Freedom of Expression and Association
3) Contributions to political action committees (PACs)
The government may limit contributions to a political action committee (PAC). b. Political campaign expenditures In contrast to campaign contributions, restrictions on expenditures by individuals and entities (including corporations and unions) on communications during an election campaign regarding a candidate are subject to strict scrutiny. So long as the source of the funding is disclosed, there is no legal limit to the amount that corporations and unions may spend on "electioneering communications." In addition, expenditures by a candidate on her own behalf cannot be limited. c. Political speakers In addition to individuals, corporations (both nonprofit and for-profit) enjoy First Amendment protection with regard to political speech. Citizens United, supra. Similarly, a candidate for a judgeship has a First Amendment right to express his views on disputed legal or political issues.
Regulation of Time, Place, or Manner of Expression (Content-neutral)
The government's ability to regulate the time, place, and manner of speech varies with the forum in which the speech takes place.
General Considerations
The press has the right to publish information about matters of public concern, and the viewers have a right to receive it. This right may be restricted only by a regulation that is narrowly tailored to further a compelling governmental interest (i.e., strict scrutiny applies).
Attending trials
The public and the press both have the right to attend criminal trials, but this right is not absolute. It may be outweighed if the trial judge finds an overriding interest that cannot be accommodated by less restrictive means. The Supreme Court has not determined whether this right also applies to civil trials. However, the Supreme Court has held that the defendant's right to a public trial extended to voir dire, and the trial court must consider reasonable alternatives to closing the voir dire to the public in addressing the trial court's concerns.
Viewpoint-neutral
The regulation need not be content-neutral, but it must be viewpoint-neutral. In other words, the government may prohibit speech on certain issues altogether, but it may not allow only one side of an issue to be presented. For example, while a restriction on all public speeches related to abortion on military bases would likely be upheld, a restriction only on pro-life speeches would not.
Reasonable
The restriction on speech-related activities in nonpublic forums must only be rationally related to a legitimate governmental interest. For example, a city may sell commercial advertising space inside city buses but refuse to sell such space for political advertising in order to avoid the appearance of favoritism and imposition on a captive audience.
Injunctions
The test for the constitutionality of injunctions in public forums depends on whether the injunction is content-neutral or content-based. If an injunction is content-neutral, then the test is whether it burdens no more speech than is necessary to achieve an important governmental interest. On the other hand, if the injunction is content-based, it must be necessary for the government to achieve a compelling governmental interest.
Residential Areas
There is no right to focus picketing on a particular single residence. However, a person may solicit charitable funds in a residential area. Door-to-door solicitation does not require a permit, as long as the solicitation is for noncommercial or nonfundraising purposes.
Public Schools
When a public school, as a designated (limited) public forum, permits the public to use its facilities, it cannot discriminate against organizations based on its beliefs. Similarly, a public school may provide funding and other benefits (e.g., free use of facilities) to student groups, but it must do so on a viewpoint-neutral basis.
Government Speech
When the government itself speaks, it is not constrained by the First Amendment. Therefore, government speech (public service announcements, agricultural marketing campaigns, etc.) need not be viewpoint-neutral. This Government Speech Doctrine, however, is subject to the requirements of the Establishment Clause. a. Monuments on public property The display of a monument on public property, even if the monument has been donated by a private person, constitutes government speech. Pleasant Grove City v. Summum, 555 U.S. 460 (2009) (government installed a Ten Commandments monument donated by a private person in a public park; the Court held that governmental entities may exercise "selectivity" in choosing a monument being offered by a private donor). b. Funding of private messages The government may fund private messages. However, it must generally do so on a viewpoint-neutral basis. The exception to this is when the government decides to fund artists; the decision of which artist to fund is necessarily based on the content of the artist's work.
A . Regulation of Speech
...
Public Forum
A "public forum" may be traditional or designated. Traditional public forums are those that are historically associated with expression, such as sidewalks, streets, and parks. A designated (or limited) public forum is one that has not historically been used for speech-related activities, but which the government has opened for such use, such as civic auditoriums, publicly owned theaters, or school classrooms that the public is allowed to use afterhours. The practical difference between the two is that the government can change a designated forum to a nonpublic forum, but it cannot do the same with a traditional forum.
