Category Archives: free speech

Riley v. National Federation of Blind of N. C., Inc.

487 U. S. 781

June 29, 1988

To discourage charity fraud, North Carolina passed a law that placed tiered limits on how much professional solicitors for charitable donations could keep for themselves as a fee. These limits could be rebutted. The law also required solicitors to state to potential donors the percentage of money they had left to charities within the past year. Finally, it required these professionals to be licensed before engaging in any solicitation. All these provisions were challenged as impeding the First Amendment rights of both the charities and the solicitors.

The Supreme Court struck down the licensing requirement 6-3, and the other restrictions 7-2. Brennan cited precedents that had ruled flat restrictions on fees out of order. Although the North Carolina law was more flexible, it was still not flexible enough, and it justification of limiting solicitors to ‘reasonable’ fees demonstrated a paternal belief that the government knew better than the charities themselves. Brennan easily found that the compelled speech of telling donors up front about percentages retained and turned over would burden the collection of funds by scaring away both potential donors and solicitors. Finally, because the stat could potentially hold up indefinitely the licensing of unpopular solicitors, he found the licensing requirement unsound as well. In all cases, the charity’s ability to communicate to the public through its own chosen means was impinged upon.

Scalia concurred in all but a footnote which signaled approval of a hypothetical legal requirement that a solicitor merely disclose his professional status. Stevens concurred in all but the licensing part, feeling that states could be trusted to conduct licensing in a fair manner. Rehnquist, joined by O’Connor, dissented. He felt that the tiered restrictions, complete with the possibility of rebuttal, were nuanced enough to be considered narrowly tailored to. The licensing requirement no more implicated free speech than the requirement that legal defendants retain licensed lawyers. Finally, Rehnquist did not feel that a brief disclosure about charity financing by a solicitor would unduly burden fundraising efforts.

I’m not sure about the fee limits, or the licensing requirements, but I think the compelled disclosure is clearly unconstitutional. If I joined nothing else, I would have joined Brennan’s section on that.


Frisby v. Schultz

487 U. S. 474

June 27, 1988

A large group of pro-life activists peacefully picketed the home of an abortion doctor for several days, until the town passed an ordinance to ban residential picketing. The ordinance was passed with the expressed intent of protecting people in their homes from unwanted psychological harassment. The pro-life activist sued to have this ban struck down by the First Amendment. They argued in a facial challenge that it was overbroad, not narrowly tailored, and not written in service of a compelling interest.

The Supreme Court ruled 6-3 that the ordinance could survive a facial challenge. O’Connor once again slapped down an especially asinine justiciability argument, and moved to the merits. Because it targeted speech on the public fora of roads and sidewalks, the ordinance would have to meet strict scrutiny. Lower courts said the ban was content neutral, and O’Connor interpreted the statute to ban only picketing in front of a single residence, and not mobile picketing throughout an entire residential area. So interpreted, the ban was not overbroad, and O’Connor found that protecting people in their home from unwanted messages was a compelling interest. And because the Court construed the ban to only apply to picketing at a single house, O’Connor felt the ordinance was narrowly tailored to meet the harm it purported to address.

White, concurring in judgment, did not like how the majority unilaterally interpreted the ordinance to not apply to mobile picketing throughout a larger residential vicinity. He thought the ordinance might have a broader reach, but ultimately felt that it was still barely within the limits of constitutionality. Stevens, dissenting, felt the ordinance was overbroad becaue it could, literally read, forbid a kid from holding a sign that said “GET WELL CHARLIE – OUR TEAM NEEDS YOU.” Brennan, joined by Marshall, did not think the ordinance was narrowly tailored. If the state wished to protect people in homes from being harassed, it could allow some picketing, but limit the crowd size, time duration, and noise level. That would serve the compelling interest while suppressing the least amount of speech.

This is, without a doubt, the worst abortion ruling ever made by a conservative majority. O’Connor’s opinion has some shocking language that I can hardly believe Scalia joined. She charged the pro-life activists with behaving in “an especially offensive way.” She was horrified by the “devastating effect” the picketing had on “the quiet enjoyment of the home.” Furthermore, she contended that “the offensive and disturbing nature” of the behavior “could scarcely be questioned.”

Evil loves darkness and hates light because it loves to stay hidden, and hates exposure. The brave pro-life activists were piercing the darkness and exposing evil when they picketed the doctor’s house. The town had a right to know of the serial murderer in its midst, and of his quiet life free from any legal trouble. An intense spotlight was shone on the banality of evil. The town council, loving darkness, and hating the light, twisted justice, and passed an ordinance to silence the latter day prophets. The lonely voices crying in the wilderness were made lonelier still.

