What is the industry named in the u.s. constitution as deserving special protection?

Freedom of the Press

Sam LebovicDepartment of History and Art History, George Mason University

You do not currently have access to this article

Login

Please login to access the full content.

Access to the full content requires a subscription

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.

Annotations

Government adopts and enforces many measures that are designed to further a valid interest but that may restrict freedom of expression. As an employer, government is interested in attaining and maintaining full production from its employees in a harmonious environment. As enforcer of the democratic method of carrying out the selection of public officials, it is interested in outlawing “corrupt practices” and promoting a fair and smoothly functioning electoral process. As regulator of economic affairs, its interests are extensive. As educator, it desires to impart knowledge and training to the young with as little distraction as possible. All these interests may be achieved with some restriction upon expression, but, if the regulation goes too far, then it will violate the First Amendment.769

Government as Employer: Political and Other Outside Activities.—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.770 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.”771 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.772 The question is whether government, which may not prohibit citizens in general from engaging in these activities, may nonetheless so control the off-duty activities of its own employees.

In United Public Workers v. Mitchell,773 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 Reed, recognized that the restrictions of political activities imposed by the Act did in some measure impair First Amendment and other constitutional rights,774 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.775 Thus, changes in the standards of judging incidental restrictions on expression suggested the possibility of a reconsideration of Mitchell.776 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.777 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;778 therefore, a statute that barred in plain language a long list of activities would clearly be valid.779 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,”780 was unconstitutional on its face, either because the statute was too imprecise to allow government employees to determine what was forbidden and what was permitted, or because the statute swept in under its coverage conduct that Congress could not forbid as well as conduct subject to prohibition or regulation. With respect to vagueness, plaintiffs contended and the lower court had held that the quoted proscription was inadequate to provide sufficient guidance and that the only further elucidation Congress had provided was 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. . . .”781 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 casebycase 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.”782 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.783 Subsequently, in Bush v. Lucas784 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 Hatch Act cases were distinguished in United States v. National Treasury Employees Union (NTEU),785 in which the Court struck down an honoraria ban as applied to lower-level employees of the Federal Government. The honoraria ban suppressed employees’ right to free expression while the Hatch Act sought to protect that right, and also there was no evidence of improprieties in acceptance of honoraria by members of the plaintiff class of federal employees.786 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.787

Government as Employer: Free Expression Generally.—In recent decades, the Court has eliminated the “right-privilege” distinction with respect to public employees’ free speech rights. Application of that distinction to the public employment context was epitomized in the famous sentence of Justice Holmes’: “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”788 The Supreme Court embraced this application in the early 1950s, first affirming a lower court decision by an evenly divided vote,789 and soon after applying the distinction itself. Upholding a prohibition on employment as teachers of persons who advocated the desirability of overthrowing the government, the Court declared that “[i]t is clear that such persons have the right under our law to assemble, speak, think and believe as they will. . . . It is equally clear that they have no right to work for the state in the school system on their own terms. They may work for the school system under reasonable terms laid down by the proper authorities of New York. If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not.”790

The same year, however, the Court expressly rejected the right-privilege doctrine in another loyalty case. Voiding a loyalty oath requirement conditioned on mere membership in suspect organizations, the Court reasoned that the interest of public employees in being free of such an imposition was substantial. “There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy. . . . [W]e need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory.”791 The premise here—that there is a constitutional claim against dismissal or rejection—has faded in subsequent cases; the rationale now is that, although government may deny employment, or any benefit for that matter, for any number of reasons, it may not deny employment or other benefits on a basis that infringes a person’s constitutionally protected interests. “For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to ‘produce a result which [it] could not command directly.’ Such interference with constitutional rights is impermissible.”792

However, the fact that government does not have carte blanche in dealing with the constitutional rights of its employees does not mean that it has no power at all. “[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.”793 Pickering concerned the dismissal of a high school teacher who had written a critical letter to a local newspaper reﬂecting on the administration of the school system. The letter also contained several factual errors. “The problem in any case,” Justice Marshall wrote for the Court, “is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.”794 The Court laid down no general standard, but undertook a suggestive analysis. Dismissal of a public employee for criticism of his superiors was improper, the Court indicated, where the relationship of employee to superior was not so close, such as day-to-day personal contact, that problems of discipline or of harmony among coworkers, or problems of personal loyalty and confidence, would arise.795 The school board had not shown that any harm had resulted from the false statements in the letter, and it could not proceed on the assumption that the false statements were per se harmful, inasmuch as the statements primarily reﬂected a difference of opinion between the teacher and the board about the allocation of funds. Moreover, the allocation of funds is a matter of important public concern about which teachers have informed and definite opinions that the community should be aware of. “In these circumstances we conclude that the interest of the school 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.”796

Combining a balancing test of governmental interest and employee rights with a purportedly limiting statutory construction, the Court, in Arnett v. Kennedy,797 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 the employee. He had charged that his superiors had made an offer of a bribe to a private person. The quoted statutory phrase, the Court held, “is without doubt intended to authorize dismissal for speech as well as other conduct.” But, recurring to its Letter Carriers analysis,798 it noted that the authority conferred was not impermissibly vague, inasmuch as it is not possible to encompass within a statutory enactment all the myriad situations that arise in the course of employment, and 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.799 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 over-broad.”800

Pickering was distinguished in Connick v. Myers,801 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. “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.”802 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.803 Because one aspect of the employee’s speech did raise matters of subject ing that “a wide degree of deference is appropriate” when “close working relationships” between employer and employee are involved.804 The issue of public concern is not only a threshold inquiry, but, under Connick, still figures in the balancing of interests: “the State’s burden in justifying a particular discharge varies depending upon the nature of the employee’s expression” and its importance to the public.805

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.806 In Rankin v. McPherson807 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.808

In City of San Diego v. Roe,809 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.”810 The Court also noted that the officer’s speech, unlike federal employees’ speech in United States v. National Treasury Employees Union (NTEU),811 “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.”812 The Court, therefore, had “little difficulty in concluding that the City was not barred from terminating Roe under either line of cases [i. e.,Pickering or NTEU].”813 This leaves uncertain whether, had the officer’s expression not been linked to his official status, the Court would have overruled his firing under NTEU or would have upheld it under Pickering on the ground that his expression was not a matter of public concern.

In Garcetti v. Ceballos, the Court cut back on First Amendment protection for government employees by holding that there is no 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.814 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.”815 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.816 Rather, the “controlling factor” was “that his expressions were made pursuant to his duties.”817 Therefore, another employee in the office, with different duties, might have had a First Amendment right to utter the speech in question, and the deputy district attorney himself might have had a First Amendment right to communicate the information that he had in a letter to the editor of a newspaper. In these two instances, a court would apply Pickering balancing.

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,818 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.819 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.”820 In so holding, the Court confirmed that Garcetti‘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.821 After Lane, some question remains about the scope of protection for public employees, such as police officers or official representatives of an agency of government, who testify pursuant to their official job duties, and whether such speech falls within the scope of Garcetti.

