The Supreme Court Vs. The First Amendment


Schenck v. United States, 249 U.S. 47 (1919)
Did you realize that notifying your fellow Americans of their constitutional rights was a Federal crime?

It was. [1] This is the famous "falsely shouting fire in a [crowded] theater" case, the real beginning of the end of the parchment-paper version of the First Amendment. But what does "falsely shouting fire in a [crowded] theater" have to do with notifying Americans of their constitutional rights? Read on.

In this case, Schenck and Company were convicted of violating the Espionage Act of 1917, a Federal law which, among other things, made it a crime to obstruct government draft recruiting and enlistment efforts.

Schenck printed 15,000 leaflets, many of which were to be mailed to draftees. [2] The first page of the leaflet contained the text of Section I of the Thirteenth Amendment to the Constitution, and on the flip side of the leaflet were printed (among others) the following phrases: "Do not submit to intimidation", "Assert your Rights", "your right to assert your opposition to the draft", and "If you do not assert and support your rights, you are helping to deny or disparage rights which it is the solemn duty of all citizens and residents of the United States to retain." [3] Schenck was arrested for passing along this information.

Judge Holmes wrote the decision of the Court, and here's how he sized up the situation:

The defendants were found guilty on all counts. They set up the First Amendment to the Constitution forbidding Congress to make any law abridging the freedom of speech, or of the press, and . . . have argued some other points also of which we must dispose. [4]

Well, the only rational thing to do when someone wants to "set up" a clause in the Bill of Rights as protecting what was formerly-thought-of as a right is to "dispose" of that argument - right?

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic [5]

This latter hypothetical scenario of "falsely shouting fire in a theatre" is the one most frequently cited when people want to regulate speech, but in this case there are three major problems with citing it:

1) The judge took an oath to support the First Amendment, and that's what he did not do here. A Federal "law" was involved which abridged the freedom of the press, so Schenck should have been released, the power of Congress to pass that law having been removed by the First Amendment.

2) Holmes presented no evidence that Schenck "falsely" stated anything; Schenck's supposedly criminal activity was in printing and distributing the text of the Thirteenth Amendment to the Constitution, and his view of what behavior that text entailed. Consequently, the analogy to false speech is irrelevant.

3) While it may be true that preventing false speech may be sound public policy, the First Amendment (combined with the Tenth) implicitly allows for such regulation by State governments, so there was no need for Holmes to carve out an exception for "circumstances", given that the exception was already pre-carved. While the Fourteenth Amendment may not allow this State regulation, depending on how it is interpreted, this is not a Fourteenth Amendment case.

Judge Holmes went on to say,

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right [ 6]

Actually, since "Congress" does not have "a right to prevent" utterances of any kind, it is difficult to see how "no Court [could] regard [utterances in wartime hindering war efforts] as protected by any constitutional right".

Amend that - impossible to see.


Frohwerk v. United States, 249 U.S. 204 (1919)
This case, decided a week after Schenck, also upholds the "constitutionality" of the Espionage Act of 1917.

Judge Holmes:

[T]he First Amendment while prohibiting legislation against free speech as such cannot have been, and obviously was not, intended to give immunity for every possible use of language. . . . We venture to believe that neither Hamilton nor Madison, nor any other competent person then or later, ever supposed that to make criminal the counselling of a murder within the jurisdiction of Congress would be an unconstitutional interference with free speech. [7]

This last point is an interesting argument to make on the floor of a Constitutional Convention, Judge (if you were on the floor of a Constitutional Convention, and not sitting on the bench of the Supreme Court). As interesting as it is irrelevant - and inaccurate.

Judge Holmes noted later that Frohwerk's defense (that the First Amendment protected him) was "disposed of in Schenck" [8] ; proving that the Schenck Amendment to the First Amendment made only a week earlier was now the "law of the land".

Well, that's an efficient way to amend a Constitution! Why didn't the Framers think of it?


Gitlow v. New York, 268 U.S. 652 (1925)
Benjamin Gitlow, "a member of the 'left wing' of the Socialist party" [9] (?), wrote a paper repudiating the "moderate" wing of the party. But Gitlow didn't just spout the typical rhetoric characteristic of the time. His speech went beyond mere abstract analysis and predictions; rather, it went into the area of tactics action. For example, Gitlow had urged "mass strikes for the purpose of fomenting . . . disturbance". [10] In doing this, Gitlow had committed a crime against the State of New York, which had a criminal anarchy law forbidding such conduct.

In this decision, Judge Sanford begins by seeming to understand that the first Amendment does not apply to State governments:

It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. [11]

This paragraph, while false as applied to Federal law, is true as applied to law authored by State governments. So it would seem that Sanford's next move would be to point out, correctly, that the First Amendment is inapplicable here.

But Sanford had a better idea: rather than uphold the (constitutional) New York law, first "incorporate" the First Amendment into the Fourteenth, and then use the resulting unpalatable situation (given the absolute language of the First) to point out the flaw of this incorporation! Here's the incorporating paragraph so well-known to American law students:

For present purposes we may and do assume that freedom of speech and of the press - which are protected by the 1st Amendment from abridgment by Congress - are among the fundamental personal rights and 'liberties' protected by the due process clause of the 14th Amendment from impairment by the states. [12]

"For present purposes"? That's a curious phrase! Why is it only for "present purposes" that one makes such an extraordinary re-interpretation of the Constitution? Are we to infer that for "other purposes" these "rights" will not be protected? If that's true, then what are those purposes? And where in the Constitution does it say that the Constitutional flow-chart is to be revised whenever "present purposes" require it? We aren't told.

This famous "present purposes" paragraph was either an attempt at a slick maneuver, or an uncommonly stupid analysis of the Constitution. To insure Gitlow remained in the pokey, all Sanford had to do was remain consistent with the analysis expressed in Prudential only three years earlier that "neither the 14th Amendment nor any other provision of the Constitution of the United States imposes upon the states any restrictions about 'freedom of speech' . . .". [13] , and say that the Fourteenth Amendment allowed speech regulation by the State of New York. Just stick to that! The First Amendment would be safe, and the speech offender quashed.

But this was far too simple for Sanford: how much better to ignore the clear language of the Constitution, obliterating the flow-chart of constitutional power in the process. Well, we must - progress? This is going to be a "watered-down" view of the Fourteenth Amendment, though (and now that the First Amendment has been dragged into the mud, it will be watered-down too, by extension, one of the prices we pay when they misanalyze the Constitution). The "State" has a job to do, and the Court can't tie its hands:

The State cannot reasonably be required to measure the danger from every such utterance in the nice balance of a jeweler's scale. A single revolutionary spark may kindle a fire that, smouldering for a time, may burst into a sweeping and destructive conflagration. It cannot be said that the State is acting arbitrarily or unreasonably when in the exercise of its judgment as to the measures necessary to protect the public peace and safety, it seeks to extinguish the spark without waiting until it has enkindled the flame or blazed into the conflagration. [14]

So not only does Gitlow remain incarcerated, but the First Amendment gets re-defined in the process. Two dead birds, a flock to go.


Kovacs v. Cooper, 336 U.S. 77 (1949)
In this incorporated (?) Fourteenth Amendment case involving the regulation of sound trucks, Judge Reed tells us that "even the fundamental rights of the Bill of Rights are not absolute." [15] Not even the absolutely written ones, Judge? Reed goes on to say that "[t]he preferred position of freedom of speech in a society that cherishes liberty for all does not require legislators to be insensible to claims by citizens to comfort and convenience." [16]

Well, I can find no text in my copy of the Bill of Rights that refers to citizen "comfort and convenience" as limiting A's liberty to speak. But if I could, how could there be liberty for "all", A's liberty having been limited? And why would a people who "cherish[]" liberty for all allow for this exception? Because they cherish "comfort and convenience" over liberty?

Now there's a nice amendment to the end of the Pledge of Allegiance:

[W]ith liberty comfort and convenience and justice for all.


Feiner v. New York, 340 U.S. 315 (1951)
In this incorporated (?) Fourteenth Amendment case, the Court upholds a conviction of a college student sentenced to 30 days in jail who "refused [the] request of police officers that he cease talking . . ." [17] . As Judge Vinson tells us, "the imminence of greater disorder coupled with petitioner's deliberate defiance of the police officers convince us that we should not reverse this conviction in the name of free speech." [18]

Another "non-watered-down" theory bites the dust.


Poulos v. New Hampshire, 345 U.S. 395 (1953)
In this incorporated (?) Fourteenth Amendment case, the Court upholds a conviction of a defendant who conducted open air meetings without a license. But didn't Life magazine tell us that we had a "guarantee", a promise by government that we would be free to speak our minds as we saw fit? "Fooled ya!" says Judge Reed:

The principles of the First Amendment are not to be treated as a promise that everyone with opinions or beliefs to express may gather around him at any public place and at any time a group for discussion or instruction. It is a nonsequitur to say that First Amendment rights may not be regulated because they hold a preferred position in the hierarchy of the constitutional guarantees of the incidents of freedom. This Court has never so held and indeed has definitely indicated the contrary. It has indicated approval of reasonable nondiscriminatory regulation by governmental authority that preserves peace, order and tranquillity without deprivation of the First Amendment guarantees of free speech, press and the exercise of religion. [19]

Promises, promises. Life talks the talk, but the Court offs the walk.


United States v. 12 . . . Reels of . . . Film, 413 U.S. 126 (1973)
Is the following Federal statute (19 U.S.C §1305(a)) unconstitutional?

All persons are prohibited from importing into the United States from any foreign country . . . any obscene book, pamphlet, paper, writing . . . or otherarticle which is obscene or immoral . . . [20]

It certainly would seem so. This statute, passed by Congress and signed into law by the President, prohibits the importation into the country of "immoral" "article[s]" - articles which are not explicitly defined (uh-oh). It also prohibits the importation of "obscene" books and other writings, and thus, certainly to that extent, abridges the freedom of speech and of the press. The problem for the legality of this statute (and a Court which wants to uphold it) is that the First Amendment makes no exception for "obscene" works.

Well, that problem is easily glossed over by a Court well practiced in the art of glossification. According to Judge Burger, "it is now well established that obscene material is not protected by the First Amendment". [21] The First Amendment re-defined by just fifteen short words! Note that the bald statement "obscene material is not protected by the First Amendment", only nine words, doesn't have quite the same ring to it. It's that use of "it is now well established" preceding the bald statement that is supposed to throw the cloak of legitimacy around this subterfuge. The miracle of language! Or, as Stuart Chase put it, the "tyranny of words".

The interesting question here, apart from the lack of specificity in the statute proper of what constitutes "obscenity" or "immoral[ity], is how this view could be "well established" without the benefit of an amendment to the Constitution. Burger doesn't say. Even worse, in the rest of his opinion he fails to point out the greater problem with this statute, the prohibition against the importation of "other" "immoral" "article[s]" (which may or may not be "writing[s]"). "Other", you see, could mean a) the article is not a "writing", or b) the article is a writing, like the "other" aforementioned articles.

Well, you can't catch everything.


U.S. Civil Service Comm. v. Letter Carriers, 413 U.S. 548 (1973)
The Court upholds the Hatch Act, which prohibits federal employees from taking an active part in political management or in political campaigns. Judge Douglas, in a dissent, listed the problems with this law:

The Hatch Act by §9 (a) prohibits federal employees from taking 'an active part in political management or in political campaigns.' Some of the employees, whose union is speaking for them, want 'to run in state and local elections for the school board, for city council, for mayor'; 'to write letters on political subjects to newspaper';. . . 'to work at polling places in behalf of a political party.'

There is no definition of what 'an active part . . . in political campaigns' means. . . .

The chilling effect of these vague and generalized prohibitions is so obvious as not to need elaboration. . . . it is of no concern of Government what an employee does in his spare time, whether religion, recreation, social work, or politics is his hobby - unless what he does impairs efficiency or other facets of the merits of his job. . . .

The Commission, on a case-by-case approach, has listed 13 categories of prohibited activities, 5 CFR §733.122(b), starting with the catch-all 'include but are not limited to.' So the Commission ends up with open-end discretion to penalize X or not to penalize him. For example, a 'permissible' activity is the employee's right to '(e)xpress his opinion as an individual privately and publicly on political subjects and candidates.' 5 CFR §733.111(a)(2). Yet 'soliciting votes' is prohibited. 5 CFR §733.122(b)(7). Is an employee safe from punishment if he expresses his opinion that candidate X is the best and candidate Y the worst? Is that crossing the forbidden line of soliciting votes?

A nursing assistant at a veterans' hospital put an ad in a newspaper reading: 'To All My Many Friends of Poplar Bluff and Butler County I want to take this opportunity to ask your vote and support in the election, TUESDAY, AUGUST 7th. A very special person is seeking the Democratic nomination for Sheriff. I do not have to tell you of his qualifications, his past records stand. This person is my dad, Lester (Less) Massingham. THANK YOU WALLACE (WALLY) MASSINGHAM'.

He was held to have violated the Act. Massingham, 1 Political Activity Reporter 792, 793 (1959).

Is a letter a permissible 'expression' of views or a prohibited 'solicitation?' The Solicitor General says it is a 'permissible' expression; but the Commission ruled otherwise. For an employee who does not have the Solicitor General as counsel great consequences flow from an innocent decision. He may lose his job. Therefore the most prudent thing is to do nothing. Thus is self-imposed censorship imposed on many nervous people who live on narrow economic margins.

