Substantive Law Study Support

Texas v. Johnson, 491 U.S. 397 (1989)

During the 1984 Republican National Convention in Dallas, Texas, respondent Johnson participated in a political demonstration to protest the policies of the Reagan administration and some Dallas-based corporations. After a march through the city streets, Johnson burned an American flag while protesters chanted. No one was physically injured or threatened with injury, although several witnesses were seriously offended by the flag burning. Johnson was convicted of desecration of a venerated object in violation of a Texas statute, and a State Court of Appeals affirmed. However, the Texas Court of Criminal Appeals reversed, holding that the state, consistent with the First Amendment, could not punish Johnson for burning the flag in these circumstances. The court first found that Johnson’s burning of the flag was expressive conduct protected by the First Amendment. The court concluded that the state could not criminally sanction flag desecration in order to preserve the flag as a symbol of national unity. It also held that the statute did not meet the state’s goal of preventing breaches of the peace, since it was not drawn narrowly enough to encompass only those flag burnings that would likely result in a serious disturbance and since the flag burning in this case did not threaten such a reaction. Further, it stressed that another Texas statute prohibited breaches of the peace and could be used to prevent disturbances without punishing this flag desecration.
Held: Johnson’s conviction for flag desecration is inconsistent with the First Amendment.

United States v. O’Brien, 391 U.S. 367 (1968)

O’Brien burned his Selective Service registration certificate before a sizable crowd in order to influence others to adopt his antiwar beliefs. He was indicted, tried, and convicted for violating 50 U.S.C. App. 462 (b), a part of the Universal Military Training and Service Act, subdivision (3) which applies to any person “who forges, alters, knowingly destroys, knowingly mutilates, or in any manner changes any such certificate .
. . ,” the words italicized herein having been added by amendment in 1965. A district court rejected O’Brien’s argument that the amendment was unconstitutional because it was enacted to abridge free speech and served no legitimate legislative purpose. The court of appeals held the 1965 amendment unconstitutional under the First Amendment as singling out for special treatment persons engaged in protests, on the ground that conduct under the 1965 amendment was already punishable since a Selective Service System regulation required registrants to keep their registration certificates in their “personal possession at all times,” 32 CFR 1617.1, and willful violation of regulations promulgated under the Act was made criminal by 50 U.S.C. App. 462 (b) (6). The court, however, upheld O’Brien’s conviction under 462 (b) (6), which in its view made violation of the nonpossession regulation a lesser included offense of the crime defined by the 1965 amendment.
Held: 1. The 1965 amendment to 50 U.S.C. App. 462 (b) (3) is constitutional as applied in this case. 2. The 1965 amendment is constitutional as enacted. Vacated; judgment and sentence of the district court reinstated.

Buckley v. Valeo, 424 U.S. 1 (1976)

The Federal Election Campaign Act of 1971 (Act), as amended in 1974, (a) limits political contributions to candidates for federal elective office by an individual or a group to $1,000 and by a political committee to $5,000 to any single candidate per election, with an overall annual limitation of $25,000 by an individual contributor; (b) limits expenditures by individuals or groups “relative to a clearly identified candidate” to
$1,000 per candidate per election, and by a candidate from his personal or family funds to various specified annual amounts depending upon the federal office sought, and restricts overall general election and primary campaign expenditures by candidates to various specified amounts, again depending upon the federal office sought; (c) requires political committees to keep detailed records of contributions and expenditures, including the name and address of each individual contributing in excess of $10 and his occupation and principal place of business if his contribution exceeds $100, and to file quarterly reports with the Federal Election Commission disclosing the source of every contribution exceeding $100 and the recipient and purpose of every expenditure over $100; it also requires every individual or group, other than a candidate or political committee, making contributions or expenditures exceeding $100 “other than by contribution to a political committee or candidate” to file a statement with the commission; and (d) creates an eight- member commission as the administering agency with recordkeeping, disclosure, and investigatory functions and extensive rulemaking, adjudicatory, and enforcement powers; it consists of two members appointed by the president pro tempore of the Senate, two by the Speaker of the House, and two by the president (all subject to confirmation by both Houses of Congress), and the Secretary of the Senate and the Clerk of the House as ex officio nonvoting members. Subtitle H of the Internal Revenue Code of 1954 (IRC), as amended in 1974, provides for public financing of presidential nominating conventions and general election and primary campaigns from general revenues and allocates such funding to conventions and general election campaigns by establishing three categories:
(1) “major” parties, (2) “minor” parties, and (3) “new” parties.

