The competing right under Roe v. Wade of women’s access to abortion clinics
must be balanced against the First Amendment rights of abortion protesters.
Academic freedom is a First Amendment principle that teachers, students and
educational institutions should be able to pursue knowledge without
government interference.
Although the First Amendment doesn’t mention freedom of access to
courtrooms, the Supreme Court has held that the public right to attend
criminal proceedings is implied.
Actual malice is the legal standard the Supreme Court uses to protect the
media in libel cases in determining when public officials or figures may
win damages in lawsuits.
In First Amendment law, ad hoc balancing involves judging cases on their
unique facts, rejecting formulaic tests to determine whether speech is
protected or not.
Mere advocacy of illegal conduct was not protected by the First Amendment
until Brandenburg v. Ohio (1969), which created the incitement to imminent
lawless action test.
Two Supreme Court cases involving affirmative action relied in part on the
First Amendment to protect a university’s admission rights and to uphold
use of racial preferences.
Alcohol advertising is protected under the First Amendment as long as it
does not promote unlawful activity and is not misleading, but it can be
regulated.
Although the First Amendment to the U.S. Constitution makes no distinction
between citizens and noncitizens, the Court has not always treated these
groups the same.
The Supreme Court has protected anonymity under the First Amendment, but it
has balanced this protection against competing interests, notably in the
area of political activity.
Artistic expression has historically been subject to some measure of
censorship in the United States. The First Amendment provides significant
protection to artistic expression.
Bar regulators attempt to protect the public from misleading attorney ads
while ensuring that attorneys retain a measure of First Amendment free
expression protection.
Lawyers do not forfeit all of their free-speech rights as members of a
profession, but their speech rights are limited in many ways. Rules of
professional conduct adopted by the supreme courts in each state, for
example, prohibit lawyers from making false statements about judges,
writing legal papers that are deemed “frivolous,” engaging in speech that
disrupts the tribunal or engaging in direct, face-to-face solicitation of
prospective clients, with a few exceptions.
Whether judges can prohibit attorneys from wearing pins or symbols with a
political message in a courtroom is an unsettled First Amendment issue
highlighted recently in Las Vegas.
The bad tendency test became the most influential standard used by courts
to determine whether criticism of the government during World War I was
protected by the First Amendment.
Ballot access refers to procedures regulating how candidates will be
presented to voters in elections. Ballot access continues to be the subject
of First Amendment debate.
Ballot selfies refer to photos people take of their voting ballots and then display on social media or elsewhere. Many states have sought to regulate or outright prohibit the display of ballot selfies, thus presenting a pristine First Amendment issue. States that prohibit ballot selfies argue that ballot selfies could lead to the buying and selling
The bar admission process has produced many First Amendment-based
challenges, especially when an applicant is denied because of past
political associations or beliefs.
Regulation of billboards raises many First Amendment issues such as to what
extent can the government limit access to public billboards or prohibit
privately owned billboards?
Birth control is a way by which pregnancy from sexual intercourse can be
prevented. Communication about birth control has not always received First
Amendment protection.
Black Lives Matter is a protest movement to call attention to police
treatment of Black Americans. Response to protests have sometimes led to a
chilling effect on First Amendment freedoms.
In the 1940s-’50s, a blacklist named people whose opinions or associations
were deemed Communist. Opponents said blacklists and HUAC hearings violated
free expression.
Book banning, the most widespread form of censorship, occurs when books are
pulled from libraries, school reading lists, or bookstores because someone
objects to their content.
Courts have recognized boycotts as having First Amendment protection as
long as their goals are to influence political reform rather than economic
gain.
Courts have ruled that the First Amendment protects bumper stickers even
when they are profane. This protection is less certain for public employees
and military personnel.
Allowing cameras in courtrooms has stirred controversy and led to Supreme
Court decisions in First Amendment cases. The Court has allowed states to
experiment with this issue.
Courts having ruled that college campus speech codes violate students’
First Amendment rights, but arguments that colleges have a legitimate
interest in such regulations continue.
The captive audience doctrine protects people in certain places and
circumstances from unwanted speech. It is an exception to the First
Amendment rule.