Gag orders
A gag order is a judicial order prohibiting the press from publishing information about court proceedings. Such orders are subject to prior-restraint analysis. Gag orders are almost always struck down because they are rarely the least restrictive means of protecting the defendant's right to a fair trial. The trial judge has other alternatives available, such as change of venue, postponement of the trial, careful voir dire, or restricting the statements of lawyers and witnesses.
No constitutional privilege to protect sources
A journalist has no First Amendment right to refuse to testify before a grand jury regarding the content and source of information relevant to the criminal inquiry.
Unfettered Discretion
A law or regulation that permits a governmental official to restrict speech (e.g., requires an official to issue a permit before a rally can be held) must provide definite standards as to how to apply the law in order to prevent governmental officials from having unfettered discretion over its application. Such a law or regulation must be related to an important governmental interest and contain the procedural safeguards mentioned above. A statute that gives officials unfettered discretion is void on its face; speakers need not apply for a permit and may not be punished for violating the licensing statute.
Nonpublic Forum
A nonpublic forum is essentially all public property that is not a traditional or designated public forum. Examples include government offices, schools, jails, and military bases. Sidewalks on postal service property and airport terminals are also considered nonpublic forums. The government may regulate speech-related activities in nonpublic forums as long as the regulation is: (i) viewpoint-neutral;and (ii) reasonably related to a legitimate governmental interest. Note that a governmental fundraising campaign is a nonpublic forum for the expression of speech. The decision to exclude some charities (but not others) cannot be made because the government disagrees with a particular organization's political views; such a decision must be ideologically neutral.
Prior Restraints
A prior restraint is a regulation of speech that occurs in advance of its expression (e.g., publication or utterance). Prior restraints are generally presumed to be unconstitutional, with limited exceptions. These rare exceptions require at a minimum that: i) There is a particular harm to be avoided (like publication of troop movements); and ii) Certain procedural safeguards are provided to the speaker. Examples of such safeguards include: a) The standards must be narrowly drawn, reasonable, and definite; b) The censoring body must promptly seek an injunction; and c) There must be a prompt and final judicial determination of the validity of the restraint. The burden is on the government to prove that the material to be censored is not protected speech. Prior restraints have been rejected even when national security was at issue, and even when press coverage threatened the fairness of a trial. (prior restraint must be the only way to accomplish a goal).
Fighting Words
A speaker may be criminally punished for using "fighting words," which are words that by their very nature are likely to incite an immediate breach of the peace. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Words that are simply annoying or offensive are not fighting words; there must be a genuine likelihood of imminent violence by a hostile audience. Cohen v. California, 403 U.S. 15 (1971). EXAM NOTE: Attempts to forbid fighting words almost always fail as vague, overbroad, or otherwise constitutionally infirm. Statutes designed to punish only fighting words that express certain viewpoints are unconstitutional. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (the Court struck down an ordinance that applied only to fighting words that insulted or provoked on the basis of race, religion, or gender). However, actual threats of violence are outside the protection of the First Amendment, given the need to protect individuals from (i) the fear of violence, (ii) the disruption that fear engenders, and (iii) the possibility that the threatened violence will occur. R.A.V. v. City of St. Paul, 505 at 388.
Incitement to Violence
A state may forbid speech that advocates the use of force or unlawful action if: i) The speech is directed to inciting or producing imminent lawless action; and ii) It is likely to incite or produce such action (i.e., creates a clear and present danger). Brandenburg v. Ohio, 395 U.S. 444 (1969). Advocacy requires the use of language reasonably and ordinarily calculated to incite persons to such action. Yates v. United States, 354 U.S. 298 (1957). The abstract expression of ideas, including the teaching of the moral propriety or even moral necessity for a resort to force and violence, is not the same as the actual incitement of violence. There must be substantial evidence of a strong and pervasive call to violence. Noto v. United States, 367 U.S. 290 (1960).
Regulation of Media
Although the First Amendment specifically mentions freedom of the press, the media has no greater First Amendment rights than the general public.
2. Bar Membership
Although the state can inquire into the character of a candidate for bar admission, such admission cannot be denied on the basis of political association unless the candidate knowingly belongs to a subversive organization with specific intent to further its illegal ends. Schware v. Board of Bar Exam'rs, 353 U.S. 232 (1957). The state may, however, deny bar membership to a candidate who refuses to answer questions about political affiliations if that refusal obstructs the investigation of the candidate's qualifications. Konigsberg v. State Bar of California, 366 U.S. 36 (1961).
