text
stringlengths 1
17k
|
|---|
In the first of these cases Socialist Party of America official Charles Schenck had been convicted under the Espionage Act for publishing leaflets urging resistance to the draft Schenck appealed arguing that the Espionage Act violated the Free Speech Clause of the First Amendment In Schenck v United States the Supreme Court unanimously rejected Schenck s appeal and affirmed his conviction This conviction continued to be debated over whether Schenck went against the right to freedom of speech protected by the First Amendment Justice Oliver Wendell Holmes Jr writing for the Court explained that 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 One week later in Frohwerk v United States the court again upheld an Espionage Act conviction this time that of a journalist who had criticized US involvement in foreign wars |
In Debs v United States the Court elaborated on the clear and present danger test established in Schenck On June 16 1918 Eugene V Debs a political activist delivered a speech in Canton Ohio in which he spoke of most loyal comrades were paying the penalty to the working class these being Wagenknecht Baker and Ruthenberg who had been convicted of aiding and abetting another in failing to register for the draft Following his speech Debs was charged and convicted under the Espionage Act In upholding his conviction the Court reasoned that although he had not spoken any words that posed a clear and present danger taken in context the speech had a natural tendency and a probable effect to obstruct the recruiting services In Abrams v United States four Russian refugees appealed their conviction for throwing leaflets from a building in New York the leaflets argued against President Woodrow Wilson s intervention in Russia against the October Revolution The majority upheld their conviction but Holmes and Justice Louis Brandeis dissented holding that the government had demonstrated no clear and present danger in the four s political advocacy |
The Supreme Court denied a number of Free Speech Clause claims throughout the 1920s including the appeal of a labor organizer Benjamin Gitlow who had been convicted after distributing a manifesto calling for a revolutionary dictatorship of the proletariat In Gitlow v New York 1925 the Court upheld the conviction but a majority also found that the First Amendment applied to state laws as well as federal laws via the Due Process Clause of the Fourteenth Amendment Holmes and Brandeis dissented in several more cases in this decade however advancing the argument that the Free Speech Clause protected a far greater range of political speech than the Court had previously acknowledged In Whitney v California 1927 in which Communist Party USA organizer Charlotte Anita Whitney had been arrested for criminal syndicalism Brandeis wrote a dissent in which he argued for broader protections for political speech |
Those who won our independence believed that freedom to think as you will and to speak as you think are means indispensable to the discovery and spread of political truth that without free speech and assembly discussion would be futile that with them discussion affords ordinarily adequate protection against the dissemination of noxious doctrine that the greatest menace to freedom is an inert people that public discussion is a political duty and that this should be a fundamental principle of the American government |
In Herndon v Lowry 1937 the Court heard the case of African American Communist Party organizer Angelo Herndon who had been convicted under the Slave Insurrection Statute for advocating black rule in the southern United States In a 5 4 decision the Court reversed Herndon s conviction holding that Georgia had failed to demonstrate that there was any clear and present danger in Herndon s political advocacy |
In 1940 Congress enacted the Smith Act making it illegal to advocate the propriety of overthrowing or destroying any government in the United States by force and violence The statute provided law enforcement a tool to combat Communist leaders Eugene Dennis was convicted in the Foley Square trial for attempting to organize a Communist Party In Dennis v United States 1951 the Court upheld the law 6 2 Chief Justice Fred M Vinson relied on Holmes clear and present danger test as adapted by Learned Hand In each case courts must ask whether the gravity of the evil discounted by its improbability justifies such invasion of free speech as necessary to avoid the danger Clearly Vinson suggested clear and present danger did not intimate that before the Government may act it must wait until the putsch is about to be executed the plans have been laid and the signal is awaited In a concurring opinion Justice Felix Frankfurter proposed a balancing test which soon supplanted the clear and present danger test |
The demands of free speech in a democratic society as well as the interest in national security are better served by candid and informed weighing of the competing interests within the confines of the judicial process |
In Yates v United States 1957 the Supreme Court limited the Smith Act prosecutions to advocacy of action rather than advocacy in the realm of ideas Advocacy of abstract doctrine remained protected while speech explicitly inciting the forcible overthrow of the government was punishable under the Smith Act |
During the Vietnam War the Court s position on public criticism of the government changed drastically Though the Court upheld a law prohibiting the forgery mutilation or destruction of draft cards in United States v OBrien 1968 fearing that burning draft cards would interfere with the smooth and efficient functioning of the draft system the next year the court handed down its decision in Brandenburg v Ohio 1969 expressly overruling Whitney v California Now the Supreme Court referred to the right to speak openly of violent action and revolution in broad terms |
Our decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not allow a State to forbid or proscribe advocacy of the use of force or law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or cause such action |
