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Overview

The First Amendment to the U.S. Constitution provides that:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

This language restricts government both more and less than it would if it were applied literally. It restricts government more in that it applies not only to Congress, but to all branches of the federal government, and to all branches of state and local government.[1] It restricts government less in that it provides no protection to some types of speech and only limited protection to others.[2]

The First Amendment limits the federal government from making any law or regulation that would ban or indirectly tend to suppress — that is, “chill” — speech or expression. Historically, the First Amendment has been interpreted broadly to protect individuals from government attempts to suppress political, ideological, or scientific ideas or information, and to defend against government incursions on freedom of expression in art, literature, movies, and music.

As necessary conditions to democratic governance, the rights embodied in the First Amendment occupy a "preferred position" in the hierarchy of constitutional rights and powers.

The provisions of the First Amendment have been interpreted to provide a bulwark against government intervention in the most basic elements of our democracy — the expression of thought, opinion, and belief. As necessary conditions to democratic governance, the rights embodied in the First Amendment occupy a "preferred position" in the hierarchy of constitutional rights. As Justice Rutledge, speaking for the majority of the Supreme Court, said in 1945:

This case confronts us again with the duty . . . to say where the individual's freedom ends and the State's power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions, and it is the character of the right, not of the limitation, which determines what standard governs the choice. . . .[3]

The First Amendment applies to the states through the due process clause of the Fourteenth Amendment.[4]

First Amendment interests are not limited to authors and publishers; readers have a right to receive information and judge its value for themselves.[5] The First Amendment right to receive information is rooted in the fundamental public interest in the free and open exchange of ideas and information.[6] The open dialogue protected by the First Amendment covers "every sort of publication which affords a vehicle of information and opinion," including literature.[7]

Notwithstanding the absolute language of the First Amendment and its preferred position, the Supreme Court has never interpreted the freedoms of religion, speech, press, or assembly to be without limits. These rights, which are collectively referred to as freedom of expression, can be limited in a variety of ways.

Government can prohibit entirely speech that threatens national security, that is obscenity,[8] that incitements to imminent lawlessness,[9] is a true threat,[10] and fighting words.[11] it can place reasonable restrictions on the time, place, and manner of speech, and can regulate speech that takes place in public; it can force one to compensate victims of defamation and other forms of speech injurious to private interests; and it can regulate speech that takes place over the airwaves. Moreover, when speech or the exercise of religion merges into action, government can regulate those forms of expression to protect the public health, safety, and welfare.

Because freedom of expression is not absolute, it often involves a balancing of governmental interests against the rights of individuals where the two are in conflict. Balancing rights against power occurs in the context of contemporary values and institutions: economic, political, ethical, legal, and scientific or technological.

The First Amendment generally does not apply to private activity. Thus, a private individual or private entity cannot be said to unconstitutionally "abridge" another private individual's "freedom of speech and press." Only the government, or its agents, can be charged with violating the First Amendment. The exception is when a private party’s actions are attributable to the government, either when: (i) the private party exercises a public function that is traditionally exclusively reserved to the State,[12] or (ii) the government has exercised coercive power or provided such significant encouragement that the challenged action can fairly be attributed to the government.[13]

Rationales for protecting free expression

"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceable to assembly, and to petition the Government for a redress of grievances"- First Amendment of the U.S Constitution.

Scholars have identified primary reasons for giving constitutional protection to free expression.

  • First, freedom of speech and press is a necessary corollary of self-governance. In a self-governing society, it is the citizens and not the government who ultimately must decide on issues of public policy. To exercise this responsibility effectively, citizens must have access to the entire spectrum of information, opinions, and ideas, without interference from the government.
  • Second, in the words of Justice Oliver Wendell Holmes: "The best test of truth is the power of the thought to get itself accepted in the competition of the market." The idea here is that in all areas of decision-making, reaching far beyond the political, and including such questions as whether to marry, or whether to have children, or whether to go to college — the best way of reaching the best decisions for both the individual and the community is to allow all ideas and opinions to contest in a free and open encounter, without interference from the government.
  • Third, freedom of expression is guaranteed as a means of ensuring individual self-fulfillment. The notion here is that, as, human beings, we have a fundamental need to speak our minds, to express our emotions and desires, and to create and to learn from one another. The constitutional protection of free expression is an essential adjunct of ensuring our common humanity and the opportunity for individual development.
  • Fourth, promoting tolerance. Although others may have a different idea or perspective on an issue, protecting speech allows us to look beyond our own, and realize that others have their own ideas as well. Allowing different ideas to penetrate throughout society, allows each of us to gain perspective that we wouldn't otherwise obtain which is crucial when deciding an overall, reasonable decision on any given issue. Similar to the court procedure, all perspectives involved have a right to present their position.