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.”822

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,823 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.824 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’s balancing test is applied, with the governmental interests in efficiency, workplace harmony, and the satisfactory performance of the employee’s duties825 balanced against the employee’s First Amendment rights. Although the general approach is easy to describe, it has proven difficult to apply.826 The First Amendment, however, does not stand alone in protecting the speech of public employees; statutory protections for “whistleblowers” add to the mix.827

Government as Educator.—Although the Court had previously made clear that students in public schools are entitled to some constitutional protection,828 as are minors generally,829 its first attempt to establish standards of First Amendment expression guarantees against curtailment by school authorities came in Tinker v. Des Moines Independent Community School District.830 There, high school principals had banned the wearing of black armbands by students in school as a symbol of protest against United States’ actions in Vietnam. Reversing the refusal of lower courts to reinstate students who had been suspended for violating the ban, the Court set out the balance to be drawn. “First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. . . . On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.”831 Restriction on expression by school authorities is only permissible to prevent disruption of educational discipline. “In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,’ the prohibition cannot be sustained.”832

subject833 in which it held that the withholding of recognition by a public college administration from a student organization violated the students’ right of association, which is implicit in the First Amendment. Denial of recognition, the Court held, was impermissible if it had been based on the local organization’s affiliation with the national SDS, or on disagreement with the organization’s philosophy, or on a fear of disruption with no evidentiary support. Furthermore, the Court wrote, “the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, ‘[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.’ . . . The college classroom with its surrounding environs is peculiarly the ‘market place of ideas,’ and we break no new constitutional ground in reaffirming this Nation’s dedication to safeguarding academic freedom.”834 A college administration may, however, impose a requirement “that a group seeking offical recognition affirm in advance its willingness to adhere to reasonable campus law.”835

Although a public college may not be required to open its facilities generally for use by student groups, once it has done so it must justify any discrimination and exclusions under applicable constitutional norms, such as those developed under the public forum doctrine. Thus, it was constitutionally impermissible for a college to close off its facilities, otherwise open, to students wishing to engage in religious speech.836

While it is unclear whether this holding would extend beyond the college level to students in high school or below who are more “impressionable” and perhaps less able to appreciate that equal access does not compromise a school’s neutrality toward religion,837 Congress has done so by statute.838 On the other hand, a public university that imposed an “accept-all-comers” policy on student groups as a condition of receiving the financial and other benefits of official school recognition did not impair a student religious group’s right to expressive association, because the school’s policy was reasonable and viewpoint neutral.839

When faced with another conﬂict between a school system’s obligation to inculcate community values in students and the free-speech rights of those students, the Court splintered badly, remanding for full trial a case challenging the authority of a school board to remove certain books from high school and junior high school libraries.840 In dispute were the school board’s reasons for removing the books—whether, as the board alleged, because of vulgarity and other content-neutral reasons, or whether also because of political disagreement with contents. The plurality conceded that school boards must be permitted “to establish and apply their curriculum in such a way as to transmit community values,” and that “there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political.” At the same time, the plurality thought that students retained substantial free-speech protections and that among these was the right to receive information and ideas. Carefully limiting its discussion to the removal of books from a school library, and excluding the question of the acquisition of books as well as questions of school curricula, the plurality held a school board constitutionally disabled from removing library books in order to deny access to ideas with which it disagrees for political reasons.841 The four dissenters rejected the contention that school children have a right to receive information and ideas and thought that the proper role of education was to inculcate the community’s values, a function into which the federal courts could rarely intrude.842 The decision provides little guidance to school officials and to the lower courts and may necessitate a revisiting of the controversy by the Supreme Court.

The Court distinguished Tinker in Hazelwood School District v. Kuhlmeier,843 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.”844 “The question whether the First Amendment requires a school to tolerate particular student speech— the question that we addressed in Tinker—is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.”845 The student newspaper had been created by school officials as a part of the school curriculum, and served “as a supervised learning experience for journalism students.”846 Because no public forum had been created, school officials could maintain editorial control subject only to a reasonableness standard. Thus, a principal’s decision to excise from the publication an article describing student pregnancy in a manner believed inappropriate for younger students, and another article on divorce critical of a named parent, were upheld.

The category of school-sponsored speech subject to Kuhlmeier analysis appears to be far broader than the category of student expression still governed by Tinker. School-sponsored activities, the Court indicated, can include “publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.”847 Because most primary, intermediate, and secondary school environments are tightly structured, with few opportunities for unsupervised student expression,848 Tinker apparently has limited applicability. It may be, for example, that students are protected for off-premises production of “underground” newspapers (but not necessarily for attempted distribution on school grounds) as well as for non-disruptive symbolic speech. For most student speech at public schools, however, Tinker’s tilt in favor of student expression, requiring school administrators to premise censorship on likely disruptive effects, has been replaced by Kuhlmeier’s tilt in favor of school administrators’ pedagogical discretion.849

In Morse v. Frederick,850 the Court held that a school could punish a pupil for displaying a banner that said, “BONG HiTS 4 JESUS,” because these words could reasonably be interpreted as “promoting illegal drug use.”851 The Court indicated that it might have reached a different result if the banner had addressed the issue of “the criminalization of drug use or possession.”852 Justice Alito, joined by Justice Kennedy, wrote a concurring opinion stating that they had joined the majority opinion “on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction on speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as ‘the wisdom of the war on drugs or of legalizing marijuana for medicinal use.’”853 As Morse v. Frederick was a 5-to-4 decision, Justices Alito and Kennedy’s votes were necessary for a majority and therefore should be read as limiting the majority opinion with respect to future cases.

Governmental regulation of school and college administration can also implicate the First Amendment. But the Court dismissed as too attenuated a claim to a First Amendment-based academic freedom privilege to withhold peer review materials from EEOC subpoena in an investigation of a charge of sex discrimination in a faculty tenure decision.854

Government as Regulator of the Electoral Process: Elections and Referendums.—Government has increasingly regulated the electoral system by which candidates are nominated and elected, requiring disclosure of contributions and certain expenditures, limiting contributions and expenditures, and imposing other regulations.855 These regulations can restrict freedom of expression and association, which include the rights to join together for political purposes, to promote candidates and issues, and to participate in the political process.856 The Court is divided with respect to the constitutionality of many of these federal and state restrictions, but it has been consistent in not permitting the government to bar or penalize political speech directly. Thus, it held that the Minnesota Supreme Court could not prohibit candidates for judicial election from announcing their views on disputed legal and political issues.857 And, when Kentucky attempted to void an election on the ground that the winner’s campaign promise to serve at a lower salary than that affixed to the office violated a law prohibiting candidates from offering material benefits to voters in consideration for their votes, the Court ruled unanimously that the state’s action violated the First Amendment.858

Similarly, California could not prohibit official governing bodies of political parties from endorsing or opposing candidates in primary elections.859 Minnesota, however, could prohibit a candidate from appearing on the ballot as the candidate of more than one party.860 The Court wrote that election “[r]egulations imposing severe burdens on plaintiffs’ [associational] rights must be narrowly tailored and advance a compelling state interest. Lesser burdens, however, trigger less exacting review, and a State’s important regulatory interests will usually be enough to justify reasonable nondiscriminatory restrictions.”861 Minnesota’s ban on “fusion” candidates was not severe, as a party that could not place another party’s candidate on the ballot was free to communicate its preference for that candidate by other means, and the ban served “valid state interests in ballot integrity and political stability.”862

In the Federal Election Campaign Act of 1971, as amended in 1974, Congress imposed new and stringent regulation of and limitations on contributions to and expenditures by political campaigns, as well as disclosure of most contributions and expenditures, setting the stage for the landmark case of Buckley v. Valeo.863 Acting in basic unanimity, the Court sustained the contribution and disclosure sections of the statute (although several Justices felt that the sustained provisions trenched on protected expression), but voided the limitations on expenditures.864 Although “contribution and expenditure limitations both implicate fundamental First Amendment interests,” the Court found, “expenditure ceilings impose significantly more severe restrictions on protected freedoms of political expression and association than do . . . limitations on financial contributions.”865