1. Public Employment
An individual generally cannot be denied public employment based simply upon membership in a political organization. Keyishian v. Board of Regents, 385 U.S. 589 (1967). a. Test A person may only be punished or deprived of public employment based on political association if that individual: i) Is an active member of a subversive organization; ii) Has knowledge of the organization's illegal activity; and iii) Has a specific intent to further those illegal objectives. Scales v. United States, 367 U.S. 203 (1961) (conviction based on membership in an organization advocating the violent overthrow of the government upheld). b. Loyalty oaths Public employees may be required to take loyalty oaths promising that they will support the Constitution and oppose the forceful, violent, or otherwise illegal or unconstitutional overthrow of the government. Connell v. Higgenbotham, 403 U.S. 207 (1971). Such oaths are often found to be vague or overbroad, however. E.g., Cramp v. Board of Public Instruction, 368 U.S. 278 (1961) (striking down as vague a statute requiring public employees to swear that they have not and will not lend "aid, support, advice, counsel, or influence to the Communist Party"); Shelton v. Tucker, 364 U.S. 479 (1960) (striking down as overbroad a statute requiring teachers to file an affidavit listing every organization to which they have belonged or regularly contributed during the past five years).
1. No immunity from laws of general applicability
As mentioned previously, the press has no greater First Amendment rights than does the general public, i.e., there is no special privilege allowing the press to invade the rights of others. As such, members of the press are not immune from the application of generally applicable laws, even if the application of such laws has a negative incidental effect on the ability to gather and report the news. Cohen v. Cowles Media Co., 501 U.S. 663 (1991). Example: A reporter who trespasses on another's property while investigating a story is not shielded from liability by the First Amendment.
c. Speech by government employees
Attempts to fire or penalize a government employee for speech on matters of "public concern" will be strictly scrutinized. However, speech on matters of public concern made in furtherance of the public employee's job functions receives less protection under the First Amendment than speech made by a person acting outside of his job. Courts balance the First Amendment interest of the employee against the interest of the state, as an employer, in promoting the efficiency of the public services it provides through its employees. Speech by a government employee, including a petition for redress related to the employee's job, that does not relate to a matter of public concern, is not constitutionally protected.
4. Internet
Because the Internet is not composed of scarce frequencies as are the broadcast media, and because of the reduced risk of an unexpected invasion of privacy over the Internet, any regulation of Internet content is subject to strict scrutiny. Reno v. ACLU, 521 U.S. 844 (1997).
2. Broadcast
Because the broadcast spectrum is a limited resource, radio and television broadcasters are said to have a greater responsibility to the public, and they therefore can be more closely regulated than print and other media. Broadcasters may be sanctioned, therefore, for airing "patently offensive sexual and excretory speech," even if such speech does not qualify as obscene under the Miller test, in the interest of protecting children likely to be listening. FCC v. Pacifica Found., 438 U.S. 726 (1978)
Commercial Speech
Commercial speech—advertising and similarly economically oriented expression—is entitled to an intermediate level of First Amendment protection. Restrictions on commercial speech are reviewed under a four-part test: i) The commercial speech must concern lawful activity and be neither false nor misleading (fraudulent speech or speech which proposes an illegal transaction may be prohibited); ii) The asserted governmental interest must be substantial; iii) The regulation must directly advance the asserted interest; and iv) The regulation must be narrowly tailored to serve that interest. In this context, narrowly tailored does not mean the least restrictive means available; rather, there must be a "reasonable fit" between the government's ends and the means chosen to accomplish those ends. Board of Trustees of State University of New York v. Fox, 492 U.S. 469 (1989). Under this test, the Court has struck down laws prohibiting truthful advertising of legal abortions, contraceptives, drug prices, alcohol prices, and attorneys' fees and regulation of billboards on the basis of aesthetic value and safety. Example: A Massachusetts regulation that prohibited tobacco billboards within 1,000 feet of a school was struck down because the means—effectively barring most outdoor tobacco advertising in urban areas—were not narrowly tailored to the ends of protecting children. Note that solicitation of funds, however, is recognized as a form of protected speech.
