First Amendment: Religion And Free Expression

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceab...

Religion
An Overview
Scholarly Commentary
Court Tests Applied to Legislation Affecting Religion
Government Neutrality in Religious Disputes
Establishment of Religion
Financial Assistance to Church-Related Institutions
Governmental Encouragement of Religion in Public Schools: Released Time
Governmental Encouragement of Religion in Public Schools: Prayers and Bible Reading
Governmental Encouragement of Religion in Public Schools: Curriculum Restriction
Access of Religious Groups to Public Property
Tax Exemptions of Religious Property
Exemption of Religious Organizations from Generally Applicable Laws
Sunday Closing Laws
Conscientious Objection
Regulation of Religious Solicitation
Religion in Governmental Observances
Religious Displays on Government Property
Miscellaneous
Free Exercise of Religion
The Belief-Conduct Distinction
The Mormon Cases
The Jehovah's Witnesses Cases
Free Exercise Exemption From General Governmental Requirements
Religious Test Oaths
Religious Disqualification
Freedom of Expression-Speech and Press
Adoption and the Common Law Background
Freedom of Expression: The Philosophical Basis
Freedom of Expression: Is There a Difference Between Speech and Press?
The Doctrine of Prior Restraint
Injunctions and the Press in Fair Trial Cases
Obscenity and Prior Restraint
Subsequent Punishment: Clear and Present Danger and Other Tests
Clear and Present Danger
The Adoption of Clear and Present Danger
Contempt of Court and Clear and Present Danger
Clear and Present Danger Revised: Dennis
Balancing
The "Absolutist" View of the First Amendment, With a Note on "Preferred Position"
Of Other Tests and Standards: Vagueness, Overbreadth, Least Restrictive Means, and Others
Is There a Present Test?
Freedom of Belief
Flag Salute Cases
Imposition of Consequences for Holding Certain Beliefs
Right of Association
Political Association
Conflict Between Organization and Members
Maintenance of National Security and the First Amendment
Punishment of Advocacy
Compelled Registration of Communist Party
Punishment for Membership in an Organization That Engages in Proscribed Advocacy
Disabilities Attaching to Membership in Proscribed Organizations
Employment Restrictions and Loyalty Oaths
Legislative Investigations and the First Amendment
Interference With War Effort
Suppression of Communist Propaganda in the Mails
Exclusion of Certain Aliens as a First Amendment Problem
Particular Governmental Regulations That Restrict Expression
Government as Employer: Political and Other Outside Activities
Government as Employer: Free Expression Generally
Government as Educator
Government as Regulator of the Electoral Process: Elections
Government as Regulator of the Electoral Process: Lobbying
Government as Regulator of Labor Relations
Government as Investigator: Reporter's Privilege
Government and the Conduct of Trials
Government as Administrator of Prisons
Government and Power of the Purse
Governmental Regulation of Communications Industries
Commercial Speech
Taxation
Labor Relations
Antitrust Laws
Radio and Television
Governmentally Compelled Right of Reply to Newspapers
Regulation of Cable Television
Government Restraint of Content of Expression
Seditious Speech and Seditious Libel
Fighting Words and Other Threats to the Peace
Threats of Violence Against Individuals
Group Libel, Hate Speech
Defamation
Invasion of Privacy
Emotional Distress Tort Actions
"Right of Publicity" Tort Actions
Publication of Legally Confidential Information
Obscenity
Child Pornography
Non-obscene But Sexually Explicit and Indecent Expression
Speech Plus-The Constitutional Law of Leafleting, Picketing, and Demonstrating
The Public Forum
Quasi-Public Places
Picketing and Boycotts by Labor Unions
Public Issue Picketing and Parading
Leafleting, Handbilling, and the Like
Sound Trucks, Noise
Door-to-Door Solicitation
The Problem of "Symbolic Speech"
Rights of Assembly and Petition
Background and Development
The Cruikshank Case
The Hague Case

Religion

An Overview

Madison's original proposal for a bill of rights provision concerning religion read: "The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretence, infringed."[1] The language was altered in the House to read: "Congress shall make no law establishing religion, or to prevent the free exercise thereof, or to infringe the rights of conscience."[2] In the Senate, the section adopted read: "Congress shall make no law establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion, . . ."[3]

It was in the conference committee of the two bodies, chaired by Madison, that the present language was written with its somewhat more indefinite "respecting" phraseology.[4] Debate in Congress lends little assistance in interpreting the religion clauses; Madison's position, as well as that of Jefferson, who influenced him, is fairly clear,[5] but the intent, insofar as there was one, of the others in Congress who voted for the language and those in the States who voted to ratify is subject to speculation.

Scholarly Commentary

The explication of the religion clauses by scholars in the nineteenth century gave a restrained sense of their meaning. Story, who thought that "the right of a society or government to interfere in matters of religion will hardly be contested by any persons, who believe that piety, religion, and morality are intimately connected with the well being of the state, and indispensable to the administration of civil justice,"[6] looked upon the prohibition simply as an exclusion from the Federal Government of all power to act upon the subject. "The situation . . . of the different states equally proclaimed the policy, as well as the necessity of such an exclusion. In some of the states, episcopalians constituted the predominant sect; in others presbyterians; in others, congregationalists; in others, quakers; and in others again, there was a close numerical rivalry among contending sects. It was impossible, that there should not arise perpetual strife and perpetual jealousy on the subject of ecclesiastical ascendancy, if the national government were left free to create a religious establishment. The only security was in extirpating the power. But this alone would have been an imperfect security, if it had not been followed up by a declaration of the right of the free exercise of religion, and a prohibition (as we have seen) of all religious tests. Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship."[7]

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

Not until the Supreme Court held the religion clauses applicable to the states in the 1940s[10]did it have much opportunity to interpret them. But it quickly gave them a broad construction. In Everson v. Board of Education,[11] the Court, without dissent on this point, declared that the Establishment Clause forbids not only practices that "aid one religion" or "prefer one religion over another," but also those that "aid all religions." With respect to the Free Exercise Clause, it asserted in Wisconsin v. Yoder[12] that "only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion."

More recent decisions, however, evidence a narrower interpretation of the religion clauses. Indeed, in Employment Division, Oregon Department of Human Resources v. Smith[13] the Court abandoned its earlier view and held that the Free Exercise Clause never "relieve(s) an individual of the obligation to comply with a 'valid and neutral law of general applicability."' On the Establishment Clause the Court has not wholly repudiated its previous holdings, but recent decisions have evidenced a greater sympathy for the view that the clause bars "preferential" governmental promotion of some religions but allows governmental promotion of all religion in general.[14] Nonetheless, the Court remains sharply split on how to interpret both clauses.

Court Tests Applied to Legislation Affecting Religion

Before considering in detail the development of the two religion clauses by the Supreme Court, one should notice briefly the tests the Court has articulated to adjudicate the religion cases. At the same time it should be emphasized that the Court has noted that the language of earlier cases "may have [contained] too sweeping utterances on aspects of these clauses that seemed clear in relation to the particular cases but have limited meaning as general principles."[15] While later cases have relied on a series of well-defined, if difficult-to-apply, tests, the Court has cautioned that "the purpose [of the religion clauses] was to state an objective, not to write a statute."[16]

In 1802, President Jefferson wrote a letter to a group of Baptists in Danbury, Connecticut, in which he declared that it was the purpose of the First Amendment to build "a wall of separation between Church and State."[17] In Reynolds v. United States,[18] Chief Justice Waite for the Court characterized the phrase as "almost an authoritative declaration of the scope and effect of the amendment." In its first encounters with religion-based challenges to state programs, the Court looked to Jefferson's metaphor for substantial guidance.[19] But a metaphor may obscure as well as illuminate, and the Court soon began to emphasize neutrality and voluntarism as the standard of restraint on governmental action.[20] The concept of neutrality itself is "a coat of many colors,"[21] and three standards that seemingly could be stated in objective fashion emerged as tests of Establishment Clause validity. The first two standards emerged together. "The test may be stated as follows: what are the purpose and the primary effect of the enactment? If either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion."[22] The third test emerged several years later and asks whether the governmental program results in "an excessive government entanglement with religion. The test is inescapably one of degree . . . [T]he questions are whether the involvement is excessive, and whether it is a continuing one calling for official and continuing surveillance leading to an impermissible degree of entanglement."[23] In 1971 these three tests were combined and restated in Chief Justice Burger's opinion for the Court in Lemon v. Kurtzman,[24] and are frequently referred to by reference to that case name.

Although at one time accepted in principle by all of the Justices,[25] the tests have sometimes been difficult to apply,[26] have recently come under direct attack by some Justices,[27] and in several instances have not been applied at all by the Court.[28] Nonetheless, the Court employed the Lemon tests in several of its most recent establishment clause decisions,[29]and it remains the case that those tests have served as the primary standard of establishment clause validity for the past three decades. However, other tests have also been formulated and used. Justice Kennedy has proffered "coercion" as an alternative test for violations of the establishment clause,[30] and the Court has used that test as the basis for decision from time to time.[31] But that test has been criticized on the grounds it would eliminate a principal distinction between the establishment clause and the free exercise clause and make the former a "virtual nullity."[32] Justice O'Connor has suggested "endorsement" as a clarification of the Lemon test, i.e., that the establishment clause is violated if the government intends its action to endorse or disapprove of religion or if a "reasonable observer" would perceive the government's action as such an endorsement or disapproval.[33] But others have criticized that test as too amorphous to provide certain guidance.[34] Justice O'Connor has also suggested that it may be inappropriate to try to shoehorn all establishment clause cases into one test, and has called instead for recognition that different contexts may call for different approaches.[35] In two of its most recentestablishment clause decisions, it might be noted, the Court employed all three tests in one decision[36] and relied primarily on a modified version of the Lemon tests in the other.[37]

In interpreting and applying the Free Exercise Clause, the Court has consistently held religious beliefs to be absolutely immune from governmental interference.[38] But it has used a number of standards to review government action restrictive of religiously motivated conduct, ranging from formal neutrality[39] to clear and present danger[40] to strict scrutiny.[41]For cases of intentional governmental discrimination against religion, the Court still employs strict scrutiny[42] But for most other free exercise cases it has now reverted to a standard of formal neutrality. "[T]he right of free exercise," it recently stated, "does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."'[43]

Government Neutrality in Religious Disputes

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

The first such case was Watson v. Jones,[44] which was decided on common-law grounds in a diversity action without explicit reliance on the First Amendment. A constitutionalization of the rule was made in Kedroff v. St. Nicholas Cathedral,[45] in which the Court held unconstitutional a state statute that recognized the autonomy and authority of those North American branches of the Russian Orthodox Church which had declared their independence from the general church. Recognizing that Watson v. Jones had been decided on nonconstitutional grounds, the Court thought nonetheless that the opinion "radiates . . . a spirit of freedom for religious organizations, and independence from secular control or manipulation-in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine."[46] The power of civil courts to resolve church property disputes was severely circumscribed, the Court held, because to permit resolution of doctrinal disputes in court was to jeopardize First Amendment values. What a court must do, it was held, is to look at the church rules: if the church is a hierarchical one which reposes determination of ecclesiastical issues in a certain body, the resolution by that body is determinative, while if the church is a congregational one prescribing action by a majority vote, that determination will prevail.[47] On the other hand, a court confronted with a church property dispute could apply "neutral principles of law, developed for use in all property disputes," when to do so would not require resolution of doctrinal issues.[48] In a later case the Court elaborated on the limits of proper inquiry, holding that an argument over a matter of internal church government, the power to reorganize the dioceses of a hierarchical church in this country, was "at the core of ecclesiastical affairs" and a court could not interpret the church constitution to make an independent determination of the power but must defer to the interpretation of the church body authorized to decide.[49]

In Jones v. Wolf,[50] however, a divided Court, while formally adhering to these principles, appeared to depart in substance from their application. A schism had developed in a local church which was a member of a hierarchical church, and the majority voted to withdraw from the general church. The proper authority of the general church determined that the minority constituted the "true congregation" of the local church and awarded them authority over it. But rather than requiring deference to the decision of the church body, the Court approved the approach of the state court in applying neutral principles by examining the deeds to the church property, state statutes, and provisions of the general church's constitution concerning ownership and control of church property in order to determine that no language of trust in favor of the general church was contained in any of them and that the property thus belonged to the local congregational majority.[51] Further, the Court held, the First Amendment did not prevent the state court from applying a presumption of majority rule to award control to the majority of the local congregation, provided that it permitted defeasance of the presumption upon a showing that the identity of the local church is to be determined by some other means as expressed perhaps in the general church charter.[52] The dissent argued that to permit a court narrowly to view only the church documents relating to property ownership permitted it to ignore the fact that the dispute was over ecclesiastical matters and that the general church had decided which faction of the congregation was the local church.[53]

Thus, it is unclear where the Court is on this issue. Jones v. Wolf restated the rule that it is improper to review an ecclesiastical dispute and that deference is required in those cases, but by approving a neutral principles inquiry which in effect can filter out the doctrinal issues underlying a church dispute, the Court seems to have approved at least an indirect limitation of the authority of hierarchical churches.[54]

Establishment of Religion

"[F]or the men who wrote the Religion Clauses of the First Amendment the 'establishment' of a religion connoted sponsorship, financial support, and active involvement of the sovereign in religious activity."[55] "[The] Court has long held that the First Amendment reaches more than classic, 18th century establishments."[56] However, the Court's reading of the clause has never resulted in the barring of all assistance which aids, however incidentally, a religious institution. Outside this area, the decisions generally have more rigorously prohibited what may be deemed governmental promotion of religious doctrine.

Financial Assistance to Church-Related Institutions

The Court's first opportunity to rule on the validity of governmental financial assistance to a religiously affiliated institution occurred in 1899, the assistance being a federal grant for the construction of a wing of a hospital owned and operated by a Roman Catholic order which was to be devoted to the care of the poor. The Court viewed the hospital primarily as a secular institution so chartered by Congress and not as a religious or sectarian body, and thus avoided the constitutional issue.[57] But when the right of local authorities to provide free transportation for children attending parochial schools reached the Court, it adopted a very broad view of the restrictions imposed by the establishment clause. "The 'establishment of religion' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect 'a wall of separation between church and State."[58]

But despite this interpretation, the majority sustained the provision of transportation. While recognizing that "it approaches the verge" of the State's constitutional power, still, Justice Black thought, the transportation was a form of "public welfare legislation" which was being extended "to all its citizens without regard to their religious belief."[59] "It is undoubtedly true that children are helped to get to church schools. There is even a possibility that some of the children might not be sent to the church schools if the parents were compelled to pay their children's bus fares out of their own pockets when transportation to a public school would have been paid for by the State."[60] Transportation benefited the child, just as did police protection at crossings, fire protection, connections for sewage disposal, public highways and sidewalks. Thus was born the "child benefit" theory.[61]

The Court in 1968 relied on the "child benefit" theory to sustain state loans of textbooks to parochial school students.[62] Utilizing the secular purpose and effect tests,[63] the Court determined that the purpose of the loans was the "furtherance of the educational opportunities available to the young," while the effect was hardly less secular. "The law merely makes available to all children the benefits of a general program to lend school books free of charge. Books are furnished at the request of the pupil and ownership remains, at least technically, in the State. Thus no funds or books are furnished to parochial schools, and the financial benefit is to parents and children, not to schools. Perhaps free books make it more likely that some children choose to attend a sectarian school, but that was true of the state-paid bus fares in Everson and does not alone demonstrate an unconstitutional degree of support for a religious institution."[64]

From these beginnings, the case law on the discretion of state and federal governmental assistance to sectarian elementary and secondary schools as well as other religious entities has multiplied. Through the 1970s, at least, the law became as restrictive in fact as the dicta in the early cases suggested, save for the provision of some assistance to children under the "child benefit" theory. Since that time the Court has gradually adopted a more accommodating approach. It has upheld direct aid programs that have been of only marginal benefit to the religious mission of the recipient elementary and secondary schools, tax benefit and scholarship aid programs where the schools have received the assistance as the result of the independent decisions of the parents or students who initially receive the aid, and in its most recent decisions direct aid programs which substantially benefit the educational function of such schools. Indeed, in its most recent decisions the Court has overturned several of the most restrictive school aid precedents from its earlier jurisprudence. Throughout, the Court has allowed greater discretion with respect to aid programs benefiting religiously affiliated colleges and social services agencies.

A secular purpose is the first requirement of the Lemon tripartite test to sustain the validity of legislation touching upon religion, and upon this standard the Justices display little disagreement. There are adequate legitimate, non-sectarian bases for legislation to assist nonpublic, religious schools: preservation of a healthy and safe educational environment for all school children, promotion of pluralism and diversity among public and nonpublic schools, and prevention of overburdening of the public school system that would accompany the financial failure of private schools.[65]

The primary secular effect and no excessive entanglement aspects of the Lemon test, however, have proven much more divisive. As a consequence, the Court's applications of these tests have not always been consistent, and the rules guiding their application have not always been easy to decipher. Moreover, in its most recent decisions the Court has substantially modified the strictures these tests have previously imposed on public aid to pervasively sectarian entities.

In applying the primary effect and excessive entanglement tests, the Court has drawn a distinction between public aid programs that directly aid sectarian entities and those that do so only indirectly. Aid provided directly, the Court has said, must be limited to secular use lest it have a primary effect of advancing religion. The establishment clause "absolutely prohibit[s] government-financed or government-sponsored indoctrination into the beliefs of a particular religious faith."[66] The government may provide direct support to the secular services and programs sponsored by religious entities, but it cannot directly subsidize such organizations' religious activities or proselytizing.[67] Thus, the Court has struck down as unconstitutional a program providing grants for the maintenance and repair of sectarian elementary and secondary school facilities, because the grants had no restrictions to prevent their use for such purposes as defraying the costs of building or maintaining chapels or classrooms in which religion is taught,[68] and a program subsidizing field trip transportation for children attending sectarian elementary and secondary schools, because field trips are inevitably interwoven with the schools' educational functions.[69]

But the Court has not imposed a secular use limitation on aid programs that benefit sectarian entities only indirectly, i.e., as the result of decisions by someone other than the government itself. The initial beneficiaries of the public aid must be determined on the basis of religiously neutral criteria, and they must have a genuine choice about whether to use the aid at sectarian or non-sectarian entities. But where those standards have been met, the Court has upheld indirect aid programs even though the sectarian institutions that ultimately benefit may use the aid for religious purposes. Moreover, the Court has gradually broadened its understanding of what constitutes a genuine choice so that now most voucher or tax benefit programs benefiting the parents of children attending sectarian schools seem able to pass constitutional muster. Thus, the Court initially struck down tax benefit and educational voucher programs where the initial beneficiaries were limited to the universe of parents of children attending sectarian schools and where the aid, as a consequence, was virtually certain to go to sectarian schools.[70] But subsequently it has upheld a state program allowing taxpayers to take a deduction from their gross income for educational expenses, including tuition, incurred in sending their children to public or private schools, because the deduction was "available for educational expenses incurred by all parents" and the aid became available to sectarian schools "only as a result of numerous, private choices of individual parents of school-age children."[71] It has upheld for the same reasons a vocational rehabilitation program that made a grant to a blind person for training at a Bible college for a religious vocation[72] and another program that provided a sign-language interpreter for a deaf student attending a sectarian secondary school.[73] Most recently, it upheld as constitutional a tuition voucher program made available to the parents of children attending failing public schools, notwithstanding the fact that most of the private schools at which the vouchers could be used were sectarian in nature.[74] Whether the parents had a genuine choice among religious and secular options in using the vouchers, the Court said, had to be evaluated on the basis not only of the private schools where the vouchers could be redeemed but also by examining the full range of educational options open to them, including various public school options.

In applying the primary effect and excessive entanglement tests, the Court has also, until recently, drawn a distinction between religious institutions that are pervasively sectarian and those that are not. Organizations that are permeated by a religious purpose and character in all that they do have often been held by the Court to be constitutionally ineligible for direct public aid. Direct aid to religion-dominated institutions inevitably violates the primary effect test, the Court has said, because such aid generally cannot be limited to secular use in such entities and, as a consequence, it has a primary effect of advancing religion.[75] Moreover, any effort to limit the use of public aid by such entities to secular use inevitably falls afoul of the excessive entanglement test, according to the Court, because the risk of diversion of the aid to religious use is so great that it necessitates an intrusive government monitoring.[76] But direct aid to religious entities that are not pervasively sectarian, the Court has held, is constitutionally permissible, because the secular functions of such entities can be distinguished from their religious ones for purposes of public aid and because the risk of diversion of the aid to religious use is attenuated and does not require an intrusive government monitoring. As a practical matter, this distinction has had its most serious consequences for programs providing aid directly to sectarian elementary and secondary schools, because the Court has, until recently, presumed such schools to be pervasively sectarian and direct aid, as a consequence, to be severely limited.[77] The Court has presumed to the contrary with respect to religiously-affiliated colleges, hospitals, and social services providers; and as a consequence it has found direct aid programs to such entities to be permissible.[78]

In its most recent decisions the Court has modified both the primary effect and excessive entanglement prongs of the Lemon test as they apply to aid programs directly benefiting sectarian elementary and secondary schools; and in so doing it has overturned several prior decisions imposing tight constraints on aid to pervasively sectarian institutions. In Agostini v. Felton[79] the Court, in a 5-4 decision, abandoned the presumptions that public school teachers giving instruction on the premises of sectarian elementary and secondary schools will be so affected by the religiosity of the environment that they will inculcate religion and that, consequently, an excessively entangling monitoring of their services is constitutionally necessary. In Mitchell v. Helms,[80] in turn, it abandoned the presumptions that such schools are so pervasively sectarian that their secular educational functions cannot be differentiated from their religious educational functions and that direct aid to their educational functions, consequently, violates the establishment clause. In reaching these conclusions and upholding the aid programs in question, the Court overturned its prior decision in Aguilar v. Felton[81] and parts of its decisions in Meek v. Pittenger,[82] Wolman v. Walter,[83] and Grand Rapids School District v. Ball.[84]

Thus, the Court's jurisprudence concerning public aid to sectarian organizations has evolved over time, particularly as it concerns public aid to sectarian elementary and secondary schools. That evolution has given some uncertainty to the rules that apply to any given form of aid; and in both Agostini v. Felton[85] and Mitchell v. Helms[86] the Court left open the possibility of a further evolution in its thinking. Nonetheless, the cases give substantial guidance.

State aid to church-connected schools was first found to have gone over the "verge"[87] in Lemon v. Kurtzman.[88] Involved were two state statutes, one of which authorized the "purchase" of secular educational services from nonpublic elementary and secondary schools, a form of reimbursement for the cost to religious schools of the teaching of such things as mathematics, modern foreign languages, and physical sciences, and the other of which provided salary supplements to nonpublic school teachers who taught courses similar to those found in public schools, used textbooks approved for use in public schools, and agreed not to teach any classes in religion. Accepting the secular purpose attached to both statutes by the legislature, the Court did not pass on the secular effect test, but found excessive entanglement. This entanglement arose because the legislature "has not, and could not, provide state aid on the basis of a mere assumption that secular teachers under religious discipline can avoid conflicts. The State must be certain, given the Religion Clauses, that subsidized teachers do not inculcate religion."[89] Because the schools concerned were religious schools, because they were under the control of the church hierarchy, because the primary purpose of the schools was the propagation of the faith, a "comprehensive, discriminating, and continuing state surveillance will inevitably be required to ensure that these restrictions [on religious utilization of aid] are obeyed and the First Amendment otherwise respected."[90] Moreover, the provision of public aid inevitably will draw religious conflict into the public arena as the contest for adequate funding goes on. Thus, the Court held, both programs were unconstitutional because the state supervision necessary to ensure a secular purpose and a secular effect inevitably involved the state authorities too deeply in the religious affairs of the aided institutions.[91]

Two programs of assistance through provision of equipment and services to private, including sectarian, schools were invalidated in Meek v. Pittenger.[92] First, the loan of instructional material and equipment directly to qualifying nonpublic elementary and secondary schools was voided as an impermissible extension of assistance of religion. This conclusion was reached on the basis that 75 percent of the qualifying schools were church- related or religiously affiliated educational institutions and the assistance was available without regard to the degree of religious activity of the schools. The materials and equipment loaned were religiously neutral, but the substantial assistance necessarily constituted aid to the sectarian school enterprise as a whole and thus had a primary effect of advancing religion.[93] Second, the provision of auxiliary services-remedial and accelerated instruction, guidance counseling and testing, speech and hearing services-by public employees on nonpublic school premises was invalidated because the Court thought the program had to be policed closely to ensure religious neutrality and it saw no way that could be done without impermissible entanglement. The fact that the teachers would, under this program and unlike one of the programs condemned in Lemon v. Kurtzman, be public employees rather than employees of the religious schools and possibly under religious discipline was insufficient to permit the State to fail to make certain that religion was not inculcated by subsidized teachers.[94] (Justice Powell concurring in part and dissenting in part).

The Court in two 1985 cases again struck down programs of public subsidy of instructional services provided on the premises of sectarian schools, and relied on the effects test as well as the entanglement test. In Grand Rapids School District v. Ball,[95] the Court invalidated two programs conducted in leased private school classrooms, one taught during the regular school day by public school teachers,[96] and the other taught after regular school hours by part-time "public" teachers otherwise employed as full-time teachers by the sectarian school.[97] Both programs, the Court held, had the effect of promoting religion in three distinct ways. The teachers might be influenced by the "pervasively sectarian nature" of the environment and might "subtly or overtly indoctrinate the students in particular religious tenets at public expense"; use of the parochial school classrooms "threatens to convey a message of state support for religion" through "the symbolic union of government and religion in one sectarian enterprise"; and "the programs in effect subsidize the religious functions of the parochial schools by taking over a substantial portion of their responsibility for teaching secular subjects."[98] In Aguilar v. Felton,[99] the Court invalidated a program under which public school employees provided instructional services on parochial school premises to educationally deprived children. The program differed from those at issue in Grand Rapids because the classes were closely monitored for religious content. This "pervasive monitoring" did not save the program, however, because, by requiring close cooperation and day-to-day contact between public and secular authorities, the monitoring "infringes precisely those Establishment Clause values at the root of the prohibition of excessive entanglement."[100]

A state program to reimburse nonpublic schools for a variety of services mandated by state law was voided because the statute did not distinguish between secular and potentially religious services the costs of which would be reimbursed.[101] Similarly, a program of direct monetary grants to nonpublic schools to be used for the maintenance of school facilities and equipment failed to survive the primary effect test because it did not restrict payment to those expenditures related to the upkeep of facilities used exclusively for secular purposes and because "within the context of these religion-oriented institutions" the Court could not see how such restrictions could effectively be imposed.[102] But a plan of direct monetary grants to nonpublic schools to reimburse them for the costs of state-mandated record- keeping and of administering and grading state-prepared tests and which contained safeguards against religious utilization of the tests was sustained even though the Court recognized the incidental benefit to the schools.[103]

The "child benefit" theory, under which it is permissible for government to render ideologically neutral assistance and services to pupils in sectarian schools without being deemed to be aiding the religious mission of the schools, has not proved easy to apply. A number of different forms of assistance to students were at issue in Wolman v. Walter.[104]The Court approved the following: standardized tests and scoring services used in the public schools, with private school personnel not involved in the test drafting and scoring; speech, hearing, and psychological diagnostic services provided in the private schools by public employees; and therapeutic, guidance, and remedial services for students provided off the premises of the private schools. In all these, the Court thought the program contained adequate built-in protections against religious utilization. But while the Court adhered to its ruling permitting the States to loan secular textbooks used in the public schools to pupils attending religious schools,[105] it declined to extend the precedent to permit the loan to pupils or their parents of instructional materials and equipment, such as projectors, tape recorders, maps, globes and science kits, although they were identical to those used in the public schools.[106] Nor was a State permitted to expend funds to pay the costs to religious schools of field trip transportation such as was provided to public school students.[107]

The Court's more recent decisions, however, have rejected the reasoning and overturned the results of several of these decisions. In two rulings the Court reversed course with respect to the constitutionality of public school personnel providing educational services on the premises of pervasively sectarian schools. First, in Zobrest v. Catalina Foothills School District[108] the Court held the public subsidy of a sign-language interpreter for a deaf student attending a parochial school to create no primary effect or entanglement problems. The payment did not relieve the school of an expense that it would otherwise have borne, the Court stated, and the interpreter had no role in selecting or editing the content of any of the lessons. Reviving the child benefit theory of its earlier cases, the Court said that "[t]he service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as 'handicapped' under the IDEA, without regard to the 'sectarian-nonsectarian, or public-nonpublic nature' of the school the child attends."