Let’s be clear – if you’re a doctor who murders babies, you have no right to complain of emotional trauma and harassment when a light is shone on your demonic barbarity. When you have so much blood on your hands, you have forfeited the right to comfort and peace in your home. God detests nations that spill innocent blood.

City of Lakewood v. Plain Dealer Publishing Co.

486 U. S. 750

June 17, 1988

Lakewood passed an ordinance that required the mayor to annually approve any placement of newsracks on public property. Because no limits were placed on the mayor’s discretion to disapprove of a newsrack, a newspaper argued that the ordinance facially violated the First Amendment. Lakewood responded that the mayor could be trusted, and that an as-applied challenge could issue if the mayor ever seemed to be squelching the freedom of the press.

The Court ruled 4-3 that a facial challenge was warranted, and that the ordinance failed under a facial challenge (Rehnquist and Kennedy did not participate). Brennan said that regulations aimed at the press, like the one at issue, are particularly suited for facial challenges, because of the dangers of self-censorship in its absence. He admitted that newsracks could be banned altogether, but this power did not give the state unlimited discretion once it made the choice to allow some. Many precedents were cited for this fact. Turning to the merits, Brennan found that there was no guiding principle in the ordinance to limit the mayor’s discretion. Should the mayor ban a newsrack, as-applied relief would come to late, because in the meantime the opportunity to report years worth of news may be lost.

White, joined by Stevens and O’Connor, dissented. He did not think an imagined right to permanently occupy city property for the dissemination of news was enough of a First Amendment concern to bring about a facial challenge. White disputed the majority’s conclusion that a state cannot regulate, with some discretion, action that it could ban. Indeed, the majority’s mode of analysis might induce localities to effective regulate the press by passing more generally worded and applicable ordinances. White further noted that Lakewood had subsequently passed a much more press-friendly ordinance, and that newspapers were sold all over Lakewood on property not belonging to the government; given all this, there was realistically little at stake. White concluded by arguing that some other features of the ordinance not addressed by the majority were Constitutional.

Both the majority and dissent expended way more effort than necessary. I left out a few points, and over-summarized others, but you’re not missing much. This was a trivial case, and both sides ended up losing perspective. White’s impassioned dissent reflects his decades long hatred of newspapers, which was nurtured by their shoddy coverage of him as a college football star.

Brennan’s impassioned majority opinion reflects his love of juicy First Amendment cases, and his aching desire to get just a couple additional soaring opinions on that topic in United States Reports before retirement. I will say this about Brennan: no one is as good as him at arguing that a case is totally controlled by this or that precedent. Regardless of whether the precedent really controls, he is unfailingly good at making it sound convincing.

Shapero v. Kentucky Bar Assn.

486 U. S. 466

June 13, 1988

A lawyer prepared to mail targeted advertising to residents who were facing home foreclosure. The mailings urged the residents to “Call NOW,” and had other such examples of caps lock. Although the mailing was truthful, the Kentucky Bar Association ruled that the mailings were too coercive, and too motivated by the lawyer’s own pecuniary gain to stand. The lawyer charged that the state bar’s ethical rules about the mailings violated the First Amendment.

The Court ruled 6-3 that a state bar could not impose a blanket ban on truthful targeted mailings. Brennan noted that non-targeted mailings had been previously held protected by the First Amendment, and that the difference of targeting was trivial. While a decision called Ohralik had upheld rules against in-person targeted solicitation, Brennan said this was because in-person solicitation was far more coercive. The comparative ease by which a mail recipient could ignore a letter or throw it away made all the difference.

There still remained the question of whether Shapero’s specific letter went beyond the reach of First Amendment protection. Though it included some puffery, and caps lock words, Brennan concluded that the letter was still basically truthful and non-coercive. White, joined by Stevens, took exception to this declaration, and wrote that the state courts should have the final word on the issue.

O’Connor, joined by Rehnquist and Scalia, dissented. She admitted that Brennan’s ruling was a logical extension of the Court’s precedents, but she argued that the whole line of cases protecting lawyer advertising ought to be overruled. O’Connor saw some convincing reasons for restraining legal advertising. For one thing, potential clients are usually too uninformed about the law to make intelligent decisions when confronted with legal advertising. For another thing, the legal system itself was fraught with too much uncertainty and contingency to determine, in many cases, whether advertising claims were truthful.

I’m not sure if O’Connor is correct in calling for nearly all First Amendment protection to be taken away from legal advertising. But I do think that Shapero’s targeted letter is hecka’ creepy, and I would not like getting such a personalized advertisement.