As to contribution limitations, the Court in Buckley recognized that political contributions “serve[ ] to affiliate a person with a candidate” and “enable[ ] like-minded persons to pool their resources in furtherance of common political goals.” Contribution ceilings, therefore, “limit one important means of associating with a candidate or committee. . . .”866 Yet “[e]ven a significant interference with protected rights of political association may be sustained if the State demonstrates a sufficiently important interest and employs means closely drawn to avoid unnecessary abridgment of associational freedoms.”867

As to expenditure limitations, the Court wrote, “[a] restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached.”868 The expenditure of money in political campaigns may involve speech alone, conduct alone, or mixed speech-conduct, the Court noted, but all forms of it involve communication, and when governmental regulation is aimed directly at suppressing communication it does not matter how that communication is defined. As such, the regulation must be subjected to close scrutiny and justified by compelling governmental interests.

Applying this strict scrutiny standard, the contribution limitations, with some construed exceptions, survived, but the expenditure limitation did not. The contribution limitation was seen as imposing only a marginal restriction upon the contributor’s ability to engage in free communication, inasmuch as the contribution shows merely a generalized expression of support for a candidate without communicating reasons for the support; “the size of the contribution provides a very rough index of the intensity of the contributors’ support for the candidate.”869 The political expression really occurs when the funds are spent by a candidate; only if the restrictions were set so low as to impede this communication would there arise a constitutional infringement. This incidental restraint upon expression may therefore be justified by Congress’s purpose to limit the actuality and appearance of corruption resulting from large individual financial contributions.870

Of considerable importance to the contributions analysis, the Court voided a section restricting the aggregate expenditure anyone could make to advocate the election or defeat of a “clearly identified candidate” to $1,000 a year. Though the Court treated the restricted spending as purely an expenditure, the activity seems to partake equally of the nature of a contribution spent on behalf of a candidate (although not given to him or her directly). However, “[a]dvocacy of the election or defeat of candidates for federal office is no less entitled to protection under the First Amendment than the discussion of political policy generally or advocacy of the passage or defeat of legislation.”871 The Court found that none of the justifications offered in support of a restriction on such expression was adequate; independent expenditures did not appear to pose the dangers of corruption that contributions did, and it was an impermissible purpose to attempt to equalize the ability of some individuals and groups to express themselves by restricting the speech of other individuals and groups.872

Similarly, limitations upon the amount of funds a candidate could spend out of his own resources or those of his immediate family were voided. A candidate, no less than any other person, has a First Amendment right to advocate.873 The limitations upon total expenditures by candidates seeking nomination or election to federal office could not be justified: the evil associated with dependence on large contributions was met by limitations on contributions, the purpose of equalizing candidate financial resources was impermissible, and the First Amendment did not permit government to determine that expenditures for advocacy were excessive or wasteful.874

The government not only may not limit the amount that a candidate may spend out of his own resources, but, if a candidate spends more than a particular amount, the government may not penalize the candidate by authorizing the candidate’s opponent to receive individual contributions at higher than the normal limit. In Davis v. Federal Election Commission, the Court struck down, as lacking a compelling governmental interest, a federal statute that provided that, if a “self-financing” candidate for the House of Representatives spends more than a specified amount, then his opponent may accept more individual contributions than otherwise permitted. The statute, the Court wrote, imposed “a special and potentially significant burden” on a candidate “who robustly exercises [his] First Amendment right.”875 Citing Buckley, the Court stated that a burden “on the expenditure of personal funds is not justified by any governmental interest in eliminating corruption or the perception of corruption.” This is because “reliance on personal funds reduces the threat of corruption, and therefore . . . discouraging use of personal funds[ ] disserves the anticorruption interest.”876 Citing Buckley again, the Court added that the governmental interest in equalizing the financial resources of candidates does not provide a justification for restricting expenditures, and, in fact, to restrict expenditures “has ominous implications because it would permit Congress to arrogate the voters’ authority to evaluate the strengths of candidates competing for office. . . . Different candidates have different strengths. Some are wealthy; others have wealthy supporters who are willing to make large contributions. Some are celebrities; some have the benefit of a well-known family name. Leveling electoral opportunities means making and implementing judgments about which strengths should be permitted to the outcome of an election.”877

A related question is whether the government violates the First Amendment rights of a candidate running a privately funded campaign when it provides public “equalization” funds to opposition candidates. In Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett,878 the Court considered an Arizona voluntary public financing system which granted an initial allotment to the campaigns of candidates for state office who agreed to certain requirements and limitations.879 In addition, matching funds were made available to the campaign if the expenditures of a privately financed opposing candidate, combined with the expenditures of any independent groups supporting that opposing candidacy, exceeded the campaign’s initial allotment. Citing Davis, the Court found the scheme unconstitutional because it forced the privately financed candidate to “shoulder a special and potentially significant burden” in choosing to exercise his First Amendment right to spend funds on behalf of his candidacy.880 Although the dissent argued that the provision of benefits to one speaker had not previously been considered by the Court as a significant burden to another,881 the majority distinguished those cases as not having involved the provision of subsidies to directly counter the triggering speech.882

It was mentioned above that the Court in Buckley upheld the disclosure requirements of the Federal Election Campaign Act. The Court found that, although compelled disclosure “cannot be justified by a mere showing of some legitimate governmental interest,” the governmental interests in the disclosure that the statute in Buckley mandated were “sufficiently important to outweigh the possibility of infringement” of the First Amendment.883 Disclosure, the Court found, “provides the electorate with information ‘as to where political campaign money comes from and how it is spent by the candidate’”; it deters “actual corruption and the appearance of corruption”; and it is “an essential means of gathering the data necessary to detect violations of the contribution limitations” that the statute imposed.884

The Court indicated, however that, under some circumstances, the First Amendment might require exemption for minor parties that were able to show “a reasonable probability that the compelled disclosure of a party’s contributors’ names will subject them to threats, harassment, or reprisals from either Government officials or private parties.”885 This standard was applied both to disclosure of contributors’ names and to disclosure of recipients of campaign expenditures in Brown v. Socialist Workers’74 Campaign Committee,886 in which the Court held that the minor party had established the requisite showing of likely reprisals through proof of past governmental and private hostility and harassment. Disclosure of recipients of campaign expenditures, the Court reasoned, could not only dissuade supporters and workers who might receive reimbursement for expenses, but could also dissuade various entities from performing routine commercial services for the party and thereby “cripple a minor party’s ability to operate effectively.”887

The Court has apparently extended the reasoning of these cases to include not just disclosure related to political contributions, but also to disclosure related to legally “qualifying” a measure for the ballot. In Doe v. Reed,888 the Court found that signing a petition to initiate a referendum was a protected form of political expression,889 and that a state requirement to disclose the names and addresses on those petitions to the public would be subjected to “exacting scrutiny.”890 The Court upheld the disclosure requirement on its face, finding that it furthered the state’s interest in detecting fraud and mistake in the petitioning process, while also providing for transparency and accountability. The case was remanded, however, to ascertain whether in this particular instance (a referendum to overturn a law conferring rights to gay couples) there was a “reasonable probability” that the compelled disclosures would subject the signatories to threats, harassment, or reprisals from either Government officials or private parties.891

