021846">Leo Pfeffer, Church State and Freedom 85 (rev. ed. 1967).</span></ref> Nonetheless, Rhode Island did not adopt criminal laws persecuting the few Catholic and Jewish people residing within the colony,<ref><span id="ALDF_00021847">''Id.''; ''see also'' Curry, ''supra'' note [[#ALDF_00021840|here]], at 90-91 (saying that Jewish people in the colony "were free to practice their religion" but "did so as second-class citizens," and claiming that "Catholics never came to the colony in numbers sufficient to test its liberality").</span></ref> and in contrast to other New England colonies, Rhode Island generally found no reason to charge Quakers with breach of the civil peace.<ref><span id="ALDF_00021848">Curry, ''supra'' note [[#ALDF_00021840|here]], at 23.</span></ref>
Pennsylvania also granted some religious liberty. William Penn, a Quaker, founded Pennsylvania in 1681 as a "holy experiment" in religious liberty.<ref><span id="ALDF_00021849">Lambert, ''supra'' note [[#ALDF_00021841|here]], at 102 (quoting a letter from William Penn to James Harrison). ''See also'' William Penn, ''Frame of Government of Pennsylvania'' (1682), ''in'' The Sacred Rights of Conscience, ''supra'' note [[#ALDF_00021842|here]], at 117.</span></ref> Accordingly, the initial laws for the colony granted religious freedom to all theists, providing that anyone who would "acknowledge the one Almighty and eternal God, to be the Creator, Upholder and Ruler of the world" could not "be molested or prejudiced for their religious persuasion, or practice" or "compelled, at any time, to frequent or maintain any religious worship, place or ministry whatever."<ref><span id="ALDF_00021850">Laws Agreed Upon in England, &amp;c, 1682, ''in'' The Sacred Rights of Conscience, ''supra'' note [[#ALDF_00021842|here]], at 118.</span></ref> Although the diverse religious groups in Pennsylvania had social and political disagreements, they did not face persecution from the government for their religious beliefs alone, as they did elsewhere.<ref><span id="ALDF_00021851">''See, e.g.'', Lambert, ''supra'' note [[#ALDF_00021841|here]], at 114.</span></ref> While this made Pennsylvania unusually tolerant for the era, the colony still limited office-holding to Christians, forbade work on the Sabbath, and prohibited a variety of "offences against God" such as swearing, drunkenness, and fornication.<ref><span id="ALDF_00021852">Laws Agreed Upon in England, &amp;c, 1682, ''in'' The Sacred Rights of Conscience, ''supra'' note [[#ALDF_00021842|here]], at 118-19.</span></ref>
=====Virginia's Movement Towards Religious Freedom=====
Virginia, which initially established the Church of England as the church of the colony,<ref><span id="ALDF_00021853">For a discussion of the Virginia establishment, see [[{{ROOTPAGENAME}}/First Amend.#State-Established Religion in the Colonies|First Amend.: State-Established Religion in the Colonies]].</span></ref> began to provide greater religious liberty in the years leading up to the adoption of the Constitution. Toward the end of the colonial period, some Virginia leaders began to look to Pennsylvania as a model for liberty, expressing distaste for Virginia's state-sponsored religious establishment.<ref><span id="ALDF_00021854">''See, e.g.'', Letter from James Madison to William Bradford (Apr. 1, 1774), [https://founders.archives.gov/documents/Madison/01-01-02-0031].</span></ref> By the time Virginia adopted its first state constitution in 1776, it provided that "all men are equally entitled to the free exercise of religion, according to the dictates of conscience."<ref><span id="ALDF_00021855">Va. Const. of 1776, &#167; 16, [https://encyclopediavirginia.org/entries/the-constitution-of-virginia-1776].</span></ref> Notwithstanding this new constitutional protection for the free exercise of religion, the Church of England remained Virginia's legally established church.<ref><span id="ALDF_00021856">Thomas J. Curry, The First Freedoms 133, 135-36 (1986).</span></ref> There was significant debate over the next decade about whether the state could or should impose a general assessment to support religion, or whether financial support would instead become voluntary.<ref><span id="ALDF_00021857">''Id.'' at 136.</span></ref>
In 1779, Jefferson introduced his Virginia Statute for Religious Freedom in the Virginia Assembly.<ref><span id="ALDF_00021858">Thomas Jefferson, Draft of the Virginia Statute for Religious Freedom, ''in'' Jefferson &amp; Madison on Separation of Church &amp; State 48 (Lenni Brenner, ed., 2004).</span></ref> Considered by many to be the forerunner of the First Amendment's Religion Clauses,<ref><span id="ALDF_00021859">''See, e.g.'', ''[[Reynolds v. United States]]'', 98 U.S. 145, 163-64 (1878).</span></ref> the bill was a sweeping statement for religious freedom and against state establishment of religion.<ref><span id="ALDF_00021860">''Draft of the Virginia Statute for Religious Freedom'', ''in'' Jefferson &amp; Madison on Separation of Church and State, ''supra'' note [[#ALDF_00021858|here]], at 48-50.</span></ref> Among other provisions, it stated that compelled financial support for churches and religious test oaths infringed individual liberty and corrupted religion.<ref><span id="ALDF_00021861">''Id.'' at 49.</span></ref> It further provided that allowing the civil magistrate "to intrude his powers into the field of opinion . . . at once destroys all religious liberty."<ref><span id="ALDF_00021862">''Id''. ''See also id.'' ("[I]t is time enough for the rightful purposes of civil government for its officers to interfere when principles break out into overt acts against peace and good order . . . .").</span></ref> Accordingly, the bill would have prevented Virginia from compelling anyone "to frequent or support any religious worship" or otherwise burdening a person "on account of his religious opinions or belief."<ref><span id="ALDF_00021863">''Id.'' at 49-50.</span></ref> The bill was not adopted in that legislative session.<ref><span id="ALDF_00021864">''Id.'' at 48.</span></ref>
By contrast, later in 1779, the Assembly considered--but also rejected--a bill that would have established the "Christian Religion" as the state's official religion, required recognized churches to subscribe to certain beliefs, and assessed ministerial taxes.<ref><span id="ALDF_00021865">Curry, ''supra'' note [[#ALDF_00021856|here]], at 139.</span></ref> In 1784, Patrick Henry, who had opposed Jefferson's Statute for Religious Freedom, introduced A Bill Establishing a Provision for Teachers of the Christian Religion.<ref><span id="ALDF_00021866">A Bill Establishing a Provision for Teachers of the Christian Religion, Monticello Digital Classroom, [https://classroom.monticello.org/media-item/a-bill-establishing-a-provision-for-teachers-of-the-christian-religion/] (last visited June 17, 2022).</span></ref> The law proposed a general assessment: taxpayers could direct the funds to the "society of Christians" of their choice, and any nondesignated funds would be used "for the encouragement of seminaries of learning" in the state.<ref><span id="ALDF_00021867">''[[Everson v. Bd. of Educ.]]'', 330 U.S. 1, 73-74 (1947).</span></ref>
While the bill creating an assessment for Christian teachers was being considered, James Madison wrote and circulated his Memorial and Remonstrance Against Religious Assessments, which contributed significantly to the bill's defeat.<ref><span id="ALDF_00021868">Curry, ''supra'' note [[#ALDF_00021856|here]], at 143.</span></ref> Madison's Memorial and Remonstrance claimed that the right to free exercise of religion was "unalienable," and that religion was "wholly exempt" from the "cognizance" of civil society.<ref><span id="ALDF_00021869">James Madison, Memorial and Remonstrance Against Religious Assessments (June 20, 1785), ''in'' Jefferson &amp; Madison on Separation of Church and State, ''supra'' note [[#ALDF_00021858|here]], at 68.</span></ref> He asserted the bill violated fundamental principles of equality and departed from America's "generous policy" of religious freedom for the previously "persecuted and oppressed."<ref><span id="ALDF_00021870">''Id.'' at 69-71.</span></ref> Other opponents of the assessment raised concerns about the rights of non-Christians, a position that was still somewhat uncommon in the colonies at that time.<ref><span id="ALDF_00021871">''See'' Curry, ''supra'' note [[#ALDF_00021856|here]], at 145.</span></ref> Following this public opposition to Henry's bill, Madison reintroduced Jefferson's bill for establishing religious freedom.<ref><span id="ALDF_00021872">Letter from James Madison to Thomas Jefferson (Jan. 22, 1786), [https://founders.archives.gov/documents/Madison/01-08-02-0249].</span></ref> The Statute for Religious Freedom was enacted in 1786, finally disestablishing religion in the state.<ref><span id="ALDF_00021873">''Id.'' Jefferson was in Paris at the time, and later that year, told Madison the act had "been received with infinite approbation" by European citizens. Letter from Thomas Jefferson to James Madison (Dec. 16, 1786), [https://founders.archives.gov/documents/Madison/01-09-02-0108]. In Jefferson's eyes, it was "honorable" for the Virginia legislature "to have produced the first legislature who has had the courage to declare that the reason of man may be trusted with the formation of his own opinions." ''Id.''</span></ref>
Although Virginia's experience does not represent the full picture of the early American experience with religious liberty, it helped set the stage for the adoption of the Religion Clauses.<ref><span id="ALDF_00021874">''See, e.g.'', ''[[Reynolds v. United States]]'', 98 U.S. 145, 163 (1878). ''See also'' Timothy L. Hall, Roger Williams and the Foundations of Religious Liberty., 71 B.U.L. Rev. 455, 458 (1991) (arguing that overreliance on Jefferson and Madison's writings "has left first amendment jurisprudence theoretically impoverished").</span></ref> While Rhode Island, Pennsylvania, and (eventually) Virginia moved towards greater religious freedom, other states--and some within those states--continued to support state establishments and a more limited view of religious liberty.<ref><span id="ALDF_00021875">[[{{ROOTPAGENAME}}/First Amend.#England and Religious Freedom|First Amend.: England and Religious Freedom]]; [[{{ROOTPAGENAME}}/First Amend.#Colonial Concepts of Religious Liberty|First Amend.: Colonial Concepts of Religious Liberty]].</span></ref>
=====Continental Congresses and Religious Freedom=====
The Continental Congresses of 1784-1789 addressed a number of issues relating to religion.<ref><span id="ALDF_00021876">''See, e.g.'', John Witte, Jr. &amp; Joel A. Nichols, Religion and the American Constitutional Experiment 65-69 (4th ed. 2016).</span></ref> In some instances, the Congresses' work reflected the ongoing debates and shifting norms relating to church and state.
One of the grievances that the First Continental Congress identified in its 1774 "Declaration and Resolves" addressed to Great Britain was the Quebec Act.<ref><span id="ALDF_00021877">Declaration and Resolves of the First Continental Congress, Avalon Project, Yale L. Sch. (Oct. 14, 1774), [https://avalon.law.yale.edu/18th_century/resolves.asp] (last visited June 1, 2022).</span></ref> The congressional resolution described this Act as "establishing the Roman Catholic religion" in Quebec, a province which was expanded to include parts of the modern Midwest.<ref><span id="ALDF_00021878">''Id.''</span></ref> On its face, the Quebec Act did not establish a religion in the sense of requiring adherence or compelling support.<ref><span id="ALDF_00021879">''See'' Great Britain: Parliament--The Quebec Act: October 7, 1774, Avalon Project, Yale L. Sch., [https://avalon.law.yale.edu/18th_century/quebec_act_1774.asp] (last visited June 1, 2022).</span></ref> Instead, it stated that Roman Catholic citizens in the province "may have, hold, and enjoy, the free Exercise of the Religion of the Church of Rome, subject to the King's Supremacy."<ref><span id="ALDF_00021880">''Id.'' Among other provisions, the Act also required any "Ordinance touching Religion" to "receive[ ] his Majesty's Approbation" before going into effect. ''Id.''</span></ref> The colonists saw this parliamentary sanction for the Catholic Church in the expanded territory, albeit limited, as a threat.<ref><span id="ALDF_00021881">Frank Lambert, The Founding Fathers and the Place of Religion in America 209, 213 (2003).</span></ref> Nevertheless, only about two weeks after adopting the Declaration and Resolves, the Continental Congress wrote a letter "to the Inhabitants of the Province of Quebec," arguing that Great Britain had violated their rights by altering the province's government and making religious liberty for Catholics a matter of the King's grace.<ref><span id="ALDF_00021882">Continental Congress to the Inhabitants of the Province of Quebec (Oct. 26, 1744), ''reprinted in'' 5 The Founder's Constitution 61 (Philip B. Kurland &amp; Ralph Lerner eds., 1987).</span></ref> The letter stated that the Quebec Act's guarantee of "liberty of conscience in . . . religion" was a poor substitute for the God-given rights the province had been denied, for the English version of the right was a "precarious" one subject to "arbitrary alterations."<ref><span id="ALDF_00021883">''Id.'' at 63 (internal quotation marks and emphasis omitted).</span></ref> These somewhat contradictory stances likely reflected political considerations.
Members of the First Continental Congress also faced appeals for freedom of conscience from within their own territory. Notably, a group of Massachusetts Baptists complained of persecution to delegates of the Continental Congress in 1774.<ref><span id="ALDF_00021884">''See'' Isaac Backus, A History of New England 1774-75, ''reprinted in'' The Founder's Constitution, ''supra'' note [[#ALDF_00021882|here]], at 65.</span></ref> John Adams, in his diary, wrote that he was "indignant . . . at seeing [his] State and her Delegates thus summoned before a self created Trybunal."<ref><span id="ALDF_00021885">Diary of John Adams, In Congress, September-October 1774, [https://founders.archives.gov/documents/Adams/01-03-02-0016-0022].</span></ref> According to Adams's account, one Pennsylvanian asserted that New England's stance on "Liberty of Conscience" was standing in the way of forming "a Union of the Colonies."<ref><span id="ALDF_00021886">''Id.''</span></ref> The dissenters' primary grievances seemed to be taxes for the support of the established churches.<ref><span id="ALDF_00021887">Thomas J. Curry, The First Freedoms 131 (1986).</span></ref> The Baptists objected to the tax on grounds of conscience.<ref><span id="ALDF_00021888">Backus, ''supra'' note [[#ALDF_00021884|here]], at 65.</span></ref> In response, John and Samuel Adams apparently argued that Massachusetts had "the most mild and equitable Establishment of Religion"<ref><span id="ALDF_00021889">Diary of John Adams, In Congress September-October 1774, [https://founders.archives.gov/documents/Adams/01-03-02-0016-0022]; ''cf.'' Backus, ''supra'' note [[#ALDF_00021884|here]], at 65 (saying both John and Samuel Adams described the Massachusetts establishment as "a very slender one, hardly to be called an establishment").</span></ref>--but in resisting any commitment to further change, John Adams reportedly said that the objectors "might as well expect a change in the solar system, as to expect [Massachusetts] would give up their establishment."<ref><span id="ALDF_00021890">Backus, ''supra'' note [[#ALDF_00021884|here]], at 65.</span></ref>
In other matters, the Continental Congress recognized and seemed to support religion. As the Supreme Court has noted, "the Continental Congress, beginning in 1774, adopted the traditional procedure of opening its sessions with a prayer offered by a paid chaplain."<ref><span id="ALDF_00021891">''[[Marsh v. Chambers]]'', 463 U.S. 783, 787 (1983).</span></ref> According to a contemporaneous account from John Adams, there was some opposition to the first motion to open a session with prayer given the religious diversity of the representatives, until Samuel Adams "said he was no Bigot, and could hear a Prayer" from someone of another faith.<ref><span id="ALDF_00021892">Letter from John Adams to Abigail Adams (Sept. 16, 1774), [https://founders.archives.gov/documents/Adams/04-01-02-0101].</span></ref> The Continental Congress also, for example, occasionally declared days of fasting and thanksgiving,<ref><span id="ALDF_00021893">''See, e.g.'', Religion and the Founding of the American Republic, Libr. of Cong., [https://www.loc.gov/exhibits/religion/rel04.html#obj107] (last visited June 21, 2022).</span></ref> and voted to import Bibles for distribution,<ref><span id="ALDF_00021894">8 Journals of the Continental Congress 734-35 (Worthington Chauncy Ford ed., 1907).</span></ref> although it never appropriated the funds for this latter activity.<ref><span id="ALDF_00021895">Witte &amp; Nichols, ''supra'' note [[#ALDF_00021876|here]], at 68.</span></ref>
In contrast, the Second Continental Congress recognized and attempted to accommodate pacifists during the Revolutionary War, stating that Congress intended "no violence to their consciences" and asking pacifists to contribute by doing only what they could "consistently with their religious principles."<ref><span id="ALDF_00021896">8 Journals of the Continental Congress 189 (Worthington Chauncy Ford ed., 1905).</span></ref> The Northwest Ordinance, adopted by the Confederation Congress in 1787, provided that no person in the territory could "be molested on account of his mode of worship or religious sentiments" so long as he was acting "in a peaceable and orderly manner."<ref><span id="ALDF_00021897">Northwest Ordinance &#167; 14, art. 1, (July 13, 1787), [https://www.archives.gov/milestone-documents/northwest-ordinance] (last reviewed May 10, 2022).</span></ref> Furthermore, in 1785, the Confederation Congress rejected a proposal that would have set aside lots in the western territory for the support of religion,<ref><span id="ALDF_00021898">28 Journals of the Continental Congress 293-94 (John C. Fitzpatrick ed., 1933).</span></ref> with James Madison saying the provision "smell[ed] . . . of an antiquated Bigotry."<ref><span id="ALDF_00021899">Letter from James Madison to John Monroe (May 29, 1785), [https://founders.archives.gov/documents/Madison/01-08-02-0156].</span></ref>
Overall, the roots of both the Establishment Clause and the Free Exercise Clause and the tension between them are evident in the period immediately prior to ratification of the Constitution. While there was some movement towards greater religious liberty and separation of church and state, continued support for religious activity was seen as a basic part of the fabric of society.<ref><span id="ALDF_00021900">Curry, ''supra'' note [[#ALDF_00021887|here]], at 218.</span></ref> Even in protecting modes of worship in the territories, the Northwest Ordinance provided that "religion, morality, and knowledge" were "necessary to good government" and should "be encouraged."<ref><span id="ALDF_00021901">Northwest Ordinance (1787), ''supra'' note [[#ALDF_00021897|here]], &#167; 14, art. 3.</span></ref>
=====Constitutional Convention, Ratification, and the Bill of Rights=====
The Constitution adopted by the Constitutional Convention in 1787 was largely silent on matters of religion.<ref><span id="ALDF_00021902">''Cf.'' Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 Utah L. Rev. 489, 496-97 (describing three aspects of the 1787 Constitution as "tak[ing] into account religious freedom": (1) the provisions permitting affirmations in lieu of oaths; (2) the Sunday Clause of the presidential veto; and (3) the No Religious Test Clause). ''See'' [[{{ROOTPAGENAME}}/Art. VI/Clause 3 Oaths of Office#Historical Background on Religious Test for Government Offices|Art. VI, Cl. 3: Historical Background on Religious Test for Government Offices]].</span></ref> Nonetheless, matters of religious freedom remained on the Founder's minds.<ref><span id="ALDF_00021903">''See, e.g.'', John Witte, Jr. &amp; Joel A. Nichols, Religion and the American Constitutional Experiment 70-71 (4th ed. 2016) (discussing Charles Pinckney's draft Constitution containing a provision prohibiting the federal legislature from passing laws "on the subject of Religion").</span></ref> By 1787, a number of states had adopted constitutions containing some protections for religious freedom, though not all were as broad in scope as the ratified First Amendment.<ref><span id="ALDF_00021904">''See, e.g.'', Va. Const. of 1776, &#167; 16 ("[A]ll men are equally entitled to the free exercise of religion, according to the dictates of conscience; and . . . it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other."); Mass. Const. of 1780, art. II ("[N]o subject shall be hurt, molested, or restrained of conscience; and . . . it for worshipping God in the manner and season most agreeable to the dictates of his own conscience, or for his religious profession or sentiments, provided he doth not disturb the public peace or obstruct others in their religious worship . . . .").</span></ref> Some state constitutions seemingly limited protections for religious freedom to certain types of believers.<ref><span id="ALDF_00021905">''See, e.g.'', N.J. Const. of 1776, XIX ("[N]o Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles . . . ."); Penn. Const. of 1776, Declaration of Rights, II ("Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship . . . ."); Md. Const. of 1776, Declaration of Rights, XXXIII ("[A]ll persons, professing the Christian religion, are equally entitled to protection in their religious liberty . . . .").</span></ref> Furthermore, as discussed elsewhere, some of those states still supported religious establishments,<ref><span id="ALDF_00021906">[[{{ROOTPAGENAME}}/First Amend.#England and Religious Freedom|First Amend.: England and Religious Freedom]]; [[{{ROOTPAGENAME}}/First Amend.#Colonial Concepts of Religious Liberty|First Amend.: Colonial Concepts of Religious Liberty]]. ''See also, e.g.'', Md. Const. of 1776, Declaration of Rights, XXXIII ("[T]he Legislature may, in their discretion, lay a general and equal tax, for the support of the Christian religion . . . .").</span></ref> even as other constitutional provisions limited some aspects of state establishments.<ref><span id="ALDF_00021907">''See, e.g.'', N.J. Const. of 1776, XVIII ("[N]or shall any person, within this Colony, ever be obliged to pay tithes, taxes, or any other rates, for the purpose of building or repairing any other church or churches, place or places of worship, or for the maintenance of any minister or ministry . . . ."); ''id.'' at XIX ("[T]here shall be no establishment of any one religious sect in this Province, in preference to another . . . ."); Delaware Declaration of Rights, &#167; 2 (Sept. 11, 1776), ''reprinted in'' 5 The Founder's Constitution 70 (Philip B. Kurland &amp; Ralph Lerner eds., 1987) ("[N]o man ought or of right can be compelled to attend any religious worship or maintain any ministry contrary to or against his own free will and consent . . . .").</span></ref> North Carolina's constitution, for example, granted freedom of conscience and forbade an "establishment of any one religious church or denomination in this State, in preference to any other," but further provided that the constitution did not "exempt preachers of treasonable or seditious discourses, from legal trial and punishment."<ref><span id="ALDF_00021908">N.C. Const. of 1776, art. XXXIV; Declaration of Rights art. XIX.</span></ref>
During the debates over ratifying the Constitution, both proponents and opponents argued for the addition of a bill of rights, frequently citing religious freedom as one of the rights that should be expressly protected.<ref><span id="ALDF_00021909">For example, writing from France, Thomas Jefferson argued the need for such protections while otherwise praising the document. ''See, e.g.'', Letter from Thomas Jefferson to James Madison (Dec. 20, 1787), [https://founders.archives.gov/documents/Jefferson/01-12-02-0454]; Letter from Thomas Jefferson to William Stephens Smith (Feb. 2, 1788), [https://founders.archives.gov/documents/Jefferson/01-12-02-0590]. ''See also, e.g.'', Brutus II (Nov. 1, 1787), ''reprinted in'' XIII Commentaries on the Constitution 525-26 (John P. Kaminski &amp; Gaspare J. Saladino eds., 1981) (discussing the importance of rights of conscience and the need for a bill of rights); John Leland, Objections to the Constitution (Feb. 28, 1788), ''reprinted in'' The Sacred Rights of Conscience 409 (Daniel L. Dreisbach &amp; Mark David Hall eds., 2009) (arguing that the proposed Constitution did not sufficiently protect religious liberty).</span></ref> Seven states considered amendments expressly protecting religious freedom, and four states ratified the Constitution only after officially recommending such amendments.<ref><span id="ALDF_00021910">''See'' Carl H. Esbeck, ''supra'' note [[#ALDF_00021902|here]], at 511. For the text of the proposals, see The Sacred Rights of Conscience, ''supra'' note [[#ALDF_00021909|here]], at 415-17.</span></ref> Virginia, for example, proposed an amendment stating that "all men have an equal, natural and unalienable right to the free exercise of religion according to the dictates of conscience, and . . . no particular religious sect or society ought to be favored or established by Law in preference to others."<ref><span id="ALDF_00021911">Amendments Proposed by the Virginia Ratifying Convention (June 27, 1788), ''in'' The Sacred Rights of Conscience, ''supra'' note [[#ALDF_00021909|here]], at 416.</span></ref>
James Madison, a key figure in the framing and adoption of the Constitution and the First Amendment, initially considered a bill of rights unnecessary.<ref><span id="ALDF_00021912">Letter from James Madison to Thomas Jefferson (Oct. 17, 1788), [https://founders.archives.gov/documents/Madison/01-11-02-0218].</span></ref> Among his objections to such an enumeration, he was concerned that express declarations "of some of the most essential rights" would be stated too narrowly.<ref><span id="ALDF_00021913">''Id.''</span></ref> Focusing specifically on "the rights of Conscience," he noted that some states wanted to deny equal rights to non-Christians, suggesting any public definition of religious freedom would be too narrow.<ref><span id="ALDF_00021914">''Id.'' ''But cf., e.g.'', Letter from James Madison to John Brown (Aug. 23, 1785), ''reprinted in'' Jefferson &amp; Madison on Separation of Church &amp; State 75 (Lenni Brenner, ed., 2004) (giving advice on Kentucky's Constitution, saying it might restrain the legislature "from meddling with religion").</span></ref> Madison, however, was ultimately persuaded to introduce the amendments that would become the Bill of Rights.<ref><span id="ALDF_00021915">One important figure pushing for express guarantees of religious liberty was John Leland, who mounted a political challenge to Madison and ultimately exacted a guarantee that Madison would propose an amendment protecting religious liberty. ''See, e.g.'', Gregory C. Downs, Religious Liberty That Almost Wasn't: On the Origin of the Establishment Clause of the First Amendment, 30 U. Ark. Little Rock L. Rev. 19, 21, 27 (2007).</span></ref>
On June 8, 1789, Madison introduced a proposed constitutional amendment in the House of Representatives which 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 pretext, infringed."<ref><span id="ALDF_00021916">1 Annals of Cong. 451 (1789). </span></ref> He further proposed an amendment that expressly prohibited ''states'' from "violat[ing] the equal rights of conscience."<ref><span id="ALDF_00021917">''Id.'' at 452.</span></ref> Explaining this second provision, Madison believed "every Government should be disarmed of powers which trench upon those particular rights," and wrote that "State Governments are as liable to attack these invaluable privileges as the General Government is."<ref><span id="ALDF_00021918">''Id.'' at 458.</span></ref>
On August 15, the House considered a version of the amendment that read: "no religion shall be established by law, nor shall the equal rights of conscience be infringed."<ref><span id="ALDF_00021919">''Id.'' at 757.</span></ref> Debate revealed differences of opinion on what such an amendment should accomplish, but some Members expressed concern that the amendment would unduly prohibit government support for religion--even by the states--and thereby abolish religion altogether.<ref><span id="ALDF_00021920">''See'' ''id.'' at 757-59.</span></ref> Two days later, the House considered the amendment providing that "no State shall infringe the equal rights of conscience," along with other rights.<ref><span id="ALDF_00021921">''Id.'' at 783. Informing this fear that voluntarism would lead to the abolition of religion is the fact that at this time, most of the history of religion involved some level of state sponsorship of religion. ''See, e.g.'', [[{{ROOTPAGENAME}}/First Amend.#Introduction to the Historical Background on the Religion Clauses|First Amend.: Introduction to the Historical Background on the Religion Clauses]]; [[{{ROOTPAGENAME}}/First Amend.#State-Established Religion in the Colonies|First Amend.: State-Established Religion in the Colonies]].</span></ref> Madison "conceived this to be the most valuable amendment in the whole list," again arguing it was necessary to prevent both state and federal governments from infringing "these essential rights."<ref><span id="ALDF_00021922">''Id.'' at 784.</span></ref> Ultimately, the version passed by the House on August 24 read: "Congress shall make no law establishing religion, or prohibiting the free exercise thereof; nor shall the rights of conscience be infringed."<ref><span id="ALDF_00021923">Congress Creates the Bill of Rights, Nat'l Archives 31, [https://www.archives.gov/files/legislative/resources/bill-of-rights/CCBR_IIB.pdf] (last visited June 3, 2022).</span></ref> The House also passed the amendment providing that "[n]o state shall infringe . . . the rights of conscience."<ref><span id="ALDF_00021924">''Id.'' at 140.</span></ref>
Debate in the Senate was not recorded, but on September 3, 1789, the Senate considered the constitutional amendments adopted by the House.<ref><span id="ALDF_00021925">S. Journal, 1st Cong., 1st Sess. 70 (1789).</span></ref> The Senate adopted amendments rewriting the first provision to read: "Congress shall make no law establishing one religious sect or society in preference to others."<ref><span id="ALDF_00021926">''Id.''</span></ref> On September 9, the Senate combined the religion amendments with the other rights that would ultimately be part of the First Amendment into a provision reading: "Congress shall make no law establishing articles of faith or a mode of worship, or prohibiting the free exercise of religion, or abridging the freedom of speech . . . ."<ref><span id="ALDF_00021927">''Id.'' at 77. The Senate rejected alternative drafts which would have, for example, spelled out that Congress could not establish any particular sect in preference to another. ''Id.'' at 70.</span></ref> This version was adopted and sent to the House the same day.<ref><span id="ALDF_00021928">''Id.'' at 77-78.</span></ref> The House amendment guaranteeing the rights of conscience against the states was not approved by the Senate.<ref><span id="ALDF_00021929">''Id.'' at 72.</span></ref>
A joint committee was appointed to resolve the differences between the Chambers, and although there is no surviving record of the committee debate, on September 24, 1789, it reported the text that would become the First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof of speech . . . ."<ref><span id="ALDF_00021930">''Id.'' at 87; ''see also'' 1 Annals of Cong. 948 (1789).</span></ref> On December 15, 1791, this language was ratified by the requisite number of states.
=====Early Interpretations of the Religion Clauses=====
Even after the First Amendment was ratified and the Founders almost universally embraced the general principle of liberty of conscience, significant disagreement remained as to the scope of the prohibition on establishment and the protections of free exercise.<ref><span id="ALDF_00021931">''See, e.g.'', John Witte, Jr. &amp; Joel A. Nichols, Religion and the American Constitutional Experiment 41 (4th ed. 2016).</span></ref>
At the time of the Revolution, the majority of the states retained at least some elements of religious establishments, including requiring church attendance, collecting tithes, and burdening the rights of religious dissenters.<ref><span id="ALDF_00021932">''Id.'' at 57-58.</span></ref> States did not become subject to the First Amendment when it was adopted in 1791, and accordingly had more leeway to regulate on the subject of religion, but the movement to disestablish official state religions nonetheless continued to gain support as views changed about the appropriate role of church and state.<ref><span id="ALDF_00021933">''See'' ''id.''</span></ref> In 1791, one prominent minister, arguing against state-established religions, noted that by that time, most states had "no legal force used about religion, in directing its course, or supporting its preachers."<ref><span id="ALDF_00021934">John Leland, The Rights of Conscience Inalienable (1791), ''reprinted in'' The Sacred Rights of Conscience 338 (Daniel L. Dreisbach &amp; Mark David Hall eds., 2009).</span></ref> Seven disestablishments of state sanctioned religions occurred after the First Amendment's adoption, with the last, Massachusetts', occurring in 1833.<ref><span id="ALDF_00021935">Carl H. Esbeck, Uses and Abuses of Textualism and Originalism in Establishment Clause Interpretation, 2011 Utah L. Rev. 489, 492-93.</span></ref> This gradual disestablishment was accompanied in many cases by civil regulation of the corporate forms and property rights of the churches,<ref><span id="ALDF_00021936">''See, e.g.'', Sarah Barringer Gordon, The First Disestablishment: Limits on Church Power and Property Before the Civil War, 162 U. Pa. L. Rev. 307, 311-12 (2014).</span></ref> eventually leading to questions about whether such regulation was contrary to constitutional guarantees of religious liberty.<ref><span id="ALDF_00021937">''See, e.g.'', [[{{ROOTPAGENAME}}/First Amend.#Doctrinal Basis of Government Resolution of Religious Disputes|First Amend.: Doctrinal Basis of Government Resolution of Religious Disputes]].</span></ref>
Maryland's experience serves as one example of this trend. The state's 1776 constitution extended legal toleration to all Christian sects but required officeholders to declare Christian belief and authorized the state legislature to impose a general "tax for the support of the Christian religion."<ref><span id="ALDF_00021938">Kenneth Lasson, Free Exercise in the Free State: Maryland's Role in the Development of First Amendment Jurisprudence, 31 J. Church &amp; St. 419, 440-41 (1989).</span></ref> Maryland had thus abandoned its Church of England establishment but continued to generally support Christianity and adopted laws regulating the Anglican church.<ref><span id="ALDF_00021939">Thomas J. Curry, Church and State in Seventeenth and Eighteenth Century America, 7 J. L. &amp; Religion 261, 153-55 (1989).</span></ref> However, a 1784 bill that would have levied a tax for the support of ministers was defeated.<ref><span id="ALDF_00021940">''Id.'' at 155-56.</span></ref> The bill's opponents argued that it would have preferred certain sects, impermissibly set up the legislature as the judge of acceptable worship, and set up a confrontation with sects such as Quakers that would refuse to pay.<ref><span id="ALDF_00021941">''Id.''</span></ref> In 1810, Maryland amended its constitution by providing that it would no longer be lawful to tax citizens to support religion.<ref><span id="ALDF_00021942">380 Archives of Maryland, Amendments to the Maryland Constitutions 19, ch. CLXVII (1810), [https://msa.maryland.gov/megafile/msa/speccol/sc2900/sc2908/000001/000380/html/am380-19.html].</span></ref> However, the state's constitution continued to require officeholders to declare a general belief in existence of God until 1961, when the provision was ruled unconstitutional by the Supreme Court.<ref><span id="ALDF_00021943">''[[Torcaso v. Watkins]]'', 367 U.S. 488, 489 (1961).</span></ref>
These diverse and shifting views over religion were also reflected at the federal level. For example, early Congresses employed chaplains and supported proclamations for national days of thanksgiving.<ref><span id="ALDF_00021944">''See, e.g.'', ''[[Marsh v. Chambers]]'', 463 U.S. 783, 787-88 &amp; n.9 (1983); Witte &amp; Nichols, ''supra'' note [[#ALDF_00021931|here]], at 89.</span></ref> By the 1800s, however, James Madison and Thomas Jefferson had seemingly changed their mind on the propriety of government prayer.<ref><span id="ALDF_00021945">Thomas J. Curry, The First Freedoms 218-19 (1986).</span></ref> Toward the end of his presidency, Jefferson explained that he would not recommend a day of prayer because even voluntary language suggested an authority over religion that, in his view, the government did not possess.<ref><span id="ALDF_00021946">Letter from Thomas Jefferson to Samuel Miller (Jan. 23, 1808), [https://founders.archives.gov/documents/Jefferson/99-01-02-7257]. </span></ref> James Madison eventually concluded that establishing a congressional chaplain was a "palpable violation" of the Constitution.<ref><span id="ALDF_00021947">James Madison, Detached Memoranda [1817-1832], ''reprinted in'' Jefferson &amp; Madison on Separation of Church and State 264 (Lenni Brenner ed., 2004).</span></ref> Further, although as President, he had issued proclamations for national days of prayer and thanksgiving, Madison believed these religious proclamations were similarly problematic.<ref><span id="ALDF_00021948">''Id.'' at 265.</span></ref> Madison stated that he had issued the proclamations only at Congress's request, and had used language intended "to deaden as much as possible any claim of political right to enjoin religious observances" by referring to "the voluntary compliance of individuals."<ref><span id="ALDF_00021949">''Id.'' at 266.</span></ref>
Another example of the debate over the separation of church and state involved an 1811 bill that would have incorporated the Protestant Episcopal Church in the District of Columbia.<ref><span id="ALDF_00021950">James Madison, Veto Message to the House of Representatives of the United States (Feb. 21, 1811), ''in'' Jefferson &amp; Madison on Separation of Church and State, ''supra'' note [[#ALDF_00021947|here]], at 198.</span></ref> Then-President Madison vetoed the bill, stating that it violated the Establishment Clause by enacting rules for the church's "organization and polity," giving a "legal force and sanction" to certain articles of church administration and actions.<ref><span id="ALDF_00021951">''Id.'' at 198-99.</span></ref> The House of Representatives failed to override the veto.<ref><span id="ALDF_00021952">22 Annals of Cong. 998 (1811).</span></ref> In the debate preceding that vote, some proponents of the bill argued that it did not violate the Establishment Clause because it did not establish a National Church such as the Church of England.<ref><span id="ALDF_00021953">''Id.'' at 984.</span></ref> Another Member argued that if the debated bill infringed the Constitution, then Congress had similarly violated the Constitution by appointing and paying chaplains.<ref><span id="ALDF_00021954">''Id.''</span></ref>
Other debates during this period focused on whether the United States could be considered a Christian nation.<ref><span id="ALDF_00021955">''Cf.'' ''[[Church of the Holy Trinity v. United States]]'', 143 U.S. 457, 471 (1892) (noting a variety of "unofficial declarations" and "organic utterances" in legal documents suggesting "that this is a Christian nation"). In ''[[Vidal v. Girard's Executors]]'', the Supreme Court described America as "a Christian country" but also relied on the country's "variety of religious sects" and state guarantees of religious freedom in its opinion interpreting a will. [http://cdn.loc.gov/service/ll/usrep/usrep043/usrep043127/usrep043127.pdf 43 U.S. (2 How.) 127, 198-99 (1844)]. </span></ref> In the 1797 Treaty of Tripoli, the government assured the Muslim state of Tripoli that because "the United States of America is not in any sense founded on the Christian Religion, . . . no pretext arising from religious opinions shall ever produce an interruption of the harmony existing between the two countries."<ref><span id="ALDF_00021956">Treaty of Peace and Friendship between the United States of America and the Bey and Subjects of Tripoli, of Barbary (1797), ''reprinted in'' The Sacred Rights of Conscience, ''supra'' note [[#ALDF_00021811|here]], at 476.</span></ref> Beginning in the nineteenth century, Congress failed to adopt a variety of proposals that would have amended the Constitution to describe the United States as a Christian nation, or the federal government as a Christian one.<ref><span id="ALDF_00021957">''See'' Richard Albert, Constitutional Amendment and Dismemberment, 43 Yale J. Int'l L. 1, 40 (2018).</span></ref>
====Religious Disputes====
=====Overview of Government Resolution of Religious Disputes=====
Taken together, the Religion Clauses create a separation between church and state.<ref><span id="ALDF_00019059">''See, e.g.'', ''[[Reynolds v. United States]]'', 98 U.S. 145, 164 (1878) (quoting Letter from Thomas Jefferson to the Danbury Baptist Ass'n (Jan. 1, 1802), [https://founders.archives.gov/documents/Jefferson/01-36-02-0152-0006]).</span></ref> The preamble to the Virginia Statute for Religious Freedom, drafted by Thomas Jefferson, outlined the Founder's view of the separate spheres of authority: "the civil magistrate" should not interfere with religious belief, but should be able "to interfere when principles break out into overt acts against peace and good order."<ref><span id="ALDF_00019060">''Id.'' at 163 (quoting Va. Code Ann. &#167; 57-1) (internal quotation mark omitted).</span></ref>
Under a doctrine sometimes called "religious autonomy"<ref><span id="ALDF_00019061">''See, e.g.'', ''[[Roman Catholic Archdiocese of San Juan v. Feliciano]]'', No. 18-921, slip op. at 4 (U.S. Feb. 24, 2020) (per curiam). This case involved a claim that the Puerto Rico Supreme Court should have abstained from resolving an allegedly ecclesiastical dispute, but the U.S. Supreme Court instead resolved the case on jurisdictional grounds. ''Id.'' at 4-5.</span></ref> or "ecclesiastical abstention,"<ref><span id="ALDF_00019062">''See, e.g.'', ''[[Puri v. Khalsa]]'', 844 F.3d 1152, 1162 (9th Cir. 2017); ''[[Winkler v. Marist Fathers of Detroit, Inc.]]'', 901 N.W.2d 566, 573 (Mich. 2017); ''[[St. Joseph Catholic Orphan Soc'y v. Edwards]]'', 449 S.W.3d 727, 738 (Ky. 2014).</span></ref> the Supreme Court has long held that these principles require civil courts to refrain from adjudicating ecclesiastical disputes.<ref><span id="ALDF_00019063">''[[Watson v. Jones]]'', 80 U.S. (13 Wall.) 679, 731 (1871). ''See also'' ''[[United States v. Ballard]]'', 322 U.S. 78, 86-88 (1944) (holding, in the context of a criminal prosecution for mail fraud, that the Court would have violated the First Amendment if it submitted the truth of the defendants' religious beliefs to the jury).</span></ref> Nonetheless, so long as they avoid "determining ecclesiastical questions," civil courts can resolve disputes between religious parties by applying "neutral principles of law."<ref><span id="ALDF_00019064">''[[Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church]]'', 393 U.S. 440, 447, 449 (1969).</span></ref>
For example, churches may sometimes split into factions after disagreeing about religious doctrine, and those factions may then further dispute which group is entitled to possess church property.<ref><span id="ALDF_00019065">''See, e.g.'', ''id.'' at 441-42; ''[[Jones v. Wolf]]'', 443 U.S. 595, 597 (1979).</span></ref> The Supreme Court has said that religious organizations are subject to the same legal protections and constraints as "other voluntary associations" and may come to court for adjudication of their property rights.<ref><span id="ALDF_00019066">''[[Watson]]'', 80 U.S. (13 Wall.) at 714; ''see also'' ''[[Wolf]]'', 443 U.S. at 603-04 (noting that by relying on ordinary legal documents like trusts, religious organizations can order their private affairs to "ensure that a dispute over the ownership of church property will be resolved in accord with the desires of the members").</span></ref> However, in the course of adjudicating such a property dispute, the courts must refrain from resolving any "underlying controversies over religious doctrine," and may only apply "neutral principles" of property law.<ref><span id="ALDF_00019067">''[[Presbyterian Church in the U.S.]]'', 393 U.S. at 449.</span></ref> Accordingly, the government may not resolve such disputes by evaluating which faction's beliefs more faithfully reflect the religious order's beliefs.<ref><span id="ALDF_00019068">''[[Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church]]'', 344 U.S. 94, 117-19 (1952).</span></ref> By contrast, if a deed or other legal document expressly indicates which group is entitled to the property, a court may enforce that legal instrument,<ref><span id="ALDF_00019069">''See'' ''[[Watson]]'', 80 U.S. (13 Wall.) at 722-23; ''[[Wolf]]'', 443 U.S. at 606.</span></ref> so long as it "defer[s] to the [religious body's] resolution" of any religious issues.<ref><span id="ALDF_00019070">''[[Wolf]]'', 443 U.S. at 604.</span></ref>
=====Doctrinal Basis of Government Resolution of Religious Disputes=====
Since at least the early 1800s, the Supreme Court has resolved religious entities' legal disputes over property rights,<ref><span id="ALDF_00019071">''See'' ''[[Terrett v. Taylor]]'', 13 U.S. (9 Cranch) 43, 45, 55 (1815) (ruling that an Episcopal church held title to property even after disestablishment of the Church of England in the state).</span></ref> focusing in part on the legal rights attached to the corporate form of the religious bodies.<ref><span id="ALDF_00019072">''See'' ''[[Pawlet v. Clark]]'', 13 U.S. (9 Cranch) 292, 334, 336 (1815) (ruling that an Episcopal church was not entitled to a glebe where the church had not been legally recognized either by England or by the state of New Hampshire, and was instead "a mere voluntary society of Episcopalians").</span></ref> In ''[[Watson v. Jones]]'', issued in 1871, the Court reiterated that "religious organizations" come before the court in the same posture as other entities organized for charitable purposes, saying that "their rights of property, or of contract, are equally under the protection of the law, and the actions of their members subject to its restraints."<ref><span id="ALDF_00019073"> [http://cdn.loc.gov/service/ll/usrep/usrep080/usrep080679/usrep080679.pdf 80 U.S. (13 Wall.) 679, 714 (1871)].</span></ref> However, the Supreme Court also articulated limits on civil courts' ability to adjudicate religious disputes, although at first it did not expressly ground these limitations in the Constitution's Religion Clauses.<ref><span id="ALDF_00019074">''Id.'' at 729; ''see also'' ''[[Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church]]'', 393 U.S. 440, 445, 447 (1969) (noting that ''[[Watson]]'' was "decided before the application of the First Amendment to the States but nonetheless informed by First Amendment considerations").</span></ref>
Specifically, ''[[Watson]]'' involved a religious schism and a property dispute. After some members of a congregation disagreed with the national church's anti-slavery views, the local church separated "into two distinct bodies, with distinct members and officers, each claiming to be the true Walnut Street Presbyterian Church" and entitled to its property.<ref><span id="ALDF_00019075">''[[Watson]]'', 80 U.S. at 717.</span></ref> A federal court had concluded that the faction recognized by the national governing body was entitled to the property, and the Supreme Court affirmed.<ref><span id="ALDF_00019076">''See'' ''id.'' at 735.</span></ref> The Court said that where a congregation is subordinate to "superior ecclesiastical tribunals," civil courts should defer to the resolution of any religious issues by the "church judicatories."<ref><span id="ALDF_00019077">''Id.'' at 722-23, 727. ''See also'' ''[[Shepard v. Barkley]]'', 247 U.S. 1, 2 (1918) (affirming decision citing ''[[Watson]]'' to defer to church authority's resolution of a property dispute); ''cf.'' ''[[Bouldin v. Alexander]]'', 82 U.S. (15 Wall) 131, 137, 139-40 (1872) ("In a congregational church, the majority, if they adhere to the organization and to the doctrines, represent the church.").</span></ref> More broadly, the Court said that civil courts may not adjudicate any matter "which concerns theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them."<ref><span id="ALDF_00019078">''[[Watson]]'', 80 U.S. (13 Wall.) at 733. The Supreme Court phrased the issue in terms of jurisdiction, saying that civil courts could "exercise no jurisdiction" over a subject matter that was "strictly and purely ecclesiastical in its character." ''Id.'' By contrast, in ''[[Gonzalez v. Roman Catholic Archbishop]]'', 280 U.S. 1, 16 (1929), the Court concluded that federal courts had jurisdiction over a religious dispute where the defendant was "a juristic person" and the subject matter involved the terms of a trust.</span></ref> Allowing these decisions "of ecclesiastical cognizance" to be reviewed by secular courts "would lead to the total subversion" of the religious unions, which the Court suggested would be inconsistent with the guarantees of free exercise of religion and no religious establishment.<ref><span id="ALDF_00019079">''[[Watson]]'', 80 U.S. (13 Wall.) at 728-29.</span></ref> The Supreme Court said that United States laws created these guarantees, but did not specifically reference the Religion Clauses<ref><span id="ALDF_00019080">''See'' ''id.'' at 728 ("In this country the full and free right to entertain any religious belief, to practice any religious principle and to teach any religious doctrine which does not violate the laws of morality and property, and which does not infringe personal rights, is conceded to all. The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.").</span></ref> as the Court originally understood the Religion Clauses to apply only to the federal government.<ref><span id="ALDF_00019081">''See'' ''[[Permoli v. New Orleans]]'', 44 U.S. (3 How.) 589, 609-10 (1845) (rejecting a challenge to an ordinance prohibiting certain Catholic burials as a matter "exclusively of state cognisance," holding, ''inter alia'', that the U.S. Constitution did not protect "the citizens of the . . . states in their religious liberties"), ''superseded by constitutional amendment'', [[{{ROOTPAGENAME}}/Fourteenth Amend.|Fourteenth Amendment Equal Protection and Other Rights]].</span></ref> Although the adoption of the Fourteenth Amendment in the 1860s imposed the First Amendment's limitations on the states,<ref><span id="ALDF_00019082">''[[Wallace v. Jaffree]]'', 472 U.S. 38, 49 (1985).</span></ref> at the time of ''[[Watson]]''<nowiki>'</nowiki>s decision in 1871, the Supreme Court had not yet recognized this incorporation of the Religion Clauses.<ref><span id="ALDF_00019083">''See'' [[{{ROOTPAGENAME}}/Fourteenth Amend./Section 1 Rights#Early Doctrine on Incorporation of the Bill of Rights|Fourteenth Amend., Sec. 1: Early Doctrine on Incorporation of the Bill of Rights]].</span></ref>
The Supreme Court expressly grounded ''[[Watson]]'' in the First Amendment in ''[[Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church]]''.<ref><span id="ALDF_00019084"> [http://cdn.loc.gov/service/ll/usrep/usrep344/usrep344094/usrep344094.pdf 344 U.S. 94, 116 (1952)] (saying that ''[[Watson]]'' "radiates . . . a spirit of freedom for religious organizations, an independence from secular control or manipulation" and that its guarantees "must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference").</span></ref> ''[[Kedroff]]'' was decided in 1952, after the Court had expressly held the First Amendment to be incorporated against the states.<ref><span id="ALDF_00019085">''Id.'' at 100 &amp; n.6.</span></ref> After the Russian Revolution prompted disputes over the governance of the North American Diocese of the Russian Orthodox Church, New York enacted a law transferring control of the state's Russian Orthodox churches from the "central governing hierarchy" in Russia to the Russian Orthodox Church in America.<ref><span id="ALDF_00019086">''Id.'' at 105-07.</span></ref> The Supreme Court held in ''[[Kedroff]]'' that this law violated the Constitution by prohibiting "the free exercise of religion" and breaching the "rule of separation between church and state."<ref><span id="ALDF_00019087">''Id.'' at 107, 110. Subsequent caselaw clarified that resolving controversies over religious doctrine or polity also raises Establishment Clause concerns. ''See'' ''[[Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church]]'', 393 U.S. 440, 449 (1969).</span></ref> The Court highlighted that the state statute required churches in New York to "conform" to the religious doctrine "of the Eastern Confession."<ref><span id="ALDF_00019088">''[[Kedroff]]'', 344 U.S. at 108.</span></ref> It also expressed concern that the state's action was apparently based on a determination that the Russian Orthodox Church in America would more faithfully effectuate the purposes of the religious trust.<ref><span id="ALDF_00019089">''Id.'' at 109, 117-18.</span></ref> Ultimately, the Court said that the Constitution protected the "freedom to select the clergy, where no improper methods of choice are proven."<ref><span id="ALDF_00019090">''Id.'' at 116.</span></ref>
The Court remanded the ''[[Kedroff]]'' case back to New York state court, which again transferred control of state churches to the Russian Church in America--but this time, on grounds of the common law rather than the state statute.<ref><span id="ALDF_00019091"> [http://cdn.loc.gov/service/ll/usrep/usrep363/usrep363190/usrep363190.pdf 363 U.S. 190, 190-91 (1960)].</span></ref> When the dispute returned to the Supreme Court in ''[[Kreshik v. St. Nicholas Cathedral of Russian Orthodox Church]]'', the Court held that the state court had acted unconstitutionally because, like the state statute, the court's common law decision was impermissibly premised on the idea that the Russian Orthodox Church in America would more faithfully carry out the religious trust.<ref><span id="ALDF_00019092">''See'' ''id.'' at 191 (citing ''[[Kedroff]]'', 344 U.S. at 117-18).</span></ref> ''[[Kreshik]]'' therefore confirmed that courts, as well as legislatures, may violate the Constitution's Religion Clauses by resolving issues of ecclesiastical government.<ref><span id="ALDF_00019093">''See'' ''id.''</span></ref>
=====Neutral Principles of Law and Government Resolution of Religious Disputes=====
The approach to disputes involving churches that the Court developed in early cases such as ''[[Watson v. Jones]]'' largely still holds sway.<ref><span id="ALDF_00019094">''See'' ''[[Watson v. Jones]]'', 80 U.S. (13 Wall.) 679, 714 (1871).</span></ref> The Supreme Court described the prevailing doctrine in 1969:
{{Quote|[T]here are neutral principles of law, developed for use in all . . . disputes, which can be applied without "establishing" churches to which property is awarded. But First Amendment values are plainly jeopardized when church property litigation is made to turn on the resolution by civil courts of controversies over religious doctrine and practice.''[[Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church]]'', 393 U.S. 440, 449 (1969).}}On "issues of religious doctrine or polity," civil courts must defer to "the highest court of a hierarchical church organization."<ref><span id="ALDF_00019096">''[[Jones v. Wolf]]'', 443 U.S. 595, 602 (1979).</span></ref> Thus, in ''[[Presbyterian Church in the United States v. Mary Elizabeth Blue Hull Memorial Presbyterian Church]]'', the Supreme Court held that a state erred in awarding church property to local churches, because its decision was based on a judgment that their mother church had "departed from the tenets of faith and practice it held at the time the local churches affiliated with it."<ref><span id="ALDF_00019097">''[[Presbyterian Church in the U.S.]]'', 393 U.S. at 441, 444.</span></ref> The state court had violated the First Amendment by "determin[ing] matters at the very core of a religion--the interpretation of particular church doctrines and the importance of those doctrines to the religion."<ref><span id="ALDF_00019098">''Id.'' at 450.</span></ref> This stood in contrast to prior cases where courts had permissibly deferred to and enforced the decisions of the church itself on religious issues.<ref><span id="ALDF_00019099">''See'' ''id.'' at 450-51 (contrasting the decision with ''[[Gonzalez v. Roman Catholic Archbishop]]'', 280 U.S. 1, 16 (1929)).</span></ref>
Decades earlier, in ''[[Gonzalez v. Roman Catholic Archbishop]]'', the Supreme Court had indicated that courts may have some role in reviewing ecclesiastical disputes.<ref><span id="ALDF_00019100">''[[Gonzalez]]'', 280 U.S. at 16-17.</span></ref> The ''[[Gonzalez]]'' Court declined to enforce a will that purported to appoint someone as a Catholic chaplain, where the Archbishop had concluded that the person was not qualified to serve under religious law.<ref><span id="ALDF_00019101">''See'' ''id.'' at 13-14.</span></ref> The Court said that because the chaplain's appointment was "a canonical act, it is the function of the church authorities to determine what the essential qualifications of a chaplain are and whether the candidate possesses them."<ref><span id="ALDF_00019102">''Id.'' at 16. In the case before it, the Court concluded that the Archbishop followed "the controlling Canon Law" and did not act "arbitrarily," and accordingly accepted his decision as controlling. ''Id.'' at 18.</span></ref> However, although the Court ultimately deferred to the decision of the church authority, its opinion suggested that courts could conduct a limited review of churches' decisions on ecclesiastical matters to determine whether there was "fraud, collusion, or arbitrariness."<ref><span id="ALDF_00019103">''Id.'' at 16.</span></ref>
It is not clear, however, whether the mode of analysis outlined in ''[[Gonzalez]]'' is still viable. Decades later, in ''[[Serbian Eastern Orthodox Diocese v. Milivojevich]]'', the Supreme Court concluded that a state court violated the First Amendment when it impermissibly inquired "into matters of ecclesiastical cognizance and polity."<ref><span id="ALDF_00019104"> [http://cdn.loc.gov/service/ll/usrep/usrep426/usrep426696/usrep426696.pdf 426 U.S. 696, 698 (1976)].</span></ref> The Court held that ''[[Gonzalez]]''<nowiki>'</nowiki>s arbitrariness inquiry was unconstitutional to the extent that it allowed courts to inquire "whether the decisions of the highest ecclesiastical tribunal of a hierarchical church complied with church laws and regulations."<ref><span id="ALDF_00019105">''[[Milivojevich]]'', 426 U.S. at 713.</span></ref> Instead, the Court confirmed that the First Amendment requires civil courts "to accept the decisions of the highest judicatories of a religious organization of hierarchical polity on matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law."<ref><span id="ALDF_00019106">''Id.''</span></ref> Accordingly, the Court held that the state court should not have disturbed the Serbian Orthodox Church's decisions to defrock the bishop of its American-Canadian Diocese and to split up the diocese.<ref><span id="ALDF_00019107">''See'' ''id.'' at 717-21.</span></ref>
By contrast, the Supreme Court has held that courts acted constitutionally when they resolved disputes between religious entities without inquiring into religious doctrine.<ref><span id="ALDF_00019108">''E.g.'', ''[[Md. &amp; Va. Eldership of Churches of God v. Church of God, Inc.]]'', 396 U.S. 367, 367-68 (1970) (per curiam) (resolving a "church property dispute" by relying "upon language in the deeds conveying the properties in question to the local church corporations, upon the terms of the charters of the corporations, and upon provisions in the constitution of the General Eldership pertinent to the ownership and control of church property").</span></ref> ''[[Jones v. Wolf]]'' approved a state decision that applied "neutral principles of law" to resolve a property dispute between a local church and its national body.<ref><span id="ALDF_00019109">''[[Jones v. Wolf]]'', 443 U.S. 595, 604 (1979) ("[A] State is constitutionally entitled to adopt neutral principles of law as a means of adjudicating a church property dispute.").</span></ref> The Supreme Court said the state was not required to defer to the decision of the higher church authority where the dispute involved no "doctrinal controversy."<ref><span id="ALDF_00019110">''Id.'' at 605 ("We cannot agree . . . that the First Amendment requires the States to adopt a rule of compulsory deference to religious authority in resolving church property disputes, even where no issue of doctrinal controversy is involved.").</span></ref> The Court explained that in order to resolve a property dispute, it would be permissible for the state court to apply the "ordinary presumption that . . . a voluntary religious association is represented by a majority of its members."<ref><span id="ALDF_00019111">''Id.'' at 607. The state argued that its courts had applied this presumption; the Supreme Court agreed that such a rule of decision "would be consistent with both the neutral-principles analysis and the First Amendment," but held that it was not clear whether the court had in fact followed this approach or whether this was the approach required by state law. ''Id.'' at 607-09. Accordingly, the Court vacated and remanded the judgment for further proceedings. ''Id.'' at 610. ''See also'' ''[[Bouldin v. Alexander]]'', 82 U.S. (15 Wall) 131, 137, 139-40 (1872) (resolving question as to "the legally constituted trustees of the church" by looking to the terms of the deed, and noting that although the Court could not review church decisions about "who ought to be members," the actions of a minority of members to excommunicate the trustees were "not the action of the church" and were inoperative for determining trusteeship).</span></ref> However, the Court cautioned that to the extent "the neutral-principles method . . . requires a civil court to examine certain religious documents, . . . . a civil court must take special care to scrutinize the document in purely secular terms."<ref><span id="ALDF_00019112">''[[Wolf]]'', 443 U.S. at 604.</span></ref> In cases where interpreting "instruments of ownership would require the civil court to resolve a religious controversy, then the court must defer to the resolution of the doctrinal issue by the authoritative ecclesiastical body."<ref><span id="ALDF_00019113">''Id.''</span></ref>
=====Church Leadership and the Ministerial Exception=====
The broader ecclesiastical abstention doctrine has specifically been applied to questions about who may lead a religious group. The Supreme Court held in 1952 that religious associations' "freedom to select the clergy" was protected by the First Amendment's Free Exercise Clause.<ref><span id="ALDF_00019114">''[[Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church]]'', 344 U.S. 94, 116 (1952) ("Freedom to select the clergy, where no improper methods of choice are proven, we think, must now be said to have federal constitutional protection as a part of the free exercise of religion against state interference.").</span></ref> For another example, in 1976's ''[[Serbian Eastern Orthodox Diocese v. Milivojevich]]'', the Court ruled that a state court ran afoul of the ecclesiastical abstention principles outlined in ''[[Watson v. Jones]]'' when it overturned a church's decision to defrock a bishop.<ref><span id="ALDF_00019115"> [http://cdn.loc.gov/service/ll/usrep/usrep426/usrep426696/usrep426696.pdf 426 U.S. 696, 717-18 (1976)].</span></ref> In the ensuing decades, lower courts built on these precedents to develop a doctrine known as the "ministerial exception," which prevented courts from interfering with "the employment relationship between a religious institution and its ministers."<ref><span id="ALDF_00019116">''[[Hosanna-Tabor Evangelical Lutheran Church &amp; Sch. v. EEOC]]'', 565 U.S. 171, 188 &amp; n.2 (2012) (citing lower court decisions). ''Cf.'' ''[[NLRB v. Catholic Bishop]]'', 440 U.S. 490, 502-04, 507 (1979) (holding that if a federal statute were read to grant the National Labor Relations Board jurisdiction over religious school teachers, it would present a "significant risk" of infringing the First Amendment, and accordingly, interpreting the statute to exclude "teachers in church-operated schools").</span></ref>
The Supreme Court adopted the ministerial exception in 2012 in ''[[Hosanna-Tabor Evangelical Lutheran Church &amp; School v. EEOC]]'', when it held that the doctrine limited the scope of certain employment discrimination laws.<ref><span id="ALDF_00019117">''[[Hosanna-Tabor]]'', 565 U.S. at 188.</span></ref> Specifically, in ''[[Hosanna-Tabor]]'', a teacher at a Lutheran school claimed that she had been fired in violation of the federal Americans with Disabilities Act of 1990.<ref><span id="ALDF_00019118">''Id.'' at 179.</span></ref> The school sought to dismiss her claim, arguing that the suit was barred under the "ministerial exception."<ref><span id="ALDF_00019119">''Id.'' at 180.</span></ref> The Court agreed, recognizing the existence of the exception and its basis in the First Amendment.<ref><span id="ALDF_00019120">''Id.'' at 188-89.</span></ref> The Court ruled that "[r]equiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so" impermissibly "interferes with the internal governance of the church," violating both the Free Exercise and Establishment Clauses.<ref><span id="ALDF_00019121">''Id.'' ("By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group's right to shape its own faith and mission through its appointments. According the state the power to determine which individuals will minister to the faithful also violates the Establishment Clause, which prohibits government involvement in such ecclesiastical decisions.").</span></ref> The Court further held that this ministerial exception applied to the teacher's claim in ''[[Hosanna-Tabor]]'' even though she was not "the head of a religious congregation."<ref><span id="ALDF_00019122">''Id.'' at 190.</span></ref> In the Court's view, the teacher qualified "as a minister" because of her distinct role within the church, including her title as a "minister"; her religious training and commissioning; her duties to lead religious activities in furtherance of the church's mission; and the teacher's own characterization of her position.<ref><span id="ALDF_00019123">''Id.'' at 191-92.</span></ref> As a result, the Court held, the First Amendment did not permit applying nondiscrimination provisions to the teacher's employment law claims.<ref><span id="ALDF_00019124">''Id.'' at 194. The EEOC and the teacher had originally sought an order reinstating the teacher to her position, but at the Supreme Court, the teacher sought only front pay. ''Id.'' The Supreme Court said that while the reinstatement order "would have plainly violated the Church's freedom under the Religion Clauses to select its own ministers," the monetary relief was similarly unconstitutional "as a penalty on the Church for terminating an unwanted minister." ''Id.'' The Court emphasized that the monetary relief "would depend on a determination that Hosanna-Tabor was wrong to have relieved [the teacher] of her position"--a ruling "barred by the ministerial exception." ''Id.''</span></ref>
In ''[[Our Lady of Guadalupe School v. Morrissey-Berru]]'', the Court suggested that one particular factor from ''[[Hosanna-Tabor]]''--the individual's job functions--was the most important for determining whether a particular employee qualifies for the ministerial exception.<ref><span id="ALDF_00019125">No. 19-267, slip op. at 18 (U.S. July 8, 2020). However, the Court emphasized that "a variety of factors may be important" in any given case. ''Id.'' at 16.</span></ref> ''[[Our Lady of Guadalupe]]'' involved two employment discrimination claims brought by teachers fired by religious schools.<ref><span id="ALDF_00019126">''Id.'' at 2.</span></ref> The Court ruled that the two teachers fell within the ministerial exception<ref><span id="ALDF_00019127">The majority opinion seemed to move away from using the term "ministerial exception," referring instead to "the ''[[Hosanna-Tabor]]'' ''exception''," ''id.'' at 16, or "the exemption we recognized in ''[[Hosanna-Tabor]]''," ''id.'' at 21. This nomenclature choice could be related to the substance of the decision; elsewhere, the Court emphasized that not all religions use the title of "minister," cautioning against "attaching too much significance to titles." ''Id.'' at 17.</span></ref> even though, relative to the teacher in ''[[Hosanna-Tabor]]'', they did not have the title of "minister," had less religious training, and were not practicing members of their employer's religion.<ref><span id="ALDF_00019128">''Id.'' at 23-26.</span></ref> Instead, the Court said that "[w]hat matters, at bottom, is what an employee does."<ref><span id="ALDF_00019129">''Id.'' at 18.</span></ref> Specifically, the Court recognized "that educating young people in their faith, inculcating its teachings, and training them to live their faith are responsibilities that lie at the very core of the mission of a private religious school."<ref><span id="ALDF_00019130">''Id.''</span></ref> The Court further stated that the two teachers in the combined cases "performed vital religious duties," emphasizing that they provided religious instruction, prayed with their students, and were "expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith."<ref><span id="ALDF_00019131">''Id.'' at 21.</span></ref> Consequently, in the Court's view, "judicial intervention" in either dispute would have "threaten[ed] the school's independence in a way that the First Amendment does not allow."<ref><span id="ALDF_00019132">''Id.'' at 27.</span></ref>


===Establishment Clause===
===Establishment Clause===
 
:<big>'''[[{{ROOTPAGENAME}}/First Amend./Establishment Clause|Main Article]]'''</big>
====General Principle of Government Neutrality to Religion====
====General Principle of Government Neutrality to Religion====