Censorship occurs when individuals or groups try to prevent others from
expressing themselves. Government censorship violates the freedoms of
speech and of the press.
The Supreme Court developed the Central Hudson test for determining when
government could limit commercial speech without violating the First
Amendment.
While laws aimed at curbing solicitations by charities have been overturned
on First Amendment grounds, charities can be required to disclose how their
money is spent.
The Supreme Court has ruled some laws outlawing child pornography and
children’s access to obscene materials were too broad and infringed upon
First Amendment rights.
Chilling effect is the concept of deterring First Amendment free speech and
association rights through laws or regulations that appear to target
expression.
The Supreme Court in 1971 ruled that the government cannot restrain in
advance the press from publishing classified documents under the First
Amendment.
In the 20th century, the Supreme Court established the clear and present
danger test as the predominate standard for determining when speech is
protected by the First Amendment.
Commercial speech is a form of protected communication under the First
Amendment, but it does not receive as much free speech protection as forms
of noncommercial speech.
In 1973, the Supreme Court said that community standards must be taken into
account in determining whether something was obscene or could be protected
by the First Amendment.
The Supreme Court, while allowing the removal of the Confederate flag to
stop disruption, has declined to find that flag infringes upon the rights
of those who find it repugnant.
Government entities have grappled with whether to remove Confederate
monuments from public grounds. Individuals have the First Amendment right
to keep statues on private property.
Some courts recognize a reporters’ privilege to not reveal confidential
sources as a First Amendment right, but each jurisdiction varies in the
level of protection.
The Court has ruled that some laws passed by Congress violate the First
Amendment. Some congressional investigations have raised questions about
the right of association.
Cold War-era congressional investigations led to the Court recognizing the
First Amendment right of an individual to refuse to answer questions about
past associations.
Civil contempt of court can be fixed by obeying court orders. Criminal
contempt involves violating the dignity of the court and is more likely to
raise First Amendment issues.
A content-based law discriminates against speech based on the substance of
what is communicated. In contrast, a content-neutral law applies without
regard to its substance.
In First Amendment free speech cases, laws that are content neutral apply
to all expression without regard to any particular message or substance.
The Supreme Court has acknowledged the compatibility of copyright and First
Amendment free expression, but tension does exist as owners often seek to
limit dissemination.
Can the government restrict gatherings, including church services, during
the coronavirus outbreak or is that a violation of the First Amendment
religious freedom and assembly clauses? The government has broad powers
during a health crisis. As long as restrictions apply equally, and not
single out churches, courts would likely uphold them.
Corporate speech refers to the rights of corporations to advertise their
products and to speak to matters of public concern, including by spending
money in elections.
The counterspeech doctrine, first articulated by Louis Brandeis in First
Amendment jurisprudence in 1927, posits that the remedy for false speech is
more speech that is true.
In the United States, courts have based decisions regarding slanderous or
libelous statements on the First Amendment rights of free speech and
freedom of the press.
Cross burning, which has been used as a form of intimidation against
African Americans and Jews, has been defended in the courts on free speech
grounds.
Cyberbullying, bullying through electronic means, presents First Amendment
issues when statutes criminalizing cyberbullying are overly broad or vague.
Cybersquatting is considered to be abusive registration of domain names to
appropriate a trademark. Cybersquatters may claim a First Amendment right
to expression.
Defamation lawsuits can have a chilling effect on free speech. The Supreme
Court first applied First Amendment protection from state libel laws in
1964 in New York Times v. Sullivan, establishing an actual malice standard
that had to be met by public officials.
The government mandates advertising disclaimers to protect consumers, but
they often present a First Amendment issue. Some say forced disclaimers are
a form of compelled speech.
Individuals and organizations that act in a political forum are subject to
disclosure requirements. Some say such laws impinge on First Amendment
freedoms.
Fighting foreign disinformation operations in America collided with fear of
government control of information in the Department of Homeland Security’s
short-lived Disinformation Governance Board.
Several state legislators passed laws in 2021 and 2022 limiting the
discussion of race in public schools, raising questions about free speech
and academic freedom.
Door-to-door solicitation by political parties, religious groups, and
businesses can lead to clashes between First Amendment freedoms and
homeowners’ privacy rights.