Con Law II-Set 4 (First and Second Amendment)

Tinker v. Des Moines Independent Community School District John Tinker, Mary Beth Tinker, and Christopher Echardt (plaintiffs), all minor school children, protested the Vietnam War by wearing black armbands to their Des Moines school during the Christmas holiday season in December 1965. Tinker and the others were suspended by Des Moines Independent Community School District (defendant). The children and their parents brought suit in federal district court challenging their suspension as a violation of their First Amendment right to freedom of speech. The district court ruled in favor of the School District, and a tie vote in the court of appeals permitted the district court's ruling to stand. Tinker appealed to the United States Supreme Court.

In a public school setting, school officials may only regulate students' speech if they do so evenhandedly and without regard to the content of speech. Neither students nor teachers shed their First Amendment rights at the door of the schoolhouse. However, these rights must be analyzed in light of the comprehensive authority of the states and of school officials to control conduct in the schools consistent with fundamental constitutional safeguards. Tinker's conduct does not involve typical disciplinary problems faced by school officials. Rather, the wearing of arms bands out of protest implicates direct, primary First Amendment rights akin to pure speech. The school officials banned and sought to punish Tinker for a silent, passive expression of opinion that was unaccompanied by any disorder or disturbance to the work of the schools or any class. The district court concluded that the suspension was reasonable because it was based upon their fear of a disturbance caused by this activity. However, a mere fear or risk of disorder does not justify abridging the strong First Amendment interest in promoting free and open discourse in American society. In order for school officials to justify prohibition of a particular expression of opinion, they must show that the prohibition was based on more than a mere desire to avoid the discomfort or unpleasantness that always accompanies an unpopular viewpoint. There is no such showing in the record that that school officials had reason to anticipate that the wearing of the arm bands would substantially interfere with the work of the school or impinge upon the rights of other students. Additionally, school officials did not impose equal restrictions on all expression, as some students were permitted to wear other types of religious or political symbols. Only students wearing black arm bands to protest the Vietnam War were suspended, however. This indicates that the prohibition of expression by school officials is only for certain political opinion. A prohibition singling out a particular viewpoint is impermissible under the First Amendment. School officials do not possess total control over their students, and are constrained by the Constitution. Thus, in the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. The decision of the district court is reversed.

Chaplinsky v. New Hampshire Chaplinsky (defendant) was a member of the Jehovah's Witnesses. Chaplinsky was distributing religious literature on a street corner. Several citizens complained to the City Marshal, Bowering, that Chaplinsky was denouncing all religions. Bowering responded that Chaplinsky was lawfully permitted to voice his opinion, but nevertheless warned Chaplinsky that the crowd was getting restless. After a disturbance occurred later, Chaplinsky was escorted by a police officer to the police station. On the way, Chaplinsky passed Bowering and called him a "racketeer" and a "fascist." Chaplinsky admitted to uttering the offensive language in question. Chaplinsky was convicted by the State of New Hampshire (plaintiff) for violating a New Hampshire law prohibiting speech directed at a person on public streets that derides, offends or annoys others. Chaplinsky's conviction was affirmed by the state supreme court, and he appealed to the United States Supreme Court on the grounds that the New Hampshire law violated the First Amendment.

"Fighting words" that incite others to violence are not protected by the First Amendment from governmental regulation. Even under the broadest reading of the First Amendment, the freedom of speech cannot be said to be absolute. Punishment of certain narrow categories of speech has never been questioned under the Constitution. These categories included lewd and obscene, profane, and libelous speech, as well as insulting speech or "fighting words"—those that, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. This type of speech has very little social value, and thus makes no contribution to the marketplace of ideas protected by the First Amendment. Chaplinsky's words directed to Bowering fell into this category of speech. Thus, the New Hampshire statute prohibiting them does not violate the First Amendment. Chaplinsky's conviction by the lower courts is affirmed.

Guiding Principles to Determine Obscenity

(1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Brandenburg Test

1. Intent 2. Imminence 3. Likelihood

Why should freedom of speech be a fundamental right?

1. Self Governance 2. Discovering Truth 3. Advancing Autonomy 4. Promoting Tolerance

United States v. Miller

1939; ruled that the National Firearms Act of 1934 was constitutional, allowing federal govt to ban interstate shipping of some unregistered guns (because it was unrelated to state militias)

Osborne v. Ohio

1990 - The courts found the interest of children strong enough to ban personal possession of child porn despite the fact that obscenity does not justify intrusion into ones home. This is because the ban on child porn is intended to protect the children who are exploited, not the viewers morals.

McDonald v. City of Chicago Petitioners challenged a law enacted by the City of Chicago (respondent) that prohibited Chicago residents from possessing handguns, claiming that the law violated the Second and Fourteenth Amendments.

A Bill of Rights guarantee applies to the states if it is fundamental to the nation's scheme of ordered liberty or deeply rooted in the nation's history and tradition. The Second Amendment applies to the states, thereby invalidating Chicago's law prohibiting residents from possessing handguns. Under the process of selective incorporation, a particular Bill of Rights guarantee will apply to the states if it is fundamental to the nation's scheme of ordered liberty or deeply rooted in the nation's history and tradition. In District of Columbia v. Heller, 554 U.S 570 (2008), this Court found that individual self defense is a basic right, which forms the central component of the Second Amendment's right to keep and bear arms, and which is deeply rooted in the nation's history and tradition. Following the Civil War, in response to the efforts of some states to disarm returning black soldiers and other black people, Congress enacted the Civil Rights Act of 1866, which protected the right of all citizens to keep and bear arms. When this was met with southern resistance and presidential vetoes, Congress responded by adopting the Fourteenth Amendment, thereby providing a constitutional basis for the rights included in the Civil Rights Act of 1866. The Second Amendment right to keep and bear arms is applicable to the states under the Fourteenth Amendment.

Schad v. Borough of Mount Ephraim In 1973, Schad (defendant) opened an adult bookstore in the Borough of Mount Ephraim (Mount Ephraim) (plaintiff). In 1976, Schad installed coin-operated devices allowing customers to watch live nude dancing. The live entertainment services were deemed to be in violation of Mount Ephraim's commercial zoning ordinance. The ordinance contains an exhaustive list of permissible commercial uses and did not include live entertainment. The Municipal Court found Schad guilty of violating the ordinance. Schad appealed to the Appellate Division of the Superior Court of New Jersey, which affirmed. Schad petitioned the United States Supreme Court for certiorari, which was granted.