Held: 1. This litigation presents an Article III “case or controversy,” since the complaint discloses that at least some of the appellants have a sufficient “personal stake” in a determination of the constitutional validity of each of the challenged provisions to present “a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241. 2. The Act’s contribution provisions are constitutional, but the expenditure provisions violate the First Amendment. 3. The Act’s disclosure and recordkeeping provisions are constitutional. 4. Subtitle H of the IRC is constitutional. 5. The commission’s composition as to all but its investigative and informative powers violates Article II, 2, cl. 2.

Reno v. American Civil Liberties Union, 521 U.S. 844 (1997)

Two provisions of the Communications Decency Act of 1996 (CDA or Act) seek to protect minors from harmful material on the Internet, an international network of interconnected computers that enables millions of people to communicate with one another in “cyberspace” and to access vast amounts of information from around the world. Title 47 U.S.C.A. §223(a)(1)(B)(ii) (Supp. 1997) criminalizes the “knowing” transmission of “obscene or indecent” messages to any recipient under 18 years of age. Section 223(d) prohibits the “knowin[g]” sending or displaying to a person under 18 of

any message “that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards, sexual or excretory activities or organs.” Affirmative defenses are provided for those who take “good faith, . . . effective .
. . actions” to restrict access by minors to the prohibited communications, §223(e)(5)(A), and those who restrict such access by requiring certain designated forms of age proof, such as a verified credit card or an adult identification number, §223(e)(5)(B). A number of plaintiffs filed suit challenging the constitutionality of §§223(a)(1) and 223(d).
Held: The CDA’s “indecent transmission” and “patently offensive display” provisions abridge “the freedom of speech” protected by the First Amendment.
Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

The Child Pornography Prevention Act of 1996 (CPPA) expands the federal prohibition on child pornography to include not only pornographic images made using actual children, 18 U.S.C. §2256(8)(A), but also “any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture” that “is, or appears to be, of a minor engaging in sexually explicit conduct,” §2256(8)(B), and any sexually explicit image that is “advertised, promoted, presented, described, or distributed in such a manner that conveys the impression” it depicts “a minor engaging in sexually explicit conduct,” §2256(8)(D). Generally, pornography can be banned only if it is obscene under Miller v. California, 413 U.S. 15, 37 L. Ed. 2d 419, 93 S. Ct. 2607, but pornography depicting actual children can be proscribed whether or not the images are obscene because of the state’s interest in protecting the children exploited by the production process, New York v. Ferber, 458 U.S. 747, 758, 73 L. Ed. 2d 1113, 102 S. Ct. 3348, and in prosecuting those who promote such sexual exploitation, id. at 761.

Held: The prohibitions of §§2256(8)(B) and 2256(8)(D) are overbroad and unconstitutional.

United States v. Williams, 553 U.S. 285 (2008)

The defendant corresponded with an undercover police officer (LNM) on the Internet. After several exchanges, the defendant accused LNM of being a police officer, and LNM in turn accused the defendant of being a police officer. In order to prove that he was not a police officer, the defendant posted a computer hyperlink, which led to a Web page that contained minors engaged in sexually explicit conduct. A search warrant was executed at the defendant’s home and two computer hard drives were seized that held multiple images of minors engaged in sexually explicit conduct or display of genitalia.
The defendant was charged with one count of promoting, or “pandering” material “in a manner that reflects the belief, or that is intended to cause another to believe,” that the material contains illegal child pornography in violation of 18 U.S.C. § 2252A(a)(3)(B). The defendant was also charged with one count of child pornography under 18 U.S.C. § 2252A(a)(5)(B).
The defendant sought to dismiss the pandering charge on the grounds that it was unconstitutionally overbroad and vague. While his challenge was pending, the defendant signed a plea agreement, and Williams was sentenced to sixty months, but he still reserved the right to challenge the constitutionality of the first provision on appeal.
Held: The Court reversed the Eleventh Circuit’s ruling that the statute was unconstitutionally overbroad and vague. The Court also reasoned the statute did not violate the First Amendment, because the First Amendment did not protect offers to engage in illegal activity.