Brandenburg discarded the clear and present danger test introduced in Schenck and further eroded Dennis In Cohen v California 1971 the Court voted 5 4 to reverse the conviction of a man wearing a jacket reading Fuck the Draft in the corridors of a Los Angeles County courthouse Justice John Marshall Harlan II wrote in the majority opinion that Cohen s jacket fell in the category of protected political speech despite the use of an expletive one man s vulgarity is another man s lyric |
In Talley v California 1960 the Court struck down a Los Angeles city ordinance that made it a crime to distribute anonymous pamphlets Justice Hugo Black wrote in the majority opinion There can be no doubt that such an identification requirement would tend to restrict freedom to distribute information and thereby freedom of expression Anonymous pamphlets leaflets brochures and even books have played an important role in the progress of mankind In McIntyre v Ohio Elections Commission 1995 the Court struck down an Ohio statute that made it a crime to distribute anonymous campaign literature However in Meese v Keene 1987 the Court upheld the Foreign Agents Registration Act of 1938 under which several Canadian films were defined as political propaganda requiring their sponsors to be identified |
In Buckley v Valeo 1976 the Supreme Court reviewed the Federal Election Campaign Act of 1971 and related laws which restricted the monetary contributions that may be made to political campaigns and expenditure by candidates The Court affirmed the constitutionality of limits on campaign contributions stating that they serve d the basic governmental interest in safeguarding the integrity of the electoral process without directly impinging upon the rights of individual citizens and candidates to engage in political debate and discussion However the Court overturned the spending limits which it found imposed substantial restraints on the quantity of political speech |
The court again scrutinized campaign finance regulation in McConnell v Federal Election Commission 2003 The case centered on the Bipartisan Campaign Reform Act of 2002 BCRA a federal law that imposed new restrictions on campaign financing The Supreme Court upheld provisions which barred the raising of soft money by national parties and the use of soft money by private organizations to fund certain advertisements related to elections However the Court struck down the choice of expenditure rule which required that parties could either make coordinated expenditures for all its candidates or permit candidates to spend independently but not both which the Court agreed placed an unconstitutional burden on the parties right to make unlimited independent expenditures The Court also ruled that the provision preventing minors from making political contributions was unconstitutional relying on Tinker v Des Moines Independent Community School District |
In Federal Election Commission v Wisconsin Right to Life Inc 2007 the Court sustained an as applied challenge to BCRA holding that issue ads may not be banned from the months preceding a primary or general election In Davis v Federal Election Commission 2008 the Supreme Court declared the Millionaire s Amendment provisions of the BCRA to be unconstitutional The Court held that easing BCRA restrictions for an opponent of a self financing candidate spending at least 350000 of his or her own money violated the freedom of speech of the self financing candidate |
In Citizens United v Federal Election Commission 2010 the Court ruled that the BCRA s federal restrictions on electoral advocacy by corporations or unions were unconstitutional for violating the Free Speech Clause of the First Amendment The Court overruled Austin v Michigan Chamber of Commerce 1990 which had upheld a state law that prohibited corporations from using treasury funds to support or oppose candidates in elections did not violate the First or Fourteenth Amendments The Court also overruled the portion of McConnell that upheld such restrictions under the BCRA In other words the ruling was considered to hold that political spending is a form of protected speech under the First Amendment |
In McCutcheon v Federal Election Commission 2014 the Court ruled that federal aggregate limits on how much a person can donate to candidates political parties and political action committees combined respectively in a two year period known as an election cycle violated the Free Speech Clause of the First Amendment |
The divisive issue of flag desecration as a form of protest first came before the Supreme Court in Street v New York 1969 In response to hearing an erroneous report of the murder of civil rights activist James Meredith Sidney Street burned a 48 star US flag Street was arrested and charged with a New York state law making it a crime publicly to mutilate deface defile or defy trample upon or cast contempt upon either by words or act any flag of the United States In a 5 4 decision the Court relying on Stromberg v California 1931 found that because the provision of the New York law criminalizing words against the flag was unconstitutional and the trial did not sufficiently demonstrate that he was convicted solely under the provisions not yet deemed unconstitutional the conviction was unconstitutional The Court however resist ed the pulls to decide the constitutional issues involved in this case on a broader basis and left the constitutionality of flag burning unaddressed |
The ambiguity with regard to flag burning statutes was eliminated in Texas v Johnson 1989 In that case Gregory Lee Johnson burned an American flag at a demonstration during the 1984 Republican National Convention in Dallas Texas Charged with violating a Texas law prohibiting the vandalizing of venerated objects Johnson was convicted sentenced to one year in prison and fined 2000 The Supreme Court reversed his conviction in a 5 4 vote Justice William J Brennan Jr wrote in the decision that if there is a bedrock principle underlying the First Amendment it is that government may not prohibit the expression of an idea simply because society finds the idea offensive or disagreeable Congress then passed a federal law barring flag burning but the Supreme Court struck it down as well in United States v Eichman 1990 A Flag Desecration Amendment to the US Constitution has been proposed repeatedly in Congress since 1989 and in 2006 failed to pass the Senate by a single vote |