I would strike this provision of the law down as unconstitutional so that a new start may be made on this old problem that confuses and restricts nearly five million federal, state, and local public employees today that live under the present Act. [22]


CBS, Inc. v. Democratic National Committee, 412 U.S. 94 (1973)
In 1970, the Business Executives' Move for Vietnam Peace (BEM) complained to the FCC ("the Commission") that radio station WTOP in Washington, D.C. had refused to sell it time to broadcast a series of one-minute spot announcements expressing BEM views on Vietnam. Four months later, the Democratic National Committee (DNC) asked the FCC for a ruling in this case, since it intended to purchase time from radio and television stations to present party views, but knew that its prior experience in this area made it clear that it would "encounter considerable difficulty - if not total frustration of its efforts" without a ruling. [23]

Both parties lost - the FCC rejected the notion of the right of an individual or organization to air "editorial advertisements" on the public airwaves. This decision, however, was reversed by a Court of Appeals, a decision which was itself reversed by the Supreme Court in this famous case, a case which illuminates all too clearly the nature of First Amendment "rights". This is a "smoking gun" case.

In rejecting the idea of a right of public access to "public airwaves" and reversing the decision of the Court of Appeals, the Court cited favorably these chilling words of professor Zechariah Chafee:

Once we get away from the bare words of the [First] Amendment, we must construe it as part of a Constitution which creates a government for the purpose of performing several very important tasks. The [First] Amendment should be interpreted so as not to cripple the regular work of the government. . . . Although free speech should weigh heavily in the scale in the event of conflict, still the Commission should be given ample scope to do its job. [24]

It was obvious that the Court wanted to "get away from the bare words of the [First] Amendment", since the Court subsequently ignored Congress' violation of the First Amendment by not only a) creating the Communications of Act of 1934 (and abridging speech), but also by b) rejecting the "common carrier" model of communication in that Act, which gave preferential treatment to a particular class of persons - those with licenses to speak via broadcast (and thus to prevent everyone else from speaking via broadcast [in the days before the World Wide Web, that is):

Congress specifically dealt with - and firmly rejected - the argument that the broadcast facilities should be open on a nonselective basis to all persons wishing to talk about public issues. . . . Congress rejected another proposal that would have imposed a limited obligation on broadcasters to turn over their microphones to persons wishing to speak out on certain public issues. Instead, Congress after prolonged consideration adopted §3 (h), which specifically provides that 'a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier. [25]

Savvy move by Congress. If broadcasters were to have been deemed "common carriers", they would have been subject to 47 U.S.C. §202, which provides that: '(a) It shall be unlawful for any common carrier to . . . make or give any undue or unreasonable preference or advantage to any particular person, class of persons, or locality, or to subject any particular person, class of persons, or locality to any undue or unreasonable prejudice or disadvantage.' [26] In rejecting the common carrier model, Congress rejected a sanction that could have been used against any government-licensed broadcaster who did give an "undue" or "unreasonable" preference or advantage to a particular class of persons. The rejection of the common carrier model allowed, therefore, not only censoring of speech, but unreasonable censoring of speech.

Of course, allowing uncensored speech would make impossible accountability, though the First Amendment specifically rejects the idea that any person or entity is "accountable" to the Federal government for their speech acts. Tell that to the Supreme Court, which noted with disdain that an open access policy would result in a "transfer of control over the treatment of public issues from the licensees who are accountable for broadcast performance to private individuals who are not." [27]

Accountable? People who broadcast in America are accountable? Accountable to whom? To Congress? But Congress has no power to regulate speech . . . or does it? According to the Court, if private individuals were allowed to air their views without censorship by licensed broadcasters, ". . . . the congressional objective of balanced coverage of public issues would be seriously threatened." [28]

Hmmm . . . it turns out that contrary to the First Amendment (formerly known as the "supreme law of the land"), Congress is in the speech-abridgment business after all - it makes sure that the speech transmitted over "public" airwaves is "balanced"; that is, with reference to the Congressional notion of "balance", which doesn't necessarily jibe with your notion of it; you'll remember that this so-called "balanced coverage" can be "undue", "unreasonable", and "prejudic[ial]", since broadcasters were not deemed to be common carriers. This policy of censorship by government-licensed broadcasters to achieve what is referred to as "balance"

gives the public some assurance that the broadcaster will be answerable if he fails to meet its legitimate needs. No such accountability attaches to the private individual, whose only qualifications for using the broadcast facility may be abundant funds and a point of view. To agree that debate on public issues should be 'robust, and wide-open' does not mean that we should exchange 'public trustee' broadcasting, with all its limitations, for a system of self-appointed editorial commentators. [29]

In other words, if you want to send a message out over the public airwaves, your material will be scrutizined by broadcasters, who themselves are scrutinized by the Federal government. If the broadcasters offend the Congressional (a/k/a the Democrat-Republican party's) notion of "balance" (or if broadcasters focus on "trivial" or "crackpot" issues which offend the government's notion of the "public interest"), they risk losing their licenses to broadcast - licenses collectively worth hundreds of millions of dollars.

In a dissent, Judge Brennan, citing the Court of Appeals decision, noted the absurdity of this decision, given the status quo of a government/broadcasting nexus: "the general characteristics of the broadcast industry reveal an extraordinary relationship between the broadcasters and the federal government - a relationship which puts that industry in a class with few others." [30] After observing "the governmentally created preferred status of broadcast licensees" and "the pervasive federal regulation of broadcast programming", [31] Brennan stated the political implications of this policy:

[W]e have consistently held that 'when authority derives in part from Government's thumb on the scales, the exercise of that power by private persons becomes closely akin, in some respects, to its exercise by Government itself.' [32]

This Government regulation was not minimal, but extensive:

[W]e are confronted, not with some minimal degree of regulation, but, rather, with an elaborate statutory scheme governing virtually all aspects of the broadcast industry. Indeed, federal agency review and guidance of broadcaster conduct is automatic, continuing, and pervasive. Thus, as the Court of Appeals noted, '[a]lmost no other private business - almost no other regulated private business - is so intimately bound to government . . .' [33]

That's a shocker! This is supposed to be the least regulated business by the Federal government! The crux of this law, that "the Communications Act of 1934 [47 U.S.C. §501] makes it a criminal offense to operate a broadcast transmitter without a license" [34] was only the starting point. In footnotes 8 and 9 of his opinion, Brennan listed examples demonstrating the pervasive extent of this regulation:

[T]he Communications Act of 1934 authorizes the Federal Communications Commission to assign frequency bands, 47 U.S.C. §303(c); allocate licenses by location, §303(d); regulate apparatus, §303(e); establish service areas, §303(h); regulate chain ownership, §303(i); require the keeping of detailed records, §303(j); establish qualifications of licensees, §303(l); suspend licenses, §303(m)(1); inspect station facilities, §303(n); require publication of call letters and other information, §303(p); make rules to effect regulation of radio and television, §303(r); require that television sets be capable of receiving all signals, §303(s); regulate the granting of licenses and the terms thereof, §§307, 309; prescribe information to be supplied by applicants for licenses, §308(b); regulate the transfer of licenses, §310; impose sanctions on licensees, including revocation of license, §312; require fair coverage of controversial issues, §315; control the operation of transmitting apparatus, §318; and prohibit the use of offensive language, 18 U.S.C. §1464.

Pursuant to statutory authority . . . the Commission has promulgated myriad regulations governing all aspects of licensee conduct. See 47 CFR §73.17 et seq. These regulations affect such matters as hours of operation, §73.23; multiple ownership of licenses by a single individual, §73.35; station location and program origination, §73.30; maintenance of detailed logs of programming, operation, and maintenance, §§73.111-116; billing practices, §73.124; the personal attack and political editorial fairness requirements, §73.123; relationship of licensees to networks, §§73.131-139; permissible equipment, §§73.39-50. The above-cited regulations relate only to AM radio, but similar regulations exist for FM radio, §73.201 et seq., and television, §73.601 et seq. [35]

Brennan further observed that "the Government has selected the persons who will be permitted to operate a broadcast station, extensively regulates those broadcasters, and has specifically approved the challenged broadcaster policy. . . . the Government 'has so far insinuated itself into a position' of participation in the challenged policy as to make the Government itself responsible for its effects." [36]

Supposedly the Fairness Doctrine [37] was to solve this problem; however, this was pie-in-the-sky "fairness", since government-regulated broadcasters were given the power to decide what was or wasn't "fair":

[T]he Court's reliance on the Fairness Doctrine as the sole means of informing the public seriously misconceives and underestimates the public's interest in receiving ideas and information directly from the advocates of those ideas without the interposition of journalistic middlemen. Under the Fairness Doctrine, broadcasters decide what issues are 'important,' how 'fully' to cover them, and what format, time, and style of coverage are 'appropriate.' The retention of such absolute control in the hands of a few Government licensees is inimical to the First Amendment, for vigorous, free debate can be attained only when members of the public have at least some opportunity to take the initiative and editorial control into their own hands.

Our legal system reflects a belief that truth is best illuminated by a collision of genuine advocates. Under the Fairness Doctrine, however, accompanied by an absolute ban on editorial advertising, the public is compelled to rely exclusively on the 'journalistic discretion' of broadcasters, who serve in theory as surrogate spokesmen for all sides of all issues. This separation of the advocate from the expression of his views can serve only to diminish the effectiveness of that expression.

Finally, it should be noted that the Fairness Doctrine permits, indeed requires, broadcasters to determine for themselves which views and issues are sufficiently 'important' to warrant discussion. The briefs of the broadcaster-petitioners in this case illustrate the type of 'journalistic discretion' licensees now exercise in this regard. Thus ABC suggests that it would refuse to air those views which it considers 'scandalous' or 'crackpot,' while CBS would exclude those issues or opinions that are 'insignificant' or 'trivial.' Similarly, NBC would bar speech that strays 'beyond the bounds of normally accepted taste,' and WTOP would protect the public from subjects that are 'slight, parochial or inappropriate.' [38]

According to Brennan, "'[t]he right of free speech of a broadcaster . . . does not embrace a right to snuff out the free speech of others.'" Indeed, "there is simply no overriding First Amendment interest of broadcasters that can justify the absolute exclusion of virtually all of our citizens from the most effective 'marketplace of ideas' ever devised." [39]

So much for theory. In practice, the medium wasn't going to allow every message.

[A]s the system now operates, any person wishing to market a particular brand of beer, soap, toothpaste, or deodorant has direct, personal, and instantaneous access to the electronic media. He can present his own message, in his own words, in any format he selects, and at a time of his own choosing. Yet a similar individual seeking to discuss war, peace, pollution, or the suffering of the poor is denied this right to speak. Instead, he is compelled to rely on the beneficence of a corporate 'trustee' appointed by the Government to argue his case for him [40]


Lehman v. City of Shaker Heights, 418 U.S. 298 (1974)
We have learned that the Fourteenth Amendment has been seen to protect speech by extending the First Amendment stricture to interference by State government - but is a "city" a "State"?

This case presents the question whether a city which operates a public rapid transit system and sells advertising space for car cards on its vehicles is required by the First and Fourteenth Amendments to accept paid political advertising on behalf of a candidate for public office. [41]

This is pretty easily analyzed under the two amendments they mention, standing alone. A "city" is not Congress (under the First Amendment), nor is a "city" a State (under the Fourteenth Amendment) if we read "State" the way the term is used over and over again in the Constitution (i.e., a State is one of those fifty subsidiary provinces in the United States which send Representatives and Senators to Congress). Consequently, "cities" are empowered to regulate speech - under these Amendments, standing alone.

A harsh observation. But does this mean a city can regulate political advertising? No, not necessarily. There are two other Amendments we could look to, the Ninth, whose very existence assumes the existence of other rights, but more specifically the Tenth, which says that the powers not reserved to "States" are reserved to "people", which would presumably grant people the right to be free from municipal speech regulation. There is no "city" in the Constitutional power flow-chart; rather, "Congress", then "States", then "people".

At this point, we're at the stage of having to confront the many issues a strictly-construed Constitution (assuming Fourteenth Amendment First Amendment incorporation) would raise. These serious issues would more properly be addressed in a Constitutional Convention better equipped to mull over these thorny details. But the point to be clear on is that if one wants to stop cities from regulating speech, one has to look to the Ninth and Tenth Amendments, not the Fourteenth.

Not that this analysis makes any difference. In this decision, we learn that while a "city" is supposedly a "State" with respect to some speech issues, it isn't where political speech (you know, the dangerous kind) is concerned. Let's look at the facts:

In 1970, petitioner Harry J. Lehman was a candidate for the office of State Representative to the Ohio General Assembly for District 56. The district includes the city of Shaker Heights. On July 3, 1970, petitioner sought to promote his candidacy by purchasing car card space on the Shaker Heights Rapid Transit System for the months of August, September, and October. The general election was scheduled for November 3. Petitioner's proposed copy contained his picture and read:

HARRY J. LEHMAN IS OLD-FASHIONED!
ABOUT HONESTY, INTEGRITY AND GOOD
GOVERNMENT

State Representative - District 56 [X] Harry J. Lehman. [42]

Sounds like a fairly innocuous ad. However, there was a hoop Harry had to jump through first:

Advertising space on the city's transit system is managed by respondent Metromedia, Inc., as exclusive agent under contract with the city. The agreement between the city and Metromedia provides: '15. . . . The CONTRACTOR shall not place political advertising in or upon any of the said CARS or in, upon or about any other additional and further space granted hereunder.' [43]

The city's legislation-by-contract was only the first hurdle, however. Poor Harry would also have to make it past the "Standards and Practices" department of Metromedia, Inc.:

(1) . . . Copy which might be contrary to the best interests of the transit systems, or which might result in public criticism of the advertising industry and/or transit advertising will not be acceptable. . . .

(3) All copy subject to approval. Rough sketches with proposed copy required on all political advertising.

(4) Metro Transit Advertising reserves the right at all times to decline both sides of any proposition and/or opposing candidates. . . .