A law is impermissibly overbroad if a less restrictive intrusion on protected speech is available. Live entertainment, including nude dancing, is protected by the First Amendment of the Constitution. While local governments may have broad powers to regulate land use through zoning laws, this power is subject to the limitations of the First Amendment. Here, Mount Ephraim has barred all forms of live entertainment in the borough and has failed to justify this broad restriction. Mount Ephraim argues that live entertainment would conflict with its intent that the commercial zone would only meet the immediate needs of Mount Ephraim residents. This contention is unsupported, as the ordinance lists a wide range of commercial uses that meet more than just the immediate needs of residents. Mount Ephraim also argues that it may exclude commercial live entertainment in order to avoid the harmful effects associated with live entertainment, such as parking and trash. However, there is no evidence suggesting that live entertainment produces any more harmful effects than permitted commercial uses. It is possible that certain types of live entertainment could uniquely produce harmful effects. But rather than restrict its regulation to only the types of live entertainment with harmful effects, Mount Ephraim has broadly banned all live entertainment. Thus, Mount Ephraim has failed to meet its burden of showing that a less restrictive regulation would not have satisfied its interests. Therefore, the judgment of the appellate division is reversed.

McCullen v. Coakley Eleanor McCullen (plaintiff) attempted to speak with women one-on-one outside of abortion clinics to present them with alternatives to abortion. McCullen's methods were relatively successful in convincing women not to have abortions. As a result of hostile confrontations and violence that had occurred outside abortion clinics, the Commonwealth of Massachusetts (defendant) passed a law making it illegal for anyone to stand within 35 feet of an abortion clinic, with the exception of clinic employees and those entering or exiting the clinic. The legislature stated that the purpose of the law was to ensure public safety and access to healthcare. There was a preexisting law that made it a crime to block a person from entering or exiting an abortion clinic. After the law was passed, McCullen was forced to stand further away from clinics and could not achieve the intimate, one-on-one atmosphere that had previously helped her to convey her message. After the law was passed, McCullen was much less successful in convincing women not to have abortions. McCullen brought suit against Massachusetts, alleging that the law violated her First Amendment rights. The district court found in favor of Massachusetts, and the United States Court of Appeals for the First Circuit affirmed. The United States Supreme Court granted certiorari.

A law that serves purposes unrelated to the content of expression is content-neutral, even if it has a disproportionate incidental effect on some speakers or messages. A law that serves purposes unrelated to the content of expression is content-neutral, even if it has a disproportionate incidental effect on some speakers or messages. In public fora, the government can impose reasonable, content-neutral restrictions on the time, place, or manner of speech. Even then, such a restriction must be narrowly tailored to serve a legitimate governmental interest. By this standard, the restriction cannot burden more speech than is necessary to serve the stated interest. In this case, the law is overbroad because it is not narrowly tailored to serve a legitimate governmental interest. While the law inevitably will restrict abortion-related speech more than other speech, that is merely an ancillary effect of the law's main purpose, which is to keep the public safe and ensure access to healthcare. The law regulates all speech equally within the buffer zones, for purposes unrelated to the content of the speech. The law is thus content-neutral and is not subject to strict scrutiny. However, even a content-neutral restriction must be narrowly tailored to serve a legitimate governmental interest. There is no dispute that public safety and access to healthcare are legitimate public interests, but the law is not narrowly tailored to meet those interests. The law imposes a substantial burden on McCullen, as evidenced by her declining success in convincing women not to have abortions. The burden is more substantial than is necessary to achieve safe sidewalks. Massachusetts had other, less burdensome options that it could have chosen rather than the challenged law. These options include imposing criminal penalties on people who intimidate, harass, threaten, or physically obstruct those seeking to have an abortion. In short, the law burdens more speech than is necessary to achieve the government's legitimate interests. As a result, the law violates the First Amendment and is invalid. The judgment of the court of appeals is reversed.

Reed v. Town of Gilbert The Town of Gilbert (defendant) passed an ordinance regulating the posting of signs in the town. The ordinance created different categories of signs, including "Ideological Sign[s]," "Political Sign[s]," and "Temporary Directional Signs Relating to a Qualifying Event." The ordinance applied different restrictions to each category. The ordinance was more restrictive with its regulation of temporary directional signs. Good News Community Church and its pastor, Clyde Reed (plaintiffs), held church services at various buildings in the town. Reed posted temporary signs around the town to direct parishioners to the services. The town cited Reed because the signs violated the sign ordinance. Reed brought suit in the United States District Court for the District of Arizona, claiming that the ordinance violated his freedom of speech. The town cited aesthetic appeal and traffic management as the interests served by implementing the different restrictions based on sign type. The United States Supreme Court granted certiorari.

A restriction on speech that is content-based on its face is subject to strict scrutiny regardless of the government's benign motive or justification. A restriction on speech that is content-based on its face is subject to strict scrutiny regardless of the government's benign motive or justification. Content-based restrictions on speech are presumptively unconstitutional. "The vice of content-based legislation . . . is not that it is always used for invidious, thought-control purposes, but that it lends itself to use for those purposes." Hill v. Colorado, 530 U.S. 703 (2000) (Scalia, J., dissenting). Under strict scrutiny, the government must demonstrate that a law is narrowly tailored to serve a compelling governmental interest. In this case, the town's ordinance is content-based on its face and does not pass strict scrutiny. The ordinance is content-based on its face because the level of the regulation a sign receives is entirely dependent on the message the sign contains. The ordinance is thus subject to strict scrutiny regardless of any benign motive or justification on the part of the town. The ordinance does not pass strict-scrutiny review. The town stated that the interests furthered by the ordinance were aesthetic appeal and traffic management. Assuming that these are compelling governmental interests, the ordinance is not narrowly tailored to serving those interests. The town does not provide any evidence that temporary directional signs are less aesthetically appealing or more dangerous for traffic than political or ideological signs. And yet, the ordinance imposes more-restrictive regulations on temporary directional signs. The ordinance is not narrowly tailored to serve the town's interests in aesthetic appeal and traffic safety. Accordingly, the ordinance is unconstitutional.

West Virginia State Board of Education v. Barnette In 1942, the West Virginia State Board of Education (WVSBE) (defendant) adopted a resolution that ordered the salute to the American flag during activity programs in all public schools. All public school teachers and students were thus required to extend their right arms, palms upward, and recite the pledge of allegiance to the flag and the United States of America. The refusal to salute the flag was regarded an act of insubordination, and offending students were expelled and denied readmission until they complied with the statute. Meanwhile, expelled children were considered unlawfully absent and their parents or guardians could be prosecuted, fined, and imprisoned. Barnette and others (plaintiffs) filed suit on behalf of public school children and teachers in federal district court alleging that the compulsory salutation of the flag under the West Virginia statute violated the First and Fourteenth Amendments. Barnette specifically asked for an injunction to restrain enforcement of the law against Jehovah's Witnesses, as their religion prohibited them from swearing allegiance to the flag. The district court agreed and enjoined enforcement of the statute. The West Virginia State Board of Education appealed to the United States Supreme Court.