The foundation for providing constitutional protection to the freedom of speech and press are not always consistent with one another and sometimes point in different directions. But, in very general terms, they state the primary values that the First Amendment is thought to serve.

Building on these values, the U.S. Supreme Court has identified several very basic principles that have shaped its interpretation and application of the First Amendment, including:

  • First, the Supreme Court has held that the government cannot constitutionally restrict speech because the speech advocates ideas, opinions, or values that the government (or perhaps more accurately the majority of citizens) believe to be "wrong" or "improper." Thus, for example, the government cannot constitutionally prohibit speech calling for the legal repeal of the draft on the ground that such expression might persuade the public to vote unwisely to end the draft, even if the government profoundly believes that the draft is a good thing and that it is essential to our national welfare. The explanation here is simple: under the First Amendment, it is for the citizens themselves to make such decisions, after hearing all the arguments; it is not for the government — or for the majority — to prevent such decisions by shutting off debate.
  • Second, the Court has generally held that, except in the most extraordinary circumstances, the government cannot constitutionally restrict speech because the ideas expressed might cause readers or listeners to engage in unlawful or otherwise socially undesirable conduct. For example, the government cannot prohibit opposition to the draft on the ground that such expression might cause others to refuse induction or even to blow up induction centers. Indeed, although the Court has often said that such speech can be restricted if it creates a "clear and present danger" of grave harm, in fact the Court has not upheld a governmental effort to restrict speech on this basis for over 50 years.
  • Third, the Court has generally held that the second principle is inapplicable to specific categories of speech that the Court has defined as having only "low" First Amendment value. That is, as the Court explained some 60 years ago:
There are certain well defined and narrowly limited classes of speech, [such as the obscene and the libelous, that] are no essential part of any exposition of ideas and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.[14]

For these categories of expression, which include not only the obscene and the libelous, but also fighting words, commercial advertising, express incitement, and threats, the Court has held that some forms of government regulation are permissible.

What is protected under the First Amendment

The Supreme Court has expressly stated that movies and music fall within the First Amendment.[15] Several federal courts have debated whether electronic games should receive the same First Amendment protections as the other entertainment media but have not yet decided the issue conclusively.[16] so

By contrast, the First Amendment has been interpreted to provide more narrow protection for commercial expression such as advertising.[17] The Supreme Court also has placed outside the protections of the First Amendment certain limited classes of speech that are viewed as having little or no value at all because they do not promote democratic ideals: incitement,[18] fighting words,[19] and obscenity.[20]

Government regulation

Where speech is restricted based on its content, the U.S. Supreme Court generally applies “strict scrutiny,” which means that it will uphold a content-based restriction only if it is necessary “to promote a compelling interest,” and is “the least restrictive means to further the articulated interest.”[21] For example, protection of national security from an external threat is a compelling government interest.[22] It has long been accepted that the government has a compelling need to suppress certain types of speech, particularly during time of war or heightened risk of hostilities.[23]

Speech likely to incite immediate violence, for example, may be suppressed.[24] Speech that would give military advantage to a foreign enemy is also susceptible to government regulation.[25] Where First Amendment rights are implicated, it is the government’s burden to show that its interest is sufficiently compelling to justify enforcement.

Whether the government has a compelling need to punish disclosures of classified information turns on whether the disclosure has the potential of causing damage to the national defense or foreign relations of the United States.[26] Actual damage need not be proved, but potential damage must be more than merely speculative and incidental.[27] On the other hand, the Court has stated that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.”[28] And it has described the constitutional purpose behind the guarantee of press freedom as the protection of “the free discussion of governmental affairs.”[29]

Categories of unprotected speech

Restrictions on the content of speech must be narrowly tailored to achieve a compelling government interest i.e. they must pass a strict scrutiny standard of review. Very few restrictions on the content of speech are permitted. Some areas and reasons for why the court has allowed restrictions on speech:

  • If it creates a clear and present danger of imminent lawless action.[30]
  • If it constitutes "fighting words" as defined in Chaplinsky v. New Hampshire,[31] as "words by their very utterance inflict injury or tend to incite an immediate breach of the peace." While not overruled, Chaplinsky appears to be a special case in that since the decision in Chaplinsky has been established, the Court has never again upheld a fighting words conviction on the grounds that most reveal to be broad and vague.
  • The speech, film, etc. is obscene (including child pornography) as defined in Miller v. California,[32] if the speech (1) appeals to the prurient interest in sex; (2) portrays sex in a patently offensive way; and (3) does not have serious literary, artistic, political or scientific value. If one believes that a statute is regulating their expression and can prove elements laid out in #3, then the court will apply strict scrutiny.
  • The speech constitutes defamation, which may be the subject of civil penalty through tort action brought by the injured party..
  • The speech violates regulations against false or deceptive advertisements (libel). The government can demonstrate a compelling interest in limitation of the First Amendment activity. In New York Times Co. v. Sullivan, [33] the Court articulated a test to determine if and when he or she can recover from supposed defamation. If the Plaintiff is a public official or running for office, the Plaintiff can ONLY recover by (1) proving his or her case with clear and convincing evidence; 2) by providing clear and convincing evidence that the statement is false; (3) and must articulate and prove actual malice, i.e. that the defendant knew that the statement was false or acted with reckless disregard of the truth.

Commercial vs. non-commercial speech

In analyzing governmental restrictions on speech, the Supreme Court traditionally has divided speech into two categories — commercial speech and “fully protected,” non-commercial speech.[34] Although the Supreme Court has struggled to define the differences between these two categories, there are some clear general rules. Non-commercial speech is generally viewed as political, ideological, artistic, or scientific expression. Commercial speech has been defined broadly as speech “related solely to the economic interests of the speaker and its audience,”[35] and described more narrowly as speech that does “no more than propose a commercial transaction.”[36]

Whether speech is categorized as commercial or non-commercial is critical because the degree of First Amendment protection varies depending on the category of speech. Traditionally, the Supreme Court has applied a “strict scrutiny” standard to non-commercial speech, while analyzing commercial speech under an “intermediate scrutiny” test.[37] In practice, to restrict non-commercial speech, the government must prove that the restriction promotes a compelling government interest and is narrowly tailored to promote that interest.[38] If a less restrictive alternative would serve the government’s purpose, the government must use that alternative.[39] By contrast, to restrict commercial speech that concerns lawful activity and is not misleading, the government must prove that its interest is substantial, that the regulation directly advances the governmental interest asserted, and that it is not more extensive than is necessary to serve that interest.[40]

Advertising of entertainment/media products

The categorization of advertising for entertainment and media products as commercial or non-commercial speech is unsettled. Although some observers argue that advertisements for movies, sound recordings, and electronic games should be viewed as commercial speech because they are merely advertising products that have been placed in the stream of commerce for profit,[41] industry members and some First Amendment advocates assert that such advertisements should be analyzed as protected, non-commercial speech because: (i) they promote a product that itself is entitled to protection; and (ii) they often incorporate or summarize parts of the underlying non-commercial expression, and therefore are, in substance, nothing more than a particular subset of the content of the non-commercial expression.

The Supreme Court has never specifically ruled on this issue, and the existing federal and state court opinions are not uniform.[42] At least one state court has held that an advertisement for a movie “goes beyond proposal of a commercial transaction and encompasses the ideas expressed in the motion picture which it promotes; thus it is afforded the same First Amendment protections as the motion picture. . . .”[43] State courts in New York and California have reached opposite conclusions regarding whether promotional statements on a book cover and flyleaf constitute commercial or non-commercial speech.[44]

Gambling

Gambling implicates First Amendment free speech concerns on two levels. Gambling is communicative by nature. Gambling also relies on advertising and a wide range of auxiliary communication services.

Historically, gambling itself has been considered a vice and consequently beyond the protection of the First Amendment. There is every reason to believe that illegal gambling remains beyond the shield of the First Amendment. Gone, however, is the notion that the power to outlaw a vice includes the power to outlaw auxiliary speech when the underlying vice remains unregulated.[45] The U.S. Supreme Court made this readily apparent when it approved an advertising ban on gambling illegal at the point of broadcast,[46] but invalidated an advertising ban on gambling lawful at the point of broadcast.[47]

Although the Court’s decisions acknowledges the ambivalence of American gambling policies,[48] they do not appear to threaten the basic premise that the First Amendment permits Congress to outlaw gambling in any form (including Internet gambling) and to ban any speech incidental to illegal gambling.

Freedom of the electronic press

As it first did with the printing press and again with radio and television, new technology will give rise to new ways of communicating, which amplify the ways in which individuals and organizations express themselves. Information and communications technologies, such as satellites, computers, and the Internet, are, like the telegraph, telephone, radio, and television before them, changing the range, cost, and quality of communications.

Taken together, advances in computers and telecommunications have changed the concept of “the press.” Traditionally, the term usually refers to a formal organization that gathers and publishes or broadcasts news. Such communications generally take the form of one-to-many exchange. Today, that exchange has shifted to many-to-many communications in which people with common interests share information amongst themselves, as with electronic bulletin boards.