In Nixon v. Shrink Missouri Government PAC,892 the Court held that Buckley v. Valeo “is authority for state limits on contributions to state political candidates,” but state limits “need not be pegged to Buckley’s dollars.”893 The Court in Nixon justified the limits on contributions on the same grounds that it had in Buckley: “preventing corruption and the appearance of it that ﬂows from munificent campaign contributions.”894 Further, Nixon did “not present a close call requiring further definition of whatever the State’s evidentiary obligation may be” to justify the contribution limits, as “there is little reason to doubt that sometimes large contributions will work actual corruption of our political system, and no reason to question the existence of a corresponding suspicion among voters.”895 As for the amount of the contribution limits, Missouri’s ﬂuctuated in accordance with the consumer price index, and, when suit was filed, ranged from $275 to $1,075, depending on the state office or size of constituency. The Court upheld these limits, writing that, in Buckley, it had “rejected the contention that $1,000, or any other amount, was a constitutional minimum below which legislatures could not regulate.”896 The relevant inquiry, rather, was “whether the contribution limitation was so radical in effect as to render political association ineffective, drive the sound of a candidate’s voice below the level of notice, and render contributions pointless.”897

In McCutcheon v. FEC,898 however, a plurality of the Court899 appeared to signal an intent to scrutinize limits on contributions more closely to ensure a “fit” between governmental objective and the means utilized.900 Considering aggregate limits on individual contributions—that is, the limits on the amount an individual can give in one campaign cycle901 —the plurality opinion distinguished between the government interest in avoiding even the appearance of quid pro quo corruption and the government interest in avoiding potential “ ‘inﬂuence over or access to’ elected officials of political parties” as the result of large contributions; only the interest in preventing actual or apparent quid pro quo corruption constituted a legitimate objective sufficient to satisfy the First Amendment.902 Given the more narrow interest of the government, the McCutcheon Court struck down the limits on aggregate contributions by an individual donor. The plurality opinion viewed the provision in question as impermissibly restricting an individual’s participation in the political process by limiting the number of candidates and organizations to which the individual could contribute (once that individual had reached the aggregate limit).903 Moreover, the plurality opinion held that the aggregate limits on individual contributions were not narrowly tailored to prevent quid pro quo corruption, as the limits prevent any contributions (regardless of size) to any individual or organization once the limits are reached.904 The plurality likewise rejected the argument that the restriction prevented circumvention of a separate restriction on base contributions to individual candidates, as such circumvention was either illegal (because of various anti-circumvention rules) or simply improbable.905 Collectively, the Court concluded that the aggregate limits violate the First Amendment because of the poor “fit” between the interests proffered by the government and the means by which the limits attempt to serve those interests.906

Outside the context of contributions to candidates, however, the Court has not been convinced of the justifications for limiting such uses of money for political purposes. Thus, a municipal ordinance regulating the maximum amount that could be contributed to or accepted by an association formed to take part in a city referendum was invalidated.907 Although Buckley had sustained limits on contributions as a prophylactic measure to prevent corruption or its appearance, no risk of corruption was found in giving or receiving funds in connection with a referendum. Similarly, the Court invalidated a criminal prohibition on payment of persons to circulate petitions for a ballot initiative.908

Venturing into the area of the constitutional validity of governmental limits upon political activities by corporations, a closely divided Court struck down a state law that prohibited corporations from expending funds to inﬂuence referendum votes on any measure save proposals that materially affected corporate business, property, or assets. In First National Bank of Boston v. Bellotti, the Court held that the free discussion of governmental affairs “is the type of speech indispensable to decisionmaking in a democracy,” and that “this is no less true because the speech comes from a corporation rather than an individual.”909 The Court held that it is the nature of the speech, not the status of the speaker, that is relevant for First Amendment analysis, thus allowing it to pass by the question of the rights a corporate person may have. The “materially affecting” requirement was found to be an impermissible proscription of speech based on the content of the speech and the identity of the interests that the speaker represented. The “exacting scrutiny” that restrictions on speech must pass was not satisfied by any of the justifications offered and the Court in any event found some of them impermissible.

Bellotti called into some question the constitutionality of the federal law that makes it unlawful for any corporation or labor union “to make a contribution or expenditure in connection with any election” for federal office or “in connection with any primary election or political convention or caucus held to select candidates” for such office.910 The Court had previously passed on several opportunities to assess this restriction,911 and one of the dissents in Bellotti noted the potential conﬂict.912 While the dissent’s concerns were ultimately realized in Citizens United v. FEC,913 it was only after many years of the Court either distinguishing Bellotti or applying it narrowly.

During that interim, the Court first considered challenges to different aspects of the federal statute and to related state statutes, upholding some restrictions on corporate electoral activities, but limiting others. In FEC v. National Right to Work Committee,914 the Court considered the operation of “separate segregated funds” (in common parlance, a Political Action Committee or “PAC”), through which, according to federal law, corporations can engage in specified political activities. The Court unanimously upheld a prohibition on a corporation soliciting money from other corporations for a PAC in order to make contributions or expenditures in relation to federal elections. Relying on Bellotti for the proposition that the government may act to prevent “both actual corruption and the appearance of corruption of elected representatives,” the Court saw no reason that Congress could not, in its legislative judgment, treat unions, corporations, and similar organizations differently from individuals.915

However, an exception to this general principle was recognized by a divided Court in FEC v. Massachusetts Citizens for Life, Inc.,916 holding the section’s requirement that independent expenditures be financed by voluntary contributions to a PAC unconstitutional as applied to a corporation organized to promote political ideas, having no stockholders, and not serving as a front for a “business corporation” or union. The Court found that one of the rationales for the special rules on corporate participation in elections— elimination of “the potential for unfair deployment of [corporate] wealth for political purposes”—had no applicability to a corporation “formed to disseminate political ideas, not to amass capital.”917 The other principal rationale—protection of corporate shareholders and other contributors from having their money used to support political candidates to whom they may be opposed—was also deemed inapplicable. The Court distinguished National Right to Work Committee because “restrictions on contributions require less compelling justification than restrictions on independent spending,” and also explained that, “given a contributor’s awareness of the political activity of [MCFL], as well as the readily available remedy of refusing further donations, the interest protecting contributors is simply insufficient to support § 441b’s restriction on . . . independent spending.”918 What the Court did not address directly was whether the same analysis could have led to a different result in National Right to Work Committee.919

Clarification of Massachusetts Citizens for Life was provided by Austin v. Michigan State Chamber of Commerce,920 in which the Court upheld application to a nonprofit corporation of Michigan’s restrictions on independent expenditures by corporations. The Michigan law, like federal law, prohibited such expenditures from corporate treasury funds, but allowed them to be made from a corporation’s PAC funds. This arrangement, the Court decided, serves the state’s compelling interest in ensuring that expenditure of corporate wealth, accumulated with the help of special advantages conferred by state law, does not “distort” the election process.921 The law was sufficiently “narrowly tailored” because it permits corporations to make independent political expenditures through segregated funds that “accurately reﬂect contributors’ support for the corporation’s political views.”922 Also, the Court concluded that the Chamber of Commerce was unlike the MCFL in each of the three distinguishing features that had justified an exemption from operation of the federal law. Unlike MCFL, the Chamber was not organized solely to promote political ideas; although it had no stockholders, the Chamber’s members had similar disincentives to forgo benefits of membership in order to protest the Chamber’s political expression; and, by accepting corporate contributions, the Chamber could serve as a conduit for corporations to circumvent prohibitions on direct corporate contributions and expenditures.923

In FEC v. Beaumont,924 the Court held that the federal law that bars corporations from contributing directly to candidates for federal office, but allows contributions though PACs, may constitutionally be applied to nonprofit advocacy corporations. The Court in Beaumont wrote that, in National Right to Work, it had “specifically rejected the argument . . . that deference to congressional judgments about proper limits on corporate contributions turns on details of corporate form or the affluence of particular corporations.”925 Though nonprofit advocacy corporations, the Court held in Massachusetts Citizens for Life, have a First Amendment right to make independent expenditures, the same is not true for direct contributions to candidates.