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The Supreme Court has often referred to government ''neutrality'' towards religion as its guiding principle in applying the Establishment Clause.<ref><span id="ALDF_00018230">''See, e.g.'', ''[[McCreary Cnty. v. Am. Civil Liberties Union]]'', 545 U.S. 844, 874 (2005); ''[[Wallace v. Jaffree]]'', 472 U.S. 38, 60 (1985).</span></ref> For example, the Court has said the state must "be a neutral in its relations with groups of religious believers and non-believers."<ref><span id="ALDF_00018231">''[[Everson]]'', 330 U.S. at 18.</span></ref> The Court has further recognized that the government may provide some types of support without violating the Establishment Clause.<ref><span id="ALDF_00018232">''Id.'' at 17.</span></ref> While "neutrality" has remained the general touchstone, the Court has adopted a variety of approaches to determine whether any given action is sufficiently neutral.<ref><span id="ALDF_00018233">''Cf., e.g.'', ''[[Mitchell v. Helms]]'', 530 U.S. 793, 837-38 (2000) (O'Connor, J., concurring in the judgment) (arguing that the plurality opinion's Establishment Clause analysis treated neutrality as a factor with "close to . . . singular importance" in a way inconsistent with the Supreme Court's prior jurisprudence).</span></ref>
The Supreme Court has often referred to government ''neutrality'' towards religion as its guiding principle in applying the Establishment Clause.<ref><span id="ALDF_00018230">''See, e.g.'', ''[[McCreary Cnty. v. Am. Civil Liberties Union]]'', 545 U.S. 844, 874 (2005); ''[[Wallace v. Jaffree]]'', 472 U.S. 38, 60 (1985).</span></ref> For example, the Court has said the state must "be a neutral in its relations with groups of religious believers and non-believers."<ref><span id="ALDF_00018231">''[[Everson]]'', 330 U.S. at 18.</span></ref> The Court has further recognized that the government may provide some types of support without violating the Establishment Clause.<ref><span id="ALDF_00018232">''Id.'' at 17.</span></ref> While "neutrality" has remained the general touchstone, the Court has adopted a variety of approaches to determine whether any given action is sufficiently neutral.<ref><span id="ALDF_00018233">''Cf., e.g.'', ''[[Mitchell v. Helms]]'', 530 U.S. 793, 837-38 (2000) (O'Connor, J., concurring in the judgment) (arguing that the plurality opinion's Establishment Clause analysis treated neutrality as a factor with "close to . . . singular importance" in a way inconsistent with the Supreme Court's prior jurisprudence).</span></ref>
====Accommodationist and Separationist Theories of the Establishment Clause====
The Supreme Court's Establishment Clause decisions embody, to varying degrees, two views of the Establishment Clause that have been described as "separationist" and "accommodationist."<ref><span id="ALDF_00018234">''See, e.g.'', Steven G. Gey, Reconciling the Supreme Court's Four Establishment Clauses, 8 U. Pa. J. Const. L. 725, 725 (2006); Ira C. Lupu, The Lingering Death of Separationism, 62 Geo. Wash. L. Rev. 230, 232 (1994).</span></ref> These two views reflect an inherent tension between the two Religion Clauses.<ref><span id="ALDF_00018235">''See'' ''[[Everson v. Bd. of Educ.]]'', 330 U.S. 1, 16 (1947).</span></ref> The Establishment Clause prohibits the government from providing some types of support to religion, requiring some separation between church and state, while the Free Exercise Clause prohibits the government from excluding religious individuals "from receiving the benefits of public welfare legislation" because of their faith, allowing and even requiring some accommodation of religion.<ref><span id="ALDF_00018236">''Id.''; ''see also'' [[{{ROOTPAGENAME}}/First Amend.#Relationship Between Religion Clauses and Free Speech Clause|First Amend.: Relationship Between Religion Clauses and Free Speech Clause]].</span></ref>
The separationist view is embodied by Thomas Jefferson's statement that the First Amendment created "a wall of separation between church and State."<ref><span id="ALDF_00018237">''See'' ''[[Everson]]'', 330 U.S. at 16 (quoting Letter from Thomas Jefferson to the Danbury Baptist Ass'n (Jan. 1, 1802), [https://founders.archives.gov/documents/Jefferson/01-36-02-0152-0006] (internal quotation marks omitted)).</span></ref> Thus, in ''[[Everson v. Board of Education]]'' in 1947, the Supreme Court said that this wall "must be kept high and impregnable."<ref><span id="ALDF_00018238">''Id.'' at 18.</span></ref> It went on:
{{Quote|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 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''.''Id.'' at 15-16.}}The "separation" of church and state is intended not only to protect the government from religious influence, but also to protect religious exercise by preventing the government from intervening in religious affairs.<ref><span id="ALDF_00018240">''See, e.g.'', ''[[Engel v. Vitale]]'', 370 U.S. 421, 431 (1962).</span></ref>
Just five years after ''[[Everson]]'', though, in ''[[Zorach v. Clauson]]'', the Court confirmed that the government could sometimes accommodate private religious practices without violating ''[[Everson]]''<nowiki>'</nowiki>s wall.<ref><span id="ALDF_00018241">''[[Zorach v. Clauson]]'', 343 U.S. 306, 314 (1952).</span></ref> It held that "no constitutional requirement . . . makes it necessary for government to be hostile to religion."<ref><span id="ALDF_00018242">''Id.''</span></ref> In 1971, in ''[[Lemon v. Kurtzman]]'', the Supreme Court said that "far from being a 'wall,'" the line separating church from state "is a blurred, indistinct, and variable barrier depending on all the circumstances of a particular relationship."<ref><span id="ALDF_00018243">''[[Lemon v. Kurtzman]]'', 403 U.S. 602, 614 (1971).</span></ref> And in a dissenting opinion in 1985, then-Associate Justice William Rehnquist argued that "[t]here is simply no historical foundation for the proposition that the Framers intended to build the 'wall of separation' that was constitutionalized in ''[[Everson]]''."<ref><span id="ALDF_00018244">''[[Wallace v. Jaffree]]'', 472 U.S. 38, 92, 106 (1985) (Rehnquist, J., dissenting).</span></ref>
====Establishment Clause Tests Generally====
As discussed in the prior essay, the Supreme Court's Establishment Clause jurisprudence has changed over time, vacillating between separationist and accommodationist views.<ref><span id="ALDF_00018245">[[{{ROOTPAGENAME}}/First Amend.#Accommodationist and Separationist Theories of the Establishment Clause|First Amend.: Accommodationist and Separationist Theories of the Establishment Clause]].</span></ref> Due in part to these distinct views of the Religion Clauses, the Supreme Court has employed a variety of analyses to determine whether any given law violates the Establishment Clause, depending in part on the type of government support being challenged. And even where the Supreme Court has applied the same tests to similar types of government aid, the way those tests have been applied has shifted as either the separationist or the accommodationist mode of analysis has been ascendant. One opinion noted the Court's "unwillingness to be confined to any single test or criterion in this sensitive area."<ref><span id="ALDF_00018246">''[[Lynch v. Donnelly]]'', 465 U.S. 668, 679 (1984).</span></ref>
For example, the Court has said a law that creates express denominational preferences is generally subject to a strict scrutiny analysis, and "must be invalidated unless it is justified by a compelling governmental interest" and "closely fitted to further that interest."<ref><span id="ALDF_00018247">''[[Larson v. Valente]]'', 456 U.S. 228, 246-47 (1982). ''But see'' ''[[Trump v. Hawaii]]'', No. 17-965, slip op. at 26, 30 (U.S. June 26, 2018) (concluding that although certain statements suggested the President intended to exclude Muslims from the country, the Court would apply the "circumscribed judicial inquiry [that governs] when the denial of a visa allegedly burdens the constitutional rights of a U.S. citizen").</span></ref> Most laws, however, do not involve such express discrimination, and the Establishment Clause forbids more than just the "governmental preference of one religion over another."<ref><span id="ALDF_00018248">''[[Sch. Dist. of Abington Twp. v. Schempp]]'', 374 U.S. 203, 216 (1963).</span></ref> Accordingly, the Court historically adopted other tests to evaluate other types of laws.
The Court's predominant approach to evaluating Establishment Clause challenges during much of the modern era was a tripartite analysis known as the ''[[Lemon]]'' test,<ref><span id="ALDF_00018249">''[[Lemon v. Kurtzman]]'', 403 U.S. 602, 612-13 (1971). ''See also, e.g.'', ''[[Zelman v. Simmons-Harris]]'', 536 U.S. 639, 668 (2002) (O'Connor, J., concurring) (describing ''[[Lemon]]'' as "[a] central tool" in Establishment Clause analysis).</span></ref> although the Court used that test less frequently in the early 2000s<ref><span id="ALDF_00018250">''See, e.g.'', ''[[Am. Legion v. Am. Humanist Ass'n]]'', No. 17-1717, slip op. at 20 (U.S. June 20, 2019) (listing cases in which the Court "expressly declined to apply the [''[[Lemon]]''] test or . . . simply ignored it").</span></ref> and by 2022, said it had "long ago abandoned" that approach.<ref><span id="ALDF_00018251">''[[Kennedy v. Bremerton Sch. Dist.]]'', No. 21-418, (U.S. June 27, 2022).</span></ref> ''[[Lemon v. Kurtzman]]''<nowiki>'</nowiki>s three-part test instructed courts that for a government action to be considered constitutional: (1) it "must have a secular legislative ''purpose''"; (2) "its principal or primary ''effect'' must be one that neither advances nor inhibits religion"; and (3) it "must not foster 'an excessive government ''entanglement'' with religion.'"<ref><span id="ALDF_00018252">''[[Lemon]]'' (quoting ''[[Walz v. Tax Comm'n]]'', 397 U.S. 664, 674 (1970)) (emphasis added).</span></ref> These factors were not exclusive to ''[[Lemon]]'': the Court looked to purpose and effect prior to that decision,<ref><span id="ALDF_00018253">''See, e.g.'', ''[[Sch. Dist. of Abington Twp. v. Schempp]]'', 374 U.S. 203, 222 (1963) ("The test may be stated as follows: what are the purpose and the primary effect of the enactment?"); ''[[Two Guys from Harrison-Allentown, Inc. v. McGinley]]'', 366 U.S. 582, 598 (1961) (looking to a state law's purpose and effect); ''[[Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church]]'', 344 U.S. 94, 110, 115 (1952) (holding that a state law violated the "rule of separation between church and state," concluding that the "purpose, meaning, and effect" of the law was to interfere in "a matter of ecclesiastical government"); ''see also'' ''[[Walz]]'', 397 U.S. at 674 ("Determining that the [law's] legislative purpose . . . is not aimed at establishing, sponsoring, or supporting religion does not end the inquiry . . . . We must also be sure that the end result--the effect--is not an excessive government entanglement with religion.").</span></ref> and continued to do so even in subsequent opinions that did not expressly cite ''[[Lemon]]''.<ref><span id="ALDF_00018254">''See, e.g.'', ''[[Zelman v. Simmons-Harris]]'', 536 U.S. 639, 648-49 (2002) ("The Establishment Clause . . . prevents a State from enacting laws that have the 'purpose' or 'effect' of advancing or inhibiting religion." (quoting ''[[Agostini v. Felton]]'', 521 U.S. 203, 222-23 (1997)); ''[[Rosenberger v. Rector &amp; Visitors of the Univ. of Va.]]'', 515 U.S. 819, 838-39 (1995) ("[W]e must . . . inquire first into the purpose and object of the governmental action in question and then into the practical details of the program's operation.").</span></ref>
Since the adoption of ''[[Lemon]]'' there were questions about the degree to which each of its three factors was dispositive in particular cases. In an opinion issued the same day as ''[[Lemon]]'', a plurality of the Court said standards in this area should "be viewed as guidelines," citing the difficulty of adopting one test to govern all circumstances.<ref><span id="ALDF_00018255">''[[Tilton v. Richardson]]'', 403 U.S. 672, 678 (1971) (plurality opinion) ("Constitutional adjudication does not lend itself to the absolutes of the physical sciences or mathematics. The standards should rather be viewed as guidelines with which to identify instances in which the objectives of the Religion Clauses have been impaired."). The ''[[Tilton]]'' plurality's analysis nonetheless considered the same three factors named in ''[[Lemon]]''. ''Id.''</span></ref> The Court also employed variations on the ''[[Lemon]]'' test. For example, in ''[[Lynch v. Donnelly]]'', issued in 1984, Justice Sandra Day O'Connor argued in a concurring opinion that in the first and second prongs of the ''[[Lemon]]'' test, the Court should ask whether a government action had "endorsed" religion.<ref><span id="ALDF_00018256">''[[Lynch v. Donnelly]]'', 465 U.S. 668, 690 (1984) (O'Connor, J., concurring).</span></ref> The Supreme Court as a whole sometimes used this endorsement test.<ref><span id="ALDF_00018257">''See, e.g.'', ''[[Zelman v. Simmons-Harris]]'', 536 U.S. 639, 655 (2002); ''[[Santa Fe Indep. Sch. Dist. v. Doe]]'', 530 U.S. 290, 307-08 (2000); ''[[Wallace v. Jaffree]]'', 472 U.S. 38, 56 (1985).</span></ref> Further, in a 1997 decision, the Supreme Court seemed to suggest a refinement of the last two prongs of the ''[[Lemon]]'' test, saying the Court uses "three primary criteria . . . to evaluate whether government aid has the effect of advancing religion:" looking to whether laws "result in governmental indoctrination; define [their] recipients by reference to religion; or create an excessive entanglement."<ref><span id="ALDF_00018258">''[[Agostini v. Felton]]'', 521 U.S. 203, 234 (1997).</span></ref>
Apart from the ''[[Lemon]]'' factors, the Supreme Court has sometimes evaluated Establishment Clause challenges by looking to whether the law is unduly coercive--particularly in the context of government-sponsored prayer.<ref><span id="ALDF_00018259">''See, e.g.'', ''[[Lee v. Weisman]]'', 505 U.S. 577, 587 (1992). ''Cf.'' ''[[Town of Greece v. Galloway]]'', 572 U.S. 565, 587 (2014) (stating that the coercive effect of a "prayer opportunity . . . must be evaluated against the backdrop of historical practice").</span></ref> "Coercion" includes at least legal compulsion,<ref><span id="ALDF_00018260">Justice Clarence Thomas has argued that the Establishment Clause is violated ''only'' by legal coercion, ''[[Van Orden v. Perry]]'', 545 U.S. 677, 693 (2005) (Thomas, J., concurring), effected "by force of law and threat of penalty," ''[[Elk Grove Unified Sch. Dist. v. Newdow]]'', 542 U.S. 1, 49 (2004) (Thomas, J., concurring in the judgment) (quoting ''[[Lee]]'', 505 U.S. at 640 (Scalia, J., dissenting)) (internal quotation marks omitted). ''See also'' ''[[Kennedy v. Bremerton Sch. Dist.]]'', No. 21-418, slip op. at 25 (U.S. June 27, 2022) ("Members of this Court have sometimes disagreed on what exactly qualifies as impermissible coercion in light of the original meaning of the Establishment Clause.").</span></ref> but the Supreme Court has also held that "indirect coercive pressure" created by government support for "a particular religious belief" can run afoul of the Establishment Clause.<ref><span id="ALDF_00018261">''[[Engel v. Vitale]]'', 370 U.S. 421, 431 (1962).</span></ref>
Finally, the Supreme Court has sometimes reviewed laws by reference to historical traditions--and in a 2022 ruling, said this was the test courts should use "in place of Lemon and the endorsement test."<ref><span id="ALDF_00018262">''[[Bremerton Sch. Dist.]]'', No. 21-418, slip op. at 23.</span></ref> In decisions since the mid-1900s, the Court's Establishment Clause analysis has sometimes looked to the history of government regulation or accommodation of religion, and the responses to those government actions.<ref><span id="ALDF_00018263">''See, e.g.'', ''[[Van Orden v. Perry]]'', 545 U.S. 677, 688-92 (2005) (plurality opinion) (rejecting constitutional challenge to Ten Commandments display on the grounds of the Texas Capitol after reviewing the history and practice of "acknowledgments of the role played by the Ten Commandments in our Nation's heritage"); ''[[Walz v. Tax Comm'n]]'', 397 U.S. 664, 675-80 (1970) (evaluating tax exemptions for religious properties in light of "an unbroken practice of according the exemption to churches, openly and by affirmative state action"); ''[[Torcaso v. Watkins]]'', 367 U.S. 488, 490-92, 496 (1961) (holding a state religious test for public office unconstitutional, after reviewing colonial opposition to such oaths); ''[[Everson v. Bd. of Educ.]]'', 330 U.S. 1, 8-14 (1947) (reviewing "the background and environment of the period in which that constitutional language [of the Establishment Clause] was fashioned and adopted").</span></ref> In particular, some cases evaluating the constitutionality of government-sponsored prayer practices have looked to historical practice, in addition to the coercion analysis discussed above.<ref><span id="ALDF_00018264">''See, e.g.'', ''[[Am. Legion v. Am. Humanist Ass'n]]'', No. 17-1717, slip op. at 24-25 (U.S. June 20, 2019) (plurality opinion).</span></ref> Accordingly, the Supreme Court has ruled unconstitutional prayer practices that it believed were inconsistent with early understandings of the Establishment Clause,<ref><span id="ALDF_00018265">''[[Engel]]'', 370 U.S. at 424.</span></ref> but upheld legislative prayer schemes that were consistent with long-standing historical practices.<ref><span id="ALDF_00018266">''[[Town of Greece v. Galloway]]'', 572 U.S. 565, 591-92 (2014); ''[[Marsh v. Chambers]]'', 463 U.S. 783 (1983).</span></ref>
In 2022's ''[[Kennedy v. Bremerton School District]]'' the Supreme Court said it had "abandoned ''[[Lemon]]'' and its endorsement test offshoot" in favor of "an analysis focused on original meaning and history."<ref><span id="ALDF_00018267">''[[Bremerton Sch. Dist.]]'', , 24.</span></ref> The Court said the shortcomings of ''[[Lemon]]''<nowiki>'</nowiki>s "'ambitiou[s],' abstract, and ahistorical approach to the Establishment Clause" ''[[Lemon]]'' test were "apparent."<ref><span id="ALDF_00018268">''Id.'' at 22 (quoting ''[[Am. Legion]]'', slip op. at 12, 13 (plurality opinion)).</span></ref> Nonetheless, the Court did not expressly overrule ''[[Lemon]]'' or other precedent applying that test, leaving questions about how courts will apply those rulings in the future.<ref><span id="ALDF_00018269">Generally, lower courts must follow Supreme Court precedent that "has direct application in a case" even if the precedent "appears to rest on reasons rejected in some other line of decisions," leaving to the Supreme Court "the prerogative of overruling its own decisions." ''[[Rodriguez de Quijas v. Shearson/American Express, Inc.]]'', 490 U.S. 477, 484 (1989).</span></ref>
The following essays provide more detail on the Supreme Court's decisions interpreting the Establishment Clause, focusing primarily on explaining the different types of analyses the Court has employed over time. Following Supreme Court precedent, the essays discuss cases involving financial assistance and non-financial assistance to religion separately. Although the two types of cases have sometimes employed the same analyses--both applied the ''[[Lemon]]'' test in at least some instances--the application of those analyses has differed based on the factual circumstances.
====Financial Assistance to Religion====
=====Overview of Financial Assistance to Religion=====
When the government provides ''financial'' aid to religious entities, as opposed to providing other types of aid such as facilities or supplies, such support presents heightened Establishment Clause concerns.<ref><span id="ALDF_00018270">''See, e.g.'', ''[[Mitchell v. Helms]]'', 530 U.S. 793, 818-19 (2000) (plurality opinion); ''[[Rosenberger v. Rector &amp; Visitors of the Univ. of Va.]]'', 515 U.S. 819, 842, 844 (1995); ''[[Everson v. Bd. of Educ.]]'', 330 U.S. 1, 18 (1947).</span></ref> The Court has recognized that "financial support" of religion was squarely in the minds of those who adopted the Establishment Clause.<ref><span id="ALDF_00018271">''[[Walz v. Tax Comm'n]]'', 397 U.S. 664, 668 (1970).</span></ref>
Historically, the Supreme Court generally evaluated such aid under the three-part framework of ''[[Lemon v. Kurtzman]]''--although its financial aid cases have also reflected the varying approaches to ''[[Lemon]]'', including the endorsement approach.<ref><span id="ALDF_00018272">''See'' [[{{ROOTPAGENAME}}/First Amend.#Adoption of the Lemon Test|First Amend.: Adoption of the Lemon Test]]; [[{{ROOTPAGENAME}}/First Amend.#Application of the Lemon Test|First Amend.: Application of the Lemon Test]].</span></ref> While the Court has since "abandoned" the ''[[Lemon]]'' test in favor of an approach that looks to historical tradition,<ref><span id="ALDF_00018273">''[[Kennedy v. Bremerton Sch. Dist.]]'', No. 21-418, (U.S. June 27, 2022).</span></ref> it has not specifically overruled that opinion or some other cases applying that analysis, meaning the outcomes of those rulings may still be considered binding precedent. Accordingly, particularly in light of the fact that the Court has not frequently applied a test looking to historical traditions in the context of financial aid,<ref><span id="ALDF_00018274">''[[Everson v. Board of Education]]'', 330 U.S. 1, 8-14 (1947), see [[{{ROOTPAGENAME}}/First Amend.#Early Cases on Financial Assistance to Religion|First Amend.: Early Cases on Financial Assistance to Religion]], looked to history to inform its understanding of the general principles animating the Religion Clauses. Additionally, ''[[Walz v. Tax Comm'n]]'', 397 U.S. 664, 675-80 (1970), see [[{{ROOTPAGENAME}}/First Amend.#Adoption of the Lemon Test|First Amend.: Adoption of the Lemon Test]], looked to historical practice in addition to the ''[[Lemon]]'' factors to evaluate the constitutionality of a tax exemption.</span></ref> there is some uncertainty regarding how at least certain types of financial aid may be reviewed in the future.
In addition, one central issue in modern Establishment Clause jurisprudence concerns ''who'' decides that aid will be provided to a religious entity. The Supreme Court has said financial aid will be especially problematic if the government is giving funds ''directly'' to religious entities, as opposed to giving funds to religious entities ''indirectly''--that is, giving funds to third parties who privately choose to use public funds to support religious entities.<ref><span id="ALDF_00018275">''See, e.g.'', ''[[Locke v. Davey]]'', 540 U.S. 712, 719 (2004). ''See also'' ''[[Zelman v. Simmons-Harris]]'', 536 U.S. 639, 649 (2002); ''[[Lemon v. Kurtzman]]'', 403 U.S. 602, 621 (1971). ''Cf.'' ''[[Helms]]'', 530 U.S. at 818 (plurality opinion) ("Whether one chooses to label this [non-financial aid] program 'direct' or 'indirect' is a rather arbitrary choice, one that does not further the constitutional analysis.").</span></ref> The Court has said that indirect aid will generally be permissible under ''[[Lemon]]'' if the "government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice."<ref><span id="ALDF_00018276">''[[Zelman]]'', 536 U.S. at 652. ''[[Zelman]]'' analyzed indirect aid programs under the "purpose" and "effect" prongs of the ''[[Lemon]]'' test. ''Id.'' at 649-50.</span></ref>
In a few cases, the Supreme Court has considered the ''denial'' of financial assistance, and has held in those cases that the government did not violate the Establishment Clause either by imposing a generally applicable tax on a religious entity<ref><span id="ALDF_00000656">''[[Jimmy Swaggart Ministries v. Cal. Bd. of Equalization]]'', 493 U.S. 378, 394 (1990).</span></ref> or denying a tax exemption for religiously motivated activity.<ref><span id="ALDF_00000657">''[[Hernandez v. Commissioner]]'', 490 U.S. 680, 695 (1989); ''[[Bob Jones Univ. v. United States]]'', 461 U.S. 574, 604 n.30 (1983); ''see also '' [[{{ROOTPAGENAME}}/First Amend.#Zelman and Indirect Assistance to Religion|First Amend.: Zelman and Indirect Assistance to Religion]].</span></ref>
=====Early Cases on Financial Assistance to Religion=====
The Supreme Court first recognized that the Establishment Clause applied to the states (through the Fourteenth Amendment) in 1947's ''[[Everson v. Board of Education]]''.<ref><span id="ALDF_00018277">''[[Everson v. Bd. of Educ.]]'', 330 U.S. 1, 8 (1947). ''See also'' [[{{ROOTPAGENAME}}/Fourteenth Amend./Section 1 Rights#Early Doctrine on Incorporation of the Bill of Rights|Fourteenth Amend., Sec. 1: Early Doctrine on Incorporation of the Bill of Rights]].</span></ref> Prior to ''[[Everson]]'', the Court had issued only two decisions evaluating federal financial assistance to religious institutions.<ref><span id="ALDF_00018278">''[[Quick Bear v. Leupp]]'', 210 U.S. 50, 81-82 (1908) (concluding that a congressional appropriation of funds to religious schools did not violate the Establishment Clause where the appropriation involved the Rosebud Sioux Tribe's decisions about the use of its own money); ''[[Bradfield v. Roberts]]'', 175 U.S. 291, 297-99 (1899) (concluding that a federal appropriation to expand a hospital owned by a religious order did not violate the Establishment Clause given the secular legal character of the corporation and Congress's secular goal to care for the sick).</span></ref> Both took a fact-specific approach to evaluating the constitutional challenges in those cases rather than attempting to articulate a broader test, and both rejected the Establishment Clause challenges. Accordingly, these early cases, along with ''[[Everson]]'', demonstrated that not all forms of government aid to religion violate the Establishment Clause.<ref><span id="ALDF_00018279">''See, e.g.'', ''[[Tilton v. Richardson]]'', 403 U.S. 672, 679 (1971) (plurality opinion) ("The simplistic argument that every form of financial aid to church-sponsored activity violates the Religion Clauses was rejected long ago in ''[[Bradfield v. Roberts]]'' . . . ." (citation omitted)).</span></ref>
''[[Everson]]'' thus was the Supreme Court's first significant modern attempt to elucidate the terms of the Establishment Clause.<ref><span id="ALDF_00018280">''See'' ''[[Everson v. Bd. of Educ.]]'', 330 U.S. 1, 8 (1947).</span></ref> The Court upheld a state program that reimbursed parents for bus fare to send their children to school, including children who attended parochial schools.<ref><span id="ALDF_00018281">''Id.'' at 3.</span></ref> The Court largely declined to articulate a single test for courts to evaluate Establishment Clause challenges, although it did make some broad pronouncements about how to approach the Religion Clauses. For instance, in balancing the two Religion Clauses, the Court cautioned that in "protecting" citizens from "state-established churches," it did not want to "inadvertently prohibit [the state] from extending its general state law benefits to all its citizens without regard to their religious belief."<ref><span id="ALDF_00018282">''Id.'' at 16.</span></ref> The Court said that the First Amendment "requires the state to be . . . neutral in its relations with groups of religious believers and non-believers; it does not require the state to be their adversary."<ref><span id="ALDF_00018283">''Id.'' at 18.</span></ref>
Applying these general principles, the Supreme Court said that the bus fare reimbursement program was constitutional.<ref><span id="ALDF_00018284">''Id.'' at 17.</span></ref> Although it used "tax-raised funds" to help some children "get to church schools," this was only "as a part of a general program" that paid "the fares of pupils attending public and other schools."<ref><span id="ALDF_00018285">''Id.''</span></ref> In the Court's view, the Establishment Clause did not require the state to "cut[ ] off church schools" from "general government services."<ref><span id="ALDF_00018286">''Id.'' at 17-18. Somewhat similarly, the Supreme Court has held that states do not violate the Establishment Clause by providing unemployment benefits to individuals who are fired based on their unwillingness to work on the Sabbath, ruling instead that this accommodation of religious practices merely reflects government neutrality towards religion. ''[[Hobbie v. Unemployment Appeals Comm'n]]'', 480 U.S. 136, 144-45 (1987); ''[[Sherbert v. Verner]]'', 374 U.S. 398, 409 (1963). ''See also'' ''[[Thomas v. Review Bd. of Ind. Emp. Sec. Div.]]'', 450 U.S. 707, 719-20 (1981) (reaching a similar conclusion with respect to an individual who was denied unemployment benefits after leaving his job because his newly assigned job responsibilities, producing armaments, violated his religious beliefs).</span></ref>
=====Adoption of the Lemon Test=====
The tripartite Establishment Clause test asking courts to look to purpose, effect, and entanglement is primarily associated with ''[[Lemon v. Kurtzman]]'', decided in 1971.<ref><span id="ALDF_00018287">''[[Lemon v. Kurtzman]]'', 403 U.S. 602, 612-13 (1971).</span></ref> However, the Supreme Court first compiled these three factors a year earlier, in ''[[Walz v. Tax Commission]]''.<ref><span id="ALDF_00018288">''[[Walz v. Tax Comm'n]]'', 397 U.S. 664, 674 (1970). The Supreme Court looked to the first two ''[[Lemon]]'' factors, purpose and effect, prior to ''[[Walz]]''. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Purpose and Effect Test Before Lemon|First Amend.: Purpose and Effect Test Before Lemon]].</span></ref> The ''[[Walz]]'' petitioners raised an Establishment Clause challenge to a state tax exemption for religious properties used solely for religious worship.<ref><span id="ALDF_00018289">''[[Walz]]'', 397 U.S. at 666-67.</span></ref> In upholding the exemption, the Court held first that its "legislative purpose" was "neither the advancement nor the inhibition of religion; . . . neither sponsorship nor hostility."<ref><span id="ALDF_00018290">''Id.'' at 672.</span></ref> The state had granted the exemption not only to religious properties, but to "a broad class of property owned by nonprofit, quasi-public corporations" that the state considered to be "beneficial and stabilizing influences in community life."<ref><span id="ALDF_00018291">''Id.'' at 673.</span></ref> The Court then considered whether the effect of the law was "an excessive government entanglement with religion."<ref><span id="ALDF_00018292">''Id.'' at 674.</span></ref> The Court acknowledged that the exemption would create some entanglement by giving churches "an indirect economic benefit," but stated that the exemption entailed less government involvement than either taxing the churches or giving them a direct money subsidy.<ref><span id="ALDF_00018293">''Id.'' at 674-75.</span></ref> As part of its analysis into whether the exemption impermissibly sponsored religion, the Court also emphasized widespread historical precedent for tax exemptions.<ref><span id="ALDF_00000658">''Id.'' at 676-78 (noting that all fifty states provided tax exemptions for places of worship at the time of decision, and noting examples from colonial times and early Congresses).</span></ref> Ultimately, the Court ruled that the exemption created "only a minimal and remote involvement between church and state."<ref><span id="ALDF_00018294">''Id.'' at 676.</span></ref>
In ''[[Lemon]]'', the Supreme Court formally synthesized a three-part test for analyzing Establishment Clause challenges: to be constitutional, laws (1) "must have a secular legislative purpose;" (2) must have a "principal or primary effect . . . that neither advances nor inhibits religion . . .;" (3) and "must not foster 'an excessive government entanglement with religion.'"<ref><span id="ALDF_00018295">''[[Lemon v. Kurtzman]]'', 403 U.S. 602, 612-13 (1971) (internal citation omitted) (quoting ''[[Walz]]'', 397 U.S. at 674).</span></ref> The Court applied this test in ''[[Lemon]]'' to conclude that two state programs providing public funds to church-affiliated schools were unconstitutional because they created an excessive entanglement with religion.<ref><span id="ALDF_00018296">''Id.'' at 613-14.</span></ref>
The first program provided supplemental payments to teachers in nonpublic schools.<ref><span id="ALDF_00018297">''Id.'' at 606-07.</span></ref> The Court believed there was significant "danger that a teacher under religious control and discipline" could not separate "the religious from the purely secular aspects of . . . education."<ref><span id="ALDF_00018298">''Id.'' at 617.</span></ref> Given this "potential for impermissible fostering of religion," the Court said that the state would have to ensure "that subsidized teachers do not inculcate religion"--and noted that the state had in fact imposed a number of restrictions on the use of state aid.<ref><span id="ALDF_00018299">''Id.'' at 619.</span></ref> But in the Supreme Court's view, these restrictions created an "excessive and enduring entanglement between state and church" by requiring "a comprehensive, discriminating, and continuing state surveillance" of the religious schools.<ref><span id="ALDF_00018300">''Id.''</span></ref>
The second program considered in ''[[Lemon]]'' reimbursed nonpublic schools for purchasing certain secular educational services or textbooks.<ref><span id="ALDF_00018301">''Id.'' at 607.</span></ref> The Court ruled this program unconstitutional for the same reasons as the first, noting that the program required the state to review reimbursements and required schools to use certain accounting procedures.<ref><span id="ALDF_00018302">''Id.'' at 620-21.</span></ref> The Court said that the second program suffered from "the further defect of providing state financial aid directly to the church-related school."<ref><span id="ALDF_00018303">''Id.'' at 621.</span></ref> This was particularly concerning to the Court because historically, programs involving "a continuing cash subsidy . . . have almost always been accompanied by varying measures of [government] control and surveillance."<ref><span id="ALDF_00018304">''Id.''</span></ref> The Court was also concerned about the "divisive political potential" and the relatively unprecedented nature of both programs, stating that these factors might suggest a danger of even greater government regulation of religious schools in the future.<ref><span id="ALDF_00018305">''Id.'' at 622-24. Two years later, however, the Supreme Court held that, with respect to the second program, the state could reimburse schools for services they had provided before the program was ruled unconstitutional, emphasizing the schools' reliance interests. ''[[Lemon v. Kurtzman (Lemon II)]]'', 411 U.S. 192, 201-03 (1973). ''But see'' ''[[New York v. Cathedral Acad.]]'', 434 U.S. 125, 131, 133 (1977) (ruling unconstitutional a state law attempting to reimburse schools for expenses incurred in reliance on a law that the Supreme Court declared unconstitutional, noting that unlike in ''[[Lemon II]]'', the "constitutional defect" in the law "lay in the payment itself, rather than in the process of its administration").</span></ref>
=====Application of the Lemon Test=====
Since 1971, the Supreme Court has most frequently evaluated financial assistance to religious entities under the ''[[Lemon]]'' framework, notwithstanding its gradual disfavor and eventual "abandonment" of ''[[Lemon]]''.<ref><span id="ALDF_00000659">''[[Kennedy v. Bremerton Sch. Dist.]]'', No. 21-418, (U.S. June 27, 2022).</span></ref> In a series of decisions issued during the 1970s, the Court applied these three factors to a series of programs offering funds to schools, holding some of those programs constitutional and others unconstitutional. The Court rejected Establishment Clause challenges to generally available aid programs that provided that funds could not be used "for sectarian purposes," concluding this type of restriction ensured the program would not have an unconstitutional effect of advancing religion under ''[[Lemon]]''.<ref><span id="ALDF_00018306">''[[Roemer v. Bd. of Pub. Works]]'', 426 U.S. 736, 747 (1976) (plurality opinion) (upholding a state program offering grants to private institutions of higher education); ''id.'' at 767 (White, J., concurring in the judgment).</span></ref> For example, in ''[[Tilton v. Richardson]]'' and ''[[Hunt v. McNair]]'', the Court upheld programs that funded the construction or improvement of educational facilities, but expressly excluded facilities used for religious worship or instruction.<ref><span id="ALDF_00018307">''[[Tilton v. Richardson]]'', 403 U.S. 672, 689 (1971) (plurality opinion) (upholding most of a federal program providing construction grants for educational facilities); ''[[Lemon v. Kurtzman]]'', 403 U.S. 602, 664 (1971) (White, J., concurring in the judgment in ''[[Tilton]]''); ''[[Hunt v. McNair]]'', 413 U.S. 734, 749 (1973) (upholding a state law authorizing the issuance of revenue bonds to a religious college for construction and improvement of certain nonsectarian facilities).</span></ref> Further, in ''[[Tilton]]'', the Court ruled that a provision that would have allowed federally funded facilities to revert to religious purposes after twenty years was unconstitutional.<ref><span id="ALDF_00018308">''[[Tilton]]'', 403 U.S. at 683 (plurality opinion); ''id.'' at 692 (Douglas, J., dissenting).</span></ref>
The Court also applied ''[[Lemon]]'' to disapprove of a number of financial aid programs in the 1970s.<ref><span id="ALDF_00018309">''[[New York v. Cathedral Acad.]]'', 434 U.S. 125, 133 (1977); ''[[Sloan v. Lemon]]'', 413 U.S. 825, 828 (1973); ''[[Comm. for Pub. Educ. &amp; Religious Liberty v. Nyquist]]'', 413 U.S. 756, 783 (1973); ''[[Levitt v. Committee for Public Education]]'', 413 U.S. 472, 482 (1973).</span></ref> In ''[[Committee for Public Education and Religious Liberty v. Nyquist]]'' and ''[[Levitt v. Committee for Public Education]]'', the Supreme Court held that two state programs funding private schools violated the Establishment Clause because the programs lacked any measures to ensure that the funds would not be used for religious purposes.<ref><span id="ALDF_00018310">''[[Nyquist]]'', 413 U.S. at 779-80; ''[[Levitt]]'', 413 U.S. at 480.</span></ref> In ''[[Nyquist]]'', the Court considered a state law that, among other things, offered grants to private schools for facilities maintenance and repair.<ref><span id="ALDF_00018311">''[[Nyquist]]'', 413 U.S. at 774.</span></ref> The law did not "restrict payments . . . to the upkeep of facilities used exclusively for secular purposes," and would have, for example, allowed schools to use the funds for "the salaries of employees who maintain the school chapel, or the cost of renovating classrooms in which religion is taught."<ref><span id="ALDF_00018312">''Id.''</span></ref> Accordingly, the Court concluded that the program failed the effect prong of ''[[Lemon]]'' because it would "inevitably . . . subsidize and advance the religious mission of sectarian schools."<ref><span id="ALDF_00018313">''Id.'' at 779-80. ''See also'' ''[[Sloan]]'', 413 U.S. at 828 (concluding that a state tuition reimbursement program was unconstitutional under ''[[Nyquist]]'' because there was "no constitutionally significant difference" between the programs in both cases).</span></ref>
Similarly, in ''[[Levitt]]'', the Supreme Court held that a state program reimbursing religious schools for performing certain testing and recordkeeping services violated the Establishment Clause because "the aid that [would] be devoted to secular functions [was] not identifiable and separable from aid to sectarian activities."<ref><span id="ALDF_00018314">''[[Levitt]]'', 413 U.S. at 480.</span></ref> The Court noted that the tests were prepared by "teachers under the authority of religious institutions" and ruled that there was an inherent risk of the test being used for "religious indoctrination."<ref><span id="ALDF_00018315">''Id.'' The state responded to the Supreme Court's decision in ''[[Levitt]]'' in part by attempting to allow schools to recover any expenses they had incurred in reliance on the law that the Court declared unconstitutional. ''[[New York v. Cathedral Acad.]]'', 434 U.S. 125, 127 (1977). The Court held that these new payments were similarly unconstitutional because they did not "differ in any substantial way from those authorized" under the law it had already ruled unconstitutional. ''Id.'' at 131.</span></ref> Seven years after its decision in ''[[Levitt]]'', the Supreme Court upheld a revised version of the same testing-reimbursement law.<ref><span id="ALDF_00018316">''[[Comm. for Pub. Educ. &amp; Religious Liberty v. Regan]]'', 444 U.S. 646, 657, 659 (1980).</span></ref> The new law did not allow reimbursement for teacher-prepared tests and allowed states to audit payments.<ref><span id="ALDF_00018317">''Id.'' at 652.</span></ref> The Court ruled that these new safeguards were sufficient to ensure "that the cash reimbursements would cover only secular services,"<ref><span id="ALDF_00018318">''Id.'' at 659.</span></ref> and did not create an impermissible entanglement with religion.<ref><span id="ALDF_00018319">''Id.'' at 660. The Court also rejected an Establishment Clause challenge to a program that supplied testing and scoring services to nonpublic schools, but did "not authorize any payment to nonpublic school personnel," noting that the testing program was controlled entirely by the state. ''[[Wolman v. Walter]]'', 433 U.S. 229, 240-41 (1977), ''partially overruled on other grounds by'' ''[[Mitchell v. Helms]]'', 530 U.S. 793 (2000).</span></ref>
Starting in 1980, the Supreme Court almost uniformly rejected Establishment Clause challenges to financial aid provisions, finding a constitutional violation in only one case, discussed below.<ref><span id="ALDF_00018320">''[[Tex. Monthly, Inc. v. Bullock]]'', 489 U.S. 1, 5 (1989) (plurality opinion). ''Cf.'' ''[[Carson v. Makin]]'', No. 20-1088, slip op. at 16-17 (U.S. June 21, 2022) (suggesting that a funding condition attempting to prevent religious uses of funds in an indirect aid program could "raise serious concerns about state entanglement with religion and denominational favoritism" by requiring scrutiny of "whether and how a religious school pursues its educational mission").</span></ref> The Court's analysis generally continued to focus on purpose, effect, and entanglement, although it occasionally referred more generally to a program's neutrality without explicitly citing ''[[Lemon]]''.<ref><span id="ALDF_00018321">''See'' ''[[Espinoza v. Mont. Dep't of Revenue]]'', No. 18-1195, slip op. at 7 (U.S. June 30, 2020) ("[T]he Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs."); ''[[Bob Jones Univ. v. United States]]'', 461 U.S. 574, 604 n.30 (1983) (rejecting an Establishment Clause challenge to an IRS policy that extended tax exemptions only to nonprofit organizations that did not racially discriminate, noting that the policy had a neutral, secular basis).</span></ref> Further, the Court began to move away from the separationist approach of ''[[Nyquist]]'' and ''[[Levitt]]'', suggesting that financial aid programs might not have to prohibit expressly the religious use of funds in order to be ruled constitutional.<ref><span id="ALDF_00018322">''See'' ''[[Mitchell v. Helms]]'', 530 U.S. 793, 856 (2000) (O'Connor, J., concurring) ("''[[Wolman]]'' and ''[[Levitt]]'' were both based on the same presumption that government aid will be used in the inculcation of religion that we have chosen not to apply to textbook lending programs and that we have more generally rejected in recent decisions."); ''see also'' ''[[Bowen v. Kendrick]]'', 487 U.S. 589, 634-35 (1988) (Blackmun, J., dissenting) (arguing that the majority opinion "mark[ed] a sharp departure from" the Court's precedents, including ''[[Levitt]]'').</span></ref> Indeed, the Supreme Court has rejected Establishment Clause challenges to a number of programs in part because they offer benefits broadly to both religious and nonreligious recipients.<ref><span id="ALDF_00018323">''See'' ''[[Mueller v. Allen]]'', 463 U.S. 388, 397 (1983); ''[[Bowen v. Kendrick]]'', 487 U.S. 589, 610-11 (1988); ''see also'' ''[[Rosenberger v. Rector &amp; Visitors of the Univ. of Va.]]'', 515 U.S. 819, 842 (1995) ("It does not violate the Establishment Clause for a public university to grant access to its facilities on a religion-neutral basis to a wide spectrum of student groups . . . .").</span></ref>
In ''[[Mueller v. Allen]]'', the Supreme Court concluded that a state could allow individual tax deductions for tuition, textbooks, and transportation costs incurred in sending students to religious schools.<ref><span id="ALDF_00018324">''[[Mueller]]'', 463 U.S. at 402-03.</span></ref> While the program disallowed deductions for instructional materials used to "inculcate" religious tenets or doctrine,<ref><span id="ALDF_00018325">''Id.'' at 403.</span></ref> the Court's analysis did not seem to turn on this restriction. The Court instead stressed, among other factors, that the tax deduction was "available for educational expenses incurred by ''all'' parents, including those whose children attend public schools and those whose children attend non-sectarian private schools or sectarian private schools."<ref><span id="ALDF_00018326">''Id.'' at 397.</span></ref> Because the benefit was broadly available and neutral on its face with respect to religion, the Court believed that the program had a primarily secular effect and did not imply state endorsement of religion.<ref><span id="ALDF_00018327">''Id.''</span></ref>
The Court solidified this approach in ''[[Bowen v. Kendrick]]'', upholding a federal grant program for adolescent health services even though it did not expressly prohibit the use of federal funds for religious purposes.<ref><span id="ALDF_00018328">''[[Bowen]]'', 487 U.S. at 614.</span></ref> The Court noted that the statute made funds available to a wide variety of organizations and concluded that there was no evidence that a "significant proportion of the federal funds" would be given to religious institutions.<ref><span id="ALDF_00018329">''Id.'' at 608, 610.</span></ref> Further, the Court said that it would assume that even absent an express restriction on the religious use of funds, religious grantees could carry out the funded programs "in a lawful, secular manner."<ref><span id="ALDF_00018330">''Id.'' at 612, 614.</span></ref>
''[[Texas Monthly, Inc. v. Bullock]]'', however, illustrates the limits of the Supreme Court's favored approach of the 1980s. In ''[[Texas Monthly]]'', the Court struck down a state tax exemption for periodicals distributed by a religious faith that consisted wholly of religious writings.<ref><span id="ALDF_00018331">''[[Tex. Monthly, Inc. v. Bullock]]'', 489 U.S. 1, 5 (1989) (plurality opinion).</span></ref> Justice William Brennan, writing for a plurality of the Court, concluded that this exemption failed the endorsement test.<ref><span id="ALDF_00018332">''Id.'' at 17.</span></ref> He said that "when government directs a subsidy ''exclusively'' to religious organizations that is not required by the Free Exercise Clause," that conveys an impermissible message of "state sponsorship of religious belief."<ref><span id="ALDF_00018333">''Id.'' at 15 (emphasis added). Justice Harry Blackmun, joined by Justice Sandra Day O'Connor, agreed that the tax exemption violated the Establishment Clause because the state had "engaged in preferential support for the communication of religious messages." ''Id.'' at 28 (Blackmun, J., concurring).</span></ref>
=====Zelman and Indirect Assistance to Religion=====
The Supreme Court has generally been more permissive of indirect financial aid programs, where the government does not give funds directly to religious organizations but gives them instead to third parties who make "genuinely independent and private choices" to support religious entities.<ref><span id="ALDF_00018334">''[[Witters v. Wash. Dep't of Servs. for the Blind]]'', 474 U.S. 481, 487 (1986). ''Cf.'' ''[[Quick Bear v. Leupp]]'', 210 U.S. 50, 81-82 (1908) (concluding a congressional appropriation of funds to religious schools did not violate the Establishment Clause where the appropriation involved the Rosebud Sioux Tribe's decisions about the use of its own money, suggesting that prohibiting private entities from "us[ing] their own money" to support religion would raise concerns under the Constitution's Free Exercise Clause).</span></ref> In such circumstances, the Court has not required the government to include religious use restrictions.<ref><span id="ALDF_00018335">''See, e.g.'', ''[[Zelman v. Simmons-Harris]]'', 536 U.S. 639, 649 (2002).</span></ref> Instead, where financial aid is provided to religious entities indirectly, the Court has said that such programs satisfy ''[[Lemon]]''<nowiki>'</nowiki>s effect prong even if the funds ultimately support religious activities--so long as the program is "neutral in all respects toward religion,"<ref><span id="ALDF_00018336">''Id.'' at 653.</span></ref> particularly in the sense of using religiously neutral criteria to distribute aid.<ref><span id="ALDF_00018337">''See, e.g.'', ''[[Mitchell v. Helms]]'', 530 U.S. 793, 838-39 (2000) (O'Connor, J., concurring in the judgment).</span></ref>
One 1973 case, ''[[Committee for Public Education and Religious Liberty v. Nyquist]]'', suggested that the Supreme Court might view at least some types of indirect aid programs with heightened scrutiny.<ref><span id="ALDF_00018338">''[[Comm. for Pub. Educ. &amp; Religious Liberty v. Nyquist]]'', 413 U.S. 756, 774 (1973).</span></ref> ''[[Nyquist]]'' struck down an indirect aid program that assisted only private schools, providing tuition reimbursements and tax benefits to parents.<ref><span id="ALDF_00018339">''Id.'' at 762-67, 798. The case also involved direct grants to private schools for maintenance and repair costs, discussed [[{{ROOTPAGENAME}}/First Amend.#Application of the Lemon Test|First Amend.: Application of the Lemon Test]]. The Court noted that "all or practically all" of the schools eligible for the direct grants were Catholic, but that religious schools from other denominations and secular private schools were eligible for aid under the indirect aid provisions. ''[[Nyquist]]'', 413 U.S. at 768 &amp; n.23.</span></ref> With respect to the tuition reimbursements, the Court concluded that regardless of the fact that the funds were given to parents and not directly to schools, the program was still unconstitutional because "the effect of the aid is unmistakably to provide desired financial support for nonpublic, sectarian institutions."<ref><span id="ALDF_00018340">''[[Nyquist]]'', 413 U.S. at 783. The Court held that a similar tuition reimbursement program violated the Establishment Clause in ''[[Sloan v. Lemon]]'', 413 U.S. 825, 830 (1973), concluding that ''[[Nyquist]]'' mandated this outcome.</span></ref> The Court ruled that the tax benefits were similarly unconstitutional, saying that "in practical terms," there was little difference between the tuition grant and the tax benefits.<ref><span id="ALDF_00018341">''[[Nyquist]]'', 413 U.S. at 790-91. The Court distinguished ''[[Walz v. Tax Commission]]'', 397 U.S. 664, 666-67 (1970), by noting, as one relevant factor, that the tax exemption in ''[[Walz]]'' "covered all property devoted to religious, educational, or charitable purposes," while the tax benefits in ''[[Nyquist]]'' "flow[ed] primarily to the parents of children attending sectarian, nonpublic schools." ''[[Nyquist]]'', 413 U.S. at 794.</span></ref>
In ''[[Zelman v. Simmons-Harris]]'', however, the Supreme Court suggested that indirect aid programs will generally satisfy ''[[Lemon]]'', if they are "programs of true private choice."<ref><span id="ALDF_00018342">''[[Zelman v. Simmons-Harris]]'', 536 U.S. 639, 649 (2002).</span></ref> ''[[Zelman]]'' rejected an Establishment Clause challenge to a municipal program that offered "tuition aid" to parents with financial need who sought to enroll their children in schools in underperforming districts.<ref><span id="ALDF_00018343">''Id.'' at 646.</span></ref> The parents could choose to use the tuition aid at religious or nonreligious private schools, as well as public schools.<ref><span id="ALDF_00018344">''Id.'' at 653. In its analysis, the Court noted that there was "no evidence" that parents did not have "genuine opportunities . . . to select secular educational options for their school-age children." ''Id.'' at 655. ''See also'' ''[[Witters v. Wash. Dep't of Servs. for the Blind]]'', 474 U.S. 481, 489 (1986) (ruling that a state tuition aid program did not violate the Establishment Clause after noting that "nothing in the record indicates that . . . any significant portion of the aid expended under the Washington program as a whole will end up flowing to religious education").</span></ref> The Court said that where the government program aided "a broad class of citizens" who then chose to "direct government aid to religious schools wholly as a result of their own genuine and independent private choice," any support for religion was "reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits."<ref><span id="ALDF_00018345">''[[Zelman]]'', 536 U.S. at 653.</span></ref> Consequently, under the endorsement test, "no reasonable observer would think" that such a program "carries with it the imprimatur of government endorsement" of religion.<ref><span id="ALDF_00018346">''Id.'' at 655.</span></ref>
''[[Zelman]]'' distinguished but did not overrule ''[[Nyquist]]'', saying "''[[Nyquist]]'' does not govern neutral educational assistance programs that, like the program here, offer aid directly to a broad class of individual recipients defined without regard to religion."<ref><span id="ALDF_00018347">''Id.'' at 662.</span></ref> The Court emphasized that the program in ''[[Nyquist]]'' provided benefits "exclusively to private schools," rather than providing benefits "generally without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited."<ref><span id="ALDF_00018348">''Id.'' at 661 (quoting ''[[Comm. for Pub. Educ. &amp; Religious Liberty v. Nyquist]]'', 413 U.S. 756, 783 n.38 (1973) (internal quotation mark omitted)). ''See also, e.g.'', ''[[Mitchell v. Helms]]'', 530 U.S. 793, 819 n.8 (2000) (plurality opinion) (stating that ''[[Nyquist]]'' "involved serious concerns about whether the payments were truly neutral").</span></ref> ''[[Zelman]]'' thus seemed to leave open the question of whether an indirect aid program that was neutral towards religion on its face and supported both religious and secular ''private'' entities, but did not also aid ''public'' entities, would raise Establishment Clause concerns. However, the Supreme Court has more recently said that an Establishment Clause challenge to a state tax benefit program indirectly assisting only private schools would be "unavailing."<ref><span id="ALDF_00018349">''[[Espinoza v. Mont. Dep't of Revenue]]'', No. 18-1195, slip op. at 7 (U.S. June 30, 2020).</span></ref> Accordingly, although the Supreme Court has never expressly overruled ''[[Nyquist]]'', that case may now be narrowed to such a limited set of facts that the Court is unlikely to rely on it in future cases.
Further reinforcing ''[[Zelman]]'', the Supreme Court has held that states do not violate the Establishment Clause by offering scholarship funds to students who may choose to use those funds at religious schools or for religious studies,<ref><span id="ALDF_00018350">''[[Locke v. Davey]]'', 540 U.S. 712, 719 (2004) (ruling that a state could have allowed state scholarship recipients to use scholarship funds to pursue degrees in devotional theology); ''[[Witters]]'', 474 U.S. at 489 (ruling that a state could provide tuition aid to a visually impaired student studying religious subjects at a religious college). ''See also'' ''[[Carson v. Makin]]'', No. 20-1088, slip op. at 10 (U.S. June 21, 2022) (ruling that a state could have allowed families to use tuition assistance payments at religious schools).</span></ref> or by offering tax credits for donating to private organizations that granted scholarships to private schools.<ref><span id="ALDF_00018351">''[[Espinoza]]'', slip op. at 7.</span></ref> To take one last example, the Supreme Court ruled that it did not violate the Establishment Clause for a public university to pay for the printing of a religious student publication in ''[[Rosenberger v. Rector and Visitors of the University of Virginia]]''.<ref><span id="ALDF_00018352">''[[Rosenberger v. Rector &amp; Visitors of the Univ. of Va.]]'', 515 U.S. 819, 842 (1995).</span></ref> The university generally offered funds to approved student groups.<ref><span id="ALDF_00018353">''Id.'' at 823-24.</span></ref> The student groups chose how to use the funds, and the funds were given to the printer, rather than being paid directly to the religious student group.<ref><span id="ALDF_00018354">''Id.'' at 842.</span></ref> Under the circumstances, the Court said it was not "plausible" that any religious speech supported with these funds would be attributed to the university.<ref><span id="ALDF_00018355">''Id.'' at 841.</span></ref> The Court emphasized that the funds were available on a "religion-neutral basis" as part of a program that funded "secular services" such as printing.<ref><span id="ALDF_00018356">''Id.'' at 843-44. Seemingly illustrating the difference between direct aid and indirect aid, the Court cautioned that "if the State pays a church's bills it is subsidizing it, and we must guard against this abuse." ''Id.'' at 844. But the Court said that ''[[Rosenberger]]'' did not present this circumstance, in part because the university was paying "outside printers," attaining a "degree of separation from the student publication." ''Id.''</span></ref>
=====Denying Financial Assistance to Religion=====
Government decisions that refuse to grant a tax exemption may be viewed as a decision to ''deny'' financial aid. On that theory, religious entities have sometimes argued that the federal government's decision to deny them a tax exemption for religiously motivated actions violated the Establishment Clause where the exemption allegedly preferred certain religions.<ref><span id="ALDF_00018357">''[[Hernandez v. Commissioner]]'', 490 U.S. 680, 695 (1989) (arguing that by denying tax-deductible status to certain payments made to the Church of Scientology for services rendered, the federal government created "an unconstitutional denominational preference" by disfavoring religions that impose fixed costs for participating in religious practices); ''[[Bob Jones Univ. v. United States]]'', 461 U.S. 574, 604 n.30 (1983) (arguing that a federal policy denying tax-exempt status to schools that practice racial discrimination "preferr[ed] religions whose tenets do not require racial discrimination over those which believe racial intermixing is forbidden").</span></ref> The Supreme Court rejected the constitutional challenges in two such cases, noting that the federal government's tax laws were generally neutral in their purpose and effect, and that the challenged policies did not ''facially'' discriminate on the basis of religion.<ref><span id="ALDF_00018358">''[[Hernandez]]'', 490 U.S. at 696; ''[[Bob Jones Univ.]]'', 461 U.S. at 604 n.30. ''Cf.'' ''[[Larson v. Valente]]'', 456 U.S. 228, 230, 246-47 (1982) (holding that a state statute imposing "registration and reporting requirements upon only those religious organizations that solicit more than fifty per cent of their funds from nonmembers" created a denominational preference, triggering strict scrutiny). For a more detailed discussion of ''[[Larson]]'' see [[{{ROOTPAGENAME}}/First Amend.#Lemon's Entanglement Prong|First Amend.: Lemon's Entanglement Prong]].</span></ref> In one of the cases, the Court further concluded that the decision to tax the church did not threaten an "excessive entanglement between church and state," even though the government would have to obtain certain information from religious entities to ascertain tax liability.<ref><span id="ALDF_00018359">''[[Hernandez]]'', 490 U.S. at 696.</span></ref> The Court described this as a "routine regulatory interaction" that did not require an impermissible inquiry "into religious doctrine" or entail "'detailed monitoring and close administrative contact' between secular and religious bodies."<ref><span id="ALDF_00018360">''Id.'' at 696-97 (quoting ''[[Aguilar v. Felton]]'', 473 U.S. 402, 414 (1985)).</span></ref>
Entanglement was at the core of another Supreme Court opinion rejecting an Establishment Clause challenge to a state's decision to impose generally applicable sales and use taxes on religious publications.<ref><span id="ALDF_00018361">''[[Jimmy Swaggart Ministries v. Cal. Bd. of Equalization]]'', 493 U.S. 378, 397 (1990).</span></ref> A religious organization that sold evangelical materials such as books and tapes sought an exemption from state tax liability, arguing that the state would violate ''[[Lemon]]''<nowiki>'</nowiki>s entanglement prong by taxing its materials.<ref><span id="ALDF_00018362">''Id.'' at 382, 392. The organization's argument focused on ''[[Lemon]]''<nowiki>'</nowiki>s entanglement prong, but the Supreme Court also briefly considered the first two prongs of the ''[[Lemon]]'' test, ruling that "it is undeniable that a generally applicable tax has a secular purpose and neither advances nor inhibits religion, for the very essence of such a tax is that it is neutral and nondiscriminatory on questions of religious belief." ''Id.'' at 394.</span></ref> The Supreme Court rejected this argument, saying that even if the law imposed accounting burdens on the organization, "such administrative and recordkeeping burdens do not rise to a constitutionally significant level."<ref><span id="ALDF_00018363">''Id.'' at 394.</span></ref> Among other factors, the Court noted that the scheme did not require invasive surveillance or inspection of the organization's "day-to-day operations," and did not require the state "to inquire into the religious content of the items sold or the religious motivation for selling or purchasing the items."<ref><span id="ALDF_00018364">''Id.'' at 395-96.</span></ref> The Court emphasized that materials were "subject to the tax regardless of content or motive": the state cared only "whether there is a sale or a use, a question which involves only a secular determination."<ref><span id="ALDF_00018365">''Id.'' at 396.</span></ref>
In ''[[Harris v. McRae]]'', the Court considered a statute that even more directly denied financial assistance.<ref><span id="ALDF_00018366">''[[Harris v. McRae]]'', 448 U.S. 297 (1980).</span></ref> The Court rejected an Establishment Clause challenge to the Hyde Amendment, a law prohibiting federal funds from being used to fund certain abortions under the Medicaid program.<ref><span id="ALDF_00018367">''Id.'' at 302-03.</span></ref> Challengers to the Hyde Amendment argued that this funding condition unconstitutionally "incorporate[d] into law the doctrines of the Roman Catholic Church concerning the sinfulness of abortion and the time at which life commences."<ref><span id="ALDF_00018368">''Id.'' at 319.</span></ref> The Supreme Court, however, concluded that the condition did not violate ''[[Lemon]]'', saying the fact that the restriction "may coincide with the religious tenets of the Roman Catholic Church does not, without more, contravene the Establishment Clause."<ref><span id="ALDF_00018369">''Id.'' at 319-20.</span></ref> In the Court's view, the Hyde Amendment was "as much a reflection of 'traditionalist' values towards abortion, as it [wa]s an embodiment of the views of any particular religion."<ref><span id="ALDF_00018370">''Id.'' at 319.</span></ref>
====Non-Financial Assistance to Religion====
=====Overview of Non-Financial Assistance to Religion=====
Apart from financial aid, the Supreme Court has recognized that other types of support for religion can violate the Establishment Clause.<ref><span id="ALDF_00018371">''See generally, e.g.'', ''[[Everson v. Bd. of Educ.]]'', 330 U.S. 1, 15-16 (1947).</span></ref> Broadly considered, the Establishment Clause "forestalls compulsion by law of the acceptance of any creed or the practice of any form of worship."<ref><span id="ALDF_00018372">''[[Cantwell v. Connecticut]]'', 310 U.S. 296, 303 (1940).</span></ref> Accordingly, for example, the Supreme Court has held invalid laws that required public schools to tailor their teachings to religious doctrine<ref><span id="ALDF_00018373">''[[Epperson v. Arkansas]]'', 393 U.S. 97, 106-07 (1968).</span></ref> or to conduct prayers,<ref><span id="ALDF_00018374">''See'' ''[[Lee v. Weisman]]'', 505 U.S. 577, 599 (1992); ''[[Engel v. Vitale]]'', 370 U.S. 421, 424 (1962).</span></ref> as well as laws that created denominational preferences.<ref><span id="ALDF_00018375">''E.g.'', ''[[Larson v. Valente]]'', 456 U.S. 228, 255 (1982); ''see generally, e.g.'', ''[[Gillette v. United States]]'', 401 U.S. 437, 450 (1971) ("[T]he Establishment Clause prohibits government from abandoning secular purposes in order to put an imprimatur on one religion, or on religion as such, or to favor the adherents of any sect or religious organization.").</span></ref> The Supreme Court has also, with varied outcomes, considered Establishment Clause challenges to government actions such as the sponsorship of monuments involving religious symbols,<ref><span id="ALDF_00018376">''Compare, e.g.'', ''[[Lynch v. Donnelly]]'', 465 U.S. 668, 687 (1984) (concluding a city's Christmas display did not violate the Establishment Clause), ''with, e.g.'', ''[[Stone v. Graham]]'', 449 U.S. 39, 41 (1980) (concluding a courthouse display of the Ten Commandments did violate the Establishment Clause).</span></ref> the provision of textbooks, facilities, or other non-financial resources to religious schools,<ref><span id="ALDF_00018377">''Compare, e.g.'', ''[[Bd. of Educ. v. Allen]]'', 392 U.S. 236 (1968) (rejecting an Establishment Clause challenge to a textbook lending program), ''with, e.g.'', ''[[Illinois ex rel. McCollum v. Board of Education]]'', 333 U.S. 203, 210-11 (1948) (concluding a program allowing private religious teachers to teach religion in public schools violated the Establishment Clause).</span></ref> and laws attempting to accommodate religiously motivated conduct.<ref><span id="ALDF_00018378">''Compare, e.g.'', ''[[McGowan v. Maryland]]'', 366 U.S. 420, 452 (1961) (rejecting an Establishment Clause challenge to laws prohibiting commercial activities on Sunday), ''with, e.g.'', ''[[Estate of Thornton v. Caldor, Inc.]]'', 472 U.S. 703, 710 (1985) (concluding a law giving workers the right not to work on their chosen Sabbath violated the Establishment Clause).</span></ref>
As discussed elsewhere, Establishment Clause challenges to financial aid cases have primarily been analyzed under ''[[Lemon v. Kurtzman]]'' or ''[[Zelman v. Simmons-Harris]]'', distinguishing between direct and indirect aid.<ref><span id="ALDF_00018379">''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Financial Assistance to Religion|First Amend.: Overview of Financial Assistance to Religion]]; ''[[Lemon v. Kurtzman]]'', 403 U.S. 602 (1971); ''[[Zelman v. Simmons-Harris]]'', 536 U.S. 639 (2002).</span></ref> The distinction between direct and indirect aid has not been as significant in evaluating non-financial aid.<ref><span id="ALDF_00018380">''See, e.g.'', ''[[Mitchell v. Helms]]'', 530 U.S. 793, 818 (2000) (plurality opinion) ("Whether one chooses to label this program 'direct' or 'indirect' is a rather arbitrary choice, one that does not further the constitutional analysis."); ''[[Meek v. Pittenger]]'', 421 U.S. 349, 250 (1975) (holding that "it would exalt form over substance" to rule an indirect aid program constitutional when the program was otherwise similar to a direct aid program the Court had previously ruled unconstitutional), ''partially overruled by'' ''[[Mitchell v. Helms]]'', 530 U.S. 793 (2000). ''But cf.'' ''[[Zelman]]'', 536 U.S. at 649, 652-53 (citing ''[[Mitchell]]'' as a case that recognized the distinction between direct aid programs and programs involving private choice).</span></ref> Supreme Court cases involving non-financial support for religion have frequently employed ''[[Lemon]]''<nowiki>'</nowiki>s three-part inquiry into purpose, effect, and entanglement,<ref><span id="ALDF_00018381">''See'' [[{{ROOTPAGENAME}}/First Amend.#Lemon's Purpose Prong|First Amend.: Lemon's Purpose Prong]].</span></ref> but have also used other types of inquiries, including looking for government endorsement or coercion, or considering historical practices.<ref><span id="ALDF_00018382">''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Lemon's Effect Prong|First Amend.: Overview of Lemon's Effect Prong]].</span></ref> By 2022, the Supreme Court said it had "abandoned Lemon and its endorsement test offshoot."<ref><span id="ALDF_00000660">''[[Kennedy v. Bremerton Sch. Dist.]]'', No. 21-418, (U.S. June 27, 2022).</span></ref> Instead, moving forward, the Court said the Establishment Clause "must be interpreted by 'reference to historical practices and understandings.'"<ref><span id="ALDF_00000661">''Id.'' at 23 (quoting ''[[Town of Greece v. Galloway]]'', 572 U.S. 565, 576 (2014)).</span></ref> There are a greater number of cases that looked to historical traditions or coercion in the context of nonfinancial aid, as compared to financial aid cases.<ref><span id="ALDF_00000662">''See'' [[{{ROOTPAGENAME}}/First Amend.#Coercion and Establishment Clause Doctrine|First Amend.: Coercion and Establishment Clause Doctrine]]; [[{{ROOTPAGENAME}}/First Amend.#Establishment Clause and Historical Practices and Tradition|First Amend.: Establishment Clause and Historical Practices and Tradition]].</span></ref>
=====Early Cases on Non-Financial Assistance to Religion=====
Following 1947's ''[[Everson v. Board of Education]]'',<ref><span id="ALDF_00018383">''[[Everson v. Bd. of Educ.]]'', 330 U.S. 1, 17 (1947). ''See'' [[{{ROOTPAGENAME}}/First Amend.#Early Cases on Financial Assistance to Religion|First Amend.: Early Cases on Financial Assistance to Religion]].</span></ref> the Supreme Court's early cases considering non-financial support for religion stressed general principles of neutrality towards religion.<ref><span id="ALDF_00018384">One pre-''[[Everson]]'' case, ''[[Davis v. Beason]]'', upheld a state law barring those who practiced or advocated bigamy and polygamy from voting in the Idaho Territory. [http://cdn.loc.gov/service/ll/usrep/usrep133/usrep133333/usrep133333.pdf 133 U.S. 333, 345 (1890)]. The Court held that a state could prohibit practices that are "destructive of society," saying: "Whilst legislation for the establishment of a religion is forbidden, and its free exercise permitted, it does not follow that everything which may be so called can be tolerated." ''Id. See also'' ''[[Selective Draft Law Cases]]'', 245 U.S. 366, 389-90 (1918) (summarily rejecting Establishment Clause challenge to draft law containing limited exemptions for ministers and members of certain religious sects); ''[[United States ex rel. Turner v. Williams]]'', 194 U.S. 279, 292 (1904) (summarily rejecting Establishment Clause challenge to immigration law excluding noncitizens found to be anarchists).</span></ref> In ''[[Illinois ex rel. McCollum v. Board of Education]]'', decided in 1948, the Court held that a program allowing private religious teachers to teach religion in public schools violated the "wall of separation between Church and State" referred to in ''[[Everson]]''.<ref><span id="ALDF_00018385">''[[Illinois ex rel. McCollum v. Bd. of Educ.]]'', 333 U.S. 203, 210-11 (1948).</span></ref> The Court raised concerns about "the use of tax-supported property for religious instruction and the close cooperation between the school authorities and the religious council in promoting religious education."<ref><span id="ALDF_00018386">''Id.'' at 209.</span></ref> The school acted unconstitutionally by using "the State's compulsory public school machinery" to provide pupils for religious classes.<ref><span id="ALDF_00018387">''Id.'' at 212.</span></ref>
Four years later, the Supreme Court concluded in ''[[Zorach v. Clauson]]'' that a different "released time" program allowing students to leave school grounds to receive religious instruction did not violate the Establishment Clause.<ref><span id="ALDF_00018388">''[[Zorach v. Clauson]]'', 343 U.S. 306, 308, 312 (1952).</span></ref> By contrast to the program invalidated in ''[[McCollum]]'', the ''[[Zorach]]'' program "involve[d] neither religious instruction in public school classrooms nor the expenditure of public funds," and used no "coercion to get public school students into religious classrooms."<ref><span id="ALDF_00018389">''Id.'' at 308-09, 311.</span></ref> The Court said that while the First Amendment required the "complete and unequivocal" separation of church and state as to matters "within the scope of its coverage," it did not require separation "in every and all aspects."<ref><span id="ALDF_00018390">''Id.'' at 312.</span></ref> Disallowing the public schools' accommodation of students' "religious needs," according to the Court, would have stretched the separation concept to an undesired "extreme[ ]."<ref><span id="ALDF_00018391">''Id.'' at 313, 315.</span></ref>
Also drawing on ''[[Everson]]'', the Court's early cases sometimes reviewed "the background and environment of the period in which [the Establishment Clause] was fashioned and adopted" to analyze whether state laws would be consistent with the Founders' intent.<ref><span id="ALDF_00018392">''[[Everson v. Bd. of Educ.]]'', 330 U.S. 1, 8 (1947).</span></ref> In ''[[Torcaso v. Watkins]]'', the Supreme Court looked to colonial history with religious test oaths, and held that the "policy of probing religious beliefs by test oaths or limiting public offices to persons who have . . . a belief in some particular kind of religious concept" was "historically and constitutionally discredited."<ref><span id="ALDF_00018393">''[[Torcaso v. Watkins]]'', 367 U.S. 488, 490-92, 494 (1961).</span></ref> The Court held that a state law requiring public officials to declare a "belief in the existence of God" violated the Establishment Clause because its "purpose" and "effect" was to put "the power and authority of the State . . . on the side of one particular sort of believers."<ref><span id="ALDF_00018394">''Id.'' at 489, 495.</span></ref> More broadly, the Court declared that the government cannot "pass laws or impose requirements which aid all religions as against non-believers," nor can it "aid those religions based on a belief in the existence of God as against those religions founded on different beliefs."<ref><span id="ALDF_00018395">''Id.'' at 495.</span></ref>
In ''[[Engel v. Vitale]]'', the Supreme Court looked to history again to hold unconstitutional a state law requiring a specified prayer to be recited at the beginning of a school day.<ref><span id="ALDF_00018396">''[[Engel v. Vitale]]'', 370 U.S. 421, 424 (1962).</span></ref> As part of its analysis, the Court noted that as "a matter of history[,] . . . this very practice of establishing governmentally composed prayers for religious services was one of the reasons which caused many of our early colonists to leave England and seek religious freedom in America."<ref><span id="ALDF_00018397">''Id.'' at 425.</span></ref> The Court further reviewed post-Revolution movements to disestablish religion in the former colonies, concluding that when the First Amendment was adopted, "there was a widespread awareness among many Americans . . . . that one of the greatest dangers to the freedom of the individual to worship in his own way lay in the Government's placing its official stamp of approval upon one particular kind of prayer or one particular form of religious services."<ref><span id="ALDF_00018398">''Id.'' at 428-29.</span></ref>
=====Purpose and Effect Test Before Lemon=====
In the 1960s, the Court began to move away from the general neutrality principles embodied in the metaphor of a wall separating church and state, focusing more specifically on whether challenged laws had the purpose or effect of aiding religion.<ref><span id="ALDF_00018399">''See, e.g.,'' ''[[Torcaso v. Watkins]]'', 367 U.S. 488, 489 (1961).</span></ref> To evaluate the constitutionality of state criminal laws prohibiting commercial activities on Sunday, ''[[McGowan v. Maryland]]'' reviewed "the history of Sunday Closing Laws."<ref><span id="ALDF_00018400">''[[McGowan v. Maryland]]'', 366 U.S. 420, 432 (1961).</span></ref> That review led the Court to conclude that, although "the original laws which dealt with Sunday labor were motivated by religious forces," such laws had subsequently lost "some of their totally religious flavor."<ref><span id="ALDF_00018401">''Id.'' at 432-34.</span></ref> Ultimately, the Court accepted the state's judgment "that the [challenged] statutes' present purpose and effect is not to aid religion but to set aside a day of rest and recreation."<ref><span id="ALDF_00018402">''Id.'' at 449. The Court employed a similar analysis to reject Establishment Clause challenges to Sunday Closing laws in three other opinions issued the same day as ''[[McGowan]]''. ''[[Gallagher v. Crown Kosher Super Market, Inc.]]'', 366 U.S. 617, 630 (1961) (plurality opinion); ''[[Braunfeld v. Brown]]'', 366 U.S. 599, 601 (1961) (plurality opinion); ''[[Two Guys from Harrison-Allentown, Inc. v. McGinley]]'', 366 U.S. 582, 598 (1961). ''Cf.'' ''[[Estate of Thornton v. Caldor, Inc.]]'', 472 U.S. 703, 710 (1985) (holding that a state law giving workers the right not to work on their chosen Sabbath violated the Establishment Clause, given that the law's "primary effect" was to "impermissibly advance[ ] a particular religious practice").</span></ref> The Court held that creating a common day of rest embodied a secular purpose, and emphasized that the statute allowed "nonlaboring persons" to engage in a variety of nonreligious Sunday activities.<ref><span id="ALDF_00018403">''[[McGowan]]'', 366 U.S. at 450-52.</span></ref> However, the Court cautioned that a law might violate the Establishment Clause if "its purpose--evidenced either on the face of the legislation, in conjunction with its legislative history, or in its operative effect--is to use the State's coercive power to aid religion."<ref><span id="ALDF_00018404">''Id.'' at 453.</span></ref>
Formalizing this focus on purpose and effect, ''[[School District of Abington Township v. Schempp]]'' clarified:
{{Quote|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. . . . [T]o withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion.''[[Sch. Dist. of Abington Twp. v. Schempp]]'', 374 U.S. 203, 222 (1963).}}The Court applied this analysis in ''[[Schempp]]'' to hold that two states violated the Establishment Clause by requiring schools to begin the school day with Bible readings.<ref><span id="ALDF_00018406">''Id.'' at 223-24. The laws allowed individual students to opt out of the readings, but nonetheless required the schools to conduct the readings. ''Id.'' at 205, 211-12. ''See also'' ''[[Chamberlin v. Dade Cnty. Bd. of Pub. Instruction]]'', 377 U.S. 402, 402 (1964) (per curiam) (holding that a similar state law was unconstitutional under ''[[Schempp]]''); ''[[Wallace v. Jaffree]]'', 466 U.S. 924, 924 (1984) (mem.) (affirming lower court ruling holding state law authorizing teacher-led prayer unconstitutional); ''[[Treen v. Karen B.]]'', 455 U.S. 913, 913 (1982) (mem.), ''aff'g'' [https://cite.case.law/f2d/653/897/?full_case=true&amp;format=html 653 F.2d 897 (5th Cir. 1981)] (ruling state law authorizing student-led prayer during class unconstitutional).</span></ref> One of the states argued that the Bible readings served a secular purpose--promoting moral values and teaching literature.<ref><span id="ALDF_00018407">''[[Schempp]]'', 374 U.S. at 223.</span></ref> The Court rejected this claim based on evidence showing that the reading was a religious exercise.<ref><span id="ALDF_00018408">''Id.'' at 224. ''See also'' ''id.'' at 225 ("It certainly may be said that the Bible is worthy of study for its literary and historic qualities. Nothing we have said here indicates that such study of the Bible or of religion, when presented objectively as part of a secular program of education, may not be effected consistently with the First Amendment. But the exercises here do not fall into those categories.").</span></ref>
Impermissible religious purpose arose again in ''[[Epperson v. Arkansas]]'', in which the Supreme Court invalidated a state law that prohibited teaching evolution in school.<ref><span id="ALDF_00018409">''[[Epperson v. Arkansas]]'', 393 U.S. 97, 106-07 (1968). ''See also'' ''[[Edwards v. Aguillard]]'', 482 U.S. 578, 593 (1987) (ruling unconstitutional a state law prohibiting teaching evolution unless "creation science" was also taught, where the law's primary purpose was "to advance a particular religious belief").</span></ref> After reviewing the law's history, the Court said there was "no doubt" that the law prohibited "discussing the theory of evolution because it is contrary to the belief of some that the Book of Genesis must be the exclusive source of doctrine as to the origin of man."<ref><span id="ALDF_00018410">''[[Epperson]]'', 393 U.S. at 107.</span></ref> This purpose of advancing a specific religious doctrine violated the First Amendment.<ref><span id="ALDF_00018411">''Id.'' at 106-07.</span></ref> By contrast, the Court concluded that a federal law relieving conscientious objectors from military service did not violate the Establishment Clause, even though it included only objectors whose religious beliefs opposed all wars, excluding objectors opposed only to specific wars.<ref><span id="ALDF_00018412">''[[Gillette v. United States]]'', 401 U.S. 437, 450 (1971).</span></ref> The Court believed that the law's differing treatment of religious objectors did not doom the law where it did not facially discriminate between religions, and critically, where the government had demonstrated that the law served a number of valid secular purposes.<ref><span id="ALDF_00018413">''Id.'' at 452-54. ''See also'' ''id.'' at 452 ("[A] claimant alleging 'gerrymander' must be able to show the absence of a neutral, secular basis for the lines government has drawn.").</span></ref>
By contrast, the Supreme Court rejected an Establishment Clause challenge to a textbook lending program in ''[[Board of Education v. Allen]]'', applying the test outlined in ''[[Schempp]]''.<ref><span id="ALDF_00018414">''[[Bd. of Educ. v. Allen]]'', 392 U.S. 236, 243 (1968).</span></ref> The law required public schools to lend textbooks to students, including students enrolled at private schools.<ref><span id="ALDF_00018415">''Id.'' at 239.</span></ref> The Court held that the law served a secular purpose--furthering children's "educational opportunities"--and that there was no evidence that the law had the effect of impermissibly advancing religion.<ref><span id="ALDF_00018416">''Id.'' at 243-44.</span></ref> Among other factors, the Court noted that the textbooks were loaned to students, not parochial schools, and that the program included only secular textbooks.<ref><span id="ALDF_00018417">''Id.'' at 243-45.</span></ref> Consequently, the Court concluded the program aided only the secular education conducted in religious schools, rejecting the idea "that the processes of secular and religious training are so intertwined that secular textbooks furnished to students . . . are in fact instrumental in the teaching of religion."<ref><span id="ALDF_00018418">''Id.'' at 248. Subsequent Supreme Court cases approved of textbook lending programs deemed similar to the program upheld in ''[[Allen]]''. ''See, e.g.'', ''[[Wolman v. Walter]]'', 433 U.S. 229, 238 (1977); ''[[Meek v. Pittenger]]'', 421 U.S. 349, 359 (1975) (plurality opinion). Both ''[[Wolman]]'' and ''[[Meek]]'' were partially overruled on other grounds by ''[[Mitchell v. Helms]]'', 530 U.S. 793 (2000).</span></ref>
====Non-Financial Assistance to Religion and the Lemon Test====
=====Lemon's Purpose Prong=====
The Supreme Court's 1971 decision in ''[[Lemon v. Kurtzman]]'' further entrenched the Establishment Clause's focus on purpose and effect, and added a third element to the inquiry: entanglement.<ref><span id="ALDF_00018419">''[[Lemon v. Kurtzman]]'', 403 U.S. 602, 612-13 (1971). ''See also'' ''[[Walz v. Tax Comm'n]]'', 397 U.S. 664, 674 (1970) (discussing entanglement as an aspect of the inquiry into a law's effect). ''[[Lemon]]'' is discussed in more detail in [[{{ROOTPAGENAME}}/First Amend.#Overview of Non-Financial Assistance to Religion|First Amend.: Overview of Non-Financial Assistance to Religion]].</span></ref> Under ''[[Lemon]]'', to be considered constitutional, laws (1) "must have a secular legislative purpose;" (2) must have a "principal or primary effect . . . that neither advances nor inhibits religion"; (3) and "must not foster 'an excessive government entanglement with religion.'"<ref><span id="ALDF_00018420">''[[Lemon]]'', 403 U.S. at 612-13 (quoting ''[[Walz]]'', 397 U.S. at 674).</span></ref> However, the Court said in 2022 that it had "long ago abandoned ''[[Lemon]]'' and its endorsement test offshoot."<ref><span id="ALDF_00000664">''[[Kennedy v. Bremerton Sch. Dist.]]'', No. 21-418, (U.S. June 27, 2022). ''See also'' [[{{ROOTPAGENAME}}/First Amend.#Endorsement Variation on Lemon|First Amend.: Endorsement Variation on Lemon]].</span></ref> Nonetheless, it has not expressly overruled either ''[[Lemon]]'' or most other cases analyzing specific government actions by reference to purpose, effect, or entanglement--so the holdings of those cases remain binding in some courts.<ref><span id="ALDF_00000710">''See, e.g.'', ''[[Rodriguez de Quijas v. Shearson/American Express, Inc.]]'', 490 U.S. 477, 484 (1989) (saying lower courts must follow Supreme Court precedent unless it has been specifically overruled by the Court, even if the precedent "appears to rest on reasons rejected in some other line of decisions"). Some cases applying ''[[Lemon]]'' 's effect prong have been expressly overruled. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Lemon's Effect Prong and Pervasively Sectarian Institutions|First Amend.: Lemon's Effect Prong and Pervasively Sectarian Institutions]].</span></ref> Furthermore, even as the Court has shifted its doctrinal framework, over the years, it has sometimes given weight to the same kinds of facts or reasoning over those different frameworks. For those reasons, this essay explains the Court's ''[[Lemon]]'' jurisprudence in some detail.
The first ''[[Lemon]]'' factor focused on the purpose of a government policy.<ref><span id="ALDF_00018421">''[[Lemon]]''.</span></ref> According to the Supreme Court: "When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality . . . ."<ref><span id="ALDF_00018422">''[[McCreary Cnty. v. ACLU]]'', 545 U.S. 844, 860 (2005).</span></ref> To determine a law's purpose, courts looked to the "text, legislative history, and implementation of the statute."<ref><span id="ALDF_00018423">''Id.'' at 862 (quoting ''[[Santa Fe Indep. Sch. Dist. v. Doe]]'', 530 U.S. 290, 308 (2000)) (internal quotation marks omitted).</span></ref> Accordingly, in ruling one government display of the Ten Commandments unconstitutional, the Supreme Court analyzed the history of the display and the county orders requiring the display, concluding that the original version had an "unmistakable" religious object, and that subsequent amendments to the display had failed to "cast off the objective so unmistakable in the earlier displays."<ref><span id="ALDF_00018424">''Id.'' at 869, 873. ''Cf.'' ''[[Kennedy]]'', slip op. at 30 n.7 (concluding there was no "indelible taint of coercion by association" with prior prayer practices, and analyzing only the more recent prayer practices that it believed were the appropriate subject of the dispute).</span></ref>
It was relatively rare for the Supreme Court to find that a law failed ''[[Lemon]]''<nowiki>'</nowiki>s first factor, as it said a law would be unconstitutional "only when . . . there was no question that the statute or activity was motivated ''wholly'' by religious considerations."<ref><span id="ALDF_00018425">''[[Lynch v. Donnelly]]'', 465 U.S. 668, 680 (1984) (emphasis added). ''See also, e.g.'', ''[[Wallace v. Jaffree]]'', 472 U.S. 38, 56 (1985) (ruling unconstitutional a state law authorizing a minute of silence for meditation or voluntary prayer in public schools because the law "had ''no'' secular purpose").</span></ref> Thus, the presence of "legitimate secular purposes" could outweigh potential religious purposes.<ref><span id="ALDF_00018426">''See'' ''[[Lynch]]'', 465 U.S. at 680-81.</span></ref> For example, the Court recognized supporting secular education<ref><span id="ALDF_00018427">''See, e.g.'', ''[[Wolman v. Walter]]'', 433 U.S. 229, 240 (1977), ''overruled in part by'' ''[[Mitchell v. Helms]]'', 530 U.S. 793 (2000).</span></ref> and protecting speech<ref><span id="ALDF_00018428">''See, e.g.'', ''[[Bd. of Educ. v. Mergens]]'', 496 U.S. 226, 248 (1990).</span></ref> as legitimate secular purposes. Further, to satisfy ''[[Lemon]]'', the law's purpose did not have to "be unrelated to religion."<ref><span id="ALDF_00018429">''[[Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos]]'', 483 U.S. 327, 335 (1987).</span></ref> The Supreme Court has approved of laws that seek to accommodate religion, or to "alleviate significant governmental interference with the ability of religious organizations to define and carry out their religious missions."<ref><span id="ALDF_00018430">''[[Amos]]'', 483 U.S. at 335; ''see also'' [[{{ROOTPAGENAME}}/First Amend.#Relationship Between the Establishment and Free Exercise Clauses|First Amend.: Relationship Between the Establishment and Free Exercise Clauses]].</span></ref> For example, in ''[[Wisconsin v. Yoder]]'', the Court rejected an Establishment Clause challenge to a state decision exempting the Amish from compulsory public education, saying "[t]he purpose and effect of such an exemption are not to support, favor, advance, or assist the Amish, but to allow their centuries-old religious society . . . to survive free from the heavy impediment compliance with the Wisconsin compulsory-education law would impose."<ref><span id="ALDF_00018431">''[[Wisconsin v. Yoder]]'', 406 U.S. 205, 234 n.22 (1972).</span></ref>
However, the Court cautioned that the asserted secular purpose must "be genuine, not a sham, and not merely secondary to a religious objective."<ref><span id="ALDF_00018432">''[[McCreary Cnty. v. ACLU]]'', 545 U.S. 844, 864 (2005).</span></ref> The relevant inquiry was whether Congress "act[ed] with the intent of promoting a particular point of view in religious matters."<ref><span id="ALDF_00018433">''[[Amos]]'', 483 U.S. at 335.</span></ref> Thus, in one case, the Court ruled unconstitutional a state law relating to the teaching of "creation science," concluding that the law did not further its stated purpose of "academic freedom."<ref><span id="ALDF_00018434">''[[Edwards v. Aguillard]]'', 482 U.S. 578, 586 (1987).</span></ref> Instead, the Court believed that the evidence demonstrated that the primary purpose of the law "was to restructure the science curriculum to conform with a particular religious viewpoint."<ref><span id="ALDF_00018435">''Id.'' at 593.</span></ref>
Two cases involving government displays of religious symbols further illustrate this first factor of the ''[[Lemon]]'' inquiry. First, in ''[[Stone v. Graham]]'', the Supreme Court held that a state law requiring public schools to post a copy of the Ten Commandments in classrooms was unconstitutional because it had "no secular legislative purpose."<ref><span id="ALDF_00018436">''[[Stone v. Graham]]'', 449 U.S. 39, 41 (1980).</span></ref> The Court said that the law's "avowed" secular purpose--displaying the Ten Commandments as part of "the fundamental legal code"--could not "blind" it to the law's "plainly religious" purpose.<ref><span id="ALDF_00018437">''Id.''</span></ref> Noting that the Ten Commandments were not "integrated into the school curriculum" in any "appropriate" field of study, the Court concluded that the only possible effect of the posting could be "to induce the schoolchildren to read, meditate upon, perhaps to venerate and obey, the Commandments," an impermissible religious objective.<ref><span id="ALDF_00018438">''Id.'' at 42. ''See also'' ''[[McCreary Cnty. v. ACLU]]'', 545 U.S. 844, 868 (2005) (holding a courthouse display of the Ten Commandments violated the Establishment Clause, noting "two obvious similarities to" the ''[[Stone]]'' display: "both set out a text of the Commandments as distinct from any traditionally symbolic representation, and each stood alone, not part of an arguably secular display").</span></ref>
By contrast, in ''[[Lynch v. Donnelly]]'', the Court rejected an Establishment Clause challenge to a city's Christmas display, which included a cr&#232;che along with a number of other decorations such as reindeer, candy-striped poles, and a Christmas tree.<ref><span id="ALDF_00018439">''[[Lynch v. Donnelly]]'', 465 U.S. 668, 671 (1984).</span></ref> The Court said that under these circumstances, the city had stated "legitimate secular purposes": "to celebrate the Holiday and to depict the origins of that Holiday."<ref><span id="ALDF_00018440">''Id.'' at 681.</span></ref> The religious nature of the cr&#232;che had to be viewed in the context of the whole display, and the Court concluded that there was "insufficient evidence to establish that the inclusion of the cr&#232;che is a purposeful or surreptitious effort to express some kind of subtle governmental advocacy of a particular religious message."<ref><span id="ALDF_00018441">''Id.'' at 680.</span></ref>
=====Overview of Lemon's Effect Prong=====
The second ''[[Lemon]]'' requirement was that a government policy must have a "principal or primary effect . . . that neither advances nor inhibits religion."<ref><span id="ALDF_00018442">''[[Lemon v. Kurtzman]]'', 403 U.S. 602, 612 (1971). For a discussion of ''[[Lemon]]''<nowiki>'</nowiki>s abandonment and the relevance of cases in this section, see [[{{ROOTPAGENAME}}/First Amend.#Lemon's Purpose Prong|First Amend.: Lemon's Purpose Prong]] and [[{{ROOTPAGENAME}}/First Amend.#Endorsement Variation on Lemon|First Amend.: Endorsement Variation on Lemon]].</span></ref> In 1997, the Supreme Court said it used "three primary criteria . . . to evaluate whether government aid has the effect of advancing religion:" looking to whether laws "result in governmental indoctrination; define [their] recipients by reference to religion; or create an excessive entanglement."<ref><span id="ALDF_00018443">''[[Agostini v. Felton]]'', 521 U.S. 203, 234 (1997).</span></ref>
The Supreme Court sometimes discussed the effect inquiry in terms of "incidental" or "indirect" benefits, saying that a policy will not have an impermissible effect if it only incidentally aids religion.<ref><span id="ALDF_00018444">''See, e.g.'', ''[[Lynch v. Donnelly]]'', 465 U.S. 668, 683 (1984) (holding that a city's display of a cr&#232;che provided only an "indirect, remote, and incidental" benefit to religion); ''[[Widmar v. Vincent]]'', 454 U.S. 263, 273-75 (1981) (holding that allowing student groups to use university facilities for religious activities offered only "incidental" benefits to religion). A government policy will also satisfy this prong if it has ''no'' effect on religion. ''[[Tony &amp; Susan Alamo Found. v. Sec'y of Labor]]'', 471 U.S. 290, 305 (1985) (rejecting Establishment Clause challenge to federal recordkeeping requirements that would apply only to certain ''commercial'' activities, with "no impact on petitioners' own ''evangelical'' activities or on individuals engaged in ''volunteer'' work for other religious organizations" (emphasis added)).</span></ref> For example, the Court has characterized the textbook lending program in ''[[Board of Education v. Allen]]'' and the bus transportation program in ''[[Everson v. Board of Education]]'' as using "primarily secular means to accomplish a primarily secular end," aiding religion only indirectly, rather than as the "primary effect."<ref><span id="ALDF_00018445">''[[Sch. Dist. v. Ball]]'', 473 U.S. 373, 393 (1985) (internal quotation marks omitted); ''see also'' ''[[Rosenberger v. Rector &amp; Visitors of the Univ. of Va.]]'', 515 U.S. 819, 843-44 (1995) ("Any benefit to religion is incidental to the government's provision of secular [printing] services for secular purposes on a religion-neutral basis.").</span></ref> Similarly, the Court has said a law will not violate ''[[Lemon]]''<nowiki>'</nowiki>s effect prong "simply because it ''allows'' churches to advance religion."<ref><span id="ALDF_00018446">''[[Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos]]'', 483 U.S. 327, 337 (1987).</span></ref> Instead, to violate the effect prong, "it must be fair to say that the ''government itself'' has advanced religion through its own activities and influence."<ref><span id="ALDF_00018447">''Id.'' The Court held in ''[[Amos]]'' that a federal statute exempting religious organizations from certain federal nondiscrimination requirements did not violate this principle, finding "no persuasive evidence . . . that the Church's ability to propagate its religious doctrine . . . is any greater now than it was prior to the passage of the relevant law." ''Id.'' Accordingly, the Court said "any advancement of religion" could not "be fairly attributed to the Government." ''Id.''</span></ref> Thus, one relevant concern is whether any aid to religion can be attributed to the government, rather than private parties.<ref><span id="ALDF_00018448">''See'' ''[[Mitchell v. Helms]]'', 530 U.S. 793, 809 (2000) (plurality opinion).</span></ref>
Generally, the Supreme Court has said that "government programs that neutrally provide benefits to a broad class of citizens defined without reference to religion are not readily subject to an Establishment Clause challenge just because sectarian institutions may also receive an attenuated financial benefit."<ref><span id="ALDF_00018449">''[[Zobrest v. Catalina Foothills Sch. Dist.]]'', 509 U.S. 1, 8 (1993).</span></ref> Thus, following the pre-''[[Lemon]]'' precedent of ''[[Allen]]'',<ref><span id="ALDF_00018450">''[[Bd. of Educ. v. Allen]]'', 392 U.S. 236 (1968); see discussion in [[{{ROOTPAGENAME}}/First Amend.#Purpose and Effect Test Before Lemon|First Amend.: Purpose and Effect Test Before Lemon]].</span></ref> the Supreme Court rejected Establishment Clause challenges to school aid programs that were generally available to both religious and nonreligious recipients and supplied discrete secular services controlled by the state, including standardized testing services, speech and diagnostic health services, and off-site therapeutic and remedial services;<ref><span id="ALDF_00018451">''[[Wolman v. Walter]]'', 433 U.S. 229, 240-41, 244, 248 (1977), ''overruled in part by'' ''[[Mitchell v. Helms]]'', 530 U.S. 793 (2000).</span></ref> providing a sign-language interpreter;<ref><span id="ALDF_00018452">''[[Zobrest]]'', 509 U.S. at 10.</span></ref> and allowing religious groups to use school facilities.<ref><span id="ALDF_00018453">''See'' ''[[Good News Club v. Milford Cent. Sch.]]'', 533 U.S. 98, 113 (2001) (holding elementary school would not violate the Establishment Clause by allowing a religious club to use its facilities); ''[[Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist.]]'', 508 U.S. 384, 395 (1993) (holding school board would not violate the Establishment Clause by allowing a church to use its facilities to show a religious film); ''[[Bd. of Educ. v. Mergens]]'', 496 U.S. 226, 253 (1990) (holding that Congress could require public secondary schools, as a condition for federal funds, to grant equal access to student religious speech in forums); ''[[Widmar v. Vincent]]'', 454 U.S. 263, 274 (1981) (holding university would not violate the Establishment Clause by allowing religious groups to use its facilities on an equal basis as other student groups); ''see also'' [[{{ROOTPAGENAME}}/First Amend.#Relationship Between Religion Clauses and Free Speech Clause|First Amend.: Relationship Between Religion Clauses and Free Speech Clause]].</span></ref> However, as discussed in more detail elsewhere, the fact that a program is neutral in the sense of even distribution of benefits has not always been dispositive to the inquiry--particularly if the aid was not secular or if it was diverted to religious uses.<ref><span id="ALDF_00018454">''See'' [[{{ROOTPAGENAME}}/First Amend.#Lemon's Effect Prong and Pervasively Sectarian Institutions|First Amend.: Lemon's Effect Prong and Pervasively Sectarian Institutions]]; ''[[Mitchell v. Helms]]'', 530 U.S. 793, 848-49 (2000) (O'Connor, J., concurring in the judgment).</span></ref>
=====Lemon's Effect Prong and Accommodation of Religion=====
As under the purpose prong, the government may generally accommodate religious activity without violating ''[[Lemon]]''<nowiki>'</nowiki>s effect prong.<ref><span id="ALDF_00018455">''[[Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos]]'', 483 U.S. 327, 334-35 (1987). ''See also'' ''[[Cutter v. Wilkinson]]'', 544 U.S. 709, 713-14 (2005). ''[[Cutter]]'' held that a federal law limiting the federal government's ability to restrict prisoners' religious freedoms was a permissible accommodation under the Establishment Clause. ''Id.'' at 720. However, the Court clarified that it did not resolve the case under ''[[Lemon]]''<nowiki>'</nowiki>s three-part test, but "on other grounds." ''Id.'' at 717 n.6. Its analysis relied primarily on prior Supreme Court precedent relating to religious accommodations. ''Id.'' at 720-24. For a discussion of ''[[Lemon]]''<nowiki>'</nowiki>s abandonment and the relevance of cases in this section that applied the ''[[Lemon]]'' test, see [[{{ROOTPAGENAME}}/First Amend.#Lemon's Purpose Prong|First Amend.: Lemon's Purpose Prong]] and [[{{ROOTPAGENAME}}/First Amend.#Endorsement Variation on Lemon|First Amend.: Endorsement Variation on Lemon]].</span></ref> For example, in 1987, the Supreme Court rejected a constitutional challenge to a provision in the Civil Rights Act of 1964 that exempted religious organizations from certain employment discrimination provisions.<ref><span id="ALDF_00018456">''[[Amos]]'', 483 U.S. at 329-30.</span></ref> While the Court acknowledged that the exemption "single[d] out religious entities for a benefit," it nonetheless concluded that the Establishment Clause allowed the accommodation, given that the government had "act[ed] with the proper purpose of lifting a regulation that burdens the exercise of religion."<ref><span id="ALDF_00018457">''Id.'' at 338.</span></ref>
The Court has also warned, however, that "[a]t some point, accommodation may devolve into 'an unlawful fostering of religion.'"<ref><span id="ALDF_00018458">''Id.'' at 334-35 (quoting ''[[Hobbie v. Unemployment Appeals Comm'n]]'', 480 U.S. 136, 145 (1987)).</span></ref> Two years earlier, the Court had ruled unconstitutional a state law that barred employers from requiring employees to work on any day that the employee observed as the Sabbath.<ref><span id="ALDF_00018459">''[[Estate of Thornton v. Caldor, Inc.]]'', 472 U.S. 703, 710-11 (1985).</span></ref> By giving employees "an absolute and unqualified right not to work on whatever day they designate as their Sabbath," the Court said the law's "primary effect . . . impermissibly advance[d] a particular religious practice."<ref><span id="ALDF_00018460">''Id.'' at 709-10.</span></ref> In implicit contrast to the Sunday Closing law approved in ''[[McGowan v. Maryland]]'',<ref><span id="ALDF_00018461">''[[McGowan v. Maryland]]'', 366 U.S. 420, 432 (1961); ''see'' [[{{ROOTPAGENAME}}/First Amend.#Purpose and Effect Test Before Lemon|First Amend.: Purpose and Effect Test Before Lemon]].</span></ref> the law specifically referred to the "Sabbath," a religious term, and did not create a ''common'' day of rest.<ref><span id="ALDF_00018462">''See'' ''[[Caldor, Inc. v. Thornton]]'', 464 A.2d 785, 792-93 (Conn. 1983).</span></ref> This law granting an "unyielding weighting in favor of Sabbath observers" could be seen as an example of an impermissible accommodation.<ref><span id="ALDF_00018463">''[[Estate of Thornton]]'', 472 U.S. at 710; ''see also'' ''[[Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet]]'', 512 U.S. 687, 725 (1994) (O'Connor, J., concurring) (giving ''[[Estate of Thornton]]'' as an example of "an accommodation" that violated the Establishment Clause).</span></ref>
Two other examples further illustrate when laws crossed the line from permissible accommodation to impermissible advancement of religion.<ref><span id="ALDF_00018464">''See, e.g.'', ''[[Grumet]]'' ("The question at the heart of these cases is: What may the government do, consistently with the Establishment Clause, to accommodate people's religious beliefs?").</span></ref> In ''[[Larkin v. Grendel's Den]]'', the Court held that a state law giving "churches and schools the power effectively to veto applications for liquor licenses within a 500-foot radius" violated the Establishment Clause.<ref><span id="ALDF_00018465">''[[Larkin v. Grendel's Den]]'', 459 U.S. 116, 117 (1982).</span></ref> According to the Court, the law had the impermissible effect of advancing religion: the veto power could be "employed for explicitly religious goals" and the "joint exercise of legislative authority . . . provide[d] a significant symbolic benefit to religion."<ref><span id="ALDF_00018466">''Id.'' at 125-26.</span></ref> Similarly, in ''[[Board of Education of Kiryas Joel Village School District v. Grumet]]'', the Court said that a state had violated the Establishment Clause by drawing a school district that "divide[d] residents according to religious affiliation."<ref><span id="ALDF_00018467">''[[Grumet]]'', 512 U.S. at 699 (plurality opinion); ''accord'' ''id.'' at 711 (Stevens, J., concurring).</span></ref> The Court believed that the inhabitants of the school district did not merely happen to be "united by common doctrine," but instead said that the state intentionally limited the district to a specific sect, giving that religious group "exclusive control of the political subdivision."<ref><span id="ALDF_00018468">''Id.'' at 698 (plurality opinion). ''See also'' ''id.'' ("[A] State may not delegate its civic authority to a group chosen according to a religious criterion.").</span></ref> This went beyond the bounds of a permissible accommodation by "singl[ing] out a particular religious sect for special treatment"--the "unconstitutional delegation of political power."<ref><span id="ALDF_00018469">''Id.'' at 706 (majority opinion).</span></ref>
=====Lemon's Effect Prong and Pervasively Sectarian Institutions=====
In a series of rulings that were eventually partially overturned, the Supreme Court suggested that providing certain secular materials or services to religious schools could violate ''[[Lemon]]''<nowiki>'</nowiki>s effect prong because of the pervasively religious character of the schools.<ref><span id="ALDF_00018470">''See, e.g.'', ''[[Aguilar v. Felton]]'', 473 U.S. 402, 412 (1985), ''overruled by'' ''[[Agostini v. Felton]]'', 521 U.S. 203 (1997); ''[[Wolman v. Walter]]'', 433 U.S. 229, 250-51 (1977), ''partially overruled by'' ''[[Mitchell v. Helms]]'', 530 U.S. 793 (2000).</span></ref> Thus, in ''[[Meek v. Pittenger]]'' and ''[[Wolman v. Walter]]'', the Supreme Court concluded that programs providing instructional materials such as maps or laboratory equipment to nonpublic schools were unconstitutional.<ref><span id="ALDF_00018471">''[[Meek v. Pittenger]]'', 421 U.S. 349, 366 (1975); ''[[Wolman]]'', 433 U.S. at 251. ''[[Wolman]]'' also held unconstitutional a provision of the state law that funded field trips, citing concerns about private schools' and teachers' control over such activities, but it upheld other kinds of aid that the state law provided. ''See'' ''id.'' at 253-54; 255.</span></ref> The Court held in ''[[Meek]]'' that although the aid was "ostensibly limited to wholly neutral, secular instructional material and equipment," it would "inescapably result[ ] in the direct and substantial advancement of religious activity" because the schools' secular educational functions could not be separated from their predominantly religious activities.<ref><span id="ALDF_00018472">''[[Meek]]'', 421 U.S. at 365-66; ''accord'' ''[[Wolman]]'', 433 U.S. at 250.</span></ref> In both cases, the Court emphasized that while the programs were open to all private schools, most of the private schools participating in the programs were religious.<ref><span id="ALDF_00018473">''[[Meek]]'', 421 U.S. at 364; ''accord'' ''[[Wolman]]'', 433 U.S. at 234.</span></ref> Thus, the programs had "the unconstitutional primary effect of advancing religion because of the predominantly religious character of the schools" participating.<ref><span id="ALDF_00018474">''[[Meek]]'', 421 U.S. at 363; ''accord'' ''[[Wolman]]'', 433 U.S. at 250.</span></ref> The Court recognized in ''[[Wolman]]'' that these rulings were in "tension" with ''[[Board of Education v. Allen]]'', discussed elsewhere,<ref><span id="ALDF_00018475">''[[Bd. of Educ. v. Allen]]'', 392 U.S. 236 (1968); ''see'' [[{{ROOTPAGENAME}}/First Amend.#Purpose and Effect Test Before Lemon|First Amend.: Purpose and Effect Test Before Lemon]].</span></ref> which had ruled that "secular" textbooks could be provided to religious schools in a way that served nonsectarian educational purposes.<ref><span id="ALDF_00018476">''[[Wolman]]'', 433 U.S. at 251 n.18; ''accord'' ''[[Mitchell v. Helms]]'', 530 U.S. 793, 835-36 (2000) (plurality opinion).</span></ref> That tension was ultimately resolved by ''[[Mitchell v. Helms]]'', as discussed below.<ref><span id="ALDF_00018477">''See'' ''[[Mitchell]]'', 530 U.S. at 835 (plurality opinion); ''id.'' at 837 (O'Connor, J., concurring in the judgment).</span></ref>
Building on the reasoning of ''[[Meek]]'' and ''[[Wolman]]'', the Supreme Court also invalidated programs that offered secular education in private schools in ''[[School District v. Ball]]'' and ''[[Aguilar v. Felton]]''.<ref><span id="ALDF_00018478">''[[Sch. Dist. v. Ball]]'', 473 U.S. 373, 397 (1985); ''[[Aguilar v. Felton]]'', 473 U.S. 402, 414 (1985).</span></ref> ''[[Ball]]'' involved two state programs: a shared time program paying public school employees to teach supplemental classes at religious schools during the school day, and a community education program paying public and nonpublic teachers to lead various classes at religious schools after the school day.<ref><span id="ALDF_00018479">''[[Ball]]'', 473 U.S. at 375-77.</span></ref> For both programs, the Court emphasized the pervasive religious atmosphere in which the classes were being taught, saying there was "a substantial risk" that the religious messages conveyed by the school during its regular activities would "infuse the supposedly secular classes."<ref><span id="ALDF_00018480">''Id.'' at 387; ''accord'' ''id.'' at 388.</span></ref> Accordingly, the programs "entailed too great a risk of state-sponsored indoctrination."<ref><span id="ALDF_00018481">''Id.'' at 386. The Court also concluded that the programs impermissibly promoted religion under the endorsement test and that the programs "subsidize[d] the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects." ''Id.'' at 397. To state the latter rationale another way, the program relieved the schools "of an otherwise necessary cost" of providing a religious education. ''[[Zobrest v. Catalina Foothills Sch. Dist.]]'', 509 U.S. 1, 12 (1993). These alternate grounds were also overruled, with respect to the shared time program, in ''[[Agostini v. Felton]]'', 521 U.S. 203, 227-28 (1997).</span></ref> ''[[Aguilar]]'' involved a federal law allowing federal funds to be used to pay public employees teaching in nonpublic schools.<ref><span id="ALDF_00018482">''[[Aguilar]]'', 473 U.S. at 404.</span></ref> Similar to ''[[Ball]]'', the Court stressed the "pervasively sectarian environment" in which the program was being offered, although it ruled on ''[[Lemon]]''<nowiki>'</nowiki>s entanglement prong rather than the effect prong.<ref><span id="ALDF_00018483">''Id.'' at 412-13 (expressing concern that "ongoing inspection" and "a permanent and pervasive state presence in the sectarian schools" would be required to ensure the funded teachers were not engaged in religious indoctrination).</span></ref>
The Court reconsidered the same federal program in ''[[Agostini v. Felton]]'', overruling ''[[Aguilar]]'' and partially overruling ''[[Ball]]'' (with respect to the shared time program).<ref><span id="ALDF_00018484">''[[Agostini]]'', 521 U.S. at 235. Thus, the Court did not overrule ''[[Ball]]''<nowiki>'</nowiki>s ruling on the community education program that funded private school teachers. ''See'' ''id.''</span></ref> The Court said that its prior decisions had erred by assuming that the programs would inevitably result in state-sponsored indoctrination merely because the instruction happened on the premises of a pervasively sectarian school.<ref><span id="ALDF_00018485">''See'' ''id.'' at 223. ''See also'' ''[[Zobrest v. Catalina Foothills Sch. Dist.]]'', 509 U.S. 1, 13 (1993) ("[T]he Establishment Clause lays down no absolute bar to the placing of a public employee in a sectarian school.").</span></ref> Instead, the ''[[Agostini]]'' Court emphasized that the federal law allocated public education services "on the basis of criteria that neither favor nor disfavor religion."<ref><span id="ALDF_00018486">''[[Agostini]]'', 521 U.S. at 232.</span></ref> Ultimately, the Court approved the program because it did not violate "any of three primary criteria we currently use to evaluate whether government aid has the effect of advancing religion: it does not result in governmental indoctrination; define its recipients by reference to religion; or create an excessive entanglement."<ref><span id="ALDF_00018487">''Id.'' at 234.</span></ref>
The 2000 decision ''[[Mitchell v. Helms]]'' revisited ''[[Meek]]'' and ''[[Wolman]]'', reviewing a federal program authorizing public schools to lend secular materials purchased with federal funds to private schools.<ref><span id="ALDF_00018488">''[[Mitchell v. Helms]]'', 530 U.S. 793, 802-03 (2000) (plurality opinion).</span></ref> The Supreme Court rejected an Establishment Clause challenge to the program and partially overruled ''[[Meek]]'' and ''[[Wolman]]'' in a split decision.<ref><span id="ALDF_00018489">''See'' ''id.'' at 835; ''id.'' at 837 (O'Connor, J., concurring in the judgment).</span></ref> The four-Justice plurality opinion applied the "effects" criteria outlined in ''[[Agostini]]'', ruling that the program was constitutional because it created no indoctrination attributable to the state and did not define the recipients by reference to religion.<ref><span id="ALDF_00018490">''Id.'' at 808 (plurality opinion).</span></ref> For the plurality, the program was sufficiently neutral towards religion because it "offer[ed] aid on the same terms, without regard to religion, to all who adequately further [a legitimate secular] purpose."<ref><span id="ALDF_00018491">''Id.'' at 810.</span></ref> Even if some aid were diverted to religious uses, the plurality would have held, those religious uses "cannot be attributed to the government and [are] thus not of constitutional concern."<ref><span id="ALDF_00018492">''Id.'' at 820.</span></ref>
Concurring in the judgment, Justice Sandra Sandra Day O'Connor expressed concerns about the "unprecedented breadth" of the plurality's statements about neutrality and divertibility.<ref><span id="ALDF_00018493">''Id.'' at 837-38 (O'Connor, J., concurring in the judgment).</span></ref> In her view, the federal program was constitutional not simply because aid was "distributed on the basis of neutral, secular criteria," but also because restrictions on the funds ensured that "religious schools reap[ed] no financial benefit," and because federal law required the supplied materials to be secular.<ref><span id="ALDF_00018494">''Id.'' at 848-49.</span></ref> Justice O'Connor believed that whether the aid had been diverted to religious instruction was a relevant consideration, but concluded that any diversion in this case was "''de minimis''."<ref><span id="ALDF_00018495">''Id.'' at 849.</span></ref> She agreed with the plurality opinion that ''[[Meek]]'' and ''[[Wolman]]'' erred in assuming without evidence "that secular instructional materials and equipment would be diverted to use for religious indoctrination."<ref><span id="ALDF_00018496">''Id.'' at 851.</span></ref> For Justice O'Connor, while the mere possibility of diversion was insufficient to doom a program, the Establishment Clause did bar the actual diversion of government aid to religious uses.<ref><span id="ALDF_00018497">''Id.'' at 853; ''see also'' ''id.'' at 858 ("To establish a First Amendment violation, plaintiffs must prove that the aid in question actually is, or has been, used for religious purposes.").</span></ref>
Accordingly, following ''[[Mitchell]]'', the Supreme Court will not assume that government aid will be impermissibly used for religious activities under ''[[Lemon]]''<nowiki>'</nowiki>s effect prong merely because the recipient has a religious character.<ref><span id="ALDF_00018498">''Id.'' at 828 (plurality opinion); ''id.'' at 851 (O'Connor, J., concurring in the judgment).</span></ref> Further, it appears that a majority of Justices agreed with Justice O'Connor that actual diversion of aid to religious indoctrination violates the Constitution.<ref><span id="ALDF_00018499">''Id.'' at 853 (O'Connor, J., concurring in the judgment); ''id.'' at 890 (Souter, J., dissenting).</span></ref> Some lower courts have also recognized Justice O'Connor's approach to the neutrality inquiry as controlling.<ref><span id="ALDF_00018500">''[[Cmty. House, Inc. v. City of Boise]]'', 490 F.3d 1041, 1058 (9th Cir. 2007); ''[[Columbia Union Coll. v. Oliver]]'', 254 F.3d 496, 504 (4th Cir. 2001); ''[[DeStefano v. Emergency Hous. Grp., Inc.]]'', 247 F.3d 397, 419 (2d Cir. 2001); ''accord'' ''[[Trinity Lutheran Church of Columbia, Inc. v. Comer]]'', No. 15-577, slip op. at 6 (U.S. June 26, 2017) (Sotomayor, J., dissenting).</span></ref> It remains to be seen what effect the "abandonment" of ''[[Lemon]]'' will have on the analysis of aid that is used for religious indoctrination.<ref><span id="ALDF_00000663">''[[Kennedy v. Bremerton Sch. Dist.]]''. ''See also'' [[{{ROOTPAGENAME}}/Art. I/Section 1 Legislative Vesting Clause#Origin of Limits on Federal Power|Art. I, Sec. 1: Origin of Limits on Federal Power]].</span></ref>
=====Lemon's Entanglement Prong=====
Under ''[[Lemon]]''<nowiki>'</nowiki>s "entanglement" prong, a law could create impermissible entanglement either through excessive government surveillance or through its divisive political potential.<ref><span id="ALDF_00018501">''See'' ''[[Marsh v. Chambers]]'', 463 U.S. 783, 798-99 (1983) (Brennan, J., dissenting) (describing ''[[Lemon]]''<nowiki>'</nowiki>s entanglement prong as involving these two aspects). For a discussion of ''[[Lemon]]''<nowiki>'</nowiki>s abandonment and the relevance of cases in this section, see [[{{ROOTPAGENAME}}/First Amend.#Lemon's Purpose Prong|First Amend.: Lemon's Purpose Prong]] and [[{{ROOTPAGENAME}}/First Amend.#Endorsement Variation on Lemon|First Amend.: Endorsement Variation on Lemon]].</span></ref> The Court therefore struck down laws that would require "comprehensive, discriminating, and continuing" government supervision and control of religion,<ref><span id="ALDF_00018502">''[[Lemon v. Kurtzman]]'', 403 U.S. 602, 619 (1971). ''See also'' ''[[Walz v. Tax Comm'n]]'', 397 U.S. 664, 675 (1970) (discussing unconstitutional government "surveillance").</span></ref> or that impermissibly politicized religion.<ref><span id="ALDF_00018503">''[[Lemon]]'', 403 U.S. at 622 (pointing to "the divisive political potential of" the challenged programs and noting that "political division along religious lines was one of the principal evils against which the First Amendment was intended to protect"); ''[[Larson v. Valente]]'', 456 U.S. 228, 253-54 (1982) (ruling that the challenged state laws impermissibly politicized religion, selectively imposing "burdens and advantages upon particular denominations").</span></ref> However, contrary to the language in ''[[Lemon]]'' itself, the Supreme Court did not always treat the entanglement prong of the ''[[Lemon]]'' test as a distinct inquiry.<ref><span id="ALDF_00018504">''See, e.g.'', ''[[Agostini v. Felton]]'', 521 U.S. 203, 233 (1997) ("[I]t is simplest to recognize why entanglement is significant and treat it--as we did in ''[[Walz]]''--as an aspect of the inquiry into a statute's effect."); ''[[Walz v. Tax Comm'n]]'', 397 U.S. 664, 674 (1970) ("We must . . . be sure that the end result--the effect--is not an excessive government entanglement with religion.").</span></ref> Notably, the Supreme Court treated entanglement as an element of ''[[Lemon]]''<nowiki>'</nowiki>s effect prong in 1997's ''[[Agostini v. Felton]]''.<ref><span id="ALDF_00018505">''[[Agostini]]'', 521 U.S. at 234.</span></ref>
To violate the Establishment Clause under ''[[Lemon]]''<nowiki>'</nowiki>s third prong, an entanglement had to be "excessive," as some "[i]nteraction between church and state is inevitable."<ref><span id="ALDF_00018506">''Id.'' at 233.</span></ref> The Court has sometimes noted that laws creating permissible accommodations have created "a more complete separation" between church and state, the opposite of a greater entanglement.<ref><span id="ALDF_00018507">''[[Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos]]'', 483 U.S. 327, 339 (1987) (rejecting an Establishment Clause challenge to a religious exemption from a federal nondiscrimination law); ''see also'' ''[[Bd. of Educ. v. Mergens]]'', 496 U.S. 226, 253 (1990) (noting that prohibiting religious speech in school facilities "might well create greater entanglement problems in the form of invasive monitoring to prevent religious speech at meetings at which such speech might occur").</span></ref> Further, the Court has concluded that relatively minor oversight or administrative burdens did not qualify as impermissible entanglement.<ref><span id="ALDF_00018508">''See'' ''[[Mergens]]'', 496 U.S. at 253; ''[[Tony &amp; Susan Alamo Found. v. Sec'y of Labor]]'', 471 U.S. 290, 305 (1985); ''[[Lynch v. Donnelly]]'', 465 U.S. 668, 684 (1984).</span></ref> For example, the Court said applying the recordkeeping requirements of the Fair Labor Standards Act to religious organizations did not create an excessive entanglement, emphasizing that the requirements applied only to certain commercial activities, with "no impact on petitioners' own evangelical activities or on individuals engaged in volunteer work for other religious organizations."<ref><span id="ALDF_00018509">''[[Tony &amp; Susan Alamo Found.]]'', 471 U.S. at 305.</span></ref> In another case, the Court concluded minor "custodial oversight" of religious groups, where the law prohibited greater government control or sponsorship of the groups' activities, did not violate the entanglement prong.<ref><span id="ALDF_00018510">''[[Mergens]]'', 496 U.S. at 253.</span></ref>
By contrast, the Supreme Court said in ''[[Larkin v. Grendel's Den]]'' that a statute giving churches the power to veto liquor licenses for nearby businesses "enmeshe[d] churches in the exercise of substantial governmental powers contrary to our consistent interpretation of the Establishment Clause."<ref><span id="ALDF_00018511">''[[Larkin v. Grendel's Den]]'', 459 U.S. 116, 126 (1982).</span></ref> According to the Court, "few entanglements could be more offensive" than delegating "discretionary governmental powers" to religious groups.<ref><span id="ALDF_00018512">''Id.'' at 127.</span></ref>
As discussed in more detail elsewhere,<ref><span id="ALDF_00018513">''See'' [[{{ROOTPAGENAME}}/First Amend.#Lemon's Purpose Prong|First Amend.: Lemon's Purpose Prong]].</span></ref> the Supreme Court held in a few decisions in the 1970s and 1980s that providing certain secular materials or services to religious schools violated the effect and entanglement prongs of ''[[Lemon]]''.<ref><span id="ALDF_00018514">''[[Wolman v. Walter]]'', 433 U.S. 229, 258 (1977); ''[[Meek v. Pittenger]]'', 421 U.S. 349, 372 (1975).</span></ref> Notably, in ''[[Aguilar v. Felton]]'', the Supreme Court said that a law allowing federal funds to be used to pay public employees teaching in nonpublic schools was unconstitutional "because the supervisory system established by the [implementing city would] inevitably result[ ] in the excessive entanglement of church and state."<ref><span id="ALDF_00018515">''[[Aguilar v. Felton]]'', 473 U.S. 402, 409 (1985).</span></ref> The Court relied on the fact that the aid was "provided in a pervasively sectarian environment," and assumed that "because assistance is provided in the form of teachers, ongoing inspection is required to ensure the absence of a religious message."<ref><span id="ALDF_00018516">''Id.'' at 412.</span></ref> However, these rulings were subsequently overruled.<ref><span id="ALDF_00018517">''See'' ''[[Mitchell v. Helms]]'', 530 U.S. 793, 835 (2000) (plurality opinion) (partially overruling ''[[Meek]]'' and ''[[Wolman]]''); ''id.'' at 837 (O'Connor, J., concurring in the judgment) (same); ''[[Agostini v. Felton]]'', 521 U.S. 203, 235 (1997) (overruling ''[[Aguilar]]'').</span></ref> The Supreme Court said it would "no longer presume that public employees will inculcate religion simply because they happen to be in a sectarian environment," and accordingly, would "also discard the assumption that ''pervasive'' monitoring of [the funded] teachers is required."<ref><span id="ALDF_00018518">''[[Agostini]]'', 521 U.S. at 234.</span></ref>
''[[Lemon]]'' relied in part on the "divisive political potential" of the school funding programs at issue in that case to find that there was an unconstitutional excessive entanglement.<ref><span id="ALDF_00018519">''[[Lemon v. Kurtzman]]'', 403 U.S. 602, 621 (1971).</span></ref> However, the Court later suggested that "political divisiveness alone" is not enough "to invalidate otherwise permissible conduct,"<ref><span id="ALDF_00018520">''[[Agostini]]'', 521 U.S. at 233-34; ''[[Lynch v. Donnelly]]'', 465 U.S. 668, 684 (1984). ''Cf.'' ''[[Lee v. Weisman]]'', 505 U.S. 577, 587-88 (1992) (stating that although divisiveness will not "necessarily invalidate[ ]" attempts to accommodate religion, the "potential for divisiveness" was "of particular relevance" in a case centering "around an overt religious exercise in a secondary school environment where . . . subtle coercive pressures exist and where the student had no real alternative which would have allowed her to avoid the fact or appearance of participation").</span></ref> and further, that divisiveness may only be relevant in cases involving "direct subsid[ies]" to religious entities.<ref><span id="ALDF_00018521">''[[Lynch]]'', 465 U.S. at 684.</span></ref> Notwithstanding these statements, in ''[[Larson v. Valente]]'', decided in 1982, the Supreme Court held that a state statute imposing "registration and reporting requirements upon only those religious organizations that solicit more than fifty per cent of their funds from nonmembers" violated ''[[Lemon]]''<nowiki>'</nowiki>s entanglement prong because of its political divisiveness.<ref><span id="ALDF_00018522">''[[Larson v. Valente]]'', 456 U.S. 228, 230, 253 (1982).</span></ref> The opinion first ruled that the law created a denominational preference, triggering strict scrutiny.<ref><span id="ALDF_00018523">''Id.'' at 246-47.</span></ref> But after concluding that the law failed strict scrutiny, the Court also went on to apply ''[[Lemon]]''<nowiki>'</nowiki>s three-part test.<ref><span id="ALDF_00018524">''Id.'' at 251-52.</span></ref> The Court said that "the 'risk of politicizing religion'" was "obvious" in a law that selectively imposed burdens on "particular denominations."<ref><span id="ALDF_00018525">''Id.'' at 254 (quoting ''[[Walz v. Tax Comm'n]]'', 397 U.S. 664, 695 (1970) (opinion of Harlan, J.)).</span></ref>
=====Endorsement Variation on Lemon=====
In ''[[Lynch v. Donnelly]]'', issued in 1984, Justice Sandra Day O'Connor suggested a "clarification" of ''[[Lemon]]''.<ref><span id="ALDF_00018540">''[[Lynch v. Donnelly]]'', 465 U.S. 668, 687 (1984) (O'Connor, J., concurring). ''Cf.'' ''[[Widmar v. Vincent]]'', 454 U.S. 263, 271 n.10 (1981) (noting that by "creating a forum [for speech] the University does not thereby endorse or promote any of the particular ideas aired there"); ''[[Engel v. Vitale]]'', 370 U.S. 421, 436 (1962) (holding that "the governmental endorsement of [a specific] prayer" was unconstitutional).</span></ref> She argued that the Court should ask whether a city's Christmas display had "endorsed Christianity," saying that the first and second prongs of the ''[[Lemon]]'' test relate to endorsement.<ref><span id="ALDF_00018541">''[[Lynch]]'', 465 U.S. at 690.</span></ref> Justice O'Connor stated: "The purpose prong of the ''[[Lemon]]'' test asks whether government's actual purpose is to endorse or disapprove of religion. The effect prong asks whether, irrespective of government's actual purpose, the practice under review in fact conveys a message of endorsement or disapproval."<ref><span id="ALDF_00018542">''Id.''</span></ref> In a later concurrence, Justice O'Connor stated that endorsement should be judged by whether a "reasonable observer" would think the government is endorsing religion.<ref><span id="ALDF_00018543">''[[Allegheny Cnty. v. ACLU]]'', 492 U.S. 573, 630 (1989) (O'Connor, J., concurring).</span></ref>
The Supreme Court as a whole employed this endorsement variation on ''[[Lemon]]'' in a number of cases.<ref><span id="ALDF_00018544">''See, e.g.'', ''[[Santa Fe Indep. Sch. Dist. v. Doe]]'', 530 U.S. 290, 307-08 (2000) (holding that a school policy permitting student-led prayer at football games conveyed impermissible endorsement, noting the school's control over the delivery and content of the prayer); ''[[Edwards v. Aguillard]]'', 482 U.S. 578, 585 (1987) (applying endorsement version of ''[[Lemon]]''<nowiki>'</nowiki>s purpose inquiry to hold unconstitutional a state law prohibiting teaching evolution unless "creation science" was also taught); ''[[Wallace v. Jaffree]]'', 472 U.S. 38, 56 (1985) (applying endorsement version of ''[[Lemon]]''<nowiki>'</nowiki>s purpose inquiry to hold unconstitutional a state law authorizing a minute of silence for meditation or voluntary prayer in public schools).</span></ref> For example, in cases involving non-financial aid to religious schools, the Court sometimes asked whether children or the larger community would perceive the challenged government support as an endorsement of religion.<ref><span id="ALDF_00018545">''Compare'' ''[[Sch. Dist. v. Ball]]'', 473 U.S. 373, 390 (1985) (noting that "[t]he symbolism of a union between church and state is most likely to influence children of tender years"), ''partially overruled by'' ''[[Agostini v. Felton]]'', 521 U.S. 203 (1997), ''with'' ''[[Bd. of Educ. v. Mergens]]'', 496 U.S. 226, 250 (1990) (holding that secondary school students were "likely to understand" that a school did not endorse student speech that a federal law required it to host on a nondiscriminatory basis), ''and'' ''[[Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist.]]'', 508 U.S. 384, 395 (1993) (holding that there was "no realistic danger" that allowing a private group to use school facilities for religious activities outside of school hours would be perceived as an endorsement), ''and'' ''[[Good News Club v. Milford Cent. Sch.]]'', 533 U.S. 98, 113 (2001) (same).</span></ref> Further, like ''[[Lynch v. Donnelly]]'' itself, some of the Court's Establishment Clause cases focusing on endorsement have involved government-sponsored displays or monuments involving religious symbols.<ref><span id="ALDF_00018546">''See'' ''[[Lynch]]'', 465 U.S. at 687 (rejecting Establishment Clause challenge to municipal Christmas display that included a cr&#232;che).</span></ref> In ''[[Lynch]]'', the Court upheld the display of a cr&#232;che as part of a set of holiday symbols, but in ''[[County of Allegheny v. ACLU]]'', the Court held that a county violated the Establishment Clause by displaying a cr&#232;che by itself in a prominent position in a county building.<ref><span id="ALDF_00018547">''[[Cnty. of Allegheny v. ACLU]]'', 492 U.S. 573, 601 (1989).</span></ref> The Court held that the latter display "endorse[d] Christian doctrine."<ref><span id="ALDF_00018548">''Id.'' at 598-99, 601.</span></ref> Although there was a sign stating that the cr&#232;che was owned by a private religious organization, the Court said that under the circumstances, the sign showed only "that the government is endorsing the religious message of that organization."<ref><span id="ALDF_00018549">''Id.'' at 600. Similar to ''[[Lynch]]'', the Court in ''[[County of Allegheny]]'' upheld the county's separate display of a menorah "stand[ing] next to a Christmas tree and a sign saluting liberty." ''Id.'' at 614 (opinion of Blackmun, J.). Justice Harry Blackmun and Justice Sandra Day O'Connor separately concluded that the display conveyed an essentially secular message of pluralism in the context of winter holidays. ''Id.'' at 616 (Blackmun, J., concurring); ''id.'' at 635 (O'Connor, J., concurring). Justice Anthony Kennedy would have allowed the display where he found no evidence of coercion or proselytization. ''Id.'' at 663-64 (Kennedy, J., concurring in the judgment in part and dissenting in part).</span></ref> Addressing a different kind of symbol in ''[[Capitol Square Review &amp; Advisory Board v. Pinette]]'', the Supreme Court ruled that a public body had not impermissibly endorsed religion when it allowed the Ku Klux Klan to set up a cross in a plaza that had been used as a public forum for a variety of speakers "for many, many years."<ref><span id="ALDF_00018550">''[[Capitol Square Review &amp; Advisory Bd. v. Pinette]]'', 515 U.S. 753, 766 (1995) (plurality opinion); ''see also'' ''id.'' at 772 (O'Connor, J., concurring) (agreeing that the display did not violate the endorsement test).</span></ref> Given the context, the Court concluded that the cross would be seen as "''private'' speech endorsing religion," and not attributed to the government.<ref><span id="ALDF_00018551">''[[Capitol Square Review &amp; Advisory Bd.]]'', 515 U.S. at 765 (plurality opinion); ''accord'' ''id.'' at 774 (O'Connor, J., concurring). ''See also'' [[{{ROOTPAGENAME}}/First Amend.#Relationship Between Religion Clauses and Free Speech Clause|First Amend.: Relationship Between Religion Clauses and Free Speech Clause]]. In ''[[Salazar v. Buono]]'', the Supreme Court somewhat similarly considered whether a federal district court had properly prevented the federal government from transferring control of public land containing a Latin cross that was erected by a private group as a World War I memorial. 559 U.S. 700, 705-06 (2010) (plurality opinion). The lower court had initially ruled that the monument conveyed impermissible endorsement, and then further concluded that transferring the land was not a permissible way to remedy this constitutional violation. ''Id.'' at 708-11. A three-Justice plurality suggested that the memorial was consistent with the Establishment Clause, and concluded that the district court had erred by viewing Congress's "policy of accommodation" as embodying "an illicit governmental purpose." ''Id.'' at 717-19. Two other Justices would have reversed the ruling on standing grounds. ''Id.'' at 729 (Scalia, J., concurring in the judgment).</span></ref>
====Non-Financial Assistance to Religion and Non-Lemon Tests====
=====Abandonment of the Lemon Test=====
The Supreme Court did not generally apply ''[[Lemon]]'' rigidly, and two years after the decision, the Court described its three factors--purpose, effect, and entanglement--as "helpful signposts" in the Establishment Clause inquiry.<ref><span id="ALDF_00000780">''[[Hunt v. McNair]]'', 413 U.S. 734, 741 (1973); ''see also'' ''[[Lemon v. Kurtzman]]'', 403 U.S. 602, 612-13 (1971).</span></ref> These three factors were also part of Establishment Clause jurisprudence before ''[[Lemon]]''.<ref><span id="ALDF_00000781">''[[Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos]]'', 483 U.S. 327, 335 (1987).</span></ref> Since at least the early 1990s, however, the Supreme Court faced calls to reconsider ''[[Lemon]]''.<ref><span id="ALDF_00000782">''See'' ''[[Lee v. Weisman]]'', 505 U.S. 577, 587 (1992) ("[W]e do not accept the invitation of petitioners and amicus the United States to reconsider our decision in Lemon v. Kurtzman . . . ."); ''see also'' ''[[McCreary Cnty. v. ACLU]]'', 545 U.S. 844, 861 (2005) ("[T]he Counties ask us to abandon ''[[Lemon]]''<nowiki>'</nowiki>s purpose test, or at least to truncate any enquiry into purpose here.").</span></ref> While some opinions in the beginning of the 2000s continued to use the ''[[Lemon]]'' factors or variations on that test as their primary mode of analysis,<ref><span id="ALDF_00000783">''See'' ''[[Salazar v. Buono]]'', 559 U.S. 700, 705-06 (2010) (plurality opinion) (analyzing the constitutionality of a Latin cross war memorial using the endorsement test); ''[[McCreary Cnty. v. ACLU]]'', 545 U.S. 844, 859-60 (2005) (reaffirming the use of the ''[[Lemon]]'' test in analyzing the constitutionality of a Ten Commandments display, particularly the purpose prong).</span></ref> the Court ultimately said ''[[Lemon]]'' was "abandoned" in a 2022 opinion.<ref><span id="ALDF_00000784">''[[Kennedy v. Bremerton Sch. Dist.]]'', No. 21-418, (U.S. June 27, 2022).</span></ref>
The Court's 2019 decision in ''[[American Legion v. American Humanist Association]]'' had already limited ''[[Lemon]]''<nowiki>'</nowiki>s applicability, suggesting that in the future, it would not apply ''[[Lemon]]'' to evaluate "longstanding monuments, symbols, and practices."<ref><span id="ALDF_00000785">''[[Am. Legion v. Am. Humanist Ass'n]]'', No. 17-1717, slip op. at 16, 25 (U.S. June 20, 2019) (plurality opinion). ''See also'' ''id.'' at 6 (Thomas, J., concurring in judgment) (stating that he "would take the logical next step and overrule the ''[[Lemon]]'' test in all contexts"). Some Justices had previously written that ''[[Lemon]]'' should not apply to monuments, but had not gathered a majority coalition for such a holding. ''See'' ''[[Van Orden v. Perry]]'', 545 U.S. 677, 686 (2005) (plurality opinion) (saying that ''[[Lemon]]'' was "not useful" to analyze a "passive monument," and that its analysis was instead "driven both by the nature of the monument and by our Nation's history"); ''[[Allegheny Cnty. v. ACLU]]'', 492 U.S. 573, 595 (1989) (opinion of Blackmun, J.) (stating that the endorsement test "provide[d] a sound analytical framework for evaluating governmental use of religious symbols").</span></ref> Instead, a plurality of the Court said such practices should instead be considered constitutional so long as they "follow in" a historical "tradition" of religious accommodation.<ref><span id="ALDF_00000786">''[[Am. Legion]]'', slip op. at 28.</span></ref> In 2022's ''[[Kennedy v. Bremerton School District]]'', the Court said it had "long ago abandoned ''[[Lemon]]'' and its endorsement test offshoot," citing portions of ''[[American Legion]]'' that discussed a number of earlier cases in which the Court did not apply ''[[Lemon]]''.<ref><span id="ALDF_00000787">''[[Kennedy]]'', No. 21-418, slip op. at 22; ''[[Am. Legion]]'', slip op. at 13.</span></ref> Instead, moving forward, the Court said the Establishment Clause "must be interpreted by 'reference to historical practices and understandings.'"<ref><span id="ALDF_00000788">''[[Kennedy]]'', slip op. at 23 (quoting ''[[Town of Greece v. Galloway]]'', 572 U.S. 565, 576 (2014)).</span></ref> The analysis in ''[[Kennedy]]'' itself referred to the Court's prior cases on coercion, suggesting that will also provide an appropriate mode of analysis in the future.<ref><span id="ALDF_00000789">''Id.'' at 24-30.</span></ref>
=====Coercion and Establishment Clause Doctrine=====
Particularly in the context of government-sponsored prayer practices, the Supreme Court has sometimes evaluated Establishment Clause challenges by looking for impermissible government coercion.<ref><span id="ALDF_00018552">''See, e.g.'', ''[[Santa Fe Indep. Sch. Dist. v. Doe]]'', 530 U.S. 290, 310 (2000).</span></ref> Although the Court has said the Establishment Clause is concerned with many aspects of the relationship between government and religion,<ref><span id="ALDF_00018553">''[[Engel v. Vitale]]'', 370 U.S. 421, 431 (1962).</span></ref> "at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise."<ref><span id="ALDF_00018554">''[[Lee v. Weisman]]'', 505 U.S. 577, 587 (1992).</span></ref>
The Supreme Court has accordingly held that the government violates the Establishment Clause where there is coercion, including "indirect coercive pressure."<ref><span id="ALDF_00018555">''Id.'' at 430-311. ''Cf., e.g.'', ''[[Allegheny Cnty. v. ACLU]]'', 492 U.S. 573, 659-60 (1989) (Kennedy, J., dissenting) (giving examples of impermissible coercion as including "taxation to supply the substantial benefits that would sustain a state-established faith, direct compulsion to observance, or governmental exhortation to religiosity that amounts in fact to proselytizing").</span></ref> In ''[[Engel v. Vitale]]'', the Court clarified that a law requiring a specific prayer to be recited in schools was unconstitutional even though participation was voluntary, in the sense that students could opt out.<ref><span id="ALDF_00018556">''[[Engel]]'', 370 U.S. at 433.</span></ref> Similarly, in ''[[Lee v. Weisman]]'', the Court held that a high school violated the Establishment Clause with its involvement in prayers at high school graduations.<ref><span id="ALDF_00018557">''[[Lee]]'', 505 U.S. at 587.</span></ref> The school had "decided that an invocation and a benediction should be given," chosen "the religious participant" to give that invocation, and offered guidelines directing the content of the prayers.<ref><span id="ALDF_00018558">''Id.'' at 587-88.</span></ref> The Court's opinion stressed the "heightened concerns with . . . subtle coercive pressure in the elementary and secondary public schools."<ref><span id="ALDF_00018559">''Id.'' at 592.</span></ref> Under the circumstances, the Court said that "the dissenter of high school age" would have "a reasonable perception that she is being forced by the State to pray in a manner her conscience will not allow."<ref><span id="ALDF_00018560">''Id.'' at 593. The dissent disagreed with analysis, saying courts should interpret the Establishment Clause by reference to historical practices of coercion rather than "psychological coercion." ''Id.'' at 631-32 (Scalia, J., dissenting). Justice Clarence Thomas has continued to assert this criticism, arguing that the Establishment Clause is violated only by ''legal'' coercion, ''[[Van Orden v. Perry]]'', 545 U.S. 677, 693 (2005) (Thomas, J., concurring), effected "by force of law and threat of penalty," ''[[Elk Grove Unified Sch. Dist. v. Newdow]]'', 542 U.S. 1, 49 (2004) (Thomas, J., concurring in the judgment) (quoting ''[[Lee]]'', 505 U.S. at 640 (Scalia, J., dissenting)).</span></ref> In ''[[Santa Fe Independent School District v. Doe]]'', the Court again held that a school policy permitting student-led prayer at football games created impermissible coercion.<ref><span id="ALDF_00018561">''[[Santa Fe Indep. Sch. Dist. v. Doe]]'', 530 U.S. 290, 310 (2000).</span></ref> Although many students could freely choose whether to attend games, the delivery of a pregame prayer "over the school's public address system, by a speaker representing the student body, under the supervision of school faculty, and pursuant to a school policy that explicitly and implicitly encourages public prayer" nonetheless had "the improper effect of coercing those present to participate in an act of religious worship."<ref><span id="ALDF_00018562">''Id.'' at 310, 312.</span></ref>
The Supreme Court has reached different conclusions with respect to policies involving adults. For example, in ''[[Lee]]'', the Supreme Court distinguished a prior case that rejected an Establishment Clause challenge to prayers at state legislative sessions, noting the "obvious differences" between a session "where adults are free to enter and leave" and a graduation ceremony, "the one school event most important for the student to attend."<ref><span id="ALDF_00018563">''[[Lee]]'', 505 U.S. at 596-97 (discussing ''[[Marsh v. Chambers]]'', 463 U.S. 783 (1983)). ''See also'' ''[[Town of Greece v. Galloway]]'', 572 U.S. 565, 590 (2014) (plurality opinion) ("[I]n the general course legislative bodies do not engage in impermissible coercion merely by exposing constituents to prayer they would rather not hear and in which they need not participate."); ''see also'' ''id.'' at 591 ("The inclusion of a brief, ceremonial prayer as part of a larger exercise in civic recognition suggests that its purpose and effect are to acknowledge religious leaders . . . rather than to exclude or coerce nonbelievers.").</span></ref> Further, in a case where ''parents'' chose whether or not to allow their students to attend the meetings of a private religious club, the Supreme Court held that the school would not create impermissible coercion merely by allowing the meetings to occur on school premises after school hours.<ref><span id="ALDF_00018564">''[[Good News Club v. Milford Cent. Sch.]]'', 533 U.S. 98, 115-16 (2001)</span></ref>
In ''[[Kennedy v. Bremerton School District]]'', the Court considered whether a school would have violated the Establishment Clause by allowing a football coach to pray at the fifty yard line immediately after football games.<ref><span id="ALDF_00000711">''[[Kennedy v. Bremerton Sch. Dist.]]'', No. 21-418, slip op. at 20 (U.S. June 27, 2022).</span></ref> The school argued that the coach impermissibly coerced students to join his prayers, noting that the coach had previously led students in prayer before games and conducted overtly religious inspirational talks after games, and some students felt pressured to participate in the earlier prayers.<ref><span id="ALDF_00000712">''Id.'' at 26-27; ''id.'' at 4-5, 18 (Sotomayor, J., dissenting).</span></ref> The Court concluded those arguments were not relevant because the school's disciplinary action against the coach focused on later instances when the coach "did not seek to direct any prayers to students."<ref><span id="ALDF_00000717">''Id.'' at 26.</span></ref> In comparison to ''[[Santa Fe]]'', the Court concluded that the coach's prayers "were not publicly broadcast or recited to a captive audience," and students were not "expected to participate."<ref><span id="ALDF_00000718">''Id.'' at 30.</span></ref> People who saw or heard his prayers on the fifty-yard line could be offended, but not coerced, in the Court's view.<ref><span id="ALDF_00000719">''Id.'' at 26-27.</span></ref> The Court further said that the school could not require teachers to "eschew any visible religious expression," because that would impermissibly "preference secular activity."<ref><span id="ALDF_00000790">''Id.'' at 28.</span></ref>
More broadly, ''[[Kennedy]]'' said that in the future, courts should evaluate Establishment Clause challenges "by 'reference to historical practices and understandings.'"<ref><span id="ALDF_00000791">''Id.'' at 23 (quoting ''[[Town of Greece v. Galloway]]'', 572 U.S. 565, 576 (2014)).</span></ref> The Supreme Court acknowledged that while coercion "was among the foremost hallmarks of religious establishments the framers sought to prohibit when they adopted the First Amendment," the Justices "have sometimes disagreed on what exactly qualifies as impermissible coercion in light of the original meaning of the Establishment Clause."<ref><span id="ALDF_00000792">''Id.'' at 25.</span></ref> The Court did not expressly resolve those open disputes, ruling instead that in ''[[Kennedy]]'', the coach's "private religious exercise did not come close to crossing any line one might imagine separating protected private expression from impermissible government coercion."<ref><span id="ALDF_00000793">''Id.'' ''Cf.'' ''id.'' at 30 (Sotomayor, J., dissenting) (arguing that the Court's opinion focused on direct coercion and did not account for earlier Supreme Court precedent recognizing that "indirect coercion may [also] raise serious establishment concerns").</span></ref>
=====Establishment Clause and Historical Practices and Tradition=====
As previously discussed, the Supreme Court has long evaluated Establishment Clause challenges in part by reference to historical understandings of the Clause.<ref><span id="ALDF_00018565">''See'' [[{{ROOTPAGENAME}}/First Amend.#Early Cases on Non-Financial Assistance to Religion|First Amend.: Early Cases on Non-Financial Assistance to Religion]].</span></ref> That mode of analysis did not disappear after the Court's decision in ''[[Lemon]]'',<ref><span id="ALDF_00000794">''See, e.g.'', ''[[Lynch v. Donnelly]]'', 465 U.S. 668, 673 (1984) ("The Court's interpretation of the Establishment Clause has comported with what history reveals was the contemporaneous understanding of its guarantees.").</span></ref> and eventually became the Court's primary mode of analysis, as further discussed below.<ref><span id="ALDF_00018566">''[[Kennedy v. Bremerton Sch. Dist.]]'', No. 21-418, slip op. at 23 (U.S. June 27, 2022).</span></ref> However, while earlier cases largely relied on history to rule government actions unconstitutional, post-''[[Lemon]]'' cases largely pointed to historical tradition to uphold government actions that the Court saw as permissible accommodations of religion.<ref><span id="ALDF_00018567">''Compare, e.g.'', ''[[Lynch]]'' (upholding a Christmas display that "depict[ed] the historical origins" of the event, consistent with prior accommodations taking "note of a significant historical religious event"), ''and'' ''[[Van Orden v. Perry]]'', 545 U.S. 677, 686 (2005) (plurality opinion) (citing ''[[Lynch]]'' and looking to "our Nation's history" and factual context to uphold a Ten Commandments monument on the grounds of the Texas State Capitol), ''with, e.g.'', ''[[Engel v. Vitale]]'', 370 U.S. 421, 429-30 (1962) (holding a school prayer practice was contrary to Founding Era history), ''and'' ''[[Torcaso v. Watkins]]'', 367 U.S. 488, 491-92 (1961) (invalidating a religious test oath after concluding history "discredited such oaths").</span></ref> For example, in an opinion rejecting an Establishment Clause challenge to a city's Christmas display, the Court noted the "unbroken history of official acknowledgment by all three branches of government of the role of religion in American life from at least 1789."<ref><span id="ALDF_00018568">''[[Lynch]]'', 465 U.S. at 674.</span></ref>
In the 2019 decision ''[[American Legion v. American Humanist Association]]'', a split majority of the Supreme Court rejected a constitutional challenge to a Latin Cross erected as a World War I memorial.<ref><span id="ALDF_00018569">''[[Am. Legion v. Am. Humanist Ass'n]]'', No. 17-1717, slip op. at 28 (U.S. June 20, 2019).</span></ref> The plurality opinion (with some support from Justice Clarence Thomas, concurring in the judgment) stated that "longstanding monuments, symbols, and practices" should not be evaluated under ''[[Lemon]]'' 's tripartite analysis, but should instead be considered constitutional so long as they "follow in" a historical "tradition" of religious accommodation.<ref><span id="ALDF_00018570">''Id.'' at 16, 25, 28 (plurality opinion). ''See also'' ''id.'' at 6 (Thomas, J., concurring in judgment) (agreeing with the plurality opinion rejecting ''[[Lemon]]''<nowiki>'</nowiki>s "relevance" to certain claims but saying that he "would take the logical next step and overrule the ''[[Lemon]]'' test in all contexts").</span></ref> A majority of the Court acknowledged that the cross was a Christian symbol, but decided that "the symbol took on an added secular meaning when used in World War I memorials."<ref><span id="ALDF_00018571">''Id.'' at 28.</span></ref> Among other factors, the Court emphasized that the monument had "stood undisturbed for nearly a century" and had "acquired historical importance" to the community.<ref><span id="ALDF_00018572">''Id.'' at 28, 31.</span></ref> Consequently, the Court concluded that "destroying or defacing the Cross . . . would not be neutral and would not further the ideals of respect and tolerance embodied in the First Amendment."<ref><span id="ALDF_00018573">''Id.'' at 31.</span></ref>
The Supreme Court had previously applied an analysis looking to historical traditions in two cases involving prayer at state and local legislative sessions.<ref><span id="ALDF_00018574">''[[Town of Greece v. Galloway]]'', 572 U.S. 565, 591-92 (2014); ''[[Marsh v. Chambers]]'', 463 U.S. 783, 793 (1983).</span></ref> In 1983's ''[[Marsh v. Chambers]]'', the Court noted that "opening . . . sessions of legislative and other deliberative public bodies with prayer is deeply embedded in the history and tradition of this country."<ref><span id="ALDF_00018575">''[[Marsh]]'', 463 U.S. at 786.</span></ref> It upheld the state's prayer practice after concluding that the public employment of the legislative chaplain and the "Judeo-Christian" nature of the prayers were consistent with historical practices, given that "there [was] no indication that the prayer opportunity ha[d] been exploited to proselytize or advance any one, or to disparage any other, faith or belief."<ref><span id="ALDF_00018576">''Id.'' at 793-95.</span></ref> The Supreme Court engaged in a similar analysis in 2014's ''[[Town of Greece v. Galloway]]'', ruling that a municipality's challenged prayer practices "fit[ ] within the tradition long followed in Congress and the state legislatures."<ref><span id="ALDF_00018577">''[[Town of Greece]]'', 572 U.S. at 577.</span></ref> The Court rejected an argument that the prayers should be considered unconstitutional because they were identified with a single religion, saying that some of the early prayers during congressional sessions had a "decidedly Christian nature."<ref><span id="ALDF_00018578">''Id.'' at 578-79. ''See also'' ''id.'' at 583-84 (looking to prayers offered to Congress to "discern . . . a commonality of theme and tone" and concluding that "[t]he prayers delivered in the town of Greece do not fall outside the tradition this Court has recognized").</span></ref> These legislative prayer cases were presumably encompassed in the ''[[American Legion]]'' plurality's reference to "longstanding . . . practices,"<ref><span id="ALDF_00018579">''See'' ''[[Am. Legion v. Am. Humanist Ass'n]]'', No. 17-1717, slip op. at 16 (U.S. June 20, 2019) (plurality opinion).</span></ref> although future cases will have to elucidate what other government activities may be described by that phrase.
In 2022's ''[[Kennedy v. Bremerton School District]]'', the Court ruled definitively that "the Establishment Clause must be interpreted by 'reference to historical practices and understandings.'"<ref><span id="ALDF_00000863">''[[Kennedy v. Bremerton Sch. Dist.]]'', No. 21-418, slip op. at 23 (U.S. June 27, 2022) (quoting ''[[Town of Greece v. Galloway]]'', 572 U.S. 565, 576 (2014)).</span></ref> While the Court's opinion said Establishment Clause analysis should focus "on original meaning and history,"<ref><span id="ALDF_00000864">''Id.'' at 24.</span></ref> its own analysis of the school prayer practice at issue in that case proceeded by looking to prior cases on coercion.<ref><span id="ALDF_00000865">''See'' ''id.'' at 24-30. The coercion analysis in the case is discussed in [[{{ROOTPAGENAME}}/First Amend.#Coercion and Establishment Clause Doctrine|First Amend.: Coercion and Establishment Clause Doctrine]].</span></ref> Apart from stating generally that coercion was part of "a historically sensitive understanding" of the Clause, the Court did not look to evidence of original meaning or Founding-era history relevant to the specific disputed practice.<ref><span id="ALDF_00000866">''See'' ''id.'' at 25.</span></ref> Accordingly, the opinion left open a number of questions regarding how to analyze any disputed government action by reference to historical tradition.


===Free Exercise Clause===
===Free Exercise Clause===
:<big>'''[[{{ROOTPAGENAME}}/First Amend./Free Exercise Clause|Main Article]]'''</big>