With these changes come the prospect of new First Amendment challenges to the power of government to regulate access to and ownership of communications media. New technologies, such as electronic publishing, may not fit easily into old models of regulation, and distinctions between the First Amendment rights of print publishers, television or radio broadcasters, common carriers and the Internet will become increasingly difficult to justify.

New capabilities for the press to gather, store, and retrieve information on individuals may require that rules of liability for constitutionally protected speech be reexamined. The potential for technology to decentralize the editorial function may raise questions of editoial control and liability under the First Amendment. And, in an era of global communications, the question of whether First Amendment rights extend to foreign speakers in this country, or to speakers in foreign countries when they are heard or read here, will also be raised.

Newsgathering

In order to publish news and information, the press must have an ability to gather it in the first place. The U.S. Supreme Court has yet to decide, however, whether newsgathering is itself a protected First Amendment activity, separate from speaking and publishing.

The Supreme Court said in Branzburg v. Hayes[49] that “it is not suggested that news gathering does not qualify for First Amendment Protection; without some protection for seeking out the news, freedom of the press could be eviscerated. . . .”[50] However, the Court has declined to say that government has a positive duty to allow journalists special access to information. The press has access to government proceedings, records, or other information that is available to members of the public generally.[51] Presumably, the converse is also true; access denied to the general public may also be denied to the press,[52] but the government may not close down avenues for gathering and acquiring news that are generally available to the public, without a compelling reason.

Although the press may not, as a constitutional matter, have any greater rights to gather information than the general public, they may, as a practical matter, have a greater and more concerted ability to gather information than most individuals. Technology has greatly amplify the information-gathering resources of the press. As a result, familiar constitutional issues — pitting freedom of the press against privacy rights and national security interests — are being encountered in unfamiliar contexts. Technology is blurring the distinctions between gathering information and publishing it, and the Court will eventually have to confront the question of whether the press interests in gathering news merit constitutional protection under the First Amendment.

Impact of science and technology

Science and technology may affect the balance between First Amendment rights and government interest by changing power relationships between individuals and between the individual and the State. As it first did with the printing press, technology will give rise to new ways of communicating, which amplify the ways in which individuals and organizations express themselves. Information and communications technologies, such as satellites, computers, and the Internet are, like the telegraph, telephone, radio, and television technologies before them, changing the ways in which we communicate ideas, theories, opinions, and incitements to action — they affect who can say what, to whom, to how many, and at what cost.

Taken together, advances in computers and telecommunications may change the concept of “the press” from one in which one organization publishes for many to one in which many share information amongst themselves. With these changes will come new First Amendment challenges to the power of the government to regulate access to and ownership of communications media. New technologies, such as electronic publishing, may not fit easily into old models of regulation, and First Amendment distinctions between the rights of print publishers, broadcasters, and common carriers will become increasingly difficult to justify.

The open communication of scientific information — data, hypotheses, conclusions, explanatory theories, technological know-how — is a special kind of speech or publication. There no consensus on the question as to whether scientific communication enjoys the full protection provided by the First Amendment to political communications.

It is well established that scientific communication can be limited when necessary to protect national security. But how severe can and should that limitation be? As science and technology become ever more important to our economy and our military strength, the delicate balance between individual rights and the national interest becomes both more important and more difficult to maintain. Do the limits imposed by classification, congressionally legislated restrictions, and export controls, collectively negate the right of free speech and free press in the field of science?

In fields such as mathematics, biology, or physics, basic research results in certain areas can have direct and immediate implications for technological development. In those case where the line between basic knowledge (science) and its implementation (technology) becomes thin and difficult to discern, a balance between the right of expression and interest of the state in preserving security is very difficult to achieve. There are likely to be many situations in the future in which the government will assert compelling reasons for limiting basic scientific communications.

Privacy

First Amendment principles also bear on privacy, both in the sense of protecting it,[53] but more often in terms of overriding privacy protection in the interests of protecting speech and press.[54]

Electronic surveillance

Two First Amendment concerns arise with regard to electronic surveillance — access to records, and related investigatory activities. One addresses direct restrictions on speech that may accompany government collection of private information, such as non-disclosure requirements accompanying orders compelling government access to business records.

A second concern is that overly broad authorities permitting government intrusion may lead to a “chilling” (i.e., stifling) effect on public discourse.[55] Some federal laws address the latter issue directly, for example by prohibiting investigations based solely on a person’s First Amendment activities.[56] Despite safeguards, there is concern that government authorities may circumvented First Amendment limitations.[57]

Collecting and sharing of information concerning individual's exercise of First Amendment rights can give rise to First Amendment claims as well. If, for example, information is collected by a federal agency identifying persons who participate in an antiwar protest group that appears to pose no threat to national security, the mere act of sharing that information with other government agencies, absent a legitimate law enforcement or national security purpose, may violate the First Amendment rights of those protestors. As another example, an agency collects a membership list of a religious or political organization that poses no national security or criminal threat. If the agency shares that information, the affected organization could reasonably claim that its First Amendment rights had been violated where the public disclosure of the information results in public derision or leads to regulatory restrictions that result in a significant drop in membership.