A state may not compel individuals to engage in involuntary expression. The flag salute and accompanying speech is clearly a form of utterance serving as a primitive but effective way of communicating ideas. Additionally, the flag salute and pledge require affirmation of a belief and a state of mind. It is not clear under the statute whether school children are required to actually put aside contrary beliefs and affirm allegiance to the nation, or whether they can satisfy statutory demands by merely performing the salutatory gesture without meaning. Regardless, even involuntary affirmation of allegiance could likely not be required of students unless the lack of affirmation constitutes a clear and present danger of action of a kind the state is empowered to prevent and punish. The present regulation, however, is offered without any allegation that remaining passive during a flag salute ritual creates a clear and present danger that would justify an effort to limit that expression. The very purpose of the Bill of Rights is to protect individuals from impermissible control by state actors. The WVSBE constitutes a state actor, despite its local nature. It is difficult to find the actions of the WVSBE unconstitutional because its regulation is passed to uphold the nation's flag; however, this is constitutionally required if the WVSBE impermissibly restricts Barnette freedom to refrain from speech by not saluting the flag. One of the utmost protections in the First and Fourteenth Amendments is the practice of religion. The compulsion of Barnette's speech infringe upon his practice of the Jehovah's Witness faith. Thus, the WVSBE could not compel Jehovah's Witnesses to salute the flag and swear allegiance to the nation without violating their First and Fourteenth Amendment rights. However, even if Barnette does not object strictly on religious grounds, the WVSBE's act of compelling involuntary speech violates Barnette's constitutional rights as much as if the WVSBE had restricted protected speech. Thus, the regulation is unconstitutional and the decision of the district court is affirmed.

Texas v. Johnson Gregory Lee Johnson (defendant) burned an American flag during a political demonstration at the 1984 Republican National Convention in Dallas. The State of Texas (plaintiff) charged Johnson with desecration of a venerated object in violation of a state statute. Johnson was convicted, sentenced to one year in prison, and fined $2,000. Johnson appealed his conviction. The appellate court upheld Johnson's conviction, but the Texas Court of Criminal Appeals reversed. The Court of Criminal Appeals treated Johnson's conduct as protected symbolic speech and ultimately held that punishing Johnson for burning the flag during a political protest was not consistent with the First Amendment. The United States Supreme Court granted certiorari.

A state statute that criminalizes the burning of an American flag as a means of political protest violates the First Amendment. A state statute that criminalizes the burning of an American flag as a means of political protest violates the First Amendment. Initially, it is necessary to consider whether flag burning constitutes expressive conduct protected by the First Amendment. To determine whether conduct is sufficiently communicative to invoke First Amendment protections, the court examines whether there was an intent to convey a particularized message through the conduct and the likelihood that the message would be understood by people viewing it. If the conduct is classified as expressive, the court must determine whether the state's regulation is related to the suppression of free expression. If the regulation is not related to expression, the court must apply the analysis for regulations of non-communicative conduct outlined in United States v. O'Brien, 391 U.S. 367 (1968). However, if the regulation is related to expression, then the court must utilize a rigorous standard to determine if the state's interests justify the conviction. In this case, Texas concedes that Johnson's conduct is expressive conduct, which is appropriate given that Johnson burned the flag during a political demonstration, and his conduct had an intentionally clear and obvious express political message. Thus, to decide whether the O'Brien test applies, it is necessary to determine whether Texas has an interest in support of Johnson's conviction unrelated to the suppression of expression. Texas claims that its two interests are preventing breaches of the peace and preserving the flag as a symbol of nationhood and national unity. The first interest is inapplicable in this case, as no disturbance of the peace actually occurred or threatened to occur due to Johnson's flag burning. The second interest, however, is related to the suppression of expression. Texas is concerned that flag burning would lead people to believe either that the flag does not stand for nationhood and national unity, or that concepts reflected in the flag do not actually exist (i.e., that the nation is not unified). As these concerns relate to the suppression of expression contained in flag burning, O'Brien's test does not apply. Because Johnson was prosecuted for expressing his dissatisfaction with the policies of his country, the state's asserted interest in preserving the symbolism of the flag is subject to the most exacting scrutiny. Nothing in the Court's precedents suggest that a state can promote its own view of the flag by prohibiting related expressive conduct. The principle that the government cannot prohibit expression it disagrees with does not depend on the particular method by which one seeks to express an idea. It would thus be inconsistent to hold that an individual can constitutionally express disagreement with a political viewpoint in any way except flag burning. Additionally, it does not make sense to permit a state to allow flag burning for some purposes and not for others, as this principle has no discernible or defensible boundaries. Thus, Johnson's conviction for burning the flag as a means of political expression cannot be supported by the First Amendment. The judgment of the Court of Criminal Appeals is affirmed.

Virginia v. Black In 1998, Barry Black (defendant) led a Ku Klux Klan rally in Virginia. At the close of the rally, the participants burned a cross. Black was charged with violating a Virginia statute that made it illegal to burn a cross if the burning was done with intent to intimidate someone. The statute also stated that the burning of a cross in itself is prima facie evidence of intent to intimidate. At Black's trial, the court instructed the jury that the burning of the cross itself was sufficient evidence from which to infer the required intent to intimidate. The jury convicted Black. Black appealed, and the appellate court affirmed his conviction. The Supreme Court of Virginia reversed and held that the statute was unconstitutional. The United States Supreme Court granted certiorari.

A statute is unconstitutional if it both bans cross burning done with the intent to intimidate and states that the act of burning a cross is itself prima facie evidence of the intent to intimidate. A statute is unconstitutional if it both bans cross burning done with the intent to intimidate and states that the act of burning a cross is itself prima facie evidence of the intent to intimidate. A statute that simply bans cross burning done with the intent to intimidate does not violate the First Amendment. The act of burning crosses has historically been used to signal impending violence, and cross burning is a particularly violent way to intimidate someone. A state is within its rights to ban a form of intimidation that is likely to make someone fear bodily harm. However, cross burning has not always been used to intimidate; it may sometimes be nothing more than a symbol of a group's ideology or solidarity. Cross burning has also been represented in various artistic forms. In this case, the statutory provision stating that cross burning is itself prima facie evidence of the intent to intimidate, coupled with the way this provision is interpreted in the jury instructions providing that cross burning is evidence from which to infer the requisite intent to intimidate, makes the statute unconstitutionally overbroad. Because of this provision, there is no attempt to distinguish between cross burning performed with the intent to intimidate and cross burning performed for some other purpose. Rather, the provision allows the jury to convict a defendant in every cross-burning case if the defendant elects to exercise his constitutional right not to submit a defense. And even if the defendant does attempt to defend himself and claim he did not have an intent to intimidate, the provision allows the jury to disregard that defense and find the necessary intent to intimidate anyway, based solely on the act of the cross burning. The prima-facie-evidence provision thus chills constitutionally protected speech and renders the Virginia statute unconstitutional on its face. The decision of the Supreme Court of Virginia is affirmed.

Cohen v. California The Los Angeles Municipal Court convicted Robert Cohen (defendant) for violating the state penal code prohibiting "maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct." He was convicted after wearing a jacket bearing the words "**** the Draft." Women and children were present. Cohen argued that he wore the jacket as a means of expressing the depth of his feelings toward the Vietnam War and the draft. He did not engage in any threatening conduct in conjunction with this speech. Cohen challenged his conviction on First Amendment grounds against the State of California (plaintiff), but the California Court of Appeal upheld the conviction. The Supreme Court of California denied review, but the United States Supreme Court granted certiorari.

