Speech

Amendment I.

Congress shall make no law . . . 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.

Current Issues

Informed Consent and Compelled Speech (also posted under Fundamental Rights).  On June 27, 2008, a divided en banc panel of the Eighth Circuit vacated a lower court's preliminary injunction against South Dakota's informed consent law.  The act requires physicians to provide a written statement to women seeking an abortion that says that "the abortion will terminate the life of a whole, separate, unique living being" and (cryptically) that "by having an abortion, [the woman's] existing relationship [with the fetus] and her existing constitutional rights with regards to that relationship will be terminated."  The act defines "human being" as "an individual living member of the species Homo sapiens, including the unborn human being during the entire embryonic and fetal ages from fertilization to full gestation."  The majority ruled that the plaintiffs failed to show that they were likely to prevail on their First Amendment compelled speech claim (heightening the circuit standard for preliminary injunction in the process).  The lengthy dissent addresses the First Amendment claim and substantive due process.  Read the edited opinion here.

Campaign Finance and the "Millionaire's Amendment."  The U.S. Supreme Court overturned a federal campaign finance provision that increased contribution caps for opponents of self-funded candidates in federal elections.  The Court held that the provision--designed to level the financial playing field between self-funded candidates and their opponents--"impermissibly burdens [a self-funded candidate's] First Amendment right," by allowing greater contributions to a non-self-funded candidate.  Read the edited opinion here.

Same Sex Marriage v. Religious Liberties (also posted under Religion Clauses).  National Public Radio reported on June 26, 2008, on a coming "collision" between equal treatment of same-sex couples and freedom to exercise religious beliefs.  The story focuses on the Ocean Grove Camp Meeting Association's denial to a same-sex couple of the use of its pavillion for a civil union.  (Ocean Grove Camp Meeting Association is a Methodist organization.)  The New Jersey Division on Civil Rights ruled against the Association, distinguishing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc. and Boy Scouts of America v. Dale.

School District Advocacy as Government Speech.  The Fourth Circuit ruled on June 23, 2008, that a school district's public opposition on the district's website to pending state legislation was government speech, that the district's website and e-mail system were not limited public forums, and that a district resident was not entitled to access to a PTA newsletter to express his viewpoint.  Read the edited opinion here.

Monuments in Public Parks.  The U.S. Supreme Court agreed to review a Tenth Circuit ruling that a city's content-based restrictions on monuments in a public park ran afoul of the First Amendment speech clause.  The Tenth Circuit held that a public park in Pleasant Grove City was a traditional public forum, and that the city's rejection of a privately donated Summum monument--even as the city previously permitted a privately donated Ten Commandments monument--failed under strict scrutiny.  A fractured bench denied review en banc, with three judges penning a dissent and one judge writing a concurrence.  (One of the dissenters argued that the city created only a limited public forum, and that its denial satisfied the viewpoint neutrality test; two dissenters argued that the monuments amounted to government speech.)  Are monuments in a public park a public forum, a limited public forum, government speech, or something else?  Click here for an edited version of the Tenth Circuit opinion and the dissents and concurrence on en banc review.  Click here for a thoughtful amicus brief filed by the International Municipal Lawyers Association (and authored by Professor Mary Jean Dolan of the John Marshall Law School); the brief addresses some of the practical problems with the Tenth Circuit approach for city and municipal governments.  The Court will take up the case in its October 2008 term, but it is not yet set for oral argument.

Child Pornography.  The U.S. Supreme Court on May 19, 2008, Congress' latest effort to outlaw child pornography (and material believed to be child pornography).  In United States v. Williams, the Court upheld the Prosecutorial Remedies and Other Tools to end the Exploitation of Children Today Act of 2003 against First Amendment speech, overbreadth, and vagueness challenges.  The Act prohibits knowingly pandering sexually explicit material or purported material in a manner that reflects the belief, or is intended to cause another to believe, that the material or purported material is, or contains," a minor.  Does this sound like the Court is backtracking from Free Speech Coalition?  Read how the majority squares its ruling with Free Speech Coalition in the edited opinion here.