While the unauthorized wear or sale of the Medal of Honor has been a punishable offense under federal law since the early 20th century the Stolen Valor Act criminalized the act of not only wearing but also verbally claiming entitlement to military awards that a person did not in fact earn In United States v Alvarez 2012 the Supreme Court struck down the Act ruling that the First Amendment bars the government from punishing people for making false claims regarding military service or honors where the false claim was not made to effect a fraud or secure moneys or other valuable considerations The decision was a 6 3 ruling but the six justices in the majority could not agree on a single rationale for it |
The Supreme Court has determined that the First Amendment also protects citizens from being compelled to say or pay for certain speech |
In West Virginia State Board of Education v Barnette 1943 the Court ruled that school children could not be punished for refusing either to say the pledge of allegiance or salute the American flag |
In National Institute of Family and Life Advocates v Becerra 2018 the Court ruled that a California law that required crisis pregnancy centers to post notices informing patients that they can obtain free or low cost abortions and include the number of the state agency that can connect the women with abortion providers violated those centers right to free speech |
In Janus v AFSCME 2018 the Court ruled that requiring a public sector employee to pay dues to a union to which he is not a member violated the First Amendment According to the Court the First Amendment does not permit the government to compel a person to pay for another party s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay |
Commercial speech is speech done on behalf of a company or individual for the purpose of making a profit Unlike political speech the Supreme Court does not afford commercial speech full protection under the First Amendment To effectively distinguish commercial speech from other types of speech for purposes of litigation the Court uses a list of four indicia |
Alone each indicium does not compel the conclusion that an instance of speech is commercial however t he combination of all these characteristics provides strong support for the conclusion that the speech is properly characterized as commercial speech |
In Valentine v Chrestensen 1942 the Court upheld a New York City ordinance forbidding the distribution in the streets of commercial and business advertising matter Writing for a unanimous court Justice Owen Roberts explained |
This court has unequivocally held that streets are proper places for the exercise of the freedom of communicating information and disseminating opinion and that though the states and municipalities may appropriately regulate the privilege in the public interest they may not unduly burden or proscribe its employment in their public thoroughfares We are equally clear that the Constitution imposes no such restraint on government as respects purely commercial advertising |
In Virginia State Pharmacy Board v Virginia Citizens Consumer Council 1976 the Court overruled Valentine and ruled that commercial speech was entitled to First Amendment protection |
What is at issue is whether a State may completely suppress the dissemination of concededly truthful information about entirely lawful activity fearful of that information s effect upon its disseminators and its recipients W e conclude that the answer to this one is in the negative |
In Ohralik v Ohio State Bar Association 1978 the Court ruled that commercial speech was not protected by the First Amendment as much as other types of speech |
We have not discarded the common sense distinction between speech proposing a commercial transaction which occurs in an area traditionally subject to government regulation and other varieties of speech To require a parity of constitutional protection for commercial and noncommercial speech alike could invite a dilution simply by a leveling process of the force of the First Amendment s guarantee with respect to the latter kind of speech |
In Central Hudson Gas Electric Corp v Public Service Commission 1980 the Court clarified what analysis was required before the government could justify regulating commercial speech |
Six years later the US Supreme Court applying the Central Hudson standards in Posadas de Puerto Rico Associates v Tourism Company of Puerto Rico 1986 affirmed the Supreme Court of Puerto Rico s conclusion that Puerto Rico s Games of Chance Act of 1948 including the regulations thereunder was not facially unconstitutional The lax interpretation of Central Hudson adopted by Posadas was soon restricted under 44 Liquormart Inc v Rhode Island 1996 when the Court invalidated a Rhode Island law prohibiting the publication of liquor prices |
In Tinker v Des Moines Independent Community School District 1969 the Supreme Court extended free speech rights to students in school The case involved several students who were punished for wearing black armbands to protest the Vietnam War The Court ruled that the school could not restrict symbolic speech that did not materially and substantially interrupt school activities Justice Abe Fortas wrote |
First Amendment rights applied in light of the special characteristics of the school environment are available to teachers and students It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate S chools may not be enclaves of totalitarianism School officials do not possess absolute authority over their students Students are possessed of fundamental rights which the State must respect just as they themselves must respect their obligations to the State |
In Healy v James 1972 the Court ruled that Central Connecticut State College s refusal to recognize a campus chapter of Students for a Democratic Society was unconstitutional reaffirming Tinker |
However since 1969 the Court has also placed several limitations on Tinker interpretations In Bethel School District v Fraser 1986 the Court ruled that a student could be punished for his sexual innuendo laced speech before a school assembly and in Hazelwood v Kuhlmeier 1988 the Court found that schools need not tolerate student speech that is inconsistent with their basic educational mission In Morse v Frederick 2007 the Court ruled that schools could consistent with the First Amendment restrict student speech at school sponsored events even events away from school grounds if students promote illegal drug use |