Regulation of Association
Freedom of association protects the right to form or participate in any group, gathering, club, or organization virtually without restriction, although the right is not absolute. An infringement upon this right may be justified by a compelling state interest. See, e.g., Board of Dirs. of Rotary Int'l v. Rotary Club of Duarte, 481 U.S. 537 (1987) (discrimination against women was not in furtherance of or necessary for any of the expressive activity undertaken by the organization); but see Boy Scouts of America v. Dale, 530 U.S. 640 (2000) (requiring the Boy Scouts to accept leaders who acted in a manner contrary to Boy Scout principles would unduly intrude upon the Boy Scouts' expressive associational rights).
Personal Property
Governmental regulation of speech on a person's own private property will rarely be upheld, particularly content-based regulations. While the government has some limited powers to regulate speech on private property, outright bans on certain types of speech, such as signs in a person's yard or window, are impermissible. City of Ladue v. Gilleo, 512 U.S. 43 (1994) (statute banning all residential signs in order to fight "visual clutter" was found unconstitutional).
Restrictions
In either type of public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions: i) Are content-neutral as to both subject matter and viewpoint (i.e., it is not necessary to hear what is said in order to apply the regulation); ii) Are narrowly tailored to serve a significant governmental interest; and iii) Leave open ample alternative channels for communication of the information. However, additional restrictions, such as an absolute prohibition of a particular type of expression, will be upheld only if narrowly drawn to accomplish a compelling governmental interest, i.e., only if they satisfy strict scrutiny. Restrictions that are not content-neutral are also subject to strict scrutiny (see § XVIII.C., Regulation of Content, infra).
Regulation of Content
In general, the government may regulate the content of speech only if the regulation is necessary to achieve a compelling governmental interest and is narrowly tailored to meet that interest (i.e., the strict scrutiny test). Brown v. Entm't Merchs. Ass'n, 564 U.S ___, 131 S. Ct. 2729 (2011) (state law that prohibited the sale of violent video games to minors is an unconstitutional content restriction on speech); The government must identify an actual problem, and the regulation of speech must be necessary to solve that problem. This standard is incredibly stringent and is not often met. However, the government may restrict speech on the basis of content if the speech falls into one of the following historic and traditional categories: obscenity, subversive speech, fighting words, defamation, or commercial speech. States are not free to create new categories of content-based restrictions without persuasive evidence that such restrictions have a long-standing history of proscription.
Defamation
Limits on punishment for defamatory speech may apply in cases in which the plaintiff is a public official or public figure, or when a defamatory statement involves a matter of public concern. In addition to the elements of a prima facie case of defamation, the plaintiff must in these cases prove both fault and the falsity of the statement. a. Public figure or official A public figure is someone who is known to the general public and includes any person who has voluntarily injected herself into the public eye. The plaintiff must prove that the defendant acted with actual malice, i.e., knowledge of the statement's falsity or reckless disregard for whether it was true or false. New York Times v. Sullivan, 376 U.S. 254 (1964). Scientists who publish in scientific journals, criminals, and spouses of wealthy persons are not considered public figures. b. Public concern If the plaintiff is a private figure but the defamatory statement involves a matter of public concern, then the standard is lower, but the plaintiff still must establish negligence with respect to the falsity of the statement.
c. Land-use restrictions and d. Minors
Narrowly drawn zoning ordinances may be used to restrict the location of adult theaters if the purpose of the regulation is to reduce the impact on the neighborhood of such establishments, but they may not be used to ban such establishments entirely. It does not matter that such establishments may be found in adjoining jurisdictions. Minors Material that appeals to the prurient interests of minors may be regulated as to minors, even if it would not be considered obscene to an adult audience. The government may not, however, block adults' access to indecent materials in order to prevent them from reaching children.
Vagueness and Overbreadth
Overbreadth A law that burdens substantially more speech than is necessary to protect a compelling governmental interest is "overbroad" and therefore void. A statute's overbreadth must be substantial both in an absolute sense and relative to the statute's plainly legitimate reach. The mere fact that some impermissible applications of a statute can be conceived of is not sufficient to render a statute overbroad. In order to prevent a "chilling effect" on protected speech (i.e., frightening people into not speaking for fear of prosecution), overbroad statutes may be challenged as "facially invalid" even by those who are validly regulated on behalf of those who are not. Vagueness A statute is "void for vagueness" if it fails to provide a person of ordinary intelligence with fair notice of what is prohibited. As with overbreadth, vagueness is impermissible for fear that constitutionally protected speech will be "chilled." In addition, the "void for vagueness" doctrine is grounded in the due process requirement of notice. Under due process principles, laws that regulate persons or entities must give fair notice of conduct that is forbidden or required. Statutes that tie criminal culpability to conduct that involves subjective judgments without providing statutory definitions, narrow context, or settled legal meanings have been struck down for vagueness.