====Overview of Free Exercise Clause====
====Overview of Free Exercise Clause====
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Although it has not always been an explicit part of its analysis, the Supreme Court has suggested in some decisions that a government policy does not violate the Free Exercise Clause unless it has some coercive effect towards a person's religious exercise.<ref><span id="ALDF_00020755">''[[Bd. of Educ. v. Allen]]'', 392 U.S. 236, 248-49 (1968) (rejecting a free exercise challenge to a textbook lending program because the challengers had not alleged the program "coerce[d] them as individuals in the practice of their religion"). ''See also'' ''[[Tilton v. Richardson]]'', 403 U.S. 672, 689 (1971) (plurality opinion) (rejecting a free exercise challenge to a federal program offering grants for constructing academic facilities because the challengers could not "identify any coercion directed at the practice or exercise of their religious beliefs").</span></ref> While recognizing that "indirect coercion or penalties on the free exercise of religion, not just outright prohibitions," may violate the First Amendment, the Court has further clarified that "incidental effects of government programs" with "no tendency to coerce individuals into acting contrary to their religious beliefs" do not trigger heightened constitutional scrutiny.<ref><span id="ALDF_00020756">''[[Lyng v. Nw. Indian Cemetery Protective Ass'n]]'', 485 U.S. 439, 450-51 (1988); ''see also'' [[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice and Internal Government Affairs|First Amend.: Laws Neutral to Religious Practice and Internal Government Affairs]].</span></ref> For example, the Court rejected a free exercise challenge to a program that allowed public schools to release students during the school day to take religious classes at private religious institutions.<ref><span id="ALDF_00020757">''[[Zorach v. Clauson]]'', 343 U.S. 306, 308 (1952).</span></ref> The program did not involve any free exercise issue, in the Court's view, because it did not involve coercion: no one was "forced to go to the religious classroom and no religious exercise or instruction [was] brought to the classrooms of the public schools."<ref><span id="ALDF_00020758">''Id.'' at 311.</span></ref> Accordingly, the Court has sometimes held that where a government action does not require regulated entities to act in a way that their religious beliefs prohibit, there is no Free Exercise Clause violation.<ref><span id="ALDF_00020759">''See, e.g.'', ''[[Jimmy Swaggart Ministries v. Cal. Bd. of Equalization]]'', 493 U.S. 378, 391-92 (1990) (holding that a generally applicable sales and use tax, applied to religious materials, imposed "no constitutionally significant burden on appellant's religious practices or beliefs"); ''[[Tex. Monthly, Inc. v. Bullock]]'', 489 U.S. 1, 18 (1989) (plurality opinion) (saying that the Free Exercise Clause did not require a sales tax exemption for religious publications where there was no evidence that the payment of the tax "would offend . . . religious beliefs or inhibit religious activity"); ''[[Tony &amp; Susan Alamo Foundation v. Secretary of Labor]]'', 471 U.S. 290, 303-04 (1985) (rejecting free exercise challenge to federal law that would require a religious employer to compensate employees, saying that although they held religious objections to cash wages, the required compensation could come in the form of benefits). ''Cf.'' ''[[Native Am. Church of Navajoland, Inc. v. Ariz. Corp. Comm'n]]'', 329 F. Supp. 907, 910 (D. Ariz. 1971) (rejecting free exercise challenge to a state denial of corporate status based on the corporation's stated purpose to advocate for religious peyote use, saying that the state's refusal to grant corporate status "by itself does not infringe in any significant way on the free exercise of their religious practices"), ''aff'd'', [https://cite.case.law/us/405/901/?full_case=true&amp;format=html 405 U.S. 901 (1972)] (mem.).</span></ref> Essentially, a law that does not regulate belief or burden religious exercise will not violate the Free Exercise Clause.<ref><span id="ALDF_00020760">''[[Tony &amp; Susan Alamo Foundation]]'', 471 U.S. at 303.</span></ref>
Although it has not always been an explicit part of its analysis, the Supreme Court has suggested in some decisions that a government policy does not violate the Free Exercise Clause unless it has some coercive effect towards a person's religious exercise.<ref><span id="ALDF_00020755">''[[Bd. of Educ. v. Allen]]'', 392 U.S. 236, 248-49 (1968) (rejecting a free exercise challenge to a textbook lending program because the challengers had not alleged the program "coerce[d] them as individuals in the practice of their religion"). ''See also'' ''[[Tilton v. Richardson]]'', 403 U.S. 672, 689 (1971) (plurality opinion) (rejecting a free exercise challenge to a federal program offering grants for constructing academic facilities because the challengers could not "identify any coercion directed at the practice or exercise of their religious beliefs").</span></ref> While recognizing that "indirect coercion or penalties on the free exercise of religion, not just outright prohibitions," may violate the First Amendment, the Court has further clarified that "incidental effects of government programs" with "no tendency to coerce individuals into acting contrary to their religious beliefs" do not trigger heightened constitutional scrutiny.<ref><span id="ALDF_00020756">''[[Lyng v. Nw. Indian Cemetery Protective Ass'n]]'', 485 U.S. 439, 450-51 (1988); ''see also'' [[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice and Internal Government Affairs|First Amend.: Laws Neutral to Religious Practice and Internal Government Affairs]].</span></ref> For example, the Court rejected a free exercise challenge to a program that allowed public schools to release students during the school day to take religious classes at private religious institutions.<ref><span id="ALDF_00020757">''[[Zorach v. Clauson]]'', 343 U.S. 306, 308 (1952).</span></ref> The program did not involve any free exercise issue, in the Court's view, because it did not involve coercion: no one was "forced to go to the religious classroom and no religious exercise or instruction [was] brought to the classrooms of the public schools."<ref><span id="ALDF_00020758">''Id.'' at 311.</span></ref> Accordingly, the Court has sometimes held that where a government action does not require regulated entities to act in a way that their religious beliefs prohibit, there is no Free Exercise Clause violation.<ref><span id="ALDF_00020759">''See, e.g.'', ''[[Jimmy Swaggart Ministries v. Cal. Bd. of Equalization]]'', 493 U.S. 378, 391-92 (1990) (holding that a generally applicable sales and use tax, applied to religious materials, imposed "no constitutionally significant burden on appellant's religious practices or beliefs"); ''[[Tex. Monthly, Inc. v. Bullock]]'', 489 U.S. 1, 18 (1989) (plurality opinion) (saying that the Free Exercise Clause did not require a sales tax exemption for religious publications where there was no evidence that the payment of the tax "would offend . . . religious beliefs or inhibit religious activity"); ''[[Tony &amp; Susan Alamo Foundation v. Secretary of Labor]]'', 471 U.S. 290, 303-04 (1985) (rejecting free exercise challenge to federal law that would require a religious employer to compensate employees, saying that although they held religious objections to cash wages, the required compensation could come in the form of benefits). ''Cf.'' ''[[Native Am. Church of Navajoland, Inc. v. Ariz. Corp. Comm'n]]'', 329 F. Supp. 907, 910 (D. Ariz. 1971) (rejecting free exercise challenge to a state denial of corporate status based on the corporation's stated purpose to advocate for religious peyote use, saying that the state's refusal to grant corporate status "by itself does not infringe in any significant way on the free exercise of their religious practices"), ''aff'd'', [https://cite.case.law/us/405/901/?full_case=true&amp;format=html 405 U.S. 901 (1972)] (mem.).</span></ref> Essentially, a law that does not regulate belief or burden religious exercise will not violate the Free Exercise Clause.<ref><span id="ALDF_00020760">''[[Tony &amp; Susan Alamo Foundation]]'', 471 U.S. at 303.</span></ref>
====Laws Regulating Religious Belief====
The Supreme Court has long held that the Free Exercise Clause prohibits "any governmental regulation of religious ''beliefs'' as such," as opposed to "overt ''acts'' prompted by religious beliefs or principles."<ref><span id="ALDF_00020761">''[[Sherbert v. Verner]]'', 374 U.S. 398, 402-03 (1963) (emphasis added in second quotation); ''accord'' ''[[Cantwell v. Connecticut]]'', 310 U.S. 296, 303-04 (1940).</span></ref> The Constitution categorically prohibits the government from compelling "the acceptance of any creed or the practice of any form of worship."<ref><span id="ALDF_00020762">''[[Braunfeld v. Brown]]'', 366 U.S. 599, 603 (1961) (plurality opinion); ''accord'' ''[[Sherbert]]'', 374 U.S. at 402. ''See also, e.g.'', ''[[Epperson v. Arkansas]]'', 393 U.S. 97, 106 (1968) (holding that a state law prohibiting teaching evolution in public schools violated both Religion Clauses, saying "the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma").</span></ref> Accordingly, a law that expressly requires declaring a specific religious belief will violate the Free Exercise Clause.<ref><span id="ALDF_00020763">''[[Torcaso v. Watkins]]'', 367 U.S. 488, 495-96 (1961). ''Cf., e.g.'', ''[[W. Va. State Bd. of Educ. v. Barnette]]'', 319 U.S. 624, 642 (1943) (holding that a school violated the First Amendment by expelling a student who, citing religious objections, refused to comply with a state law requiring teachers and pupils to salute the flag). Although the Supreme Court cited ''[[Barnette]]'' in at least one later case as involving a Free Exercise claim, ''see'' ''[[Everson v. Bd. of Educ.]]'', 330 U.S. 1, 15 n.22 (1947), other Supreme Court cases have treated ''[[Barnette]]'' as an interpretation of the Free Speech Clause, ''see, e.g.'', ''[[United States v. United Foods]]'', 533 U.S. 405, 410 (2001); ''[[Bd. of Educ. v. Mergens]]'', 496 U.S. 226, 250 (1990) (plurality opinion). The ''[[Barnette]]'' opinion itself said its resolution of the case did not "turn on [the student's] possession of particular religious views," suggesting that other "citizens who do not share these religious views" might similarly object to this "compulsory rite" and would also receive constitutional protection. ''Id.'' at 634-35.</span></ref> In ''[[Torcaso v. Watkins]]'', decided in 1961, the Supreme Court held that a state constitutional provision requiring public officeholders to declare a "belief in the existence of God" violated the Free Exercise Clause.<ref><span id="ALDF_00020764">''[[Torcaso]]'', 367 U.S. at 489 (quoting Md. Const. Declaration of Rights art. 37).</span></ref> Although the Court noted the "historical precedent" for such "religious test oaths" in Europe and in the Colonies,<ref><span id="ALDF_00020765">''Id.'' at 489-90.</span></ref> it held that the adoption of the U.S. Constitution and the First Amendment, combined with countervailing evidence of opposition to the oaths during colonial times, rendered religious test oaths "historically and constitutionally discredited."<ref><span id="ALDF_00020766">''Id.'' at 491-92, 494.</span></ref> By "limiting public offices to persons who have, or perhaps more properly profess to have, a belief in some particular kind of religious concept," the state law violated constitutional free exercise protections.<ref><span id="ALDF_00020767">''Id.'' at 494, 496.</span></ref>
The First Amendment's "absolute prohibition of infringements on the 'freedom to believe'" does not apply to laws that are "directed primarily at status, acts, and conduct."<ref><span id="ALDF_00020768">''[[McDaniel v. Paty]]'', 435 U.S. 618, 627 (1978) (plurality opinion). In ''[[McDaniel]]'', a plurality of the Court concluded that a state provision barring ministers from serving as delegates to a state constitutional convention did not operate because of the ministers' ''beliefs'', as prohibited by ''[[Torcaso]]'', but instead disqualified ministers based on their ''status''. ''Id.'' at 627. The plurality opinion nonetheless applied a heightened level of scrutiny and held the law unconstitutional. ''Id.'' at 629. Two Justices would have held that the law unconstitutionally regulated belief. ''Id.'' at 631-32 (Brennan, J., concurring in the judgment). ''[[McDaniel]]'', and cases exploring the additional distinction between laws operating based on religious status versus religious activity, are discussed [[{{ROOTPAGENAME}}/First Amend.#Laws that Discriminate Against Religious Practice|First Amend.: Laws that Discriminate Against Religious Practice]], and [[{{ROOTPAGENAME}}/First Amend.#Relationship Between the Establishment and Free Exercise Clauses|First Amend.: Relationship Between the Establishment and Free Exercise Clauses]].</span></ref> However, even when courts are considering conduct-focused laws, the constitutional prohibition on regulation of belief can sometimes limit the bounds of judicial inquiry.<ref><span id="ALDF_00020769">The Supreme Court has suggested that Congress is similarly limited when it outlines protections for religious belief. ''See'' ''[[United States v. Seeger]]'', 380 U.S. 163, 184 (1965) (interpreting scope of federal conscientious objector law broadly, citing, among other considerations, the government's inability to question the validity of religious objectors' beliefs). ''Cf.'' ''[[Rusk v. Espinosa]]'', 456 U.S. 951 (1982) (mem.), ''aff'g'' [https://cite.case.law/f2d/634/477/?full_case=true&amp;format=html 634 F.2d 477 (10th Cir. 1980)] (holding that city ordinance exempting "religious" groups from solicitation regulations violated the Free Exercise Clause as an impermissible prior restraint, because it gave administrative official overbroad discretion to determine what was religious).</span></ref> For example, in ''[[United States v. Ballard]]'', the Supreme Court held that it would violate the Free Exercise Clause for a jury to determine whether criminal defendants' religious beliefs were true or false.<ref><span id="ALDF_00020770">''[[United States v. Ballard]]'', 322 U.S. 78, 88 (1944).</span></ref> The defendants were charged with mail fraud after promoting a religious movement that claimed supernatural healing powers.<ref><span id="ALDF_00020771">''Id.'' at 79-80.</span></ref> The district court had instructed the jury only to consider whether the defendants "honestly and in good faith" held their beliefs.<ref><span id="ALDF_00020772">''Id.'' at 81-82.</span></ref> The court of appeals, in contrast, held that the defendants could only be convicted of fraud if the government proved that the defendants' beliefs, as they stated them, were false.<ref><span id="ALDF_00020773">''Id.'' at 83.</span></ref> The Supreme Court did not decide whether the jury could consider the ''sincerity'' of the defendants' beliefs, as the district court thought, but it definitively rejected the court of appeals' view that the jury should decide the ''truth'' of those beliefs, citing the absolute prohibition on government regulation of belief.<ref><span id="ALDF_00020774">''Id.'' at 86.</span></ref> The Court stated that "[h]eresy trials are foreign to our Constitution."<ref><span id="ALDF_00020775">''Id.''</span></ref> The Court later emphasized that "religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection."<ref><span id="ALDF_00020776">''[[Thomas v. Review Bd. of Ind. Employment Sec. Div.]]'', 450 U.S. 707, 714 (1981).</span></ref> Neither do religious beliefs have to comport with the "dogma of an established religious sect."<ref><span id="ALDF_00020777">''Id.'' at 715-16; ''[[Frazee v. Ill. Dep't of Employment Sec.]]'', 489 U.S. 829, 834 (1989). ''Cf.'' ''[[Burwell v. Hobby Lobby Stores, Inc.]]'', 573 U.S. 682, 724 (2014) (saying the courts have "no business" addressing whether a religious belief is "reasonable" when interpreting a federal statute protecting religious exercise).</span></ref>
The Court later reached the question it did not squarely resolve in ''[[Ballard]]'', clarifying that although courts may not probe the truth of an individual's religious beliefs, they may assess the sincerity or good faith with which the individual holds those beliefs in evaluating the merits of a free exercise claim or defense.<ref><span id="ALDF_00020778">''See, e.g.'', ''[[Frazee]]'', 489 U.S. at 833; ''[[Thomas]]'', 450 U.S. at 716; ''[[Seeger]]'', 380 U.S. at 185.</span></ref> A belief must be religious rather than secular to enjoy First Amendment protection,<ref><span id="ALDF_00020779">''E.g.'', ''[[Frazee]]'', 489 U.S. at 833. For additional discussion of how the Supreme Court has defined the scope of beliefs protected by the Religion Clauses, see [[{{ROOTPAGENAME}}/First Amend.#Overview of the Religion Clauses (Establishment and Free Exercise Clauses)|First Amend.: Overview of the Religion Clauses (Establishment and Free Exercise Clauses)]].</span></ref> and the Supreme Court has suggested there may be some claims "so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause."<ref><span id="ALDF_00020780">''[[Thomas]]'', 450 U.S. at 715. ''Cf.'' ''[[Chaplinsky v. State of New Hampshire]]'', 315 U.S. 568, 571 (1942) (rejecting a Free Exercise Clause challenge to a prosecution of a pastor under a statute prohibiting offensive addresses, saying the Court could not "conceive that cursing a public officer is the exercise of religion in any sense of the term," but further holding that even if the activity was religious, that would not shield "concomitant acts committed in violation of a valid criminal statute").</span></ref> Accordingly, courts may also scrutinize a claimed belief to ensure that it is religious in nature rather than secular, and in the course of that inquiry, may evaluate evidence showing the centrality of a belief to a certain faith.<ref><span id="ALDF_00020781">''See'' ''[[Wisconsin v. Yoder]]'', 406 U.S. 205, 216-17 (1972).</span></ref> Citing early cases upholding criminal laws prohibiting polygamy,<ref><span id="ALDF_00020782">See discussion [[{{ROOTPAGENAME}}/First Amend.#Overview of Free Exercise Clause|First Amend.: Overview of Free Exercise Clause]].</span></ref> the Court has rejected the claim that "any conduct can be made a religious rite and by the zeal of the practitioners swept into the First Amendment."<ref><span id="ALDF_00020783">''[[Murdock v. Pennsylvania]]'', 319 U.S. 105, 109-10 (1943).</span></ref> While "[t]he determination of what is a 'religious' belief or practice" may be "a difficult and delicate task," it may not depend on the government's "perception of the particular belief or practice."<ref><span id="ALDF_00020784">''[[Thomas]]'', 450 U.S. at 714. ''See also, e.g.'', ''[[Fowler v. Rhode Island]]'', 345 U.S. 67, 70 (1953) ("[I]t is no business of courts to say that what is a religious practice or activity for one group is not religion under the protection of the First Amendment.").</span></ref>
====Laws Neutral to Religious Practice====
=====Laws Neutral to Religious Practice during the 1940s and 1950s=====
The Supreme Court's early cases interpreting the Free Exercise Clause did not articulate one clear standard for evaluating claims under that clause, although some consistent principles did emerge, particularly in cases dealing with similar fact patterns.
Starting with ''[[Cantwell v. Connecticut]]'' in 1940 and continuing through the following two decades, the Supreme Court considered a series of cases involving state and local regulations restricting solicitation or other activity in public spaces, as applied to people engaged in religious speech.<ref><span id="ALDF_00020785">''See'' ''[[Cantwell v. Connecticut]]'', 310 U.S. 296, 300 (1940).</span></ref> Many of these cases invoked both the First Amendment's Free Exercise and Free Speech Clauses.<ref><span id="ALDF_00020786">''See, e.g.'', ''[[Kunz v. New York]]'', 340 U.S. 290, 293-94 (1951) (holding that a city violated the First Amendment by revoking a minister's permit based on his ridicule of other religious beliefs, citing cases interpreting and applying both the Free Exercise and Free Speech Clauses); ''see also'' [[{{ROOTPAGENAME}}/First Amend.#Relationship Between Religion Clauses and Free Speech Clause|First Amend.: Relationship Between Religion Clauses and Free Speech Clause]].</span></ref> Some cases striking down restrictions on religious speech seemed to draw from free speech jurisprudence outlining protections for speech in public forums.<ref><span id="ALDF_00020787">''See, e.g.'', ''[[Marsh v. Alabama]]'', 326 U.S. 501, 507-09 (1946) (holding that, as applied to a person distributing religious literature, a state law prohibiting trespass and a company town policy prohibiting the distribution of literature violated the First Amendment, citing protections for speech and religion and a public interest in ensuring "that the channels of communication remain free"); ''[[Tucker v. Texas]]'', 326 U.S. 517, 520 (1946) (applying ''[[Marsh]]'' to rule unconstitutional a similar application of a different state's law); ''[[Jamison v. Texas]]'', 318 U.S. 413, 414, 416 (1943) (ruling unconstitutional under the Free Speech and Free Exercise Clauses a municipal ordinance prohibiting the distribution of handbills, emphasizing that a person lawfully on a public street retains speech rights). ''See also '' [[{{ROOTPAGENAME}}/First Amend.#The Public Forum|First Amend.: The Public Forum]].</span></ref> Similarly, the Court held unconstitutional under the Free Exercise Clause regulations that it believed were impermissibly broad and discretionary prior restraints on religious speech.<ref><span id="ALDF_00020788">''See'' ''[[Kunz]]'', 340 U.S. at 293; ''[[Niemotko v. Maryland]]'', 340 U.S. 268, 273 (1951); ''[[Follett v. Town of McCormick]]'', 321 U.S. 573, 577 (1944); ''[[Murdock v. Pennsylvania]]'', 319 U.S. 105, 114 (1943); ''[[Jones v. City of Opelika]]'', 319 U.S. 103, 104 (1943) (mem.); ''[[Largent v. Texas]]'', 318 U.S. 418, 422 (1943); ''[[Cantwell]]'', 310 U.S. at 305. ''See also'' [[{{ROOTPAGENAME}}/First Amend.#Laws that Discriminate Against Religious Practice|First Amend.: Laws that Discriminate Against Religious Practice]]; [[{{ROOTPAGENAME}}/First Amend.#Prior Restraints on Speech|First Amend.: Prior Restraints on Speech]].</span></ref>
In ''[[Cantwell]]'', for example, the Court held that a state violated the Free Exercise Clause in convicting a man and his two sons under a state law that prohibited unapproved solicitations.<ref><span id="ALDF_00020789">''[[Cantwell]]'', 310 U.S. at 303. The Court also held that the First Amendment precluded a breach-of-the-peace conviction based on this conduct. ''Id.'' at 311.</span></ref> The man had played a religious record in the street, and his usual practice was to request that listeners would buy further religious materials.<ref><span id="ALDF_00020790">''Id.'' at 303.</span></ref> The Court acknowledged that the state may generally regulate solicitation if the regulation "does not involve any religious test and does not unreasonably obstruct or delay the collection of funds."<ref><span id="ALDF_00020791">''Id.'' at 305.</span></ref> However, the regulation challenged in ''[[Cantwell]]'' allowed a licensing official to decide whether any given solicitation was "religious" and should be approved.<ref><span id="ALDF_00020792">''Id.''</span></ref> In the Court's view, this broad discretion placed "a forbidden burden upon the exercise of liberty protected by the Constitution."<ref><span id="ALDF_00020793">''Id.'' at 307. ''See also'' ''[[Largent]]'', 318 U.S. at 422 (holding that a city's permitting system involving discretionary judgments was "administrative censorship" that "abridge[d] the freedom of religion, of the press and of speech," in the context of a conviction for distributing religious books).</span></ref>
Concerns about impermissible prior restraints also drove the decision in ''[[Murdock v. Pennsylvania]]'', in which the Court held that a city could not require religious groups to pay for a license in order to distribute religious literature.<ref><span id="ALDF_00020794">''[[Murdock v. Pennsylvania]]'', 319 U.S. 105, 114 (1943).</span></ref> The Court emphasized first that the "hand distribution of religious tracts is an age-old form of missionary evangelism" that enjoyed the same "protection as the more orthodox and conventional exercises of religion" such as "preaching from the pulpits."<ref><span id="ALDF_00020795">''Id.'' at 108-09.</span></ref> Further, the fact that the religious groups sought contributions did not "transform [their] evangelism into a commercial enterprise" that would merit lessened constitutional protection.<ref><span id="ALDF_00020796">''Id.'' at 110-11.</span></ref> The Court distinguished taxes on a preacher's income or property (which it suggested might be allowed) from the challenged city ordinance, because the city's licensing tax "restrain[ed] ''in advance'' those constitutional liberties of press and religion and inevitably tend[ed] to suppress their exercise."<ref><span id="ALDF_00020797">''Id.'' at 112, 114 (emphasis added).</span></ref> Before its decision in ''[[Murdock]]'', the Court had previously approved a similar license fee, stating that religious groups could be subject to reasonable fees when they "use the ordinary commercial methods of sales."<ref><span id="ALDF_00020798">''[[Jones v. Opelika]]'', 316 U.S. 584, 597-98 (1942), ''vacated'', [http://cdn.loc.gov/service/ll/usrep/usrep319/usrep319103/usrep319103.pdf 319 U.S. 103 (1943)] (mem.). Among other factors, the Court in ''[[Jones]]'' emphasized that the fee did not constitute a "complete prohibition," was "nondiscriminatory" in the sense that it applied to all booksellers equally, and did not vest "discretionary power in the public authorities to refuse a license to any one desirous of selling religious literature." ''Id.'' at 596, 598.</span></ref> However, the Court vacated that decision approving the license fee when it issued ''[[Jones]]'', concluding that the groups "were engaged in a . . . religious venture" rather than a commercial one.<ref><span id="ALDF_00020799">''[[Murdock]]''; ''[[Jones v. City of Opelika]]'', 319 U.S. 103, 104 (1943) (mem.). ''See also'' ''[[Follett v. Town of McCormick]]'', 321 U.S. 573, 574-75, 577 (1944) (ruling it unconstitutional to impose a flat license tax "in all material respects the same as the ones involved in" ''[[Jones]]'' and ''[[Murdock]]'' on a resident preacher).</span></ref> In subsequent cases, the Court made clear that ''[[Murdock]]'' bars only flat license taxes that operate as preconditions on exercising constitutional rights.<ref><span id="ALDF_00020800">''See'' ''[[Jimmy Swaggart Ministries v. Cal. Bd. of Equalization]]'', 493 U.S. 378, 389 (1990) (holding that ''[[Murdock]]'' and ''[[Follett]]'' "apply only where a flat license tax operates as a prior restraint on the free exercise or religious beliefs," and did not bar the application of a "generally applicable sales and use tax" to religious materials); ''[[Tex. Monthly, Inc. v. Bullock]]'', 489 U.S. 1, 24 (1989) (plurality opinion) (holding that ''[[Murdock]]'' and ''[[Follett]]'' would not bar the application of a general sales tax to religious publications).</span></ref>
By contrast, in ''[[Poulos v. New Hampshire]]'', the Supreme Court held that a city could require religious groups to comply with a permitting scheme to conduct meetings in a public park.<ref><span id="ALDF_00020801">''[[Poulos v. New Hampshire]]'', 345 U.S. 395, 402-04 (1953).</span></ref> The Supreme Court "assume[d]" that the permitting scheme entitled religious groups to hold religious services in the park "at reasonable hours and times."<ref><span id="ALDF_00020802">''Id.'' at 408.</span></ref> Based on that assumption, the Court upheld the permitting scheme as a reasonable "regulation" rather than "suppression" of speech.<ref><span id="ALDF_00020803">''Id.'' at 408.</span></ref> It also interpreted the law as giving licensing officials "no discretion as to granting permits, no power to discriminate, no control over speech."<ref><span id="ALDF_00020804">''Id.'' at 404. The state officials had in fact denied the defendant a permit to conduct religious activity in a park and arrested him after he held unapproved services, apparently exercising discretion in their control over speech. ''See'' ''id'' at 397. Although this action was contrary to the Court's construction of the statute, the Court nevertheless concluded that the defendant could still be prosecuted for proceeding with the services instead of appealing the city's denial decision. ''Id.'' at 414.</span></ref> Accordingly, the scheme was "not the kind of prepublication license" held unlawful in cases like ''[[Murdock]]'' and others, but instead "a ministerial, police routine for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved."<ref><span id="ALDF_00020805">''Id.'' at 403. ''See also'' ''[[Cox v. New Hampshire]]'', 312 U.S. 569, 578 (1941) (rejecting a Free Exercise Clause challenge to a statute prohibiting processions on public streets).</span></ref>
Other cases from this time period similarly rejected Free Exercise Clause challenges to laws that the Court characterized as reasonable regulations.<ref><span id="ALDF_00020806">''See, e.g.'', ''[[Jones v. Opelika]]'', 316 U.S. 584, 596-98 (1942) (involving a licensing scheme for booksellers, as applied to sales that the Court said were "partaking more of commercial than religious or educational transactions"), ''vacated'', [http://cdn.loc.gov/service/ll/usrep/usrep319/usrep319103/usrep319103.pdf 319 U.S. 103 (1943)] (mem.); ''[[Minersville School Dist. v. Gobitis]]'', 310 U.S. 586, 597-98 (1940) (involving a requirement for school children to participate in a flag salute, which the Court said served the government's legitimate interest in national unity), ''overruled by'' ''[[W. Va. State Bd. of Educ. v. Barnette]]'', 319 U.S. 624, 642 (1943). ''Cf.'' ''[[In re Summers]]'', 325 U.S. 561, 571, 573 (1945) (rejecting a conscientious objector's Free Exercise Clause challenge to a licensing scheme requiring attorneys to swear to support the state constitution and its provision requiring military service, emphasizing "the right of Congress to require military service from every able-bodied man" and the lack of any purpose to discriminate against religious groups); ''[[Hamilton v. Regents of the Univ. of Cal.]]'', 293 U.S. 245, 262-63 (1934) (saying a constitutional right for religious objectors to avoid military training as a condition of university attendance was "untenable" in light of citizens' duty "to support and defend government").</span></ref> One example is ''[[Prince v. Massachusetts]]'', in which a woman was convicted of violating a state child labor law for distributing religious materials and soliciting donations with her minor niece.<ref><span id="ALDF_00020807">''[[Prince v. Massachusetts]]'', 321 U.S. 158, 159-62 (1944).</span></ref> The defendant argued that this application of the law violated her and her niece's freedom of religion.<ref><span id="ALDF_00020808">''Id.'' at 164. The Court noted that the plaintiff's claim under the Free Exercise Clause was "buttresse[d] . . . with a claim of parental right as secured by the due process clause of the [Fourteenth] Amendment." ''Id.'' The case also involved an equal protection claim, which the Court similarly rejected. ''Id.'' at 170-71.</span></ref> The Supreme Court acknowledged that the Free Exercise Clause protected "[t]he rights of children to exercise their religion, and of parents to give them religious training and to encourage them in the practice of religious belief."<ref><span id="ALDF_00020809">''[[Prince]]'', 321 U.S. at 165.</span></ref> Nonetheless, the Court also recognized that the state has broad powers to regulate child welfare, and additionally ruled that the state has greater authority "over children's activities . . . than over like actions of adults."<ref><span id="ALDF_00020810">''Id.'' at 167-68.</span></ref> The Court declined to apply heightened scrutiny as urged by the defendant, instead accepting the state's conclusion that "an absolute prohibition" on child labor in certain places was "necessary to accomplish its legitimate objectives."<ref><span id="ALDF_00020811">''Id.'' at 170. The Court further said that "[s]treet preaching" could be "regulated within reasonable limits" for adults and could be prohibited for "children not accompanied by an older person." ''Id.'' at 169.</span></ref>
These early cases dealing with burdens placed on religion by facially neutral laws outlined general principles; their main importance was in establishing that general regulations in the public interest were constitutional so long as they did not run afoul of doctrines prohibiting prior restraints or protecting speech in public forums. However, some early cases hinted at a potentially more rigorous standard of review that would emerge in the 1960s. ''[[Murdock]]'', for example, ruled that the flat license tax was "not narrowly drawn to safeguard the people of the community in their homes against the evils of solicitations."<ref><span id="ALDF_00020812">''[[Murdock v. Pennsylvania]]'', 319 U.S. 105, 116 (1943). The Court emphasized that the state might have been able to achieve its goals with more narrow restrictions, such as registration requirements, "nominal" fees, or more narrowly drawn proscriptions on certain types of solicitation. ''Id.'' at 116-17.</span></ref> Another case expressed concern about a licensing scheme that lacked "narrowly drawn, reasonable and definite standards for the officials to follow."<ref><span id="ALDF_00020813">''[[Niemotko v. Maryland]]'', 340 U.S. 268, 271 (1951).</span></ref> Other cases emphasized that laws permissibly regulated religious activity in part because they did not reveal any purpose to discriminate against certain religions or to bar religious exercise.<ref><span id="ALDF_00020814">''[[Tucker v. Texas]]'', 326 U.S. 517, 520 (1946); ''[[In re Summers]]'', 325 U.S. 561, 571, 571 (1945).</span></ref> The Court would pick up each of these threads in future cases.
=====Laws Neutral to Religious Practice from the 1960s through the 1980s=====
In the 1960s through the 1980s, the Supreme Court began to apply a heightened level of scrutiny in many Free Exercise Clause challenges--although the precise contours of this heightened scrutiny were inconsistent, both in the particulars of the test and in its application.
In 1961's ''[[Braunfeld v. Brown]]'', business owners who observed the Saturday Sabbath challenged a law requiring their businesses to close on Sundays.<ref><span id="ALDF_00020815">''[[Braunfeld v. Brown]]'', 366 U.S. 599, 601 (1961) (plurality opinion). Sunday closing laws also engendered a number of Establishment Clause challenges. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Purpose and Effect Test Before Lemon|First Amend.: Purpose and Effect Test Before Lemon]].</span></ref> Although the law was facially neutral as to religion, the merchants argued the law burdened their religious exercise by either compelling them "to give up their Sabbath observance" or putting them "at a serious economic disadvantage" if they closed for the entire weekend.<ref><span id="ALDF_00020816">''[[Braunfeld]]'', 366 U.S. at 601-02.</span></ref> A plurality of the Court cautioned that courts should not unduly constrain "legislation which imposes only an indirect burden on the exercise of religion, ''i.e.'', legislation which does not make unlawful the religious practice itself."<ref><span id="ALDF_00020817">''Id.'' at 603, 606.</span></ref> The plurality held that "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."<ref><span id="ALDF_00020818">''Id.'' at 607.</span></ref> In the Court's view, the Sunday closing law had a valid secular purpose and effect in creating a common day of rest,<ref><span id="ALDF_00020819">''See'' ''id.''; ''[[McGowan v. Maryland]]'', 366 U.S. 420, 507 (1961) (opinion of Frankfurter, J.) (rejecting the Free Exercise Clause claims in ''[[Braunfeld]]'' after concluding the law had this valid secular purpose).</span></ref> and there were no effective alternative measures that would achieve this purpose without incidentally burdening religious freedom.<ref><span id="ALDF_00020820">''[[Braunfeld]]'', 366 U.S. at 608 (plurality opinion); ''accord'' ''[[McGowan]]'', 366 U.S. at 520 (opinion of Frankfurter, J.).</span></ref> Although the opinion seemed to state a somewhat heightened standard of review, the Court upheld the law after concluding that proposed alternative schemes that would accommodate the business owners "might well" be less effective at achieving the state's goals.<ref><span id="ALDF_00020821">''[[Braunfeld]]'', 366 U.S. at 608-09 (plurality opinion).</span></ref> Subsequent cases similarly seemed to suggest that laws placing only "incidental burdens" on religious beliefs might be more readily upheld.<ref><span id="ALDF_00020822">''See, e.g.'', ''[[Gillette v. United States]]'', 401 U.S. 437, 462 (1971) (rejecting Free Exercise Clause challenge to federal law exempting from military service only those who objected, on religious grounds, to participating in ''all'' wars, not those with religious objections to a ''particular'' war, saying the law's "incidental burdens" on religious beliefs were "strictly justified by substantial governmental interests"); ''[[Johnson v. Robison]]'', 415 U.S. 361, 385 (1974) (rejecting Free Exercise Clause challenge to federal law excluding conscientious objectors from veterans' benefits, citing ''[[Gillette]]'' to conclude that the law's "incidental burden" on religion was justified by the government's "substantial interest in raising and supporting armies").</span></ref>
The Court articulated and applied a heightened standard of review to evaluate a free exercise claim in ''[[Sherbert v. Verner]]'', issued just two years after ''[[Braunfeld]]''.<ref><span id="ALDF_00020823">''[[Sherbert v. Verner]]'', 374 U.S. 398, 406 (1963).</span></ref> A state had denied unemployment benefits to an employee who was fired after refusing to work on the Sabbath, claiming the employee was ineligible for benefits because she had "failed, without good cause . . . to accept suitable work."<ref><span id="ALDF_00020824">''Id.'' at 399-401 (quoting S.C. Code Ann. &#167; 68-114 (1952)).</span></ref> The Supreme Court held first that this denial burdened the employee's religious exercise by forcing "her to choose between following the precepts of her religion and forfeiting benefits, on the one hand, and abandoning one of the precepts of her religion in order to accept work, on the other hand."<ref><span id="ALDF_00020825">''Id.'' at 404.</span></ref> The Court then said that to justify this "substantial infringement" of her rights, the state could not show "merely . . . a rational relationship to some colorable state interest," but would have to demonstrate that its policy served a "compelling state interest"<ref><span id="ALDF_00020826">''Id.'' at 406.</span></ref>--an element seemingly not required in ''[[Braunfeld]]''.<ref><span id="ALDF_00020827">''See'' ''[[Braunfeld v. Brown]]'', 366 U.S. 599, 607 (1961) (plurality opinion).</span></ref> The Court held that the state had not met its burden, as its concerns about fraudulent claims filed by "unscrupulous claimants feigning religious objections to Saturday work" were unsupported by the record.<ref><span id="ALDF_00020828">''[[Sherbert]]'', 374 U.S. at 407.</span></ref> Further, the state had not shown that "alternative forms of regulations" could not "combat such abuses without infringing First Amendment rights."<ref><span id="ALDF_00020829">''Id.'' at 407.</span></ref> This stood in contrast to ''[[Braunfeld]]'', which the Court said involved a "less direct burden upon religious practices," and where the alternative methods appeared to pose such significant administrative problems that they "would have rendered the entire statutory scheme unworkable."<ref><span id="ALDF_00020830">''Id.'' at 408-09.</span></ref>
A number of subsequent decisions seemed to follow ''[[Sherbert]]''<nowiki>'</nowiki>s heightened scrutiny standard, particularly in the unemployment benefits context. Additional decisions in the 1980s held that states had failed to satisfy the compelling interest test in denying unemployment benefits to those who lost employment based on religious objections to the nature of their assigned tasks<ref><span id="ALDF_00020831">''[[Thomas v. Review Bd. of Ind. Emp. Sec. Div.]]'', 450 U.S. 707, 719 (1981) (involving a religious objection to making armaments, a newly assigned role for the employee).</span></ref> or to working on certain days.<ref><span id="ALDF_00020832">''[[Frazee v. Ill. Dep't of Emp. Sec.]]'', 489 U.S. 829, 831, 833 (1989) (involving a sincere religious objection to working on Sunday, which was held to be protected even though the challenger "was not a member of an established religious sect or church"); ''[[Hobbie v. Unemployment Appeals Comm'n]]'', 480 U.S. 136, 141 (1987) (involving a religious objection to working on the Sabbath). ''Cf.'' ''[[Luetkemeyer v. Kaufmann]]'', 364 F. Supp. 376, 386 (W.D. Mo. 1973) (rejecting free exercise challenge to provisions excluding private schools from a school transportation program, noting the state's compelling interest in "insist[ing] upon a degree of separation of church and state"), ''aff'd'', 419 U.S. 888 (1974) (mem.).</span></ref> These decisions can be seen as the Court applying the general doctrine of unconstitutional conditions, which holds that the government cannot infringe constitutional rights "by the denial of or placing of conditions upon a benefit or privilege."<ref><span id="ALDF_00020833">''[[Sherbert]]'', 374 U.S. at 404-05; ''see also'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Unconstitutional Conditions Doctrine|First Amend.: Overview of Unconstitutional Conditions Doctrine]]. ''Cf.'' ''[[Bowen v. Roy]]'', 476 U.S. 693, 706, 703 (1986) (plurality opinion) (ruling that a statutory requirement for benefits claimants to provide a Social Security number did not "place a direct condition or burden on the dissemination of religious views"); ''[[Native Am. Church of Navajoland, Inc. v. Ariz. Corp. Comm'n]]'', 329 F. Supp. 907, 910 (D. Ariz. 1971) (rejecting free exercise challenge to a state denial of corporate status based on group's religiously motivated activity, saying that the state's refusal to grant corporate status "by itself does not infringe in any significant way on the free exercise of their religious practices"), ''aff'd'', [https://cite.case.law/us/405/901/?full_case=true&amp;format=html 405 U.S. 901 (1972)] (mem.).</span></ref>
In another decision, ''[[Wisconsin v. Yoder]]'', the Court seemed to apply a ''[[Sherbert-]]''like form of heightened scrutiny.<ref><span id="ALDF_00020834">''[[Wisconsin v. Yoder]]'', 406 U.S. 205, 215 (1972).</span></ref> The case involved Amish parents who held religious objections to sending their children to high school and violated a state compulsory attendance law.<ref><span id="ALDF_00020835">''Id.'' at 207.</span></ref> Although the Court recognized the state's "interest in universal education" as generally compelling, it held that such interest was "not totally free from a balancing process when it impinges on fundamental rights and interests, such as those specifically protected by the Free Exercise Clause of the First Amendment, and the traditional interest of parents with respect to the religious upbringing of their children."<ref><span id="ALDF_00020836">''Id.'' at 214, 221; ''see also'' ''id.'' at 215 ("[O]nly those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."). Further, distinguishing the child labor law that was upheld in ''[[Prince v. Massachusetts]]'', 321 U.S. 158, 169-70 (1944), the Court said the state's compulsory education law did not confront "any harm to the physical or mental health of the child or to the public safety, peace, order, or welfare." ''[[Yoder]]'', 406 U.S. at 230. ''[[Prince]]'' is discussed in more detail in [[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice during the 1940s and 1950s|First Amend.: Laws Neutral to Religious Practice during the 1940s and 1950s]].</span></ref> After noting that the law's effect on the Amish parents' religious exercise was "not only severe, but inescapable," and would "gravely endanger if not destroy the free exercise" of their beliefs,<ref><span id="ALDF_00020837">''[[Yoder]]'', 406 U.S. at 218-19.</span></ref> the Court said it had to "searchingly examine the interests that the State seeks to promote by its requirement for compulsory education to age 16."<ref><span id="ALDF_00020838">''Id.'' at 221.</span></ref> The Court concluded that the evidence did not suggest the law was so necessary to serve the state's interests as "to justify the [law's] severe interference with religious freedom."<ref><span id="ALDF_00020839">''Id.'' at 227. Although this language could be seen as going to the law's fit, or tailoring, the Court phrased the inquiry largely in terms of the state's interest. ''See'' ''id.'' at 228-29 (saying that after reviewing evidence on the law's purpose and effects, "Wisconsin's interest in compelling the school attendance of Amish children to age 16 emerges as somewhat less substantial than requiring such attendance for children generally").</span></ref>
The Court again applied a heightened form of scrutiny in ''[[United States v. Lee]]'', although in that case it rejected a free exercise challenge to the forced payment of social security taxes.<ref><span id="ALDF_00020840">''[[United States v. Lee]]'', 455 U.S. 252, 254 (1982).</span></ref> An employer raised religious objections to accepting or paying into the national social security system.<ref><span id="ALDF_00020841">''Id.'' at 255-56. The law contained a religious exemption available to self-employed individuals, for which he did not qualify. ''Id.'' at 256.</span></ref> The Court said the government could justify the law's infringement on his religious liberty by showing the law was "essential to accomplish an overriding governmental interest."<ref><span id="ALDF_00020842">''Id.'' at 258. As support for this standard, the Court cited ''[[Wisconsin v. Yoder]]'', 406 U.S. 205, 215 (1972); ''[[Gillette v. United States]]'', 401 U.S. 437, 462 (1971); and ''[[Sherbert v. Verner]]'', 374 U.S. 398, 406 (1963). ''[[Lee]]'', 455 U.S. at 257-58. As discussed above, these three cases could be seen as articulating slightly different standards for evaluating Free Exercise Clause claims.</span></ref> After describing the government's interest in "mandatory and continuous participation in" the social security system as "very high," the Court held that "it would be difficult to accommodate the comprehensive social security system with myriad exceptions flowing from a wide variety of religious beliefs."<ref><span id="ALDF_00020843">''[[Lee]]'', 455 U.S. at 259-60.</span></ref> Accordingly, "religious belief" could not provide a "basis for resisting the tax."<ref><span id="ALDF_00020844">''Id.'' at 260.</span></ref> More broadly, the Court declared that "[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity."<ref><span id="ALDF_00020845">''Id.'' at 261.</span></ref> Justice John Paul Stevens, in a concurring opinion, suggested that this decision was in "tension" with ''[[Sherbert]]''.<ref><span id="ALDF_00020846">''Id.'' at 263 n.3 (Stevens, J., concurring).</span></ref>
Subsequent decisions of the Court attempted to reconcile the tension between the two standards in various ways. In ''[[Bob Jones University v. United States]]'', a religious university argued that racial nondiscrimination requirements infringed upon its religious beliefs prohibiting interracial dating and marriage.<ref><span id="ALDF_00020847">''[[Bob Jones Univ. v. United States]]'', 461 U.S. 574, 602-03 (1983).</span></ref> The Supreme Court held that the government had satisfied ''[[Sherbert]]''<nowiki>'</nowiki>s compelling interest test, citing ''[[Lee]]'' for the idea that the government may sometimes burden religious liberty.<ref><span id="ALDF_00020848">''Id.'' at 603-04.</span></ref> Another opinion rejected a constitutional challenge to a federal decision to tax certain payments for religious services, saying that ''[[Sherbert]]''<nowiki>'</nowiki>s compelling interest test applied only if the government had "placed a substantial burden on the observation of a central religious belief or practice."<ref><span id="ALDF_00020849">''[[Hernandez v. Commissioner]]'', 490 U.S. 680, 699 (1989).</span></ref> However, the Court in that case said that under ''[[Lee]]'', even a substantial religious burden would be justified by the government's interest in maintaining a uniformly applicable tax system.<ref><span id="ALDF_00020850">''Id.'' at 699-700.</span></ref> In another case involving a Free Exercise Clause challenge to a sales and use tax applied to religious materials, the Court concluded ''[[Sherbert]]''<nowiki>'</nowiki>s compelling interest standard did not apply where the challenger's religious beliefs did not "forbid payment" of the tax, holding that the collection and payment of the tax imposed "no constitutionally significant burden on appellant's religious practices or beliefs."<ref><span id="ALDF_00020851">''[[Jimmy Swaggart Ministries v. Cal. Bd. of Equalization]]'', 493 U.S. 378, 391-92 (1990). The Court distinguished prior cases invalidating flat license taxes as unconstitutional prior restraints by saying concerns that the tax would "act as a ''precondition'' to the free exercise of religious beliefs" were "simply not present where a tax applies to all sales and uses of tangible personal property in the State." ''Id.'' at 387. Those prior cases evaluating flat license taxes, ''[[Murdock v. Pennsylvania]]'', 319 U.S. 105 (1943), and ''[[Follett v. Town of McCormick]]'', 321 U.S. 573 (1944), are discussed ''supra'' [[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice during the 1940s and 1950s|First Amend.: Laws Neutral to Religious Practice during the 1940s and 1950s]].</span></ref>
In ''[[Bowen v. Roy]]'', involving a religious objection to the federal government's assignment and use of Social Security numbers, a plurality of the Court agreed that public benefits laws should not be subject to the heightened standard of ''[[Sherbert]]'' and ''[[Yoder]]''.<ref><span id="ALDF_00020852">''[[Bowen v. Roy]]'', 476 U.S. 693, 706-08 (1986) (plurality opinion).</span></ref> The Court drew a distinction between "government regulation that indirectly and incidentally calls for a choice between securing a governmental benefit and adherence to religious beliefs" and "governmental action or legislation that criminalizes religiously inspired activity or inescapably compels conduct that some find objectionable for religious reasons."<ref><span id="ALDF_00020853">''Id.'' at 706. ''See also'' ''[[Emp. Div., Dep't of Human Res. of Or. v. Smith]]'', 485 U.S. 660, 671-74 (1988) (saying that ''[[Sherbert]]'' might have been decided differently "if the employees had been discharged for engaging in criminal conduct," and remanding the case to the lower courts to reconsider a free exercise challenge to a denial of unemployment benefits, instructing the courts to consider whether religiously motivated peyote use was constitutionally protected or prohibited by state criminal law); ''[[Reynolds v. United States]]'', 98 U.S. 145, 166 (1845) (rejecting a free exercise challenge to a criminal prosecution for bigamy).</span></ref> Further, the plurality suggested that the heightened scrutiny applied in ''[[Sherbert]]'' was motivated by concerns specific to the state law's "'good cause' standard," which "created a mechanism for individualized exemptions" that opened the door for religious discrimination.<ref><span id="ALDF_00020854">''[[Bowen]]'', 476 U.S. at 708.</span></ref> Applying a less rigorous standard, the ''[[Bowen]]'' plurality rejected a free exercise challenge to a federal law requiring benefits applicants to provide a Social Security number, saying there was no evidence "suggesting antagonism by Congress towards religion generally or towards any particular religious beliefs."<ref><span id="ALDF_00020855">''Id.''</span></ref> The Social Security number requirement "clearly promote[d]" the government's stated interest in preventing fraud--a "legitimate and important public interest."<ref><span id="ALDF_00020856">''Id.'' at 709. The plaintiffs also challenged the federal government's internal use of Social Security numbers. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice and Internal Government Affairs|First Amend.: Laws Neutral to Religious Practice and Internal Government Affairs]].</span></ref> The ''[[Bowen]]'' plurality's views on the appropriate standards to evaluate Free Exercise Clause challenges would be largely vindicated with the Supreme Court's 1990 decision in ''[[Employment Division v. Smith]]'', discussed in a subsequent essay.<ref><span id="ALDF_00020857">''[[Emp. Div., Dep't of Human Res. of Or. v. Smith]]'', 494 U.S. 872 (1990); ''see'' [[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice and Current Doctrine|First Amend.: Laws Neutral to Religious Practice and Current Doctrine]].</span></ref>
=====Laws Neutral to Religious Practice and Internal Government Affairs=====
Two Supreme Court cases from the late 1980s held that the First Amendment's Free Exercise Clause is not implicated by internal government procedures--at least, so long as the internal policy is generally applicable and facially neutral towards religion.<ref><span id="ALDF_00020858">''Cf.'' ''[[Fulton v. City of Philadelphia]]'', No. 19-123, slip op. at 8 (U.S. June 17, 2021) (concluding that prior "cases involving internal government affairs" were not relevant to a government policy that was not generally applicable, noting that the Court has "never suggested that the government may discriminate against religion when acting in its managerial role").</span></ref> The religious challenger in ''[[Bowen v. Roy]]'' believed that by assigning his daughter a Social Security number and using that number to administer certain government programs, her spirit had been robbed.<ref><span id="ALDF_00020859">''[[Bowen v. Roy]]'', 476 U.S. 693, 696, 699 (1986). The religious challengers also objected to having to provide a Social Security number in order to obtain certain benefits. ''Id.'' at 699. That aspect of the case is discussed in [[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice from the 1960s through the 1980s|First Amend.: Laws Neutral to Religious Practice from the 1960s through the 1980s]].</span></ref> The Supreme Court rejected the father's constitutional challenge, saying "[t]he Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens."<ref><span id="ALDF_00020860">''[[Roy]]'', 476 U.S. at 699.</span></ref> The Court further said that the Clause "affords an individual protection from certain forms of governmental compulsion; it does not afford an individual a right to dictate the conduct of the Government's internal procedures."<ref><span id="ALDF_00020861">''Id.'' at 700.</span></ref> In the Court's view, the federal government's use of a Social Security number did not "in any degree impair" the father's free exercise of religion.<ref><span id="ALDF_00020862">''Id.''</span></ref>
The Supreme Court extended this principle in ''[[Lyng v. Northwest Indian Cemetery Protective Association]]'', holding that the federal government could allow timber harvesting in a national forest that had "historically been used for religious purposes" by certain Native American tribes.<ref><span id="ALDF_00020863">''[[Lyng v. Nw. Indian Cemetery Protective Ass'n]]'', 485 U.S. 439, 441-42 (1988).</span></ref> The Court declined to analyze the law under any heightened form of scrutiny, although it acknowledged that--as in ''[[Roy]]''--the government's action would "interfere significantly with private persons' ability to pursue spiritual fulfillment according to their own religious beliefs."<ref><span id="ALDF_00020864">''Id.'' at 447-49.</span></ref> Critically, though, the Court further concluded that the government's action would not coerce anyone into violating their religious beliefs or "penalize religious activity by denying any person an equal share of the rights, benefits, and privileges enjoyed by other citizens."<ref><span id="ALDF_00020865">''Id.'' at 449.</span></ref> While prior cases had held that "indirect coercion or penalties on" religion could trigger heightened constitutional scrutiny, the Court distinguished prohibitions on religious activity from "incidental effects of government programs, which may make it more difficult to practice certain religions but which have no tendency to coerce individuals into acting contrary to their religious beliefs."<ref><span id="ALDF_00020866">''Id.'' at 450-51.</span></ref> Even assuming that the government's decision about how to use the public land would destroy the tribes' ability to practice their religion, the Court said that the First Amendment could not give citizens the ability to "veto . . . public programs that do not prohibit the free exercise of religion."<ref><span id="ALDF_00020867">''Id.'' at 451-52.</span></ref>
=====Laws Neutral to Religious Practice and Current Doctrine=====
In the 1990 decision ''[[Employment Division v. Smith]]'', the Supreme Court attempted to reconcile its various standards for evaluating Free Exercise Clause challenges, limiting the heightened scrutiny of ''[[Sherbert v. Verner]]'' to a specific context and outlining a lower level of scrutiny for many other government actions.<ref><span id="ALDF_00020868">''[[Emp. Div., Dep't of Human Res. of Or. v. Smith]]'', 494 U.S. 872, 884-85 (1990). ''[[Sherbert v. Verner]]'', 374 U.S. 398 (1963), is discussed in more detail in [[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice from the 1960s through the 1980s|First Amend.: Laws Neutral to Religious Practice from the 1960s through the 1980s]].</span></ref> Specifically, in ''[[Smith]]'', the Court rejected a free exercise claim brought by two members of a Native American church.<ref><span id="ALDF_00020869">''[[Smith]]'', 494 U.S. at 874.</span></ref> The state had denied them unemployment benefits after they were fired for using peyote in violation of state criminal drug laws.<ref><span id="ALDF_00020870">''Id.''</span></ref> The church members argued that this denial of benefits impermissibly burdened their religious practice, because they had used peyote for sacramental purposes.<ref><span id="ALDF_00020871">''Id.''</span></ref> The Supreme Court disagreed, stating that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'"<ref><span id="ALDF_00020872">''Id.'' at 879 (quoting ''[[United States v. Lee]]'', 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring)).</span></ref>
The majority opinion in ''[[Smith]]'' acknowledged that some prior Supreme Court decisions, such as ''[[Sherbert]]'', had applied a heightened standard that required the government to demonstrate that any substantial burdens on religion were justified by a compelling governmental interest.<ref><span id="ALDF_00020873">''Id.'' at 883; ''see also'' [[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice from the 1960s through the 1980s|First Amend.: Laws Neutral to Religious Practice from the 1960s through the 1980s]].</span></ref> However, the Court said those earlier cases concerned laws that were not truly "generally applicable," and had "nothing to do with an across-the-board criminal prohibition on a particular form of conduct."<ref><span id="ALDF_00020874">''[[Smith]]'', 494 U.S. at 884.</span></ref> Instead, those cases involved systems like unemployment benefit programs in which the government decided case by case whether to apply laws through "individualized . . . assessment[s]."<ref><span id="ALDF_00020875">''Id.''</span></ref> Because individual exemption decisions presented a greater risk of religious discrimination, they required a heightened standard of review.<ref><span id="ALDF_00020876">''Id.''</span></ref> By contrast, the criminal laws in ''[[Smith]]'' generally prohibited using certain drugs and were "not specifically directed at [the church members'] religious practice."<ref><span id="ALDF_00020877">''Id.'' at 878.</span></ref> The Court noted that other cases such as ''[[United States v. Lee]]'' and ''[[Braunfeld v. Brown]]''<ref><span id="ALDF_00020878">''[[United States v. Lee]]'', 455 U.S. 252 (1982), and ''[[Braunfeld v. Brown]]'', 366 U.S. 599 (1961) (plurality opinion), are discussed in [[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice from the 1960s through the 1980s|First Amend.: Laws Neutral to Religious Practice from the 1960s through the 1980s]].</span></ref> had upheld the application of generally applicable laws to religiously motivated conduct.<ref><span id="ALDF_00020879">''[[Smith]]'', 494 U.S.at 880.</span></ref>
The majority opinion also said that some of the other cases applying a heightened standard of review to invalidate government actions violating the Free Exercise Clause had involved "hybrid" claims, in which plaintiffs claimed the government had violated additional constitutional rights beyond the free exercise of religion.<ref><span id="ALDF_00020880">''Id.'' at 881-82.</span></ref> The Court placed its early cases dealing with religious speech in this category, noting they also implicated First Amendment protections for speech and press.<ref><span id="ALDF_00020881">''Id.'' at 881. These early cases are discussed in [[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice during the 1940s and 1950s|First Amend.: Laws Neutral to Religious Practice during the 1940s and 1950s]]. The Court also characterized ''[[Wisconsin v. Yoder]]'', 406 U.S. 205 (1972), discussed in[[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice from the 1960s through the 1980s|First Amend.: Laws Neutral to Religious Practice from the 1960s through the 1980s]], as such a hybrid claim, involving "the right of parents . . . to direct the education of their children." ''[[Smith]]'', 494 U.S. at 881.</span></ref> In contrast, the benefits claimants in ''[[Smith]]'' presented "a free exercise claim unconnected with any communicative activity" or any other right.<ref><span id="ALDF_00020882">''[[Smith]]'', 494 U.S. at 882.</span></ref>
The Court's opinion relied in part on its belief that applying a "'compelling interest' test" in any claim involving the application of a law to religious motivated action "would be courting anarchy."<ref><span id="ALDF_00020883">''Id.'' at 888.</span></ref> A rule deeming such applications "''presumptively invalid'' . . . . would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind."<ref><span id="ALDF_00020884">''Id.''</span></ref> This aspect of the Court's decision drew from prior cases that had expressed similar concerns<ref><span id="ALDF_00020885">''See'' ''id.'' at 885 (citing ''[[Lyng v. Nw. Indian Cemetery Protective Ass'n]]'', 485 U.S. 439 (1988) and ''[[Reynolds v. United States]]'', 98 U.S. 145 (1845)).</span></ref> in attempting to avoid outcomes that would "make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself."<ref><span id="ALDF_00020886">''[[Reynolds]]'', 98 U.S. at 167.</span></ref> For example, in a prior case involving a religious objection to internal government procedures, the Court had said that the government "simply could not operate if it were required to satisfy every citizen's religious needs and desires."<ref><span id="ALDF_00020887">''[[Lyng]]'', 485 U.S. at 452; ''see also'' ''id.'' ("The First Amendment must apply to all citizens alike, and it can give to none of them a veto over public programs that do not prohibit the free exercise of religion.").</span></ref>
Accordingly, after ''[[Smith]]'', the Court has deemed burdens on free exercise that are "merely the incidental effect of a generally applicable and otherwise valid provision" not to violate the First Amendment.<ref><span id="ALDF_00020888">''[[Smith]]'', 494 U.S. at 878. ''See also'' ''[[Christian Legal Soc'y Chapter of the Univ. of Cal. v. Martinez]]'', 561 U.S. 661, 697 n.27 (2010) (citing ''[[Smith]]'' to reject a free exercise claim in which a religious student group sought "an exemption" from a university's "across-the-board" policy generally requiring school-approved student groups to accept all comers).</span></ref> However, some judges and commentators found ''[[Smith]]'' "controversial."<ref><span id="ALDF_00020889">''[[Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n]]'', No. 16-111, slip op. at 1 (U.S. June 4, 2018) (Gorsuch, J., concurring). In addition, Congress responded to ''[[Smith]]'' by adopting the Religious Freedom Restoration Act (RFRA), [https://uscode.house.gov/view.xhtml?req=(title:42%20section:2000bb%20edition:prelim)%20OR%20(granuleid:USC-prelim-title42-section2000bb)&amp;f=treesort&amp;num=0&amp;edition=prelim 42 U.S.C. &#167;&#167; 2000bb]-bb-4, and the Religious Land Use and Institutionalized Persons Act (RLUIPA), [https://uscode.house.gov/view.xhtml?req=(title:42%20section:2000cc%20edition:prelim)%20OR%20(granuleid:USC-prelim-title42-section2000cc)&amp;f=treesort&amp;num=0&amp;edition=prelim 42 U.S.C. &#167;&#167; 2000cc]-cc-5, which create a statutory cause of action with a heightened form of scrutiny for certain government actions imposing a substantial burden on religious exercise. RFRA was ruled partly unconstitutional in ''[[City of Boerne v. Flores]]'', 521 U.S. 507, 536 (1997), discussed in more detail in in [[{{ROOTPAGENAME}}/Fourteenth Amend./Section 5 Enforcement#Modern Doctrine on Enforcement Clause|Fourteenth Amend., Sec. 5: Modern Doctrine on Enforcement Clause]]. RLUIPA was upheld against an Establishment Clause challenge in ''[[Cutter v. Wilkinson]]'', 544 U.S. 709, 720 (2005), briefly discussed in [[{{ROOTPAGENAME}}/First Amend.#Lemon's Effect Prong and Accommodation of Religion|First Amend.: Lemon's Effect Prong and Accommodation of Religion]] and [[{{ROOTPAGENAME}}/First Amend.#Relationship Between Religion Clauses and Free Speech Clause|First Amend.: Relationship Between Religion Clauses and Free Speech Clause]].</span></ref> Although the Court has so far resisted calls to overrule the case,<ref><span id="ALDF_00020890">''See, e.g.'', ''[[Fulton v. City of Philadelphia]]'', No. 19-123, slip op. at 4-5 (U.S. June 17, 2021).</span></ref> subsequent cases discussed in another essay have explored limitations on the doctrine, effectively continuing to apply heightened constitutional scrutiny in a way that frequently requires government accommodation of religious exercise.<ref><span id="ALDF_00020891">[[{{ROOTPAGENAME}}/First Amend.#Laws that Discriminate Against Religious Practice|First Amend.: Laws that Discriminate Against Religious Practice]].</span></ref> Specifically, ''[[Smith]]'' left open the possibility that some form of heightened scrutiny would apply to laws that were not generally applicable or neutral towards religion.<ref><span id="ALDF_00020892">''[[Smith]]'', 494 U.S. at 879.</span></ref> In addition, by declining to overrule ''[[Sherbert]]'' and its progeny, ''[[Smith]]'' suggested that the compelling interest test might still apply in certain circumstances, potentially when statutory schemes require "individualized governmental assessment."<ref><span id="ALDF_00020893">''Id'' at 884.</span></ref> The Court has not yet elaborated on ''[[Smith]]''<nowiki>'</nowiki>s discussion of "hybrid" constitutional claims which might also trigger heightened scrutiny.<ref><span id="ALDF_00020894">''Id'' at 882.</span></ref>
=====Laws Neutral to Religious Practice Regulating Prisons and the Military=====
Even before the Supreme Court ruled in ''[[Employment Division v. Smith]]'' that heightened constitutional scrutiny should be limited to certain circumstances, the Court had suggested that a lower level of scrutiny would apply in the context of prisons and the military.<ref><span id="ALDF_00020895">The Court has also said that a lower level of constitutional scrutiny is appropriate to evaluate free speech claims in similar contexts. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Government Roles|First Amend.: Overview of Government Roles]]. However, Congress subsequently enacted the Religious Land Use and Institutionalized Persons Act (RLUIPA), [https://uscode.house.gov/view.xhtml?req=(title:42%20section:2000cc%20edition:prelim)%20OR%20(granuleid:USC-prelim-title42-section2000cc)&amp;f=treesort&amp;num=0&amp;edition=prelim 42 U.S.C. &#167; 2000cc]-1, which prevented the government from substantially burdening an institutionalized person's religious exercise unless it met a heightened standard, showing that its action was the least restrictive means to further a compelling governmental interest.</span></ref> In ''[[Goldman v. Weinberger]]'', the Supreme Court held that the Air Force's uniform dress regulations, which prohibited most members from wearing headgear indoors, could apply to a yarmulke.<ref><span id="ALDF_00020896">''[[Goldman v. Weinberger]]'', 475 U.S. 503, 504 (1986).</span></ref> The Court declined to analyze the free exercise objection under heightened scrutiny, saying instead that the Court's "review of military regulations . . . is far more deferential than constitutional review of similar laws or regulations designed for civilian society."<ref><span id="ALDF_00020897">''Id.'' at 506-07.</span></ref> Accordingly, the Court deferred to the Air Force's judgment that "standardized uniforms" were "vital" for discipline and unity, as well as its decision not to accommodate visible religious apparel that would detract from the desired uniformity.<ref><span id="ALDF_00020898">''Id.'' at 508-10. The Court described the regulations as "reasonabl[e] and evenhanded[ ]." ''Id.'' at 510.</span></ref>
A year later, in ''[[O'Lone v. Estate of Shabazz]]'', the Court adopted a similarly deferential position to uphold prison regulations that inhibited certain prisoners' religious exercise.<ref><span id="ALDF_00020899">''[[O'Lone v. Estate of Shabazz]]'', 482 U.S. 342, 353 (1987).</span></ref> The prison chose not to allow Muslim prisoners assigned to outside work details to return to the prison to attend religious services.<ref><span id="ALDF_00020900">''Id.'' at 346-47.</span></ref> While acknowledging that prisoners retain some First Amendment rights, the Court also said that prisoners' constitutional claims "are judged under a 'reasonableness' test" that affords more deference to prison administrators than ordinary standards.<ref><span id="ALDF_00020901">''Id.'' at 348-49; ''see also'' ''[[Turner v. Safley]]'', 482 U.S. 78, 89 (1987) ("When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.").</span></ref> The Court said that a prison's ability to accommodate religious activity might be "relevant to the reasonableness inquiry," but it would be inappropriate to place "the burden on prison officials to disprove the availability of alternatives."<ref><span id="ALDF_00020902">''Id.'' at 350.</span></ref> Ultimately, the Court held that the prison regulations were constitutional because they had "a logical connection to legitimate governmental interests" in maintaining institutional order and security.<ref><span id="ALDF_00020903">''Id.''</span></ref>
Nonetheless, the First Amendment's guarantees still apply to members of the military and to prisoners, and the Supreme Court has also held that the government would violate the Free Exercise Clause if it discriminated against a Buddhist prisoner, denying him "a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners."<ref><span id="ALDF_00020904">''[[Cruz v. Beto]]'', 405 U.S. 319, 322 (1972). The case came to the Court on an appeal of a motion to dismiss the prisoner's complaint. ''Id.'' at 320-21. The Court assumed the truth of the allegations for purposes of assessing the motion and vacated the dismissal of his complaint. ''Id.'' at 322-23. ''See also'' ''[[Cooper v. Pate]]'', 378 U.S. 546, 546 (1964) (per curiam) (holding lower courts erred by dismissing the complaint of a prisoner who alleged "that solely because of his religious beliefs he was denied permission to purchase certain religious publications and denied other privileges enjoyed by other prisoners").</span></ref>
====Laws that Discriminate Against Religious Practice====
The Supreme Court has recognized that the Free Exercise Clause "protect[s] religious observers against unequal treatment."<ref><span id="ALDF_00015429">''[[Church of Lukumi Babalu Aye, Inc. v. City of Hialeah]]'', 508 U.S. 520, 542 (1993) (quoting ''[[Hobbie v. Unemployment Appeals Comm'n of Fla.]]'', 480 U.S. 136, 148 (1987) (Stevens, J., concurring in judgment)).</span></ref> Thus, even after ''[[Employment Division v. Smith]]'' held that laws burdening religion generally will not violate the Free Exercise Clause if they are neutral and generally applicable,<ref><span id="ALDF_00007288">''[[Emp't Div., Dep't of Human Res. of Or. v. Smith]]'', 494 U.S. 872, 879 (1990).</span></ref> a law that imposes special burdens on religious activities may not be considered neutral and generally applicable and will trigger heightened scrutiny.<ref><span id="ALDF_00015430">''[[Church of Lukumi Babalu Aye]]'', 508 U.S. at 531-32.</span></ref> For example, in ''[[McDaniel v. Paty]]'', the Court struck down a Tennessee law barring ministers from serving as delegates to a state constitutional convention.<ref><span id="ALDF_00007289"> [http://cdn.loc.gov/service/ll/usrep/usrep435/usrep435618/usrep435618.pdf 435 U.S. 618, 629 (1978)] (plurality opinion).</span></ref> While the Court splintered with respect to its rationale, a majority agreed that the law violated the Free Exercise Clause by unconstitutionally conditioning the right to exercise one's religion on the "surrender" of the right to seek office as a delegate.<ref><span id="ALDF_00007290">''Id.'' at 626; ''accord'' ''id.'' at 633-34 (Brennan, J., concurring in the judgment).</span></ref> As such, the law impermissibly imposed a "special disabilit[y] on the basis of religious views or religious status."<ref><span id="ALDF_00015431">''[[Smith]]'', 494 U.S at 877 (describing the holding in ''[[McDaniel]]'').</span></ref> To take another example, in ''[[Kennedy v. Bremerton School District]]'', the Court ruled that a school district violated the Free Exercise Clause by suspending a football coach because he engaged in religious conduct--praying at the fifty-yard line after a football game.<ref><span id="ALDF_00000868">''[[Kennedy v. Bremerton Sch. Dist.]]'', No. 21-418, slip op. at 31-32 (U.S. June 27, 2022). The Court held that the school's policies were not neutral because they were based on the religious character of the actions, and the policies were not generally applicable because the school allowed coaching staff to engage in other types of personal activities after the game. ''Id.'' at 14. Although the Court acknowledged that strict scrutiny would ordinarily apply under the Free Exercise Clause, there were open questions in the case about whether a lower standard should apply under a Free Speech Clause framework. ''Id.'' at 19-20. The Court avoided answering that open question by concluding the school could not "sustain its burden under any" of the suggested levels of scrutiny. ''Id.'' at 20.</span></ref>
Similarly, in ''[[Trinity Lutheran Church of Columbia, Inc. v. Comer]]'', the Court held that a church that ran a preschool and daycare center could not be disqualified from participating in a Missouri program that offered funding to resurface playgrounds because of the church's religious affiliation.<ref><span id="ALDF_00007291">''See'' ''[[Trinity Lutheran Church of Columbia, Inc. v. Comer]]'', No. 15-577, slip op. at 15 (U.S. June 26, 2017).</span></ref> The Court concluded that Missouri's policy of excluding an otherwise eligible recipient from a public benefit solely because of its religious character imposed an unlawful penalty on the free exercise of religion--a result that triggered the "most exacting scrutiny."<ref><span id="ALDF_00007293">''Id.'' at 10. The Supreme Court later clarified that ''[[Trinity Lutheran]]'' had applied "strict scrutiny." ''[[Espinoza v. Mont. Dep't of Revenue]]'', No. 18-1195, slip op. at 12 (U.S. June 30, 2020).</span></ref> The Court rejected the State of Missouri's argument that withholding funds did not prohibit the church from engaging in any religious conduct or otherwise exercising its religious rights.<ref><span id="ALDF_00007294">''[[Trinity Lutheran]]'', slip op. 10</span></ref> Relying on ''[[McDaniel]]'', Chief Justice John Roberts concluded that because the Free Exercise Clause protects against "indirect coercion or penalties on the free exercise of religion," as well as "outright" prohibitions on religious exercise, Trinity Lutheran had a right to participate in a government benefit program without having to disavow its religious status.<ref><span id="ALDF_00007295">''Id.'' at 10-11. As a result, the Court characterized the church's injury not so much as being the "denial of a grant" itself, but rather the "refusal to allow the Church . . . to compete with secular organizations for a grant." ''Id.'' at 11.</span></ref> In evaluating whether the state's policy was justified by "a state interest 'of the highest order,'" the Court noted the parties' agreement that the Establishment Clause did not require religious organizations' exclusion from the program, and said that the state's "policy preference" for achieving an even greater separation of church and state did not "qualify as compelling."<ref><span id="ALDF_00007296">''Id.'' at 6, 14 (quoting ''[[McDaniel v. Paty]]'', 435 U.S. 618, 628 (1978) (plurality opinion)).</span></ref> As a result, the Court held that Missouri's policy violated the Free Exercise Clause.<ref><span id="ALDF_00007297">''Id.'' at 14-15. ''See also'' ''[[Espinoza]]'', slip op. at 10, 20 (holding that a state violated the Free Exercise Clause by excluding religious schools from a tax credit program based solely on the schools' "religious status"); ''[[Mitchell v. Helms]]'', 530 U.S. 793, 835 n.19 (2000) (plurality opinion) (saying that excluding religious schools from a federal program authorizing public schools to lend materials to private schools "would raise serious questions under the Free Exercise Clause."). ''But see'' ''[[Locke v. Davey]]'', 540 U.S. 712, 721-22 (2004) (rejecting free exercise challenge to state provision prohibiting scholarships from being used for devotional theology degrees, saying the state could permissibly choose not to fund this "distinct category of instruction" and noting the state's historically grounded "antiestablishment interests"). These cases are discussed in more detail in [[{{ROOTPAGENAME}}/First Amend.#Relationship Between the Establishment and Free Exercise Clauses|First Amend.: Relationship Between the Establishment and Free Exercise Clauses]].</span></ref> In a later case discussed in more detail in another essay, the Court further held that a law excluding religious schools from a state's tuition assistance program based on the fact that the schools would use the funds for religious activities was similarly unconstitutional.<ref><span id="ALDF_00000869">''[[Carson v. Makin]]'', No. 20-1088, slip op. at 15-17 (U.S. June 21, 2022); ''see also'' [[{{ROOTPAGENAME}}/First Amend.#Relationship Between the Establishment and Free Exercise Clauses|First Amend.: Relationship Between the Establishment and Free Exercise Clauses]].</span></ref>
Even if a law does not ''expressly'' target religion, it will trigger strict scrutiny if its ''object'' "is to infringe upon or restrict practices because of their religious motivation."<ref><span id="ALDF_00015432">''[[Church of Lukumi Babalu Aye, Inc. v. Hialeah]]'', 508 U.S. 520, 533 (1993). ''See also'' ''[[Tucker v. Texas]]'', 326 U.S. 517, 520 (1946) (rejecting a free exercise challenge after noting that the challenged laws did not indicate "a purpose to bar freedom of press and religion"); ''[[In re Summers]]'', 325 U.S. 561, 571 (1945) (rejecting a free exercise challenge after noting that the challenged policy did not appear motivated by a "purpose to discriminate" against certain religious groups).</span></ref> In ''[[Church of Lukumi Babalu Aye, Inc. v. City of Hialeah]]'', the Court struck down a set of ordinances enacted by a Florida city that had the "impermissible object" of targeting "conduct motivated by religious beliefs."<ref><span id="ALDF_00015433">''[[Church of Lukumi Babalu Aye]]'', 508 U.S. at 524.</span></ref> The Florida ordinances prohibited animal sacrifice, making certain exemptions for animals killed for food consumption, and were passed in direct response to the establishment of a Santeria church within the city and city residents' concerns about the Santeria practice of animal sacrifice.<ref><span id="ALDF_00015434">''Id.'' at 526-28.</span></ref> The Supreme Court concluded that the ordinances were not neutral within the meaning of ''[[Smith]]'' because they unconstitutionally sought to suppress Santeria religious worship.<ref><span id="ALDF_00015435">''Id.'' at 540.</span></ref> Among other factors, the Court noted that the laws accomplished a "religious gerrymander": although the text did not expressly refer to Santeria, the law nonetheless prohibited only Santeria sacrifice.<ref><span id="ALDF_00015436">''Id.'' at 534-35.</span></ref> The Court also held that the ordinances were not generally applicable under ''[[Smith]]'' because they selectively burdened "only . . . conduct motivated by religious belief."<ref><span id="ALDF_00015437">''Id.'' at 543.</span></ref> The Court therefore applied "the most rigorous of scrutiny" and ruled the ordinances unconstitutional.<ref><span id="ALDF_00015438">''Id.'' at 546.</span></ref>
The Court has suggested that it is equally unconstitutional for hostility to religion to motivate the government's decisions to ''apply'' its laws.<ref><span id="ALDF_00007298">''[[Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm'n]]'', No. 16-111, slip op. at 18 (U.S. June 4, 2018). ''See also'' ''[[Cruz v. Beto]]'', 405 U.S. 319, 322 (1972) (holding that the government would violate the Free Exercise Clause if it discriminated against a Buddhist prisoner by denying him "a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow prisoners"); ''[[Niemotko v. Maryland]]'', 340 U.S. 268, 272 (1951) ("The conclusion is inescapable that the use of the park was denied because of the City Council's dislike for or disagreement with the [Jehovah's] Witnesses or their views. The right to equal protection of the laws, in the exercise of those freedoms of speech and religion protected by the First and Fourteenth Amendments, has a firmer foundation than the whims or personal opinions of a local governing body."). In some cases involving both Religion Clauses, the Court has suggested that refusing to accommodate religious activity might also demonstrate impermissible hostility to religion. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Relationship Between the Establishment and Free Exercise Clauses|First Amend.: Relationship Between the Establishment and Free Exercise Clauses]].</span></ref> Consequently, even laws that are neutral on their face and in their purpose may violate the Free Exercise Clause if they are applied in a way that discriminates against religious activity.<ref><span id="ALDF_00000870">''See, e.g.'', ''[[Fowler v. Rhode Island]]'', 345 U.S. 67, 67, 70 (1953).</span></ref> For example, the Supreme Court held that a city violated the First Amendment when it applied an ordinance prohibiting certain activities in public parks in a discriminatory fashion.<ref><span id="ALDF_00000871">''Id.''</span></ref> According to the Court, the evidence showed that a certain group's religious service had been treated differently "than a religious service of other sects," amounting "to the state preferring some religious groups over this one."<ref><span id="ALDF_00000872">''Id.'' at 69.</span></ref> The Court cautioned that it was "no business of courts to say that what is a religious practice or activity for one group is not religion under the protection of the First Amendment."<ref><span id="ALDF_00000873">''Id.'' at 69-70.</span></ref>
In ''[[Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission]]'', another case involving allegations of religious hostility, the Court set aside state administrative proceedings enforcing Colorado's anti-discrimination laws against a baker who had refused to make a cake for a same-sex wedding.<ref><span id="ALDF_00007299">''[[Masterpiece Cakeshop]]'', slip op. at 3. In a subsequent case, the Supreme Court emphasized that these "'official expressions of hostility' to religion" led the Court to "set aside" the policies "without further inquiry." ''[[Kennedy v. Bremerton Sch. Dist.]]'', No. 21-418, slip op. at 12 (U.S. June 27, 2022) (quoting ''[[Masterpiece Cakeshop]]'', slip op. at 18). Two members of the six-Justice majority in ''[[Masterpiece Cakeshop]]'', however, had stated that the case was reviewed under strict scrutiny analysis in a concurring opinion. ''[[Masterpiece Cakeshop]]'', slip op. at 1 (Gorsuch, J., concurring).</span></ref> The Court held that the state had violated the Free Exercise Clause because the Colorado Civil Rights Commission had not considered the baker's case "with the religious neutrality that the Constitution requires."<ref><span id="ALDF_00007300">''[[Masterpiece Cakeshop]]'', slip op. at 3.</span></ref> The Court highlighted two aspects of the state proceedings that had, in its view, demonstrated impermissible religious hostility: first, certain statements by some of the Commissioners during the proceedings before the Commission<ref><span id="ALDF_00007302">''Id.'' at 13-14.</span></ref>; and second, "the difference in treatment between [the petitioner's] case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission."<ref><span id="ALDF_00007303">''Id.'' at 14. ''See also'' ''id.'' at 16 ("A principled rationale for the difference in treatment of these two instances cannot be based on the government's own assessment of offensiveness.").</span></ref>
Seemingly building on the Court's second rationale in ''[[Masterpiece Cakeshop]]'', the Supreme Court has said that government regulations are not neutral and trigger strict scrutiny "whenever they treat ''any'' comparable secular activity more favorably than religious exercise."<ref><span id="ALDF_00015439">''[[Tandon v. Newsom]]'', No. 20A151, slip op. at 1 (U.S. Apr. 9, 2021) (per curiam).</span></ref> In November 2020 and April 2021, the Supreme Court issued two per curiam opinions applying strict scrutiny to state regulations that limited gatherings, including religious gatherings, in response to the COVID-19 pandemic.<ref><span id="ALDF_00015440">''[[Roman Catholic Diocese of Brooklyn v. Cuomo]]'', No. 20A87, slip op. at 3 (U.S. Nov. 25, 2020) (per curiam); ''[[Tandon]]'', slip op. at 1. The per curiam opinion in ''[[Roman Catholic Diocese of Brooklyn]]'' also "addresse[d]" another case, ''[[Agudath Israel of America v. Cuomo]]'', No. 20A90. No. 20A87, slip op. at 1 (U.S. Nov. 25, 2020). ''See also'' ''[[S. Bay United Pentecostal Church v. Newsom]]'', No. 20A136 (U.S. Feb. 5, 2021) (mem.) (granting temporary relief enjoining prohibition on indoor worship services); ''[[Gateway City Church v. Newsom]]'', No. 20A138 (U.S. Feb. 26, 2021) (mem.) (granting temporary relief enjoining prohibition on indoor worship services and stating that such relief was "clearly dictated by this Court's decision in ''[[South Bay United Pentecostal Church v. Newsom]]''").</span></ref> In the first case, ''[[Roman Catholic Diocese of Brooklyn v. Cuomo]]'', the Court noted that while houses of worship were subject to strict occupancy limits, "essential" businesses faced no such restrictions.<ref><span id="ALDF_00015441">''[[Roman Catholic Diocese of Brooklyn]]'', slip op. at 3. The per curiam opinion did not explicitly analyze whether activities at these essential businesses were comparable to the religious activities before concluding that the policy was not neutral, though it did note that "factories and schools have contributed to the spread of COVID-19." ''See'' ''id.'' at 3. In a concurring opinion, Justice Neil Gorsuch emphasized that strict scrutiny is triggered if the government treats "religious exercises worse than ''comparable'' secular activities," and emphasized that people may also gather for extended periods in the businesses designated as essential. ''Id.'' at 1-2 (Gorsuch J., concurring) (emphasis added). </span></ref> This "especially harsh treatment" of religious groups triggered strict scrutiny, which the government could not satisfy.<ref><span id="ALDF_00015442">''Id.'' at 3, 4 (per curiam). The Court held that while the government had a "compelling interest" in "stemming the spread of COVID-19," these regulations were not narrowly tailored to that interest. ''Id.'' at 4. </span></ref> In the second case, ''[[Tandon v. Newsom]]'', the Court explained that "whether two activities are comparable . . . must be judged against the asserted government interest that justifies the regulation at issue."<ref><span id="ALDF_00015443">''[[Tandon]]'', slip op. at 2. </span></ref> In the context of restrictions to prevent the spread of COVID-19, the Court said comparability was "concerned with the risks various activities pose."<ref><span id="ALDF_00015444">''Id.'' </span></ref> Applying these principles to the challenged restrictions, the opinion held that the state did treat "some comparable secular activities more favorably than at-home religious exercise, permitting hair salons, retail stores, personal care services, movie theaters, private suites at sporting events and concerts, and indoor restaurants to bring together more than three households at a time."<ref><span id="ALDF_00015445">''Id.'' at 3.</span></ref> The Court further held that the challengers were likely to prevail under a strict scrutiny analysis because the state had "not shown that 'public health would be imperiled' by employing less restrictive measures."<ref><span id="ALDF_00015446">''Id.'' at 4 (quoting ''[[Roman Catholic Diocese of Brooklyn]]'', slip op. at 5).</span></ref>
Accordingly, a law that contains exemptions may be subject to strict scrutiny if those exemptions create or allow religious discrimination.<ref><span id="ALDF_00015447">''See'' ''[[Tandon]]'', slip op. at 2.</span></ref> As discussed in more detail elsewhere,<ref><span id="ALDF_00000874">[[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice during the 1940s and 1950s|First Amend.: Laws Neutral to Religious Practice during the 1940s and 1950s]].</span></ref> early Supreme Court jurisprudence considering restrictions on religious speech in public forums invalidated rules that granted officials broad discretion that they could use to discriminate against religious speech.<ref><span id="ALDF_00000875">''See, e.g.'', ''[[Niemotko v. Maryland]]'', 340 U.S. 268, 273 (1951); ''[[Cantwell v. Connecticut]]'', 310 U.S. 296, 305 (1940).</span></ref> Citing seemingly similar concerns, ''[[Smith]]'' said that the Court had reviewed laws creating "a system of individual exemptions" under a heightened level of scrutiny requiring the government to demonstrate a compelling interest.<ref><span id="ALDF_00015448">''[[Smith]]'', 494 U.S. at 883-84. ''[[Smith]]'' did not expressly draw a comparison between the broad "good cause" inquiry that was at issue in ''[[Sherbert v. Verner]]'', 374 U.S. 398, 401 (1963), and the broad discretionary regimes governing public forums. Instead, ''[[Smith]]'' suggested that the Court had applied a heightened standard of review in the latter set of cases because they involved "the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press." 494 U.S. at 881.</span></ref> The Supreme Court explained that, for example, it had applied this heightened standard of review to an unemployment compensation system that required "individualized governmental assessment" of whether an individual had shown "good cause" for refusing work.<ref><span id="ALDF_00015449">''[[Smith]]'', 494 U.S. at 884.</span></ref>
The Court expanded on this aspect of the ''[[Smith]]'' opinion in ''[[Fulton v. City of Philadelphia]]'', decided in 2021, saying that the presence of individualized exemptions may render a law not generally applicable and therefore subject to strict scrutiny.<ref><span id="ALDF_00015450">''[[Fulton v. City of Philadelphia]]'', No. 19-123, slip op. at 6-7 (U.S. June 17, 2021).</span></ref> In ''[[Fulton]]'', the Supreme Court held that a Catholic foster care agency was entitled to a constitutional exception from a city's nondiscrimination policy.<ref><span id="ALDF_00015451">''Id.'' at 15.</span></ref> The city had refused to sign a contract with the agency unless it agreed to a provision prohibiting discrimination on the basis of certain protected classes, including sexual orientation, in the provision of services.<ref><span id="ALDF_00015452">''Id.'' at 3.</span></ref> The agency argued that this provision would impermissibly require it to certify same-sex foster parents in violation of its religious beliefs.<ref><span id="ALDF_00015453">''Id.'' at 3, 15.</span></ref> The Supreme Court agreed, saying that the contract's nondiscrimination provision was not generally applicable under ''[[Smith]]'' because it allowed a city official to grant exceptions, in the official's "sole discretion."<ref><span id="ALDF_00015454">''Id.'' at 11.</span></ref> Although the city had never actually granted an exception to either secular or religious activities under its other contracts, and asserted that it had no intention of granting any such exception in the future, the Court nonetheless held that the nondiscrimination provision "incorporate[d] a system of individual exemptions," and that the city could not "refuse to extend that [exemption] system to cases of religious hardship without compelling reason."<ref><span id="ALDF_00015455">''Id.'' (quoting ''[[Emp't Div., Dep't of Human Res. of Or. v. Smith]]'', 494 U.S. 872, 879 (1990)) (internal quotation marks omitted) (alteration in original).</span></ref> Ultimately, the Supreme Court concluded that the city failed to meet this standard, because it had offered "no compelling reason why it has a particular interest in denying an exception to [the religious agency] while making them available to others."<ref><span id="ALDF_00015456">''Id.'' at 15.</span></ref>


===Relationship Between the Establishment and Free Exercise Clauses===
===Relationship Between the Establishment and Free Exercise Clauses===
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===Free Speech Clause===
===Free Speech Clause===
 
:<big>'''[[{{ROOTPAGENAME}}/First Amend./Free Speech Clause|Main Article]]'''</big>
====Historical Background on Free Speech Clause====
====Historical Background on Free Speech Clause====