Secondly, and more pointedly, the Court in Agostini v. Felton[109] overturned both the result and the reasoning of its decision in Aguilar v. Felton[110] striking down the Title I program as administered in New York City as well as the analogous parts of its decisions in Meek v. Pittenger[111] and Grand Rapids School District v. Ball.[112] The assumptions on which those decisions had rested, the Court explicitly stated, had been "undermined" by its more recent decisions. Decisions such as Zobrest and Witters v. Washington Department of Social Services,[113] it said, had repudiated the notions that the placement of a public employee in a sectarian school creates an "impermissible symbolic link" between government and religion, that "all government aid that directly aids the educational function of religious schools" is constitutionally forbidden, that public teachers in a sectarian school necessarily pose a serious risk of inculcating religion, and that "pervasive monitoring of [such] teachers is required." The proper criterion under the primary effect prong of the Lemon test, the Court asserted, is religious neutrality, i.e., whether "aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a non-discriminatory basis."[114] Finding the Title I program to meet that test, the Court concluded that "accordingly, we must acknowledge that Aguilar, as well as the portion of Ball addressing Grand Rapids' Shared Time program, are no longer good law."[115]

Most recently, in Mitchell v. Helms[116] the Court abandoned the presumptions that religious elementary and secondary schools are so pervasively sectarian that they are constitutionally ineligible to participate in public aid programs directly benefiting their educational functions and that direct aid to such institutions must be subject to an intrusive and constitutionally fatal monitoring. At issue in the case was a federal program providing funds to local educational agencies to provide instructional materials and equipment such as computer hardware and software, library books, movie projectors, television sets, VCRs, laboratory equipment, maps, and cassette recordings to public and private elementary and secondary schools. Virtually identical programs had previously been held unconstitutional by the Court in Meek v. Pittenger[117] and Wolman v. Walter.[118] But in this case the Court overturned those decisions and held the program to be constitutional.

The Justices could agree on no majority opinion in Mitchell but instead joined in three different opinions. The opinions of Justice Thomas, joined by Chief Justice Rehnquist and Justices Scalia and Kennedy, and of Justice O'Connor, joined by Justice Breyer, found the program constitutional. They agreed that to pass muster under the primary effect prong of the Lemon test direct public aid has to be secular in nature and distributed on the basis of religiously neutral criteria. They also agreed, in contrast to past rulings, that sectarian elementary and secondary schools should not be deemed constitutionally ineligible for direct aid on the grounds their secular educational functions are "inextricably intertwined" with their religious educational functions, i.e,, that they are pervasively sectarian. But their rationales for the program's constitutionality then diverged. For Justice Thomas it was sufficient that the instructional materials were secular in nature and were distributed according to neutral criteria. It made no difference whether the schools used the aid for purposes of religious indoctrination or not. But that was not sufficient for Justice O'Connor. She adhered to the view that direct public aid has to be limited to secular use by the recipient institutions. She further asserted that a limitation to secular use could be honored by the teachers in the sectarian schools and that the risk that the aid would be used for religious purposes was not so great as to require an intrusive and entangling government monitoring.[119]

Justice Souter, joined by Justices Stevens and Ginsburg, dissented on the grounds the establishment clause bars "aid supporting a sectarian school's religious exercise or the discharge of its religious mission." Adhering to the "substantive principle of no aid" first articulated in the Everson case, he contended that direct aid to pervasively sectarian institutions inevitably results in the diversion of the aid for purposes of religious indoctrination. He further argued that the aid in this case had been so diverted.

As the opinion upholding the program's constitutionality on the narrowest grounds, Justice O'Connor's opinion provides the most current guidance on the standards governing the constitutionality of aid programs directly benefiting sectarian elementary and secondary schools.

The Court has similarly loosened the constitutional restrictions on public aid programs indirectly benefiting sectarian elementary and secondary schools. Initially, the Court in 1973 struck down substantially similar programs from New York and Pennsylvania providing for tuition reimbursement to parents of religious school children. New York's program provided reimbursements out of general tax revenues for tuition paid by low- income parents to send their children to nonpublic elementary and secondary schools; the reimbursements were of fixed amounts but could not exceed 50 percent of actual tuition paid. Pennsylvania provided fixed-sum reimbursement for parents who sent their children to nonpublic elementary and secondary schools, so long as the amount paid did not exceed actual tuition, the funds to be derived from cigarette tax revenues. Both programs, it was held, constituted public financial assistance to sectarian institutions with no attempt to segregate the benefits so that religion was not advanced.[120]

New York had also enacted a separate program providing tax relief for low-income parents not qualifying for the tuition reimbursements; here relief was in the form of a deduction or credit bearing no relationship to the amounts of tuition paid, but keyed instead to adjusted gross income. This too was invalidated in Nyquist. "In practical terms there would appear to be little difference, for purposes of determining whether such aid has the effect of advancing religion, between the tax benefit allowed here and the tuition [reimbursement] grant.... The qualifying parent under either program receives the same form of encouragement and reward for sending his children to nonpublic schools. The only difference is that one parent receives an actual cash payment while the other is allowed to reduce by an arbitrary amount the sum he would otherwise be obliged to pay over to the State. We see no answer to Judge Hays' dissenting statement below that '[i]n both instances the money involved represents a charge made upon the state for the purpose of religious education."'[121] Some difficulty, however, was experienced in distinguishing this program from the tax exemption approved in Walz.[122]

Two subsidiary arguments were rejected by the Court in these cases. First, it had been argued that the tuition reimbursement program promoted the free exercise of religion in that it permitted low-income parents desiring to send their children to school in accordance with their religious views to do so. The Court agreed that "tension inevitably exists between the Free Exercise and the Establishment Clauses," but explained that the tension is ordinarily resolved through application of the "neutrality" principle: government may neither advance nor inhibit religion. The tuition program inescapably advanced religion and thereby violated this principle.[123] In the Pennsylvania case, it was argued that because the program reimbursed parents who sent their children to nonsectarian schools as well as to sectarian ones, the portion respecting the former parents was valid and "parents of children who attended sectarian schools are entitled to the same aid as a matter of equal protection. The argument is thoroughly spurious.... The Equal Protection Clause has never been regarded as a bludgeon with which to compel a State to violate other provisions of the Constitution."[124]

In Wheeler v. Barrera, 417 U.S. 402 (1974), the Court held that States receiving federal educational funds were required by federal law to provide "comparable" but not equal services to both public and private school students within the restraints imposed by state constitutional restrictions on aid to religious schools. In the absence of specific plans, the Court declined to review First Amendment limitations on such services.

The limits of the Nyquist holding were clarified in 1983. In Mueller v. Allen,[125] the Court upheld a Minnesota deduction from state income tax available to parents of elementary and secondary school children for expenses incurred in providing tuition, transportation, textbooks, and various other school supplies. Because the Minnesota deduction was available to parents of public and private schoolchildren alike, the Court termed it "vitally different from the scheme struck down in Nyquist," and more similar to the benefits upheld in Everson and Allen as available to all schoolchildren.[126] The Court declined to look behind the "facial neutrality" of the law and consider empirical evidence of its actual impact, citing a need for "certainty" and the lack of "principled standards" by which to evaluate such evidence.[127] Also important to the Court's refusal to consider the alleged disproportionate benefits to parents of parochial schools was the assertion that, "whatever unequal effect may be attributed to the statutory classification can fairly be regarded as a rough return for the benefits . . . provided to the State and all taxpayers by parents sending their children to parochial schools."[128]

A second factor important in Mueller, present but not controlling in Nyquist, was that the financial aid was provided to the parents of schoolchildren rather than to the school, and thus in the Court's view was "attenuated" rather than direct; since aid was "available only as a result of decisions of individual parents," there was no "imprimatur of state approval." The Court noted that, with the exception of Nyquist, "all . . . of our recent cases invalidating state aid to parochial schools have involved the direct transmission of assistance from the State to the schools themselves."[129] Thus Mueller seemingly stands for the proposition that state subsidies of tuition expenses at sectarian schools are permissible if contained in a facially neutral scheme providing benefits, at least nominally, to parents of public and private schoolchildren alike.

The Court confirmed this proposition three years later in Witters v. Washington Department of Social Services for the Blind.[130] At issue was the constitutionality of a grant made by a state vocational rehabilitation program to a blind person who wanted to use the grant to attend a religious school and train for a religious ministry. Again, the Court emphasized that in the vocational rehabilitation program "any aid provided is 'made available without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefited"' and "ultimately flows to religious institutions ... only as a result of the genuinely independent and private choices of aid recipients." The program, the Court stated, did not have the purpose of providing support for nonpublic, sectarian institutions; created no financial incentive for students to undertake religious education; and gave recipients "full opportunity to expend vocational rehabiiltation aid on wholly secular education." "In this case," the Court found, "the fact that the aid goes to individuals means that the decision to support religious education is made by the individual, not by the State." Finally, the Court concluded, there was no evidence that "any significant portion of the aid expended under the Washington program as a whole will end up flowing to religious education."

In Zobrest v. Catalina Foothills School District[131] the Court re-affirmed this line of reasoning. The case involved the provision of a sign language interpreter pursuant to the Individuals with Disabilities Act (IDEA)[132] to a deaf high school student who wanted to attend a Catholic high school. In upholding the assistance as constitutional, the Court emphasized that "the service at issue in this case is part of a general government program that distributes benefits neutrally to any child qualifying as 'handicapped' under the IDEA, without regard to the 'sectarian-nonsectarian, or public-nonpublic nature' of the school the child attends." Thus, it held that the presence of the interpreter in the sectarian school resulted not from a decision of the state but from the "private decision of individual parents."

Finally, the Court in Zelman v. Simmons-Harris[133] reinterpreted the genuine private choice criterion in a manner that seems to render most voucher programs constitutional. At issue in the case was an Ohio program providing vouchers to the parents of children in failing public schools in Cleveland for use at private schools in the city. The Court upheld the program notwithstanding that, as in Nyquist, most of the schools at which the vouchers could be redeemed were religious and most of the voucher students attended such schools. But the Court found that the program still involved "true private choice." "Cleveland schoolchildren," the Court said, "enjoy a range of educational choices: They may remain in public school as before, remain in public school with publicly funded tutoring aid, obtain a scholarship and choose a religious school, obtain a scholarship and choose a nonreligious private school, enroll in a community school, or enroll in a magnet school. That 46 of the 56 private schools now participating in the program are religious schools does not condemn it as a violation of the Establishment Clause. The Establishment Clause question is whether Ohio is coercing parents into sending their children to religious schools, and that question must be answered by evaluating all of the options Ohio provides Cleveland schoolchildren, only one of which is to obtain a program scholarship and then choose a religious school."[134]

In contrast to its rulings concerning direct aid to sectarian elementary and secondary schools, the Court, although closely divided at times, has from the start approved quite extensive public assistance to institutions of higher learning. On the same day that it first struck down an assistance program for elementary and secondary private schools, the Court sustained construction grants to church-related colleges and universities.[135] The specific grants in question were for construction of two library buildings, a science building, a music, drama, and arts building, and a language laboratory. The law prohibited the financing of any facility for, or the use of any federally-financed building for, religious purposes, although the restriction on use ran for only twenty years.[136] The Court found that the purpose and effect of the grants were secular and that, unlike elementary and secondary schools, religious colleges were not so devoted to inculcating religion.[137] The supervision required to ensure conformance with the non-religious-use requirement was found not to constitute "excessive entanglement," inasmuch as a building is nonideological in character, unlike teachers, and inasmuch as the construction grants were onetime things and did not continue as did the state programs.

Also sustained was a South Carolina program under which a state authority would issue revenue bonds for construction projects on campuses of private colleges and universities. The Court did not decide whether this special form of assistance could be otherwise sustained, because it concluded that religion was neither advanced nor inhibited, nor was there any impermissible public entanglement. "Aid normally may be thought to have a primary effect of advancing religion when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission or when it funds a specifically religious activity in an otherwise substantially secular setting."[138] The colleges involved, though they were affiliated with religious institutions, were not shown to be so pervasively religious-no religious test existed for faculty or student body, a substantial part of the student body was not of the religion of the affiliation -and state law precluded the use of any state-financed project for religious activities.[139]

The kind of assistance permitted by Tilton and by Hunt v. McNair seems to have been broadened when the Court sustained a Maryland program of annual subsidies to qualifying private institutions of higher education; the grants were noncategorical but could not be used for sectarian purposes, a limitation to be policed by the administering agency.[140] The plurality opinion found a secular purpose; found that the limitation of funding to secular activities was meaningful,[141] since the religiously affiliated institutions were not so pervasively sectarian that secular activities could not be separated from sectarian ones; and determined that excessive entanglement was improbable, given the fact that aided institutions were not pervasively sectarian. The annual nature of the subsidy was recognized as posing the danger of political entanglement, but the plurality thought that the character of the aided institutions- "capable of separating secular and religious functions"- was more important.[142]

Finally, in the only case since Bradfield v. Roberts[143] to challenge the constitutionality of public aid to non-educational religious institutions, the Court in Bowen v. Kendrick[144] by a 5-4 vote upheld the Adolescent Family Life Act (AFLA)[145] against facial challenge. The Act permits direct grants to religious organizations for provision of health care and for counseling of adolescents on matters of pregnancy prevention and abortion alternatives, and requires grantees to involve other community groups, including religious organizations, in delivery of services. All of the Justices agreed that AFLA had valid secular purposes; their disagreement related to application of the effects and entanglement tests. The Court relied on analogy to the higher education cases rather than the cases involving aid to elementary and secondary schools.[146] The case presented conflicting factual considerations. On the one hand, the class of beneficiaries was broad, with religious groups not predominant among the wide range of eligible community organizations. On the other hand, there were analogies to the parochial school aid cases: secular and religious teachings might easily be mixed, and the age of the targeted group (adolescents) suggested susceptibility. The Court resolved these conflicts by holding that AFLA is facially valid, there being insufficient indication that a significant proportion of the AFLA funds would be disbursed to "pervasively sectarian" institutions, but by remanding to the district court to determine whether particular grants to pervasively sectarian institutions were invalid. The Court emphasized in both parts of its opinion that the fact that "views espoused [during counseling] on matters of premarital sex, abortion, and the like happen to coincide with the religious views of the AFLA grantee would not be sufficient to show [an Establishment Clause violation]."[147]

At the time it was rendered, Bowen differed from the Court's decisions concerning direct aid to sectarian elementary and secondary schools primarily in that it refused to presume that religiously affiliated social welfare entities are pervasively sectarian. That difference had the effect of giving greater constitutional latitude to public aid to such entities than was afforded direct aid to religious elementary and secondary schools. As noted above, the Court in its recent decisions has now eliminated the presumption that such religious schools are pervasively sectarian and has extended the same constitutional latitude to aid programs benefiting such schools as it gives to aid programs benefiting religiously affiliated social welfare programs.

Governmental Encouragement of Religion in Public Schools: Released Time

Introduction of religious education into the public schools, one of Justice Rutledge's "great drives,"[148] has also occasioned a substantial amount of litigation in the Court. In its first two encounters, the Court voided one program and upheld another, in which the similarities were at least as significant as the differences. Both cases involved "released time" programs, the establishing of a period during which pupils in public schools were to be allowed, upon parental request, to receive religious instruction. In the first, the religious classes were conducted during regular school hours in the school building by outside teachers furnished by a religious council representing the various faiths, subject to the approval or supervision of the superintendent of schools. Attendance reports were kept and reported to the school authorities in the same way as for other classes, and pupils not attending the religious instruction classes were required to continue their regular studies. "The operation of the State's compulsory education system thus assists and is integrated with the program of religious instruction carried on by separate religious sects. Pupils compelled by law to go to school for secular education are released in part from their legal duty upon the condition that they attend the religious classes. This is beyond all question a utilization of the tax-established and tax-supported public school system to aid religious groups to spread their faith. And it falls squarely under the ban of the First Amendment . . . ."[149] The case was also noteworthy because of the Court's express rejection of the contention "that historically the First Amendment was intended to forbid only government preference of one religion over another, not an impartial governmental assistance of all religions."[150]

Four years later, the Court upheld a different released-time program.[151] In this one, schools released pupils during school hours, on written request of their parents, so that they might leave the school building and go to religious centers for religious instruction or devotional exercises. The churches reported to the schools the names of children released from the public schools who did not report for religious instruction; children not released remained in the classrooms for regular studies. The Court found the differences between this program and the program struck down in McCollum to be constitutionally significant. Unlike McCollum, where "the classrooms were used for religious instruction and force of the public school was used to promote that instruction," religious instruction was conducted off school premises and "the public schools do no more than accommodate their schedules."[152]"We are a religious people whose institutions presuppose a Supreme Being," Justice Douglas wrote for the Court. "When the state encourages religious instruction or cooperates with religious authorities by adjusting the schedule of public events to sectarian needs, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their spiritual needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe."

Governmental Encouragement of Religion in Public Schools: Prayers and Bible Reading

-Upon recommendation of the state governing board, a local New York school required each class to begin each school day by reading aloud the following prayer in the presence of the teacher: "Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessing upon us, our parents, our teachers and our country." Students who wished to do so could remain silent or leave the room. Said the Court: "We think that by using its public school system to encourage recitation of the Regents' prayer, the State of New York has adopted a practice wholly inconsistent with the Establishment Clause. There can, of course, be no doubt that New York's program of daily classroom invocation of God's blessings as prescribed in the Regents' prayer is a religious activity.... [W]e think that the constitutional prohibition against laws respecting an establishment of religion must at least mean that in this country it is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government."[153] "Neither the fact that the prayer may be nondenominationally neutral nor the fact that its observance on the part of the students is voluntary can serve to free it from the limitations of the Establishment Clause, as it might from the Free Exercise Clause....

The Establishment Clause . . . does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not."[154]

Following the prayer decision came two cases in which parents and their school age children challenged the validity under the Establishment Clause of requirements that each school day begin with readings of selections from the Bible. Scripture reading, like prayers, the Court found, was a religious exercise. "Given that finding the exercises and the law requiring them are in violation of the Establishment Clause."[155] Rejected were contentions by the State that the object of the programs was the promotion of secular purposes, such as the expounding of moral values, the contradiction of the materialistic trends of the times, the perpetuation of traditional institutions, and the teaching of literature[156] and that to forbid the particular exercises was to choose a "religion of secularism" in their place.[157]Though the "place of religion in our society is an exalted one," the Establishment Clause, the Court continued, prescribed that in "the relationship between man and religion," the State must be "firmly committed to a position of neutrality."[158]

While numerous efforts were made over the years to overturn these cases, through constitutional amendment and through limitations on the Court's jurisdiction, the Supreme Court itself has had no occasion to review the area again. But see Stone v. Graham, 449 U.S. 39 (1980) (summarily reversing state court and invalidating statute requiring the posting of the Ten Commandments, purchased with private contributions, on the wall of each public classroom, on the grounds the Ten Commandments are "undeniably a sacred text" and the "pre-eminent purpose" of the posting requirement was "plainly religious in nature").

In Wallace v. Jaffree,[159] the Court held invalid an Alabama statute authorizing a 1-minute period of silence in all public schools "for meditation or prayer." Because the only evidence in the record indicated that the words "or prayer" had been added to the existing statute by amendment for the sole purpose of returning voluntary prayer to the public schools, the Court found that the first prong of the Lemon test had been violated, i.e. that the statute was invalid as being entirely motivated by a purpose of advancing religion. The Court characterized the legislative intent to return prayer to the public schools as "quite different from merely protecting every student's right to engage in voluntary prayer during an appropriate moment of silence during the schoolday,"[160] and both Justices Powell and O'Connor in concurring opinions suggested that other state statutes authorizing moments of silence might pass constitutional muster.[161]

The school prayer decisions served as precedent for the Court's holding in Lee v. Weisman[162] that a school-sponsored invocation at a high school commencement violated the Establishment Clause. The Court rebuffed a request to reexamine the Lemon test, finding "[t]he government involvement with religious activity in this case [to be] pervasive, to the point of creating a state-sponsored and state-directed religious exercise in a public school." State officials not only determined that an invocation and benediction should be given, but also selected the religious participant and provided him with guidelines for the content of nonsectarian prayers. The Court, in an opinion by Justice Kennedy, viewed this state participation as coercive in the elementary and secondary school setting.[163] The state "in effect required participation in a religious exercise," since the option of not attending "one of life's most significant occasions" was no real choice. "At a minimum," the Court concluded, the Establishment Clause "guarantees that government may not coerce anyone to support or participate in religion or its exercise."

In Santa Fe Independent School District v. Doe[164] the Court held a school district's policy permitting high school students to vote on whether to have an "invocation and/or prayer" delivered prior to home football games by a student elected for that purpose to violate the establishment clause. It found the policy to violate each one of the tests it has formulated for establishment clause cases. The preference given for an "invocation" in the text of the school district's policy, the long history of pre-game prayer led by a student "chaplain" in the school district, and the widespread perception that "the policy is about prayer," the Court said, made clear that its purpose was not secular but was to preserve a popular state- sponsored religious practice in violation of the first prong of the Lemon test. Moreover, it said, the policy violated the coercion test by forcing unwilling students into participating in a religious exercise. Some students - the cheerleaders, the band, football players - had to attend, it noted, and others were compelled to do so by peer pressure. "The constitutional command will not permit the District 'to exact religious conformity from a student as the price' of joining her classmates at a varsity football game," the Court held. Finally, it said, the speech sanctioned by the policy was not private speech but government-sponsored speech that would be perceived as a government endorsement of religion. The long history of pre-game prayer, the bias toward religion in the policy itself, the fact that the message would be "delivered to a large audience assembled as part of a regularly scheduled, school- sponsored function conducted on school property" and over the school's public address system, the Court asserted, all meant that the speech was not genuine private speech but would be perceived as "stamped with the school's seal of approval." The Court concluded that "the policy is invalid on its face because it establishes an improper majoritarian election on religion, and unquestionably has the purpose and creates the perception of encouraging the delivery of prayer at a series of important school events."

Governmental Encouragement of Religion in Public Schools: Curriculum Restriction

In Epperson v. Arkansas,[165] the Court struck down a state statute which made it unlawful for any teacher in any state-supported educational institution "to teach the theory or doctrine that mankind ascended or descended from a lower order of animals," or "to adopt or use in any such institution a textbook that teaches" this theory. Agreeing that control of the curriculum of the public schools was largely in the control of local officials, the Court nonetheless held that the motivation of the statute was a fundamentalist belief in the literal reading of the Book of Genesis and that this motivation and result required the voiding of the law. "The law's effort was confined to an attempt to blot out a particular theory because of its supposed conflict with the Biblical account, literally read. Plainly, the law is contrary to the mandate of the First . . . Amendment to the Constitution."[166]

Similarly invalidated as having the improper purpose of advancing religion was a Louisiana statute mandating balanced treatment of "creation-science" and "evolution-science" in the public schools. "The preeminent purpose of the Louisiana legislature," the Court found in Edwards v. Aguillard, "was clearly to advance the religious viewpoint that a supernatural being created human-kind."[167] The Court viewed as a "sham" the stated purpose of protecting academic freedom, and concluded instead that the legislature's purpose was to narrow the science curriculum in order to discredit evolution "by counterbalancing its teaching at every turn with the teaching of creation science."[168]

Access of Religious Groups to Public Property

Access of Religious Groups to Public Property

Although government may not promote religion through its educational facilities, it may not bar student religious groups from meeting on public school property if it makes those facilities available to non-religious student groups. In the case of Widmar v. Vincent[169] the Court held that allowing student religious groups equal access to a public college's facilities would further a secular purpose, would not constitute an impermissible benefit to religion, and would pose little hazard of entanglement. Subsequently, the Court has held that these principles apply to public secondary schools as well as to institutions of higher learning. In Westside Community Board of Education v. Mergens[170] in 1990 the Court upheld application of the Equal Access Act[171] to prevent a secondary school from denying access to school premises to a student religious club while granting access to such other "noncurriculum" related student groups as a scuba diving club, a chess club, and a service club.[172] Justice O'Connor stated in a plurality opinion that "there is a crucial difference between government speech endorsing religion and private speech endorsing religion. We think that secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a nondiscriminatory basis."[173]

Similarly, public schools may not rely on the Establishment Clause as grounds to discriminate against religious groups in after-hours use of school property otherwise available for non-religious social, civic, and recreational purposes. In Lamb's Chapel v. Center Moriches School District,[174] the Court held that a school district could not, consistent with the free speech clause, refuse to allow a religious group to use school facilities to show a film series on family life when the facilities were otherwise available for community use. "It discriminates on the basis of viewpoint," the Court ruled, "to permit school property to be used for the presentation of all views about family issues and child- rearing except those dealing with the subject matter from a religious viewpoint." In response to the school district's claim that the establishment clause required it to deny use of its facilities to a religious group, the Court said that there was "no realistic danger" in this instance that "the community would think that the District was endorsing religion or any particular creed" and that such permission would satisfy the requirements of the Lemon test.[175] Similarly, in Good News Club v. Milford Central School,[176] the Court held the free speech clause to be violated by a school policy that barred a religious children's club from meeting on school premises after school. Given that other groups teaching morals and character development to young children were allowed to use the school's facilities, the exclusion, the Court said, "constitutes unconstitutional viewpoint discrimination." Moreover, it said, the school had "no valid Establishment Clause interest" because permitting the religious club to meet would not show any favoritism toward religion but would simply "ensure neutrality."

Finally, the Court has made clear that public colleges may not exclude student religious organizations from benefits otherwise provided to a full spectrum of student "news, information, opinion, entertainment, or academic communications media groups." In Rosenberger v. Board of Visitors of the University of Virginia,[177] the Court struck down a university policy that afforded a school subsidy to all student publications except religious ones. Once again, the Court held the denial of the subsidy to constitute viewpoint discrimination violative of the free speech clause of the First Amendment. In response to the University's argument that the Establishment Clause required it not to subsidize an enterprise that promotes religion, the Court emphasized that the forum created by the University's subsidy policy had neither the purpose nor the effect of advancing religion and, because it was open to a variety of viewpoints, was neutral toward religion.