Meyer v. Grant

486 U. S. 414

June 6, 1988

Colorado has a ballot initiative process where citizens can petition and put a question up for vote. But Colorado law banned the payment of those who collect signatures for such a petition. Signature collectors charged that this violated the First Amendment, by unduly burdening the ability of citizens to get initiatives on the ballot.

The Supreme Court unanimously found a First Amendment violation. Stevens said that political questions like those decided by initiative vote deserved the highest level of Constitutional protection, and that Colorado’s law substantially limited the reach of communication between citizens. To support the law, the state argued that it was required to ensure genuine grass roots support for the initiative, and to ensure that signature collectors did not resort to fraud. Stevens found both arguments weak and doubtful when compared to the First Amendment concerns.

Colorado also urged that it were not Constitutionally required to provide an initiative process at all, and thus the state remained free to impose any restrictions whatsoever. Stevens responded that once a state provides a new political process, it cannot shield the First Amendment from operating in that new process. Even though the Court ruled unanimously, I’m not sure they adequately answered this last argument, and I might have dissented.

Edward J. DeBartolo Corp. v. Florida Gulf Coast Building & Constr. Trades Council

485 U. S. 568

April 20, 1988

Unions distributed leaflets urging customers to boycott an entire mall, because just one business there had hired just one construction company which allegedly was mean to unions. A labor board found that this union activity broke a law, even though that law arguably violated the First Amendment’s guarantee of free speech. A Court of Appeals disagreed with the labor board’s interpretation of the law, and held that the law did not actually ban peaceful leafletting, so the union was in the clear.

Unanimously, the Supreme Court backed up the Court of Appeals (Kennedy did not participate, and Scalia and O’Connor concurred in judgment without opinion). While the labor board’s interpretation would normally get Chevron deference, there was an exception when an agency’s interpretation might violate the Constitution. In those cases, courts could look for and adopt a narrower reading. White said that the law was written to stop practices that might “threaten, coerce, or restrain” potential consumers. Because peaceful leafletting, unaccompanied by picketing, arguably did not do this, White adopted the narrower interpretation of the law.

Legislative history was similarly murky on the law’s reach, and a much analyzed colloquy between Senators Kennedy and Goldwater failed to yield a definite answer either. White also pointed out that under the labor board’s interpretation, even a private meeting which urged a boycott would be considered illegal. I would have liked to have at least read a dissent, but this ruling doesn’t bother me too much. The underlying facts of the case however, are just more proof that American unions are frequently unhinged and totally irrational.

Boos v. Barry

485 U. S. 312

March 22, 1988

Some protesters wanted to gather at the embassies of the Soviet Union and Nicaragua and display critical signs about those nations. A District of Columbia regulation prohibited both congregating and displaying critical signs within 500 feet of embassies, supposedly because ambassadors deserve the highest level of dignity. The protesters claimed that these rules were obvious First Amendment violations.

The Court unanimously upheld the congregation ban, but struck down the signage ban 5-3 (Kennedy did not participate). A federal court had long ago interpreted the congregation ban to cover only violent congregations, and allow for peaceful ones. While federal courts could not usually narrow a DC regulation like this, the regulation had been originally passed by Congress rather than the DC Council, so it was ok. Because the federal court had narrowed the reach so drastically, an equal protection challenge based on labor unions being statutorily exempted was moot.

On the signage issue, there was no narrowing federal court ruling, and O’Connor did find that it violated the First Amendment. Because the regulation only banned signs that brought foreign nations into “disrepute,” it was a content based speech restriction. Furthermore, the regulation was not written to combat the secondary effects of this speech, like congestion or visual clutter, but the speech itself. While affording “dignity” to ambassadors was a possibly compelling interest, O’Connor did not find the regulation narrowly tailored enough to pass muster.

In an irrelevant concurrence joined by Marshall, Brennan whined about a previous decision which had allowed speech to be banned if its secondary effects were harmful. Rehnquist, joined by White and Blackmun, dissented. As is typical, he offered no argument; this time he simply said ‘read what the dissenting judge in the lower court wrote.’ Rehnquist’s unexpressed objections notwithstanding, the Court made the right decision. And I have to say, I really hated the idea of ambassadors deserving “dignity,” and freedom from offense. This is a deeply unbiblical notion. Evil nations must be openly called out as evil – just read the Old Testament prophets.