New York Times Co. v. Sullivan, 376 U.S. 254 (1964)

Respondent, an elected official in Montgomery, Alabama, brought suit in a state court alleging that he had been libeled by an advertisement in corporate petitioner’s newspaper, the text of which appeared over the names of the four individual petitioners and many others. The advertisement included statements, some of which were false, about police action allegedly directed against students who participated in a civil rights demonstration and against a leader of the civil rights movement; respondent claimed the statements referred to him because his duties included supervision of the police department. The trial judge instructed the jury that such statements were “libelous per se,” legal injury being implied without proof of actual damages, and that for the purpose of compensatory damages, malice was presumed, so that such damages could be awarded against petitioners if the statements were found to have been published by them and to have related to respondent. As to punitive damages, the judge instructed that mere negligence was not evidence of actual malice and would not justify an award of punitive damages; he refused to instruct that actual intent to harm or recklessness had to be found before punitive damages could be awarded or that a verdict for respondent should differentiate between compensatory and punitive damages. The jury found for the respondent and the State Supreme Court affirmed.
Held: A State cannot under the First and Fourteenth Amendments award damages to a public official for defamatory falsehood relating to his official conduct unless he proves “actual malice”—that the statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false.

Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974)

A Chicago policeman named Nuccio was convicted of murder. The victim’s family retained the petitioner, a reputable attorney, to represent them in civil litigation against Nuccio. An article appearing in the respondent’s magazine alleged that Nuccio’s murder trial was part of a Communist conspiracy to discredit the local police, and it falsely stated that the petitioner had arranged Nuccio’s “frame-up,” implied that the petitioner had a criminal record, and labeled him a “Communist-fronter.” Petitioner brought this diversity libel action against respondent. After the jury returned a verdict for petitioner, the district court decided that the standard enunciated in New York Times Co. v. Sullivan, 376 U.S. 254, which bars media liability for defamation of a public official absent proof that the defamatory statements were published with knowledge of their falsity or in reckless disregard of the truth, should apply to this suit. The court concluded that the standard protects media discussion of a public issue without regard to whether the person defamed is a public official as in New York Times Co. v. Sullivan, or a public figure, as in Curtis Publishing Co. v. Butts, 388 U.S. 130. The court found that petitioner had failed to prove knowledge of falsity or reckless disregard for the truth and therefore entered judgment n. o. v. for respondent. The court of appeals affirmed.
Held: 1. A publisher or broadcaster of defamatory falsehoods about an individual who is neither a public official nor a public figure may not claim the New York Times protection against liability for defamation on the ground that the defamatory statements concern an issue of public or general interest. 2. The states, however, may not permit recovery of presumed or punitive damages when liability is not based on knowledge of falsity or reckless disregard for the truth, and the private defamation plaintiff who establishes liability under a less demanding standard than the New York Times test may recover compensation only for actual injury. 3. Petitioner was neither a public official nor a public figure.

Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)

Chaplinsky was distributing the literature of his sect on the streets of Rochester on a busy Saturday afternoon. Members of the local citizenry complained to the city marshal, Bowering, that Chaplinsky was denouncing all religion as a “racket.” Bowering told them that Chaplinsky was lawfully engaged and then warned Chaplinsky that the crowd was getting restless. Some time later a disturbance occurred. The traffic officer on duty at the busy intersection started with Chaplinsky for the police station, but did not inform him that he was under arrest or that he was going to be arrested. On the way they encountered Marshal Bowering who had been advised that a riot was under way and was therefore hurrying to the scene. Bowering repeated his earlier warning to Chaplinsky who then addressed to Bowering the words set forth in the complaint.
Chaplinsky’s version of the affair was slightly different. He testified that when he met Bowering, he asked him to arrest the ones responsible for the disturbance. In reply Bowering cursed him and told him to come along. Appellant admitted that he said the words charged in the complaint with the exception of the name of the Deity.
Held: Our function is fulfilled by a determination that the challenged statute, on its face and as applied, does not contravene the Fourteenth Amendment.