Places available for speech

The speech that we are all guaranteed via the First Amendment, obviously requires a place for it to occur. The Supreme Court has recognized this issue and has identified different types of government property: public forums, designated public forums, and non-public forums, and has established different rules for when the government is permitted to regulate any of them.

In Perry Education Association v. Perry Local Educators Association,[58] the Court set up the stage for precisely what places are open for people to "assemble" which is expressly protected by the First Amendment.

In quintessential public forums, the government may not prohibit all communicative activity. For the state to enforce 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.

A second category that the Court recognizes consists of public property which the state has opened for use by the public as a place for expressive activity, and can be categorized as "designated public forums" and the third area is public property which is not by tradition or designation a forum for public communication, in which case, the First Amendment does not guarantee access to this type of property simply because it is owned or controlled by the government. The state may implement time, place and manner restrictions and may reserve the forum for its intended purposes, communicative or otherwise.

In order to regulate public forums, such as sidewalks and parks, the regulation must be (1) content-neutral, unless the government can justify a Content-based restrictions by meeting a strict scrutiny standard; (2) it must be a reasonable time, place and manner restriction that serves an important government interest and leaves open adequate alternative places for speech. For example, the reasonable time, place and manner restrictions may be justified if they are NOT intended to infringe upon the content of the speech and it must leave open alternative channels for communication of the information; (3) a licensing or permit system for the use of public forums must serve an important purpose, give clear criteria to the licensing authority that leaves them almost no discretion. For example, the guidelines that must be met in a licensing requirement cannot be decided on the spot by the authority because they perhaps do not like the speech that is occurring. Finally, (4) the Court asserted that the government regulation of speech on public forums does not need to use the least restrictive alternative as long as it is narrowly tailored to achieve the government's purpose i.e. must not restrict a specific message or otherwise protected areas of speech.

References

  1. The First Amendment is equally applicable to the states under the Due Process Clause of the Fourteenth Amendment. Pennekamp v. Florida, 328 U.S. 331, 349 (1946); Grosjean v. American Press Co., 297 U.S. 233, 244-45, 249 (1936).
  2. See, e.g., Roth v. United States, 354 U.S. 476, 483 (1957)(obscenity is not protected by the First Amendment); Beauharnais v. Illinois, 343 U.S. 250, 266 (1952)(libelous statements are outside the realm of constitutionally protected speech); Chaplinsky v. New Hampshire, 315 U.S. 568, 573 (1942)("fighting words" are outside the scope of First Amendment protections). As Judge Harry T. Edwards of the D.C. Circuit has explained:
    The age when courts and commentators could debate whether the First Amendment constituted an “absolute” barrier to government regulation of speech is long gone. In its place stands a complex set of rules that directs a reviewing court to consider such diverse factors as the form and effect of the regulation, the purposes of the regulators, the value of the speech regulated, and the type of media involved.

    Harry T. Edwards & Mitchell N. Berman, "Regulating Violence on Television," 89 Nw. U. L. Rev. 1487, 1490-91 (1995) (citation omitted).