Hustler Magazine, Inc. v. Falwell

485 U. S. 46

February 24, 1988

In 1983, the pornographic magazine Hustler published a fake ‘parody’ interview with Jerry Falwell where he admits to having drunk sex with his mother in a fly-ridden outhouse (for you young’uns out there, Falwell was a prominent socially conservative Baptist minister of the era). Falwell successfully sued Hustler for the tort of intentional infliction of emotional distress. In return, the magazine argued that, as a parody, the interview should be protected from such a suit under the First Amendment.

Rehnquist wrote for a unanimous Court (Kennedy did not participate), which set aside the emotional distress finding on First Amendment grounds. Rehnquist recited how free and open discourse about public figures like Falwell was critical for the health of a liberal democracy, and how highly exaggerated and fictionalized parodies of public figures were part and parcel of America’s commitment to free speech. Although the Falwell ‘parody’ was disgusting and outrageous, and had little redeeming quality, Rehnquist did not see how a bright line between it and a Thomas Nast cartoon could be drawn. Thus, magazines like Hustler should be able to publish without fear of expensive emotional distress suits.

White, concurring in judgment, took exception to the majority’s unnecessary and misleading mention of New York Times v. Sullivan and libel law. Myself, I would go further, and call the entire majority opinion sloppy and misguided. The Hustler ‘parody,’ unlike a political cartoon, made no actual political statement. It merely bullied a famous person in a crude and vicious manner. Much like the rest of the contents of Hustler, the Falwell ‘parody’ was simply obscene, and really doesn’t deserve First Amendment protection. As scholar John Kang put it in his half-joking/half-serious nomination of this ruling as the ‘Worst Case in the History of the World,’ the majority opinion was a sad blow against basic civility and human decency in American society.

Virginia v. American Booksellers Assn., Inc.

484 U. S. 383

January 25, 1988

Virginia had long prohibited selling obscene books to juveniles, and in 1985 the law was amended to prohibit the displaying of these books to juveniles too. Bookstores protested that keeping kids from seeing obscene books was simply not feasible. Shielding the books from the kids would be costly, and would inevitably prevent adults from seeing them too. The bookstores also argued that a surprisingly high percentage of books sold were obscene under the statute. As an example, they cited a collection of classic love poems.

The Supreme Court unanimously decided to punt. Brennan certified two questions to the Virginia Supreme Court, which had the power to authoritatively interpret the law. First, were the books like the love poem collection really inappropriate for juveniles under the law? This was asked because the Commonwealth’s lawyer emphatically claimed they were not. Second, is the law violated if the books are physically displayed, but the bookstore still prevents kids from perusing them?

Stevens objected that the first question treated all the books at issue as a package deal. He said that the Virginia Supreme Court ought to give individual judgment on each book that the bookstores complained of being covered by the law. In any event, certification was a good idea, and it’s a shame that it’s not used more often. As to the case itself, it’s a clear relic of the sadly long gone days when it was still possible to fight obscenity. I’ll be the first to admit that the internet has been a wonderful tool for good; but it’s also indisputably been a powerful tool for evil.

Hazelwood School Dist. v. Kuhlmeier

484 U. S. 260

January 13, 1988

A high school published, at its own expense, a newspaper written by students in a journalism class. In one 1983 issue, the principal ordered the removal before publication of articles about student pregnancy and divorce, citing several compelling concerns over anonymity, journalistic ethics, and the mature subject matter. The students claimed that this violated their First Amendment rights from the Tinker case. If this were a Hollywood movie, the dewy-eyed, idealistic kids would have taken that mean ol’ killjoy of a principal all the way to the Supreme Court and won.

Thankfully, it was not a Hollywood movie, and the Supreme Court smacked the snotty little kids down. White wrote for the Court, which ruled 5-3 that the principal had acted reasonably. Because the newspaper was published by the school, and part of the school’s education mission, school administrator’s had a right to oversee its content, and ensure that it met proper standards for distribution to the student body. The school had not intended to create a forum for unsupervised free speech, and the speech exercised in the paper was not private as in Tinker. White concluded by showing that the principal’s censoring had been eminently reasonable (it had even been commended by the editor of a real newspaper).

Brennan, joined by Marshall and Blackmun, quite evidently wanted the Hollywood ending. He moaned that Tinker hadn’t said anything about the effect of school sponsorship, and so it shouldn’t matter. He ominously intimated that the principal was a prude who was hellbent on brutally squashing anything that promoted sexual promiscuity. And he threw in a hearty helping of Monday morning quarterbacking about alternative options the school could have taken when faced with the troubling articles. Hazelwood was predictably greeted by an avalanche of sententious tut-tutting from the press, who also wanted the Hollywood ending badly. Lost in most commentary on the decision was the fact that the principal was totally on point in all his objections.