These cases make clear that the Establishment Clause does not necessarily trump the First Amendment's protection of freedom of speech. In regulating private speech in a public forum, government may not justify discrimination against religious viewpoints as necessary to avoid creating an "establishment" of religion.

Tax Exemptions of Religious Property

Every State and the District of Columbia provide for tax exemptions for religious institutions, and the history of such exemptions goes back to the time of our establishment as a polity. The only expression by a Supreme Court Justice prior to 1970 was by Justice Brennan, who deemed tax exemptions constitutional because the benefit conferred was incidental to the religious character of the institutions concerned.[178] Then, in 1970, a nearly unanimous Court sustained a state exemption from real or personal property taxation of "property used exclusively for religious, educational or charitable purposes" owned by a corporation or association which was conducted exclusively for one or more of these purposes and did not operate for profit.[179] The first prong of a two-prong argument saw the Court adopting Justice Brennan's rationale. Using the secular purpose and effect test, Chief Justice Burger noted that the purpose of the exemption was not to single out churches for special favor; instead, the exemption applied to a broad category of associations having many common features and all dedicated to social betterment. Thus, churches as well as museums, hospitals, libraries, charitable organizations, professional associations, and the like, all non-profit, and all having a beneficial and stabilizing influence in community life, were to be encouraged by being treated specially in the tax laws. The primary effect of the exemptions was not to aid religion; the primary effect was secular and any assistance to religion was merely incidental.[180]

For the second prong, the Court created a new test, the entanglement test,[181] by which to judge the program. There was some entanglement whether there were exemptions or not, Chief Justice Burger continued, but with exemptions there was minimal involvement. But termination of exemptions would deeply involve government in the internal affairs of religious bodies, because evaluation of religious properties for tax purposes would be required and there would be tax liens and foreclosures and litigation concerning such matters.[182]

While the general issue is now settled, it is to be expected that variations of the exemption upheld in Walz will present the Court with an opportunity to elaborate the field still further.[183] For example, the Court determined that a sales tax exemption applicable only to religious publications constituted a violation of the Establishment Clause,[184] and, on the other hand, that application of a general sales and use tax provision to religious publications violates neither the Establishment Clause nor the Free Exercise Clause.[185]

Exemption of Religious Organizations from Generally Applicable Laws

The Civil Rights Act's exemption of religious organizations from the prohibition against religious discrimination in employment[186] does not violate the Establishment Clause when applied to a religious organization's secular, nonprofit activities. The Court held in Corporation of the Presiding Bishop v. Amos[187] that a church-run gymnasium operated as a nonprofit facility open to the public could require that its employees be church members. Declaring that "there is ample room for accommodation of religion under the Establishment Clause,"[188]the Court identified a legitimate purpose in freeing a religious organization from the burden of predicting which of its activities a court will consider to be secular and which religious. The rule applying across-the-board to nonprofit activities and thereby "avoid[ing] . . . intrusive inquiry into religious belief" also serves to lessen entanglement of church and state.[189] The exemption itself does not have a principal effect of advancing religion, the Court concluded, but merely allows churches to advance religion.[190]

Sunday Closing Laws

The history of Sunday Closing Laws goes back into United States colonial history and far back into English history.[191] Commonly, the laws require the observance of the Christian Sabbath as a day of rest, although in recent years they have tended to become honeycombed with exceptions. The Supreme Court rejected an Establishment Clause challenge to Sunday Closing Laws in McGowan v. Maryland.[192] The Court acknowledged that historically the laws had a religious motivation and were designed to effectuate concepts of Christian theology. However, "[i]n light of the evolution of our Sunday Closing Laws through the centuries, and of their more or less recent emphasis upon secular considerations, it is not difficult to discern that as presently written and administered, most of them, at least, are of a secular rather than of a religious character, and that presently they bear no relationship to establishment of religion...."[193] "[T]he fact that this [prescribed day of rest] is Sunday, a day of particular significance for the dominant Christian sects, does not bar the State from achieving its secular goals. To say that the States cannot prescribe Sunday as a day of rest for these purposes solely because centuries ago such laws had their genesis in religion would give a constitutional interpretation of hostility to the public welfare rather than one of mere separation of church and State."[194]The choice of Sunday as the day of rest, while originally religious, now reflected simple legislative inertia or recognition that Sunday was a traditional day for the choice.[195] Valid secular reasons existed for not simply requiring one day of rest and leaving to each individual to choose the day, reasons of ease of enforcement and of assuring a common day in the community for rest and leisure.[196] More recently, a state statute mandating that employers honor the Sabbath day of the employee's choice was held invalid as having the primary effect of promoting religion by weighing the employee's Sabbath choice over all other interests.[197]

Conscientious Objection

Historically, Congress has provided for alternative service for men who had religious scruples against participating in either combat activities or in all forms of military activities; the fact that Congress chose to draw the line of exemption on the basis of religious belief confronted the Court with a difficult constitutional question, which, however, the Court chose to avoid by a somewhat disingenuous interpretation of the statute.[198] In Gillette v. United States,[199] a further constitutional problem arose in which the Court did squarely confront and validate the congressional choice. Congress had restricted conscientious objection status to those who objected to "war in any form" and the Court conceded that there were religious or conscientious objectors who were not opposed to all wars but only to particular wars based upon evaluation of a number of factors by which the "justness" of any particular war could be judged; "properly construed," the Court said, the statute did draw a line relieving from military service some religious objectors while not relieving others.[200] Purporting to apply the secular purpose and effect test, the Court looked almost exclusively to purpose and hardly at all to effect. Although it is not clear, the Court seemed to require that a classification must be religiously based "on its face"[201] or lack any "neutral, secular basis for the lines government has drawn"[202] in order that it be held to violate the Establishment Clause. The classification here was not religiously based "on its face," and served "a number of valid purposes having nothing to do with a design to foster or favor any sect, religion, or cluster of religions."[203] These purposes, related to the difficulty in separating sincere conscientious objectors to particular wars from others with fraudulent claims, included the maintenance of a fair and efficient selective service system and protection of the integrity of democratic decision-making.[204]

Regulation of Religious Solicitation

Although the solicitation cases have generally been decided under the free exercise or free speech clauses,[205] in one instance the Court, intertwining establishment and free exercise principles, voided a provision in a state charitable solicitations law that required only those religious organizations that received less than half their total contributions from members or affiliated organizations to comply with the registration and reporting sections of the law.[206] Applying strict scrutiny equal protection principles, the Court held that by distinguishing between older, well-established churches that had strong membership financial support and newer bodies lacking a contributing constituency or that may favor public solicitation over general reliance on financial support from the members, the statute granted denominational preference forbidden by the Establishment Clause.[207]

Religion in Governmental Observances

The practice of opening legislative sessions with prayers by paid chaplains was upheld in Marsh v. Chambers,[208] a case involving prayers in the Nebraska Legislature. The Court relied almost entirely on historical practice. Congress had paid a chaplain and opened sessions with prayers for almost 200 years; the fact that Congress had continued the practice after considering constitutional objections in the Court's view strengthened rather than weakened the historical argument. Similarly, the practice was well rooted in Nebraska and in most other states. Most importantly, the First Amendment had been drafted in the First Congress with an awareness of the chaplaincy practice, and this practice was not prohibited or discontinued. The Court did not address the lower court's findings,[209] amplified in Justice Brennan's dissent, that each aspect of the Lemon v. Kurtzman tripartite test had been violated. Instead of constituting an application of the tests, therefore, Marsh can be read as representing an exception to their application.[210]

Religious Displays on Government Property

A different form of governmentally sanctioned religious observance-inclusion of religious symbols in governmentally sponsored holiday displays-was twice before the Court, with varying results. In 1984, in Lynch v. Donnelly,[211] the Court found no violation of the Establishment Clause occasioned by inclusion of a Nativity scene (creche) in a city's Christmas display; in 1989, in Allegheny County v. Greater Pittsburgh ACLU,[212] inclusion of a creche in a holiday display was found to constitute a violation. Also at issue in Allegheny County was inclusion of a menorah in a holiday display; here the Court found no violation. The setting of each display was crucial to the varying results in these cases, the determinant being whether the Court majority believed that the overall effect of the display was to emphasize the religious nature of the symbols, or whether instead the emphasis was primarily secular. Perhaps equally important for future cases, however, was the fact that the four dissenters in Allegheny County would have upheld both the creche and menorah displays under a more relaxed, deferential standard.

Chief Justice Burger's opinion for the Court in Lynch began by expanding on the religious heritage theme exemplified by Marsh; other evidence that "'[w]e are a religious people whose institutions presuppose a Supreme Being"'[213] was supplied by reference to the national motto "In God We Trust," the affirmation "one nation under God" in the pledge of allegiance, and the recognition of both Thanksgiving and Christmas as national holidays. Against that background, the Court then determined that the city's inclusion of the creche in its Christmas display had a legitimate secular purpose in recognizing "the historical origins of this traditional event long [celebrated] as a National Holiday,"[214] and that its primary effect was not to advance religion. The benefit to religion was called "indirect, remote, and incidental," and in any event no greater than the benefit resulting from other actions that had been found to be permissible, e.g. the provision of transportation and textbooks to parochial school students, various assistance to church-supported colleges, Sunday closing laws, and legislative prayers.[215] The Court also reversed the lower court's finding of entanglement based only on "political divisiveness."[216]

Allegheny County was also decided by a 5-4 vote, Justice Blackmun writing the opinion of the Court on the creche issue, and there being no opinion of the Court on the menorah issue.[217] To the majority, the setting of the creche was distinguishable from that in Lynch. The creche stood alone on the center staircase of the county courthouse, bore a sign identifying it as the donation of a Roman Catholic group, and also had an angel holding a banner proclaiming "Gloria in Exclesis Deo." Nothing in the display "detract[ed] from the creche's religious message," and the overall effect was to endorse that religious message.[218] The menorah, on the other hand, was placed outside a government building alongside a Christmas tree and a sign saluting liberty, and bore no religious messages. To Justice Blackmun, this grouping merely recognized "that both Christmas and Chanukah are part of the same winter-holiday season, which has attained a secular status";[219] to concurring Justice O'Connor, the display's "message of pluralism" did not endorse religion over nonreligion even though Chanukah is primarily a religious holiday and even though the menorah is a religious symbol.[220] The dissenters, critical of the endorsement test proposed by Justice O'Connor and of the three-part Lemon test, would instead distill two principles from the Establishment Clause: "government may not coerce anyone to support or participate in any religion or its exercise; and it may not, in the guise of avoiding hostility or callous indifference, give direct benefits to religion in such a degree that it in fact 'establishes a state religion or religious faith, or tends to do so."'[221]

In Capitol Square Review Bd. v. Pinette,[222] the Court distinguished privately sponsored from governmentally sponsored religious displays on public property. There the Court ruled that Ohio violated free speech rights by refusing to allow the Ku Klux Klan to display an unattended cross in a publicly owned plaza outside the Ohio Statehouse. Because the plaza was a public forum in which the State had allowed a broad range of speakers and a variety of unattended displays, the State could regulate the expressive content of such speeches and displays only if the restriction was necessary, and narrowly drawn, to serve a compelling state interest. The Court recognized that compliance with the Establishment Clause can be a sufficiently compelling reason to justify content-based restrictions on speech, but saw no need to apply this principle when permission to display a religious symbol is granted through the same procedures, and on the same terms, required of other private groups seeking to convey non-religious messages.

Miscellaneous

In Larkin v. Grendel's Den,[223] the Court held that the Establishment Clause is violated by a delegation of governmental decisionmaking to churches. At issue was a state statute permitting any church or school to block issuance of a liquor license to any establishment located within 500 feet of the church or school. While the statute had a permissible secular purpose of protecting churches and schools from the disruptions often associated with liquor establishments, the Court indicated that these purposes could be accomplished by other means, e.g. an outright ban on liquor outlets within a prescribed distance, or the vesting of discretionary authority in a governmental decisionmaker required to consider the views of affected parties. However, the conferral of a veto authority on churches had a primary effect of advancing religion both because the delegation was standardless (thereby permitting a church to exercise the power to promote parochial interests), and because "the mere appearance of a joint exercise of legislative authority by Church and State provides a significant symbolic benefit to religion in the minds of some."[224] Moreover, the Court determined, because the veto "enmeshes churches in the processes of government," it represented an entanglement offensive to the "core rationale underlying the Establishment Clause"- "[to prevent] 'a fusion of governmental and religious functions."'[225]

Using somewhat similar reasoning, the Court in Board of Education of Kiryas Joel Village v. Grumet,[226] invalidated a New York law creating a special school district for an incorporated village composed exclusively of members of one small religious sect. The statute failed "the test of neutrality," the Court concluded, since it delegated power "to an electorate defined by common religious belief and practice, in a manner that fails to foreclose religious favoritism." It was the "anomalously case-specific nature of the legislature's exercise of authority" that left the Court "without any direct way to review such state action" for conformity with the neutrality principle. Because the village did not receive its governmental authority simply as one of many communities eligible under a general law, the Court explained, there was no way of knowing whether the legislature would grant similar benefits on an equal basis to other religious and nonreligious groups.

Free Exercise of Religion

"The Free Exercise Clause . . . withdraws from legislative power, state and federal, the exertion of any restraint on the free exercise of religion. Its purpose is to secure religious liberty in the individual by prohibiting any invasions there by civil authority."[227] It bars "governmental regulation of religious beliefs as such,"[228] prohibiting misuse of secular governmental programs "to impede the observance of one or all religions or . . . to discriminate invidiously between religions . . . even though the burden may be characterized as being only indirect."[229] Freedom of conscience is the basis of the free exercise clause, and government may not penalize or discriminate against an individual or a group of individuals because of their religious views nor may it compel persons to affirm any particular beliefs.[230] Interpretation is complicated, however, by the fact that exercise of religion usually entails ritual or other practices that constitute "conduct" rather than pure "belief." When it comes to protecting conduct as free exercise, the Court has been inconsistent.[231] It has long been held that the Free Exercise Clause does not necessarily prevent government from requiring the doing of some act or forbidding the doing of some act merely because religious beliefs underlie the conduct in question.[232] What has changed over the years is the Court's willingness to hold that some religiously motivated conduct is protected from generally applicable prohibitions.

The relationship between the Free Exercise and Establishment Clauses varies with the expansiveness of interpretation of the two clauses. In a general sense both clauses proscribe governmental involvement with and interference in religious matters, but there is possible tension between a requirement of governmental neutrality derived from the Establishment Clause and a Free-Exercise-derived requirement that government accommodate some religious practices.[233] So far, the Court has harmonized interpretation by denying that free- exercise-mandated accommodations create establishment violations, and also by upholding some legislative accommodations not mandated by free exercise requirements. "This Court has long recognized that government may (and sometimes must) accommodate religious practices and that it may do so without violating the Establishment Clause."[234] In holding that a state could not deny unemployment benefits to Sabbatarians who refused Saturday work, for example, the Court denied that it was "fostering an 'establishment' of the Seventh- Day Adventist religion, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall."[235] Legislation granting religious exemptions not held to have been required by the Free Exercise Clause has also been upheld against Establishment Clause challenge,[236]although it is also possible for legislation to go too far in promoting free exercise.[237]

"Play in the joints" can work both ways, the Court ruled in upholding a state's exclusion of theology students from a college scholarship program.[1] Although the state could have included theology students in its scholarship program without offending the Establishment Clause, its choice not to fund religious training did not of-fend the Free Exercise Clause even though that choice singled out theology students for exclusion.[2] Refusal to fund religious training, the Court observed, was "far milder" than restrictions on religious practices that have been held to offend the Free Exercise Clause.[3]

The Belief-Conduct Distinction

While the Court has consistently affirmed that the Free Exercise Clause protects religious beliefs, protection for religiously motivated conduct has waxed and waned over the years. The Free Exercise Clause "embraces two concepts-freedom to believe and freedom to act. The first is absolute, but in the nature of things, the second cannot be."[238] In its first free exercise case, involving the power of government to prohibit polygamy, the Court invoked a hard distinction between the two, saying that although laws "cannot interfere with mere religious beliefs and opinions, they may with practices."[239] The rule thus propounded protected only belief, inasmuch as religiously motivated action was to be subjected to the police power of the state to the same extent as would similar action springing from other motives. The Reynolds no-protection rule was applied in a number of cases,[240] but later cases established that religiously grounded conduct is not always outside the protection of the free exercise clause.[241] Instead, the Court began to balance the secular interest asserted by the government against the claim of religious liberty asserted by the person affected; only if the governmental interest was "compelling" and if no alternative forms of regulation would serve that interest was the claimant required to yield.[242] Thus, while freedom to engage in religious practices was not absolute, it was entitled to considerable protection.

Recent cases evidence a narrowing of application of the compelling interest test, and a corresponding constriction on the freedom to engage in religiously motivated conduct. First, the Court purported to apply strict scrutiny, but upheld the governmental action anyhow.[243] Next the Court held that the test is inappropriate in the contexts of military and prison discipline.[244] Then, more importantly, the Court ruled in Employment Division v. Smith that "if prohibiting the exercise of religion . . . is not the object . . . but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended."[245] Therefore, the Court concluded, the Free Exercise Clause does not prohibit a state from applying generally applicable criminal penalties to the use of peyote in a religious ceremony, or from denying unemployment benefits to persons dismissed from their jobs because of religious ceremonial use of peyote. Accommodation of such religious practices must be found in "the political process," the Court noted; statutory religious-practice exceptions are permissible, but not "constitutionally required."[246] The result is tantamount to a return to the Reynolds belief-conduct distinction.

The Mormon Cases

The Court's first encounter with free exercise claims occurred in a series of cases in which the Federal Government and the territories moved against the Mormons because of their practice of polygamy. Actual prosecutions and convictions for bigamy presented little problem for the Court, inasmuch as it could distinguish between beliefs and acts.[247] But the presence of large numbers of Mormons in some of the territories made convictions for bigamy difficult to obtain, and in 1882 Congress enacted a statute which barred "bigamists," "polygamists," and "any person cohabiting with more than one woman" from voting or serving on juries. The Court sustained the law, even as applied to persons entering the state prior to enactment of the original law prohibiting bigamy and to persons as to whom the statute of limitations had run.[248] Subsequently, an act of a territorial legislature which required a prospective voter not only to swear that he was not a bigamist or polygamist but also that "I am not a member of any order, organization or association which teaches, advises, counsels or encourages its members, devotees or any other person to commit the crime of bigamy or polygamy . . . or which practices bigamy, polygamy or plural or celestial marriage as a doctrinal rite of such organization; that I do not and will not, publicly or privately, or in any manner whatever teach, advise, counsel or encourage any person to commit the crime of bigamy or polygamy . . . ," was upheld in an opinion that condemned plural marriage and its advocacy as equal evils.[249] And, finally, the Court sustained the revocation of the charter of the Mormon Church and confiscation of all church property not actually used for religious worship or for burial.[250]

The Jehovah's Witnesses Cases

In contrast to the Mormons, the sect known as Jehovah's Witnesses, in many ways as unsettling to the conventional as the Mormons were,[251] provoked from the Court a lengthy series of decisions[252] expanding the rights of religious proselytizers and other advocates to utilize the streets and parks to broadcast their ideas, though the decisions may be based more squarely on the speech clause than on the free exercise clause. The leading case is Cantwell v. Connecticut.[253] Three Jehovah's Witnesses were convicted under a statute which forbade the unlicensed soliciting of funds for religious or charitable purposes, and also under a general charge of breach of the peace. The solicitation count was voided as an infringement on religion because the issuing officer was authorized to inquire whether the applicant did have a religious cause and to decline a license if in his view the cause was not religious. Such power amounted to a previous restraint upon the exercise of religion and was invalid, the Court held.[254] The breach of the peace count arose when the three accosted two Catholics in a strongly Catholic neighborhood and played them a phonograph record which grossly insulted the Christian religion in general and the Catholic Church in particular. The Court voided this count under the clear-and-present danger test, finding that the interest sought to be upheld by the State did not justify the suppression of religious views that simply annoyed listeners.[255]

There followed a series of sometimes conflicting decisions. At first, the Court sustained the application of a non-discriminatory license fee to vendors of religious books and pamphlets,[256] but eleven months later it vacated its former decision and struck down such fees.[257] A city ordinance making it unlawful for anyone distributing literature to ring a doorbell or otherwise summon the dwellers of a residence to the door to receive such literature was held in violation of the First Amendment when applied to distributors of leaflets advertising a religious meeting.[258] But a state child labor law was held to be validly applied to punish the guardian of a nine-year old child who permitted her to engage in "preaching work" and the sale of religious publications after hours.[259] The Court decided a number of cases involving meetings and rallies in public parks and other public places by upholding licensing and permit requirements which were premised on nondiscriminatory "times, places, and manners" terms and which did not seek to regulate the content of the religious message to be communicated.[260] Most recently, the Court struck down on free speech grounds a town ordinance requiring door-to-door solicitors, including persons seeking to proselytize about their faith, to register with the town and obtain a solicitation permit.[261] The Court stated that the requirement was "offensive ... to the very notion of a free society."

Free Exercise Exemption From General Governmental Requirements

As described above, the Court gradually abandoned its strict belief-conduct distinction, and developed a balancing test to determine when a uniform, nondiscriminatory requirement by government mandating action or nonaction by citizens must allow exceptions for citizens whose religious scruples forbid compliance. Then, in 1990, the Court reversed direction in Employment Division v. Smith,[262] confining application of the "compelling interest" test to a narrow category of cases.

In early cases the Court sustained the power of a State to exclude from its schools children who because of their religious beliefs would not participate in the salute to the flag,[263] only within a short time to reverse itself and condemn such exclusions, but on speech grounds rather than religious grounds.[264] Also, the Court seemed to be clearly of the view that government could compel those persons religiously opposed to bearing arms to take an oath to do so or to receive training to do so,[265] only in later cases to cast doubt on this resolution by statutory interpretation,[266] and still more recently to leave the whole matter in some doubt.[267]

Braunfeld v. Brown[268] held that the free exercise clause did not mandate an exemption from Sunday Closing Laws for an Orthodox Jewish merchant who observed Saturday as the Sabbath and was thereby required to be closed two days of the week rather than one. This requirement did not prohibit any religious practices, the Court's plurality pointed out, but merely regulated secular activity in a manner making religious exercise more expensive.[269]"If the State regulates conduct by enacting a general law within its power, the purpose and effect of which is to advance the State's secular goals, the statute is valid despite its indirect burden on religious observance unless the State may accomplish its purpose by means which do not impose such a burden."[270]

Within two years the Court in Sherbert v. Verner[271] reversed this line of analysis to require a religious exemption from a secular, regulatory piece of economic legislation. Sherbert was disqualified from receiving unemployment compensation because, as a Seventh Day Adventist, she would not accept Saturday work; according to state officials, this meant she was not complying with the statutory requirement to stand ready to accept suitable employment. This denial of benefits could be upheld, the Court said, only if "her disqualification as a beneficiary represents no infringement by the State of her constitutional rights of free exercise, or [if] any incidental burden on the free exercise of appellant's religions may be justified by a 'compelling state interest in the regulation of a subject within the State's constitutional power to regulate . . ."'[272] First, the disqualification was held to impose a burden on the free exercise of Sherbert's religion; it was an indirect burden and it did not impose a criminal sanction on a religious practice, but the disqualification derived solely from her practice of her religion and constituted a compulsion upon her to forgo that practice.[273] Second, there was no compelling interest demonstrated by the State. The only interest asserted was the prevention of the possibility of fraudulent claims, but that was merely a bare assertion. Even if there was a showing of demonstrable danger, "it would plainly be incumbent upon the appellees to demonstrate that no alternative forms of regulation would combat such abuses without infringing First Amendment rights."[274]

Sherbert was reaffirmed and applied in subsequent cases involving denial of unemployment benefits. Thomas v. Review Board[275] involved a Jehovah's Witness who quit his job when his employer transferred him from a department making items for industrial use to a department making parts for military equipment. While his belief that his religion proscribed work on war materials was not shared by all other Jehovah's Witnesses, the Court held that it was inappropriate to inquire into the validity of beliefs asserted to be religious so long as the claims were made in good faith (and the beliefs were at least arguably religious). The same result was reached in a 1987 case, the fact that the employee's religious conversion rather than a job reassignment had created the conflict between work and Sabbath observance not being considered material to the determination that free exercise rights had been burdened by the denial of unemployment compensation.[276] Also, a state may not deny unemployment benefits solely because refusal to work on the Sabbath was based on sincere religious beliefs held independently of membership in any established religious church or sect.[277]

The Court applied the Sherbert balancing test in several areas outside of unemployment compensation. The first two such cases involved the Amish, whose religion requires them to lead a simple life of labor and worship in a tight-knit and self-reliant community largely insulated from the materialism and other distractions of modern life. Wisconsin v. Yoder[278]held that a state compulsory attendance law, as applied to require Amish children to attend ninth and tenth grades of public schools in contravention of Amish religious beliefs, violated the Free Exercise Clause. The Court first determined that the beliefs of the Amish were indeed religiously based and of great antiquity.[279] Next, the Court rejected the State's arguments that the Free Exercise Clause extends no protection because the case involved "action" or "conduct" rather than belief, and because the regulation, neutral on its face, did not single out religion.[280] Instead, the Court went on to analyze whether a "compelling" governmental interest required such "grave interference" with Amish belief and practices.[281] The governmental interest was not the general provision of education, inasmuch as the State and the Amish were in agreement on education through the first eight grades and since the Amish provided their children with additional education of a primarily vocational nature. The State's interest was really that of providing two additional years of public schooling. Nothing in the record, felt the Court, showed that this interest outweighed the great harm which it would do to traditional Amish religious beliefs to impose the compulsory ninth and tenth grade attendance.[282]

But a subsequent decision involving the Amish reached a contrary conclusion. In United States v. Lee,[283] the Court denied the Amish exemption from compulsory participation in the Social Security system. The objection was that payment of taxes by Amish employers and employees and the receipt of public financial assistance were forbidden by their religious beliefs. Accepting that this was true, the Court nonetheless held that the governmental interest was compelling and therefore sufficient to justify the burdening of religious beliefs.[284] Compulsory payment of taxes was necessary for the vitality of the system; either voluntary participation or a pattern of exceptions would undermine its soundness and make the program difficult to administer.

"A compelling governmental interest" was also found to outweigh free exercise interests in Bob Jones University v. United States,[285] in which the Court upheld the I.R.S.'s denial of tax exemptions to church-run colleges whose racially discriminatory admissions policies derived from religious beliefs. The Federal Government's "fundamental, overriding interest in eradicating racial discrimination in education"-found to be encompassed in common law standards of "charity" underlying conferral of the tax exemption on "charitable" institutions- "substantially outweighs" the burden on free exercise. Nor could the schools' free exercise interests be accommodated by less restrictive means.[286]

In other cases the Court found reasons not to apply compelling interest analysis. Religiously motivated speech, like other speech, can be subjected to reasonable time, place, or manner regulation serving a "substantial" rather than "compelling" governmental interest.[287]Sherbert's threshold test, inquiring "whether government has placed a substantial burden on the observation of a central religious belief or practice,"[288] eliminates other issues. As long as a particular religion does not proscribe the payment of taxes (as was the case with the Amish in Lee), the Court has denied that there is any constitutionally significant burden resulting from "imposition of a generally applicable tax [that] merely decreases the amount of money [adherents] have to spend on [their] religious activities."[289] The one caveat the Court left-that a generally applicable tax might be so onerous as to "effectively choke off an adherent's religious practices"[290] -may be a moot point in light of the Court's general ruling in Employment Division v. Smith, discussed below.