(10) Political advertising will not be accepted on following systems: Shaker Rapid - Maple Heights - North Olmsted - Euclid, Ohio. [44]

Oops, nailed by old clause 10, a function of the contract with the city (yes, folks, there's legislation in them thar "contracts"). The system, however, allowed other messages to be transmitted freely:

The system, however, accepted ads from cigarette companies, banks, savings and loan associations, liquor companies, retail and service establishments, churches, and civic and public-service oriented groups. There was uncontradicted testimony at the trial that during the 26 years of public operation, the Shaker Heights system, pursuant to city council action, had not accepted or permitted any political or public issue advertising on its vehicles. [45]

On the Shaker Rapid, you can advertise the messages of companies which sell addictive products that cause lung cancer and liver damage - but not the messages of citizen-politicians who are looking to restore "good government". Well allrighty then!

For the Court, the issue here is not "is a city a State"? That will be assumed, and one would assume that ends the matter, and that Harry will be given permission by the Supreme Court to place his ad after all, thanks to a non-watered-down First Amendment incorporated into the Fourteenth. Not so fast, though. For the Court, there are two other issues. The first issue is "Are car cards in public transportation a public forum?" (even though there is no non-public forum exception written in the First Amendment).

And the answer is . . . No???

It is urged that the car cards here constitute a public forum protected by the First Amendment, and that there is a guarantee of nondiscriminatory access to such publicly owned and controlled areas of communication 'regardless of the primary purpose for which the area is dedicated.' . . .

We disagree. . . . 'The streetcar audience is a captive audience. It is there as a matter of necessity, not of choice.' Public Utilities Comm'n. v. Pollak, 343 U.S. 451, 468 . . .

Here, we have no open spaces, no meeting hall, park, street corner, or other public thoroughfare. Instead, the city is engaged in commerce. It must provide rapid, convenient, pleasant, and inexpensive service to the commuters of Shaker Heights. The car card space, although incidental to the provision of public transportation, is a part of the commercial venture. In much the same way that a newspaper or periodical, or even a radio or television station, need not accept every proffer of advertising from the general public, a city transit system has discretion to develop and makereasonable choices concerning the type of advertising that may be displayed in its vehicles. . . .

Because state action exists, however, the policies and practices governing access to the transit system's advertising space must not be arbitrary, capricious, or invidious. [46]

But wait a second here - the way I read the First Amendment, Congress does not have the "discretion" to make any choices, "reasonable" or "unreasonable"! Wasn't that the right that was "incorporated"? And how does the idea of "captivity" (true or false) obliterate the public nature of a streetcar?

Let's sidetrack a bit and take a look at this fascinating idea of a "captive audience". A radical hypothesis slipped in here, and by the Supreme Court of the United States, no less. It's an Orwellian hypotheis, indeed, based on something you might expect to find in 1984:

Riders of public transportation are not free - their sense of "freedom" is an illusion - they're there not because they want to be, but because they have to be, and even if they think differently!

Economic realities, you know. The need to ride to work to eat to live. That makes you a "captive", according to the Court. Hmmm . . . a fascinating perspective! I may want to follow that one up later . . .

But let's assume the Court is right for now, even though they have not cited in the record any facts that would substantiate their hypothesis. Now, we all know it would be miserable being part of a "captive audience", and that brings us to the Court's second issue, which they have falsely framed. The second issue is not "are riders captives?", but "if riders are captives, why is A allowed to send a message to these captive riders, but not B?" If the Court wants to use the "captive audience" rationale to allow the abridgment of speech, why allow some messages to be beamed to the captives, but not others?

The primary issue, "is this action by Congress or a State?" was disposed of when the Court explicitly stated, accurately or otherwise, that "state action exists." [47] And that should have settled the matter, without regard to talk of "public forums" or "captives". Recall that Judge Douglas (among others) told us that the Fourteenth Amendment "free speech" provision was not "watered-down". [48]

"Should" have settled the matter, but wouldn't you know it, there's a compelling "state" interest here, which weaseled its way in through the concept of city transit "discretion". Well, that's the nature of incorporation: you incorporate a "watered-down" Fourteenth Amendment from a "watered-down" First Amendment, and that gives you a watered-down watered-down "right"! Good thing too - look at all the problems that could result from allowing Harry Lehman to run his ad for "good government":

Revenue earned from long-term commercial advertising could be jeopardardized by a requirement that short-term candidacy or issue-oriented advertisements be displayed on car cards. Users would be subjected to the blare of political propaganda. There could be lurking doubts about favoritism, and sticky administrative problems might arise in parceling out limited space to eager politicians. In these circumstances, the managerial decision to limit car card space to innocuous and less controversial commercial and service oriented advertising does not rise to the dignity of a First Amendment violation. Were we to hold to the contrary, display cases in public hospitals, libraries, office buildings, military compounds, and other public facilities immediately would become Hyde Parks open to every would-be pamphleteer and politician. This the Constitution does not require. [49]

Gee, Judge, with all due respect, I think you have it wrong here I think the Constitution does require that "public facilities" be open even to "every would-be pamphleteer" and "politician", if the Fourteenth Amendment is not "watered-down" (as you have put down in writing) and if the "city" may be considered a "State" (as you have stated) that has abridged the freedom of speech (as you freely admit).

See, you said, formerly, that decisions regarding a non-watered down Fourteenth Amendment were "precedents", decisions which were the "law" (even though you have no lawmaking power), and that therefore following them was a "requirement". But now you want to back off the "requirement". Maybe that's because they're only precedents when you want them to be!

I'm getting a funny feeling here . . . when you say "[t]his the Constitution does not require", just what Constitution are you referring to?

All this talk of "incorporation" and "absolute rights which aren't absolute, well, they really are, but only sometimes, except when they're watered-down, which they can't be, unless they have to be", and a Constitution "which should always be obeyed except when 'would-be' pamphleteers are involved and/or unless government entities not explicitly covered under the Constitution have not permitted individuals or groups to send political messages to 'captives' who have privacy rights not explicitly described under the Constitution that cannot be ignored (unless they are ignored), 'captives' who have every right (but no power) to be freed from the possibility of having to view (certain) messages which have slid past the filters of a commercial enterprise regulated by a government entity for display in a public 'facility' which is not a public 'forum' (except for some members of the public), under (illegal) precedents which we either need not or have to recognize, distinguish, or ignore, depending on the facts as we see or report them" is getting me very confused!

Perhaps order in the Court will be restored by the hero on the bench - William O. Douglas, the "liberal" judge, the defender of "free speech" in so many dissents (opinions that had no precedential value). Time after time, in decision after decision, when Douglas was in the minority, he portrayed himself as a defender of the Constitution. Yeah, but what happens when the decision is 4-4, and you're the swing vote?

Well, I guess that's the time to show your true colors!

Here's Douglas, discussing the Supreme Court's First Amendment (not the old-fashioned one on paper, an archaic irrelevancy), and concurring with the majority:

In asking us to force the system to accept his message as a vindication of his constitutional rights, the petitioner overlooks the constitutional rights of the commuters. While petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon an audience incapable of declining to receive it. In my view the right of the commuters to be free from forced intrusions on their privacy precludes the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience. [50]

Well, we wouldn't want to "force" Government to obey the Constitution, no matter whose version - that would mean that we have a Constitution, no matter whose, and we can't have that! But wait . . . Douglas himself told us that the Fourteenth Amendment wasn't "watered-down". What happened? What happened to the "cornerstone of democracy"?

(reads Constitution)

Oh, I see, it's not a "democracy" after all. So they pulled out the "cornerstone" - they said it was "waterlogged"! That explains that "funny feeling" I'm having: it's nausea, the kind of nausea you feel when you're on a toppling building.

Still, there's my golden parachute. Life magazine said I have a "guarantee" - maybe I can get my money back! Back in a moment . . .

(Calls Life, gets response, hangs up).

Hmm, turns out it was a "30-day" money-back guarantee - and we're past the 75,000th day. Damn - that's what I get for not reading the "fine print"!

Note here that we find "privacy" set against "speech" to be used as a rationale to stop communication, even though the Constitution says nothing explicit about privacy, and much explicit about free speech and press.

Of course, the question remains why tobacco and liquor companies have the right to "force" a "captive audience" to be constantly exposed to the message "buy addictive substances that can kill you", even though the said captives' supposed "privacy rights" are supposed to prevent this sorry state of affairs. Let me make a call and check on it. Be right back . . .

(Calls Supreme Court, gets response, hangs up).

Oh, I see, the "reach" of "privacy" doesn't extend that far. See, the Judges are "humanitarians", and too much privacy would not allow these judges to shorten riders' lives, and thus reduce the misery these poor captives must be feeling!

So that's why they call themselves "justices" - I was wondering about that!

In a dissent, Judge Brennan pointed out the real rights of the captives:

Commercial and public service advertisements are routinely accepted for display, while political messages are absolutely prohibited. Few examples are required to illustrate the scope of the city's policy and practice. For instance, a commercial advertisement peddling snowmobiles would be accepted, while a counter-advertisement calling upon the public to support legislation controlling the environmental destruction and noise pollution caused by snowmobiles would be rejected. Alternatively, a public service ad by the League of Women Voters would be permitted, advertising the existence of an upcoming election and imploring citizens to vote, but a candidate, such as Lehman, would be barred from informing the public about his candidacy, qualifications for office, or position on particular issues. [51]

This is "impermissible", according to Brennan:

These, and other examples, make perfectly clear that the selective exclusion of political advertising is not the product of evenhanded application of neutral 'time, place, and manner' regulations. Rather, the operative - and constitutionally impermissible - distinction is the message on the sign [52]

Yeah, well, if it's "impermissible", why are they permitting it? Maybe because physical captives are mental captives as well:

A theater may advertise a motion picture that portrays sex and violence, but the Legion for Decency has no right to post a message calling for clean films. A lumber company may advertise its wood products, but a conservation group cannot implore citizens to write to the President or Governor about protecting our natural resources. An oil refinery may advertise its products, but a citizens' organization cannot demand enforcement of existing air pollution statutes. An insurance company may announce its available policies, but a senior citizens' club cannot plead for legislation to improve our social security program. . . . Advertisements for travel, foods, clothing, toiletries, automobiles, legal drugs - all these are acceptable, but the American Legion would not have the right to place a paid advertisement reading, 'Support Our Boys in Viet Nam. Send Holiday Packages.' [53]

Well, that makes sense. Doesn't it?


Brown v. Glines, 444 U.S. 348 (1980)
Apart from its speech and press provisions, the First Amendment gives all people (not just citizens) a specific right to petition the government:

Congress shall make no law . . . abridging . . . the right of the people . . . to petition the government for a redress of grievances.

Suppose Congress wants to diminish this provision by statutory amendment. Can it? "Sure!", says the Court.

Here are the facts according to the Court:

Albert Glines was a captain in the Air Force Reserves. While on active duty at the Travis Air Force Base in California, he drafted petitions to several Members of Congress and to the Secretary of Defense complaining about the Air Force's grooming standards. Aware that he needed command approval in order to solicit signatures within a base, Glines at first circulated the petitions outside his base. During a routine training flight through the Anderson Air Force Base in Guam, however, Glines gave the petitions to an Air Force sergeant without seeking approval from the base commander. The sergeant gathered eight signatures before military authorities halted the unauthorized distribution. Glines' commander promptly removed him from active duty, determined that he had failed to meet the professional standards expected of an officer, and reassigned him to the standby reserves. [54]

Here was the petition in question:

Dear Secretary of Defense:

We, the undersigned, all American citizens serving in the Armed Services of our nation, request your assistance in changing the grooming standards of the United States Air Force

We feel that the present regulations on grooming have caused more racial tension, decrease in morale and retention, and loss of respect for authorities than any other official Air Force policy.

We are similarly petitioning Senator Cranston, Senator Tunney, Senator Jackson, and Congressman Moss in the hope that one of our elected or appointed officials will help correct this problem. [55]

The first problem for Glines was Air Force Reg. 30-1 (9) (1971), which prohibited "any person within an Air Force facility' and 'any [Air Force] member . . . in uniform or . . . in a foreign country' from soliciting signatures on a petition without first obtaining authorization from the appropriate commander." [56]

A second, and more serious, problem for Glines was 10 U.S.C §1034, which provided in pertinent part that "[n]o person may restrict any member of an armed force in communicating with a member of Congress, unless the communication is unlawful or violates a regulation necessary to the security of the United States." [57] Note that the "unless" language of this statute, if legal, would clearly diminish the "Congress shall make no law . . . abridging . . . the right of the people . . . to petition the government for a redress of grievances" language of the First Amendment, which has no such exceptions/qualifications. Of course, Article V of the Constitution plainly renders 10 U.S.C §1034 null and void. Let's see how the Supreme Court sees it:

Glines contends that this law protects the circulation of his collective petitions as well as the forwarding of individual communications. We find his contention unpersuasive. . . . In construing a statute that touches on such matters, therefore, courts must be careful not to 'circumscribe the authority of military commanders to an extent never intended by Congress.' Huff v. Secretary of Navy. . . 575 F. 2d 907, 916 (1978) . . . The unrestricted circulation of collective petitions could imperil discipline. We find no legislative purpose that requires the military to assume this risk and no indication that Congress contemplated such a result. We therefore decide that §1034 does not protect the circulation of collective petitions within a military base. [58]

Have to blame Gline's attorneys for this one. They claimed the statute protected Glines, when it was really the First Amendment which was supposed to.

Guess it would help to read the First Amendment. Or would it?


Con. Ed. v. Public Service Commission, 447 U.S. 530 (1980)
In this case, the Court prevents the New York Public Service Commission from ordering utilities not to discuss, as part of their monthly billing materials, the desirability of nuclear power. Rather than quote from the decision, let's drop in on a conversation between A and B:

A: I'm kind of new at this business of interpreting the Constitution. I have some questions. Could you answer them?

B: Be happy to!