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)

After allegedly burning a cross on a black family’s lawn, petitioner R.A.V. was charged under, inter alia, the St. Paul, Minnesota, Bias-Motivated Crime Ordinance, which prohibits the display of a symbol which one knows or has reason to know “arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.” The trial court dismissed this charge on the ground that the ordinance was substantially overbroad and impermissibly content-based, but the State Supreme Court reversed. It rejected the overbreadth claim because the phrase “arouses anger, alarm or resentment in others” had been construed in earlier state cases to limit the ordinance’s reach to “fighting words” within the meaning of this Court’s decision in Chaplinsky v. New Hampshire, 315 U.S. 568, 572, a category of expression unprotected by the First Amendment. The court also concluded that the ordinance was not impermissibly content-based, because it was narrowly tailored to serve a compelling governmental interest in protecting the community against bias-motivated threats to public safety and order.
Held: The ordinance is facially invalid under the First Amendment.

Virginia v. Black, 538 U.S. 343 (2003)

Respondents were convicted separately of violating a Virginia statute that makes it a felony “for any person . . . , with the intent of intimidating any person or group . . . , to burn . . . a cross on the property of another, a highway or other public place” and specifies that “any such burning . . . shall be prima facie evidence of an intent to intimidate a person or group.” When respondent Black objected on First Amendment grounds to his trial court’s jury instruction that cross burning by itself is sufficient evidence from which the required “intent to intimidate” could be inferred, the prosecutor responded that the instruction was taken straight out of the Virginia Model Instructions. Respondent O’Mara pleaded guilty to charges of violating the statute, but reserved the right to challenge its constitutionality. At respondent Elliott’s trial, the judge instructed the jury as to what the commonwealth had to prove, but did not give an instruction on the meaning of the word “intimidate” nor on the statute’s prima facie evidence provision. Consolidating all three cases, the Virginia Supreme Court held that the cross-burning statute is unconstitutional on its face; that it is analytically indistinguishable from the ordinance found unconstitutional in R.A.V. v. St. Paul, 505 U.S. 377, 120 L. Ed. 2d 305, 112 S. Ct. 2538; that it discriminates on the basis of content and viewpoint since it selectively chooses only cross burning because of its distinctive message; and that the prima facie evidence provision renders the statute overbroad because the enhanced probability of prosecution under the statute chills the expression of protected speech.
Held: The judgment is affirmed in part, vacated in part, and remanded.

Wisconsin v. Mitchell, 508 U.S. 476 (1993)

Pursuant to a Wisconsin statute, respondent Mitchell’s sentence for aggravated battery was enhanced because he intentionally selected his victim on account of the victim’s race. The State Court of Appeals rejected his challenge to the law’s constitutionality, but the State Supreme Court reversed. Relying on R.A.V. v. St. Paul, 505 U.S. 377, it held that the statute violates the First Amendment by punishing what the legislature has deemed to be offensive thought and rejected the state’s contention that the law punishes only the conduct of intentional victim selection. It also found that the statute was unconstitutionally overbroad because the evidentiary use of a defendant’s prior speech would have a chilling effect on those who fear they may be prosecuted for offenses subject to penalty enhancement. Finally, it distinguished antidiscrimination laws, which have long been held constitutional, on the ground that they prohibit objective acts of discrimination, whereas the state statute punishes the subjective mental process.
Held: Mitchell’s First Amendment rights were not violated by the application of the penalty-enhancement provision in sentencing him.

Brandenburg v. Ohio, 395 U.S. 444 (1969)

Appellant, a Ku Klux Klan leader, was convicted under the Ohio Criminal Syndicalism statute for “advocat[ing] . . . the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform” and for “voluntarily assembl[ing] with any society, group or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.” Neither the indictment nor the trial judge’s instructions refined the statute’s definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.
Held: Since the statute, by its words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action, it falls within the condemnation of the First and Fourteenth Amendments. Freedoms of speech and press do not permit a state to forbid 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. Whitney v. California, 274 U.S. 357, overruled.