  3. Thomas v. Collins, 323 U.S. 516, 529-30 (1945).
  4. Gitlow v. People of the State of N.Y., 268 U.S. 652, 666 (1925).
  5. See Martin v. City of Struthers, Ohio, 319 U.S. 141 (1943); Red Lion Broad. v. FCC, 395 U.S. 367 (1969); Kleindienst v. Mandel, 408 U.S. 753 (1972); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976).
  6. See, e.g., Associated Press v. United States, 326 U.S. 1, 20 (1945) (The First Amendment "rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public.").
  7. Lovell v. City of Griffin, Ga., 303 U.S. 444, 452 (1938).
  8. Miller v. California, 413 U.S. 15 (1973).
  9. Brandenburg v. Ohio, 395 U.S. 444 (1969).
  10. Virginia v. Black, 538 U.S. 343 (2003).
  11. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
  12. This is known in constitutional law as the “public function” prong of the “state action” doctrine. See Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1980).
  13. This is known in constitutional law as the “nexus” prong of the “state action” doctrine. See Rendell-Baker v. Kohn, 457 U.S. 830 (1982); Lugar v. Edmonson Oil Co., 457 U.S. 922 (1982); Blum v. Yaretsky, 457 U.S. 991 (1982); cf. Catherine J. Ross, Anything Goes: Examining the State’s Interest in Protecting Children from Controversial Speech, 53 Vand. L. Rev. 427, 491–93 (2000) (noting that parental concern over objectionable media products has led some national retail stores to refuse to stock such products or to require an edited version).
  14. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).
  15. See, e.g., Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 65 (1981) (declaring, in a case striking down a municipal ordinance prohibiting nude dancing, that “[e]ntertainment, as well as political and ideological speech, is protected; motion pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works fall within the First Amendment guarantee.”).
  16. Compare Rothner v. City of Chicago, 929 F.2d 297 (7th Cir. 1991) (indicating that First Amendment protection of electronic games may depend on creative content), with Malden Amusement Co. v. City of Malden, 582 F. Supp. 297 (D. Mass. 1983) (holding that videogames are not entitled to First Amendment protection because they do not contain expressive or informational content), and America’s Best Family Showplace Corp. v. City of New York, 536 F. Supp. 170 (E.D.N.Y. 1982) (same). In deciding an appeal of a motion to dismiss, the Seventh Circuit in Rothner developed an approach that considers the extent to which the electronic game at issue contains artistic content:
    On the basis of the complaint alone, we cannot tell whether the video games at issue here are simply modern day pinball machines or whether they are more sophisticated presentations involving storyline and plot that convey to the user a significant artistic message protected by the first amendment. Nor is it clear whether these games may be considered works of art. To hold on this record that all video games — no matter what their content — are completely devoid of artistic value would require us to make an assumption entirely unsupported by the record and perhaps totally at odds with reality. As the Supreme Court has confessed its inability to comprehend fully the technology of the cablevision industry on the basis of a complaint, so we must confess an inability to comprehend fully the video game of the 1990s.

    Rothner, 929 F.2d at 303. Given the substantial innovations in the current generation of electronic games, including their use of movie clips, music, animation, and the development of plot and character, however, some commentators predict that many courts will eventually accord the same protection to electronic games as to other types of entertainment media. See David B. Goroff, The First Amendment Side Effects of Curing Pac-Man Fever, 84 Colum. L. Rev. 744, 752–53, 764 (1984); Matthew Hamilton, Graphic Violence in Computer and Video Games: Is Legislation the Answer?, 100 Dick. L. Rev. 181, 190 (1995).

  17. See, e.g., Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 456 (1978) (Constitution affords “commercial speech a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values....”).
  18. See Brandenburg v. Ohio, 395 U.S. 444 (1969). The Brandenburg Court’s “incitement” decision requires proof of incitement to imminent and immediate lawless action. Id. at 447. In a law review article discussing proposals to regulate violence on television, Judge Harry Edwards of the U.S. Court of Appeals for the District of Columbia Circuit explained that the incitement element would be difficult for the government to prove:
    It is apparent that the incitement element of the Brandenburg test, alone, fails to capture government regulation of television violence. Simply put, the violent fare on television does not explicitly urge viewers to commit the evils with which the legislature may be concerned. Nor can such intent reasonably be attributed to television executives and producers. Largely for this reason, courts and commentators have concluded with near unanimity that televised portrayals of violence are not “directed to inciting or producing imminent lawless action.

    Harry T. Edwards & Mitchell N. Berman, Regulating Violence on Television, 89 Nw. U. L. Rev. 1487, 1526 (1995); cf. James v. Meow Media, Inc., 90 F. Supp. 2d 798 (W.D. Ky. 2000) (granting defendant’s motion to dismiss tort claims because plaintiff failed to prove that defendant’s actions, creation and distribution of a movie, games, and Internet materials, caused death of plaintiff’s daughter). Judge Edwards suggested, however, that if television producers aired material intended to incite or produce violent behavior, the “mere fact of its being telecast would not immunize the programming from regulation under Brandenburg.Edwards & Berman, at 1526 n.186.