A: Are the utilities commerical monopolies regulated by Government?

B: Yes.

A: So a branch of government doesn't have the right to tell a "commercial" entity what to say, even though that entity is itself a government-regulated monopoly.

B: Of course not.

A: But we, the ratepayers, can be forced to pay (through higher utility bills) for messages we'd rather not receive, since this entity has been given a monopoly by the government.

B: Yup.

A: But aren't we a "captive audience"?

B: No, the United States mail isn't a "public" forum.

A: Oh, the home is "private", so it's a "private" forum.

B: Yes.

A: So don't I have a right of "privacy" to not be forced to pay for messages sent to my home without my consent?

B: No, your "privacy" is bounded by the right of the utility to charge you for the messages they want to send you.

A: Well, suppose I don't want to pay for that message?

B: That's not your right.

A: I see . . . well, do I get a "right of reply" to send a message I do want to receive?

B: No, that's opposed to the First Amendment.

A: But the First Amendment refers only to Congress!

B: Oh yeah . . . that's opposed to the Fourteenth Amendment.

A: So that means that a government-regulated monopoly can enhance its (private) profit by forcing the public to not only subsidize its profit-enhancing messages (without allowing the public to share in the spoils), but also by compelling the public to receive these messages without the corresponding ability to reply to them?

B: Sure - it's a little something called the "Constitution" - why don't you read it sometime?


U.S. Postal Service v. Council of Greenburgh, 453 U.S. 114 (1981)
Suppose you want to designate the mailbox you've paid for (that is, your private property) to act as a receptacle to receive messages from a group. Can you? No.

In this case, the Court holds constitutional 18 U.S.C. §1725 which provides: "Whoever knowingly and willfully deposits any mailable matter such as statements of accounts, circulars, sale bills, or other like matter, on which no postage has been paid, in any letter box established, approved, or accepted by the Postal Service for the receipt or delivery of mail matter on any mail route with intent to avoid payment of lawful postage thereon, shall for each such offense be fined not more than $300." [59] The italicized examples in the statute pertain to commercial speech, but the abstraction refers to "any" mailable matter. They just didn't happen to cite non-commercial examples. An oversight, of course.

Judge Rehnquist began by correctly analyzing the main issue:

However broad the postal power conferred by Art. I may be, it may not of course be exercised by Congress in a manner that abridges the freedom of speech or of the press protected by the First Amendment to the Constitution. In this case we are confronted with the appellees' assertion that the First Amendment guarantees them the right to deposit, without payment of postage, their notices, circulars, and flyers in letterboxes which have been accepted as authorized depositories of mail by the Postal Service. [60]

The Court noted that even though the examples given might lead one to conclude that this statute wouldn't effect political speech, one needed to read more carefully:

We reject appellees' additional assertion raised below that 18 U.S.C. &1671725; cannot be applied to them because it was intended to bar the deposit of commercial materials only. The statute on its face bars the deposit of "any mailable matter" (emphasis added) without proper postage, and . . . the legislative history makes clear that both Congress and the Postal Service understood the statute would apply to noncommercial as well as commercial materials [61]

Rehnquist then cited favorably the words of Judge Brandeis in Milwaukee Social Democratic Pub. Co. v. Burleson, 255 U.S. 407 (1921):

There, Justice Brandeis goes into a more detailed analysis of the relationship of the mails to the prohibitions of the First Amendment, and states: 'The Government might, of course, decline altogether to distribute newspapers; or it might decline to carry any at less than the cost of service; and it would not thereby abridge the freedom of the press, since to all papers other means of transportation would be left open.' Id. at 431 . . . It seems to us that that is just what the Postal Service here has done . . .

The "Government [could] decline . . . to distribute newspapers", but that wouldn't abridge the freedom of the press?!! Really? Let's hope that there aren't any other statutes on the books prohibiting private delivery of the mail, like, say, for example, 18 U.S.C. §1696.

After amazing us with this bizarre quote, Rehnquist goes on to analyze other "precedent":

[A] letterbox, once designated an 'authorized depository', does not at the same time undergo a transformation into a 'public forum' of some limited nature to which the First Amendment guarantees access to all comers. There is neither historical nor constitutional support for the characterization of a letterbox as a public forum. . . . it is difficult to accept appellees' assertion that because it may be somewhat more efficient to place their messages in letterboxes there is a First Amendment right to do so. . . . Indeed, it is difficult to conceive of any reason why this Court should treat a letterbox differently for First Amendment access purposes than it has in the past treated the military base in Greer v. Spock, 424 U.S. 828 . . ., the jail or prison in Adderley v. Florida, 385 U.S. 39 . . . and Jones v. North Carolina Prisoners' Union, 433 U.S. 119. . . ., or the advertising space made available in city rapid transit cars in Lehman v. City of Shaker Heights, 418 U.S. 298. . . . In all these cases, this Court recognized that the First Amendment does not guarantee access to property simply because it is owned or controlled by the government. In Greer v. Spock, supra, the Court cited approvingly from its earlier opinion in Adderley v. Florida, supra, wherein it explained that '[t]he State, no less than a private owner of property, has power to preserve the property under its control for the use to which it is lawfully dedicated.'" 424 U.S., at 836 . . . [62]

Yes, it's hard to imagine why the Supreme Court would treat a homeowner's mailbox as different from a "jail", "prison", or "military base". In a dissent, Judge Marshall pondered the significance of this decision:

I remain troubled by the Court's effort to transform the letterboxes entirely into components of the governmental enterprise despite their private ownership. Under the Court's reasoning, the Postal Service could decline to deliver mail unless the recipients agreed to open their doors to the letter carrier - and then the doorway, or even the room inside could fall within Postal Service control. . . . The brute force of the criminal sanction and other powers of the Government, I believe, may be deployed to restrict free expression only with greater justification. [63]

How about "no" justification? (Just a suggestion). Judge Stevens dissented:

The mailbox is private property; it is not a public forum to which the owner must grant access. If the owner does not want to receive any written communications other than stamped mail, he should be permitted to post the equivalent of a "no trespassing" sign on his mailbox. A statute that protects his privacy by prohibiting unsolicited and unwanted deposits on his property would surely be valid. The Court, however, upholds a statute that interferes with the owner's receipt of information that he may want to receive. If the owner welcomes messages from his neighbors, from the local community organization, or even from the newly arrived entrepreneur passing out free coupons, it is presumptively unreasonable to interfere with his ability to receive such communications. The nationwide criminal statute at issue here deprives millions of homeowners of the legal right to make a simple decision affecting their ability to receive communications from others.

Mailboxes cluttered with large quantities of written matter would impede the efficient performance of the mail carrier's duties. Sorting through papers for mail to be picked up or having no space in which to leave mail that should be delivered can unquestionably consume valuable time . . . [but] to the extent that the law prevents mailbox clutter, it also impedes the delivery of written messages that would otherwise take place. [64]

Note that the issue isn't restricted to "clutter", but also political speech! The First Amendment prevents Congress from regulating "clutter", but there's nothing in the First Amendment that says clutter is a necessity: Florida can regulate mailbox access, as can Texas. If you want to receive all mail sent to you, move to Texas. If you want to avoid clutter, move to Florida. The idea that States have the authority to create this legislation under the Tenth Amendment has gone virtually unmentioned.


Metromedia, Inc. v. City of San Diego, 453 U.S. 490 (1981)
On the face of it, this looks like a "liberal" decision. In this case, the Court strikes down a San Diego ordinance limiting the contents of billboards to commericial messages and a particular class of non-commercial messages; according to the Court, an ordinance can ban all billboards if it wants to, but cannot discriminate between commercial and non-commercial messages, and then allow only non-commercial messages.

Well, the Court strikes down a municipal ordinance under an incorporated First Amendment rationale. Many legal scholars see this case as a "victory" for the First Amendment. It's not - it's a victory for the Tenth Amendment. Even so, once you read the "fine print", you find what Judge Rehnquist referred to as a "virtual Tower of Babel" from which "no definitive principles can be drawn," [65] with many anti-First Amendment pronouncements. Thus, even those decisions that to the undiscriminating eye seem to follow the non-watered-down incorporation doctrine need to be fine-tooth-combed for the exceptions and qualifications that can be used against the real First Amendment in subsequent decisions.

Our first clue as to the meaning of this decision under the surface will be given to us by the Court:

This Court has often faced the problem of applying the broad principles of the First Amendment to unique forums of expression. See, e.g., Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530 . . . (billing envelope inserts); Carey v. Brown, 447 U.S. 455 . . . (picketing in residential areas); Schaumburg v. Citizens for a Better Environment, 444 U.S. 620 . . . (door-to-door and on-street solicitation); Greer v. Spock, 424 U.S. 828 . . . (Army bases); Erznoznik v. City of Jacksonville, 422 U.S. 205 . . . (outdoor movie theaters); Lehman v. City of Shaker Heights, 418 U.S. 298 . . . (advertising space within city-owned transit system). Even a cursory reading of these opinions reveals that at times First Amendment values must yield to other societal interests. These cases support the cogency of Justice Jackson's remark in Kovacs v. Cooper, 336 U.S. 77, 97 . . . (1949): Each method of communicating ideas is 'a law unto itself' and that law must reflect the 'differing natures, values, abuses and dangers' of each method. We deal here with the law of billboards. [66]

The problem for the Court is that "even a cursory reading" of the First Amendment reveals that at all times First Amendment values need not "yield to other societal interests", (since this is supposedly an incorporation case, not "watered-down"). When the Supreme Court states that "[e]ach method of communicating ideas is a law unto itself", what they're really saying is that each decision of the Supreme Court holding this view is a "law unto itself", since there is no such language in the First Amendment.

In case you were wondering why the Framers didn't give lawmaking power to the Court, this might be a clue. But let us proceed further.

The Court goes on to say that "it has been necessary for the courts to reconcile the government's regulatory interests with the individual's right to expression", [67] though the First Amendment plainly states that the individual's right to be free of Federal interference with "expression" plainly supersedes any Congressional (and therefore State governments [via incorporation]) regulatory interests. Furthermore, the Court goes on to say that it will "continue to observe the distinction between commercial and noncommercial speech, indicating that the former could be forbidden and regulated in situations where the latter could not be" [68] , even though "the" distinction they "observe" appears nowhere in the First Amendment, and quite without regard to their opinions elsewhere that noncommercial speech could be regulated in a way that commercial speech was not; for example, Lehman.

I know, I know, your eyes are starting to glaze over. I know the feeling. Go ahead, rub your eyes, put some caffeine in your blood stream. I'll be here when you get back.

(Pause for coffee break)

One reason that this distinction between commercial speech and its counterpart would not be in law is the difficulty of distinguishing between the two "types". As Judge Brennan noted,

I would be unhappy to see city officials dealing with the following series of billboards and deciding which ones to permit: the first billboard contains the message 'Visit Joe's Ice Cream Shoppe'; the second, 'Joe's Ice Cream Shoppe uses only the highest quality dairy products'; the third, 'Because Joe thinks that dairy products are good for you, please shop at Joe's Shoppe'; and the fourth, 'Joe says to support dairy price supports; they mean lower prices for you at his Shoppe.' Or how about some San Diego Padres baseball fans - with no connection to the team - who together rent a billboard and communicate the message 'Support the San Diego Padres, a great baseball team.' May the city decide that a United Automobile Workers billboard with the message 'Be a patriot - do not buy Japanese-manufactured cars' is 'commercial' and therefore forbid it? What if the same sign is placed by Chrysler? [69]

The Court ignores this policy problem, and continues, stating that "the difference between commercial . . . advertising and ideological communication permits regulation of the former 'that the First Amendment would not tolerate with respect to the latter.'" [70] Once again, we must note that the First Amendment does not tolerate any such distinction; moreover, if it did, why wasn't this reasoning used in the Lehman decision? The Court also states, ignoring the "captive audience" exception to the First Amendment it formerly "recognized", that "[t]he Constitution . . . accords a lesser protection to commercial speech than to other constitutionally guaranteed expression." [71]

Where in the Constitution do they find that wording? It's not in my copy - I must be working off an obsolete version. Yes, it has to be obsolete, because on page 507, the Court cites a "four-part test" for determining the First Amendment "validity of government restrictions on commercial speech", even though the First Amendment, in the version I own, has only a "three-part" test:

1) Is the directive a law?

2) Did Congress make the law?

3) Does the law abridge the freedom of speech or press?

"No, that's not it", says the Court. "That's the 1791 edition". Since 1791, the First Amendment has been revised to account for changing times. Here's their new, improved version as it relates to commercial speech:

(1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading. A restriction on otherwise protected commercial speech is valid only if it

(2) seeks to implement a substantial governmental interest,

(3) directly advances that interest, and

(4) reaches no further than necessary to accomplish the given objective. [72]

Well, if that's the new version, why can't I buy a copy of the Constitution that contains it? More importantly, why wasn't this contemporary version ratified by 3/4 of the State Legislatures as required under Article V? After all, that's the Constitutional requirement for constitutional amendments - isn't it?

(Calls Supreme Court, talks, hangs up)

Oh, no, that's the "old version" of Article V, which has long since been replaced in the same manner as the First Amendment and all the other Articles of the Constitution have been. No wonder I was confused! Now everything is becoming a lot clearer!

The Court then goes on to a line of reasoning that Harry Lehman could have used seven years earlier:

The fact that the city may value commercial messages relating to onsite goods and services more than it values commercial communications relating to offsite goods and services does not justify prohibiting an occupant from displaying its own ideas or those of others

As indicated above, our recent commercial speech cases have consistently accorded noncommercial speech a greater degree of protection than commercial speech. San Diego effectively inverts this judgment, by affording a greater degree of protection to commercial than to noncommercial speech. . . . the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages. [73]

Hey, this looks like progress! On the face of it, it would appear that the Court is going to overrule the Lehman decision. In that case, as you'll recall, Shaker Heights concluded that "the communication of commercial information . . . is of greater value than the communication of noncommercial messages", since it allowed tobacco and liquor advertisements, but not Harry Lehman's non-commercial political ad. According to the Court, a city "may not" conclude this.