Bethel School Dist. v. Fraser, 478 U.S. 675 (1986)

Respondent public high school student (hereafter respondent) delivered a speech nominating a fellow student for a student elective office at a voluntary assembly that was held during school hours as part of a school-sponsored educational program in self- government and that was attended by approximately 600 students, many of whom were 14-year-olds. During the entire speech, respondent referred to his candidate in terms of an elaborate, graphic, and explicit sexual metaphor. Some of the students at the assembly hooted and yelled during the speech, some mimicked the sexual activities alluded to in the speech, and others appeared to be bewildered and embarrassed. Prior to delivering the speech, respondent discussed it with several teachers, two of whom advised him that it was inappropriate and should not be given. The morning after the assembly, the assistant principal called respondent into her office and notified him that the school considered his speech to have been a violation of the school’s “disruptive-conduct rule,” which prohibited conduct that substantially interfered with the educational process, including the use of obscene, profane language or gestures. Respondent was given copies of teacher reports of his conduct and was given a chance to explain his conduct. After he admitted that he deliberately used sexual innuendo in the speech, he was informed that he would be suspended for three days and that his name would be removed from the list of candidates for graduation speaker at the school’s commencement exercises.
Held: 1. The First Amendment did not prevent the school district from disciplining respondent for giving the offensively lewd and indecent speech at the assembly. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, distinguished. 2. There is no merit to respondent’s contention that the circumstances of his suspension violated due process because he had no way of knowing that the delivery of the speech would subject him to disciplinary sanctions. Given the school’s need to be able to impose disciplinary sanctions for a wide range of unanticipated conduct disruptive of the educational process, the school disciplinary rules need not be as detailed as a criminal code that imposes criminal sanctions.

Hazelwood School Dist. v. Kuhlmeier, 484 U.S. 260 (1988)

Respondents, former high school students who were staff members of the school’s newspaper, filed suit in federal district court against petitioners, the school district and school officials, alleging that respondents’ First Amendment rights were violated by the deletion from a certain issue of the paper of two pages that included an article describing school students’ experiences with pregnancy and another article discussing the impact of divorce on students at the school. The newspaper was written and edited by a journalism class, as part of the school’s curriculum. Pursuant to the school’s practice, the teacher in charge of the paper submitted page proofs to the school’s principal, who objected to the pregnancy story because the pregnant students, although not named, might be identified from the text and because he believed that the article’s references to sexual activity and birth control were inappropriate for some of the younger students. The principal objected to the divorce article because the page proofs he was furnished identified by name (deleted by the teacher from the final version) a student who complained of her father’s conduct, and the principal believed that the student’s parents should have been given an opportunity to respond to the remarks or to consent to their publication. Believing that there was no time to make necessary changes in the articles if the paper was to be issued before the end of the school year, the principal directed that the pages on which they appeared be withheld from publication even though other, unobjectionable articles were included on such pages. The districtcCourt held that no First Amendment violation had occurred. The court of appeals reversed.
Held: Respondents’ First Amendment rights were not violated.

Morse v. Frederick, 551 U.S. 383 (2007)

In 2002, Principal Morse suspended student Frederick after he displayed a banner reading “BONG HiTS 4 JESUS” across the street from the school during a school- sanctioned and school-supervised event on the belief that the banner promoted illegal drug use. Frederick sued, claiming his constitutional rights to free speech were violated. The case was dismissed by the federal district court, but the Ninth Circuit reversed on appeal finding a First Amendment violation because the school punished Frederick without demonstrating that his speech threatened substantial disruption.
Held: The Court held that the First Amendment does not prevent educators or administrators from curtailing student speech at a school-supervised event, when their speech is reasonably viewed as promoting illegal drug use.

Cox v. New Hampshire, 312 U.S. 569 (1941)

Appellants are five Jehovah’s Witnesses who, with 63 others of the same persuasion, were convicted in the municipal court of Manchester, New Hampshire, for violation of a state statute prohibiting a “parade or procession” upon a public street without a special license. By motions and exceptions, appellants raised the questions that the statute was invalid under the Fourteenth Amendment of the Constitution of the United States in that it deprived appellants of their rights of freedom of worship, freedom of speech and press, and freedom of assembly; vested unreasonable and unlimited arbitrary and discriminatory powers in the licensing authority; and was vague and indefinite. These contentions were overruled, and the case comes here on appeal. If a municipality has authority to control the use of its public streets for parades or processions, as it undoubtedly has, it cannot be denied authority to give consideration, without unfair discrimination, to time, place, and manner in relation to the other proper uses of the streets.
Held: We find it impossible to say that the limited authority conferred by the licensing provisions of the statute in question as thus construed by the state court contravened any constitutional right.