Absent a particularized and compelling purpose, a state may not criminalize a public display of a single four-letter expletive without violating the First and Fourteenth Amendments. Cohen's conviction is based entirely on the offensiveness of his speech, rather than any form of conduct. Additionally, the case does not fall into any recognized categories of unprotected speech based on the Court's prior jurisprudence, such as obscenity or "fighting words." California argues that state law rightfully banned Cohen's speech because his distasteful mode of expression was thrust upon unwilling or unsuspecting viewers. California further argues that the state has a significant interest in protecting its sensitive citizens from otherwise unavoidable exposure to Cohen's crude form of protest. This argument is rejected, as the presumption of the presence of unwitting listeners or viewers does not automatically justify curtailing all potentially offensive speech. The government may only regulate discourse to prevent others from hearing it if it proves that substantial privacy interests are being invaded in an essentially intolerable manner. The viewers of Cohen's jacket had the option of very easily looking away and guarding themselves from the offensiveness of his message. Thus, California presented no evidence to support Cohen's conviction for "breach of the peace" because it did not show that persons powerless to avoid his speech did, in fact, object to it. Additionally, it is necessary to determine whether California could constitutionally remove, as offensive conduct, the word "****" from public discourse. The constitutional right of freedom of expression is very broad and powerful, and is designed to remove governmental restraints from public discussion. Due to the extreme constitutional importance of this freedom, states may be required to tolerate speech that some citizens find offensive. There is no compelling reason for California to criminalize this particular word as opposed to any other potentially offensive words. In certain circumstances, the words can be used as part of protected speech under the First Amendment. Finally, any governmental regulation that prohibits this word risks suppressing a substantial number of ideas in the process. These principles justify overturning Cohen's conviction for using this particular word in an expressive context. Absent a more particularized and compelling reason for its actions, California cannot make Cohen's simple public display of a single four-letter expletive a criminal offense. The decision of the lower courts is reversed.

Board of Airport Commissioners v. Jews for Jesus, Inc. In 1983, the Board of Airport Commissioners for the Los Angeles International Airport (Board) (defendants) passed a resolution that prohibited "First Amendment activities by any individual and/or entity" in the Central Terminal Area of the airport. Violators were subject to legal action by the city under the resolution. In July 1984, Alan Howard Snyder, a minister for Jews for Jesus, Inc., a nonprofit religious organization (plaintiff), was distributing free religious material in the Central Terminal Area when he was stopped by an airport peace officer. The officer showed Snyder the resolution, told him he was in violation, and asked him to leave or face legal action. Snyder complied. Jews for Jesus and Snyder then sued the Board in the District Court for the Central District of California, claiming the resolution violated the First Amendment to the United States Constitution and was unconstitutionally vague and overbroad. The district court held that the resolution was unconstitutional, and the court of appeals affirmed. The United States Supreme Court granted certiorari.

An express prohibition against all First Amendment speech that is not subject to a limiting construction is facially unconstitutional as overbroad. A resolution expressly prohibiting all First Amendment activities violates the overbreadth doctrine and is unconstitutional on its face if it is not subject to a judicially limiting construction. The First Amendment overbreadth doctrine allows an individual whose own speech has been prohibited to challenge a statute on its face if the statute also threatens the rights of other individuals not involved in the lawsuit. Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503 (1985). However, a statute will only be held invalid on its face if the danger to the rights of others is realistic. City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801 (1984). It is clear the resolution in this case creates a real risk to other individuals, because it prohibits the First Amendment activities of everyone, not just Jews for Jesus or other religious groups. Even if a statue is overbroad, it may pass constitutional muster if it is feasible for the courts to narrow its construction. If the state courts have not yet had the opportunity to define the statute's construction, this Court can only do so upon certification from the state or through abstention. California has no certification procedure. The problem with abstention is described in Baggett v. Bullitt, 377 U.S. 360 (1964), where the loyalty oath statutes in question were subject to so many different interpretations, that it would not be feasible for the courts to be able to provide a limiting construction in any reasonable time frame. Likewise, the Board's resolution is so broad that any limiting construction would necessarily involve voluminous case-by-case adjudications, potentially at the risk of free-speech rights of individuals along the way. The resolution is not subject to a limiting construction. The Board's own proposed limiting construction of the resolution, that it was only meant to prevent activity that is not airport related, is not helpful. The Board's limiting construction is overly vague, as The Board could subjectively decide what speech or activity is or is not airport related. Accordingly, the judgment of the court of appeals is affirmed.

Coates v. Cincinnati Coates (defendant) and two others were convicted of violating an ordinance of the city of Cincinnati (plaintiff) that made it a criminal offense for three or more people to assemble on a city sidewalk and "there conduct themselves in a manner annoying to persons passing by." Coates appealed his conviction on the ground that the city ordinance was unconstitutionally vague. Coates' conviction was upheld by the state supreme court and Coates petitioned the United States Supreme Court for review.

An ordinance that prohibits more than three persons from assembling and engaging in annoying conduct on public property is unconstitutionally vague and impermissibly infringes upon the constitutional right to free assembly. An ordinance that prohibits more than three persons from assembling and engaging in annoying conduct on public property is unconstitutionally vague and impermissibly infringes upon the constitutional right to free assembly. Conduct that may be annoying to one person may not be annoying to others. In that regard, the Cincinnati ordinance fails to define any cognizable standard of conduct by which to define a violation. The language of the ordinance leaves the person of ordinary intelligence having to guess at its meaning. Although the ordinance falls within the gambit of the city's broad constitutional police power, the city must regulate the particular activities within the scope of its authority by the implementation of reasonably specific ordinances. It may not prohibit any and all conduct falling within the scope of its authority by way of ambiguous standards that may lead to enforcement only when a police officer finds particular conduct annoying. In addition, the ordinance impermissibly infringes upon the constitutional right to free assembly. The First and Fourteenth Amendments prohibit conditioning the right to assemble on the simple fact that it may annoy some people. Such a rule would invite discriminatory enforcement against any group the majority found discomforting. The ordinance is void because it is unconstitutionally vague and because it penalizes constitutionally protected activities. The judgment of conviction is reversed.

Walker v. Texas Division, Sons of Confederate Veterans The Texas Department of Motor Vehicles (DMV) (defendant) permitted nonprofit organizations to design their own specialty license plates. If the DMV approved the design, the DMV would offer the personally designed plate to drivers. The State of Texas took ownership of all approved designs. The Texas Division of the Sons of Confederate Veterans (Sons) (plaintiff) designed a license plate that depicted a confederate flag. The DMV rejected the design because public comments deemed the design offensive. Sons brought suit against the DMV and members of its board, alleging that the rejection constituted a violation of the Sons' First Amendment rights. The United States Supreme Court granted certiorari.