Well, it might seem they will overrule Lehman, but were you aware that the Lehman case is the opposite of this one? It is!

[T]his case presents the opposite situation from that in Lehman v. City of Shaker Heights, 418 U.S. 298 . . . and Greer v. Spock, 424 U.S. 828 . . . . In both of those cases a government agency had chosen to prohibit from a certain forum speech relating to political campaigns, while other kinds of speech were permitted. In both cases this Court upheld the prohibition, but both cases turned on unique fact situations involving government-created forums and have no application here [74]

Opposite? From the standpoint of government regulation of a private concern it looks exactly the same to me, but to the Court, it is "opposite", since in the Lehman case, the forum was a "city" forum (a car card), and in the Metromedia case, the forum is a "private" forum (a billboard), even though in both cases the space on which the advertising to appear in question was handled by private entities (in both cases, Metromedia, Inc.), and the regulation was by the city (Shaker Heights in the first, San Diego in the second)!

This is a textbook example of one of the Court's master techniques for preserving inconsistent decisions; since every case has a unique fact-pattern, all the Court has to say is that "the facts are different here, therefore that case doesn't apply". In so doing, the Court preserves its power to "pick and choose" from a "line" of cases to support any point of view they desire. In this manner, both A and not-A can be true, the ultimate in political power!

In a dissent, Judge Stevens did not agree with this "distinction":

[I]n Lehman . . . we upheld a municipal policy allowing commercial but not political advertising on city buses. I cannot agree with the plurality that Lehman "ha[s] no application here". . . . Although Lehman dealt with limited space leased by the city and this case deals with municipal regulation of privately leased space, the constitutional principle is the same . . . [75]

"Dissents", of course, are the judicially-authorized junkpiles where the Court frequently disposes of logical thought, so you don't need to see this point of view as legitimate.

Instead, let's examine "logic" Supreme-Court-style. Since Lehman was not overruled, both of the following two views are now the "law of the land", according to the Supreme Court:

LEHMAN: ban on noncommercial speech only okay

[T]he [Shaker Heights] managerial decision to limit car card space to innocuous and less controversial commercial and service oriented advertising does not rise to the dignity of a First Amendment violation. . . [76]

METROMEDIA: ban on noncommercial speech only not okay

Insofar as the city [San Diego] tolerates billboards at all, it cannot choose to limit their content to commercial messages; the city may not conclude that the communication of commercial information concerning goods and services connected with a particular site is of greater value than the communication of noncommercial messages. [77]

And so are these!

LEHMAN: government must prevent the spread of ideas

[T]he right of the commuters to be free from forced intrusions on their privacy precludes the city from transforming its vehicles of public transportation into forums for the dissemination of ideas . . . [78]

METROMEDIA: government must not prevent the spread of ideas

The fact that the city [San Diego] may value commercial messages relating to onsite goods and services more than it values commercial communications relating to offsite goods and services does not justify prohibiting an occupant from displaying its own ideas or those of others. . . . 'To allow a government the choice of permissible subjects for public debate would be to allow that government control over the search for political truth.' [79]

Bravo! . . . Bravo?

I hope you can see what's happening here. The Court is allowing opposite "rules" to remain on the books; depending on the case which comes before them, they can simply quote from one or the other, depending on how they want to rule. If the "opposition" cites a contradictory case (and they will!), all the Court need do is focus on one of the thousand facts on which the cases differ, and pronounce, triumphantly, that "that case has no application here".

Presto-chango, watch ze law disappear! Watch the Court pull a rabbit out of its hat, while it claims it is putting the rabbit back into its hat. No, it's not a "rabbit", it's a "hare". And that's not a "hat", it's a "cap". No, wait, it is a "rabbit" after all, but a "brown" rabbit, not a "white" rabbit, so it's "different". And it is a "hat" after all, but the hat has now gone "out-of-fashion". Or has it? It depends on the show, pre-dinner, during, or after. It keeps 'em coming back for more!

And will the average person have any knowledge about this Houdinizing of the Constitution? Only if they pay the price of admission, and wade through the "Tower of Babel" to find out, not on everyone's "A" list of fun ways to spend a weekend.

Well, if a city can't regulate billboards in this manner, we know that Congress cannot. After all, the Fourteenth Amendment may be considered to be "watered-down", but we know the First Amendment can't be. Congress cannot make laws that abridge speech. So something good will come out of this decision after all; the Court will proclaim the unconstitutionality of 23 U.S.C. §131!

The federal Highway Beautification Act of 1965, Pub.L. 89-285, 79 Stat. 1028, as amended, 23 U.S.C. §131 . . . requires that States eliminate billboards from areas adjacent to certain highways constructed with federal funds. The Federal Government also prohibits billboards on federal lands. 43 CFR §2921.0-6 (a) (1980). [80]

Surely unconstitutional, right? After all, this Federal legislation "requires" that States "eliminate billboards" from certain areas - we know that's an abridgment of speech. Also, we find that the billboards are prohibited entirely on "federal lands" - that's a clear abridgment of speech too. And indeed, towards the end its decision, the Court states that "[t]here can be no question that a prohibition on the erection of billboards infringes freedom of speech . . ." [81]

That settles it then - what an excellent opportunity for the Court to uphold the First Amendment! Why let the Federal Government do what San Diego can't? The Court will declare unconstitutional 23 U.S.C. §131!

[W]e need not reach any decision in this case as to the constitutionality of the federal Highway Beautification Act of 1965. That Act, like the San Diego ordinance, permits on-site commercial billboards in areas in which it does not permit billboards with noncommercial messages. 23 U.S.C. §131 (c) (1976 ed., Supp.III). However, unlike the San Diego ordinance, which prohibits billboards conveying noncommercial messages throughout the city, the federal law does not contain a total prohibition of such billboards in areas adjacent to the interstate and primary highway systems. [It doesn't need to, to be unconstitutional - ANY prohibition by Congress of billboards is unconstitutional with respect to the First Amendment -- BK].As far as the Federal Government is concerned, such billboards are permitted adjacent to the highways in areas zoned industrial or commercial under state law or in unzoned commercial or industrial areas. 23 U.S.C. §131 (d). [Irrelevant. Furthermore, the Federal Government DOES "totally prohibit" billboards on Federal land, a fact he doesn't cite here, for obvious reasons -- BK] Regulation of billboards in those areas is left primarily to the States. For this reason, the decision today does not determine the constitutionality of the federal statute. Whether, in fact, the distinction is constitutionally significant can only be determined on the basis of a record establishing the actual effect of the Act on billboards conveying noncommercial messages. [82]

Puzzled? That's because you haven't adopted Court-think. Let Judge Stevens explain it for you:

The unequivocal language of the First Amendment prohibits any law 'abridging the freedom of speech.' That language could surely be read to foreclose any law reducing the quantity of communication within a jurisdiction. I am convinced, however, that such a reading would be incorrect. My conviction is supported by a hypothetical example, by the Court's prior cases, and by an appraisal of the healthy character of the communications market [83]

Everything clear now?


Perry Education Assn. v. Perry Local Educ. Assn., 460 U.S. 37 (1983)
In this case, the Court rules that one class of citizens has a right of access to a government-maintained channel of communication, while another class does not, a classic case of "content-based" regulation of speech, supposedly a real "no-no". To the Court, however, this is a "yes-yes". Judge White explains the issue:

A collective-bargaining agreement with the Board of Education provided that Perry Education Association, but no other union, would have access to the interschool mail system and teacher mailboxes in the Perry Township schools. The issue in this case is whether the denial of similar access to the Perry Local Educators' Association, a rival teacher group, violates the First and Fourteenth Amendments [84]

Here comes that bug again. Why is the Court, supposedly expert in Constitutional law, constantly misanalyzing the First Amendment? This is not a First Amendment case!

One answer is that in the process of misanalyzing this "cornerstone of democracy", they give themselves permission to misanalyze in the future, to re-define the First Amendment as meaning something it does not; after a few hundred repetitions of this misanalysis, we begin to believe that the First Amendment says something it never said to begin with.

Well, we know this denial of access to an opposing union doesn't violate the First Amendment. If anything, it violates the Fourteenth Amendment (depending on the status of incorporation). However, the Court's citation of the absolute First Amendment (to be incorporated in the Fourteenth as written) indicates how this case should be decided - the denial of access is unconstitutional, assuming that there is a "law" involved.

The real issue in this case is, is a "collective-bargaining agreement" a "law"? The Court must think there is a "law" involved, since they cite the two Amendments, which refer only to laws.

The Court's final answer is this, and strap yourselves in:

The "agreement", not a law, may not be considered "legislative action"; however, the "agreement" is "legislative action" with respect to the Fourteenth Amendment; however, this "legislative action" does not violate the Fourteenth Amendment.

Capeche?

There's a lot of octopus ink coming up - put on your goggles! Those of you without goggles and whose eyes are starting to form cataracts may want to skip over the following discussion to the next case.

Here are the facts as reported by the Court:

The Metropolitan School District of Perry Township, Ind., operates a public school system of 13 separate schools. Each school building contains a set of mailboxes for the teachers. Interschool delivery by school employees permits messages to be delivered rapidly to teachers in the district. The primary function of this internal mail system is to transmit official messages among the teachers and between the teachers and the school administration. In addition, teachers use the system to send personal messages and individual school building principals have allowed delivery of messages from various private organizations. . . . Local parochial schools, church groups, YMCAs, and Cub Scout units have used the system. [85]

So, the School District has opened the channel to other organizations, even local parochial schools and church groups. That was nice of them.

This raises an interesting side issue. In a footnote, the Court tells us that the Post Office focused on this side issue in a brief filed with the court:

The United States Postal Service . . . suggests that the interschool delivery of material to teachers at various schools in the district violates the Private Express statutes, 18 U.S.C. §§1693-1699 (1976) and 39 U.S.C. §§601-606 (1976), which generally prohibit the carriage of letters over postal routes without payment of postage. We agree with the Postal Service that this question does not directly bear on the issues before the Court in this case. Accordingly, we express no opinion on whether the mail delivery practices involved here comply with the Private Express statute or other Postal Service regulations [86]

Well, if the "question does not directly bear on the issues", then why would the Postal Service take the trouble to notify the court that "the interschool delivery of material to teachers at various schools in the district violates the Private Express statutes"? In refusing to express an opinion, and in refusing to state that the statutes in question are unconstitutional (they are), the Court leaves open the door for future regulation of speech, in a case where the question does "directly bear". Another opportunity to uphold the real First Amendment squandered!

Back to the facts as reported by the Court. We are told that in 1977 an election was held between the two unions, and that the Perry Education Association (PEA) beat the Perry Local Educators' Association (PLEA) in that election: [87]

Following the election, PEA and the school district negotiated a labor contract in which the school board gave PEA 'access to teachers' mailboxes in which to insert material' and the right to use the interschool mail delivery system to the extent that the school district incurred no extra expense by such use. The labor agreement noted that these access rights were being accorded to PEA 'acting as the representative of the teachers' and went on to stipulate that these access rights shall not be granted to any other 'school employee organization' - a term of art defined by Indiana law to mean "any organization which has school employees as members and one of whose primary purposes is representing school employees in dealing with their employer.' [88]

Theoretically, this contract was illegal under an Indiana Statute which provided that it is an unfair labor practice under state law for a school employer to "dominate, interfere or assist in the formation or administration of any school employer organization or contribute financial or other support to it." [89] However, the Indiana Education Employment Relations Board held that a school employer could contractually exclude a minority union from organizational activities which take place on school property and could deny the rival union "nearly all organizational conveniences" [90] , including, apparently, the right to use the interschool mail delivery system. So much for laws against "unfair labor practice[s]".

Thus, this case points out a potentially dangerous "loophole" in the Fourteenth Amendment. The Constitution explicitly gives to Congress the exclusive power to make Federal legislation; at the State level, however, the only Constitutional provision that could be seen to prevent a State from delegating its legislative authority is Article IV, Section IV, which provides that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government". While it ought to be clear that legislation by an unelected body is anti-Republican in character (since the essence of a Republic is that legislation is made by elected [and thus accountable] officals), some will argue against this viewpoint - and who's going to stop them?

This would mean that the "protection" of the Fourteenth Amendment could be nullified by allowing the delegation of State legislative power to an unelected body - since this contract is not "State action", any Fourteenth Amendment prohibitions on State legislative action could be evaded.

Luckily, the Court seems to want to come to our rescue, and not allow this subterfuge to happen:

We initially address the issue of our appellate jurisdiction over this case. PEA submits that its appeal is proper under 28 U.S.C. §1254 (2) (1976), which grants us appellate jurisdiction over cases in the federal courts of appeals in which a state statute has been held repugnant to the Constitution, treaties, or laws of the United States. We disagree. No state statute or other legislative action has been invalidated by the Court of Appeals. [91]

Oops - sorry, I was wrong. Since the Court rejects the idea that a contract is "State action", it simultaneously rejects the idea that the Fourteenth Amendment will apply - or does it?