The Court also drew a distinction between governmental regulation of individual conduct, on the one hand, and restraint of governmental conduct as a result of individuals' religious beliefs, on the other. Sherbert's compelling interest test has been held inapplicable in cases viewed as involving attempts by individuals to alter governmental actions rather than attempts by government to restrict religious practices. Emphasizing the absence of coercion on religious adherents, the Court in Lyng v. Northwest Indian Cemetery Protective Ass'n[291]held that the Forest Service, even absent a compelling justification, could construct a road through a portion of a national forest held sacred and used by Indians in religious observances. The Court distinguished between governmental actions having the indirect effect of frustrating religious practices and those actually prohibiting religious belief or conduct: "'the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government."'[292]Similarly, even a sincerely held religious belief that assignment of a social security number would rob a child of her soul was held insufficient to bar the government from using the number for purposes of its own recordkeeping.[293] It mattered not how easily the government could accommodate the religious beliefs or practices (an exemption from the social security number requirement might have been granted with only slight impact on the government's recordkeeping capabilities), since the nature of the governmental actions did not implicate free exercise protections.[294]

Compelling interest analysis is also wholly inapplicable in the context of military rules and regulations, where First Amendment review "is far more deferential than . . . review of similar laws or regulations designed for civilian society."[295] Thus the Court did not question the decision of military authorities to apply uniform dress code standards to prohibit the wearing of a yarmulke by an officer compelled by his Orthodox Jewish religious beliefs to wear the yarmulke.[296]

A high degree of deference is also due decisions of prison administrators having the effect of restricting religious exercise by inmates. The general rule is that prison regulations impinging on exercise of constitutional rights by inmates are "valid if . . . reasonably related to legitimate penological interests."[297] Thus because general prison rules requiring a particular category of inmates to work outside of buildings where religious services were held, and prohibiting return to the buildings during the work day, could be viewed as reasonably related to legitimate penological concerns of security and order, no exemption was required to permit Muslim inmates to participate in Jumu'ah, the core ceremony of their religion.[298] The fact that the inmates were left with no alternative means of attending Jumu'ah was not dispositive, the Court being "unwilling to hold that prison officials are required by the Constitution to sacrifice legitimate penological objectives to that end."[299]

Finally, in Employment Division v. Smith[300] the Court indicated that the compelling interest test may apply only in the field of unemployment compensation, and in any event does not apply to require exemptions from generally applicable criminal laws. Criminal laws are "generally applicable" when they apply across the board regardless of the religious motivation of the prohibited conduct, and are "not specifically directed at . . . religious practices."[301] The unemployment compensation statute at issue in Sherbert was peculiarly suited to application of a balancing test because denial of benefits required a finding that an applicant had refused work "without good cause." Sherbert and other unemployment compensation cases thus "stand for the proposition that where the State has in place a system of individual exemptions, it may not refuse to extend that system to cases of 'religious hardship' without compelling reason."[302] Wisconsin v. Yoder and other decisions holding "that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action" were distinguished as involving "not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections" such as free speech or "parental rights."[303] Except in the relatively uncommon circumstance when a statute calls for individualized consideration, then, the Free Exercise Clause affords no basis for exemption from a "neutral, generally applicable law." As the Court concluded in Smith, accommodation for religious practices incompatible with general requirements must ordinarily be found in "the political process."[304]

The ramifications of Smith are potentially widespread. The Court has apparently returned to a belief-conduct dichotomy under which religiously motivated conduct is not entitled to special protection. Laws may not single out religiously motivated conduct for adverse treatment,[305] but formally neutral laws of general applicability may regulate religious conduct (along with other conduct) regardless of the adverse or prohibitory effects on religious exercise. That the Court views the principle as a general one, not limited to criminal laws, seems evident from its restatement in Church of the Lukumi Babalu Aye v. City of Hialeah: "our cases establish the general proposition that a law that is neutral and of general application need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice."[306] Similar rules govern taxation. Under the Court's rulings in Smith and Swaggart, religious exemptions from most taxes are a matter of legislative grace rather than constitutional command, since most important taxes (e.g., income, property, sales and use) satisfy the criteria of formal neutrality and general applicability, and are not license fees that can be viewed as prior restraints on expression.[307] The result is equal protection, but not substantive protection, for religious exercise.[308] The Court's approach also accords less protection to religiously-based conduct than is accorded expressive conduct that implicates speech but not religious values.[309] On the practical side, relegation of free exercise claims to the political process may, as concurring Justice O'Connor warned, result in less protection for small, unpopular religious sects.[310]

Because of the broad ramifications of Smith, the political processes were soon used in an attempt to provide additional legislative protection for religious exercise. In the Religious Freedom Restoration Act of 1993 (RFRA),[311] Congress sought to supersede Smith and substitute a statutory rule of decision for free exercise cases. The Act provides that laws of general applicability-federal, state, and local-may substantially burden free exercise of religion only if they further a compelling governmental interest and constitute the least restrictive means of doing so. The purpose, Congress declared in the Act itself, was "to restore the compelling interest test as set forth in Sherbert v. Verner and Wisconsin v. Yoder and to guarantee its application in all cases where free exercise of religion is substantially burdened."[312] But this legislative effort was partially frustrated in 1997 when the Court in City of Boerne v. Flores[313] held the Act to be unconstitutional as applied to the states. In applying RFRA to the states Congress had utilized its power under § 5 of the Fourteenth Amendment to enact "appropriate legislation" to enforce the substantive protections of the Amendment, including the religious liberty protections incorporated in the due process clause. But the Court held that RFRA exceeded Congress' power under § 5, because the measure did not simply enforce a constitutional right but substantively altered that right. "Congress," the Court said, "does not enforce a constitutional right by changing what the right is."[314] Moreover, it said, RFRA "reflects a lack of proportionality or congruence between the means adopted and the legitimate end to be achieved ... [and] is a considerable congressional intrusion into the States' traditional prerogatives and general authority to regulate for the health and welfare of their citizens."[315] "RFRA," the Court concluded, "contradicts vital principles necessary to maintain separation of powers and the federal balance."[316]

Boerne does not close the books on Smith, however. It remains an open issue whether RFRA remains valid as applied to the federal government, and Congress has recently relied on its power over interstate commerce and its power to attach conditions to federal financial assistance to enact legislation providing a higher level of protection than that afforded by Smith to religious institutions involved in land use disputes and to religious practices by persons in state institutions.[317] These issues ensure continuing litigation over the appropriate test for free exercise cases.[318]

Religious Test Oaths

However the Court has been divided in dealing with religiously-based conduct and governmental compulsion of action or nonaction, it was unanimous in voiding a state constitutional provision which required a notary public, as a condition of perfecting his appointment, to declare his belief in the existence of God. The First Amendment, considered with the religious oath provision of Article VI, makes it impossible "for government, state or federal, to restore the historically and constitutionally discredited policy of probing religious beliefs by test oaths or limiting public offices to persons who have, or perhaps more properly, profess to have, a belief in some particular kind of religious concept."[319]

Religious Disqualification

Unanimously, but with great differences of approach, the Court declared invalid a Tennessee statute barring ministers and priests from service in a specially called state constitutional convention.[320] The Court's decision necessarily implied that the constitutional provision on which the statute was based, barring ministers and priests from service as state legislators, was also invalid.

Freedom of Expression-Speech and Press

Adoption and the Common Law Background

Madison's version of the speech and press clauses, introduced in the House of Representatives on June 8, 1789, provided: "The people shall not be deprived or abridged of their right to speak, to write, or to publish their sentiments; and the freedom of the press, as one of the great bulwarks of liberty, shall be inviolable."[321] The special committee rewrote the language to some extent, adding other provisions from Madison's draft, to make it read: "The freedom of speech and of the press, and the right of the people peaceably to assemble and consult for their common good, and to apply to the Government for redress of grievances, shall not be infringed."[322] In this form it went to the Senate, which rewrote it to read: "That Congress shall make no law abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and consult for their common good, and to petition the government for a redress of grievances."[323]Subsequently, the religion clauses and these clauses were combined by the Senate.[324] The final language was agreed upon in conference.

Debate in the House is unenlightening with regard to the meaning the Members ascribed to the speech and press clause and there is no record of debate in the Senate.[325] In the course of debate, Madison warned against the dangers which would arise "from discussing and proposing abstract propositions, of which the judgment may not be convinced. I venture to say, that if we confine ourselves to an enumeration of simple, acknowledged principles, the ratification will meet with but little difficulty."[326] That the "simple, acknowledged principles" embodied in the First Amendment have occasioned controversy without end both in the courts and out should alert one to the difficulties latent in such spare language. Insofar as there is likely to have been a consensus, it was no doubt the common law view as expressed by Blackstone. "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity. To subject the press to the restrictive power of a licenser, as was formerly done, both before and since the Revolution, is to subject all freedom of sentiment to the prejudices of one man, and make him the arbitrary and infallible judge of all controverted points in learning, religion and government. But to punish as the law does at present any dangerous or offensive writings, which, when published, shall on a fair and impartial trial be adjudged of a pernicious tendency, is necessary for the preservation of peace and good order, of government and religion, the only solid foundations of civil liberty. Thus, the will of individuals is still left free: the abuse only of that free will is the object of legal punishment. Neither is any restraint hereby laid upon freedom of thought or inquiry; liberty of private sentiment is still left; the disseminating, or making public, of bad sentiments, destructive to the ends of society, is the crime which society corrects."[327]

Whatever the general unanimity on this proposition at the time of the proposal of and ratification of the First Amendment,[328] it appears that there emerged in the course of the Jeffersonian counterattack on the Sedition Act[329] and the use by the Adams Administration of the Act to prosecute its political opponents,[330] something of a libertarian theory of freedom of speech and press,[331] which, however much the Jeffersonians may have departed from it upon assuming power,[332] was to blossom into the theory under-girding Supreme Court First Amendment jurisprudence in modern times. Full acceptance of the theory that the Amendment operates not only to bar most prior restraints of expression but subsequent punishment of all but a narrow range of expression, in political discourse and indeed in all fields of expression, dates from a quite recent period, although the Court's movement toward that position began in its consideration of limitations on speech and press in the period following World War I.[333] Thus, in 1907, Justice Holmes could observe that, even if the Fourteenth Amendment embodied prohibitions similar to the First Amendment, "still we should be far from the conclusion that the plaintiff in error would have us reach. In the first place, the main purpose of such constitutional provisions is 'to prevent all such previous restraints upon publications as had been practiced by other governments,' and they do not prevent the subsequent punishment of such as may be deemed contrary to the public welfare .... The preliminary freedom extends as well to the false as to the true; the subsequent punishment may extend as well to the true as to the false. This was the law of criminal libel apart from statute in most cases, if not in all."[334] But as Justice Holmes also observed, "[t]here is no constitutional right to have all general propositions of law once adopted remain unchanged."[335] never restrain the presses from printing anything they please, will not take away the liability of the printers for false facts printed." 13 PAPERS OF

"The federalists having failed in destroying freedom of the press by their gaglaw, seem to have attacked it in an opposite direction; that is, by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit.... This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one." 9 WORKS OF THOMAS

But in Schenck v. United States,[336] the first of the post-World War I cases to reach the Court, Justice Holmes, in the opinion of the Court, while upholding convictions for violating the Espionage Act by attempting to cause insubordination in the military service by circulation of leaflets, suggested First Amendment restraints on subsequent punishment as well as prior restraint. "It well may be that the prohibition of laws abridging the freedom of speech is not confined to previous restraints although to prevent them may have been the main purpose .... We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.... The question in every case is whether the words used are used in such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." Justice Holmes along with Justice Brandeis soon went into dissent in their views that the majority of the Court was misapplying the legal standards thus expressed to uphold suppression of speech which offered no threat of danger to organized institutions.[337] But it was with the Court's assumption that the Fourteenth Amendment restrained the power of the States to suppress speech and press that the doctrines developed.[338] At first, Holmes and Brandeis remained in dissent, but in Fiske v. Kansas,[339] the Court sustained a First Amendment type of claim in a state case, and in Stromberg v. California,[340] a state law was voided on grounds of its interference with free speech.[341] State common law was also voided, the Court in an opinion by Justice Black asserting that the First Amendment enlarged protections for speech, press, and religion beyond those enjoyed under English common law.[342]Development over the years since has been uneven, but by 1964 the Court could say with unanimity: "we consider this case against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic and sometimes unpleasantly sharp attacks on government and public officials."[343] And in 1969, the Court said that the cases "have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."[344] This development and its myriad applications are elaborated in the following sections.

The First Amendment by its terms applies only to laws enacted by Congress, and not to the actions of private persons.[345] This leads to a "state action" (or "governmental action") limitation similar to that applicable to the Fourteenth Amendment.[346] The limitation has seldom been litigated in the First Amendment context, but there is no obvious reason why analysis should differ markedly from Fourteenth Amendment state action analysis. Both contexts require "cautious analysis of the quality and degree of Government relationship to the particular acts in question."[347] In holding that the National Railroad Passenger Corporation (Amtrak) is a governmental entity for purposes of the First Amendment, the Court declared that "[t]he Constitution constrains governmental action 'by whatever instruments or in whatever modes that action may be taken.'. . . [a]nd under whatever congressional label."[348] The relationship of the government to broadcast licensees affords other opportunities to explore the breadth of "governmental action."[349]

First Amendment does not reach acts of private parties in every instance where the Congress or the [Federal Communications] Commission has merely permitted or failed to prohibit such acts." Id. at 119.

Freedom of Expression: The Philosophical Basis

Probably no other provision of the Constitution has given rise to so many different views with respect to its underlying philosophical foundations, and hence proper interpretive framework, as has the guarantee of freedom of expression-the free speech and free press clauses.[350] The argument has been fought out among the commentators. "The outstanding fact about the First Amendment today is that the Supreme Court has never developed any comprehensive theory of what that constitutional guarantee means and how it should be applied in concrete cases."[351] Some of the commentators argue in behalf of a complex of values, none of which by itself is sufficient to support a broad-based protection of freedom of expression.[352] Others would limit the basis of the First Amendment to only one among a constellation of possible values and would therefore limit coverage or degree of protection of the speech and press clauses. For example, one school of thought believes that, because of the constitutional commitment to free self-government, only political speech is within the core protected area,[353] although some commentators tend to define more broadly the concept of "political" than one might suppose from the word alone. Others recur to the writings of Milton and Mill and argue that protecting speech, even speech in error, is necessary to the eventual ascertainment of the truth, through conflict of ideas in the marketplace, a view skeptical of our ability to ever know the truth.[354] A broader-grounded view is variously expounded by scholars who argue that freedom of expression is necessary to promote individual self-fulfillment, such as the concept that when speech is freely chosen by the speaker to persuade others it defines and expresses the "self," promotes his liberty,[355] or the concept of "self-realization," the belief that free speech enables the individual to develop his powers and abilities and to make and influence decisions regarding his destiny.[356] The literature is enormous and no doubt the Justices as well as the larger society are influenced by it, and yet the decisions, probably in large part because they are the collective determination of nine individuals, seldom clearly reflect a principled and consistent acceptance of any philosophy.

Freedom of Expression: Is There a Difference Between Speech and Press?

Use of the single word "expression" to reach speech, press, petition, association, and the like, raises the central question of whether the free speech clause and the free press clause are coextensive; does one perhaps reach where the other does not? It has been much debated, for example, whether the "institutional press" may assert or be entitled to greater freedom from governmental regulations or restrictions than are non-press individuals, groups, or associations. Justice Stewart has argued: "That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively."[357] But as Chief Justice Burger wrote: "The Court has not yet squarely resolved whether the Press Clause confers upon the 'institutional press' any freedom from government restraint not enjoyed by all others."[358]

Several Court holdings do firmly point to the conclusion that the press clause does not confer on the press the power to compel government to furnish information or to give the press access to information that the public generally does not have.[359] Nor in many respects is the press entitled to treatment different in kind from the treatment any other member of the public may be subjected to.[360] "Generally applicable laws do not offend the First Amendment simply because their enforcement against the press has incidental effects."[361]Yet, it does seem clear that to some extent the press, because of the role it plays in keeping the public informed and in the dissemination of news and information, is entitled to particular if not special deference that others are not similarly entitled to, that its role constitutionally entitles it to governmental "sensitivity," to use Justice Stewart's word.[362]What difference such "sensitivity" might make in deciding cases is difficult to say.

The most interesting possibility lies in the area of First Amendment protection of good faith defamation.[363] Justice Stewart argued that the Sullivan privilege is exclusively a free press right, denying that the "constitutional theory of free speech gives an individual any immunity from liability for libel or slander."[364] To be sure, in all the cases to date that the Supreme Court has resolved, the defendant has been, in some manner, of the press,[365] but the Court's decision that corporations are entitled to assert First Amendment speech guarantees against federal and, through the Fourteenth Amendment, state regulations causes the evaporation of the supposed "conflict" between speech clause protection of individuals only and of press clause protection of press corporations as well as of press individuals.[366]The issue, the Court wrote, was not what constitutional rights corporations have but whether the speech that is being restricted is expression that the First Amendment protects because of its societal significance. Because the speech concerned the enunciation of views on the conduct of governmental affairs, it was protected regardless of its source; while the First Amendment protects and fosters individual self-expression as a worthy goal, it also and as importantly affords the public access to discussion, debate, and the dissemination of information and ideas. Despite Bellotti's emphasis upon the nature of the contested speech being political, it is clear that the same principle, the right of the public to receive information, governs nonpolitical, corporate speech.[367]

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

The Doctrine of Prior Restraint

"[L]iberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship."[368] "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity."[369] Government "thus carries a heavy burden of showing justification for the imposition of such a restraint."[370] Under the English licensing system, which expired in 1695, all printing presses and printers were licensed and nothing could be published without prior approval of the state or church authorities. The great struggle for liberty of the press was for the right to publish without a license that which for a long time could be published only with a license.[371]

The United States Supreme Court's first encounter with a law imposing a prior restraint came in Near v. Minnesota ex rel. Olson,[372] in which a five-to-four majority voided a law authorizing the permanent enjoining of future violations by any newspaper or periodical once found to have published or circulated an "obscene, lewd and lascivious" or a "malicious, scandalous and defamatory" issue. An injunction had been issued after the newspaper in question had printed a series of articles tying local officials to gangsters. While the dissenters maintained that the injunction constituted no prior restraint, inasmuch as that doctrine applied to prohibitions of publication without advance approval of an executive official,[373] the majority deemed the difference of no consequence, since in order to avoid a contempt citation the newspaper would have to clear future publications in advance with the judge.[374] Liberty of the press to scrutinize closely the conduct of public affairs was essential, said Chief Justice Hughes for the Court. "[T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of the impairment of the fundamental security of life and property by criminal alliances and official neglect, emphasizes the primary need of a vigilant and courageous press, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege."[375] The Court did not undertake to explore the kinds of restrictions to which the term "prior restraint" would apply nor to do more than assert that only in "exceptional circumstances" would prior restraint be permissible.[376] Nor did subsequent cases substantially illuminate the murky interior of the doctrine. The doctrine of prior restraint was called upon by the Court as it struck down a series of loosely drawn statutes and ordinances requiring licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in the licensor whether or not to issue them, and as it voided other restrictions on First Amendment rights.[377] The doctrine that generally emerged was that permit systems-prior licensing, if you will-were constitutionally valid so long as the discretion of the issuing official was limited to questions of times, places, and manners.[378] The most recent Court encounter with the doctrine in the national security area occurred when the Government attempted to enjoin press publication of classified documents pertaining to the Vietnam War[379] and, although the Court rejected the effort, at least five and perhaps six Justices concurred on principle that in some circumstances prior restraint of publication would be constitutional.[380] But no cohesive doctrine relating to the subject, its applications, and its exceptions has yet emerged.

Injunctions and the Press in Fair Trial Cases

-Confronting a claimed conflict between free press and fair trial guarantees, the Court unanimously set aside a state court injunction barring the publication of information that might prejudice the subsequent trial of a criminal defendant.[381] Though agreed on result, the Justices were divided with respect to whether "gag orders" were ever permissible and if so what the standards for imposing them were. The opinion of the Court used the Learned Hand formulation of the "clear and present danger" test[382] and considered as factors in any decision on the imposition of a restraint upon press reporters (a) the nature and extent of pretrial news coverage, (b) whether other measures were likely to mitigate the harm, and (c) how effectively a restraining order would operate to prevent the threatened danger.[383] One seeking a restraining order would have a heavy burden to meet to justify such an action, a burden that could be satisfied only on a showing that with a prior restraint a fair trial would be denied, but the Chief Justice refused to rule out the possibility of showing the kind of threat that would possess the degree of certainty to justify restraints.[384] Justice Brennan?s major concurring opinion flatly took the position that such restraining orders were never permissible. Commentary and reporting on the criminal justice system is at the core of First Amendment values, he would hold, and secrecy can do so much harm "that there can be no prohibition on the publication by the press of any information pertaining to pending judicial proceedings or the operation of the criminal justice system, no matter how shabby the means by which the information is obtained."[385] The extremely narrow exceptions under which prior restraints might be permissible relate to probable national harm resulting from publication, the Justice continued; because the trial court could adequately protect a defendant?s right to a fair trial through other means even if there were conflict of constitutional rights the possibility of damage to the fair trail right would be so speculative that the burden of justification could not be met.[386] While the result does not foreclose the possibility of future "gag orders," it does lessen the number to be expected and shifts the focus to other alternatives for protecting trial rights.[387] On a different level, however, are orders restraining the press as a party to litigation in the dissemination of information obtained through pretrial discovery. In Seattle Times Co. v. Rhinehart,[388] the Court determined that such orders protecting parties from abuses of discovery require "no heightened First Amendment scrutiny."[389]

Obscenity and Prior Restraint

Only in the obscenity area has there emerged a substantial consideration of the doctrine of prior restraint, and the doctrine's use there may be based upon the proposition that obscenity is not a protected form of expression.[390] In Kingsley Books v. Brown,[391] the Court upheld a state statute that, while it embodied some features of prior restraint, was seen as having little more restraining effect than an ordinary criminal statute; that is, the law's penalties applied only after publication. But in Times Film Corp. v. City of Chicago,[392] a divided Court specifically affirmed that, at least in the case of motion pictures, the First Amendment did not proscribe a licensing system under which a board of censors could refuse to license for public exhibition films that it found obscene. Books and periodicals may also be subjected to some forms of prior restraint,[393] but the thrust of the Court's opinions in this area with regard to all forms of communication has been to establish strict standards of procedural protections to ensure that the censoring agency bears the burden of proof on obscenity, that only a judicial order can restrain exhibition, and that a prompt final judicial decision is assured.[394]

Subsequent Punishment: Clear and Present Danger and Other Tests

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

"[The purpose of the speech-press clauses] has evidently been to protect parties in the free publication of matters of public concern, to secure their right to a free discussion of public events and public measures, and to enable every citizen at any time to bring the government and any person in authority to the bar of public opinion by any just criticism upon their conduct in the exercise of the authority which the people have conferred upon them.... The evils to be prevented were not the censorship of the press merely, but any action of the government by means of which it might prevent such free and general discussion of public matters as seems absolutely essential to prepare the people for an intelligent exercise of their rights as citizens."[395] A rule of law permitting criminal or civil liability to be imposed upon those who speak or write on public issues would lead to "self-censorship" by all which would not be relieved by permitting a defense of truth. "Under such a rule, would-be critics of official conduct may be deterred from voicing their criticism, even though it is believed to be true and even though it is in fact true, because of doubt whether it can be proved in court or fear of the expense of having to do so .... The rule thus dampens the vigor and limits the variety of public debate."[396]

"Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole-heartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas-that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution."[397] "Those who won our independence believed that the final end of the State was to make men free to develop their faculties; and that in its government the deliberative forces should prevail over the arbitrary. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty. They believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth; that without free speech and assembly discussion would be futile; that with them, discussion affords ordinarily adequate protection against the dissemination of noxious doctrine; that the greatest menace to freedom is an inert people; that public discussion is a political duty; and that this should be a fundamental principle of the American government. They recognized the risks to which all human institutions are subject. But they knew that order cannot be secured merely through fear of punishment for its infraction; that it is hazardous to discourage thought, hope and imagination; that fear breeds repression; that repression breeds hate; that hate menaces stable government; that the path of safety lies in the opportunity to discuss freely supposed grievances and proposed remedies; and that the fitting remedy for evil counsels is good ones. Believing in the power of reason as applied through public discussion, they eschewed silence coerced by law-the argument of force in its worst form. Recognizing the occasional tyrannies of governing majorities, they amended the Constitution so that free speech and assembly should be guaranteed."[398]

"But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic or moral."[399] The fixing of a standard is necessary, by which it can be determined what degree of evil is sufficiently substantial to justify resort to abridgment of speech and press and assembly as a means of protection and how clear and imminent and likely the danger is.[400] That standard has fluctuated over a period of some fifty years now and it cannot be asserted with a great degree of confidence that the Court has yet settled on any firm standard or any set of standards for differing forms of expression. The cases are instructive of the difficulty.

Clear and Present Danger

Certain expression, oral or written, may incite, urge, counsel, advocate, or importune the commission of criminal conduct; other expression, such as picketing, demonstrating, and engaging in certain forms of "symbolic" action, may either counsel the commission of criminal conduct or itself constitute criminal conduct. Leaving aside for the moment the problem of "speech-plus" communication, it becomes necessary to determine when expression that may be a nexus to criminal conduct is subject to punishment and restraint. At first, the Court seemed disposed in the few cases reaching it to rule that if the conduct could be made criminal, the advocacy of or promotion of the conduct could be made criminal.[401] Then, in Schenck v. United States,[402] in which defendants had been convicted of seeking to disrupt recruitment of military personnel by dissemination of certain leaflets, Justice Holmes formulated the "clear and present danger" test which has ever since been the starting point of argument. "The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree."[403] The convictions were unanimously affirmed. One week later, the Court again unanimously affirmed convictions under the same Act with Justice Holmes speaking. "[W]e think it necessary to add to what has been said in Schenck v. United States ... only that the First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counseling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech."[404] And in Debs v. United States,[405]Justice Holmes was found referring to "the natural and intended effect" and "probable effect" of the condemned speech in common-law tones.