1. Expressive Conduct
Protected speech can include not only written, oral, and visual communication, but also activities such as picketing and leafleting. Expressive conduct (or symbolic speech) may be protected as speech, but it is subject to a lesser degree of protection. Governmental regulation of expressive conduct is upheld if: i) The regulation is within the government's power to enact (e.g., through a local government's police power); ii) The regulation furthers an important governmental interest; iii) The governmental interest is unrelated to the suppression of ideas; and iv) The burden on speech is no greater than necessary. Example: Laws against flag desecration are unconstitutional because they suppress an expressive type of speech to show disapproval. Example: laws against public nudity are constitutional because public order must be kept, which is unrelated to speech. The act of signing a petition constitutes expressive conduct. Public disclosure of the petition, and, thereby, the names of the individuals who signed the petition does not violate the First Amendment because such disclosure is substantially related to the important interest of preserving the integrity of the electoral process.
e. Child pornography and f. Violence
The First Amendment also does not protect child pornography, which is sexually explicit visual portrayals that feature children. Because of the state's compelling interest in protecting minor children from exploitation, the sale, distribution, and even private possession of child pornography may be prohibited, even if the material would not be obscene if it involved adults. Simulated child pornography (i.e., pornography using young-looking adults or computer-generated images) may not be banned as child pornography. However, offers to sell or buy simulated child pornography that contain actual depictions of children even though the sexually explicit features are simulated may be criminalized when the material is presented as actual child pornography. f. Violence Violence is not included in the definition of obscenity that may be constitutionally regulated.
3. Cable Television
The First Amendment protection provided to cable television falls somewhere between the extensive protection given to print media and the more limited protection for broadcasting. As such, a law requiring cable operators to carry local television stations is subject to intermediate scrutiny. Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622 (1994). Content-based regulations of cable broadcasts are subject to strict scrutiny, however. United States v. Playboy Entm't. Group, Inc., 529 U.S. 803 (2000).
Freedom Not to Speak
The First Amendment protects not only freedom of speech, but also the freedom not to speak. One such example is a child's right not to recite the Pledge of Allegiance. Similarly, the private organizers of a parade cannot be compelled by the government to include in the parade a group that espouses a message with which the organizers disagree. Nor can the government mandate as a condition of federal funding that recipients explicitly agree with the government's policy to oppose prostitution and sex trafficking. However, a state can compel a private entity (e.g., a shopping mall) to permit individuals to exercise their own free-speech rights when the private entity is open to the public and the message is not likely to be attributable to the private entity. a. Compelled financial support Although one can be compelled to join or financially support a group with respect to one's employment, one cannot be forced to fund political speech by that group. Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977) (teacher required to pay union dues); Keller v. State Bar of California, 496 U.S. 1 (1990) (lawyer required to join a bar association). A student, however, can be required to pay a university activity fee even though the fee may support groups that espouse messages with which the student disagrees, at least when the fee is allocated in accord with a viewpoint-neutral scheme.
Illegally obtained and private information
The First Amendment shields the media from liability for publishing information that was obtained illegally by a third party as long as the information involves a matter of public concern and the publisher neither obtained it unlawfully nor knows who did. Similarly, the First Amendment shields the media from liability for publication of a lawfully obtained private fact, e.g., the identity of a rape victim, so long as the news story involves a matter of public concern.
Obscenity and Child Pornography
a. Obscenity test To be considered obscene, speech must meet each part of a three-prong test developed in Miller v. California, 413 U.S. 15 (1973). Under the Miller test, the average person, applying contemporary community standards, must find that the material, taken as a whole: i) Appeals to the "prurient interest"; ii) Depicts sexual conduct in a patently offensive way; and iii) Lacks serious literary, artistic, political, or scientific value. EXAM NOTE: Standards Distinguished - The first two prongs of this test use a contemporary community standard, which may be national but is generally considered to be local or statewide. A national standard must be applied, however, to the third prong of the test—determining the value of the work—because the work may merit constitutional protection despite local views to the contrary. With regard to the third prong, the judge, not the jury, determines whether this standard has been met. Either an appellate court or a jury can assess whether the material is obscene. Evidence of similar material on newsstands is not automatically admissible, nor is expert testimony required to make such a determination. b. Prohibited activities The sale, distribution, and exhibition of obscene material may be prohibited. However, the right to privacy precludes criminalization of possession of obscenity in one's own home.