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The Sedition Act of 1798 sparked one such controversy that "crystallized a national awareness of the central meaning of the First Amendment."<ref><span id="ALDF_00025509">''[[N.Y. Times Co. v. Sullivan]]'', 376 U.S. 254, 273 (1964).</span></ref> The law 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 . . . or to bring them . . . into contempt or disrepute."<ref><span id="ALDF_00025510">1 Stat. 596 (1798)</span></ref> While Thomas Jefferson and Madison condemned the act as unconstitutional, the Adams Administration used it to prosecute its political opponents.<ref><span id="ALDF_00025511">''See'' J. Smith, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties 159 et seq. (1956).</span></ref> Although the Supreme Court never ruled the Sedition Act unconstitutional prior to its expiration in 1801, the Court later recognized "a broad consensus" from the political and judicial branches that the act was unconstitutional.<ref><span id="ALDF_00025512">''[[N.Y. Times Co.]]'', 376 U.S. at 276.</span></ref>
The Sedition Act of 1798 sparked one such controversy that "crystallized a national awareness of the central meaning of the First Amendment."<ref><span id="ALDF_00025509">''[[N.Y. Times Co. v. Sullivan]]'', 376 U.S. 254, 273 (1964).</span></ref> The law 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 . . . or to bring them . . . into contempt or disrepute."<ref><span id="ALDF_00025510">1 Stat. 596 (1798)</span></ref> While Thomas Jefferson and Madison condemned the act as unconstitutional, the Adams Administration used it to prosecute its political opponents.<ref><span id="ALDF_00025511">''See'' J. Smith, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties 159 et seq. (1956).</span></ref> Although the Supreme Court never ruled the Sedition Act unconstitutional prior to its expiration in 1801, the Court later recognized "a broad consensus" from the political and judicial branches that the act was unconstitutional.<ref><span id="ALDF_00025512">''[[N.Y. Times Co.]]'', 376 U.S. at 276.</span></ref>
====Procedural Matters====
=====The Overbreadth Doctrine, Statutory Language, and Free Speech=====
The overbreadth doctrine focuses on the need for precision in drafting a statute that may affect First Amendment rights, and more concretely, allows a special kind of facial challenge to statutes.<ref><span id="ALDF_00025513">''[[NAACP v. Button]]'', 371 U.S. 415, 432-33 (1963).</span></ref> Ordinarily, to prevail in a facial challenge--a claim challenging a statute on its face, rather than only in certain applications--a litigant "must 'establish that no set of circumstances exists under which the [law] would be valid,' or show that the law lacks 'a plainly legitimate sweep.'"<ref><span id="ALDF_00025514">''[[Ams. for Prosperity Found. v. Bonta]]'', No. 19-251, slip op. at 15 (U.S. July 1, 2021) (internal citations omitted) (quoting ''[[United States v. Salerno]]'', 481 U.S. 739, 745 (1987); ''[[Wash. State Grange v. Wash. State Republican Party]]'', 552 U.S. 442, 449 (2008)).</span></ref> Accordingly, if a statute sweeps in both protected and unprotected activity, the Court will ordinarily only invalidate its application to protected conduct.<ref><span id="ALDF_00025515">''See, e.g.,'' ''[[Barr v. Am. Ass'n of Political Consultants]]'', No. 19-631, slip op at 13-14 (U.S. July 6, 2020) (discussing severability doctrine and the "power and preference" for partial invalidation of a statute); ''[[United States v. Salerno]]'', 481 U.S. 739, 745 (1987) ("[W]e have not recognized an 'overbreadth' doctrine outside the limited context of the First Amendment."). ''But cf.'', ''e.g.'', ''[[Aptheker v. Secretary of State]]'', 378 U.S. 500, 515-16 (1964) (concluding a First Amendment overbreadth case provided the appropriate analysis for a right-to-travel challenge to a statute that could not be narrowed due to the law's "indiscriminately cast and overly broad scope").</span></ref> In the context of the First Amendment, however, the Supreme Court has allowed a person whose own conduct may not be constitutionally protected to bring a facial challenge to a law, if the statute is so broadly written that it sweeps in protected speech and could therefore have "a deterrent effect on free expression."<ref><span id="ALDF_00025516">''[[Members of City Council v. Taxpayers for Vincent]]'', 466 U.S. 789, 798 (1984).</span></ref> The overbreadth doctrine thus allows the facial invalidation of a law that "punishes a 'substantial' amount of protected free speech, 'judged in relation to the statute's plainly legitimate sweep.'"<ref><span id="ALDF_00025517">''[[Virginia v. Hicks]]'', 539 U.S. 113, 118-19 (2003) (quoting ''[[Broadrick v. Oklahoma]]'', 413 U.S. 601, 615 (1973)).</span></ref> For example, in ''[[United States v. Stevens]]'', the Supreme Court applied the overbreadth doctrine to rule unconstitutional a federal law that "criminalize[d] the commercial creation, sale, or possession of certain depictions of animal cruelty."<ref><span id="ALDF_00025518">''[[United States v. Stevens]]'', 559 U.S. 460, 464, 482 (2010).</span></ref> The Court described the statute as "a criminal prohibition of alarming breadth," and concluded that "the presumptively impermissible applications of [the law] . . . far outnumber any permissible ones."<ref><span id="ALDF_00025519">''Id.'' at 474, 481. ''See, also, e.g.'', ''[[United States v. Robel]]'', 389 U.S. 258, 266 (1967) (federal law barring members of registered Communist-action organizations from employment in defense facilities); ''[[Lewis v. City of New Orleans]]'', 415 U.S. 130, 131-32 (1974) (state law prohibiting using fighting words towards police performing official duties); ''[[Erznoznik v. City of Jacksonville]]'', 422 U.S. 205, 217-18 (1975) (city ordinance prohibiting films with nudity from being shown when visible from public streets); ''[[Doran v. Salem Inn]]'', 422 U.S. 922, 932-34 (1975) (local ordinance prohibiting topless dancing in certain establishments, in the context of an appeal of a preliminary injunction); ''[[Village of Schaumburg v. Citizens for a Better Environment]]'', 444 U.S. 620, 633-39 (1980) (municipal ordinance prohibiting certain charitable organizations from soliciting contributions); ''[[Secretary of State of Maryland v. Joseph H. Munson Co.]]'', 467 U.S. 947, 949-50 (1984) (charitable solicitation statute placing 25% cap on fundraising expenditures); ''[[City of Houston v. Hill]]'', 482 U.S. 451, 455, 467 (1987) (city ordinance making it unlawful to "oppose, molest, abuse, or interrupt" police officer in performance of duty); ''[[Bd. of Airport Comm'rs v. Jews for Jesus]]'', 482 U.S. 569, 570, 577 (1987) (resolution banning all "First Amendment activities" at airport); ''[[Reno v. ACLU]]'', 521 U.S. 844, 874-879 (1997) (statute banning "indecent" material on the internet); ''[[Iancu v. Brunetti]]'', No. 18-302, slip op. at 11 (June 24, 2019) (federal law prohibiting the registration of immoral or scandalous trademarks); ''[[Ams. for Prosperity Found.]]'' (state law requiring charities to file forms disclosing information about donors).</span></ref>
The Supreme Court has recognized, however, that "there are substantial social costs ''created'' by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct."<ref><span id="ALDF_00025520">''[[Hicks]]'', 539 U.S. at 119 (upholding an ordinance banning from streets within a low-income housing development any person who is not a resident or employee and who "cannot demonstrate a legitimate business or social purpose for being on the premises"). The Supreme Court has also rejected application of the doctrine in, for example, ''[[Arnett v. Kennedy]]'', 416 U.S. 134, 158-64 (1974) (plurality opinion); ''[[Parker v. Levy]]'', 417 U.S. 733, 757-61 (1974); and ''[[New York v. Ferber]]'', 458 U.S. 747, 766-74 (1982).</span></ref> The Supreme Court has cautioned that facial "[i]nvalidation for overbreadth is 'strong medicine' that is not to be 'casually employed.'"<ref><span id="ALDF_00025521">''[[United States v. Williams]]'', 553 U.S. 285, 293 (2008) (quoting ''[[L.A. Police Dep't v. United Reporting Publ'g Corp.]]'', 528 U.S. 32, 39 (1999)).</span></ref> The requirement that a law must be "substantially" overbroad accounts for this concern.<ref><span id="ALDF_00025522">''[[Hicks]]'', 539 U.S. at 119-20.</span></ref> In addition, the Supreme Court has said "a state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts, and its deterrent effect on legitimate expression is both real and substantial."<ref><span id="ALDF_00025523">''[[Erznoznik]]'', 422 U.S. at 216.</span></ref> Further, the Court has said "that overbreadth analysis does not normally apply to commercial speech."<ref><span id="ALDF_00025524">''[[Bd. of Trs. v. Fox]]'', 492 U.S. 469, 481 (1989); ''see also, e.g.'', ''[[Bates v. State Bar of Ariz.]]'', 433 U.S. 350, 380 (1977) ("[T]he justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context.")</span></ref>
=====Vagueness, Statutory Language, and Free Speech=====
Vagueness is a due process doctrine that can be brought into play with regard to any criminal and many civil statutes,<ref><span id="ALDF_00025525">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'' [[{{ROOTPAGENAME}}/Fifth Amend.#Overview of Void for Vagueness Doctrine|Fifth Amend.: Overview of Void for Vagueness Doctrine]] through [[{{ROOTPAGENAME}}/Fifth Amend.#Laws That Establish Permissible Criminal Sentences|Fifth Amend.: Laws That Establish Permissible Criminal Sentences]].</span></ref> but it has a special significance when applied to governmental restrictions of speech: fear that a vague restriction may apply to one's speech may deter constitutionally protected speech as well as constitutionally unprotected speech.<ref><span id="ALDF_00025526">''See, e.g.'', ''[[Brown v. Ent. Merchs. Ass'n]]'', 564 U.S. 786, 807 (2011).</span></ref> In the First Amendment context, vagueness concerns are often combined with claims that the law is substantially overbroad and sweeps in too much protected speech.<ref><span id="ALDF_00025527">''See'' [[{{ROOTPAGENAME}}/Fifth Amend.#Overview of Void for Vagueness Doctrine|Fifth Amend.: Overview of Void for Vagueness Doctrine]]; ''see also, e.g.'', ''[[NAACP v. Button]]'', 371 U.S. 415, 432-33 (1963).</span></ref> Vagueness has been the basis for voiding numerous such laws, especially in the fields of loyalty oaths,<ref><span id="ALDF_00025528">''E.g.'', ''[[Cramp v. Bd. of Pub. Instruction]]'', 368 U.S. 278 (1961); ''[[Baggett v. Bullitt]]'', 377 U.S. 360 (1964); ''[[Keyishian v. Bd. of Regents]]'', 385 U.S. 589 (1967). ''See also'' ''[[Gentile v. State Bar of Nev.]]'', 501 U.S. 1030 (1991) (attorney discipline, extrajudicial statements).</span></ref> obscenity and indecency,<ref><span id="ALDF_00025529">''E.g.'', ''[[Winters v. New York]]'', 333 U.S. 507 (1948); ''[[Joseph Burstyn, Inc. v. Wilson]]'', 343 U.S. 495 (1952); ''[[Interstate Circuit v. City of Dallas]]'', 390 U.S. 676 (1968); ''[[Reno v. ACLU]]'', 521 U.S. 844, 870-874 (1997). In ''[[Nat'l Endowment for the Arts v. Finley]]'', 524 U.S. 569 (1998), the Court held that a "decency" criterion for the awarding of grants, which "in a criminal statute or regulatory scheme . . . could raise substantial vagueness concerns," was not unconstitutionally vague in the context of a condition on public subsidy for speech.</span></ref> and restrictions on public demonstrations.<ref><span id="ALDF_00025530">''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).</span></ref> However, outside of the overbreadth context, the Court has rejected vagueness challenges where "the statutory terms are clear in their application to [a plaintiff's] proposed conduct"--even when that application may implicate speech, and when the scope of the law "may not be clear in every application."<ref><span id="ALDF_00025531">''[[Holder v. Humanitarian L. Project]]'', 561 U.S. 1, 21 (2010); ''see also, e.g.'', ''[[Young v. Am. Mini Theatres]]'', 427 U.S. 50, 59-61 (1976) (rejecting vagueness challenge brought by litigants who were "not affected" by "any element of vagueness" in the challenged laws, where they had not shown the statute had a real and substantial deterrent effect on protected speech).</span></ref>
=====Prior Restraints on Speech=====
The Supreme Court has recognized that "liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship."<ref><span id="ALDF_00025532">''[[Near v. Minnesota ex rel. Olson]]'', 283 U.S. 697, 716 (1931).</span></ref> 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.<ref><span id="ALDF_00025533">3 Joseph Story, Commentaries on the Constitution of the United States &#167; 1876 (1833).</span></ref> The great struggle for liberty of the press was for the right to publish without a license what for a long time could be published only with a license.<ref><span id="ALDF_00025534">''[[Lovell v. Griffin]]'', 303 U.S. 444, 451 (1938); ''[[Near]]'', 283 U.S. at 713.</span></ref> Given this history, the Supreme Court reviews "[a]ny system of prior restraints of expression" with "a heavy presumption against its constitutional validity."<ref><span id="ALDF_00025535">''[[Bantam Books v. Sullivan]]'', 372 U.S. 58, 70 (1963).</span></ref> To state this another way, the government "carries a heavy burden of showing justification for the imposition of such a restraint."<ref><span id="ALDF_00025536">''[[Org. 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).</span></ref>
The United States Supreme Court's first encounter with a law imposing a prior restraint came in ''[[Near v. Minnesota ex rel. Olson]]'', in which a 5-4 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.<ref><span id="ALDF_00025537">''[[Near]]'', 283 U.S. at 702, 723.</span></ref> An injunction had been issued after the newspaper in question had printed a series of articles tying local officials to gangsters.<ref><span id="ALDF_00025538">''Id.'' at 704.</span></ref> Although the dissenters maintained that the injunction constituted no prior restraint, because that doctrine applied to prohibitions of publication without advance approval of an executive official,<ref><span id="ALDF_00025539">''Id.'' at 733-36 (Butler, J., dissenting).</span></ref> the majority deemed it "the essence of censorship" that, in order to avoid a contempt citation, the newspaper would have to clear future publications in advance with the judge.<ref><span id="ALDF_00025540">''Id.'' at 713 (majority opinion).</span></ref> Recognizing that liberty of the press to scrutinize closely the conduct of public affairs was essential, Chief Justice Charles Hughes stated: "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."<ref><span id="ALDF_00025541">''Id.'' at 720 (emphasis added).</span></ref> The Court, however, did not explore the kinds of restrictions to which the term "prior restraint" would apply other than to assert that prior restraint would only be permissible in "exceptional cases."<ref><span id="ALDF_00025542">''Id.'' at 716.</span></ref>
The Supreme Court has written that "[t]he special vice of a prior restraint is that communication will be suppressed . . . before an adequate determination that it is unprotected by the First Amendment."<ref><span id="ALDF_00025543">''[[Pittsburgh Press Co. v. Pittsburgh Comm'n on Hum. Rels.]]'', 413 U.S. 376, 390 (1973); ''see also'' ''[[Vance v. Univ. Amusement Co.]]'', 445 U.S. 308, 315-16 (1980) ("[T]he burden of supporting an injunction against a future exhibition [of allegedly obscene motion pictures] is even heavier than the burden of justifying the imposition of a criminal sanction for a past communication.").</span></ref> The prohibition on prior restraint, thus, essentially limits restraints until a final judicial determination is made that the First Amendment does not protect the restricted speech. For example, it limits temporary restraining orders and preliminary injunctions pending final judgments rather than permanent injunctions following final judgments that the First Amendment does not protect the restricted speech.<ref><span id="ALDF_00025544">See Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke L.J. 147, 169-71 (1998).</span></ref>
In a number of cases during the mid-1900s, the Court invoked the doctrine of prior restraint to strike down restrictions on First Amendment rights, including 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.<ref><span id="ALDF_00025545">''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). Some of these cases involved both free speech and free exercise rights. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice during the 1940s and 1950s|First Amend.: Laws Neutral to Religious Practice during the 1940s and 1950s]].</span></ref> The doctrine that generally emerged from these early cases was that permit systems and prior licensing are constitutionally valid so long as the issuing official's discretion was limited to questions of time, place, and manner.<ref><span id="ALDF_00025546">''[[Cox v. New Hampshire]]'', 312 U.S. 569 (1941); ''[[Poulos v. New Hampshire]]'', 345 U.S. 395 (1953). In ''[[Carroll v. President &amp; 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. The ''[[Carroll]]'' Court held 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. The Court stated: "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).</span></ref> In a 1965 opinion, ''[[Freedman v. Maryland]]'', the Supreme Court clarified that in the noncriminal context, a prior restraint may be upheld only if it contains certain procedural safeguards.<ref><span id="ALDF_00025547">''[[Freedman v. Maryland]]'', 380 U.S. 51, 58 (1965).</span></ref> First, the burden must be on the government to prove that the speech is unprotected.<ref><span id="ALDF_00025548">''Id.''</span></ref> Second, the restraint may not "be administered in a manner which would lend an effect of finality to the censor's determination whether [speech] constitutes protected expression."<ref><span id="ALDF_00025549">''Id.''</span></ref> To meet this second requirement, a statute or "authoritative judicial construction" must ensure "that the censor will, within a specified brief period, either issue a license or go to court to restrain" the speech.<ref><span id="ALDF_00025550">''Id.'' at 59. The Court further explained that "[a]ny restraint imposed in advance of a final judicial determination on the merits must . . . be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution," and "the procedure must . . . assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license." ''Id.'' at 59. 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).</span></ref> Content-neutral time, place, and manner regulations do not have to satisfy the procedural safeguards of ''[[Freedman]]''--although pursuant to those early cases, they still must "contain adequate standards to guide the official's decision and render it subject to effective judicial review."<ref><span id="ALDF_00025551">''[[Thomas v. Chi. Park Dist.]]'', 534 U.S. 316, 322-23 (2002).</span></ref>
The Court has also encountered the doctrine in the national security area, for example, when the government attempted to enjoin press publication of classified documents pertaining to the Vietnam War<ref><span id="ALDF_00025552">''[[New York Times Co. v. United States]]'', 403 U.S. 713 (1971). The vote was 6-3, with Justices Hugo Black, William O. Douglas, William Brennan, Potter Stewart, Byron White, and Thurgood Marshall in the majority and Chief Justice Warren Burger and Justices John Harlan and Harry Blackmun in the minority. Each Justice issued an opinion.</span></ref> 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.<ref><span id="ALDF_00025553">The three dissenters thought such restraint appropriate in this case. ''Id.'' at 748, 752, 759. Justice Potter 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 Byron White did not endorse any specific phrasing of a standard. ''Id.'' at 730-33. Justice William 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. 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. 1975), ''cert. denied'', 421 U.S. 992 (1975); ''[[United States v. Marchetti]]'', 446 F.2d 1309 (4th Cir.), ''cert. denied'', 409 U.S. 1063 (1972).</span></ref>
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.<ref><span id="ALDF_00025554">''[[Nebraska Press Ass'n v. Stuart]]'', 427 U.S. 539 (1976).</span></ref> Though agreed as to the result, the Justices were divided as to whether "gag orders" were ever permissible and if so what the standards for imposing them were. The majority opinion used a now-discredited formulation of the "clear and present danger" test and considered as factors in any decision on the imposition of a restraint upon press reporters "(a) the nature and extent of pretrial news coverage; (b) whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity; and (c) how effectively a restraining order would operate to prevent the threatened danger."<ref><span id="ALDF_00025555">''Id.'' at 562 (quoting ''[[United States v. Dennis]]'', 183 F.2d 201, 212 (2d Cir. 1950), ''aff'd'', [http://cdn.loc.gov/service/ll/usrep/usrep341/usrep341494/usrep341494.pdf 341 U.S. 494, 510 (1951)]). Applying the tests, the Court 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. For more information on the Court's movement away from the clear-and-present danger standard, see [[{{ROOTPAGENAME}}/First Amend.#Incitement Movement from Clear and Present Danger Test|First Amend.: Incitement Movement from Clear and Present Danger Test]].</span></ref> Though the Court found that one seeking a restraining order must meet "the heavy burden of demonstrating, in advance of trial, that without a prior restraint a fair trial would be denied," it refused to "rule out the possibility of showing the kind of threat to fair trial rights that would possess the requisite degree of certainty to justify restraint."<ref><span id="ALDF_00025556">''[[Nebraska Press Ass'n]]'', 427 U.S. at 569-70. The Court distinguished between reporting on judicial proceedings held in public and reporting of information gained from other sources, but found that a heavy burden must be met to secure a prior restraint on either. ''Id.'' at 570. ''See also'' ''[[Oklahoma Publ'g Co. v. Dist. Ct.]]'', 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 Publ'g Co.]]'', 443 U.S. 97 (1979).</span></ref> On a different level, however, are orders that restrain the press as a party to litigation in the dissemination of information obtained through pretrial discovery. In ''[[Seattle Times Co. v. Rhinehart]]'', the Court determined that such orders protecting parties from abuses of discovery require "no heightened First Amendment scrutiny."<ref><span id="ALDF_00025557"> [http://cdn.loc.gov/service/ll/usrep/usrep467/usrep467020/usrep467020.pdf 467 U.S. 20, 36 (1984)]. The decision was unanimous, all other Justices joining Justice Lewis Powell's opinion for the Court, but Justices William Brennan and Thurgood Marshall noting additionally that under the facts of the case important interests in privacy and religious freedom were being protected. ''Id.'' at 37, 38.</span></ref>
=====State Action Doctrine and Free Speech=====
The First Amendment by its terms applies only to laws enacted by Congress and not to the actions of private persons.<ref><span id="ALDF_00025558">Through interpretation of the Fourteenth Amendment, the prohibition extends to the states as well. ''See'' Bill of Rights: The Fourteenth Amendment and Incorporation. Of course, the First Amendment also applies to the non-legislative branches of government--to every "government agency--local, state, or federal." ''[[Herbert v. Lando]]'', 441 U.S. 153, 168 n.16 (1979).</span></ref> As such, the First Amendment is subject to a "state action" (or "governmental action") limitation similar to that applicable to the Fifth and Fourteenth Amendments.<ref><span id="ALDF_00025559">''See, e.g.'', [[{{ROOTPAGENAME}}/First Amend.#State Action Doctrine and Free Speech|First Amend.: State Action Doctrine and Free Speech]].</span></ref> The Supreme Court has stated that "a private entity can qualify as a state actor in a few limited circumstances," such as "[1] when the private entity performs a traditional, exclusive public function; [2] when the government compels the private entity to take a particular action; or [3] when the government acts jointly with the private entity."<ref><span id="ALDF_00025560">''[[Manhattan Cmty. Access Corp. v. Halleck]]'', No. 17-702, slip op. at 6 (U.S. June 17, 2019) (internal citations omitted) (citing ''[[Jackson v. Metro. Edison Co.]]'', 419 U.S. 345, 352-54 (1974), ''[[Blum v. Yaretsky]]'', 457 U.S. 991, 1004-05 (1982), and ''[[Lugar v. Edmondson Oil Co.]]'', 457 U.S. 922, 941-42 (1982), respectively).</span></ref> In addition, some private entities established by the government to carry out governmental objectives may qualify as state actors for purposes of the First Amendment. For example, in ''[[Lebron v. National Railroad Passenger Corp.]]'', the Court held that the national passenger train company Amtrak, "though nominally a private corporation," qualified as "an agency or instrumentality of the United States" for purposes of the First Amendment.<ref><span id="ALDF_00025561"> [http://cdn.loc.gov/service/ll/usrep/usrep513/usrep513374/usrep513374.pdf 513 U.S. 374, 383, 394 (1995)]; see also ''[[Dep't of Transp. v. Ass'n of Am. R.R.]]'', 575 U.S. 43, 55 (2015) (extending the holding of ''[[Lebron]]'', such that Amtrak was considered a governmental entity "for purposes of" the Fifth Amendment due process and separation-of-powers claims presented by the case).</span></ref> It did not matter, in the Court's view, that the federal statute establishing Amtrak expressly stated that Amtrak was not a federal agency because Amtrak was "established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees."<ref><span id="ALDF_00025562">''[[Lebron]]'', 513 U.S. at 391-93, 398.</span></ref>
Starting with the "public function" test, the Court extended the First Amendment to apply to the actions of a private party in ''[[Marsh v. Alabama]]'', barring the punishment of a resident of a company-owned town for distributing religious literature.<ref><span id="ALDF_00025563">''[[Marsh v. Alabama]]'', 326 U.S. 501, 509 (1946). A state statute "ma[de] it a crime to enter or remain on the premises of another after having been warned not to do so"; the resident had been warned that, pursuant to a company policy, she could not distribute religious literature without a permit, and she subsequently disregarded that warning and refused to leave a sidewalk. ''Id.'' at 503-04. Accordingly, although the case involved a criminal prosecution brought by the State of Alabama, liability turned on the ''town's'' ability to prevent residents from distributing literature without a permit. ''See'' ''id.''</span></ref> While the town was owned by a private corporation, "it ha[d] all the characteristics of any other American town," including residences, businesses, streets, utilities, public safety officers, and a post office.<ref><span id="ALDF_00025564">''Id.'' at 502-03.</span></ref> Under these circumstances, the Court held that "the corporation's property interests" did not "settle the question"<ref><span id="ALDF_00025565">''Id.'' at 505.</span></ref>: "[w]hether a corporation or a municipality owns or possesses the town[,] the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free."<ref><span id="ALDF_00025566">''Id.'' at 507. ''See also'' ''id.'' at 508 (noting that residents of company towns, like residents of other towns, "must make decisions which affect the welfare of community and nation," and that to do this, they must have access to "uncensored" information).</span></ref> Consequently, the corporation could not be permitted "to govern a community of citizens" in a way that "restrict[ed] their fundamental liberties."<ref><span id="ALDF_00025567">''Id.'' at 509.</span></ref>
Since ''[[Marsh]]'' was issued in 1946, however, it has largely been limited to the facts presented in that case, and applies only if a private entity exercises "powers traditionally ''exclusively'' reserved to the State."<ref><span id="ALDF_00025568">''[[Jackson v. Metro. Edison Co.]]'', 419 U.S. 345, 352 (1974) (emphasis added). ''Accord'' ''[[Lugar v. Edmonson Oil Co.]]'', 457 U.S. 922, 939 (1982); ''[[Flagg Bros., Inc. v. Brooks]]'', 436 U.S. 149, 158-59 (1978).</span></ref> The Supreme Court extended the ''[[Marsh]]'' decision in 1968: in ''[[Amalgamated Food Employees Union v. Logan Valley Plaza]]'', the Court held that a private shopping mall could not prevent individuals from peacefully picketing on the premises, noting similarities between "the business block in ''[[Marsh]]'' and the shopping center" at issue in that case.<ref><span id="ALDF_00025569"> [http://cdn.loc.gov/service/ll/usrep/usrep391/usrep391308/usrep391308.pdf 391 U.S. 308, 317 (1968)]. In dissent, Justice Hugo Black would have ruled that the picketers could not, "under the guise of exercising First Amendment rights, trespass on . . . private property for the purpose of picketing." ''Id.'' at 329 (Black, J., dissenting).</span></ref> However, the Court subsequently disclaimed ''[[Logan Valley]]'' in ''[[Hudgens v. NLRB]]'', rejecting the idea that "large self-contained shopping center[s]" are "the functional equivalent of a municipality."<ref><span id="ALDF_00025570">''[[Hudgens v. NLRB]]'', 424 U.S. 507, 520 (1976).</span></ref> Instead, the Court held that in ''[[Hudgens]]'', where a shopping center manager had threatened to arrest picketers for trespassing, "the constitutional guarantee of free expression ha[d] no part to play."<ref><span id="ALDF_00025571">''Id.'' at 521.</span></ref> As a result, the picketers "did not have a First Amendment right to enter this shopping center for the purpose of advertising their strike."<ref><span id="ALDF_00025572">''Id.''</span></ref> In another decision in which the Supreme Court held that the First Amendment did not prevent a shopping center from banning the distribution of handbills, the Court distinguished ''[[Marsh]]'' by noting that "the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State."<ref><span id="ALDF_00025573">''[[Lloyd Corp. v. Tanner]]'', 407 U.S. 551, 569 (1972).</span></ref> By contrast, the disputed shopping center had not assumed "municipal functions or power."<ref><span id="ALDF_00025574">''Id.''</span></ref> The fact that the shopping center was generally open to the public did not qualify as a "dedication of [the] privately owned and operated shopping center to public use" sufficient "to entitle respondents to exercise therein the asserted First Amendment rights."<ref><span id="ALDF_00025575">''Id.'' at 569-70.</span></ref>
More recently, in ''[[Manhattan Community Access Corp. v. Halleck]]'', the Supreme Court held that Manhattan Neighborhood Network (MNN), a private, nonprofit corporation designated by New York City to operate public access channels in Manhattan, was not a state actor for purposes of the First Amendment because it did not exercise a "traditional, exclusive public function."<ref><span id="ALDF_00025576">''[[Manhattan Cmty. Access Corp. v. Halleck]]'', No. 17-702, slip op. at 2-3, 6 (U.S. June 17, 2019)</span></ref> Emphasizing the limited number of functions that met this standard under the Court's precedents,<ref><span id="ALDF_00025577">''Id.'' at 6-7 (stating that while "running elections" and "operating a company town" qualify as traditional, exclusive public functions, "running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity" do not).</span></ref> the Court reasoned that operating public access channels "has not traditionally and exclusively been performed by government" because "a variety of private and public actors" had performed the function since the 1970s.<ref><span id="ALDF_00025578">''Id.'' at 7.</span></ref> Moreover, the Court reasoned, "merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints."<ref><span id="ALDF_00025579">''Id.'' at 10.</span></ref>
Apart from the factual circumstances presented by the company town that exercises powers "traditionally" and "exclusively" held by the government,<ref><span id="ALDF_00025580">''[[Jackson v. Metro. Edison Co.]]'', 419 U.S. 345, 352 (1974).</span></ref> the Court has sometimes applied the First Amendment against private parties if they have a "sufficiently close relationship" to the government.<ref><span id="ALDF_00025581">''See'' ''[[Pub. Utils. Comm'n v. Pollak]]'', 343 U.S. 451, 462 (1952) (holding that such a relationship existed where the private company operated a public utility that represented a "substantial monopoly" under congressional authority and, more importantly, the company operated "under the regulatory supervision" of a governmental agency, and the particular action being challenged involved action by that agency).</span></ref> Such circumstances may exist where a private company "is subject to extensive state regulation"--although government regulation alone is not sufficient to establish the state action requirement.<ref><span id="ALDF_00025582">''[[Jackson v. Metro. Edison Co.]]'', 419 U.S. 345, 350 (1974); ''see also'' ''[[Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n]]'', 531 U.S. 288, 295 (2001).</span></ref> Instead, the inquiry in such a case is "whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself."<ref><span id="ALDF_00025583">''[[Jackson]]'', 419 U.S. at 351.</span></ref> Accordingly, for example, in ''[[Manhattan Community Access Corp.]]'', the Supreme Court also held that the city's selection of MNN and the state's extensive regulation of MNN did not in and of themselves create state action.<ref><span id="ALDF_00025584">''See'' ''id.'' at 11 (reasoning that absent performance of a traditional and exclusive public function, a private entity is not a state actor merely because the government licenses, contracts with, grants a monopoly to, or subsidizes it); ''id.'' at 12 (reasoning that state regulations that "restrict MNN's editorial discretion" and effectively require it to "operate almost like a common carrier" do not make MNN a state actor). The majority also rejected the argument that MNN was simply standing in for New York City in managing government property, reasoning that the record did not show that any government owned, leased, or otherwise had a property interest in the public access channels or the broader cable network in which they operated. ''Id.'' at 14-15.</span></ref>
The question of when broadcast companies are engaged in governmental action subject to the First Amendment has sometimes been a difficult one. In ''[[Columbia Broadcasting System v. Democratic National Committee]]'', the Court considered whether a radio station that had a license from the government to broadcast over airwaves in the public domain needed to comply with the First Amendment when it sold air time to third parties.<ref><span id="ALDF_00025585"> [http://cdn.loc.gov/service/ll/usrep/usrep412/usrep412094/usrep412094.pdf 412 U.S. 94 (1973)].</span></ref> The radio station had a policy of refusing to sell air time to persons seeking to express opinions on controversial issues.<ref><span id="ALDF_00025586">''Id.'' at 98.</span></ref> Three Justices joined a plurality opinion concluding that the radio station was not engaged in governmental action when it enforced this policy.<ref><span id="ALDF_00025587">''Id.'' at 120 (plurality opinion of Burger, C.J., and Stewart and Rehnquist, JJ.).</span></ref> They reasoned that the federal government had not partnered with or profited from the broadcaster's decisions and that Congress had "affirmatively indicated" that broadcasters subject to federal law retained certain journalistic license.<ref><span id="ALDF_00025588">''Id.'' at 119-20.</span></ref> In the view of those Justices, if the Court were "to read the First Amendment to spell out governmental action in the circumstances presented . . . , few licensee decisions on the content of broadcasts or the processes of editorial evaluation would escape constitutional scrutiny."<ref><span id="ALDF_00025589">''Id.'' at 120.</span></ref> In contrast, three other Members of the Court would have held that the radio station was engaged in governmental action because of the degree of governmental regulation of broadcasters' activities and the station's use of the airwaves, a public resource.<ref><span id="ALDF_00025590">''Id.'' at 150 (Douglas, J., concurring in the judgment); ''id.'' at 172-73 (Brennan and Marshall, JJ., dissenting).</span></ref> And three Justices would not have decided the state action question.<ref><span id="ALDF_00025591">''See'' ''id.'' at 171 (Brennan, J., dissenting) (noting that Justices Byron White, Harry Blackmun, and Lewis Powell would not have reached the state action question).</span></ref> Nevertheless, these three Justices joined the Court's opinion concluding that even if the broadcaster was engaged in governmental action, the First Amendment did not require "a private right of access to the broadcast media."<ref><span id="ALDF_00025592">''Id.'' at 129 (majority opinion).</span></ref>
====Content-Based and Content-Neutral Regulation of Speech====
=====Overview of Content-Based and Content-Neutral Regulation of Speech=====
At its core, the First Amendment's Free Speech Clause prohibits the government from suppressing or forcing conformity with particular ideas or messages.<ref><span id="ALDF_00028000">''See'' ''[[Police Dep't of Chi. v. Mosley]]'', 408 U.S. 92, 95 (1972) (explaining that "above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content"); ''[[W. Va. State Bd. of Educ. v. Barnette]]'', 319 U.S. 624, 642 (1943) (opining that under the First Amendment, the government may not "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein").</span></ref> To guard against such abuses of power, the Supreme Court typically has subjected laws that "target speech based on its communicative content" to strict judicial scrutiny.<ref><span id="ALDF_00028001">''[[Reed v. Town of Gilbert]]'', 576 U.S. 155, 163-64 (2015); ''see also'' ''[[Citizens United v. FEC]]'', 558 U.S. 310, 340 (2010) ("Premised on mistrust of governmental power, the First Amendment stands against attempts to disfavor certain subjects or viewpoints."); ''[[Ashcroft v. ACLU]]'', 542 U.S. 656, 660 (2004) (to guard against content-based prohibitions as a "repressive force in the lives and thoughts of a free people," the Constitution "demands that content-based restrictions on speech be presumed invalid and that the Government bear the burden of showing their constitutionality" (internal citations omitted)).</span></ref> This rule applies not only to laws in the form of federal and state statutes and local ordinances,<ref><span id="ALDF_00028002">''E.g.,'' ''[[Reed]]'', 576 U.S. at 164 (holding that a town's sign ordinance violated the First Amendment).</span></ref> but also to government regulations and policies<ref><span id="ALDF_00028003">''See, e.g.'', ''[[Widmar v. Vincent]]'', 454 U.S. 263, 264, 277 (1981) (holding that a state university's policy to open its buildings to student groups while denying student groups access "for purposes of religious worship or religious teaching" violated the First Amendment).</span></ref> and judicial codes of conduct.<ref><span id="ALDF_00028004">''See'' ''[[Republican Party v. White]]'', 536 U.S. 765, 768 (2002) (holding unconstitutional an ethical standard promulgated by a state supreme court that prohibited candidates for judicial office from "announc[ing]" their "views on disputed legal or political issues").</span></ref> Additionally, the rule applies not only to outright bans or restrictions on speech but also to financial or other regulatory burdens on speech.<ref><span id="ALDF_00028005">''See'' ''[[Simon &amp; Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd.]]'', 502 U.S. 105, 116 (1991) (explaining that the "government's ability to impose content-based burdens on speech raises the specter that the government may effectively drive certain ideas or viewpoints from the marketplace").</span></ref> Although this essay focuses on when a law is content based or content neutral and the legal effects of that determination, the free speech principles disfavoring content-based discrimination also apply to other forms of government action,<ref><span id="ALDF_00028006">''See, e.g.'', ''[[Rankin v. McPherson]]'', 483 U.S. 378, 390-92 (1987) (holding that a county law enforcement office unlawfully fired a clerical employee based on the content of her speech even under the more lenient standards applicable when the government is acting as employer).</span></ref> including the enforcement of content-neutral laws.<ref><span id="ALDF_00028007">''See, e.g.'', ''[[Cohen v. California]]'', 403 U.S. 15, 18 (1971) (reversing the judgment of conviction of a defendant who was arrested for disorderly conduct in a courthouse because of the content of the message inscribed on his jacket).</span></ref>
The Court's approach to determining whether a law targets speech based on its content has shifted over time.<ref><span id="ALDF_00028008">''See'' [[{{ROOTPAGENAME}}/First Amend.#Development of a Judicial Approach to Content-Based Speech Laws|First Amend.: Development of a Judicial Approach to Content-Based Speech Laws]].</span></ref> In the 1980s and early 1990s, for example, the Court examined both the text and justifications for a law, but sometimes placed more emphasis on the latter, asking whether the government's regulatory purpose was related to the suppression of a particular message or form of expression.<ref><span id="ALDF_00028009">''[[Ward v. Rock Against Racism]]'', 491 U.S. 781, 791 (1989).</span></ref> The Court's 2015 decision in ''[[Reed v. Town of Gilbert]]'' heralded a more text-focused approach, clarifying that content-based distinctions "on the face" of a law warrant heightened scrutiny even if the government advances a content-neutral justification for that law.<ref><span id="ALDF_00028010">''[[Reed]]'', 576 U.S. at 163-64.</span></ref>
Under ''[[Reed]]'', a law can be content based "on its face" or due to a discriminatory purpose or justification.<ref><span id="ALDF_00028011">''Id.''</span></ref> A facially content-based law "draws distinctions based on the message a speaker conveys."<ref><span id="ALDF_00028012">''Id.'' at 163.</span></ref> Such a law might define regulated speech by "particular subject matter" or by "its function or purpose."<ref><span id="ALDF_00028013">''Id.''</span></ref> The law might even regulate speech on the basis of the particular views expressed.<ref><span id="ALDF_00028014">''Id.'' Because the Supreme Court considers viewpoint discrimination "an egregious form of content discrimination," cases analyzing viewpoint-based laws are discussed separately in a later essay. ''[[Rosenberger v. Rector &amp; Visitors of the Univ. of Va.]]'', 515 U.S. 819, 829 (1995). ''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Viewpoint-Based Regulation of Speech|First Amend.: Overview of Viewpoint-Based Regulation of Speech]].</span></ref> By comparison, a law that is content neutral on its face still may be deemed content based if the law "cannot be justified without reference to the content of the regulated speech," or was adopted "because of disagreement with the message [the speech] conveys."<ref><span id="ALDF_00028015">''[[Reed]]'', 576 U.S. at 164 (quoting ''[[Ward v. Rock Against Racism]]'', 491 U. S. 781, 791 (1989)).</span></ref>
After ''[[Reed]]'', lower courts diverged over whether a law was necessarily content based on its face if its application or enforcement turned on the content of the speech at issue. In ''[[City of Austin v. Reagan National Advertising of Austin, LLC]]'', the Court clarified that a law is facially content based if it applies to particular speech because of the subject matter, topic, or viewpoint expressed--that is, if it turns on the "substantive message" conveyed.<ref><span id="ALDF_00028016">No. 20-1029, slip op. at 6, 8-9 (Apr. 21, 2022).</span></ref> A law may be facially content neutral, the Court explained, even if "a reader must ask: who is the speaker and what is the speaker saying" to determine if the law applies,<ref><span id="ALDF_00028017">''Id.'' at 6 (internal quotation marks omitted).</span></ref> so long as that examination is "only in service of drawing neutral" lines that are "agnostic as to content."<ref><span id="ALDF_00028018">''Id.''</span></ref> Thus, in ''[[City of Austin]]'', the Court upheld an ordinance that placed certain restrictions only on signs advertising off-premises businesses, even though application of those restrictions depended upon the content of the sign relative to its location.<ref><span id="ALDF_00028019">''Id.'' at 8.</span></ref>As a general matter, content-based laws are "presumptively unconstitutional" and subject to a strict scrutiny standard of judicial review.<ref><span id="ALDF_00028020">''[[Reed v. Town of Gilbert]]'', 576 U.S. 155, 163 (2015).</span></ref> This is a difficult test for the government to satisfy.<ref><span id="ALDF_00028021">''See'' ''[[Bolger v. Youngs Drug Prods. Corp.]]'', 463 U.S. 60, 65 (1983) ("With respect to noncommercial speech, this Court has sustained content-based restrictions only in the most extraordinary circumstances.").</span></ref> Under strict scrutiny, the government must show that its law serves a compelling governmental interest and is narrowly tailored to advance that interest.<ref><span id="ALDF_00028022">''[[United States v. Playboy Ent. Grp.]]'', 529 U.S. 803, 813 (2000).</span></ref> Narrow tailoring in this context typically means that "[i]f a less restrictive alternative would serve the [g]overnment's purpose, the legislature must use that alternative."<ref><span id="ALDF_00028023">''Id.''</span></ref> Thus, in challenges to content-based laws under strict scrutiny, the government bears the burden of proving that any proposed alternatives are less effective than the challenged law.<ref><span id="ALDF_00028024">''[[Ashcroft v. ACLU]]'', 542 U.S. 656, 665 (2004).</span></ref>
The Court has recognized some exceptions to the general rule that content-based laws receive strict scrutiny, two of which reflect the Court's "limited categorical approach" to First Amendment law.<ref><span id="ALDF_00028025">''[[R.A.V. v. City of St. Paul]]'', 505 U.S. 377, 383 (1992).</span></ref> Specifically, the Court has subjected laws regulating "commercial speech" to an intermediate form of scrutiny.<ref><span id="ALDF_00028026">''See'' [[{{ROOTPAGENAME}}/First Amend.#Commercial Speech Early Doctrine|First Amend.: Commercial Speech Early Doctrine]] to [[{{ROOTPAGENAME}}/First Amend.#Central Hudson Test and Current Doctrine|First Amend.: Central Hudson Test and Current Doctrine]].</span></ref> Even in the commercial context, though, the Court has applied or considered applying strict scrutiny to laws that completely ban a subset of commercial speech because of its content or that are aimed at particular commercial speakers.<ref><span id="ALDF_00028027">''E.g.'', ''[[Sorrell v. IMS Health Inc.]]'', 564 U.S. 552, 565 (2011); ''[[44 Liquormart, Inc. v. Rhode Island]]'', 517 U.S. 484, 501-04 (1996) (plurality opinion); ''[[Cincinnati v. Discovery Network]]'', 507 U.S. 410, 429 (1993).</span></ref> In addition to the category of commercial speech (which is protected speech), the Court has recognized some narrowly defined categories of "unprotected speech" that the government may regulate ''because of'' their harmful content,<ref><span id="ALDF_00028028">''[[United States v. Stevens]]'', 559 U.S. 460, 468 (2010); ''[[R.A.V.]]'', 505 U.S. at 383; ''[[New York v. Ferber]]'', 458 U.S. 747, 763-64 (1982).</span></ref> such as "true threats" and "defamation."<ref><span id="ALDF_00028029">''See'' [[{{ROOTPAGENAME}}/First Amend.#Fighting Words|First Amend.: Fighting Words]]; [[{{ROOTPAGENAME}}/First Amend.#True Threats|First Amend.: True Threats]]; [[{{ROOTPAGENAME}}/First Amend.#Defamation|First Amend.: Defamation]].</span></ref> Within those categories, the government may not draw additional content-based distinctions unless "the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable."<ref><span id="ALDF_00028030">''[[R.A.V.]]'', 505 U.S. at 388.</span></ref>
There are also some specific contexts in which the Court has allowed for certain types of content-based distinctions,<ref><span id="ALDF_00028031">''See'' ''[[FCC v. Pacifica Found.]]'', 438 U.S. 726, 744 (1978) (plurality opinion) (explaining that "[b]oth the content and the context of speech are critical elements of First Amendment analysis").</span></ref> including schools,<ref><span id="ALDF_00028032">''[[Mahanoy Area Sch. Dist. v. B.L.]]'', No. 20-255, slip op. at 5 (U.S. June 23, 2021) (identifying three categories of student speech that schools may regulate). ''See'' [[{{ROOTPAGENAME}}/First Amend.#School Free Speech and Government as Educator|First Amend.: School Free Speech and Government as Educator]].</span></ref> prisons,<ref><span id="ALDF_00028033">''E.g.'', ''[[Beard v. Banks]]'', 548 U.S. 521, 526 (2006). ''See'' [[{{ROOTPAGENAME}}/First Amend.#Prison Free Speech and Government as Prison Administrator|First Amend.: Prison Free Speech and Government as Prison Administrator]].</span></ref> and nonpublic forums (that is, government-owned property opened for specific or limited public purposes).<ref><span id="ALDF_00028034">''[[Minn. Voters All. v. Mansky]]'', 138 S. Ct. 1876, 1885 (2018). ''See'' [[{{ROOTPAGENAME}}/First Amend.#The Public Forum|First Amend.: The Public Forum]].</span></ref> Additionally, the Court has held that when the government is providing a public subsidy, such as a tax exemption, or funding a government program, it may draw some types of content-based distinctions to identify the activities it seeks to subsidize and to define the limits of the government program.<ref><span id="ALDF_00028035">''See'' [[{{ROOTPAGENAME}}/First Amend.#Conditions on Tax Exemptions|First Amend.: Conditions on Tax Exemptions]]; [[{{ROOTPAGENAME}}/First Amend.#Conditions on Federal Funding|First Amend.: Conditions on Federal Funding]].</span></ref>
The Court has distinguished content-based laws from content-neutral laws, while acknowledging that deciding whether a particular law "is content based or content neutral is not always a simple task."<ref><span id="ALDF_00028036">''[[Turner Broad. Sys. v. FCC]]'', 512 U.S. 622, 642 (1994).</span></ref> A content-neutral law that imposes only an incidental burden on speech "will be sustained if 'it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.'"<ref><span id="ALDF_00028037">''Id.'' at 662 (quoting ''[[United States v. O'Brien]]'', 391 U.S. 367, 376 (1968)).</span></ref> Similarly, the government "may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.'"<ref><span id="ALDF_00028038">''[[Ward v. Rock Against Racism]]'', 491 U.S. 781, 791 (1989) (quoting ''[[Clark v. Cmty. for Creative Non-Violence]]'', 468 U.S. 288, 293 (1984)). For more discussion of the time, place, and manner doctrine, see [[{{ROOTPAGENAME}}/First Amend.#The Public Forum|First Amend.: The Public Forum]].</span></ref>
=====Development of a Judicial Approach to Content-Based Speech Laws=====
As explained in [[{{ROOTPAGENAME}}/First Amend.#Overview of Content-Based and Content-Neutral Regulation of Speech|First Amend.: Overview of Content-Based and Content-Neutral Regulation of Speech]], laws regulating protected speech on the basis of its content are generally subject to strict judicial scrutiny.<ref><span id="ALDF_00028039">''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Content-Based and Content-Neutral Regulation of Speech|First Amend.: Overview of Content-Based and Content-Neutral Regulation of Speech]].</span></ref> As the Supreme Court has acknowledged, however, deciding whether a particular law "is content based or content neutral is not always a simple task."<ref><span id="ALDF_00028040">''[[Turner Broad. Sys. v. FCC]]'', 512 U.S. 622 (1994).</span></ref> When confronted with the question, the Court has examined a law's text (that is, the face of the law) and considered arguments about the law's justification, purpose, design, and operation.
Whether a content-based distinction on the face of the law rendered that law presumptively invalid has changed over time, with earlier cases lacking a consistent approach.<ref><span id="ALDF_00028041">''Compare'' ''[[Erznoznik v. Jacksonville]]'', 422 U.S. 205, 209-11 (1975) (suggesting that intermediate scrutiny was inappropriate for an ordinance prohibiting drive-in movie theaters from showing films containing nudity when their screens were visible from a public place, because the ordinance "discriminate[d] among movies solely on the basis of content"), ''with'' ''[[Young v. Am. Mini Theatres]]'', 427 U.S. 50, 71-73 (1976) (viewing an ordinance restricting the location of "adult" movie theatres as a permissible restriction on the "place" where films could be exhibited even though the law distinguished among films based on their content).</span></ref> For example, in the 1980s and early 1990s, the Court sometimes considered laws that drew content-based distinctions on their face to be content neutral (and subject to a form of intermediate scrutiny) so long as they were supported by a content-neutral justification.<ref><span id="ALDF_00028042">''See'' ''[[Ward v. Rock Against Racism]]'', 491 U.S. 781, 791 (1989) (explaining that the "principal inquiry in determining content neutrality" is "whether the government has adopted a regulation of speech because of disagreement with the message it conveys" and that the "government's purpose is the controlling consideration"); ''see, e.g.'', ''[[Members of City Council v. Taxpayers for Vincent]]'', 466 U.S. 789, 791 n.1, 804 (1984) (applying intermediate scrutiny to an ordinance that excepted certain historical and cultural markers from a general prohibition on posting signs on public property). Relatedly, the Court has upheld some zoning restrictions on adult theatres on the grounds that the restrictions were based on the undesirable "secondary effects" of such theatres rather than the content of the movies shown there. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Content-Neutral Laws Burdening Speech|First Amend.: Content-Neutral Laws Burdening Speech]].</span></ref> This approach started to shift in the mid-1990s, as the Court began to clarify that a content-neutral purpose cannot "save a law which, on its face, discriminates based on content."<ref><span id="ALDF_00028043">''[[Turner Broad. Sys. v. FCC]]'', 512 U.S. 622, 642-43 (1994).</span></ref>
In its 2015 decision in ''[[Reed v. Town of Gilbert]]'', the Court squarely held that a facially content-based law is subject to strict scrutiny "regardless of the government's benign motive, content-neutral justification, or lack of 'animus toward the ideas contained' in the regulated speech."<ref><span id="ALDF_00028044">''[[Reed]]'', 576 U.S. at 165 (quoting ''[[Cincinnati v. Discovery Network, Inc.]]'', 507 U. S. 410, 429 (1993)).</span></ref> Thus, under the approach set out in ''[[Reed]]'', a law may be content based, and thus presumptively unconstitutional, if it draws content-based distinctions on its face ''or'' if it reflects a discriminatory purpose.<ref><span id="ALDF_00028045">''Id.''</span></ref>
=====Laws Making Facial Content-Based Distinctions Regarding Speech=====
The Supreme Court has recognized that the "First Amendment's hostility to content-based regulation extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic."<ref><span id="ALDF_00028046">''[[Consol. Edison Co. v. Pub. Serv. Comm'n]]'', 447 U.S. 530, 537, 544 (1980) (citing ''[[Police Dep't of Chi. v. Mosley]]'', 408 U.S. 92, 95 (1972)).</span></ref> In 1980, the Court struck down a state order prohibiting private utility companies from including inserts in their billing envelopes discussing "controversial issues of public policy."<ref><span id="ALDF_00028047">''Id.'' at 533.</span></ref> The Court reasoned that the order imposed an impermissible content-based restriction even though it did "not favor either side of a political controversy," reaffirming the general rule that the government may not regulate speech based on its subject matter.<ref><span id="ALDF_00028048">''Id.'' at 537-39; ''see also'' ''[[FCC v. League of Women Voters]]'', 468 U.S. 364, 366, 383 (1984) (reasoning that a ban on "editorializing" by noncommercial broadcasting stations receiving federal funds was "defined solely on the basis of the content of the suppressed speech").</span></ref> The Court explained that to "allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth."<ref><span id="ALDF_00028049">''[[Consol. Edison Co.]]'', 447 U.S. at 538.</span></ref>
Drawing on these precedents, the Court set out the modern test for determining whether a law is facially content based in two decisions involving local sign ordinances. In its 2015 decision in ''[[Reed v. Town of Gilbert]]'', the Court held that a law is content based "on its face" if it "draws distinctions based on the message a speaker conveys."<ref><span id="ALDF_00028050">576 U.S. 155, 163 (2015).</span></ref> The Court explained that "[s]ome facial distinctions based on a message are obvious, defining regulated speech by particular subject matter, and others are more subtle, defining regulated speech by its function or purpose."<ref><span id="ALDF_00028051">''Id.''</span></ref> The ordinance at issue in ''[[Reed]]'' fell into the former category because it "single[d] out specific subject matter for differential treatment" by, for example, placing more onerous restrictions on "political" signs than on "ideological" signs.<ref><span id="ALDF_00028052">''Id.'' at 159-60, 169; ''see also'' ''[[Burson v. Freeman]]'', 504 U.S. 191, 197, 207, 211 (1992) (plurality opinion) (concluding that a state law prohibiting the solicitation of votes and the display or distribution of campaign materials within 100 feet of a polling place entrance was content based because the statute reached only political speech, not "other categories of speech, such as commercial solicitation," but concluding that the law nonetheless survived strict scrutiny); ''[[Metromedia, Inc. v. City of San Diego]]'', 453 U.S. 490, 493, 521 (1981) (plurality opinion) (striking down a billboard ordinance that "favor[ed] certain kinds of messages--such as onsite commercial advertising, and temporary political campaign advertisements--over others").</span></ref>
Other examples of laws that the Court has determined to be facially content based include a federal statute criminalizing the commercial sale of "depictions of animal cruelty,"<ref><span id="ALDF_00028053">''[[United States v. Stevens]]'', 559 U.S. 460, 468 (2010).</span></ref> a federal statute requiring cable television operators to scramble or restrict the daytime transmission of channels "primarily dedicated to sexually-oriented programming,"<ref><span id="ALDF_00028054">''[[United States v. Playboy Ent. Grp.]]'', 529 U.S. 803, 806, 811 (2000); ''see also'' ''[[Simon &amp; Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd.]]'', 502 U.S. 105, 115-18, 123 (1991) (holding that a state law imposed an unconstitutional, content-based burden on speech by requiring anyone who contracts with an accused or convicted person for a depiction of the person's crime to turn over any income from that work to the state's crime victims board); ''[[Erznoznik v. Jacksonville]]'', 422 U.S. 205, 211-12 (1975) (holding that an ordinance prohibiting drive-in movie theaters visible from public streets from showing films depicting nudity was an invalid, content-based prohibition).</span></ref> a federal statute restricting "indecent" and "patently offensive" internet communications,<ref><span id="ALDF_00028055">''[[Reno v. ACLU]]'', 521 U.S. 844, 868 (1997); ''see also'' ''[[Sable Commc'ns of Cal. v. FCC]]'', 492 U.S. 115, 122 (1989) (suggesting that a law banning "indecent" interstate commercial telephone communications regulated "the content of constitutionally protected speech"); ''[[Boos v. Barry]]'', 485 U.S. 312, 315, 334 (1988) (finding content based and holding unconstitutional a law banning the display of signs outside of an embassy that bring the foreign government of that embassy into "public disrepute").</span></ref> and a state law imposing a sales tax on general interest magazines but exempting religious, trade, and sports magazines.<ref><span id="ALDF_00028056">''[[Ark. Writers' Project, Inc. v. Ragland]]'', 481 U.S. 221, 223, 230-33 (1987) (holding that this "selective taxation" system violated the First Amendment).</span></ref>
Although ''[[Reed]]'' clarified the meaning of "content based" to some extent, courts continued to grapple with the question of whether a law is content based--and thus presumptively unconstitutional--whenever the government must read the speech at issue to determine the law's applicability or the speaker's compliance with the law.<ref><span id="ALDF_00028057">''[[City of Austin v. Reagan Nat'l Advert. of Austin, LLC]]'', No. 20-1029, slip op. at 6 (Apr. 21, 2022); ''[[Forsyth Cty. v. Nationalist Movement]]'', 505 U.S. 123, 134 (1992) (holding that a county ordinance requiring a permit to hold a public parade or assembly and a fee for "necesary and reasonable" police protection was content based as implemented because "[i]n order to assess accurately the cost of security for parade participants," the county "must necessarily examine the content of the message that is conveyed"). Other decisions of the Court sometimes framed the standard as whether the law turns on what a speaker says. ''See'' ''[[Holder v. Humanitarian Law Project]]'', 561 U.S. 1, 27 (2010) (holding that a federal statute prohibiting material support to foreign terrorist organizations was content based because whether the law would allow the plaintiffs to speak with a foreign terrorist organization "depends on what they say").</span></ref> In its 2022 decision in ''[[City of Austin v. Reagan National Advertising of Austin, LLC]]'', the Court rejected that formulation of the rule as "too extreme an interpretation of this Court's precedent."<ref><span id="ALDF_00028058">''[[City of Austin]]'', slip op. at 6.</span></ref> The case involved a city ordinance restricting "off-premises signs"--signs advertising or directing readers to businesses or events at another location, but not restricting signs advertising activities on the same premises. In practice, determining whether the restrictions applied required reading the sign to identify whether it advertised a business or event on or off of the premises where the sign was posted. In the majority's view, that ordinance was content neutral because it did not "single out any topic or subject matter for differential treatment."<ref><span id="ALDF_00028059">''Id.'' at 8.</span></ref> Instead, the ordinance distinguished signs based on a content-neutral factor--location--rather than their "substantive message."<ref><span id="ALDF_00028060">''Id.'' ''See'' [[{{ROOTPAGENAME}}/First Amend.#Content-Neutral Laws Burdening Speech|First Amend.: Content-Neutral Laws Burdening Speech]].</span></ref>
''[[City of Austin]]'' also addressed the statement in ''[[Reed]]'' that laws that distinguish speech based on its "function or purpose" are content based.<ref><span id="ALDF_00028061">''[[City of Austin]]'', slip op. at 11.</span></ref> The Court opined that not every "classification that considers function or purpose" is content based.<ref><span id="ALDF_00028062">''Id.''</span></ref> Instead, the Court suggested that defining regulated speech by its function is only problematic when function is used as a "proxy" for regulating content, such as when a legislature attempts to regulate political signs by describing regulated signs as those "designed to influence the outcome of an election."<ref><span id="ALDF_00028063">''Id.'' ''See'' ''[[McIntyre v. Ohio Elections Comm'n]]'', 514 U.S. 334, 345 (1995) (reasoning that a state's ban on anonymous campaign literature defined the regulated documents "by their content," which was "publications containing speech designed to influence the voters in an election").</span></ref>
As with laws that restrict a discrete category of speech, laws that exempt one category of speech from a broader speech restriction could also create a facial content-based distinction.<ref><span id="ALDF_00028064">''See'' ''[[Carey v. Brown]]'', 447 U.S. 455, 460-63, 471 (1980) (holding that a statute banning residential picketing but exempting labor picketing was a content-based restriction on speech that violated the First Amendment and the Equal Protection Clause); ''[[Police Dep't of Chi. v. Mosley]]'', 408 U.S. 92, 93, 102 (1972) (holding the same with respect to an ordinance banning picketing outside of schools).</span></ref> In ''[[Regan v. Time, Inc.]]'', the Court evaluated a statutory exception to a long-standing ban on photographic reproductions of currency,<ref><span id="ALDF_00028065">''[[Regan v. Time, Inc.]]'', 468 U.S. 641, 644 (1984) (plurality opinion).</span></ref> allowing certain publishers to use these photographs for "educational, historical, or newsworthy purposes."<ref><span id="ALDF_00028066">''Id.'' (quoting [https://uscode.house.gov/view.xhtml?req=(title:18%20section:504%20edition:prelim)%20OR%20(granuleid:USC-prelim-title18-section504)&amp;f=treesort&amp;num=0&amp;edition=prelim 18 U.S.C. &#167; 504](1)).</span></ref> The Court held that the purpose provision was "constitutionally infirm" because whether a photograph is "newsworthy" or "educational" requires the government to make a content-based judgment.<ref><span id="ALDF_00028067">''Id.'' at 648-49 (majority opinion). The Court ruled that the purpose provision was "unenforceable," but upheld other statutory exceptions allowing the photographs to be published subject to certain size and color limitations. ''Id.'' at 658-59 (plurality opinion).</span></ref>
The Court again struck down a content-based exception in ''[[Barr v. American Association of Political Consultants]]''.<ref><span id="ALDF_00028068">''[[Barr v. Am. Ass'n of Political Consultants]]'', No. 19-631, slip op. (U.S. July 6, 2020) (plurality opinion); ''id.'' at 1 (Gorsuch, J., concurring in the judgment in part and dissenting in part).</span></ref> That case concerned a 1991 federal law that, among other things, prohibited automated calls to cell phones, also known as "robocalls."<ref><span id="ALDF_00028069">''Id.'' at 1 (plurality opinion).</span></ref> Congress had added a provision in 2015 that exempted calls made to collect debt owed to the federal government, such as student loan debt, from the robocall restriction.<ref><span id="ALDF_00028070">''Id.''</span></ref> Five Justices held that the robocall restriction was impermissibly content based,<ref><span id="ALDF_00028071">''Id.'' at 9; ''id.'' at 3 (Gorsuch, J., concurring in the judgment in part and dissenting in part).</span></ref> with a different majority concluding that the appropriate remedy was to "sever" the government-debt exception.<ref><span id="ALDF_00028072">''Id.'' at 25 (plurality opinion); ''id.'' at 2 (Sotomayor, J., concurring in the judgment); ''id.'' at 1 (Breyer, J., concurring in the judgment with respect to severability and dissenting in part).</span></ref> A plurality of the Court wrote that "[b]ecause the law favors speech made for collecting government debt over political and other speech, the law is a content-based restriction on speech."<ref><span id="ALDF_00028073">''Id.'' at 7 (plurality opinion).</span></ref> Thus, even though Congress had ''removed'' a restriction on speech when it added the government-debt exception, that 2015 amendment created a "discriminatory exception" that resulted in "unequal treatment" of government-debt collection speech versus speech on other topics.<ref><span id="ALDF_00028074">''Id.'' at 18, 20.</span></ref>
=====Laws Regulating Speech with a Content-Discriminatory Purpose=====
Even if a law is content neutral on its face, it could still be considered content based if it "cannot be 'justified without reference to the content of the regulated speech'" or was "adopted by the government 'because of disagreement with the message [the speech] conveys.'"<ref><span id="ALDF_00028075">''[[Reed v. Town of Gilbert]]'', 576 U.S. 155, 164 (2015) (quoting ''[[Ward]]'', 491 U.S. at 791).</span></ref> For example, in 1990, the Court held that a defendant could not be prosecuted for burning a flag in violation of a federal statute.<ref><span id="ALDF_00028076">''[[United States v. Eichman]]'', 496 U.S. 310, 319 (1990).</span></ref> The case followed the Court's landmark symbolic-speech case ''[[Texas v. Johnson]]'', in which the Court recognized that flag burning is a constitutionally-protected expressive activity under some circumstances.<ref><span id="ALDF_00028077"> [http://cdn.loc.gov/service/ll/usrep/usrep491/usrep491397/usrep491397.pdf 491 U.S. 397 (1989)]. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Symbolic Speech|First Amend.: Overview of Symbolic Speech]].</span></ref> Unlike the state law at issue in ''[[Johnson]]'', however, the federal statute contained "no explicit" content-based limitation on flag burning.<ref><span id="ALDF_00028078">''[[Eichman]]'', 496 U.S. at 315.</span></ref> The Court nonetheless concluded that Congress was concerned with the "communicative impact of flag destruction" because its stated goal of protecting the "physical integrity" of the flag depended on "a perceived need to preserve the flag's status as a symbol of our Nation and certain national ideals."<ref><span id="ALDF_00028079">''Id.'' at 315-17 (observing too that the law prohibited mutilating, defacing, defiling, burning, or trampling upon a flag but authorized the disposal of a "worn or soiled" flag).</span></ref> That justification for the law rendered it content based for purposes of First Amendment analysis.
The Court has also encountered laws that are content based both on their face and in their "design" and "practical operation."<ref><span id="ALDF_00028080">''[[Sorrell v. IMS Health Inc.]]'', 564 U.S. 552, 565 (2011).</span></ref> In ''[[Sorrell v. IMS Health Inc.]]'', the Court considered a state law that prohibited the use of certain pharmacy records for marketing purposes without the prescribers' consent.<ref><span id="ALDF_00028081">''Id.'' at 559.</span></ref> The Court held that on its face, the law imposed content-based restrictions on the use of these records because it "disfavor[ed] marketing," which is "speech with a particular content."<ref><span id="ALDF_00028082">''Id.'' at 564. For a discussion of the components of the law that the Court deemed viewpoint discriminatory, see [[{{ROOTPAGENAME}}/First Amend.#Viewpoint Discrimination in Facially Neutral Laws|First Amend.: Viewpoint Discrimination in Facially Neutral Laws]]. </span></ref> The Court observed, too, evidence of a content-discriminatory purpose, pointing to statements in the legislative record suggesting that "the law's express purpose and practical effect are to diminish the effectiveness of marketing by manufacturers of brand-name drugs"--a content-based justification.<ref><span id="ALDF_00028083">''Id.'' at 565. Although it found the law to be content based, the Court ultimately concluded that the law failed even the intermediate scrutiny that applies to commercial speech restrictions. ''Id.'' at 571.</span></ref>
=====Laws Making Speaker-Based Distinctions in Regulating Speech=====
The Supreme Court has recognized that the "First Amendment protects speech and speaker, and the ideas that flow from each."<ref><span id="ALDF_00028084">''[[Citizens United v. FEC]]'', 558 U.S. 310, 341 (2010).</span></ref> While "a differential burden on speakers is insufficient by itself to raise First Amendment concerns,"<ref><span id="ALDF_00028085">''[[Leathers v. Medlock]]'', 499 U.S. 439, 452 (1991).</span></ref> laws that are "designed or intended to suppress or restrict the expression of specific speakers" because of their ideas violate the First Amendment.<ref><span id="ALDF_00028086">''[[United States v. Playboy Ent. Grp.]]'', 529 U.S. 803, 812 (2000).</span></ref> In terms of First Amendment analysis, this means that, unlike laws that regulate speech based on subject matter, topic, or viewpoint, laws that distinguish among different speakers are not necessarily deemed content based or presumptively unconstitutional. For example, a regulation distinguishing between cable operators and broadcasters, the Court observed in a 1994 case, differentiated among "speakers in the television programming market" based on "the manner in which [they] transmit their messages to viewers" rather than their content.<ref><span id="ALDF_00028087">''[[Turner Broad. Sys. v. FCC]]'', 512 U.S. 622, 645 (1994).</span></ref> The Court explained that such distinctions are "not presumed invalid" as long as they are not "a subtle means of exercising a content preference."<ref><span id="ALDF_00028088">''Id.''</span></ref>
Speaker-based distinctions can, however, invite heightened scrutiny in some circumstances. As previously noted, speaker-based distinctions raise the specter of content-based discrimination. The Supreme Court has observed that "[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content."<ref><span id="ALDF_00028089">''[[Citizens United]]'', 558 U.S. at 340.</span></ref> The law in ''[[Sorrell v. IMS Health, Inc.]]'', for example, prohibited pharmaceutical companies from using pharmacy records revealing physicians' individual prescribing practices for marketing purposes without the prescribers' consent.<ref><span id="ALDF_00028090">''[[Sorrell v. IMS Health Inc.]]'', 564 U.S. 552, 559 (2011). For additional discussion of ''[[Sorrell]]'', see [[{{ROOTPAGENAME}}/First Amend.#Laws Regulating Speech with a Content-Discriminatory Purpose|First Amend.: Laws Regulating Speech with a Content-Discriminatory Purpose]].</span></ref> The law did not prohibit other entities from using the records for non-marketing purposes, thus allowing, for example, educational institutions to use the regulated records for research purposes.<ref><span id="ALDF_00028091">''[[Sorrell]]'', 564 U.S. at 563, 573.</span></ref> The Court observed that in addition to imposing content-based restrictions on how the information was used, the law targeted pharmaceutical companies for disfavored treatment, which contributed to the content-based nature of the law.<ref><span id="ALDF_00028092">''Id.'' at 564. For a discussion of the components of the law that the Court deemed viewpoint discriminatory, see [[{{ROOTPAGENAME}}/First Amend.#Viewpoint Discrimination in Facially Neutral Laws|First Amend.: Viewpoint Discrimination in Facially Neutral Laws]].</span></ref>
Even apart from a desire to control the content of speech, the government may violate the First Amendment if it singles out "disfavored speakers" for speech restrictions.<ref><span id="ALDF_00028093">''[[Citizens United v. FEC]]'', 558 U.S. 310, 341 (2010).</span></ref> In ''[[Citizens United v. FEC]]'', for example, the Court held that Congress may not prohibit political speech in the form of independent expenditures because of a speaker's corporate identity.<ref><span id="ALDF_00028094">''Id.'' at 341-65. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Campaign Finance Expenditure Limits|First Amend.: Campaign Finance Expenditure Limits]].</span></ref>
Thus, speech restrictions that apply to some speakers but not others may trigger heightened scrutiny, especially where the law contains other, facial distinctions based on the message conveyed, or reflects a content-discriminatory purpose.<ref><span id="ALDF_00028095">In ''[[FCC v. League of Women Voters]]'', the Court struck down a law banning noncommercial educational broadcasting stations that received federal funds from "editorializing." [http://cdn.loc.gov/service/ll/usrep/usrep468/usrep468364/usrep468364.pdf 468 U.S. 364, 402 (1984)]. In explaining its application of heightened scrutiny, the Court observed that the law "single[d] out noncommercial broadcasters and denie[d] them the right to address their chosen audience on matters of public importance," which suggested that Congress sought "to limit discussion of controversial topics and thus to shape the agenda for public debate." ''Id.'' at 384. For additional discussion of ''League of Women Voters'', see [[{{ROOTPAGENAME}}/First Amend.#Restrictions on Editorializing|First Amend.: Restrictions on Editorializing]].</span></ref>
=====Content-Based and Compelled Speech=====
The Supreme Court has suggested that laws that compel speech, such as labeling or disclosure requirements, are typically content based because they alter the content of the speaker's message.<ref><span id="ALDF_00028096">''[[Nat'l Inst. of Family &amp; Life Advocates (NIFLA) v. Becerra]]'', No. 16-1140, slip op. at 7 (U.S. June 26, 2018); ''[[Riley v. Nat'l Fed'n of Blind]]'', 487 U.S. 781, 795 (1988) ("Mandating speech that a speaker would not otherwise make necessarily alters the content of the speech.").</span></ref> For example, in a 2018 case, the Court considered a state law that required licensed pregnancy resource centers to post a notice that the state provided free or low-cost access to certain services, including abortion.<ref><span id="ALDF_00028097">''[[NIFLA]]'', slip op. at 3.</span></ref> The Court held that this requirement regulated speech based on its content.<ref><span id="ALDF_00028098">''Id.'' at 7.</span></ref> The Court reasoned that by requiring the petitioners (pregnancy resource centers that opposed abortion) "to inform women how they can obtain state-subsidized abortions--at the same time petitioners try to dissuade women from choosing that option--the licensed notice plainly 'alters the content' of petitioners' speech."<ref><span id="ALDF_00028099">''Id.'' (quoting ''[[Riley]]'', 487 U.S. at 795).</span></ref> The Court concluded that heightened scrutiny should apply,<ref><span id="ALDF_00028100">In some circumstances, the Court has evaluated commercial disclosure requirements under a less rigorous standard of scrutiny. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Compelled Speech|First Amend.: Overview of Compelled Speech]].</span></ref> because the law required the petitioners to adopt a "government-drafted script" about a service--abortion--that the petitioners opposed.<ref><span id="ALDF_00028101">''[[NIFLA]]'', slip op. at 7, 9. Although the Court suggested that the notice requirement should receive strict scrutiny, the Court declined to resolve whether strict or intermediate scrutiny was the appropriate standard because it concluded that the law "cannot survive even intermediate scrutiny." ''Id.'' at 14-16 (evaluating the law at the preliminary injunction stage and concluding that the petitioners were likely to succeed on the merits of their First Amendment challenge).</span></ref>
Thus, laws that compel private speakers to make a particular statement or to include certain information in their own speech are likely content based.<ref><span id="ALDF_00028102">''See'' ''[[McIntyre v. Ohio Elections Comm'n]]'', 514 U.S. 334, 345 (1995) (reasoning that a state's ban on anonymous campaign literature was "a direct regulation of the content of speech" because it required such documents to contain the name and address of the person or organization that issued them); ''[[Riley]]'', 487 U.S. at 795 (evaluating a requirement that professional fundraisers disclose information about charitable contributions collected during the previous year before soliciting funds as a content-based regulation of speech); ''[[Pac. Gas &amp; Elec. Co. v. Pub. Utils. Com.]]'', 475 U.S. 1, 9-16, 20-21 (1986) (plurality opinion) (invalidating a state law that required a private company to include in its billing envelopes, alongside its own newsletter, third-party speech that the company opposed).</span></ref> Whether such requirements would receive strict scrutiny, intermediate scrutiny, or a lesser degree of scrutiny, depends, among other things, on whether they involve commercial speech and concern the speaker's own product or services.<ref><span id="ALDF_00028103">''[[NIFLA]]'', slip op. at 14. ''See also'', [[{{ROOTPAGENAME}}/First Amend.#Campaign Finance Disclosure and Disclaimer Requirements|First Amend.: Campaign Finance Disclosure and Disclaimer Requirements]], for a discussion of the exacting scrutiny standard that generally applies to campaign-finance disclosure requirements.</span></ref>
=====Content-Neutral Laws Burdening Speech=====
The Court has distinguished content-based laws from content-neutral laws, while acknowledging that deciding whether a particular law "is content based or content neutral is not always a simple task."<ref><span id="ALDF_00028104">''[[Turner Broad. Sys. v. FCC]]'', 512 U.S. 622, 642 (1994).</span></ref> A content-neutral law that imposes only an incidental burden on speech "will be sustained if 'it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.'"<ref><span id="ALDF_00028105">''Id.'' at 662 (quoting ''[[United States v. O'Brien]]'', 391 U.S. 367, 376 (1968)). ''See also, e.g.'', ''[[San Francisco Arts &amp; Ath., Inc. v. U.S. Olympic Comm.]]'', 483 U.S. 522, 536-40 (1987) (applying this standard to uphold an incidental speech restriction prohibiting certain uses of the word "Olympic"). The distinction between, on the one hand, directly regulating, and, on the other hand, incidentally affecting, the content of expression was sharply drawn by Justice John 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, has 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." ''Cf, e.g.'', ''[[Arcara v. Cloud Books]]'', 478 U.S. 697, 707 (1986) (upholding the application of a statute authorizing closure of places of prostitution to an adult bookstore, saying ''[[O'Brien]]'' was not applicable to "a statute directed at imposing sanctions on nonexpressive activity").</span></ref> Similarly, the government "may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions 'are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.'"<ref><span id="ALDF_00028106">''[[Ward v. Rock Against Racism]]'', 491 U.S. 781, 791 (1989) (quoting ''[[Clark v. Cmty. for Creative Non-Violence]]'', 468 U.S. 288, 293 (1984)). For more discussion of the time, place, and manner doctrine, see [[{{ROOTPAGENAME}}/First Amend.#The Public Forum|First Amend.: The Public Forum]].</span></ref>
A series of cases allowing speech to be regulated due to its "secondary effects" is related to these content-neutral standards.<ref><span id="ALDF_00028107">''See, e.g.'', ''[[Renton v. Playtime Theatres, Inc.]]'', 475 U.S. 41, 48 (1986) (saying an ordinance was content-neutral where the law was justified by a desire to combat undesirable secondary effects of speech, rather than justified by reference to the speech's content). ''Cf.'' ''[[R.A.V. v. City of St. Paul]]'', 505 U.S. 377, 389 (1992) ("Another valid basis for according differential treatment to even a content-defined subclass of proscribable speech is that the subclass happens to be associated with particular 'secondary effects' of the speech[.]").</span></ref> In ''[[Young v. American Mini Theater]]'', 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.<ref><span id="ALDF_00028108"> [http://cdn.loc.gov/service/ll/usrep/usrep427/usrep427050/usrep427050.pdf 427 U.S. 50, 70 (1976)] (plurality opinion) (saying governments could regulate "the places where sexually explicit films may be exhibited," drawing a line "on the basis of content without violating the government's paramount obligation of neutrality" because the place-based regulation was unaffected by the viewpoint or message of the film); ''id.'' at 82 n.6 (Powell, J., concurring) (saying the regulation was not impermissibly content-based when it treated "certain movie theaters differently because they have markedly different effects upon their surroundings").</span></ref> The Court endorsed this approach in ''[[Renton v. Playtime Theatres]]'', rejecting a constitutional challenge to a zoning ordinance restricting the locations of adult theaters after concluding that although the ordinance targeted businesses selling sexually explicit materials, the law was content-neutral because it was justified by studies showing adult theaters produced undesirable secondary effects, rather than being justified by reference to the content of the regulated speech.<ref><span id="ALDF_00028109">''[[Renton]]'', 475 U.S. at 48, 51. The Supreme Court also upheld zoning of sexually oriented businesses in ''[[FW/PBS, Inc. v. Dallas]]'', 493 U.S. 215 (1990), and ''[[City of Los Angeles v. Alameda Books, Inc.]]'', 535 U.S. 425 (2002). ''Cf.'' ''[[Barnes v. Glen Theatre, Inc.]]'', 501 U.S. 560, 566-72 (1991) (plurality opinion) (upholding application of Indiana's public indecency statute to prohibit totally nude dancing under the ''[[O'Brien]]'' standard); ''id.'' at 582 (Souter, J., concurring) (saying he would uphold the law based on "the State's substantial interest in combating the secondary effects of adult entertainment establishments of the sort typified by respondents' establishments"); ''[[Erie v. Pap's A.M.]]'', 529 U.S. 277, 290 (2000) (plurality opinion) (upholding the application of a statute prohibiting public nudity to an adult entertainment establishment, citing both ''[[O'Brien]]'' and ''[[Renton]]'' and noting that "one purpose of the ordinance is to combat harmful secondary effects"); ''id.'' at 310 (Scalia, J., concurring) (expressing doubt about the "secondary effects").</span></ref> By contrast, for example, the Court rejected one city's argument that it could prohibit as a nuisance "any movie containing nudity which is visible from a public place."<ref><span id="ALDF_00028110">''[[Erznoznik v. City of Jacksonville]]'', 422 U.S. 205, 208 (1975).</span></ref> Concluding that the ordinance was not well tailored to the city's stated goals of protecting the privacy interests of passers-by or protecting children, the Court held instead that the law was an unconstitutional content-based regulation.<ref><span id="ALDF_00028111">''Id.'' at 211-18.</span></ref>
====Viewpoint-Based Regulation of Speech====
=====Overview of Viewpoint-Based Regulation of Speech=====
Content-based regulation of speech is generally subject to strict scrutiny and presumptively unconstitutional.<ref><span id="ALDF_00019133">''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Categorical Approach to Restricting Speech|First Amend.: Overview of Categorical Approach to Restricting Speech]].</span></ref> The Supreme Court considers viewpoint-based regulation of speech to be "an egregious form of content discrimination."<ref><span id="ALDF_00019134">''[[Rosenberger v. Rector &amp; Visitors of the Univ. of Va.]]'', 515 U.S. 819, 829 (1995).</span></ref> A law<ref><span id="ALDF_00019135">This group of essays generally refers to viewpoint-based ''laws'', which may include statutes or regulations. However, as these cases illustrate, the principle of viewpoint neutrality also extends to the policies of public institutions, the enforcement of public laws, and other types of government actions. ''See, e.g.'', ''[[Bose Corp. v. Consumers Union]]'', 466 U.S. 485, 505 (1984) (stating that the "principle of viewpoint neutrality" imposes "a special responsibility on judges" when deciding whether a particular communication receives First Amendment protection).</span></ref> is viewpoint-based when it regulates speech based on its "specific motivating ideology" or the speaker's "opinion or perspective."<ref><span id="ALDF_00019136">''[[Rosenberger]]'', 515 U.S. at 829.</span></ref> The following general principles have emerged from the Supreme Court's decisions on viewpoint discrimination and the Free Speech Clause of the First Amendment.
First, the Free Speech Clause ordinarily prohibits the government from restricting speech based on the particular views expressed in that speech.<ref><span id="ALDF_00019137">''See'' [[{{ROOTPAGENAME}}/First Amend.#Viewpoint-Based Distinctions on the Face of a Law|First Amend.: Viewpoint-Based Distinctions on the Face of a Law]].</span></ref> Even when regulating speech that is otherwise proscribable, the government typically may not permit some viewpoints and disallow others.<ref><span id="ALDF_00019138">''See'' [[{{ROOTPAGENAME}}/First Amend.#Viewpoint-Based Distinctions Within Proscribable Speech|First Amend.: Viewpoint-Based Distinctions Within Proscribable Speech]].</span></ref> The government may differentiate among viewpoints only in limited circumstances,<ref><span id="ALDF_00019139">''See, e.g.'', ''[[Morse v. Frederick]]'', 551 U.S. 393, 403 (2007) (holding that a high school principal may "restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use").</span></ref> such as when the government itself is the speaker,<ref><span id="ALDF_00019140">''See, e.g.'', ''[[Walker v. Tex. Div., Sons of Confederate Veterans, Inc.]]'', 576 U.S. 200, 219 (2015) (holding that an organization could not "force Texas to include a Confederate battle flag on its specialty license plates" because those plates were "government speech"); ''[[Pleasant Grove City v. Summum]]'', 555 U.S. 460, 481 (2009) (holding that a city's "decision to accept certain privately donated monuments while rejecting respondent's" was "best viewed as a form of government speech" that did not require viewpoint-neutrality).</span></ref> or when the government selectively funds certain speech as part of a government program.<ref><span id="ALDF_00019141">''See'' ''[[Legal Servs. Corp. v. Velazquez]]'', 531 U.S. 533, 541 (2001) (explaining that "viewpoint-based funding decisions can be sustained" where the government uses "private speakers to transmit information pertaining to its own program"); ''[[Rust v. Sullivan]]'', 500 U.S. 173, 193 (1991) (holding that the government does not discriminate on the basis of viewpoint when "it has merely chosen to fund one activity to the exclusion of" another).</span></ref> These limited exceptions are discussed elsewhere in the ''Constitution Annotated.''<ref><span id="ALDF_00019142">''See'' [[{{ROOTPAGENAME}}/First Amend.#Government Speech and Government as Speaker|First Amend.: Government Speech and Government as Speaker]]; [[{{ROOTPAGENAME}}/First Amend.#Selective Funding Arrangements|First Amend.: Selective Funding Arrangements]]; [[{{ROOTPAGENAME}}/First Amend.#Government's Message Versus Private Speakers|First Amend.: Government's Message Versus Private Speakers]].</span></ref>
Second, the government generally may not compel a private party to espouse a particular viewpoint.<ref><span id="ALDF_00019143">''See'' ''[[Pac. Gas &amp; Elec. Co. v. Pub. Utils. Com.]]'', 475 U.S. 1, 12 (1986) (plurality opinion) (concluding that an agency order requiring a regulated utility company to include a message from an opposing organization in its billing envelopes discriminated on the basis of viewpoint and violated the First Amendment); ''[[Wooley v. Maynard]]'', 430 U.S. 705, 717 (1977) (holding that the State of New Hampshire could not constitutionally punish the respondents for covering up the state motto "Live Free or Die," to which they objected on religious grounds, on their vehicles' license plates). ''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Compelled Speech|First Amend.: Overview of Compelled Speech]].</span></ref> This principle extends to compelled association<ref><span id="ALDF_00019144">''See'' ''[[Boy Scouts of Am. v. Dale]]'', 530 U.S. 640, 648 (2000) (holding that the "forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints"); ''[[Hurley v. Irish-American Gay, Lesbian, and Bisexual Group]]'', 515 U.S. 557, 581 (1995) (reasoning that the government may not "compel" a speaker "to alter [its] message by including one more acceptable to others"). ''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Compelled Speech|First Amend.: Overview of Compelled Speech]]. </span></ref> and compelled subsidization of speech.<ref><span id="ALDF_00019145">''See, e.g.'', ''[[United States v. United Foods]]'', 533 U.S. 405, 416 (2001) (holding that compelling handlers of fresh mushrooms to subsidize generic advertising for that product when some handlers objected to the views expressed in those advertisements violated the First Amendment); ''[[Bd. of Regents v. Southworth]]'', 529 U.S. 217, 233 (2000) (holding that "[w]hen a university requires its students to pay fees to support the extracurricular speech of other students, all in the interest of open discussion, it may not prefer some viewpoints to others"). ''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Compelled Speech|First Amend.: Overview of Compelled Speech]] and [[{{ROOTPAGENAME}}/First Amend.#Compelled Subsidization|First Amend.: Compelled Subsidization]].</span></ref>
Third, laws that do not single out a specific viewpoint on their face, but that were enacted for the purpose of suppressing an idea or message, or otherwise invite discriminatory enforcement, sometimes run afoul of the First Amendment as well.<ref><span id="ALDF_00019146">''See'' [[{{ROOTPAGENAME}}/First Amend.#Viewpoint Neutrality in Forum Analysis|First Amend.: Viewpoint Neutrality in Forum Analysis]].</span></ref>
=====Viewpoint-Based Distinctions on the Face of a Law=====
A law that explicitly regulates speech on the basis of the particular ideas or opinions expressed is said to be viewpoint-based "on its face."<ref><span id="ALDF_00019147">''[[Iancu v. Brunetti]]'', No. 18-302, slip op. at 6 (U.S. June 24, 2019).</span></ref> Such facially viewpoint-based laws, which are unconstitutional in most contexts,<ref><span id="ALDF_00019148">As explained in the Overview, there are certain contexts in which the government can draw viewpoint-based distinctions, such as when the government itself is the speaker. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Viewpoint-Based Regulation of Speech|First Amend.: Overview of Viewpoint-Based Regulation of Speech]]. ''See also'' [[{{ROOTPAGENAME}}/First Amend.#Government Speech and Government as Speaker|First Amend.: Government Speech and Government as Speaker]]; [[{{ROOTPAGENAME}}/First Amend.#Selective Funding Arrangements|First Amend.: Selective Funding Arrangements]]; [[{{ROOTPAGENAME}}/First Amend.#Government's Message Versus Private Speakers|First Amend.: Government's Message Versus Private Speakers]].</span></ref> can take several forms. The most obvious form is a law that, by its terms, regulates speech based on "the specific motivating ideology or the opinion or perspective of the speaker."<ref><span id="ALDF_00019149">''[[Reed v. Town of Gilbert]]'', 576 U.S. 155, 168 (2015) (quoting ''[[Rosenberger v. Rector and Visitors of Univ. of Va.]]'', 515 U.S. 819, 829 (1995))).</span></ref>
A law need not single out a particular ideology or message to be viewpoint-based, however. For example, a law that categorically prohibits "religious" speech may be viewpoint-based even if it does not draw sectarian distinctions. In ''[[Lamb's Chapel v. Center Moriches Union Free School District]]'', the Court considered a local public school board's regulations that allowed organizations to use school property for "social, civic, or recreational uses" but not for "religious purposes."<ref><span id="ALDF_00019150"> [http://cdn.loc.gov/service/ll/usrep/usrep508/usrep508384/usrep508384.pdf 508 U.S. 384, 387 (1993)].</span></ref> Based on that rule, the school district refused to allow a church to use the property to show a film series about family and child-rearing--subjects that fell within the social-or-civic-use purpose.<ref><span id="ALDF_00019151">''Id.'' at 393.</span></ref> The Court held that this refusal violated the Free Speech Clause: even though the school district's regulation treated "all religions and all uses for religious purposes" alike, the school district still discriminated on the basis of viewpoint by excluding the films solely on the basis of their "religious standpoint."<ref><span id="ALDF_00019152">''Id.''; ''see also'' ''[[Rosenberger v. Rector &amp; Visitors of the Univ. of Va.]]'', 515 U.S. 819, 831 (1995) (holding that a public university's denial of funding to a student-run religious publication amounted to viewpoint discrimination because the university "does not exclude religion as a subject matter but selects for disfavored treatment those student journalistic efforts with religious editorial viewpoints").</span></ref>
Laws that allow the government to determine whether speech is disparaging or offensive also raise concerns about viewpoint discrimination.<ref><span id="ALDF_00019153">The Court held in ''[[Snyder v. Phelps]]'' that the government cannot punish speech in a public place on a matter of public concern "simply because it is upsetting or arouses contempt." 562 U.S. 443, 458 (2011). In that case, the Court held that the First Amendment barred an intentional infliction of emotional distress claim against members of a church who picketed a soldier's funeral. ''Id.'' at 459. In the Court's assessment, "any distress" caused by the picketing "turned on the content and viewpoint of the message conveyed, rather than any interference with the funeral itself." ''Id.'' at 457.</span></ref> In the 2017 case ''[[Matal v. Tam]]'', the Court considered a provision of the Lanham Act, a federal trademark statute, that prohibited the registration of trademarks "which may disparage . . . persons, living or dead."<ref><span id="ALDF_00019154">''[[Matal v. Tam]]'', No. 15-1293, slip op. at 5 (U.S. June 19, 2017) (quoting [https://uscode.house.gov/view.xhtml?req=(title:15%20section:1052%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section1052)&amp;f=treesort&amp;num=0&amp;edition=prelim 15 U.S.C. &#167; 1052](a)).</span></ref> After holding that trademarks are not a form of government speech (for which viewpoint-based distinctions are sometimes permissible),<ref><span id="ALDF_00019155">''Id.'' at 18. A plurality of the Court further rejected analogies to federal benefits and government-funded programs for which "some content- and speaker-based restrictions are permitted." ''Id.'' at 18-23 (plurality opinion). The Court did not resolve the question of whether trademarks are commercial speech. The plurality reasoned that the law failed even the "relaxed" intermediate scrutiny standard applicable to commercial speech regulations. ''Id.'' at 23-24.</span></ref> the Court ruled that the Lanham Act's "disparagement clause" violated the First Amendment.<ref><span id="ALDF_00019156">''Id.'' at 26 (majority opinion).</span></ref> The plurality opinion explained that although the clause "evenhandedly prohibit[ed] disparagement of all groups," it discriminated on the basis of viewpoint because it "denie[d] registration to any mark that is offensive to a substantial percentage of the members of any group," and "[g]iving offense is a viewpoint."<ref><span id="ALDF_00019157">''Id.'' at 22 (plurality opinion). At least four of the concurring Justices agreed with the plurality that the clause discriminated on the basis of viewpoint. ''Id.'' at 1 (Kennedy, J., concurring in part and concurring in the judgment).</span></ref> Two years later, the Court struck down the Lanham Act's bar to registering "immoral or scandalous" trademarks on similar grounds.<ref><span id="ALDF_00019158">''[[Iancu v. Brunetti]]'', No. 18-302, slip op. at 6 (U.S. June 24, 2019) (reasoning that "the statute, on its face, distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation").</span></ref>
By comparison, in a case involving a government-funded program, the Court upheld a statute requiring a federal agency to "take into consideration general standards of decency and respect for the diverse beliefs and values of the American public" in awarding grants to support the arts.<ref><span id="ALDF_00019159">''[[Nat'l Endowment for the Arts v. Finley]]'', 524 U.S. 569, 576 (1998) (quoting [https://uscode.house.gov/view.xhtml?req=(title:20%20section:954%20edition:prelim)%20OR%20(granuleid:USC-prelim-title20-section954)&amp;f=treesort&amp;num=0&amp;edition=prelim 20 U.S.C. &#167; 954](d)(1)). ''See'' [[{{ROOTPAGENAME}}/First Amend.#Selective Funding Arrangements|First Amend.: Selective Funding Arrangements]].</span></ref> The Court did not "perceive a realistic danger" that the statute would "compromise First Amendment values."<ref><span id="ALDF_00019160">''[[Nat'l Endowment for the Arts]]'', 524 U.S. at 583.</span></ref> The program, the Court observed, was based on otherwise "subjective" grant criteria such as artistic excellence.<ref><span id="ALDF_00019161">''Id.'' at 585, 589-90.</span></ref> Given that context, making "decency and respect" a consideration was unlikely to "effectively preclude or punish the expression of particular views."<ref><span id="ALDF_00019162">''Id.'' at 583, 590.</span></ref>
=====Viewpoint Discrimination in Facially Neutral Laws=====
A law can discriminate on the basis of viewpoint even if it is viewpoint-neutral on its face. In assessing whether a facially neutral law nevertheless discriminates on the basis of viewpoint, the Supreme Court has asked whether the law, in its "design" or "operation," favors or disfavors a particular point of view.<ref><span id="ALDF_00019163">''[[Turner Broad. Sys. v. FCC]]'', 512 U.S. 622, 647 (1994).</span></ref>
With regard to discriminatory design, the Court appears to distinguish between a law intended to or crafted to suppress a particular viewpoint and a law advanced or supported by a group with a particular viewpoint. According to the Court, "facially neutral and valid justifications" cannot save a law "that is in fact based on the desire to suppress a particular point of view."<ref><span id="ALDF_00019164">''[[Cornelius v. NAACP Legal Def. &amp; Educ. Fund]]'', 473 U.S. 788, 812 (1985) (holding that the federal government's decision to exclude advocacy groups from a charity drive aimed at federal employees was reasonable in light of the purposes of the charity drive, but allowing the respondent organization to argue that the decision was a pretext for viewpoint discrimination on remand).</span></ref> A law is not viewpoint-based, however, "simply because its enactment was motivated by the conduct of the partisans on one side of a debate."<ref><span id="ALDF_00019165">''[[Hill v. Colorado]]'', 530 U.S. 703, 724 (2000) (explaining that enacting a law "in response to the activities of antiabortion protesters" did not render that law viewpoint-based).</span></ref> Further, while the Supreme Court has examined the general purposes of a statute to assess viewpoint neutrality in some cases,<ref><span id="ALDF_00019166">''E.g.'', ''[[Turner Broad. Sys.]]'', 512 U.S. at 646.</span></ref> the Court has declined to examine the motivations of particular legislators or regulators in other cases.<ref><span id="ALDF_00019167">''E.g.'', ''[[United States v. O'Brien]]'', 391 U.S. 367, 383-84 (1968).</span></ref>
Various decisions of the Court suggest at least three indicators that a law may have been designed to suppress a particular viewpoint. First, a law that singles out particular ''speakers'' may be aimed at restricting certain content or certain viewpoints.<ref><span id="ALDF_00019168">''See'' ''[[Citizens United v. FEC]]'', 558 U.S. 310, 340, 353-55 (2010) (opining that "[s]peech restrictions based on the identity of the speaker are all too often simply a means to control content"). Court-ordered injunctions, which necessarily apply to particular litigants (and thus particular speakers), present different considerations than a generally-applicable law that targets particular speakers. In ''[[Madsen v. Women's Health Ctr.]]'', the Court held that an injunction against a group of anti-abortion protestors was not impermissibly viewpoint-based because it was based on the group's "past actions," not "the contents of [their] message." [http://cdn.loc.gov/service/ll/usrep/usrep512/usrep512753/usrep512753.pdf 512 U.S. 753, 762-63 (1994)].</span></ref> For example, in ''[[Sorrell v. IMS Health, Inc.]]'', the Court held unconstitutional a law limiting who could access certain information about prescriptions and for what purposes.<ref><span id="ALDF_00019169">564 U.S. 552, 579-80 (2011).</span></ref> In addition to being content-based on its face, the Court explained, the law authorized "actual viewpoint discrimination" in practice.<ref><span id="ALDF_00019170">''Id.'' at 565.</span></ref> Formal legislative findings showed that "the law's express purpose and practical effect [were] to diminish the effectiveness of marketing by manufacturers of brand-name drugs."<ref><span id="ALDF_00019171">''Id.''</span></ref> In other words, the Court concluded, the law targeted specific speakers in order to target their messages.<ref><span id="ALDF_00019172">''Id.''</span></ref> Thus, the law, while viewpoint-neutral on its face, was impermissibly "aimed at a particular viewpoint."<ref><span id="ALDF_00019173">''Id''.</span></ref>
Second--and related to speaker-based distinctions--a law that contains numerous ''exemptions'' may have the impermissible effect of restricting the speech of individuals or entities with a certain point of view. Exceptions and exemptions are not necessarily viewpoint-based: a law that regulates speech may include certain exemptions to avoid undermining the government's purpose or restricting more speech than is necessary. For example, in a 2014 case, the Court concluded that there was "nothing inherently suspect" in exempting abortion clinic employees from a law that otherwise restricted the zones in which persons could speak outside abortion clinics, because of the need to allow clinic employees "to do their jobs."<ref><span id="ALDF_00019174">''[[McCullen v. Coakley]]'', 573 U.S. 464, 483 (2014). For other reasons, the Court ultimately held that the law violated the First Amendment because it "burden[ed] substantially more speech than necessary to achieve" the government's interests. ''Id.'' at 490.</span></ref> Because exemptions can introduce content or viewpoint-based distinctions,<ref><span id="ALDF_00019175">''E.g.'', ''[[Barr v. Am. Ass'n of Pol. Consultants, Inc.]]'', No. 19-631, slip op. at 9 (U.S. July 6, 2020) (plurality opinion).</span></ref> however, a law that is "wildly underinclusive" may signal that the law was designed to "disfavor[ ] a particular speaker or viewpoint."<ref><span id="ALDF_00019176">''[[Brown v. Ent. Merchs. Ass'n]]'', 564 U.S. 786, 802 (2011). ''See'' ''[[Nat'l Inst. of Family and Life Advocates v. Becerra]]'', No. 16-1140, slip op. at 6 n.2, 15 (U.S. June 26, 2018) (expressing reservations about a law's underinclusivity because of the scope of its exemptions, but declining to decide whether the law was viewpoint-based because it violated the First Amendment on other grounds).</span></ref>
Third, a law that restricts only a particular ''form'' of expression may be aimed at suppressing a particular viewpoint. For example, ''[[Tinker v. Des Moines Independent Community School District]]'' arose from the suspension of three public high school students for violating a school policy prohibiting wearing armbands to school.<ref><span id="ALDF_00019177"> [http://cdn.loc.gov/service/ll/usrep/usrep393/usrep393503/usrep393503.pdf 393 U.S. 503, 504 (1969)].</span></ref> School officials had adopted the policy after learning that a group of students planned to wear black armbands to school as a symbol of opposition to the Vietnam War.<ref><span id="ALDF_00019178">''Id.''</span></ref> The Supreme Court held that the public school's denial of this "form of expression" violated the First Amendment.<ref><span id="ALDF_00019179">''Id.'' at 514.</span></ref> Although schools have some leeway to restrict student expression that might reasonably lead to "substantial disruption of or material interference with school activities,"<ref><span id="ALDF_00019180">''Id.'' ''See'' [[{{ROOTPAGENAME}}/First Amend.#School Free Speech and Government as Educator|First Amend.: School Free Speech and Government as Educator]].</span></ref> there was no indication that such disturbances would take place under the circumstances.<ref><span id="ALDF_00019181">''[[Tinker]]'', 393 U.S. at 514.</span></ref> Instead, the Court observed, the school adopted the policy in anticipation of this "particular opinion" and prohibited this "particular symbol" but no other political symbols.<ref><span id="ALDF_00019182">''Id.'' at 510.</span></ref> A public school cannot restrict student speech, the Court explained, based on a "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."<ref><span id="ALDF_00019183">''Id.'' at 509; ''see also'' ''[[Healy v. James]]'', 408 U.S. 169, 187 (1972) (providing that a state college may not deny official recognition to a student group based on "mere disagreement" with the group's philosophy).</span></ref>
In addition to the design of a law, a claim of viewpoint discrimination may be based on how the law operates in practice. A facially neutral law may be viewpoint-based if, in operation, it restricts or promotes a particular viewpoint.<ref><span id="ALDF_00019184">''[[Sorrell v. IMS Health Inc.]]'', 564 U.S. 552, 565 (2011).</span></ref> Here again the Court has drawn some distinctions. Government action is not automatically viewpoint-based simply because it ''affects'' groups with opposing viewpoints unequally.<ref><span id="ALDF_00019185">In ''[[Wood v. Moss]]'', the Court held that Secret Service agents had not violated a clearly established First Amendment principle by separating protestors and supporters of the President at an impromptu dinner stop. [https://cite.case.law/us/572/744/?full_case=true&amp;format=html 572 U.S. 744, 748 (2014)]. The Court suggested that the agents could not treat those groups differently solely based on their respective viewpoints. ''Id.'' at 761-62. The record showed, however, that the "because of their location, the protesters posed a potential security risk to the President, while the supporters, because of their location, did not." ''Id.'' at 762.</span></ref> However, a law that ''invites'' discriminatory enforcement may violate the principle of viewpoint-neutrality.<ref><span id="ALDF_00019186">''See'' [[{{ROOTPAGENAME}}/First Amend.#Viewpoint Neutrality in Forum Analysis|First Amend.: Viewpoint Neutrality in Forum Analysis]].</span></ref> The Court has held, for example, that a licensing law is vulnerable to a First Amendment challenge if it "gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers."<ref><span id="ALDF_00019187">''[[Lakewood v. Plain Dealer Publ'g Co.]]'', 486 U.S. 750, 759, 772 (1988) (holding unconstitutional parts of a city ordinance "giving the mayor unfettered discretion to deny a permit application and unbounded authority to condition the permit on any additional terms" the mayor deemed necessary).</span></ref>
Even if a law does not discriminate on the basis of viewpoint on its face, in its design, or in its operation, discriminatory enforcement of that law may still violate the First Amendment because enforcement involves government action subject to the First Amendment.<ref><span id="ALDF_00019188">''See, e.g.'', ''[[Cohen v. California]]'', 403 U.S. 15, 18, 26 (1971) (overturning a conviction that was based, not on conduct prohibited by the statute, but on the offensiveness of the defendant's speech).</span></ref> ''[[Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission]]'', which the Court ultimately decided on free exercise rather than free speech grounds, is instructive on this point.<ref><span id="ALDF_00019189">''See'' No. 16-111, slip op. at 1, 3-4 (U.S. June 4, 2018). ''See'' [[{{ROOTPAGENAME}}/First Amend.#Laws that Discriminate Against Religious Practice|First Amend.: Laws that Discriminate Against Religious Practice]].</span></ref> In that case, a bakery owner was charged with violating the state's antidiscrimination law after refusing to make a cake for a same-sex couple's wedding.<ref><span id="ALDF_00019190">No. 16-111, slip op. at 1, 4 (U.S. June 4, 2018).</span></ref> The Court's decision focused not on the validity of the antidiscrimination law, but rather on its application to the bakery owner. In the record, the Court found evidence of "a clear and impermissible hostility toward the sincere religious beliefs that motivated [the baker's] objection."<ref><span id="ALDF_00019191">''Id.'' at 12.</span></ref> The offending statements, the Court held, "violated the State's duty under the First Amendment not to base laws or regulations on hostility to a religion or ''religious viewpoint''."<ref><span id="ALDF_00019192">''Id.'' at 16 (emphasis added). The Court cited both free speech and free exercise cases for this principle, but decided the case solely on free exercise grounds. ''Id.'' at 16-17.</span></ref>
=====Viewpoint-Based Distinctions Within Proscribable Speech=====
Although content-based regulation of speech typically receives strict scrutiny,<ref><span id="ALDF_00019193">''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Categorical Approach to Restricting Speech|First Amend.: Overview of Categorical Approach to Restricting Speech]].</span></ref> there are certain, limited categories of speech--sometimes called "unprotected" speech--that the government may prohibit because of its harmful content.<ref><span id="ALDF_00019194">''[[R.A.V. v. City of St. Paul]]'', 505 U.S. 377, 383-84 (1992) (referring to "proscribable content"); ''id.'' at 406 (White, J., concurring in the judgment) (referring to "unprotected speech").</span></ref> Even when regulating in these areas, however, the government is not free to draw ''viewpoint''-based distinctions, as explained in ''[[R.A.V. v. City of Saint Paul]]''.<ref><span id="ALDF_00019195">''Id.'' at 388-91 (majority opinion).</span></ref> '' R.A.V.'' involved an ordinance that criminalized, among other acts, placing a burning cross on someone's property knowing that it would "arouse[ ] anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."<ref><span id="ALDF_00019196">''Id.'' at 380.</span></ref> For purposes of its analysis, the U.S. Supreme Court accepted the Minnesota Supreme Court's conclusion that the law reached only expressive acts that constitute "fighting words"--a category of unprotected speech.<ref><span id="ALDF_00019197">''Id.'' at 380-81. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Fighting Words|First Amend.: Fighting Words]].</span></ref> The Court nevertheless concluded that the law violated the First Amendment because it drew ''additional'' distinctions between different types of fighting words based on subject matter and viewpoint.<ref><span id="ALDF_00019198">''[[R.A.V.]]'', 505 U.S. at 381, 391.</span></ref> The ordinance, the Court explained, applied "only to 'fighting words' that insult, or provoke violence, 'on the basis of race, color, creed, religion or gender.'"<ref><span id="ALDF_00019199">''Id.'' at 391. Justice Antonin Scalia, writing for the majority, gave the following example: "One could hold up a sign saying, for example, that all 'anti-Catholic bigots' are misbegotten; but not that all 'papists' are, for that would insult and provoke violence 'on the basis of religion.'" ''Id.'' at 391-92.</span></ref> The Court held that the city could not "impose special prohibitions on those speakers who express views on disfavored subjects"--that is, on race, religion, or one of the other named topics.<ref><span id="ALDF_00019200">''Id.'' at 391.</span></ref> The Court also held that the ordinance effectively amounted to "actual viewpoint discrimination" because persons "arguing ''in favor'' of racial, color, etc., tolerance and equality" could use fighting words that "could not be used by those speakers' opponents."<ref><span id="ALDF_00019201">''Id.''</span></ref>
Eleven years later, in ''[[Virginia v. Black]]'', the Court held that a state could prohibit cross-burning with the intent to intimidate because "burning a cross is a particularly virulent form of intimidation," and such "true threats" are considered unprotected speech under the First Amendment.<ref><span id="ALDF_00019202"> [http://cdn.loc.gov/service/ll/usrep/usrep538/usrep538343/usrep538343.pdf 538 U.S. 343, 359-60, 363 (2003)]. The Court ruled that a certain provision of the statute at issue was unconstitutionally overbroad. ''Id.'' at 367 (plurality opinion).</span></ref> The ordinance in ''[[R.A.V.]]'' was distinguishable, the Court explained, because it singled out threats made on the basis of certain viewpoints.<ref><span id="ALDF_00019203">''Id.'' at 361 (majority opinion).</span></ref>
=====Viewpoint Neutrality in Forum Analysis=====
The government's latitude to regulate speech depends, in part, on the forum where that speech occurs. When the government regulates speech in a traditional public forum, such as a public park or sidewalk, or intentionally designates a forum for public speech, content-based regulations are subject to strict scrutiny.<ref><span id="ALDF_00019204">''[[Minn. Voters All. v. Mansky]]'', No. 16-1435, slip op. at 7 (U.S. June 14, 2018).</span></ref> In contrast, when the government opens up a nonpublic forum for a limited public purpose, it "may impose some content-based restrictions on speech."<ref><span id="ALDF_00019205">''Id.'' at 8; ''see,'' e''.g.'', ''[[Perry Educ. Ass'n v. Perry Local Educators' Ass'n]]'', 460 U.S. 37, 48-49 (1983) (reasoning that because a public school's mail system was not a public forum, it had no constitutional obligation to let any organization use its mail boxes).</span></ref> Regardless of the type of forum, however, restrictions on content generally must be viewpoint-neutral to comply with the First Amendment.<ref><span id="ALDF_00019206">''See'' ''[[Manhattan Cmty. Access Corp. v. Halleck]]'', No. 17-1702, slip op. at 8-9 (U.S. June 17, 2019) (stating that "[w]hen the government provides a forum for speech (known as a public forum)," it "ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint"); ''[[Cornelius v. NAACP Legal Def. &amp; Educ. Fund]]'', 473 U.S. 788, 806 (1985) (explaining that "[c]ontrol over access to a nonpublic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the forum and are viewpoint neutral").</span></ref>
The Court applied these standards in several cases involving programs for student organizations at public universities, which generally have been considered limited or nonpublic forums. In one such case from 1995, the Court acknowledged that the government sometimes needs to limit forums it creates to "certain groups" or "certain topics," but ruled that once a government "has opened a limited forum," it may not "discriminate against speech on the basis of its viewpoint."<ref><span id="ALDF_00019207">''[[Rosenberger v. Rector &amp; Visitors of the Univ. of Va.]]'', 515 U.S. 819, 829 (1995).</span></ref> In that case, the university discriminated on the basis of viewpoint by denying funding to a student group because of its religious perspective.<ref><span id="ALDF_00019208">''Id.'' at 825-27; ''see also'' ''[[Good News Club v. Milford Cent. Sch.]]'', 533 U.S. 98, 109 (2001) (holding that a public school engaged in viewpoint discrimination when it excluded a club from its "afterschool forum" because of the club's "religious nature").</span></ref> By comparison, requiring registered student organizations "to accept all comers" is "textbook viewpoint neutral," the Court held in a 2010 decision.<ref><span id="ALDF_00019209">''[[Christian Legal Soc'y Chapter of the Univ. of Cal. v. Martinez]]'', 561 U.S. 661, 694-95 (2010) (holding, in addition, that the policy did not discriminate on the basis of viewpoint in effect); ''see also'' ''[[Turner Broad. Sys. v. FCC]]'', 512 U.S. 622, 647 (1994) (holding that a federal statute requiring cable companies to transmit certain broadcast stations was not viewpoint-based because it did not differentiate among the messages that the stations carry).</span></ref>
Apart from the requirement of viewpoint-neutrality, a regulation of speech in a nonpublic forum must be "reasonable" in light of the forum's purpose.<ref><span id="ALDF_00019210">''[[Cornelius]]'', 473 U.S. at 806.</span></ref> A law that is viewpoint-neutral on its face may be unreasonable if it lacks discernible standards to encourage viewpoint-neutral enforcement. In ''[[Minnesota Voters Alliance v. Mansky]]'', a 2018 decision, the Court reviewed a state's political "apparel ban," which prohibited wearing any "political badge, political button, or other political insignia" within a polling place.<ref><span id="ALDF_00019211">No. 16-1435, slip op. at 3 (U.S. June 14, 2018).</span></ref> The Court held that a polling place on Election Day is a nonpublic forum subject to reasonable, content-based restrictions.<ref><span id="ALDF_00019212">''Id.'' at 8-9.</span></ref> The apparel ban was viewpoint-neutral on its face, the Court determined, because it made "no distinction based on the speaker's political persuasion."<ref><span id="ALDF_00019213">''Id.'' at 9.</span></ref> The Court nonetheless struck down the apparel ban because it was overbroad in its operation, reaching apparel expressing viewpoints on issues on and off the ballot.<ref><span id="ALDF_00019214">''Id.'' at 13-17.</span></ref> In addition, the lack of "objective, workable standards" for election judges to apply made the apparel ban susceptible to viewpoint-discriminatory enforcement, which contributed to its unreasonableness.<ref><span id="ALDF_00019215">''Id.'' at 18.</span></ref>
====Categorical Approach====
=====Overview of Categorical Approach to Restricting Speech=====
While content-based restrictions on protected speech are presumptively unconstitutional, the Supreme Court has recognized that the First Amendment permits restrictions upon the content of speech falling within a few limited categories, including obscenity, child pornography, defamation, fraud, incitement, fighting words, true threats, and speech integral to criminal conduct.<ref><span id="ALDF_00028112">''See'' ''[[United States v. Stevens]]'', 559 U.S. 460, 468 (2010).</span></ref> This "limited categorical approach"<ref><span id="ALDF_00028113">''[[R.A.V. v. City of St. Paul]]'', 505 U.S. 377, 383 (1992).</span></ref> to content-based regulations of speech derives from ''[[Chaplinsky v. New Hampshire]]'', wherein the Court opined that there exist "certain well- defined and narrowly limited classes of speech [that] are no essential part of any exposition of ideas, and are of such slight social value as a step to truth" such that the government may prevent those utterances and punish those uttering them without raising any constitutional issues.<ref><span id="ALDF_00028114"> [http://cdn.loc.gov/service/ll/usrep/usrep315/usrep315568/usrep315568.pdf 315 U.S. 568, 571-72 (1942)].</span></ref> More recent decisions of the Court reflect a reluctance to add any new categories of excepted speech and an inclination to interpret narrowly the excepted categories of speech that have long-established roots in First Amendment law.<ref><span id="ALDF_00028115">''See, e.g.'', ''[[United States v. Alvarez]]'', 567 U.S. 709, 718 (2012) (plurality opinion) ("Absent from those few categories where the law allows content-based regulation of speech is any general exception to the First Amendment for false statements."); ''[[Brown v. Ent. Merchs. Ass'n]]'', 564 U.S. 786, 792 (2011) (holding that the obscenity exception to the First Amendment does not cover violent speech); ''[[Stevens]]'', 559 U.S. at 472 (declining to "carve out" an exception to First Amendment protections for depictions of illegal acts of animal cruelty); ''[[Hustler Magazine v. Falwell]]'', 485 U.S. 46, 55 (1988) (refusing to restrict speech based on its level of "outrageousness").</span></ref> Further, a 1992 decision cautioned that although "these areas of speech can, consistently with the First Amendment, be regulated ''because of their constitutionally proscribable content'' (obscenity, defamation, etc.)," these categories are not "entirely invisible to the Constitution."<ref><span id="ALDF_00028116">''[[R.A.V.]]'', 505 U.S. at 383.</span></ref> Specifically, the Court said a regulation of one of these categories of speech might still violate the First Amendment if it contained additional content- or viewpoint-based distinctions unrelated to the proscribable content: while "the government may proscribe libel . . . it may not make the further content discrimination of proscribing ''only'' libel critical of the government."<ref><span id="ALDF_00028117">''Id.'' at 383-84.</span></ref>
=====Early Doctrine of Incitement=====
Criminal punishment for advocating illegal or merely unpopular goals and ideas did not originate in the United States with the post-World War II concern with Communism. Prosecutions occurred under the Sedition Act of 1798,<ref><span id="ALDF_00029529">Ch. 74, 1 Stat. 596 (1798). As discussed in [[{{ROOTPAGENAME}}/First Amend.#Historical Background on Free Speech Clause|First Amend.: Historical Background on Free Speech Clause]], the Sedition Act was eventually widely considered unconstitutional.</span></ref> and under the federal espionage laws<ref><span id="ALDF_00029530">The cases included ''[[Schenck v. United States]]'', 249 U.S. 47 (1919) (affirming conviction for attempting to disrupt conscription by circulation of leaflets 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).</span></ref> and state sedition and criminal syndicalism laws<ref><span id="ALDF_00029531">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).</span></ref> in the 1920s and early 1930s.<ref><span id="ALDF_00029532">''See also, e.g.'', ''[[Taylor v. Mississippi]]'', 319 U.S. 583 (1943), setting aside convictions of three Jehovah's Witnesses under a statute that 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.</span></ref> 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. Setting aside the problem of symbolic action,<ref><span id="ALDF_00029533">''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Symbolic Speech|First Amend.: Overview of Symbolic Speech]].</span></ref> the Court had to determine when expression that may be a nexus to criminal conduct is subject to punishment and restraint. Initially, the Court seemed disposed in the few cases reaching it to rule that if the conduct could be made criminal, advocating or promoting the conduct could be made criminal.<ref><span id="ALDF_00029534">''[[Davis v. Beason]]'', 133 U.S. 333 (1890); ''[[Fox v. Washington]]'', 236 U.S. 273 (1915).</span></ref>
In the Court's 1919 decision ''[[Schenck v. United States]]'',<ref><span id="ALDF_00029535"> [http://cdn.loc.gov/service/ll/usrep/usrep249/usrep249047/usrep249047.pdf 249 U.S. 47 (1919)].</span></ref> which concerned defendants convicted of violating the Espionage Act by disseminating leaflets seeking to disrupt recruitment of military personnel, Justice Oliver Wendell Holmes formulated the "clear and present danger" test that governed this area for decades. To determine whether speech could be proscribed, he said, "[t]he question . . . 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."<ref><span id="ALDF_00029536">249 U.S. at 52.</span></ref> Consequently, the Court unanimously affirmed the convictions. One week later, in ''[[Frohwerk v. United States]]'', the Court again unanimously affirmed convictions under the same act with Justice Holmes writing, "the First Amendment . . . 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 counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech."<ref><span id="ALDF_00029537">''[[Frohwerk v. United States]]'', 249 U.S. 204, 206 (1919) (citations omitted).</span></ref> And, in ''[[Debs v. United States]]'',<ref><span id="ALDF_00029538"> [http://cdn.loc.gov/service/ll/usrep/usrep249/usrep249211/usrep249211.pdf 249 U.S. 211, 215-16 (1919)].</span></ref> Justice Holmes upheld a conviction because "the natural and intended effect" and the "reasonably probable effect" of the speech for which the defendant was prosecuted was to obstruct military recruiting.
In ''[[Abrams v. United States]]'',<ref><span id="ALDF_00029539"> [http://cdn.loc.gov/service/ll/usrep/usrep250/usrep250616/usrep250616.pdf 250 U.S. 616 (1919)].</span></ref> however, Justices Holmes and Louis Brandeis dissented on affirming the convictions of several alien anarchists who had printed leaflets seeking to encourage discontent with the United States' participation in World War I. 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 case in which the Court affirmed a conviction by simply saying that "[t]he tendency of the articles and their efficacy were enough for the offense" drew a similar dissent.<ref><span id="ALDF_00029540">''[[Schaefer v. United States]]'', 251 U.S. 466, 479 (1920). ''See also'' ''[[Pierce v. United States]]'', 252 U.S. 239 (1920).</span></ref>
The Court did not invariably affirm convictions during this period in cases like those under consideration. In ''[[Fiske v. Kansas]]'',<ref><span id="ALDF_00029541"> [http://cdn.loc.gov/service/ll/usrep/usrep274/usrep274380/usrep274380.pdf 274 U.S. 380 (1927)].</span></ref> the Court 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 because the statute was found unconstitutionally vague.<ref><span id="ALDF_00029542">''[[Stromberg v. California]]'', 283 U.S. 359 (1931).</span></ref> Neither case mentioned clear and present danger. An "incitement" test seemed to underlie the opinion in ''[[DeJonge v. Oregon]]'',<ref><span id="ALDF_00029543"> [http://cdn.loc.gov/service/ll/usrep/usrep299/usrep299353/usrep299353.pdf 299 U.S. 353 (1937)]. ''See'' ''id.'' at 364-65.</span></ref> upsetting a conviction under a criminal syndicalism statute for attending a meeting held under the auspices of an organization that 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]]'',<ref><span id="ALDF_00029544"> [http://cdn.loc.gov/service/ll/usrep/usrep301/usrep301242/usrep301242.pdf 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.</span></ref> 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."
Finally, in <vrpd>Thornhill v. Alabama</vrpd>,<ref><span id="ALDF_00029545"> [http://cdn.loc.gov/service/ll/usrep/usrep310/usrep310088/usrep310088.pdf 310 U.S. 88, 105 (1940)]. The Court admitted that the picketing resulted in economic injury to the employer, but found such injury "neither so serious nor so imminent" as to justify restriction. The doctrine of clear and present danger did not play a future role in labor picketing cases.</span></ref> 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.<ref><span id="ALDF_00029546">''[[Cantwell v. Connecticut]]'', 310 U.S. 296, 308 (1940).</span></ref>
The Court also applied the clear and present danger test in ''[[Terminiello v. City of Chicago]]'',<ref><span id="ALDF_00029547"> [http://cdn.loc.gov/service/ll/usrep/usrep337/usrep337001/usrep337001.pdf 337 U.S. 1 (1949)].</span></ref> in which a 5-4 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." Justice William O. Douglas wrote for the majority that:
{{Quote|[A] function of free speech under our system of government is to invite dispute. 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.337 U.S. at 4-5.}}The dissenters focused on the disorders that had actually occurred as a result of Terminiello's speech, Justice Robert 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."<ref><span id="ALDF_00029549">337 U.S. at 25-26.</span></ref> The disorderly consequences of speech were emphasized in ''[[Feiner v. New York]]'',<ref><span id="ALDF_00029550"> [http://cdn.loc.gov/service/ll/usrep/usrep340/usrep340315/usrep340315.pdf 340 U.S. 315, 321 (1951)].</span></ref> in which Chief Justice Fred 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."
=====Incitement Movement from Clear and Present Danger Test=====
In ''[[Gitlow v. New York]]'',<ref><span id="ALDF_00029551"> [http://cdn.loc.gov/service/ll/usrep/usrep268/usrep268652/usrep268652.pdf 268 U.S. 652 (1925)].</span></ref> 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 distinguished the "clear and present danger" test used in ''[[Schenck]]'': ''[[Schenck]]'' governed "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."<ref><span id="ALDF_00029552">''Id.'' at 670-71.</span></ref> By contrast, in ''[[Gitlow]]'', the Court observed that "the legislative body itself ha[d] previously determined the danger of substantive evil arising from utterances of a specified character."<ref><span id="ALDF_00029553">268 U.S. at 671.</span></ref> 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 to the Court.<ref><span id="ALDF_00029554">268 U.S. at 668. Justice Oliver Wendell 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 shared the defendant's views. It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." ''Id.'' at 673.</span></ref>
In ''[[Whitney v. California]]'',<ref><span id="ALDF_00029555"> [http://cdn.loc.gov/service/ll/usrep/usrep274/usrep274357/usrep274357.pdf 274 U.S. 357, 371 (1927)], ''overruled by'' ''[[Brandenburg v. Ohio]]'', 395 U.S. 444 (1969).</span></ref> the Court affirmed a conviction under a criminal syndicalism statute based on the defendant's association with and membership in an organization that advocated the commission of illegal acts, finding again that the determination of a legislature that such advocacy involves "danger to the public peace and the security of the State" was entitled to almost conclusive weight. In a technical concurrence on procedural grounds, which in fact disagreed with the substance of the majority opinion, Justice Louis Brandeis restated the "clear and present danger" test, saying "even advocacy of violation [of the law] . . . is not a justification for denying free speech where the advocacy fails 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."<ref><span id="ALDF_00029556">274 U.S. at 376.</span></ref>
In ''[[Dennis v. United States]]'',<ref><span id="ALDF_00029557"> [http://cdn.loc.gov/service/ll/usrep/usrep341/usrep341494/usrep341494.pdf 341 U.S. 494 (1951)].</span></ref> the Court sustained the constitutionality of the Smith Act,<ref><span id="ALDF_00029558">54 Stat. 670 (1940), [https://uscode.house.gov/view.xhtml?req=(title:18%20section:2385%20edition:prelim)%20OR%20(granuleid:USC-prelim-title18-section2385)&amp;f=treesort&amp;num=0&amp;edition=prelim 18 U.S.C. &#167; 2385].</span></ref> which proscribed advocacy of the overthrow by force and violence of the government of the United States, and upheld convictions under it. The plurality opinion in ''[[Dennis]]'' recognized that ''[[Whitney]]'' and ''[[Gitlow]]'' had largely been superseded by ''[[Schenck]]'', and applied a revised version of the clear and present danger test to conclude that the evil sought to be prevented was serious enough to justify suppression of speech.<ref><span id="ALDF_00029559">''[[Dennis]]'', 341 U.S. at 507-09, 517.</span></ref> The plurality said the phrase "clear and present danger" should not "be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case."<ref><span id="ALDF_00029560">''Id.'' at 508.</span></ref> Many of the cases in which it had previously 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."<ref><span id="ALDF_00029561">341 U.S. at 508.</span></ref>
By contrast, in ''[[Dennis,]]'' the plurality reasoned that "[o]verthrow of the government by force and violence is certainly a substantial enough interest for the government to limit speech."<ref><span id="ALDF_00029562">341 U.S. at 509.</span></ref> Further, the plurality said the government did not need to wait to act until the plan was set in action.<ref><span id="ALDF_00029563">341 U.S. at 508, 509.</span></ref> The Court adopted a flexible version of the "clear and present danger" test: "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."<ref><span id="ALDF_00029564">341 U.S. at 510 (quoting ''[[United States v. Dennis]]'', 183 F.2d 201, 212 (2d Cir. 1950). Justice Felix Frankfurter, concurring, adopted a balancing test. ''Id.'' at 517. Justice Robert Jackson appeared to proceed on a conspiracy approach rather than one depending on advocacy. ''Id.'' at 561. Justices Hugo Black and William O. 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.</span></ref> The "requisite danger" of a conspiracy was found to justify the convictions.<ref><span id="ALDF_00029565">''[[Dennis]]'', 341 U.S. at 510-11. In ''[[Yates v. United States]]'', 354 U.S. 298 (1957), the Court discussed its constitutional jurisprudence while interpreting the Smith 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.</span></ref>
The clear and present danger test was a lighter restriction on governmental power after ''[[Dennis]]'', and it virtually disappeared from the Court's language over the next twenty years.<ref><span id="ALDF_00029566">''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) (Harlan, J., concurring).</span></ref> Its replacement for part of this period was the much disputed "balancing" test, which made its appearance the year before ''[[Dennis]]'' in ''[[American Communications Ass'n v. Douds]]''.<ref><span id="ALDF_00029567"> [http://cdn.loc.gov/service/ll/usrep/usrep339/usrep339382/usrep339382.pdf 339 U.S. 382 (1950)]. ''See also'' ''[[Osman v. Douds]]'', 339 U.S. 846 (1950). Balancing language was used by Justice Hugo 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 Owen Roberts used balancing language that he apparently did not apply.</span></ref> There the Court sustained a law barring the National Labor Relations Board from investigating a labor union's petition 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.<ref><span id="ALDF_00029568">The law, &#167; 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. &#167; 504, 73 Stat. 536 (1959); [https://uscode.house.gov/view.xhtml?req=(title:29%20section:504%20edition:prelim)%20OR%20(granuleid:USC-prelim-title29-section504)&amp;f=treesort&amp;num=0&amp;edition=prelim 29 U.S.C. &#167; 504] . It was held unconstitutional in ''[[United States v. Brown]]'', 381 U.S. 437 (1965).</span></ref> Chief Justice Fred Vinson, for the Court, rejected reliance on the clear and present danger test because the government's interest in the law was "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."<ref><span id="ALDF_00029569">''Id.'' at 396.</span></ref> Instead, the Court concluded that the law did not interfere with speech--the government's interest was "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."<ref><span id="ALDF_00029570">''Id.'' For additional discussion of ''[[Douds]]'' and other cases involving loyalty oaths impinging on associational freedom, see [[{{ROOTPAGENAME}}/First Amend.#Denial of Employment or Public Benefits|First Amend.: Denial of Employment or Public Benefits]].</span></ref> In evaluating the permissibility of the oath, the Court said it had to balance "the conflicting individual and national interests." The Court further reasoned, "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."<ref><span id="ALDF_00029571">339 U.S. at 399, 410.</span></ref> As the interest in the restriction, the government's right to prevent political strikes and disruption of commerce, was 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.<ref><span id="ALDF_00029572">339 U.S. at 400-06.</span></ref>
During the 1950s and early 1960s, the Court used the balancing test in decisions that did not concern threatening expression or advocacy but rather governmental inquiries into or regulation of associations and personal beliefs premised on these being predictive of future or intended conduct that government could regulate or prohibit. Thus, in the leading case on balancing, ''[[Konigsberg v. State Bar of California]]'',<ref><span id="ALDF_00029573"> [http://cdn.loc.gov/service/ll/usrep/usrep366/usrep366036/usrep366036.pdf 366 U.S. 36 (1961)].</span></ref> the Court upheld a state's refusal to certify an applicant for admission to the bar. Describing the relevant analysis, the Court said "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."<ref><span id="ALDF_00029574">366 U.S. at 50-51. Again, the ruling in ''[[Konigsberg]]'' is discussed in more detail in [[{{ROOTPAGENAME}}/First Amend.#Denial of Employment or Public Benefits|First Amend.: Denial of Employment or Public Benefits]].</span></ref>
The Court used balancing to sustain congressional and state inquiries into associations and individual activities that were alleged to be subversive<ref><span id="ALDF_00029575">''[[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).</span></ref> and proceedings against the Communist Party and its members.<ref><span id="ALDF_00029576">''[[Communist Party v. Subversive Activities Control Board]]'', 367 U.S. 1 (1961); ''[[Scales v. United States]]'', 367 U.S. 203 (1961).</span></ref> The Court did not use balancing, however, when it struck down restrictions on receiving materials mailed from Communist countries<ref><span id="ALDF_00029577">''[[Lamont v. Postmaster General]]'', 381 U.S. 301 (1965).</span></ref> or in cases involving picketing, pamphleteering, and demonstrating in public places.<ref><span id="ALDF_00029578">''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.</span></ref> But the only case in which the Court specifically rejected balancing involved a statutory regulation like those that had led the Court to adopt the test in the first place. In ''[[United States v. Robel]]'',<ref><span id="ALDF_00029579"> [http://cdn.loc.gov/service/ll/usrep/usrep389/usrep389258/usrep389258.pdf 389 U.S. 258 (1967)].</span></ref> the Court held invalid under the First Amendment a statute that made it unlawful for any member of an organization that the Subversive Activities Control Board had ordered to register to work in a defense establishment.<ref><span id="ALDF_00029580">Subversive Activities Control Act of 1950, &#167; 5(a)(1)(D), 64 Stat. 992, [https://uscode.house.gov/view.xhtml?req=(title:50%20section:784%20edition:prelim)%20OR%20(granuleid:USC-prelim-title50-section784)&amp;f=treesort&amp;num=0&amp;edition=prelim 50 U.S.C. &#167; 784] (a)(1)(D).</span></ref> Writing for the Court, Chief Justice Earl Warren reasoned that the law was flawed because 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,"<ref><span id="ALDF_00029581">''[[United States v. Robel]]'', 389 U.S. 258, 265 (1967).</span></ref> and, as a result, 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.<ref><span id="ALDF_00029582">389 U.S. at 265-68.</span></ref> 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. . . . 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."<ref><span id="ALDF_00029583">389 U.S. at 268 n.20.</span></ref>
The government used the Smith Act provision criminalizing organizing or becoming a member of an organization that teaches, advocates, or encourages the overthrow of government by force or violence against Communist Party members. In ''[[Scales v. United States]]'',<ref><span id="ALDF_00029584"> [http://cdn.loc.gov/service/ll/usrep/usrep367/usrep367203/usrep367203.pdf 367 U.S. 203 (1961)]. Justices Hugo Black and William O. Douglas dissented on First Amendment grounds, ''id.'' at 259, 262, while Justice William Brennan and Chief Justice Warren dissented on statutory grounds. ''Id.'' at 278.</span></ref> the Court affirmed a conviction and held it constitutional against First Amendment attack. Advocacy such as the Communist Party engaged in, Justice John Harlan wrote for the Court, was unprotected under ''[[Dennis]]'', and he could see no reason why membership that constituted a purposeful form of complicity in a group engaging in such advocacy should be a protected form of association. Of course, he observed "[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 the membership clause . . . does not make criminal all association with an organization which has been shown to engage in illegal advocacy."<ref><span id="ALDF_00029585">367 U.S. at 229.</span></ref> 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.<ref><span id="ALDF_00029586">367 U.S. at 220. 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.</span></ref>
=====Incitement Current Doctrine=====
In ''[[Brandenburg v. Ohio]]'',<ref><span id="ALDF_00029587"> [http://cdn.loc.gov/service/ll/usrep/usrep395/usrep395444/usrep395444.pdf 395 U.S. 444 (1969)].</span></ref> the Supreme Court reversed a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terrorist means to achieve political change. 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.<ref><span id="ALDF_00029588">''[[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). ''See also'' ''[[Bond v. Floyd]]'', 385 U.S. 116 (1966); ''[[Watts v. United States]]'', 394 U.S. 705 (1969).</span></ref> 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."<ref><span id="ALDF_00029589">395 U.S. at 447 (emphasis added).</span></ref> The Court has applied the ''[[Brandenburg]]'' formulation in subsequent cases, although a number of questions remain with respect to the imminence and likelihood aspects of the standard.<ref><span id="ALDF_00029590">''See, e.g.'', ''[[Hess v. Indiana]]'', 414 U.S. 105 (1973); ''[[NAACP v. Claiborne Hardware Co.]]'', 458 U.S. 886, 928 (1982). In ''[[Stewart v. McCoy]]'', 537 U.S. 993 (2002), Justice John Paul Stevens, in a statement accompanying a denial of certiorari, wrote that, while ''Brandenburg''<nowiki>'</nowiki>s "requirement that the consequence be 'imminent' is justified with respect to mere advocacy, the same justification does not necessarily adhere to some speech that performs a teaching function. Long range planning of criminal enterprises--which may include oral advice, training exercises, and perhaps the preparation of written materials--involve speech that should not be glibly characterized as mere 'advocacy' and certainly may create significant public danger. Our cases have not yet considered whether, and if so to what extent, the First Amendment protects such instructional speech." ''Id.'' at 995.</span></ref>
=====Fighting Words=====
In ''[[Chaplinsky v. New Hampshire]]'',<ref><span id="ALDF_00029591"> [http://cdn.loc.gov/service/ll/usrep/usrep315/usrep315568/usrep315568.pdf 315 U.S. 568 (1942)].</span></ref> the Court unanimously sustained a conviction under a state law proscribing "any offensive, derisive or annoying word" addressed to any person in a public place after accepting the state court's interpretation of the statute as being limited to "fighting words"--that is, to words that "have a direct tendency to cause acts of violence by the person to whom, individually, the remark is addressed." The Court sustained the statute 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."<ref><span id="ALDF_00029592">315 U.S. at 573.</span></ref> The Court further explained that "by their very utterance," fighting words "inflict injury or tend to incite an immediate breach of the peace."<ref><span id="ALDF_00029593">315 U.S. at 572.</span></ref> Accordingly, "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."<ref><span id="ALDF_00029594">''Id.''</span></ref>
''[[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."<ref><span id="ALDF_00029595">''[[Cohen v. California]]'', 403 U.S. 15, 20 (1971). Cohen's conviction for breach of the 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.</span></ref> But, in actuality, the Court has closely scrutinized statutes on vagueness and overbreadth grounds and set aside convictions as not being within the doctrine. ''[[Chaplinsky]]'' thus remains the governing standard, but the Court has not upheld a government action on the basis of that doctrine since ''[[Chaplinsky]]'' itself.<ref><span id="ALDF_00029596">The Court held that government may not punish profane, vulgar, or opprobrious words simply because they are offensive, but only if they are "fighting words" that 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); ''see also'' ''[[Eaton v. City of Tulsa]]'', 416 U.S. 697 (1974).</span></ref>
In the related "hostile audience" situation, the Court 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.<ref><span id="ALDF_00029597">''[[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).</span></ref> But this case has been significantly limited by cases that hold the Fifth Amendment protects the peaceful expression of views that stirs people to anger because of the content of the expression, or perhaps because of the manner in which it is conveyed, and that government may not use breach of the peace and disorderly conduct statutes to curb such expression. Specifically, the Court has held that "speech cannot be restricted simply because it is upsetting or arouses contempt," at least when the speech occurs in "a public place on a matter of public concern."<ref><span id="ALDF_00029598">''[[Snyder v. Phelps]]'', 562 U.S. 443, 458 (2011).</span></ref>
The cases are unclear as to what extent the police must go to protect a speaker against hostile audience reaction or whether only actual disorder or a clear and present danger of disorder entitles the authorities to terminate the speech or other expressive conduct.<ref><span id="ALDF_00029599">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 John 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 (1971).</span></ref> The Court has also held that, absent incitement to illegal action, government may not punish mere expression or proscribe ideas,<ref><span id="ALDF_00029600">''[[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).</span></ref> regardless of the trifling or annoying caliber of the expression.<ref><span id="ALDF_00029601">''[[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).</span></ref>
=====True Threats=====
The Supreme Court has cited three "reasons why threats of violence are outside the First Amendment"--"protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur."<ref><span id="ALDF_00029602">''[[R.A.V. v. City of St. Paul]]'', 505 U.S. 377, 388 (1992).</span></ref> In ''[[Watts v. United States]]'', however, the Court held that only "true" threats are outside ordinary First Amendment protections.<ref><span id="ALDF_00029603"> [http://cdn.loc.gov/service/ll/usrep/usrep394/usrep394705/usrep394705.pdf 394 U.S. 705, 708 (1969)] (per curiam).</span></ref> The defendant in ''[[Watts]]'' expressed his opposition to the military draft at a public rally, saying, "If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J."<ref><span id="ALDF_00029604">394 U.S. at 706.</span></ref> He was convicted of violating a federal statute that prohibited "any threat to take the life of or to inflict bodily harm upon the President of the United States." The Supreme Court reversed. Interpreting the statute "with the commands of the First Amendment clearly in mind,"<ref><span id="ALDF_00029605">394 U.S. at 707.</span></ref> the Court found that the defendant had not made a "true 'threat,'" but had indulged in mere "political hyperbole."<ref><span id="ALDF_00029606">394 U.S. at 708.</span></ref>
In ''[[NAACP v. Claiborne Hardware Co.]]'', White merchants in Claiborne County, Mississippi, sued the NAACP to recover losses caused by a boycott by Black citizens of their businesses, and to enjoin future boycott activity.<ref><span id="ALDF_00029607"> [http://cdn.loc.gov/service/ll/usrep/usrep458/usrep458886/usrep458886.pdf 458 U.S. 886 (1982)]. Claiborne is also discussed below under "Public Issue Picketing and Parading."</span></ref> During the course of the boycott, NAACP Field Secretary Charles Evers told an audience of "black people that any 'uncle toms' who broke the boycott would 'have their necks broken' by their own people."<ref><span id="ALDF_00029608">458 U.S. at 900, n.29. ''See'' ''id.'' at 902 for a similar remark by Evers.</span></ref> The Court acknowledged that this language "might have been understood as inviting an unlawful form of discipline or, at least, as intending to create a fear of violence."<ref><span id="ALDF_00029609">458 U.S. at 927.</span></ref> Yet, no violence had followed directly from Evers' speeches, and the Court found that Evers' "emotionally charged rhetoric did not transcend the bounds of protected speech set forth in ''[[Brandenburg]]''. An advocate must be free to stimulate his audience with spontaneous and emotional appeals for unity and action in a common cause. When such appeals do not incite lawless action, they must be regarded as protected speech."<ref><span id="ALDF_00029610">458 U.S. at 928.</span></ref> Although the Court held that, under ''[[Brandenburg]]'', Evers' speech did not constitute unprotected incitement of lawless action,<ref><span id="ALDF_00029611">''[[Brandenburg v. Ohio]]'', 395 U.S. 444 (1969). ''Brandenburg'' is discussed above under "Is There a Present Test?"</span></ref> the Court also cited ''[[Watts]]'', thereby implying that Evers' speech also did not constitute a "true threat."<ref><span id="ALDF_00029612">''[[Claiborne]]'', 458 U.S. at 928 n.71.</span></ref>
In a 2023 decision, ''[[Counterman v. Colorado]]'', the Supreme Court held that, to convict a person of making true threats, a state must show that the speaker had a subjective understanding as to whether the person to whom his words were directed would perceive them as threatening.<ref><span id="ALDF_00000279">''[[Counterman v. Colorado,]]'', No. 22-138 (U.S. June 27, 2023).</span></ref> The Court explained the ''mens rea'' or mental state of recklessness would suffice for this showing, adding that, "A person acts recklessly in the most common formulations, when he 'consciously disregard[s] a substantial [and unjustifiable] risk that the conduct will cause harm to another.'"<ref><span id="ALDF_00000280">''Id.'' slip op. at 11 (quoting ''[[Voisine v. United States,]]'', 579 U.S. 686, 691 (2016)).</span></ref>
In 2003's ''[[Virginia v. Black]]'', the Supreme Court considered a First Amendment challenge to a state law that banned cross burning carried out with the intent to intimidate.<ref><span id="ALDF_00029613">''[[Virginia v. Black]]'', 538 U.S. 343, 347 (2003).</span></ref> The Court held that, at least in theory, states could prohibit such cross burnings as a "true threat."<ref><span id="ALDF_00029614">''Id.'' at 360, 363.</span></ref> Specifically, intimidation can be prohibited as "a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death."<ref><span id="ALDF_00029615">''Id.'' at 360.</span></ref> Cross burning could fall within this category of "intimidating speech," given that the "history of cross burning in this country" demonstrated they were often "intended to create a pervasive fear in victims that they are a target of violence."<ref><span id="ALDF_00029616">''Id.''</span></ref> However, the Court concluded that the specific state law before it was unconstitutional insofar as it allowed the mere fact of cross burning to provide prima facie evidence of the intent to intimidate, creating a chill on constitutionally protected speech.<ref><span id="ALDF_00029617">''Id.'' at 364-65 (plurality opinion); ''id.'' at 386 (Souter, J., concurring in the judgment in part and dissenting in part) (concluding that the law was an impermissibly content-based statute, in part because "the prima facie evidence provision skews prosecutions . . . toward suppressing ideas."). A cross burning done as "a statement of ideology, a symbol of group solidarity," or "in movies such as Mississippi Burning," however, would be protected speech. ''Id.'' at 365-366 (plurality opinion).</span></ref>
=====Defamation=====
One of the most foundational cases in First Amendment jurisprudence occurred in 1964 with the Court's decision in ''[[New York Times Co. v. Sullivan]]''.<ref><span id="ALDF_00029618"> [http://cdn.loc.gov/service/ll/usrep/usrep376/usrep376254/usrep376254.pdf 376 U.S. 254 (1964)].</span></ref> 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 completely foreclosed by the "label" attached to something. The Court said libel could "claim no talismanic immunity from constitutional limitations," and the standards for proving defamation must "satisfy the First Amendment."<ref><span id="ALDF_00029619">376 U.S. at 269. Justices Hugo Black, William O. Douglas, and Arthur Goldberg, concurring, would have held libel laws per se unconstitutional. ''Id.'' at 293, 297.</span></ref> The Court considered the case "against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."<ref><span id="ALDF_00029620">376 U.S. at 269, 270.</span></ref> 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."<ref><span id="ALDF_00029621">376 U.S. at 271.</span></ref>
Prior interpretations had established that the First Amendment contained no exception "for any test of truth."<ref><span id="ALDF_00029622">376 U.S. at 271.</span></ref> The Court explained that error is inevitable in any free debate, to place on the speaker the burden of proving truth would introduce self-censorship and stifle the free expression which the First Amendment protects.<ref><span id="ALDF_00029623">376 U.S. at 271-72, 278-79. The substantial truth of an utterance is ordinarily a defense to defamation. ''See'' ''[[Masson v. New Yorker Magazine]]'', 501 U.S. 496, 516 (1991).</span></ref> 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."<ref><span id="ALDF_00029624">376 U.S. at 272-73.</span></ref> Ultimately, the Court said the First Amendment "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."<ref><span id="ALDF_00029625">376 U.S. 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).</span></ref>
In the wake of the ''[[Times]]'' ruling, the Court decided two cases involving the type of criminal libel statute upon which Justice Felix Frankfurter had relied in analogy to uphold the group libel law in ''[[Beauharnais v. Illinois]]'', discussed in a subsequent essay.<ref><span id="ALDF_00029626">''[[Beauharnais v. Illinois]]'', 343 U.S. 250, 254-58 (1952); [[{{ROOTPAGENAME}}/First Amend.#Application of Defamation Cases to Group Libel, Hate Speech|First Amend.: Application of Defamation Cases to Group Libel, Hate Speech]].</span></ref> In neither case did the Court apply the concept of ''[[Times]]'' to void them altogether. ''[[Garrison v. Louisiana]]''<ref><span id="ALDF_00029627"> [http://cdn.loc.gov/service/ll/usrep/usrep379/usrep379064/usrep379064.pdf 379 U.S. 64 (1964)].</span></ref> held that a statute that did not incorporate the ''[[Times]]'' rule of "actual malice" was invalid, while in ''[[Ashton v. Kentucky]]''<ref><span id="ALDF_00029628"> [http://cdn.loc.gov/service/ll/usrep/usrep384/usrep384195/usrep384195.pdf 384 U.S. 195 (1966)].</span></ref> 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.
Subsequent cases elaborated which defamed individuals had to satisfy the ''[[Times]]'' rule. Explaining the definition of a "public official," the Court said this includes "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."<ref><span id="ALDF_00029629">''[[Rosenblatt v. Baer]]'', 383 U.S. 75, 85 (1966).</span></ref> But the Court appeared to expand the concept of "public official" to take on overtones of anyone holding public elective or appointive office.<ref><span id="ALDF_00029630">''See'' ''[[Rosenblatt v. Baer]]'', 383 U.S. 75 (1966) (supervisor of a county recreation area employed by and responsible to the county commissioners may be public official within ''Times'' rule); ''[[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).</span></ref> Moreover, candidates for public office were subject to the ''[[Times]]'' rule and comment on their character or past conduct, public or private, insofar as it touches upon their fitness for office, is protected.<ref><span id="ALDF_00029631">''[[Monitor Patriot Co. v. Roy]]'', 401 U.S. 265 (1971); ''[[Ocala Star-Banner Co. v. Damron]]'', 401 U.S. 295 (1971).</span></ref>
Thus, a wide range of reporting about both public officials and candidates was quickly held to be subject to heightened constitutional standards. While the First Amendment protects scrutiny and criticism of the conduct of official duties by public officials,<ref><span id="ALDF_00029632">''[[Rosenblatt v. Baer]]'', 383 U.S. 75, 85 (1966).</span></ref> the Court has also held that criticism that reflects generally upon an official's integrity and honesty is protected.<ref><span id="ALDF_00029633">''[[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 the argument that these criticisms were not about how the judges conducted their courts but were personal attacks upon their integrity and honesty. The Court observed: "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.</span></ref> 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.<ref><span id="ALDF_00029634">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."</span></ref>
Only three years after its ''[[Sullivan]]'' decision, the Court said the First Amendment also required a heightened standard to prove defamation of a "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 Earl 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 of concern to society at large."<ref><span id="ALDF_00029635">''[[Curtis Publishing Co. v. Butts]]'', 388 U.S. 130, 164 (1967) (Chief Justice Earl 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 allegations, respectively, that the football coach fixed a football game and the retired general led a violent crowd in opposition to enforcement of a desegregation decree. While the Court was extremely divided, Chief Justice Warren's rule became the generally accepted rule. Essentially, four Justices opposed applying 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 Harlan, Clark, Stewart, and Fortas, JJ.). Three Justices applied ''Times'', ''id.'' at 162 (Warren, C.J.), and ''id.'' at 172 (Brennan and White, JJ.). Two Justices would have applied absolute immunity. ''Id.'' at 170 (Black and Douglas, JJ.). ''See also'' ''[[Greenbelt Cooperative Pub. Ass'n v. Bresler]]'', 398 U.S. 6 (1970).</span></ref> Later, the Court curtailed the definition of "public figure" by playing down the matter of public interest and emphasizing that one becomes a "public figure" by voluntarily assuming a role in public affairs.<ref><span id="ALDF_00029636">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).</span></ref>
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.<ref><span id="ALDF_00029637">''[[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''</span></ref> But, in ''[[Gertz v. Robert Welch, Inc.]]''<ref><span id="ALDF_00029638"> [http://cdn.loc.gov/service/ll/usrep/usrep418/usrep418323/usrep418323.pdf 418 U.S. 323, 346 (1974)].</span></ref> the Court clarified that ''[[Sullivan]]''<nowiki>'</nowiki>s actual malice standard did not apply to any defamation on a matter of public concern. Instead, 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."<ref><span id="ALDF_00029639">''Id.'' at 347, 349.</span></ref>
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,<ref><span id="ALDF_00029640">''[[Time, Inc. v. Firestone]]'', 424 U.S. 448 (1976). ''See also'' ''[[Wolston v. Reader's Digest Ass'n]]'', 443 U.S. 157 (1979).</span></ref> 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.<ref><span id="ALDF_00029641">''[[Wolston v. Reader's Digest Ass'n]]'', 443 U.S. 157 (1979).</span></ref> Also the Court deemed a scientist who sought and received federal grants for research, the results of which were published in scientific journals, not to be a public figure for purposes of an allegedly defamatory comment about the value of his research.<ref><span id="ALDF_00029642">''[[Hutchinson v. Proxmire]]'', 443 U.S. 111 (1979).</span></ref> 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) 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.<ref><span id="ALDF_00029643">443 U.S. at 134 (quoting ''[[Gertz v. Robert Welch, Inc.]]'', 418 U.S. 323, 345 (1974)).</span></ref>
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--such as the ''[[Gertz]]'' situation--the burden is on the plaintiff to establish the information is false. Thus, the Court held in ''[[Philadelphia Newspapers v. Hepps]]'',<ref><span id="ALDF_00029644"> [http://cdn.loc.gov/service/ll/usrep/usrep475/usrep475767/usrep475767.pdf 475 U.S. 767 (1986)].</span></ref> 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 noted, that a ''[[Gertz]]'' plaintiff must establish falsity in addition to establishing some degree of fault (for example, negligence).<ref><span id="ALDF_00029645">475 U.S. at 780 (Stevens, J., dissenting).</span></ref> On the other hand, the Court held in ''[[Dun &amp; 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 selling credit reporting information to subscribers is not such a matter of public concern.<ref><span id="ALDF_00029646"> [http://cdn.loc.gov/service/ll/usrep/usrep472/usrep472749/usrep472749.pdf 472 U.S. 749 (1985)]. Justice Lewis Powell wrote a plurality opinion joined by Justices William Rehnquist and Sandra Day O'Connor, and Chief Justice Warren Burger and Justice Byron White, both of whom had dissented in ''Gertz'', added brief concurring opinions agreeing that the ''Gertz'' standard should not apply to credit reporting. Justice William Brennan, joined by Justices Thurgood Marshall, Harry Blackmun, and John Paul Stevens, dissented, arguing that ''Gertz'' had not been limited to matters of public concern, and should not be extended to do so.</span></ref> The Court has left unclear whether it matters if the defendant to the defamation suit is from the media rather than a private person. The plurality in ''[[Dun &amp; Bradstreet]]'' declined to follow the lower court's rationale that ''[[Gertz]]'' protections are unavailable to nonmedia defendants, and a majority of Justices agreed on that point.<ref><span id="ALDF_00029647">472 U.S. at 753 (plurality); ''id.'' at 773 (Justice White); ''id.'' at 781-84 (dissent).</span></ref> In ''[[Philadelphia Newspapers]]'', however, the Court expressly reserved the issue of "what standards would apply if the plaintiff sues a nonmedia defendant."<ref><span id="ALDF_00029648">475 U.S. at 779 n.4. Justice Wiliam Brennan added a brief concurring opinion expressing his view that such a distinction is untenable. ''Id.'' at 780.</span></ref>
Other issues besides who is covered by the ''[[Times]]'' privilege are of considerable importance. The Court has distinguished "actual malice" from the common law meaning of malice.<ref><span id="ALDF_00029649">''See, e.g.'', ''[[Herbert v. Lando]]'', 441 U.S. 153, 199 (1979) (Stewart, J., dissenting).</span></ref> Under ''[[Times,]]'' constitutional "actual malice" means the defendant published the defamation with knowledge that it was false or with reckless disregard of whether it was false.<ref><span id="ALDF_00029650">''[[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).</span></ref> Reckless disregard is not simply negligent behavior, but publication with serious doubts as to the truth of what is uttered.<ref><span id="ALDF_00029651">''[[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 Commc'ns v. Connaughton]]'', 491 U.S. 657 (1989) (nonetheless upholding the lower court's finding of actual malice based on the "entire record").</span></ref> 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 generally used in civil cases, that the defendant acted with knowledge of falsity or with reckless disregard.<ref><span id="ALDF_00029652">''[[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).</span></ref> Moreover, the Court has held, a ''[[Gertz]]'' plaintiff has the burden of proving the actual falsity of the defamatory publication.<ref><span id="ALDF_00029653">''[[Philadelphia Newspapers v. Hepps]]'', 475 U.S. 767 (1986) (leaving open the issue of what "quantity" or standard of proof must be met).</span></ref> A plaintiff suing the press for defamation under the ''[[Times]]'' or ''[[Gertz]]'' standards is not required to prove his case or establish "actual malice" absent discovery of the defendant's editorial processes.<ref><span id="ALDF_00029654">''[[Herbert v. Lando]]'', 441 U.S. 153 (1979).</span></ref> Through discovery, the plaintiff may inquire into the defendant's state of mind; his thoughts, opinions, and conclusions with respect to the material he gathered; and how he reviewed and handled it. 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.<ref><span id="ALDF_00029655">''[[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 Commc'ns 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).</span></ref>
While the Court had suggested in dicta that statements of opinion, unlike assertions of fact, might be absolutely protected,<ref><span id="ALDF_00029656">''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").</span></ref> the Court held in ''[[Milkovich v. Lorain Journal Co.]]''<ref><span id="ALDF_00029657"> [http://cdn.loc.gov/service/ll/usrep/usrep497/usrep497001/usrep497001.pdf 497 U.S. 1 (1990)].</span></ref> that there is no constitutional distinction between fact and opinion, hence no "wholesale defamation exemption" for any statement that can be labeled "opinion."<ref><span id="ALDF_00029658">497 U.S. at 18.</span></ref> Instead, the issue is whether, regardless of the context in which a statement is uttered, the statement 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,"<ref><span id="ALDF_00029659">497 U.S. 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.</span></ref> 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."<ref><span id="ALDF_00029660">497 U.S. at 19.</span></ref>
In ''[[Masson v. New Yorker Magazine]]'',<ref><span id="ALDF_00029661"> [http://cdn.loc.gov/service/ll/usrep/usrep501/usrep501496/usrep501496.pdf 501 U.S. 496 (1991)].</span></ref> the Court considered whether a publisher's alterations to quotations attributed to a public figure met the actual malice standard given journalistic conventions allowing publishers to make some alterations to correct grammar and syntax. The Court ruled that "a deliberate alteration of words [in a quotation] does not equate with knowledge of falsity for purposes of [''[[New York Times]]''] unless the alteration results in a material change in the meaning conveyed by the statement."<ref><span id="ALDF_00029662">501 U.S. at 517.</span></ref>
=====Application of Defamation Cases to Group Libel, Hate Speech=====
In ''[[Beauharnais v. Illinois]]'',<ref><span id="ALDF_00029663"> [http://cdn.loc.gov/service/ll/usrep/usrep343/usrep343250/usrep343250.pdf 343 U.S. 250 (1952)].</span></ref> relying on dicta in past cases,<ref><span id="ALDF_00029664">''[[Chaplinsky v. New Hampshire]]'', 315 U.S. 568, 571-72 (1942); ''[[Near v. Minnesota ex rel. Olson]]'', 283 U.S. 697, 707-08 (1931).</span></ref> the Court upheld a state group libel law that 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, 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 Felix 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 that is not protected by the First Amendment. If an utterance directed at an individual may be the object of criminal sanctions, then 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."<ref><span id="ALDF_00029665">''[[Beauharnais v. Illinois]]'', 343 U.S. 250, 254-58 (1952).</span></ref> Justice Felix Frankfurter then reviewed the history of racial strife in Illinois to conclude that the legislature could reasonably have feared substantial evils from defamatory racist statements. He also held that the Constitution did not require states to accept a defense of truth, because historically a defendant had to show not only truth but publication with good motives and for justifiable ends.<ref><span id="ALDF_00029666">343 U.S. at 265-66.</span></ref>
The holding of ''[[Beauharnais]]'', premised in part on the categorical exclusion of defamatory statements from First Amendment protection, has been undercut by subsequent developments, including the Court's subjecting defamation law to First Amendment challenge and endorsing "uninhibited, robust, and wide-open" debate on public issues in ''[[New York Times Co. v. Sullivan]]''.<ref><span id="ALDF_00029667"> [http://cdn.loc.gov/service/ll/usrep/usrep376/usrep376254/usrep376254.pdf 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 Harry Blackmun and William Rehnquist dissenting on the 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).</span></ref> Further, in ''[[R.A.V. v. City of St. Paul]]'', the Court, in an opinion by Justice Antonin Scalia, explained and qualified the categorical exclusions for defamation, obscenity, and fighting words. These categories of speech are not "entirely invisible to the Constitution," even though they "can, consistently with the First Amendment, be regulated ''because of their constitutionally proscribable content''."<ref><span id="ALDF_00029668"> [http://cdn.loc.gov/service/ll/usrep/usrep505/usrep505377/usrep505377.pdf 505 U.S. 377, 383 (1992)].</span></ref> Content discrimination unrelated to that "distinctively proscribable content," however, runs afoul of the First Amendment.<ref><span id="ALDF_00029669">505 U.S. at 384.</span></ref> 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. Consequently, the ''[[R.A.V.]]'' Court held: "The First Amendment does not permit [the city] to impose special prohibitions on those speakers who express views on disfavored subjects."<ref><span id="ALDF_00029670">''Id.'' 505 U.S. at 391. On the other hand, the First Amendment permits enhancement of a criminal penalty based on the defendant's motive in selecting a victim of a particular race. ''[[Wisconsin v. Mitchell]]'', 508 U.S. 476 (1993). The law has long recognized motive as a permissible element in sentencing, the Court noted. ''Id.'' at 485. It distinguished R.A.V. as involving a limitation on speech rather than conduct, and because the state might permissibly conclude that bias-inspired crimes inflict greater societal harm than do non-bias inspired crimes (for example, they are more likely to provoke retaliatory crimes). ''Id.'' at 487-88. ''See generally'' Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the Problems of Hate Crime and Animal Sacrifice, 1993 Sup. Ct. Rev. 1.</span></ref>
In ''[[Virginia v. Black]]'', the Court held that its opinion in ''[[R.A.V.]]'' did not make it unconstitutional for a state to prohibit burning a cross with the intent of intimidating any person or group of persons.<ref><span id="ALDF_00029671"> [http://cdn.loc.gov/service/ll/usrep/usrep538/usrep538343/usrep538343.pdf 538 U.S. 343 (2003)]. A plurality held, however, that a statute may not presume, from the fact that a defendant burned a cross, that he had an intent to intimidate. The state must prove that he did, as "a burning cross is not always intended to intimidate," but may constitute a constitutionally protected expression of opinion. ''Id.'' at 365-66.</span></ref> The state law did not single out only speech on certain disfavored topics; nor, as a factual matter, did all "cross burners direct their intimidating conduct solely to racial or religious minorities."<ref><span id="ALDF_00029672">538 U.S. at 362 (majority opinion).</span></ref> Under ''[[R.A.V.]]'', the statute permissibly targeted a subset of true threats "because burning a cross is a particularly virulent form of intimidation."<ref><span id="ALDF_00029673">538 U.S. at 362-63.</span></ref>
The Court has also struck down non-libel legislation intended to prevent offense of individuals and groups of people as unconstitutional. For example, in ''[[Matal v. Tam]]'', the Supreme Court considered a federal law prohibiting registering trademarks that "may disparage . . . or bring . . . into contempt[ ] or disrepute" any "persons, living or dead."<ref><span id="ALDF_00029674"> [https://www.supremecourt.gov/opinions/16pdf/15-1293_1o13.pdf No. 15-1293, slip op. (2017)].</span></ref> In ''[[Tam]]'', the Patent and Trademark Office rejected a trademark application for THE SLANTS for an Asian-American dance-rock band because it found the mark may be disparaging to Asian Americans.<ref><span id="ALDF_00029675">''Id. ''at 1.</span></ref> The Court held that the disparagement provision violated the Free Speech Clause as "[i]t offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend."<ref><span id="ALDF_00029676">''Id. ''at 1-2.</span></ref> Two years later, the Court invalidated another statutory trademark restriction--one prohibiting the registration of "immoral" or "scandalous" marks--on similar grounds.<ref><span id="ALDF_00029677">''[[Iancu v. Brunetti]]'', 588 U.S., No. 18-302, slip op. at 2 (2019) (quoting [https://uscode.house.gov/view.xhtml?req=(title:15%20section:1052%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section1052)&amp;f=treesort&amp;num=0&amp;edition=prelim 15 U.S.C. &#167; 1052](a)). ''See also '' [[{{ROOTPAGENAME}}/First Amend.#Obscenity|First Amend.: Obscenity]].</span></ref>
=====False Statements Outside of Defamation=====
As defamatory false statements can lead to legal liability, false statements in other contexts can violate legal prohibitions. For instance, more than 100 federal criminal statutes punish false statements in areas of concern to federal courts or agencies,<ref><span id="ALDF_00029678">''[[United States v. Wells]]'', 519 U.S. 482, 505-507, nn. 8-10 (1997) (Stevens, J., dissenting) (listing statute citations).</span></ref> and the Court has often noted the limited First Amendment value of such speech.<ref><span id="ALDF_00029679">''See, e.g.'', ''[[Hustler Magazine, Inc. v. Falwell]]'', 485 U.S. 46, 52 (1988) ("False statements of fact are particularly valueless [because] they interfere with the truth-seeking function of the marketplace of ideas."); ''[[Virginia State Bd. of Pharmacy v. Va. Citizens Consumer Council]]'', 425 U.S. at 771 ("Untruthful speech, commercial or otherwise, has never been protected for its own sake.").</span></ref> The Court, however, has rejected the idea that all false statements fall outside of First Amendment protection.
In ''[[United States v. Alvarez]]'',<ref><span id="ALDF_00029680"> [https://cite.case.law/us/567/709/?full_case=true&amp;format=html 567 U.S. 709 (2012)].</span></ref> the Court overturned the Stolen Valor Act of 2005,<ref><span id="ALDF_00029681"> [https://uscode.house.gov/view.xhtml?req=(title:18%20section:704%20edition:prelim)%20OR%20(granuleid:USC-prelim-title18-section704)&amp;f=treesort&amp;num=0&amp;edition=prelim 18 U.S.C. &#167; 704].</span></ref> which imposed criminal penalties for falsely representing oneself to have been awarded a military decoration or medal. In an opinion by Justice Anthony Kennedy, four Justices distinguished false statement statutes that threaten the integrity of governmental processes or that further criminal activity, and evaluated the Act under a strict scrutiny standard.<ref><span id="ALDF_00029682">''[[Alvarez]]'', slip op. at 8-12 (Kennedy, J.). Justice Anthony Kennedy was joined by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor.</span></ref> Noting that the Stolen Valor Act applied to false statements made "at any time, in any place, to any person,"<ref><span id="ALDF_00029683">''[[Alvarez]]'', slip op. at 10 (Kennedy, J). Justice Anthony Kennedy was joined in his opinion by Chief Justice John Roberts and Justices Ruth Bader Ginsburg and Sonia Sotomayor.</span></ref> Justice Anthony Kennedy suggested that upholding this law would leave the government with the power to punish any false discourse without a clear limiting principle. The plurality applied strict scrutiny to the Act as a content-based law. Justice Stephen Breyer, in a separate opinion joined by Justice Elena Kagan, concurred in judgment, but did so only after evaluating the prohibition under an intermediate scrutiny standard. While Justice Breyer was also concerned about the breadth of the Act, his opinion suggested that a statute more finely tailored to "a subset of lies where specific harm is likely to occur" could withstand legal challenge.<ref><span id="ALDF_00029684">''[[Alvarez]]'', slip op. at 8-9 (Breyer, J).</span></ref>
=====Privacy Torts=====
Government power to protect the privacy interests of its citizens by penalizing publication or authorizing causes of action for publication directly implicates First Amendment rights. Privacy is a concept composed of several aspects.<ref><span id="ALDF_00029685">''See, e.g.'', William Prosser, Law of Torts 117 (4th ed. 1971); William 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). Note that we do not have here the question of the protection of one's privacy from governmental invasion.</span></ref> 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.<ref><span id="ALDF_00029686">Restatement (Second), of Torts &#167;&#167; 652A-652I (1977). These four branches were originally propounded in Prosser's 1960 article, incorporated in the Restatement, and now "routinely accept[ed]." J. Thomas McCarthy, &#167; 5.8[A].</span></ref>
Although the Court has recognized valid governmental interests in extending protection to privacy,<ref><span id="ALDF_00029687">''[[Time, Inc. v. Hill]]'', 385 U.S. 374, 383 n.7 (1967); and ''id.'' at 402, 404 (Harlan, J., concurring in part and dissenting in part), 411, 412-15 (Fortas, J., dissenting); ''[[Cox Broadcasting Corp. v. Cohn]]'', 420 U.S. 469, 487-89 (1975).</span></ref> it has nevertheless interposed substantial free expression interests in the balance. The Court's constitutional jurisprudence in this area has drawn heavily from its rulings in ''[[New York Times v. Sullivan]]'' and other defamation cases discussed in an earlier essay.<ref><span id="ALDF_00029688">''See'' ''[[New York Times Co. v. Sullivan]]'', 376 U.S. 254 (1964); [[{{ROOTPAGENAME}}/First Amend.#Defamation|First Amend.: Defamation]].</span></ref> Thus, in ''[[Time, Inc. v. Hill]]'',<ref><span id="ALDF_00029689"> [http://cdn.loc.gov/service/ll/usrep/usrep385/usrep385374/usrep385374.pdf 385 U.S. 374 (1967)]. ''See also'' ''[[Cantrell v. Forest City Publ'g Co.]]'', 419 U.S. 245 (1974).</span></ref> the ''[[Times]]'' standard requiring proof of actual malice precluded 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. Given that this actual malice standard did not limit the recovery of compensatory damages for defamation by private persons, the question arose whether ''[[Hill]]'' applied to all "false-light" cases or only such cases involving public officials or public figures.<ref><span id="ALDF_00029690">''Cf.'' ''[[Cantrell v. Forest City Publ'g Co.]]'', 419 U.S. 245, 250-51 (1974); ''[[Cox Broad. Corp. v. Cohn]]'', 420 U.S. 469, 490 n.19 (1975).</span></ref> More specifically, one defamation case left unresolved the issue "whether the State may ever define and protect an area of privacy free from unwanted publicity in the press."<ref><span id="ALDF_00029691">''[[Cox Broad. Corp. v. Cohn]]'', 420 U.S. 469, 491 (1975) (explaining the open question).</span></ref> In ''[[Cox Broadcasting Corp. v. Cohn]]'', the Court declined to pass on the broad question, holding instead that the accurate publication of information obtained from public records is absolutely privileged.<ref><span id="ALDF_00029692">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." 420 U.S. 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.</span></ref> 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.<ref><span id="ALDF_00029693">420 U.S. at 491.</span></ref>
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.<ref><span id="ALDF_00029694">''[[The Fl. Star v. B.J.F.]]'', 491 U.S. 524, 533 (1989).</span></ref> 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 (for example, inquiry into whether the victim's identity was already widely known), and since the statute singled out "mass communications" media for liability rather than applying evenhandedly to anyone disclosing a victim's identity.<ref><span id="ALDF_00029695">''Id.'' at 537-41. The Court left open the question "whether, in cases where information has been acquired ''unlawfully'' by a newspaper or by a source, the government may ever punish not only the unlawful acquisition, but the ensuing publication as well." ''Id.'' at 535 n.8. In ''[[Bartnicki v. Vopper]]'', 532 U.S. 514 (2001), the Court held that a content-neutral statute prohibiting the publication of illegally intercepted communications (in this case a cell phone conversation) violates free speech where the person who publishes the material did not participate in the interception, and the communication concerns a public issue.</span></ref>
The tort of intentional infliction of emotional distress has presented special concerns due to its "outrageousness" standard of liability. In ''[[Hustler Magazine, Inc. v. Falwell]]'',<ref><span id="ALDF_00029696"> [http://cdn.loc.gov/service/ll/usrep/usrep485/usrep485046/usrep485046.pdf 485 U.S. 46 (1988)].</span></ref> the Court applied the ''[[New York Times v. Sullivan]]'' standard to a public figure seeking damages for intentional infliction of emotional distress. The case involved an advertisement "parody" portraying the plaintiff, described by the Court as a "nationally known minister who has been active as a commentator on politics and public affairs," as stating that he lost his virginity "during a drunken incestuous rendezvous with his mother in an outhouse."<ref><span id="ALDF_00029697">485 U.S. at 47, 48.</span></ref> 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."<ref><span id="ALDF_00029698">485 U.S. at 53.</span></ref> The Court noted that "most if not all jurisdictions" had imposed liability for this tort only where the conduct was "outrageous."<ref><span id="ALDF_00029699">485 U.S. at 53.</span></ref> However, the Court rejected the idea that this "outrageousness" standard could distinguish supposedly impermissible parodies from more traditional political cartoons, explaining 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."<ref><span id="ALDF_00029700">485 U.S. at 55.</span></ref> Therefore, proof of intent to cause injury, "the gravamen of the tort," was 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."<ref><span id="ALDF_00029701">485 U.S. at 53, 56.</span></ref>
The Court next considered whether an intentional infliction of emotional distress action could be brought by a father against public protestors who picketed the military funeral of his son, where the plaintiff was neither a public official nor a public figure. In ''[[Snyder v. Phelps]]'',<ref><span id="ALDF_00029702">562 U.S. 443 (2011).</span></ref> the Court avoided addressing whether the actual malice standard applied to the intentional infliction of emotional distress upon a private citizen, finding that where public protesters are addressing issues of public concern, the fact that such protests occurred in a setting likely to upset private individuals did not reduce the First Amendment protection of that speech. In ''[[Phelps]]'', the congregation of the Westboro Baptist Church, based on the belief that God punishes the United States for its tolerance of homosexuality, particularly in America's armed forces, had engaged in nearly 600 protests at funerals, mostly military. While it was admitted that the plaintiff had suffered emotional distress after a protest at his son's funeral, the Court declined to characterize the protests as directed at the father personally.<ref><span id="ALDF_00029703">Signs displayed at the protest included the phrases "God Hates the USA/Thank God for 9/11," "America is Doomed," "Don't Pray for the USA," "Thank God for IEDs," "Thank God for Dead Soldiers," "Pope in Hell," "Priests Rape Boys," "God Hates Fags," "You're Going to Hell," and "God Hates You." slip op. at 2.</span></ref> Rather, considering the "content, form, and context" of that speech,<ref><span id="ALDF_00029704">''Id.'' at 8 (citations omitted).</span></ref> the Court found that the dominant themes of the protest went to public concerns, and thus could not serve as the basis for a tort suit.<ref><span id="ALDF_00029705">Justice Alito, in dissent, argued that statements made by the defendants on signs and on a website could have been reasonably interpreted as directed at the plaintiffs, and that even if public themes were a dominant theme at the protest, that this should not prevent a suit from being brought on those statements arguably directed at private individuals. slip op. at 9-11 (Alito, J., dissenting).</span></ref>