But in Abrams v. United States,[406] Justices Holmes and Brandeis dissented upon affirmance of the convictions of several alien anarchists who had printed leaflets seeking to encourage discontent with United States participation in the War. The majority simply referred to Schenck and Frohwerk to rebut the First Amendment argument, but the dissenters urged that the Government had made no showing of a clear and present danger. Another affirmance by the Court of a conviction, the majority simply saying that "[t]he tendency of the articles and their efficacy were enough for the offense," drew a similar dissent.[407]Moreover, in Gitlow v. New York,[408] a conviction for distributing a manifesto in violation of a law making it criminal to advocate, advise, or teach the duty, necessity, or propriety of overthrowing organized government by force or violence, the Court affirmed in the absence of any evidence regarding the effect of the distribution and in the absence of any contention that it created any immediate threat to the security of the State. In so doing, the Court discarded Holmes' test. "It is clear that the question in such cases [as this] is entirely different from that involved in those cases where the statute merely prohibits certain acts involving the danger of substantive evil, without any reference to language itself, and it is sought to apply its provisions to language used by the defendant for the purpose of bringing about the prohibited results.... In such cases it has been held that the general provisions of the statute may be constitutionally applied to the specific utterance of the defendant if its natural tendency and probable effect was to bring about the substantive evil which the legislative body might prevent.... [T]he general statement in the Schenck Case ... was manifestly intended . . . to apply only in cases of this class, and has no application to those like the present, where the legislative body itself has previously determined the danger of substantive evil arising from utterances of a specified character."[409] Thus, a state legislative determination "that utterances advocating the overthrow of organized government by force, violence, and unlawful means, are so inimical to the general welfare, and involve such danger of substantive evil that they may be penalized in the exercise of its police power" was almost conclusive on the Court.[410] It is not clear what test, if any, the majority would have used, although the "bad tendency" test has usually been associated with the case. In Whitney v. California,[411] the Court affirmed a conviction under a criminal syndicalism statute based on defendant's association with and membership in an organization that advocated the commission of illegal acts, finding again that the determination of a legislature that such advocacy involves "such danger to the public peace and the security of the State" was entitled to almost conclusive weight. In a technical concurrence which was in fact a dissent from the opinion of the Court, Justice Brandeis restated the "clear and present danger" test. "[E]ven advocacy of violation [of the law] . . . is not a justification for denying free speech where the advocacy fails short of incitement and there is nothing to indicate that the advocacy would be immediately acted on .... In order to support a finding of clear and present danger it must be shown either that immediate serious violence was to be expected or was advocated, or that the past conduct furnished reason to believe that such advocacy was then contemplated."[412]

The Adoption of Clear and Present Danger

The Court did not invariably affirm convictions during this period in cases like those under consideration. In Fiske v. Kansas,[413] it held that a criminal syndicalism law had been invalidly applied to convict one against whom the only evidence was the "class struggle" language of the constitution of the organization to which he belonged. A conviction for violating a "red flag" law was voided as the statute was found unconstitutionally vague.[414] Neither case mentioned clear and present danger. An "incitement" test seemed to underlie the opinion in De Jonge v. Oregon,[415] upsetting a conviction under a criminal syndicalism statute for attending a meeting held under the auspices of an organization which was said to advocate violence as a political method, although the meeting was orderly and no violence was advocated during it. In Herndon v. Lowry,[416] the Court narrowly rejected the contention that the standard of guilt could be made the "dangerous tendency" of one's words, and indicated that the power of a State to abridge speech "even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government."

Finally, in Thornhill v. Alabama,[417] a state anti-picketing law was invalidated because "no clear and present danger of destruction of life or property, or invasion of the right of privacy, or breach of the peace can be thought to be inherent in the activities of every person who approaches the premises of an employer and publicizes the facts of a labor dispute involving the latter." During the same term, the Court reversed the breach of the peace conviction of a Jehovah's Witness who had played an inflammatory phonograph record to persons on the street, the Court discerning no clear and present danger of disorder.[418]

The stormiest fact situation faced by the Court in applying clear and present danger occurred in Terminiello v. City of Chicago,[419] in which a five-to-four majority struck down a conviction obtained after the judge instructed the jury that a breach of the peace could be committed by speech that "stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance." "A function of free speech under our system of government," wrote Justice Douglas for the majority, "is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, . . . is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest."[420] The dissenters focused on the disorders that had actually occurred as a result of Terminiello's speech, Justice Jackson saying: "Rioting is a substantive evil, which I take it no one will deny that the State and the City have the right and the duty to prevent and punish .... In this case the evidence proves beyond dispute that danger of rioting and violence in response to the speech was clear, present and immediate."[421] The Jackson position was soon adopted in Feiner v. New York,[422] in which Chief Justice Vinson said that "[t]he findings of the state courts as to the existing situation and the imminence of greater disorder coupled with petitioner's deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech."

Contempt of Court and Clear and Present Danger

The period during which clear and present danger was the standard by which to determine the constitutionality of governmental suppression of or punishment for expression was a brief one, extending roughly from Thornhill to Dennis.[423] But in one area it was vigorously, though not without dispute, applied to enlarge freedom of utterance and it is in this area that it remains viable. In early contempt-of-court cases in which criticism of courts had been punished as contempt, the Court generally took the position that even if freedom of speech and press was protected against governmental abridgment, a publication tending to obstruct the administration of justice was punishable, irrespective of its truth.[424] But in Bridges v. California,[425] in which contempt citations had been brought against a newspaper and a labor leader for statements made about pending judicial proceedings, Justice Black for a five-to-four Court majority began with application of clear and present danger, which he interpreted to require that "the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished."[426] He noted that the "substantive evil here sought to be averted . . . appears to be double: disrespect for the judiciary; and disorderly and unfair administration of justice." The likelihood that the court will suffer damage to its reputation or standing in the community was not, Justice Black continued, a "substantive evil" which would justify punishment of expression.[427] The other evil, "disorderly and unfair administration of justice," "is more plausibly associated with restricting publications which touch upon pending litigation." But the "degree of likelihood" of the evil being accomplished was not "sufficient to justify summary punishment."[428] In dissent, Justice Frankfurter accepted the application of clear and present danger, but he interpreted it as meaning no more than a "reasonable tendency" test. "Comment however forthright is one thing. Intimidation with respect to specific matters still in judicial suspense, quite another.... A publication intended to teach the judge a lesson, or to vent spleen, or to discredit him, or to influence him in his future conduct, would not justify exercise of the contempt power. . . . It must refer to a matter under consideration and constitute in effect a threat to its impartial disposition. It must be calculated to create an atmospheric pressure incompatible with rational, impartial adjudication. But to interfere with justice it need not succeed. As with other offenses, the state should be able to proscribe attempts that fail because of the danger that attempts may succeed."[429]

A unanimous Court next struck down the contempt conviction arising out of newspaper criticism of judicial action already taken, although one case was pending after a second indictment. Specifically alluding to clear and present danger, while seeming to regard it as as stringent a test as Justice Black had in the prior case, Justice Reed wrote that the danger sought to be averted, a "threat to the impartial and orderly administration of justice," "has not the clearness and immediacy necessary to close the door of permissible public comment."[430] Divided again, the Court a year later set aside contempt convictions based on publication, while a motion for a new trial was pending, of inaccurate and unfair accounts and an editorial concerning the trial of a civil case. "The vehemence of the language used is not alone the measure of the power to punish for contempt. The fires which it kindles must constitute an imminent, and not merely a likely, threat to the administration of justice. The danger must not be remote or even probable; it must immediately imperil."[431]

In Wood v. Georgia,[432] the Court again divided, applying clear and present danger to upset the contempt conviction of a sheriff who had been cited for criticizing the recommendation of a county court that a grand jury look into African-American bloc voting, vote buying, and other alleged election irregularities. No showing had been made, said Chief Justice Warren, of "a substantive evil actually designed to impede the course of justice." The case presented no situation in which someone was on trial, there was no judicial proceeding pending that might be prejudiced, and the dispute was more political than judicial.[433] A unanimous Court recently seems to have applied the standard to set aside a contempt conviction of a defendant who, arguing his own case, alleged before the jury that the trial judge by his bias had prejudiced his trial and that he was a political prisoner. Though the defendant's remarks may have been disrespectful of the court, the Supreme Court noted that "[t]here is no indication . . . that petitioner's statements were uttered in a boisterous tone or in any wise actually disrupted the court proceeding" and quoted its previous language about the imminence of the threat necessary to constitute contempt.[434]

Clear and Present Danger Revised: Dennis

In Dennis v. United States,[435] the Court sustained the constitutionality of the Smith Act,[436] which proscribed advocacy of the overthrow by force and violence of the government of the United States, and upheld convictions under it. Dennis' importance here is in the rewriting of the clear and present danger test. For a plurality of four, Chief Justice Vinson acknowledged that the Court had in recent years relied on the Holmes-Brandeis formulation of clear and present danger without actually overruling the older cases that had rejected the test; but while clear and present danger was the proper constitutional test, that "shorthand phrase should [not] be crystallized into a rigid rule to be applied inflexibly without regard to the circumstances of each case." It was a relative concept. Many of the cases in which it had been used to reverse convictions had turned "on the fact that the interest which the State was attempting to protect was itself too insubstantial to warrant restriction of speech."[437] Here, by contrast, " [o]verthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech."[438] And in combating that threat, the Government need not wait to act until the putsch is about to be executed and the plans are set for action. "If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required."[439] Therefore, what does the phrase "clear and present danger" import for judgment? "Chief Judge Learned Hand, writing for the majority below, interpreted the phrase as follows: 'In each case [courts] must ask whether the gravity of the "evil," discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.' 183 F.2d at 212. We adopt this statement of the rule. As articulated by Chief Judge Hand, it is as succinct and inclusive as any other we might devise at this time. It takes into consideration those factors which we deem relevant, and relates their significances. More we cannot expect from words."[440] The "gravity of the evil, discounted by its improbability" was found to justify the convictions.[441]

Balancing

Clear and present danger as a test, it seems clear, was a pallid restriction on governmental power after Dennis, and it virtually disappeared from the Court's language over the next twenty years.[442] Its replacement for part of this period was the much disputed "balancing" test, which made its appearance in the year prior to Dennis in American Communications Ass'n v. Douds.[443] There the Court sustained a law barring from access to the NLRB any labor union if any of its officers failed to file annually an oath disclaiming membership in the Communist Party and belief in the violent overthrow of the government.[444] Chief Justice Vinson, for the Court, rejected reliance on the clear and present danger test. "Government's interest here is not in preventing the dissemination of Communist doctrine or the holding of particular beliefs because it is feared that unlawful action will result there-from if free speech is practiced. Its interest is in protecting the free flow of commerce from what Congress considers to be substantial evils of conduct that are not the products of speech at all. Section 9(h), in other words, does not interfere with speech because Congress fears the consequences of speech; it regulates harmful conduct which Congress has determined is carried on by persons who may be identified by their political affiliations and beliefs. The Board does not contend that political strikes . . . are the present or impending products of advocacy of the doctrines of Communism or the expression of belief in overthrow of the Government by force. On the contrary, it points out that such strikes are called by persons who, so Congress has found, have the will and power to do so without advocacy."[445]

The test, rather, must be one of balancing of interests. "When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgement of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented."[446] Inasmuch as the interest in the restriction, the government's right to prevent political strikes and the disruption of commerce, is much more substantial than the limited interest on the other side in view of the relative handful of persons affected in only a partial manner, the Court perceived no difficulty upholding the statute.[447]

Justice Frankfurter in Dennis[448] rejected the applicability of clear and present danger and adopted a balancing test. "The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interest, within the confines of the judicial process, than by announcing dogmas too inflexible for the nonEuclidian problems to be solved."[449] But the "careful weighing of conflicting interests"[450] not only placed in the scale the disparately-weighed interest of government in self-preservation and the interest of defendants in advocating illegal action, which alone would have determined the balance, it also involved the Justice's philosophy of the "confines of the judicial process" within which the role of courts, in First Amendment litigation as in other, is severely limited. Thus, "[f]ull responsibility" may not be placed in the courts "to balance the relevant factors and ascertain which interest in the circumstances [is] to prevail." "Courts are not representative bodies. They are not designed to be a good reflex of a democratic society." Rather, "[p]rimary responsibility for adjusting the interests which compete in the situation before us of necessity belongs to the Congress."[451]Therefore, after considering at some length the factors to be balanced, Justice Frankfurter concluded: "It is not for us to decide how we would adjust the clash of interests which this case presents were the primary responsibility for reconciling it ours. Congress has determined that the danger created by advocacy of overthrow justifies the ensuing restriction on freedom of speech. The determination was made after due deliberation, and the seriousness of the congressional purpose is attested by the volume of legislation passed to effectuate the same ends."[452] Only if the balance struck by the legislature is "outside the pale of fair judgment"[453] could the Court hold that Congress was deprived by the Constitution of the power it had exercised.[454]

Thereafter, during the 1950s and the early 1960s, the Court used the balancing test in a series of decisions in which the issues were not, as they were not in Douds and Dennis, matters of expression or advocacy as a threat but rather were governmental inquiries into associations and beliefs of persons or governmental regulation of associations of persons, based on the idea that beliefs and associations provided adequate standards for predicting future or intended conduct that was within the power of government to regulate or to prohibit. Thus, in the leading case on balancing, Konigsberg v. State Bar of California,[455]the Court upheld the refusal of the State to certify an applicant for admission to the bar. Required to satisfy the Committee of Bar Examiners that he was of "good moral character," Konigsberg testified that he did not believe in the violent overthrow of the government and that he had never knowingly been a member of any organization which advocated such action, but he declined to answer any question pertaining to membership in the Communist Party.

For the Court, Justice Harlan began by asserting that freedom of speech and association were not absolutes but were subject to various limitations. Among the limitations, "general regulatory statutes, not intended to control the content of speech but incidentally limiting its unfettered exercise, have not been regarded as the type of law the First or Fourteenth Amendment forbade Congress or the States to pass, when they have been found justified by subordinating valid governmental interests, a prerequisite to constitutionality which has necessarily involved a weighing of the governmental interest involved."[456] The governmental interest involved was the assurance that those admitted to the practice of law were committed to lawful change in society and it was proper for the State to believe that one possessed of "a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form" of government did not meet the standard of fitness.[457] On the other hand, the First Amendment interest was limited because there was "minimal effect upon free association occasioned by compulsory disclosure" under the circumstances. "There is here no likelihood that deterrence of association may result from foreseeable private action . . . for bar committee interrogations such as this are conducted in private....

Nor is there the possibility that the State may be afforded the opportunity for imposing undetectable arbitrary consequences upon protected association . . . for a bar applicant's exclusion by reason of Communist Party membership is subject to judicial review, including ultimate review by this Court, should it appear that such exclusion has rested on substantive or procedural factors that do not comport with the Federal Constitution."[458]

Balancing was used to sustain congressional and state inquiries into the associations and activities of individuals in connection with allegations of subversion[459] and to sustain proceedings against the Communist Party and its members.[460] In certain other cases, involving state attempts to compel the production of membership lists of the National Association for the Advancement of Colored People and to investigate that organization, use of the balancing test resulted in a finding that speech and associational rights outweighed the governmental interest claimed.[461] The Court used a balancing test in the late 1960s to protect the speech rights of a public employee who had criticized his employers.[462] Balancing, however, was not used when the Court struck down restrictions on receipt of materials mailed from Communist countries,[463] and it was not used in cases involving picketing, pamphleteering, and demonstrating in public places.[464] But the only case in which it was specifically rejected involved a statutory regulation like those that had given rise to the test in the first place. United States v. Robel[465] held invalid under the First Amendment a statute which made it unlawful for any member of an organization which the Subversive Activities Control Board had ordered to register to work in a defense establishment.[466] Although Chief Justice Warren for the Court asserted that the vice of the law was that its proscription operated per se "without any need to establish that an individual's association poses the threat feared by the Government in proscribing it,"[467] the rationale of the decision was not clear and present danger but the existence of less restrictive means by which the governmental interest could be accomplished.[468] In a concluding footnote, the Court said: "It has been suggested that this case should be decided by 'balancing' the governmental interests . . . against the First Amendment rights asserted by the appellee. This we decline to do. We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed. Faced with a clear conflict between a federal statute enacted in the interests of national security and an individual's exercise of his First Amendment rights, we have confined our analysis to whether Congress has adopted a constitutional means in achieving its concededly legitimate legislative goal. In making this determination we have found it necessary to measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment. But we have in no way 'balanced' those respective interests. We have ruled only that the Constitution requires that the conflict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict."[469]

The "Absolutist" View of the First Amendment, With a Note on "Preferred Position"

During much of this period, the opposition to the balancing test was led by Justices Black and Douglas, who espoused what may be called an "absolutist" position, denying the government any power to abridge speech. But the beginnings of such a philosophy may be gleaned in much earlier cases in which a rule of decision based on a preference for First Amendment liberties was prescribed. Thus, Chief Justice Stone in his famous Carolene Products "footnote 4" suggested that the ordinary presumption of constitutionality that prevailed when economic regulation was in issue might very well be reversed when legislation that restricted "those political processes which can ordinarily be expected to bring about repeal of undesirable legislation" is called into question.[470] Then in Murdock v. Pennsylvania,[471] in striking down a license tax on religious colporteurs, the Court remarked that "[f]reedom of press, freedom of speech, freedom of religion are in a preferred position." Two years later the Court indicated that its decision with regard to the constitutionality of legislation regulating individuals is "delicate . . . [especially] where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment.... That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions."[472] The "preferred-position" language was sharply attacked by Justice Frankfurter in Kovacs v. Cooper,[473] and it dropped from the opinions, although its philosophy did not.

Justice Black expressed his position in many cases but his Konigsberg dissent contains one of the lengthiest and clearest expositions of it.[474] That a particular governmental regulation abridged speech or deterred it was to him "sufficient to render the action of the State unconstitutional" because he did not subscribe "to the doctrine that permits constitutionally protected rights to be 'balanced' away whenever a majority of this Court thinks that a State might have an interest sufficient to justify abridgment of those freedoms . . . I believe that the First Amendment's unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the 'balancing' that was to be done in this field."[475] As he elsewhere wrote: "First Amendment rights are beyond abridgment either by legislation that directly restrains their exercise or by suppression or impairment through harassment, humiliation, or exposure by government."[476] But the "First and Fourteenth Amendments . . . take away from government, state and federal, all power to restrict freedom of speech, press and assembly where people have a right to be for such purpose. This does not mean however, that these amendments also grant a constitutional right to engage in the conduct of picketing or patrolling whether on publicly owned streets or on privately owned property."[477] Thus, in his last years on the Court, the Justice, while maintaining an "absolutist" position, increasingly drew a line between "speech" and "conduct which involved communication."[478]

Of Other Tests and Standards: Vagueness, Overbreadth, Least Restrictive Means, and Others

In addition to the foregoing tests, the Court has developed certain standards that are exclusively or primarily applicable in First Amendment litigation. Some of these, such as the doctrines prevalent in the libel and obscenity areas, are very specialized, but others are not. Vagueness is a due process vice which can be brought into play with regard to any criminal and many civil statutes,[479] but as applied in areas respecting expression it also encompasses concern that protected conduct will be deterred out of fear that the statute is capable of application to it. Vagueness has been the basis for voiding numerous such laws, especially in the fields of loyalty oaths,[480] obscenity and indecency,[481] and restrictions on public demonstrations.[482] It is usually combined with the overbreadth doctrine, which focuses on the need for precision in drafting a statute that may affect First Amendment rights;[483] an overbroad statute that sweeps under its coverage both protected and unprotected speech and conduct will normally be struck down as facially invalid, although in a non-First Amendment situation the Court would simply void its application to protected conduct.[484] But, even in a First Amendment situation, the Court has written, "there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct. To ensure that these costs do now swallow the social benefits of declaring a law 'overbroad,' we have insisted that a law's application to protected speech be 'substantial,' not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications, before applying the 'strong medicine' of overbreadth invalidation. . .. Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating)." [4]

Closely related at least to the overbreadth doctrine, the Court has insisted that when the government seeks to carry out a permissible goal and it has available a variety of effective means to do so, "[i]f the First Amendment means anything, it means that regulating speech must be a last-not first-resort." [5] Thus, when the Court applies "strict scrutiny" to a content-based regulation of fully protected speech, it requires that the regulation be "the least restrictive means to further the articulated interest." [6] Similarly, the Court requires "narrow tailoring" even of restrictions to which it does not apply strict scrutiny. Thus, in the case of restrictions that are not content-based (time, place, or manner restrictions; incidental restrictions); or in the case of restrictions of speech to which the Court accords less than full First Amendment protection (campaign contributions and other freedoms of association; commercial speech), though the Court does not require that the government use the least restrictive means available to accomplish its end, it does require that the regulation not restrict speech unreasonably.[7] The Court uses tests closely related to one another in these instances in which it does not apply strict scrutiny. It has indicated that the test for determining the constitutionality of an incidental restriction on speech "in the last analysis is little, if any, different from the standard applied to time, place, or manner restrictions," [8]and that "the validity of time, place, or manner restrictions is determined under standards very similar to those applicable in the commercial speech context." [9]

Also, except apparently when the government seeks to deny minors access to sexually explicit material, the Supreme Court, even when applying less than strict scrutiny, requires that, "[w]hen the Government defends a regulation on speech as a means to redress past harms or prevent anticipated harms, it must do more than simply 'posit the existence of the disease sought to be cured.' It must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way." [10]

Trustees v. Fox, 492 U.S. 469 , 480 (1989) (commercial speech restrictions need not be "absolutely the least severe that will achieve the desired end," but must exhibit "a 'fit between the legislature's ends and the means chosen to accomplish those ends,'-a fit that is not necessarily perfect, but reasonable . . ."). But see Thompson v. Western States Medical Center, 535 U. S. 357 , 371 (2002) (commercial speech restriction struck down as "more extensive than necessary to serve" the government's interests).

Action for Children's Television v. FCC, 58 F.3d 654, 662 (D.C. Cir. 1995) (en banc), cert. denied, 516 U.S. 1043 (1996). A dissenting opinion complained that "[t]here is not one iota of evidence in the record . . . to support the claim that exposure to indecency is harmful-indeed, the nature of the alleged 'harm' is never explained." Id. at 671 (Edwards, C.J., dissenting).

Is There a Present Test?

Complexities inherent in the myriad varieties of expression encompassed by the First Amendment guarantees of speech, press, and assembly probably preclude any single standard. For certain forms of expression for which protection is claimed, the Court engages in "definitional balancing" to determine that those forms are outside the range of protection.[487] Balancing is in evidence to enable the Court to determine whether certain covered speech is entitled to protection in the particular context in which the question arises.[488] Use of vagueness, over-breadth, and less intrusive means may very well operate to reduce the occasions when questions of protection must be answered squarely on the merits. What is observable, however, is the re-emergence, at least in a tentative fashion, of something like the clear and present danger standard in advocacy cases, which is the context in which it was first developed. Thus, in Brandenburg v.

Ohio,[489] a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terrorist means to achieve political change was reversed. The prevailing doctrine developed in the Communist Party cases was that "mere" advocacy was protected but that a call for concrete, forcible action even far in the future was not protected speech and knowing membership in an organization calling for such action was not protected association, regardless of the probability of success.[490] In Brandenburg, however, the Court reformulated these and other rulings to mean "that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."[491] The Court has not revisited these issues since Brandenburg, so the long-term significance of the decision is yet to be determined.[492]

Freedom of Belief

The First Amendment does not expressly speak in terms of liberty to hold such beliefs as one chooses, but in both the religion and the expression clauses, it is clear, liberty of belief is the foundation of the liberty to practice what religion one chooses and to express oneself as one chooses.[493] "If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."[494] Speaking in the context of religious freedom, the Court at one point said that, while the freedom to act on one's beliefs could be limited, the freedom to believe what one will "is absolute."[495] But matters are not so simple.

Flag Salute Cases

That government generally may not compel a person to affirm a belief is the principle of the second Flag Salute Case.[496] In Minersville School District v.

Gobitis,[497] the Court upheld the power of the State to expel from its schools certain children, Jehovah's Witnesses, who refused upon religious grounds to join in a flag salute ceremony and recitation of the pledge of allegiance. "Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs."[498]But three years later, a six-to-three majority of the Court reversed itself.[499] Justice Jackson for the Court chose to ignore the religious argument and to ground the decision upon freedom of speech. The state policy, he said, constituted "a compulsion of students to declare a belief.... It requires the individual to communicate by word and sign his acceptance of the political ideas [the flag] bespeaks."[500] But the power of a State to follow a policy that "requires affirmation of a belief and an attitude of mind" is limited by the First Amendment, which, under the standard then prevailing, required the State to prove that the act of the students in remaining passive during the ritual "creates a clear and present danger that would justify an effort even to muffle expression."[501]

However, the principle of Barnette does not extend so far as to bar government from requiring of its employees or of persons seeking professional licensing or other benefits an oath generally but not precisely based on the oath required of federal officers, which is set out in the Constitution, that the taker of the oath will uphold and defend the Constitution.[502]It is not at all clear, however, to what degree the government is limited in probing the sincerity of the person taking the oath.[503]

Imposition of Consequences for Holding Certain Beliefs

Despite the Cantwell dictum that freedom of belief is absolute,[504] government has been permitted to inquire into the holding of certain beliefs and to impose consequences on the believers, primarily with regard to its own employees and to licensing certain professions.[505] It is not clear what precise limitations the Court has placed on these practices.

In its disposition of one of the first cases concerning the federal loyalty-security program, the Court of Appeals for the District of Columbia asserted broadly that "so far as the Constitution is concerned there is no prohibition against dismissal of Government employees because of their political beliefs, activities or affiliations."[506] On appeal, this decision was affirmed by an equally divided Court, it being impossible to determine whether this issue was one treated by the Justices.[507] Thereafter, the Court dealt with the loyalty-security program in several narrow decisions not confronting the issue of denial or termination of employment because of beliefs or "beliefs plus." But the same issue was also before the Court in related fields. In American Communications Ass'n v. Douds,[508] the Court was again evenly divided over a requirement that, in order for a union to have access to the NLRB, each of its officers must file an affidavit that he neither believed in, nor belonged to an organization that believed in, the overthrow of government by force or by illegal means. Chief Justice Vinson thought the requirement reasonable because it did not prevent anyone from believing what he chose but only prevented certain people from being officers of unions, and because Congress could reasonably conclude that a person with such beliefs was likely to engage in political strikes and other conduct that Congress could prevent.[509] Dissenting, Justice Frankfurter thought the provision too vague,[510] Justice Jackson thought that Congress could impose no disqualification upon anyone for an opinion or belief that had not manifested itself in any overt act,[511] and Justice Black thought that government had no power to penalize beliefs in any way.[512] Finally, in Konigsberg v. State Bar of California,[513] a majority of the Court supported dictum in Justice Harlan's opinion in which he justified some inquiry into beliefs, saying that "[i]t would indeed be difficult to argue that a belief, firm enough to be carried over into advocacy, in the use of illegal means to change the form of the State or Federal Government is an unimportant consideration in determining the fitness of applicants for membership in a profession in whose hands so largely lies the safekeeping of this country's legal and political institutions."

When the same issue returned to the Court years later, three five-to-four decisions left the principles involved unclear.[514] Four Justices endorsed the view that beliefs could not be inquired into as a basis for determining qualifications for admission to the bar;[515] four Justices endorsed the view that while mere beliefs might not be sufficient grounds to debar one from admission, the States were not precluded from inquiring into them for purposes of determining whether one was prepared to advocate violent overthrow of the government and to act on his beliefs.[516] The decisive vote in each case was cast by a single Justice who would not permit denial of admission based on beliefs alone but would permit inquiry into those beliefs to an unspecified extent for purposes of determining that the required oath to uphold and defend the Constitution could be taken in good faith.[517] Changes in Court personnel following this decision would seem to leave the questions presented open to further litigation.