In McConnell v. FEC,926 the Court upheld against facial constitutional challenges key provisions of the Bipartisan Campaign Reform Act of 2002 (BCRA). A majority opinion coauthored by Justices Stevens and O’Connor upheld two major provisions of BCRA: (1) the prohibition on “national party committees and their agents from soliciting, receiving, directing, or spending any soft money,”927 which is money donated for the purpose of inﬂuencing state or local elections, or money for “mixed-purpose activities—including getoutthevote drives and generic party advertising,”928 and (2) the prohibition on corporations and labor unions’ using funds in their treasuries to finance “electioneering communications,”929 which BCRA defines as “any broadcast, cable, or satellite communication” that “refers to a clearly identified candidate for Federal Office,” made within 60 days before a general election or 30 days before a primary election. Electioneering communications thus include both “express advocacy and so-called issue advocacy.”930

As for the soft-money prohibition on national party committees, the Court applied “the less rigorous scrutiny applicable to contribution limits”931 and found it “closely drawn to match a sufficiently important interest.”932 The Court’s decision to use less rigorous scrutiny, it wrote, “reﬂects more than the limited burdens they [i. e., the contribution restrictions] impose on First Amendment freedoms. It also reﬂects the importance of the interests that underlie contribution limits—interests in preventing ‘both the actual corruption threatened by large financial contributions and the eroding of public confidence in the electoral process through the appearance of corruption.’”933

As for the prohibition on corporations and labor unions’ using their general treasury funds to finance electioneering communications, the Court applied strict scrutiny, but found a compelling governmental interest in preventing “the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form and that have little or no correlation to the public’s support for the corporation’s political ideals.”934 These corrosive and distorting effects result both from express advocacy and from so-called issue advocacy. The Court also noted that, because corporations and unions “remain free to organize and administer segregated funds, or PACs,” for electioneering communications, the provision was not a complete ban on expression.935 In response to the argument that the justifications for a ban on express advocacy did not apply to issue advocacy, the Court found that the “argument fails to the extent that the issue ads broadcast during the 30- and 60-day periods preceding federal primary and general elections are the functional equivalent of express advocacy.”936

The limitations on electioneering communication, however, soon faced renewed examination by the Court. In Wisconsin Right to Life, Inc. v. Federal Election Comm’n (WRTL I),937 the Court vacated a lower court decision that had denied plaintiffs the opportunity to bring an as-applied challenge to BCRA’s regulation of electioneering communications. Subsequently, in Federal Election Commission v. Wisconsin Right to Life (WRTL II),938 the Court considered what standard should be used for such a challenge. Chief Justice Roberts, in the controlling opinion,939 rejected the suggestion that an issue ad broadcast during the specified periods before elections should be considered the “functional equivalent” of express advocacy if the “intent and effect” of the ad was to inﬂuence the voter’s decision in an election.940 Rather, Chief Justice Roberts’ opinion held that an issue ad is the functional equivalent of express advocacy only if the ad is “susceptible of no reasonable interpretation other than as an appeal to vote for or against a specific candidate.”941

Then came the case of Citizens United v. FEC,942 which significantly altered the Supreme Court’s jurisprudence on corporations and election law. In Citizens United, a non-profit corporation released a film critical of then-Senator Hillary Clinton, a candidate in the Democratic Party’s 2008 Presidential primary elections, and sought to make it available to cable television subscribers within 30 days of that primary. The case began as another as-applied challenge to BCRA, but the Court asked for reargument, and, in a 5–4 decision, not only struck down the limitations on electioneering communication on its face (overruling McConnell) but also rejected the use of the antidistortion rationale (overruling Austin).

In Citizens United, the Court argued that there was a tension between the right of corporations to engage in political speech, as articulated in Bellotti and its progeny, and the limitations on such speech allowed in Austin to avoid the disproportionate economic power of corporations. Reasoning that the Court had rejected similar attempts to level the playing field among differing voices with disparate economic resources,943 the Court held that the premise that the First Amendment generally prohibits the suppression of political speech based on the speaker’s identity of necessity prevents distinctions based on wealth.944 In particular, the Court noted that media corporations, although statutorily exempted from these restrictions, do not receive special constitutional protection under the First Amendment,945 and thus would be constitutionally vulnerable under an antidistortion rationale.

The Court also held that the ability of a corporation to form a PAC neither allowed that corporation to speak directly, nor did it provide a sufficient alternative method of speech. The Court, found that PACs are burdensome alternatives that are “expensive to administer and are subject to extensive regulation.”946 The Court noted that the difficulty in establishing a PAC might explain why fewer than 2,000 of the millions of corporations in the country have PACs. Further, the Court argued that even if a corporation did want to establish a PAC to speak to an urgent issue, that such corporation might not be able to establish one in time to address issues in a current campaign.

While the holding of Citizens United would appear to diminish the need for corporations to create PACs in order to engage in political speech, it is not clear what level of regulation will now be allowed over speech made directly by a corporation.947 The Court did uphold the requirements under BCRA that electioneering communications funded by anyone other than a candidate must include a disclaimer regarding who is responsible for the content of the communication, and that the person making the expenditure must disclose to the FEC the amount of the expenditure and the names of certain contributors. The Court held that these requirements could be justified based on a governmental interest in “provid[ing] the electorate with information” about the sources of election-related spending, helping citizens “make informed choices in the political marketplace,” and facilitate the ability of shareholders to hold corporations accountable for such political speech.948

In Randall v. Sorrell, a plurality of the Court struck down a Vermont campaign finance statute’s limitations on both expenditures and contributions.949 As for the statute’s expenditure limitations, the plurality found Buckley to control and saw no reason to overrule it and no adequate basis upon which to distinguish it. As for the statute’s contribution limitations, the plurality, following Buckley, considered whether the “contribution limits prevent candidates from ‘amassing the resources necessary for effective [campaign] advocacy’; whether they magnify the advantages of incumbency to the point where they put challengers to a significant disadvantage; in a word, whether they are too low and too strict to survive First Amendment scrutiny.”950 The plurality found that they were.951 Vermont’s limit of $200 per gubernatorial election “(with significantly lower limits for contributions to candidates for State Senate and House of Representatives) . . . are well below the limits this Court upheld in Buckley,” and “are the lowest in the Nation.”952 But the plurality struck down Vermont’s contribution limits “based not merely on the low dollar amounts of the limits themselves, but also on the statute’s effect on political parties and on volunteer activity in Vermont elections.”953