PEA suggests . . . that because a collective bargaining contract has 'continuing force and [is] intended to be observed and applied in the future,' it is in essence a legislative act, and, therefore a state statute within the meaning of §1254 (2). . . . In support of its position, PEA points to our decisions treating local ordinances and school board orders as state statutes for §1254 (2) purposes, Doran v. Salem Inn, Inc., 422 U.S. 922 . . . ; Illinois ex rel. McCollum v. Bd. of Education, 333 U.S. 203 . . . ; Hamilton v. Regents of Univ. of Cal., 293 U.S. 245. . . . In these cases, however, legislative action was involved - the unilateral promulgation of a rule with continuing legal effect. Unlike a local ordinance or even a school board rule, a collective bargaining agreement is not unilaterally adopted by a lawmaking body; it emerges from negotiation and requires the approval of both parties to the agreement. Not every government action which has the effect of law is legislative action [92]

What does this new language mean? It means it is paving the way for a future "about-face" time. It means that some "government action[s] which [have] the effect of law" will be seen as violating Constitutional prohibitions; others won't. In this manner, the Court can allow those laws to proceed which it wants to proceed, by framing certain "legislative action" as mere "government action" to which the Fourteenth Amendment does not apply. But the Court won't see it that way at this time.

Well, if the "collective bargaining agreement" is not "legislative action", then you would think at this point the case would be over, since the Fourteenth Amendment is now irrelevant. But surprise, surprise, the Court does grant jurisdiction after all, through a writ of certioriari, the usual way cases get to the Courts. [93]

Why this about-face? Because if the Court didn't have jurisdiction, it couldn't reverse the Court of Appeals decision which gave the rival union access to the mail delivery system - and they want to do that. But they don't want to saddle themselves with the consequences that would result from declaring that a "contract" is legislative action. They want to have their cake and eat it too, and, since that's one of the prerogatives of sitting on the Supreme Court, we're going to get their unjust desserts.

Now, you might think that they would overturn the Court of Appeals decision on the grounds that, since no legislative action was involved here, there was no Constitutional question presented, and the Court of Appeals misapplied the Fourteenth Amendment. They don't do that!

Better grab another cup of coffee. You're about to find out why the First Amendment got sucked into this case:

The primary question presented is whether the First Amendment, applicable to the states by virtue of the Fourteenth Amendment, is violated when a union that has been elected by public school teachers as their exclusive bargaining representative is granted access to certain means of communication, while such access is denied to a rival union. There is no question that constitutional interests are implicated by denying PLEA use of the interschool mail system. 'It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.' Tinker v. Des Moines School District, 393 U.S. 503, 506 . . . The First Amendment's guarantee of free speech applies to teacher's mailboxes as surely as it does elsewhere within the school, Tinker v. Des Moines School District, supra, and on sidewalks outside, Police Department of Chicago v. Mosely, 408 U.S. 92 . . . . But this is not to say that the First Amendment requires equivalent access to all parts of a school building in which some form of communicative activity occurs. 'Nowhere [have we] suggested that students, teachers, or anyone else has an absolute constitutional right to use all parts of a school building or its immediate environs for . . . unlimited expressive purposes.' Grayned v. City of Rockford, 408 U.S. 104, 117-118 . . . (1972). The existence of a right of access to public property and the standard by which limitations upon such a right must be evaluated differ depending on the character of the property at issue [94]

But how can "constitutional interests [be] implicated" if there is no "legislative action"? Remember, the Court previously rejected the idea that the contract was "legislative action", so the Fourteenth Amendment did not apply. Now they want to do yet another about-face, and say that the Fourteenth Amendment does apply after all.

This is bad enough, but now the Court now wants to go a step further, and continue its policy of re-defining the First Amendment to say what it does not. Once again, if the First Amendment is "applicable to the states by virtue of the Fourteenth Amendment", and if the Fourteenth Amendment is relevant here, that should settle the matter. If the "State" passes a "law" violating a "right", the right must be upheld.

But which First Amendment right was incorporated? According to the Court, we can't say the "First Amendment requires equivalent access" because "nowhere" has the Court "suggested" that people have an "absolute constitutional right" to forums where speech takes place! Note that this contradicts the text of their own new-and-improved version of the First Amendment (cribbed from the web of public mythology). According to the Court,"[t]he First Amendment's guarantee of free speech applies to teacher's mailboxes as surely as it does elsewhere within the school". In the same breath, however, the Court says that this "guarantee", unlike the guarantee you imagined would flow from this new version, does not require "equivalent access"! Caveat emptor.

This recasting of the idea of a "guarantee" (and loss of protection from real First Amendment text) could only come about if the First Amendment has been re-defined from "the First Amendment to the Constitution" to the "suggestions" of the Supreme Court ("nowhere [have we] suggested").

Here in 1983, we're not supposed to look to the Constitution anymore; rather, to the opinions of Supreme Court Judges. And if the Brethren don't "suggest" the right exists, then it doesn't, regardless of language to the contrary which (in the same breath) they claim to want to uphold. It's called "paying homage" to our ancestors - or is that "lip-service" to our ancestors?

The Court then tells us that a State can regulate a "content-based exclusion", (but does not tell us why this would be relevant, since there is supposedly no State legislative action here):

[T]he rights of the state to limit expressive activity are sharply circumscribed. At one end of the spectrum are streets and parks . . . In these quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce a content-based exclusion it must show that its regulation is necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end. Carey v. Brown, 447 U.S. 455 . . . . The state may also enforce regulations of the time, place, and manner of expression which are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. United States Postal Service v. Council of Greenburgh, 453 U.S. 114 . . . ; Consolidated Edison Co. v. Public Service Comm'n, 447 U.S. 530. . . . Cantwell v. Connecticut, 310 U.S. 296 . . . ; Schneider v. State of New Jersey, 308 U.S. 147 . . . . [95]

Now we can see why the First Amendment got sucked into this case: it's an opportunity to add to the nodes of the new-and-improved version! Here we have more changes to the First Amendment flow chart: anti-speech laws are constitutional if they serve a "compelling state interest" and are "narrowly drawn". Does this language appear in the Constitution? No, but it does appear in the Court's prior cases, which they cite. This is what some people refer to as "bootstrapping"; if a Court can create law simply by citing its own cases, all it needs to do to author a new law is cite old cases which may or may not apply, and then use those cases as the basis for the new "law". Of course, this isn't "law" - it's power.

In a dissent, Judge Brennan tacitly assumes that a need to reach a correct decision in this case gives him a license to lapse into wish fulfillment:

We have never held that government may allow discussion of a subject and then discriminate among viewpoints on that particular topic, even if the government for certain reasons may entirely exclude discussion of the subject from the forum. . . . Viewpoint discrimination is censorship in its purest form and government regulation that discriminates among viewpoints threatens the continued vitality of 'free speech.' . . . In short, the exclusive access policy discriminates against the respondents based on their viewpoint. The board has agreed to amplify the speech of the petitioner, while repressing the speech of the respondents based on the respondents' point of view. This sort of discrimination amounts to censorship and infringes the First Amendment rights of the respondents. [96]

Better make that "almost" never.


City Council of Los Angeles v. Vincent, 466 U.S. 789 (1984)
Here we go again! In this case, the Court holds that a municipal ordinance prohibiting the posting of signs on public property was not unconstitutional (reversing a Court of Appeals decision which had in turn reversed a District Court decision upholding the ordinance). Consequently, yet another political candidate, like Harry Lehman, does not have the right to advertise his candidacy in a particular manner, quite without regard to the clear directive of the Tenth Amendment that a power not exercised by the State flows to the "people" (and not a city). Judge Stevens delivers the opinion of the Court:

Section 28.04 of the Los Angeles Municipal Code prohibits the posting of signs on public property. The question presented is whether that prohibition abridges appellees' freedom of speech within the meaning of the First Amendment [97]

By now you should know that this is not the question presented. The Court, in a footnote, tells us why they think this is an issue for the city:

The First Amendment provides: 'Congress shall make no law . . . abridging the freedom of speech, or of the press . . .' Under the Fourteenth Amendment, city ordinances are within the scope of this limitation on governmental authority. Lovell v. Griffin, 303 U.S. 444 . . . .

Note, the "Fourteenth" Amendment, not the Tenth. But let's not waste time arguing over small details like what Amendment covers this issue. Let's see what the ordinance says:

Sec. 28.04. Hand-bill, signs-public places and objects: (a) No person shall paint, mark or write on, or post or otherwise affix, any hand-bill or sign to or upon any sidewalk, crosswalk, curb, curbstone, street lamp post, hydrant, tree, shrub, tree stake or guard, railroad trestle, electric light or power or telephone or telegraph or trolley wire pole, or wire appurtenance thereof or upon any fixture of the fire alarm or police telegraph system or upon any lighting system, public bridge, drinking fountain, life buoy, life preserver, life boat or other life saving equipment, street sign or traffic sign . . . (c) Any hand-bill or sign found posted, or otherwise affixed upon any public property contrary to the provisions of this section may be removed by the Police Department or the Department of Public Works. The person responsible for any such illegal posting shall be liable for the cost incurred in the removal thereof and the Department of Public Works is authorized to effect the collection of said cost. (d) Nothing in this section shall apply to the installation of a metal plaque or plate or individual letters or figures in a sidewalk commemorating an historical, cultural, or artistic event, location or personality for which the Board of Public Works, with the approval of the Council, has granted a written permit. [98]

Now let's look at the facts as reported by the Court:

In March 1979, Roland Vincent was a candidate for election to the Los Angeles City Council. A group of his supporters known as Taxpayers for Vincent ('Taxpayers') entered into a contract with a political sign service company known as Candidates Outdoor Graphics Service ('COGS') to fabricate and post signs with Vincent's name on them. COGS produced 15 x 44 inch cardboard signs and attached them to utility poles at various locations by draping them over cross-arms which support the poles and stapling the cardboard together at the bottom. The signs' message was: 'Roland Vincent - City Council.'

Acting under the authority of §28.04 of the Municipal Code, employees of the City's Bureau of Street Maintenance routinely removed all posters attached to utility poles and similar objects covered by the ordinance, including the COGS signs. [99]

Three reasons were given to uphold this ordinance: traffic safety, safety to workmen who had to remove signs, and finally, to preserve the "beauty" of Los Angeles:

[T]he District Court found that the large number of illegally posted signs 'constitute a clutter and visual blight.' With specific reference to the posting of the COGS signs on utility pole crosswires, the District Court found that such posting 'would add somewhat to the blight and inevitably would encourage greatly increased posting in other unauthorized and unsightly places. . . .' In its conclusions of law the District Court characterized the esthetic and economic interests in improving the beauty of the City 'by eliminating clutter and visual blight' as 'legitimate and compelling.' [100]

The Court of Appeals disagreed that these reasons were legitimate, but the Supreme Court reversed the decision of the Court of Appeals, with this reasoning:

The ordinance prohibits appellees [Vincent] from communicating with the public in a certain manner, and presumably diminishes the total quantity of their communication in the City. The application of the ordinance to appellees' expressive activities surely raises the question whether the ordinance abridges their 'freedom of speech' within the meaning of the First Amendment . . . 'But to say the ordinance presents a First Amendment issue is not necessarily to say that it constitutes a First Amendment violation.' Metromedia, Inc. v. San Diego, 453 U.S. 490, 561 . . . . It has been clear since this Court's earliest decisions concerning the freedom of speech that the state may sometimes curtail speech when necessary to advance a significant and legitimate state interest. Schenck v. United States, 249 U.S. 47 . . . .

[W]e shall assume that the ordinance diminishes the total quantity of their speech. . . .

In United States v. O'Brien, 391 U.S. 367. . ., the Court set forth the appropriate framework for reviewing a viewpoint neutral regulation of this kind: '[A] government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.' Id., at 377 . . .

It is well settled that the state may legitimately exercise its police powers to advance esthetic values. . . .

[M]unicipalities have a weighty, essentially esthetic interest in proscribing intrusive and unpleasant formats for expression

[A] city has the power to regulate visual clutter in much the same manner that it can regulate any other feature of its environment: 'Pollution is not limited to the air we breathe and the water we drink; it can equally offend the eye and ear.' [Metromedia, 453 U.S.] at 561 . . .

We reaffirm the conclusion of the majority in Metromedia. The problem addressed by this ordinance - the visual assault on the citizens of Los Angeles presented by an accumulation of signs posted on public property - constitutes a significant substantive evil within the City's power to prohibit. '[T]he city's interest in attempting to preserve [or improve] the quality of urban life is one that must be accorded high respect.' Young v. American Mini Theatres, 427 U.S. 50, 71 . . . [101]

Like any good court, the Court paves the way for its predecessors to regulate speech in the future by creating a new node in the flow chart: yesterday, "available alternative avenues of communication", today, a "captive audience", tomorrow, "commercial speech" - and there's always the grab-bag of the "compelling state interest", if it can't find a more apt tool in its toolchest.

In this decision, the Court ratifies the existence of yet another node, and strikes a blow for environmentalism, by declaring its disgust with the notion of a "visual assault on the citizens of Los Angeles presented by an accumulation of signs".

One day, presumably, they may conclude that the presence of "would-be" pamphleteers on our street sidewalks would likewise constitute a "visual assault" on city citizens. So far, the Court's environmental consciousness has not extended quite so far. But who knows? This is, after all, a "conservative" Court.

Maybe one day the Court will have more "liberals" with a heightened sense of beauty.


U.S. v. Stanley, 483 U.S. 669 (1987)
This case, a Bicentennial decision, was decided on June 25, 1987. 200 years earlier to the day, on June 25, 1787, Charles Cotesworth Pinckney, a South Carolina Slaveowner, uttered these words to his fellow Framers at the Constitutional Convention in Philadelphia:

Our true situation appears to me to be this. - a new extensive Country containing within itself the materials for forming a Government capable of extending to its citizens all the blessings of civil & religious liberty - capable of making them happy at home. This is the great end of Republican establishments. [102]

Of course, five months after the Constitution was signed, Pinckney also said that "the flat, swampy situation of our country obliges us to cultivate our lands with negroes," [102a] but let's gloss over that, and see how the Supreme Court celebrated this Bicentennial moment. Technically speaking, this really isn't a "First Amendment" case - at least, it wasn't pled as such. But you ought to hear about it anyway, as an indication of which way the wind is blowing.