Campaign Related Speech
a. Political campaign contributions Statutes limiting campaign contributions are subject to intermediate scrutiny: they must be "closely drawn" to correspond with a sufficiently important interest. 1) Contributions to candidates The government may limit contributions to individual candidates because excessive contributions to candidates create a danger of corruption and the appearance of corruption. Limits on campaign contributions to candidates for state office ranging from $275 to $1,000 have been upheld. However, the government cannot set differential contribution limits that penalize a candidate who finances his own campaign. 2) Contributions to political parties The government may limit contributions to a political party that are used to expressly advocate for the election or defeat of a particular candidate (also known as "hard money") as well as contributions that are used for other purposes, such as promoting the party itself (also known as "soft money"). In addition, the government may require a political party to disclose contributors and recipients unless the party can show that such disclosure would cause harm to the party.
3. Elections and Political Parties
a. Voters in primary elections A state cannot require a local political party to select presidential electors in an open primary (i.e., a primary in which any voter, including members of another party, may vote) when the national party prohibits nonparty members from voting. Democratic Party v. LaFolette, 450 U.S. 107 (1981). A state can require a semi-closed primary system, in which only registered party members and independents can vote in the party's primary, even if the party wants to permit anyone to vote. Clingman v. Beaver, 544 U.S. 581 (2005). On the other hand, a state may not prohibit a political party from allowing independents to vote in its primary. Tashjian v. Republican Party of Connecticut, 479 U.S. 208 (1986). 1) Blanket primary A state may adopt a blanket primary system (i.e., a primary in which all voters regardless of party affiliation or lack thereof vote) that is nonpartisan. Under a nonpartisan primary system, the voters choose candidates for the general election without regard for their party affiliation. A nonpartisan blanket primary system in which a candidate identifies his own party preference or his status as an independent and that identification appears on the ballot has withstood a facial challenge, despite assertions that this self-designation violates the party's First Amendment rights as compelled speech and forced association. Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008). By contrast, a partisan blanket primary system in which a party's nominees are chosen violates the party's First Amendment rights of free speech and association. Cal. Democratic Party v. Jones, 530 U.S. 567 (2000).
b. Ballot access to general election, c. Fusion candidate and d. Replacement candidate
b. Ballot access to general election A state may refuse to grant a political party's candidate access to the general-election ballot unless the party demonstrates public support through voter signatures on a petition, voter registrations, or previous electoral success. Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997); Munro v. Socialist Workers Party, 479 U.S. 189 (1986). c. Fusion candidate A state may prohibit a fusion candidate (i.e., a candidate who is nominated by more than one political party) from appearing on the general-election ballot as a candidate of multiple parties. This limitation on the associational rights of political parties is justified by the state's interests in ballot integrity and political stability. Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997). d. Replacement candidate When a state gives a political party the right to select an interim replacement for an elected state official who was a member of that party, the party may select the replacement through an election at which only party members may vote. Rodriguez v. Popular Democratic Party, 457 U.S. 1 (1982).
First Amendment conflict with state right of publicity
me states recognize a right of publicity—the right of a person to control the commercial use of his or her identity. The right is an intellectual property right derived under state law, the infringement of which creates a cause of action for the tort of unfair competition. In Zacchini v. Scripps-Howard Broad. Co., 433 U.S. 562 (1977), the Supreme Court considered a conflict between the First Amendment and a person's state-law right of publicity. A news program had televised a videotape of a daredevil's entire 15-second performance at a local fair when he was shot out of a cannon. The lower court held that the First Amendment protected the telecast from a tort suit regarding the right of publicity. The Supreme Court reversed, holding that the First and Fourteenth Amendments do not immunize the news media from civil liability when they broadcast a performer's entire act without his consent, and the Constitution does not prevent a state from requiring broadcasters to compensate performers. Note that a state government may pass a law shielding the press from liability for broadcasting performers' acts.