In Packingham v North Carolina 2017 the Supreme Court held that a North Carolina law prohibiting registered sex offenders from accessing various websites impermissibly restricted lawful speech in violation of the First Amendment The Court held that a fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen and then after reflection speak and listen once more |
The federal government and the states have long been permitted to limit obscenity or pornography While the Supreme Court has generally refused to give obscenity any protection under the First Amendment pornography is subject to little regulation However the definitions of obscenity and pornography have changed over time |
In Rosen v United States 1896 the Supreme Court adopted the same obscenity standard as had been articulated in a famous British case Regina v Hicklin 1868 The Hicklin test defined material as obscene if it tended to deprave or corrupt those whose minds are open to such immoral influences and into whose hands a publication of this sort may fall In the early twentieth century literary works including An American Tragedy Theodore Dreiser 1925 and Lady Chatterley s Lover DH Lawrence 1928 were banned for obscenity In the federal district court case United States v One Book Called Ulysses 1933 Judge John M Woolsey established a new standard to evaluate James Joyce s novel Ulysses 1922 stating that works must be considered in their entirety rather than declared obscene on the basis of an individual part of the work |
The Supreme Court ruled in Roth v United States 1957 that the First Amendment did not protect obscenity It also ruled that the Hicklin test was inappropriate instead the Roth test for obscenity was whether to the average person applying contemporary community standards the dominant theme of the material taken as a whole appeals to the prurient interest This definition proved hard to apply however and in the following decade members of the Court often reviewed films individually in a court building screening room to determine if they should be considered obscene Justice Potter Stewart in Jacobellis v Ohio 1964 famously stated that although he could not precisely define pornography I know it when I see it |
The Roth test was expanded when the Court decided Miller v California 1973 Under the Miller test a work is obscene if |
a the average person applying contemporary community standards would find the work as a whole appeals to the prurient interest b the work depicts or describes in a patently offensive way sexual conduct specifically defined by the applicable state law and c the work taken as a whole lacks serious literary artistic political or scientific value |
Note that community standards not national standards are applied whether the material appeals to the prurient interest leaving the question of obscenity to local authorities Child pornography is not subject to the Miller test as the Supreme Court decided in New York v Ferber 1982 and Osborne v Ohio 1990 ruling that the government s interest in protecting children from abuse was paramount |
Personal possession of obscene material in the home may not be prohibited by law In Stanley v Georgia 1969 the Court ruled that i f the First Amendment means anything it means that a State has no business telling a man sitting in his own house what books he may read or what films he may watch However it is constitutionally permissible for the government to prevent the mailing or sale of obscene items though they may be viewed only in private Ashcroft v Free Speech Coalition 2002 further upheld these rights by invalidating the Child Pornography Prevention Act of 1996 holding that because the act p rohibit ed child pornography that does not depict an actual child it was overly broad and unconstitutional under the First Amendment and that |
First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end The right to think is the beginning of freedom and speech must be protected from the government because speech is the beginning of thought |
In United States v Williams 2008 the Court upheld the PROTECT Act of 2003 ruling that prohibiting offers to provide and requests to obtain child pornography did not violate the First Amendment even if a person charged under the Act did not possess child pornography |
In some states there are Son of Sam laws prohibiting convicted criminals from publishing memoirs for profit These laws were a response to offers to David Berkowitz to write memoirs about the murders he committed The Supreme Court struck down a law of this type in New York as a violation of the First Amendment in the case Simon Schuster v Crime Victims Board 1991 That statute did not prohibit publication of a memoir by a convicted criminal Instead it provided that all profits from the book were to be put in escrow for a time The interest from the escrow account was used to fund the New York State Crime Victims Board an organization that pays the medical and related bills of victims of crime Similar laws in other states remain unchallenged |
American tort liability for defamatory speech or publications traces its origins to English common law For the first two hundred years of American jurisprudence the basic substance of defamation law continued to resemble that existing in England at the time of the Revolution An 1898 American legal textbook on defamation provides definitions of libel and slander nearly identical to those given by William Blackstone and Edward Coke An action of slander required the following |
An action of libel required the same five general points as slander except that it specifically involved the publication of defamatory statements For certain criminal charges of libel such as seditious libel the truth or falsity of the statements was immaterial as such laws were intended to maintain public support of the government and true statements could damage this support even more than false ones Instead libel placed specific emphasis on the result of the publication Libelous publications tended to degrade and injure another person or bring him into contempt hatred or ridicule |