Feiner v. New York, 340 U.S. 315 (1951)

Petitioner made an inflammatory speech to a mixed crowd of 75 or 80 Negroes and white people on a city street. He made derogatory remarks about President Truman, the American Legion, and local political officials; endeavored to arouse the Negroes against the whites; and urged that Negroes rise up in arms and fight for equal rights. The crowd, which blocked the sidewalk and overflowed into the street, became restless; its feelings for and against the speaker were rising; and there was at least one threat of violence. After observing the situation for some time without interference, police officers, in order to prevent a fight, thrice requested petitioner to get off the box and stop speaking. After his third refusal and after he had been speaking over 30 minutes, they arrested him, and he was convicted of violating 722 of the Penal Code of New York, which, in effect, forbids incitement of a breach of the peace. The conviction was affirmed by two New York courts on review.
Held: The conviction is sustained against a claim that it violated petitioner’s right of free speech under the First and Fourteenth Amendments.

Sheppard v. Maxwell, 384 U.S. 333 (1966)

Petitioner’s wife was bludgeoned to death July 4, 1954. From the outset, officials focused suspicion on petitioner, who was arrested on a murder charge July 30 and indicted August 17. His trial began October 18 and terminated with his conviction December 21, 1954. During the entire pretrial period, virulent and incriminating publicity about petitioner and the murder made the case notorious, and the news media frequently aired charges and countercharges besides those for which petitioner was tried. Three months before trial, he was examined for more than five hours without counsel in a televised three-day inquest conducted before an audience of several hundred spectators in a gymnasium. Over three weeks before trial, the newspapers published the names and addresses of prospective jurors, causing them to receive letters and telephone calls about the case. The trial began two weeks before a hotly contested election at which the chief prosecutor and the trial judge were candidates for judgeships. Newsmen were allowed to take over almost the entire small courtroom, hounding petitioner and most of the participants. Twenty reporters were assigned seats by the court within the bar and in close proximity to the jury and counsel, precluding privacy between petitioner and his counsel. The movement of the reporters in the courtroom caused frequent confusion and disrupted the trial; in the corridors and elsewhere in and around the courthouse, they were allowed free rein by the trial judge. A broadcasting station was assigned space next to the jury room. Before the jurors began deliberations, they were not sequestered and had access to all news media although the court made “suggestions” and “requests” that the jurors not expose themselves to comment about the case. Although they were sequestered during the five days and four nights of their deliberations, the jurors were allowed to make

inadequately supervised telephone calls during that period. Pervasive publicity was given to the case throughout the trial, much of it involving incriminating matter not introduced at the trial, and the jurors were thrust into the role of celebrities. At least some of the publicity deluge reached the jurors. At the very inception of the proceedings and later, the trial judge announced that neither he nor anyone else could restrict the prejudicial news accounts. Despite his awareness of the excessive pretrial publicity, the trial judge failed to take effective measures against the massive publicity that continued throughout the trial or to take adequate steps to control the conduct of the trial. The petitioner filed a habeas corpus petition contending that he did not receive a fair trial. The district court granted the writ. The court of appeals reversed.
Held: 1. The massive, pervasive, and prejudicial publicity attending petitioner’s prosecution prevented him from receiving a fair trial consistent with the Due Process Clause of the Fourteenth Amendment. 2. The case is remanded to the district court with instructions to release petitioner from custody unless he is tried again within a reasonable time.

Nebraska Press Association v. Stuart, 427 U.S. 539 (1976)

Respondent Nebraska state trial judge, in anticipation of a trial for a multiple murder that had attracted widespread news coverage, entered an order that, as modified by the Nebraska Supreme Court, restrained petitioner newspaper, broadcasters, journalists, news media associations, and national newswire services from publishing or broadcasting accounts of confessions or admissions made by the accused to law enforcement officers or third parties, except members of the press, and other facts “strongly implicative” of the accused. The modification of the order had occurred in the course of an action by petitioners, which had sought a stay of the trial court’s original order and in which the accused and the State of Nebraska intervened. This Court granted certiorari to determine whether the order violated the constitutional guarantee of freedom of the press. The order expired by its own terms when the jury was impaneled. Respondent was convicted; his appeal is pending in the Nebraska Supreme Court.