The Court has further suggested that the actual malice standard does not apply to a right of publicity claim. In ''[[Zacchini v. Scripps-Howard Broadcasting Co.]]'',<ref><span id="ALDF_00029706"> [http://cdn.loc.gov/service/ll/usrep/usrep433/usrep433562/usrep433562.pdf 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 Lewis Powell, William Brennan, and Thurgood Marshall dissented, finding the broadcast protected, ''id.'' at 579, and Justice Stevens dissented on other grounds. ''Id.'' at 582.</span></ref> 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 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 that would be made available to the public, whereas permitting this tort action would have an impact only on "who gets to do the publishing."<ref><span id="ALDF_00029707">433 U.S. at 573-74. Plaintiff was not seeking to bar the broadcast but rather to be paid for the value he lost through the broadcasting.</span></ref> 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.<ref><span id="ALDF_00029708">433 U.S. at 576-78.</span></ref>
=====Obscenity=====
Although public discussion of political affairs is at the core of the First Amendment, the guarantees of speech and press are broader, extending also, for example, to sexually explicit entertainment. The Supreme Court has rejected the idea that the First Amendment "applies only to the exposition of ideas," saying "[t]he line between the informing and the entertaining is too elusive for the protection of that basic right."<ref><span id="ALDF_00029709">''[[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). Nude dancing is also. ''[[Barnes v. Glen Theatre, Inc.]]'', 501 U.S. 560, 564 (1991).</span></ref> The right to impart and to receive "information and ideas, regardless of their social worth . . . is fundamental to our free society."<ref><span id="ALDF_00029710">''[[Stanley v. Georgia]]'', 394 U.S. 557, 564 (1969).</span></ref> Accordingly, obscene material, referring to certain sexually explicit material,<ref><span id="ALDF_00029711">''See, e.g.'', ''[[Cohen v. California]]'', 403 U.S. 15, 20 (1971) (noting that "obscene expression" must be "erotic," not just crude); ''accord'' ''[[Mahanoy Area Sch. Dist. v. B.L.]]'', No. 20-255, slip op. at 8 (U.S. June 23, 2021).</span></ref> may be protected even if it is "arguably devoid of any ideological content."<ref><span id="ALDF_00029712">''Id.'' at 566. ''See also'' ''[[Winters v. New York]]'', 333 U.S. 507 (1948); ''[[Joseph Burstyn, Inc. 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. The Court stated: "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.</span></ref> Nonetheless, while sexually explicit material may be entitled to constitutional protection, the Court has said the subcategories of obscenity and child pornography--the latter discussed in a subsequent essay--can generally be regulated without triggering heightened scrutiny.<ref><span id="ALDF_00029713">[[{{ROOTPAGENAME}}/First Amend.#Child Pornography|First Amend.: Child Pornography]].</span></ref>
Adjudication over the constitutional law of obscenity began in ''[[Roth v. United States]]'',<ref><span id="ALDF_00029714"> [http://cdn.loc.gov/service/ll/usrep/usrep354/usrep354476/usrep354476.pdf 354 U.S. 476 (1957)]. Heard at the same time and decided in the same opinion was [http://cdn.loc.gov/service/ll/usrep/usrep354/usrep354476/usrep354476.pdf Alberts v. California], involving a state obscenity law. The Court's first opinion in the obscenity field was ''[[Butler v. Michigan]]'', 352 U.S. 380 (1957), considered ''infra''. Earlier the Court had divided 4-4 and thus affirmed a state court judgment that Edmund Wilson's ''Memoirs of Hecate County'' was obscene. ''[[Doubleday &amp; Co. v. New York]]'', 335 U.S. 848 (1948).</span></ref> in which the Court ruled that obscenity is not "within the area of protected speech and press."<ref><span id="ALDF_00029715">''[[Roth v. United States]]'', 354 U.S. 476, 485 (1957). Justice William 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 protecting children and non-consenting adults. ''See'' ''[[Paris Adult Theatre I v. Slaton]]'', 413 U.S. 49 (1973).</span></ref> The Court undertook a brief historical survey to demonstrate that "the unconditional phrasing of the First Amendment was not intended to protect every utterance."<ref><span id="ALDF_00029716">354 U.S. at 483.</span></ref> All or practically all the states that ratified the First Amendment had laws making blasphemy or profanity or both crimes, and provided for prosecutions of libels as well. This history was deemed to demonstrate that "obscenity, too, was outside the protection intended for speech and press."<ref><span id="ALDF_00029717">354 U.S. at 482-83.</span></ref> The Court said that although "[a]ll ideas having even the slightest redeeming social importance" were entitled to First Amendment protections, "implicit in the history of the First Amendment is the rejection of obscenity as utterly without redeeming social importance."<ref><span id="ALDF_00029718">354 U.S. at 484. ''See also'' ''[[Chaplinsky v. New Hampshire]]'', 315 U.S. 568, 571-72 (1942).</span></ref> Because obscenity was not protected at all, tests such as clear and present danger, which the Court had previously applied to assess the constitutionality of other laws, were irrelevant.<ref><span id="ALDF_00029719">354 U.S. at 486 (quoting ''[[Beauharnais v. Illinois]]'', 343 U.S. 250, 266 (1952)).</span></ref>
The Court clarified, however, that, "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, for example, 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."<ref><span id="ALDF_00029720">354 U.S. at 487, 488.</span></ref> The Court identified the relevant standard for unprotected obscenity as "whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to prurient interest."<ref><span id="ALDF_00029721">354 U.S. at 489.</span></ref> 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."<ref><span id="ALDF_00029722">354 U.S. 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 (1985). The Court noted that obscenity consists in appeal to "a shameful or morbid" interest in sex, not in appeal to "normal, healthy sexual desires." ''Id.'' ''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.</span></ref>
In the years after ''[[Roth]]'', the Court considered many obscenity cases. The cases can be grouped topically, but, with the exception of those cases dealing with protection of children,<ref><span id="ALDF_00029723">In ''[[Butler v. Michigan]]'', 352 U.S. 380 (1957), the Court unanimously reversed a conviction under a statute that 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). Even those Justices who would proscribe obscenity regulation for adults concurred in protecting children in this context. ''[[Paris Adult Theatre I v. Slaton]]'', 413 U.S. 49, 73, 113 (1973) (Brennan, J., dissenting). But children do have First Amendment protection and government may not bar dissemination of everything to them. The Court stated: "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 Foundation]]'', 438 U.S. 726, 749-50 (1978); ''[[Pinkus v. United States]]'', 436 U.S. 293, 296-98 (1978).</span></ref> unwilling adult recipients,<ref><span id="ALDF_00029724">The Court emphasized protecting unwilling adults 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. ''[[Erznoznik v. City of Jacksonville]]'', 422 U.S. 205, 208-12 (1975). ''But see'' ''[[Pinkus v. United States]]'', 436 U.S. 293, 300 (1978) (jury in determining community standards must include both "'sensitive' and 'insensitive' persons" in the community, but may not "focus[ ] upon the most susceptible or sensitive members when judging the obscenity of materials . . . ").</span></ref> and procedure,<ref><span id="ALDF_00029725">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. Additionally, Fourth Amendment search and seizure law has absorbed 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); ''see also'' ''[[Walter v. United States]]'', 447 U.S. 649 (1980). Scienter--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 impermissible 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). None of these strictures applies, however, to forfeitures imposed as part of a criminal penalty. ''[[Alexander v. United States]]'', 509 U.S. 544 (1993) (upholding RICO forfeiture of the entire adult entertainment book and film business of an individual convicted of obscenity and racketeering offenses). Justice Anthony Kennedy, dissenting in ''Alexander'', objected to the "forfeiture of expressive material that had not been adjudged to be obscene." ''Id.'' at 578.</span></ref> these cases are best explicated chronologically. In ''[[Manual Enterprises v. Day]]'',<ref><span id="ALDF_00029726"> [http://cdn.loc.gov/service/ll/usrep/usrep370/usrep370478/usrep370478.pdf 370 U.S. 478 (1962)].</span></ref> the Court upset a Post Office ban upon mailing certain magazines addressed to homosexual audiences, but none of the Court's opinions gained the support of the majority. Nor did a majority opinion emerge in ''[[Jacobellis v. Ohio]]'', which reversed a conviction for exhibiting a motion picture.<ref><span id="ALDF_00029727"> [http://cdn.loc.gov/service/ll/usrep/usrep378/usrep378184/usrep378184.pdf 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 Potter 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]]'', 383 U.S. 413 (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).</span></ref> In ''[[Ginzburg v. United States]]'',<ref><span id="ALDF_00029728"> [http://cdn.loc.gov/service/ll/usrep/usrep383/usrep383463/usrep383463.pdf 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).</span></ref> 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. On the same day, the same five-Justice majority affirmed a state conviction under a law prohibiting distributing obscene books by applying the "pandering" test and concluding that courts could hold material to be legally obscene if it appealed to the prurient interests of the deviate group to which it was directed.<ref><span id="ALDF_00029729">''[[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).</span></ref> On the same day, however, the Court held that ''[[Fanny Hill]]'', a novel, which at that point was 277 years old, was not legally obscene.<ref><span id="ALDF_00029730">A Book Named "John Cleland's Memoirs of a Woman of Pleasure" ''[[v. Attorney General]]'', 383 U.S. 413 (1966).</span></ref> The Court's prevailing opinion 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.<ref><span id="ALDF_00029731">383 U.S. at 418. On the precedential effect of the ''Memoirs'' plurality opinion, see ''[[Marks v. United States]]'', 430 U.S. 188, 192-94 (1977).</span></ref>
After the divisions engendered by the disparate opinions in the three 1966 cases, the Court over the next several years submerged its differences by issuing per curiam dispositions in nearly three dozen cases in which it reversed convictions or civil determinations of obscenity in all but one. The initial case was ''[[Redrup v. New York]]'',<ref><span id="ALDF_00029732"> [http://cdn.loc.gov/service/ll/usrep/usrep386/usrep386767/usrep386767.pdf 386 U.S. 767 (1967)].</span></ref> in which, after noting that the cases involved did not present special questions requiring other treatment, such as concern for juveniles, protection of unwilling adult recipients, or proscription of pandering,<ref><span id="ALDF_00029733">386 U.S. at 771.</span></ref> 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 . . . ."<ref><span id="ALDF_00029734">386 U.S. at 770-71. The majority was thus composed of Chief Justice Earl Warren and Justices Hugo Black, William O. Douglas, William Brennan, Potter Stewart, Byron White, and Abe Fortas.</span></ref> Although the Court's subsequent cases followed the pattern established in ''[[Redrup]]'',<ref><span id="ALDF_00029735">''See'' ''[[Paris Adult Theatre I v. Slaton]]'', 413 U.S. 49, 82-83 &amp; n.8 (1973) (Brennan, J., dissenting) (describing ''Redrup'' practice and listing thirty-one cases decided on the basis of it).</span></ref> the Court's changing membership led to speculation about the continuing vitality of ''[[Roth]]'' and the Court's ''[[Redrup]]'' approach.<ref><span id="ALDF_00029736">''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 William O. Douglas not participating. And ''[[Stanley v. Georgia]]'', 394 U.S. 557, 560- 64, 568 (1969), had insisted that ''Roth'' remained the governing standard.</span></ref>
At the end of the October 1971 Term, the Court requested argument on 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.<ref><span id="ALDF_00029737">''[[Paris Adult Theatre I v. Slaton]]'', 413 U.S. 49 (1973); ''[[Alexander v. Virginia]]'', 408 U.S. 921 (1972).</span></ref> By a 5-4 vote during the October 1972 Term, the Court in ''[[Paris Adult Theatre I v. Slaton]]'' adhered to the ''[[Roth]]'' principle that the First and Fourteenth Amendments do not protect obscene material even if access is limited to consenting adults.<ref><span id="ALDF_00029738"> [http://cdn.loc.gov/service/ll/usrep/usrep413/usrep413049/usrep413049.pdf 413 U.S. 49 (1973)].</span></ref> Writing for the Court, Chief Justice Warren Burger 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. Consequently, Chief Justice Warren reasoned, it does not matter that the states may be acting based on unverifiable assumptions in deciding to suppress the trade in pornography because 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. Chief Justice Warren further noted that the Constitution does not embody any concept of laissez-faire, or of privacy, or of "free will," that curbs governmental efforts to suppress pornography.<ref><span id="ALDF_00029739">413 U.S. at 57, 60-62, 63-64, 65-68. Delivering the principal dissent, Justice William 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. Justice William Brennan stated: "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 Justice William Brennan's opinion; Justice William O. Douglas dissented separately, adhering to the view that the First Amendment absolutely protected all expression. ''Id.'' at 70.</span></ref>
In ''[[Miller v. California]]'',<ref><span id="ALDF_00029740"> [http://cdn.loc.gov/service/ll/usrep/usrep413/usrep413015/usrep413015.pdf 413 U.S. 15 (1973)].</span></ref> the Court prescribed the currently prevailing standard by which courts identify unprotected pornographic materials. Because of the inherent dangers in regulating any form of expression, the Court noted, laws to regulate pornography must be carefully limited and their scope confined to materials that "depict or describe patently offensive 'hard core' sexual conduct specifically defined by the regulating state law, as written or construed."<ref><span id="ALDF_00029741">''[[Miller v. California]]'', 413 U.S. 15, 27 (1973). The Court may read into federal statutes standards it has 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).</span></ref> The Court further reasoned that 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."<ref><span id="ALDF_00029742">''[[Miller v. California]]'', 413 U.S. at 24.</span></ref> The Court disavowed and discarded the standard that a work must be "utterly without redeeming social value" to be suppressed.<ref><span id="ALDF_00029743">''Id.'' at 24-25.</span></ref> In determining whether material appeals to a prurient interest or is patently offensive, the trier-of-fact, whether a judge or a jury, is not bound by a hypothetical national standard but may apply the trier-of-fact's local community standard.<ref><span id="ALDF_00029744">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]]'', 505 U.S. 377 (1992).</span></ref> Prurient interest and patent offensiveness, the Court indicated, "are essentially questions of fact."<ref><span id="ALDF_00029745">413 U.S. at 30-34. The Court stated: "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. 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 using the mails to transmit pornography, the fact that the legislature of the state in which the transaction occurred had abolished pornography regulation except for dealings with children does not preclude permitting jurors in a 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).</span></ref> By contrast, the prong of the ''[[Miller]]'' test that looked at the material's "value" 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."<ref><span id="ALDF_00029746">''[[Pope v. Illinois]]'', 481 U.S. 497, 500-01 (1987).</span></ref>
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, and the Court's idea of the content of "hard core" pornography was revealed in "a few plain examples of what a state" could regulate: "(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."<ref><span id="ALDF_00029747">''[[Miller v. California]]'', 413 U.S. 15, 25 (1973). Quoting ''Miller''<nowiki>'</nowiki>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. The Court stated: "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.</span></ref> Subsequently, the Court held that a publication was not obscene if it "provoked only normal, healthy sexual desires."<ref><span id="ALDF_00029748">''[[Brockett v. Spokane Arcades, Inc.]]'', 472 U.S. 491, 498 (1985).</span></ref> To be obscene it must appeal to "a shameful or morbid interest in nudity, sex, or excretion."<ref><span id="ALDF_00029749">''Id.''</span></ref> The Court has also indicated that obscenity is not be limited to pictures; books containing only descriptive language may be suppressed.<ref><span id="ALDF_00029750">''[[Kaplan v. California]]'', 413 U.S. 115 (1973).</span></ref>
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."<ref><span id="ALDF_00029751">Id. at 25.</span></ref> While the Court had said juries as triers-of-fact should determine, based on their understanding of community standards, whether material was "patently offensive," it was less clear how appeals courts could appropriately review these jury determinations. In ''[[Jenkins v. Georgia]]'',<ref><span id="ALDF_00029752"> [http://cdn.loc.gov/service/ll/usrep/usrep418/usrep418153/usrep418153.pdf 418 U.S. 153 (1974)].</span></ref> 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."<ref><span id="ALDF_00029753">''Id.'' at 160-61.</span></ref> Viewing the motion picture in question convinced the Court 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."<ref><span id="ALDF_00029754">''Id.'' at 161. The film at issue was ''Carnal Knowledge''.</span></ref> But, in a companion case, the Court found that a jury determination of obscenity "was supported by the evidence and consistent with" the standards.<ref><span id="ALDF_00029755">''[[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 [http://cdn.loc.gov/service/ll/usrep/usrep413/usrep413015/usrep413015.pdf 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 [http://cdn.loc.gov/service/ll/usrep/usrep413/usrep413015/usrep413015.pdf 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.</span></ref>
While the Court's decisions from the ''[[Paris Adult Theatre]]'' and ''[[Miller]]'' era were rendered by narrow majorities,<ref><span id="ALDF_00029756">For other five-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).</span></ref> they have since guided the Court. For example, the Court struck down federal regulations aimed at preventing the transmission of indecent materials over the telephone and internet, where those statutes did not adhere to the ''[[Miller]]'' standard.<ref><span id="ALDF_00029757">''See, e.g.'', ''[[Sable Commc'ns of Cal. v. FCC]]'', 492 U.S. 115, 126 (1989); ''[[Reno v. Aclu]]'', 521 U.S. 844, 874 (1997); ''see also'' .</span></ref> 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,<ref><span id="ALDF_00029758">''[[Stanley v. Georgia]]'', 394 U.S. 557 (1969).</span></ref> unless those materials constitute child pornography. In ''[[Stanley v. Georgia,]]'' the appellant appealed his state conviction for possessing obscene films that police officers discovered in his home pursuant to a search warrant for other items which the police did not find. The Court reversed, holding that mere private possession of obscene materials in the home cannot be 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. The Court stated: "For also fundamental is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy."<ref><span id="ALDF_00029759">''Id.'' at 564.</span></ref> Despite the Court's unqualified assertion in ''[[Roth]]'' that the First Amendment did not protect obscenity, the Court remained concerned with the government interest in regulating commercial distribution of obscene materials. Though the ''[[Stanley]]'' Court said its decision did not impair ''[[Roth]]'' and cases relying on that decision,<ref><span id="ALDF_00029760">''Id.'' at 560-64, 568.</span></ref> by rejecting each state contention in support of a conviction, the Court appeared to reject much of ''[[Roth's]]'' basis. In ''[[Stanley,]]'' the Court made the following points: (1) there is no government interest in protecting an individual's mind from the effect of obscenity; (2) the absence of ideological content in films is irrelevant, since the Court would not distinguish transmission of ideas and entertainment; (3) no empirical evidence supported a contention that exposure to obscene materials may incite a person to antisocial conduct and, even if such evidence existed, government may address this by enforcing laws proscribing the offensive conduct; (4) it is not necessary to punish mere possession in order to punish distribution; and (5) private possession was unlikely to contribute to the problems prompting laws barring public dissemination of obscene materials or exposing children and unwilling adults to such materials.<ref><span id="ALDF_00029761">''Id.'' at 565-68.</span></ref>
The Court has confined ''[[Stanley]]''<nowiki>'</nowiki>s holding to its facts and has also dispelled any suggestion that ''[[Stanley]]'' applies outside the home or recognizes a right to obtain or supply pornography.<ref><span id="ALDF_00029762">''[[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).</span></ref> For instance, the Court has held ''[[Stanley]]'' does not apply to possessing child pornography in the home because the state interest in protecting children from sexual exploitation far exceeds the interest in ''[[Stanley]]'' of protecting adults from themselves.<ref><span id="ALDF_00029763">''[[Osborne v. Ohio]]'', 495 U.S. 103 (1990).</span></ref>
=====Child Pornography=====
In ''[[New York v. Ferber]]'',<ref><span id="ALDF_00029764"> [http://cdn.loc.gov/service/ll/usrep/usrep458/usrep458747/usrep458747.pdf 458 U.S. 747 (1982)]. The Court's decision was unanimous, although there were several limiting concurrences. ''Compare'', ''e.g.'', ''id.'' at 775 (Justice William Brennan, arguing for exemption of "material with serious literary, scientific, or educational value"), ''with'' ''id.'' at 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.</span></ref> the Court recognized another category of expression that is outside the coverage of the First Amendment: the visual depiction of children in films or still photographs in a variety of sexual activities or exposures of the genitals. The reason that such depictions may be prohibited was the governmental interest in protecting the physical 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 of the use of 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 Court held that "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."<ref><span id="ALDF_00029765">''Id.'' at 763-64.</span></ref> But, because expression is involved, the 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."<ref><span id="ALDF_00029766">''Id.'' at 764 (emphasis original). Child pornography need not meet [http://cdn.loc.gov/service/ll/usrep/usrep413/usrep413015/usrep413015.pdf Miller] obscenity standards to be unprotected by the First Amendment. ''Id.'' at 764-65.</span></ref>
The Court has considered cases addressing the private possession of child pornography in the home. In ''[[Osborne v. Ohio]]''<ref><span id="ALDF_00029767"> [http://cdn.loc.gov/service/ll/usrep/usrep495/usrep495103/usrep495103.pdf 495 U.S. 103 (1990)].</span></ref> the Court upheld a state law criminalizing possessing or viewing of child pornography as applied to someone who possessed such materials in his home. Distinguishing a prior case protecting the personal possession of obscene material, 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 obscene material.<ref><span id="ALDF_00029768">''Id'' at 108.</span></ref> Because the state's interest in regulating child pornography was of greater importance, the Court saw less need to require states to demonstrate a strong necessity for regulating private possession in addition to the commercial distribution and sale.
In ''[[Ashcroft v. Free Speech Coalition]]'', the Court held unconstitutional the federal Child Pornography Prevention Act (CPPA) to the extent that it prohibited pictures that were not produced with actual minors.<ref><span id="ALDF_00029769"> [http://cdn.loc.gov/service/ll/usrep/usrep535/usrep535234/usrep535234.pdf 535 U.S. 234 (2002)].</span></ref> The law prohibited computer-generated ("virtual") child pornography, and photographs of adult actors who appeared to be minors, and could have extended to "a Renaissance painting depicting a scene from classical mythology."<ref><span id="ALDF_00029770">''Id.'' at 241.</span></ref> The Court observed that statutes prohibiting child pornography that uses real children are constitutional because they target "[t]he production of the work, not the content."<ref><span id="ALDF_00029771">''Id.'' at 249; ''see also'' ''id.'' at 241.</span></ref> The CPPA, by contrast, targeted the content, not the means of production. The government's rationales for the CPPA included that "[p]edophiles might use the materials to encourage children to participate in sexual activity" and might "whet their own sexual appetites" with it, "thereby increasing . . . the sexual abuse and exploitation of actual children."<ref><span id="ALDF_00029772">''Id.''.</span></ref> The Court found these rationales inadequate because the government "cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts" and "may not prohibit speech because it increases the chance an unlawful act will be committed 'at some indefinite future time.'"<ref><span id="ALDF_00029773">''Id.'' at 253.</span></ref> The government had also argued that the existence of "virtual" child pornography "can make it harder to prosecute pornographers who do use real minors," because, "[a]s imaging technology improves . . . , it becomes more difficult to prove that a particular picture was produced using actual children."<ref><span id="ALDF_00029774">''Id.'' at 242.</span></ref> This rationale, the Court found, "turns the First Amendment upside down. The Government may not suppress lawful speech as a means to suppress unlawful speech."<ref><span id="ALDF_00029775">''Id.'' at 255. Following ''[[Ashcroft v. Free Speech Coalition]]'', Congress enacted the PROTECT Act, Pub. L. No. 108-21, 117 Stat. 650 (2003), which, despite the decision in that case, defined "child pornography" so as to continue to prohibit computer-generated child pornography (but not other types of child pornography produced without an actual minor). [https://uscode.house.gov/view.xhtml?req=(title:18%20section:2256%20edition:prelim)%20OR%20(granuleid:USC-prelim-title18-section2256)&amp;f=treesort&amp;num=0&amp;edition=prelim 18 U.S.C. &#167; 2256] (8)(B). In ''[[United States v. Williams]]'', 128 S. Ct. 1830, 1836 (2008), the Court, without addressing the PROTECT Act's new definition, cited ''[[Ashcroft v. Free Speech Coalition]]'' with approval.</span></ref>
In ''[[United States v. Williams]]'',<ref><span id="ALDF_00029776"> [https://cite.case.law/us/553/285/?full_case=true&amp;format=html 553 U.S. 285 (2008)].</span></ref> the Supreme Court upheld a federal statute that prohibits knowingly advertising, promoting, presenting, distributing, or soliciting material "in a manner that reflects the belief, or that is intended to cause another to believe, that the material" is child pornography that is obscene or that depicts an actual minor (that is, is child pornography that is not constitutionally protected).<ref><span id="ALDF_00029777"> [https://uscode.house.gov/view.xhtml?req=(title:18%20section:2252A%20edition:prelim)%20OR%20(granuleid:USC-prelim-title18-section2252A)&amp;f=treesort&amp;num=0&amp;edition=prelim 18 U.S.C. &#167; 2252A](a)(3)(B).</span></ref> Under the provision, in other words, "an Internet user who solicits child pornography from an undercover agent violates the statute, even if the officer possesses no child pornography. Likewise, a person who advertises virtual child pornography as depicting actual children also falls within the reach of the statute."<ref><span id="ALDF_00029778">128 S. Ct. at 1839.</span></ref> The Court found that these activities are not constitutionally protected because "[o]ffers to engage in illegal transactions [as opposed to abstract advocacy of illegality] are categorically excluded from First Amendment protection," even "when the offeror is mistaken about the factual predicate of his offer," such as when the child pornography that one offers to buy or sell does not exist or is constitutionally protected.<ref><span id="ALDF_00029779">128 S. Ct. at 1841, 1842, 1843. In a dissenting opinion joined by Justice Ruth Bader Ginsburg, Justice David Souter agreed that "Congress may criminalize proposals unrelated to any extant image," but disagreed with respect to "proposals made with regard to specific, existing [constitutionally protected] representations." ''Id.'' at 1849. Justice David Souter believed that, "if the Act stands when applied to identifiable, extant [constitutionally protected] pornographic photographs, then in practical terms ''Ferber'' and ''Free Speech Coalition'' fall. They are left as empty as if the Court overruled them formally" ''Id.'' at 1854. Justice Antonin Scalia's opinion for the majority replied that this "is simply not true . . . Simulated child pornography will be as available as ever, so long as it is offered and sought ''as such'', and not as real child pornography . . . There is no First Amendment exception from the general principle of criminal law that a person attempting to commit a crime need not be exonerated because he has a mistaken view of the facts." ''Id.'' at 1844-45.</span></ref>
However, the principles applying to child pornography do not extend to protecting children from encountering sexually explicit material. Although the government has a "compelling" interest in protecting children from seeing or hearing indecent material, total bans applicable to adults and children alike are constitutionally suspect.<ref><span id="ALDF_00029780">''See'' ''[[Sable Commc'ns 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). [http://cdn.loc.gov/service/ll/usrep/usrep438/usrep438726/usrep438726.pdf 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. Similar rules apply to regulation of cable TV. In ''[[Denver Area Educ. Telecommc'ns Consortium]]'', 518 U.S. 727, 755 (1996), the Court, acknowledging that protection of children from sexually explicit programming is a "compelling" governmental interest (but refusing to determine whether strict scrutiny applies), nonetheless struck down a requirement that cable operators segregate and block indecent programming on leased access channels. The segregate-and-block restrictions, which included a requirement that a request for access be in writing, and which allowed for up to thirty days' delay in blocking or unblocking a channel, were not sufficiently protective of adults' speech and viewing interests to be considered either narrowly or reasonably tailored to serve the government's compelling interest in protecting children. In ''[[United States v. Playboy Ent. Group, Inc.]]'', 529 U.S. 803 (2000), the Supreme Court, explicitly applying strict scrutiny to a content-based speech restriction on cable TV, struck down a federal statute designed to "shield children from hearing or seeing images resulting from signal bleed." ''Id.'' at 806. In striking down the Communications Decency Act of 1996, the Court would "neither accept nor reject the Government's submission that the First Amendment does not forbid a blanket prohibition on all 'indecent' and 'patently offensive' messages communicated to a 17-year-old--no matter how much value the message may have and regardless of parental approval. It is at least clear that the strength of the Government's interest in protecting minors is not equally strong throughout the coverage of this broad statute." ''[[Reno v. ACLU]]'', 521 U.S. 844 (1997). In ''[[Playboy Ent. Grp.]]'', 529 U.S. at 825, the Court wrote: "Even upon the assumption that the government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech." The Court also would "not discount the possibility that a graphic image could have a negative impact on a young child" (''id.'' at 826), thereby suggesting again that it may take age into account when applying strict scrutiny.</span></ref> In ''[[Reno v. American Civil Liberties Union]]'',<ref><span id="ALDF_00029781"> [http://cdn.loc.gov/service/ll/usrep/usrep521/usrep521844/usrep521844.pdf 521 U.S. 844 (1997)].</span></ref> the Court struck down two provisions of the Communications Decency Act of 1996 (CDA), one of which would have prohibited use of an "interactive computer service" to display indecent material "in a manner available to a person under 18 years of age."<ref><span id="ALDF_00029782">The other provision the Court struck down would have prohibited indecent communications, by telephone, fax, or e-mail, to minors. ''Id.''</span></ref> This prohibition would, in effect, have banned indecent material from all internet sites except those accessible only by adults. Although intended "to deny minors access to potentially harmful speech . . . , [the CDA's] burden on adult speech," the Court wrote, "is unacceptable if less restrictive alternatives would be at least as effective. . . . [T]he Government may not 'reduc[e] the adult population . . . to . . . only what is fit for children.'"<ref><span id="ALDF_00029783">''Id.'' at 874-75. The Court did not address whether, if less restrictive alternatives would not be as effective, the government would then be permitted to reduce the adult population to only what is fit for children. ''Id.''</span></ref>
In ''[[Reno]]'', the Court distinguished ''[[FCC v. Pacifica Foundation]]'',<ref><span id="ALDF_00029784"> [http://cdn.loc.gov/service/ll/usrep/usrep438/usrep438726/usrep438726.pdf 438 U.S. 726 (1978)].</span></ref> in which it had upheld the Federal Communications Commission's (FCC) restrictions on indecent radio and television broadcasts, because (1) "[t]he CDA's broad categorical prohibitions are not limited to particular times and are not dependent on any evaluation by an agency familiar with the unique characteristics of the Internet," (2) the CDA imposes criminal penalties, and the Court has never decided whether indecent broadcasts "would justify a criminal prosecution," and (3) broadcast radio and television, unlike the internet, have, "as a matter of history . . . 'received the most limited First Amendment protection,' . . . in large part because warnings could not adequately protect the listener from unexpected program content."<ref><span id="ALDF_00029785">521 U.S. at 867.</span></ref> By contrast, on the internet, at least as it existed in 1997, the Court believed "the risk of encountering indecent material by accident is remote because a series of affirmative steps is required to access specific material."<ref><span id="ALDF_00029786">''Id.''</span></ref>
After the Supreme Court struck down the CDA, Congress enacted the Child Online Protection Act (COPA), which banned "material that is harmful to minors" on websites that have the objective of earning a profit.<ref><span id="ALDF_00029787">"Harmful to minors" statutes ban the distribution of material to minors that is not necessarily obscene under the ''Miller'' test. In ''[[Ginsberg v. New York]]'', 390 U.S. 629, 641 (1968), the Supreme Court, applying a rational basis standard, upheld New York's harmful-to-minors statute.</span></ref> In ''[[ACLU v. Reno,]]'' the Third Circuit upheld a preliminary injunction against enforcement of the statute on the ground that, "because the standard by which COPA gauges whether material is 'harmful to minors' is based on identifying 'contemporary community standards[,]' the inability of Web publishers to restrict access to their Web sites based on the geographic locale of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech."<ref><span id="ALDF_00029788">''[[ACLU v. Reno]]'', 217 F.3d 162, 166 (3d Cir. 2000).</span></ref> The Third Circuit reasoned that COPA would have resulted in communications available to a nationwide audience being judged by the standards of the community most likely to be offended. In ''[[Ashcroft v. ACLU,]]'' the Supreme Court vacated and remanded the Third Circuit decision, holding "that COPA's reliance on community standards to identify 'material that is harmful to minors' does not ''by itself'' render the statute substantially overbroad for purposes of the First Amendment."<ref><span id="ALDF_00029789">''[[Ashcroft v. ACLU]]'', 535 U.S. 564, 585 (2002).</span></ref>
Upon remand, the Third Circuit again upheld the preliminary injunction, and the Supreme Court affirmed and remanded the case for trial. The Supreme Court found that the district court had not abused its discretion in granting the preliminary injunction, because the government had failed to show that proposed alternatives to COPA would not be as effective in accomplishing its goal. The primary alternative to COPA, the Court noted, is blocking and filtering software. Filters are less restrictive than COPA because "[t]hey impose selective restrictions on speech at the receiving end, not universal restriction at the source."<ref><span id="ALDF_00029790">''Id.'' at 667. Justice Stephen Breyer, dissenting, wrote that blocking and filtering software is not a less restrictive alternative because "it is part of the status quo" and "[i]t is always less restrictive to do ''nothing'' than to do ''something''." ''Id.'' at 684. The majority opinion countered that Congress "may act to encourage the use of filters," and "[t]he need for parental cooperation does not automatically disqualify a proposed less restrictive alternative." ''Id.'' at 669.</span></ref> Subsequently, the district court found COPA to violate the First Amendment and issued a permanent injunction against its enforcement; the Third Circuit affirmed, and the Supreme Court denied certiorari.<ref><span id="ALDF_00029791">''[[ACLU v. Gonzales]]'', 478 F. Supp. 2d 775 (E.D. Pa. 2007), ''aff'd sub nom.'' ''[[ACLU v. Mukasey]]'', 534 F.3d 181 (3d Cir. 2008), ''cert. denied'', <cite full="Mukasey v. American Civil Liberties Union, 555 U.S. 1137 (2009)" type="case"></cite>555 U.S. 1137 (2009).</span></ref>
In ''[[United States v. American Library Association, Inc.]]'', a four-Justice plurality of the Supreme Court upheld the Children's Internet Protection Act (CIPA), which, as the plurality summarized it, provides that a public school or "library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them."<ref><span id="ALDF_00029792"> [http://cdn.loc.gov/service/ll/usrep/usrep539/usrep539194/usrep539194.pdf 539 U.S. 194, 199 (2003)].</span></ref> The plurality asked "whether libraries would violate the First Amendment by employing the filtering software that CIPA requires"<ref><span id="ALDF_00029793">''Id.'' at 203.</span></ref>--in other words, whether CIPA would effectively violate library ''patrons''<nowiki>'</nowiki> rights. The plurality concluded that it did not, after finding that "Internet access in public libraries is neither a 'traditional' nor a 'designated' public forum," and that it therefore would not be appropriate to apply strict scrutiny to determine whether the filtering requirements are constitutional.<ref><span id="ALDF_00029794">''Id.'' at 205.</span></ref> The plurality acknowledged "the tendency of filtering software to 'overblock'--that is, to erroneously block access to constitutionally protected speech that falls outside the categories that software users intend to block."<ref><span id="ALDF_00029795">''Id.'' at 208.</span></ref> It found, however, that, "[a]ssuming that such erroneous blocking presents constitutional difficulties, any such concerns are dispelled by the ease with which patrons may have the filtering software disabled."<ref><span id="ALDF_00029796">''Id.'' at 209. Justice Anthony Kennedy, concurring, noted that, "[i]f some libraries do not have the capacity to unblock specific Web sites or to disable the filter . . . that would be the subject for an as-applied challenge, not the facial challenge made in this case." ''Id.'' at 215. Justice David Souter, dissenting, noted that "the statute says only that a library 'may' unblock, not that it must." ''Id.'' at 233.</span></ref>
The plurality also considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance--in other words, whether the government can require public ''libraries'' to limit their speech if they accept federal funds. The plurality found that, assuming that government entities have First Amendment rights (it did not decide the question), "CIPA does not 'penalize' libraries that choose not to install such software, or deny them the right to provide their patrons with unfiltered Internet access. Rather, CIPA simply reflects Congress's decision not to subsidize their doing so."<ref><span id="ALDF_00029797">''Id.'' at 212.</span></ref>
====Commercial Speech====
=====Commercial Speech Early Doctrine=====
In the 1970s, the Court's treatment of "commercial speech" changed from total nonprotection under the First Amendment to qualified protection. In 1942, the Court had stated that speech concerning commercial transactions is undeserving of First Amendment protection in ''[[Valentine v. Chrestensen]]''.<ref><span id="ALDF_00006724"> [http://cdn.loc.gov/service/ll/usrep/usrep316/usrep316052/usrep316052.pdf 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 Broad. Co. v. Mitchell]]'', 333 F. Supp. 582 (D.D.C. 1971) (three-judge court), ''aff'd per curiam'', 405 U.S. 1000 (1972).</span></ref> In ''[[Chrestensen]]'', the Court upheld a city ordinance prohibiting distributing on the street "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 ''[[Chrestensen]]'' doctrine was limited to expression promoting commercial activities; whether the speaker disseminated his expression for profit or through commercial channels did not subject it to any greater regulation than if he offered it for free.<ref><span id="ALDF_00006725">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, ''[[N.Y. Times Co. v. Sullivan]]'', 376 U.S. 254, 265-66 (1964), and 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.</span></ref> The doctrine lasted in this form for decades, until the Court's approach began shifting in the 1970s.
Relying on the ''[[Chrestensen]]'' doctrine in a 5-4 decision issued in 1973, the Court sustained the application of a city's ban on employment discrimination to bar sex-designated employment advertising in a newspaper.<ref><span id="ALDF_00006727">''[[Pittsburgh Press Co. v. Comm'n on Hum. Rels.]]'', 413 U.S. 376 (1973).</span></ref> Suggesting that speech does not lose its constitutional protection simply because it appears in a commercial context, the Court nonetheless described placing want-ads in newspapers as "classic examples of commercial speech," controlled by ''[[Chrestensen]]'' because they were devoid of expressions relating to social policy and "did no more than propose a commercial transaction." But the Court also noted that the advertisements facilitated employment discrimination, which was itself illegal.<ref><span id="ALDF_00006728">''Id.'' at 385, 389. The Court continues to hold that government may ban commercial speech related to illegal activity. ''[[Cent. Hudson Gas &amp; Elec. Corp. v. PSC]]'', 447 U.S. 557, 563-64 (1980).</span></ref>
In 1975, the Court overturned a conviction under a state statute that made it illegal for any publication by sale or circulation to encourage or prompt procuring an abortion. The Court held the statute unconstitutional 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 assistance that state residents could get to obtain abortions in the other state.<ref><span id="ALDF_00006729">''[[Bigelow v. Virginia]]'', 421 U.S. 809 (1975).</span></ref> Distinguishing ''[[Chrestensen]]'', 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.
In 1976, the Court eliminated these distinctions by disclaiming ''[[Chrestensen]]''<nowiki>'</nowiki>s commercial speech "exception" to the First Amendment as it voided a statute that effectively prohibited licensed pharmacists from advertising prescription drug prices.<ref><span id="ALDF_00006730">''[[Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council]]'', 425 U.S. 748 (1976).</span></ref> In 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 and entitled to protection. Noting that consumers' interests in receiving factual information about prices may sometimes be even "keener" than their interest in political debate, the Court concluded that price competition and access to information about it serves the public interest.<ref><span id="ALDF_00001360">''Id.'' at 763-64.</span></ref> The Court ruled that state interests in the ban--protecting professionalism and the quality of prescription goods--were either badly served or not served by the statute.<ref><span id="ALDF_00006731">''Id.'' at 766-70.</span></ref>
Turning from the interests of consumers to receive information to that of advertisers to communicate, the Court in 1977 voided a municipal ordinance that barred displaying "For sale" and "Sold" signs on residential lawns, purportedly to limit "white flight" resulting from a "fear psychology" that developed among White residents following sale of homes to non-Whites. 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 may not be achieved by restricting the free flow of truthful information.<ref><span id="ALDF_00006732">''[[Linmark Assocs. v. Twp. of Willingboro]]'', 431 U.S. 85 (1977).</span></ref>
=====Central Hudson Test and Current Doctrine=====
The Supreme Court established the standard that generally governs government restrictions on commercial speech in 1980's ''Central Hudson Gas &amp; Electric Corp. v. Public Service Commission''.<ref><span id="ALDF_00001361"> [http://cdn.loc.gov/service/ll/usrep/usrep447/usrep447557/usrep447557.pdf 447 U.S. 557, 566 (1980)].</span></ref> In that case, the Court explained that commercial speech enjoys "lesser protection" than "other constitutionally guaranteed expression."<ref><span id="ALDF_00001362">''Id.'' at 563. 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. ''[[Va. State Bd. of Pharmacy v. Va. 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).</span></ref> After emphasizing that First Amendment protection for commercial speech "is based on the informational function of advertising, " the Court said that "there can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public about lawful activity."<ref><span id="ALDF_00001363">''[[Cent. Hudson]]'', 447 U.S. at 563.</span></ref> Accordingly, the Court held that the government may prohibit "forms of communication more likely to deceive the public than to inform it" as well as "commercial speech related to illegal activity."<ref><span id="ALDF_00001364">''Id.'' at 563-64.</span></ref> But if the regulated "communication is neither misleading nor related to unlawful activity," the government's action is subject to intermediate scrutiny.<ref><span id="ALDF_00001365">''Id.'' at 564.</span></ref> Under ''Central Hudson''<nowiki>'</nowiki>s intermediate standard, the government must prove that its interest is "substantial," and that the regulation "directly advances" that interest and is "not more extensive than is necessary to serve that interest."<ref><span id="ALDF_00001366">''Id.'' at 566.</span></ref> In ''Central Hudson'', the Court ruled a state regulation banning promotional advertising by electric utilities unconstitutional.<ref><span id="ALDF_00001404">''Id.'' at 568, 572.</span></ref> Although the Court recognized the state's alleged interests in energy conservation and equitable pricing as substantial, it concluded the total ban was not sufficiently narrowly tailored to the government's interest.<ref><span id="ALDF_00001405">''Id.'' at 568-71.</span></ref> The Court stressed that the state regulation extended to "all promotional advertising, regardless of the impact of the touted service on overall energy use"--including barring advertisements of more energy efficient products.<ref><span id="ALDF_00001406">''Id.'' at 570.</span></ref>
The Court has since described ''Central Hudson'' as setting out a four-pronged test for restraints upon commercial expression.<ref><span id="ALDF_00001407">In one case, the Court referred to the test as having three prongs, referring to its second, third, and fourth prongs, as, respectively, its first, second, and third. The Court in that case did, however, apply ''[[Central Hudson]]''<nowiki>'</nowiki>s first prong as well. ''[[Fl. Bar v. Went For It, Inc.]]'', 515 U.S. 618, 624 (1995).</span></ref> The test applies to commercial speech, which the Court has defined alternately as speech that "does 'no more than propose a commercial transaction'"<ref><span id="ALDF_00001408">''[[Va. State Bd. of Pharm.]]'', 425 U.S. at 762 (quoting ''[[Pittsburgh Press Co. v. Pittsburgh Comm'n on Hum. Rels.]]'', 413 U.S. 376, 385 (1973)).</span></ref> and as "expression related solely to the economic interests of the speaker and its audience."<ref><span id="ALDF_00001409">''[[Cent. Hudson]]'', 447 U.S. at 561. The Court has viewed as noncommercial the advertising of views on public policy that would inhere to the economic benefit of the speaker. ''[[Consolidated Edison Co. v. PSC]]'', 447 U.S. 530 (1980). ''See also'', ''e.g.'', ''[[Harris v. Quinn]]'', 573 U.S. 616, 648 (2014) (holding that union speech on matters of public concern did "much more than" propose a commercial transaction). 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. Nat'l 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. ''[[Bd. of Trs. v. Fox]]'', 492 U.S. 469 (1989). The mere 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).</span></ref> The Court has also distinguished laws that regulate the conduct of sellers--an "area traditionally subject to government regulation"--from those that regulate a seller's speech.<ref><span id="ALDF_00001410">''[[Ohralik v. Ohio State Bar Ass'n]]'', 436 U.S. 447, 456 (1978). In ''[[Ohralik]]'', the Court said it could cite "[n]umerous examples . . . of communications that are regulated without offending the First Amendment, such as the exchange of information about securities, corporate proxy statements, the exchange of price and production information among competitors, and employers' threats of retaliation for the labor activities of employees." ''Id.'' at 456 (citations omitted).</span></ref> In ''[[Expressions Hair Design v. Schneiderman]]'', the Court held that a New York State statute that prohibited businesses from displaying a cash price alongside a surcharge for credit card purchases burdened speech.<ref><span id="ALDF_00006738">581 U.S. 37 (2017).</span></ref> Relying on Supreme Court precedent suggesting that "price regulation alone regulates conduct, not speech," the lower court held that the statute was constitutional.<ref><span id="ALDF_00006739">''Id.'' at 5.</span></ref> The Supreme Court disagreed, stating "[w]hat the law does regulate is how sellers may communicate their prices," and "[i]n regulating the communication of prices rather than prices themselves, [the statute] regulates speech."<ref><span id="ALDF_00006740">''Id.'' at 9-10.</span></ref> The Court, however, remanded the case to the lower court to determine in the first instance whether the law survives First Amendment scrutiny.<ref><span id="ALDF_00006741">''Id.'' at 1.</span></ref>
Under the first prong of the test, certain commercial speech is not entitled to protection; the informational function of advertising is the First Amendment concern and if an advertisement does not accurately inform the public about lawful activity, it can be suppressed.<ref><span id="ALDF_00006751">''[[Cent. Hudson Gas &amp; Elec. Co. v. PSC]]'', 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 Hum. Rels.]]'', 413 U.S. 376 (1973).</span></ref> Accordingly, 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 use of the same or similar trade names.<ref><span id="ALDF_00006747">''[[Friedman v. Rogers]]'', 440 U.S. 1 (1979).</span></ref> 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.<ref><span id="ALDF_00006752">''[[Cent. Hudson Gas &amp; Elec. Co. v. PSC]]'', 447 U.S. 557, 564, 568-69 (1980). ''See also'' ''[[San Francisco Arts &amp; Athletics, Inc. v. U.S. Olympic Comm.]]'', 483 U.S. 522 (1987) (governmental interest in protecting USOC's exclusive use of word "Olympic" is substantial); ''[[Rubin v. Coors Brewing Co.]]'', 514 U.S. 476 (1995) (government's interest in curbing strength wars among brewers is substantial, but interest in facilitating state regulation of alcohol is not substantial). ''Contrast'' ''[[United States v. Edge Broad. Co.]]'', 509 U.S. 418 (1993), finding a substantial federal interest in facilitating state restrictions on lotteries. "Unlike the situation in ''[[Edge Broadcasting]]''," the ''[[Coors]]'' Court explained, "the policies of some states do not prevent neighboring states from pursuing their own alcohol-related policies within their respective borders." 514 U.S. at 486. 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. ''Accord'' ''[[Matal v. Tam]]'', 582 U.S. 218 (2017).</span></ref> Third, the restriction cannot be sustained if it provides only ineffective or remote support for the asserted purpose.<ref><span id="ALDF_00006753">447 U.S. at 569. The ban here was found to directly advance one of the proffered interests. ''Contrast'' this holding ''with'' ''[[Bates v. State Bar of Ariz.]]'', 433 U.S. 350 (1977); ''[[Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council]]'', 425 U.S. 748 (1976); ''[[Bolger v. Youngs Drug Products Corp.]]'', 463 U.S. 60 (1983); ''[[Rubin v. Coors Brewing Co.]]'', 514 U.S. 476 (1995) (prohibition on display of alcohol content on beer labels does not directly and materially advance government's interest in curbing strength wars among brewers, given the inconsistencies and "overall irrationality" of the regulatory scheme); and ''[[Edenfield v. Fane]]'', 507 U.S. 761 (1993) (Florida's ban on in-person solicitation by certified public accountants does not directly advance its legitimate interests in protecting consumers from fraud, protecting consumer privacy, and maintaining professional independence from clients), where the restraints were deemed indirect or ineffectual.</span></ref> Instead, the regulation must "directly advance" the governmental interest. The Court resolves this issue with reference to aggregate effects, and does not limit its consideration to effects on the challenging litigant.<ref><span id="ALDF_00006754">''[[United States v. Edge Broad. Co.]]'', 509 U.S. 418, 427 (1993) ("this question cannot be answered by limiting the inquiry to whether the governmental interest is directly advanced as applied to a single person or entity").</span></ref> Fourth, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restriction cannot survive.<ref><span id="ALDF_00006755">''[[Cent. Hudson Gas &amp; Elec. Co. v. PSC]]'', 447 U.S. 557, 565, 569-71 (1980). ''See also'' ''[[Bolger v. Youngs Drug Products Corp.]]'', 463 U.S. 60 (1983) (ruling 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); ''[[Rubin v. Coors Brewing Co.]]'', 514 U.S. 476 (1995) (there are less intrusive alternatives--''e.g.'', direct limitations on alcohol content of beer--to prohibition on display of alcohol content on beer label); ''[[Matal v. Tam]]'', No. 15-1293, slip op. at 25-26 (U.S. June 19, 2017) (ruling that a ban on disparaging trademarks was not "narrowly drawn" to the government's interest in "protecting the orderly flow of commerce"). Note, however, that, in ''[[San Francisco Arts &amp; Athletics, Inc. v. U.S. Olympic Comm.]]'', 483 U.S. 522, 539 (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."</span></ref>
Although ''Central Hudson'' described the fourth prong as testing whether a restriction is more extensive than necessary, the Court has rejected the idea that a "least restrictive means" test is required.<ref><span id="ALDF_00001411">Board of Trustees v. Fox, 492 U.S. 469, 476-77 (1989).</span></ref> Instead, what is required is a reasonable "fit" between means and ends, with the means "narrowly tailored to achieve the desired objective."<ref><span id="ALDF_00006756">''[[Bd. of Trs. v. Fox]]'', 492 U.S. 469, 480 (1989). In a 1993 opinion the Court elaborated on the difference between reasonable fit and least restrictive alternative. "A regulation need not be 'absolutely the least severe that will achieve the desired end,' but if there are numerous and obvious less-burdensome alternatives to the restriction . . . , that is certainly a relevant consideration in determining whether the 'fit' between ends and means is reasonable." ''[[City of Cincinnati v. Discovery Network, Inc.]]'', 507 U.S. 410, 417 n.13 (1993).</span></ref> The Court, however, does "not equate this test with the less rigorous obstacles of rational basis review; . . . the existence of 'numerous and obvious less-burdensome alternatives to the restriction on commercial speech . . . is certainly a relevant consideration in determining whether the 'between ends and means is reasonable.'"<ref><span id="ALDF_00006757">''[[Fl. Bar v. Went For It, Inc.]]'', 515 U.S. 618, 632 (1995). ''See'', ''e.g.'', Thompson v. W. States Med. Ctr., 535 U.S. 357, 371-72 (2002) (discussing previous cases in which the Court had looked to the availability of less-speech restrictive alternatives for the government to achieve its interests).</span></ref>
In ''[[City of Cincinnati v. Discovery Network, Inc.]]'',<ref><span id="ALDF_00006758"> [http://cdn.loc.gov/service/ll/usrep/usrep507/usrep507410/usrep507410.pdf 507 U.S. 410 (1993)]. ''See also'' ''[[Edenfield v. Fane]]'', 507 U.S. 761 (1993), decided the same Term, relying on the "directly advance" third prong of ''[[Central Hudson]]'' to strike down a ban on in-person solicitation by certified public accountants.</span></ref> the Court showed the importance of the "reasonable fit" standard by striking down a city's prohibition on distributing "commercial handbills" through freestanding newsracks located on city property. The city's aesthetic interest in reducing visual clutter was furthered by reducing the total number of newsracks, but the distinction between prohibited "commercial" publications and permitted "newspapers" bore "no relationship ''whatsoever''" to this legitimate interest.<ref><span id="ALDF_00006759">507 U.S. at 424.</span></ref> The city could not, the Court ruled, single out commercial speech to bear the full onus when "all newsracks, regardless of whether they contain commercial or noncommercial publications, are equally at fault."<ref><span id="ALDF_00006760">''Id.'' at 426. The Court also noted the "minute" effect of removing sixty-two "commercial" newsracks while 1,500 to 2,000 other newsracks remained in place. ''Id.'' at 418.</span></ref>
Accordingly, as in ''Central Hudson'' itself, the Court has sometimes struck down total bans as insufficiently narrowly tailored. For instance, the Court held that a state could not forbid lawyers from advertising the prices they charged for performing routine legal services.<ref><span id="ALDF_00006733">''[[Bates v. State Bar of Ariz.]]'', 433 U.S. 350 (1977). Chief Justice Warren Burger and Justices Lewis Powell, Potter Stewart, and William Rehnquist dissented. ''Id.'' at 386, 389, 404.</span></ref> The Court did not deem any of the proffered state justifications for the ban sufficient to overcome the private and societal interest in the free exchange of this form of speech.<ref><span id="ALDF_00006734">''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).</span></ref> The Court also held that a state may not categorically prohibit attorney advertising through mailings that target persons known to face particular legal problems,<ref><span id="ALDF_00006735">''[[Shapero v. Ky. Bar Ass'n]]'', 486 U.S. 466 (1988). ''[[Shapero]]'' was distinguished in ''[[Florida Bar v. Went For It, Inc.]]'', 515 U.S. 618 (1995), a 5-4 decision upholding a prohibition on targeted direct-mail solicitations to victims and their relatives for a 30-day period following an accident or disaster. "''[[Shapero]]'' dealt with a broad ban on ''all'' direct mail solicitations" (''id.'' at 629), the Court explained, and was not supported, as Florida's more limited ban was, by findings describing the harms to be prevented by the ban. Dissenting Justice Anthony Kennedy disagreed that there was a valid distinction, pointing out that in ''[[Shapero]]'' the Court had said that "the mode of communication [mailings versus potentially more abusive in-person solicitation] makes all the difference," and that mailings were at issue in both ''[[Shapero]]'' and ''[[Florida Bar]]''. 515 U.S. at 637 (quoting ''[[Shapero]]'', 486 U.S. at 475).</span></ref> or prohibit an attorney from holding himself out as a certified civil trial specialist,<ref><span id="ALDF_00006736">''[[Peel v. Il. Att'y Disciplinary Comm'n]]'', 496 U.S. 91 (1990).</span></ref> or prohibit a certified public accountant (CPA) from holding herself out as a certified financial planner.<ref><span id="ALDF_00006737">''[[Ibanez v. Fl. Bd. of Acct.]]'', 512 U.S. 136 (1994) (also ruling that Accountancy Board could not reprimand the CPA, who was also a licensed attorney, for truthfully listing her CPA credentials in advertising for her law practice).</span></ref>
Nonetheless, as stated, the Court's current commercial speech doctrine does not require the least restrictive means, and the Court has upheld a number of commercial speech restrictions under this intermediate scrutiny standard. For instance, in ''[[Ohralik v. Ohio State Bar Ass'n]]'', the Supreme Court rejected a constitutional challenge to a state regulation restricting person-to-person solicitation of clients by attorneys.<ref><span id="ALDF_00006742">''[[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").</span></ref> Similarly, the Court upheld a rule prohibiting high school coaches from recruiting middle school athletes, finding that "the dangers of undue influence and overreaching that exist when a lawyer chases an ambulance are also present when a high school coach contacts an eighth grader."<ref><span id="ALDF_00006743">''[[Tenn. Secondary Sch. Athletic Ass'n v. Brentwood Acad.]]'', 551 U.S. 291, 298 (2007).</span></ref> The Court later refused, however, to extend this principle to in-person solicitation by certified public accountants, explaining that CPAs, unlike attorneys, are not professionally "trained in the art of persuasion," and that the typical business executive client of a CPA is "far less susceptible to manipulation" than was the accident victim in ''[[Ohralik]]''.<ref><span id="ALDF_00006744">''[[Edenfield v. Fane]]'', 507 U.S. 761, 775 (1993).</span></ref> A ban on personal solicitation is "justified only in situations 'inherently conducive to overreaching and other forms of misconduct.'"<ref><span id="ALDF_00006745">''Id.'' at 774 (quoting [http://cdn.loc.gov/service/ll/usrep/usrep436/usrep436447/usrep436447.pdf Ohralik], 436 U.S. at 464).</span></ref> To allow enforcement of such a broad prophylactic rule absent identification of a serious problem such as ambulance chasing, the Court explained, would dilute commercial speech protection "almost to nothing."<ref><span id="ALDF_00006746">507 U.S. at 777.</span></ref>
Two additional cases illustrate application of the intermediate scrutiny standard. In 1993, the Court upheld a federal law that prohibited broadcasters from broadcasting lottery advertisements in states that prohibit lotteries, while allowing stations in states that sponsor lotteries to broadcast such ads. The Court held there was a "reasonable fit" between the restriction and the asserted federal interest in supporting state anti-gambling policies without unduly interfering with policies of neighboring states that promote lotteries.<ref><span id="ALDF_00006761">''[[United States v. Edge Broad. Co.]]'', 509 U.S. 418 (1993).</span></ref> The prohibition "directly served" the congressional interest, and could be applied to a broadcaster whose principal audience was in an adjoining lottery state, and who sought to run ads for that state's lottery.<ref><span id="ALDF_00006762">507 U.S. at 428.</span></ref>
Six years later, the Court struck down a provision of the same statute as applied to advertisements for private casino gambling that are broadcast by radio and television stations located in a state where such gambling is legal.<ref><span id="ALDF_00006763">''[[Greater New Orleans Broad. Ass'n, Inc. v. United States]]'', 527 U.S. 173 (1999).</span></ref> The Court emphasized the interrelatedness of the four parts of the ''[[Central Hudson]]'' test: "Each [part] raises a relevant question that may not be dispositive to the First Amendment inquiry, but the answer to which may inform a judgment concerning the other three."<ref><span id="ALDF_00006764">''Id.'' at 184.</span></ref> For example, although the Court recognized the government had a substantial interest in reducing the social costs of gambling, the fact that Congress has simultaneously encouraged gambling, because of its economic benefits, made it more difficult for the government to demonstrate that its restriction on commercial speech materially advanced its asserted interest and constituted a reasonable "fit."<ref><span id="ALDF_00006765">''Id.'' at 186-87.</span></ref> In this case, the federal law's operation was "so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it."<ref><span id="ALDF_00006766">''Id.'' at 190.</span></ref> Moreover, the Court noted "the regulation distinguishes among the indistinct, permitting a variety of speech that poses the same risks the Government purports to fear, while banning messages unlikely to cause any harm at all."<ref><span id="ALDF_00006767">''Id.'' at 195.</span></ref>
As mentioned above, the Supreme Court has sometimes suggested that the government has greater power to regulate commercial speech because it "occurs in an area traditionally subject to government regulation."<ref><span id="ALDF_00001412">''[[Ohralik v. Ohio State Bar Ass'n]]'', 436 U.S. 447, 455-56 (1978). ''See also, e.g.'', ''[[Sorrell v. IMS Health Inc.]]'', 564 U.S. 552, 567 (2011) ("[T]he First Amendment does not prevent restrictions directed at commerce or conduct from imposing incidental burdens on speech.").</span></ref>In ''[[Posadas de Puerto Rico Assocs. v. Tourism Co. of Puerto Rico]]'', the Court seemed to take this principle further when it asserted that "the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling."<ref><span id="ALDF_00006768"> [http://cdn.loc.gov/service/ll/usrep/usrep478/usrep478328/usrep478328.pdf 478 U.S. 328, 345-46 (1986)].</span></ref> Subsequently, however, the Court eschewed reliance on this language,<ref><span id="ALDF_00006769">In ''[[Rubin v. Coors Brewing Co.]]'', 514 U.S. 476 (1995) (invalidating a federal ban on revealing alcohol content on malt beverage labels), the Court rejected reliance on ''[[Posadas]]'', pointing out that the statement in ''[[Posadas]]'' had been made only after a determination that the advertising could be upheld under ''[[Central Hudson]]''. The Court found it unnecessary to consider the greater-includes-lesser argument in ''[[United States v. Edge Broadcasting Co.]]'', 509 U.S. 418, 427 (1993), upholding through application of ''[[Central Hudson]]'' principles a ban on broadcast of lottery ads.</span></ref> and a majority of the Court ultimately rejected ''Posadas'' in ''[[44 Liquormart, Inc. v. Rhode Island]]'',<ref><span id="ALDF_00006770"> [http://cdn.loc.gov/service/ll/usrep/usrep517/usrep517484/usrep517484.pdf 517 U.S. 484 (1996)].</span></ref> striking down the state's ban on advertisements that provide truthful information about liquor prices. The plurality opinion in ''[[44 Liquormart]]'' called ''[[Posadas]]''<nowiki>'</nowiki>s First Amendment analysis "erroneous," declining to give force to its "highly deferential approach," and proclaiming that a state "does not have the broad discretion to suppress truthful, nonmisleading information for paternalistic purposes that the ''[[Posadas]]'' majority was willing to tolerate."<ref><span id="ALDF_00006771">517 U.S. at 510 (opinion of Stevens, J., joined by Kennedy, Thomas, and Ginsburg, JJ.). Justice John Paul Stevens' opinion also dismissed the ''[[Posadas]]'' "greater-includes-the-lesser argument" as "inconsistent with both logic and well-settled doctrine," pointing out that the First Amendment "presumes that attempts to regulate speech are more dangerous than attempts to regulate conduct." ''Id.'' at 511-512.</span></ref> Four other Justices concluded that ''[[Posadas]]'' was inconsistent with the "closer look" that the Court has since required in applying the principles of ''[[Central Hudson]]''.<ref><span id="ALDF_00006772">''Id.'' at 531-32 (O'Connor, J., concurring, joined by Rehnquist, C.J., Souter, and Breyer, JJ.).</span></ref>
The "different degree of protection" the Court accords commercial speech has a number of consequences as regards other First Amendment doctrine. For instance, somewhat broader times, places, and manner regulations are to be tolerated,<ref><span id="ALDF_00006773">''[[Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council]]'', 425 U.S. 748, 771 (1976); ''[[Bates v. State Bar of Ariz.]]'', 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.</span></ref> and the rule against prior restraints may be inapplicable.<ref><span id="ALDF_00006774">''[[Cent. Hudson Gas &amp; Elec. Co. v. PSC]]'', 447 U.S. 557, 571 n.13 (1980), citing ''[[Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council]]'', 425 U.S. 748, 772 n.24 (1976). ''See'' [[{{ROOTPAGENAME}}/First Amend.#Prior Restraints on Speech|First Amend.: Prior Restraints on Speech]].</span></ref> Further, disseminators of commercial speech are not protected by the overbreadth doctrine.<ref><span id="ALDF_00006775">''[[Bates v. State Bar of Ariz.]]'', 433 U.S. 350, 379-81 (1977); ''[[Cent. Hudson Gas &amp; Elec. Co. v. PSC]]'', 447 U.S. 557, 565 n.8 (1980).</span></ref> Nonetheless, there are circumstances in which the nature of the restriction placed on commercial speech may alter the First Amendment analysis, and even result in applying a heightened level of scrutiny.
For instance, in ''[[Sorrell v. IMS Health, Inc.]]'',<ref><span id="ALDF_00006776">564 U.S. 552, 557 (2011).</span></ref> the Court struck down state restrictions on pharmacies and "data-miners" selling or leasing information on the prescribing behavior of doctors for marketing purposes and related restrictions limiting the use of that information by pharmaceutical companies.<ref><span id="ALDF_00006777">"Detailers," marketing specialists employed by pharmaceutical manufacturers, used the reports to refine their marketing tactics and increase sales to doctors. ''Id.'' at 558.</span></ref> These prohibitions, however, were subject to a number of exceptions, including provisions allowing such prescriber-identifying information to be used for health care research. Because the restrictions only applied to the use of this information for marketing and because they principally applied to pharmaceutical manufacturers of non-generic drugs, the Court found that these restrictions were content-based and speaker-based limits and thus subject to heightened scrutiny.<ref><span id="ALDF_00006778">''Id.'' at 565.</span></ref> However, the Court declined to say definitively whether ''Central Hudson'' or "a stricter form of judicial scrutiny" should apply because, in the Court's view, the law failed to pass constitutional muster even under ''Central Hudson''.<ref><span id="ALDF_00001413">''Id.'' at 571. Although the state advanced a variety of proposed governmental interests to justify the regulations, the Court found these interests (expectation of physician privacy, discouraging harassment of physicians, and protecting the integrity of the doctor-physician relationship) were ill-served by the content-based restrictions. ''[[Sorrell]]''. The Court also rejected the argument that the regulations were an appropriate way to reduce health care costs, noting that "[t]he State seeks to achieve its policy objectives through the indirect means of restraining certain speech by certain speakers--that is, by diminishing detailers' ability to influence prescription decisions. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the 'fear that people would make bad decisions if given truthful information' cannot justify content-based burdens on speech." ''Id.'' at 577.</span></ref>
More recently, the Court noted, "several Members of the Court have expressed doubts about the ''Central Hudson'' analysis and whether it should apply in particular cases."<ref><span id="ALDF_00001414">''[[Thompson v. W. States Med. Ctr.]]'', 535 U.S. 357, 367 (2002). For instance, Justice John Paul Stevens criticized the ''Central Hudson'' test because it seemingly allows regulation of any speech propounded in a commercial context regardless of the content of that speech: "[A]ny description of commercial speech that is intended to identify the category of speech entitled to less First Amendment protection should relate to the reasons for permitting broader regulation: namely, commercial speech's potential to mislead." ''[[Rubin v. Coors Brewing Co.]]'', 514 U.S. 476, 494 (1995) (Stevens, J., concurring). Justice Clarence Thomas, similarly, wrote that, in cases "in which the government's asserted interest is to keep legal users of a product or service ignorant in order to manipulate their choices in the marketplace, the ''[[Central Hudson]]'' test should not be applied because such an interest' is per se illegitimate." ''[[Greater New Orleans Broad. Ass'n, Inc. v. United States]]'', 527 U.S. 173, 197 (1999) (Thomas, J., concurring) (internal quotation marks omitted). Other decisions in which the Court majority acknowledged that some Justices would grant commercial speech greater protection than it has under the ''[[Central Hudson]]'' test include ''[[United States v. United Foods, Inc.]]'', 533 U.S. 405, 409-410 (2001) (mandated assessments, used for advertising, on handlers of fresh mushrooms struck down as compelled speech, rather than under ''[[Central Hudson]]''), and ''[[Lorillard Tobacco Co. v. Reilly]]'', 533 U.S. 525, 554 (2001) (various state restrictions on tobacco advertising struck down under ''Central Hudson'' as overly burdensome).</span></ref> ''Sorrell''<nowiki>'</nowiki>s suggestion that content-based regulations of commercial speech might be subject to "a stricter form of judicial scrutiny"<ref><span id="ALDF_00001415">''[[Sorrell]]'', 564 U.S. at 571.</span></ref> may be further evidence that the Court is increasing protection of commercial speech. Nonetheless, the ''Central Hudson'' test remains the primary test for commercial speech restrictions.<ref><span id="ALDF_00001416">''See, e.g.'', ''[[City of Austin v. Reagan Nat'l Advert. of Austin, LLC]]'', No. 20-1029, slip op. at 6 (U.S. Apr. 21, 2022) ("The ''Metromedia'' court did not need to decide whether the off-premises prohibition was content based, as it regulated only commercial speech and so was subject to intermediate scrutiny in any event." (discussing ''[[Metromedia, Inc. v. San Diego]]'', 453 U.S. 490, 507-12 (1981) (plurality opinion))).</span></ref>
====Public Forum Doctrine====
=====The Public Forum=====
In 1895, while on the highest court of Massachusetts, future Justice Oliver Wendell 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,<ref><span id="ALDF_00025593">''[[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.")</span></ref> and on review the United States Supreme Court endorsed Justice Oliver Wendell Holmes's view.<ref><span id="ALDF_00025594">''[[Davis v. Massachusetts]]'', 167 U.S. 43, 48 (1897).</span></ref> Years later, beginning with ''[[Hague v. CIO]]'',<ref><span id="ALDF_00025595"> [http://cdn.loc.gov/service/ll/usrep/usrep307/usrep307496/usrep307496.pdf 307 U.S. 496 (1939)]. Only Justice Hugo Black joined the John Owen Roberts opinion, but only Justices James McReynolds and Pierce Butler dissented from the result.</span></ref> the Court reconsidered the issue. Justice Owen Roberts wrote in ''[[Hague]]'':
{{Quote|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.''Id.'' at 515.}}Although majority of the Justices did not join Justice Roberts's opinion, the Court subsequently endorsed the view in several opinions.<ref><span id="ALDF_00025597">''E.g.'', ''[[Schneider v. Town of Irvington]]'', 308 U.S. 147, 163 (1939); ''[[Kunz v. New York]]'', 340 U.S. 290, 293 (1951).</span></ref>
In the 1960s, the Court appeared to call the Roberts view into question,<ref><span id="ALDF_00025598">''[[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.</span></ref> and subsequently a majority endorsed an opinion by Justice Hugo Black asserting a narrower view of speech rights in public places.<ref><span id="ALDF_00025599">''[[Adderley v. Florida]]'', 385 U.S. 39 (1966). ''See'' ''id.'' at 47-48; ''[[Cox v. Louisiana]]'', 379 U.S. 559, 578 (1965) (Black, J., concurring in part and dissenting in part); Jamison v. Texas, 318 U.S. 413, 416 (1943) (Black, J., for the Court).</span></ref> Later decisions restated and quoted the Roberts language from ''[[Hague]]'', and that is now the position of the Court.<ref><span id="ALDF_00025600">''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).</span></ref> Public streets and parks,<ref><span id="ALDF_00025601">''[[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).</span></ref> including those adjacent to courthouses<ref><span id="ALDF_00025602">Narrowly drawn statutes that 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 decision making process from lobbying. ''[[United States v. Grace]]'', 461 U.S. 171 (1983).</span></ref> and foreign embassies,<ref><span id="ALDF_00025603">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.</span></ref> as well as public libraries<ref><span id="ALDF_00025604">''[[Brown v. Louisiana]]'', 383 U.S. 131 (1966) (sit-in in library reading room).</span></ref> and the grounds of legislative bodies,<ref><span id="ALDF_00025605">''[[Edwards v. South Carolina]]'', 372 U.S. 229 (1963); ''[[Jeanette Rankin Brigade v. Capitol Police Chief]]'', 342 F. Supp. 575 (D.D.C. 1972) (three-judge court), ''aff'd'', 409 U.S. 972 (1972) (voiding statute prohibiting parades and demonstrations on United States Capitol grounds).</span></ref> 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.<ref><span id="ALDF_00025606">''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 Sch. Dist.]]'', 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).</span></ref> Moreover, not all public properties are public forums. In ''[[U.S. Postal Service v. Greenburgh Civic Ass'ns]]'', the Court stated: "[T]he First Amendment does not guarantee access to property simply because it is owned or controlled by the government,"<ref><span id="ALDF_00025607">''[[U.S. Postal Serv. V. Council of Greenburgh Civic Assn's]]'', 453 U.S. 114, 129 (1981).</span></ref> while in ''[[Grayned v. City of Rockford]]'', the Court stated: "The crucial question is whether the manner of expression is basically compatible with the normal activity of a particular place at a particular time."<ref><span id="ALDF_00025608">''[[Grayned v. City of Rockford]]'', 408 U.S. 104, 116 (1972).</span></ref> 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.<ref><span id="ALDF_00025609">''E.g.'', ''[[Minn. Voters All. v. Mansky]]'', No. 16-1435, slip op. at 13 (U.S. June 14, 2018) (polling places); ''[[ISKCON v. Lee]]'', 505 U.S. 672, 679 (1992) (publicly owned airport terminal); ''[[Perry Educ. Ass'n v. Perry Local Educators' Ass'n]]'', 460 U.S. 37, 46 (1983) (interschool mail system); ''[[Council of Greenburgh Civic Ass'ns]]'', 453 U.S. at 128 (private mail boxes); ''[[Greer v. Spock]]'', 424 U.S. 828, 838 (1976) (military bases); ''[[Lehman v. City of Shaker Heights]]'', 418 U.S. 298, 304 (1974) (plurality opinion) (advertising space in city rapid transit cars); ''[[Adderley v. Florida]]'', 385 U.S. 39, 47-48 (1966) (jails).</span></ref> 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.<ref><span id="ALDF_00025610">''E.g.'', ''[[Se. Promotions, Ltd. v. Conrad]]'', 420 U.S. 546 (1975) (municipal theater); ''[[Madison Sch. Dist. 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).</span></ref>
Speech in public forums is subject to time, place, and manner regulations that 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.<ref><span id="ALDF_00025611">''See, e.g.'', ''[[Heffron v. ISKCON]]'', 452 U.S. 640, 647-50 (1981), and ''id.'' at 656 (Brennan, J., concurring in part and dissenting in part) (stating law and discussing cases); ''[[Clark v. Comty. for Creative Non-Violence]]'', 468 U.S. 288 (1984) (prohibition of sleep-in demonstration in area of park not designated for overnight camping).</span></ref> 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 of speech,<ref><span id="ALDF_00025612">''[[Niemotko v. Maryland]]'', 340 U.S. 268 (1951); ''[[Cox v. Louisiana]]'', 379 U.S. 536 (1965); ''[[Police Dep't of Chicago v. Mosle]]'', 408 U.S. 92 (1972); ''[[Madison Sch. Dist. 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.</span></ref> must serve a significant governmental interest,<ref><span id="ALDF_00025613">''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).</span></ref> and must leave open ample alternative channels for communication of the information.<ref><span id="ALDF_00025614">''[[Heffron v. ISKCON]]'', 452 U.S. 640, 654-55 (1981); ''[[Consol. Edison Co. v. PSC]]'', 447 U.S. 530, 535 (1980).</span></ref> The Court has written that a time, place, or manner regulation
{{Quote|must be narrowly tailored to serve the government's legitimate, content-neutral interests but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied. . .[s]o long as the means chosen are not substantially broader than necessary to achieve the government's interest. . ..Ward v. Rock Against Racism, 491 U.S. 781, 798-99, 800 (1989).}}A content-neutral time, place, and manner regulation of the use of a public forum must also "contain adequate standards to guide the official's decision and render it subject to effective judicial review."<ref><span id="ALDF_00025616">''[[Thomas v. Chi. Park Dist.]]'', 534 U.S. 316, 323 (2002).</span></ref> Unlike a content-based licensing scheme, however, it need not "adhere to the procedural requirements set forth in ''[[Freedman]]''."<ref><span id="ALDF_00025617">''Id.'' at 322(citing ''[[Freedman v. Maryland]]'', 380 U.S. 51 (1965)). ''See'' ''[[National Socialist Party v. Village of Skokie]]'', 432 U.S. 43 (1977).</span></ref> In ''[[Freedman v. Maryland]]'', the Court had set forth certain requirements, including that the "burden of proving that the film [or other speech] is unprotected expression must rest on the censor," and that the censor must, "within a specified brief period, either issue a license or go to court to restrain showing the film. Any restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution."<ref><span id="ALDF_00025618">''[[Freedman]]'', 380 U.S. at 58-59.</span></ref>
A corollary to the rule forbidding regulation based 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.<ref><span id="ALDF_00025619">''[[Police Dep't of Chicago v. Mosle]]'', 408 U.S. 92 (1972) (ordinance void that 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) (striking down college rule permitting access to all student organizations except religious groups); ''[[Niemotko v. Maryland]]'', 340 U.S. 268 (1951) (striking down denial of permission to use parks for some groups but not for others); ''[[R.A.V. v. City of St. Paul]]'', 505 U.S. 377 (1992) (striking down ordinance that prohibited symbols, such as burning crosses, that constituted fighting words that insult on the basis of some factors, such as race, but not on the basis of other factors). 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 Def. &amp; Educ. 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); ''[[Capitol Square Review Bd. v. Pinette]]'', 515 U.S. 753 (1995) (denial of permission to Ku Klux Klan, allegedly in order to avoid Establishment Clause violation, to place a cross in plaza on grounds of state capitol); ''[[Rosenberger v. Univ. of Va.]]'', 515 U.S. 819 (1995) (University's subsidy for printing costs of student publications, available for student "news, information, opinion, entertainment, or academic communications," could not be withheld because of the religious content of a student publication); ''[[Lamb's Chapel v. Ctr. Moriches Sch. Dist.]]'', 508 U.S. 384 (1993) (school district rule prohibiting after-hours use of school property for showing of a film presenting a religious perspective on child-rearing and family values, but allowing after-hours use for non-religious social, civic, and recreational purposes).</span></ref> 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.<ref><span id="ALDF_00025620">''E.g.'', ''[[Hague v. CIO]]'', 307 U.S. 496, 516 (1939); ''[[Schneider v. Town of Irvington]]'', 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). Writing for the Court, Justice Potter Stewart 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." ''[[Shuttlesworth]]'', 394 U.S. 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) (Stone, C.J., dissenting), adopted per curiam on rehearing, 319 U.S. 103 (1943); ''see also'' ''[[City of Lakewood v. Plain Dealer Publ'g 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. Nat'l Fed'n of the Blind]]'', 487 U.S. 781 (1988) (invalidating as permitting "delay without limit" licensing requirement for professional fundraisers); ''[[Forsyth Cnty. v. Nationalist Movement]]'', 505 U.S. 123 (1992). ''But see'' ''[[Walker v. City of Birmingham]]'', 388 U.S. 307 (1967) (same rule not applicable to injunctions).</span></ref> The Court has also applied its general strictures against prior restraints in the contexts of permit systems and judicial restraint of expression.<ref><span id="ALDF_00025621">In ''[[Shuttlesworth v. City of Birmingham]]'', the Court reaffirmed the holdings of the earlier cases, and, additionally, both Justice Potter Stewart, for the Court, 39 U.S. at 155 n.4, and Justice John 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. The Court also voided an injunction against a protest meeting that was issued ex parte, without notice to the protestors and with, of 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).</span></ref>
It appears that the government may not deny access to the public forum for demonstrators on the ground that the past meetings of these demonstrators resulted in violence,<ref><span id="ALDF_00025622">The only 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).</span></ref> and may not vary a demonstration licensing fee based on an estimate of the amount of hostility likely to be engendered.<ref><span id="ALDF_00025623">''[[Forsyth Cnty.]]'', 505 U.S. at 123 (a fee based on anticipated crowd response necessarily involves examination of the content of the speech, and is invalid as a content regulation).</span></ref> The Court has also suggested that the government cannot effectuate a "heckler's veto," the governmental termination of a speech or demonstration because of hostile crowd reaction.<ref><span id="ALDF_00025624">Dicta 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). In a 2022 decision involving how the Free Speech, Free Exercise, and Establishment Clauses interplay, the Court rejected a "heckler's veto" in the Establishment Clause context, stating "This Court has since made plain, too, that the Establishment Clause does not include anything like a 'modified heckler's veto in which". . . religious activity can be proscribed' based on '"perceptions'" or '"discomfort.'" ''[[Kennedy v. Bremerton Sch. Dist.]]'', No. 21-418, (U.S. June 27, 2022). However, the Court 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 Felix 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." [http://cdn.loc.gov/service/ll/usrep/usrep340/usrep340268/usrep340268.pdf ''Id'']</span></ref>
The Court has defined three categories of public property for public forum analysis.<ref><span id="ALDF_00025625">''E.g.'', ''[[Minn. Voters All. v. Mansky]]'', No. 16-1435, slip op. at 7 (U.S. June 14, 2018).</span></ref> First, there is the traditional public forum--places such as streets and parks that have traditionally been used for public assembly and debate.<ref><span id="ALDF_00025626">''[[Pleasant Grove City v. Summum]]'', 555 U.S. 460, 469 (2009).</span></ref> In such a forum, the government "may impose reasonable time, place, and manner restrictions on private speech, but restrictions based on content must satisfy strict scrutiny, and those based on viewpoint are prohibited."<ref><span id="ALDF_00025627">''[[Minn. Voters All.]]'', slip op. at 11. ''See also'' ''[[Summum]]'', 555 U.S. at 469. ''Cf.'' ''[[Clark v. Cmty. for Creative Non-Violence]]'', 468 U.S. 288, 293 (1984) ("[T]ime, place, or manner restrictions. . . are valid provided that they are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.").</span></ref> Second, there is the designated public forum, where the government opens property for communicative activity and thereby creates a public forum.<ref><span id="ALDF_00025628">''[[Minn. Voters All.]]'', slip op. at 11. ''See also'' ''[[Summum]]'', 555 U.S. at 469-70.</span></ref> Such a forum may be limited--hence the expression "limited public forum"--for "use by certain groups, for example, ''[[Widmar v. Vincent]]'' (student groups), or for discussion of certain subjects, for example, ''[[City of Madison Joint School District v. Wisconsin PERC]]'' (school board business),"<ref><span id="ALDF_00025629">''[[Perry Educ. Ass'n v. Perry Local Educators' Ass'n]]'', 460 U.S. 37, 45, 46 n.7 (1983).</span></ref> but, within the framework of such legitimate limitations, "a content-based prohibition must be narrowly drawn to effectuate a compelling state interest."<ref><span id="ALDF_00025630">''Id.'' at 46.</span></ref> Third, in a "nonpublic forum," or "a space that 'is not by tradition or designation a forum for public communication,'"<ref><span id="ALDF_00025631">''[[Minn. Voters All.]]'', slip op. at 7 (quoting ''[[Perry Educ. Ass'n]]'', 460 U.S. at 46).</span></ref> the government "may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech is reasonable and not an effort to suppress expression merely because public officials oppose the speaker's view."<ref><span id="ALDF_00025632">''[[Perry Educ. Ass'n]]'', 460 U.S. at 46.</span></ref>
=====Public and Nonpublic Forums=====
The distinction between public and nonpublic forums may be difficult to ascertain. Whether a speech restriction will be reviewed under strict scrutiny or only for reasonableness thus may turn in part on whether the government has "intentionally open[ed] a nontraditional forum for public discourse," creating a designated public forum.<ref><span id="ALDF_00025633">''See'' ''[[Cornelius v. NAACP Legal Def. &amp; Educ. Fund]]'', 473 U.S. 788, 802 (1985); ''see also'' ''[[United States v. Am. Libr. Ass'n, Inc.]]'', 539 U.S. 194, 206 (2003) (plurality opinion) ("To create such a [designated public] forum, the government must make an affirmative choice to open up its property for use as a public forum."); ''[[United States v. Kokinda]]'', 497 U.S. 720, 727 (1990) (plurality opinion) (holding certain sidewalks were a nonpublic forum because the government owner had not "expressly dedicated" them "to any expressive activity"). ''Cf.'' ''[[Members of City Council of Los Angeles v. Taxpayers for Vincent]]'', 466 U.S. 789, 814 (1984) ("Appellees' reliance on the public forum doctrine is misplaced. They fail to demonstrate the existence of a traditional right of access respecting such items as utility poles for purposes of their communication comparable to that recognized for public streets and parks. . ..").</span></ref> To determine whether a forum is a designated public forum or a nonpublic forum, the Court will look to the government's intent in opening the forum,<ref><span id="ALDF_00025634"> ''[[Cornelius]]'', 473 U.S. at 803.</span></ref> the restrictions initially placed on speakers' access to the forum,<ref><span id="ALDF_00025635">''See'' ''[[Perry Educ. Ass'n]]'', 460 U.S. at 4748.</span></ref> and the nature of the forum.<ref><span id="ALDF_00025636">''[[Cornelius]]'', 473 U.S. at 803.</span></ref> For example, in ''[[Cornelius v. NAACP Legal Defense and Educational Fund]]'', the Court held that the Combined Federal Campaign (CFC), "an annual charitable fundraising drive conducted in the federal workplace,"<ref><span id="ALDF_00025637">''Id.'' at 790.</span></ref> was a nonpublic forum.<ref><span id="ALDF_00025638">''Id.'' at 805.</span></ref> Notwithstanding the fact that the federal government had opened the forum for solicitation by ''some'' charitable organizations, the Court concluded that "neither [the government's] practice nor its policy [was] consistent with an intent to designate the CFC as a public forum open to ''all'' tax-exempt organizations."<ref><span id="ALDF_00025639">''Id.'' at 804 (emphasis added).</span></ref> Accordingly, the Court upheld the government's decision to exclude certain charitable organizations as reasonable in light of the purpose of the forum.<ref><span id="ALDF_00025640">''Id.'' at 809.</span></ref> Similarly, the Court concluded in another case that a school district had not created a public forum with its system for internal school mail because the district had not, "by policy or by practice," "opened its mail system for indiscriminate use by the general public."<ref><span id="ALDF_00025641">''See'' ''[[Perry Educ. Ass'n v. Perry Local Educators' Ass'n]]'', 460 U.S. 37, 47 (1983). The Court also stated, however, that "even if we assume that by granting access to the Cub Scouts, YMCA's, and parochial schools, the School District has created a 'limited' public forum, the constitutional right of access would in any event extend only to other entities of similar character. While the school mail facilities thus might be a forum generally open for use by the Girl Scouts, the local boys' club, and other organizations that engage in activities of interest and educational relevance to students, they would not as a consequence be open to an organization such as [the Perry Local Educators' Association], which is concerned with the terms and conditions of teacher employment." ''Id.'' at 48. In ''[[United States v. Kokinda]]'', 497 U.S. 720, 730 (1990) (plurality opinion), the Court interpreted this language to mean that in a limited public forum, "regulation of the reserved nonpublic uses would still require application of the reasonableness test."</span></ref> The Court therefore concluded that the school district could permissibly exclude a teacher's association from using the mail system, while also allowing a different teacher's association--the teachers' exclusive representative--to use the mail system, because the school's policy was reasonable and consistent with the purposes of the forum.<ref><span id="ALDF_00025642">''[[Perry Educ. Ass'n]]'', 460 U.S. at 50-51. ''See also'' ''[[Hazelwood Sch. Dist. v. Kuhlmeier]]'', 484 U.S. 260, 269-70 (1988) (holding that a student newspaper created as part of "a supervised learning experience" was not a public forum).</span></ref>
However, although the government has greater discretion to restrict speech in nonpublic forums,<ref><span id="ALDF_00025643">See, e.g., ''[[United States v. Am. Libr. Ass'n, Inc.]]'', 539 U.S. 194, 204-05 (2003) (plurality opinion).</span></ref> the First Amendment still prohibits certain restrictions even in nonpublic forums. For instance, the Court held in ''[[Minnesota Voters Alliance v. Mansky]]'' that "[a] polling place in Minnesota qualifies as a nonpublic forum."<ref><span id="ALDF_00025644">''[[Minn. Voters All. v. Mansky]]'', No. 16-1435, slip op. at 8 (U.S. June 14, 2018).</span></ref> After reviewing the long history of state regulation of polling places on election day,<ref><span id="ALDF_00025645">''Id.'' at 1-3.</span></ref> the Court concluded that because the polling place was "government-controlled property set aside for the sole purpose of voting,"<ref><span id="ALDF_00025646">''Id.'' at 8.</span></ref> it qualified as "a special enclave, subject to greater restriction."<ref><span id="ALDF_00025647">''Id.'' (quoting ''[[Int'l Soc'y for Krishna Consciousness, Inc. v. Lee]]'', 505 U.S. 672, 680 1992)) (internal quotation marks omitted).</span></ref> Although the forum's designation as a nonpublic forum meant that the Court did not apply strict scrutiny, the Court nonetheless struck down a Minnesota law that barred all "political" apparel from polling places as unreasonable.<ref><span id="ALDF_00025648">''Id.'' at 13.</span></ref> The Court acknowledged that the state could permissibly seek to "prohibit certain apparel" in polling places "because of the message it conveys,"<ref><span id="ALDF_00025649">''Id.'' at 12.</span></ref> but concluded that the particular scheme followed by Minnesota was not "capable of reasoned application."<ref><span id="ALDF_00025650">''Id.'' at 19.</span></ref> In the Court's view, the breadth of the term "political" and the state's "haphazard interpretations"<ref><span id="ALDF_00025651">''Id.'' at 13.</span></ref> of that term failed to provide "objective, workable standards" to guide the discretion of the election judges who implemented the statute.<ref><span id="ALDF_00025652">''Id.'' at 18.</span></ref>
Application of these principles continues to raise often difficult questions. In ''[[United States v. Kokinda]]'', a majority of Justices, who ultimately upheld a ban on soliciting contributions on postal premises under the "reasonableness" review governing nonpublic forums, could not agree on the public forum status of a sidewalk located entirely on postal service property.<ref><span id="ALDF_00025653"> [http://cdn.loc.gov/service/ll/usrep/usrep497/usrep497720/usrep497720.pdf 497 U.S. 720, 727 (1990)] ("[R]egulation of speech activity where the Government has not dedicated its property to First Amendment activity is examined only for reasonableness.").</span></ref> Two years later, in ''[[International Society for Krishna Consciousness, Inc. v. Lee]]'', the Court was similarly divided as to whether non-secured areas of airport terminals, including shops and restaurants, constitute public forums.<ref><span id="ALDF_00025654"> [http://cdn.loc.gov/service/ll/usrep/usrep505/usrep505672/usrep505672.pdf 505 U.S. 672 (1992)].</span></ref> A five-Justice majority held that airport terminals are not public forums and upheld regulations banning the repetitive solicitation of money within the terminals.<ref><span id="ALDF_00025655">''Id.'' at 683 ("[N]either by tradition nor purpose can the terminals be described as satisfying the standards we have previously set out for identifying a public forum.").</span></ref>
A decade later, the Court considered the public forum status of the internet. In ''[[United States v. American Library Association, Inc.]]'', a four-Justice plurality held that "Internet access in public libraries is neither a 'traditional' nor a 'designated' public forum."<ref><span id="ALDF_00025656"> [http://cdn.loc.gov/service/ll/usrep/usrep539/usrep539194/usrep539194.pdf 539 U.S. 194, 205-06 (2003)] ("We have 'rejected the view that traditional public forum status extends beyond its historic confines.' The doctrines surrounding traditional public forums may not be extended to situations where such history is lacking." (quoting ''[[Ark. Educ. TV Comm'n v. Forbes]]'', 523 U.S. 666, 679 (1998))). While decided on constitutional vagueness grounds, in ''[[Reno v. ACLU]]'', the Court struck down a provision of the Communications Decency Act of 1996 that prohibited the use of an "interactive computer service" (that is, the internet) to display indecent material "in a manner available to a person under 18 years of age." [http://cdn.loc.gov/service/ll/usrep/usrep521/usrep521844/usrep521844.pdf 521 U.S. 844, 860 (1997)]. The Court did not consider the internet's status as a forum for free speech, but observed that the internet "constitutes a vast platform from which to address and hear from a world-wide audience of millions of readers, viewers, researchers, and buyers. Any person or organization with a computer connected to the Internet can 'publish' information." ''Id.'' at 853.</span></ref> The plurality therefore did not apply strict scrutiny in upholding the Children's Internet Protection Act, which provides that a public school or "library may not receive federal assistance to provide Internet access unless it installs software to block images that constitute obscenity or child pornography, and to prevent minors from obtaining access to material that is harmful to them."<ref><span id="ALDF_00025657">''[[Am. Libr. Ass'n]]'', 539 U.S. at 199; ''see also'' ''id.'' at 206 ("A public library does not acquire Internet terminals in order to create a public forum for Web publishers to express themselves, any more than it collects books in order to provide a public forum for the authors of books to speak.").</span></ref>
More recently, in ''[[Packingham v. North Carolina]]'', the Court appeared to equate the internet to traditional public forums like a street or public park. Specifically, Justice Anthony Kennedy, writing for the Court, observed that, "[w]hile in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace--the 'vast democratic forums of the Internet' in general, and social media in particular."<ref><span id="ALDF_00025658">''[[Packingham v. North Carolina]]'', 582 U.S. 98, 104 (2017) (quoting ''[[ACLU]]'', 521 U.S. at 868); ''see also'' ''id.'' at 105 ("This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.").</span></ref> Consequently, the Court struck down a North Carolina law making it a felony for registered sex offenders to use commercial social networking websites that allow minor children to be members, such as Facebook. Applying strict scrutiny, the Court held that the North Carolina law impermissibly restricted lawful speech as it was not narrowly tailored to serve the government's interest in protecting minors from registered sex offenders because it "foreclose[d] access to social media altogether," thereby "prevent[ing] the user from engaging in the legitimate exercise of First Amendment rights."<ref><span id="ALDF_00025659">''Id.'' at 105, 107; ''see'' ''id.'' at 106 ("[G]iven the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com."). The Court was careful to point out, however, that its opinion should not be read as barring states from enacting laws more specific than that of North Carolina, noting that "[s]pecific criminal acts are not protected speech even if speech is the means for their commission." ''Id.'' at 107 (citing ''[[Brandenburg v. Ohio]]'', 395 U.S. 444, 447-49 (1969)). Indeed, "it can be assumed that the First Amendment permits a State to enact specific, narrowly tailored laws that prohibit a sex offender from engaging in conduct that often presages a sexual crime, like contacting a minor or using a website to gather information about a minor." ''Id.''</span></ref>
=====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.<ref><span id="ALDF_00025660">In ''[[Garner v. Louisiana]]'', 368 U.S. 157, 185, 201-07 (1961), Justice John 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).</span></ref> 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]]'',<ref><span id="ALDF_00025661"> [http://cdn.loc.gov/service/ll/usrep/usrep326/usrep326501/usrep326501.pdf 326 U.S. 501 (1946)].</span></ref> 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."<ref><span id="ALDF_00025662">''Id.'' at 506.</span></ref> 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.
First, in ''[[Food Employees Union v. Logan Valley Plaza]]'',<ref><span id="ALDF_00025663">''[[Amalgamated Food Emps. Union v. Logan Valley Plaza]]'', 391 U.S. 308 (1968).</span></ref> 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 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."<ref><span id="ALDF_00025664">''Id.'' at 319. Justices Hugo Black, John Harlan, and Byron White dissented. ''Id.'' at 327, 333, 337.</span></ref> "[T]he State," said Justice Thurgood 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."<ref><span id="ALDF_00025665">''Id.'' at 319-20.</span></ref> 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."<ref><span id="ALDF_00025666">''Id.'' at 320 n.9.</span></ref>
Four years later, the Court answered the reserved question in the negative.<ref><span id="ALDF_00025667">''[[Lloyd Corp. v. Tanner]]'', 407 U.S. 551 (1972).</span></ref> 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 that they could rightfully be excluded. The center had not dedicated its property to a public use, the Court said; rather, it had invited the public in specifically to conduct 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 to communicate.
Then, the Court formally overruled ''[[Logan Valley Plaza]]'', holding that shopping centers are not functionally equivalent to the company town involved in ''[[Marsh]]''.<ref><span id="ALDF_00025668">''[[Hudgens v. NLRB]]'', 424 U.S. 507 (1976). Justice Potter Stewart's opinion for the Court asserted that ''[[Logan Valley]]'' had in fact been overruled by ''[[Lloyd Corp.]]'', 424 U.S. at 517-18, but Justice Lewis Powell, the author of the Lloyd Corp. opinion, did not believe that to be the case, ''id.'' at 523.</span></ref> Suburban malls may be the "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<ref><span id="ALDF_00025669">''But see'' ''[[Sears, Roebuck &amp; Co. v. Carpenters]]'', 436 U.S. 180 (1978).</span></ref> 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.<ref><span id="ALDF_00025670">In ''[[PruneYard Shopping Ctr. 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 &amp; Elec. v. Public Utils. 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).</span></ref> Henceforth, only when private property "'has taken on ''all'' the attributes of a town'" is it to be treated as a public forum.<ref><span id="ALDF_00025671">''[[Hudgens v. NLRB]]'', 424 U.S. 507, 516-17 (1976) (quoting Justice Hugo Black's dissent in ''[[Logan Valley Plaza]]'', 391 U.S. 308, 332-33 (1968)).</span></ref>
====Role of Government====
=====Overview of Government Roles=====
The Supreme Court has granted the government more allowance to control speech in certain contexts where the government is the speaker, or the government otherwise has a valid interest in regulating speech in order to perform certain functions like operating schools or prisons. For example, the government has an interest in educating children free from distractions. In the context of these special government roles, the government may impose some restrictions on expression to achieve its legitimate objectives, but if the regulation goes too far, it will violate the First Amendment.<ref><span id="ALDF_00006419">The Court has distinguished content-based regulations--regulations that are imposed because the government disapproves of the content of particular expression--from content-neutral regulations--regulations that serve legitimate governmental interests and do not discriminate based on speech's content. ''Compare'' ''[[Police Dep't of Chicago 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 subject to strict scrutiny, but content-neutral regulations are subject to lesser scrutiny. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Categorical Approach to Restricting Speech|First Amend.: Overview of Categorical Approach to Restricting Speech]].</span></ref>
This idea of granting deference to the government when it performs certain functions is related to the idea that certain individuals--such as members of the military--stand in a distinct relationship with the government.<ref><span id="ALDF_00001217">''See, e.g.'', ''[[Parker v. Levy]]'', 417 U.S. 733, 758 (1974) ("While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it.").</span></ref> To take another example, government employers have some leeway to control their employees' words and actions similar to private employers, both because those employees stand in a distinct relationship with the government and because the government has a valid interest in efficiently providing public services.<ref><span id="ALDF_00001218">''See, e.g.'', ''[[Garcetti v. Ceballos]]'', 547 U.S. 410, 418 (2006).</span></ref> The issue of public employee speech is discussed in a subsequent series of essays, but it is similarly premised on the concept of government's legitimate interests in performing certain functions.<ref><span id="ALDF_00001219">''See'' [[{{ROOTPAGENAME}}/First Amend.#Loyalty Oaths|First Amend.: Loyalty Oaths]], [[{{ROOTPAGENAME}}/First Amend.#Political Activities and Government Employees|First Amend.: Political Activities and Government Employees]], [[{{ROOTPAGENAME}}/First Amend.#Honoraria and Government Employees|First Amend.: Honoraria and Government Employees]], and [[{{ROOTPAGENAME}}/First Amend.#Pickering Balancing Test for Government Employee Speech|First Amend.: Pickering Balancing Test for Government Employee Speech]].</span></ref>
=====Government Speech and Government as Speaker=====
As an outgrowth of the government subsidy cases, such as ''[[Rust v. Sullivan]]'',<ref><span id="ALDF_00025672"> [http://cdn.loc.gov/service/ll/usrep/usrep500/usrep500173/usrep500173.pdf 500 U.S. 173 (1991)].</span></ref> the Court has established the "government speech doctrine" that recognizes that a government entity "is entitled to say what it wishes"<ref><span id="ALDF_00025673">''[[Rosenberger v. Rector &amp; Visitors of Univ. of Va.]]'', 515 U.S. 819, 829 (1995).</span></ref> and to select the views that it wants to express.<ref><span id="ALDF_00025674">''Id.'' at 833. ''Accord, e.g.'', ''[[Shurtleff v. Boston]]'', No. 20-1800 (U.S. May 2, 2022).</span></ref> In this vein, when the government speaks, the government is not barred by the Free Speech Clause of the First Amendment from determining the content of what it says and can engage in viewpoint discrimination.<ref><span id="ALDF_00025675">''See'' ''[[Pleasant Grove City v. Summum]]'', 555 U.S. 460, 467-68 (2009). Nonetheless, while the First Amendment's Free Speech Clause has no applicability with regard to government speech, other constitutional provisions--such as the Equal Protection principles of the Fifth and Fourteenth Amendments--may constrain what the government can say. ''Id.'' at 468-69.</span></ref> The underlying rationale for the government speech doctrine is that the government could not "function" if the government could not favor or disfavor points of view in enforcing a program.<ref><span id="ALDF_00025676">''See'' ''id.'' at 468 ("Indeed, it is not easy to imagine how government could function if it lacked this freedom.").</span></ref> And the Supreme Court has recognized that the government speech doctrine even extends to when the government receives private assistance in helping deliver a government controlled message.<ref><span id="ALDF_00025677">''See'' ''[[Johanns v. Livestock Mktg. Ass'n]]'', 544 U.S. 550, 562 (2005).</span></ref> As a consequence, the Court, relying on the government speech doctrine, has rejected First Amendment challenges to (1) regulations prohibiting recipients of government funds from advocating, counseling, or referring patients for abortion;<ref><span id="ALDF_00025678">''See'' ''[[Rust]]'', 500 U.S. at 194.</span></ref> (2) disciplinary actions taken as a result of statements made by public employees pursuant to their official duties;<ref><span id="ALDF_00025679">''See'' ''[[Garcetti v. Ceballos]]'', 547 U.S. 410, 421-22 (2006).</span></ref> (3) mandatory assessments made against cattle merchants when used to fund advertisements whose message was controlled by the government;<ref><span id="ALDF_00025680">''See'' ''[[Livestock Mktg. Ass'n]]'', 544 U.S. at 562.</span></ref> (4) a city's decision to reject a monument for placement in a public park;<ref><span id="ALDF_00025681">''See'' ''[[Pleasant Grove City]]'', 555 U.S. at 472.</span></ref> and (5) a state's decision to reject a design for a specialty license plate for an automobile.<ref><span id="ALDF_00025682">''See'' ''[[Walker v. Tex. Div., Sons of Confederate Veterans, Inc.]]'', 576 U.S. 200, 203 (2015).</span></ref>
A central issue prompted by the government speech doctrine is determining when speech is that of the government, which can be difficult when the government utilizes or relies on private parties to relay a particular message. In ''[[Johanns v. Livestock Marketing Association]]'', the Court held that the First Amendment did not prohibit the compelled subsidization of advertisements promoting the sale of beef because the underlying message of the advertisements was "effectively controlled" by the government.<ref><span id="ALDF_00025683">''See'' ''[[Livestock Mktg. Ass'n]]'', 544 U.S. at 560.</span></ref>
The line can also be blurred when "a government invites the people to participate in a program," such as when the government opens up its property for use by private speakers.<ref><span id="ALDF_00025684">''[[Shurtleff v. Boston]]'', No. 20-1800, slip op. at 5 (U.S. May 2, 2022). In this context, the government speech doctrine sometimes overlaps with the public forum doctrine, discussed in [[{{ROOTPAGENAME}}/First Amend.#The Public Forum|First Amend.: The Public Forum]], in determining whether the speech is governmental or private.</span></ref> In ''[[Pleasant Grove City v. Summum]]'', the Court shifted from an exclusive focus on the "effective control" test in holding that "permanent monuments displayed on public property," even when provided by private parties, generally "represent government speech."<ref><span id="ALDF_00025685">''See'' ''[[Pleasant Grove City]]'', 555 U.S. at 470.</span></ref> In so concluding, the Court relied not only on the fact that a government, in selecting monuments for display in a park, generally exercises "effective control" and has "final approval authority" over the monument, but also on (1) the government's long history of "us[ing] monuments to speak for the public"; and (2) the public's common understanding as to monuments and their role in conveying a message from the government.<ref><span id="ALDF_00025686">''Id.'' at 470-73.</span></ref> In ''[[Walker v. Texas Division, Sons of Confederate Veterans]]'', the Court relied on the same analysis used in ''[[Pleasant Grove City]]'' to conclude that the State of Texas, in approving privately crafted designs for specialty license plates, could reject designs the state found offensive without running afoul of the Free Speech Clause.<ref><span id="ALDF_00025687">''See'' ''[[Walker]]'', 576 U.S. at 203-04.</span></ref> Specifically, the ''[[Walker]]'' Court held that license plate designs amounted to government speech because (1) states historically used license plates to convey government messages; (2) the public closely identifies license plate designs with the state; and (3) the State of Texas maintained effective control over the messages conveyed on its specialty license plates.<ref><span id="ALDF_00025688">''See'' ''id.'' at 210-13. ''Accord'' ''[[Shurtleff]]'', slip op. at 6 ("Our past cases have looked to several types of evidence to guide the analysis, including: the history of the expression at issue; the public's likely perception as to who (the government or a private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.").</span></ref>
By contrast, in ''[[Shurtleff v. Boston]]'', the Supreme Court concluded that private flags flown at a city hall plaza did not qualify as government speech.<ref><span id="ALDF_00025689">''[[Shurtleff]]'', slip op. at 12.</span></ref> While "the history of flag flying. . . at the seat of government" suggested such flags usually conveyed governmental messages, other factors specific to the city program pointed the other way.<ref><span id="ALDF_00025690">''Id.'' at 7-9.</span></ref> Given that the city sometimes flew its own flags but regularly let private groups use the flagpole, the Court suggested the evidence was inconclusive on public perceptions.<ref><span id="ALDF_00025691">''Id.'' at 9.</span></ref> The critical inquiry was government control: the Court concluded that the city exercised no active control over the flag raisings or the messages of the flags.<ref><span id="ALDF_00025692">''Id.''</span></ref> While the city might have exercised control over scheduling or physical maintenance, there was no evidence it had ever reviewed the flags or denied a group's request, prior to the denial that formed the basis of the lawsuit.<ref><span id="ALDF_00025693">''Id.'' at 10-11.</span></ref> Accordingly, while ''[[Shurtleff]]'' looked to multiple factors to analyze whether the flags were government speech, effective control was "the most salient" factor in the case.<ref><span id="ALDF_00025694">''Id.'' at 10.</span></ref>
In 2017's ''[[Matal v. Tam]]'', the Supreme Court looked at a different type of activity to hold that trademarks do not constitute government speech, concluding that it is "far-fetched to suggest that the content of a registered mark is government speech."<ref><span id="ALDF_00025695">''[[Matal v. Tam]]'', No. 15-1293, slip op. at 14 (U.S. June 19, 2017).</span></ref> The Court distinguished trademarks from the license plates at issue in ''[[Walker]]'', a case the Court stated "likely marks the outer bounds of the government-speech doctrine."<ref><span id="ALDF_00025696">''Id.'' at 17-18 ("Trademarks are private, not government, speech.")</span></ref> First, the Court noted that, unlike license plates, trademarks do not have a history of use to convey messages by the government.<ref><span id="ALDF_00025697">''Id.''</span></ref> Second, the Court further reasoned that the government does not maintain direct control over the messages conveyed in trademarks--indeed, "[t]he Federal Government does not dream up these marks, and it does not edit marks submitted for registration."<ref><span id="ALDF_00025698">''Id.'' at 2.</span></ref> And third, the public, according to the ''[[Tam]]'' Court, does not closely identify trademarks with the government.<ref><span id="ALDF_00025699">''Id.'' at 17.</span></ref> Thus, while ''[[Tam]]'' demonstrates the Court's continuing reliance on the multi-factor test for determining government speech from ''[[Walker]]'' and ''[[Summum]]'', that test is not so flexible as to allow for expression like trademarks to be deemed the speech of the government.
In both ''[[Shurtleff]]'' and ''[[Tam]]'', the Supreme Court held that because the flags and trademarks were not government speech, the government had acted unconstitutionally by creating viewpoint-based distinctions.<ref><span id="ALDF_00025700">''[[Shurtleff v. Boston]]'', No. 20-1800, slip op. at 2 (U.S. May 2, 2022); ''[[Tam]]'' (plurality opinion); ''id.'' at 1 (Kennedy, J., concurring).</span></ref> In ''[[Shurtleff]]'', the Court noted that the city had made the plaza with the flagpole available to the public and had itself described that plaza as a public forum.<ref><span id="ALDF_00025701">''[[Shurtleff]]'', slip op. at 3; ''see also'' ''id.'' at 2 (describing the legal question as whether the flagpole was government speech or instead open for citizens' views).</span></ref> Accordingly, after ruling that the flags were "private, not government, speech," the Court held that the city had violated the Free Speech Clause by excluding a flag based on its religious viewpoint.<ref><span id="ALDF_00025702">''Id.'' at 12.</span></ref> Although the Court's opinions in ''[[Tam]]'' did not clearly agree on whether public forum analysis applied,<ref><span id="ALDF_00025703">''Cf.'' ''[[Tam]]'' (plurality opinion) (saying limited public forum cases were "potentially. . .analogous").</span></ref> a majority nonetheless ruled that the federal law barring disparaging trademarks entailed unconstitutional viewpoint discrimination.<ref><span id="ALDF_00025704">''Id.''; ''id.'' at 1 (Kennedy, J., concurring).</span></ref>
=====School Free Speech and Government as Educator=====
Although the Supreme Court had previously held that students in public schools are entitled to some constitutional protection,<ref><span id="ALDF_00015529">''See, e.g.'', ''[[W. Va. State Bd. of Educ. v. Barnette]]'', 319 U.S. 624 (1943); ''[[Meyer v. Nebraska]]'', 262 U.S. 390 (1923); ''[[Pierce v. Soc'y of Sisters]]'', 268 U.S. 510 (1925).</span></ref> as are minors generally,<ref><span id="ALDF_00015530">''[[In re Gault]]'', 387 U.S. 1 (1967). Children are subject to some restrictions that could not constitutionally be applied to adults. ''E.g.'', ''[[Ginsberg v. New York]]'', 390 U.S. 629 (1968) (upholding state law restricting access to certain material deemed "harmful to minors," although not obscene as to adults).</span></ref> it established the controlling standard for assessing First Amendment rights in the school environment in ''[[Tinker v. Des Moines Independent Community School District]]''.<ref><span id="ALDF_00015531"> [http://cdn.loc.gov/service/ll/usrep/usrep393/usrep393503/usrep393503.pdf 393 U.S. 503 (1969)].</span></ref> In that case, the Court articulated a need to balance students' First Amendment protections with the goals and needs of educators and the community.
In ''[[Tinker]]'', high school principals had banned students from wearing black armbands as a symbol of protest against the United States' actions in Vietnam.<ref><span id="ALDF_00015532">''Id.'' at 504</span></ref> Reversing the lower courts' refusal to reinstate students who had been suspended for violating the ban, the Court set out a balancing test for applying the First Amendment in schools.<ref><span id="ALDF_00015533">''Id.'' at 514.</span></ref> According to the Court, "First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students," and neither students nor teachers "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."<ref><span id="ALDF_00015534">''Id.'' at 506.</span></ref> Notwithstanding these protections, the Court affirmed the comprehensive authority of the states and of school officials, consistent with fundamental constitutional safeguards, "to prescribe and control conduct in the schools."<ref><span id="ALDF_00015535">''Id.'' at 507.</span></ref> On balance, therefore, school authorities may restrict expression to prevent disruption of school activities or discipline,<ref><span id="ALDF_00015536">''Id.''</span></ref> but such restrictions must be justified by "something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint."<ref><span id="ALDF_00015537">''Id.'' at 509 (citing ''[[Burnside v. Byars]]'', 363 F.2d 744, 749 (5th Cir. 1966)). ''See also'' ''[[Papish v. Bd. of Curators]]'', 410 U.S. 667 (1973) (state university could not expel a student for using "indecent speech" in campus newspaper); ''but cf.'' ''[[Bethel Sch. Dist. No. 403 v. Fraser]]'', 478 U.S. 675 (1986) (upholding two-day suspension, and withdrawal of privilege of speaking at graduation, for student who used sexual metaphor in speech given to high school assembly).</span></ref>
The Court reaffirmed ''[[Tinker]]'' in ''[[Healy v. James]]'', finding no basis to believe that, "First Amendment protections should apply with less force on college campuses than in the community at large."<ref><span id="ALDF_00015538"> [http://cdn.loc.gov/service/ll/usrep/usrep408/usrep408169/usrep408169.pdf 408 U.S. 169 (1972)].</span></ref> In ''[[Healy]]'', the Court held that students' rights of association, implicit in the First Amendment, were violated when a public college denied a student group official recognition as a campus organization.<ref><span id="ALDF_00015539">''Id.'' at 180.</span></ref> Denying recognition, the Court held, was impermissible if it was based on factors such as the student organization's affiliation with the national Students for a Democratic Society, on disagreement with the organization's philosophy, or on an ''unfounded'' fear of disruption.<ref><span id="ALDF_00015540">''Id.'' at 187-90.</span></ref> The Court suggested that how courts strike the balance under the ''[[Tinker]]'' inquiry may differ depending on the students' ages. The Court emphasized that "[t]he college classroom with its surrounding environs is peculiarly the 'marketplace of ideas,'" but also concluded that a college administration may require "that a group seeking official recognition affirm in advance its willingness to adhere to reasonable campus law."<ref><span id="ALDF_00015541">''Id.'' at 193. Because a First Amendment right was in issue, the college had the burden to justify rejecting a request for recognition rather than the requesters to justify affirmatively their right to be recognized. ''Id.'' at 184. ''See also'' ''[[Grayned v. City of Rockford]]'', 408 U.S. 104 (1972) (upholding an anti-noise 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).</span></ref>
In 1982, the Court faced a conflict between a school system's obligation to inculcate community values in students and the free-speech rights of those students. In ''[[Board of Education v. Pico]]'', the Court considered a case challenging a school board's authority to remove certain books from high school and junior high school libraries.<ref><span id="ALDF_00015542">''[[Bd. of Educ. v. Pico]]'', 457 U.S. 853 (1982).</span></ref> The procedural posture of the case required the Court to assume that the books were removed because the school board disagreed with the books' content for political reasons.<ref><span id="ALDF_00015543">''Id.'' at 872.</span></ref> A plurality of the Court thought that students retained substantial free-speech protections and that among these was the right to receive information and ideas.<ref><span id="ALDF_00015544">''Id.'' at 866-67.</span></ref> Although 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," it reasoned that a school board was constitutionally prohibited from removing library books in order to deny access to political ideas with which the board disagreed.<ref><span id="ALDF_00015545">''Id.'' at 862, 864-69, 870-72. Justices Thurgood Marshall and John Paul Stevens joined Justice William Brennan's opinion fully. Justice Harry Blackmun believed "that certain forms of state discrimination between ideas are improper" and agreed that the government "may not act to deny access to an idea simply because state officials disapprove of that idea for partisan or political reasons." ''Id.'' at 878-79 (Blackmun, J., concurring in part and concurring in the judgment). Justice Byron White provided the fifth vote for reversal, and he would have avoided "a dissertation" on the First Amendment issue. ''Id.'' at 883 (White, J., concurring in the judgment). Instead, he voted to reverse the trial court's grant of summary judgment based on an unresolved factual issue going to the reasons for the school board's removal. ''Id.''</span></ref> The four dissenters argued that the Constitution did not prevent the school board from expressing community values in this way regardless of its motivation.<ref><span id="ALDF_00015547">Justice William Rehnquist wrote the principal dissent. ''Id.'' at 904 (Rehnquist, J., dissenting). ''See also'' ''id.'' at 885 (Burger, C.J., dissenting), 893 (Powell, J., dissenting), 921 (O'Connor, J., dissenting).</span></ref>
The Court struck a different balance between student freedom and educator authority in ''[[Hazelwood School District v. Kuhlmeier]]'',<ref><span id="ALDF_00015548"> [http://cdn.loc.gov/service/ll/usrep/usrep484/usrep484260/usrep484260.pdf 484 U.S. 260 (1988)].</span></ref> in which it relied on public forum analysis to hold that editorial control and censorship of a student newspaper sponsored by a public high school need be only "reasonably related to legitimate pedagogical concerns."<ref><span id="ALDF_00015549">''Id.'' at 273.</span></ref> The Court distinguished the facts of ''[[Kuhlmeier]]'' from ''[[Tinker]]'', explaining that "[t]he 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."<ref><span id="ALDF_00015550">''Id.'' at 270-71.</span></ref> The student newspaper at issue had been created by school officials as a part of the school curriculum, and served "as a supervised learning experience for journalism students."<ref><span id="ALDF_00015551">''Id.'' at 270.</span></ref> Because the newspaper was not a public forum, school officials could maintain editorial control so long as their actions were "reasonably related to legitimate pedagogical concerns."<ref><span id="ALDF_00015552">''Id.'' at 273.</span></ref> Thus, a principal's decision to remove 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.<ref><span id="ALDF_00015553">''Id.'' at 276.</span></ref>
In ''[[Morse v. Frederick]]'',<ref><span id="ALDF_00015554"> [https://cite.case.law/us/551/393/?full_case=true&amp;format=html 551 U.S. 393 (2007)].</span></ref> the Court held that a school could punish a pupil for displaying a banner that said, "BONG HiTS 4 JESUS" at a school-sponsored event even absent evidence the banner caused substantial disruption.<ref><span id="ALDF_00015555">''Id.'' at 401.</span></ref> The Court reasoned that schools "may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use,"<ref><span id="ALDF_00015556">''Id.'' at 397.</span></ref> but indicated that it might have reached a different result if the banner had addressed the issue of "the criminalization of drug use or possession."<ref><span id="ALDF_00015557">''Id.'' at 403.</span></ref> In his concurrence, Justice Samuel Alito commented that the Court's opinion "provides no support for any restriction on speech that can plausibly be interpreted as commenting on any political or social issue."<ref><span id="ALDF_00015669">''Id.'' at 422.</span></ref>
While the ''[[Kuhlmeier]]'' and ''[[Morse]]'' cases focused on applying ''[[Tinker]]'' to ''on-campus'' speech, the Court addressed ''[[Tinker]]''<nowiki>'</nowiki>s application to off-campus speech in its 2021 ''[[Mahanoy Area School District v. B.L.]]'' decision.<ref><span id="ALDF_00015558">No. 20-255 (U.S. June 23, 2021).</span></ref> In ''[[Mahanoy]]'', the Court held that while public schools may have a special interest in some off-campus student speech, there are several features of off-campus speech that diminish "the unique educational characteristics that might call for the special First Amendment leeway" to regulate speech that ''[[Tinker]]'' provided.<ref><span id="ALDF_00015559">''Id.'' at 5-7.</span></ref> The Court identified three distinguishing characteristics of off-campus speech that the Court reasoned made the ''[[Tinker]]'' standards less applicable.<ref><span id="ALDF_00015560">''Id.'' at 7.</span></ref> First, off-campus speech, in some circumstances, should fall within the zone of parental, rather than school officials', responsibility.<ref><span id="ALDF_00015561">''Id.''</span></ref> Second, the Court reasoned that allowing schools to regulate off-campus speech would provide an opportunity to regulate student speech 24 hours a day, which may, in effect, chill students' protected speech.<ref><span id="ALDF_00015562">''Id.''</span></ref> Third, the Court emphasized that while a school does have authority to regulate speech that interrupts the school's work,<ref><span id="ALDF_00015563">The Court also reiterated that, pursuant to ''[[Tinker]]'', schools have a "special interest in regulating speech that 'materially disrupts classwork or involves substantial disorder or invasion of the rights of others.'" ''Id.''</span></ref> schools also have an interest in protecting students' unpopular expressions, as America's public schools are "the nurseries of democracy."<ref><span id="ALDF_00015564">''Id.''</span></ref> Although the Court recognized that some off-campus speech---such as severe bullying, threats, or participation in online school activities--may require school regulation, it was hesitant to establish any clear general rules about what constitutes off-campus speech.<ref><span id="ALDF_00015565">''Id.'' at 5-6. </span></ref> In light of these considerations, the Court held that a school could not regulate a student's social media posts that criticized the school because the circumstances of the speech--the fact that the posts were made at an off-campus convenience store on a personal cellphone to a limited group of people and did not name the specific school or school authorities--diminished the school's interest in regulation.<ref><span id="ALDF_00015566">''Id.'' at 7-8.</span></ref>
The line of cases from ''[[Tinker]]'' to ''[[Mahanoy]]'' address the First Amendment rights of school and university students. Teachers and other employees of schools also have rights, but those rights are generally analyzed under rules that apply to the government as an employer.<ref><span id="ALDF_00015567">''See, e.g.'', ''[[Keyishian v. Bd. of Regents]]'', 385 U.S., 589 (1967). ''See also'' [[{{ROOTPAGENAME}}/First Amend.#Loyalty Oaths|First Amend.: Loyalty Oaths]], [[{{ROOTPAGENAME}}/First Amend.#Political Activities and Government Employees|First Amend.: Political Activities and Government Employees]], [[{{ROOTPAGENAME}}/First Amend.#Honoraria and Government Employees|First Amend.: Honoraria and Government Employees]], and [[{{ROOTPAGENAME}}/First Amend.#Pickering Balancing Test for Government Employee Speech|First Amend.: Pickering Balancing Test for Government Employee Speech]].</span></ref>
=====Prison Free Speech and Government as Prison Administrator=====
A prison inmate retains only those First Amendment rights that are not inconsistent with his status as a prisoner or the legitimate penological objectives of the corrections system.<ref><span id="ALDF_00006648">''[[Pell v. Procunier]]'', 417 U.S. 817, 822 (1974). The Supreme Court has applied this same deferential review to the assessment of neutral regulations inhibiting religious exercise. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice Regulating Prisons and the Military|First Amend.: Laws Neutral to Religious Practice Regulating Prisons and the Military]]. In a related, but distinct context, however, state laws that restrict the First Amendment rights of former prisoners that are still under the supervision of the state may trigger strict scrutiny. For example, in ''[[Packingham v. North Carolina]]'', the Court struck down a North Carolina law making it a felony for registered sex offenders to use commercial social networking websites that allow minor children to be members, such as Facebook. 582 U.S. 98 (2017). The Court held that the North Carolina law impermissibly restricted lawful speech because it was not narrowly tailored to serve the significant government interest in protecting minors from registered sex offenders. ''Id.'' at 108 (holding that it was "unsettling to suggest that only a limited set of websites can be used even by persons who have completed their sentences.").</span></ref> The Supreme Court has recognized that the government has legitimate interests in preserving internal prison order and discipline, maintaining of institutional security against escape or unauthorized entry, and rehabilitating prisoners.<ref><span id="ALDF_00006649">''[[Procunier v. Martinez]]'', 416 U.S. 396, 412 (1974). The Court later clarified that to the extent ''[[Martinez]]'' suggested a "categorical discrimination between incoming correspondence from prisoners (to which we applied a reasonableness standard . . . ) and incoming correspondence from nonprisoners" (to which ''[[Martinez]]'' suggested the Court might have applied a heightened standard), those aspects of the decision were overruled. ''[[Thornburgh v. Abbott]]'', 490 U.S. 401, 413-14 (1989). </span></ref> In applying these general standards, the Court initially seemed to arrive at somewhat divergent points in assessing prison restrictions on mail and on face-to-face news interviews between reporters and prisoners. Later cases took a more deferential approach to restrictions on both, and the Court walked back language in earlier rulings that suggested heightened scrutiny applied in assessing restrictions on inmates' mail.
In ''[[Procunier v. Martinez]]'',<ref><span id="ALDF_00006650"> [http://cdn.loc.gov/service/ll/usrep/usrep416/usrep416396/usrep416396.pdf 416 U.S. 396 (1974)]. ''But see'' ''[[Jones v. N.C. Prisoners' Union]]'', 433 U.S. 119 (1977), in which the Court sustained 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.</span></ref> 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 were "defamatory" or "otherwise inappropriate."<ref><span id="ALDF_00006651">416 U.S. at 396.</span></ref> 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, mail regulation must further an important interest unrelated to suppressing expression; regulation must be shown to further the substantial interest of security, order, and rehabilitation; and regulation must not be used simply to censor opinions or other expressions. Further, a restriction must be no greater than is necessary to protecting particular government interest involved.
In ''[[Turner v. Safley]]'',<ref><span id="ALDF_00006652"> [http://cdn.loc.gov/service/ll/usrep/usrep482/usrep482078/usrep482078.pdf 482 U.S. 78 (1987)].</span></ref> however, the Court held that a standard that is more deferential to the government applies when the free speech rights only of inmates are at stake. In upholding a Missouri restriction on correspondence between inmates at different institutions, while striking down a prohibition on inmate marriages absent a 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."<ref><span id="ALDF_00006653">''Id.'' at 89. In ''[[Overton v. Bazzetta]]'', 539 U.S. 126 (2003), the Court applied ''[[Turner]]'' to uphold various restrictions on visitation by children and by former inmates, and on all visitation except attorneys and members of the clergy for inmates with two or more substance-abuse violations; an inmate subject to the latter restriction could apply for reinstatement of visitation privileges after two years. "If the withdrawal of all visitation privileges were permanent or for a much longer period, or if it were applied in an arbitrary manner to a particular inmate, the case would present different considerations." ''Id.'' at 137.</span></ref> Four factors "are relevant in determining the reasonableness of a regulation at issue,"<ref><span id="ALDF_00006654">482 U.S. at 89.</span></ref> the Court explained:
{{Quote|First, is there a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it? Second, are there alternative means of exercising the right that remain open to prison inmates? Third, what impact will accommodation of the asserted constitutional right . . . have on guards and other inmates, and on the allocation of prison resources generally? And, fourth, are ready alternatives for furthering the governmental interest available?''[[Beard v. Banks]]'', 548 U.S. 521, 529 (2006) (citations and internal quotation marks omitted; this quotation quotes language from ''[[Turner v. Safley]]'', 482 U.S. at 89-90).}}
Two years after ''[[Turner v. Safley]]'', in ''[[Thornburgh v. Abbott]]'', the Court restricted ''[[Procunier v. Martinez]]'' to regulating ''outgoing'' correspondence, finding that 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.<ref><span id="ALDF_00006656"> [http://cdn.loc.gov/service/ll/usrep/usrep490/usrep490401/usrep490401.pdf 490 U.S. 401, 411-14 (1989)]. ''[[Thornburgh v. Abbott]]'' noted that, if regulations deny prisoners publications on the basis of their content, but the grounds on which the regulations do so is content-neutral (for example, to protect prison security), then the regulations will be deemed neutral. ''Id.'' at 415-16.</span></ref>
In ''[[Beard v. Banks]]'', a plurality of the Supreme Court upheld "a Pennsylvania prison policy that 'denies newspapers, magazines, and photographs' to a group of specially dangerous and recalcitrant inmates."<ref><span id="ALDF_00006657"> [https://cite.case.law/us/548/521/?full_case=true&amp;format=html 548 U.S. 521, 524-25 (2006)]. This was a 4-2-2 decision, with Justice Samuel Alito, who had written the court of appeals decision, not participating.</span></ref> These inmates were housed in Pennsylvania's Long Term Segregation Unit and one of the prison's penological rationales for its policy, which the plurality found to satisfy the four ''[[Turner]]'' factors, was to motivate better behavior on the part of the prisoners by providing them with an incentive to move back to the regular prison population.<ref><span id="ALDF_00006658">''Id.'' at 531.</span></ref> Applying the four ''[[Turner]]'' factors to this rationale, the plurality found that (1) there was a logical connection between depriving inmates of newspapers and magazines and providing an incentive to improve behavior; (2) the Policy provided no alternatives to the deprivation of newspapers and magazines, but this was "not 'conclusive' of the reasonableness of the Policy"; (3) the impact of accommodating the asserted constitutional right would be negative; and (4) no alternative would "fully accommodate the prisoner's rights at ''de minimis'' cost to valid penological interests."<ref><span id="ALDF_00006659">''Id.'' at 531-32.</span></ref> The plurality believed that its "real task in this case is not balancing these factors, but rather determining whether the Secretary shows more than simply a logical relation, that is, whether he shows a ''reasonable'' relation" between the policy and legitimate penological objections, as ''[[Turner]]'' requires.<ref><span id="ALDF_00006660">''Id.'' at 533.</span></ref> The plurality concluded that he had. Justices Clarence Thomas and Antonin Scalia concurred in the result but would eliminate the ''[[Turner]]'' factors because they believe that "States are free to define and redefine all types of punishment, including imprisonment, to encompass various types of deprivation--''provided only that those deprivations are consistent with the Eighth Amendment''."<ref><span id="ALDF_00006661">''Id.'' at 537 (Thomas, J., concurring), quoting ''[[Overton v. Bazzetta]]'', 539 U.S. at 139 (Thomas, J., concurring) (emphasis originally in ''[[Overton]]'').</span></ref>
Only two months after ''[[Procunier v. Martinez]]'', the Court rejected a First Amendment challenge to regulations barring face-to-face media interviews with specific inmates.<ref><span id="ALDF_00006662">''[[Pell v. Procunier]]'', 417 U.S. 817 (1974).</span></ref> Prison restrictions on such interviews implicate the First Amendment rights of prisoners, the Court held, but such rights must be balanced against "the legitimate penological objectives of the corrections system" and "internal security within the corrections facilities," taking into account available alternative means of communications, such as mail and "limited visits from members of [prisoners'] families, the clergy, their attorneys, and friends of prior acquaintance."<ref><span id="ALDF_00006663">''Id.'' at 822-25.</span></ref>
While reaffirming "news gathering is not without its First Amendment protections,"<ref><span id="ALDF_00006664">''[[Branzburg v. Hayes]]'', 408 U.S. 665, 707 (1972), ''quoted in'' ''[[ Procunier]]'', 417 U.S. at 833.</span></ref> the Court held that the First Amendment did not impose on the government any affirmative obligation "to accord the press special access to information not shared by members of the public generally."<ref><span id="ALDF_00006665">''Id.'' at 834. The holding was applied to federal prisons in ''[[Saxbe v. Wash. Post]]'', 417 U.S. 843 (1974).</span></ref> In ''[[Houchins v. KQED]]'',<ref><span id="ALDF_00006666">''[[Houchins v. KQED]]'', 438 U.S. 1, 17 (1978). In this case, there was no majority 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.</span></ref> a broadcaster 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 the First Amendment does not "mandate[ ] a right of access to government information or sources of information within the government's control," and "until the political branches decree otherwise . . . the media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally."<ref><span id="ALDF_00006667">''Id.'' at 15-16.</span></ref> Justice Potter Stewart, whose vote was necessary to the disposition of the case, agreed with the equal access holding but would have allowed the trial court to craft an injunction more narrowly drawn to protect the press's right to use cameras and recorders so as to enlarge public access to the information.<ref><span id="ALDF_00006668">''Id.'' at 18-19 (Stewart, J., concurring in the judgment).</span></ref>
====Public Employee Speech and Government as Employer====
=====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 combine 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 that stands for or advocates unlawful or disloyal action.
Following the Civil War, the state and federal governments adopted test oaths, which the Supreme Court generally voided as ex post facto laws and bills of attainder.<ref><span id="ALDF_00025705">''[[Cummings v. Missouri]]'', 71 U.S. (4 Wall.) 277 (1867); ''[[Ex parte Garland]]'', 71 U.S. (4 Wall.) 333 (1867).</span></ref> 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.<ref><span id="ALDF_00025706">''[[Gerende v. Bd. of Supervisors of Elections]]'', 341 U.S. 56 (1951). In ''[[In. Communist Party v. Whitcomb]]'', 414 U.S. 441 (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 In.]]'', 410 U.S. 976 (1973).</span></ref> Less than two months later, the Court upheld 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 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.<ref><span id="ALDF_00025707">''[[Garner v. Bd. of Pub. Works]]'', 341 U.S. 716 (1951). Justice Felix Frankfurter dissented in part on First Amendment grounds, ''id.'' at 724, Justice Harold Burton dissented in part, ''id.'' at 729, and Justices Hugo Black and William O. Douglas dissented completely, on bill of attainder grounds, ''id.'' at 731.</span></ref> Writing for the Court, Justice Tom 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.<ref><span id="ALDF_00025708">''Id.'' at 720. Justices Felix Frankfurter and Burton agreed with this ruling. ''Id.'' at 725-26, 729-30.</span></ref> 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, who had severed their associations upon knowledge of an organization's purposes, or who had been members of an organization at a time when it was not unlawfully engaged.<ref><span id="ALDF_00025709">''Id.'' at 723-24.</span></ref> 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."<ref><span id="ALDF_00025710">341 U.S. at 720-21. Justice Felix 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.</span></ref>
In the following Term, the Court sustained in ''[[Adler v. Board of Education]]'' 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 that so advocated.<ref><span id="ALDF_00025711">''[[Adler v. Bd. of Educ.]]'', 342 U.S. 485 (1952).</span></ref> The statute had been supplemented by a provision applicable to teachers calling for the drawing up of a list of organizations that advocated violent overthrow and making membership in any listed organization prima facie evidence of disqualification. Justice Sherman 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. He stated: "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."<ref><span id="ALDF_00025712">''Id.'' at 492.</span></ref> 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.<ref><span id="ALDF_00025713">''Id.''</span></ref> 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.<ref><span id="ALDF_00025714">''Id.'' at 494-96.</span></ref>
The same year, the Court invalidated 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."<ref><span id="ALDF_00025715">''[[Wieman v. Updegraff]]'', 344 U.S. 183, 190 (1952).</span></ref> 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.<ref><span id="ALDF_00025716">''Id.'' at 190-91.</span></ref> But subsequent cases 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.<ref><span id="ALDF_00025717">''[[Beilan v. Bd. of Educ.]]'', 357 U.S. 399 (1958); ''[[Lerner v. Casey]]'', 357 U.S. 468 (1958); ''[[Nelson v. Cnty. of Los Angeles]]'', 362 U.S. 1 (1960). ''Compare'' ''[[Slochower v. Bd. of Higher Educ.]]'', 350 U.S. 551 (1956). For the self-incrimination aspects of these cases, see [[{{ROOTPAGENAME}}/Fifth Amend.#General Protections Against Self-Incrimination Doctrine and Practice|Fifth Amend.: General Protections Against Self-Incrimination Doctrine and Practice]].</span></ref> In ''[[Shelton v. Tucker]]'',<ref><span id="ALDF_00025718"> [http://cdn.loc.gov/service/ll/usrep/usrep364/usrep364479/usrep364479.pdf 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.</span></ref> however, a 5-4 majority held that, although 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.
The Court relied on vagueness when loyalty oaths aimed at "subversives" next came before it. In ''[[Cramp v. Board of Public Instruction]]'',<ref><span id="ALDF_00025719"> [http://cdn.loc.gov/service/ll/usrep/usrep368/usrep368278/usrep368278.pdf 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'', [http://cdn.loc.gov/service/ll/usrep/usrep403/usrep403207/usrep403207.pdf 403 U.S. 207 (1971)]. [http://cdn.loc.gov/service/ll/usrep/usrep377/usrep377360/usrep377360.pdf 377 U.S. 360 (1964)].</span></ref> it unanimously held an oath too vague that required one to swear, among other things, that "I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party." Similarly, in ''[[Baggett v. Bullitt]]'',<ref><span id="ALDF_00025720"> [http://cdn.loc.gov/service/ll/usrep/usrep377/usrep377360/usrep377360.pdf 377 U.S. 360 (1964)]. Justices Clark and John Harlan dissented. ''Id. at 380.''</span></ref> the Court struck down 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, among other things, 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.<ref><span id="ALDF_00025721">377 U.S. at 369-70.</span></ref>
More precisely drawn oaths survived vagueness attacks but fell before First Amendment objections in the next three cases. ''[[Elfbrandt v. Russell]]''<ref><span id="ALDF_00025722"> [http://cdn.loc.gov/service/ll/usrep/usrep384/usrep384011/usrep384011.pdf 384 U.S. 11 (1966)] Justices Byron White, Clark, John Harlan and Potter Stewart dissented. ''Id.'' at 20.</span></ref> 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 William O. 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.<ref><span id="ALDF_00025723">''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.</span></ref> Next, in ''[[Keyishian v. Board of Regents]]'',<ref><span id="ALDF_00025724"> [http://cdn.loc.gov/service/ll/usrep/usrep385/usrep385589/usrep385589.pdf 385 U.S. 589 (1967)]. Justices Clark, John Harlan, Potter Stewart, and Byron White dissented. ''Id.'' at 620.</span></ref> the oath provisions sustained in ''[[Adler]]''<ref><span id="ALDF_00025725"> [http://cdn.loc.gov/service/ll/usrep/usrep342/usrep342485/usrep342485.pdf 342 U.S. 485 (1952)].</span></ref> were declared unconstitutional. A number of provisions were voided as vague,<ref><span id="ALDF_00025726">''[[Keyishian v. Bd. of Regents]]'', 385 U.S. 589, 597-604 (1967).</span></ref> 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, 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."<ref><span id="ALDF_00025727">''Id.'' at 608. The statement here makes specific intent or active membership alternatives in addition to knowledge, whereas ''[[Elfbrandt v. Russell]]'', 384 U.S. 11, 19 (1966), requires both in addition to knowledge.</span></ref> Similarly, in ''[[Whitehill v. Elkins]]'',<ref><span id="ALDF_00025728"> [http://cdn.loc.gov/service/ll/usrep/usrep389/usrep389054/usrep389054.pdf 389 U.S. 54 (1967)]. Justices John Harlan, Potter Stewart, and Byron White dissented. ''Id.'' at 62.</span></ref> an oath was voided because the Court thought it might include within its proscription innocent membership in an organization that advocated illegal overthrow of government.
Loyalty oath cases from the 1970s reflected the heightened constitutional protections announced in ''[[Keyishian]]''. In ''[[Connell v. Higginbotham]]'',<ref><span id="ALDF_00025729"> [http://cdn.loc.gov/service/ll/usrep/usrep403/usrep403207/usrep403207.pdf 403 U.S. 207 (1971)].</span></ref> the Court invalidated 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" 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]]''<ref><span id="ALDF_00025730"> [http://cdn.loc.gov/service/ll/usrep/usrep405/usrep405676/usrep405676.pdf 405 U.S. 676, 683-84 (1972)].</span></ref> 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. More broadly, as ''[[Keyishian]]'' suggests and as discussed in subsequent essays, the Court has rejected the ''[[Adler]]'' rationale that public employment may be subject to unreasonable conditions because there is no right to public employment.<ref><span id="ALDF_00025731">''[[Keyishian]]'', 385 U.S. at 605-06.</span></ref> Instead, the controlling principle now is that government may not deny employment or other benefits on a basis that infringes a person's constitutionally protected interests.<ref><span id="ALDF_00025732">''[[Perry v. Sindermann]]'', 408 U.S. 593, 597 (1972) (citation omitted). 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. W. Line Consol. Sch. Dist.]]'', 439 U.S. 410, 416 (1979).</span></ref>
=====Political Activities and Government Employees=====
Abolition of the "spoils system" in federal employment brought with it restrictions on 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.<ref><span id="ALDF_00025733">19 Stat. 143, &#167; 6, [https://uscode.house.gov/view.xhtml?req=(title:18%20section:602%20edition:prelim)%20OR%20(granuleid:USC-prelim-title18-section602)&amp;f=treesort&amp;num=0&amp;edition=prelim 18 U.S.C. &#167;&#167; 602]-03, sustained in ''[[Ex parte Curtis]]'', 106 U.S. 371 (1882); 22 Stat. 403, as amended, [https://uscode.house.gov/view.xhtml?req=(title:5%20section:7323%20edition:prelim)%20OR%20(granuleid:USC-prelim-title5-section7323)&amp;f=treesort&amp;num=0&amp;edition=prelim 5 U.S.C. &#167; 7323].</span></ref> 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."<ref><span id="ALDF_00025734">53 Stat. 1147 &#167; 9(a) (1939), as amended, [https://uscode.house.gov/view.xhtml?req=(title:5%20section:7324%20edition:prelim)%20OR%20(granuleid:USC-prelim-title5-section7324)&amp;f=treesort&amp;num=0&amp;edition=prelim 5 U.S.C. &#167; 7324](a)(2). By 54 Stat. 767 (1940), as amended, [https://uscode.house.gov/view.xhtml?req=(title:5%20section:1501%20edition:prelim)%20OR%20(granuleid:USC-prelim-title5-section1501)&amp;f=treesort&amp;num=0&amp;edition=prelim 5 U.S.C. &#167;&#167; 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. Civ. Serv. 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).</span></ref> 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.<ref><span id="ALDF_00025735">The Comm'n on Pol. Activity of Gov't Pers., Findings and Recommendations 11, 19-24 (1968).</span></ref> The question was whether government, which may not prohibit citizens in general from engaging in these activities, could nonetheless so control the off-duty activities of its own employees.
In ''[[United Public Workers v. Mitchell]]'',<ref><span id="ALDF_00025736"> [http://cdn.loc.gov/service/ll/usrep/usrep330/usrep330075/usrep330075.pdf 330 U.S. 75, 94-104 (1947)]</span></ref> 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 ruled against a mechanical employee of the Mint who had done so. The Court's opinion, by Justice Stanley Reed, recognized that the restrictions of political activities imposed by the Act did in some measure impair First Amendment and other constitutional rights,<ref><span id="ALDF_00025737">''Id.'' at 94-95.</span></ref> but it based 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 was a due process standard of reasonableness.<ref><span id="ALDF_00025738">''Id.'' at 101-02.</span></ref> Thus, changes in the standards of judging incidental restrictions on expression suggested the possibility of a reconsideration of ''[[Mitchell]]''.<ref><span id="ALDF_00025739">The Act was held unconstitutional by a divided three-judge district court. ''[[Nat'l Ass'n of Letter Carriers v. Civil Serv. Comm'n]]'', 346 F. Supp. 578 (D.D.C. 1972).</span></ref>
In ''[[Civil Service Commission v. National Association of Letter Carriers]]'', however, a divided Court, reaffirming ''[[Mitchell]]'', sustained the Act's limitations upon political activity against a range of First Amendment challenges.<ref><span id="ALDF_00025740"> [http://cdn.loc.gov/service/ll/usrep/usrep413/usrep413548/usrep413548.pdf 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 clearly could constitutionally proscribe.</span></ref> The Court 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.<ref><span id="ALDF_00025741">The interests the Court recognized 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.</span></ref> The issue in ''Letter Carriers'', however, was whether the language that Congress had enacted, forbidding employees to take "an active part in political management or in political campaigns,"<ref><span id="ALDF_00025742">''Id.'' at 570 n.17.</span></ref> 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 covered conduct that Congress could not forbid as well as conduct subject to prohibition or regulation. With respect to vagueness, the 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 in a section stating that the forbidden activities were the same activities that 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. . . ."<ref><span id="ALDF_00025743">''Id.''.</span></ref> This language had been included, it was contended, to deprive the Commission of power to alter thousands of rulings it had made that were not available to employees and that were in any event mutually inconsistent and too broad.
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. The Commission had done that. It had regularly summarized in understandable terms the rules that it applied, and it was authorized as well to issue advisory opinions to employees uncertain 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."<ref><span id="ALDF_00025744">''Id.'' at 578-79.</span></ref> 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.<ref><span id="ALDF_00025745">''Id.'' at 580-81.</span></ref> Subsequently, in ''[[Bush v. Lucas]]''<ref><span id="ALDF_00025746"> [http://cdn.loc.gov/service/ll/usrep/usrep462/usrep462367/usrep462367.pdf 462 U.S. 367, 385 (1983)].</span></ref> the Court held that the civil service laws and regulations constitute a sufficiently "elaborate, comprehensive scheme" to afford federal employees an 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.
The Court has also addressed the balance between elected officials' First Amendment rights to speak about matters of public concern and elected bodies' rights to censure objectionable speech. In ''[[Houston Community College System v. Wilson]]'', a community college Board of Trustees censured one of its elected members after he made public comments that the Board found "inappropriate," "reprehensible," and "not consistent with the best interests of the College."<ref><span id="ALDF_00025747">20-804, slip op. at 2 (U.S. March 24, 2022).</span></ref> The Board member claimed the censure violated his First Amendment right to be free from government retaliation for engaging in protected speech.<ref><span id="ALDF_00025748">''Id''. at 4.</span></ref> While acknowledging that elected representatives, like the Board member, have the right to speak freely on government policy, the Court recognized that the censure issued by the other elected representatives was also a form of protected speech.<ref><span id="ALDF_00025749">''Id.'' at 9.</span></ref> According to the Court, the Board member could not use his First Amendment rights "as a weapon to silence other representatives seeking to do the same."<ref><span id="ALDF_00025750">''Id''.</span></ref> Although it concluded that the censure at issue did not violate the First Amendment, the Court explained its decision was a "narrow one" involving only a First Amendment retaliation claim regarding the "censure of one member of an elected body by other members of the same body."<ref><span id="ALDF_00025751">''Id.'' at 13.</span></ref> As a result, claims involving other forms of discipline or punishment, such as expulsion or exclusion, may produce a different outcome.<ref><span id="ALDF_00025752">''Id''.</span></ref>
=====Honoraria and Government Employees=====
In ''[[United States v. National Treasury Employees Union (NTEU)]]'',<ref><span id="ALDF_00025753"> [http://cdn.loc.gov/service/ll/usrep/usrep513/usrep513454/usrep513454.pdf 513 U.S. 454 (1995)].</span></ref> the Court struck down an honoraria ban as applied to lower-level employees of the Federal Government. The Court distinguished the honoraria ban from the Hatch Act on the grounds that the honoraria ban suppressed employees' right to free expression while the Hatch Act sought to protect that right.<ref><span id="ALDF_00025754">''See'' ''id.'' at 471.</span></ref> The Court also observed that there was no evidence of improprieties in the acceptance of honoraria by members of the plaintiff class of federal employees.<ref><span id="ALDF_00025755">''See'' ''id.'' The plaintiff class consisted of all Executive Branch employees below grade GS-16. Also covered by the ban were senior executives, Members of Congress, and other federal officers, but the possibility of improprieties by these groups did not justify application of the ban to "the vast rank and file of federal employees below grade GS-16." ''Id.'' at 472.</span></ref> The Court emphasized further difficulties with the "crudely crafted" honoraria ban: it was limited to expressive activities and had no application to other sources of outside income, it applied when neither the subjects of speeches and articles nor the persons or groups paying for them bore any connection to the employee's job responsibilities, and it exempted a "series" of speeches or articles without also exempting individual articles and speeches. These "anomalies" led the Court to conclude that the "speculative benefits" of the ban were insufficient to justify the burdens it imposed on expressive activities.<ref><span id="ALDF_00025756">''Id.'' at 477.</span></ref>
=====Pickering Balancing Test for Government Employee Speech=====
While the government does not have complete freedom to restrict the speech of its employees, it does have some power. "[I]t cannot be gainsaid," the Court said in ''[[Pickering v. Board of Education]]'', "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."<ref><span id="ALDF_00025757"> [http://cdn.loc.gov/service/ll/usrep/usrep391/usrep391563/usrep391563.pdf 391 U.S. 563, 568 (1968)].</span></ref> ''[[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 Thurgood 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."<ref><span id="ALDF_00025758">''Id.'' at 568.</span></ref> The Court's analysis suggested some factors that might be relevant in conducting the balancing test. 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 harmony among coworkers, or problems of personal loyalty and confidence, would arise.<ref><span id="ALDF_00025759">''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.</span></ref> 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 of which the community should be aware. The ''[[Pickering]]'' Court stated: "In these circumstances we conclude that the interest of the school administration in limiting teachers' opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public."<ref><span id="ALDF_00025760">391 U.S. at 573. The Court extended ''[[Pickering]]'' to private communications of an employee's views to the employer in ''[[Givhan v. w. Line Consol. Sch. Dist.]]'', 439 U.S. 410 (1979), although it recognized that different considerations might arise in different contexts. That is, with respect to public speech, content may be determinative in weighing impairment of the government's interests, whereas, with private speech, as "[w]hen a government employee personally confronts his immediate superior,. . .the manner, time, and place in which it is delivered" may also be relevant. ''Id.'' at 415 n.4. As discussed below, however, in ''[[Garcetti v. Ceballos]]'', 547 U.S. 410 (2006), the Court held that there is no First Amendment protection at all for government employees when they make statements pursuant to their official duties.</span></ref>
Combining a balancing test of governmental interest and employee rights with a purportedly limiting statutory construction, the Court, in ''[[Arnett v. Kennedy]]'',<ref><span id="ALDF_00025761"> [http://cdn.loc.gov/service/ll/usrep/usrep416/usrep416134/usrep416134.pdf 416 U.S. 134 (1974)] (The quoted language is from [https://uscode.house.gov/view.xhtml?req=(title:5%20section:7501%20edition:prelim)%20OR%20(granuleid:USC-prelim-title5-section7501)&amp;f=treesort&amp;num=0&amp;edition=prelim 5 U.S.C. &#167; 7501](a).</span></ref> sustained the constitutionality of a federal law that authorized the 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 an employee. The employee 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."<ref><span id="ALDF_00025762">416 U.S. at 160.</span></ref> But, referencing its ''Letter Carriers'' analysis,<ref><span id="ALDF_00025763">''[[Civ. Serv. Comm'n v. Nat'l Ass'n of Letter Carriers]]'', 413 U.S. 548, 578-79 (1973).</span></ref> it ruled that the authority conferred was not impermissibly vague, inasmuch as it is not possible to encompass within a statute all the myriad situations that arise in the course of employment, and inasmuch as 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.<ref><span id="ALDF_00025764">''[[Arnett v. Kennedy]]'', 416 U.S. 134, 158-64 (1974).</span></ref> Nor 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."<ref><span id="ALDF_00025765">''Id.'' at 162.</span></ref>
The Court clarified the ''[[Pickering]]'' inquiry in ''[[Connick v. Myers]]'',<ref><span id="ALDF_00025766"> [http://cdn.loc.gov/service/ll/usrep/usrep461/usrep461138/usrep461138.pdf 461 U.S. 138 (1983)].</span></ref> involving what the Court characterized, in the main, as an employee grievance 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. The Court found this firing permissible, stating: "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."<ref><span id="ALDF_00025767">''Id.'' at 146.</span></ref> 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.<ref><span id="ALDF_00025768">''Id.'' at 147-148.</span></ref> Because one aspect of the employee's speech did raise matters of public concern, ''[[Connick]]'' also applied ''[[Pickering]]''<nowiki>'</nowiki>s balancing test, holding that "a wide degree of deference is appropriate" when "close working relationships" between employer and employee are involved.<ref><span id="ALDF_00025769">''Id.'' at 151-52.</span></ref> The issue of public concern is not only a threshold inquiry, but, under ''[[Connick]]'', still figures in the balancing of interests: as the ''[[Connick]]'' Court stated, "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.<ref><span id="ALDF_00025770">''Id.'' at 150.</span></ref>
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.<ref><span id="ALDF_00025771">This conclusion was implicit in ''[[Givhan v. Western Line Consolidated School District]]'', 439 U.S. 410 (1979), which the Court characterized 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</span></ref> In ''[[Rankin v. McPherson]]''<ref><span id="ALDF_00025772"> [http://cdn.loc.gov/service/ll/usrep/usrep483/usrep483378/usrep483378.pdf 483 U.S. 378 (1987)].</span></ref> the Court held protected an employee's comment, made to a co-worker upon hearing of an unsuccessful attempt to assassinate the President, and in a context critical of the 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.<ref><span id="ALDF_00025773">"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." ''Id.'' at 390-91.</span></ref>
In ''[[City of San Diego v. Roe]]'',<ref><span id="ALDF_00025774"> [http://cdn.loc.gov/service/ll/usrep/usrep543/usrep543077/usrep543077.pdf 543 U.S. 77 (2004)] (per curiam).</span></ref> the Court held that a police department could fire a police officer who sold a video on the adults-only section of eBay that showed him stripping off a police uniform and masturbating. The Court found that the officer's "expression does not qualify as a matter of public concern. . . and ''[[Pickering]]'' balancing does not come into play."<ref><span id="ALDF_00025775">''Id.'' at 84.</span></ref> The Court also noted that the officer's speech, unlike federal employees' speech in ''[[United States v. National Treasury Employees Union (NTEU)]]'',<ref><span id="ALDF_00025776"> [http://cdn.loc.gov/service/ll/usrep/usrep513/usrep513454/usrep513454.pdf 513 U.S. 454 (1995)]. For discussion on ''[[United States v. NTEU]]'', see [[{{ROOTPAGENAME}}/First Amend.#Honoraria and Government Employees|First Amend.: Honoraria and Government Employees]].</span></ref> "was linked to his official status as a police officer, and designed to exploit his employer's image," and therefore "was detrimental to the mission and functions of his employer."<ref><span id="ALDF_00025777">''[[City of San Diego v. Roe]]'', 543 U.S. 77, 84 (2004) (per curiam).</span></ref> The Court, therefore, had "little difficulty in concluding that the City was not barred from terminating Roe under either line of cases [that is, ''[[Pickering]]'' or ''[[NTEU]]'']."<ref><span id="ALDF_00025778">''Id.'' at 80.</span></ref>
In ''[[Garcetti v. Ceballos]]'', the Court held that there is no First Amendment protection--''[[Pickering]]'' balancing is not to be applied--"when public employees make statements pursuant to their official duties," even if those statements are about matters of public concern.<ref><span id="ALDF_00025779"> [https://cite.case.law/us/547/410/?full_case=true&amp;format=html 547 U.S. 410, 421 (2006)].</span></ref> In this case, a deputy district attorney had presented his supervisor with a memo expressing his concern that an affidavit that the office had used to obtain a search warrant contained serious misrepresentations. The deputy district attorney claimed that he was subjected to retaliatory employment actions, and he sued. The Supreme Court held "that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."<ref><span id="ALDF_00025780">''Id.'' at 421. However, "[s]o long as employees are speaking as citizens about matters of public concern, they must face only those speech restrictions that are necessary for their employers to operate efficiently and effectively." ''Id.'' at 419. Such necessity, however, may be based on a "common-sense conclusion" rather than on "empirical data." ''[[Tenn. Secondary Sch. Athletic Ass'n v. Brentwood Acad.]]'', 551 U.S. 291, 300 (2007) (citing ''[[Garcetti]]'').</span></ref> The fact that the employee's speech occurred inside his office, and the fact that the speech concerned the subject matter of his employment, were not sufficient to foreclose First Amendment protection.<ref><span id="ALDF_00025781">''Id.'' at 421.</span></ref> Rather, the "controlling factor" was "that his expressions were made pursuant to his duties."<ref><span id="ALDF_00025782">''Id.''</span></ref>
In distinguishing between wholly unprotected "employee speech" and quasi-protected "citizen speech," sworn testimony outside of the scope of a public employee's ordinary job duties appears to be "citizen speech." In ''[[Lane v. Franks]]'',<ref><span id="ALDF_00025783">573 U.S. 228 (2014).</span></ref> the director of a state government program for underprivileged youth was terminated from his job following his testimony regarding the alleged fraudulent activities of a state legislator that occurred during the legislator's employment in the government program. The employee challenged the termination on First Amendment grounds.
The Court held generally that testimony by a subpoenaed public employee made outside the scope of his ordinary job duties is to be treated as speech by a citizen, subject to the ''[[Pickering]]''-''[[Connick]]'' balancing test.<ref><span id="ALDF_00025784">''Id.'' at 238.</span></ref> The Court noted that "[s]worn testimony in judicial proceedings is a quintessential example of speech as a citizen for a simple reason: Anyone who testifies in court bears an obligation to the court and society at large, to tell the truth."<ref><span id="ALDF_00025785">''Id.''</span></ref> In so holding, the Court confirmed that ''[[Garcetti]]''<nowiki>'</nowiki>s holding is limited to speech made in accordance with an employee's official job duties and does not extend to speech that merely concerns information learned during that employment. The Court in ''[[Lane]]'' ultimately found that the plaintiff's speech deserved protection under the ''[[Pickering]]''-''[[Connick]]'' balancing test because the speech was both a matter of public concern (the speech was testimony about misuse of public funds) and the testimony did not raise concerns for the government employer.<ref><span id="ALDF_00025786">''Id.'' at 241-42. The Court, however, held that because no relevant precedent in the lower court or in the Supreme Court clearly established that the government employer could not fire an employee because of testimony the employee gave, the defendant was entitled to qualified immunity. ''Id.'' at 243.</span></ref>
In a 2022 case, the Supreme Court expressly connected the issue of public employee speech to the related issue of government speech,<ref><span id="ALDF_00025787">''See'' [[{{ROOTPAGENAME}}/First Amend.#Government Speech and Government as Speaker|First Amend.: Government Speech and Government as Speaker]].</span></ref> saying that the Free Speech Clause question in ''[[Kennedy v. Bremerton School District]]'' turned on whether a football coach had acted "in his capacity as a private citizen," or whether instead his actions "amount[ed] to government speech attributable to" his public employer.<ref><span id="ALDF_00025788">''[[Kennedy v. Bremerton Sch. Dist.]]'', No. 21-418, slip op. at 16 (U.S. June 27, 2022).</span></ref> The school had disciplined the coach for praying at the 50-yard line immediately after football games, while he was still on duty.<ref><span id="ALDF_00025789">''Id.'' at 7.</span></ref> The parties agreed that the coach's prayer implicated a matter of public concern, but the school argued his speech was unprotected under ''[[Pickering]]'' because he was speaking in his official capacity as a public employee.<ref><span id="ALDF_00025790">''See'' ''id.'' at 16.</span></ref> The Court held instead that the coach's prayers were private speech, stating the speech was not within the scope of his ordinary duties and he "was not seeking to convey a government-created message."<ref><span id="ALDF_00025791">''Id.'' at 17.</span></ref> The Court noted further that during this postgame period, employees "were free to attend briefly to [other] personal matters" and students were engaged in other activities, suggesting the coach's "prayers were not delivered as an address to the team, but instead in his capacity as a private citizen."<ref><span id="ALDF_00025792">''Id.'' at 17-18.</span></ref> Although the coach was on duty and his prayers were delivered at his workplace, these facts were not dispositive to the analysis.<ref><span id="ALDF_00025793">''Id''. ''See also'' ''id.'' at 18 (suggesting it would be inappropriate to treat "everything teachers and coaches say in the workplace as government speech subject to government control").</span></ref> Ultimately, the Court held that the school had not met its burden to justify the restrictions on the coach's religious speech.<ref><span id="ALDF_00025794">''See'' ''id.'' at 19-20. This aspect of the Court's ruling, which turned on an interpretation of the First Amendment's Establishment Clause, is discussed in [[{{ROOTPAGENAME}}/First Amend.#Coercion and Establishment Clause Doctrine|First Amend.: Coercion and Establishment Clause Doctrine]]. </span></ref>
The protections applicable to government employees have been extended to independent government contractors, the Court announcing that "the ''[[Pickering]]'' balancing test, adjusted to weigh the government's interests as contractor rather than as employer, determines the extent of their protection."<ref><span id="ALDF_00025795">''[[Bd. of Cnty. Comm'rs v. Umbehr]]'', 518 U.S. 668, 673 (1996). ''See also'' ''[[O'Hare Truck Serv., Inc. v. City of Northlake]]'', 518 U.S. 712, 715 (1996) (government may not "retaliate[ ] against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance").</span></ref>
In sum, although a public employer may not muzzle its employees or penalize them for their expressions and associations to the same extent that a private employer can,<ref><span id="ALDF_00025796">''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 Sch. Dist. v. WERC]]'', 429 U.S. 167 (1976) (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. Ark. State Highway Emps.]]'', 441 U.S. 463 (1979) (employees have right to associate to present their positions to their employer but the employer is not constitutionally required to engage in collective bargaining). ''See also'' ''[[Minn. State Bd. for Cmty. Coll. 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).</span></ref> 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.<ref><span id="ALDF_00025797">In ''[[Connick]]'', the Court noted that it did not suggest "that Myers' speech, even if not touching upon a matter of public concern, is totally beyond the protection of the First Amendment." Rather, it was beyond First Amendment protection "absent the most unusual of circumstances." ''[[Connick v. Myers]]'', 461 U.S. 138, 147 (1983). In ''Ceballos'', however, the Court, citing ''[[Connick]]'', wrote that, if an employee did not speak as a citizen on a matter of public concern, then "the employee has no First Amendment cause of action based on his or her employer's reaction to the speech." ''[[Garcetti v. Ceballos]]'', 547 U.S. 410, 418 (2006).</span></ref> If the speech does relate to a matter of public concern, then unless the speech was made by an employee pursuant to his duties, ''[[Pickering]]''<nowiki>'</nowiki>s balancing test is applied, with the governmental interests in efficiency, workplace harmony, and the satisfactory performance of the employee's duties<ref><span id="ALDF_00025798">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).</span></ref> balanced against the employee's First Amendment rights.<ref><span id="ALDF_00025799">The Court stated in ''[[Janus v. AFSCME, Council 31]]'', No. 16-1466, slip op. at 23-24 (U.S. June 27, 2018), that this analysis "requires modification" when a court considers "general rules that affect broad categories of employees." In such a case, "the government must shoulder a correspondingly 'heav[ier]' burden and is entitled to considerably less deference in its assessment that a predicted harm justifies a particular impingement on First Amendment rights." ''Id.'' at 24 (quoting ''[[United States v. Nat'l Treasury Emps. Union]]'', 513 U.S. 454, 466 (1995)) (alteration in original).</span></ref> Although the general approach is easy to describe, it has proven difficult to apply.<ref><span id="ALDF_00025800">In ''[[Waters v. Churchill]]'', 511 U.S. 661 (1994), a plurality of a divided Court concluded that a public employer does not violate the First Amendment if the employer (1) had reasonably believed that the employee's conversation involved personal matters and (2) dismissed the employee because of that reasonable belief, even if the belief was mistaken. ''Id.'' at 679-80 (plurality opinion) (O'Connor, J., joined by Rehnquist, C.J., Souter and Ginsburg, JJ.). More than two decades later, a six-Justice majority approvingly cited to the plurality opinion from ''[[Waters]]'', concluding that the employer's motive is dispositive in determining whether a public employee's First Amendment rights had been violated as a result of the employer's conduct. ''See'' Heffernan v. City of Paterson, 578 U.S. 266, 272 (2016). In so doing, the Court held that the converse of the situation in ''[[Waters]]'' --a public employer's firing of an employee based on the mistaken belief that the employee ''had'' engaged in activity ''protected'' by the First Amendment--was actionable as a violation of the Constitution. ''See'' ''id.'' ("After all, in the law, what is sauce for the goose is normally sauce for the gander."). Put another way, when an employer demotes an employee to prevent the employee from engaging in protected political activity, the employee is entitled to challenge that unlawful action under the First Amendment, "even if. . .the employer makes a factual mistake about the employee's behavior." ''Id.'' at 273. The Court concluded that the employer's motivation is central with respect to public employee speech issues because of (1) the text of the First Amendment--which "focus[es] upon the activity of the Government"; and (2) the underlying purposes of the public employee speech doctrine, which is to prevent the chilling effect that results when an employee is discharged for having engaged in protected activity. ''Id.'' at 273-74.</span></ref> The First Amendment, however, does not stand alone in protecting the speech of public employees; statutory protections for "whistleblowers" add to the mix.<ref><span id="ALDF_00025801">''See, e.g.'', Whistleblower Protection Act of 1989, Pub. L. No. 101-12, 103 Stat. 16.</span></ref>
====Media Regulation====
=====Overview of Media Regulation=====
The protections of the First Amendment extend regardless of the medium of expression--speech will remain constitutionally protected whether it is communicated in a park, in a newspaper, or in a movie.<ref><span id="ALDF_00001270">''See'', ''e.g.'', ''[[Joseph Burstyn v. Wilson]]'', 343 U.S. 495, 503 (1952) (noting that although each "method of expression tends to present its own peculiar problems . . . . the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary").</span></ref> Nonetheless, the standards for assessing First Amendment protections may vary according to the medium of expression.<ref><span id="ALDF_00001298">''See'', ''e.g.'', ''[[Se. Promotions, Ltd. v. Conrad]]'', 420 U.S. 546, 557 (1975) ("Each medium of expression, of course, must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems.").</span></ref> In particular, as discussed in the following essays, the Supreme Court has recognized that "differential treatment" of speech may sometimes be "'justified by some special characteristic of' the particular medium being regulated."<ref><span id="ALDF_00001299">''[[Turner Broad. Sys. v. FCC]]'', 512 U.S. 622, 660-61 (1994) (quoting ''[[Minn. Star &amp; Tribune Co. v. Minn. Comm'r of Revenue]]'', 460 U.S. 575, 585 (1983)).</span></ref> Further, although the Supreme Court has recognized that both the Free Speech and Free Press Clauses protect media outlets,<ref><span id="ALDF_00001300">''See'', ''e.g.'', ''[[Grosjean v. Am. Press Co.]]'', 297 U.S. 233, 244 (1936); ''see also'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Freedom of the Press|First Amend.: Overview of Freedom of the Press]].</span></ref> such organizations are not relieved from complying with generally applicable laws simply because such laws may have incidental effects on the exercise of free speech rights.<ref><span id="ALDF_00001301">''See'' ''[[Cohen v. Cowles Media Co.]]'', 501 U.S. 663, 669 (1991).</span></ref>
=====Taxation of Media=====
The First Amendment often requires heightened scrutiny of restrictions that target or disfavor the media. For example, the Supreme Court has invalidated taxes that single out media organizations for payment. In ''Grosjean v. American Press Co.'', while recognizing that newspapers are not "immune from any of the ordinary forms of taxation for support of the government," the Court voided a state 2% tax on the gross receipts of advertising in newspapers with a circulation exceeding 20,000 copies a week.<ref><span id="ALDF_00006784">''[[Grosjean v. American Press Co.]]'', 297 U.S. 233, 250 (1936).</span></ref> In the Court's view, the tax was analogous to the eighteent-century English practice of imposing advertising and stamp taxes on newspapers for the express purpose of pricing the opposition penny press beyond the means of the mass of the population.<ref><span id="ALDF_00006785">''Id.'' at 245-48.</span></ref> 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.<ref><span id="ALDF_00006786">''Id.'' at 250-51. The Court distinguished ''[[Grosjean]]'' on this latter basis in ''[[Minneapolis Star &amp; Tribune Co. v. Minnesota Comm'r of Revenue]]'', 460 U.S. 575 (1983).</span></ref> Combined with the standard that government may not impose a tax as a prior restraint upon the exercise of a constitutional right itself,<ref><span id="ALDF_00006787">''[[Murdock v. Pennsylvania]]'', 319 U.S. 105 (1943) (ruling license tax operating as a prior restraint on distribution of religious material unconstitutional); ''[[Follett v. McCormick]]'', 321 U.S. 573 (1944) (same). For further discussion of these cases, see [[{{ROOTPAGENAME}}/First Amend.#Laws Neutral to Religious Practice during the 1940s and 1950s|First Amend.: Laws Neutral to Religious Practice during the 1940s and 1950s]].</span></ref> these tests seem to permit general business taxes upon receipts of businesses engaged in communicating protected expression without raising any First Amendment issues.<ref><span id="ALDF_00006788">''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).</span></ref>
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, in part 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."<ref><span id="ALDF_00006789">''[[Minneapolis Star]]'', 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 &amp; 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).</span></ref> The Court said the state's interest in raising revenue was not sufficient justification for differential treatment of the press, where the state had alternative means to achieve the same interest. 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."<ref><span id="ALDF_00006790">460 U.S. at 588, 589.</span></ref>
A tax that targets specific subgroups within a segment of the press for differential treatment can also trigger heightened constitutional scrutiny. 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.<ref><span id="ALDF_00006791">''[[Ark. Writers' Project, Inc. v. Ragland]]'', 481 U.S. 221 (1987). For a discussion of general First Amendment treatment of content-based speech regulation, see [[{{ROOTPAGENAME}}/First Amend.#Overview of Categorical Approach to Restricting Speech|First Amend.: Overview of Categorical Approach to Restricting Speech]].</span></ref> Entirely as a result of content, some magazines were treated less favorably than others. The measure was viewed as not narrowly tailored to achieve allegedly "compelling" state interests such as raising revenue, encouraging "fledgling" publishers, and fostering communications.<ref><span id="ALDF_00001302">481 U.S. at 231-32.</span></ref>