Right of Association

"It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the 'liberty' assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny."[518] It would appear from the Court's opinions that the right of association is derivative from the First Amendment guarantees of speech, assembly, and petition,[519] although it has at times seemingly been referred to as a separate, independent freedom protected by the First Amendment.[520] The doctrine is a fairly recent construction, the problems associated with it having previously arisen primarily in the context of loyalty-security investigations of Communist Party membership, and these cases having been resolved without giving rise to any separate theory of association.[521]

Freedom of association as a concept thus grew out of a series of cases in the 1950s and 1960s in which certain States were attempting to curb the activities of the National Association for the Advancement of Colored People. In the first case, the Court unanimously set aside a contempt citation imposed after the organization refused to comply with a court order to produce a list of its members within the State. "Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly."[522] "[T]hese indispensable liberties, whether of speech, press, or association,"[523] may be abridged by governmental action either directly or indirectly, wrote Justice Harlan, and the State had failed to demonstrate a need for the lists which would outweigh the harm to associational rights which disclosure would produce.

Applying the concept in subsequent cases, the Court again held in Bates v. City of Little Rock,[524] that the disclosure of membership lists, because of the harm to be caused to "the right of association," could only be compelled upon a showing of a subordinating interest; ruled in Shelton v. Tucker,[525] that while a State had a broad interest to inquire into the fitness of its school teachers, that interest did not justify a regulation requiring all teachers to list all organizations to which they had belonged within the previous five years; again struck down an effort to compel membership lists from the NAACP;[526] and overturned a state court order barring the NAACP from doing any business within the State because of alleged improprieties.[527] Certain of the activities condemned in the latter case, the Court said, were protected by the First Amendment and, while other actions might not have been, the State could not so infringe on the "right of association" by ousting the organization altogether.[528]

A state order prohibiting the NAACP from urging persons to seek legal redress for alleged wrongs and from assisting and representing such persons in litigation opened up new avenues when the Court struck the order down as violating the First Amendment.[529] "[A] bstract discussion is not the only species of communication which the Constitution protects; the First Amendment also protects vigorous advocacy, certainly of lawful ends, against governmental intrusion.... In the context of NAACP objectives, litigation is not a technique of resolving private differences; it is a means for achieving the lawful objectives of equality of treatment by all government, federal, state and local, for the members of the Negro community in this country. It is thus a form of political expression...."

"We need not, in order to find constitutional protection for the kind of cooperative, organizational activity disclosed by this record, whereby Negroes seek through lawful means to achieve legitimate political ends, subsume such activity under a narrow, literal conception of freedom of speech, petition or assembly. For there is no longer any doubt that the First and Fourteenth Amendments protect certain forms of orderly group activity."[530]This decision was followed in three cases in which the Court held that labor unions enjoyed First Amendment protection in assisting their members in pursuing their legal remedies to recover for injuries and other actions. In the first case, the union advised members to seek legal advice before settling injury claims and recommended particular attorneys;[531] in the second the union retained attorneys on a salaried basis to represent members;[532] in the third, the union recommended certain attorneys whose fee would not exceed a specified percentage of the recovery.[533] Wrote Justice Black: "[T]he First Amendment guarantees of free speech, petition, and assembly give railroad workers the rights to cooperate in helping and advising one another in asserting their rights...."[534]

Thus, a right to associate together to further political and social views is protected against unreasonable burdening,[535] but the evolution of this right in recent years has passed far beyond the relatively narrow contexts in which it was given birth.

Social contacts that fall short of organization or association to "engage in speech" may be unprotected, however. In holding that a state may restrict admission to certain licensed dance halls to persons between the ages of 14 and 18, the Court declared that there is no "generalized right of 'social association' that includes chance encounters in dance halls."[536]

In a series of three decisions, the Court explored the extent to which associational rights may be burdened by nondiscrimination requirements. First, Roberts v. United States Jaycees[537] upheld application of the Minnesota Human Rights Act to prohibit the United States Jaycees from excluding women from full membership. Three years later in Board of Directors of Rotary Int'l v. Rotary Club of Duarte,[538] the Court applied Roberts in upholding application of a similar California law to prevent Rotary International from excluding women from membership. Then, in New York State Club Ass'n v. New York City,[539] the Court upheld against facial challenge New York City's Human Rights Law, which prohibits race, creed, sex, and other discrimination in places "of public accommodation, resort, or amusement," and applies to clubs of more than 400 members providing regular meal service and supported by nonmembers for trade or business purposes. In Roberts, both the Jaycees' nearly indiscriminate membership requirements and the State's compelling interest in prohibiting discrimination against women were important to the Court's analysis. On the one hand, the Court found, "the local chapters of the Jaycees are large and basically unselective groups," age and sex being the only established membership criteria in organizations otherwise entirely open to public participation. The Jaycees, therefore, "lack the distinctive characteristics [e.g., small size, identifiable purpose, selectivity in membership, perhaps seclusion from the public eye] that might afford constitutional protection to the decision of its members to exclude women."[540] Similarly, the Court determined in Rotary International that Rotary Clubs, designed as community service organizations representing a cross section of business and professional occupations, also do not represent "the kind of intimate or private relation that warrants constitutional protection."[541] And in the New York City case, the fact that the ordinance certainly could be constitutionally applied at least to some of the large clubs, under [the] decisions in Rotary and Roberts, the applicability criteria "pinpointing organizations which are 'commercial' in nature," helped to defeat the facial challenge.[542]

Some amount of First Amendment protection is still due such organizations; the Jaycees and its members had taken public positions on a number of issues, and had engaged in "a variety of civic, charitable, lobbying, fundraising and other activities worthy of constitutional protection." However, the Roberts Court could find "no basis in the record for concluding that admission of women as full voting members will impede the organization's ability to engage in these protected activities or to disseminate its preferred views."[543] Moreover, the State had a "compelling interest to prevent . . . acts of invidious discrimination in the distribution of publicly available goods, services, and other advantages."[544]

Because of the near-public nature of the Jaycees and Rotary Clubs-the Court in Roberts likening the situation to a large business attempting to discriminate in hiring or in selection of customers-the cases may be limited in application, and should not be read as governing membership discrimination by private social clubs.[545] In New York City, the Court noted that "opportunities for individual associations to contest the constitutionality of the Law as it may be applied against them are adequate to assure that any overbreadth . . . will be curable through case-by-case analysis of specific facts."[546]

When application of a public accommodations law was viewed as impinging on an organization's ability to present its message, the Court found a First Amendment violation. Massachusetts could not require the private organizers of Boston's St. Patrick's Day parade to allow a group of gays and lesbians to march as a unit proclaiming its members' gay and lesbian identity, the Court held in Hurley v. Irish-American Gay Group.[547] To do so would require parade organizers to promote a message they did not wish to promote. The Roberts and New York City cases were distinguished as not involving "a trespass on the organization's message itself."[548] Those cases stood for the proposition that the state could require equal access for individuals to what was considered the public benefit of organization membership. But even if individual access to the parade might similarly be mandated, the Court reasoned, the gay group "could nonetheless be refused admission as an expressive contingent with its own message just as readily as a private club could exclude an applicant whose manifest views were at odds with a position taken by the club's existing members."[549]

In Boy Scouts of America v. Dale,[550] the Court held that application of New Jersey's public accommodations law to require the Boy Scouts of America to admit an avowed homosexual as an adult member violated the organization's "First Amendment right of expressive association."[551] Citing Hurley, the Court held that "[t]he forced inclusion of an unwanted person in a group infringes the group's freedom of expressive association if the presence of that person affects in a significant way the group's ability to advocate public or private viewpoints."[552] The Boy Scouts, the Court found, engages in expressive activity in seeking to transmit a system of values, which include being "morally straight" and "clean."[553] The Court "accept[ed] the Boy Scouts' assertion" that the organization teaches that homosexual conduct is not morally straight.[554] The Court also gave "deference to [the] association's view of what would impair its expression."[555] Allowing a gay rights activist to serve in the Scouts would "force the organization to send a message . . . that the Boy Scouts accepts homosexual conduct as a legitimate form of behavior."[556]

Political Association

The major expansion of the right of association has occurred in the area of political rights. "There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of 'orderly group activity' protected by the First and Fourteenth Amendments.... The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom."[557] Usually in combination with an equal protection analysis, the Court since Williams v. Rhodes[558] has passed on numerous state restrictions that have an impact upon the ability of individuals or groups to join one or the other of the major parties or to form and join an independent political party to further political, social and economic goals.[559] Of course, the right is not absolute. The Court has recognized that there must be substantial state regulation of the election process which necessarily will work a diminution of the individual's right to vote and to join with others for political purposes. The validity of governmental regulation must be determined by assessing the degree of infringement of the right of association against the legitimacy, strength, and necessity of the governmental interests and the means of implementing those interests.[560] Many restrictions upon political association have survived this sometimes exacting standard of review, in large measure upon the basis of some of the governmental interests found compelling.[561]

A significant extension of First Amendment association rights in the political context occurred when the Court curtailed the already limited political patronage system. At first holding that a nonpolicy-making, nonconfidential government employee cannot be discharged from a job that he is satisfactorily performing upon the sole ground of his political beliefs or affiliations,[562] the Court subsequently held that "the question is whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved."[563] The concept of policymaking, confidential positions was abandoned, the Court noting that some such positions would nonetheless be protected whereas some people filling positions not reached by the description would not be.[564] The opinion of the Court makes difficult an evaluation of the ramifications of the decision, but it seems clear that a majority of the Justices adhere to a doctrine of broad associational political freedom that will have substantial implications for governmental employment. Refusing to confine Elrod and Branti to their facts, the court in Rutan v. Republican Party of Illinois[565] held that restrictions on patronage apply not only to dismissal or its substantial equivalent, but also to promotion, transfer, recall after layoffs, and hiring of low-level public employees. In 1996 the Court extended Elrod and Branti to protect independent government contractors.[566]

The protected right of association extends as well to coverage of party principles, enabling a political party to assert against some state regulation an overriding interest sufficient to overcome the legitimate interests of the governing body. Thus, a Wisconsin law that mandated an open primary election, with party delegates bound to support at the national convention the wishes of the voters expressed in that primary election, while legitimate and valid in and of itself, had to yield to a national party rule providing for the acceptance of delegates chosen only in an election limited to those voters who affiliated with the party.[567]

Provisions of the Federal Election Campaign Act requiring the reporting and disclosure of contributions and expenditures to and by political organizations, including the maintenance by such organizations of records of everyone contributing more than $10 and the reporting by individuals and groups that are not candidates or political committees who contribute or expend more than $100 a year for the purpose of advocating the election or defeat of an identified candidate, were sustained.[568] "[C]ompelled disclosure, in itself, can seriously infringe on privacy of association and belief guaranteed by the First Amendment.... We long have recognized the significant encroachments on First Amendment rights of the sort that compelled disclosure imposes cannot be justified by a mere showing of some legitimate governmental interest.... We have required that the subordinating interests of the State must survive exacting scrutiny. We have also insisted that there be a 'relevant correlation' or 'substantial relation' between the governmental interest and the information required to be disclosed."[569] The governmental interests effectuated by these requirements providing the electorate with information, deterring corruption and the appearance of corruption, and gathering data necessary to detect violations-were found to be of sufficient magnitude to be validated even though they might incidentally deter some persons from contributing.[570] A claim that contributions to minor parties and independents should have a blanket exemption from disclosure was rejected inasmuch as an injury was highly speculative; but any such party making a showing of a reasonable probability that compelled disclosure of contributors' names would subject them to threats or reprisals could obtain an exemption from the courts.[571] The Buckley Court also narrowly construed the requirement of reporting independent contributions and expenditures in order to avoid constitutional problems.[572]

Conflict Between Organization and Members

It is to be expected that disputes will arise between an organization and some of its members, and that First Amendment principles may be implicated. Of course, unless there is some governmental connection, there will be no federal constitutional application to any such controversy.[573] But at least in some instances, when government compels membership in an organization or in some manner lends its authority to such compulsion, there may well be constitutional limitations. Disputes implicating such limitations can arise in connection with union shop labor agreements permissible under the National Labor Relations Act and the Railway Labor Act.[574]

Initially, the Court avoided constitutional issues in resolving a challenge by union shop employees to use of their dues money for political causes. Acknowledging "the utmost gravity" of the constitutional issues, the Court determined that Congress had intended that dues money obtained through union shop agreements should be used only to support collective bargaining and not in support of other causes.[575] Justices Black and Douglas, in separate opinions, would have held that Congress could not constitutionally provide for compulsory membership in an organization which could exact from members money which the organization would then spend on causes which the members opposed; Justices Frankfurter and Harlan, also reaching the constitutional issue, would have held that the First Amendment was not violated when government did not compel membership but merely permitted private parties to enter into such agreements and that in any event so long as members were free to espouse their own political views the use by a union of dues money to support political causes which some members opposed did not violate the First Amendment.[576]

In Abood v. Detroit Bd. of Education,[577] the Court applied Hanson and Street to the public employment context. Recognizing that employee associational rights were clearly restricted by any system of compelled support, because the employees had a right not to associate, not to support, the Court nonetheless found the governmental interests served by the agency shop provision-the promotion of labor peace and stability of employer-employee relations -to be of overriding importance and to justify the impact upon employee freedom.[578] But a different balance was drawn when the Court considered whether employees compelled to support the union were constitutionally entitled to object to the use of those exacted funds to support political candidates or to advance ideological causes not germane to the union's duties as collective-bargaining representative. To compel one to expend funds in such a way is to violate his freedom of belief and the right to act on those beliefs just as much as if government prohibited him from acting to further his own beliefs.[579] However, the remedy was not to restrain the union from making non-collective bargaining related expenditures but to require that those funds come only from employees who do not object. Therefore, the lower courts were directed to oversee development of a system whereby employees could object generally to such use of union funds and could obtain either a proportionate refund or reduction of future exactions.[580] Later, the Court further tightened the requirements. A proportionate refund is inadequate because "even then the union obtains an involuntary loan for purposes to which the employee objects;"[581] an advance reduction of dues corrects the problem only if accompanied by sufficient information by which employees may gauge the propriety of the union's fee.[582] Therefore, the union procedure must also "provide for a reasonably prompt decision by an impartial decision-maker."[583]

On a related matter, the Court held that a labor relations body could not prevent a union member or employee represented exclusively by a union from speaking out at a public meeting on an issue of public concern, simply because the issue was a subject of collective bargaining between the union and the employer.[584]

Maintenance of National Security and the First Amendment

Preservation of the security of the Nation from its enemies, foreign and domestic, is the obligation of government and one of the foremost reasons for government to exist. Pursuit of this goal may lead government officials at times to trespass in areas protected by the guarantees of speech and press and may require the balancing away of rights which might be preserved inviolate at other times. The drawing of the line is committed, not exclusively but finally, to the Supreme Court. In this section, we consider a number of areas in which the necessity to draw lines has arisen.

Punishment of Advocacy

Criminal punishment for the advocacy of illegal or of merely unpopular goals and of ideas did not originate in the United States in the post-World War II concern with Communism. Enactment of and prosecutions under the Sedition Act of 1798[585] and prosecutions under the federal espionage laws[586] and state sedition and criminal syndicalism laws[587] in the 1920s and early 1930s have been alluded to earlier.[588]But it was in the 1950s and the 1960s that the Supreme Court confronted First Amendment concepts fully in determining the degree to which government could proceed against persons and organizations which it believed were plotting and conspiring both to advocate the overthrow of government and to accomplish that goal.

The Smith Act of 1940[589] made it a criminal offense for anyone to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the Government of the United States or of any State by force or violence, or for anyone to organize any association which teaches, advises, or encourages such an overthrow, or for anyone to become a member of or to affiliate with any such association. No case involving prosecution under this law was reviewed by the Supreme Court until in Dennis v. United States[590] it considered the convictions of eleven Communist Party leaders on charges of conspiracy to violate the advocacy and organizing sections of the statute. Chief Justice Vinson's plurality opinion for the Court applied a revised clear and present danger test[591] and concluded that the evil sought to be prevented was serious enough to justify suppression of speech. "If, then, this interest may be protected, the literal problem which is presented is what has been meant by the use of the phrase 'clear and present danger' of the utterances bringing about the evil within the power of Congress to punish. Obviously, the words cannot mean that before the Government may act, it must wait until the putsch is about to be executed, the plans have been laid and the signal is awaited. If Government is aware that a group aiming at its overthrow is attempting to indoctrinate its members and to commit them to a course whereby they will strike when the leaders feel the circumstances permit, action by the Government is required."[592] "The mere fact that from the period 1945 to 1948 petitioners' activities did not result in an attempt to overthrow the Government by force and violence is of course no answer to the fact that there was a group that was ready to make the attempt. The formation by petitioners of such a highly organized conspiracy, with rigidly disciplined members subject to call when the leaders, these petitioners, felt that the time had come for action, coupled with the inflammable nature of world conditions, similar uprisings in other countries, and the touch-and-go nature of our relations with countries with whom petitioners were in the very least ideologically attuned, convince us that their convictions were justified on this score."[593]

Justice Frankfurter in concurrence developed a balancing test, which, however, he deferred to the congressional judgment in applying, concluding that "there is ample justification for a legislative judgment that the conspiracy now before us is a substantial threat to national order and security."[594] Justice Jackson's concurrence was based on his reading of the case as involving "a conviction of conspiracy, after a trial for conspiracy, on an indictment charging conspiracy, brought under a statute outlawing conspiracy." Here the Government was dealing with "permanently organized, well-financed, semi-secret, and highly disciplined organizations" plotting to overthrow the Government; under the First Amendment "it is not forbidden to put down force and violence, it is not forbidden to punish its teaching or advocacy, and the end being punishable, there is no doubt of the power to punish conspiracy for the purpose."[595] Justices Black and Douglas dissented separately, the former viewing the Smith Act as an invalid prior restraint and calling for reversal of the convictions for lack of a clear and present danger, the latter applying the Holmes-Brandeis formula of clear and present danger to conclude that "[t]o believe that petitioners and their following are placed in such critical positions as to endanger the Nation is to believe the incredible."[596]

In Yates v. United States,[597] the convictions of several second-string Communist Party leaders were set aside, a number ordered acquitted, and others remanded for retrial. The decision was based upon construction of the statute and appraisal of the evidence rather than on First Amendment claims, although each prong of the ruling seems to have been informed with First Amendment considerations. Thus, Justice Harlan for the Court wrote that the trial judge had given faulty instructions to the jury in advising that all advocacy and teaching of forcible overthrow was punishable, whether it was language of incitement or not, so long as it was done with an intent to accomplish that purpose. But the statute, the Justice continued, prohibited "advocacy of action," not merely "advocacy in the realm of ideas." "The essential distinction is that those to whom the advocacy is addressed must be urged to do something, now or in the future, rather than merely to believe in something."[598]Second, the Court found the evidence insufficient to establish that the Communist Party had engaged in the required advocacy of action, requiring the Government to prove such advocacy in each instance rather than presenting evidence generally about the Party. Additionally, the Court found the evidence insufficient to link five of the defendants to advocacy of action, but sufficient with regard to the other nine.[599]

Compelled Registration of Communist Party

The Internal Security Act of 1950 provided for a comprehensive regulatory scheme by which "Communist-action organizations" and "Communist-front organizations" could be curbed.[600] Organizations found to fall within one or the other of these designations were required to register and to provide for public inspection membership lists, accountings of all money received and expended, and listings of all printing presses and duplicating machines; members of organizations which failed to register were required to register and members were subject to comprehensive restrictions and criminal sanctions. After a lengthy series of proceedings, a challenge to the registration provisions reached the Supreme Court, which sustained the constitutionality of the section under the First Amendment, only Justice Black dissenting on this ground.[601] Employing the balancing test, Justice Frankfurter for himself and four other Justices concluded that the threat to national security posed by the Communist conspiracy outweighed considerations of individual liberty, the impact of the registration provision in this area in any event being limited to whatever "public opprobrium and obloquy" might attach.[602] Three Justices based their conclusion on the premise that the Communist Party was an anti-democratic, secret organization, subservient to a foreign power, and utilizing speech-plus in attempting to achieve its ends and was therefore subject to extensive governmental regulation.[603]

Punishment for Membership in an Organization That Engages in Proscribed Advocacy

-The Smith Act provision making it a crime to organize or become a member of an organization that teaches, advocates, or encourages the overthrow of government by force or violence was used by the Government against Communist Party members. In Scales v. United States,[604] the Court affirmed a conviction under this section and held it constitutional against First Amendment attack. Advocacy such as the Communist Party engaged in, Justice Harlan wrote for the Court, was unprotected under Dennis, and he could see no reason why membership that constituted a purposeful form of complicity in a group engaging in such advocacy should be a protected form of association. Of course, "[i]f there were a similar blanket prohibition of association with a group having both legal and illegal aims, there would indeed be a real danger that legitimate political expression or association would be impaired, but . . . [t]he clause does not make criminal all association with an organization which has been shown to engage in illegal advocacy." Only an "active" member of the Party-one who with knowledge of the proscribed advocacy intends to accomplish the aims of the organization-was to be punished, the Court said, not a "nominal, passive, inactive or purely technical" member.[605]

Disabilities Attaching to Membership in Proscribed Organizations

The consequences of being or becoming a member of a proscribed organization can be severe. Aliens are subject to deportation for such membership.[606] Congress made it unlawful for any member of an organization required to register as a "Communist-action" or a "Communist-front" organization to apply for a passport or to use a passport.[607] A now-repealed statute required as a condition of access to NLRB processes by any union that each of its officers must file affidavits that he was not a member of the Communist Party or affiliated with it.[608] The Court has sustained state bar associations in their efforts to probe into applicants' membership in the Communist Party in order to determine whether there was knowing membership on the part of one sharing a specific intent to further the illegal goals of the organization.[609] A section of the Communist Control Act of 1954 was designed to keep the Communist Party off the ballot in all elections.[610] The most recent interpretation of this type of disability is United States v. Robel,[611] in which the Court held unconstitutional under the First Amendment a section of the Internal Security Act that made it unlawful for any member of an organization compelled to register as a "Communist-action" or "Communist-front" organization to work thereafter in any defense facility. For the Court, Chief Justice Warren wrote that a statute that so infringed upon freedom of association must be much more narrowly drawn to take precise account of the evils at which it permissibly could be aimed. One could be disqualified from holding sensitive positions on the basis of active, knowing membership with a specific intent to further the unlawful goals of an organization, but that membership that was passive or inactive, or by a person unaware of the organization's unlawful aims, or by one who disagreed with those aims, could not be grounds for disqualification, certainly not for a non-sensitive position.[612]

A somewhat different matter is disqualifying a person for public benefits of some sort because of membership in a proscribed organization or because of some other basis ascribable to doubts about his loyalty. The First Amendment was raised only in dissent when in Flemming v. Nestor[613] the Court sustained a statute that required the termination of Social Security old-age benefits to an alien who was deported on grounds of membership in the Communist Party. Proceeding on the basis that no one was "entitled" to Social Security benefits, Justice Harlan for the Court concluded that a rational justification for the law might be the deportee's inability to aid the domestic economy by spending the benefits locally, although a passage in the opinion could be read to suggest that termination was permissible because alien Communists are undeserving of benefits.[614] Of considerable significance in First Amendment jurisprudence is Speiser v. Randall,[615] in which the Court struck down a state scheme for denying veterans' property tax exemptions to "disloyal" persons. The system, as interpreted by the state courts, denied the exemption only to persons who engaged in speech that could be criminally punished consistently with the First Amendment, but the Court found the vice of the provision to be that after each claimant had executed an oath disclaiming his engagement in unlawful speech, the tax assessor could disbelieve the oath taker and deny the exemption, thus placing on the claimant the burden of proving that he was loyal. "The vice of the present procedure is that, where particular speech falls close to the line separating the lawful and the unlawful, the possibility of mistaken fact-finding-inherent in all litigation-will create the danger that the legitimate utterance will be penalized. The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens .... In practical operation, therefore, this procedural device must necessarily produce a result which the State could not command directly. It can only result in a deterrence of speech which the Constitution makes free."[616]

Employment Restrictions and Loyalty Oaths

An area in which significant First Amendment issues are often raised is the establishment of loyalty-security standards for government employees. Such programs generally take one of two forms or may combine the two. First, government may establish a system investigating employees or prospective employees under standards relating to presumed loyalty. Second, government may require its employees or prospective employees to subscribe to a loyalty oath disclaiming belief in or advocacy of, or membership in an organization that stands for or advocates, unlawful or disloyal action. The Federal Government's security investigation program has been tested numerous times and First Amendment issues raised, but the Supreme Court has never squarely confronted the substantive constitutional issues, and it has not dealt with the loyalty oath features of the federal program.[617] The Court has, however, had a long running encounter with state loyalty oath programs.[618]

First encountered[619] was a loyalty oath for candidates for public office rather than one for public employees. Accepting the state court construction that the law required each candidate to "make oath that he is not a person who is engaged 'in one way or another in the attempt to overthrow the government by force or violence,' and that he is not knowingly a member of an organization engaged in such an attempt," the Court unanimously sustained the provision in a one-paragraph per curiam opinion.[620] Less than two months later, the Court upheld a requirement that employees take an oath that they had not within a prescribed period advised, advocated, or taught the overthrow of government by unlawful means, nor been a member of an organization with similar objectives; every employee was also required to swear that he was not and had not been a member of the Communist Party.[621] For the Court, Justice Clark perceived no problem with the inquiry into Communist Party membership but cautioned that no issue had been raised whether an employee who was or had been a member could be discharged merely for that reason.[622]With regard to the oath, the Court did not discuss First Amendment considerations but stressed that it believed the appropriate authorities would not construe the oath adversely against persons who were innocent of an organization's purpose during their affiliation, or persons who had severed their associations upon knowledge of an organization's purposes, or persons who had been members of an organization at a time when it was not unlawfully engaged.[623] Otherwise, the oath requirement was valid as "a reasonable regulation to protect the municipal service by establishing an employment qualification of loyalty" and as being "reasonably designed to protect the integrity and competency of the service."[624]

In the following Term, the Court sustained a state statute disqualifying for government employment persons who advocated the overthrow of government by force or violence or persons who were members of organizations that so advocated; the statute had been supplemented by a provision applicable to teachers calling for the drawing up of a list of organizations that advocated violent overthrow and making membership in any listed organization prima facie evidence of disqualification.[625] Justice Minton observed that everyone had a right to assemble, speak, think, and believe as he pleased, but had no right to work for the State in its public school system except upon compliance with the State's reasonable terms. "If they do not choose to work on such terms, they are at liberty to retain their beliefs and associations and go elsewhere. Has the State thus deprived them of any right to free speech or assembly? We think not."[626] A State could deny employment based on a person's advocacy of overthrow of the government by force or violence or based on unexplained membership in an organization so advocating with knowledge of the advocacy.[627] With regard to the required list, the Justice observed that the state courts had interpreted the law to provide that a person could rebut the presumption attached to his mere membership.[628]

Invalidated the same year was an oath requirement, addressed to membership in the Communist Party and other proscribed organizations, which the state courts had interpreted to disqualify from employment "solely on the basis of organizational membership." Stressing that membership might be innocent, that one might be unaware of an organization's aims, or that he might have severed a relationship upon learning of its aims, the Court struck the law down; one must be or have been a member with knowledge of illegal aims.[629] But subsequent cases firmly reiterated the power of governmental agencies to inquire into the associational relationships of their employees for purposes of determining fitness and upheld dismissals for refusal to answer relevant questions.[630] In Shelton v. Tucker,[631] however, a five-to-four majority held that, while a State could inquire into the fitness and competence of its teachers, a requirement that every teacher annually list every organization to which he belonged or had belonged in the previous five years was invalid because it was too broad, bore no rational relationship to the State's interests, and had a considerable potential for abuse.