Generally, the First Amendment cannot be used to challenge government speech. Generally, the First Amendment cannot be used to challenge government speech. In particular, government speech generally cannot be barred by the First Amendment's content-based-speech requirements. Without the freedom to engage in content-based speech, the government could not properly function. Governments are responsible for making policy choices, such as promoting vaccinations or a recycling program. Requiring a government to discuss every competing side of an issue each time it communicates something to its constituency would be impractical. In this case, the designs approved on Texas's specialty license plates constitute government speech. Historically, state license plates have conveyed messages from the state in addition to the state name and plate number. As a result of this and a state's name being prominently shown on its plates, the public closely associates a state's license plate with that state's government. Further, a state's license plates are required by, produced by, and issued by that state. Indeed, the state government even took ownership of the designs on specialty license plates in Texas. Finally, as evidenced by this case in particular, states retain approval authority for any speech appearing on their license plates. In sum, the designs approved on Texas's specialty license plates constitute government speech. As a result, the Sons cannot challenge the DMV's denial based on the First Amendment. The Sons' design would constitute government speech if it were approved for a Texas license plate. The Sons cannot compel the government to put the Sons' design on its license plates. Sons' private First Amendment rights are not implicated by the DMV's denial. Therefore, the denial did not violate the First Amendment.

United States v. O'Brien Every male in the United States over the age of 18 was required by the Universal Military Training and Service Act (UMTSA) to register with a local draft board. Each registrant was assigned a number and given a registration certificate (also called a draft card). In 1966, David Paul O'Brien and three others (defendants) burned their draft cards on the steps of the South Boston Courthouse. O'Brien was indicted by the United States Government (plaintiff) and convicted after a jury trial in the United States District Court for the District of Massachusetts. The indictment charged that O'Brien "willfully and knowingly did mutilate, destroy, and change by burning his Registration Certificate" in violation of the UMTSA, as amended in 1965. That act made it a crime for a person to forge, alter, knowingly destroy, knowingly mutilate, or in any manner change a registration certificate. O'Brien appealed his conviction, and the court of appeals reversed on the grounds that the UMTSA violated the First Amendment. The United States Supreme Court granted certiorari.

If conduct contains both speech and nonspeech elements, an important or substantial governmental interest in regulating the nonspeech element may justify incidental limitations on the protected speech if (1) the regulation is within the constitutional power of the government, (2) the regulation furthers an important or substantial governmental interest; (3) the governmental interest is unrelated to the suppression of free expression, and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. If conduct contains both speech and nonspeech elements, an important or substantial governmental interest in regulating the nonspeech element may justify some limitations on constitutionally protected speech elements. A government regulation is sufficiently justified if (1) it is within the constitutional power of the government, (2) it furthers an important or substantial governmental interest, (3) the governmental interest is unrelated to the suppression of free expression, and (4) the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. Here, the 1965 amendment to the UMTSA does not on its face restrict free speech. However, O'Brien argues that the 1965 amendment is unconstitutional as applied to him because his act of burning his draft card is protected as symbolic speech under the First Amendment. This argument is based on the idea that the First Amendment protects every method of communicating an idea through conduct. However, the label of "speech" cannot be applied to an unlimited variety of conduct whenever the person engaging in the conduct is doing so to express an idea. Furthermore, even assuming that O'Brien's conduct does contain a communicative element and thus implicates the First Amendment, it does not automatically follow that burning a draft card is constitutionally protected. The UMTSA meets the four requirements for a valid government regulation. Congress has the constitutional ability to classify individuals for military service and establish a registration system. Legislation designed to ensure the availability of registration certificates issued in aid of the system (e.g., the UMTSA) serves a legitimate and substantial purpose in the system's administration. Destroying or mutilating the registration certificates would defeat the certificates' purpose by (1) making it difficult to verify registration; (2) complicating communication between registrants and their local boards; (3) eliminating reminders that registrants must update their local boards with address or status changes; and (4) increasing the difficulty of detecting abuses in the use of certificates, such as fraud, alteration, or forgery. The government's interest is limited to preserving the functionality of the draft system, by preventing the willful destruction or mutilation of registration certificates to ensure that the certificates remain available. The government's interest and the law therefore implicate only the noncommunicative aspect of O'Brien's conduct, and it was for the noncommunicative impact of his conduct that O'Brien was convicted. Accordingly, because the UMTSA as amended in 1965 is constitutional, the decision of the court of appeals is vacated.

Miller v. California Miller (defendant) conducted a mass-mailing campaign advertising the sale of obscene books by sending mailings depicting sexual acts to unwilling recipients through the mail. Miller was convicted in state court by the State of California (plaintiff), under a California criminal obscenity statute which prohibited the distribution of obscene materials. The court of appeals affirmed, and Miller appealed to the United States Supreme Court.

In determining whether material is obscene, the trier of fact must consider three guiding principles: (1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. States have a legitimate interest in prohibiting the distribution of mass mailings depicting sexual acts to unwilling recipients because of the high risk that these materials are offensive. Because the definition of "obscenity" has never before been articulated by the Court, it is necessary to define the term now. The permissible scope of state obscenity regulations must be confined to works which depict or describe sexual conduct. The conduct must be specifically defined by state law, as written or authoritatively construed. A state offense must also be limited to works which, taken as a whole, appeal to the prurient interest in sex, portray sexual conduct in a patently offensive way, and, taken as a whole, do not have serious literary, artistic, political, or scientific value. In determining whether material in question meets this standard, the trier of fact must consider three guiding principles: (1) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. In listing these guidelines, however, it is stressed that states are still required to adopt their own regulatory schemes for obscenity through their state legislatures. Applying these principles to the present case, sex and nudity may not be exploited without limit by pictures or films any more than live sex can be exhibited or sold without limit in public places. At a minimum, depictions of sexual conduct must have serious literary, artistic, political, or scientific value to merit First Amendment protection. The decision of the court of appeals is vacated and remanded for further consideration under the new test announced by the Court.

Paris Adult Theatre I v. Slaton Paris Adult Theatre I (PAD) (defendant) owned and operated an adult movie theater in Atlanta, Georgia. On December 28, 1970, Slaton (plaintiff), the local district attorney, complained to the local state court that PAD was showing two obscene films depicting sexual acts and nudity. PAD was convicted by the Georgia Supreme Court of violating state obscenity laws. PAD challenged the conviction on the grounds that it violated the First Amendment, and the United States Supreme Court granted certiorari.

Obscene material has no protection under the First Amendment, and states have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation. Under the Fourteenth Amendment, states have the power to make their own laws to prohibit obscenity. Thus, states may prohibit pornographic films if those films are deemed to be obscene, even if they are exhibited for consenting adults, only. States have a legitimate interest in regulating material for all audiences in local commerce and in all places of public accommodation, subject only to constitutional limits. In particular, states have an interest in the quality of public life and the total community environment, the tone of commerce in the great city centers, and public safety itself. Regarding the last interest, a congressional report actually notes the existence of a link between obscene material and crime. Thus, the state legislature can reasonably assume, based on this report, that the reading of obscene books and the watching of obscene displays of conduct could lead to corruption and anti-social behavior. The prior holding in Roth v. United States, 354 U.S. 476 (1957), that obscenity is not protected under the First Amendment is affirmed because of the state's interest in preventing these harms. Additionally, states have a legitimate interest in regulating commerce in obscene material and in regulating exhibition of obscene material in places of public accommodation. PAD's conviction by the Georgia Supreme Court is affirmed.