Government as Regulator of the Electoral Process: Lobbying.—Legislators may depend upon representations made to them and information supplied to them by interested parties, and therefore may desire to know what the real interests of those parties are, what groups or persons they represent, and other such information. But everyone is constitutionally entitled to write his congressman or his state legislator, to cause others to write or otherwise contact legislators, and to make speeches and publish articles designed to inﬂuence legislators. Conﬂict is inherent. In the Federal Regulation of Lobbying Act,954 Congress, by broadly phrased and ambiguous language, seemed to require detailed reporting and registration by all persons who solicited, received, or expended funds for purposes of lobbying; that is, to inﬂuence congressional action directly or indirectly. In United States v. Harriss,955 the Court, stating that it was construing the Act to avoid constitutional doubts,956 interpreted covered lobbying as meaning only direct attempts to inﬂuence legislation through direct communication with members of Congress.957 So construed, the Act was constitutional; Congress had “merely provided for a modicum of information from those who for hire attempt to inﬂuence legislation or who collect or spend funds for that purpose,” and this was simply a measure of “self-protection.”958

Other statutes and governmental programs affect lobbying and lobbying activities. It is not impermissible for the Federal Government to deny a business expense tax deduction for money spent to defeat legislation that would adversely affect one’s business.959 But the antitrust laws may not be applied to a concert of business enterprises that have joined to lobby the legislative branch to pass and the executive branch to enforce laws that would have a detrimental effect upon competitors, even if the lobbying was conducted unethically.960 On the other hand, allegations that competitors combined to harass and deter others from having free and unlimited access to agencies and courts by resisting before those bodies all petitions of competitors for purposes of injury to competition are sufficient to implicate antitrust principles.961

Government as Regulator of Labor Relations.—Numerous problems may arise in this area,962 but the issue here considered is the balance to be drawn between the free speech rights of an employer and the statutory rights of his employees to engage or not engage in concerted activities free of employer coercion, which may well include threats or promises or other oral or written communications. The Court has upheld prohibitions against employer interference with union activity through speech so long as the speech is coercive,963 and that holding has been reduced to statutory form.964 Nonetheless, there is a First Amendment tension in this area, with its myriad variations of speech forms that may be denominated “predictions,” especially because determination whether particular utterances have an impermissible impact on workers is vested with an agency with no particular expertise in the protection of freedom of expression.965

Government as Investigator: Reporter’s Privilege.—News organizations have claimed that the First Amendment compels a recognition by government of an exception to the ancient rule that every citizen owes to his government a duty to give what testimony he is capable of giving.966 The argument for a limited exemption to permit reporters to conceal their sources and to keep confidential certain information they obtain and choose at least for the moment not to publish was rejected in Branzburg v. Hayes967 by a closely divided Court. “Fair and effective law enforcement aimed at providing security for the person and property of the individual is a fundamental function of government, and the grand jury plays an important, constitutionally mandated role in this process. On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering which is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.”968 Not only was it uncertain to what degree confidential informants would be deterred from providing information, said Justice White for the Court, but the conditional nature of the privilege claimed might not mitigate the deterrent effect, leading to claims for an absolute privilege. Confidentiality could be protected by the secrecy of grand jury proceedings and by the experience of law enforcement officials in themselves dealing with informers. Difficulties would arise as well in identifying who should have the privilege and who should not. But the principal basis of the holding was that the investigation and exposure of criminal conduct was a governmental function of such importance that it overrode the interest of reporters in avoiding the incidental burden on their newsgathering activities occasioned by such governmental inquiries.969

The Court observed that Congress, as well as state legislatures and state courts, are free to adopt privileges for reporters.970 Although efforts in Congress have failed, 49 states have done so—33 (plus the District of Columbia) by statute and 16 by court decision, with Wyoming the sole holdout.971 As for federal courts, Federal Rule of Evidence 501 provides that “the privilege of a witness . . . shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.”972 The federal courts have not resolved whether the common law provides a journalists’ privilege.973

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.974 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, and 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.975

Government and the Conduct of Trials.—Conﬂict between constitutional rights is not uncommon. One of the most difficult to resolve is the conﬂict between a criminal defendant’s Fifth and Sixth Amendment rights to a fair trial and the First Amendment’s protection of the rights to obtain and publish information about defendants and trials. Convictions obtained in the context of prejudicial pretrial publicity976 and during trials that were media “spectaculars”977 have been reversed, but the prevention of such occurrences is of paramount importance to the governmental and public interest in the finality of criminal trials and the successful prosecution of criminals. However, the imposition of “gag orders” on press publication of information directly confronts the First Amendment’s bar on prior restraints,978 although the courts have a good deal more discretion in preventing the information from becoming public in the first place.979 Perhaps the most profound debate that has arisen in recent years concerns the right of access of the public and the press to trial and pretrial proceedings, and the Court has addressed the issue.

When the Court held that the Sixth Amendment right to a public trial did not guarantee access of the public and the press to pretrial suppression hearings,980 a major debate ﬂowered concerning the extent to which, if at all, the speech and press clauses protected the public and the press in seeking to attend trials.981 The right of access to criminal trials against the wishes of the defendant was held protected in Richmond Newspapers v. Virginia,982 but the Justices could not agree upon a majority rationale that would permit principled application of the holding to other areas in which access is sought.

Chief Justice Burger pronounced the judgment of the Court, but his opinion was joined by only two other Justices (and one of them in a separate concurrence drew conclusions probably going beyond the Chief Justice’s opinion).983 Basic to the Chief Justice’s view was an historical treatment that demonstrated that trials were traditionally open. This openness, moreover, was no “quirk of history” but “an indispensable attribute of an Anglo-American trial.” This characteristic ﬂowed from the public interest in seeing fairness and proper conduct in the administration of criminal trials; the “therapeutic value” to the public of seeing its criminal laws in operation, purging the society of the outrage felt at the commission of many crimes, convincingly demonstrated why the tradition had developed and been maintained. Thus, “a presumption of openness inheres in the very nature of a criminal trial under our system of justice.” The presumption has more than custom to command it. “[I]n the context of trials . . . the First Amendment guarantees of speech and press, standing alone, prohibit government from summarily closing courtroom doors which had long been open to the public at the time that amendment was adopted.”984

Justice Brennan, joined by Justice Marshall, followed a significantly different route to the same conclusion. In his view, “the First Amendment . . . has a structural role to play in securing and fostering our republican system of self-government. Implicit in this structural role is not only ‘the principle that debate on public issues should be uninhibited, robust, and wide-open,’ but the antecedent assumption that valuable public debate—as well as other civic behavior— must be informed. The structural model links the First Amendment to that process of communication necessary for a democracy to survive, and thus entails solicitude not only for communication itself but also for the indispensable conditions of meaningful communication.”985

The trial court in Richmond Newspapers had made no findings of necessity for closure, and neither Chief Justice Burger nor Justice Brennan found the need to articulate a standard for determining when the government’s or the defendant’s interests could outweigh the public right of access. That standard was developed two years later. Globe Newspaper Co. v. Superior Court986 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 Brennan wrote that the First Amendment guarantees press and public access to criminal trials, both because of the tradition of openness987 and because public scrutiny of a criminal trial serves the valuable functions of enhancing the quality and safeguards of the integrity of the factfinding process, of fostering the appearance of fairness, and of permitting public participation in the judicial process. The right is not absolute, but in order to close all or part of a trial government must show that “the denial is necessitated by a compelling governmental interest, and [that it] is narrowly tailored to serve that interest.”988 The Court was explicit that the right of access was to criminal trials,989 so that the question of the openness of civil trials remains.