  19. See Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). Chaplinsky’s “fighting words” doctrine has been used only rarely, and has been limited to personally directed insults or taunts that tend to provoke immediate violent reaction. See Gooding v. Wilson, 405 U.S. 518, 524 (1972) (limiting “fighting words” doctrine); Cohen v. California, 403 U.S. 15, 20 (1971) (same); Dawn Christine Egan, "'Fighting Words' Doctrine: Are Police Officers Held to a Higher Standard, or per Bailey v. State, Do We Expect No More from our Law Enforcement Officers than We Do from the Average Arkansan?," 52 Ark. L. Rev. 591, 591–92 (1998) (noting that the Supreme Court has not upheld a conviction based on the “fighting words” doctrine since Chaplinsky). Because movies, music recordings, and electronic games are not explicitly directed at an individual person, most observers agree that the Chaplinsky doctrine is not relevant to the current public debate over violent entertainment media. See E. Barret Prettyman, Jr. & Lisa A. Hook, The Control Of Media-Related Imitative Violence, 38 Fed. Comm. L.J. 317, 372 n.228 (1987); but see Sanjiv N. Singh, Cyberspace: A New Frontier for Fighting Words, 25 Rutgers Computer & Tech. L.J. 283 (1999) (arguing that the “fighting words” doctrine could find a new life in cyberspace).
  20. See Miller v. California, 413 U.S. 15 (1973).
  21. Sable Commns. of Cal. v. Federal Commns. Comm'n, 492 U.S. 115, 126 (1989).
  22. See Haig v. Agee, 453 U.S. 280 (1981) (“It is ‘obvious and unarguable’ that no governmental interest is more compelling than the security of the Nation.”)(citing Aptheker v. Secretary of State, 378 U.S. 500, 509; accord Cole v. Young, 351 U.S. 536, 546 (1956)).
  23. See Schenck v. United States, 249 U.S. 47 (1919) (formulating “clear and present danger” test).
  24. Brandenburg v. Ohio, 395 U.S. 444 (1969).
  25. Near v. Minnesota, 283 U.S. 697, 716 (1931) (“No one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops.”).
  26. “National Security” is defined as national defense and foreign relations. See Exec. Order No. 13526, 75 Fed. Reg. 707 §6.1(cc) (Jan. 5, 2010).
  27. See, e.g., New York Times Co. v. United States, 403 U.S. 713, 725 (1971) (Brennan, J., concurring) (rejecting as insufficient government’s assertions that publication of Pentagon Papers “could,” “might,” or “may” prejudice the national interest); Elrod v. Burns, 427 U.S. 347, 362 (1976) (“The interest advanced must be paramount, one of vital importance, and the burden is on the government to show the existence of such an interest.”) (citing Buckley v. Valeo, 424 U.S. 1, 94 (1976); Williams v. Rhodes, 393 U.S. 23, 31-33 (1968); NAACP v. Button, 371 U.S. 38, 45 (1963); Bates v. Little Rock, 361 U.S. 516, 524 (1960); NAACP v. Alabama, 357 U.S. 449, 464-66 (1958); Thomas v. Collins, 323 U.S. 516, 530 (1945)).
  28. Bartnicki v. Vopper, 532 U.S. 514, 527 (2001) (citing Smith v. Daily Mail Publishing Co., 443 U.S. 97 (1979)).
  29. Mills v. Alabama, 384 U.S. 214, 218 (1966). Because of the First Amendment purpose to protect the public’s ability to discuss governmental affairs along with court decisions denying that it provides any special rights to journalists, e.g., Branzburg v. Hayes, 408 U.S. 665 (1972), it is not likely a plausible argument to posit that it does not apply to the foreign press. See United States v. 18 Packages of Magazines, 238 F. Supp. 846, 847-48 (C.D. Cal. 1964) (“Even if it be conceded, arguendo, that the ‘foreign press’ is not a direct beneficiary of the Amendment, the concession gains nought for the Government in this case. The First Amendment does protect the public of this country. . . . The First Amendment surely was designed to protect the rights of readers and distributors of publications no less than those of writers or printers. Indeed, the essence of the First Amendment right to freedom of the press is not so much the right to print as it is the right to read. The rights of readers are not to be curtailed because of the geographical origin of printed materials.”). The Supreme Court has not established clear boundaries between the protection of speech and that of the press, nor has it sought to develop criteria for identifying what constitutes “the press” that might qualify its members for privileges not available to anyone else.
  30. See Dennis v United States, 341 U.S. 494 (1951).
  31. 315 U.S. 568 (1942).
  32. 413 U.S. 15 (1973).
  33. 376 U.S. 254 (1964).
  34. See generally P. Cameron DeVore, Advertising and Commercial Speech, 582 Practising L. Inst. 715 (Nov. 1999).
  35. Central Hudson Gas & Elec. Corp. v. Public Service Comm’n of New York, 447 U.S. 557, 561 (1980).
  36. Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976) (quoting Pittsburgh Press Co. v. Human Relations Comm’n, 413 U.S. 376, 385 (1973)).
  37. See Reno v. ACLU, 521 U.S. 844 (1997); Central Hudson, 447 U.S. 557.