Concerns that defamation under common law might be incompatible with the new republican form of government caused early American courts to struggle between William Blackstone s argument that the punishment of dangerous or offensive writings was necessary for the preservation of peace and good order of government and religion the only solid foundations of civil liberty and the argument that the need for a free press guaranteed by the Constitution outweighed the fear of what might be written Consequently very few changes were made in the first two centuries after the ratification of the First Amendment |
The Supreme Court s ruling in New York Times Co v Sullivan 1964 fundamentally changed American defamation law The case redefined the type of malice needed to sustain a libel case Common law malice consisted of ill will or wickedness Now a public officials seeking to sustain a civil action against a tortfeasor needed to prove by clear and convincing evidence that there was actual malice The case involved an advertisement published in The New York Times indicating that officials in Montgomery Alabama had acted violently in suppressing the protests of African Americans during the civil rights movement The Montgomery Police Commissioner LB Sullivan sued the Times for libel stating that the advertisement damaged his reputation The Supreme Court unanimously reversed the 500000 judgment against the Times Justice Brennan suggested that public officials may sue for libel only if the publisher published the statements in question with actual malice knowledge that it was false or with reckless disregard of whether it was false or not In sum the court held that the First Amendment protects the publication of all statements even false ones about the conduct of public officials except when statements are made with actual malice with knowledge that they are false or in reckless disregard of their truth or falsity |
While actual malice standard applies to public officials and public figures in Philadelphia Newspapers v Hepps 1988 the Court found that with regard to private individuals the First Amendment does not necessarily force any change in at least some features of the common law landscape In Dun Bradstreet Inc v Greenmoss Builders Inc 1985 the Court ruled that actual malice need not be shown in cases involving private individuals holding that i n light of the reduced constitutional value of speech involving no matters of public concern the state interest adequately supports awards of presumed and punitive damages even absent a showing of actual malice In Gertz v Robert Welch Inc 1974 the Court ruled that a private individual had to prove actual malice only to be awarded punitive damages but not to seek actual damages In Hustler Magazine v Falwell 1988 the Court extended the actual malice standard to intentional infliction of emotional distress in a ruling which protected parody in this case a fake advertisement in Hustler suggesting that evangelist Jerry Falwell s first sexual experience had been with his mother in an outhouse Since Falwell was a public figure the Court ruled that importance of the free flow of ideas and opinions on matters of public interest and concern was the paramount concern and reversed the judgement Falwell had won against Hustler for emotional distress |
In Milkovich v Lorain Journal Co 1990 the Court ruled that the First Amendment offers no wholesale exception to defamation law for statements labeled opinion but instead that a statement must be provably false falsifiable before it can be the subject of a libel suit Nonetheless it has been argued that Milkovich and other cases effectively provide for an opinion privilege In consequence a significant number of states have enacted state opinion privilege laws |
State constitutions provide free speech protections similar to those of the US Constitution In a few states such as California a state constitution has been interpreted as providing more comprehensive protections than the First Amendment The Supreme Court has permitted states to extend such enhanced protections most notably in Pruneyard Shopping Center v Robins In that case the Court unanimously ruled that while the First Amendment may allow private property owners to prohibit trespass by political speakers and petition gatherers California was permitted to restrict property owners whose property is equivalent to a traditional public forum often shopping malls and grocery stores from enforcing their private property rights to exclude such individuals However the Court did maintain that shopping centers could impose reasonable restrictions on expressive activity Subsequently New Jersey Colorado Massachusetts and Puerto Rico courts have adopted the doctrine California s courts have repeatedly reaffirmed it |
The free speech and free press clauses have been interpreted as providing the same protection to speakers as to writers except for wireless broadcasting which has been given less constitutional protection The Free Press Clause protects the right of individuals to express themselves through publication and dissemination of information ideas and opinions without interference constraint or prosecution by the government This right was described in Branzburg v Hayes as a fundamental personal right that is not confined to newspapers and periodicals In Lovell v City of Griffin 1938 Chief Justice Charles Evans Hughes defined press as every sort of publication which affords a vehicle of information and opinion This right has been extended to media including newspapers books plays movies and video games While it is an open question whether people who blog or use social media are journalists entitled to protection by media shield laws they are protected equally by the Free Speech Clause and the Free Press Clause because both clauses do not distinguish between media businesses and nonprofessional speakers This is further shown by the Supreme Court consistently refusing to recognize the First Amendment as providing greater protection to the institutional media than to other speakers For example in a case involving campaign finance laws the Court rejected the suggestion that communication by corporate members of the institutional press is entitled to greater constitutional protection than the same communication by noninstitutional press businesses |