Held: 1. The case is not moot simply because the order has expired, since the controversy between the parties is “capable of repetition, yet evading review.” 2. While the guarantees of freedom of expression are not an absolute prohibition under all circumstances, the barriers to prior restraint remain high and the presumption against its use continues intact. 3. The heavy burden imposed as a condition to securing a prior restraint was not met in this case.

Red Lion Broadcasting Co. v. FCC, 395 U.S. 367 (1969)

The Federal Communications Commission (FCC) has for many years imposed on broadcasters a “fairness doctrine,” requiring that public issues be presented by broadcasters and that each side of those issues be given fair coverage. In No. 2, the FCC declared that petitioner Red Lion Broadcasting Co. had failed to meet its obligation under the fairness doctrine when it carried a program that constituted a personal attack on one Cook and ordered it to send a transcript of the broadcast to Cook and provide reply time, whether or not Cook would pay for it. The court of appeals upheld the FCC’s position.
After the commencement of the Red Lion litigation, the FCC began a rule-making proceeding to make the personal attack aspect of the fairness doctrine more precise and more readily enforceable and to specify its rules relating to political editorials. The rules, as adopted and amended, were held unconstitutional by the court of appeals in RTNDA (No. 717), as abridging the freedoms of speech and press.
Held: 1. The history of the fairness doctrine and of related legislation shows that the FCC’s action in the Red Lion case did not exceed its authority and that, in adopting the new regulations, the FCC was implementing congressional policy. 2. The fairness doctrine and its specific manifestations in the personal attack and political editorial rules do not violate the First Amendment.

Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105 (1991)
Among other things, New York’s “Son of Sam” law provides that an “entity” contracting with a person “accused or convicted of a crime” for the production of a book or other work describing the crime must pay to respondent Crime Victims Board any moneys owed to that person under the contract; requires the board to deposit such funds in an escrow account for payment to any victim who, within five years, obtains a civil judgment against the accused or convicted person and to the criminal’s other creditors; and defines “person convicted of a crime” to include “any person who has voluntarily and intelligently admitted the commission of a crime for which such person is not prosecuted.” After it discovered that petitioner publisher had signed an agreement with an author who had contracted with admitted organized crime figure Henry Hill for the production of a book about Hill’s life, the board, inter alia, determined that petitioner had violated the Son of Sam law and ordered it to turn over all money payable to Hill. Petitioner then brought suit under 42 U.S.C. 1983, seeking a declaration that the law violates the First Amendment and an injunction barring the law’s enforcement. The district court found the law to be consistent with the amendment, and the court of appeals affirmed.
Held: The Son of Sam law is inconsistent with the First Amendment.

Leathers v. Medlock, 499 U.S. 439 (1991)

Arkansas’ Gross Receipts Act imposes a tax on receipts from the sale of all tangible personal property and specified services, but expressly exempts, inter alia, certain receipts from newspaper and magazine sales. In 1987, Act 188 amended the Gross Receipts Act to impose the tax on cable television. Petitioners in No. 90-38, a cable television subscriber, a cable operator, and a cable trade organization (cable petitioners) brought this class action in the State Chancery Court, contending that their expressive rights under the First Amendment and their rights under the Equal Protection Clause of the Fourteenth Amendment were violated by the extension of the tax to cable services, the exemption from the tax of newspapers and magazines, and the exclusion from the list of services subject to the tax of scrambled satellite broadcast television services to home dish antennae owners. In 1989, shortly after the Chancery Court upheld the constitutionality of Act 188, Arkansas adopted Act 769, which extended the tax to, among other things, all television services to paying customers. On appeal, the State Supreme Court held that the tax was not invalid after the passage of Act 769 because the Constitution does not prohibit the differential taxation of different media. However, believing that the First Amendment does prohibit discriminatory taxation among members of the same medium and that cable and scrambled satellite television services were “substantially the same,” the Supreme Court held that the tax was unconstitutional for the period during which it applied to cable but not satellite broadcast services.
Held: 1. Arkansas’ extension of its generally applicable sales tax to cable television services alone or to cable and satellite services, while exempting the print media, does not violate the First Amendment. 2. The question whether Arkansas’ temporary tax distinction between cable and satellite services violated the Equal Protection Clause must be addressed by the State Supreme Court on remand.