Roth v. United States A federal obscenity statute prohibited the mailing of "every obscene, lewd, lascivious, or filthy book, pamphlet, picture, paper, letter, writing, print, or other publication of an indecent character." Roth (defendant) operated a book-selling business in New York and was prosecuted by the federal government (plaintiff) for violating the federal statute after mailing out obscene pamphlets. Roth challenged his conviction on the grounds that the federal statute violated the First Amendment. The United States Supreme Court granted certiorari.

Obscenity is a category of speech that is not protected by the First Amendment. While the Court has never squarely considered the issue of whether obscenity is constitutionally protected by the First Amendment, its prior cases suggest that obscenity is a category of unprotected speech. Historically, nearly all the original states passed laws specifically prohibiting obscenity. Even under modern jurisprudence, it is clear that the First Amendment protections are not absolute. The First Amendment protects ideas with even the slightest amount of redeeming social value. For example, even ideas about sex are usually protected under the Amendment because sex by itself does not equal obscenity. Speech is only obscene, and thus outside the protection of the First Amendment, if it deals with sex in a manner appealing to prurient interest. The statute is constitutional under the First Amendment because the speech prohibited by the federal statute falls into this category. Thus, Roth's conviction under the statute is upheld.

Schenck v. United States Two months after the United States' entry into World War I, Congress enacted the Espionage Act of 1917 (EA). The law made it a crime for any person, during time of war, to willfully "make or convey false reports or false statements with intent to interfere" with the military success or "to promote the success of its enemies." The law also made it a crime to willfully "obstruct the recruiting or enlistment service of the United States." Convictions could be punished by sentences of up to twenty years' imprisonment and fines of up to $10,000. Schenck (defendant) was indicted by the United States Government (plaintiff) for the charge of "conspiracy to violate the Espionage Act" after he mailed literature to draftees during World War I that criticized the draft. The government alleged that Schenck conspired to violate the EA by attempting to cause insubordination in the military and to obstruct military recruitment. Schenck was convicted in federal district court, but appealed his conviction on the grounds that the Espionage Act violated his First Amendment right to freedom of speech. The United States Supreme Court granted certiorari.

Speech that would ordinarily be protected by the First Amendment may nevertheless be prohibited when it is used in such circumstances and is of such a nature as to create a clear and present danger of substantive evils that Congress has a right to prevent. The purpose of Schenck's mailed literature was to inform draftees of their right to assert opposition to the draft and to criticize the draft's political proponents. However, the literature arguably would not have been sent unless it was intended to have the effect of encouraging draftees not to join the draft. Schenck argues that his right to mail such literature is protected by the First Amendment. While this argument would most likely have been upheld during normal times, it is rejected because the United States was involved in an international war. Thus, the character of the act depends upon the circumstances in which it is done. The required question in every case dealing with this issue is whether the words used are expressed in such circumstances and are of such a nature as to create a clear and present danger. Congress has the right to prevent substantive evils. Schenck's speech intending to incite draftees to obstruct the draft can be seen as representing a clear and present danger because the nation is at war. Congress has significant power under the Constitution to raise and maintain military forces, and thus the prevention of a military draft is a substantive evil that Congress has a right to prevent. Schenk's conviction under the EA does not violate his First Amendment rights. The decision of the district court is affirmed.

Abrams v. United States Abrams and four others (plaintiffs) were convicted of conspiring to violate the Espionage Act of 1917 (EA), as amended in 1918. Abrams printed many copies of leaflets, written both in English and Yiddish, denouncing the United States' decision to send troops to Russia as part of World War I. Other leaflets denounced the United States' general involvement in World War I and United States' efforts to curtail the Russian Revolution. The distribution of these leaflets was found unlawful by the federal district court because it involved the spreading of language meant to incite resistance to the war effort and to urge the curtailment of production of essential war materials. Abrams challenged his convictions on the grounds that the EA was an unconstitutional violation of the First Amendment, and the United States Supreme Court granted certiorari.

Speech, which would ordinarily be protected by the First Amendment, may nevertheless be prohibited when it is used in such circumstances and is of such a nature as to create a clear and present danger of substantive evils that Congress has a right to prevent. Abrams was charged with conspiring to accomplish unlawful printing, writing, and distribution of many copies of leaflets in New York City. Abrams and the other convicted individuals were born in Russian, and had lived in the United States for several years without ever applying for naturalization. Abrams' group was intelligent, and all testified on their own behalf in court and stated that they were "rebels," "revolutionists," and "anarchists" who did not believe in government in any form. Abrams argues that his act of distributing leaflets discussing these views was lawful because it involves speech protected by the First Amendment. However, for the reasons discussed in the Court's prior decisions in Schenck v. United States, 249 U.S. 47 (1919), and in Frohwerk v. United States, 249 U.S. 204 (1919) (which held that ordinarily-protected speech can be restricted during wartime if it presented a clear and present danger to a Congressional purpose), Abrams' speech is not protected and the convictions by the district court are sustained.

District of Columbia v. Heller Dick Heller (plaintiff), a Washington, D.C. special police officer, applied for a registration certificate from the city of Washington, D.C. for a handgun he wished to keep at home. A Washington, D.C. statute prohibited possessing a handgun in the home without a license, and it also required any lawful handgun kept in the home to be rendered inoperable through use of a trigger-lock. The District of Columbia (defendant) denied Heller's application for a registration certificate based on its law. Heller then filed a lawsuit in federal district court for the District of Columbia arguing that the city's bar on the registration of handguns, its prohibition on guns in the home without a license, and its requirement of trigger-locks for lawful guns in the home all violated the Second Amendment. The district court dismissed Heller's complaint, but the Court of Appeals for the District of Columbia Circuit reversed on the grounds that the Second Amendment grants an individual the right to bear arms. The United States Supreme Court granted certiorari.

Subject to certain safety limitations, the Second Amendment to the United States Constitution creates an individual right to keep and bear arms apart from any military purpose. Although the Second Amendment appears to have been created for the purpose of ensuring the creation of a future militia, this purpose ultimately does not change the fact that the Second Amendment was designed to create an individual right to keep and bear arms. Nothing suggests that the individual right to keep and bear arms is conditional on being for a strictly military purpose. However, states must be free to regulate who can possess firearms based on certain safety concerns (for example, states are free to deny handgun registration and possession to felons and the mentally ill). However, provided Heller does not fall within the categories of people prohibited from owning handguns due to safety concerns, the District of Columbia's prohibition on handgun possession in the home, as well as its requirement that lawful handguns in the home be rendered inoperable for self-defense, is unconstitutional.