A landmark decision for press freedom came in Near v Minnesota 1931 in which the Supreme Court rejected prior restraint prepublication censorship In this case the Minnesota legislature passed a statute allowing courts to shut down malicious scandalous and defamatory newspapers allowing a defense of truth only in cases where the truth had been told with good motives and for justifiable ends In a 5 4 decision the Court applied the Free Press Clause to the states rejecting the statute as unconstitutional Hughes quoted Madison in the majority decision writing The impairment of the fundamental security of life and property by criminal alliances and official neglect emphasizes the primary need of a vigilant and courageous press |
However Near also noted an exception allowing prior restraint in cases such as publication of sailing dates of transports or the number or location of troops This exception was a key point in another landmark case four decades later New York Times Co v United States 1971 in which the administration of President Richard Nixon sought to ban the publication of the Pentagon Papers classified government documents about the Vietnam War secretly copied by analyst Daniel Ellsberg The Court found 6 3 that the Nixon administration had not met the heavy burden of proof required for prior restraint Justice Brennan drawing on Near in a concurrent opinion wrote that only governmental allegation and proof that publication must inevitably directly and immediately cause the occurrence of an evil kindred to imperiling the safety of a transport already at sea can support even the issuance of an interim restraining order Justices Black and Douglas went still further writing that prior restraints were never justified |
The courts have rarely treated content based regulation of journalism with any sympathy In Miami Herald Publishing Co v Tornillo 1974 the Court unanimously struck down a state law requiring newspapers criticizing political candidates to publish their responses The state claimed that the law had been passed to ensure journalistic responsibility The Supreme Court found that freedom but not responsibility is mandated by the First Amendment and so it ruled that the government may not force newspapers to publish that which they do not desire to publish |
Content based regulation of television and radio however have been sustained by the Supreme Court in various cases Since there is a limited number of frequencies for noncable television and radio stations the government licenses them to various companies However the Supreme Court has ruled that the problem of scarcity does not allow the raising of a First Amendment issue The government may restrain broadcasters but only on a content neutral basis In Federal Communications Commission v Pacifica Foundation the Supreme Court upheld the Federal Communications Commission s authority to restrict the use of indecent material in broadcasting |
State governments retain the right to tax newspapers just as they may tax other commercial products Generally however taxes that focus exclusively on newspapers have been found unconstitutional In Grosjean v American Press Co 1936 the Court invalidated a state tax on newspaper advertising revenues holding that the role of the press in creating informed public opinion was vital Similarly some taxes that give preferential treatment to the press have been struck down In Arkansas Writers Project v Ragland 1987 for instance the Court invalidated an Arkansas law exempting religious professional trade and sports journals from taxation since the law amounted to the regulation of newspaper content In Leathers v Medlock 1991 the Supreme Court found that states may treat different types of the media differently such as by taxing cable television but not newspapers The Court found that differential taxation of speakers even members of the press does not implicate the First Amendment unless the tax is directed at or presents the danger of suppressing particular ideas |
In Branzburg v Hayes 1972 the Court ruled that the First Amendment did not give a journalist the right to refuse a subpoena from a grand jury The issue decided in the case was whether a journalist could refuse to appear and testify before state and Federal grand juries basing the refusal on the belief that such appearance and testimony abridges the freedom of speech and press guaranteed by the First Amendment The 5 4 decision was that such a protection was not provided by the First Amendment However a concurring opinion by Justice Lewis F Powell in which he stated that a claim for press privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct The balance of these vital constitutional and societal interests on a case by case basis accords with the tried and traditional way of adjudicating such questions has been frequently cited by lower courts since the decision |
The Petition Clause protects the right to petition the government for a redress of grievances This includes the right to communicate with government officials lobbying government officials and petitioning the courts by filing lawsuits with a legal basis The Petition Clause first came to prominence in the 1830s when Congress established the gag rule barring antislavery petitions from being heard the rule was overturned by Congress several years later Petitions against the Espionage Act of 1917 resulted in imprisonments The Supreme Court did not rule on either issue |
In California Motor Transport Co v Trucking Unlimited the Supreme Court stated that the right to petition encompass the approach of citizens or groups of them to administrative agencies which are both creatures of the legislature and arms of the executive and to courts the third branch of Government Certainly the right to petition extends to all departments of the Government The right of access to the courts is indeed but one aspect of the right of petition Today thus this right encompasses petitions to all three branches of the federal government the Congress the executive and the judiciary and has been extended to the states through incorporation According to the Supreme Court redress of grievances is to be construed broadly it includes not solely appeals by the public to the government for the redressing of a grievance in the traditional sense but also petitions on behalf of private interests seeking personal gain The right not only protects demands for a redress of grievances but also demands for government action The petition clause includes according to the Supreme Court the opportunity to institute nonfrivolous lawsuits and mobilize popular support to change existing laws in a peaceful manner |