In 1991, the Court upheld a state tax that discriminated among different components of the communications media on a content-neutral basis, 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."<ref><span id="ALDF_00006792">''[[Leathers]]'', 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).</span></ref>
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.<ref><span id="ALDF_00006793">''[[Simon &amp; Schuster v. New York Crime Victims Bd.]]'', 502 U.S. 105 (1991).</span></ref> Although the Court recognized a compelling state interest in ensuring that criminals do not profit from their crimes, and in compensating crime victims, it found that the statute was not narrowly tailored to those ends. The statute 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 (for example, 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."<ref><span id="ALDF_00006794">''Id.'' at 122.</span></ref>
=====Labor and Antitrust Regulation of Media=====
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]]'',<ref><span id="ALDF_00006795"> [http://cdn.loc.gov/service/ll/usrep/usrep301/usrep301103/usrep301103.pdf 301 U.S. 103, 132 (1937)].</span></ref> application of the National Labor Relations Act to a newsgathering agency was found to raise no constitutional problem. The Court explained that "[t]he publisher of a newspaper has no special immunity from the application of general laws," and noted that the federal law did not interfere with "the impartial distribution of news." Similarly, the Court has found no problem with requiring newspapers to pay minimum wages and observe maximum hours.<ref><span id="ALDF_00006796">''[[Okla. Press Pub. Co. v. Walling]]'', 327 U.S. 186 (1946).</span></ref>
In another case, the Court rejected a First Amendment challenge to using antitrust laws to break up restraints on competition in the newsgathering and publishing field.<ref><span id="ALDF_00006797">''[[Associated Press v. United States]]'', 326 U.S. 1, 7, 20 (1945).</span></ref> The Court suggested that antitrust regulation could ''serve'' First Amendment purposes--protecting press freedom by promoting "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."<ref><span id="ALDF_00001303">''Id.'' at 20.</span></ref> Thus, both newspapers and broadcasters, as well as other such industries, may not engage in monopolistic and other anticompetitive activities free of the possibility of antitrust law attack,<ref><span id="ALDF_00006798">''[[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 violated antitrust laws); ''[[United States v. Radio Corp. of Am.]]'', 358 U.S. 334 (1959) (FCC approval no bar to antitrust suit); ''[[United States v. Greater Buffalo Press]]'', 402 U.S. 549 (1971) (monopolization of color comic supplements). ''See also'' ''[[FCC v. Nat'l Citizens Comm. for Broad.]]'', 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).</span></ref> even if such activities might promote speech.<ref><span id="ALDF_00006799">''[[Citizen Publ'g Co. v. United States]]'', 394 U.S. 131 (1969) (pooling arrangement between two newspapers violated 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), [https://uscode.house.gov/view.xhtml?req=(title:15%20section:1801%20edition:prelim)%20OR%20(granuleid:USC-prelim-title15-section1801)&amp;f=treesort&amp;num=0&amp;edition=prelim 15 U.S.C. &#167;&#167; 1801]-1804.</span></ref>
=====Broadcast 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 use 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 broadcast scarcity.<ref><span id="ALDF_00006800">''[[NBC v. United States]]'', 319 U.S. 190, 226-27 (1943) (saying "[t]he right of free speech does not include . . . the right to use the facilities of radio without a license," but noting that a "different" issue would be presented if Congress had authorized licensing on "the basis of [applicants'] political, economic or social views, or . . . any other capricious basis"); ''accord'' ''[[Red Lion Broad. Co. v. FCC]]'', 395 U.S. 367, 375-79, 387-89 (1969); ''[[FCC v. Nat'l Citizens Comm. for Broad.]]'', 436 U.S. 775, 798-802 (1978).</span></ref> Thus, the Federal Communications Commission (FCC) has broad authority to determine the right of access to broadcasting,<ref><span id="ALDF_00006801">''[[NBC]]'', 319 U.S. 190 (1943); ''[[Fed. Radio Comm'n v. Nelson Bros. Bond &amp; 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).</span></ref> although, to avoid heightened constitutional scrutiny, the regulation must be exercised in a manner that is neutral with regard to the content of the materials broadcast.<ref><span id="ALDF_00006802">"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]]'', 319 U.S. at 226.</span></ref>
In ''[[Red Lion Broadcasting Co. v. FCC]]'', the Court upheld an FCC regulation that required broadcasters to afford persons an opportunity to reply if they were attacked on the air on the basis of their "honesty, character, integrity or like personal qualities," or if they were legally qualified candidates and a broadcast editorial endorsed their opponent or opposed them.<ref><span id="ALDF_00006803">395 U.S. at 373. "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.</span></ref> In ''[[Red Lion]]'', Justice Byron White explained that "differences in the characteristics of [various] media justify differences in First Amendment standards applied to them."<ref><span id="ALDF_00006804">''Id.'' at 386.</span></ref> In contrast to speaking or publishing, the Court noted that broadcast frequencies are limited and some few must be given the privilege over others. The Court held that a particular licensee, however, has no First Amendment right to hold that license and his exclusive privilege may be qualified. The Court ruled that the government could require that a licensee to "conduct 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."<ref><span id="ALDF_00006805">''Id.'' at 389.</span></ref> Furthermore, Justice Byron White explained that by helping expand access to different ideas, these restrictions furthered the "collective right" of the viewers and listeners, "to have the medium function consistently with the ends and purposes of the First Amendment."<ref><span id="ALDF_00006806">''Id.'' at 390.</span></ref> 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 Byron 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."<ref><span id="ALDF_00006807">''Id.'' at 392-93.</span></ref>
In ''[[Columbia Broadcasting System v. Democratic National Committee]]'',<ref><span id="ALDF_00006808"> [http://cdn.loc.gov/service/ll/usrep/usrep412/usrep412094/usrep412094.pdf 412 U.S. 94 (1973)].</span></ref> the Court rejected claims of political groups that a broadcaster's policy of not running "editorial" advertisements violated the First Amendment. Though it declined to require broadcaster access based on the First Amendment or existing federal law, the Court left open the possibility that "at some future date Congress or the [FCC]--or the broadcasters--may devise some kind of limited right of access that is both practicable and desirable."<ref><span id="ALDF_00001304">''Id.'' at 131.</span></ref> Consequently, in ''[[CBS v. FCC]]'',<ref><span id="ALDF_00006809"> [http://cdn.loc.gov/service/ll/usrep/usrep453/usrep453367/usrep453367.pdf 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 (White, Rehnquist &amp; Stevens, JJ.).</span></ref> the Court upheld a federal law requiring "reasonable access" to broadcast stations for candidates seeking federal elective office. The constitutional analysis restated the spectrum scarcity rationale and the role of the broadcasters as fiduciaries for the public interest.
In ''[[FCC v. League of Women Voters]]'',<ref><span id="ALDF_00006810"> [http://cdn.loc.gov/service/ll/usrep/usrep468/usrep468364/usrep468364.pdf 468 U.S. 364 (1984)] (holding unconstitutional &#167; 399 of the Public Broadcasting Act of 1967, as amended).</span></ref> the Court took the same general approach to governmental regulation of broadcasting, 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]]'', saying broadcast "restrictions have been upheld only when we were satisfied that the restriction is narrowly tailored to further a substantial governmental interest, such as ensuring adequate and balanced coverage of public issues."<ref><span id="ALDF_00006811">468 U.S. at 380. The Court rejected the suggestion that only a "compelling" rather than "substantial" governmental interest can justify restrictions.</span></ref> The Court said that "in 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, [the challenged federal law] directly prohibits the broadcaster from speaking out on public issues even in a balanced and fair manner."<ref><span id="ALDF_00006812">''Id.'' at 38.</span></ref> 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."<ref><span id="ALDF_00006813">''Id.'' at 384-85. Dissenting Justice John Paul Stevens thought that the ban on editorializing served an important purpose of "maintaining government neutrality in the free marketplace of ideas." ''Id.'' at 409.</span></ref> Expression of editorial opinion was described as a "form of speech . . . that lies at the heart of First Amendment protection,"<ref><span id="ALDF_00006814">''Id.'' at 381.</span></ref> and the ban was said to be "defined solely on the basis of . . . content," since it had been interpreted as speech directed at "controversial issues of public importance."<ref><span id="ALDF_00006815">''Id.'' at 383.</span></ref> 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.
Sustaining FCC discipline of a broadcaster who aired a record containing a series of repeated "barnyard" words, considered "indecent" but not obscene, the Court articulated additional justifications allowing greater regulation of indecent broadcasting.<ref><span id="ALDF_00006816">''[[FCC v. Pacifica Found.]]'', 438 U.S. 726 (1978).</span></ref> The Court noted first that broadcast was "uniquely pervasive," confronting individuals "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."<ref><span id="ALDF_00001308">''Id.'' at 748.</span></ref> Second, the Court emphasized that, "broadcasting is uniquely accessible to children, even those too young to read. . . . amply justify[ing] special treatment of indecent broadcasting."<ref><span id="ALDF_00006817">''Id.'' at 749-50. This was the only portion of the constitutional discussion that obtained the support of a majority of the Court. In ''[[Denver Area Educ. Telecommc'ns Consortium v. FCC]]'', 518 U.S. 727, 748 (1996), the Court noted that spectrum scarcity "has little to do with a case that involves the effects of television viewing on children."</span></ref> The Court emphasized the "narrowness" of its holding, which "requires consideration of a host of variables."<ref><span id="ALDF_00006818">438 U.S. at 750. ''See also'' ''id.'' at 742-43 (plurality opinion), and ''id.'' at 755-56 (Powell, J., concurring) ("The Court today 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.").</span></ref> The use of more than "an occasional expletive," the time of day of the broadcast, the likely audience, "and differences between radio, television, and perhaps closed-circuit transmissions" were all relevant in the Court's view.<ref><span id="ALDF_00006819">''Id.'' at 750. Subsequently, the FCC began to apply its indecency standard to fleeting uses of expletives in non-sexual and non-excretory contexts. The U.S. Court of Appeals for the Second Circuit found this practice arbitrary and capricious under the Administrative Procedure Act, but the Supreme Court disagreed and upheld the FCC policy without reaching the First Amendment question. ''[[FCC v. Fox Television Stations, Inc.]]'', 556 U.S. 502 (2009). ''See also'' ''[[CBS Corp. v. FCC]]'', 535 F.3d 167 (3d Cir. 2008), ''vacated and remanded'', 556 U.S. 1218 (2009) (invalidating, on non-constitutional grounds, a fine against CBS for broadcasting Janet Jackson's exposure of her breast for nine-sixteenths of a second during a Super Bowl halftime show). The Supreme Court vacated and remanded this decision to the Third Circuit for further consideration in light of ''[[FCC v. Fox Television Stations, Inc.]]''</span></ref>
=====Cable Television=====
The Court has recognized that cable television "implicates First Amendment interests," because a cable operator communicates ideas through selection of original programming and through exercise of editorial discretion in determining which stations to include in its offering.<ref><span id="ALDF_00006822">''[[City of Los Angeles v. Preferred Commc'ns]]'', 476 U.S. 488 (1986) (leaving for future decision how the operator's interests are to be balanced against a community's interests in limiting franchises and preserving utility space); ''[[Turner Broad. System v. FCC]]'', 512 U.S. 622, 636 (1994).</span></ref> Moreover, "settled principles of . . . First Amendment jurisprudence" govern review of cable regulation; cable is not limited by "scarce" broadcast frequencies and does not require the same less rigorous standard of review that the Court applies to regulation of broadcasting.<ref><span id="ALDF_00006823">''Id.'' at 638-39 (1994).</span></ref> Cable does, however, have unique characteristics that can justify regulations singling out cable for special treatment.<ref><span id="ALDF_00006824">''Id.'' at 661 (referring to the "bottleneck monopoly power" exercised by cable operators in determining which networks and stations to carry, and to the resulting dangers posed to the viability of broadcast television stations). ''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).</span></ref> The Court in ''[[Turner Broadcasting System v. FCC]]''<ref><span id="ALDF_00006825"> [http://cdn.loc.gov/service/ll/usrep/usrep512/usrep512622/usrep512622.pdf 512 U.S. 622 (1994)].</span></ref> upheld federal statutory requirements that cable systems carry local commercial and public television stations. Although these "must-carry" requirements "distinguish[ed] between speakers in the television programming market," they did so based on the manner of transmission and not on the content the messages conveyed, and hence were content-neutral.<ref><span id="ALDF_00006826">''Id.'' at 645. "Deciding whether a particular regulation is content-based or content-neutral is not always a simple task," the Court confessed. ''Id.'' at 642. Indeed, dissenting Justice Sandra Day O'Connor, joined by Justices Antonin Scalia, Ruth Bader Ginsburg, and Clarence Thomas, viewed the rules as content-based. ''Id.'' at 674-82.</span></ref> The regulations could therefore be measured by the "intermediate level of scrutiny" set forth in ''[[United States v. O'Brien]]''.<ref><span id="ALDF_00006827"> [http://cdn.loc.gov/service/ll/usrep/usrep391/usrep391367/usrep391367.pdf 391 U.S. 367, 377 (1968)]. The Court remanded ''[[Turner]]'' for further factual findings relevant to the ''[[O'Brien]]'' test. On remand, the district court upheld the must-carry provisions, and the Supreme Court affirmed, concluding that it "cannot displace Congress's judgment respecting content-neutral regulations with our own, so long as its policy is grounded on reasonable factual findings supported by evidence that is substantial for a legislative determination." ''[[Turner Broad. System]]'', 520 U.S. at 224 (1997).</span></ref> Two years later, however, a splintered Court could not agree on what standard of review to generally apply to content-based restrictions of cable broadcasts. Striking down a requirement that cable operators must, in order to protect children, segregate and block programs with patently offensive sexual material, a plurality opinion in ''[[Denver Area Educational Telecommunications Consortium v. FCC]]'',<ref><span id="ALDF_00006828"> [http://cdn.loc.gov/service/ll/usrep/usrep518/usrep518727/usrep518727.pdf 518 U.S. 727, 755 (1996)] (invalidating &#167; 10(b) of the Cable Television Consumer Protection and Competition Act of 1992). The Court upheld &#167; 10(a) of the Act, which permitted cable operators to prohibit indecent material on leased access channels; and struck down &#167; 10(c), which permitted a cable operator to prevent transmission of "sexually explicit" programming on public access channels. In upholding &#167; 10(a), Justice Stephen Breyer's plurality opinion cited ''[[FCC v. Pacifica Foundation]]'', 438 U.S. 726 (1978), and noted that cable television "is as 'accessible to children' as over-the-air broadcasting, if not more so." 518 U.S. at 744.</span></ref> found it unnecessary to determine whether strict scrutiny or some lesser standard applies, because it deemed the restriction invalid under any of the alternative tests. The plurality<ref><span id="ALDF_00006830">This section of Justice Stephen Breyer's opinion was joined by Justices John Paul Stevens, Sandra Day O'Connor, and David Souter. ''Id.'' at 749.</span></ref> rejected assertions that public forum analysis,<ref><span id="ALDF_00006831">Justice Anthony Kennedy, joined by Justice Ruth Bader Ginsburg, advocated this approach, ''Id.'' at 791, and took the plurality to task for its "evasion of any clear legal standard." ''Id.'' at 784.</span></ref> or a rule giving cable operators' editorial rights "general primacy" over the rights of programmers and viewers,<ref><span id="ALDF_00006832">Justice Thomas, joined by Chief Justice William Rehnquist and Justice Antonin Scalia, advocated this approach.''Id.''</span></ref> should govern.
Subsequently, in ''[[United States v. Playboy Entertainment Group, Inc.]]'',<ref><span id="ALDF_00006833"> [http://cdn.loc.gov/service/ll/usrep/usrep529/usrep529803/usrep529803.pdf 529 U.S. 803, 813 (2000)].</span></ref> the Supreme Court made clear, as it had not in ''[[Denver Consortium]]'', that strict scrutiny applies to content-based speech restrictions on cable television. The Court struck down a federal statute designed to "shield children from hearing or seeing images resulting from signal bleed," which refers to blurred images or sounds that come through to non-subscribers.<ref><span id="ALDF_00006834">''Id.'' at 806.</span></ref> The statute required cable operators, on channels primarily dedicated to sexually oriented programming, either to scramble fully or otherwise fully block such channels, or to not provide such programming when a significant number of children are likely to be viewing it, which, under an FCC regulation meant to transmit the programming only from 10 p.m. to 6 a.m. The Court found that, even without "discount[ing] the possibility that a graphic image could have a negative impact on a young child," it could not conclude that Congress had used "the least restrictive means for addressing the problem."<ref><span id="ALDF_00006835">''Id.'' at 826-27. The Court stated: "Even upon the assumption that the government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech." ''Id.'' at 825.</span></ref> Congress in fact had enacted another provision that was less restrictive and that served the government's purpose. This other provision required that, upon request by a cable subscriber, a cable operator, without charge, fully scramble or otherwise fully block any channel to which a subscriber does not subscribe.<ref><span id="ALDF_00006836"> [https://uscode.house.gov/view.xhtml?req=(title:47%20section:560%20edition:prelim)%20OR%20(granuleid:USC-prelim-title47-section560)&amp;f=treesort&amp;num=0&amp;edition=prelim 47 U.S.C. &#167; 560].</span></ref>
=====Newspapers, Telephones, and the Internet=====
The Supreme Court has clarified that the relaxed First Amendment standards allowing greater regulation of broadcast and (to a lesser extent) cable television do not apply to newspapers, telephone communications, or the internet. Looking first at newspapers, 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.<ref><span id="ALDF_00006820">''[[Miami Herald Publ'g Co. v. Tornillo]]'', 418 U.S. 241 (1974).</span></ref> 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, although desirable, "is not mandated by the Constitution," whereas press freedom is. The compulsion exerted by government on a newspaper to print what 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.<ref><span id="ALDF_00006821">''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. Although a plurality opinion to which four Justices adhered relied heavily on ''[[Tornillo]]'', there was no Court majority consensus as to rationale. ''[[Pacific Gas &amp; Elec. v. Pub. Utils. Comm'n]]'', 475 U.S. 1 (1986). ''See also'' ''[[Hurley v. Irish-Am. Gay Grp.]]'', 515 U.S. 557 (1995) (state may not compel parade organizer to allow participation by a parade unit proclaiming message that organizer does not wish to endorse).</span></ref>
The Court expressly distinguished the broadcast medium from telephone<ref><span id="ALDF_00001305">''[[Sable Commc'ns of Cal., Inc. v. FCC]]'', 492 U.S. 115, 127-28 (1989) (noting the previously recognized "'unique' attributes of broadcasting," primarily the problem of an unwilling captive audience, were not present in the context of dial-in services (quoting ''[[FCC v. Pacifica Found.]]'', 438 U.S. 726, 762 (1978))).</span></ref> and internet<ref><span id="ALDF_00001306">''[[Reno v. ACLU]]'', 521 U.S. 844, 868-69 (1997) (saying the factors justifying greater regulation of broadcast "are not present in cyberspace").</span></ref> communications in ruling unconstitutional two different statutes prohibiting certain transmissions of indecent messages. A 2017 opinion went so far as to equate the internet with streets or parks, historically some of the most important--and constitutionally protected--forums for the exercise of First Amendment rights.<ref><span id="ALDF_00001307">''[[Packingham v. North Carolina]]'', 582 U.S. 98, 104 (2017). ''See also'' [[{{ROOTPAGENAME}}/First Amend.#The Public Forum|First Amend.: The Public Forum]].</span></ref>
====Political Speech====
=====Overview of Campaign Finance=====
Federal and state governments regulate political campaign financing. At the federal level, the Federal Election Campaign Act (FECA)<ref><span id="ALDF_00024880">Codified, as amended, primarily at [https://uscode.house.gov/view.xhtml?req=(title:52%20section:30101%20edition:prelim)%20OR%20(granuleid:USC-prelim-title52-section30101)&amp;f=treesort&amp;num=0&amp;edition=prelim 52 U.S.C. &#167;&#167; 30101]-30146 and sections of titles 18 and 26. FECA was first enacted in 1971, and was amended in 1974, 1976, 1979, and most recently and significantly, by the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81..</span></ref> imposes contribution limits, source restrictions for contributions, disclosure and disclaimer requirements for political advertising, and a presidential public financing system.<ref><span id="ALDF_00024881">The term ''disclaimer'' generally refers to statements of attribution that appear directly on a campaign-related communication, and the term ''disclosure'' generally refers to requirements for periodic reporting to the Federal Election Commission (FEC) that are publicly available for inspection.</span></ref> In a landmark 1976 ruling, ''[[Buckley v. Valeo]]'', and its progeny, the Supreme Court has held that such regulation can infringe on First Amendment guarantees of freedom of speech and association.<ref><span id="ALDF_00024882">''See'' [http://cdn.loc.gov/service/ll/usrep/usrep424/usrep424001/usrep424001.pdf 424 U.S. 1 (1976)] (per curiam).</span></ref> According to the Court, limits on campaign contributions--which involve giving money to an entity, such as a candidate's campaign committee--and expenditures--which involve spending money directly for electoral advocacy--implicate rights of political expression and association under the First Amendment.<ref><span id="ALDF_00024883">''See'' ''id.'' at 23.</span></ref> Likewise, the Court has held that campaign disclosure and disclaimer requirements can infringe on the right to privacy of association and belief as guaranteed under the First Amendment.<ref><span id="ALDF_00024884">''See'' ''id.'' at 64.</span></ref> In evaluating challenges under the First Amendment, the Court has assigned different standards of review to various types of campaign finance regulation, based on the burdens imposed and the government interests served.<ref><span id="ALDF_00024885">For additional discussion on campaign finance, see [[{{ROOTPAGENAME}}/First Amend.#Campaign Finance Contribution Limits and Source Restrictions|First Amend.: Campaign Finance Contribution Limits and Source Restrictions]], [[{{ROOTPAGENAME}}/First Amend.#Campaign Finance Expenditure Limits|First Amend.: Campaign Finance Expenditure Limits]], and [[{{ROOTPAGENAME}}/First Amend.#Campaign Finance Disclosure and Disclaimer Requirements|First Amend.: Campaign Finance Disclosure and Disclaimer Requirements]].</span></ref>
=====Campaign Finance Contribution Limits and Source Restrictions=====
The Supreme Court in ''[[Buckley v. Valeo]]'' held that contribution limits are subject to a more lenient standard of review than expenditure limits because they impose only a marginal restriction on speech and will be upheld if the government can demonstrate that they are a "closely drawn" means of achieving a "sufficiently important" governmental interest.<ref><span id="ALDF_00024886">''See'' [http://cdn.loc.gov/service/ll/usrep/usrep424/usrep424001/usrep424001.pdf 424 U.S. 1, 25 (1976)].</span></ref> Unlike expenditure limits, which reduce the amount of expression, the Court opined that contribution limits involve "little direct restraint" on the speech of a contributor.<ref><span id="ALDF_00024887">''Id.'' at 21.</span></ref> While acknowledging that a contribution limit restricts an aspect of a contributor's freedom of association by affecting a contributor's ability to support a candidate, the Court determined that a contribution limit still permits symbolic expressions of support and does not infringe on a contributor's freedom to speak about candidates and issues.<ref><span id="ALDF_00024888">''See'' ''id.'' at 21, 24.</span></ref>
Under the First Amendment, the Supreme Court has evaluated the constitutionality of specific types of contribution limits. In ''[[Buckley]]'', the Court upheld the constitutionality of the Federal Election Campaign Act (FECA)<ref><span id="ALDF_00024889">Codified, as amended, primarily at [https://uscode.house.gov/view.xhtml?req=(title:52%20section:30101%20edition:prelim)%20OR%20(granuleid:USC-prelim-title52-section30101)&amp;f=treesort&amp;num=0&amp;edition=prelim 52 U.S.C. &#167;&#167; 30101]-30146 and sections of titles 18 and 26. FECA was first enacted in 1971, and was amended in 1974, 1976, 1979, and most recently and significantly, by the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81..</span></ref> base limits, which cap the amounts of money an individual can contribute to a candidate, party, or political committee.<ref><span id="ALDF_00024890">''See'' ''[[Buckley]]'', 424 U.S. at 29.</span></ref> In assessing whether a contribution limit is closely drawn, the Court determined it necessary to examine whether the limit is so low that it significantly impedes a candidate from raising the necessary funds for effective advocacy.<ref><span id="ALDF_00024891">''See'' ''id.'' at 21.</span></ref> In ''[[Nixon v. Shrink Missouri Government PAC]]'', the Court announced that while limits must be closely drawn to a sufficiently important interest, the amount of the limitation "need not be 'fine tuned.'"<ref><span id="ALDF_00024892"> [http://cdn.loc.gov/service/ll/usrep/usrep528/usrep528377/usrep528377.pdf 528 U.S. 377, 387-88 (2000)] (quoting ''[[Buckley]]'', 424 U.S. at 30, n. 3).</span></ref> In contrast, in ''[[Randall v. Sorell]]'', in a plurality opinion, the Court determined that contribution limits were too low to comport with First Amendment free-speech guarantees when they were substantially lower than limits previously upheld by the Court and limits in effect in other states.<ref><span id="ALDF_00024893">''See'' ''id.'' at 261.</span></ref>
Similarly, in ''[[McConnell v. FEC]]'', the Supreme Court upheld against facial constitutional challenges, among other things, a prohibition on national political parties fundraising or spending federally-unregulated funds, known as ''soft money''.<ref><span id="ALDF_00024894"> [http://cdn.loc.gov/service/ll/usrep/usrep540/usrep540093/usrep540093.pdf 540 U.S. 93, 188-89 (2003)].</span></ref> The Court determined that the subject provisions of law are, in effect, contribution limits and source restrictions--not expenditure limits because they do not limit the total amount of funds that parties can spend.<ref><span id="ALDF_00024895">''See'' ''id.'' at 138-39. ("Plaintiffs contend that we must apply strict scrutiny to &#167; 323 because many of its provisions restrict not only contributions but also the spending and solicitation of funds raised outside of FECA's contribution limits. for purposes of determining the level of scrutiny, it is irrelevant that Congress chose in &#167; 323 to regulate contributions on the demand rather than the supply side.") ''Id.'' at 138.</span></ref> Hence, the Court applied the "less rigorous" standard of scrutiny that it applied in ''[[Buckley]]'' to contribution limits.<ref><span id="ALDF_00024896">''Id.'' 138-39</span></ref> However, the ''[[McConnell]]'' Court invalidated a prohibition on individuals age seventeen and under from making contributions, reasoning that minors enjoy First Amendment protection and that the prohibition was not closely drawn to serve a sufficiently important government interest.<ref><span id="ALDF_00024897">''See'' ''id.'' at 137, 231-32 (citing ''[[Tinker v. Des Moines Indep. Cmty. Sch. Dist.]]'', 393 U.S. 503, 511-513 (1969); ''[[Buckley]]'', 424 U.S. at 20-22).</span></ref>
The Court has considered the constitutionality of aggregate contribution limits, which cap the ''total'' amount that an individual can contribute to a candidate, political party, or political committee. In ''[[Buckley]]'', the Court upheld the constitutionality of a FECA aggregate contribution limit in effect in 1976, characterizing the limit as a "quite modest restraint" that served to prevent circumvention of base limits.<ref><span id="ALDF_00024898">''See'' ''[[Buckley]]'', 424 U.S. at 38.</span></ref> In ''[[McCutcheon v. FEC]]'', however, in a plurality opinion, the Court invalidated a similar aggregate limit, determining that regardless of whether strict scrutiny or the "closely drawn" standard applies, the Court needed to "assess the fit" between the government's stated objective and the means to achieve it.<ref><span id="ALDF_00024899">''See'' ''[[McCutcheon]]'', 572 U.S at 199.</span></ref> Observing a "substantial mismatch" between the two, the opinion concluded that even under the more lenient standard of review, the limits could not be upheld.<ref><span id="ALDF_00024900">''Id.''</span></ref>
In ''[[Davis v. FEC]]'', the Supreme Court held that a FECA provision establishing a series of staggered increases in contribution limits for candidates whose opponents significantly self-finance their campaigns violates the First Amendment.<ref><span id="ALDF_00024901">''See'' ''[[Davis v. FEC]]'', 555 U.S. at 740, 744 (2008). ''See also'' ''[[FEC v. Ted Cruz for Senate]]'', No. 21-12, (U.S. May 16, 2022) (holding that a FECA limit on the amount of post-election campaign contributions that may be used to repay a candidate for personal loans made pre-election violates the First Amendment, determining that the limit did not serve the governmental interest of avoiding quid pro quo candidate corruption).</span></ref> The Court reasoned that limits on a candidate's right to advocate for his or her own election are not justified by the compelling governmental interest of preventing corruption because the use of personal funds actually lessens a candidate's reliance on outside contributions, thereby counteracting coercive pressures and risks of abuse that contribution limits seek to avoid.<ref><span id="ALDF_00024902">''See'' ''id.'' While conceding that the law did not directly impose a limit on a candidate's expenditure of personal funds, the Court concluded that it impermissibly required a candidate to make a choice between the right of free political expression and being subjected to discriminatory contribution limits, and created a fundraising advantage for his or her opponents. ''See'' [https://cite.case.law/us/554/724/?full_case=true&amp;format=html ''id'']. ''See also'' ''[[Ariz. Free Enter. Club's Freedom Club PAC v. Bennett]]'', 564 U.S. 721, 755 (2011) (holding unconstitutional a voluntary public financing system that granted additional financing to a publicly-financed state office candidate in response to a privately-financed opponent engaging in spending, because it subjected privately-financed candidates and independent expenditure groups to "a substantial burden" on their political speech).</span></ref>
The Supreme Court has also upheld the constitutionality of laws limiting ''who'' can make a campaign contribution, known as a source restriction. In ''[[FEC v. Beaumont]]'', the Supreme Court upheld the constitutionality of a FECA prohibition on corporations making direct campaign contributions from their general treasuries in connection with federal elections.<ref><span id="ALDF_00024903"> [http://cdn.loc.gov/service/ll/usrep/usrep539/usrep539146/usrep539146.pdf 539 U.S. 146, 163 (2003)]. While FECA prohibits contributions by corporations and labor unions from their own funds or "general treasuries," the law permits contributions from separate segregated funds or political action committees (PACs) that are established and administered by corporations and unions. [https://uscode.house.gov/view.xhtml?req=(title:52%20section:30118%20edition:prelim)%20OR%20(granuleid:USC-prelim-title52-section30118)&amp;f=treesort&amp;num=0&amp;edition=prelim 52 U.S.C. &#167;&#167; 30118](a), 30118(b)(2)(C).</span></ref> The Court observed that large, unlimited contributions can threaten "political integrity," necessitating restrictions in order to counter corruption or its appearance.<ref><span id="ALDF_00024904">''Id.'' at 154-55. Regarding corporations specifically, the Court determined that the corporate structure requires careful regulation to counter the "misuse of corporate advantages." ''Id.'' at 155.</span></ref> In that same vein, while not issuing an opinion, the Supreme Court in ''[[Bluman v. FEC]]'' affirmed a lower court ruling that upheld the constitutionality of another FECA source restriction that prohibits contributions by foreign nationals.<ref><span id="ALDF_00024905">''See'' ''[[Bluman v. FEC]]'', 800 F. Supp. 2d 281, 288 (D.D.C. 2011), ''summ. aff'd'', 565 U.S. 1104 (2012) (upholding, among other things, the constitutionality of the FECA prohibition on foreign nationals making contributions, identifying the compelling governmental interest in limiting foreign citizen participation in the U.S. government by preventing foreign influence over the U.S. political process).</span></ref>
=====Campaign Finance Expenditure Limits=====
In contrast to contribution limits, the Supreme Court has determined that expenditure limits impose a substantial restraint on speech and association and, hence, are subject to a strict scrutiny standard of review that requires narrow tailoring to serve a compelling governmental interest.<ref><span id="ALDF_00024906">''See'' ''[[Buckley v. Valeo]]'', 424 U.S. 1, 23 (1976).</span></ref> According to the Court in ''[[Buckley v. Valeo]]'', expenditure limits impose a restriction on the amount of money that a candidate can spend on communications, thereby reducing the number and depth of issues discussed and the size of the audience reached.<ref><span id="ALDF_00024907">''See'' ''id.''</span></ref> Such restrictions, the Court determined, are not justified by an overriding governmental interest because expenditures do not involve money flowing directly to the benefit of a candidate's campaign fund and hence, the risk of quid pro quo corruption does not exist.<ref><span id="ALDF_00024908">''See'' ''id.'' Essentially, quid pro quo corruption captures the notion of "a direct exchange of an official act for money." ''See, e.g.,'' ''[[McCutcheon v. FEC]]'', 572 U.S. 185, 192 (2014).</span></ref> Upon a similar premise, the Court rejected the government's interest in limiting the ability of a wealthy candidate to draw upon personal wealth to finance a campaign and invalidated a law limiting expenditures from personal funds.<ref><span id="ALDF_00024909">''See'' ''id.'' at 58.</span></ref> When a candidate self-finances, the Court observed, the candidate's dependence on outside contributions is reduced, thereby lessening the risk of corruption.<ref><span id="ALDF_00024910">''See'' ''id.'' at 53 ("[T]he use of personal funds reduces the candidate's dependence on outside contributions and thereby counteracts the coercive pressures and attendant risks of abuse to which the Act's contribution limitations are directed.")</span></ref>
Relying on ''[[Buckley]]'', in the 2010 decision of ''[[Citizens United v. FEC]]'', the Court invalidated two FECA prohibitions on independent electoral spending by corporations and labor unions.<ref><span id="ALDF_00024911"> [https://cite.case.law/us/558/310/?full_case=true&amp;format=html 558 U.S. 310 (2010)]. ''See also'' ''[[Am. Tradition P'ship. v. Bullock]]'', 567 U.S. 516 (2014) (per curiam) (rejecting arguments attempting to distinguish a state law from the federal law invalidated by ''[[Citizens United]]'' and reiterating that "political speech does not lose First Amendment protection simply because its source is a corporation.").</span></ref> The Court invalidated, first, the long-standing prohibition on corporations and labor unions<ref><span id="ALDF_00024912">Although the issue before the Court was limited to the application of the prohibition on independent expenditures and electioneering communications to Citizens United, a corporation, the reasoning of the opinion also appears to apply to labor unions. ("The text and purpose of the First Amendment point in the same direction: Congress may not prohibit political speech, even if the speaker is a corporation or union.") ''[[Citizens United]]'', 558 U.S. at 376.</span></ref> using their general treasury funds for independent expenditures,<ref><span id="ALDF_00024913">Codified at [https://uscode.house.gov/view.xhtml?req=(title:52%20section:30118%20edition:prelim)%20OR%20(granuleid:USC-prelim-title52-section30118)&amp;f=treesort&amp;num=0&amp;edition=prelim 52 U.S.C. &#167; 30118](a) (defining an "independent expenditure" as a communication that "expressly advocat[es] the election or defeat of a clearly identified candidate" and is not coordinated with any candidate or party).</span></ref> and second, a Bipartisan Campaign Reform Act (BCRA) prohibition on the use of such funds for electioneering communications.<ref><span id="ALDF_00024914">Codified at [https://uscode.house.gov/view.xhtml?req=(title:52%20section:30118%20edition:prelim)%20OR%20(granuleid:USC-prelim-title52-section30118)&amp;f=treesort&amp;num=0&amp;edition=prelim 52 U.S.C. &#167;&#167; 30118](b)(2), 30104(f)(3) (defining an "electioneering communication" to include "any broadcast, cable, or satellite" transmission that "refers to a clearly identified" federal office candidate and is transmitted within sixty days of a general election or thirty days of a primary).</span></ref> According to the Court, independent expenditures and electioneering communications are protected speech, regardless of whether the speaker is a corporation. Although the statutory prohibition contained an exception that permitted the use of corporate treasury funds to establish, administer, and solicit contributions to a political action committee (PAC) for such spending,<ref><span id="ALDF_00024915"> [https://uscode.house.gov/view.xhtml?req=(title:52%20section:30118%20edition:prelim)%20OR%20(granuleid:USC-prelim-title52-section30118)&amp;f=treesort&amp;num=0&amp;edition=prelim 52 U.S.C. &#167; 30118](b)(2)(c). The law also permits a corporation to establish a PAC in order to make contributions. As a result of ''[[Citizens United]]'', corporations are currently only required to use PAC funds to make contributions, not expenditures.</span></ref> the Court determined that merely permitting speech through a PAC does not equate to allowing a corporation to speak directly because corporations and PACs are separate associations.<ref><span id="ALDF_00024916">''See'' ''[[Citizens United]]'', 558 U.S. at 337.</span></ref> The Court also concluded that upholding the ban on corporate independent electoral spending would have the "dangerous, and unacceptable" result of permitting Congress to prohibit the political speech of media corporations.<ref><span id="ALDF_00024917">''Id.'' at 351.</span></ref>
While invalidating the FECA ban on corporate and union-funded independent expenditures, the ''[[Citizens United]]'' ruling also overturned a 1990 ruling, ''[[Austin v. Michigan Chamber of Commerce]]'',<ref><span id="ALDF_00024918"> [http://cdn.loc.gov/service/ll/usrep/usrep494/usrep494652/usrep494652.pdf 494 U.S. 652 (1990)].</span></ref> determining that it conflicted with a 1978 precedent, ''[[First National Bank of Boston v. Bellotti]]''.<ref><span id="ALDF_00024919">''Id.'' at 348. ("The Court is thus confronted with conflicting lines of precedent: a pre-''[[Austin]]'' line that forbids restrictions on political speech based on the speaker's corporate identity and a post-''[[Austin]]'' line that permits them.")</span></ref> In ''[[Bellotti]]'', the Court had invalidated a state prohibition on corporate independent expenditures related to referenda, holding that the government cannot restrict political speech because the speaker is a corporation.<ref><span id="ALDF_00024920"> [http://cdn.loc.gov/service/ll/usrep/usrep435/usrep435765/usrep435765.pdf 435 U.S. 765 (1978)].</span></ref> Criticizing the ''[[Austin]]'' decision for "bypass[ing] ''[[Buckley]]'' and ''[[Bellotti]]''," the Court in ''[[Citizens United]]'' rejected the "antidistortion interest" that the Court in ''[[Austin]]'' "identified" to justify limits on political speech.<ref><span id="ALDF_00024921">''[[Citizens United]]'', 558 U.S. at 348 (determining that "the corrosive and distorting" impact of large amounts of money that were acquired with the benefit of the corporate form, but were unrelated to the public's support for the corporation's political views, constituted a sufficiently compelling governmental interest to justify such a restriction).</span></ref> According to the Court, independent expenditures, including those made by corporations, do not cause corruption or the appearance of corruption.<ref><span id="ALDF_00024922">''See'' ''id.'' at 357.</span></ref> The Court further denounced the ''[[Austin]]'' precedent for permitting "interfer[ence] with the 'open marketplace' of ideas protected by the First Amendment" through a ban on speech by millions of associations of citizens--many of them small corporations without large aggregations of wealth.<ref><span id="ALDF_00024923">''Id.'' at 354.</span></ref>
Similarly, in invalidating the BCRA-enacted prohibition on corporate and union treasury-funded electioneering communications, the ''[[Citizens United]]'' ruling overruled a portion of its 2003 decision in ''[[McConnell v. FEC]]'' that upheld the facial validity of the prohibition, concluding that the ''[[McConnell]]'' decision had relied on ''[[Austin]]''.<ref><span id="ALDF_00024924">''See'' ''id.'' at 365-66. Referencing Justice Antonin Scalia's concurrence in ''[[WRTL]]'', the Court agreed with the conclusion that "''[[Austin]]'' was a significant departure from ancient First Amendment principles," and held "that stare decisis does not compel the continued acceptance of ''[[Austin]]''." ''Id.'' at 319 (quoting ''[[WRTL]]'', 551 U.S. at 449 (Scalia, J., concurring in part and concurring in judgment)).</span></ref> The Court reached this conclusion despite a limiting principle imposed by a 2007 ruling, ''[[FEC v. Wisconsin Right to Life, Inc. (WRTL)]]''.<ref><span id="ALDF_00024925"> [https://cite.case.law/us/551/449/?full_case=true&amp;format=html 551 U.S. 449 (2007)]. ''[[WRTL]]'' was decided four years after the Supreme Court upheld the electioneering communication prohibition against a First Amendment facial challenge in ''[[McConnell v. FEC]]'', 540 U.S. 93 (2003). While not expressly overruling ''[[McConnell]]'', the Court in ''[[WRTL]]'' limited the prohibition's application.</span></ref> In ''[[WRTL]]'', the Court had narrowed the definition of an electioneering communication to mitigate concerns that the law could prohibit First Amendment protected issue speech, known as issue advocacy. According to the Court in ''[[WRTL]]'', the term "electioneering communication" could constitutionally encompass only express advocacy<ref><span id="ALDF_00024926">In ''[[Buckley]]'', the Supreme Court provided the genesis for the concept of issue and express advocacy communications. In order to avoid invalidation of a provision of FECA on grounds of unconstitutional vagueness, the Court applied a limiting construction so that the provision applied only to noncandidate "expenditures for communications that in express terms advocate the election or defeat of a clearly identified candidate for federal office" (that is, express advocacy). In a footnote, the Court explained that this limiting construction would restrict the application of the provision to communications containing express advocacy terms, such as "vote for," "elect," "support," "cast your ballot for," "Smith for Congress," "vote against," "defeat," and "reject." ''[[Buckley]]'', 424 U.S. at 44, n.52.</span></ref>--communications expressly advocating for the election or defeat of a clearly identified candidate, including for example, statements such as "vote for" or "vote against"--or the "functional equivalent" of express advocacy. Further, the Court in ''[[WRTL]]'' advised that communications that could reasonably be interpreted as something other than an appeal to vote for or against a specific candidate could not be considered electioneering communications.
=====Campaign Finance Disclosure and Disclaimer Requirements=====
The Supreme Court has generally affirmed the constitutionality of campaign disclosure requirements. In ''[[Buckley v. Valeo]]'', the Court identified three governmental interests justifying Federal Election Campaign Act (FECA) disclosure requirements.<ref><span id="ALDF_00024927">''See'' ''[[Buckley]]'', 424 U.S. at 66-68.</span></ref> First, the Court determined that disclosure provides the electorate with information as to the source of campaign money, how it is spent, and "the interests to which a candidate is most likely to be responsive"--an informational interest.<ref><span id="ALDF_00024928">''Id.'' at 66-67.</span></ref> Second, the Court stated that disclosure serves to deter corruption and its appearance by uncovering large contributions and expenditures "to the light of publicity," observing that with this information, voters are better able to detect illicit "post-election special favors" by an officeholder in exchange for the contributions.<ref><span id="ALDF_00024929">''Id.'' at 67.</span></ref> Third, the Court identified disclosure requirements as an essential method of detecting violations for referral to law enforcement.<ref><span id="ALDF_00024930">''See'' ''id.'' at 66-68.</span></ref> In upholding the constitutionality of FECA's disclosure requirements for independent expenditures, the Court determined that so long as they encompass only funds used for express advocacy communications, the requirement is constitutional.<ref><span id="ALDF_00024931">''See'' ''id.'' at 79-80. ("[W]hen the maker of the expenditure is . . . an individual other than a candidate or a group other than a 'political committee,' the relation of the information sought to the purposes of the Act may be too remote. To insure that the reach . . . is not impermissibly broad, we construe 'expenditure' . . . to reach only funds used for communications that expressly advocate the election or defeat of a clearly identified candidate. This reading is directed precisely to that spending that is unambiguously related to the campaign of a particular federal candidate.").</span></ref> Likewise, in ''[[McConnell v. FEC]]'', rejecting a facial challenge to enhanced disclosure requirements, the Court observed that the ''[[Buckley]]'' ruling distinguished between express advocacy and issue advocacy for the purposes of statutory construction, not constitutional command, and therefore, the First Amendment did not require creating "a rigid barrier" between the two in this case.<ref><span id="ALDF_00024932">''Id.'' at 193, 201-02.</span></ref> In other words, the Court determined, because electioneering communications are intended to influence an election, the absence of "magic words" of express advocacy does not obviate the government's interest in requiring disclosure of such ads in order to combat corruption or its appearance.<ref><span id="ALDF_00024933">''Id.'' at 193-94.</span></ref>
Expanding on its holding in ''[[Buckley]]'', in subsequent campaign finance disclosure cases, the balancing of interests has tipped in favor of the constitutionality of disclosure requirements under the First Amendment. In ''[[Citizens United v. FEC]]'', the Court upheld FECA's disclosure requirements for electioneering communications as applied to a political documentary and broadcast advertisements promoting it.<ref><span id="ALDF_00024934">''See'' ''[[Citizens United]]'', 558 U.S. at 366-371.</span></ref> The Court determined that while they may burden the ability to speak, disclosure requirements "impose no ceiling on campaign-related activities," and "do not prevent anyone from speaking."<ref><span id="ALDF_00024935">''Id.'' at 366 (quoting ''[[Buckley]]'', 424 U.S. at 64).</span></ref> Accordingly, the Court evaluated the requirements under a standard of "exacting scrutiny," a less-rigorous standard than the "strict scrutiny" standard the Court has used to evaluate restrictions on campaign expenditures.<ref><span id="ALDF_00024936">''See'' ''id.'' at 366-67.</span></ref> Exacting scrutiny requires a "substantial relation" between the disclosure requirement and a "sufficiently important" government interest, the Court announced.<ref><span id="ALDF_00024937">''Id.'' The Court expressly rejected the argument that the scope of FECA's disclosure requirements for electioneering communications must be limited to speech that is express advocacy, or the "functional equivalent of express advocacy." ''Id.'' at 369-370. ''See also'' ''[[Indep. Inst. v. FEC]]'', 216 F. Supp. 3d 176, 189 (D.D.C. 2016), ''summ. aff'd'', ''[[Indep. Inst. v. FEC]]'', No. 16-743 (U.S. Feb. 27, 2017) (summarily affirming a three-judge federal district court ruling that upheld the constitutionality of FECA's disclosure requirements for electioneering communications, after determining that the First Amendment does not require limiting disclosure requirements to speech that is the functional equivalent of express advocacy).</span></ref> Further, in ''[[Doe v. Reed]]'', the Court upheld the constitutionality of a Washington State public records law.<ref><span id="ALDF_00024938">561 U.S. 186 (2010).</span></ref> Categorizing the statute as a disclosure requirement and, therefore, "not a prohibition of speech," the Court evaluated the law under the standard of exacting scrutiny.<ref><span id="ALDF_00024939">''Id.'' at 196.</span></ref> The Court determined that the law was substantially related to the governmental interest of safeguarding the integrity of the electoral process and announced that public disclosure "promotes transparency and accountability in the electoral process to an extent other measures cannot."<ref><span id="ALDF_00024940">''Id.'' at 199. ''See also'', ''[[Americans for Prosperity Found. v. Bonta]]'', No. 19-251, slip op. at 2, 11 (U.S. July 1, 2021) (subjecting a California disclosure law to an exacting scrutiny standard that requires a "narrow tailoring" to a sufficiently important governmental interest asserted; while not a campaign finance case, the ruling may have consequences for the constitutionality of campaign finance disclosure requirements going forward).</span></ref>
Similar to disclosure requirements, the Supreme Court has upheld the constitutionality under the First Amendment of campaign finance disclaimer requirements.<ref><span id="ALDF_00024941">Although FECA does not contain the term "disclaimer," the law specifies the content of attribution statements to be included in certain communications, which are known as disclaimer requirements. ''See, e.g.,'' Advertising and Disclaimers, FEC, [https://www.fec.gov/help-candidates-and-committees/making-disbursements/advertising/](last visited Dec. 29, 2021).</span></ref> In ''[[McConnell v FEC]]'', the Supreme Court upheld the facial validity of the FECA disclaimer requirements, as amended by Bipartisan Campaign Reform Act (BCRA).<ref><span id="ALDF_00024942">''See'' ''[[McConnell]]'', 540 U.S. at 230-31.</span></ref> Specifically, the Court determined that the FECA disclaimer requirement "bear[ ] a sufficient relationship to the important governmental interest of 'shedding the light of publicity on campaign financing.'"<ref><span id="ALDF_00024943">''Id.'' at 231.</span></ref> Revisiting the issue in ''[[Citizens United]]'', the Court upheld the disclaimer requirement in BCRA as applied to a political documentary and the broadcast advertisements that an organization planned to run promoting the movie.<ref><span id="ALDF_00024944">''See'' ''[[Citizens United]]'', 558 U.S. at 367.</span></ref> According to the Court, while they may burden the ability to speak, like disclosure requirements, disclaimer requirements "impose no ceiling on campaign-related activities," and "do not prevent anyone from speaking."<ref><span id="ALDF_00024945">''Id.'' at 366.</span></ref>
=====Lobbying=====
To lobby means generally "to try to persuade a government official . . . in an attempt to influence some action proposed to be taken."<ref><span id="ALDF_00024946">Lobby, Black's Law Dictionary (11th ed. 2019).</span></ref> In its most basic form, lobbying is a form of petitioning the government,<ref><span id="ALDF_00024947">''See'' [[{{ROOTPAGENAME}}/First Amend.#Historical Background on Freedoms of Assembly and Petition|First Amend.: Historical Background on Freedoms of Assembly and Petition]].</span></ref> a right protected under the First Amendment.<ref><span id="ALDF_00024948">''See'' ''[[E. R.R. Presidents Conf. v. Noerr Motor Freight]]'', 365 U.S. 127, 137 (1961) (recognizing that "[i]n a representative democracy such as this, these branches of government act on behalf of the people and, to a very large extent, the whole concept of representation depends on the ability of the people to make their wishes known to their representative").</span></ref>
While the First Amendment protects the right to petition, the Supreme Court has determined that Congress may regulate individuals who are paid to lobby Congress. For example, Congress may require that lobbyists register, make specific disclosures, and submit reports to Congress. In ''[[United States v. Harriss]]'', individuals charged with violating the Federal Regulation of Lobbying Act argued that the registration, reporting, and disclosure requirements of that statute violated their right to petition under the First Amendment.<ref><span id="ALDF_00024949">''[[United States v. Harriss]]'', 347 U.S. 612, 617 (1954).</span></ref> In upholding the Act, the Court recognized that "[p]resent-day legislative complexities are such that individual members of Congress cannot be expected to explore the myriad pressures to which they are regularly subjected."<ref><span id="ALDF_00024950">''Id.'' at 625.</span></ref> According to the Court, it is important that elected representatives have the necessary information to be able to "evaluate such pressures."<ref><span id="ALDF_00024951"> [http://cdn.loc.gov/service/ll/usrep/usrep347/usrep347612/usrep347612.pdf ''Id''.]</span></ref> Rather than prohibiting lobbying, the Act merely required a "modicum of information" from those hired to influence Congress to make transparent "who is being hired, who is putting up the money, and how much."<ref><span id="ALDF_00024952"> [http://cdn.loc.gov/service/ll/usrep/usrep347/usrep347612/usrep347612.pdf ''Id''.]</span></ref> Requiring disclosures about lobbying activities was within Congress's "power of self-protection," for the purpose of maintaining "the integrity of a basic governmental process."<ref><span id="ALDF_00024953"> [http://cdn.loc.gov/service/ll/usrep/usrep347/usrep347612/usrep347612.pdf ''Id''.]</span></ref>
Beyond regulating paid lobbyists, the Court has also held that Congress has no obligation to subsidize the lobbying activities of private entities. In ''[[Cammarano v. United States]]'', the Court upheld a regulation that denied a tax deduction for business expenses spent on lobbying.<ref><span id="ALDF_00024954"> [http://cdn.loc.gov/service/ll/usrep/usrep358/usrep358498/usrep358498.pdf 358 U.S. 498, 513 (1959)].</span></ref> The Court explained that the taxpayers were not being denied a tax deduction for engaging in constitutionally protected activities, rather, they were "simply being required to pay for those activities entirely out of their own pockets."<ref><span id="ALDF_00024955">''Id.''; see also ''[[Textile Mills Sec. Corp. v. Comm'r of Internal Revenue]]'', 314 U.S. 326 (1941) (holding that the Commissioner of Internal Revenue properly disallowed a tax deduction for an expense paid by a corporation to hire a publicist and two legal experts to help secure the passage of certain legislation).</span></ref> Citing ''[[Cammarano]]'', the Court subsequently upheld a statutory provision that similarly denied tax benefits for lobbying activities.<ref><span id="ALDF_00024956">''[[Regan v. Taxation With Representation of Wash.]]'', 461 U.S. 540 (1983).</span></ref> In ''[[Regan v. Taxation With Representation of Washington]]'', a nonprofit organization challenged the denial of its tax-exempt status under Section 501(c)(3) of the Internal Revenue Code because a substantial part of its activities were lobbying related.<ref><span id="ALDF_00024957">''Id.'' at 542.</span></ref> The organization claimed, among other things, that the prohibition on lobbying activities under 501(c)(3) violated the First Amendment.<ref><span id="ALDF_00024958">''Id.''</span></ref> In rejecting this argument, the Court determined that Congress had not infringed on or regulated any First Amendment activity, rather, it had "merely refused to pay for the lobbying our of public moneys."<ref><span id="ALDF_00024959">''Id.'' at 545-46. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Conditions on Tax Exemptions|First Amend.: Conditions on Tax Exemptions]].</span></ref>
Although the Court has allowed Congress to regulate paid lobbyists and to decline to subsidize lobbying activity, it has refused to apply other laws when their application chills the underlying exercise of the right to petition the government. For example, the ''Noerr-Pennington'' doctrine--established by ''[[Eastern Railroad Presidents Conference v. Noerr Motor Freight, Inc.]]''<ref><span id="ALDF_00024960"> [http://cdn.loc.gov/service/ll/usrep/usrep365/usrep365127/usrep365127.pdf 365 U.S. 127 (1961)].</span></ref> and ''[[United Mine Workers v. Pennington]]''<ref><span id="ALDF_00024961"> [http://cdn.loc.gov/service/ll/usrep/usrep381/usrep381657/usrep381657.pdf 381 U.S. 657 (1965)].</span></ref>--provides limited immunity from antitrust liability for those "engaging in conduct . . . aimed at influencing decisionmaking by the government."<ref><span id="ALDF_00024962">''[[Octane Fitness, LLC v. ICON Health &amp; Fitness, Inc.]]'', 572 U.S. 545, 555-56 (2014).</span></ref> Under this line of cases, competitors who work in concert to influences the government do not violate the Sherman Antitrust Act.<ref><span id="ALDF_00024963">''[[Pennington]]'', 381 U.S. at 669; ''see also'' ''[[City of Columbia v. Omni Outdoor Advert., Inc.]]'', 499 U.S. 365, 379-80 (1991) (reiterating that the "federal antitrust laws also do not regulate the conduct of private individuals in seeking anticompetitive action from the government"); ''[[Allied Tube &amp; Conduit Corp. v. Indian Head, Inc.]]'', 486 U.S. 492 (1988) (declining to extend the ''Noerr-Pennington'' immunity to efforts to influence a private association).</span></ref> The Court has reiterated that the ''Noerr-Pennington'' doctrine was crafted to "avoid chilling the exercise of the First Amendment right to petition the government for the redress of grievances."<ref><span id="ALDF_00024964">''[[Octane Fitness, LLC]]'', 572 U.S. at 556 (citing ''[[Pro. Real Estate Investors, Inc. v. Columbia Pictures Indus. Inc.]]'', 508 U.S. 49, 56 (1993)).</span></ref> The right to petition extends to "all departments of the Government," and includes access to administrative agencies and courts.<ref><span id="ALDF_00024965">''[[Cal. Motor Transport Co. v. Trucking Unlimited]]'', 404 U.S. 508, 510 (1972).</span></ref> The ''Noerr-Pennington'' doctrine shields efforts to influence public officials "regardless of intent or purpose."<ref><span id="ALDF_00024966">''[[Omni]]'', 499 U.S. at 380 (citing ''[[Pennington]]'', 381 U.S. at 670).</span></ref> The Court, however, has recognized a "sham exception" to the doctrine, excluding conduct from immunity that is a "mere sham to cover . . . an attempt to interfere directly with the business relationships of a competitor."<ref><span id="ALDF_00024967">''[[Octane Fitness, LLC]]'', 572 U.S. at 556. For example, litigation can be considered a "sham" under this doctrine if it is (1) "objectively baseless in the sense that no reasonable litigant could realistically expect success on the merits," and if it conceals "'an attempt to interfere ''directly'' with the business relationships of a competitor,' . . . through the 'use [of] the government ''process''--as opposed to the ''outcome of that process''.'" ''[[Pro. Real Estate Invs., Inc.]]'', 508 U.S. at 60-61.</span></ref>
=====Legislative Investigations=====
As discussed in an earlier essay, Congress possesses an inherent power of investigation in aid of legislation.<ref><span id="ALDF_00006400">''See'' [[{{ROOTPAGENAME}}/Art. I/Sec. 8/Clause 18 Necessary and Proper Clause#Congress's Investigation and Oversight Powers (1787-1864)|Art. I, Sec. 8, Cl. 18: Congress's Investigation and Oversight Powers (1787-1864)]] to [[{{ROOTPAGENAME}}/Art. I/Sec. 8/Clause 18 Necessary and Proper Clause#Constitutional Limits of Congress's Investigation and Oversight Powers|Art. I, Sec. 8, Cl. 18: Constitutional Limits of Congress's Investigation and Oversight Powers]].</span></ref> Nonetheless, the government's power of investigation is subject to First Amendment restrictions when the power as exercised results in deterrence or penalization of protected beliefs, associations, and conduct. In early cases, the Supreme Court narrowly construed the authority of congressional committees in order to avoid First Amendment infringement.<ref><span id="ALDF_00006401">''See'' ''[[United States v. Rumely]]'', 345 U.S. 41, 44-46 (1953); ''[[Watkins v. United States]]'', 354 U.S. 178, 197-98 (1957); ''[[Sweezy v. New Hampshire]]'', 354 U.S. 234, 249-51 (1957).</span></ref> Later cases introduced a test that 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 upheld committee investigations.<ref><span id="ALDF_00006402">''[[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).</span></ref> Later, the Court articulated the balance somewhat differently and required that the investigating agency show "a subordinating interest which is compelling" to justify the inquiry's restraint on First Amendment rights.<ref><span id="ALDF_00006403">''[[Gibson v. Fl. Legis. Investigation Comm.]]'', 372 U.S. 539 (1963). ''See also'' ''[[DeGregory v. Att'y Gen. of N.H.]]'', 383 U.S. 825 (1966).</span></ref>
====Compelled Speech====
=====Overview of Compelled Speech=====
For both the religion and speech clauses of the First Amendment, liberty of belief is the foundation of the liberty to practice one's religion and to express one's opinions.<ref><span id="ALDF_00006221">''[[W. Va. 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); ''[[Am. Commc'ns 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 Ariz.]]'', 401 U.S. 1, 5-6 (1971) (plurality opinion), and ''id.'' at 9-10 (Stewart, J., concurring).</span></ref> As the Supreme Court has stated: "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."<ref><span id="ALDF_00006222">''[[Barnette]]'', 319 U.S. at 642. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Laws Regulating Religious Belief|First Amend.: Laws Regulating Religious Belief]].</span></ref> Speaking in the context of religious freedom, the Court said that, although the freedom to act on one's beliefs could be limited, the freedom to believe what one will "is absolute."<ref><span id="ALDF_00006223">''[[Cantwell]]'', 310 U.S. at 303.</span></ref> Accordingly, as discussed in the following essays, courts will ordinarily subject government actions that compel speech to heightened constitutional scrutiny--but courts will more readily uphold certain types of disclosure requirements, particularly in the commercial context. An earlier essay discussed the Court's jurisprudence involving disclosures and disclaimers imposed in the context of campaign finance and electioneering regulations.<ref><span id="ALDF_00001356">[[{{ROOTPAGENAME}}/First Amend.#Campaign Finance Disclosure and Disclaimer Requirements|First Amend.: Campaign Finance Disclosure and Disclaimer Requirements]].</span></ref>
=====Flag Salutes and Other Compelled Speech=====
One question the Supreme Court has considered is whether the government may compel a person to declare or affirm publicly a personal belief. In ''[[Minersville School District v. Gobitis]]'',<ref><span id="ALDF_00006224"> [http://cdn.loc.gov/service/ll/usrep/usrep310/usrep310586/usrep310586.pdf 310 U.S. 586 (1940)].</span></ref> the Supreme Court had upheld the power of Pennsylvania to expel from its schools children who refused upon religious grounds to join in a flag salute ceremony and recite the pledge of allegiance. The Court explained that "[c]onscientious 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."<ref><span id="ALDF_00006225">310 U.S. 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.</span></ref> But three years later, in ''[[West Virginia State Bd. of Educ. v. Barnette]]'',<ref><span id="ALDF_00006226"> [http://cdn.loc.gov/service/ll/usrep/usrep319/usrep319624/usrep319624.pdf 319 U.S. 624 (1943)].</span></ref> a 6-3 majority of the Court overturned ''[[Gobitis]]''.<ref><span id="ALDF_00006227">Justice Felix 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." 319 U.S. at 646, 647. Justices Roberts and Stanley Reed simply noted their continued adherence to ''[[Gobitis]]''. ''Id.'' at 642.</span></ref> Focusing on the free speech arguments rather than protections for religious exercise, the Court said that the state policy constituted "a compulsion of students to declare a belief," requiring "the individual to communicate by word and sign his acceptance of the political ideas [the flag] bespeaks."<ref><span id="ALDF_00006228">319 U.S. at 631, 633.</span></ref> The Court ruled that the power of a state to follow a policy that "requires affirmation of a belief and an attitude of mind," however, is limited by the First Amendment, which, under the standard then prevailing, required the state to prove that for the students to remain passive during the ritual "creates a clear and present danger that would justify an effort even to muffle expression."<ref><span id="ALDF_00006229">''Id.'' at 633, 634. ''See also'' ''[[Janus v. AFSCME, Council 31]]'', No. 16-1466, slip op. at 9 (U.S. June 2018) (noting that compelled speech imposes a distinct harm by "forcing free and independent individuals to endorse ideas they find objectionable").</span></ref>
The rationale of ''[[Barnette]]'' became the basis for the Court's decision in ''[[Wooley v. Maynard]]'',<ref><span id="ALDF_00006230"> [http://cdn.loc.gov/service/ll/usrep/usrep430/usrep430705/usrep430705.pdf 430 U.S. 705 (1977)].</span></ref> which voided a requirement by the state of New Hampshire that motorists display passenger vehicle license plates bearing the motto "Live Free or Die."<ref><span id="ALDF_00006231">The state had prosecuted vehicle owners who covered the motto on their vehicle's license plate.</span></ref> Acting on the complaint of a motorist who again raised religious objections to this statement, the Court held that the plaintiff could not be compelled by the state to display a message making an ideological statement on his private property. In a subsequent case, however, the Court found that compelling property owners to facilitate the speech of others by providing access to their property did not violate the First Amendment, at least where the speech was not likely to be identified with the owner and the owner could effectively disavow any connection with the speaker's message.<ref><span id="ALDF_00006232">''See'' ''[[PruneYard Shopping Ctr. v. Robins]]'', 447 U.S. 74, 85-88 (1980) (upholding a state requirement that privately owned shopping centers permit others to engage in speech or petitioning on their property).</span></ref>
The Supreme Court has also held other governmental efforts to compel speech to violate the First Amendment; these include a North Carolina statute that required professional fundraisers for charities to disclose to potential donors the gross percentage of revenues retained in prior charitable solicitations,<ref><span id="ALDF_00006234">''[[Riley v. Nat'l Fed'n of the Blind of N.C.]]'', 487 U.S. 781 (1988). In ''[[Illinois ex rel. Madigan v. Telemarketing Assocs., Inc.]]'', 538 U.S. 600, 605 (2003), the Supreme Court held that a fundraiser who has retained eight-five percent of gross receipts from donors, but falsely represented that "a significant amount of each dollar donated would be paid over to" a charitable organization, could be sued for fraud.</span></ref> a Florida statute that required newspapers to grant political candidates equal space to reply to the newspapers' criticism and attacks on their records,<ref><span id="ALDF_00006235">''[[Miami Herald Publ'g Co. v. Tornillo]]'', 418 U.S. 241 (1974). In ''[[Pacific Gas &amp; Elec. Co. v. Pub. Utils. Comm'n]]'', 475 U.S. 1 (1986), a Court plurality held that a state could not require a privately owned utility company to include in its billing envelopes views of a consumer group with which it disagrees.</span></ref> an Ohio statute that prohibited the distribution of anonymous campaign literature,<ref><span id="ALDF_00006236">''[[McIntyre v. Ohio Elections Comm'n]]'', 514 U.S. 334 (1995).</span></ref> a Massachusetts statute that required private citizens who organized a parade to include among the marchers a group imparting a message--in this case support for gay rights--that the organizers did not wish to convey,<ref><span id="ALDF_00006237">''[[Hurley v. Irish-Am. Gay Grp.]]'', 515 U.S. 557 (1995).</span></ref> and a California law that required certain pro-life centers that offer pregnancy-related services to provide certain notices.<ref><span id="ALDF_00007304">''See'' ''[[Nat'l Inst. of Family and Life Advocs. v. Becerra]]'', 585 U.S. ___, No. 16-1140, slip op. at 7 (U.S. June 2018). Specifically, in ''[[National Institute of Family and Life Advocates v. Becerra]]'', the Court reviewed a California law that, in relevant part, required medically licensed crisis pregnancy centers to notify women that the State of California provided free or low-cost services, including abortion. ''Id.'' at 2-4 (describing the California law). For the Court, "[b]y requiring [licensed clinics] to inform women how they can obtain state-subsidized abortions--at the same time [those clinics] try to dissuade women from choosing that option," the California law "plainly alters the content" of the clinics' speech, subjecting the law to heightened scrutiny. ''Id.'' at 7 (internal citations and quotations omitted).</span></ref> The Court also struck down a federal funding condition that required funding recipients to adopt a policy explicitly opposing sex trafficking.<ref><span id="ALDF_00001357">''[[Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc.]]'', 570 U.S. 205, 221 (2013). For additional discussion of this case, see [[{{ROOTPAGENAME}}/First Amend.#Conditions Exceeding the Scope of the Program|First Amend.: Conditions Exceeding the Scope of the Program]].</span></ref>
The Court continued its reliance on ''[[Barnette]]'' in ''[[303 Creative LLC v. Elenis]]'' a decision prohibiting the application of a state nondiscrimination law to a website designer who wished to refuse to design websites for same sex weddings.<ref><span id="ALDF_00000332">No. 21-476 (U.S. June 30, 2023).</span></ref> The Colorado Anti-Discrimination Act prohibits "public accommodations" from denying services to individuals based on sexual orientation and other characteristics.<ref><span id="ALDF_00000333">''Id.'' at 3 (citing Colo. Rev. Stat. &#167; 24-34-601(1) (2022)).</span></ref> A website designer who wanted to make wedding websites only for marriages "between one man and one woman" brought a pre-enforcement lawsuit, seeking an injunction to prevent the state from applying this law to punish her for discriminating against same-sex marriages.<ref><span id="ALDF_00000335">''Id.'' at 2-3.</span></ref> The Supreme Court held that wedding websites are "pure speech" protected by the First Amendment and that enforcement of Colorado's law requiring creation of wedding websites for same sex marriages would impermissibly compel speech.<ref><span id="ALDF_00000334">''Id.'' at 9-11.</span></ref>
The principle of ''[[Barnette]]'', however, does not extend so far as to bar a government from requiring employees or certain persons seeking professional licensing or other benefits to swear an oath that they will uphold and defend the Constitution.<ref><span id="ALDF_00006238">''[[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. Bd. 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); ''[[L. Students C.R. Rsch. 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). For additional discussion of cases involving employee oaths, see [[{{ROOTPAGENAME}}/First Amend.#Pickering Balancing Test for Government Employee Speech|First Amend.: Pickering Balancing Test for Government Employee Speech]] and [[{{ROOTPAGENAME}}/First Amend.#Denial of Employment or Public Benefits|First Amend.: Denial of Employment or Public Benefits]].</span></ref>
In contrast to the arguably political speech at issue in ''Barnette'', the Supreme Court has at times found no First Amendment violation when government compels the disclosure of information in a commercial or professional setting. Regarding compelled disclosures in commercial speech, the Court held that an advertiser's "constitutionally protected interest in ''not'' providing any particular factual information in his advertising is minimal," and accordingly, a provision requiring a seller to disclose factual information about his goods or services will not violate the First Amendment so long as the requirement is "reasonably related to the State's interest in preventing deception of consumers."<ref><span id="ALDF_00006240">''[[Zauderer v. Off. of Disciplinary Couns.]]'', 471 U.S. 626, 651, 652 n.14 (1985). ''See'' ''[[Milavetz, Gallop, &amp; Milavetz v. United States]]'', 559 U.S. 229 (2010) (requiring advertisement for certain "debt relief" businesses to disclose that the services offered include bankruptcy assistance). For additional discussion of the Court's treatment of commercial speech, see [[{{ROOTPAGENAME}}/First Amend.#Commercial Speech Early Doctrine|First Amend.: Commercial Speech Early Doctrine]].</span></ref>
Moreover, the Court has upheld regulations of professional conduct that only incidentally burden speech. For example, in ''[[Planned Parenthood of Southeastern Pennsylvania v. Casey]]'', the Court considered a law requiring physicians to obtain informed consent before they could perform an abortion.<ref><span id="ALDF_00007305">''See'' [http://cdn.loc.gov/service/ll/usrep/usrep505/usrep505833/usrep505833.pdf 505 U.S. 833, 881 (1992)] (plurality opinion).</span></ref> Specifically, the law at issue in ''[[Casey]]'' required doctors to tell their patients prior to an abortion about the nature of the procedure, the health risks involved, the age of the unborn child, and the availability of printed materials from the state about various forms of assistance.<ref><span id="ALDF_00007306">''Id.''</span></ref> In a plurality opinion, the Court rejected a free-speech challenge to the informed consent requirement, viewing the law as "part of the practice of medicine" and a permissible incidental regulation of speech.<ref><span id="ALDF_00007307">''Id.'' at 884.</span></ref>
However, the Court has cautioned that reduced scrutiny for compelled commercial and professional speech is limited to particular contexts. For example, limited scrutiny of compelled commercial disclosures only applies to requirements that sellers provide "purely factual" and "uncontroversial information" in their commercial dealings.<ref><span id="ALDF_00007308">''See, e.g.'', ''[[Nat'l Inst. of Family and Life Advocs. v. Becerra]]'', No. 16-1140, slip op. at 8 (U.S. June 2018).Moreover, even under ''[[Zauderer]]'', commercial disclosure requirements cannot be unjustified or unduly burdensome. ''See'' 471 U.S. at 651. Applying this limit on the ''[[Zauderer]]'' rule, the ''[[National Institute of Family and Life Advocates]]'' Court reviewed a separate provision of the California law discussed above that required ''unlicensed'' crisis pregnancy centers to notify women that California has not licensed the clinics to provide medical services. ''Id.'' at 4-5 (describing the requirements for the unlicensed centers). The Court, noting the lack of evidence in the record that pregnant women were unaware that the covered facilities were not staffed by medical professionals and remarking on the breadth of the regulations that required a posting of the notice "no matter what the facilities say on site or in their advertisements," concluded that the regulations of unlicensed crisis pregnancy centers unduly burdened speech. ''Id.'' at 18-19.</span></ref> As a result, in considering the constitutionality of a California law requiring certain medically licensed, pro-life crisis pregnancy centers to disclose information to patients about the availability of state-subsidized procedures, including abortions, the Court in ''[[National Institute of Family and Life Advocates v. Becerra]]'' concluded that the ''[[Zauderer]]'' rule for compelled disclosures of purely factual, uncontroversial information was inapplicable.<ref><span id="ALDF_00007309">''Id.'' at 9.</span></ref> Specifically, the Court noted that the notice requirements were unrelated to services that the clinics provided and that the notice included information about abortion, "anything but an 'uncontroversial' topic."<ref><span id="ALDF_00007310">''Id.''</span></ref>
In that same ruling, the Court rejected the argument that the California law's disclosure requirements were comparable to the informed consent regulations upheld in Casey.<ref><span id="ALDF_00007311">''Id.'' at 11.</span></ref> In contrast to the law in ''[[Casey]]'', the ''[[National Institute of Family and Life Advocates Court]]'' concluded that the disclosure requirements were not tied to a particular medical procedure and did not require disclosure of information about the risks or benefits of any medical procedures the clinics provided.<ref><span id="ALDF_00007312">''Id.''</span></ref> In this sense, the California law, unlike the informed consent law in ''[[Casey]]'', did not incidentally burden speech, but instead "regulat[ed] speech as speech."<ref><span id="ALDF_00007313">''Id.'' Having concluded that the California disclosure requirements for licensed crisis pregnancy centers should be evaluated under a more rigorous form of scrutiny than what the Court employed in ''[[Zauderer]]'' or ''[[Casey]]'', the ''[[National Institute of Family and Life Advocates]]'' Court, employing intermediate scrutiny, held that the California law likely violated the First Amendment. ''Id.'' at 14. Specifically, the Court viewed the law to be both underinclusive--the law excluded several similar clinics without explanation--and overinclusive--the state could have employed other methods, such as a state-sponsored advertising campaign, to achieve its purpose of informing low-income women about its services without "burdening a speaker with unwanted speech." ''Id.'' at 14-16 (internal citations omitted).</span></ref>
The Supreme Court has also rejected a First Amendment challenge to the compelled labeling of foreign political propaganda. Specifically, in ''[[Meese v. Keene]]'', the Court upheld a provision of the Foreign Agents Registration Act of 1938 that required that, when an agent of a foreign principal seeks to disseminate foreign "political propaganda," he must label such material with certain information, including his identity, the principal's identity, and the fact that he has registered with the Department of Justice. The Court emphasized that "Congress did not prohibit, edit, or restrain the distribution of advocacy materials," but only "required the disseminators of such material to make additional disclosures that would better enable the public to evaluate the import of the propaganda."<ref><span id="ALDF_00006241">''[[Meese v. Keene]]'', 481 U.S. 465, 480 (1987).</span></ref>
=====Compelled Subsidization=====
It is to be expected that disputes will sometimes arise between an organization and some of its members regarding the organization's messaging or expression. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy.<ref><span id="ALDF_00006316">The Labor Management Reporting and Disclosure Act of 1959, 73 Stat. 537 (codified at [https://uscode.house.gov/view.xhtml?req=(title:29%20section:411%20edition:prelim)%20OR%20(granuleid:USC-prelim-title29-section411)&amp;f=treesort&amp;num=0&amp;edition=prelim 29 U.S.C. &#167;&#167; 411]-413), enacted a bill of rights for union members, designed to protect, among other things, freedom of speech and assembly and the right to participate in union meetings on political and economic subjects.</span></ref> But, in at least some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may be constitutional limitations arising from the First Amendment's protections for speech and association.<ref><span id="ALDF_00001359">This essay discusses the free speech aspects of these cases. For a discussion of the free association aspects, see [[{{ROOTPAGENAME}}/First Amend.#Union Membership and Fees|First Amend.: Union Membership and Fees]].</span></ref> It does not always violate the constitution when compulsory fees are used to subsidize the speech of others.<ref><span id="ALDF_00006233">For instance, the Court has said that the First Amendment did not preclude a public university from charging its students an activity fee used to support student organizations that engage in extracurricular speech, provided that the money was allocated to those groups by use of viewpoint-neutral criteria. ''[[Bd. of Regents of the Univ. of Wisc. System v. Southworth]]'', 529 U.S. 217 (2000) (upholding fee except to the extent a student referendum substituted majority determinations for viewpoint neutrality in allocating funds). Nor did the First Amendment preclude the government from "compel[ling] financial contributions that are used to fund advertising," provided that such contributions did not finance "political or ideological" views. ''[[Glickman v. Wileman Bros. &amp; Elliott, Inc.]]'', 521 U.S. 457, 471, 472 (1997) (upholding Secretary of Agriculture's marketing orders that assessed fruit producers to cover the expenses of generic advertising of California fruit). But the Court has emphasized that the advertising funded by compelled financial contributions in ''[[Glickman]]'' was "ancillary to a more comprehensive program restricting marketing autonomy" and not "the principal object of the regulatory scheme." ''[[United States v. United Foods, Inc.]]'', 533 U.S. 405, 411, 412 (2001) (striking down Secretary of Agriculture's mandatory assessments, used for advertising, upon handlers of fresh mushrooms). The Court held that the First Amendment, however, was not violated when the government compelled financial contributions to fund ''government'' speech, even though the contributions were raised through a targeted assessment rather than through general taxes. ''[[Johanns v. Livestock Mktg. Ass'n]]'', 544 U.S. 550 (2005).</span></ref> However, the Court has recognized constitutional limitations can arise, for example, in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act.<ref><span id="ALDF_00006317">The Labor-Management Relations Act of 1947 &#167; 8(a)(3), 61 Stat. 140 (codified as amended at [https://uscode.house.gov/view.xhtml?req=(title:29%20section:158%20edition:prelim)%20OR%20(granuleid:USC-prelim-title29-section158)&amp;f=treesort&amp;num=0&amp;edition=prelim 29 U.S.C. &#167; 158](a)(3)), permits the negotiation of union shop agreements. Such agreements, however, may be outlawed by state "right to work" laws.''Id.'' at &#167; 14(b), 61 Stat. 151 (codified as amended at [https://uscode.house.gov/view.xhtml?req=(title:29%20section:164%20edition:prelim)%20OR%20(granuleid:USC-prelim-title29-section164)&amp;f=treesort&amp;num=0&amp;edition=prelim 29 U.S.C. &#167; 164](b)). ''See'' ''[[Lincoln Fed. Lab. Union v. Nw. Iron &amp; Metal Co.]]'', 335 U.S. 525 (1949); ''[[AFL v. Am. Sash &amp; 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 (codified as amended at [https://uscode.house.gov/view.xhtml?req=(title:45%20section:152%20edition:prelim)%20OR%20(granuleid:USC-prelim-title45-section152)&amp;f=treesort&amp;num=0&amp;edition=prelim 45 U.S.C. &#167; 152]), Eleventh; ''see'' ''[[R. Emps.' Dep't v. Hanson]]'', 351 U.S. 225 (1956).</span></ref> The Court has recognized in this context that "'compelled funding of the speech of other private speakers or groups' presents the same dangers as compelled speech."<ref><span id="ALDF_00001358">''[[Harris v. Quinn]]'', 573 U.S. 616, 647 (2014) (quoting ''[[Knox v. SEIU, Local 1000,]]'', 567 U.S. 298, 309 (2012)).</span></ref>
In ''[[Railway Employees' Dep't v. Hanson]]'', the Supreme Court upheld the constitutionality of a law authorizing private union shop agreements that required employees to join a union, noting that the record in the case did not indicate that union dues were being "used as a cover for forcing ideological conformity or other action in contravention of the First Amendment," such as by being spent to support political candidates.<ref><span id="ALDF_00006318"> [http://cdn.loc.gov/service/ll/usrep/usrep351/usrep351225/usrep351225.pdf 351 U.S. 225, 238 (1956)].</span></ref> In ''[[International Ass'n of Machinists v. Street]]'', where union dues had been collected pursuant to a union shop agreement and had been spent to support political candidates, the Court avoided the First Amendment issue by construing the Railway Labor Act to prohibit the use of compulsory union dues for political causes.<ref><span id="ALDF_00006319"> [http://cdn.loc.gov/service/ll/usrep/usrep367/usrep367740/usrep367740.pdf 367 U.S. 740, 749-50 (1961)]. Justices William O. Douglas, Hugo Black, Felix Frankfurter, and John Harlan would have reached the constitutional issue, with differing results. On the same day that it decided ''[[Street]]'', the Court, in ''[[Lathrop v. Donohue]]'', 367 U.S. 820 (1961), declined 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, however, were faced squarely in ''[[Keller v. State Bar of Cal.]]'', 496 U.S. 1, 14 (1990), which held that an integrated state bar may not, against a members' wishes, devote compulsory dues to ideological or other political activities not "necessarily or reasonably related to the purpose of regulating the legal profession or improving the quality of legal service available to the people of the State."</span></ref>
The Supreme Court held in ''[[Janus v. American Federation of State, County, &amp; Municipal Employees, Council 31]]'', that "public sector agency-shop arrangements violate the First Amendment,"<ref><span id="ALDF_00007314">No. 16-1466, slip op. at 33 (U.S. June 2018).</span></ref> overruling a forty-year old precedent, ''[[Abood v. Detroit Board of Education]]'', that had generally approved of such arrangements.<ref><span id="ALDF_00007315"> [http://cdn.loc.gov/service/ll/usrep/usrep431/usrep431209/usrep431209.pdf 431 U.S. 209, 229 (1977)].</span></ref> However, even ''[[Abood]]'' itself had only permitted some aspects of compelled fee regimes,<ref><span id="ALDF_00007316">''Id.'' at 235.</span></ref> and the Court had, for years prior to ''[[Janus]]'', signaled its growing discomfort with ''[[Abood]]''.<ref><span id="ALDF_00007317">''See, e.g.'', ''[[Harris v. Quinn]]'', 573 U.S. 616 (2014). In ''[[Friedrichs v. Cal. Teachers Ass'n]]'' the Court was equally divided on the question of whether to overrule ''[[Abood]]''. 578 U.S. 1, 1 (2016).</span></ref> Understanding the historical course of the jurisprudence governing compelled agency fees is important to understand the ramifications of ''[[Janus]]''.
In ''[[Abood v. Detroit Bd. of Education]]'',<ref><span id="ALDF_00006320"> [http://cdn.loc.gov/service/ll/usrep/usrep431/usrep431209/usrep431209.pdf 431 U.S. 209 (1977)].</span></ref> the Court found ''[[Hanson]]'' and ''[[Street]]'' applicable to the public employment context.<ref><span id="ALDF_00006321">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, in a concurring opinion joined by Chief Justice Warren Burger and Justice Harry Blackmun, Justice Lewis Powell found the distinction between public and private employment crucial. ''Id.'' at 244.</span></ref> Recognizing that any system of compelled support restricted employees' right not to associate and not to support, the Court nonetheless found the governmental interests served by an "agency shop" agreement<ref><span id="ALDF_00006322">An agency shop agreement requires all employees, regardless of union membership, to pay a fee to the union that reflects the union's efforts in obtaining employment benefits through collective bargaining. The Court in ''[[Abood]]'' noted that it is the "practical equivalent" of a union shop agreement. ''Id.'' at 217 n.10.</span></ref>--the promotion of labor peace and stability of employer-employee relations--to be of overriding importance and to justify the impact upon employee freedom.<ref><span id="ALDF_00006323">''Id.'' at 217-23. For a similar 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 (White, J., dissenting).</span></ref> But the Court drew a different balance when it 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. The Court believed that 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.<ref><span id="ALDF_00006324">431 U.S. at 232-37.</span></ref> The Court's remedy, however, was not to restrain the union from making non-collective bargaining related expenditures, but was 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 under which employees could object generally to such use of union funds and could obtain either a proportionate refund or a reduction of future exactions.<ref><span id="ALDF_00006325">431 U.S. at 237-42. On the other hand, the Court ruled that nonmembers could 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). The Court said a local union could also charge nonmembers a fee that went to the national union to pay for litigation expenses incurred on behalf of other local units, but only if (1) the litigation is related to collective bargaining rather than political activity, and (2) the litigation charge is reciprocal in nature, that is, other locals contribute similarly. ''[[Locke v. Karass]]'', 555 U.S. 207, 210 (2009).</span></ref> Later, the Court further tightened the requirements. It concluded that a proportionate refund was inadequate because "even then the union obtains an involuntary loan for purposes to which the employee objects";<ref><span id="ALDF_00006326">''[[Ellis v. Brotherhood of R., Airline &amp; S.S. Clerks]]'', 466 U.S. 435, 444 (1984).</span></ref> an advance reduction of dues corrected the problem only if accompanied by sufficient information by which employees may gauge the propriety of the union's fee.<ref><span id="ALDF_00006327">''[[Chi. Teachers Union v. Hudson]]'', 475 U.S. 292 (1986).</span></ref> Therefore, the union procedure must also "provide for a reasonably prompt decision by an impartial decisionmaker."<ref><span id="ALDF_00006328">''Id.'' at 309.</span></ref>
In ''[[Davenport v. Washington Education Ass'n]]'',<ref><span id="ALDF_00006329"> [https://cite.case.law/us/551/177/?full_case=true&amp;format=html 551 U.S. 177 (2007)].</span></ref> the Court noted that, although it had previously outlined the ''minimum'' "procedural requirements that public-sector unions collecting agency fees must observe in order to ensure that an objecting nonmember can prevent the use of his fees for impermissible purposes,"<ref><span id="ALDF_00006330">''Id.'' at 181, citing [http://cdn.loc.gov/service/ll/usrep/usrep475/usrep475292/usrep475292.pdf 475 U.S. 292, 302, 304-310 (1986)].</span></ref> it "never suggested that the First Amendment is implicated whenever governments place limitations on a union's entitlement to agency fees above and beyond what ''[[Abood]]'' and ''[[Hudson]]'' require."<ref><span id="ALDF_00006331">551 U.S. at 185, quoting ''[[Keller v. State Bar of Cal.]]'', 496 U.S. 1, 17 (1990), and adding emphasis.</span></ref> Thus, the Court held in ''[[Davenport]]'' that the State of Washington could prohibit "expenditure of a nonmember's agency fees for election-related purposes unless the nonmember affirmatively consents."<ref><span id="ALDF_00006332">551 U.S. at 184.</span></ref> The Court added that "Washington could have gone much further, restricting public-sector agency fees to the portion of union dues devoted to collective bargaining. Indeed, it is uncontested that it would be constitutional for Washington to eliminate agency fees entirely."<ref><span id="ALDF_00006333">''Id.'' at 184 (citations omitted).</span></ref>
In ''[[Knox v. Service Employees International Union]]'',<ref><span id="ALDF_00006334"> [https://cite.case.law/us/567/298/?full_case=true&amp;format=html 567 U.S. 298 (2012)].</span></ref> the Court suggested constitutional limits on a public union assessing political fees in an agency shop other than through a voluntary opt-in system. The union in ''[[Knox]]'' had proposed and implemented a special fee to fund political advocacy before providing formal notice with an opportunity for non-union employees to opt out. Five Justices characterized agency shop arrangements in the public sector as constitutionally problematic, and described the Court's prior jurisprudence allowing opt-out provisions as anomalous, in the sense of the burdens it imposed on the constitutional rights of objecting nonmembers. The majority more specifically held that the Constitution required that separate notices be sent out for special political assessments that allowed non-union employees to opt in rather than requiring them to opt out.<ref><span id="ALDF_00006335">''Id.'' (Alito, J., joined by Roberts, C.J., Scalia, Kennedy, and Thomas, JJ.).</span></ref>
Doubts on the constitutionality of mandatory union dues in the public sector intensified in ''[[Harris v. Quinn]]''.<ref><span id="ALDF_00007318">573 U.S. 616 (2014).</span></ref> Building on concerns outlined in ''Knox'', the Court expressed reservations about ''[[Abood]]''<nowiki>'</nowiki>s central holding that the collection of an agency fee from public employees withstood First Amendment scrutiny because of the desirability of "labor peace" and the problem of "free ridership." Specifically, the Court questioned (1) the scope of the precedents (like ''[[Hanson]]'' and ''[[Street]]'') that the ''[[Abood]]'' Court relied on; (2) ''[[Abood]]''<nowiki>'</nowiki>s failure to appreciate the distinctly political context of public sector unions; and (3) ''[[Abood]]''<nowiki>'</nowiki>s dismissal of the administrative difficulties in distinguishing between public union expenditures for collective bargaining and expenditures for political purposes.<ref><span id="ALDF_00007319">''Id.'' at 8-20.</span></ref> Notwithstanding these concerns about ''[[Abood]]''<nowiki>'</nowiki>s core holding, the Court in ''[[Harris]]'' declined to overturn ''[[Abood]]'' outright. Instead, the Court focused on the peculiar status of the employees at issue in the case before it: home health care assistants subsidized by Medicaid. These "partial-public employees" were under the direction and control of their individual clients and not the state, had little direct interaction with state agencies or employees, and derived only limited benefits from the union.<ref><span id="ALDF_00007320">''Id.'' at 24-27.</span></ref> As a consequence, the Court concluded that ''[[Abood]]''<nowiki>'</nowiki>s rationale--the labor peace and free rider concerns--did not justify compelling dissenting home health care assistants to subsidize union speech.<ref><span id="ALDF_00007321">''Id.'' at 27.</span></ref>
In ''[[Janus v. American Federation of State, County, &amp; Municipal Employees, Council 31]]'', the Supreme Court formally overruled ''[[Abood]]'' and held "that public sector agency-shop arrangements violate the First Amendment."<ref><span id="ALDF_00007322">No. 16-1466, slip op. at 33 (U.S. June 2018).</span></ref> The Court rejected the governmental interests said to justify the compelled fees in ''[[Abood]]'', holding instead that labor peace can be achieved through less restrictive means and that the government does not have a "compelling interest" in avoiding free riders.<ref><span id="ALDF_00007323">''Id.'' at 12-13.</span></ref> The majority opinion criticized ''[[Abood]]''<nowiki>'</nowiki>s extension of ''[[Hanson]]'' and ''[[Street]]'', saying neither of those cases "gave careful consideration to the First Amendment" and arguing that ''[[Abood]]''<nowiki>'</nowiki>s reliance on those cases led it to apply an overly deferential standard to analyze public-sector agency fee arrangements.<ref><span id="ALDF_00007324">''Id.'' at 36.</span></ref> In the Court's view, granting too much deference to legislative judgments about the strength of asserted government interests or about whether the challenged action truly supports those interests "is inappropriate in deciding free speech issues."<ref><span id="ALDF_00007325">''Id.'' at 37.</span></ref> The Court also disagreed with additional justifications said to justify the agency-shop arrangements, notably holding that they could not be upheld under ''[[Pickering v. Board of Education]]'',<ref><span id="ALDF_00007326"> [http://cdn.loc.gov/service/ll/usrep/usrep391/usrep391563/usrep391563.pdf 391 U.S. 563 (1968)]. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Pickering Balancing Test for Government Employee Speech|First Amend.: Pickering Balancing Test for Government Employee Speech]].</span></ref> a case in which the Court acknowledged that public employers may sometimes place certain restrictions on employees' speech.<ref><span id="ALDF_00007327">''[[Janus]]'', slip op. at 26.</span></ref> Accordingly, after ''[[Janus]]'', "States and public-sector unions may no longer extract agency fees from nonconsenting employees."<ref><span id="ALDF_00007328">''Id.'' at 48.</span></ref>
Turning to government restrictions on union support, in ''[[Ysursa v. Pocatello Education Ass'n]]'',<ref><span id="ALDF_00006337"> [https://cite.case.law/us/555/353/?full_case=true&amp;format=html 555 U.S. 353 (2009)].</span></ref> the Court upheld an Idaho statute that prohibited payroll deductions for union political activities. Because the statute did not restrict political speech, but merely declined to subsidize it by providing for payroll deductions, the state did not abridge the union's First Amendment right and therefore could justify the ban merely by demonstrating a rational basis for it. The Court found that it was "justified by the State's interest in avoiding the reality or appearance of government favoritism or entanglement with partisan politics."<ref><span id="ALDF_00006338">555 U.S. at 358. The unions had argued that, even if the limitation was valid as applied at the state level, it violated their First Amendment rights when applied to local public employers. The Court held that a political subdivision, "created by the state for the better ordering of government, has no privileges or immunities under the federal constitution which it may invoke in opposition to the will of its creator." ''Id.'' at 1101, quoting ''[[Williams v. Mayor of Baltimore]]'', 289 U.S. 36, 40 (1933).</span></ref>
The Court has held that a labor relations body may 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.<ref><span id="ALDF_00006339">''[[Madison Sch. Dist. v. WERC]]'', 429 U.S. 167 (1977).</span></ref>
====Unconstitutional Conditions on Speech====
=====Overview of Unconstitutional Conditions Doctrine=====
The "unconstitutional conditions" doctrine reflects the Supreme Court's repeated pronouncement that the government "may not deny a benefit to a person on a basis that infringes his constitutionally protected interests."<ref><span id="ALDF_00015568">''[[Perry v. Sindermann]]'', 408 U.S. 593, 597 (1972) ("For at least a quarter-century, this Court has made clear that even though a person has no 'right' to a valuable governmental benefit and even though the government may deny him the benefit for any number of reasons, there are some reasons upon which the government may not rely.").</span></ref> Although the doctrine is not limited to the First Amendment context,<ref><span id="ALDF_00015569">''Cf.'', ''e.g.'', ''[[Nollan v. Cal. Coastal Comm'n]]'', 483 U.S. 825, 837 (1987) (conditioning a building permit's issuance upon an uncompensated, public right-of-access across the permit applicant's property violated the Fifth Amendment's Takings Clause); ''[[Donald v. Phila. &amp; Reading Coal &amp; Iron Co.]]'', 241 U.S. 329, 332 (1916) (holding that Wisconsin exceeded its authority by revoking out-of-state corporations' business licenses for removing lawsuits brought by Wisconsin citizens to federal court). ''See'' Richard A. Epstein, Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 5 (1988) (explaining that the doctrine is not "anchored to any single clause of the Constitution," and has been invoked in cases involving Congress's spending power, the states' police power, individual liberties, property rights, substantive due process, and equal protection).</span></ref> many of the leading Supreme Court cases on unconstitutional conditions have involved the freedom of speech. While the doctrine does not have a formal test,<ref><span id="ALDF_00015570">''See, e.g.'', Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1415, 1419 (1989) (positing that the unconstitutional conditions doctrine "serves a limited but crucial role" in that it "identifies a characteristic technique by which government appears not to, but in fact does burden [individual] liberties, triggering a demand for especially strong justification by the state"); Mitchell N. Berman, Coercion Without Baselines: Unconstitutional Conditions in Three Dimensions, 90 Geo. L.J. 1, 5-6, 10 (2001) (advancing a "unified theory" of unconstitutional conditions that "centers on coercion" but also accounts for "particularistic constitutional doctrine").</span></ref> the basic principle is that the government normally may not require a person, as a condition of receiving a public benefit, to relinquish a constitutional right--most notably, by speaking or refraining from speaking on a certain subject.<ref><span id="ALDF_00015571">''[[Perry]]'', 408 U.S. at 597. Some legal scholars have argued that this principle is rooted in substantive due process considerations. ''See, e.g.'', Zygmunt J.B. Plater &amp; Michael O'Loughlin, Semantic Hygiene for the Law of Regulatory Takings, Due Process, and Unconstitutional Conditions: Making Use of a Muddy Supreme Court Exactions Case, 89 U. Colo. L. Rev. 741, 745, 796 (2018) (situating the unconstitutional conditions inquiry for permit exactions under Fourteenth Amendment substantive due process rather than the Fifth Amendment's Takings Clause).</span></ref> How this principle applies in a particular legal challenge depends in part on the "benefit" offered by the government, which can take different forms, including public employment, a tax exemption, or government funding.<ref><span id="ALDF_00015572">Licenses and permits sometimes are considered a government benefit that is subject to the unconstitutional conditions doctrine. ''Compare'' ''[[Koontz v. St. Johns River Water Mgmt. Dist.]]'', 570 U.S. 595, 604 (2013) (discussing the "special application" of the unconstitutional conditions doctrine in the context of land-use permits), ''with'' ''[[Matal v. Tam]]'', No. 15-1293, slip op. at 19 (U.S. June 19, 2017) (plurality opinion) (concluding that unconstitutional conditions cases did not apply to a restriction on federal trademark registration). However, the state interests at issue in licensing may justify restrictions on protected speech and expression in some circumstances. ''See, e.g.'', ''[[California v. La Rue]]'', 409 U.S. 109, 118 (1972) (upholding a state regulation prohibiting nude dancing in establishments licensed by the state to serve alcohol).</span></ref>
=====Conditions of Public Employment=====
Some of the earliest unconstitutional conditions cases involving free speech arose in the public employment context. ''[[Perry v. Sindermann]]'', a 1972 case, involved a state college's decision not to renew the contract of a professor who had publicly criticized the college administration's policies.<ref><span id="ALDF_00015573">''[[Perry v. Sindermann]]'', 408 U.S. 593, 595 (1972).</span></ref> The Supreme Court held that, even though the professor did not have a "contractual or tenure right to re-employment," he could still contend that the college impermissibly retaliated against him for exercising his First Amendment rights.<ref><span id="ALDF_00015574">''Id.'' at 596-98 (reaffirming the holdings of ''[[Shelton v. Tucker]]'', 364 U.S. 479 (1960) and ''[[Keyishian v. Bd. of Regents]]'', 385 U.S. 589 (1967)).</span></ref> The Court reasoned that "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," thus allowing the government to "'produce a result which [it] could not command directly.'"<ref><span id="ALDF_00015575">''Id.'' at 597 (quoting ''[[Speiser v. Randall]]'', 357 U.S. 513, 526 (1958)). The Court remanded the case for consideration of whether the college, in fact, declined to renew the professor's contract on an "impermissible basis" and whether due process entitled the professor to a hearing on the grounds for the college's decision. ''Id.'' at 598, 603.</span></ref>
The Court reiterated its skepticism of "indirect" constraints on freedom of speech in its 1976 decision in ''[[Elrod v. Burns]]''. In ''[[Elrod]]'', the Court ruled unconstitutional a county sheriff's practice of firing non-policymaking employees solely because of their political party affiliation after a change in leadership.<ref><span id="ALDF_00015576">''[[Elrod v. Burns]]'', 427 U.S. 347, 353 (1976) (plurality opinion); ''see also'' ''id.'' at 374-75 (Stewart and Blackmun, JJ., concurring in the judgment) ("The single substantive question involved in this case is whether a nonpolicymaking, nonconfidential government employee can be discharged or threatened with discharge from a job that he is satisfactorily performing upon the sole ground of his political beliefs. I agree with the plurality that he cannot.").</span></ref> Writing for a plurality of the Court, Justice William Brennan reasoned that the "threat of dismissal" for failure to support "the favored political party" "unquestionably inhibits protected belief and association."<ref><span id="ALDF_00015577">''Id.'' at 359 (plurality opinion).</span></ref> Like the ''[[Perry]]'' Court, the ''[[Elrod]]'' plurality rejected the "notion that because there is no right to a government benefit, such as public employment, the benefit may be denied for any reason."<ref><span id="ALDF_00015578">''Id.'' at 360.</span></ref> Instead, it concluded that the government cannot use an indirect means (that is, the benefit of public employment) "to achieve what it may not command directly" (that is, support for a particular political party).<ref><span id="ALDF_00015579">''Id.'' at 361.</span></ref> While acknowledging the long history of patronage politics in America,<ref><span id="ALDF_00015580">''Id.'' at 362.</span></ref> the plurality evaluated the dismissal practice under the "exacting" scrutiny standard used to judge the validity of other "significant impairment[s]" of free speech rights.<ref><span id="ALDF_00015581">''Id.'' (''[[citing Buckley v. Valeo]]'', 424 U.S. 1, 64-65 (1976); ''[[NAACP v. Alabama]]'', 357 U.S. 449, 460-61 (1958)).</span></ref> If patronage dismissal was to "survive constitutional challenge," Justice William Brennan wrote, "it must further some vital government end by a means that is least restrictive of freedom of belief and association."<ref><span id="ALDF_00015582">''Id.'' at 363.</span></ref> The plurality rejected the argument that patronage dismissals further "government effectiveness and efficiency."<ref><span id="ALDF_00015583">''Id.'' at 364-66.</span></ref> While acknowledging that the practice might foster "political loyalty" or preserve aspects of the democratic process, the plurality concluded that the practice was not narrowly tailored to achieve these ends.<ref><span id="ALDF_00015584">''See'' ''id.'' at 367, 369.</span></ref>
Following ''[[Elrod]]'', the Court clarified in ''[[Branti v. Finkel]]'' that "the ultimate inquiry" in evaluating a patronage dismissal "is not whether the label 'policymaker' or 'confidential' fits a particular position."<ref><span id="ALDF_00015585">''[[Branti v. Finkel]]'', 445 U.S. 507, 518 (1980).</span></ref> Instead, "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."<ref><span id="ALDF_00015586">''Id.''</span></ref> In the case of an assistant public defender, the Court found it "manifest" that the attorney's continued employment could not "properly be conditioned upon his allegiance to the political party in control of the county government."<ref><span id="ALDF_00015587">''Id.'' at 519.</span></ref> The Court reasoned that the "primary, if not the only, responsibility of an assistant public defender is to represent individual citizens in controversy with the State"--a duty untethered to "partisan political interests."<ref><span id="ALDF_00015588">''Id.'' at 519.</span></ref>
The Court extended the reasoning of ''[[Elrod]]'' and ''[[Branti]]'' to other forms of political patronage decisions in ''[[Rutan v. Republican Party of Illinois]]''.<ref><span id="ALDF_00015589">''[[Rutan v. Republican Party of Ill.]]'', 497 U.S. 62, 79 (1990); ''see also'' ''[[O'Hare Truck Serv. v. City of Northlake]]'', 518 U.S. 712, 726 (1996) (extending "the protections of Elrod and Branti" to situations "where government retaliates against a contractor, or a regular provider of services, for the exercise of rights of political association or the expression of political allegiance").</span></ref> The ''[[Rutan]]'' Court held that a state governor's office could not constitutionally base "promotion, transfer, recall [after a layoff], and hiring decisions involving low-level public employees . . . on party affiliation and support."<ref><span id="ALDF_00015590">''[[Rutan]]'', 497 U.S. at 65.</span></ref> The Court concluded that, like patronage dismissals, these practices significantly infringed public employees' First Amendment rights.<ref><span id="ALDF_00015591">''Id.'' at 73.</span></ref> The Court then held that the political patronage practices were not "narrowly tailored to further vital governmental interests."<ref><span id="ALDF_00015592">''Id.'' at 74.</span></ref> Citing less speech-restrictive alternatives, the Court reasoned that a "government's interest in securing effective employees can be met by discharging, demoting, or transferring staff members whose work is deficient," and its "interest in securing employees who will loyally implement its policies can be adequately served by choosing or dismissing certain high-level employees on the basis of their political views."<ref><span id="ALDF_00015593">''Id.''; ''see also'' ''id.'' at 78 (finding no "vital" governmental interest in patronage hiring practices for the same reasons).</span></ref>
=====Conditions on Tax Exemptions=====
The Supreme Court has treated tax exemptions as a kind of government subsidy subject to the unconstitutional conditions doctrine. In an early unconstitutional conditions case, ''[[Speiser v. Randall]]'', the Supreme Court considered a California law requiring applicants for a veterans' property tax exemption to sign an oath that they "do not advocate the overthrow" of the federal or state government "by force or violence or other unlawful means."<ref><span id="ALDF_00015594">''[[Speiser v. Randall]]'', 357 U.S. 513, 515 (1958) (quoting Cal. Rev. &amp; Tax Code &#167; 32 (1953)).</span></ref> The Court stated that to "deny an exemption to claimants who engage in certain forms of speech is in effect to penalize them for such speech."<ref><span id="ALDF_00015595">''Id.'' at 518.</span></ref> In the Court's view, such a requirement would "coerc[e] the claimants to refrain from the proscribed speech."<ref><span id="ALDF_00015596">''Id.'' at 519. The ''[[Speiser]]'' Court did not hold that speech advocating the overthrow of the government is protected by the First Amendment. Rather, it held that the process of claiming the California exemption was unconstitutionally coercive because it would potentially chill protected speech. In the Court's view, the public would be wary of "the line separating the lawful and the unlawful," and would therefore "steer far wider of the unlawful zone." ''Id.'' at 522-29,</span></ref>
In another decision concerning tax exemptions, ''[[Regan v. Taxation with Representation of Washington]]'' (TWR), the Supreme Court held that the government need not subsidize private entities' speech to comply with the First Amendment.<ref><span id="ALDF_00015597">''[[Regan v. Taxation with Representation of Wash.]]'', 461 U.S. 540 (1983).</span></ref> Specifically, the ''[[TWR]]'' Court upheld the Internal Revenue Code's ban on "substantial lobbying" activities by tax-exempt Section 501(c)(3) organizations.<ref><span id="ALDF_00015598">''Id.'' at 551.</span></ref> In the statutory scheme before the Court, both Section 501(c)(3) "charitable" and Section 501(c)(4) "social welfare" organizations were exempt from federal taxation.<ref><span id="ALDF_00015599">''Id.'' at 554; ''see also'' [https://uscode.house.gov/view.xhtml?req=(title:26%20section:501%20edition:prelim)%20OR%20(granuleid:USC-prelim-title26-section501)&amp;f=treesort&amp;num=0&amp;edition=prelim 26 U.S.C. &#167; 501](c)(3)-(4).</span></ref> However, only donations to Section 501(c)(3)s were tax deductible.<ref><span id="ALDF_00015600">''[[Taxation with Representation of Wash.]]'', 461 U.S. at 554.</span></ref> The Supreme Court held that the "substantial lobbying" restriction on Section 501(c)(3) organizations was not an unconstitutional condition.<ref><span id="ALDF_00015601">''Id.'' at 551</span></ref> Unlike in ''[[Speiser]]'' where the taxpayer had to refrain from speaking in order to qualify for a tax exemption, the Court reasoned, TWR could engage in substantial lobbying activities, while still qualifying as a tax-exempt organization (albeit not one that could receive tax-deductible contributions).<ref><span id="ALDF_00015602">''Id.'' at 544.</span></ref> The Court concluded that the lobbying restriction merely reflected Congress's decision "not to subsidize" substantial lobbying.<ref><span id="ALDF_00015603">''Id.'' at 549-51; ''see also'' ''[[Cammarano v. United States]]'', 358 U.S. 498, 512-13 (1959) (holding that the exclusion of lobbying expenses from income tax deduction for ordinary and necessary business expenses did not violate the First Amendment).</span></ref>
=====Conditions on Federal Funding=====
From 1980 to 2020, much of the Court's jurisprudence on free-speech-related unconstitutional conditions developed in the context of conditions on federal funding, specifically federal grant programs.<ref><span id="ALDF_00015604">The Supreme Court has found unconstitutional funding conditions outside of the free-speech context as well. ''E.g.'', ''[[Nat'l Fed. of Indep. Bus. v. Sebelius]]'', 567 U.S. 519 (2012). ''See'' [[{{ROOTPAGENAME}}/Introduction#Federalism and the Constitution|Introduction: Federalism and the Constitution]]; [[{{ROOTPAGENAME}}/Art. I/Sec. 8/Clause 1 General Welfare#Overview of Spending Clause|Art. I, Sec. 8, Cl. 1: Overview of Spending Clause]].</span></ref> These cases proceeded from the principle, identified in ''[[Regan v. Taxation with Representation of Washington]]'',<ref><span id="ALDF_00015605"> [http://cdn.loc.gov/service/ll/usrep/usrep461/usrep461540/usrep461540.pdf 461 U.S. 540 (1983)].</span></ref> that the government is not required to subsidize speech with which it does not agree.
=====Restrictions on Editorializing=====
In ''[[FCC v. League of Women Voters of California]]'', the Court considered a condition prohibiting any "noncommercial educational broadcasting station" that received certain federal grants from "editorializing."<ref><span id="ALDF_00015606">''[[FCC v. League of Women Voters of Cal.]]'', 468 U.S. 364, 366 (1984) (internal quotation marks omitted) (quoting [https://uscode.house.gov/view.xhtml?req=(title:47%20section:399%20edition:prelim)%20OR%20(granuleid:USC-prelim-title47-section399)&amp;f=treesort&amp;num=0&amp;edition=prelim 47 U.S.C. &#167; 399]). The condition applied to recipients of grants from the Corporation for Public Broadcasting, a private, nonprofit corporation established by the Public Broadcasting Act of 1967 to, among other duties, "make grants to local broadcasting stations that would 'aid in financing local educational . . . programming costs of such stations.'" ''Id.'' at 369 (quoting [https://uscode.house.gov/view.xhtml?req=(title:47%20section:396%20edition:prelim)%20OR%20(granuleid:USC-prelim-title47-section396)&amp;f=treesort&amp;num=0&amp;edition=prelim 47 U.S.C. &#167; 396](g)(2)(C))).</span></ref> The Court rejected the Government's argument that this condition was a permissible exercise of Congress's spending power in the form of a decision not to "subsidize" editorializing by public broadcast stations.<ref><span id="ALDF_00015607">''Id.'' at 399.</span></ref> Unlike the organization in ''[[TWR]]'', the Court reasoned, a regulated station had no way "to segregate its activities according to the source of its funding," creating a complete bar to editorializing.<ref><span id="ALDF_00015608">''Id.'' at 400.</span></ref>
Finding ''[[TWR]]'' inapposite, the Court analyzed the condition as a restriction on a broadcaster's speech according to First Amendment standards.<ref><span id="ALDF_00015609">''Id.'' at 374-80.</span></ref> After affirming that Congress has more leeway to regulate broadcasting than other types of media such as newspapers,<ref><span id="ALDF_00015610">''See'' ''id.'' at 375-80 (reasoning that due to "spectrum scarcity" (that is, the limited number of broadcast frequencies) and other factors, "the broadcasting industry plainly operates under restraints not imposed upon other media," and stating that if "a similar ban on editorializing [were] applied to newspapers and magazines, we would not hesitate to strike it down as violative of the First Amendment").</span></ref> the Court stated that the condition against editorializing was constitutional only if it was "narrowly tailored to further a substantial governmental interest."<ref><span id="ALDF_00015611">''Id.'' at 380. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Media Regulation|First Amend.: Overview of Media Regulation]].</span></ref> After considering three different potential government interests, the Court ultimately concluded that the condition failed to meet this standard.<ref><span id="ALDF_00015612">''Id.'' at 398-99.</span></ref> First, the Court reasoned, the condition did not substantially advance an interest in protecting grantee-stations from "governmental coercion and interference" that might be associated with federal funding, nor was it narrowly tailored to further that asserted interest.<ref><span id="ALDF_00015613">''Id.'' at 390 (reasoning that several other aspects of the act "substantially reduce the risk of governmental interference with the editorial judgments of local stations without restricting those stations' ability to speak on matters of public concern"). In the Court's view, the condition also did "virtually nothing . . . to reduce the risk that public stations will serve solely as outlets for expression of narrow partisan views" from private factions. ''Id.'' at 397.</span></ref> Second, the Court recognized the government's interest in preventing viewer or listener confusion about the source of the editorializing, but concluded that a less-restrictive disclaimer requirement would have served this interest as effectively.<ref><span id="ALDF_00015614">''Id.'' at 395 (suggesting a disclaimer that "the editorial represents only the view of the station's management and does not in any way represent the views of the Federal Government or any of the station's other sources of funding").</span></ref> Third, the Court reasoned that the condition was not narrowly tailored to Congress's substantial interest in "ensuring adequate and balanced coverage of public issues"--an interest "already secured by a variety of other regulatory means that intrude far less drastically upon the 'journalistic freedom' of noncommercial broadcasters."<ref><span id="ALDF_00015615">''Id.'' at 380, 397-98 (quoting ''[[ Columbia Broad. Sys., Inc. v. Democratic Nat'l Comm.]]'', 412 U.S. 94, 110 (1973)).</span></ref>
=====Selective Funding Arrangements=====
Because the Constitution does not require the government to subsidize speech,<ref><span id="ALDF_00015616">''[[Regan v. Taxation with Representation of Wash.]]'', 461 U.S. 540 (1983); ''see, e.g.'', ''[[Lyng v. Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am.]]'', 485 U.S. 360 (1988) (holding that a condition barring households of striking workers from food stamp eligibility did "not infringe either the associational or expressive rights" of union members, reasoning that while "[e]xercising the right to strike inevitably risks economic hardship," the First Amendment does not compel the "Government to minimize that result by qualifying the striker for food stamps").</span></ref> the Court has held that the government may "selectively fund a program to encourage certain activities," including activities that involve speech, "without at the same time funding" other activities.<ref><span id="ALDF_00015617">''[[Rust v. Sullivan]]'', 500 U.S. 173, 193-95 (1991).</span></ref> The Court announced this rule in 1991 in ''[[Rust v. Sullivan]]'', a case involving funding for family-planning services under Title X of the Public Health Service Act.<ref><span id="ALDF_00015618">''Id.'' at 178.</span></ref> That act provides that no funds appropriated under Title X "shall be used in programs where abortion is a method of family planning."<ref><span id="ALDF_00015619">''Id.'' (quoting [https://uscode.house.gov/view.xhtml?req=(title:42%20section:300a%20edition:prelim)%20OR%20(granuleid:USC-prelim-title42-section300a)&amp;f=treesort&amp;num=0&amp;edition=prelim 42 U.S.C. &#167; 300a]-6).</span></ref> For the Supreme Court, there was "no question" that this restriction was constitutional.<ref><span id="ALDF_00015620">''Id.'' at 192.</span></ref> The Court held that the government made a permissible choice to "fund one activity to the exclusion of the other."<ref><span id="ALDF_00015621">''Id.'' at 193.</span></ref>
The challenged regulations implementing this statutory restriction posed a closer question, but the Court ultimately upheld the regulatory conditions as well. One provision barred a Title X project from providing "counseling concerning the use of abortion as a method of family planning" or "referral[s] for abortion as a method of family planning."<ref><span id="ALDF_00015622">''Id.'' at 179 (quoting 42 C.F.R. &#167; 59.8(a)(1) (1989)).</span></ref> The Court rejected the argument that the prohibition on abortion counseling and referrals discriminated on the basis of viewpoint.<ref><span id="ALDF_00015623">''[[Rust v. Sullivan]]'', 500 U.S. 173, 194 (1991).</span></ref> The Court reasoned that the government was not "suppressing a dangerous idea"; it was prohibiting "a project grantee or its employees from engaging in activities outside of the project's scope"; the program was "designed" to "encourage family planning," not fund "prenatal care."<ref><span id="ALDF_00015624">''Id.'' at 193-94 (internal quotation marks and citation omitted).</span></ref> The Court concluded that "when the Government appropriates public funds to establish a program[,] it is entitled to define the limits of that program."<ref><span id="ALDF_00015625">''Id.'' at 194.</span></ref>
In addition, the Court upheld provisions in the regulations prohibiting Title X projects from "engaging in activities that 'encourage, promote or advocate abortion as a method of family planning'" and requiring Title X projects to be "'physically and financially separate' from prohibited abortion activities."<ref><span id="ALDF_00015626">''Id.'' at 180, 196 (quoting 42 C.F.R. &#167;&#167; 59.9, 59.10(a)).</span></ref> In the Court's view, the regulations did not "force the Title X grantee to give up abortion-related speech; they merely require[d] that the grantee keep such activities separate and distinct from Title X activities," thereby ensuring that public funds are "spent for the purposes for which they were authorized."<ref><span id="ALDF_00015627">''Id.'' at 196</span></ref> In other words, the regulations governed "the scope of the Title X ''project''<nowiki>'</nowiki>s activities," leaving "the grantee unfettered in its other activities."<ref><span id="ALDF_00015628">''Id.''</span></ref>
Building on ''[[Rust]]'', the Court in ''[[National Endowment for the Arts v. Finley]]'' suggested that including some subjective criteria in competitive grantmaking does not necessarily amount to impermissible viewpoint discrimination.<ref><span id="ALDF_00015629">''[[Nat'l Endowment for the Arts v. Finley]]'', 524 U.S. 569, 587-88 (1998).</span></ref> There, the Court upheld a federal statute requiring the NEA, in awarding grants, to "tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public."<ref><span id="ALDF_00015630">''Id.'' at 572 (quoting [https://uscode.house.gov/view.xhtml?req=(title:20%20section:954%20edition:prelim)%20OR%20(granuleid:USC-prelim-title20-section954)&amp;f=treesort&amp;num=0&amp;edition=prelim 20 U.S.C. &#167; 954](d)(1)).</span></ref> The Court concluded that this "advisory language" imposed "no categorical requirement" to reject applicants whose works did not meet the "decency and respect" provision.<ref><span id="ALDF_00015631">''Id.'' at 581.</span></ref> Thus, the Court held, the provision did not "introduce considerations that, in practice, would effectively preclude or punish the expression of particular views."<ref><span id="ALDF_00015632">''Id.'' at 583.</span></ref> Instead, the Court concluded, the provision "merely adds some imprecise considerations to an already subjective selection process."<ref><span id="ALDF_00015633">''Id.'' at 589; ''see also'' ''id.'' at 585 ("Any content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding. The NEA has limited resources and it must deny the majority of the grant applications that it receives . . . . The agency may decide to fund particular projects for a wide variety of reasons. . . .").</span></ref> As such, it did not violate the First Amendment on its face.<ref><span id="ALDF_00015634">''Id.'' at 590. The Court did not foreclose an "as-applied" challenge if, for instance, "the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints." ''Id.'' at 587.</span></ref>
=====Government's Message Versus Private Speakers=====
The Court has cautioned that "Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise."<ref><span id="ALDF_00015635">''[[Legal Servs. Corp. v. Velazquez]]'', 531 U.S. 533, 547 (2001).</span></ref> In ''[[Legal Services Corp. v. Velazquez]]'', the Court struck down a condition on federal grants to local organizations providing free legal services to indigent clients.<ref><span id="ALDF_00015636">''Id.'' at 536.</span></ref> The condition prohibited grantees from representing clients in cases which "involve an effort to amend or otherwise challenge existing law" regarding "a Federal or State welfare system."<ref><span id="ALDF_00015637">''Id.'' at 538 (quoting Omnibus Consolidated Rescissions and Appropriations Act of 1996, &#167; 504, 110 Stat. 1321-53).</span></ref> As interpreted by the government, the condition required lawyers working for a grantee both to decline a representation that would involve such arguments and to withdraw from a representation when such arguments "became apparent after representation was well underway."<ref><span id="ALDF_00015638">''Id.'' at 539.</span></ref>
The Court held that the condition was unconstitutional.<ref><span id="ALDF_00015639">''Id.'' at 549.</span></ref> The Court distinguished ''[[Rust]]'', explaining that in the circumstances presented there, the government "used private speakers to transmit information pertaining to its own program"<ref><span id="ALDF_00015640">''Id.'' at 541 ("As we said in ''[[Rosenberger]]'', 'when the government disburses public funds to private entities to convey a governmental message, it may take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted by the grantee.'" (''[[quoting Rosenberger v. Rector &amp; Visitors of Univ. of Va.]]'', 515 U.S. 819, 833 (1995))).</span></ref> In other words, the government was the speaker in ''[[Rust]]'' through its program.<ref><span id="ALDF_00015641">The ''[[Velazquez]]'' Court acknowledged that the ''[[Rust]]'' Court did not explicitly rely on the government speech rationale, but noted that later Supreme Court cases "explained ''[[Rust]]'' on this understanding." ''Id.'' ''See'' [[{{ROOTPAGENAME}}/First Amend.#Government Speech and Government as Speaker|First Amend.: Government Speech and Government as Speaker]].</span></ref> In contrast, the Court reasoned, the federal program in ''[[Velazquez]]'' "was designed to facilitate private speech, not to promote a governmental message."<ref><span id="ALDF_00015642">''[[Legal Servs. Corp.]]'', 531 U.S. at 542.</span></ref> Congress funded the program so that grantees could "provide attorneys to represent the interests of indigent clients."<ref><span id="ALDF_00015643">''Id.''</span></ref> In addition, a lawyer working for a grantee speaks on her client's behalf; she is "not the government's speaker."<ref><span id="ALDF_00015644">''Id.''</span></ref> The condition, the Court reasoned, could prohibit lawyers from presenting "all the reasonable and well-grounded arguments necessary for proper resolution" of welfare cases, thereby "distort[ing]" the "usual functioning" of the legal system to the detriment of individual clients and the courts deciding those cases.<ref><span id="ALDF_00015645">''Id.'' at 543-54.</span></ref> The Court observed that while Congress "was not required to fund the whole range of legal representations or relationships," it could not use funding of private speech to "suppress[ ]. . . ideas thought inimical to the Government's own interest."<ref><span id="ALDF_00015646">''Id.'' at 548-49.</span></ref>
=====Public Entities and Private Access=====
In 2003, the Court upheld a speech-related condition on funding for a governmental entity. The case, ''[[United States v. American Library Association]]'' (ALA), concerned two federal programs that provided rebates and grants to help public libraries provide internet access for patrons.<ref><span id="ALDF_00015647">''[[United States v. Am. Libr. Ass'n]]'', 539 U.S. 194, 199 (2003) (plurality opinion).</span></ref> A condition on both programs required recipient libraries to install filtering software to block access to pornographic sites and other material deemed harmful to minors.<ref><span id="ALDF_00015648">''Id.'' at 201 (citing [https://uscode.house.gov/view.xhtml?req=(title:20%20section:9134%20edition:prelim)%20OR%20(granuleid:USC-prelim-title20-section9134)&amp;f=treesort&amp;num=0&amp;edition=prelim 20 U.S.C. &#167;&#167; 9134](f)(1)(A)(i), (B)(i) (2001) and [https://uscode.house.gov/view.xhtml?req=(title:47%20section:254%20edition:prelim)%20OR%20(granuleid:USC-prelim-title47-section254)&amp;f=treesort&amp;num=0&amp;edition=prelim 47 U.S.C. &#167;&#167; 254](h)(6)(B)(i), (C)(i) (2001)).</span></ref> The ALA argued that this condition violated libraries' First Amendment right to provide constitutionally protected speech to the public.<ref><span id="ALDF_00015649">''Id.'' at 210.</span></ref>
The Court rejected ALA's unconstitutional conditions argument without resolving whether public libraries, as governmental entities, have First Amendment rights.<ref><span id="ALDF_00015650">''Id.'' at 210-11. Although only four Justices joined the main opinion, two additional Justices concurred in the Court's judgment. ''Id.'' at 214-215 (Kennedy, J.); ''id.'' at 215-20 (Breyer, J.). The Court also rejected the ALA's argument that the condition exceeded Congress's spending power by requiring public libraries to violate their patrons' First Amendment rights. ''Id.'' at 202-08, 214 (plurality opinion).</span></ref> A plurality of the Court reasoned that, as in ''[[Rust]]'', Congress was defining the limits of the programs it was funding--programs designed to help libraries "fulfill their traditional role of obtaining material of requisite and appropriate quality for educational and informational purposes."<ref><span id="ALDF_00015651">''Id.'' at 211 (plurality opinion). The plurality rejected an analogy to ''[[Velazquez]]'', reasoning that unlike lawyers for indigent clients, public libraries "have no comparable role that pits them against the Government" such that restrictions on their speech threaten to "distort" libraries' usual functions. ''Id.'' at 213.</span></ref> More specifically, the plurality explained, the required filtering software blocks online materials that libraries traditionally would have excluded from their off-line collections.<ref><span id="ALDF_00015652">''Id.'' at 212.</span></ref> Echoing ''[[TWR]]'' and ''[[Rust]]'', the plurality also concluded that the condition did not "penalize" a recipient's decision to "provide [its] patrons with unfiltered Internet access"; it "simply reflect[ed] Congress's decision not to subsidize" such access.<ref><span id="ALDF_00015653">''Id.'' at 199.</span></ref>
=====Conditions Exceeding the Scope of the Program=====
Ten years after ''[[United States v. American Library Association]]'', in ''[[Agency for International Development v. Alliance for Open Society International]]'', the Court considered a condition requiring recipients of federal funding for global HIV/AIDs programs to "have a policy explicitly opposing prostitution and sex trafficking."<ref><span id="ALDF_00015654"> [https://cite.case.law/us/570/205/?full_case=true&amp;format=html 570 U.S. 205, 208 (2013)] (quoting [https://uscode.house.gov/view.xhtml?req=(title:22%20section:7631%20edition:prelim)%20OR%20(granuleid:USC-prelim-title22-section7631)&amp;f=treesort&amp;num=0&amp;edition=prelim 22 U.S.C. &#167; 7631](f)).</span></ref> A group of funding recipients--domestic organizations with programs outside the United States--challenged this policy requirement on free speech grounds, arguing that it would require them to limit even their privately funded activities.<ref><span id="ALDF_00015655">''Id.''</span></ref> During the course of the litigation, the federal government issued guidelines allowing funding recipients to work with affiliate organizations that did not have the specified policy so long as the recipients "retain 'objective integrity and independence from any affiliated organization.'"<ref><span id="ALDF_00015656">''Id.'' at 211 (quoting 45 C.F.R. &#167; 89.3).</span></ref>
The Court acknowledged that the government could not adopt the policy requirement "as a direct regulation of speech."<ref><span id="ALDF_00015657">''Id.'' at 213.</span></ref> Because the policy requirement was a funding condition,<ref><span id="ALDF_00015658">''See'' ''id.'' at 214 (explaining that if a party objects to a funding condition, its usual "recourse is to decline the funds," even if the condition affects the party's First Amendment rights, but that in some situations, "a funding condition can result in an unconstitutional burden on First Amendment rights").</span></ref> however, the Court considered whether it "define[d] the limits of the government spending program" or sought "to leverage funding to regulate speech outside the contours of the program itself."<ref><span id="ALDF_00015659">''Id.'' at 214-15.</span></ref> For a majority of the Court, the policy requirement clearly fell "on the unconstitutional side of [that] line."<ref><span id="ALDF_00015660">''[[Agency for Int'l Dev.v. All. for Open Soc'y Int'l]]'', 570 U.S. 205, 217 (2013).</span></ref> The Court reasoned that "the condition by its very nature affects 'protected conduct outside the scope of the federally funded program'" because it requires recipients to "adopt--as their own--the Government's view on an issue of public concern."<ref><span id="ALDF_00015661">''Id.'' at 218.</span></ref> The government's guidelines about affiliation with noncompliant entities did not "save" the condition because they required the recipient to either distance itself from its affiliate and their shared message, or clearly identify with its affiliate while espousing the government's message "only at the price of evident hypocrisy."<ref><span id="ALDF_00015662">''Id.'' at 219. In 2020, the Supreme Court upheld the same policy condition as applied to the plaintiffs' foreign affiliates, holding that the First Amendment did not protect separately incorporated, foreign organizations operating abroad. ''[[Alliance for Open Soc'y Int'l]]'', No. 19-177, slip op. at 1-7 (U.S. June 29, 2020). The Court explained that the plaintiffs, while domestic organizations, could not "export their own First Amendment rights to shield foreign organizations from Congress's funding conditions." ''Id.'' at 6-7.</span></ref>
The "distinction drawn in these cases--between conditions that define the federal program and those that reach outside it--is not always self-evident."<ref><span id="ALDF_00015663">''Id.'' at 217.</span></ref> Nevertheless, it appears to be the line that the Supreme Court has drawn in analyzing funding conditions that affect a recipient's speech--that is, at least for restrictions that the government could not impose directly.<ref><span id="ALDF_00015664">''[[Rumsfeld v. Forum for Acad. &amp; Inst'l Rts.]]'', 547 U.S. 47, 59-60 (2006).</span></ref>
=====Requirements That Can Be Imposed Directly=====
In a 2006 decision, the Supreme Court held that a funding condition that affects speech is not an unconstitutional condition "if it could be constitutionally imposed directly."<ref><span id="ALDF_00015665">''[[Rumsfeld v. Forum for Acad. &amp; Inst'l Rights]]'', 547 U.S. 47, 59-60 (2006).</span></ref> In ''[[Rumsfeld v. Forum for Academic &amp; Institutional Rights]]'', the Court considered a law that required a federal department to withhold certain funds from any higher education institution that had "a policy or practice" of giving military recruiters less favorable access to its campus and students than non-military recruiters.<ref><span id="ALDF_00015666">''Id.'' at 52-55 (quoting [https://uscode.house.gov/view.xhtml?req=(title:10%20section:983%20edition:prelim)%20OR%20(granuleid:USC-prelim-title10-section983)&amp;f=treesort&amp;num=0&amp;edition=prelim 10 U.S.C. &#167; 983](b))).</span></ref> The requirement comported with the First Amendment, the Court held, because it primarily regulated conduct and the government's interest in supporting military recruiting was sufficient to justify any incidental burdens on expression.<ref><span id="ALDF_00015667">''Id.'' at 60-70 (reasoning that while "recruiting assistance provided by the schools often includes elements of speech," the burden on such speech was incidental to its regulation of conduct in the form of recruiting practices, and concluding in the alternative that the law met the intermediate scrutiny standard applicable to regulations of expressive conduct).</span></ref> Because Congress could directly require higher education institutions to provide equal access to military recruiters, it could also take the indirect measure of conditioning funding on compliance with the equal-access requirement.<ref><span id="ALDF_00015668">''Id.'' at 59-60.</span></ref>
====Symbolic Speech====
=====Overview of Symbolic Speech=====
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" or "symbolic speech," which includes activities such as picketing and marching, distribution of leaflets and pamphlets, door-to-door solicitation, flag desecration, and draft-card burnings.<ref><span id="ALDF_00001316">''See'', ''e.g.'', ''[[City of Erie v. Pap's A.M.]]'', 529 U.S. 277, 289 (2000) (plurality opinion). The concept of expressive conduct has also come up in the context of government speech. ''E.g.'', ''[[Walker v. Tex. Div., Sons of Confederate Veterans, Inc.]]'', 576 U.S. 200, 216 (2015). For a discussion of these cases, see [[{{ROOTPAGENAME}}/First Amend.#Government Speech and Government as Speaker|First Amend.: Government Speech and Government as Speaker]].</span></ref> Sit-ins and stand-ins may effectively express a protest about certain things.<ref><span id="ALDF_00007240">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 Abe 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) (Harlan, J., 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. Cmty. 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).</span></ref>
The Supreme Court has said that conduct will be sufficiently "communicative . . . to bring the First Amendment into play" if there is an "intent to convey a particularized message, and . . . the likelihood was great that the message would be understood by those who viewed it."<ref><span id="ALDF_00001333">''[[Texas v. Johnson]]'', 491 U.S. 397, 404 (1989) (quoting ''[[Spence v. Washington]]'', 418 U.S. 405, 410-11 (1974)) (internal quotation mark omitted). </span></ref> Further, the conduct must itself be "inherently" expressive--merely "combining speech and conduct" is not sufficient to "transform conduct into 'speech.'"<ref><span id="ALDF_00001334">''[[Rumsfeld v. Forum for Acad. &amp; Inst. Rts.]]'', 547 U.S. 47, 67 (2006) (holding that conduct was not "inherently expressive" where it was "expressive only because the [litigants] accompanied their conduct with speech explaining it"). ''Cf.'' ''[[United States v. O'Brien]]'', 391 U.S. 367, 376 (1968) (saying conduct may be protected when "'speech' and 'nonspeech' elements are combined in the same course of conduct").</span></ref> Expressive conduct is evaluated under a "less stringent" constitutional standard than pure speech and thus more subject to regulation and restriction.<ref><span id="ALDF_00001417">''[[Johnson]]'', 491 U.S. at 403. </span></ref> Some expressive conduct may be forbidden altogether, when "a sufficiently important governmental interest in regulating the nonspeech element" of the activity justifies "incidental limitations" on the protected expression.<ref><span id="ALDF_00001335">''[[O'Brien]]'', 391 U.S. at 376.</span></ref> The relevant test is an intermediate scrutiny standard that was announced in ''United States v. O'Brien'': "a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest."<ref><span id="ALDF_00001336">''Id.'' at 377.</span></ref> This intermediate standard is related to the idea that even regulations of pure speech may sometimes be justified if they regulate only the time, place, or manner of the speech--that is, focusing on non-content elements of the speech.<ref><span id="ALDF_00001337">''[[Turner Broad. Sys. v. FCC]]'', 512 U.S. 622, 662 (1994) (equating the ''[[O'Brien]]'' standard with the intermediate scrutiny standard applicable to content-neutral restrictions); ''see also'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Categorical Approach to Restricting Speech|First Amend.: Overview of Categorical Approach to Restricting Speech]]; [[{{ROOTPAGENAME}}/First Amend.#The Public Forum|First Amend.: The Public Forum]].</span></ref> If speech is oral, it may be noisy enough to be disturbing,<ref><span id="ALDF_00007235">''E.g.'', ''[[Saia v. New York]]'', 334 U.S. 558 (1948); ''[[Kovacs v. Cooper]]'', 336 U.S. 77 (1949).</span></ref> and, if it is written, it may be litter;<ref><span id="ALDF_00007236">''E.g.'', ''[[Schneider v. Town of Irvington]]'', 308 U.S. 147 (1939).</span></ref> in either case, the noise or litter aspects of the speech may be regulable.<ref><span id="ALDF_00007237">''Cf.'' ''[[Cohen v. California]]'', 403 U.S. 15 (1971).</span></ref>
''United States v. O'Brien''<ref><span id="ALDF_00001338">391 U.S. 367 (1968)</span></ref> affirmed a conviction and upheld a congressional prohibition against destruction of draft registration certificates; O'Brien had publicly burned his draft card. 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 necessary to serve the interest, the Court upheld the statute. Subsequently, 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.<ref><span id="ALDF_00001339">''[[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 upheld as applied to attendance at base open house by an individual previously convicted of destroying military property).</span></ref>
=====Leaflets and Handbills=====
In ''[[Lovell v. City of Griffin]]'',<ref><span id="ALDF_00007205"> [http://cdn.loc.gov/service/ll/usrep/usrep303/usrep303444/usrep303444.pdf 303 U.S. 444 (1938)].</span></ref> the Supreme 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," which "have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest."<ref><span id="ALDF_00007206">303 U.S. at 452.</span></ref> 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,<ref><span id="ALDF_00007207">303 U.S. at 451.</span></ref> upheld total prohibitions and were reversed in ''Schneider v. State''.<ref><span id="ALDF_00007208">''[[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).</span></ref> The Court held that "[m]ere legislative preferences" for keeping "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."<ref><span id="ALDF_00001340">308 U.S. at 161, 162.</span></ref> In ''[[Talley v. California]]'',<ref><span id="ALDF_00007209"> [http://cdn.loc.gov/service/ll/usrep/usrep362/usrep362060/usrep362060.pdf 362 U.S. 60 (1960)].</span></ref> the Court struck down an ordinance that banned all handbills that did not carry the name and address of the author, printer, and sponsor. The Court noted that "[a]nonymous pamphlets, leaflets, brochures and even books have played an important role in the progress of mankind," allowing criticism of "oppressive practices and laws either anonymously or not at all."<ref><span id="ALDF_00001341">''Id.'' at 64.</span></ref> Imposing identification requirements "might deter perfectly peaceful discussions of public matters of importance."<ref><span id="ALDF_00007210">''Id.'' at 65.</span></ref> 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 "the ordinance is in no manner so limited," saying the Court would not, therefore, "pass on the validity of an ordinance limited to these or any other supposed evils."<ref><span id="ALDF_00007211">''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).</span></ref>
''[[Talley]]''<nowiki>'</nowiki>s anonymity rationale was strengthened in ''[[McIntyre v. Ohio Elections Comm'n]]'',<ref><span id="ALDF_00007212"> [http://cdn.loc.gov/service/ll/usrep/usrep514/usrep514334/usrep514334.pdf 514 U.S. 334 (1995)].</span></ref> invalidating Ohio's prohibition on the distribution of anonymous campaign literature. There is a "respected tradition of anonymity in the advocacy of political causes," the Court noted, and neither of the interests asserted by Ohio justified the limitation. The Court held that the state's interest in informing the electorate was "plainly insufficient," and, although the more weighty interest in preventing fraud in the electoral process might be accomplished by a direct prohibition, it could not be accomplished indirectly by an indiscriminate ban on a whole category of speech.<ref><span id="ALDF_00001342">''Id.'' at 348-49.</span></ref> Ohio could not apply the prohibition, therefore, to punish anonymous distribution of pamphlets opposing a referendum on school taxes.<ref><span id="ALDF_00007213">In ''[[Buckley v. Am. Const. L. Found.]]'', 525 U.S. 182 (1999), the Court struck down a Colorado statute requiring initiative-petition circulators to wear identification badges. It found that "the restraint on speech in this case is more severe than was the restraint in ''[[McIntyre]]''" because "[p]etition circulation is a less fleeting encounter, for the circulator must endeavor to persuade electors to sign the petition. . . . [T]he badge requirement compels personal name identification at the precise moment when the circulator's interest in anonymity is greatest." ''Id.'' at 199. In ''[[Watchtower Bible &amp; Tract Soc'y v. Village of Stratton]]'', 536 U.S. 150, 166 (2002), concern for the right to anonymity was one reason that the Court struck down an ordinance that made it a misdemeanor to engage in door-to-door advocacy without first registering with the mayor and receiving a permit.</span></ref>
The handbilling cases were distinguished in ''[[City Council v. Taxpayers for Vincent]]'',<ref><span id="ALDF_00007214"> [http://cdn.loc.gov/service/ll/usrep/usrep466/usrep466789/usrep466789.pdf 466 U.S. 789 (1984)].</span></ref> in which the Court held that a city may prohibit altogether the use of utility poles for posting of signs. Although 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 utility pole signs "it is the medium of expression itself" that creates the visual blight. Hence, the city's prohibition, unlike a prohibition on distributing handbills, was narrowly tailored to curtail no more speech than necessary to accomplish the city's legitimate purpose.<ref><span id="ALDF_00007215">Justice William 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.</span></ref> Ten years later, however, the Court unanimously invalidated a town's broad ban on residential signs that permitted only residential identification signs, "for sale" signs, and signs warning of safety hazards.<ref><span id="ALDF_00007216">''[[City of Ladue v. Gilleo]]'', 512 U.S. 43 (1994).</span></ref> Prohibiting homeowners from displaying political, religious, or personal messages on their own property entirely foreclosed "a venerable means of communication that is unique and important," and that is "an unusually cheap form of communication" without viable alternatives for many residents.<ref><span id="ALDF_00007217">''Id.'' at 54, 57.</span></ref> The ban was thus reminiscent of total bans on leafleting, distribution of literature, and door-to-door solicitation that the Court had struck down in the 1930s and 1940s. The prohibition in ''[[Vincent]]'' was distinguished as not removing a "uniquely valuable or important mode of communication," and as not impairing citizens' ability to communicate.<ref><span id="ALDF_00007218">''Id.'' at 54. The city's legitimate interest in reducing visual clutter could be addressed by "more temperate" measures, the Court suggested. ''Id.'' at 58.</span></ref>
=====Flags as a Case Study in Symbolic Speech=====
Very little expression is "mere" speech. Conduct may have a communicative content, intended to express a point of view. Expressive conduct may consist of flying a particular flag as a symbol<ref><span id="ALDF_00007238">''[[Stromberg v. California]]'', 283 U.S. 359 (1931).</span></ref> or in refusing to salute a flag as a symbol.<ref><span id="ALDF_00007239">''[[W. Va. State Bd. of Educ. v. Barnette]]'', 319 U.S. 624 (1943).</span></ref>
In one case, the Supreme Court concluded that "the flag salute is a form of utterance," explaining that symbolism is communication, and "[t]he use of an emblem or flag to symbolize some system, idea, institution, or personality is a short cut from mind to mind."<ref><span id="ALDF_00007241">''Id.'' at 632.</span></ref> 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.
The Court divided when it had to deal with one of the more popular forms of "symbolic" conduct of the late 1960s and early 1970s--flag burning and other forms of flag desecration. Thus, in ''[[Street v. New York]]'',<ref><span id="ALDF_00007244"> [http://cdn.loc.gov/service/ll/usrep/usrep394/usrep394576/usrep394576.pdf 394 U.S. 576 (1969)].</span></ref> 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.<ref><span id="ALDF_00007245">394 U.S. at 591-93. In ''[[Radich v. New York]]'', 401 U.S. 531 (1971), ''aff'g'', [https://cite.case.law/ny2d/26/114/?full_case=true&amp;format=html 26 N.Y.2d 114 (1970)], 257 N.E.2d 30 (1970), an equally divided Court, Justice William O. Douglas not participating, sustained a flag desecration conviction of one who displayed sculptures in a gallery, using the flag in apparently sexually bizarre ways to register a social protest. Defendant subsequently obtained his release on habeas corpus, ''[[United States ex rel. Radich v. Criminal Ct.]]'', 459 F.2d 745 (2d Cir. 1972), ''cert. denied'', 409 U.S. 115 (1973).</span></ref>
A few years later the Court reversed two other flag desecration convictions, one on due process/vagueness grounds, the other under the First Amendment. In ''[[Smith v. Goguen]]'',<ref><span id="ALDF_00007246"> [http://cdn.loc.gov/service/ll/usrep/usrep415/usrep415566/usrep415566.pdf 415 U.S. 566 (1974)].</span></ref> 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."<ref><span id="ALDF_00007247">''Id.'' at 578.</span></ref>
The First Amendment was the basis for reversal in ''[[Spence v. Washington]]'',<ref><span id="ALDF_00007248"> [http://cdn.loc.gov/service/ll/usrep/usrep418/usrep418405/usrep418405.pdf 418 U.S. 405 (1974)].</span></ref> which set aside a conviction under a statute punishing the display of a United States flag to which something is attached or superimposed. The defendant 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, and the factual context and environment in which it was undertaken, the Court held it to be protected. The context considered by the Court included the fact that the flag was privately owned, that it was displayed on private property, and that there was no danger of breach of the peace. The Court also emphasized that the act 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 left unclear whether that interest extended beyond protecting the physical integrity of the flag.<ref><span id="ALDF_00007249">''Id.'' at 408-11, 412-13. Subsequently, the Court vacated, over the dissents of Chief Justice Warren Burger and Justices Byron White, Harry Blackmun, and William 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, however, dismissed, "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).</span></ref>
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]]''<ref><span id="ALDF_00007250"> [http://cdn.loc.gov/service/ll/usrep/usrep491/usrep491397/usrep491397.pdf 491 U.S. 397 (1989)].</span></ref> the Court rejected a state desecration statute designed to protect the flag's symbolic value, and then in ''[[United States v. Eichman]]''<ref><span id="ALDF_00007251"> [http://cdn.loc.gov/service/ll/usrep/usrep496/usrep496310/usrep496310.pdf 496 U.S. 310 (1990)].</span></ref> rejected a more limited federal statute purporting to protect only the flag's physical integrity. Both cases were decided by 5-4 votes, with Justice William Brennan writing the Court's opinions.<ref><span id="ALDF_00007252">In each case Justice William Brennan's opinion for the Court was joined by Justices Thurgood Marshall, Harry Blackmun, Antonin Scalia, and Anthony Kennedy, and in each case Chief Justice William Rehnquist and Justices White, John Paul Stevens, and Sandra Day O'Connor dissented. In ''[[Johnson]]'' the Chief Justice's dissent was joined by Justices Byron White and Sandra Day O'Connor, and Justice John Paul Stevens dissented separately. In ''[[Eichman]]'' Justice John Paul Stevens wrote the only dissenting opinion, to which the other dissenters subscribed.</span></ref> 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]]'', discussed in an earlier essay, was inapplicable.<ref><span id="ALDF_00001343">491 U.S. at 407-08. For discussion of the ''[[O'Brien]]'' intermediate scrutiny standard, see [[{{ROOTPAGENAME}}/First Amend.#Overview of Symbolic Speech|First Amend.: Overview of Symbolic Speech]].</span></ref> Applying strict scrutiny instead, 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 open the question whether the Court would uphold a "content-neutral" statute protecting the physical integrity of the flag.
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."<ref><span id="ALDF_00007253">The Flag Protection Act of 1989, Pub. L. No. 101-131, 103 Stat. 777, ''invalidated by'' ''[[United States v. Eichman]]'', 496 U.S. 310 (1990).</span></ref> The law was designed to be content-neutral and to protect the "physical integrity" of the flag.<ref><span id="ALDF_00007254">''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").</span></ref> Nonetheless, the 1990 decision in ''United States v. Eichman'' overturned convictions of flag burners, as the Court found that the law suffered from "the same fundamental flaw" as the Texas law in ''[[Johnson]]''.<ref><span id="ALDF_00001344">496 U.S. at 317-19.</span></ref> 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,"<ref><span id="ALDF_00007255">''Id.'' at 316.</span></ref> 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."<ref><span id="ALDF_00007256">''Id.'' at 317.</span></ref> As in ''[[Johnson]]'', such a law could not withstand strict scrutiny analysis.
=====Public Issue Picketing and Parading=====
In its early cases, the Supreme Court held that picketing and parading were forms of expression entitled to some First Amendment protection.<ref><span id="ALDF_00007158">''[[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).</span></ref> Those early cases did not, however, explicate the difference in application of First Amendment principles that 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.<ref><span id="ALDF_00007159">''[[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).</span></ref> A series of other cases concerned the permissible characteristics of permit systems in which parades and meetings were licensed, and expanded the procedural guarantees that must accompany a permissible licensing system.<ref><span id="ALDF_00007160">''See, e.g.'', ''[[Shuttlesworth v. City of Birmingham]]'', 394 U.S. 147 (1969); ''[[National Socialist Party v. Village of Skokie]]'', 432 U.S. 43 (1977); ''[[Carroll v. President &amp; Commr's of Princess Anne]]'', 393 U.S. 175 (1968).</span></ref> In ''Hughes v. Superior Court'', however, the Supreme Court upheld an injunction against picketers asking a grocery store to adopt a quota-hiring system for Black employees, affirming the state court's ruling that picketing to coerce the adoption of racially discriminatory hiring was contrary to state public policy.<ref><span id="ALDF_00007161">''[[Hughes v. Superior Court]]'', 339 U.S. 460 (1950).</span></ref>
A series of civil rights picketing and parading cases led the Court to formulate standards seemingly more protective of expressive activity. The process began with ''[[Edwards v. South Carolina]]'',<ref><span id="ALDF_00007162"> [http://cdn.loc.gov/service/ll/usrep/usrep372/usrep372229/usrep372229.pdf 372 U.S. 229 (1963)].</span></ref> in which the Court reversed a breach of the peace conviction of several Black protesters for their refusal to disperse as ordered by police. The statute was so vague, the Court concluded, that the demonstrators had been convicted simply because they peaceably expressed unpopular views. Describing the demonstration upon the grounds of the legislative building in South Carolina's capital, Justice Potter 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."<ref><span id="ALDF_00007163">''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).</span></ref> In subsequent cases, however, the Court rejected the idea that the First Amendment "afford[s] the same kind of freedom to those who would communicate ideas by conduct such as patrolling, marching, and picketing on streets and highways, as . . . to those who communicate ideas by pure speech."<ref><span id="ALDF_00007164">''[[Cox v. Louisiana]]'', 379 U.S. 536, 555 (1965). Nonetheless, in this opinion, the Court concluded that a state breach-of-the-peace law granting city officials "completely uncontrolled discretion" to permit parades or demonstrations was unconstitutional. ''Id.'' at 557-58. The Court described the facts as "strikingly similar to those present in Edwards v. South Carolina." ''Id.'' at 544-45.</span></ref> The Court emphasized that "certain forms of conduct mixed with speech may be regulated or prohibited," and further concluded that picketing and parading may be regulated under a sufficiently narrowly drawn statute "even though [such conduct is] intertwined with expression and association."<ref><span id="ALDF_00007165">''Id.'' at 563. The Court ruled the state law at issue in this opinion sufficiently narrowly drawn, as it targeted picketing near a courthouse, with the intent of interfering with the administration of justice. ''Id.'' at 562, 564.</span></ref>
The Court must determine, of course, whether the regulation is aimed primarily at conduct, or whether instead the aim is to regulate the content of speech. In a series of decisions, the Court refused to permit restrictions on parades and demonstrations, and reversed convictions for breach of the peace and similar offenses, when, in the Court's view, opponents of the demonstrators' messages had created the disturbance.<ref><span id="ALDF_00007166">''[[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 denied'', 436 U.S. 953 (1978), ''cert. denied'', 439 U.S. 916 (1978).</span></ref> Subsequently, however, the Court upheld a ban on residential picketing in ''[[Frisby v. Shultz]]'',<ref><span id="ALDF_00007167"> [http://cdn.loc.gov/service/ll/usrep/usrep487/usrep487474/usrep487474.pdf 487 U.S. 474 (1988)].</span></ref> 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 targeted a single residence, and it is unclear whether the Court would uphold a broader restriction on residential picketing.<ref><span id="ALDF_00007168">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).</span></ref>
In 1982's ''[[NAACP v. Claiborne Hardware Co.]]'',<ref><span id="ALDF_00007170"> [http://cdn.loc.gov/service/ll/usrep/usrep458/usrep458886/usrep458886.pdf 458 U.S. 886 (1982)].</span></ref> the Justices confronted a case, that, like ''[[Hughes v. Superior Court]]'',<ref><span id="ALDF_00007169"> [http://cdn.loc.gov/service/ll/usrep/usrep339/usrep339460/usrep339460.pdf 339 U.S. 460 (1950)].</span></ref> involved a state court injunction on picketing, although this one also involved a damage award. The case arose in the context of a protest against racial conditions by Black citizens of Claiborne County, Mississippi. Listing demands that included desegregation of public facilities, hiring Black policemen, hiring more Black employees by local stores, and ending verbal abuse by police, the local chapter of the National Association for the Advancement of Colored People, Inc. (NAACP) 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 Black people 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 Black people who did not observe the boycott.
The state Supreme Court imposed joint and several liability 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 Supreme Court observed that the goals of the boycotters were legal and that most of their means were constitutionally protected; although violence was not protected, its existence alone did not deprive the other activities of First Amendment coverage, particularly where there was no evidence that the boycott organizers authorized, ratified, or even had specific knowledge of the violence. Thus, speeches and nonviolent picketing, both to inform the merchants of grievances and to encourage others to join the boycott, were protected activities, and association for those purposes was also protected.<ref><span id="ALDF_00007172">''[[NAACP v. Claiborne Hardware Co.]]'', 458 U.S. 886, 907-08 (1982).</span></ref> The Court ruled that the activity was protected even though nonparticipants had been urged to join by threats of social ostracism: "[s]peech does not lose its protected character . . . simply because it may embarrass others or coerce them into action."<ref><span id="ALDF_00007174">''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) (Stevens, J., concurring) (labor picketing that coerces or "signals" others to engage in activity that violates valid labor policy, rather than attempting to engage reason may be prohibited). 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 patrons of the businesses, the Court responded: "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." 458 U.S. at 925.</span></ref> The boycott had a disruptive effect upon local economic conditions and resulted in loss of business for the merchants, but in the Court's view, these consequences did not justify suppression of the boycott. Government may regulate certain economic activities having an incidental effect upon speech (for example, labor organizing or business conspiracies to restrain competition),<ref><span id="ALDF_00007175">''See, e.g.'', ''[[FTC v. Superior Ct. Trial Laws. 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).</span></ref> 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.<ref><span id="ALDF_00007176">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]]'', which permits a regulation "if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." 458 U.S. at 912, n.47, quoting ''[[O'Brien]]'', 391 U.S. 367, 376-77 (1968) (footnotes omitted).</span></ref>
The critical issue for the lower court, however, had been the occurrence of violent acts. The Supreme Court first affirmed that the "First Amendment does not protect violence" or prevent a state "from imposing tort liability for business losses that are caused by violence and by threats of violence."<ref><span id="ALDF_00001345">458 U.S. at 916.</span></ref> Nonetheless, the Court stressed that the First Amendment demands precision of regulation "[w]hen such conduct occurs in the context of constitutionally protected activity," limiting "the grounds that may give rise to damages liability and . . . the persons who may be held accountable for those damages."<ref><span id="ALDF_00007177">''Id.'' at 916-17.</span></ref> 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.<ref><span id="ALDF_00007178">''Id.'' at 917-18.</span></ref> Thus, the state courts had to compute, upon proof by the merchants, what damages had been the result of violence, 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.<ref><span id="ALDF_00007179">''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).</span></ref> Because most of the acts of violence had occurred 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.<ref><span id="ALDF_00007180">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.</span></ref> As to the field secretary of the local NAACP, the Court refused to permit imposition of damages based upon speeches that could be read as advocating violence, because they did not meet the standard for speech likely to incite imminent lawless action.<ref><span id="ALDF_00007181">''Id.'' at 926-29. The field secretary's "emotionally charged rhetoric . . . did not transcend the bounds of protected speech set forth in ''[[Brandenburg v. Ohio]]'', 395 U.S. 444 (1969)."</span></ref> 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."<ref><span id="ALDF_00007182">458 U.S. at 931. In ordinary business cases, the rule of liability of an entity for actions of its agents is broader. ''E.g.'', ''[[Am. 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. Vicarious Liability and the Right of Association: NAACP v. Claiborne Hardware Co., 96 Harv. L. Rev. 171, 174-76 (1982).</span></ref>
''[[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.<ref><span id="ALDF_00007183">"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.</span></ref>
More recently, disputes arising from anti-abortion protests outside abortion clinics have occasioned another look at principles distinguishing lawful public demonstrations from proscribable conduct. In ''[[Madsen v. Women's Health Center]]'',<ref><span id="ALDF_00007184"> [http://cdn.loc.gov/service/ll/usrep/usrep512/usrep512753/usrep512753.pdf 512 U.S. 753 (1994)].</span></ref> the Court refined principles governing issuance of "content-neutral" injunctions that restrict expressive activity.<ref><span id="ALDF_00007185">The Court rejected the argument that the injunction was necessarily content-based or viewpoint-based because it applied only to anti-abortion protesters. The Court stated: "An injunction by its very nature applies only to a particular group (or individuals) . . . . It does so, however, because of the group's past actions in the context of a specific dispute between real parties." There had been no similarly disruptive demonstrations by pro-abortion factions at the abortion clinic. ''Id.'' at 762. For more discussion of the standards for content-based and content-neutral regulations in public forums, see [[{{ROOTPAGENAME}}/First Amend.#The Public Forum|First Amend.: The Public Forum]].</span></ref> The appropriate test, the Court stated, is "whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant governmental interest."<ref><span id="ALDF_00007186">''Id.'' at 765.</span></ref> Regular time, place, and manner analysis (requiring that regulation be narrowly tailored to serve a significant governmental interest) "is not sufficiently rigorous," the Court explained, "because injunctions create greater risk of censorship and discriminatory application, and because of the established principle that an injunction should be no broader than necessary to achieve its desired goals."<ref><span id="ALDF_00007187">''Id.'' at 765.</span></ref> Applying its new test, the Court upheld an injunction prohibiting protesters from congregating, picketing, patrolling, demonstrating, or entering any portion of the public right-of-way within thirty-six feet of an abortion clinic--after concluding that the injunction targeted this particular group of protesters because of their past actions, rather than because of the content or viewpoint of their speech. The Court also upheld the injunction's noise restrictions designed to ensure the health and well-being of clinic patients. Other aspects of the injunction, however, did not pass the test. The Court believed inclusion of private property within the thirty-six-foot buffer was not adequately justified, nor was inclusion in the noise restriction of a ban on "images observable" by clinic patients. A ban on physically approaching any person within 300 feet of the clinic unless that person indicated a desire to communicate burdened more speech than necessary, in the Court's view. Also, a ban on demonstrating within 300 feet of the residences of clinic staff was not sufficiently justified, as the Court said the restriction covered a much larger zone than an earlier residential picketing ban that the Court had upheld.<ref><span id="ALDF_00007188">Referring to ''[[Frisby v. Schultz]]'', 487 U.S. 474 (1988).</span></ref>
In ''[[Schenck v. Pro-Choice Network of Western New York]]'',<ref><span id="ALDF_00007189"> [http://cdn.loc.gov/service/ll/usrep/usrep519/usrep519357/usrep519357.pdf 519 U.S. 357 (1997)].</span></ref> the Court applied the ''[[Madsen]]'' test to another injunction that placed restrictions on demonstrating outside an abortion clinic. The Court upheld the portion of the injunction that banned "demonstrating within fifteen feet from either side or edge of, or in front of, doorways or doorway entrances, parking lot entrances, driveways and driveway entrances of such facilities"--what the Court called "fixed buffer zones."<ref><span id="ALDF_00007190">''Id.'' at 366 n.3.</span></ref> It struck down a prohibition against demonstrating "within fifteen feet of any person or vehicles seeking access to or leaving such facilities"--what it called "floating buffer zones."<ref><span id="ALDF_00007191">''Id.''</span></ref> The Court cited "public safety and order"<ref><span id="ALDF_00007192">''Id.'' at 376.</span></ref> in upholding the fixed buffer zones, but it found that the floating buffer zones "burden[ed] more speech than is necessary to serve the relevant governmental interests"<ref><span id="ALDF_00007193">''Id.'' at 377.</span></ref> because they made it "quite difficult for a protester who wishes to engage in peaceful expressive activity to know how to remain in compliance with the injunction."<ref><span id="ALDF_00007194">''Id.'' at 378.</span></ref> The Court also upheld a "provision, specifying that once sidewalk counselors who had entered the buffer zones were required to 'cease and desist' their counseling, they had to retreat 15 feet from the people they had been counseling and had to remain outside the boundaries of the buffer zones."<ref><span id="ALDF_00007195">''Id.'' at 367.</span></ref>
In ''[[Hill v. Colorado]]'',<ref><span id="ALDF_00007196"> [http://cdn.loc.gov/service/ll/usrep/usrep530/usrep530703/usrep530703.pdf 530 U.S. 703 (2000)].</span></ref> the Court upheld a Colorado statute that made it unlawful, within 100 feet of the entrance to any health care facility, to "knowingly approach" within eight feet of another person, without that person's consent, "for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person."<ref><span id="ALDF_00007197">''Id.'' at 707.</span></ref> This decision is notable because it upheld a statute, and not, as in ''[[Madsen]]'' and ''[[Schenck]]'', merely an injunction directed to particular parties. The Court found the statute to be a content-neutral time, place, and manner regulation of speech that "reflect[ed] an acceptable balance between the constitutionally protected rights of law-abiding speakers and the interests of unwilling listeners."<ref><span id="ALDF_00007198">''Id.'' at 714.</span></ref> The restrictions were content-neutral because they regulated only the places where some speech may occur, and because they applied equally to all demonstrators, regardless of viewpoint. Although the restrictions did not apply to all speech, the Court deemed the "kind of cursory examination" that might be required to distinguish casual conversation from protest, education, or counseling not "problematic," noting that it often would not be necessary to know the exact content of speech to determine whether a person's course of conduct was covered by the law.<ref><span id="ALDF_00007199">''Id.'' at 722.</span></ref> The Court further held that the law was narrowly tailored to achieve the state's interests, saying that the eight-foot restriction did not significantly impair the ability to convey messages by signs, and ordinarily allowed speakers to come within a normal conversational distance of their targets. Because the statute allowed the speaker to remain in one place, persons who wished to hand out leaflets could position themselves beside entrances near the path of oncoming pedestrians, and consequently were not deprived of the opportunity to get the attention of persons entering a clinic.
In ''[[McCullen v. Coakley]]'', the Court applied the same content-neutral analysis as that in ''[[Hill]]'', but nonetheless struck down a statutory thirty-five-foot buffer zone at entrances and driveways of abortion facilities.<ref><span id="ALDF_00007200">573 U.S. 464, 478-485 (2014).</span></ref> The Court concluded that the buffer zone was not narrowly tailored to serve governmental interests in maintaining public safety and preserving access to reproductive healthcare facilities, the concerns claimed by Massachusetts to underlie the law.<ref><span id="ALDF_00007201">''Id.'' at 492-94.</span></ref> The opinion cited several alternatives to the buffer zone that would not curtail the use of public sidewalks as traditional public forums for speech, nor significantly burden the ability of those wishing to provide "sidewalk counseling" to women approaching abortion clinics. Specifically, the Court held that, to preserve First Amendment rights, targeted measures, such as injunctions, enforcement of anti-harassment ordinances, and use of general crowd control authority, as needed, are preferable to broad, prophylactic measures.<ref><span id="ALDF_00007202">''Id.''</span></ref>
Different types of issues were presented by ''[[Hurley v. Irish-American Gay Group]]'',<ref><span id="ALDF_00007203"> [http://cdn.loc.gov/service/ll/usrep/usrep515/usrep515557/usrep515557.pdf 515 U.S. 557 (1995)].</span></ref> in which the Court held that a state's public accommodations law could not be applied to compel private organizers of a St. Patrick's Day parade to accept in the parade a unit that would proclaim a message that the organizers did not wish to promote. Each participating unit affects the message conveyed by the parade organizers, the Court observed, and application of the public accommodations law to the content of the organizers' message contravened the "fundamental rule . . . that a speaker has the autonomy to choose the content of his own message."<ref><span id="ALDF_00007204">''Id.''. at 573.</span></ref>
=====Labor Union Protests and Marches=====
The Supreme Court has suggested that "public-issue picketing" rests "on the highest rung of the hierarchy of First Amendment values," while ''labor'' picketing might be treated somewhat differently.<ref><span id="ALDF_00001346">Carey v. Brown, 447 U.S. 455, 466-67 (1980).</span></ref> Though the public issue cases are "logically relevant" to labor picketing, the cases dealing with application of economic pressures by labor unions are set apart by different "economic and social interests."<ref><span id="ALDF_00007147">''[[Niemotko v. Maryland]]'', 340 U.S. 268, 276 (1951).</span></ref>
It was in a labor case that the Court first held picketing to be entitled to First Amendment protection.<ref><span id="ALDF_00007148">''[[Thornhill v. Alabama]]'', 310 U.S. 88 (1940). Picketing as an aspect of communication was recognized in ''[[Senn v. Tile Layers Union]]'', 301 U.S. 468 (1937).</span></ref> Striking down a flat prohibition on picketing with intent 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."<ref><span id="ALDF_00007149">310 U.S. at 102.</span></ref> The Court further reasoned that "the 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."<ref><span id="ALDF_00007150">''Id.'' at 104. ''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.</span></ref>
The Court soon recognized several caveats to this protection, saying, for example, that peaceful picketing may be enjoined if it is associated with violence and intimidation.<ref><span id="ALDF_00007151">''[[Milk Wagon Drivers Union v. Meadowmoor Dairies]]'', 312 U.S. 287 (1941).</span></ref> Although initially the Court continued to find picketing protected in the absence of violence,<ref><span id="ALDF_00007152">''[[Bakery &amp; Pastry Drivers Local v. Wohl]]'', 315 U.S. 769 (1942); ''[[Carpenters &amp; Joiners Union v. Ritter's Cafe]]'', 315 U.S. 722 (1942); ''[[Cafeteria Emps. Union v. Angelos]]'', 320 U.S. 293 (1943).</span></ref> it soon decided a series of cases recognizing a potentially far-reaching exception: injunctions against peaceful picketing in the course of a labor controversy may be enjoined when such picketing is counter to valid state policies in a domain open to state regulation.<ref><span id="ALDF_00007153">''[[Giboney v. Empire Storage &amp; Ice Co.]]'', 336 U.S. 490 (1949) (upholding on basis of state policy forbidding agreements in restraint of trade an injunction against picketing to persuade business owner not to deal with non-union peddlers); ''[[Int'l Bhd. of Teamsters v. Hanke]]'', 339 U.S. 470 (1950) (upholding injunction against union picketing protesting non-union proprietor's failure to maintain union shop card and observe union's limitation on weekend business hours); ''[[Building Serv. Emp. Int'l Union v. Gazzam]]'', 339 U.S. 532 (1950) (injunction against picketing to persuade innkeeper to sign contract that would force employees to join union in violation of state policy that employees' choice not be coerced); ''[[Local 10, United Ass'n of Journeymen Plumbers v. Graham]]'', 345 U.S. 192 (1953) (injunction against picketing in conflict with state's right-to-work statute).</span></ref> The apparent culmination of this course of decision was ''[[International Brotherhood of Teamsters v. Vogt]]'', in which Justice Felix 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."<ref><span id="ALDF_00007155">''[[Int'l Bhd. of Teamsters v. Vogt]]'', 354 U.S. 284, 293 (1957). ''See also'' ''[[Am. Radio Ass'n v. Mobile S.S. Ass'n]]'', 419 U.S. 215, 228-32 (1974); ''[[NLRB v. Retail Store Emps.]]'', 447 U.S. 607 (1980); ''[[Int's Longshoremens' Ass'n v. Allied Int'l]]'', 456 U.S. 212, 226-27 (1982).</span></ref> Although the Court has not disavowed this broad language, the ''[[Vogt]]'' exception has apparently not swallowed the entire ''[[Thornhill]]'' rule.<ref><span id="ALDF_00007156">The dissenters in ''[[Vogt]]'' asserted that the Court had "come full circle" from ''[[Thornhill]]''. 354 U.S. at 295 (Douglas, J., joined by Warren, C.J., and Black, J.).</span></ref> The Court has indicated that "a broad ban against peaceful picketing might collide with the guarantees of the First Amendment."<ref><span id="ALDF_00007157">''[[NLRB v. Fruit &amp; Vegetable Packers]]'', 377 U.S. 58, 63 (1964) (requiring--and finding absent in NLRA--"clearest indication" that Congress intended to prohibit all consumer picketing at secondary establishments). ''See also'' ''[[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).</span></ref>
=====Solicitation=====
In ''[[Martin v. City of Struthers]]'', the Supreme Court struck down an ordinance forbidding solicitors or distributors of literature from knocking on residential doors in a community, the asserted aims of the ordinance being to protect privacy, to protect the sleep of many who worked night shifts, and to protect against burglars posing as canvassers. The 5-4 majority concluded that "[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."<ref><span id="ALDF_00007224">''[[Martin v. City of Struthers]]'', 319 U.S. 141, 147 (1943).</span></ref>
Later, although 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" with a more "narrowly drawn ordinance, that does not vest in municipal officers the undefined power to determine what messages residents will hear."<ref><span id="ALDF_00007225">''[[Hynes v. Mayor of Oradell]]'', 425 U.S. 610, 616-17 (1976).</span></ref> However, an ordinance that limited solicitation of contributions door-to-door by charitable organizations to those that 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.<ref><span id="ALDF_00007226">''[[Village of Schaumburg v. Citizens for a Better Env't]]'', 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 the 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).</span></ref> The Court rejected a privacy rationale, as just as much intrusion was likely by permitted as by non-permitted solicitors. A rationale of prevention of fraud was also unavailing, as the Court did not believe 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.
The Court similarly invalidated laws regulating solicitation in ''[[Secretary of State v. Joseph H. Munson Co.]]'',<ref><span id="ALDF_00007227"> [http://cdn.loc.gov/service/ll/usrep/usrep467/usrep467947/usrep467947.pdf 467 U.S. 947 (1984)].</span></ref> and ''[[Riley v. National Federation of the Blind]]''.<ref><span id="ALDF_00007228"> [http://cdn.loc.gov/service/ll/usrep/usrep487/usrep487781/usrep487781.pdf 487 U.S. 781 (1988)].</span></ref> In ''[[Munson]]'', the Court invalidated an overbroad 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. In ''[[Riley]]'', the Court invalidated a North Carolina fee structure containing even more flexibility.<ref><span id="ALDF_00007229">A fee of up to twenty percent of collected receipts was deemed reasonable, a fee of between 20% and 35% was permissible if the solicitation involved advocacy or the dissemination of information, and a fee in excess of thirty-five percent 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.''Id.''</span></ref> The Court saw "no nexus between the percentage of funds retained by the fundraiser and the likelihood that the solicitation is fraudulent," and expressed concern about the law placing the burden on the fundraiser to show that a fee structure is reasonable.<ref><span id="ALDF_00007230">''Id.'' at 793.</span></ref> 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.<ref><span id="ALDF_00007231">''Id.'' at 800. North Carolina's requirement for licensing of professional fundraisers was also invalidated in ''[[Riley]]'', ''id.'' at 801-02. In ''[[Illinois ex rel. Madigan v. Telemarketing Assocs.]]'', 538 U.S. 600 (2003), the Court held unanimously that the First Amendment does not prevent a state from bringing fraud actions against charitable solicitors who falsely represent that a "significant" amount of each dollar donated would be used for charitable purposes.</span></ref>
In ''[[Watchtower Bible &amp; Tract Soc'y v. Village of Stratton]]'', the Court struck down an ordinance that made it a misdemeanor to engage in door-to-door advocacy--religious, political, or commercial--without first registering with the mayor and receiving a permit.<ref><span id="ALDF_00007232"> [http://cdn.loc.gov/service/ll/usrep/usrep536/usrep536150/usrep536150.pdf 536 U.S. 150 (2002)].</span></ref> "It is offensive to the very notion of a free society," the Court wrote,"that a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so."<ref><span id="ALDF_00007233">''Id.'' at 165-66.</span></ref> The Court ruled that the ordinance violated the right to anonymity, burdened the freedom of speech of those who hold "religious or patriotic views" that prevent them from applying for a license, and effectively banned "a significant amount of spontaneous speech" that might be engaged in on a holiday or weekend when it was not possible to obtain a permit.<ref><span id="ALDF_00007234">''Id.'' at 167.</span></ref>