Lovell v. Griffin The city of Griffin, Georgia (plaintiff) enacted a city ordinance prohibiting the distribution of circulars or literature within city limits without obtaining prior written permission from the city manager. Lovell (defendant) was convicted of violating the ordinance after she distributed religious pamphlets within the city without obtaining a permit.

The First Amendment prohibits the prior restraint of speech or freedom of the press. An ordinance prohibiting distribution of any kind of literature without a permit is invalid on its face under the First Amendment, which prohibits the prior restraint of speech or freedom of the press. The ordinance here does not merely apply to distribution of written materials that are obscene, offensive, or that advocate unlawful conduct, and is not limited as to time, place, or method of distribution. The ordinance instead applies to all written materials distributed at any time or place, and in any manner. The leading purpose of adopting the First Amendment's guarantee of freedom of the press was to prevent any previous restraint on that freedom. Freedom of the press is the right to publish without a license. The ordinance at issue here violates the freedom of the press by subjecting it to licensure and censorship, and is therefore invalid on its face. Because the ordinance is invalid, Lovell did not need to seek a permit under the ordinance. She should have been able to challenge the ordinance as a defense to the charge against her. The lower court's judgment is reversed.

Stanley v. Georgia An investigation of Stanley's (defendant) alleged bookmaking activities led to the issuance of a search warrant for his home. During the search, officers found reels of eight-millimeter film. The officers viewed the films, concluded they were obscene, and seized them. Stanley was placed under arrest and later convicted for "knowingly having possession of obscene matter" in violation of the laws of the State of Georgia (plaintiff). Stanley challenged his conviction on the grounds that the Georgia statute's criminalization of the mere private possession of obscene matter violated the First Amendment. The Supreme Court of Georgia upheld his conviction, and the United States Supreme Court granted certiorari.

The First and Fourteenth Amendments prohibit the government from punishing the private possession of obscene material in one's home. While there is a valid governmental interest in dealing with obscenity, this interest cannot be insulated from all constitutional protections. It is well established that the Constitution protects the right to receive information and ideas. This right to receive information and ideas, regardless of their social worth, is fundamental to a free society. Additionally, this case involves an added dimension of prosecution for possession of filmed material in the privacy of one's home. This implicates another fundamental right to be free, except in some limited circumstances, from governmental intrusion into one's privacy. Whatever the other justifications for state laws regulating obscenity, they do not extend to the privacy of one's home. The First Amendment does not permit the government to regulate the types of books or films a person may read or watch at home. Thus, the First and Fourteenth Amendments prohibit making mere private possession of obscene material a crime. The Georgia statute is unconstitutional. The decision of the Supreme Court of Georgia is reversed.

Hill v. Colorado A 1993 Colorado statute regulated speech-related conduct within one hundred feet of the entrance to any health care facility. The statute made it unlawful for any person to knowingly approach another person within eight feet, without that person's consent, "for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person." The ordinance did not place any restrictions on the content of the message. Leila Hill (plaintiff) was a sidewalk counselor who offered information about abortion alternatives to women entering health care facilities for abortion services. She and other counselors brought suit against the state of Colorado (defendant) in state court seeking to enjoin enforcement of the statute on the grounds that it violated the First Amendment. The trial court held the statute was a reasonable, content-neutral time, place, and manner regulation. The Colorado Supreme Court affirmed, and the United States Supreme Court granted certiorari.

Under the First Amendment, a state may curtail a person's freedom of speech directed at unwilling listeners as a proper content-neutral, reasonable time, place, and manner restriction. Hill's First Amendment interests at stake in this case is her right to engage in leafleting, display signs, and orally communicate her anti-abortion message. In contrast, Colorado's interest is to promote unimpeded access to health care facilities and avoid potential trauma to patients associated with confrontational protests. The Colorado statute only prohibits communications to unwilling listeners, a prohibition typically within the power of the state. Prior decisions of the Court established that the broad right to be left alone is one of the most comprehensive and valued rights in American society. Thus, Hill's First Amendment rights must be balanced against the strong interest of unwilling listeners to be left alone. The state concluded that the statute was constitutional because it was a content-neutral time, place, and manner regulation. The statute passes the test for content neutrality for three reasons. Firstly, it does not regulate speech itself, but is rather a regulation of the place where some speech could occur. Secondly, it is not adopted based on disagreement with the message speech conveyed. Thirdly, the state's interests in protecting access and privacy, as well as providing the police with clear guidelines for enforcing the statute, are unrelated to the content of the demonstrators' speech. Government regulation of expressive activity is content neutral if it is justified without reference to the content of regulated speech. The Colorado statute establishes a minor place restriction on a broad category of communications to unwilling listeners. Additionally, the law requires eight-foot separation between the speaker and the audience, a distance that should not have any adverse impact on the readers' ability to read signs displayed by demonstrators. The statute's distance requirement might make it more difficult for oral statements to be heard, but is not overly restrictive. The ordinance does not prevent the use of multiple speakers or amplification equipment. Additionally, the statute does not prevent pedestrians from willingly choosing to move closer to speakers to accept handbills and leaflets. Finally, the statute is narrowly tailored to the state's interests in protecting people entering health care facilities from unwanted harassment. The decision of the Colorado Supreme Court upholding the statute is affirmed.

Morse v. Frederick In 2002, principal Deborah Morse (defendant) suspended high school senior Joseph Frederick (plaintiff) for ten days after he displayed a large banner reading "Bong Hits 4 Jesus". Morse suspended Frederick because she believed the banner promoted illegal drug use. Frederick filed suit in federal district court on the ground that the suspension violated his First Amendment rights. The district court dismissed the suit, but the court of appeals reversed. The United States Supreme Court granted certiorari.

Under the First Amendment, school officials may prohibit student speech that can reasonably be interpreted as promoting illegal drug use. Students in public schools do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Tinker v. Des Moines, 393 U.S. 503 (1969). Punishment for expressing personal views on the school premises is only appropriate if school authorities have reason to believe that such expression will substantially interfere with the work of the school or impinge upon the rights of other students. However, the First Amendment rights of students in the public schools "are not automatically coextensive with the rights of adults in other settings," and must be "applied in light of the special characteristics of the school environment." Although Frederick's message was cryptic, Morse acted reasonably when interpreting it as a message promoting illegal drug use. The phrase "bong hit" could be widely interpreted by high school students as a reference to smoking marijuana. Under the First Amendment, Morse has the constitutional right to restrict student speech at a school event when that speech could be reasonably viewed as promoting illegal drug use. Ultimately, determinations about when speech is disruptive are properly left to the school board. The two controlling principles for school regulation are (1) the constitutional rights of students in public schools are not automatically coextensive with the rights of adults in other settings and (2) not all cases require that student expression only be suppressed if school officials reasonably conclude that it will materially and substantially disrupt the work and discipline of the school. Here, the school has a compelling interest in preventing illegal drug use among young students. Thus, Morse's suspension of Frederick for this speech does not violate the First Amendment. The decision of the court of appeals is reversed.