In Borough of Duryea v Guarnieri 2011 the Supreme Court stated regarding the Free Speech Clause and the Petition Clause |
It is not necessary to say that the two Clauses are identical in their mandate or their purpose and effect to acknowledge that the rights of speech and petition share substantial common ground Both speech and petition are integral to the democratic process although not necessarily in the same way The right to petition allows citizens to express their ideas hopes and concerns to their government and their elected representatives whereas the right to speak fosters the public exchange of ideas that is integral to deliberative democracy as well as to the whole realm of ideas and human affairs Beyond the political sphere both speech and petition advance personal expression although the right to petition is generally concerned with expression directed to the government seeking redress of a grievance |
The right of assembly was originally distinguished from the right to petition In United States v Cruikshank 1875 the Supreme Court held that |
the right of the people peaceably to assemble for the purpose of petitioning Congress for a redress of grievances or for anything else connected with the powers or duties of the National Government is an attribute of national citizenship and as such under protection of and guaranteed by the United States The very idea of a government republican in form implies a right on the part of its citizens to meet peaceably for consultation in respect to public affairs and to petition for a redress of grievances |
Justice Morrison Waite s opinion for the Court carefully distinguished the right to peaceably assemble as a secondary right while the right to petition was labeled to be a primary right Later cases however paid less attention to these distinctions |
In two 1960s decisions collectively known as forming the Noerr Pennington doctrine the Court established that the right to petition prohibited the application of antitrust law to statements made by private entities before public bodies a monopolist may freely go before the city council and encourage the denial of its competitor s building permit without being subject to Sherman Act liability |
Although the First Amendment does not explicitly mention freedom of association the Supreme Court ruled in National Association for the Advancement of Colored People v Alabama 1958 that this freedom was protected by the Amendment and that privacy of membership was an essential part of this freedom The US Supreme Court decided in Roberts v United States Jaycees 1984 that implicit in the right to engage in activities protected by the First Amendment is a corresponding right to associate with others in pursuit of a wide variety of political social economic educational religious and cultural ends In Roberts the Court held that associations may not exclude people for reasons unrelated to the group s expression such as gender |
However in Hurley v Irish American Gay Lesbian and Bisexual Group of Boston 1995 the Court ruled that a group may exclude people from membership if their presence would affect the group s ability to advocate a particular point of view Likewise in Boy Scouts of America v Dale 2000 the Court ruled that a New Jersey law which forced the Boy Scouts of America to admit an openly gay member to be an unconstitutional abridgment of the Boy Scouts right to free association |
Notes |
Citations |
Bibliography |
International fast food restaurant chain Burger King and its Australian franchise Hungry Jack s have had a variety of fish sandwiches in their product portfolio since 1975 The Whaler sandwich was the first iteration designed to compete with rival burger chain McDonald s Filet O Fish sandwich With the addition of the company s Specialty Sandwich line in 1978 the sandwich was reformulated as the Long Fish sandwich With the discontinuation of the Specialty Sandwich line the sandwich was returned to its original recipe and name With the introduction of the company s BK Broiler chicken sandwich in 1990 the fish sandwich became tied to the development cycle of the broiled chicken sandwich and was again reformulated and renamed as the Ocean Catch Fish fillet When the broiled chicken sandwich underwent another reformulation in 2002 the fish sandwich was also redone and renamed as the BK Big Fish sandwich By 2015 the sandwich had undergone several more modifications and went through a series of names including the BK Fish and Premium Alaskan fish sandwich It is currently sold as the BK Big Fish sandwich in the United States and Canada Internationally the fish sandwich is also known as the BK Fish BK Fishn Crisp burger and Fish Royale in those markets |
The company markets very few variants of the fish sandwiches but it does offer localized versions that are specifically tailored to meet taste preferences or customs of the various regions and countries in which it does business Usually during the Christian religious period known as Lent Burger King releases limited time LTO variants on the sandwich that have different ingredients from the standard sandwich recipe While the sandwich itself never has never been at the center of controversy the sourcing of fish from Icelandic suppliers led to a call for a boycott of Burger King because of Iceland s participation in whaling despite a 1982 international moratorium on the practice Despite being one of the company s major offerings the fish sandwich is rarely the center of product advertising for the company As a major product in the company s portfolio Burger King has registered very few global trademarks to protect its investment in the product |