In February 1958, James B. Stanley, a master sergeant in the Army stationed in Kentucky, volunteered to participate in a program ostensibly designed to test the effectiveness of protective clothing against chemical warfare. Stanley was sent to Aberdeen proving grounds in Maryland, where he was secretly administered doses of lysergic acid diethylamide (LSD).

Subsequent to this exposure, Stanley suffered from hallucinations and periods of incoherence and memory loss, and would on occasion "awake from sleep at night and, without reason, violently beat his wife and children, later being unable to recall the entire incident". [103] He was discharged from the Army in 1969. One year later, his marriage dissolved because of personality changes wrought by the LSD.

What happened to Stanley was no mere aberration. As Judge Brennan noted in a footnote to this decision, "[b]etween 1945 and 1963, an estimated 250,000 military personnel were exposed to large doses of radiation while engaged in maneuvers designed to determine the effectiveness of combat troops in nuclear battlefield conditions." [104]

Believe it or not, Stanley was "privileged" to find out about this dosage. In a 1959 Staff Study, the United States Army Intelligence Corps discussed its policy of covert administration of LSD to soldiers, and indicated that the way to avoid legal liability was to cover up these experiments:

It was always a tenet of Army Intelligence that the basic American principle of dignity and welfare of the individual will not be violated. . . . In intelligence, the stakes involved and the interests of national security may permit a more tolerant interpretation of moral-ethical values, but not legal limits, through necessity. . . . Any claim against the US Government for alleged injury due to EA 1729 [LSD] must be legally shown to have been due to the material. Proper security and appropriate operational techniques can protect the fact of employment of EA 1729 [105]

The "intelligence" "community" wanted to conceal these activities because public knowledge of the "unethical and illicit activities would have serious repercussions in political and diplomatic circles and would be detrimental to the accomplishment of its mission." [106] Duh!

Fortunately, the worst-laid plans of mice and vipers often go astray.

In 1975, the Army notified Stanley for the first time that he had been given LSD. After an administrative claim for compensation was denied by the Army, Stanley filed suit under the Federal Tort Claims Act (FTCA), alleging negligence in the administration of the program.

The suit then began to wind its way through the system, and finally, 11 years later, on June 25, 1987, the Supreme Court reached its verdict: Stanley was not entitled to sue the government for his injuries! The Court made this decision even though the Constitution clearly states that a person has the right to federal protection from laws abridging speech (like Federal laws authorizing appropriations for programs that dose servicemen with the speech-abridging drug, LSD), a right to "just compensation" in the Fifth Amendment, a right to a jury trial in the Sixth Amendment, a right to be free from "cruel and unusual punishment" in the Eighth Amendment, and a right to "equal protection of the laws" and "due process of law" in the Fourteenth Amendment, as well as unenumerated, but very real rights, implied by the existence of the Ninth and Tenth Amendments. And it goes without saying that this decision goes against practically every conception of "natural rights" one might hold to.

How could the Court reach this decision in the light of so many compelling constitutional and humanistic arguments against it? Because the Supreme Court had earlier posited the Feres doctrine, in a case called Feres v. United States, 340 U.S. 135. In that case, the court held that there was no governmental FTCA liability for injuries to servicemen resulting from activity "incident to service". Stanley extended the scope of this abstraction to a new degree. That is to say, not only was "getting shot" a harm incident to service, but so was "getting dosed with LSD in an experimental program" (Note: what was done to Stanley could not likewise be done to prisoners: U.S. servicemen have yet to attain this exalted status, according to the Stanley decision).

Since the Court "applied" Feres as they did, this means that the Feres decision operated as an amendment to the Constitution, which had formerly "guaranteed" "equal protection", "due process", etc., etc. - "liberty and justice for all", as the Pledge of Allegiance goes. In a year when 225 million Americans were celebrating the 1787 Constitution, 5 of those Americans were seeking to undermine it. Unfortunately, those 5 happened to be sitting on the Supreme Court!

Judge Brennan (dissenting):

In experiments designed to test the effects of lysergic acid diethylamide (LSD), the Government of the United States treated thousands of its citizens as though they were laboratory animals, dosing them with this dangerous drug without their consent. One of the victims, James B. Stanley, seeks compensation from the Government officials who injured him. The Court holds that the Constitution provides him with no remedy, solely because his injuries were inflicted while he performed his duties in the Nation's armed forces. If our Constitution required this result, the Court's decision, though legally necessary, would expose a tragic flaw in that document [107]

Well put, though I hasten to add that not even animals should be treated "as though they were laboratory animals"! Indeed, the wholesale, factory-like use of sentient beings in experiments is one of this centuries' most astonishing and horrifying violations of the human spirit (the same spirit of liberty that guides us when we seek to protect the speech of others), and the same attitude that puts animals in labs is the same attitude that ultimately will lead to the dosage of people like Stanley. There's no need for me to quote the Biblical passage that applies here - you know it intuitively.

Judge O'Connor, in a partial dissent, said that "[n]o judicially crafted rule should insulate from liability the involuntary and unknowing human experimentation alleged to have occurred in this case." [108] But why would judges craft a rule insulating government from the edicts of the Constitution? She doesn't say, but ends with this, "[i]f this principle is violated the very least that society can do is to see that the victims are compensated, as best they can be, by the perpetrators. I am prepared to say that our Constitution's promise [109] of due process of law guarantees this much."

Softie! See what happens when you put a woman on the Court?


Lechmere, Inc. v. N.L.R.B, 112 S. Ct. 841 (1992)
The power to communicate information isn't threatened only by government, but also by "private" interests who, after all, are regulated by government, and who make political contributions to that government, and upon whom governmental benefits are conferred from time to time.

If access to public property is problematic, access to private property is even more problematic, in contradiction to the mythological First Amendment which indicates that you have the power to distribute any message to any person at any place. That's a significant issue, because efficient communication depends on access to where the people are, and frequently the people are on "private" property (property that can be confiscated by government if the "owners" do not pay their taxes) .

Mythological First Amendment aside, there is no right of access to private property granted under the 1791 version. Here, the Court holds (correctly) that an employer could display a sign on its doors that prohibited access by private parties; however, the Court did not declare unconstituitional 29 U.S.C. §158 (a) (1), which makes it an unfair labor practice for an employer "to interfere with, restrain, or coerce employees in the exercise of rights guaranteed in [29 U.S.C. §157]", a law which could conceivably abridge employer's speech by being used to bar the following (or similar) sign in some future case, which could be seen to "interfere" with employees' "rights":

On each door to the store Lechmere had posted a 6 in. by 8 in. sign reading: "TO THE PUBLIC. No Soliciting, Canvassing, Distribution of Literature or Trespassing by Non-Employees in or on Premises". . . . Lechmere consistently enforced this policy inside the store as well as on the parking lot (against, among others, the Salvation Army and the Girl Scouts). [110]

Note that private property rules (constitutional) do what government anti-speech rules (sometimes unconstitutional) do: operate as a license to stop the dissemination of information. But sometimes the baby gets thrown out with the bathwater. Here, a sign really intended to stop union activity nails groups like the Salvation Army and the Girl Scouts. It could also stop members of the American Legion, or even members of the Libertarian Party looking for enough signatures to get their candidate on the ballot and break the Democratic/Republican dominance of politics, parties whose laws effect the operation and taxes of the store in question! Needless to say, these rules stop any other political communication as well, though nothing in the Constitution prevents this state of affairs. As the National Labor Relations Board saw it,

Concluding that traffic on the highway made it unsafe for the union organizers to distribute leaflets from the right-of-way, and that contacts through the mails, on the streets, at employees' homes, and over the telephone would be ineffective, the Board ordered the company to allow the organizers to distribute literature on its parking lot and exterior walkways. [111]

The board also stated that "the union tried advertising in local newspapers; the Board said that this was not reasonably effective because it was expensive and might not reach the employees." [112] The Court rejected this line of reasoning, ruling against the union.

Still, while the court ruled against the union and for the store, they did not make a blanket exception, and did not say that Congress could not have the power to abridge employer's rights to put signs in their doors. Judge Thomas wrote the opinion:

As a rule, then, an employer cannot be compelled to allow distribution of union literature by nonemployee organizers on his property. As with many other rules, however, we recognized an exception. Where 'the location of a plant and the living quarters of the employees place the employees beyond the reach of reasonable union efforts to communicate with them' . . . employers' property rights may be 'required to yield to the extent needed to permit communication of information on the right to organize' . . . [113]

Maybe in the future they'll "recognize" other exceptions; maybe they won't. While this seems to be a victory for employers and private property owners in the short term, the Court did not state that the statute was unconstitutional, even though it could effect the store's ability to post signs in the future.

The net result is that, pragmatically, large groups of people can be prohibited by efficient access to the public by "private" parties, and that even those "private" parties themselves are susceptible to future regulation.


Int'l Society for Krishna Consciousness v. Lee, 91-1526 (1992)
All this analysis is giving me a headache. I'll let you practice on this one, and I'll just quote from the opinion here. See what you think.

In this case we consider whether an airport terminal operated by a public authority is a public forum and whether a regulation prohibiting solicitation in the interior of an airport terminal violates the First Amendment. . . .

The Port Authority has adopted a regulation forbidding within the terminals the repetitive solicitation of money or distribution of literature. The regulation states: '1. The following conduct is prohibited within the interior areas of buildings or structures at an air terminal if conducted by a person to or with passers-by in a continuous or repetitive manner: (a) The sale or distribution of any merchandise, including but not limited to jewelry, food stuffs, candles, flowers, badges and clothing. (b) The sale or distribution of flyers, brochures, pamphlets, books or any other printed or written material. (c) Solicitation and receipt of funds.' . . .

The regulation governs only the terminals; the Port Authority permits solicitation and distribution on the sidewalks outside the terminal buildings. . . .

It is uncontested that the solicitation at issue in this case is a form of speech protected under the First Amendment. Heffron v. International Society for Krishna Consciousness, Inc., 452 U. S. 640 (1981); . . . Riley v. National Federation of Blind of N.C., Inc., 487 U. S. 781, 788-789 (1988). But it is also well settled that the government need not permit all forms of speech on property that it owns and controls. United States Postal Service v. Council of Greenburgh Civic Assns., 453 U. S. 114, 129 (1981); Greer v. Spock, 424 U. S. 828 (1976). Where the government is acting as a proprietor, managing its internal operations, rather than acting as lawmaker with the power to regulate or license, its action will not be subjected to the heightened review to which its actions as a lawmaker may be subject. . . . Thus, we have upheld a ban on political advertisements in city operated transit vehicles, Lehman v. City of Shaker Heights, 418 U. S. 298 (1974), even though the city permitted other types of advertising on those vehicles. Similarly, we have permitted a school district to limit access to an internal mail system used to communicate with teachers employed by the district. Perry Education Ass'n v. Perry Local Educators' Ass'n, 460 U. S. 37 (1983). . .

We have on many prior occasions noted the disruptive effect that solicitation may have on business. Solicitation requires action by those who would respond: The individual solicited must decide whether or not to contribute (which itself might involve reading the solicitor's literature or hearing his pitch), and then, having decided to do so, reach for a wallet, search it for money, write a check, or produce a credit card. . . . Passengers who wish to avoid the solicitor may have to alter their path, slowing both themselves and those around them. The result is that the normal flow of traffic is impeded. . . .This is especially so in an airport, where air travelers, who are often weighted down by cumbersome baggage . . . may be hurrying to catch a plane or to arrange ground transportation. . . . Delays may be particularly costly in this setting, as a flight missed by only a few minutes can result in hours worth of subsequent inconvenience.

In addition, face-to-face solicitation presents risks of duress that are an appropriate target of regulation. The skillful, and unprincipled, solicitor can target the most vulnerable, including those accompanying children or those suffering physical impairment and who cannot easily avoid the solicitation. . . . The unsavory solicitor can also commit fraud through concealment of his affiliation or through deliberate efforts to shortchange those who agree to purchase. . . . Compounding this problem is the fact that, in an airport, the targets of such activity frequently are on tight schedules. This in turn makes such visitors unlikely to stop and formally complain to airport authorities. As a result, the airport faces considerable difficulty in achieving its legitimate interest in monitoring solicitation activity to assure that travelers are not interfered with unduly. . . .

The inconveniences to passengers and the burdens on Port Authority officials flowing from solicitation activity may seem small, but viewed against the fact that pedestrian congestion is one of the greatest problems facing the three terminals. . . the Port Authority could reasonably worry that even such incremental effects would prove quite disruptive. Moreover, the justification for the Rule should not be measured by the disorder that would result from granting an exemption solely to ISKCON. . . . For if petitioner is given access, so too must other groups. Obviously, there would be a much larger threat to the State's interest in crowd control if all other religious, nonreligious, and noncommercial organizations could likewise move freely. . . . As a result, we conclude that the solicitation ban is reasonable.