===Freedom of Association===
===Freedom of Association===
 
:<big>'''[[{{ROOTPAGENAME}}/First Amend./Freedom of Association|Main Article]]'''</big>
====Overview of Freedom of Association====
====Overview of Freedom of Association====


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As with other individual rights protected by the Constitution, the freedom of association is not absolute.<ref><span id="ALDF_00019530">''[[U.S. Civ. Serv. Comm'n v. Nat'l Ass'n of Letter Carriers]]'', 413 U.S. 548, 567 (1973).</span></ref> First, the government may prohibit "agreements to engage in illegal conduct," even though such agreements "undoubtedly possess some element of association."<ref><span id="ALDF_00019531">''[[Brown v. Hartlage]]'', 456 U.S. 45, 55 (1982); ''see also'' ''[[Madsen v. Women's Health Ctr.]]'', 512 U.S. 753, 776 (1994) (stating that the freedom of association "does not extend to joining with others for the purpose of depriving third parties of their lawful rights").</span></ref> Second, forms of association that are neither "intimate" nor "expressive" within the meaning of First Amendment case law may not receive constitutional protection.<ref><span id="ALDF_00019532">For example, in 1989 the Court ruled that a state could license dance halls that were open only to teenagers. ''[[Dallas v. Stanglin]]'', 490 U.S. 19, 28 (1989). Excluding adults did not infringe the teenagers' right to associate with persons outside of their age group, the Court held, declaring that there is no "generalized right of 'social association' that includes chance encounters in dance halls." ''Id.'' at 25.</span></ref> Third, as noted above, even when a law implicates protected association, the government's interests may outweigh the burdens on association in some circumstances.<ref><span id="ALDF_00019533">''E.g.'', ''[[Holder v. Humanitarian L. Project]]'', 561 U.S. 1, 40 (2010).</span></ref> Finally, although individuals have a right to organize as a group to express their views, there is no corresponding constitutional obligation on the part of the government to listen to the group's concerns.<ref><span id="ALDF_00019534">''See'' ''[[Minn. State Bd. for Cmty. Colls. v. Knight]]'', 465 U.S. 271, 288 (1984) (recognizing the "government's freedom to choose its advisers" in upholding a state law requiring public universities to "meet and confer" with the faculty union rather than individual faculty members); ''[[Smith v. Ark. State Highway Emps.]]'', 441 U.S. 463, 465 (1979) (per curiam) (stating that although the First Amendment protects a public employee's right to "associate and speak freely and petition openly," it "does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it"); ''[[Babbitt v. UFW Nat'l Union]]'', 442 U.S. 289, 313 (1979) (holding that a state "was not constitutionally obliged to provide a procedure pursuant to which agricultural employees, through a chosen representative, might compel their employers to negotiate").</span></ref>
As with other individual rights protected by the Constitution, the freedom of association is not absolute.<ref><span id="ALDF_00019530">''[[U.S. Civ. Serv. Comm'n v. Nat'l Ass'n of Letter Carriers]]'', 413 U.S. 548, 567 (1973).</span></ref> First, the government may prohibit "agreements to engage in illegal conduct," even though such agreements "undoubtedly possess some element of association."<ref><span id="ALDF_00019531">''[[Brown v. Hartlage]]'', 456 U.S. 45, 55 (1982); ''see also'' ''[[Madsen v. Women's Health Ctr.]]'', 512 U.S. 753, 776 (1994) (stating that the freedom of association "does not extend to joining with others for the purpose of depriving third parties of their lawful rights").</span></ref> Second, forms of association that are neither "intimate" nor "expressive" within the meaning of First Amendment case law may not receive constitutional protection.<ref><span id="ALDF_00019532">For example, in 1989 the Court ruled that a state could license dance halls that were open only to teenagers. ''[[Dallas v. Stanglin]]'', 490 U.S. 19, 28 (1989). Excluding adults did not infringe the teenagers' right to associate with persons outside of their age group, the Court held, declaring that there is no "generalized right of 'social association' that includes chance encounters in dance halls." ''Id.'' at 25.</span></ref> Third, as noted above, even when a law implicates protected association, the government's interests may outweigh the burdens on association in some circumstances.<ref><span id="ALDF_00019533">''E.g.'', ''[[Holder v. Humanitarian L. Project]]'', 561 U.S. 1, 40 (2010).</span></ref> Finally, although individuals have a right to organize as a group to express their views, there is no corresponding constitutional obligation on the part of the government to listen to the group's concerns.<ref><span id="ALDF_00019534">''See'' ''[[Minn. State Bd. for Cmty. Colls. v. Knight]]'', 465 U.S. 271, 288 (1984) (recognizing the "government's freedom to choose its advisers" in upholding a state law requiring public universities to "meet and confer" with the faculty union rather than individual faculty members); ''[[Smith v. Ark. State Highway Emps.]]'', 441 U.S. 463, 465 (1979) (per curiam) (stating that although the First Amendment protects a public employee's right to "associate and speak freely and petition openly," it "does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it"); ''[[Babbitt v. UFW Nat'l Union]]'', 442 U.S. 289, 313 (1979) (holding that a state "was not constitutionally obliged to provide a procedure pursuant to which agricultural employees, through a chosen representative, might compel their employers to negotiate").</span></ref>
====Restrictions on Expressive Association====
=====Barriers to Group Advocacy and Legal Action=====
The Supreme Court has recognized that joining together to advance political and civil rights is "expressive and associational conduct at the core of the First Amendment's protective ambit."ALDF_00019535 Accordingly, when the government regulates in ways that restrict or burden such association, it typically must show that its law or action is narrowly drawn to achieve a compelling governmental interest.ALDF_00019536 In the Supreme Court's words, "[b]ecause First Amendment freedoms need breathing space to survive, government may regulate in the area only with narrow specificity."ALDF_00019537
A state generally has the authority to regulate professions that it licenses, including attorneys.ALDF_00019538 That authority may apply even to professionals' speech, especially in a commercial context. For example, a state may restrict "in-person solicitation by lawyers who seek to communicate purely commercial offers of legal assistance to lay persons" in certain places, such as an accident scene, where consumers are particularly vulnerable to undue influence.ALDF_00019539
When professionals are engaged in "political expression and association," however, a state "must regulate with significantly greater precision."ALDF_00019540 In particular, the freedom of association includes a "basic right to group legal action" and protects "collective activity undertaken to obtain meaningful access to the courts."ALDF_00019541 This protection extends to the activities of lawyers and legal organizations themselves in some circumstances.ALDF_00019542 Thus, a state may not bar organizations that use "litigation as a vehicle for effective political expression and association" from offering legal services to prospective clients based on "some potential" for violation of ethical standards.ALDF_00019543
The 1963 case ''[[NAACP v. Button]]'' established that the First Amendment protects "cooperative, organizational activity" to pursue "legitimate political ends" through litigation.ALDF_00019544 The case involved a Virginia law banning "the improper solicitation of any legal or professional business," which the Virginia courts had construed to ban certain outreach activities of the National Association for the Advancement of Colored People, Inc. (NAACP) related to the provision of legal assistance.ALDF_00019545 The Supreme Court began its analysis by clarifying that "abstract 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."ALDF_00019546 Although the NAACP "is not a conventional political party," the Court explained, its litigation activity enables "the distinctive contribution of a minority group to the ideas and beliefs of our society."ALDF_00019547 "For such a group," the Court continued, "association for litigation may be the most effective form of political association."ALDF_00019548 The Court therefore held that Virginia's broadly construed law violated the First Amendment "by unduly inhibiting protected freedoms of expression and association."ALDF_00019549
Following the ''[[Button]]'' decision, the Court held in three cases that labor unions enjoyed First Amendment protection in assisting their members to pursue legal remedies. In the first case, the union advised members to seek legal advice before settling injury claims and recommended particular attorneys;ALDF_00019550 in the second, the union retained attorneys on a salaried basis to represent members;ALDF_00019551 in the third, the union recommended certain attorneys whose fee would not exceed a specified percentage of the recovery.ALDF_00019552 In each case, the Court concluded that the government had an insufficient regulatory interest to prohibit the legal services at issue because the government relied on a remote possibility of harm to prospective clients resulting from unethical practices.ALDF_00019553
Because not all forms of advocacy are protected under the First Amendment, not all associations for the purpose of advocacy are protected to the same degree. In ''[[Scales v. United States]]'', the Court upheld the "membership clause" of the Smith Act, which, under the Court's interpretation, made it a felony for an individual to be an active member of an organization that advocates the overthrow of the U.S. government by force or violence if the individual shares that specific intent.ALDF_00019554 The defendant in ''[[Scales]]'' was convicted based on his membership in the Communist Party of the United States.ALDF_00019555 That group's advocacy, the Court explained, "is not constitutionally protected speech."ALDF_00019556 The Court reasoned that membership in a group engaged in "forbidden advocacy" should receive no greater First Amendment protection than the proscribable speech itself.ALDF_00019557
Additionally, although access to the courts was a key consideration in ''[[Button]]'', not all laws limiting such access burden the freedom of association. For example, the Court upheld a statutory limit on attorney's fees for certain veterans' benefits claims, reasoning that the limitation did not infringe the freedom of association because it applied "across-the-board to individuals and organizations alike."ALDF_00019558 In another case, the Court concluded that waiving the court fees of indigent individuals, but not organizations, did not violate the First Amendment.ALDF_00019559 Because an organization could qualify for the fee waiver only if its members were individually indigent anyway, the Court reasoned, litigating as an organization would not materially assist their expressive capacity.ALDF_00019560 Thus, it appears that barriers to litigation are unlikely to impede the freedom of association if they have similar effects on individuals and organizations.
=====Election Laws=====
Even though states have broad authority to administer their elections, the Court has recognized the potential for state election laws to burden the associational rights of voters, candidates, and political parties.<ref><span id="ALDF_00019561">''See'' ''[[Kusper v. Pontikes]]'', 414 U.S. 51, 57 (1973) ("[I]n exercising their powers of supervision over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections.").</span></ref> Whether an election law "governs the registration and qualifications of voters, the selection and eligibility of candidates, or the voting process itself," it "inevitably affects" an "individual's right to vote and his right to associate with others for political ends."<ref><span id="ALDF_00019562">''[[Anderson v. Celebrezze]]'', 460 U.S. 780, 788 (1983).</span></ref> In evaluating whether such a law comports with the First Amendment, the Supreme Court has balanced the interests of the state in administering its elections with the burdens of the challenged requirement on individual rights.<ref><span id="ALDF_00019563">''See'' ''[[Timmons v. Twin Cities Area New Party]]'', 520 U.S. 351, 358 (1997).</span></ref>
States may impose some restrictions on a candidate's or party's access to the ballot. For example, the Court held that a state may require political parties to "demonstrate a significant, measurable quantum of community support" in order to appear on a general election ballot.<ref><span id="ALDF_00019564">''[[Am. Party of Tex. v. White]]'', 415 U.S. 767, 782 (1974); ''see also'' ''[[Munro v. Socialist Workers Party]]'', 479 U.S. 189, 193 (1986) (reaffirming that this rule applies to minor-party and independent candidates); ''[[Jenness v. Fortson]]'', 403 U.S. 431, 438 (1971) (upholding Georgia's requirement that a prospective candidate who did not receive at least 20% of the votes in a primary election submit a nominating petition with the signatures of 5% of the eligible electorate in order to appear on the general election ballot); ''[[N.Y. State Bd. of Elections v. Lopez Torres]]'', 552 U.S. 196, 204 (2008) (holding that a state "may similarly demand a minimum degree of support for candidate access to a primary ballot").</span></ref> Such a requirement serves the state's "vital interests" in preserving "the integrity of the electoral process" and "regulating the number of candidates on the ballot to avoid undue voter confusion."<ref><span id="ALDF_00019565">''[[Am. Party of Tex.]]'', 415 U.S. at 782 n.14.</span></ref> The Court also upheld, on similar grounds, a California election law prohibiting an individual from running as an independent candidate if that individual was defeated in another party's primary during the same election cycle or had a registered affiliation with another political party within the preceding year.<ref><span id="ALDF_00019566">''[[Storer v. Brown]]'', 415 U.S. 724, 733 (1974).</span></ref>
The Court has found other ballot-access requirements to unduly infringe the associational rights of candidates and voters.<ref><span id="ALDF_00019567">''See, e.g.'', ''[[Williams v. Rhodes]]'', 393 U.S. 23, 31, 34 (1968) (reasoning that Ohio's ballot access requirements gave "the two old, established parties a decided advantage over any new parties struggling for existence and thus place[d] substantially unequal burdens on both the right to vote and the right to associate" in violation of the Fourteenth Amendment's Equal Protection Clause).</span></ref> In 1974, the Court struck down an Indiana law forbidding a political party from appearing on an election ballot unless it filed an affidavit stating under oath that it did not advocate the overthrow of the government by force or violence.<ref><span id="ALDF_00019568">''[[Communist Party of Ind. v. Whitcomb]]'', 414 U.S. 441, 450 (1974).</span></ref> The Court held that the state could not condition access to the ballot on such a "loyalty oath," because the First Amendment protects advocacy of violent overthrow as an "abstract doctrine."<ref><span id="ALDF_00019569">''Id.'' at 442, 450. ''See'' [[{{ROOTPAGENAME}}/First Amend.#Loyalty Oaths|First Amend.: Loyalty Oaths]] to [[{{ROOTPAGENAME}}/First Amend.#Pickering Balancing Test for Government Employee Speech|First Amend.: Pickering Balancing Test for Government Employee Speech]].</span></ref> In another case, the Court held that an Ohio law requiring individuals to file a statement of candidacy for the presidency in March--well before the major parties' primaries and the November general election--unconstitutionally burdened the associational rights of independent voters.<ref><span id="ALDF_00019570">''[[Anderson v. Celebrezze]]'', 460 U.S. 780, 806 (1983).</span></ref> In 1992, the Court reversed a state supreme court decision barring a new political party from appearing on the ballot under a particular name.<ref><span id="ALDF_00019571">''[[Norman v. Reed]]'', 502 U.S. 279, 290 (1992) (reasoning that the state's interest in "electoral order" did not justify the state supreme court's "inhospitable reading" of the statutory requirements for a new party to access the ballot).</span></ref>
The right of association generally protects a political party's decisions about its internal structure and processes for choosing candidates for national office.<ref><span id="ALDF_00019572">''[[Tashjian v. Republican Party]]'', 479 U.S. 208, 224 (1986). ''Cf.'' ''[[Marchioro v. Chaney]]'', 442 U.S. 191, 199 (1979) (stating that "[t]here can be no complaint that the party's right to govern itself has been substantially burdened by statute when the source of the complaint is the party's own decision to confer critical authority" on a state committee).</span></ref> According to the Court, "a State cannot justify regulating a party's internal affairs without showing that such regulation is necessary to ensure an election that is orderly and fair."<ref><span id="ALDF_00019573">''[[Eu v. S.F. Cnty. Democratic Cent. Comm.]]'', 489 U.S. 214, 233 (1989); ''see also'' ''[[Cousins v. Wigoda]]'', 419 U.S. 477, 491 (1975) (explaining that a state's "interest in protecting the integrity of its electoral process" is not "compelling in the context of the selection of delegates to" a national party convention, given the national nature of the convention and the need for uniform standards).</span></ref> Several cases illustrate these principles. In ''[[Democratic Party of the United States v. Wisconsin]]'', the Court held that while a state was free to allow non-Democrats to vote in its Democratic primary, it could not constitutionally compel the Democratic Party to seat the state's delegates (who were bound by the primary results) at the party's national convention.<ref><span id="ALDF_00019574"> [http://cdn.loc.gov/service/ll/usrep/usrep450/usrep450107/usrep450107.pdf 450 U.S. 107 (1981)].</span></ref> In ''[[Tashjian v. Republican Party]]'', the Court held that a state could not prohibit the Republican Party from opening up its primary to independents.<ref><span id="ALDF_00019575">''[[Tashjian]]'', 479 U.S. at 225. ''But cf.'' ''[[Clingman v. Beaver]]'', 544 U.S. 581, 587 (2005) (upholding an Oklahoma law barring parties from opening their primaries to voters other than registered party members and registered independents).</span></ref> In ''[[California Democratic Party v. Jones]]'', the Court held that California's "blanket primary" violated political parties' freedom of association because it "force[d] political parties to associate with--to have their nominees, and hence their positions, determined by--those who, at best, have refused to affiliate with the party, and, at worst, have expressly affiliated with a rival."<ref><span id="ALDF_00019576"> [http://cdn.loc.gov/service/ll/usrep/usrep530/usrep530567/usrep530567.pdf 530 U.S. 567, 577 (2000)]. ''Cf.'' ''[[Wash. State Grange v. Wash. State Republican Party]]'', 552 U.S. 442, 458-59 (2008) (upholding a state law allowing voters to vote for any candidate appearing on a primary ballot listing candidates along with their "party preference," because that law did not "on its face provide for the nomination of candidates or compel political parties to associate with or endorse candidates").</span></ref> Similarly, in upholding a Puerto Rico law authorizing an incumbent political party to fill an interim vacancy in a legislative seat held by that party, the Court ruled that the party did not need to open its election to nonmembers, analogizing the process to a party's primary election.<ref><span id="ALDF_00019577">''[[Rodriguez v. Popular Democratic Party]]'', 457 U.S. 1, 14 (1982). Despite the Court's solicitude for political parties' rights to control their own procedures and organization, those associational rights may be constrained by other constitutional rights. ''See'' ''[[Morse v. Republican Party]]'', 517 U.S. 186, 228 (1996) (plurality opinion) (stating that associational rights "could not justify a major political party's decision to exclude eligible voters from the candidate selection process because of their race" because the Fifteenth Amendment "foreclose[s] such a possibility").</span></ref>
The Court is willing to let states restrict some individual political activity in order to protect the integrity and effectiveness of political associations. For example, the Court upheld a New York law requiring a voter to enroll as a party member at least thirty days before the general election each year in order to vote in the next primary for that party.<ref><span id="ALDF_00019578">''[[Rosario v. Rockefeller]]'', 410 U.S. 752 (1973).</span></ref> The Court reasoned that the law was intended to prevent "party 'raiding,' whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party's primary," and that this was a "particularized legitimate purpose."<ref><span id="ALDF_00019579">''Id.'' at 760, 762.</span></ref> In contrast, the Court found the anti-raiding rationale insufficient to sustain an Illinois law that prohibited an individual from voting in a primary election because she had voted in another party's primary within the preceding twenty-three months.<ref><span id="ALDF_00019580">''[[Kusper v. Pontikes]]'', 414 U.S. 51, 61 (1973).</span></ref> Unlike New York's law, the Illinois law effectively "'lock[ed]' voters into a pre-existing party affiliation from one primary to the next," requiring them to "forgo voting in ''any'' primary for a period of almost two years" in order to "break the 'lock.'"<ref><span id="ALDF_00019581">''Id.'' at 60-61.</span></ref>
Like election laws, government-imposed limits on ''contributions'' to political candidates or political organizations also can burden associational rights of candidates or organizations and their supporters.<ref><span id="ALDF_00019582">''See'' ''[[McCutcheon v. FEC]]'', 572 U.S. 185, 204 (2014) (plurality opinion) (explaining how an "aggregate limit on how many candidates and committees an individual may support through contributions" limits an individual's associational rights by potentially forcing him to "choose which of several policy concerns he will advance" (emphasis removed)).</span></ref> For example, the Court held that a local ordinance that imposed a $250 limit on "contributions to committees formed to support or oppose ballot measures" violated the freedom of association of the committees and their contributors.<ref><span id="ALDF_00019583">''[[Citizens Against Rent Control/Coal. for Fair Hous. v. Berkeley]]'', 454 U.S. 290, 291, 300 (1981).</span></ref> A key factor for the Court was that "an affluent person" could "spend without limit to advocate individual views on a ballot measure," but the ordinance restricted only contributions "made in concert with one or more others in the exercise of the right of association."<ref><span id="ALDF_00019584">''Id.'' at 296.</span></ref>
The Supreme Court commonly analyzes First Amendment challenges to contribution limits and related campaign finance laws in terms of the burdens they might place on both the freedoms of speech and association.<ref><span id="ALDF_00019585">''See'' ''id.'' at 300 (explaining that the "two rights overlap and blend; to limit the right of association places an impermissible restraint on the right of expression").</span></ref> These cases are discussed in the Freedom of Speech section of the First Amendment essay.<ref><span id="ALDF_00019586">''See'' [[{{ROOTPAGENAME}}/First Amend.#Overview of Campaign Finance|First Amend.: Overview of Campaign Finance]] to [[{{ROOTPAGENAME}}/First Amend.#Legislative Investigations|First Amend.: Legislative Investigations]].</span></ref>
=====Denial of Employment or Public Benefits=====
Generally speaking, the First Amendment prohibits the government from denying an individual access to a job or profession because of the individual's current or past associations alone. There are, however, some instances in which the Court has upheld employment-related restrictions on association, as discussed below.
During the 1950s and 1960s, the Supreme Court considered actions taken by the federal and state governments to address Communism in the workplace. In 1950, the Court considered the "grave and difficult problem" presented by a federal law that effectively "discouraged" unions from electing members of the Communist Party to leadership positions in the union.<ref><span id="ALDF_00019587">''[[Am. Commcn's Ass'n v. Douds]]'', 339 U.S. 382, 393 (1950). Specifically, the law required the officers of each union to file an affidavit stating that they were not members of the Communist Party in order for the National Labor Relations Board to entertain claims filed by that union. ''Id.'' at 385.</span></ref> While recognizing that the law affected protected association, the Court reasoned that the statute mainly regulated "harmful conduct" in the form of political strikes designed to obstruct labor relations and interstate commerce.<ref><span id="ALDF_00019588">''Id.'' at 396.</span></ref> The Court upheld the law, concluding that it was directed not at what Communists "advocate or believe," but what "they have done and are likely to do again."<ref><span id="ALDF_00019589">''Id.''</span></ref>
Two years later, in ''[[Adler v. Board of Education]]'', the Court upheld a New York law that disqualified members of the Communist Party and other state-designated organizations from holding offices or teaching positions in the public school system.<ref><span id="ALDF_00019590"> [http://cdn.loc.gov/service/ll/usrep/usrep342/usrep342485/usrep342485.pdf 342 U.S. 485, 492 (1952)].</span></ref> The Court concluded that the state may deny these individuals "the privilege of working for the [public] school system" because of their "unexplained membership in an organization found by the school authorities, after notice and a hearing, to teach and advocate the overthrow of the government by force or violence, and known by such persons to have such purpose."<ref><span id="ALDF_00019591">''Id.''</span></ref>
By the mid-1960s, however, the Court largely had abandoned ''[[Adler]]''<nowiki>'</nowiki>s reasoning.<ref><span id="ALDF_00019592">''[[Keyishian v. Bd. of Regents]]'', 385 U.S. 589, 595, 606 (1967).</span></ref> For example, in 1966, the Court considered an Arizona law that subjected a state employee to "immediate discharge and criminal penalties" if, at the time of taking the oath of office or thereafter, the employee knowingly was a member of the Communist Party or any other organization whose purposes included the overthrow of the state government.<ref><span id="ALDF_00019593">''[[Elfbrandt v. Russell]]'', 384 U.S. 11, 13, 16 (1966).</span></ref> The Court held that this "guilt by association" approach violated the First Amendment.<ref><span id="ALDF_00019594">''Id.'' at 19.</span></ref> That the statute applied only to individuals who knew of the organization's unlawful purpose did not save it.<ref><span id="ALDF_00019595">''Id.'' at 13.</span></ref> The Court held that a "law which applies to membership without the 'specific intent' to further the illegal aims of the organization infringes unnecessarily on protected freedoms."<ref><span id="ALDF_00019596">''Id.'' at 19; ''see also'' ''[[Keyishian]]'', 385 U.S. at 606 (similarly distinguishing "[m]ere knowing membership" from "a specific intent to further the unlawful aims of an organization").</span></ref>
In 1967, the Court likewise held unconstitutional a provision of the federal Subversive Activities Control Act of 1950 that prohibited a member of a "Communist-action organization" from gaining employment "in any defense facility."<ref><span id="ALDF_00019597">''[[United States v. Robel]]'', 389 U.S. 258, 260 (1967) (quoting Section 5(a)(1)(D) of the act).</span></ref> The Court concluded that the statute violated the First Amendment right of association because it swept "indiscriminately across all types of association with Communist-action groups, without regard to the quality and degree of membership."<ref><span id="ALDF_00019598">''Id.'' at 262.</span></ref> More precise regulation was needed, the Court explained, to address "the congressional concern over the danger of sabotage and espionage in national defense industries" and comply with the First Amendment.<ref><span id="ALDF_00019599">''Id.'' at 266-67.</span></ref> "It would indeed be ironic," the Court observed, "if, in the name of national defense, we would sanction the subversion of one of those liberties--the freedom of association--which makes the defense of the Nation worthwhile."<ref><span id="ALDF_00019600">''Id.'' at 264. For a case in which the Court found national security interests to justify restrictions on protected speech and association with foreign organizations, see [[{{ROOTPAGENAME}}/First Amend.#Material Support Bar|First Amend.: Material Support Bar]].</span></ref>
In a series of cases involving political patronage requirements that began in the 1970s, the Supreme Court held that the government cannot fire or demote a public employee because of the employee's political affiliation except in narrow circumstances involving high-ranking employees with policy-making functions.<ref><span id="ALDF_00019601">''See'' ''[[Elrod v. Burns]]'', 427 U.S. 347, 372 (1976) (plurality opinion) (concluding that political patronage dismissals, in which a public employer fires an employee because of the employee's affiliation or non-affiliation with a particular political party, violate the First Amendment as a general practice, because they "severely restrict political belief and association"); ''id.'' at 375 (Stewart, J., concurring in the judgment). ''See also'' ''[[Branti v. Finkel]]'', 445 U.S. 507, 519 (1980) (holding that "the continued employment of an assistant public defender cannot properly be conditioned upon his allegiance to the political party in control of the county government"); ''[[Rutan v. Republican Party]]'', 497 U.S. 62, 65 (1990) (holding that "promotion, transfer, recall, and hiring decisions involving low-level public employees" may not be "based on party affiliation and support"); ''[[O'Hare Truck Serv. v. City of Northlake]]'', 518 U.S. 712, 726 (1996) (generally extending "the First Amendment safe-guards of political association afforded to employees" to "independent contractors"). ''See'' [[{{ROOTPAGENAME}}/First Amend.#Conditions of Public Employment|First Amend.: Conditions of Public Employment]].</span></ref>
Related to association-based employment restrictions are cases involving "loyalty oaths" that required government employees to disclaim membership in certain organizations. These cases are discussed in the Freedom of Speech essay because they involved compelled speech.<ref><span id="ALDF_00019602">''See'' [[{{ROOTPAGENAME}}/First Amend.#Loyalty Oaths|First Amend.: Loyalty Oaths]] to [[{{ROOTPAGENAME}}/First Amend.#Pickering Balancing Test for Government Employee Speech|First Amend.: Pickering Balancing Test for Government Employee Speech]].</span></ref> The extent to which the government can require a prospective employee or applicant for a professional license to disclose prior associations is discussed in more detail in another essay.<ref><span id="ALDF_00019603">''See'' [[{{ROOTPAGENAME}}/First Amend.#Character and Fitness and Evidentiary Disclosures|First Amend.: Character and Fitness and Evidentiary Disclosures]].</span></ref>
While the foregoing cases dealt with employment, the Court has also signaled that group association cannot be the sole basis for denying public benefits. For example, the Court held that a public university's refusal to register a student group because of its affiliation with a national organization violated the students' freedom of association.<ref><span id="ALDF_00019604">''[[Healy v. James]]'', 408 U.S. 169, 186-87 (1972). However, the Court stated that the university could require applicants to affirm that they will comply with reasonable campus regulations. ''Id.'' at 193.</span></ref> Similarly, a state may not require an individual to "forfeit" the right of association "as the price for exercising another" protected right.<ref><span id="ALDF_00019605">''[[Lefkowitz v. Cunningham]]'', 431 U.S. 801, 807-08 (1977) (holding that a state may not require a person to waive the person's Fifth Amendment right against self-incrimination as a condition of holding a political party office); ''[[Aptheker v. Sec'y of State]]'', 378 U.S. 500, 507 (1964) (holding that a state may not restrict the right to travel based on an individual's membership in a particular association).</span></ref>
=====Conditions of Incarceration=====
Incarceration is a special context in which the government has more authority to restrict the freedom of association. The Supreme Court has explained that the "fact of confinement and the needs of the penal institution impose limitations on constitutional rights," most notably, the freedom of association.<ref><span id="ALDF_00019606">''[[Jones v. N.C. Prisoners' Lab. Union, Inc.]]'', 433 U.S. 119, 125 (1977). ''See'' [[{{ROOTPAGENAME}}/First Amend.#Prison Free Speech and Government as Prison Administrator|First Amend.: Prison Free Speech and Government as Prison Administrator]].</span></ref> Accordingly, the standard of review for freedom-of-association claims is deferential to the government and prison administrators. The Court has held that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests."<ref><span id="ALDF_00019607">''[[Turner v. Safley]]'', 482 U.S. 78, 89 (1987), ''superseded by statute'', Religious Freedom Restoration Act of 1993, Pub. L. No. 103-141, 107 Stat. 1488 (codified at [https://uscode.house.gov/view.xhtml?req=(title:42%20section:2000bb%20edition:prelim)%20OR%20(granuleid:USC-prelim-title42-section2000bb)&amp;f=treesort&amp;num=0&amp;edition=prelim 42 U.S.C. &#167; 2000bb]).</span></ref> In evaluating reasonableness, the Court has considered: (1) whether there is a "valid, rational connection between the prison regulation" and a "legitimate and neutral" governmental interest; (2) whether prison inmates have "alternative means of exercising the right" available to them; (3) the "impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally"; and (4) the "absence of ready alternatives" to the regulation.<ref><span id="ALDF_00019608">''Id.'' at 89-90 (internal quotation marks omitted).</span></ref>
Applying the "reasonable relationship" test, the Court upheld a ban on inmate solicitation and group meetings for a prisoners' union;<ref><span id="ALDF_00019609">''[[Jones]]'', 433 U.S. at 129-33.</span></ref> restrictions on visitation by children;<ref><span id="ALDF_00019610">''[[Overton v. Bazzetta]]'', 539 U.S. 126 (2003).</span></ref> and restrictions on certain types of correspondence between inmates.<ref><span id="ALDF_00019611">''[[Turner]]'', 482 U.S. at 93; ''see also'' ''[[Shaw v. Murphy]]'', 532 U.S. 223, 231 (2001) (declining "to cloak the provision of legal assistance with any First Amendment protection above and beyond the protection normally accorded prisoners' speech" under ''[[Turner]]'').</span></ref> In contrast, the Court struck down a regulation prohibiting prisoners to marry only with the permission of the prison's superintendent and only for "compelling reasons."<ref><span id="ALDF_00019612">''[[Turner]]'', 482 U.S. at 98-99.</span></ref> The Court held that the fundamental constitutional right to marry--a right of intimate association--applies in the prison context and that the regulation at issue was "not reasonably related" to the prison's "security and rehabilitation concerns."<ref><span id="ALDF_00019613">''Id.'' at 95-97.</span></ref>
=====Material Support Bar=====
Although foreign organizations operating abroad generally do not have First Amendment rights,<ref><span id="ALDF_00019614">''See'' ''[[Agency for Int'l Dev. v. All. for Open Soc'y Int'l, Inc.]]'', No. 19-177, slip op. at 6 (U.S. June 29, 2020).</span></ref> the First Amendment does protect the associations of U.S. persons and residents, even if those associations are with foreign persons.<ref><span id="ALDF_00019615">''See'' ''[[Kleindienst v. Mandel]]'', 408 U.S. 753, 762-70 (1972) (reasoning that the government's denial of a visa to a foreign scholar implicated the First Amendment rights of American professors who wished to meet and confer with him in person, but holding that the Executive Branch had discretion to deny the visa for a "facially legitimate" reason).</span></ref> Still, the government may proscribe some types of interactions with foreign groups or individuals in the interest of national security.<ref><span id="ALDF_00019616">''See'' ''[[Holder v. Humanitarian L. Project]]'', 561 U.S. 1 (2010).</span></ref>
In ''[[Holder v. Humanitarian Law Project]]'', two U.S. citizens and six domestic organizations challenged the constitutionality of a federal ban on providing material support or resources to designated foreign terrorist organizations.<ref><span id="ALDF_00019617">''Id.'' at 10 (citing [https://uscode.house.gov/view.xhtml?req=(title:18%20section:2339B%20edition:prelim)%20OR%20(granuleid:USC-prelim-title18-section2339B)&amp;f=treesort&amp;num=0&amp;edition=prelim 18 U.S.C. &#167; 2339B]).</span></ref> They argued that the law criminalized protected speech and association with two foreign groups that the United States had designated as foreign terrorist organizations.<ref><span id="ALDF_00019618">''Id.'' at 14-15.</span></ref> The Supreme Court agreed that the law restricted the freedom of speech, but it held that the United States's interests in national security and combating international terrorism justified the prohibition.<ref><span id="ALDF_00019619">''Id.'' at 28-39 (applying strict scrutiny).</span></ref>
With regard to the plaintiffs' freedom-of-association claim, the Court concluded that the statute did "not penalize mere association with a foreign terrorist organization," suggesting that the First Amendment would protect membership in a foreign terrorist organization or independent advocacy of the group's political goals.<ref><span id="ALDF_00019620">''Id.'' at 39.</span></ref> Instead, the Court reasoned, the statute prohibited only providing specified forms of material support to such organizations.<ref><span id="ALDF_00019621">''Id.''</span></ref> In the plaintiffs' case, that support took the form of providing training or legal expertise on issues of peaceful dispute resolution and humanitarian aid.<ref><span id="ALDF_00019622">''Id.'' at 10, 14-15.</span></ref> To the extent the prohibition burdened association, the Court held, it was justified on the same national security grounds as the statute's restrictions on speech.<ref><span id="ALDF_00019623">''Id.'' at 40.</span></ref>
====Disclosure of Association====
=====Associational Privacy=====
The Supreme Court has recognized "the vital relationship between freedom to associate and privacy in one's associations."ALDF_00019624 In some circumstances, government-compelled disclosure of an individual's affiliations can expose that individual to harm in the form of threats, harassment, or economic reprisals.ALDF_00019625 This potential exposure may dissuade individuals from joining together for the purpose of collective advocacy, thus chilling protected speech and association.ALDF_00019626 Accordingly, the Supreme Court has barred the government from compelling organizations to reveal their members, or individuals to reveal their memberships, in some circumstances.ALDF_00019627
At the same time, the Court has not recognized an absolute right to privacy of one's associations, often weighing the government's interests in disclosure against the likelihood of harm resulting from the exposure.ALDF_00019628 In some cases, this analysis took the form of a balancing test, with the government's interests presumptively tipping the scales.ALDF_00019629 In other cases, the Court applied a form of heightened scrutiny under which the government bore the burden of demonstrating that its interests in disclosure were sufficiently important to justify the intrusion into associational rights.ALDF_00019630
Whether disclosure will be public also appears to be a factor in the Court's analysis. For example, in ''[[Nixon v. Administrator of General Services]]'', former President Richard M. Nixon challenged a federal law directing the Administrator of General Services to take custody of President Nixon's papers and tape recordings and issue regulations governing the archival screening of the materials and public access to archived materials.ALDF_00019631 The case involved several constitutional claims,ALDF_00019632 one of which was that the screening process violated the President's "rights of associational privacy and political speech."ALDF_00019633 The Supreme Court acknowledged that "involvement in partisan politics is closely protected by the First Amendment" and that compelled disclosure "can seriously infringe on privacy of association and belief," but it ultimately concluded that the President's First Amendment claim was "clearly outweighed by the important governmental interests promoted by" the federal law.ALDF_00019634
=====Disclosure of Membership Lists=====
The Supreme Court began to apply heightened scrutiny in cases involving compelled disclosure of association in a series of cases in the 1950s and 1960s in which certain states were attempting to thwart the activities of the National Association for the Advancement of Colored People, Inc. (NAACP).<ref><span id="ALDF_00019635">''See'' ''[[Ams. for Prosperity Found. v. Bonta]]'', No. 19-251, slip op. at 6 (U.S. July 1, 2021) (discussing ''[[Alabama ex rel. Patterson]]'', 357 U.S. 449 (1958)).</span></ref> In ''[[NAACP v. Alabama ex rel. Patterson]]'', the Court unanimously set aside a state court's contempt order against the NAACP for refusing to produce a list of its members within the state.<ref><span id="ALDF_00019636">357 U.S. at 460-61.</span></ref> The state ostensibly requested the information to verify compliance with business registration requirements. The Court, however, held that the state had failed to demonstrate a need for the identities of the organization's "rank-and-file members" that would outweigh the harm to publicly exposed members in the form of "economic reprisal, loss of employment, threat of physical coercion, and other manifestations of public hostility."<ref><span id="ALDF_00019637">''Id.'' at 462-464.</span></ref>
The Court in ''[[Bates v. City of Little Rock]]'' also held that a city government could not constitutionally compel the NAACP to disclose its local members.<ref><span id="ALDF_00019638">''[[Bates v. City of Little Rock]]'', 361 U.S. 516, 527 (1960).</span></ref> In that case, there was "substantial uncontroverted evidence" that publicly identified members had experienced "harassment and threats of bodily harm."<ref><span id="ALDF_00019639">''Id.'' at 524.</span></ref> The asserted governmental interest in that case was the assessment of occupational license taxes.<ref><span id="ALDF_00019640">''Id.'' at 525.</span></ref> Although the Court found this interest to be sufficiently compelling, it concluded that the city failed to demonstrate that obtaining and publishing local membership lists was "reasonably related" to this interest, given that the city could obtain information about businesses and occupations without collecting information about individual members.<ref><span id="ALDF_00019641">''Id.''</span></ref> The Court reaffirmed in ''[[Louisiana ex rel. Gremillion v. NAACP]]'', another case involving compelled disclosure of membership lists, that "regulatory measures . . . no matter how sophisticated, cannot be employed in purpose or in effect to stifle, penalize, or curb the exercise of First Amendment rights."<ref><span id="ALDF_00019642"> [http://cdn.loc.gov/service/ll/usrep/usrep366/usrep366293/usrep366293.pdf 366 U.S. 293, 297 (1961)]. The Court also held unconstitutional, on due process grounds, a statute requiring certain businesses with out-of-state contacts to certify that none of their officers is a member of a Communist or subversive organization, as a condition of doing business in the state. ''Id.'' at 294-95.</span></ref>
By contrast, the Court rejected a First Amendment challenge by the Communist Party of the United States to the federal Subversive Activities Control Act of 1950.<ref><span id="ALDF_00019643">''[[Communist Party of U.S. v. Subversive Activities Control Bd.]]'', 367 U.S. 1, 4 (1961).</span></ref> Pursuant to the Act, the U.S. government determined that the Communist Party must register with the U.S. Attorney General as a Communist-action organization and provide the names and addresses of its officers and any individuals who were members during the previous twelve months.<ref><span id="ALDF_00019644">''Id.'' at 8-9.</span></ref> Registration, in turn, triggered other regulatory requirements.<ref><span id="ALDF_00019645">''Id.'' at 9.</span></ref>
After the Court upheld the "Communist action organization" designation as merely "regulatory," it turned to the registration requirement itself, considering whether it infringed the right of party members to associate anonymously.<ref><span id="ALDF_00019646">''Id.'' at 81.</span></ref> The Court acknowledged its holdings in ''[[NAACP]]'' and ''[[Bates]]'', but it held that the federal government had a greater interest in registration than the state parties in those cases because Communist-action organizations are "substantially dominated or controlled" by foreign powers seeking "the overthrow of existing government by any means necessary."<ref><span id="ALDF_00019647">''Id.'' at 88-89.</span></ref>
=====Character and Fitness and Evidentiary Disclosures=====
Under Supreme Court precedent, states can require applicants for professional licenses to meet qualifications that are rationally related to the profession, including demonstrating "good moral character."<ref><span id="ALDF_00019648">''[[Schware v. Bd. of Bar Exam'rs of N.M.]]'', 353 U.S. 232, 239 (1957); ''see also'' ''[[Adler v. Bd. of Educ.]]'', 342 U.S. 485, 493 (1952) (reasoning that a public school a prospective teacher's "associates, past and present" in "determining fitness and loyalty").</span></ref> However, as discussed in a previous section, a state generally cannot deny an individual a professional license solely on the basis of his or her past or present, lawful affiliations.<ref><span id="ALDF_00019649">''See, e.g.'', ''[[Schware]]'', 353 U.S. at 245-46 (holding that a state bar association could not refuse to admit a prospective lawyer on the assumption that "his past membership in the Communist Party" indicated present "bad moral character"). ''See'' [[{{ROOTPAGENAME}}/First Amend.#Denial of Employment or Public Benefits|First Amend.: Denial of Employment or Public Benefits]].</span></ref> In a similar vein, inquiries into an applicant's associations must be sufficiently tailored in light of their potential chilling effect on association.<ref><span id="ALDF_00019650">''[[Shelton v. Tucker]]'', 364 U.S. 479, 488 (1960).</span></ref>
Character and fitness cases once produced "[s]harp conflicts and close divisions" in the Court, particularly following the federal and state investigations into Communist activity in the 1950s.<ref><span id="ALDF_00019651">''[[Baird v. State Bar of Ariz.]]'', 401 U.S. 1, 2-3 (1971) (plurality opinion).</span></ref> In general, the Court's decisions show a concern for character inquiries based on membership in Communist organizations, but more suspicion about inquiries based on other kinds of association. Thus, in ''[[Konigsberg v. State Bar of California]]'', the Court allowed a state bar association to question an applicant, in private, about his prior membership in the Communist Party, citing California's "interest in having lawyers who are devoted to the law in its broadest sense," including "its procedures for orderly change."<ref><span id="ALDF_00019652"> [http://cdn.loc.gov/service/ll/usrep/usrep366/usrep366036/usrep366036.pdf 366 U.S. 36, 49-54 (1961)].</span></ref> And a decade later, the Court reaffirmed that "Bar examiners may ask about Communist affiliations as a preliminary to further inquiry into the nature of the association and may exclude an applicant for refusal to answer."<ref><span id="ALDF_00019653">''[[L. Students C.R. Rsch. Council, Inc. v. Wadmond]]'', 401 U.S. 154, 165-66 (1971) (rejecting a facial challenge to the New York Bar Association's screening process).</span></ref> On the same day, however, a plurality of the Court concluded that the State Bar of Arizona could ''not'' deny admission to a candidate based on her refusal to divulge whether she had ever been a member of the Communist Party or ''any'' organization "that advocates overthrow of the United States Government by force or violence."<ref><span id="ALDF_00019654">''[[Baird]]'', 401 U.S. at 4-5 (plurality opinion) (internal quotation marks and citation omitted); ''see also'' ''[[In re Stolar]]'', 401 U.S. 23, 30 (1971) (plurality opinion) (reaching the same conclusion with respect to an applicant for admission to the Ohio Bar who refused to answer a similar question).</span></ref> The difference between these two cases, in the plurality's view, appeared to be the Arizona bar's interest in organizations other than the Communist Party, which the plurality characterized as "[b]road and sweeping."<ref><span id="ALDF_00019655">''[[Baird]]'', 401 U.S. at 6 (plurality opinion); ''see also'' ''[[In re Stolar]]'', 401 U.S. at 27-28 (plurality opinion) (holding that Ohio could not require an applicant to the state bar association to "list all the organizations to which he has belonged since registering as a law student and those of which he has ever been a member").</span></ref>
The breadth of the state's inquiry was also at issue in ''[[Shelton v. Tucker]]''.<ref><span id="ALDF_00019656"> [http://cdn.loc.gov/service/ll/usrep/usrep364/usrep364479/usrep364479.pdf 364 U.S. 479 (1960)].</span></ref> There, the Court ruled that, though a state had a broad interest in ensuring 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.<ref><span id="ALDF_00019657">''Id. Cf.'' ''[[Beilan v. Bd. of Pub. Educ.]]'', 357 U.S. 399, 404 (1958) (holding that a public school district could fire a teacher for "statutory 'incompetency' based on his refusal to answer the Superintendent's questions" about his affiliation with a Communist political association).</span></ref> The Court explained that the "unlimited and indiscriminate sweep of the statute" defeated its connection to a "legitimate inquiry into the fitness and competency" of public school teachers.<ref><span id="ALDF_00019658">''[[Shelton]]'', 364 U.S. at 490; ''[[Schneider v. Smith]]'', 390 U.S. 17, 23, 26-27 (1968) (holding that a federal statute authorizing the executive branch to "safeguard" U.S. merchant ships against "sabotage or other subversive acts," [https://uscode.house.gov/view.xhtml?req=(title:50%20section:191%20edition:prelim)%20OR%20(granuleid:USC-prelim-title50-section191)&amp;f=treesort&amp;num=0&amp;edition=prelim 50 U.S.C. &#167; 191](b), did not authorize regulations establishing a screening program for personnel on such vessels that delved into their past associations, ideas, and beliefs).</span></ref>
Disclosure of a person's associations may be permissible during a sentencing hearing following a criminal conviction. The Supreme Court has explained that the "Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment."<ref><span id="ALDF_00019659">''[[Dawson v. Delaware]]'', 503 U.S. 159, 165 (1992).</span></ref> However, those associations must be relevant to proving aggravating or mitigating circumstances, not just the defendant's "abstract beliefs."<ref><span id="ALDF_00019660">''Id.'' at 165-67 (holding that the sentencing court improperly admitted evidence of the defendant's membership in the Aryan Brotherhood that focused only on the organization's "racist beliefs").</span></ref>
=====Legislative Inquiries=====
The First Amendment constrains government action, not just in the administration and enforcement of public laws, but also in conducting legislative investigations.<ref><span id="ALDF_00019661">''[[Watkins v. United States]]'', 354 U.S. 178, 197 (1957).</span></ref> A legislature's power of inquiry is "broad," encompassing "inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes."<ref><span id="ALDF_00019662">''[[Gibson v. Fla. Legis. Investigation Comm.]]'', 372 U.S. 539, 545 (1963). ''See'' [[{{ROOTPAGENAME}}/Art. I/Sec. 8/Clause 18 Necessary and Proper Clause#Congress's Investigation and Oversight Powers (1787-1864)|Art. I, Sec. 8, Cl. 18: Congress's Investigation and Oversight Powers (1787-1864)]] to [[{{ROOTPAGENAME}}/Art. I/Sec. 8/Clause 18 Necessary and Proper Clause#Constitutional Limits of Congress's Investigation and Oversight Powers|Art. I, Sec. 8, Cl. 18: Constitutional Limits of Congress's Investigation and Oversight Powers]].</span></ref> Legislative investigations "may properly probe historic events for any light that may be thrown on present conditions and problems."<ref><span id="ALDF_00019663">''[[DeGregory v. Att'y Gen.]]'', 383 U.S. 825, 829 (1966).</span></ref> The Court has warned, however, that even if "the general scope of the inquiry is authorized and permissible," a legislature is not necessarily "free to inquire into or demand all forms of information."<ref><span id="ALDF_00019664">''[[Gibson]]'', 372 U.S. at 545.</span></ref> Because of First Amendment constraints, a legislature may not "probe" an individual's associations "at will and without relation to existing need."<ref><span id="ALDF_00019665">''[[DeGregory]]'', 383 U.S. at 829.</span></ref>
The test to be applied in balancing legislative interests against individual rights of association is not entirely settled. In a case concerning a state legislature's investigation of the National Association for the Advancement of Colored People, Inc. (NAACP), the Court stated that to "intrude[ ] into the area of constitutionally protected rights of speech, press, association and petition," the state must show "a substantial relation between the information sought and a subject of overriding and compelling state interest."<ref><span id="ALDF_00019666">''[[Gibson]]'', 372 U.S. at 546.</span></ref> This test mirrors the exacting scrutiny standard the Court has applied in other contexts involving government-compelled disclosure of private associations.<ref><span id="ALDF_00019667">''See generally'' [[{{ROOTPAGENAME}}/First Amend.#Donor Disclosure Requirements|First Amend.: Donor Disclosure Requirements]].</span></ref>
The Supreme Court appears to have applied a more relaxed standard of review in other cases involving legislative inquiries decided during the same time period,<ref><span id="ALDF_00019668">''E.g.'', ''[[Uphaus v. Wyman]]'', 360 U.S. 72, 78 (1959) (reasoning that the state legislature's requests related "directly to the Legislature's area of interest" and that the subpoena demand was not "burdensome").</span></ref> particularly those involving investigations into the associations and activities of members or suspected members of the Communist Party.<ref><span id="ALDF_00019669">''See'' ''[[Gibson]]'', 372 U.S. at 547 (distinguishing ''[[Barenblatt v. United States]]'', ''[[Wilkinson v. United States]]'', and ''[[Braden v. United States]]'', reasoning that "the necessary preponderating governmental interest and, in fact, the very result in those cases were founded on the holding that the Communist Party is not an ordinary or legitimate political party . . . and that, because of its particular nature, membership therein is itself a permissible subject of regulation and legislative scrutiny"). ''See '' [[{{ROOTPAGENAME}}/First Amend.#Incitement Movement from Clear and Present Danger Test|First Amend.: Incitement Movement from Clear and Present Danger Test]].</span></ref> For example, in ''[[Barenblatt v. United States]]'', the Court held that a Subcommittee of the House Committee on Un-American Activities could question a witness about his membership in the Communist Party without violating the First Amendment.<ref><span id="ALDF_00019670"> [http://cdn.loc.gov/service/ll/usrep/usrep360/usrep360109/usrep360109.pdf 360 U.S. 109 (1959)].</span></ref> The Court reasoned that the hearing, which concerned "alleged Communist infiltration into the field of education," involved a "valid legislative purpose," because Congress had "wide power to legislate in the field of Communist activity in this Country" as a means of "self-preservation."<ref><span id="ALDF_00019671">''Id.'' at 113. The Court upheld the contempt-of-Congress convictions of two other witnesses on similar grounds in ''[[Wilkinson v. United States]]'', 365 U.S. 399 (1961) and ''[[Braden v. United States]]'', 365 U.S. 431 (1961). By contrast, the Court overturned the contempt conviction of a New Hampshire resident, with a plurality of the Court concluding that the state attorney general's questioning of the witness about his and others' involvement in the Progressive Party exceeded the legislature's investigative mandate. ''[[Sweezy v. New Hampshire]]'', 354 U.S. 234, 251-54 (1957) (plurality opinion).</span></ref> If the Court applied a balancing test in this decision, it did not discuss the witness's countervailing First Amendment interests.<ref><span id="ALDF_00019672">''[[Barenblatt]]'', 360 U.S. at 134. In this case, the Court appeared to place the burden on the witness to show why his interests "were not subordinate to those of the state." ''Id.'' According to the Court, there was "no indication" in the record that the subcommittee "was attempting to pillory witnesses" or employed "indiscriminate dragnet procedures, lacking in probable cause." ''Id.''</span></ref>
Although both state and federal legislatures may conduct investigations, congressional inquiries have the added protection of the Speech or Debate Clause, which generally protects the legislative actions of Members of Congress from judicial interference.<ref><span id="ALDF_00019673">''See'' [[{{ROOTPAGENAME}}/Art. I/Sec. 6/Clause 1 Pay, Privileges, and Immunities#Overview of Speech or Debate Clause|Art. I, Sec. 6, Cl. 1: Overview of Speech or Debate Clause]] to [[{{ROOTPAGENAME}}/Art. I/Sec. 6/Clause 1 Pay, Privileges, and Immunities#Persons Who Can Claim the Speech or Debate Privilege|Art. I, Sec. 6, Cl. 1: Persons Who Can Claim the Speech or Debate Privilege]].</span></ref> In the 1975 ''[[Eastland]]'' decision, the Supreme Court cited the Speech or Debate Clause in declining to adjudicate a freedom-of-association-based challenge to a subpoena from a congressional subcommittee.<ref><span id="ALDF_00019674">''[[Eastland v. U.S. Servicemen's Fund]]'', 421 U.S. 491, 501 (1975).</span></ref> ''[[Eastland]]'' involved a pre-enforcement challenge to a congressional subpoena, but the other cases discussed above suggest that a First Amendment defense may yet be available in a contempt proceeding for refusal to comply with a congressional subpoena.<ref><span id="ALDF_00019675">''See'' ''Id.'' at 515-16 (Marshall, J., concurring in the judgment) (positing that the defendant in a contempt trial "may defend on the basis of the constitutional right to withhold information from the legislature, and his right will be respected along with the legitimate needs of the legislature").</span></ref>
=====Donor Disclosure Requirements=====
As previously discussed, the Supreme Court has recognized a First Amendment interest in the privacy of one's associations and held that compelled disclosure of an organization's members can chill that protected association.<ref><span id="ALDF_00019676">''See'' [[{{ROOTPAGENAME}}/First Amend.#Disclosure of Membership Lists|First Amend.: Disclosure of Membership Lists]].</span></ref> In 1976, in ''[[Buckley v. Valeo]]'', the Court extended this reasoning to disclosure of a political candidate's financial contributors required by federal campaign finance laws.<ref><span id="ALDF_00019677"> [http://cdn.loc.gov/service/ll/usrep/usrep424/usrep424001/usrep424001.pdf 424 U.S. 1, 65-66 (1976)] (per curiam), ''superseded by statute'', Bipartisan Campaign Reform Act(BCRA) of 2002, Pub. L. No. 107-155, 116 Stat. 81 (codified as amended in scattered sections of 2, 8, 18, 28, 36, 47 U.S.C.). The Court determined that the challenged contribution and expenditure limitations also implicated the freedom of association, as well as the freedom of speech; its holdings on these limitations are discussed in Freedom of Speech: Campaign Finance and the Electoral Process, [[{{ROOTPAGENAME}}/First Amend.#Overview of Campaign Finance|First Amend.: Overview of Campaign Finance]] to [[{{ROOTPAGENAME}}/First Amend.#Legislative Investigations|First Amend.: Legislative Investigations]].</span></ref> The Court observed that the "invasion of privacy of belief may be as great when the information sought concerns the giving and spending of money as when it concerns the joining of organizations, for '[f]inancial transactions can reveal much about a person's activities, associations, and beliefs.'"<ref><span id="ALDF_00019678">''Id.'' at 66 (quoting ''[[Cal. Bankers Ass'n v. Shultz]]'', 416 U.S. 21, 78-79 (1974) (Powell, J., concurring)).</span></ref>
In view of these considerations, the Court applied a heightened standard of review called "exacting scrutiny," which the Court derived from its analysis in ''[[NAACP v. Alabama ex rel. Patterson]]''.<ref><span id="ALDF_00019679">''Id.'' at 64 (citing NAACP v. Alabama ''ex rel.'' Patterson, 357 U.S. 449 (1958)).</span></ref> Under ''[[Buckley]]''<nowiki>'</nowiki>s formulation of exacting scrutiny, the government must show a "substantial relation" between a "subordinating" state interest and the information required to be disclosed.<ref><span id="ALDF_00019680">''Id.''</span></ref> Ultimately, the Court in ''[[Buckley]]'' concluded that the federal government's interests in an informed electorate, deterring corruption, and detecting violations of certain contribution limits outweighed the right to contribute anonymously in that case.<ref><span id="ALDF_00019681">''Id.'' at 68.</span></ref>
The Court reached a different conclusion with respect to state campaign finance disclosures as applied to "the Socialist Workers Party, a minor political party which historically has been the object of harassment by government officials and private parties."<ref><span id="ALDF_00019682">''[[Brown v. Socialist Workers '74 Campaign Comm.]]'', 459 U.S. 87, 88 (1982).</span></ref> In reasoning analogous to ''[[NAACP]]'', the Court found that disclosure of either the parties' contributors or the recipients of their campaign disbursements would "subject those persons identified to the reasonable probability of threats, harassment, or reprisal."<ref><span id="ALDF_00019683">''Id.'' at 101-02.</span></ref>
The Court also applied exacting scrutiny in a 2010 case involving the disclosure of petition sponsors rather than donors.<ref><span id="ALDF_00019684">''[[Doe v. Reed]]'', 561 U.S. 186 (2010).</span></ref> In ''[[Doe v. Reed]]'', voters seeking to challenge a state law through the referendum process had to submit a petition with the requisite number of signatures to the secretary of state.<ref><span id="ALDF_00019685">''Id.'' at 190-91.</span></ref> Such petitions were subject to public disclosure and included the names and addresses of signatories.<ref><span id="ALDF_00019686">''Id.'' at 192-93.</span></ref> The Court held that petition activity is protected by the First Amendment and that disclosure requirements in the electoral context are subject to exacting scrutiny.<ref><span id="ALDF_00019687">''Id.'' at 195-96. "Exacting scrutiny" is a First Amendment standard of review developed to evaluate disclosures in the election context. ''Id.'' at 196 (citing ''[[Buckley v. Valeo]]'', 424 U.S. 1, 64 (1976) (per curiam), ''superseded by statute'', BCRA of 2002, 116 Stat. 81).</span></ref> Balancing the relevant interests, the Court held that "preserving the integrity of the electoral process" by combating "petition-related fraud" was a sufficiently important purpose to justify the "modest burdens" that disclosure might cause.<ref><span id="ALDF_00019688">''Id.'' at 198-201.</span></ref>
The balance of interests tilted in favor of the organizations and their donors in the Court's 2021 decision in ''[[Americans for Prosperity Foundation v. Bonta]]''.<ref><span id="ALDF_00019689">No. 19-251, slip op. at 19 (U.S. July 1, 2021).</span></ref> That case involved a California regulation requiring charities soliciting funds in the state to disclose to the State Attorney General the names, addresses, and total contributions of an organization's significant donors.<ref><span id="ALDF_00019690">''Id.'' at 2.</span></ref> Although the Justices in the majority divided over the applicable level of First Amendment scrutiny,<ref><span id="ALDF_00019691">The plurality suggested that any disclosure requirement affecting association should receive exacting scrutiny. ''Id.'' at 7-8 (plurality opinion). Several Justices whose concurrence was necessary to the result in ''Bonta'' questioned this conclusion. ''See'' ''id.'' at 1-4 (Thomas, J., concurring in part and concurring in the judgment) (arguing that the Court's precedents require application of strict scrutiny, a higher standard), ''and'' ''id.'' at 2 (Alito, J., concurring in part and concurring in the judgment) (stating that he and Justice Gorsuch are "not prepared at this time to hold that a single standard applies to all disclosure requirements").</span></ref> they agreed that under exacting scrutiny, the government must "narrowly tailor" a disclosure requirement to the asserted governmental interest.<ref><span id="ALDF_00019692">''Id.'' at 9-11 (majority opinion).</span></ref> The majority concluded that California's disclosure rule failed this requirement because of the "dramatic mismatch" between the state's interest in preventing charitable fraud and its "up-front," "blanket demand" for the disclosure.<ref><span id="ALDF_00019693">''Id.'' at 12-14.</span></ref>
====Compelled Association====
=====Union Membership and Fees=====
The First Amendment comes into play when the government or a public employer requires employees to join or financially support a union as a condition of employment.<ref><span id="ALDF_00019694">Similar arrangements in the private sector would not trigger First Amendment protection absent governmental action. ''[[Janus v. AFSCME, Council 31]]'', No. 16-1466, slip op. at 35 n.24 (U.S. June 27, 2018).</span></ref> Requiring employees to subsidize a union--even when membership is not required<ref><span id="ALDF_00019695">''See'' ''[[R. Emps.' Dep't v. Hanson]]'', 351 U.S. 225, 231, 238 (1956) (suggesting that "forcing ideological conformity" through union membership would violate the First Amendment).</span></ref>--compels employees to fund the union's speech, implicating both speech and expressive association.<ref><span id="ALDF_00019696">''See'' ''[[Knox v. SEIU, Local 1000]]'', 567 U.S. 298, 310-11 (2012) (explaining that when the government "exacts compulsory union fees as a condition of public employment," those fees "constitute a form of compelled speech and association").</span></ref>
For over forty years, the Court's decisions allowed such government-compelled union fees to some extent. In 1977, in ''[[Abood v. Detroit Board of Education]]'', the Court ruled that public-sector employers could require their employees to pay agency fees to their union representatives for the purposes of collective bargaining, contract administration, and grievance procedures.<ref><span id="ALDF_00019697"> [http://cdn.loc.gov/service/ll/usrep/usrep431/usrep431209/usrep431209.pdf 431 U.S. 209, 225-26 (1977)], ''overruled by'' ''[[Janus v. AFSCME, Council 31]]'', No. 16-1466, slip op. at 2 (U.S. June 27, 2018).</span></ref> Compulsory union fees--also called "agency fees"--could not, however, be used for political purposes.<ref><span id="ALDF_00019698">''Id.'' at 235-36.</span></ref> The Court reasoned that the First Amendment bars a state from compelling an individual "to contribute to the support of an ideological cause he may oppose as a condition" of public employment.<ref><span id="ALDF_00019699">''Id.'' at 235.</span></ref>
''[[Abood]]''<nowiki>'</nowiki>s allowance of fees for activities germane to collective bargaining, though criticized at times by Members of the Court,<ref><span id="ALDF_00019700">Cases applying or questioning the ''[[Abood]]'' decision are discussed in more detail in [[{{ROOTPAGENAME}}/First Amend.#Compelled Subsidization|First Amend.: Compelled Subsidization]].</span></ref> held sway until 2018, when the Supreme Court overruled this aspect of the decision in ''[[Janus v. AFSCME, Council 31]]''.<ref><span id="ALDF_00019701"> ''[[Janus]]'', slip op. at 497.</span></ref> The ''[[Janus]]'' Court held that compulsory agency fees unduly burdened the speech and association of public-sector employees who did not want to join or financially support their workplace union.<ref><span id="ALDF_00019702">''Id.'' at 12, 17, 33.</span></ref>
=====Nondiscrimination and Equal-Access Requirements=====
Nondiscrimination laws implicate the freedom of association to the extent that they require organizations to admit or otherwise associate with individuals that they would otherwise exclude. While the Supreme Court has recognized a right ''not to associate'', it has also held that the Constitution "places no value on discrimination."<ref><span id="ALDF_00019703">''[[Norwood v. Harrison]]'', 413 U.S. 455, 469-70 (1973) (explaining that "[i]nvidious private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment, but it has never been accorded affirmative constitutional protections"); ''see also'' ''[[R. Mail Ass'n v. Corsi]]'', 326 U.S. 88, 93-94 (1945) (rejecting a claim that New York Civil Rights Law interfered with an organization's "right of selection to membership" in violation of the Due Process Clause of the Fourteenth Amendment).</span></ref> Many of the cases involving freedom of association thus concern the interplay between government-imposed nondiscrimination or equal-access requirements and a group's freedom to associate with individuals of its choosing.<ref><span id="ALDF_00019704">''See, e.g.'', ''[[Hishon v. King &amp; Spalding]]'', 467 U.S. 69, 78 (1984) (rejecting a law firm's argument that applying a federal nondiscrimination statute to its decision not to promote a female associate to partner would violate the firm's freedom of association); ''[[Runyon v. McCrary]]'', 427 U.S. 160, 178 (1976) (holding that Congress can prohibit private schools from excluding children on the basis of race without violating a parent's or a child's right to free association).</span></ref> The Supreme Court decisions in this area also are informed, in part, by the Court's solicitude for an organization's own freedom of speech.<ref><span id="ALDF_00019705">''E.g.'', ''[[Boy Scouts of Am. v. Dale]]'', 530 U.S. 640 (2000).</span></ref>
In general, the government may impose nondiscrimination requirements on private, social organizations through public accommodations laws and other statutory requirements if those laws "serve compelling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms."<ref><span id="ALDF_00019706">''[[Roberts v. U.S. Jaycees]]'', 468 U.S. 609, 623 (1984).</span></ref> In ''[[Roberts v. United States Jaycees]]'', the Court held that Minnesota, through its public accommodations law, could require the United States Jaycees to include women in its membership.<ref><span id="ALDF_00019707">''Id.'' at 628-29.</span></ref> The Court reasoned that the government had a compelling interest in ensuring that women had equal access to publicly available goods and services, including the programs offered by the Jaycees.<ref><span id="ALDF_00019708">''Id.'' at 623-26.</span></ref> Additionally, applying the law to the Jaycees advanced that interest through "the least restrictive means."<ref><span id="ALDF_00019709">''Id.'' at 626.</span></ref> The exclusion of women, the Court ruled, was not necessary to preserve the integrity of the organization's own expressive activities, which included civic, charitable, lobbying, fundraising, and other activities that did not depend on an all-male membership.<ref><span id="ALDF_00019710">''Id.'' at 627. The Court also held that the Jaycees did not have a right of "intimate association," because they lacked "the distinctive characteristics" of that form of association, such as small size, identifiable purpose, and selectivity in membership. ''Id.'' at 621.</span></ref> The Court reached a similar decision, based on similar reasoning, three years later in ''[[Board of Directors of Rotary International v. Rotary Club of Duarte]]''.<ref><span id="ALDF_00019711"> [http://cdn.loc.gov/service/ll/usrep/usrep481/usrep481537/usrep481537.pdf 481 U.S. 537, 547, 549 (1987)].</span></ref>
Consistent with ''[[Roberts]]'' and ''[[Duarte]]'', in ''[[New York State Club Association v. City of New York]]'', the Court upheld New York City's Human Rights Law, which prohibited race, creed, sex, and other discrimination in places "of public accommodation, resort, or amusement," and extended to certain private clubs.<ref><span id="ALDF_00019712"> [http://cdn.loc.gov/service/ll/usrep/usrep487/usrep487001/usrep487001.pdf 487 U.S. 1, 10 (1988)] (quoting N.Y.C. Admin. Code &#167; 8-109(1) (1986)).</span></ref> The Court reasoned that the City's antidiscrimination law was neither invalid in all its applications nor "substantially overbroad" because the city could constitutionally apply the law to large clubs with commercial operations.<ref><span id="ALDF_00019713">''Id.'' at 11-15.</span></ref>
Essential to the holding of ''[[Roberts]]'' and ''[[Rotary International]]'' was the Court's conclusion that including women in those organizations would not impinge on the organization's ability to present its message. In contrast, where nondiscrimination requirements would affect an organization's messaging, the Court has been more protective of the right of association under the First Amendment. In ''[[Hurley v. Irish-American Gay, Lesbian, &amp; Bisexual Group of Boston]]'', the private organizers of Boston's St. Patrick's Day parade denied a group's request to march in the parade.<ref><span id="ALDF_00019714"> [http://cdn.loc.gov/service/ll/usrep/usrep515/usrep515557/usrep515557.pdf 515 U.S. 557, 561 (1995)].</span></ref> The group claimed that its exclusion was based on its members' sexual orientation and thus violated the state's public accommodations law.<ref><span id="ALDF_00019715">''Id.''</span></ref> The parade organizers responded that application of that statute would violate their freedom of expressive association.<ref><span id="ALDF_00019716">''Id.'' at 562-63.</span></ref> The Supreme Court agreed with the parade organizers. It first held that parades are a form of expression even if they lack a "particularized message" because marchers in a parade are usually "making some sort of collective point."<ref><span id="ALDF_00019717">''Id.'' at 568-69.</span></ref> The Court next reasoned that the group sought to engage in expressive speech by marching as a unit celebrating its members' gay, lesbian, and bisexual identities and Irish heritage.<ref><span id="ALDF_00019718">''Id.'' at 570.</span></ref> Because "every participating unit affects the message conveyed by the private organizers," the Court reasoned, application of the statute would effectively conflict with the First Amendment by requiring the private organizers to "alter the expressive content of their parade."<ref><span id="ALDF_00019719">''Id.'' at 572-73.</span></ref> The Court distinguished ''[[Roberts]]'' and ''[[New York State Club Association]]'' as not involving "a trespass on the organization's message itself."<ref><span id="ALDF_00019720">''Id.'' at 580.</span></ref> Even if the parade could be analogized to a large, private club, such that Massachusetts could "generally justify a mandated access provision," the Court reasoned, the First Amendment would still allow such a group to "exclude an applicant whose manifest views were at odds with a position taken by the club's existing members."<ref><span id="ALDF_00019721">''Id.'' at 580-81.</span></ref>
In ''[[Boy Scouts of America v. Dale]]'', the Court similarly held that the First Amendment allowed the Boy Scouts of America to refuse a leadership role to an "avowed homosexual," despite New Jersey's public accommodations law.<ref><span id="ALDF_00019722"> [http://cdn.loc.gov/service/ll/usrep/usrep530/usrep530640/usrep530640.pdf 530 U.S. 640, 644 (2000)].</span></ref> Citing ''[[Hurley]]'', the Court held that "[t]he forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints."<ref><span id="ALDF_00019723">''Id.'' at 648.</span></ref> The Boy Scouts, the Court found, engaged in expressive activity in seeking to transmit a system of values, which, for that organization, included opposing homosexual conduct.<ref><span id="ALDF_00019724">''Id.'' at 651.</span></ref> The Court also gave "deference to [the] association's view of what would impair its expression."<ref><span id="ALDF_00019725">''Id.'' at 653.</span></ref> Allowing a gay rights activist to serve in the Scouts would "force the organization to send a message . . . that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."<ref><span id="ALDF_00019726">''Id.''</span></ref>
The Court distinguished ''[[Dale]]'' in ''[[Rumsfeld v. Forum for Academic and Institutional Rights, Inc.]]''<ref><span id="ALDF_00019727"> [https://cite.case.law/us/547/47/?full_case=true&amp;format=html 547 U.S. 47 (2006)].</span></ref> In holding that a law requiring colleges to allow military recruiters on campus did not violate the schools' freedom of expressive association, the Court observed that "[r]ecruiters are, by definition, outsiders who come onto campus for the limited purpose of trying to hire students--not to become members of the school's expressive association."<ref><span id="ALDF_00019728">''Id.'' at 69. For additional discussion of ''[[Forum for Academic and Institutional Rights, Inc.]]'', see [[{{ROOTPAGENAME}}/First Amend.#Requirements That Can Be Imposed Directly|First Amend.: Requirements That Can Be Imposed Directly]].</span></ref>
The "close scrutiny" given to public accommodations laws that limit associational freedom in cases ranging from ''[[Roberts]]'' to ''[[Dale]]'' may not apply in all contexts.<ref><span id="ALDF_00019729">''[[Christian Legal Soc'y Chapter of the Univ. of Cal. v. Martinez]]'', 561 U.S. 661, 680 (2010).</span></ref> ''[[Christian Legal Society Chapter of the University of California v. Martinez]]'' concerned a public law school's "accept-all-comers policy" that required student organizations to "open eligibility for membership and leadership to all students" as a condition of registration.<ref><span id="ALDF_00019730">''Id.'' at 668.</span></ref> A student organization argued that this policy violated their associational rights because the organization wanted to accept or exclude students based on their religion or sexual orientation.<ref><span id="ALDF_00019731">''Id.''</span></ref> The Court did not ask whether the policy was the least restrictive means of advancing the school's interests in nondiscrimination. Instead, it analogized the school's program for registered student organizations to a "limited public forum" where a regulation of First Amendment activity need only be reasonable and viewpoint-neutral.<ref><span id="ALDF_00019732">''Id.'' at 680-83.</span></ref> The Court held that the policy met both of those requirements.<ref><span id="ALDF_00019733">''Id.'' at 697.</span></ref>
====Intimate Association====
While the previous sections have focused on expressive association, the Constitution also protects certain forms of "intimate association."<ref><span id="ALDF_00019734">''[[Roberts v. U.S. Jaycees]]'', 468 U.S. 609, 618 (1984).</span></ref> These protections primarily extend from the personal liberty interests protected by the Due Process Clause of the Fourteenth Amendment,<ref><span id="ALDF_00019735">Although the Court has characterized the right of intimate association as having First Amendment dimensions, it has not recognized any intimate relationships that qualify for constitutional protection under the First Amendment, other than those identified in its due process decisions. ''See'' ''See id.'' at 619-20 (citing due process decisions).</span></ref> which the Court has construed to include an implied "right of personal privacy."<ref><span id="ALDF_00019736">''[[Carey v. Population Servs. Int'l]]'', 431 U.S. 678, 684 (1977); ''see also, e.g.'', ''[[Meyer v. Nebraska]]'', 262 U.S. 390, 399 (1923) (stating that "[w]ithout doubt," the "liberty" protected by the Fourteenth Amendment "denotes not merely freedom from bodily restraint but also the right of the individual" to marry and to "establish a home and bring up children").</span></ref> The relationships "entitled to this sort of constitutional protection" are "those that attend the creation and sustenance of a family,"<ref><span id="ALDF_00019737">''[[Roberts]]'', 468 U.S. at 619.</span></ref> including those formed through marriage,<ref><span id="ALDF_00019738">''See, e.g.'', ''[[Loving v. Virginia]]'', 388 U.S. 1, 12 (1967) (reasoning that for a state to deny the "fundamental freedom" to marry on "so unsupportable a basis" as race would "deprive all the State's citizens of liberty without due process of law"); ''[[Obergefell v. Hodges]]'', 576 U.S. 644, 675 (2015) (holding that "same-sex couples may exercise the fundamental right to marry," that is "inherent in the liberty of the person").</span></ref> childbirth,<ref><span id="ALDF_00019739">''See'' ''[[Carey]]'', 431 U.S. at 685 (stating that "the decision whether or not to beget or bear a child is at the very heart" of choices protected by the right of personal privacy implicit in the Fourteenth Amendment). ''See'' [[{{ROOTPAGENAME}}/Fourteenth Amend./Section 1 Rights#Sexual Activity, Privacy, and Substantive Due Process|Fourteenth Amend., Sec. 1: Sexual Activity, Privacy, and Substantive Due Process]].</span></ref> child-rearing,<ref><span id="ALDF_00019740">''See, e.g.'', ''[[Meyer]]'', 262 U.S. at 399 (reversing a teacher's conviction for teaching a student the German language, reasoning that the prohibition on teaching languages other than English in primary schools interfered with, among other things, "the power of parents to control the education of their own").</span></ref> and "cohabitation with one's relatives."<ref><span id="ALDF_00019741">''[[Roberts]]'', 468 U.S. at 619. ''See, e.g.'', ''[[Moore v. E. Cleveland]]'', 431 U.S. 494, 506 (1977) (holding that an ordinance that prohibited certain relatives outside of the "nuclear family" from living together violated the Fourteenth Amendment).</span></ref> Those constitutional liberties are discussed more fully elsewhere in the ''Constitution Annotated''.<ref><span id="ALDF_00019742">''See'' [[{{ROOTPAGENAME}}/Fourteenth Amend./Section 1 Rights#Family Autonomy and Substantive Due Process|Fourteenth Amend., Sec. 1: Family Autonomy and Substantive Due Process]] and [[{{ROOTPAGENAME}}/Fourteenth Amend./Section 1 Rights#Marriage and Substantive Due Process|Fourteenth Amend., Sec. 1: Marriage and Substantive Due Process]].</span></ref>
Infrequently, the Supreme Court has considered the degree to which the First Amendment may also protect association in family and intimate relationships. In ''[[Lyng v. International Union]]'', the Court rejected a First Amendment challenge to a federal law that denied eligibility for food stamps while any member of a household was on strike.<ref><span id="ALDF_00019743"> [http://cdn.loc.gov/service/ll/usrep/usrep485/usrep485360/usrep485360.pdf 485 U.S. 360, 362 (1988)].</span></ref> The Court reasoned that the law did not violate the freedom of association of close relatives because it did not "directly and substantially interfere with family living arrangements."<ref><span id="ALDF_00019744">''Id.'' at 365-66 (internal quotation marks omitted). The Court also held that the law did not violate the associational rights of the striking worker and the worker's union. ''Id.'' at 366-68. ''See also'' ''[[Dep't of Hous. v. Rucker]]'', 535 U.S. 125, 130, 136 n.6 (2002) (stating that [http://cdn.loc.gov/service/ll/usrep/usrep485/usrep485360/usrep485360.pdf ''Lyng''] "forecloses" tenants' freedom-of-association challenge against a statute authorizing local public housing authorities to "evict tenants for the drug-related activity of household members and guests whether or not the tenant knew, or should have known, about the activity").</span></ref>