The Court next applied and extended the right of access in several other areas, striking down state efforts to exclude the public from voir dire proceedings, from a suppression hearing, and from a preliminary hearing. The Court determined in Press-Enterprise I990 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.”991 No such findings had been made by the state court, which had ordered closed, in the interest of protecting the privacy interests of some prospective jurors, 41 of the 44 days of voir dire in a rape-murder case. The trial court also had not considered the possibility of less restric-subject protection from publicity. In Waller v. Georgia,992 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,”993 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.994 And, in Press Enterprise II,995 the Court held that there is a similar First Amendment right of the public to access to most criminal proceedings (here a preliminary hearing) even when the accused requests that the proceedings be closed. Thus, an accused’s Sixth Amendment-based request for closure must meet the same stringent test applied to governmental requests to close proceedings: there must be “specific findings . . . demonstrating that first, there is a substantial probability that the defendant’s right to a fair trial will be prejudiced by publicity that closure would prevent, and second, reasonable alternatives to closure cannot adequately protect the defendant’s fair trial rights.”996 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.997

Government as Administrator of Prisons.—A prison inmate retains only those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.998 The identifiable governmental interests at stake in administration of prisons are the preservation of internal order and discipline, the maintenance of institutional security against escape or unauthorized entry, and the rehabilitation of the prisoners.999 In applying these general standards, the Court at first arrived at somewhat divergent points in assessing prison restrictions on mail and on face-to-face news interviews between reporters and prisoners. The Court’s more recent deferential approach to regulation of prisoners’ mail has lessened the differences.

First, in Procunier v. Martinez,1000 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.”1001 The Court based this ruling not on the rights of the prisoner, but instead on the outsider’s right to communicate with the prisoner either by sending or by receiving mail. Under this framework, the Court held, regulation of mail must further an important interest unrelated to the suppression of expression; regulation must be shown to further the substantial interest of security, order, and rehabilitation; and regulation must not be used simply to censor opinions or other expressions. Further, a restriction must be no greater than is necessary to the protection of the particular government interest involved.

In Turner v. Saﬂey,1002 however, the Court made clear that a standard that is more deferential to the government is applicable 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.”1003 Four factors “are relevant in determining the reasonableness of a regulation at issue.”1004 “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?”1005 Two years after Turner v. Saﬂey, in Thornburgh v. Abbott, the Court restricted Procunier v. Martinez to the regulation of 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.1006

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.”1007 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.1008 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.”1009 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.1010 The plurality concluded that he had. Justices Thomas and Scalia concurred in the result but would do away with 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.”1011

Neither prisoners nor reporters have any affirmative First Amendment right to face-to-face interviews, when general public access to prisons is restricted and when there are alternatives by which the news media can obtain information respecting prison policies and conditions.1012 Prison restrictions on such interviews do indeed 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.”1013

While agreeing with a previous affirmation that “news gathering is not without its First Amendment protections,”1014 the Court denied that the First Amendment imposed upon the government any affirmative obligation to the press. “The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally.”1015 Pell and Saxbe did not delineate whether the “equal access” rule applied only in cases in which there was public access, so that a different rule for the press might follow when general access was denied; nor did they purport to define what the rules of equal access are. No greater specificity emerged from Houchins v. KQED,1016 in which a broadcaster had sued for access to a prison from which public and press alike were barred and as to which there was considerable controversy over conditions of incarceration. Following initiation of the suit, the administrator of the prison authorized limited public tours. The tours were open to the press, but cameras and recording devices were not permitted, there was no opportunity to talk to inmates, and the tours did not include the maximum security area about which much of the controversy centered. The Supreme Court overturned the injunction obtained in the lower courts, the plurality reiterating that “[n]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government’s control. . . . [U]ntil the political branches decree otherwise, as they are free to do, the media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally.”1017 Justice Stewart, whose vote was necessary to the disposition of the case, agreed with the equal access holding but would have approved an injunction more narrowly drawn to protect the press’s right to use cameras and recorders so as to enlarge public access to the information.1018 Thus, any question of special press access appears settled by the decision; yet the questions raised above remain: May everyone be barred from access and, if access is accorded, does the Constitution necessitate any limitation on the discretion of prison administrators?1019

Government and the Power of the Purse.—In exercise of the spending power, Congress may refuse to subsidize the exercise of First Amendment rights, but may not deny benefits solely on the basis of the exercise of such rights. The distinction between these two closely related principles seemed, initially at least, to hinge on the severity and pervasiveness of the restriction placed on exercise of First Amendment rights. What has emerged is the principle that Congress may condition the receipt of federal funds on acceptance of speech limitations on persons working for the project receiving the federal funding—even if the project also receives non-federal funds—provided that the speech limitations do not extend to the use of non-federal funds outside of the federally funded project. In Regan v. Taxation With Representation,1020 the Court held that Congress could constitutionally limit tax-exempt status under § 501(c)(3) of the Internal Revenue Code to charitable organizations that do not engage in lobbying. “Congress has merely refused to pay for the lobbying out of public moneys,” the Court concluded.1021 The effect of the ruling on the organization’s lobbying activities was minimal, however, since it could continue to receive tax-deductible contributions by creating a separate affiliate to conduct the lobbying.

In FCC v. League of Women Voters,1022 by contrast, the Court held that the First Amendment rights of public broadcasting stations were abridged by a prohibition on all editorializing by any recipient of public funds. There was no alternative means, as there had been in Taxation With Representation, by which the stations could continue to receive public funding and create an affiliate to engage in the prohibited speech. The Court rejected dissenting Justice Rehnquist’s argument that the general principles of Taxation With Representation and Oklahoma v. Civil Service Comm’n1023 should be controlling.1024 In Rust v. Sullivan, however, Chief Justice Rehnquist asserted for the Court that restrictions on abortion counseling and referral imposed on recipients of family planning funding under the Public Health Service Act did not constitute discrimination on the basis of viewpoint, but instead represented government’s decision “to fund one activity to the exclusion of the other.”1025 In addition, to give up abortion-related speech; they merely require that the grantee Xproject. . . . The regulations govern the scope of the Title X project’s activities, and leave the grantee unfettered in its other activities.”1026 It remains to be seen what application this decision will have outside the contentious area of abortion regulation.1027

In National Endowment for the Arts v. Finley, the Supreme Court upheld the constitutionality of 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.”1028 The Court acknowledged that, if the statute were “applied in a manner that raises concern about the suppression of disfavored viewpoints,”1029 then such application might be unconstitutional. The statute on its face, however, is constitutional because it “imposes no categorical requirement,” being merely “advisory.”1030 “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 ‘very assumption’ of the NEA is that grants will be awarded according to the ‘artistic worth of competing applications,’ and absolute neutrality is simply ‘inconceivable.’”1031 The Court also found that the terms of the statute, “if they appeared in a criminal statute or regulatory scheme, . . . could raise substantial vagueness concerns. . . . But when the government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe.”1032