  38. See United States v. Playboy Entertainment Group, 529 U.S. 803 (2000).
  39. Id.
  40. The exact degree of protection accorded to commercial speech is in flux. Although the Supreme Court has adhered to the “intermediate scrutiny” standard, several Justices have suggested that the distinction between the two types of speech should be narrowed, and that “truthful, noncoercive” commercial speech about lawful activities should receive the same degree of constitutional protection, i.e., strict scrutiny, as non-commercial speech. See 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). In 44 Liquormart, at least four Justices suggested that truthful, non-misleading commercial speech should receive the same First Amendment protection as non-commercial speech. Id. at 500, 504 (Stevens, Kennedy, Souter, & Ginsburg, JJ., plurality opinion), while Justice Thomas advocated for the elimination of the distinction between commercial and non-commercial speech. Id. at 522 (Thomas, J., concurring in part, and concurring in the judgment).
  41. Cf. Robert Adler, Here’s Smoking at You Kid: Has Tobacco Product Placement in the Movies Really Stopped?, 60 Mont. L. Rev. 243, 275 (1999).
  42. Those who argue in favor of full constitutional protection for advertising and marketing activities for entertainment media products rely on the Supreme Court’s dicta in a case involving advertising for contraceptives, which suggested that strict scrutiny “may be appropriate in a case where [a company] advertises an activity itself protected by the First Amendment.” Bolger v. Youngs Drug Product, 463 U.S. 60, 67 n.14 (1983).
  43. See Lewis v. Columbia Pictures Indus., 1994 WL 758666 (Cal. Ct. App. Nov. 8, 1994); see also Lane v. Random House, Inc., 985 F. Supp. 141, 152 (D.D.C. 1995).
  44. Compare Lacoff v. Buena Vista Publishing, 183 Misc.2d 600, 705 N.Y.S.2d 183 (N.Y. Sup. Ct. Jan. 28, 2000) (book cover and flyleaf for Beardstown Ladies’ Common-Sense Investment Guide is not “advertising material” evaluated under commercial speech doctrine, but non-commercial speech fully protected by First Amendment), with Keimer v. Buena Vista Books, Inc., 75 Cal.App.4th 1220, 89 Cal. Rptr. 2d 781 (1999) (book cover and flyleaf containing allegedly false statements about investment returns constituted commercial speech entitled only to “qualified” free speech protection).
  45. Greater New Orleans Broadcasting Ass’n v. United States, 527 U. S. 173, 182 (1999) (noting that 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), “rejected the argument that the power to restrict speech about certain socially harmful activities was as broad as the power to prohibit such conduct.”)
  46. United States v. Edge Broadcasting Co. 509 U.S. 418 (1993).
  47. Greater New Orleans Broadcasting Ass’n, Inc. v. United States, 527 U.S. 173 (1999). Greater New Orleans adopted the "Central Hudson" test: “At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.” Id. at 183.
  48. “The operation of [18 U.S.C. §]1304 and its attendant regulatory regime is so pierced by exemptions and inconsistencies that the Government cannot hope to exonerate it.” Greater New Orleans Broadcasting, 527 U.S. at 190.
  49. 408 U.S. 665 (1972).
  50. ’’Id.’’ at 681.
  51. Pen v. Procunier, 417 U.S. 817 (1974); Saxbe v. Washington Post Co., 417 U.S. 843 (1974); ‘’cf.’’ Houchins v. KQED, 438 U.S. 1 (1978). ‘’See also’’ Rita Ann Reimer, Legal and Constitutional Issues Involved in Mediasat Activities 6-8 (Congressional Research Service 1987) (Report No. 86-823A).
  52. Flynt v. Weinberger, 588 F. Supp. 57,61 (D.D.C. 1984), ‘’aff’d (on the basis of mootness),’’ 762 F.2d 134 (D.C. Cir. 1985).
  53. See, e.g., Frisby v. Schultz, 487 U.S. 474 (1988) (using privacy rationale in approving governmentally-imposed limits on picketing of home).
  54. See, e.g., Florida Star v. B. J. F., 491 U.S. 524 (1989)(newspaper could not be liable for violating state privacy statute when it published the name of a rape victim that it had lawfully obtained through public sources).
  55. See United States v. U.S. District Court, 407 U.S. 297, 314 (1972) (“The price of lawful public dissent must not be a dread of subjection to an unchecked surveillance power. Nor must the fear of unauthorized official eavesdropping deter vigorous citizen dissent and discussion of Government action in private conversation. For private dissent, no less than open public discourse, is essential to our free society.”).
  56. See, e.g., 50 U.S.C. §1842(c).
  57. See, e.g., Office of the Inspector General, Department of Justice, A Review of the FBI's Use of Section 215 Orders for Business Records in 2006, at 5 (Mar. 2008).[1] (expressing concern that the FBI had issued a national security letter after the FISA court had twice declined to grant an order for the same material due to First Amendment objections).
  58. 460 U.S. 37 (1983).

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