Vagueness was then employed by the Court when loyalty oaths aimed at "subversives" next came before it. Cramp v. Board of Public Instruction[632] unanimously held too vague an oath that required one to swear, inter alia, that "I have not and will not lend my aid, support, advice, counsel or influence to the Communist Party." Similarly, in Baggett v. Bullitt,[633] the Court struck down two oaths, one requiring teachers to swear that they "will by precept and example promote respect for the flag and the institutions of the United States of America and the State of Washington, reverence for law and order and undivided allegiance to the government," and the other requiring all state employees to swear, inter alia, that they would not "aid in the commission of any act intended to overthrow, destroy, or alter or assist in the overthrow, destruction, or alteration" of government. Although couched in vagueness terms, the Court's opinion stressed that the vagueness was compounded by its effect on First Amendment rights and seemed to emphasize that the State could not deny employment to one simply because he unintentionally lent indirect aid to the cause of violent overthrow by engaging in lawful activities that he knew might add to the power of persons supporting illegal overthrow.[634]

More precisely drawn oaths survived vagueness attacks but fell before First Amendment objections in the next three cases. Elfbrandt v. Russell[635] involved an oath that as supplemented would have been violated by one who "knowingly and willfully becomes or remains a member of the communist party . . . or any other organization having for its purposes the overthrow by force or violence of the government" with "knowledge of said unlawful purpose of said organization." The law's blanketing in of "knowing but guiltless" membership was invalid, wrote Justice Douglas for the Court, because one could be a knowing member but not subscribe to the illegal goals of the organization; moreover, it appeared that one must also have participated in the unlawful activities of the organization before public employment could be denied.[636]

Next, in Keyishian v. Board of Regents,[637] the oath provisions sustained in Adler[638] were declared unconstitutional. A number of provisions were voided as vague,[639] but the Court held invalid a new provision making Communist Party membership prima facie evidence of disqualification for employment because the opportunity to rebut the presumption was too limited. It could be rebutted only by denying membership, denying knowledge of advocacy of illegal overthrow, or denying that the organization advocates illegal overthrow. But "legislation which sanctions membership unaccompanied by specific intent to further the unlawful goals of the organization or which is not active membership violates constitutional limitations."[640] Similarly, in Whitehill v. Elkins,[641] an oath was voided because the Court thought it might include within its proscription innocent membership in an organization that advocated illegal overthrow of government.

More recent cases do not illuminate whether membership changes in the Court presage a change in view with regard to the loyalty-oath question. In Connell v. Higginbotham[642] an oath provision reading "that I do not believe in the overthrow of the Government of the United States or of the State of Florida by force or violence" was invalidated because the statute provided for summary dismissal of an employee refusing to take the oath, with no opportunity to explain that refusal. Cole v. Richardson[643] upheld a clause in an oath "that I will oppose the overthrow of the government of the United States of America or of this Commonwealth by force, violence, or by any illegal or unconstitutional method" upon the construction that this clause was mere "repetition, whether for emphasis or cadence," of the first part of the oath, which was a valid "uphold and defend" positive oath.

Legislative Investigations and the First Amendment

The power of inquiry by congressional and state legislative committees in order to develop information as a basis for legislation[644] is subject to some uncertain limitation when the power as exercised results in deterrence or penalization of protected beliefs, associations, and conduct. While the Court initially indicated that it would scrutinize closely such inquiries in order to curb First Amendment infringement,[645] later cases balanced the interests of the legislative bodies in inquiring about both protected and unprotected associations and conduct against what were perceived to be limited restraints upon the speech and association rights of witnesses, and upheld wide-ranging committee investigations.[646] More recently, the Court has placed the balance somewhat differently and required that the investigating agency show "a subordinating interest which is compelling" to justify the restraint on First Amendment rights that the Court found would result from the inquiry.[647] The issues in this field, thus, remain unsettled.

Interference With War Effort

Unlike the dissent to United States participation in World War I, which provoked several prosecutions, the dissent to United States action in Vietnam was subjected to little legal attack. Possibly the most celebrated governmental action, the prosecution of Dr. Spock and four others for conspiring to counsel, aid, and abet persons to evade or to refuse obligations under the Selective Service System, failed to reach the Supreme Court.[648] Aside from a comparatively minor case,[649] the Court's sole encounter with a Vietnam War protest allegedly involving protected "symbolic conduct" was United States v. O'Brien.[650] That case affirmed a conviction and upheld a congressional prohibition against destruction of draft registration certificates; O'Brien had publicly burned his card. "We cannot accept the view that an apparently limitless variety of conduct can be labeled 'speech' whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms."[651] Finding that the Government's interest in having registrants retain their cards at all times was an important one and that the prohibition of destruction of the cards worked no restriction of First Amendment freedoms broader than that needed to serve the interest, the Court upheld the statute. More recently, the Court upheld a "passive enforcement" policy singling out for prosecution for failure to register for the draft those young men who notified authorities of an intention not to register for the draft and those reported by others.[652]

Suppression of Communist Propaganda in the Mails

A 1962 statute authorizing the Post Office Department to retain all mail from abroad which was determined to be "communist political propaganda" and to forward it to an addressee only upon his request was held unconstitutional in Lamont v. Postmaster General.[653] The Court held that to require anyone to request receipt of mail determined to be undesirable by the Government was certain to deter and inhibit the exercise of First Amendment rights to receive information.[654] Distinguishing Lamont, the Court in 1987 upheld statutory classification as "political propaganda" of communications or expressions by or on behalf of foreign governments, foreign "principals," or their agents, and reasonably adapted or intended to influence United States foreign policy.[655] "The physical detention of materials, not their mere designation as 'communist political propaganda,' was the offending element of the statutory scheme [in Lamont]."[656]

Exclusion of Certain Aliens as a First Amendment Problem

While a nonresident alien might be able to present no claim, based on the First Amendment or on any other constitutional provision, to overcome a governmental decision to exclude him from the country, it was arguable that United States citizens who could assert a First Amendment interest in hearing the alien and receiving information from him, such as the right recognized in La-mont, could be able to contest such exclusion.[657] But the Court declined to reach the First Amendment issue and to place it in balance when it found that a governmental refusal to waive a statutory exclusion[658] was on facially legitimate and neutral grounds; the Court's emphasis, however, upon the "plenary" power of Congress over admission or exclusion of aliens seemed to indicate where such a balance might be drawn.[659]

Particular Governmental Regulations That Restrict Expression

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 selecting public officials, it is interested in outlawing "corrupt practices" and promoting a fair and smoothly-functioning electoral process. As regulator of economic affairs, its interests are extensive. As educator, it desires to impart knowledge and training to the young with as little distraction as possible. All of these interests may be achieved with some restriction upon expression, but if the regulation goes too far expression may be abridged and the regulation will fail.[660]

Government as Employer: Political and Other Outside Activities

Abolition of the "spoils system" in federal employment brought with it consequent restrictions upon political activities by federal employees. In 1876, federal employees were prohibited from requesting from, giving to, or receiving from any other federal employee money for political purposes, and the Civil Service Act of 1883 more broadly forbade civil service employees to use their official authority or influence to coerce political action of any person or to interfere with elections.[661] 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."[662] 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.[663] 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,[664] 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,[665] but it placed its decision upon the established principle that no right is absolute. The standard by which the Court judged the validity of the permissible impairment of First Amendment rights, however, was a due process standard of reasonableness.[666] Thus, changes in the standards of judging incidental restrictions on expression suggested the possibility of a reconsideration of Mitchell.[667] But a divided Court, reaffirming Mitchell, sustained the Act's limitations upon political activity against a range of First Amendment challenges.[668] It emphasized that the interest of the Government in forbidding partisan political activities by its employees was so substantial that it overrode the rights of those employees to engage in political activities and association;[669] therefore, a statute that barred in plain language a long list of activities would clearly be valid.[670] 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,"[671]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 to enact that the forbidden activities were the same activities that the Commission had as of 1940, and reaching back to1883, "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...."[672]This language had been included, it was contended, to deprive the Commission of power to alter thousands of rulings it had made that were not available to employees and that were in any event mutually inconsistent and too broad.

The Court held, on the contrary, that Congress had intended to confine the Commission to the boundaries of its rulings as of 1940 but had further intended the Commission by a process of case-by-case adjudication to flesh out the prohibition and to give content to it. That the Commission had done. It had regularly summarized in understandable terms the rules which it applied, and it was authorized as well to issue advisory opinions to employees 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."[673] 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.[674] More recently, in Bush v. Lucas[675] the Court held that the civil service laws and regulations are sufficiently "elaborate [and] comprehensive" 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,[676] 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.[677] 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.[678]

Government as Employer: Free Expression Generally

Change has occurred in many contexts, in the main with regard to state and local employees and with regard to varying restrictions placed upon such employees. Foremost among the changes has been the general disregarding of the "right-privilege" distinction. Application of that distinction to the public employment context was epitomized in the famous sentence of Justice Holmes': "The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman."[679] The Supreme Court embraced this application in the early 1950s, first affirming a lower court decision by equally divided vote,[680] 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."[681]

The same year, however, saw the express rejection of the right-privilege doctrine in another loyalty case. Voiding a loyalty oath requirement conditioned on mere membership in suspect organizations, the Court reasoned that the interest of public employees in being free of such an imposition was substantial. "There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy.... [W]e need not pause to consider whether an abstract right to public employment exists. It is sufficient to say that constitutional protection does extend to the public servant whose exclusion pursuant to a statute is patently arbitrary or discriminatory."[682] The premise here - that, if removal or rejection injures one in some fashion, he is therefore entitled to raise constitutional claims against the dismissal or rejection - has faded in subsequent cases; the rationale now is that, while government may deny employment, or any benefit for that matter, for any number of reasons, it may not deny employment or other benefits on a basis that infringes that person's constitutionally protected interests. "For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to 'produce a result which [it] could not command directly.' . . . Such interference with constitutional rights is impermissible."[683]

However, the fact that government does not have carte blanche in dealing with the constitutional rights of its employees does not mean it has no power at all. "[I]t cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general."[684] 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."[685] 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.[686] 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."[687]

Combining a balancing test of governmental interest and employee rights with a purportedly limiting statutory construction, the Court, in Arnett v. Kennedy,[688] sustained the constitutionality of a provision of federal law authorizing removal or suspension without pay of an employee "for such cause as will promote the efficiency of the service" when the "cause" cited concerned speech by the employee. He had charged that his superiors had made an offer of a bribe to a private person. The quoted statutory phrase, the Court held, "is without doubt intended to authorize dismissal for speech as well as other conduct." But, recurring to its Letter Carriers analysis,[689] 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.[690] Neither was the language overbroad, continued the Court, because it "proscribes only that public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than are necessary for the protection of the Government as an employer.... We hold that the language 'such cause as will promote the efficiency of the service' in the Act excludes constitutionally protected speech, and that the statute is therefore not overbroad."[691]

Pickering was distinguished in Connick v. Myers,[692] 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. This firing the Court found permissible. "When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices, without intrusive oversight by the judiciary in the name of the First Amendment."[693]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.[694] Because one aspect of the employee's speech did raise matters of public concern, Connick also applied Pickering's balancing test, holding that "a wide degree of deference is appropriate" when "close working relationships" between employer and employee are involved.[695] 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.[696]

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.[697] In Rankin v. McPherson[698] the Court held protected an employee's comment, made to a coworker upon hearing of an unsuccessful attempt to assassinate the President, and in a context critical of the 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.[699]

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."[700]

Thus, although the public employer cannot muzzle its employees or penalize them for their expressions and associations to the same extent that a private employer can (the First Amendment, inapplicable to the private employer, is applicable to the public employer),[701]the public employer nonetheless has broad leeway in restricting employee speech. If the employee speech does not relate to a matter of "public concern," then Connick applies and the employer is largely free of constitutional restraint. If the speech does relate to a matter of public concern, then Pickering's balancing test (as modified by Connick) is employed, the governmental interests in efficiency, workplace harmony, and the satisfactory performance of the employee's duties[702] being balanced against the employee's First Amendment rights. While the general approach is relatively easy to describe, it has proven difficult to apply.[703] The First Amendment, however, does not stand alone in protecting the speech of public employees; statutory protections for "whistle-blowers" add to the mix.[704]

Government as Educator

While the Court had previously made clear that students in public schools are entitled to some constitutional protection[705] and that minors generally are not outside the range of constitutional protection,[706] 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.[707]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 school house gate.... On the other hand, the Court has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools."[708] 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."[709]

Tinker was reaffirmed by the Court in Healy v. James,[710] in which it held that the withholding of recognition by a public college administration from a student organization violated the students' right of association, which is a construct of First Amendment liberties. Denial of recognition, the Court held, was impermissible if it had been based on the local organization's affiliation with the national SDS, or on disagreement with the organization's philosophy, or on a fear of disruption with no evidentiary support. "First Amendment rights must always be applied 'in light of the special characteristics of the . . . environment' in the particular case.... And, where state-operated educational institutions are involved, this Court has long recognized 'the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.' . . . Yet, the precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, '[t]he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.' . . . The college classroom with its surrounding environs is peculiarly the 'market place of ideas' and we break no new constitutional ground in reaffirming this Nation's dedication to safeguarding academic freedom."[711] But a college may impose reasonable regulations to maintain order and preserve an atmosphere in which learning may take place, and it may impose as a condition of recognition that each organization affirm in advance its willingness to adhere to reasonable campus law.[712]

While a public college may not be required to open its facilities generally for use by student groups, once it has done so it must justify any discriminations and exclusions under applicable constitutional norms, such as those developed under the public forum doctrine. Thus, it was constitutionally impermissible for a college to close off its facilities, otherwise open, to students wishing to engage in religious speech.[713] To be sure, a decision to permit access by religious groups had to be evaluated under First Amendment religion standards, but equal access did not violate the religion clauses. Compliance with stricter state constitutional provisions on church-state was a substantial interest, but it could not justify a content-based discrimination in violation of the First Amendment speech clause.[714] By enactment of the Equal Access Act in 1984,[715] Congress applied the same "limited open [public] forum" principles to public high schools, and the Court upheld the Act against First Amendment challenge.[716]

When faced with another conflict between a school system's obligation to inculcate community values in students and the expression rights of those students, the Court splintered badly, remanding for full trial a case challenging the authority of a school board to remove certain books from high school and junior high school libraries.[717] In dispute were the school board's reasons for removing the books-whether, as the board alleged, because of vulgarity and other content-neutral reasons, or whether also because of political disagreement with contents. The plurality conceded that school boards must be permitted "to establish and apply their curriculum in such a way as to transmit community values," and that "there is a legitimate and substantial community interest in promoting respect for authority and traditional values be they social, moral, or political." At the same time, the plurality thought that students retained substantial free expression protections and that among these was the right to receive information and ideas. Carefully limiting its discussion to the removal of books from a school library, thereby excluding acquisition of books as well as questions of school curricula, the plurality would hold a school board constitutionally disabled from removing library books in order to deny access to ideas with which it disagrees for political reasons.[718] The four dissenters basically rejected the contention that school children have a protected right to receive information and ideas and thought that the proper role of education was to inculcate the community's values, a function into which the federal courts could rarely intrude.[719] The decision provides little guidance to school officials and to the lower courts and assures a revisiting of the controversy by the Supreme Court.

Tinker was distinguished in Hazelwood School Dist. v. Kuhlmeier,[720] the Court relying on public forum analysis to hold that editorial control and censorship of a student newspaper sponsored by a public high school need only be "reasonably related to legitimate pedagogical concerns."[721] "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."[722] The student newspaper had been created by school officials as a part of the school curriculum, and served "as a supervised learning experience for journalism students." Because no public forum had been created, school officials could maintain editorial control subject only to a reasonableness standard. Thus, a principal's decisions to excise from the publication an article describing student pregnancy in a manner believed inappropriate for younger students, and another article on divorce critical of a named parent, were upheld.

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."[723] Because most primary, intermediate, and secondary school environments are tightly structured, with few opportunities for unsupervised student expression,[724] 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.[725]

Government as Regulator of the Electoral Process: Elections

Government has increasingly regulated the electoral system by which candidates are nominated and elected, requiring disclosure of contributions and expenditures, limiting contributions and expenditures, and imposing other regulations.[727] These regulations restrict freedom of expression, which comprehends the rights to join together for political purposes, to promote candidates and issues, and to participate in the political process.[728] The Court is divided with respect to many of these federal and state restrictions, but has not permitted 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.[729] 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.[730] Similarly, California could not prohibit official governing bodies of political parties from endorsing or opposing candidates in primary elections.[731] Minnesota, however, could prohibit a candidate from appearing on the ballot as the candidate of more than one party.[732] 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."[733] Minnesota's ban on "fusion" candidates was not severe, as it left a party that could not place another party's candidate on the ballot free to communicate its preference for that candidate by other means, and the ban was justified by "valid state interests in ballot integrity and political stability."[734]

In 1971 and 1974, Congress imposed new and stringent regulation of and limitations on contributions to and expenditures by political campaigns, as well as disclosure of most contributions and expenditures, setting the stage for the landmark Buckley v. Valeo decision probing the scope of protection afforded political activities by the First Amendment.[735] In basic unanimity, but with several Justices feeling that the sustained provisions trenched on protected expression, the Court sustained the contribution and disclosure sections of the statute but voided the limitations on expenditures.[736]

"Discussion of public issues and debate on the qualifications of candidates are integral to the operation of the system of government established by our Constitution.... A restriction on the amount of money a person or group can spend on political communication during a campaign necessarily reduces the quantity of expression by restricting the number of issues discussed, the depth of their exploration, and the size of the audience reached."[737] The expenditure of money in political campaigns may involve speech alone, conduct alone, or mixed speech-conduct, the Court noted, but all forms of it involve communication, and when governmental regulation is aimed directly at suppressing communication it matters not how that communication is defined. As such, the regulation must be subjected to close scrutiny and justified by compelling governmental interests. When this process was engaged in, the contribution limitations, with some construed exceptions, survived, but the expenditure limitation did not.

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. . . ." [11] 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." [12]

Applying this standard, the Buckley Court sustained the contribution limitation as imposing only a marginal restriction upon the contributor's ability to engage in free communication, inasmuch as the contribution is a generalized expression of support for a candidate but it is not a communication of reasons for the support; "the size of the contribution provides a very rough index of the intensity of the contributors' support for the candidate."[738] The political expression really occurs when the funds are spent by a candidate; only if the restrictions were set so low as to impede this communication would there arise a constitutional infringement. This incidental restraint upon expression may therefore be justified by Congress' purpose to limit the actuality and appearance of corruption resulting from large individual financial contributions.[739]

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.[742] 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.[743]

Although the Court in Buckley upheld the Act's reporting and disclosure requirements, it indicated that under some circumstances the First Amendment might require exemption for minor parties able to show "a reasonable probability that the compelled disclosure of a party's contributors' names will subject them to threats, harassment, or reprisals from either Government officials or private parties."[744] 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,[745] 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."[746]

In Nixon v. Shrink Missouri Government PAC,[747] 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."[748] 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."[749] 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."[750] 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."[751] 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."[752]

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.[753]While Buckley had sustained limits on contributions as a prophylactic measure to prevent corruption or its appearance, no risk of corruption was found in giving or receiving funds in connection with a referendum. Similarly, the Court invalidated a criminal prohibition on payment of persons to circulate petitions for a ballot initiative.[754]

Venturing into the area of the constitutional validity of governmental limits upon political spending or contributions by corporations, a closely divided Court struck down a state law that prohibited corporations from expending funds in order to influence referendum votes on any measure save proposals that materially affected corporate business, property, or assets. The free discussion of governmental affairs "is the type of speech indispensable to decisionmaking in a democracy," the Court said, "and this is no less true because the speech comes from a corporation rather than an individual"[755] It is the nature of the speech, not the status of the speaker, that is relevant for First Amendment analysis, thus allowing the Court to pass by the question of the rights a corporate person may have. The "materially affecting" requirement was found to be an impermissible proscription of speech based on content and identity of interests. The "exacting scrutiny" that restrictions on speech must pass was not satisfied by any of the justifications offered and the Court in any event found some of them impermissible.

Foundation, 525 U.S. 182 (1999). Although the Court upheld a requirement that proponents' names and the total amount they have spent to collect signatures be disclosed, as this served "as a control or check on domination of the initiative process by affluent special interest groups" (id. at 202), it found that "[t]he added benefit of revealing the names of paid circulators and the amounts paid to each circulator . . . is hardly apparent and has not been demonstrated." Id. at 203. The Court also struck down a requirement that circulators be registered voters, as the state's interest in ensuring that circulators would be amenable to subpoenas was served by the requirement that they be residents a requirement on which the Court had no occasion to rule.

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.[756] Three times the opportunity has arisen for the Court to assess the validity of the statute and each time it has passed it by.[757] One of the dissents in Bellotti suggested its application to the federal law, but the Court saw several distinctions.[758]

Other aspects of the federal provision have been interpreted by the Court. First, in FEC v. National Right to Work Committee,[759] the Court unanimously upheld section 441b's prohibition on corporate solicitation of money from corporate nonmembers for use in federal elections. Relying on Bellotti for the proposition that government may act to prevent "both actual corruption and the appearance of corruption of elected representatives," the Court concluded that "there is no reason why . . . unions, corporations, and similar organizations [may not be] treated differently from individuals."[760] However, an exception to this general principle was recognized by a divided Court in FEC v. Massachusetts Citizens for Life, Inc.,[761] holding the section's independent expenditure limitations (not limiting expenditures but requiring only that such expenditures be financed by voluntary contributions to a separate segregated fund) unconstitutional as applied to a corporation organized to promote political ideas, having no stockholders, and not serving as a front for a "business corporation" or union. One of the rationales for the special rules on corporate participation in elections-elimination of "the potential for unfair deployment of [corporate] wealth for political purposes"-has no applicability to such a corporation "formed to disseminate political ideas, not to amass capital."[762] 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."[763] 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.[764]

Clarification of Massachusetts Citizens for Life was afforded by Austin v. Michigan State Chamber of Commerce,[765] in which the Court upheld application to a nonprofit corporation of Michigan's restrictions on independent expenditures by corporations. The Michigan law, like federal law, prohibited such expenditures from corporate treasury funds, but allowed them to be made from separate "segregated" funds. This arrangement, the Court decided, serves the state's compelling interest in assuring that corporate wealth, accumulated with the help of special advantages conferred by state law, does not unfairly influence elections. The law was sufficiently "narrowly tailored" because it permits corporations to make independent political expenditures through segregated funds that "accurately reflect contributors' support for the corporation's political views."[766] 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 forego benefits of membership in order to protest the Chamber's political expression; and, by accepting corporate contributions, the Chamber could serve as a conduit for corporations to circumvent prohibitions on direct corporate contributions and expenditures.[767]

In FEC v. Beaumont,[13] the Court held that the federal law that bars corporations from contributing directly to candidates for federal office may constitutionally be applied to nonprofit advocacy corporations. Corporations may make such contributions only through PACs, and 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." [14] 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. Federal Election Commission,[15] 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," [16] which is money donated for the purpose of influencing state or local elections, or for "mixed purpose activities-including get-out-the-vote drives and generic party advertising," [17] and (2) the prohibition on corporations and labor unions' using funds in their treasuries to finance "electioneering communications," [18] 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." [19]

As for the soft-money prohibition on national party committees, the Court applied "the less rigorous scrutiny applicable to contribution limits." [20] and found it "closely drawn to match a sufficiently important interest." [21] 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.' " [22]

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." [23] 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.[24]

Government as Regulator of the Electoral Process: Lobbying

Legislators may be greatly dependent 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,[768]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,[769] the Court, stating that it was construing the Act to avoid constitutional doubts,[770] interpreted covered lobbying as meaning only direct attempts to influence legislation through direct communication with members of Congress.[771] 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."[772]

Other statutes and governmental programs affect lobbying and lobbying activities. It is not impermissible for the Federal Government to deny a business expense tax deduction for money spent to defeat legislation which would adversely affect one's business.[773] But the antitrust laws may not be applied to a concert of business enterprises that have joined to lobby the legislative branch to pass and the executive branch to enforce laws which would have a detrimental effect upon competitors, even if the lobbying was conducted unethically.[774] 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.[775]

Government as Regulator of Labor Relations

Numerous problems may arise in this area,[776] 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,[777] and that holding has been reduced to statutory form.[778] Nonetheless, there is a First Amendment tension in this area, with its myriad variations of speech forms that may be denominated "predictions," especially since determination whether particular utterances have an impermissible impact on workers is vested with an agency with no particular expertise in the protection of freedom of expression.[779]

Government as Investigator: Reporter's Privilege

News organizations have claimed that the First Amendment status of the press compels a recognition by government of an exception to the ancient rule that every citizen owes to his government a duty to give what testimony he is capable of giving.[780] 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. Hayes[781] 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."[782] 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.[783]

The courts have construed Branzburg as recognizing a limited privilege that must be balanced against other interests. See In re Pennington, 224 Kan. 573, 581 P.2d 812 (1978), cert. denied, 440 U.S. 929 (1979); Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979); United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980); cf. United States v. Criden, 633 F.2d 346 (3d Cir. 1980).

The Court observed that Congress and the States were free to develop by statute privileges for reporters as narrowly or as broadly as they chose; while efforts in Congress failed, many States have enacted such laws.[784] The assertion of a privilege in civil cases has met with mixed success in the lower courts, the Supreme Court having not yet confronted the issue.[785]

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.[786] 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 news-rooms by requiring particularizations of the type, scope, and intrusiveness that would be permitted in the searches.[787]

Government and the Conduct of Trials

Conflict between constitutionally protected rights is not uncommon. One of the most difficult to resolve is the conflict between a criminal defendant's Fifth and Sixth Amendment rights to a fair trial and the First Amendment's protection of the rights to obtain and publish information about defendants and trials. Convictions obtained in the context of prejudicial pre-trial publicity[788] and during trials that were media "spectaculars"[789] 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,[790] although the courts have a good deal more discretion in preventing the information from becoming public in the first place.[791] Perhaps the most profound debate that has arisen in recent years concerns the right of access of the public and the press to trial and pre-trial proceedings, and in those cases the Court has enunciated several important theorems of First Amendment interpretation.