R.A.V. v. City of St. Paul, Minnesota R.A.V. (defendant), a juvenile, and several other teenagers burned a wooden cross on the lawn of a home owned by a black family. R.A.V. was arrested for violating the St. Paul Bias Motivated Crime Ordinance (the Ordinance), enacted by the City of St. Paul, Minnesota (plaintiff) to promote human rights for groups that have historically been subject to discrimination. The Ordinance prohibited the placement of hateful symbols, including burning crosses, "which one knows or has reasonable grounds to know arouse . . . anger, alarm or resentment in others on the basis of race, color, creed, religion or gender." R.A.V. moved to dismiss the charge on the grounds that the Ordinance was facially invalid under the First Amendment. Specifically, R.A.V. argued the Ordinance was an unconstitutionally overbroad content-based regulation of speech. The trial court granted the motion. The Minnesota Supreme Court reversed, holding that the language of the statute, "arouses anger, alarm or resentment," limited the regulation to "fighting words," which are not protected speech. The United States Supreme Court granted certiorari.

Under the First Amendment, states may not regulate categories of unprotected speech, such as "fighting words," on the basis of content. A statute that regulates the content of speech on its face will only survive a constitutional challenge if it is necessary to serve a compelling state interest. See Burson v. Freeman, 504 U.S. 191 (1992). This means the statute will be struck down if there is a content-neutral alternative that satisfies the state's objective. Under the First Amendment, the government is generally barred from regulating the ideas expressed by speech or conduct. There are a number of traditional exceptions to this rule that allow the government to regulate speech with only "slight social value," such as obscenity, defamation, and "fighting words." Nevertheless, the government may not use these exceptions to create content-based regulations. For example, a regulation could not forbid only obscenity that criticized the government. This is similar to the framework for time, place, and manner restrictions on speech. In this case, the Court is bound by the Minnesota Supreme Court's interpretation that the statute regulates only "fighting words" within the meaning of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Chaplinsky defines "fighting words" as "conduct that itself inflicts injury or tends to incite immediate violence." Such language is not entirely without value but is not essential to the exposition of ideas. This implies that a state might not be permitted to regulate fighting words in all contexts. The constitutionality of such regulations ultimately depends on various elements of content expressed in the speech and the secondary effects stemming from that content. The Ordinance is facially unconstitutional despite its narrow construction by the Minnesota Supreme Court. The statute specifically applies to fighting words that provoke violence "on the basis of race, color, creed, religion, or gender." Under these terms, fighting words are permissible as long as they do not address one of the disfavored topics. This constitutes a prime example of impermissible content discrimination, and even viewpoint discrimination, under the First Amendment. Thus, there is no need to address whether the statute is overbroad. Despite the Court's general disagreement with R.A.V.'s actions, the Ordinance as written is unconstitutional. The decision of the Minnesota Supreme Court is reversed.

Reno v. American Civil Liberties Union The "indecent transmission" provision of the Communications Decency Act of 1996 (CDA) prohibited the knowing transmission of obscene or indecent messages via the internet to any recipient under the age of eighteen. The "patently offensive display" provision of the CDA prohibited the knowing, sending, or displaying of patently offensive messages in a manner that is available to a person under eighteen years of age. The American Civil Liberties Union (ACLU) (plaintiff) brought suit in federal district court against Reno (defendant), Attorney General of the United States, on the grounds that the CDA violated the First Amendment's protection of freedom of speech. The district court found the CDA unconstitutional and enjoined its enforcement. Reno appealed directly to the United States Supreme Court.

Under the First Amendment, the government may not regulate the transmission and display of content on the internet unless it does so for a compelling purpose and uses means that are narrowly tailored to that purpose. The CDA is distinguishable from the regulation upheld in FCC v. Pacifica, 438 U.S. 726 (1978), for several reasons. Firstly, the order in Pacifica was issued by an agency that had been regulating radio stations for decades, and the regulation targeted a specific broadcast that was a dramatic departure from traditional program content. In contrast, the CDA represents a broad categorical prohibition of internet content that is not limited to particular times and not dependent on any evaluation by an agency familiar with the internet. Secondly, unlike the CDA, the FCC's order was not punitive. Finally, in Pacifica, the Court reasoned that radio stations have a long history of government regulation and limited First Amendment protection. In contrast, the internet has no such history. The CDA is specifically designed to protect minor children from the primary effects of "indecent" and "patently offensive" speech, rather than from any secondary effects of speech. Thus, the CDA is a content-based restriction on speech and could not be properly analyzed as a time, place, and manner regulation. It is thus appropriate for the Court to use strict scrutiny in determining the constitutionality of the CDA. The government does not have a truly compelling purpose in regulating the internet since the internet has not been traditionally regulated and is not as invasive into the home as radio broadcasts. The second component of strict scrutiny is an inquiry into whether the means used by the government are narrowly tailored to accomplish a compelling purpose. The CDA is very broad in its scope since it does not provide specific definitions of content that is deemed "indecent" or "offensive." Thus, the CDA is overly vague and risks prohibiting a large amount of speech that adults have a constitutional right to receive and to address to one another. The risk that some minors might be exposed to this material does not justify such a vague, blanket restriction on speech. The CDA violates the First Amendment, and the decision of the district court is affirmed.

Brandenburg v. Ohio Brandenburg (defendant) was a leader of the Ku Klux Klan in the State of Ohio (plaintiff). Brandenburg was convicted under the Ohio Criminal Syndicalism Act (OCSA) for "advocating 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 assembling with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism." He was arrested after inviting a news reporter to attend a Ku Klux Klan rally. The reporter filmed Brandenburg in Klan regalia, burning a cross and uttering speech that was derogatory to African Americans and Jews. Brandenburg was convicted in Ohio state court, and was fined and sentenced to ten years' imprisonment. He challenged his conviction on the grounds that the OCSA violated his First Amendment right to free speech.

Under the First and Fourteenth Amendments, a state may only regulate speech that advocates violence if the speech is intended and likely to incite imminent illegal activity. A state may only forbid speech that advocates violence or the use of force if that speech is directed and likely to incite imminent illegal activity without abridging the freedoms of speech and the press. While the Court upheld a similar criminal syndicalism statute in Whitney v. California, 274 U.S. 357 (1927), that decision was thoroughly discredited by later jurisprudence, including Dennis v. United States, 341 U.S. 494 (1951). These later cases established that the constitutional guarantees of free speech 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." In contrast, the mere abstract teaching of a need to resort to force or violence is upheld as protected by the First Amendment because this activity is far different from preparing a group for violent action and encouraging it to commit that action. A statute that does not distinguish between the former and latter types of speech violates the First and Fourteenth Amendments because it is over-inclusive. The OCSA cannot be sustained because it punishes the mere advocacy and teaching of violence for accomplishing a political goal as an abstract concept. Nothing in the law distinguishes mere advocacy from actual incitement of imminent lawless action. As such, the statute is unconstitutional. Brandenburg's conviction is reversed and the prior decision in Whitney is overruled.