In contrast, in Agency for Int’l Dev. v. All. for Open Soc’y Int’l,1033 the Court found that the federal government could not explicitly require a federal grantee to adopt a public policy position as a condition of receiving federal funds. In All. for Open Soc’y Int’l, organizations that received federal dollars to combat HIV/AIDS internationally were required (1) to ensure that such funds were not being used “to promote or advocate the legalization or practice of prostitution or sex trafficking” and (2) to have a policy “explicitly opposing prostitution.”1034 While the first condition legitimately ensured that the government was not funding speech which conﬂicted with the purposes of the grant, the second requirement, in the view of the Court, improperly affected the recipient’s protected conduct outside of the federal program.1035 Further, the Court concluded that the organization could not, as in previous cases, avoid the requirement by establishing an affiliate to engage in opposing advocacy because of the “evident hypocrisy” that would entail.1036

In Legal Services Corp. v. Valazquez,1037 the Court struck down a provision of the Legal Services Corporation Act that prohibited recipients of Legal Services Corporation (LSC) funds (i. e., legal-aid organizations that provide lawyers to the poor in civil matters) from representing a client who seeks “to amend or otherwise challenge existing [welfare] law.” This meant that, even with non-federal funds, a recipient of federal funds could not argue that a state welfare statute violated a federal statute or that a state or federal welfare law violated the Constitution. If a case was underway when such a challenge became apparent, the attorney had to withdraw. The Court distinguished this situation from that in Rust v. Sullivan on the amounted to governmental speech,” whereas “an LSC-funded attorney speaks on behalf of the client in a claim against the government for welfare benefits.”1038 Furthermore, the restriction in this case “distorts the legal system” by prohibiting “speech and expression upon which courts must depend for the proper exercise of the judicial power,” and thereby is “inconsistent with accepted separation-of-powers principles.”1039

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.”1040 The plurality considered whether CIPA imposes an unconstitutional condition on the receipt of federal assistance by requiring public libraries (public schools were not involved in the case) to limit their freedom of speech if they accept federal funds. The plurality, citing Rust v. Sullivan, found that, assuming that government entities have First Amendment rights (it did not decide the question), CIPA does not infringe them. This is because CIPA does not deny a benefit to libraries that do not agree to use filters; rather, the statute “simply insist[s] that public funds be spent for the purposes for which they were authorized.”1041 The plurality distinguished Legal Services Corporation v. Velazquez on the ground that public libraries have no role comparable to that of legal aid attorneys “that pits them against the Government, and there is no comparable assumption that they must be free of any conditions that their benefactors might attach to the use of donated funds or other assistance.”1042

In Rumsfeld v. Forum for Academic and Institutional Rights, Inc., the Supreme Court upheld the Solomon Amendment, which provides, in the Court’s summary, “that if any part of an institution of higher education denies military recruiters access equal to that provided other recruiters, the entire institution would lose certain federal funds.”1043 FAIR, the group that challenged the Solomon Amendment, is an association of law schools that barred military recruiting on their campuses because of the military’s discrimination against homosexuals. FAIR challenged the Solomon Amendment as violating the First Amendment because it forced schools to choose between enforcing their nondiscrimination policy against military recruiters and continuing to receive specified federal funding. The Court concluded: “Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.”1044 The Court found that “[t]he Solomon Amendment neither limits what law schools may say nor requires them to say anything. . . . It affects what law schools must do—afford equal access to military recruiters—not what they may or may not say.”1045 The law schools’ conduct in barring military recruiters, the Court found, “is not inherently expressive,” and, therefore, unlike ﬂag burning, for example, is not “symbolic speech.”1046 Applying the O’Brien test for restrictions on conduct that have an incidental effect on speech, the Court found that the Solomon Amendment clearly “promotes a substantial government interest that would be achieved less effectively absent the regulation.”1047

The Court also found that the Solomon Amendment did not unconstitutionally compel schools to speak, or even to host or accommodate the government’s message. As for compelling speech, law schools must “send e-mails and post notices on behalf of the military to comply with the Solomon Amendment. . . . This sort of recruiting assistance, however, is a far cry from the compelled speech in Barnette and Wooley. . . . [It] is plainly incidental to the Solomon Amendment’s regulation of conduct.”1048 As for forcing one speaker to host or accommodate another, “[t]he compelled-speech violation in each of our prior cases . . . resulted from the fact that the complaining speaker’s own message was affected by the speech it was forced to accommodate.”1049 By contrast, the Court wrote, “Nothing about recruiting suggests that law schools agree with any speech by recruiters, and nothing in the Solomon Amendment restricts what the law schools may say about the military’s policies.”1050 Finally, the Court found that the Solomon Amendment was not analogous to the New Jersey law that had required the Boy Scouts to accept a homosexual scoutmaster, and that the Supreme Court struck down as violating the Boy Scouts’ “right of expressive association.”1051 Recruiters, unlike the scoutmaster, are “outsiders who come onto campus for the limited purpose of trying to hire students—not to become members of the school’s expressive association.”1052

The Government Speech Doctrine.—As an outgrowth of the government subsidy cases, such as Rust v. Sullivan,1053 the Court has established the “government speech doctrine” that recognizes that a government entity “is entitled to say what it wishes”1054 and to select the views that it wants to express.1055 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.1056 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.1057 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.1058 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;1059 (2) disciplinary actions taken as a result of statements made by public employees pursuant to their official duties;1060 (3) mandatory assessments made against cattle merchants when used to fund advertisements whose message was controlled by the government;1061 (4) a city’s decision to reject a monument for placement in a public park;1062 and (5) a state’s decision to reject a design for a specialty license plate for an automobile.1063

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.1064 Four years later, 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.”1065 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.1066 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.1067 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.1068

More recently, in Matal v. Tam, the Supreme Court held 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.”1069 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.”1070 First, the Court noted that, unlike license plates, trademarks do not have a history of use to convey messages by the government1071 . 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.”1072 And third, the public, according to the Tam Court, does not closely identify trademarks with the government.1073 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.

Which of the following best describes Canon 35 quizlet?

Which of the following best describes Canon 35? It was a rule that prohibited cameras and radio broadcasting of trials.

Which of the following best defines slander?

Slander is the legal term used to describe false statements made by one party against another.

Which of the following best describes how society factors into the ethical choices that media professionals make?

Which of the following best describes how society factors into the ethical choices that media professionals make? Media professionals influence society with their work, so they have a responsibility to society.

Which type of media message is agenda setting theory primarily used to explain?

That's why media turn certain issues viral. Agenda setting theory is used in a political ad, campaigns, business news, PR (public relation) etc. The main concept associated with the theory is gatekeeping. Gatekeeping is in charge of and has control of the selection of content discussed in the media.

What is the industry named in the u.s. constitution as deserving special protection?

Freedom of the Press

Login

Subscribe

Which of the following best describes Canon 35 quizlet?

Which of the following best defines slander?

Which of the following best describes how society factors into the ethical choices that media professionals make?

Which type of media message is agenda setting theory primarily used to explain?

zusammenhängende Posts

Which of the following examples would most encourage a childs sense of industry?

To compete with other organizations in the industry and to boost employee morale

The threat of rivalry in the hardwood furniture industry can best be described as

You should assign a descriptive name to each variable and named constant used in a program.

What was the major trend affecting business and industry in America in the 1920s?

What happens in a perfectly competitive industry when economic profit is greater than zero

Reproduction value is easy to validate despite not having comparable assets in the industry.

Which industry type is Characterised by a large number of firms of approximately equal size?

Which of the following is not a characteristic of a perfectly competitive industry?

Which of the following groups consists of a set of industry competitors that have similar characteristics to each other?

Toplist

Neuester Beitrag

Stichworte