Something to Consider

Do you agree with the Court’s reasoning: A governmental regulation is sufficiently justified if it is within the constitutional power of the government and furthers an important or substantial governmental interest unrelated to the suppression of free expression and if the incidental restriction on alleged First Amendment freedom is no greater than is essential to that interest. (Follows United States v. O’Brien)

Read Miller v. California, 413 U.S. 15 (1973). Do you believe the three “guidelines” articulated in Miller adequately “guide” later courts? Why or why not? Should there be another approach? If so, what do you suggest? (Follows Buckley v. Valeo)

Explain why the Court held that the “indecent transmission” and “patently offensive display” provisions of the Communications Decency Act of 1996 abridge the freedom of speech protected by the First Amendment. Do you agree with the Court? Why or why not? (Follows Reno v. American Civil Liberties Union)

Consider how the Child Pornography Prevention Act of 1996 is inconsistent with Miller v. California. (Follows Ashcroft v. Free Speech Coalition)

Using New York Times Co. v. Sullivan, what are the rules to be applied in defamation cases involving public officials relating to the performance of their public duties? (Follows New York Times Co. v. Sullivan)

Further Reading in This Area

1. Hustler Magazine v. Falwell, 485 U.S. 46 (1988): Public figures cannot recover for intentional infliction of emotional distress unless they can prove the false statement was made with actual malice.

2. Time, Inc. v. Firestone, 424 U.S. 448 (1976): For First Amendment purposes, not all newsworthy persons are public figures.

3. Today, “damned racketeer” and “damned Fascist” might not be likely to “provoke the average person to retaliation” but it is not difficult to conjure up language that will bring average persons to blows. (Follows Chaplinsky v. New Hampshire )

4. Explain what the Court in R.A.V. v. City of St. Paul means when it states:

“[T]he regulation of ‘fighting words’ may not be based on non-proscribable content. It may, however, be under-inclusive, addressing some offensive instances and leaving other, equally offensive, ones alone, so long as the selective proscription is not based on content, or there is no realistic possibility that regulation of ideas is afoot.” (Follows R.A.V. v. City of St. Paul)

5. How do you explain why a “cry for specific illegal action” is treated so differently from a “violent opposition to civil rights laws?” (Follows Brandenburg v. Ohio)

6. Why does the Court draw a distinction between adults and children in Bethel School Dist. v. Fraser? Do you agree with the Court’s reasoning? (Follows Bethel School Dist. v. Fraser)

7. Think about this: “A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.” Can you imagine situations where the basic educational mission might vary from one school to another or from one community to another? Discuss. (Follows Hazelwood School Dist. v. Kuhlmeier)

8. “The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order, appears, the power of the State to prevent or punish is obvious.” Feiner, quoting Cantwell v. Connecticut. Using this language as a guide, can you identify situations where “words are [or have been] likely to produce violence in others?” (Follows Feiner
v. New York)

9. According to the Supreme Court in Sheppard v. Maxwell, what could the trial judge have done to avoid the carnival atmosphere? (Follows Sheppard v. Maxwell)

10. Notice that a confession given to the press was not prohibited under the trial court’s pretrial restraining order. The Supreme Court held that the trial court had less drastic tools available to protect the defendant’s right to a fair trial. What were these less drastic tools? (Follows Nebraska Press Association v. Stuart)

11. The Court held that since the “marketplace” is limited, enforcing fairness is constitutional. Discuss this concept. (Follows Red Lion Broadcasting Co. v. FCC)

12. Consider why the Court in Simon & Shuster, Inc. v. Members of the New York State Crime Victims Bd. held New York’s Son of Sam law presumptively unconstitutional. (Follows Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd.) Supplemental Reading for Chapter 11