When the Court held that the Sixth Amendment right to a public trial did not guarantee access of the public and the press to pre-trial suppression hearings,[792] 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.[793] The right of access to criminal trials against the wishes of the defendant was held protected in Richmond Newspapers v. Virginia,[794] 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).[795] 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."[796]

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."[797]

The trial court in Richmond Newspapers had made no findings of necessity for closure, and neither Chief Justice Burger nor Justice Brennan found the need to articulate a standard for determining when the government's or the defendant's interests could outweigh the public right of access. That standard was developed two years later. Globe Newspaper Co. v. Superior Court[798] 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 openness[799] 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."[800] The Court was explicit that the right of access was to criminal trials,[801] 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 I[802]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."[803] No such findings had been made by the state court, which had ordered closed, in the interest of protecting the privacy interests of some prospective jurors, 41 of the 44 days of voir dire in a rape-murder case. The trial court also had not considered the possibility of less restrictive alternatives, e.g., in camera consideration of jurors' requests for protection from publicity. In Waller v. Georgia,[804] 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,"[805] 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.[806] And in Press Enterprise II,[807] 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."[808] 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.[809]

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.[810] 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.[811] In applying these general standards, the Court at first arrived at somewhat divergent points in assessing prison restrictions on mail and on face-to-face news interviews between newsmen and prisoners. The Court's more recent deferential approach to regulation of prisoners' mail has lessened the differences.

First, in Procunier v. Martinez,[812] the Court invalidated mail censorship regulations that permitted authorities to hold back or to censor mail to and from prisoners whenever they thought that the letters "unduly complain," "express inflammatory . . . views or beliefs," or were "defamatory" or "otherwise inappropriate." The Court based this ruling not on the rights of the prisoner, but instead on the outsider's right to communicate with the prisoner either by sending or by receiving mail. Under this framework, the Court held, regulation of mail must further an important interest unrelated to the suppression of expression; regulation must be shown to further the substantial interest of security, order, and rehabilitation, and it must not be used simply to censor opinions or other expressions. Further, a restriction must be no greater than is necessary or essential to the protection of the particular government interest involved.

However, in Turner v. Safley,[813] the Court made clear that a more deferential standard is applicable when only the communicative rights of inmates are at stake. In upholding a Missouri rule barring inmate-to-inmate correspondence, while striking down a prohibition on inmate marriages absent compelling reason such as pregnancy or birth of a child, the Court announced the appropriate standard. "[W]hen a regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests."[814] Several considerations are appropriate in determining reasonableness of a regulation. First, there must be a rational relation to a legitimate, content-neutral objective. Prison security, broadly defined, is one such objective.[815]Availability of other avenues for exercise of the inmate right suggests reasonableness. A further indicium of reasonableness is present if accommodation would have a negative effect on liberty or safety of guards or other inmates. On the other hand, an alternative to regulation "that fully accommodated the prisoner's rights at de minimis cost to valid penological interests" suggests unreasonableness.[816] Two years after Safley, the Court directly limited Martinez, restricting it to regulation of outgoing correspondence. In the Court's current view the needs of prison security justify a more deferential standard for prison regulations restricting incoming material, whether those incoming materials are correspondence from other prisoners, correspondence from nonprisoners, or outside publications.[817]

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.[818] Prison restrictions on such interviews do indeed implicate the First Amendment rights of prisoners, the Court held, but the justification for the restraint lay in the implementation of security arrangements, affected by the entry of persons into prisons, and the carrying out of rehabilitation objectives, affected by the phenomenon of the "big wheel," the exploitation of access to the news media by certain prisoners; alternatives to face-to-face interviews existed, such as mail and visitation with family, attorneys, clergy, and friends. The existence of alternatives and the presence of justifications for the restraint served to weigh the balance against the asserted First Amendment right, the Court held.[819]

While agreeing with a previous affirmation that "newsgathering is not without some First Amendment protection,"[820] the Court denied that the First Amendment accorded the press any affirmative obligation on the part of government. "The First and Fourteenth Amendments bar government from interfering in any way with a free press. The Constitution does not, however, require government to accord the press special access to information not shared by members of the public generally."[821] Government has an obligation not to impair the freedom of journalists to seek out newsworthy information, and not to restrain the publication of news. But it cannot be argued, the Court continued, "that the Constitution imposes upon government the affirmative duty to make available to journalists sources of information not available to members of the public generally."[822]

Pell and Saxbe did not delineate whether the "equal access" rule applied only in cases in which there was public access, so that a different rule for the press might follow when general access was denied, nor did they purport to begin defining what the rules of equal access are. No greater specificity emerged from Houchins v. KQED,[823] in which the broadcaster had sued for access to a prison from which public and press alike were barred and as to which there was considerable controversy over conditions of incarceration.

Following initiation of the suit, the administrator of the prison authorized limited public tours. The tours were open to the press, but cameras and recording devices were not permitted, there was no opportunity to talk to inmates, and the tours did not include the maximum security area about which much of the controversy centered. The Supreme Court overturned the injunction obtained in the lower courts, the plurality reiterating that "[n] either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control.... [U] ntil the political branches decree otherwise, as they are free to do, the media have no special right of access to the Alameda County Jail different from or greater than that accorded the public generally."[824] Justice Stewart, whose vote was necessary to the disposition of the case, agreed with the equal access holding but would have approved an injunction more narrowly drawn to protect the press' right to use cameras and recorders so as to enlarge public access to the information.[825] Thus, any question of special press access appears settled by the decision; yet there still remain the questions raised above. May everyone be barred from access and, once access is accorded, does the Constitution necessitate any limitation on the discretion of prison administrators?[826]

Government and 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,[827] 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.[828] 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,[829] 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'n[830] should be controlling.[831] 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."[832] In addition, the Court noted, the "regulations do not force the Title X grantee to give up abortion-related speech; they merely require that the grantee keep such activities separate and distinct from Title X activities. Title X expressly distinguishes between a Title X grantee and a Title X project.... The regulations govern the scope of the Title X project's activities, and leave the grantee unfettered in its other activities."[833] It remains to be seen what application this decision will have outside the contentious area of abortion regulation.[834]

"Under the majority's reasoning, the First Amendment could be read to tolerate anygovernmental restriction is limited to the funded workplace. This is a dangerous proposition, and one the Court has rightly rejected in the past." Id. at 213 (emphasis in original).

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."[835] The Court acknowledged that, if the statute were "applied in a manner that raises concern about the suppression of disfavored viewpoints,"[836] then such application might be unconstitutional. The statute on its face, however, is constitutional because it "imposes no categorical requirement," being merely "advisory."[837] "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."'[838] 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."[839]

In Legal Services Corporation v. Velazquez,[840] 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 ground "that the counseling activities of the doctors under Title X amounted to governmental speech," whereas "an LSC-funded attorney speaks on behalf of the client in a claim against the government for welfare benefits."[841] 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."[842]

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." [25] 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." [26] 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." [27]

Governmental Regulation of Communications Industries

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

Commercial Speech

In recent years, the Court's treatment of "commercial speech" has undergone a transformation, from total nonprotection under the First Amendment to qualified protection. The conclusion that expression proposing a commercial transaction is a different order of speech was arrived at almost casually in Valentine v. Chrestensen,[843] in which the Court upheld a city ordinance prohibiting distribution on the street of "commercial and business advertising matter," as applied to an exhibitor of a submarine who distributed leaflets describing his submarine on one side and on the other side protesting the city's refusal of certain docking facilities. The doctrine was in any event limited to promotion of commercial activities; the fact that expression was disseminated for profit or through commercial channels did not expose it to any greater regulation than if it were offered for free.[844] The doctrine lasted in this form for more than twenty years.

"Commercial speech," the Court has held, is protected "from unwarranted governmental regulation," although its nature makes such communication subject to greater limitations than may be imposed on expression not solely related to the economic interests of the speaker and its audience.[845] Overturning of this exception in free expression doctrine was accomplished within a brief span of time in which the Justices haltingly but then decisively moved to a new position. Reasserting the doctrine at first in a narrow five-to-four decision, the Court sustained the application of a city's ban on employment discrimination to bar sex- designated employment advertising in a newspaper.[846] Granting that speech does not lose its constitutional protection simply because it appears in a commercial context, Justice Powell, for the Court, found the placing of want-ads in newspapers to be "classic examples of commercial speech," devoid of expressions of opinions with respect to issues of social policy; the ad "did no more than propose a commercial transaction." But the Justice also noted that employment discrimination, which was facilitated by the advertisements, was itself illegal.[847]

Next, the Court overturned a conviction under a state statute making it illegal, by sale or circulation of any publication, to encourage or prompt the obtaining of an abortion, as applied to an editor of a weekly newspaper who published an advertisement announcing the availability of legal and safe abortions in another State and detailing the assistance that would be provided state residents in going to and obtaining abortions in the other State.[848]The Court discerned that the advertisements conveyed information of other than a purely commercial nature, that they related to services that were legal in the other jurisdiction, and that the State could not prevent its residents from obtaining abortions in the other State or punish them for doing so.

Then, all these distinctions were swept away as the Court voided a statute declaring it unprofessional conduct for a licensed pharmacist to advertise the prices of prescription drugs.[849] Accepting a suit brought by consumers to protect their right to receive information, the Court held that speech that does no more than propose a commercial transaction is nonetheless of such social value as to be entitled to protection. Consumers' interests in receiving factual information about prices may even be of greater value than political debate, but in any event price competition and access to information about it is in the public interest. State interests asserted in support of the ban, protection of professionalism and the quality of prescription goods, were found either badly served or not served by the statute.[850]

Turning from the interests of consumers to receive information to the asserted right of advertisers to communicate, the Court voided several restrictions. The Court voided a municipal ordinance that barred the display of "For sale" and "Sold" signs on residential lawns, purportedly so as to limit "white flight" resulting from a "fear psychology" that developed among white residents following sale of homes to nonwhites. The right of owners to communicate their intention to sell a commodity and the right of potential buyers to receive the message was protected, the Court determined; the community interest could have been achieved by less restrictive means and in any event may not be achieved by restricting the free flow of truthful information.[851] Similarly, deciding a question it had reserved in the Virginia Pharmacy case, the Court held that a State could not forbid lawyers from advertising the prices they charged for the performance of routine legal services.[852]None of the proffered state justifications for the ban was deemed sufficient to overcome the private and societal interest in the free exchange of this form of speech.[853] Nor may a state categorically prohibit attorney advertising through mailings that target persons known to face particular legal problems,[854] or prohibit an attorney from holding himself out as a certified civil trial specialist,[855] or prohibit a certified public accountant from holding herself out as a certified financial planner.[856] However, a State has been held to have a much greater countervailing interest in regulating person-to-person solicitation of clients by attorneys; therefore, especially since in-person solicitation is "a business transaction in which speech is an essential but subordinate component," the state interest need only be important rather than compelling.[857] The Court later refused, however, to extend this principle to in-person solicitation by certified public accountants, explaining that CPAs, unlike attorneys, are not professionally "trained in the art of persuasion," and that the typical business executive client of a CPA is "far less susceptible to manipulation" than was the accident victim in Ohralik.[858] To allow enforcement of such a broad prophylactic rule absent identification of a serious problem such as ambulance chasing, the Court explained, would dilute commercial speech protection "almost to nothing."[859]

Moreover, a statute prohibiting the practice of optometry under a trade name was sustained because there was "a significant possibility" that the public might be misled through deceptive utilization of the same or similar trade names.[860] But a state regulatory commission prohibition of utility advertisements "intended to stimulate the purchase of utility services" was held unjustified by the asserted interests in energy consumption and avoidance of subsidization of additional energy costs by all consumers.[861]

While commercial speech is entitled to First Amendment protection, the Court has clearly held that it is different from other forms of expression; it has remarked on the commonsense differences between speech that does no more than propose a commercial transaction and other varieties.[862] The Court has developed the four-pronged Central Hudson test to measure the validity of restraints upon commercial expression.[863]

In Nike, Inc. v. Kasky, 45 P.3d 243 (2002), cert. dismissed, 539 U.S. 654 (2003), Nike was sued for unfair and deceptive practices for allegedly false statements it made concerning the working conditions under which its products were manufactured. The California Supreme Court ruled that the suit could proceed, and the Supreme Court granted certioriari, but then dismissed it as improvidently granted, with a concurring and two dissenting opinions. The issue left undecided was whether Nike's statements, though they concerned a matter of public debate and appeared in press releases and letters rather than in advertisements for its products, should be deemed " 'commercial speech' because they might affect consumers' opinions about the business as a good corporate citizen and thereby affect their purchasing decisions." Id. at 657 (Stevens, J., concurring). Nike subsequently settled the suit.

Under the first prong of the test, certain commercial speech is not entitled to protection; the informational function of advertising is the First Amendment concern and if an advertisement does not accurately inform the public about lawful activity, it can be suppressed.[864]

Second, if the speech is protected, the interest of the government in regulating and limiting it must be assessed. The State must assert a substantial interest to be achieved by restrictions on commercial speech.[865]

Third, the restriction cannot be sustained if it provides only ineffective or remote support for the asserted purpose.[866] Instead, the regulation must "directly advance" the governmental interest. The Court resolves this issue with reference to aggregate effects, and does not limit its consideration to effects on the challenging litigant.[867]

Fourth, if the governmental interest could be served as well by a more limited restriction on commercial speech, the excessive restriction cannot survive.[868] The Court has rejected the idea that a "least restrictive means" test is required. Instead, what is now required is a "reasonable fit" between means and ends, with the means "narrowly tailored to achieve the desired objective."[869] The Court, however, does "not equate this test with the less rigorous obstacles of rational basis review; . . . the existence of 'numerous and obvious less- burdensome alternatives to the restriction on commercial speech . . . is certainly a relevant consideration in determining whether the "fit" between ends and means is reasonable."'[870]

Central Hudson test, we have made clear that if the Government could achieve its interests in a manner that does not restrict speech, or that restricts less speech, the Government must do so." Id. at 1506.

The "reasonable fit" standard has some teeth, the Court made clear in City of Cincinnati v. Discovery Network, Inc.,[871] striking down a city's prohibition on distribution of "commercial handbills" through freestanding newsracks located on city property. The city's aesthetic interest in reducing visual clutter was furthered by reducing the total number of newsracks, but the distinction between prohibited "commercial" publications and permitted "newspapers" bore "no relationship whatsoever" to this legitimate interest.[872] The city could not, the Court ruled, single out commercial speech to bear the full onus when "all newsracks, regardless of whether they contain commercial or noncommercial publications, are equally at fault."[873] By contrast, the Court upheld a federal law that prohibited broadcast of lottery advertisements by a broadcaster in a state that prohibits lotteries, while allowing broadcast of such ads by stations in states that sponsor lotteries. There was a "reasonable fit" between the restriction and the asserted federal interest in supporting state anti-gambling policies without unduly interfering with policies of neighboring states that promote lotteries.[874] The prohibition "directly served" the congressional interest, and could be applied to a broadcaster whose principal audience was in an adjoining lottery state, and who sought to run ads for that state's lottery.[875]

In 1999 the Court struck down a provision of the same statute as applied to advertisements for private casino gambling that are broadcast by radio and television stations located in a state where such gambling is legal.[876] The Court emphasized the interrelatedness of the four parts of the Central Hudson test; e.g., though the government has a substantial interest in reducing the social costs of gambling, the fact that the Congress has simultaneously encouraged gambling, because of its economic benefits, makes it more difficult for the government to demonstrate that its restriction on commercial speech materially advances its asserted interest and constitutes a reasonable "fit." In this case, "[t]he operation of [18 U.S. C.] § 1304 and its attendant regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it."[877] . . [T]he regulation distinguishes among the indistinct, permitting a variety of speech that poses the same risks the Government purports to fear, while banning messages unlikely to cause any harm at all.[878]

In a 1986 decision the Court had asserted that "the greater power to completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling."[879]Subsequently, however, the Court has eschewed reliance on Posadas,[880] and it seems doubtful that the Court would again embrace the broad principle that government may ban all advertising of an activity that it permits but has power to prohibit. Indeed, the Court's very holding in 44 Liquormart, Inc. v. Rhode Island,[881] striking down the State's ban on advertisements that provide truthful information about liquor prices, is inconsistent with the general proposition. A Court plurality in 44 Liquormart squarely rejected Posadas, calling it "erroneous," declining to give force to its "highly deferential approach," and proclaiming that a state "does not have the broad discretion to suppress truthful, nonmisleading information for paternalistic purposes that the Posadas majority was willing to tolerate."[882]Four other Justices concluded that Posadas was inconsistent with the "closer look" that the Court has since required in applying the principles of Central Hudson.[883]

The "different degree of protection" accorded commercial speech has a number of consequences. Somewhat broader times, places, and manner regulations are to be tolerated.[884] The rule against prior restraints may be inapplicable,[885] and disseminators of commercial speech are not protected by the overbreadth doctrine.[886]

Different degrees of protection may also be discerned among different categories of commercial speech. The first prong of the Central Hudson test means that false, deceptive, or misleading advertisements need not be permitted; government may require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent deception.[887] But even truthful, non- misleading commercial speech may be regulated, and the validity of such regulation is tested by application of the remaining prongs of the Central Hudson test. The test itself does not make further distinctions based on the content of the commercial message or the nature of the governmental interest (that interest need only be "substantial"). Recent decisions suggest, however, that further distinctions may exist. Measures aimed at preserving "a fair bargaining process" between consumer and advertiser[888] may be more likely to pass the test[889] than regulations designed to implement general health, safety, or moral concerns.[890] As the governmental interest becomes further removed from protecting a fair bargaining process, it may become more difficult to establish the absence of less burdensome regulatory alternatives and the presence of a "reasonable fit" between the commercial speech restriction and the governmental interest.[891]

Taxation

Disclaiming any intimation "that the owners of newspapers are immune from any of the ordinary forms of taxation for support of the government," the Court voided a state two-percent tax on the gross receipts of advertising in newspapers with a circulation exceeding 20,000 copies a week.[892] In the Court's view, the tax was analogous to the Eighteenth Century English practice of imposing advertising and stamp taxes on newspapers for the express purpose of pricing the opposition penny press beyond the means of the mass of the population.[893] The tax at issue focused exclusively upon newspapers, it imposed a serious burden on the distribution of news to the public, and it appeared to be a discriminatorily selective tax aimed almost solely at the opposition to the state administration.[894] Combined with the standard that government may not impose a tax directly upon the exercise of a constitutional right itself,[895] these tests seem to permit general business taxes upon receipts of businesses engaged in communicating protected expression without raising any First Amendment issues.[896]

Ordinarily, a tax singling out the press for differential treatment is highly suspect, and creates a heavy burden of justification on the state. This is so, the Court explained in 1983, because such "a powerful weapon" to single out a small group carries with it a lessened political constraint than do those measures affecting a broader based constituency, and because "differential treatment, unless justified by some special characteristic of the press, suggests that the goal of the regulation is not unrelated to suppression of expression."[897]The state's interest in raising revenue is not sufficient justification for differential treatment of the press. Moreover, the Court refused to adopt a rule permitting analysis of the "effective burden" imposed by a differential tax; even if the current effective tax burden could be measured and upheld, the threat of increasing the burden on the press might have "censorial effects," and "courts as institutions are poorly equipped to evaluate with precision the relative burdens of various methods of taxation."[898]

Also difficult to justify is taxation that targets specific subgroups within a segment of the press for differential treatment. An Arkansas sales tax exemption for newspapers and for "religious, professional, trade, and sports journals" published within the state was struck down as an invalid content-based regulation of the press.[899] Entirely as a result of content, some magazines were treated less favorably than others. The general interest in raising revenue was again rejected as a "compelling" justification for such treatment, and the measure was viewed as not narrowly tailored to achieve other asserted state interests in encouraging "fledgling" publishers and in fostering communications.

The Court seemed to change course somewhat in 1991, upholding a state tax that discriminated among different components of the communications media, and proclaiming that "differential taxation of speakers, even members of the press, does not implicate the First Amendment unless the tax is directed at, or presents the danger of suppressing, particular ideas."[900]

The general principle that government may not impose a financial burden based on the content of speech underlay the Court's invalidation of New York's "Son of Sam" law, which provided that a criminal's income from publications describing his crime was to be placed in escrow and made available to victims of the crime.[901] While the Court recognized a compelling state interest in ensuring that criminals do not profit from their crimes, and in compensating crime victims, the law was not narrowly tailored to those ends. It applied only to income derived from speech, not to income from other sources, and it was significantly overinclusive because it reached a wide range of literature (e.g., the Confessions of Saint Augustine and Thoreau's Civil Disobedience) "that did not enable a criminal to profit from his crime while a victim remains uncompen-sated."[902]

Labor Relations

Just as newspapers and other communications businesses are subject to nondiscriminatory taxation, they are entitled to no immunity from the application of general laws regulating their relations with their employees and prescribing wage and hour standards. In Associated Press v. NLRB,[903] the application of the National Labor Relations Act to a newsgathering agency was found to raise no constitutional problem. "The publisher of a newspaper has no special immunity from the application of general laws. He has no special privilege to invade the rights and liberties of others.... The regulation here in question has no relation whatever to the impartial distribution of news." Similarly, the Court has found no problem with requiring newspapers to pay minimum wages and observe maximum hours.[904]

Antitrust Laws

Resort to the antitrust laws to break up restraints on competition in the newsgathering and publishing field was found not only to present no First Amendment problem but to comport with government's obligation under that Amendment. Said Justice Black: "It would be strange indeed, however, if the grave concern for freedom of the press which prompted adoption of the First Amendment should be read as a command that the government was without power to protect that freedom. The First Amendment, far from providing an argument against application of the Sherman Act, here provides powerful reasons to the contrary. That Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society. Surely a command that the government itself shall not impede the free flow of ideas does not afford nongovernmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish means freedom for all and not for some. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not."[905]

Thus, both newspapers and broadcasters, as well as other such industries, may not engage in monopolistic and other anticompetitive activities free of possibility of antitrust law attack,[906] even though it may be contended that freedom of the press may thereby be preserved.[907]

Radio and Television

Because there are a limited number of broadcast frequencies for radio and non-cable television use, the Federal Government licenses access to these frequencies, permitting some applicants to utilize them and denying the greater number of applicants such permission. Even though this licensing system is in form a variety of prior restraint, the Court has held that it does not present a First Amendment issue because of the unique characteristic of scarcity.[908] Thus, the Federal Communications Commission has broad authority to determine the right of access to broadcasting,[909] although, of course, the regulation must be exercised in a manner that is neutral with regard to the content of the materials broadcast.[910]

In certain respects, however, governmental regulation does implicate First Amendment values to a great degree; insistence that broadcasters afford persons attacked on the air an opportunity to reply and that they afford a right to reply from opposing points of view when they editorialize on the air was unanimously found to be constitutional.[911] In Red Lion, Justice White explained that differences in the characteristics of various media justify differences in First Amendment standards applied to them.[912] Thus, while there is a protected right of everyone to speak, write, or publish as he will, subject to very few limitations, there is no comparable right of everyone to broadcast. The frequencies are limited and some few must be given the privilege over others. The particular licensee, however, has no First Amendment right to hold that license and his exclusive privilege may be qualified. Qualification by censorship of content is impermissible, but the First Amendment does not prevent a governmental insistence that a licensee "conduct himself as a proxy or fiduciary with obligations to present those views and voices which are representative of his community and which would otherwise, by necessity, be barred from the airwaves." Further, said Justice White, "[b]ecause of the scarcity of radio frequencies, the Government is permitted to put restraints on licensees in favor of others whose views should be expressed on this unique medium. But the people as a whole retain their interest in free speech by radio and their collective right to have the medium function consistently with the ends and purposes of the First Amendment. It is the right of the viewers and listeners, not the right of the broadcasters, which is paramount."[913] The broadcasters had argued that if they were required to provide equal time at their expense to persons attacked and to points of view different from those expressed on the air, expression would be curbed through self-censorship, for fear of controversy and economic loss. Justice White thought this possibility "at best speculative," but if it should materialize "the Commission is not powerless to insist that they give adequate and fair attention to public issues."[914]

In Columbia Broadcasting System v. Democratic National Committee,[915] the Court rejected claims of political groups that the broadcast networks were constitutionally required to sell them broadcasting time for the presentation of views on controversial issues. The ruling terminated a broad drive to obtain that result, but the fragmented nature of the Court's multiple opinions precluded a satisfactory evaluation of the constitutional implications of the case. However, in CBS v. FCC,[916] the Court held that Congress had conferred on candidates seeking federal elective office an affirmative, promptly enforceable right of reasonable access to the use of broadcast stations, to be administered through FCC control over license revocations, and held such right of access to be within Congress' power to grant, the First Amendment notwithstanding. The constitutional analysis was brief and merely restated the spectrum scarcity rationale and the role of the broadcasters as fiduciaries for the public interest.

In FCC v. League of Women Voters,[917] the Court took the same general approach to governmental regulation of broadcasting, but struck down a total ban on editorializing by stations receiving public funding. In summarizing the principles guiding analysis in this area, the Court reaffirmed that Congress may regulate in ways that would be impermissible in other contexts, but indicated that broadcasters are entitled to greater protection than may have been suggested by Red Lion. "[A]lthough the broadcasting industry plainly operates under restraints not imposed upon other media, the thrust of these restrictions has generally been to secure the public's First Amendment interest in receiving a balanced presentation of views on diverse matters of public concern. . . . [T]hese restrictions have been upheld only when we were satisfied that the restriction is narrowly tailored to further a substantial governmental interest."[918] However, the earlier cases were distinguished. "[I]n sharp contrast to the restrictions upheld in Red Lion or in [CBS v. FCC], which left room for editorial discretion and simply required broadcast editors to grant others access to the microphone, § 399 directly prohibits the broadcaster from speaking out on public issues even in a balanced and fair manner."[919] The ban on all editorializing was deemed too severe and restrictive a means of accomplishing the governmental purposes-protecting public broadcasting stations from being coerced, through threat or fear of withdrawal of public funding, into becoming "vehicles for governmental propagandizing," and also keeping the stations "from becoming convenient targets for capture by private interest groups wishing to express their own partisan viewpoints."[920] Expression of editorial opinion was described as a "form of speech . . . that lies at the heart of First Amendment protection,"[921] and the ban was said to be "defined solely on the basis of . . . content," the assumption being that editorial speech is speech directed at "controversial issues of public importance."[922] Moreover, the ban on editorializing was both overinclusive, applying to commentary on local issues of no likely interest to Congress, and underinclusive, not applying at all to expression of controversial opinion in the context of regular programming. Therefore, the Court concluded, the restriction was not narrowly enough tailored to fulfill the government's purposes.

Broadcasting Act of 1967, as amended. The decision was 5-4, with Justice Brennan's opinion for the Court being joined by Justices Marshall, Blackmun, Powell, and O'Connor, and with Justices White, Rehnquist (joined by Chief Justice Burger and by Justice White), and Stevens filing dissenting opinions.

Sustaining FCC discipline of a broadcaster who aired a record containing a series of repeated "barnyard" words, considered "indecent" but not obscene, the Court posited a new theory to explain why the broadcast industry is less entitled to full constitutional protection than are other communications entities.[923] "First, the broadcast media have established a uniquely pervasive presence in the lives of all Americans. Patently offensive, indecent material presented over the airwaves confronts the citizens, not only in public, but also in the privacy of the home, where the individual's right to be left alone plainly outweighs the First Amendment rights of an intruder.... Second, broadcasting is uniquely accessible to children, even those too young to read.... The ease with which children may obtain access to broadcast material . . . amply justif[ies] special treatment of indecent broadcasting."[924] The purport of the Court's new theory is hard to divine; while its potential is broad, the Court emphasized the contextual "narrowness" of its holding, which "requires consideration of a host of variables."[925] Time of day of broadcast, the likely audience, the differences between radio, television, and perhaps closed-circuit transmissions were all relevant in the Court's view. It may be,