The original fish sandwich sold by Burger King was called The Whaler Not all franchisees added it to their menus at the same time but it was available in at least some locations in the mid1960s Available nationally by the mid1970s advertising featured the tag line The Genuine Burger King Fish steak Sandwich It was a small sized fish sandwich made with Tartar sauce and lettuce on a sesame seed bun Starting in 1978 the sandwich was reformulated with a long bun and was renamed the Long Fish Sandwich as part of the introduction of the Specialty Sandwich line Soon the sandwich was reverted to its original recipe and name When Burger King introduced its broiled chicken sandwich the BK Broiler it changed the fish sandwich s breading to a panko style and used the same oatmeal dusted roll for the BK Broiler As part of the reformulation the company renamed it to the Ocean Catch fish sandwich |
When Burger King reformulated its BK Broiler grilled chicken sandwich into a larger more male oriented sandwich served on a Whopper bun it also reformulated the Ocean Catch as the BK Big Fish The new fish sandwich was a larger product with an increased patty size and served on a Whopper bun as well Other than the increased size of the patty and bun the other ingredients remained the same |
Burger King replaced the BK Big Fish with the smaller BK Fish sandwich when it introduced its Chicken Baguette line of sandwiches The new sandwich basically brought back the Whaler fish sandwich adding a slice of American cheese In 2005 The BK Big Fish was reintroduced when Burger King again reformulated its broiled chicken sandwich to the TenderGrill chicken sandwich |
In 2012 the BK Big Fish was modified to include the bakery style bun and was renamed the Premium Alaskan Fish Sandwich in the United States Starting in 2015 the formulation for the sandwich was reverted to the 1978 Specialty Sandwich Line era recipe albeit with pickles now added and its name was once again changed into the Extra Long Fish Sandwich BK Big Fish is still used in Canada and other markets |
Burger King used many advertising programs to promote its fish sandwiches over the life of the product As part of its push against its competitors in a 1983 campaign the company released an ad indirectly comparing the product to the Filet O Fish sandwich from rival McDonald s In the ad BK claimed its product was larger by weight than the competition s product The company expanded on the claim in a press statement saying that the commercial is toned down from its 1982 comparison commercials |
Trademark information |
Notes |
Eve Arden born Eunice Mary Quedens April 30 1908 November 12 1990 was an American film stage and television actress and comedian She performed in leading and supporting roles over nearly six decades |
Beginning her career on Broadway in the early 1930s Arden s first major role was in the RKO Radio Pictures drama Stage Door 1937 opposite Katharine Hepburn followed by roles in the comedies Having Wonderful Time 1938 and the Marx Brothers At the Circus 1939 Arden would go on to earn an Academy Award nomination for Best Supporting Actress for her role in Mildred Pierce 1945 |
In the latter part of her career she played the sardonic but engaging title character of a high school teacher in Our Miss Brooks winning the first Primetime Emmy Award for Outstanding Lead Actress in a Drama Series and as the school principal in the musicals Grease 1978 and Grease 2 1982 |
Arden was born in Mill Valley California on April 30 1908 to Charles Peter Quedens son of Charles Henry Augustus and Meta L ne Dierks Quedens and Lucille ne Frank Quedens daughter of Bernard and Louisa ne Mertens Frank both of German descent Lucille a milliner divorced Charles over his gambling and went into business for herself Although not Roman Catholic young Eunice was sent to a Dominican convent school near Modesto and later attended Tamalpais High School a public high school in Mill Valley until age 16 After leaving school she joined a stock theater company |
She made her film debut under her real name in the backstage musical Song of Love 1929 as a wisecracking homewrecking showgirl who becomes a rival to the film s star singer Belle Baker The film was one of Columbia Pictures earliest successes In 1933 she relocated to New York City where she appeared in multiple Broadway stage productions in supporting parts In 1934 she was cast in that year s Ziegfeld Follies revue This was the first role in which she was credited as Eve Arden Told to change her name for the show she looked at her cosmetics and stole my first name from Evening in Paris and the second from Elizabeth Arden Between 1934 and 1941 she would appear in Broadway productions of Parade Very Warm for May Two for the Show and Let s Face It |
Her film career began in earnest in 1937 when she signed a contract with RKO Radio Pictures and appeared in the films Oh Doctor and Stage Door Her Stage Door portrayal of a fast talking witty supporting character gained Arden considerable notice and was to be a template for many of Arden s future roles In 1938 she appeared in a supporting part in the comedy Having Wonderful Time starring Ginger Rogers and Lucille Ball This was followed by roles in the crime film The Forgotten Woman 1939 and the comedy At the Circus 1939 opposite Groucho Marx a role that would require her to perform acrobatics |
In 1940 she appeared opposite Clark Gable in Comrade X followed by the drama Manpower 1941 opposite Marlene Dietrich She also appeared in a supporting part in the Red Skelton comedy Whistling in the Dark 1941 and the romantic comedy Obliging Young Lady 1942 Her many memorable screen roles include a supporting role as Joan Crawford s wise cracking friend in Mildred Pierce 1945 for which she received an Academy Award nomination as Best Supporting Actress and James Stewart s wistful secretary in Otto Preminger s murder mystery Anatomy of a Murder 1959 One of her costars in that film was husband Brooks West In 1946 exhibitors voted her the sixthmost promising star of tomorrow |
She became familiar to a new generation of film goers when she played Principal McGee in both 1978 s Grease and 1982 s Grease 2 She was known for her deadpan delivery of jokes in films |
Arden s ability with witty scripts made her a natural talent for radio she became a regular on Danny Kaye s short lived but memorably zany comedy variety show in 1946 which also featured swing bandleader Harry James and gravel voiced character actor comedian Lionel Stander |