United States v. Edge Broadcasting, 92-486 (June 25, 1993)
Judge White delivered the opinion of the court:

In this case we must decide whether federal statutes that prohibit the broadcast of lottery advertising by a broadcaster licensed to a State that does not allow lotteries, while allowing such broadcasting by a broadcaster licensed to a State that sponsors a lottery, are, as applied to respondent, consistent with the First Amendment

If it takes them more than one second to decide this issue, we have a problem:

While lotteries have existed in this country since its founding, States have long viewed them as a hazard to their citizens and to the public interest, and have long engaged in legislative efforts to control this form of gambling. Congress has, since the early 19th century, sought to assist the States in controlling lotteries. See, e.g., Act of Mar. 2, 1827, 6, 4 Stat. 238; Act of July 27, 1868, 13, 15 Stat. 196; Act of June 8, 1872, 149, 17 Stat. 302. In 1876, Congress made it a crime to deposit in the mails any letters or circulars concerning lotteries, whether illegal or chartered by state legislatures. See Act of July 12, 1876, ch. 186, 2, 19 Stat. 90, codified at Rev. Stat. 3894 (2d ed. 1878). This Court rejected a challenge to the 1876 Act on First Amendment grounds in Ex parte Jackson, 96 U. S. 727 (1878). In response to the persistence of lotteries, particularly the Louisiana Lottery, Congress closed a loophole allowing the advertisement of lotteries in newspapers in the Anti-Lottery Act of 1890, ch. 908, 1, 26 Stat. 465, codified at Rev. Stat. 3894 (Supp. 2d ed. 1891), and this Court upheld that Act against a First Amendment challenge in Ex parte Rapier, 143 U. S. 110 (1892). When the Louisiana Lottery moved its operations to Honduras, Congress passed the Act of Mar. 2, 1895, 28 Stat. 963, 18 U. S. C. 1301, which outlawed the transportation of lottery tickets in interstate or foreign commerce. This Court upheld the constitutionality of that Act against a claim that it exceeded Congress' power under the Commerce Clause in Champion v. Ames (Lottery Case), 188 U.S. 321 (1903). This federal antilottery legislation remains in effect. See 18 U. S. C. 1301, 1302.

After the advent of broadcasting, Congress extended the federal lottery control scheme by prohibiting, in 316 of the Communications Act of 1934, 48 Stat. 1088, the broadcast of any advertisement of or information concerning any lottery, gift enterprise, or similar scheme. 18 U. S. C. 1304, as amended by the Charity Games Advertising Clarification Act of 1988, Pub. L. 100-625, 3(a)(4), 102 Stat. 3206. In 1975, Congress amended the statutory scheme to allow newspapers and broadcasters to advertise state-run lotteries if the newspaper is published in or the broadcast station is licensed to a State which conducts a state-run lottery. See 18 U. S. C. 1307 (1988 ed., Supp. III). This exemption was enacted to accommodate the operation of legally authorized State-run lotteries consistent with continued Federal protection to the policies of non-lottery States. S. Rep. No. 93-1404, p. 2 (1974). See also H. Rep. No. 93-1517, p. 5 (1974).

North Carolina does not sponsor a lottery, and participating in or advertising nonexempt raffles and lotteries is a crime under its statutes. N. C. Gen. Stat. 14-289 and 14-291 (1986 and Supp. 1992). Virginia, on the other hand, has chosen to legalize lotteries under a state monopoly and has entered the marketplace vigorously.

Respondent, Edge Broadcasting Corporation (Edge), owns and operates a radio station licensed by the Federal Communications Commission (FCC) to Elizabeth City, North Carolina. This station, known as Power 94, has the call letters WMYK-FM and broadcasts from Moyock, North Carolina, which is approximately three miles from the border between Virginia and North Carolina and considerably closer to Virginia than is Elizabeth City. Power 94 is one of 24 radio stations serving the Hampton Roads, Virginia, metropolitan area; 92.2% of its listening audience are Virginians; the rest, 7.8%, reside in the nine North Carolina counties served by Power 94. Because Edge is licensed to serve a North Carolina community, the federal statute prohibits it from broadcasting advertisements for the Virginia lottery. Edge derives 95% of its advertising revenue from Virginia sources, and claims that it has lost large sums of money from its inability to carry Virginia lottery advertisements.

Edge entered federal court in the Eastern District of Virginia, seeking a declaratory judgment that, as applied to it, 1304 and 1307, together with corresponding FCC regulations, violated the First Amendment to the Constitution and the Equal Protection Clause of the Fourteenth, as well as injunctive protection against the enforcement of those statutes and regulations.

The District Court . . . held . . . that the statutes, as applied to Edge . . . could not be constitutionally applied to Edge. A divided Court of Appeals. . . affirmed in all respects . . .

Because the court below declared a federal statute unconstitutional and applied reasoning that was questionable under our cases relating to the regulation of commercial speech, we granted certiorari. 506 U. S. ___ (1992). We reverse. . . .

We have no doubt that the statutes directly advanced the governmental interest at stake in this case. . . . Congress opted to support the antigambling policy of a State like North Carolina by forbidding stations in such a State from airing lottery advertising. At the same time it sought not to unduly interfere with the policy of a lottery sponsoring State such as Virginia. Virginia could advertise its lottery through radio and television stations licensed to Virginia locations, even if their signals reached deep into North Carolina. Congress surely knew that stations in one State could often be heard in another but expressly prevented each and every North Carolina station, including Edge, from carrying lottery ads. . . . This congressional policy of balancing the interests of lottery and nonlottery States is the substantial governmental interest that . . . the courts below did not fully appreciate. . . .

Looks like we have a problem!


Alexander v. United States, 91-1526 (June 28, 1993)
This is a "forfeiture of assets" case - but here, the assets are books:

Petitioner was in the so-called adult entertainment business for more than 30 years, selling pornographic magazines and sexual paraphernalia, showing sexually explicit movies, and eventually selling and renting videotapes of a similar nature. He received shipments of these materials at a warehouse in Minneapolis, Minnesota, where they were wrapped in plastic, priced, and boxed. He then sold his products through some 13 retail stores in several different Minnesota cities, generating millions of dollars in annual revenues. . . . As a basis for the obscenity and RICO convictions, the jury determined that four magazines and three videotapes were obscene. . . . The court ultimately ordered petitioner to forfeit his wholesale and retail businesses (including all the assets of those businesses) [including all the other books not judged obscene by the jury -- BK] and almost $9 million in moneys acquired through racketeering activity.

Judge Kennedy says it better than I could:

The Court today embraces a rule that would find no affront to the First Amendment in the Government's destruction of a book and film business and its entire inventory of legitimate expression as punishment for a single past speech offense. Until now I had thought one could browse through any book or film store in the United States without fear that the proprietor had chosen each item to avoid risk to the whole inventory and indeed to the business itself. This ominous, onerous threat undermines free speech and press principles essential to our personal freedom. . . .

The admitted design and the overt purpose of the forfeiture in this case are to destroy an entire speech business and all its protected titles, thus depriving the public of access to lawful expression. This is restraint in more than theory. It is censorship all too real. . . .

What is happening here is simple: Books and films are condemned and destroyed not for their own content but for the content of their owner's prior speech. . . . A defendant's exposure to this massive penalty is grounded on the commission of just two or more related obscenity offenses committed within a 10-year period. Aptly described, RICO's forfeiture provisions arm prosecutors not with scalpels to excise obscene portions of an adult bookstore's inventory but with sickles to mow down the entire undesired use. . . .

What is at work in this case is not the power to punish an individual for his past transgressions but the authority to suppress a particular class of disfavored speech. . . .

In a society committed to freedom of thought, inquiry, and discussion without interference or guidance from the state, public confidence in the institutions devoted to the dissemination of written matter and films is essential. That confidence erodes if it is perceived that speakers and the press are vulnerable for all of their expression based on some errant expression in the past. . . .

[T]he destruction of books and films that were not obscene and not adjudged to be so is a remedy with no parallel in our cases. . . . Here the inventory forfeited consisted of hundreds of original titles and thousands of copies, all of which are presumed to be protected speech. In fact, some of the materials seized were the very ones the jury here determined not to be obscene. Even so, all of the inventory was seized and destroyed. . . .

[O]ne title does not become seizable or tainted because of its proximity on the shelf to another. And if that is the rule for interim seizures, it follows with even greater force that protected materials cannot be destroyed altogether for some alleged taint from an owner who committed a speech violation. . . .

The Court's failure to reverse this flagrant violation of the right of free speech and expression is a deplorable abandonment of fundamental First Amendment principles. . . .

The case then has the following notice:

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

Okay, I'll take the bait:

Dear Mr. Court Reporter:

It seems there is an error in the Alexander case: the text of the majority opinion seems to have been inadvertently framed as the "dissent", and vice versa.

Please make the above correction. Thank you.

Sincerely,

Barry Krusch


Are There Any Pro-First Amendment Cases?

Table of Contents
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1 Is?
2 Schenck, p. 49.
3 Schenck, p. 51 (underline emphasis here and otherwise supplied by author. Bold too. Italic, frequently).
4 Schenck, p. 49.
5 Schenck, p. 52.
6 Schenck, p. 52.
7 Frohwerk, p. 206.
8 Frohwerk, p. 215.
9 Guide, p. 400.
10 Guide, p. 400.
11 Gitlow v. New York, 268 U.S. 652 (1925), 606.
12 Gitlow , p. 666.
13 Prudential Insurance Co. v. Cheek, 259 U.S. 530, 543 (1922).
14 Gitlow, p. 670.
15 Kovacs, p. 85.
16 Kovacs, p. 88.
17 Feiner, p. 303.
18 Feiner, p. 321.
19 Poulous, p. 405.
20 Film, p. 124.
21 Film, p. 126.
22 Letter Carriers, pp. 595-600.
23 CBS, pp. 98-9. Citations to other decisions omitted for brevity.
24 CBS, pp. 102-3.
25 CBS, pp. 105, 107-9.
26 CBS, p. 137.
27 CBS, p. 124.
28 CBS, p. 124.
29 CBS, p. 125 (italic emphasis supplied).
30 CBS, p. 173.
31 CBS, p. 173.
32 CBS, p. 176.
33 CBS, pp. 176-7 (italic emphasis supplied).
34 CBS, p. 175.
35 CBS, pp. 176-7.
36 CBS, p. 181.
37 In two footnotes on p. 185 of the opinion, Brennan noted the history of this principle: "The Fairness Doctrine was recognized and implicitly approved by Congress in the 1959 amendments to §315 of the Communications Act. Act of Sept. 14, 1959, §1, 73 Stat. 557, 47 U.S.C. §315(a). As amended, §315(a) recognizes the obligation of broadcasters 'to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.' . . . The Fairness Doctrine was first fully set forth in Report in the Matter of Editorializing by Broadcast Licensees, 13 F.C.C. 1246 (1949), and was elaborated upon in Applicability of the Fairness Doctrine in the Handling of Controversial Issues of Public Importance, 29 Fed.Reg. 10415 (1964). The statutory authority of the Commission to promulgate this doctrine and related regulations derives from the mandate to the 'Commission from time to time, as public convenience, interest, or necessity requires,' to promulgate 'such rules and regulations and prescribe such restrictions and conditions . . . as may be necessary to carry out the provisions of (the Act). . . .' 47 U.S.C. §303(r)."
38 CBS, pp. 188-9, 191.
39 CBS, p. 199.
40 CBS, p. 199.
41 Lehman, p. 299.
42 Lehman, p. 299.
43 Lehman, pp. 299-300.
44 Lehman, pp. 309-10 (italic emphasis supplied).
45 Lehman, pp. 300-1.
46 Lehman, pp. 301-3.
47 Since this isn't "State" action, they can only make it so by incorporating the Fourteenth Amendment into the Ninth, or by broadening the definition of "State" in the Fourteenth Amendment and the Constitution proper from a literal State to the broader sense of "government." How they are going to do this in the presence of a clear Tenth Amendment directive to the contrary, they don't say.
48 CBS, p. 156.
49 Lehman, p. 304 (emphasis supplied).
50 Lehman, pp. 306-07 (emphasis supplied).
51 Lehman, p. 317.
52 Lehman, pp. 317-8.
53 Lehman, pp. 317-8.
54 Glines, p. 351.
55 Glines, p. 351.
56 Glines, p. 349.
57 Glines, p. 358.
58 Glines, pp. 358, 360-1.
59 Postal Service, p. 116 (emphasis supplied).
60 Postal Service, pp. 126-7.
61 Postal Service, p. 127.
62 Postal Service, pp. 128-130.
63 Postal Service, pp. 151-2.
64 Postal Service, pp. 152, 154-5.
65 Metromedia, p. 569.
66 Metromedia, pp. 500-01.
67 Metromedia, p. 502.
68 Metromedia, p. 506 (emphasis supplied).
69 Metromedia, pp. 538-9.
70 Metromedia, p. 507.
71 Metromedia, p. 507.
72 Metromedia, p. 507.
73 Metromedia, p. 513.
74 Metromedia, p. 514.
75 Metromedia, p. 568.
76 Lehman, p. 304.
77 Metromedia, p. 514.
78 Lehman, p. 307.
79 Metromedia, p. 513-4.
80 Metromedia, p. 510.
81 Metromedia, p. 520.
82 Metromedia, p. 515.
83 Metromedia, p. 549.
84 Perry, p. 39.
85 Perry, p. 39.
86 Perry, p. 39.
87 Perry, pp. 40-1.
88 Perry, pp. 40-1.
89 Perry, p. 41.
90 Perry, p. 41.
91 Perry, p. 42.
92 Perry, pp. 42-3.
93 Perry, p. 44.
94 Perry, p. 44.
95 Perry, p. 45.
96 Perry, pp. 61-2, 65.
97 Vincent, pp. 791-2.
98 Vincent, p. 792.
99 Vincent, p. 792-3.
100 Vincent, p. 794-5.
101 Vincent, pp. 803-7 (emphasis supplied).
102 1 Records of the Federal Convention 402, ed. by M. Farrand.
102a 3 Records of the Federal Convention 254, ed. by M. Farrand.
103 Stanley, p. 671.
104 Stanley, p. 690.
105 Stanley, pp. 688-9.
106 Stanley, p. 688, quoting a CIA Inspector General's Survey in 1957.
107 Stanley, p. 686.
108 Stanley, pp. 709-10.
109 This is not a misprint.
110 Lechmere , p. 844.
111 Lechmere , p. 845.
112 Lechmere , p. 850.
113 Lechmere , p. 846.