===Freedom of the Press===
===Freedom of the Press===

Latest revision as of 16:15, November 7, 2023


Constitutional Law Treatise
Table of Contents
US Constitution.jpg
Constitutional Law Outline
Introduction
The Preamble
Article I Legislative Branch
Art. I, Section 1 Legislative Vesting Clause
Art. I, Section 2 House of Representatives
Art. I, Section 3 Senate
Art. I, Section 4 Congress
Art. I, Section 5 Proceedings
Art. I, Section 6 Rights and Disabilities
Art. I, Section 7 Legislation
Art. I, Section 8 Enumerated Powers
Art. I, Section 9 Powers Denied Congress
Art. I, Section 10 Powers Denied States
Article II Executive Branch
Art. II, Section 1 Function and Selection
Art. II, Section 2 Powers
Art. II, Section 3 Duties
Art. II, Section 4 Impeachment
Article III Judicial Branch
Art. III, Section 1 Vesting Clause
Art. III, Section 2 Justiciability
Art. III, Section 3 Treason
Article IV Relationships Between the States
Art. IV, Section 1 Full Faith and Credit Clause
Art. IV, Section 2 Interstate Comity
Art. IV, Section 3 New States and Federal Property
Art. IV, Section 4 Republican Form of Government
Article V Amending the Constitution
Article VI Supreme Law
Article VII Ratification
First Amendment: Fundamental Freedoms
Religion
Establishment Clause
Free Exercise Clause
Free Speech Clause
Freedom of Association
Second Amendment: Right to Bear Arms
Third Amendment: Quartering Soldiers
Fourth Amendment: Searches and Seizures
Fifth Amendment: Rights of Persons
Sixth Amendment: Rights in Criminal Prosecutions
Seventh Amendment: Civil Trial Rights
Eighth Amendment: Cruel and Unusual Punishment
Ninth Amendment: Unenumerated Rights
Tenth Amendment: Rights Reserved to the States and the People
Eleventh Amendment: Suits Against States
Twelfth Amendment: Election of President
Thirteenth Amendment: Abolition of Slavery
Thirteenth Amend., Section 1 Prohibition on Slavery and Involuntary Servitude
Thirteenth Amend., Section 2 Enforcement
Fourteenth Amendment: Equal Protection and Other Rights
Fourteenth Amend., Section 1 Rights
Fourteenth Amend., Section 2 Apportionment of Representation
Fourteenth Amend., Section 3 Disqualification from Holding Office
Fourteenth Amend., Section 4 Public Debt
Fourteenth Amend., Section 5 Enforcement
Fifteenth Amendment: Right of Citizens to Vote
Fifteenth Amend., Section 1 Right to Vote
Fifteenth Amend., Section 2 Enforcement
Sixteenth Amendment: Income Tax
Seventeenth Amendment: Popular Election of Senators
Eighteenth Amendment: Prohibition of Liquor
Eighteenth Amend., Section 1 Prohibition
Eighteenth Amend., Section 2 Enforcement of Prohibition
Eighteenth Amend., Section 3 Ratification Deadline
Nineteenth Amendment: Women's Suffrage
Twentieth Amendment: Presidential Term and Succession
Twentieth Amend., Section 1 Terms
Twentieth Amend., Section 2 Meetings of Congress
Twentieth Amend., Section 3 Succession
Twentieth Amend., Section 4 Congress and Presidential Succession
Twentieth Amend., Section 5 Effective Date
Twentieth Amend., Section 6 Ratification
Twenty-First Amendment: Repeal of Prohibition
Twenty-First Amend., Section 1 Repeal of Eighteenth Amendment
Twenty-First Amend., Section 2 Importation, Transportation, and Sale of Liquor
Twenty-First Amend., Section 3 Ratification Deadline
Twenty-Second Amendment: Presidential Term Limits
Twenty-Second Amend., Section 1 Limit
Twenty-Second Amend., Section 2 Ratification Deadline
Twenty-Third Amendment: District of Columbia Electors
Twenty-Third Amend., Section 1 Electors
Twenty-Third Amend., Section 2 Enforcement
Twenty-Fourth Amendment: Abolition of Poll Tax
Twenty-Fourth Amend., Section 1 Poll Tax
Twenty-Fourth Amend., Section 2 Enforcement
Twenty-Fifth Amendment: Presidential Vacancy
Twenty-Fifth Amend., Section 1 Presidential Vacancy
Twenty-Fifth Amend., Section 2 Vice President Vacancy
Twenty-Fifth Amend., Section 3 Declaration by President
Twenty-Fifth Amend., Section 4 Declaration by Vice President and Others
Twenty-Sixth Amendment: Reduction of Voting Age
Twenty-Sixth Amend., Section 1 Eighteen Years of Age
Twenty-Sixth Amend., Section 2 Enforcement
Twenty-Seventh Amendment: Congressional Compensation

First Amendment: Fundamental Freedoms

Overview[edit | edit source]

The First Amendment to the U.S. Constitution,[1] viewed broadly, protects religious liberty and rights related to freedom of speech. Specifically, the Religion Clauses prevent the government from adopting laws "respecting an establishment of religion"--the Establishment Clause--or "prohibiting the free exercise thereof"--the Free Exercise Clause. The First Amendment also expressly protects the freedoms of speech, press, peaceable assembly, and petition to the Government.

The Constitution Annotated essays discussing the First Amendment begin with the Religion Clauses, reviewing the history of these Clauses before explaining, in turn, the Supreme Court's interpretation of the Establishment and Free Exercise Clauses. The Religion Clause section ends with an essay exploring the relationship between the Religion Clauses and the Free Speech Clause. The Constitution Annotated then turns to this latter Clause, discussing interpretations of the Free Speech Clause before describing Supreme Court cases recognizing constitutional protections for freedom of association. Next, the Constitution Annotated explains the Free Press Clause. The First Amendment essays end by discussing the Clauses protecting the freedoms of assembly and petition.

Clause Text
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[edit | edit source]

Main Article

Overview of the Religion Clauses (Establishment and Free Exercise Clauses)[edit | edit source]

The first two provisions of the First Amendment, known as the Religion Clauses, state that "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof."[2] The Establishment and Free Exercise Clauses were ratified as part of the Bill of Rights in 1791[3] and apply to the states by incorporation through the Fourteenth Amendment.[4] Together with the constitutional provision prohibiting religious tests as a qualification for office,[5] these clauses promote individual freedom of religion and separation of church and state.

The Supreme Court has acknowledged that the Religion Clauses "are not the most precisely drawn portions of the Constitution."[6] The Framers' goal was "to state an objective, not to write a statute."[7] The clauses are "cast in absolute terms" and either, "if expanded to a logical extreme, would tend to clash with the other."[8] Accordingly, the Court has said that "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."[9] The breadth of the clauses has allowed debates over their proper scope since ratification.[10] It has also led to some "internal inconsistency" in the Supreme Court's opinions interpreting these clauses,[11] as well as interpretations that have shifted over time.

The following essays discuss the historical background of the Religion Clauses, including a discussion of colonial religious establishments and the shift in early America towards greater religious freedom.[12] Next, essays address how both clauses prevent the government from interfering in certain religious disputes.[13] Essays then examine, in turn, Supreme Court interpretations of the Establishment Clause[14] and the Free Exercise Clause.[15] Finally, two essays explore the relationship between the two Religion Clauses,[16] as well as the relationship between the Religion Clauses and the First Amendment's Free Speech Clause.[17]

One preliminary issue broadly relevant across Religion Clause jurisprudence is what the First Amendment means when it refers to "religion." Some early cases suggested that courts might determine what is properly considered to be "religion."[18] In an 1890 case rejecting a Free Exercise Clause challenge to a law disenfranchising polygamists, the Court said calling the advocacy of polygamy "a tenet of religion" would "offend the common sense of mankind."[19] Later cases, however, seemed to retreat from this suggestion as they restricted the ability of the government, including courts, to judge the legitimacy of religious beliefs.[20] Nonetheless, the Religion Clauses extend only to sincere religious activities, and in evaluating constitutional claims, the government may investigate whether a person's beliefs are insincere and whether they are secular, stemming from political, sociological, or philosophical views rather than religious beliefs.[21]

A religious belief may fall within the scope of the clauses even if it is not consistent with the tenets of a particular Christian sect, and non-Christian religions are also protected.[22] One 1965 case noted "the ever-broadening understanding of the modern religious community," discussing conceptions beyond even traditional theism.[23] In an Establishment Clause case decided a few years earlier, the Court had stated that the government may not "aid all religions as against non-believers," or "aid those religions based on a belief in the existence of God as against those religions founded on different beliefs."[24]

Establishment Clause[edit | edit source]

Main Article

General Principle of Government Neutrality to Religion[edit | edit source]

The First Amendment's Establishment Clause forbids the government from making any law "respecting an establishment of religion."[25] Perhaps most obviously, this provision prevents the federal government from establishing an official national religion akin to the Church of England.[26] But a law may "respect" an establishment even if it does not explicitly establish a religion.[27] Thus, relying on the historical background preceding the adoption of the First Amendment, and looking particularly to the colonists' experiences with religious establishments, the Supreme Court has long understood the Establishment Clause to bar other types of government support that would tend to "establish" religion, as well.[28] According to the Court, for the Founders, laws respecting "the 'establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity."[29]

The Supreme Court has often referred to government neutrality towards religion as its guiding principle in applying the Establishment Clause.[30] For example, the Court has said the state must "be a neutral in its relations with groups of religious believers and non-believers."[31] The Court has further recognized that the government may provide some types of support without violating the Establishment Clause.[32] While "neutrality" has remained the general touchstone, the Court has adopted a variety of approaches to determine whether any given action is sufficiently neutral.[33]

Free Exercise Clause[edit | edit source]

Main Article

Overview of Free Exercise Clause[edit | edit source]

The First Amendment's Free Exercise Clause forbids Congress from "prohibiting the free exercise" of religion.[34] The general framework for the Supreme Court's Free Exercise jurisprudence was largely established in the 1940 case Cantwell v. Connecticut, which also gave the Supreme Court the opportunity to apply the Free Exercise Clause to the states.[35] In Cantwell, the Court explained that the Religion Clauses "embrace[ ] two concepts,--freedom to believe and freedom to act. The first is absolute but, in the nature of things, the second cannot be."[36] Starting with the first freedom, as explored in more detail in a subsequent essay,[37] the Free Exercise Clause "categorically prohibits government from regulating, prohibiting, or rewarding religious beliefs as such."[38]

The Court also clarified in Cantwell that religious actions, as opposed to beliefs, are "subject to regulation for the protection of society."[39] However, the Court cautioned that the government must exercise its regulatory power cautiously so it does not "unduly . . . infringe" religious freedom.[40] Therefore, a law that burdens but does not directly regulate religious belief is not categorically prohibited but will likely still be subject to constitutional scrutiny. Over the years, the Court has fleshed out standards to determine when regulations of religious conduct unduly infringe constitutionally protected free exercise. These standards have differed over time and circumstances, as discussed in the following essays.

The prevailing standard governing most laws was established in 1990's Employment Division v. Smith, in which the Supreme Court ruled that "the right of free exercise does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'"[41] This statement echoed early, pre-Cantwell cases involving free exercise challenges to criminal laws prohibiting polygamy in U.S. territories.[42] In these cases, the Supreme Court rejected the challenges brought by those who practiced religiously motivated polygamy, holding that the government could permissibly prohibit polygamy and the defendants' religious beliefs could not excuse them from punishment.[43] Similarly, early cases rejected the idea that conscientious objectors had a constitutional right "to avoid bearing arms," in light of Congress's broad war powers authority.[44] Although Smith hearkened back to these earlier cases,[45] the opinion's lenient standard of constitutional scrutiny departed from some cases in the mid-twentieth century that had suggested the government needed a compelling interest to apply a facially neutral law in a way that burdened a person's religious activity.[46]

Even after Smith, though, a law that imposes special burdens on religious activities may not be considered neutral or generally applicable and will likely trigger heightened scrutiny.[47] Accordingly, one critical factor in evaluating Free Exercise Clause challenges has been whether a law discriminates against religion in its text, purpose, or effect.[48] As one opinion cautioned, "[i]f the purpose or effect of a law is to impede the observance of one or all religions or is to discriminate invidiously between religions, that law is constitutionally invalid even though the burden may be characterized as being only indirect."[49]

Although it has not always been an explicit part of its analysis, the Supreme Court has suggested in some decisions that a government policy does not violate the Free Exercise Clause unless it has some coercive effect towards a person's religious exercise.[50] While recognizing that "indirect coercion or penalties on the free exercise of religion, not just outright prohibitions," may violate the First Amendment, the Court has further clarified that "incidental effects of government programs" with "no tendency to coerce individuals into acting contrary to their religious beliefs" do not trigger heightened constitutional scrutiny.[51] For example, the Court rejected a free exercise challenge to a program that allowed public schools to release students during the school day to take religious classes at private religious institutions.[52] The program did not involve any free exercise issue, in the Court's view, because it did not involve coercion: no one was "forced to go to the religious classroom and no religious exercise or instruction [was] brought to the classrooms of the public schools."[53] Accordingly, the Court has sometimes held that where a government action does not require regulated entities to act in a way that their religious beliefs prohibit, there is no Free Exercise Clause violation.[54] Essentially, a law that does not regulate belief or burden religious exercise will not violate the Free Exercise Clause.[55]

Relationship Between the Establishment and Free Exercise Clauses[edit | edit source]

The First Amendment's Religion Clauses prohibit the government from making any law "respecting an establishment of religion, or prohibiting the free exercise thereof."[56] Together, the Free Exercise and Establishment Clauses guarantee religious freedom,[57] deeming "religious beliefs and religious expression . . . too precious to be either proscribed or prescribed by the State."[58]

In many ways, the two provisions work together to ensure government neutrality towards religion: the Establishment Clause prohibits "a fusion of governmental and religious functions" or official governmental support for "the tenets of one or of all orthodoxies," while the Free Exercise Clause protects "the right of every person to freely choose his own course" of religious observance "free of any compulsion from the state."[59] The two clauses, however, operate in distinct ways, and "forbid two quite different kinds of governmental encroachment upon religious freedom."[60] The Free Exercise Clause is concerned with "governmental compulsion," while the Establishment Clause is "violated by . . . laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not."[61] Viewed another way, the Free Exercise Clause protects the individual's religious beliefs, while the Establishment Clause is additionally concerned with institutional "tendencies to political tyranny and subversion of civil authority."[62]

The Supreme Court has long recognized a "tension" between the Religion Clauses.[63] For example, in 1947's Everson v. Board of Education, the Court rejected an Establishment Clause challenge to a state program that paid the bus fares of schoolchildren, including those who attended religious schools.[64] While acknowledging that the Establishment Clause prevented the state from giving "tax-raised funds to the support of an institution which teaches the tenets and faith of any church," the Court also cautioned that neither could the state exclude citizens, "because of their faith, or lack of it, from receiving the benefits of public welfare legislation."[65] The Court said it had to be "careful" that, in service of protecting "against state-established churches," it would not "inadvertently prohibit [the state] from extending . . . general . . . benefits to all its citizens without regard to their religious belief."[66] In the words of the Court: "State power is no more to be used so as to handicap religions than it is to favor them."[67] Accordingly, in some decisions, the Court has cautioned that the government "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.'"[68]

The Court has recognized "room for play in the joints" between the proscriptions of "governmentally established religion" and "governmental interference with religion," pursuing "a benevolent neutrality which will permit religious exercise to exist without sponsorship and without interference."[69] Accordingly, the Court has recognized, as in Everson, that the government may sometimes accommodate or indirectly support religious entities or activities without violating the Establishment Clause, even when those accommodations are not required by the Free Exercise Clause.[70] A permissible accommodation will generally relieve a burden on religious exercise, such as by exempting religious practices from a general regulation.[71] Attempts at accommodation may go too far and violate the Establishment Clause, however, if they merely aid religious exercise rather than relieving a burden.[72] For instance, in one case, the Court concluded that a state had violated the Establishment Clause by intentionally giving a specific religious group "exclusive control" of a school district.[73] This "proposed accommodation single[d] out a particular religious sect for special treatment," and the Court clarified that "permissible legislative accommodations" must honor "neutrality as among religions."[74] Notwithstanding this case's concern about preferential treatment, the Supreme Court has seemed to move more towards an accommodationist view of the Establishment Clause in recent decades.[75]

Conversely, turning to the second aspect of the "play in the joints" described above,[76] the government may sometimes limit its support for religion without violating the Free Exercise Clause, even when those restrictions are not required by the Establishment Clause.[77] Stated another way, the government may sometimes take "antiestablishment" positions, such as declining to provide support to certain religious activities, without violating the Free Exercise Clause.[78] In Locke v. Davey, the Court held that a state did not violate the Free Exercise Clause by prohibiting students from using publicly funded scholarships to pursue devotional theology degrees.[79] Although providing such scholarships would not violate the Establishment Clause,[80] the Court nonetheless concluded that the state could take a "more stringent" approach to "antiestablishment" than the U.S. Constitution and choose not to fund these specific religious activities.[81] The Court characterized the state's interest in not using public funds to support church leadership as "historic and substantial," and noted that the state policy contained no evidence of "animus towards religion."[82] In a similar vein, the Court in 1974 upheld a state's ability to exclude religious schools from school transportation programs.[83]

Since deciding Locke, however, the Court has seemingly narrowed the "play in the joints"[84] on this issue, rejecting states' interests in "preventing establishment" in other cases presenting different factual circumstances.[85] The Court has suggested that in some cases, failing to accommodate religious activity would demonstrate impermissible hostility to religion.[86] Further, more recent decisions have ruled that states violated the Free Exercise Clause by excluding religious organizations from generally available benefits programs. First, in Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court held that a state acted unconstitutionally when it excluded religious organizations from receiving grants to purchase rubber playground surfaces.[87] The Court explained that because the program barred religious organizations based solely on their religious character, this religious penalty was subject "to the 'most rigorous' scrutiny" and could be justified only by "a state interest 'of the highest order.'"[88] In the Court's view, the state's interest in "skating as far as possible from religious establishment concerns" was insufficiently "compelling" in light of the policy's "clear infringement on free exercise."[89] The Court distinguished Locke by saying the state in Locke had permissibly chosen to deny a scholarship because of what the recipient "proposed to do--use the funds to prepare for the ministry."[90] By contrast, in Trinity Lutheran, the Supreme Court held that the state was impermissibly denying funds because of what the recipient "was"--a church.[91] A plurality of the Court further clarified that the Trinity Lutheran decision did "not address religious uses of funding or other forms of discrimination."[92]

The Court built on Trinity Lutheran's nondiscrimination principle in Espinoza v. Montana Department of Revenue, ruling that a state could not bar religious schools from participating in a tax credit program benefiting private school students.[93] The state supreme court had concluded that the program, which originally included religious schools, violated a state constitutional provision that prohibited the government from providing direct or indirect financial support to religious schools.[94] The U.S. Supreme Court rejected the state's argument that it had barred religious schools from the program based on how they would use the funds--for religious education--and held instead that the text of the state constitution barred religious schools from public benefits solely because of their religious character.[95] Again distinguishing Locke, the Court emphasized that the state had not merely excluded any "particular 'essentially religious' course of instruction," but barred all aid to religious schools.[96] Further, unlike the "'historic and substantial' state interest in not funding the training of clergy" at issue in Locke, there was no similar historically grounded interest in disqualifying religious schools from public aid more generally.[97] Accordingly, following the analysis in Trinity Lutheran, the Court ruled that the exclusion based on religious status was unconstitutional under a strict scrutiny standard.[98]

In Carson v. Makin, the Court squarely rejected the idea that states could exclude religious schools from an indirect aid program based on religious uses of the funds, further narrowing the play in the joints.[99] A state program allowed parents to use tuition assistance funds at public schools or "approved" private schools, which had to be "nonsectarian."[100] Maine raised two claims to try to avoid Trinity Lutheran.[101] First, the state argued its program was designed to provide a public education, which inherently entailed a secular education.[102] The Court rejected this claim, saying the state could not recast a discriminatory exclusion as a permissible funding condition.[103] Second, seizing on the possible distinction in Trinity Lutheran between religious status and religious use, the state said it excluded sectarian schools based on concerns about public funds being used for religious activities.[104] In contrast to Espinoza, the Court in Carson accepted that the state was excluding the schools based on their religious use of funds, rather than merely their religious identity.[105] Nonetheless, the Court held that "use-based discrimination" is just as "offensive to the Free Exercise Clause,"[106] at least in the context of a "neutral" indirect benefit program that did not violate the Establishment Clause.[107] Accordingly, as in Trinity Lutheran and Espinoza, the Court ruled the exclusion unconstitutional under a strict scrutiny analysis.[108] Further, while Trinity Lutheran had distinguished Locke in part by emphasizing that the theology-degree exclusion was based on the recipient's use of the funds, the Carson opinion distinguished Locke by characterizing the case as having a "narrow focus on vocational religious degrees."[109]

Relationship Between Religion Clauses and Free Speech Clause[edit | edit source]

The Supreme Court has described the First Amendment as protecting certain rights of conscience.[110] This general description can encompass the related protections for both speech and religion: "Just as the right to speak and the right to refrain from speaking are complementary components of a broader concept of individual freedom of mind, so also the individual's freedom to choose his own creed is the counterpart of his right to refrain from accepting the creed established by the majority."[111]

Supreme Court cases recognizing protections for religious speech have explored the precise relationship between the Free Speech and Free Exercise Clauses. The Court has recognized that each Clause protects private religious speech on its own,[112] but in some cases, has invoked both Clauses to outline protections for religious speech.[113] The two Clauses "work in tandem": "[w]here the Free Exercise Clause protects religious exercises, whether communicative or not, the Free Speech Clause provides overlapping protection for expressive religious activities."[114] For example, in Jamison v. Texas, the Court held that a city ordinance prohibiting the distribution of handbills violated both the Free Exercise and the Free Speech Clauses when it was applied to a person who was advertising religious services and materials.[115] The Court emphasized constitutional protections for expressing one's views on public streets as well as protections for "a clearly religious activity."[116] In a similar vein, some early cases interpreting free exercise protections seemed to consider certain free speech concepts such as the public forum doctrine.[117]

In a later case, though, the Supreme Court emphasized that the First Amendment nonetheless "protects speech and religion by quite different mechanisms," pointing in part to the Establishment Clause.[118] Namely, the Free Speech Clause contemplates that the government will participate in public discussions, as part of the "full expression" of speech.[119] By contrast, while the Free Exercise Clause's "freedom of conscience and worship . . . has close parallels in the speech provisions of the First Amendment, . . . the Establishment Clause is a specific prohibition on forms of state intervention in religious affairs."[120] However, the Court has since cautioned against a reading of the Clauses that creates tension or allows the Establishment Clause to "trump the other two."[121] The Court has ruled that schools may not violate a party's free exercise or free speech rights based on "phantom constitutional violations" stemming from "misconstruction[s] of the Establishment Clause."[122]

A number of Supreme Court cases have considered whether the government violated the Establishment Clause by impermissibly supporting or endorsing private religious speech.[123] For instance, in Widmar v. Vincent, a university prevented a student group from using its buildings for religious worship, citing Establishment Clause concerns.[124] The Court recognized that although the group's private religious speech was protected by the Free Speech Clause, the government's obligation to comply with the Establishment Clause could provide a compelling interest allowing the university to restrict that speech--if allowing the group to use its facilities would constitute impermissible support.[125] However, in Widmar and a number of other cases, the Court held that schools do not violate the Establishment Clause merely by hosting religious speech, where the speech can be attributed to private parties rather than the government.[126]

To determine whether speech should be considered private, the Court has looked to factors such as whether a forum is generally available to a variety of participants, both religious and nonreligious, as well as the amount of control the government exercised over the speech.[127] In one case, the Supreme Court held that a state impermissibly denied a private group permission to display a cross in a public park, concluding that the cross "was private expression . . . . fully protected under the Free Speech Clause."[128] The fact that the "purely private religious speech" was "connected to the State only through its occurrence in a public forum"--a park where the state had previously hosted a variety of other speech--meant that the government did not violate the Establishment Clause by hosting the display.[129]

More broadly, the Supreme Court has rejected Establishment Clause challenges where schools "grant[ed] access to . . . facilities on a religion-neutral basis to a wide spectrum of student groups," including religious groups.[130] The Court stated this principle directly in Board of Education v. Mergens, in which a federal law prohibited public secondary schools from denying students access to forums based on the content of their speech.[131] The Court upheld that law, holding that requiring schools to host religious speech did not violate the Establishment Clause.[132] Among other factors, the Court highlighted that the law required schools to host a wide variety of speech "on a nondiscriminatory basis," and that the specific school raising this constitutional claim had in fact recognized a "broad spectrum" of student clubs, "counteract[ing] any possible message of official endorsement of or preference for religion or a particular religious belief."[133]

By contrast, in Santa Fe Independent School District v. Doe, the Court held that student-led prayers held prior to public school football games could not "be regarded as 'private speech.'"[134] The Court emphasized that not only did the invocations "take place on government property at government-sponsored school-related events," but the government also helped to select the speaker, "invite[d] and encourage[d] religious messages," and otherwise appeared to support the speech.[135] In addition, the Court noted that the school allowed "only one student, the same student for the entire season, to give the invocation," which was "subject to particular regulations that confine the content and topic of the student's message."[136] Consequently, the school practice violated the Establishment Clause.[137]

Thus, while the Free Speech and the Free Exercise Clauses serve similar goals of preventing government infringement of individual freedom of thought, their protections are not necessarily coextensive.[138] Further, while Establishment Clause concerns could theoretically justify restrictions on private religious speech, the Court has largely held that the government only violates the Establishment Clause if it goes beyond merely hosting private religious speech to give special support to religious activity. Cases reading the Establishment Clause to have a more limited scope could further contract the government's ability to restrict religious speech by employees or on public property.[139] For example, in Kennedy v. Bremerton School District, the Supreme Court ruled that a school violated the Free Exercise and Free Speech Clauses when it punished a football coach for praying on the football field after games.[140] The Court refused to consider concerns about government endorsement of prayer, and in considering the applicability of Santa Fe, looked only to aspects of that decision that it believed went to government coercion.[141] Ultimately, the Court concluded there was no coercion in the coach's prayer practice, as discussed in more detail in another essay.[142]

Free Speech Clause[edit | edit source]

Main Article

Historical Background on Free Speech Clause[edit | edit source]

The Free Speech Clause went through several iterations before it was adopted as part of the First Amendment. James Madison drafted an initial version of the speech and press clauses that was introduced in the House of Representatives on June 8, 1789. Madison's draft 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."[143] The House of Representatives special committee rewrote Madison's language to make the speech and press clauses 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."[144] The Senate subsequently rewrote the speech and press clauses 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."[145] Later, the Senate combined the religion clauses and the speech and press clauses[146] and the House and Senate agreed to final language in conference.

There was relatively little debate over the speech and press clauses in the House, and there is no record of debate over the clauses in the Senate.[147] During debate over the clauses, Madison warned against the dangers that 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."[148] The general statement of these "simple" principles, however, gave rise to controversy when applied to specific government actions.[149]

The Sedition Act of 1798 sparked one such controversy that "crystallized a national awareness of the central meaning of the First Amendment."[150] The law 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 . . . or to bring them . . . into contempt or disrepute."[151] While Thomas Jefferson and Madison condemned the act as unconstitutional, the Adams Administration used it to prosecute its political opponents.[152] Although the Supreme Court never ruled the Sedition Act unconstitutional prior to its expiration in 1801, the Court later recognized "a broad consensus" from the political and judicial branches that the act was unconstitutional.[153]

Freedom of Association[edit | edit source]

Main Article

Overview of Freedom of Association[edit | edit source]

The First Amendment protects many activities, such as communication, assembly, and worship, that are not solely personal but may be based on communities and relationships of all kinds (that is, association). Even though the First Amendment's text does not expressly identify a "freedom of association,"[154] the Supreme Court has recognized this right as "an indispensable means of preserving" other First Amendment freedoms.[155] Specifically, the Court "has recognized a right to associate for the purpose of engaging" in "speech, assembly, petition for the redress of grievances, and the exercise of religion."[156]

This right of "expressive association" is the focus of this set of essays.[157] The Court has also recognized a "personal liberty" interest in "certain intimate human relationships," protected not only by the First Amendment, but also by the Due Process Clause of the Fourteenth Amendment.[158] This concept of "intimate association" is discussed at the end of this section and in the essays on substantive due process.[159]

The Supreme Court did not always recognize a constitutional right of association. In 1886, in a case involving the formation of state militias, the Court decreed that state governments "have the power to regulate or prohibit associations and meetings of the people, except in the case of peaceable assemblies" formed to petition the government.[160] It would be fifty years before the Court came to see the right of assembly as a distinct avenue for other kinds of association.[161] In 1937, the Court held that the "right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental."[162] The Court applied this interpretation of the freedom of assembly in a 1945 case, holding that the right of union organizers to inform others about the advantages and disadvantages of joining a union "is protected not only as part of free speech, but as part of free assembly."[163]

Starting in the 1950s, the Court began to refer to the freedom of association as a right distinct from, but closely related to, the freedoms of speech and assembly, which are expressly listed in the First Amendment.[164] By 1958, the Court considered it "beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of" civil liberties such as the freedom of speech.[165] Although political association is a classic example of expressive association,[166] the First Amendment also protects "forms of 'association' that are not political in the customary sense but pertain to the social, legal, and economic benefit of the members."[167]

Only a few Supreme Court decisions involving the freedom of association concern direct restrictions on association. For example, in Coates v. Cincinnati, the Court held that a local ordinance violated the freedoms of association and assembly on its face.[168] The challenged ordinance made it a crime for "three or more persons to assemble . . . on any of the sidewalks . . . and there conduct themselves in a manner annoying to persons passing by."[169] According to the Court, this ordinance was "aimed directly at activity protected by the Constitution"--the freedoms of association and assembly.[170]

More commonly, the Court has considered cases in which the regulation of other behavior indirectly affects the freedom to associate. For example, because association supports other First Amendment activity, the Court has recognized that compelling disclosure of one's associations can inhibit exercising protected First Amendment rights, particularly where disclosure would subject an individual to threats, harassment, or economic reprisals.[171] Accordingly, First Amendment protections "are triggered not only by actual restrictions on an individual's ability to join with others to further shared goals," but also by laws or regulations that may have a "chilling effect on association."[172]

The Court's decisions in this area, though not always reconcilable, reflect a balancing of First Amendment rights and governmental interests as well as the major political and social events of the era. For example, in the 1950s and 1960s, the Court adjudicated many cases in which the government asked U.S. citizens to reveal or disavow their actual or perceived affiliations with the Communist Party.[173] The Court largely credited concerns that states and the federal government expressed at that time about the security threat that Communism posed to the United States,[174] even while applying increasing First Amendment scrutiny to laws that burdened the association of other groups.[175] Describing its own decisions in 1963, the Court explained, "the Communist Party is not an ordinary or legitimate political party[,]" and thus, Party membership "is a permissible subject of regulation and legislative scrutiny."[176] While the Court later abandoned some of its presumptions about the dangers of bare association, the Court's care with respect to issues of national security remained evident in later cases, such as a 2010 decision upholding a ban on domestic support of designated foreign terrorist organizations.[177]

Although many of the leading Supreme Court decisions on the freedom of association concerned burdens on association, the Court has also held that "compelled association" can violate the First Amendment.[178] For example, in some circumstances, laws requiring organizations to include persons with whom they disagree on political, religious, or ideological matters can violate members' freedom of association, particularly if those laws interfere with an organization's message.[179]

As with other individual rights protected by the Constitution, the freedom of association is not absolute.[180] First, the government may prohibit "agreements to engage in illegal conduct," even though such agreements "undoubtedly possess some element of association."[181] Second, forms of association that are neither "intimate" nor "expressive" within the meaning of First Amendment case law may not receive constitutional protection.[182] Third, as noted above, even when a law implicates protected association, the government's interests may outweigh the burdens on association in some circumstances.[183] Finally, although individuals have a right to organize as a group to express their views, there is no corresponding constitutional obligation on the part of the government to listen to the group's concerns.[184]

Freedom of the Press[edit | edit source]

Overview of Freedom of the Press[edit | edit source]

Some have raised the question of whether the Free Speech Clause and the Free Press Clause are coextensive, with respect to protections for the media. A number of Supreme Court decisions considering the regulation of media outlets analyzed the relevant constitutional protections without significantly differentiating between the two clauses.[185] In one 1978 ruling, the Court expressly considered whether the "institutional press" is entitled to greater freedom from governmental regulations or restrictions than are non-press individuals, groups, or associations. Justice Potter Stewart argued in a concurring opinion: "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."[186] But, in a plurality opinion, Chief Justice Warren 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."[187] The plurality ultimately concluded that the First Amendment did not grant media the privilege of special access to prisons.[188]

Several Supreme Court holdings firmly point to the conclusion that the Free Press Clause does not confer on the press the power to compel government to furnish information or otherwise give the press access to information that the public generally does not have.[189] Nor, in many respects, is the press entitled to treatment different in kind from the treatment to which any other member of the public may be subjected.[190] The Court has ruled that "[g]enerally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects."[191] At the same time, the Court has recognized that laws targeting the press, or treating different subsets of media outlets differently, may sometimes violate the First Amendment.[192] Further, it does seem clear that, to some extent, the press, because of its role in disseminating news and information, is entitled to heightened constitutional protections--that its role constitutionally entitles it to governmental "sensitivity," to use Justice Potter Stewart's word.[193]

Protection of Confidential Sources[edit | edit source]

News organizations have claimed that the First Amendment compels a reporter's privilege: an exception to the ancient rule that every citizen owes to his government a duty to give what testimony he is capable of giving.[194] The Court rejected the argument for a limited exemption permitting reporters to conceal their sources from a grand jury and to keep confidential certain information they obtain and choose at least for the moment not to publish in Branzburg v. Hayes.[195] Emphasizing the importance of the grand jury in creating a "[f]air and effective law enforcement [system] aimed at providing security for the person and property of the individual," the Court concluded the public interest "in ensuring effective grand jury proceedings" overrode "the consequential, but uncertain, burden on news gathering" that would result from requiring reporters to respond to relevant grand jury questions.[196] Not only was it uncertain to what degree confidential informants would be deterred from providing information, said Justice Byron White for the Court, but the conditional nature of the alleged reporter's privilege might not mitigate the deterrent effect, eventually 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 reporters in avoiding the incidental burden on their newsgathering activities occasioned by such governmental inquiries.[197]

The Court observed that Congress, as well as state legislatures and state courts, are free to adopt privileges for reporters.[198] As for federal courts, Federal Rule of Evidence 501 provides that the common law generally governs a claim of privilege.[199] The federal courts have not resolved whether the common law provides a journalists' privilege.[200]

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, the Court held in Zurcher v. Stanford Daily.[201] 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, but it seemed to doubt that the consequences alleged would occur. 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.[202]

Access to Government Places and Papers[edit | edit source]

Conflict between constitutional rights is not uncommon. One difficult conflict 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[203] and during trials that were media spectaculars[204] 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 preventing press publication of information directly confronts the First Amendment's bar on prior restraints,[205] although the courts have a good deal more discretion in preventing the information from becoming public in the first place.[206]

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,[207] the decision raised questions concerning the extent to which, if at all, the speech and press clauses protected the public and the press in seeking to attend the trials themselves.[208] In a split ruling in Richmond Newspapers v. Virginia, the Court held that the First Amendment protected the right of access to criminal trials against the wishes of the defendant.[209]

Chief Justice Warren Burger pronounced the judgment of the Court, but his opinion was joined by only two other Justices.[210] The Chief Justice emphasized the history showing that trials were traditionally open. This openness, moreover, was no "quirk of history" but "an indispensable attribute of an Anglo-American trial."[211] He explained that 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 at the commission of many crimes, convincingly demonstrated why the tradition had developed and been maintained.[212] Thus, the opinion concluded that "a presumption of openness inheres in the very nature of a criminal trial under our system of justice."[213] Ultimately, the plurality ruled that "in 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."[214]

Justice William Brennan, joined by Justice Thurgood Marshall, followed a different route to the same conclusion. He argued that rather than solely protecting individual communications, "the First Amendment . . . has a structural role to play in securing and fostering our republican system of self-government."[215] He argued that in order to secure robust public debate and "other civic behavior," the First Amendment must also ensure that debate is "informed," protecting not only "communication itself but also . . . the indispensable conditions of meaningful communication."[216]

Two years later, the Supreme Court articulated a standard for determining when the government's or the defendant's interests could outweigh the public right of access. Globe Newspaper Co. v. Superior Court[217] involved a 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 William Brennan wrote that the First Amendment guarantees press and public access to criminal trials, both because of the tradition of openness[218] 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 recognized by the Court was not absolute; instead, 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."[219] The Court was explicit that the right of access was to criminal trials,[220] leaving open the question of the openness of civil trials.

The Court next applied and extended the right of access in several other areas of criminal proceedings, 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[221] 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."[222] 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, forty-one of the forty-four days of voir dire in a rape-murder case. The trial court also had not considered the possibility of less restrictive alternatives, for example, in camera consideration of jurors' requests for protection from publicity. In Waller v. Georgia,[223] the Court held that "under the Sixth Amendment any closure of a suppression hearing over the objections of the accused must meet the tests set out in Press Enterprise,"[224] and noted that the need for openness at suppression hearings "may be particularly strong" because the conduct of police and prosecutor is often at issue.[225] And, in Press Enterprise II,[226] the Court held that there is a similar First Amendment right of the public to access 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."[227] 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.[228]

Freedoms of Assembly and Petition[edit | edit source]

Historical Background on Freedoms of Assembly and Petition[edit | edit source]

The right of petition took its rise from the modest provision made for it in chapter 61 of the Magna Carta (1215).[229] To this meager beginning are traceable, in some measure, Parliament itself and its procedures for 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 Commons--petitioned the King for a redress of grievances as its price for meeting the financial needs of the Monarch, and as the House of Commons increased in importance, it came to claim the right to dictate the form of the King's reply, until, in 1414, the House of Commons declared itself to be "as well assenters as petitioners." Two hundred and fifty years later, in 1669, the House of 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 the House 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."[230]

The Supreme Court has asserted a similarly historical basis for the right of peaceable assembly for lawful purposes, saying "it is, and always has been, one of the attributes of citizenship under a free government."[231] One commentator has noted that the Court originally conceived the rights of petition and assembly as components of a single right but that the Court later treated the right of assembly as protecting a distinct interest in "the holding of meetings for peaceable political action."[232]

The right of petition recognized by the First Amendment first came into prominence in the early 1830s, 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.[233] For many years 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.[234] 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.[235] 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.

Doctrine on Freedoms of Assembly and Petition[edit | edit source]

The right of assembly was first before the Supreme Court in 1876[236] in United States v. Cruikshank.[237] The Enforcement Act of 1870[238] 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." Although 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.United States v. Cruikshank, 92 U.S. 542, 552-53 (1876). See also Presser v. Illinois, 116 U.S. 252, 267 (1886) (describing Cruikshank as holding "that the right peaceably to assemble was not protected by the [First Amendment] . . . , unless the purpose of the assembly was to petition the government for a redress of grievances").

Absorption of the Assembly and Petition Clauses into the liberty protected by the Due Process Clause of the Fourteenth Amendment means that the Cruikshank limitation is no longer applicable.[239] Today 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."[240] Broadly, the Court has said that the government may not proscribe "peaceable assembly for lawful discussion," and even though participants may "have committed crimes elsewhere, . . . . mere participation in a peaceable assembly and a lawful public discussion" may not provide "the basis for a criminal charge" absent evidence that their speech "transcend[ed] the bounds of the freedom of speech which the Constitution protects."[241]

Illustrative of this expansion is Hague v. CIO,[242] in which the Court, though splintered with regard to reasoning and rationale, struck down an ordinance that 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 that Justice Hugo Black joined and with which Chief Justice Charles Hughes concurred, described the right of assembly as one that "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."[243] In Coates v. Cincinnati, the Court described the right of assembly as protecting "the right of the people to gather in public places for social or political purposes," and struck down an ordinance prohibiting "annoying" assemblies as containing "an obvious invitation to discriminatory enforcement."[244]

Furthermore, the right of petition has also expanded beyond what might be implied by the language of "a redress of grievances." For example, the Supreme Court has recognized that the clause protects a right of access to the courts, beyond just a right to petition the legislature.[245] The clause also goes beyond a narrow idea of "grievances" and 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.[246] The right extends to all departments of the government, including 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."[247]

Later cases recognize overlap between the rights of assembly and petition and the speech and press clauses, and, indeed, all four rights may well be considered as elements of an inclusive right to freedom of expression.[248] While certain conduct may still be denominated as either petition[249] or assembly[250] rather than speech, similar standards will likely be applied in most cases.[251] For instance, as discussed in an earlier essay, where a public employee sues a government employer under the First Amendment's Speech Clause, the employee must show that he or she spoke as a citizen on a matter of public concern.[252] In Borough of Duryea, Pennsylvania v. Guarnieri,[253] the Court similarly held that a police chief who alleged retaliation for having filed a union grievance challenging his termination was not protected by the right to petition, because his complaints did not go to matters of public concern.[254] Further, the right of assembly has largely been superseded by the Court's recognition of an right of an implied right of association.[255]

  1. ↑ First Amendment Fundamental Freedoms.
  2. ↑ First Amendment Fundamental Freedoms (emphasis added).
  3. ↑ For a discussion of the adoption of the Religion Clauses, see First Amend.: Constitutional Convention, Ratification, and the Bill of Rights.
  4. ↑ See Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947) (incorporating the Establishment Clause); Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (incorporating the Free Exercise Clause).
  5. ↑ Art. VI, Cl. 3: Historical Background on Religious Test for Government Offices.
  6. ↑ Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970).
  7. ↑ Id.
  8. ↑ Id. at 668-69. See also First Amend.: Relationship Between the Establishment and Free Exercise Clauses.
  9. ↑ Walz.
  10. ↑ See First Amend.: Early Interpretations of the Religion Clauses.
  11. ↑ Walz.
  12. ↑ First Amend.: Introduction to the Historical Background on the Religion Clauses.
  13. ↑ First Amend.: Overview of Government Resolution of Religious Disputes; First Amend.: Doctrinal Basis of Government Resolution of Religious Disputes; First Amend.: Neutral Principles of Law and Government Resolution of Religious Disputes; and First Amend.: Church Leadership and the Ministerial Exception (government resolution of religious disputes).
  14. ↑ First Amend.: General Principle of Government Neutrality to Religion to First Amend.: Establishment Clause and Historical Practices and Tradition (Establishment Clause).
  15. ↑ First Amend.: Overview of Free Exercise Clause to First Amend.: Laws Neutral to Religious Practice Regulating Prisons and the Military (Free Exercise Clause).
  16. ↑ First Amend.: Relationship Between the Establishment and Free Exercise Clauses.
  17. ↑ First Amend.: Relationship Between Religion Clauses and Free Speech Clause.
  18. ↑ See Reynolds v. United States, 98 U.S. 145, 162 (1879) (discussing the meaning of "religion").
  19. ↑ Davis v. Beason, 133 U.S. 333, 341-42 (1890), overruled in part by Brandenburg v. Ohio, 395 U.S. 444 (1969).
  20. ↑ See, e.g., United States v. Seeger, 380 U.S. 163, 184 (1965); United States v. Ballard, 322 U.S. 78, 88 (1944); First Amend.: Laws Regulating Religious Belief.
  21. ↑ Frazee v. Ill. Dep't of Emp. Sec., 489 U.S. 829, 833 (1989); see also, e.g., Wisconsin v. Yoder, 406 U.S. 205, 216 (1972) (noting that "philosophical" beliefs would not "rise to the demands of the Religion Clauses," but finding evidence for "the claim that the traditional way of life of the Amish is not merely a matter of personal preference, but one of deep religious conviction"). In a case interpreting a federal conscientious objector statute, the Supreme Court said that "the central consideration in determining whether . . . beliefs are religious is whether these beliefs play the role of a religion and function as a religion in the registrant's life." Welsh v. United States, 398 U.S. 333, 339 (1970).
  22. ↑ See, e.g., Frazee, 489 U.S. at 834; Cruz v. Beto, 405 U.S. 319, 322 (1972).
  23. ↑ Seeger, 380 U.S. at 180.
  24. ↑ Torcaso v. Watkins, 367 U.S. 488, 495 (1961).
  25. ↑ First Amendment Fundamental Freedoms. The Establishment Clause applies to the states by incorporation through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947); see also Fourteenth Amend., Sec. 1: Early Doctrine on Incorporation of the Bill of Rights. For more information on how the Supreme Court has defined religious belief and activity, see First Amend.: Overview of the Religion Clauses (Establishment and Free Exercise Clauses) and First Amend.: Laws Regulating Religious Belief.
  26. ↑ See, e.g., Everson, 330 U.S. at 15. See also, e.g., Watson v. Jones, 80 U.S. (13 Wall.) 679, 728 (1871) ("The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.").
  27. ↑ Lemon v. Kurtzman, 403 U.S. 602, 612 (1971) (emphasis added).
  28. ↑ Everson, 330 U.S. at 8-15. See also First Amend.: Introduction to the Historical Background on the Religion Clauses.
  29. ↑ Walz v. Tax Comm'n, 397 U.S. 664, 668 (1970).
  30. ↑ See, e.g., McCreary Cnty. v. Am. Civil Liberties Union, 545 U.S. 844, 874 (2005); Wallace v. Jaffree, 472 U.S. 38, 60 (1985).
  31. ↑ Everson, 330 U.S. at 18.
  32. ↑ Id. at 17.
  33. ↑ Cf., e.g., Mitchell v. Helms, 530 U.S. 793, 837-38 (2000) (O'Connor, J., concurring in the judgment) (arguing that the plurality opinion's Establishment Clause analysis treated neutrality as a factor with "close to . . . singular importance" in a way inconsistent with the Supreme Court's prior jurisprudence).
  34. ↑ First Amendment Fundamental Freedoms.
  35. ↑ Cantwell v. Connecticut, 310 U.S. 296, 303 (1940) (holding that the Free Exercise Clause had been incorporated against the states through the Fourteenth Amendment); Hamilton v. Regents of the Univ. of Cal., 293 U.S. 245, 262 (1934) (holding that the "'liberty' protected by the due process clause" of the Fourteenth Amendment includes the right to hold and teach certain religious beliefs). See also Fourteenth Amend., Sec. 1: Early Doctrine on Incorporation of the Bill of Rights.
  36. ↑ Cantwell, 310 U.S. at 303-04. See also Sause v. Bauer, No. 17-742, slip op. at 2 (U.S. June 28, 2018) ("Prayer unquestionably constitutes the 'exercise' of religion. At the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place.");
  37. ↑ First Amend.: Laws Regulating Religious Belief.
  38. ↑ McDaniel v. Paty, 435 U.S. 618, 626 (1978) (plurality opinion).
  39. ↑ Cantwell, 310 U.S. at 304. See also Braunfeld v. Brown, 366 U.S. 599, 603-04 (1961) (plurality opinion) ("[L]egislative power . . . may reach people's actions when they are found to be in violation of important social duties or subversive of good order, even when the actions are demanded by one's religion."); Sherbert v. Verner, 374 U.S. 398, 403 (1963) (noting that the government may regulate religiously motivated actions under otherwise valid laws that protect "public safety, peace or order").
  40. ↑ Cantwell, 310 U.S. at 304.
  41. ↑ See Emp. Div., Dep't of Human Res. of Or. v. Smith, 494 U.S. 872, 879 (1990) (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring)).
  42. ↑ Late Corp. of Jesus Christ of Latter-Day Saints v. United States, 136 U.S. 1 (1890) [hereinafter LDS]; Davis v. Beason, 133 U.S. 333 (1890); Reynolds v. United States, 98 U.S. 145 (1845). LDS and Davis involved laws attaching legal consequences to the criminal practice of polygamy: a business's dissolution and a person's disenfranchisement. Cf. Cleveland v. United States, 329 U.S. 14, 20 (1946) (concluding that religious motivation did not negate criminal intent in polygamy prosecution); Miles v. United States, 103 U.S. 304, 310-11 (1880) (holding that because religion was not a defense to a polygamy prosecution, the constitutional rights of a juror in a bigamy trial "could not" be violated by inquiring "whether he himself was living in polygamy, and whether he believed it to be in accordance with the divine will and command").
  43. ↑ LDS, 136 U.S. at 50; Davis, 133 U.S. at 341-42; Reynolds, 98 U.S. at 166. In Reynolds, the Court looked to the long historical precedent of laws prohibiting polygamy. Id. at 164-66. In the other two cases, the Court appeared to take a more normative approach, saying that to call advocating polygamy "a tenet of religion is to offend the common sense of mankind," Davis, 133 U.S. at 341-42, and describing the religious belief in the practice of polygamy a "pretence" and "sophistical plea" for engaging in criminal activity, LDS, 136 U.S. at 49.
  44. ↑ United States v. Macintosh, 283 U.S. 605, 624 (1931).
  45. ↑ See Smith, 494 U.S. at 879, 882 (citing Reynolds and conscientious objector caselaw as support).
  46. ↑ Sherbert v. Verner, 374 U.S. 398, 403 (1963); see First Amend.: Laws Neutral to Religious Practice from the 1960s through the 1980s.
  47. ↑ Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 531-32 (1993).
  48. ↑ See First Amend.: Laws that Discriminate Against Religious Practice.
  49. ↑ Braunfeld v. Brown, 366 U.S. 599, 607 (1961) (plurality opinion).
  50. ↑ Bd. of Educ. v. Allen, 392 U.S. 236, 248-49 (1968) (rejecting a free exercise challenge to a textbook lending program because the challengers had not alleged the program "coerce[d] them as individuals in the practice of their religion"). See also Tilton v. Richardson, 403 U.S. 672, 689 (1971) (plurality opinion) (rejecting a free exercise challenge to a federal program offering grants for constructing academic facilities because the challengers could not "identify any coercion directed at the practice or exercise of their religious beliefs").
  51. ↑ Lyng v. Nw. Indian Cemetery Protective Ass'n, 485 U.S. 439, 450-51 (1988); see also First Amend.: Laws Neutral to Religious Practice and Internal Government Affairs.
  52. ↑ Zorach v. Clauson, 343 U.S. 306, 308 (1952).
  53. ↑ Id. at 311.
  54. ↑ See, e.g., Jimmy Swaggart Ministries v. Cal. Bd. of Equalization, 493 U.S. 378, 391-92 (1990) (holding that a generally applicable sales and use tax, applied to religious materials, imposed "no constitutionally significant burden on appellant's religious practices or beliefs"); Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 18 (1989) (plurality opinion) (saying that the Free Exercise Clause did not require a sales tax exemption for religious publications where there was no evidence that the payment of the tax "would offend . . . religious beliefs or inhibit religious activity"); Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290, 303-04 (1985) (rejecting free exercise challenge to federal law that would require a religious employer to compensate employees, saying that although they held religious objections to cash wages, the required compensation could come in the form of benefits). Cf. Native Am. Church of Navajoland, Inc. v. Ariz. Corp. Comm'n, 329 F. Supp. 907, 910 (D. Ariz. 1971) (rejecting free exercise challenge to a state denial of corporate status based on the corporation's stated purpose to advocate for religious peyote use, saying that the state's refusal to grant corporate status "by itself does not infringe in any significant way on the free exercise of their religious practices"), aff'd, 405 U.S. 901 (1972) (mem.).
  55. ↑ Tony & Susan Alamo Foundation, 471 U.S. at 303.
  56. ↑ First Amendment Fundamental Freedoms (emphasis added). The Religion Clauses apply to Congress in the text of the provision, and to the states by incorporation through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947) (incorporating the Establishment Clause); Hamilton v. Regents of the Univ. of Cal., 293 U.S. 245, 262 (1934) (incorporating the Free Exercise Clause); see also Fourteenth Amend., Sec. 1: Early Doctrine on Incorporation of the Bill of Rights.
  57. ↑ E.g., Reynolds v. United States, 98 U.S. 145, 162 (1878).
  58. ↑ Lee v. Weisman, 505 U.S. 577, 589 (1992).
  59. ↑ Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 222 (1963). See also, e.g., Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 182 (2012) ("Both Religion Clauses bar the government from interfering with the decision of a religious group to fire one of its ministers."); First Amend.: Overview of Government Resolution of Religious Disputes.
  60. ↑ Engel v. Vitale, 370 U.S. 421, 430 (1962).
  61. ↑ Id.
  62. ↑ McGowan v. Maryland, 366 U.S. 420, 430 (1961). See also Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947) ("The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority." (quoting Watson v. Jones, 80 U.S. (13 Wall.) 679, 713 (1871))).
  63. ↑ E.g., Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 788 (1973); Tilton v. Richardson, 403 U.S. 672, 677 (1971) (plurality opinion). See also First Amend.: Accommodationist and Separationist Theories of the Establishment Clause. Cf. Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 20 (U.S. June 27, 2022) (questioning an interpretation that would create tension between the Establishment, Free Exercise, and Free Speech Clauses, saying they should instead be viewed as having complementary purposes).
  64. ↑ Everson.
  65. ↑ Id. at 16.
  66. ↑ Id.
  67. ↑ Id. at 18.
  68. ↑ Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 225 (1963) (quoting Zorach v. Clauson, 343 U.S. 306, 314 (1952)). In Schempp, however, the Court invalidated mandatory Bible readings in schools despite this caution against hostility to religion, holding these religious exercises instead violated the Establishment Clause's requirement of "strict neutrality." Id.
  69. ↑ Walz v. Tax Comm'n, 397 U.S. 664, 669 (1970).
  70. ↑ See, e.g., id. at 671-72 (describing prior cases and holding that a property tax exemption that included religious properties used solely for religious purposes did not violate the Establishment Clause). See also, e.g., Cutter v. Wilkinson, 544 U.S. 709, 714 (2005) (holding that federal statute protecting prisoners' religious exercise did not "exceed the limits of permissible government accommodation of religious practices"); Corp. of Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 338 (1987) (holding that exempting religious organizations' secular activities from federal law prohibiting employment discrimination was a permissible accommodation consistent with the Establishment Clause); Wisconsin v. Yoder, 406 U.S. 205, 234 n.22 (1972) (holding that exempting the Amish from the state's compulsory education system was a permissible accommodation consistent with the Establishment Clause); Selective Draft Law Cases, 245 U.S. 366, 389-90 (1918) (saying the "unsoundness" of Free Exercise and Establishment Clause challenges to an exemption from the draft for conscientious objectors was "apparent").
  71. ↑ See Cnty. of Allegheny v. ACLU, 492 U.S. 573, 613 n.59 (1989); Amos; Yoder. See also, e.g., Cutter ("Foremost, we find RLUIPA's institutionalized-persons provision compatible with the Establishment Clause because it alleviates exceptional government-created burdens on private religious exercise."); id. (noting that the Act must "be administered neutrally among different faiths" and that "courts must take adequate account of the burdens a requested accommodation may impose on nonbeneficiaries").
  72. ↑ See Cnty. of Allegheny (explaining that a county's crèche display was not a permissible accommodation, because prohibiting the display in a county building would "not impose a burden on the practice of Christianity (except to the extent that some Christian sect seeks to be an officially approved religion)"); see also, e.g., Tex. Monthly, Inc. v. Bullock, 489 U.S. 1, 15 (1989) (plurality opinion) (ruling that a state tax exemption for religious periodicals violated the Establishment Clause as a subsidy directed "exclusively to religious organizations that is not required by the Free Exercise Clause" (emphasis added)).
  73. ↑ Bd. of Educ. of Kiryas Joel Village Sch. Dist. v. Grumet, 512 U.S. 687, 698 (1994) (plurality opinion); accord id. at 711 (Stevens, J., concurring).
  74. ↑ Id. at 706-07 (plurality opinion); see also First Amend.: Lemon's Effect Prong and Accommodation of Religion. Cf., e.g., Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 144-45, n.11 (1987) (holding that the government would not violate the Establishment Clause by extending generally available unemployment benefits equally to "religious observers who must leave their employment due to an irreconcilable conflict between the demands of work and conscience").
  75. ↑ First Amend.: Establishment Clause Tests Generally.
  76. ↑ Walz v. Tax Comm'n, 397 U.S. 664, 669 (1970).
  77. ↑ Locke v. Davey, 540 U.S. 712, 722 (2004).
  78. ↑ Id.
  79. ↑ Id. at 725.
  80. ↑ Id. at 719 (characterizing the program as indirect aid); see also First Amend.: Zelman and Indirect Assistance to Religion.
  81. ↑ Locke.
  82. ↑ Id. at 725.
  83. ↑ Luetkemeyer v. Kaufmann, 419 U.S. 888 (1974) (mem.), aff'g 364 F. Supp. 376, 386 (W.D. Mo. 1973) (holding that the state's "long established constitutional policy . . . insist[ing] upon a degree of separation of church and state to probably a higher degree than that required by the First Amendment" was a compelling state interest that justified "any possible" free exercise infringement).
  84. ↑ Walz v. Tax Comm'n, 397 U.S. 664, 669 (1970).
  85. ↑ McDaniel v. Paty, 435 U.S. 618, 628-29 (1978) (plurality opinion) (saying that a state's antiestablishment interest in provisions disqualifying clergy from legislative office "lost whatever validity [it] may once have enjoyed," ruling that the "essence" of the state's rationale was "contrary to the [modern] anti-establishment principle with its command of neutrality"); see also Widmar v. Vincent, 454 U.S. 263, 275-76 (1981) (holding that a state's interest "in proscribing indirect state support for religion" was not "sufficiently 'compelling'" to justify closing university facilities to religious worship, given that the state's antiestablishment interests were "limited by the Free Exercise Clause and in this case by the Free Speech Clause as well").
  86. ↑ See, e.g., Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 28-29 (U.S. June 27, 2022) (saying preventing teachers from engaging in personal religious activity would "preference secular activity" and be hostile to religion); Am. Legion v. Am. Humanist Ass'n, No. 17-1717, slip op. at 2 (U.S. June 20, 2019) (saying that removing a cross that had "become a prominent community landmark" would express hostility to religion); see generally Zorach v. Clauson, 343 U.S. 306, 314 (1952) (saying disallowing accommodation "would . . . find in the Constitution a requirement that the government show a callous indifference to religious groups," impermissibly "preferring those who believe in no religion over those who do believe").
  87. ↑ Trinity Lutheran Church of Columbia, Inc. v. Comer, No. 15-577, slip op. at 15 (U.S. June 26, 2017). See also First Amend.: Laws that Discriminate Against Religious Practice.
  88. ↑ Trinity Lutheran, slip op. at 14 (quoting Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) and McDaniel v. Paty, 435 U.S. 618, 628 (1978)).
  89. ↑ Id.
  90. ↑ Id. at 12.
  91. ↑ Id.
  92. ↑ Id. at 14 n.3 (plurality opinion).
  93. ↑ Espinoza v. Mont. Dep't of Revenue, No. 18-1195, slip op. at 18-20 (U.S. June 30, 2020).
  94. ↑ Id. at 5.
  95. ↑ Id. at 10. Although the Court expressed concerns about the text of the state constitutional provision, the ruling solely invalidated this particular application of the provision. See id at 11-12.
  96. ↑ Id. at 13.
  97. ↑ Id. (quoting Locke v. Davey, 540 U.S. 712, 725 (2004)).
  98. ↑ Id. at 18-20.
  99. ↑ Carson v. Makin, No. 20-1088, slip op. at 15-17 (U.S. June 21, 2022).
  100. ↑ Id. at 2-3. The assistance was available in districts that did not have a public secondary school. Id. at 2.
  101. ↑ Id. at 11.
  102. ↑ Id.
  103. ↑ Id. at 13. The Court stated that the nonsectarian private schools already participating in the program differed from public schools in a variety of ways, undermining the state's claim that the program sought to provide the equivalent of a public education. Id. at 12-13.
  104. ↑ Id. at 16.
  105. ↑ Id.
  106. ↑ Id.
  107. ↑ Id. at 10
  108. ↑ Id. at 9-10.
  109. ↑ Id. at 18.
  110. ↑ See, e.g., Wallace v. Jaffree, 472 U.S. 38, 50 (1985) (saying the Supreme Court "has identified the individual's freedom of conscience as the central liberty that unifies the various Clauses in the First Amendment"); see also First Amend.: Introduction to the Historical Background on the Religion Clauses.
  111. ↑ Wallace.
  112. ↑ See, e.g., Widmar v. Vincent, 454 U.S. 263, 269 (1981) (saying that religious worship and discussion "are forms of speech and association protected by the First Amendment"); Cantwell v. Connecticut, 310 U.S. 296, 300 (1940) (ruling that applying a law prohibiting solicitation to people engaged in religious speech violated the Free Exercise Clause).
  113. ↑ See, e.g., Marsh v. Alabama, 326 U.S. 501, 509 (1946) (holding both clauses protected a person's right to distribute religious literature); Murdock v. Pennsylvania, 319 U.S. 105, 114 (1943) (same); Largent v. Texas, 318 U.S. 418, 422 (1943) (same); Jamison v. Texas, 318 U.S. 413, 414 (1943) (same).
  114. ↑ Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 11 (U.S. June 27, 2022). In this case, the Supreme Court separately analyzed the Free Exercise and Free Speech Clause claims of a football coach who sought to pray on the football field after games, and held that regardless of which constitutional standard it applied, the coach prevailed. See id. at 19-20.
  115. ↑ Jamison.
  116. ↑ Id. at 416-17.
  117. ↑ These cases are discussed in more detail in First Amend.: Laws Neutral to Religious Practice during the 1940s and 1950s. By contrast, some Supreme Court cases have invoked only the Free Speech Clause to hold that religious speech is constitutionally protected. See, e.g., Wooley v. Maynard, 430 U.S. 705, 717 (1977) (holding the Free Speech Clause prevented the government from requiring people to display a message they objected to on moral and religious grounds); Heffron v. Int'l Soc'y for Krishna Consciousness, 452 U.S. 640, 654 (1981) (holding the Free Speech Clause did not prevent the government from imposing reasonable time, place, and manner restrictions on an organization's religious practice). Cases involving only the Free Speech Clause and not the Free Exercise Clause are discussed in Amendment 1.7 Free Speech Clause.
  118. ↑ Lee v. Weisman, 505 U.S. 577, 591 (1992).
  119. ↑ Id.
  120. ↑ Id.
  121. ↑ Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 30 (U.S. June 27, 2022) (internal quotation marks omitted).
  122. ↑ Id. at 30-31.
  123. ↑ See, e.g., Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 303 n.12 (2000) (collecting cases). The Free Speech Clause aspects of these cases are discussed First Amend.: The Public Forum and First Amend.: Government Speech and Government as Speaker.
  124. ↑ Widmar v. Vincent, 454 U.S. 263, 265, 270 (1981).
  125. ↑ Id. at 269-71.
  126. ↑ Id. at 274; see also Good News Club v. Milford Cent. Sch., 533 U.S. 98, 113 (2001) (holding elementary school would not violate the Establishment Clause by allowing a religious club to use its facilities); Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 840 (1995) (holding university would not violate the Establishment Clause by allowing religious groups to use generally available student activity fund to publish religious newspaper); Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384, 395 (1993) (holding school board would not violate the Establishment Clause by allowing a church to use its facilities to show a religious film); Bd. of Educ. v. Mergens, 496 U.S. 226, 253 (1990) (holding federal law did not violate the Establishment Clause by creating a funding condition prohibiting public secondary schools from denying access to forums based on students' speech, including religious speech). Cf. Shurtleff v. Boston, No. 20-1800, slip op. at 12 (U.S. May 2, 2022) (implicitly ruling city would not violate Establishment Clause by flying a religious flag at city hall, where the flag raising did not qualify as government speech under Free Speech Clause).
  127. ↑ See, e.g., Rosenberger. Rosenberger is discussed in more detail in First Amend.: Application of the Lemon Test.
  128. ↑ Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995).
  129. ↑ Id. at 767 (plurality opinion); see also id. at 774-75 (O'Connor, J., concurring) (agreeing with the plurality's holding, noting that the case involved "truly private speech . . . allowed on equal terms in a vigorous public forum").
  130. ↑ Rosenberger.
  131. ↑ Bd. of Educ. v. Mergens, 496 U.S. 226, 253 (1990).
  132. ↑ Id. at 248.
  133. ↑ Id. at 250, 252.
  134. ↑ Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 302 (2000).
  135. ↑ Id. at 302, 306-10.
  136. ↑ Id. at 303.
  137. ↑ Id. at 317.
  138. ↑ Cf., e.g., Kennedy v. Bremerton Sch. Dist., No. 21-418, slip op. at 19-20 (U.S. June 27, 2022) (noting dispute over whether Free Exercise Clause strict scrutiny analysis or more lenient Free Speech Clause test applied to expressive activity protected under both Clauses).
  139. ↑ See id. at 29-30.
  140. ↑ See id. at 31-32.
  141. ↑ See id. at 23, 30.
  142. ↑ See id. at 29-30; First Amend.: Coercion and Establishment Clause Doctrine.
  143. ↑ Annals of Cong. 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.
  144. ↑ Id. at 731.
  145. ↑ The Bill of Rights: A Documentary History 1148-49 (B. Schwartz ed. 1971).
  146. ↑ Id. at 1153.
  147. ↑ 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 Cong. 731-49 (Aug. 15, 1789).
  148. ↑ Id. at 738.
  149. ↑ For example, Madison refused to concur officially in President George Washington's condemnation of "[c]ertain self-created societies"--political clubs supporting the French Revolution--and he successfully deflected Federalist interest in censuring such societies. I. Brant, James Madison: Father of the Constitution 1787-1800, at 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 Cong. 934 (1794). However, while a member of his county's committee on public safety, Madison had 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). Writing to Madison in 1788, Jefferson stated: "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). A year later, Jefferson suggested to Madison 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.
  150. ↑ N.Y. Times Co. v. Sullivan, 376 U.S. 254, 273 (1964).
  151. ↑ 1 Stat. 596 (1798)
  152. ↑ See J. Smith, Freedom's Fetters: The Alien and Sedition Laws and American Civil Liberties 159 et seq. (1956).
  153. ↑ N.Y. Times Co., 376 U.S. at 276.
  154. ↑ Griswold v. Connecticut, 381 U.S. 479, 482 (1965).
  155. ↑ Roberts v. United States Jaycees, 468 U.S. 609, 618 (1984).
  156. ↑ Id.
  157. ↑ Id.
  158. ↑ Id. at 617-18. See, e.g., Griswold, 381 U.S. at 486 (recognizing marriage as a protected relationship); Obergefell v. Hodges, 576 U.S. 644, 675 (2015) (holding that "same-sex couples may exercise the fundamental right to marry," that is "inherent in the liberty of the person" and protected under the Fourteenth Amendment). Although these two conceptions of associational freedom differ, the Court has explained that "[i]n many cases, government interference with one form of protected association will also burden the other form of association." Bd. of Dirs. of Rotary Int'l v. Rotary Club, 481 U.S. 537, 544 (1987).
  159. ↑ Roberts, 468 U.S. at 618. See Fourteenth Amend., Sec. 1: Family Autonomy and Substantive Due Process and Fourteenth Amend., Sec. 1: Marriage and Substantive Due Process.
  160. ↑ Presser v. Illinois, 116 U.S. 252, 267 (1886). See First Amend.: Historical Background on Freedoms of Assembly and Petition.
  161. ↑ See Thomas v. Collins, 323 U.S. 516, 530 (1945) ("It was not by accident or coincidence that the rights to freedom in speech and press were coupled in a single guaranty with the rights of the people peaceably to assemble and to petition for redress of grievances. All these, though not identical, are inseparable.").
  162. ↑ De Jonge v. Oregon, 299 U.S. 353, 364 (1937).
  163. ↑ Thomas, 323 U.S. at 532, 539-40.
  164. ↑ First Amendment Fundamental Freedoms; e.g., Am. Commc'ns Ass'n v. Douds, 339 U.S. 382, 409 (1950).
  165. ↑ NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958). Legal scholars have debated whether the Court initially grounded this right of association in the First Amendment (applicable to the states through the Fourteenth Amendment) or in the Fourteenth Amendment's Due Process Clause. See John D. Inazu, The Strange Origins of the Constitutional Right of Association, 77 Tenn. L. Rev. 485, 501-17, 530-33 (2010) (discussing these two constitutional arguments and the early legal commentary after NAACP v. Alabama ex rel. Patterson); Kenneth L. Karst, The Freedom of Intimate Association, 89 Yale L.J. 624, 624 (1980) (writing that before the Court's 1965 decision in Griswold v. Connecticut, "the notion of constitutional protection of the freedom of association was a First Amendment doctrine and little more"). Ultimately, the Court recognized two different strands of freedom of association, tying the freedom of expressive association to the First Amendment and the freedom of intimate association primarily to the Fourteenth Amendment. See Roberts v. United States Jaycees, 468 U.S. 609, 617-18 (1984).
  166. ↑ See Sweezy v. New Hampshire, 354 U.S. 234, 245 (1957) (plurality opinion) (calling the "freedom of political association" a "highly sensitive area[ ]" of First Amendment activity requiring investigations to be "carefully circumscribed"); Cal. Democratic Party v. Jones, 530 U.S. 567, 575 (2000) (observing the "special place the First Amendment reserves" for a political party's selection of its own candidate).
  167. ↑ Griswold v. Connecticut, 381 U.S. 479, 483 (1965); see also Alabama ex rel. Patterson, 357 U.S. at 460-61 (stating that "it is immaterial," for First Amendment purposes, "whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters").
  168. ↑ 402 U.S. 611, 615 (1971). The Court also held that the ordinance was unconstitutionally vague in violation of the Fourteenth Amendment's Due Process Clause. Id. at 614-15.
  169. ↑ Id. at 611 (internal quotation marks omitted).
  170. ↑ Id. at 616. By comparison, in City of Chicago v. Morales, a plurality of the Court concluded that a Chicago loitering ordinance did not substantially affect protected association because the ordinance defined loiter as "remaining in one place 'with no apparent purpose.'" 527 U.S. 41, 53 (1999). The Court nevertheless held that the ordinance was unconstitutionally vague in violation of the Fourteenth Amendment's Due Process Clause. Id. at 51.
  171. ↑ Alabama ex rel. Patterson, 357 U.S. at 462-63. See First Amend.: Disclosure of Membership Lists.
  172. ↑ Ams. for Prosperity Found. v. Bonta, No. 19-251, slip op. at 19 (U.S. July 1, 2021). Government actions other than compelled disclosure can also burden the freedom of association. See, e.g., NAACP v. Claiborne Hardware Co., 458 U.S. 886, 931 (1982) (reasoning that holding an organization liable for unlawful conduct that it neither authorized nor ratified "would impermissibly burden the rights of political association").
  173. ↑ See First Amend.: Associational Privacy to First Amend.: Donor Disclosure Requirements.
  174. ↑ See, e.g., Uphaus v. Wyman, 360 U.S. 72, 80 (1959) (holding that New Hampshire's interest in ferreting out "subversive activities" outweighed the associational-privacy interests of attendees at a summer camp run by suspected Communists).
  175. ↑ See, e.g., Alabama ex rel. Patterson, 357 U.S. at 463 (holding that Alabama did not have a "subordinating" interest in obtaining the NAACP's membership lists "sufficient to justify the deterrent effect" that disclosure could have on NAACP members' right of association).
  176. ↑ Gibson v. Fla. Legis. Investigation Comm., 372 U.S. 539, 547 (1963).
  177. ↑ See First Amend.: Material Support Bar.
  178. ↑ Special rules apply in the context of certain religious organizations. For example, the First Amendment protects a religious organization's freedom to select its own ministers to a greater degree than a secular organization's selection of its employees. See First Amend.: Church Leadership and the Ministerial Exception. The Supreme Court has explained that, although the "right to freedom of association is a right enjoyed by religious and secular groups alike," the First Amendment itself "gives special solicitude to the rights of religious organizations" through its Religion Clauses. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 189 (2012).
  179. ↑ Boy Scouts of Am. v. Dale, 530 U.S. 640, 644 (2000). See First Amend.: Nondiscrimination and Equal-Access Requirements.
  180. ↑ U.S. Civ. Serv. Comm'n v. Nat'l Ass'n of Letter Carriers, 413 U.S. 548, 567 (1973).
  181. ↑ Brown v. Hartlage, 456 U.S. 45, 55 (1982); see also Madsen v. Women's Health Ctr., 512 U.S. 753, 776 (1994) (stating that the freedom of association "does not extend to joining with others for the purpose of depriving third parties of their lawful rights").
  182. ↑ For example, in 1989 the Court ruled that a state could license dance halls that were open only to teenagers. Dallas v. Stanglin, 490 U.S. 19, 28 (1989). Excluding adults did not infringe the teenagers' right to associate with persons outside of their age group, the Court held, declaring that there is no "generalized right of 'social association' that includes chance encounters in dance halls." Id. at 25.
  183. ↑ E.g., Holder v. Humanitarian L. Project, 561 U.S. 1, 40 (2010).
  184. ↑ See Minn. State Bd. for Cmty. Colls. v. Knight, 465 U.S. 271, 288 (1984) (recognizing the "government's freedom to choose its advisers" in upholding a state law requiring public universities to "meet and confer" with the faculty union rather than individual faculty members); Smith v. Ark. State Highway Emps., 441 U.S. 463, 465 (1979) (per curiam) (stating that although the First Amendment protects a public employee's right to "associate and speak freely and petition openly," it "does not impose any affirmative obligation on the government to listen, to respond or, in this context, to recognize the association and bargain with it"); Babbitt v. UFW Nat'l Union, 442 U.S. 289, 313 (1979) (holding that a state "was not constitutionally obliged to provide a procedure pursuant to which agricultural employees, through a chosen representative, might compel their employers to negotiate").
  185. ↑ See, e.g., Associated Press v. NLRB, 301 U.S. 103, 130 (1937) (ruling that applying an antitrust law to the Associated Press did not violate either the freedom of speech or of the press); see also First Amend.: Taxation of Media; First Amend.: Labor and Antitrust Regulation of Media.
  186. ↑ Houchins v. KQED, 438 U.S. 1, 17 (1978) (concurring opinion). Justice Potter Stewart initiated the debate in a speech, subsequently reprinted as Potter 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, 798 (1978) (Burger, C.J., concurring).
  187. ↑ Id. at 798.
  188. ↑ Houchins, 438 U.S. at 15-16.
  189. ↑ Id., and id. at 16 (Stewart, J., concurring); Saxbe v. Wash. Post, 417 U.S. 843 (1974); Pell v. Procunier, 417 U.S. 817 (1974); Nixon v. Warner Commc'ns, 435 U.S. 589 (1978). The trial access cases 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 Ct., 457 U.S. 596 (1982).
  190. ↑ Branzburg v. Hayes, 408 U.S. 665 (1972) (grand jury testimony by newspaper reporter); Zurcher, 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).
  191. ↑ Cohen, 501 U.S. at 669.
  192. ↑ See, e.g., Grosjean v. Am. Press Co., 297 U.S. 233, 244 (1936) (holding that a tax focused exclusively on newspapers violated the freedom of the press); see also First Amend.: Taxation of Media.
  193. ↑ E.g., Miami Herald Publ'g Co. v. Tornillo, 418 U.S. 241 (1974); Landmark Commc'ns v. Virginia, 435 U.S. 829 (1978). See also Zurcher, 436 U.S. at 563-67 (1978), and id. at 568 (Powell, J., concurring); Branzburg, 408 U.S. 665, 709 (1972) (Powell, J., 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 (Stevens, J.), 586 n.2 (Brennan, J.), 599 n.2 (Potter, J.). Yet the Court has also suggested that the press is pro tected in order to promote and to protect the exercise of free speech in society at large, including peoples' interest in receiving information. E.g., Mills v. Alabama, 384 U.S. 214, 218-19 (1966); CBS v. FCC, 453 U.S. 367, 394-95 (1981).
  194. ↑ 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).
  195. ↑ 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.
  196. ↑ 408 U.S. at 690-91. The cases consolidated in Branzburg all involved grand juries, so the reference to criminal trials should be considered dictum.
  197. ↑ Chief Justice Warren Burger and Justices Harry Blackmun, Lewis Powell, and William Rehnquist joined the Court's opinion. Justice Lewis Powell, despite having joined the majority opinion, also submitted a concurring opinion in which he suggested a privilege might be available if, in a particular case, "the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement." Id. at 710. Justice Potter Stewart's dissenting opinion in Branzburg referred to Justice Lewis Powell's concurring opinion as "enigmatic." Id. at 725. Judge Tatel of the D.C. Circuit wrote, "Though providing the majority's essential fifth vote, he [Justice Lewis Powell] wrote separately to outline a 'case-by-case' approach that fits uncomfortably, to say the least, with the Branzburg majority's categorical rejection of the reporters' claims." In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 987 (D.C. Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005) (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006).One commentator noted that: "courts in almost every circuit around the country interpreted Justice Lewis Powell's concurrence, along with parts of the Court's opinion, to create a balancing test when faced with compulsory process for press testimony and documents outside the grand jury context." Ass'n of the Bar of the City of New York, The Federal Common Law of Journalists' Privilege: A Position Paper 4-5 (2005), [1] (citing examples).
  198. ↑ 408 U.S. at 706.
  199. ↑ Rule 501 also provides that, in civil actions and proceedings brought in federal court under state law, the availability of a privilege shall be determined in accordance with state law. Rule 501-Privilege in General, Federal Rules of Evidence (ed. 2023)
  200. ↑ See, e.g., In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964, 972 (D.C. Cir. 2005) (Tatel, J., concurring) (citation omitted), rehearing en banc denied, 405 F.3d 17 (D.C. Cir. 2005) (Tatel, J., concurring), cert. denied, 545 U.S. 1150 (2005), reissued with unredacted material, 438 F.3d 1141 (D.C. Cir. 2006) (U.S. Court of Appeals for the District of Columbia "is not of one mind on the existence of a common law privilege").
  201. ↑ Zurcher v. Stanford Daily, 436 U.S. 547, 563-67 (1978). Justice Lewis 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 Potter Stewart and Thurgood Marshall would have imposed special restrictions upon searches when the press was the object, id. at 570 (dissenting), and Justice John Paul Stevens dissented on Fourth Amendment grounds. Id. at 577.
  202. ↑ Congress enacted the Privacy Protection Act of 1980, Pub. L. No. 96-440, 94 Stat. 1879 (codified as amended at 42 U.S.C. § 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.
  203. ↑ See, e.g., Irvin v. Dowd, 366 U.S. 717 (1961); Rideau v. Louisiana, 373 U.S. 723 (1963).
  204. ↑ 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).
  205. ↑ Nebraska Press Ass'n v. Stuart, 427 U.S. 539 (1976).
  206. ↑ See, e.g., Gentile v. State Bar of Nev., 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).
  207. ↑ Gannett Co. v. DePasquale, 443 U.S. 368 (1979).
  208. ↑ 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.
  209. ↑ 448 U.S. 555 (1980). The decision was seven-one, with Justice William Rehnquist dissenting, id. at 604, and Justice Lewis Powell not participating. Justice Lewis Powell, however, had taken the view in DePasquale, 443 U.S. 368, 397 (1979) (concurring), that the First Amendment did protect access to trials.
  210. ↑ See Richmond Newspapers v. Virginia, 448 U.S. 555, 582 (1980) (Stevens, J., concurring).
  211. ↑ 448 U.S. at 569 (plurality opinion).
  212. ↑ Id. at 570-71.
  213. ↑ Id. at 573.
  214. ↑ 448 U.S. at 564-69. The emphasis on experience and history was repeated by the Chief Justice in his opinion for the Court in Press-Enter. Co. v. Superior Ct., 478 U.S. 1 (1986) (Press-Enterprise II).
  215. ↑ Id. at 587 (Brennan, J., concurring in the judgment).
  216. ↑ Id. at 587-88.
  217. ↑ 457 U.S. 596 (1982). Chief Justice Warren Burger, with Justice William 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 John Paul Stevens dissented on the ground of mootness. Id. at 620.
  218. ↑ 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. 457 U.S. at 605 n.13.
  219. ↑ 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.
  220. ↑ The Court throughout the opinion identifies the right as access to criminal trials, even italicizing the words at one point. Id. at 605.
  221. ↑ Press-Enter. Co., 464 U.S. 501 (1984).
  222. ↑ Id. at 510.
  223. ↑ 467 U.S. 39 (1984).
  224. ↑ DePasquale, 443 U.S. 368 (1979), did not involve assertion by the accused of his Sixth 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." Id. at 381.
  225. ↑ 467 U.S. at 47.
  226. ↑ Press-Enter. Co., 478 U.S. 1 (1986).
  227. ↑ Id. at 14.
  228. ↑ Id. at 12.
  229. ↑ C. Stephenson & F. Marcham, Sources of English Constitutional History 125 (1937).
  230. ↑ 12 Encyclopedia of the Social Sciences 98 (1934).
  231. ↑ United States v. Cruikshank, 92 U.S. 542, 551 (1876).
  232. ↑ Edward S. Corwin, The Constitution and What It Means Today 293-94 (Harold W. Chase & Craig R. Ducat eds., 1973) (citations omitted). Comparing United States v. Cruikshank, 92 U.S. 542, 552 (1876) to De Jonge v. Oregon, 299 U.S. 353, 364-365 (1937), Corwin observed: "Historically, the right of petition is the primary right, the right peaceably to assemble a subordinate and instrumental right, as if Amendment I read: 'the right of the people peaceably to assemble' in order to 'petition the government.' Today, however, the right of peaceable assembly is the language of the Court, 'cognate to those of free speech and free press and is equally fundamental. . . . The holding of meetings for peaceable political action cannot be proscribed.'" Id.
  233. ↑ The account is told in many sources. E.g., Samuel Flagg Bemis, John Quincy Adams and the Union, chs. 17, 18 and pp. 446-47 (1956); William Lee Miller, Arguing About Slavery: The Great Battle in the United States Congress 465-487 (1996); David P. Currie, The Constitution in Congress: Descent into the Maelstrom, 1829-1861 3-23 (2005).
  234. ↑ Rule 22, ¶ 1, Rules of the House of Representatives, H.R. Doc. No. 256, at 571 (1991).
  235. ↑ 1918 Att'y Gen. Ann. Rep. 48.
  236. ↑ 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.
  237. ↑ 92 U.S. 542 (1876).
  238. ↑ Act of May 31, 1870, ch. 114, 16 Stat. 141 (1870).
  239. ↑ 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).
  240. ↑ De Jonge, 299 U.S. at 364, 365. See also Herndon v. Lowry, 301 U.S. 242 (1937).
  241. ↑ 299 U.S. at 365.
  242. ↑ 307 U.S. at 496.
  243. ↑ 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).
  244. ↑ Coates v. City of Cincinnati, 402 U.S. 611, 615-16 (1971).
  245. ↑ See, e.g., Bill Johnson's Rests. v. NLRB, 461 U.S. 731, 742-43 (1983) (holding that the First Amendment protects "[t]he filing and prosecution of a well-founded lawsuit"); Lozman v. City of Riviera Beach, No. 17-21, slip op. at 12 (U.S. June 18, 2018) (outlining constitutional protections against retaliation for filing a lawsuit against a city); but see, e.g., Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 556-57 (2014) (holding that the right to petition does not extend to grant immunity from an "exceptional" award of attorney's fees in patent litigation).
  246. ↑ See E. R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961). For further discussion of the Noerr-Pennington doctrine providing limited antitrust immunity for constitutionally protected lobbying activity, see First Amend.: Lobbying.
  247. ↑ Cal. Motor Trans. 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. 1980), cert. denied, 449 U.S. 842 (1980) (because of its political nature, a boycott of states not ratifying the Equal Rights Amendment may not be subjected to antitrust suits).
  248. ↑ See, e.g., NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 460 (1958) (noting "the close nexus between the freedoms of speech and assembly," and saying the "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").
  249. ↑ E.g., United States v. Harriss, 347 U.S. 612 (1954); E. R.R. Presidents Conf. v. Noerr Motor Freight, 365 U.S. 127 (1961); BE & K Construction Co. v. NLRB, 536 U.S. 516 (2002).
  250. ↑ E.g., Coates v. City of Cincinnati, 402 U.S. 611 (1971).
  251. ↑ See, e.g., Borough of Duryea, Penn. v. Guarnieri, 564 U.S. 379, 388 (2011) ("It is not necessary to say that the [Speech and Petition] Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground"); But see id. ("Courts should not presume there is always an essential equivalence in the [Speech and Petition] Clauses or that Speech Clause precedents necessarily and in every case resolve Petition Clause claims").
  252. ↑ Connick v. Myers, 461 U.S. 138 (1983); First Amend.: Pickering Balancing Test for Government Employee Speech.
  253. ↑ 564 U.S. 379 (2011).
  254. ↑ Justice Antonin Scalia, in dissent, disputed the majority's suggestion that a petition need be of "public concern" to be protected, noting that the Petition Clause had historically been a route for seeking relief of private concerns. Id. at 382 (Scalia, J., dissenting). Justice Antonin Scalia also suggested that the Clause should be limited to petitions directed to an executive branch or legislature, and that grievances submitted to an adjudicatory body are not so protected. Id.
  255. ↑ First Amend.: Overview of Freedom of Association.
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