Free Speech Legal Doctrines

Freedom of speech is one of the most essential and well-known protections embodied in the First Amendment. But free speech issues aren't always as simple as the Constitution's language might imply. Over the years, the Supreme Court has created several legal doctrines as a framework for analyzing these cases. This framework aims to balance freedom of speech with other important government and societal interests.

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Prior Restraint

Vagueness

Overbreadth

What the First Amendment Says

“Congress shall make no law…abridging the freedom of speech…"

What It Means

United States Library of Congress, The Constitution of the United States of America: Analysis and Interpretation

The First Amendment by its terms applies only to laws enacted by Congress and not to the actions of private persons.1 As such, the First Amendment is subject to a state action (or governmental action) limitation similar to that applicable to the Fifth and Fourteenth Amendments.2 The Supreme Court has stated that a private entity can qualify as a state actor in a few limited circumstances, such as [1] when the private entity performs a traditional, exclusive public function; [2] when the government compels the private entity to take a particular action; or [3] when the government acts jointly with the private entity.3 In addition, some private entities established by the government to carry out governmental objectives may qualify as state actors for purposes of the First Amendment. For example, in Lebron v. National Railroad Passenger Corp., the Court held that the national passenger train company Amtrak, though nominally a private corporation, qualified as an agency or instrumentality of the United States for purposes of the First Amendment.4 It did not matter, in the Court's view, that the federal statute establishing Amtrak expressly stated that Amtrak was not a federal agency because Amtrak was established and organized under federal law for the very purpose of pursuing federal governmental objectives, under the direction and control of federal governmental appointees.5

The question of when broadcast companies are engaged in governmental action subject to the First Amendment has historically divided the Court. In Columbia Broadcasting System v. Democratic National Committee, the Court considered whether a radio station that had a license from the government to broadcast over airwaves in the public domain needed to comply with the First Amendment when it sold air time to third parties.The radio station had a policy of refusing to sell air time to persons seeking to express opinions on controversial issues.7 Three Justices joined a plurality opinion concluding that the radio station was not engaged in governmental action when it enforced this policy.8 They reasoned that the federal government had not partnered with or profited from the broadcaster's decisions and that Congress had affirmatively indicated that broadcasters subject to federal law retained certain journalistic license.9 In the view of those Justices, if the Court were to read the First Amendment to spell out governmental action in the circumstances presented, few licensee decisions on the content of broadcasts or the processes of editorial evaluation would escape constitutional scrutiny.10 In contrast, three other Members of the Court would have held that the radio station was engaged in governmental action because of the degree of governmental regulation of broadcasters' activities and the station's use of the airwaves, a public resource.11 And three Justices would not have decided the state action question.12 Nevertheless, these three Justices joined the Court's opinion concluding that even if the broadcaster was engaged in governmental action, the First Amendment did not require a private right of access to the broadcast media.13

More recently, in Manhattan Community Access Corp. v. Halleck, the Supreme Court held that Manhattan Neighborhood Network (MNN), a private, nonprofit corporation designated by New York City to operate public access channels in Manhattan, was not a state actor for purposes of the First Amendment because it did not exercise a traditional, exclusive public function.14 Emphasizing the limited number of functions that met this standard under the Court's precedents,15 the Court reasoned that operating public access channels has not traditionally and exclusively been performed by government because a variety of private and public actors had performed the function since the 1970s.16 Moreover, the Court reasoned, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.17 In the majority's view, the city's selection of MNN and the state's extensive regulation of MNN did not in and of themselves create state action.18

Prior Restraint

Liberty of the press, historically considered and taken up by the Federal Constitution, has meant, principally although not exclusively, immunity from previous restraints or censorship.19 Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.20 Government thus carries a heavy burden of showing justification for the imposition of such a restraint.21 Under the English licensing system, which expired in 1695, all printing presses and printers were licensed and nothing could be published without prior approval of the state or church authorities. The great struggle for liberty of the press was for the right to publish without a license what for a long time could be published only with a license.22

The United States Supreme Court's first encounter with a law imposing a prior restraint came in Near v. Minnesota ex rel. Olson,23 in which a five-to-four majority voided a law authorizing the permanent enjoining of future violations by any newspaper or periodical once found to have published or circulated an obscene, lewd and lascivious or a malicious, scandalous and defamatory issue. An injunction had been issued after the newspaper in question had printed a series of articles tying local officials to gangsters. Although the dissenters maintained that the injunction constituted no prior restraint, because that doctrine applied to prohibitions of publication without advance approval of an executive official,24 the majority deemed it the essence of censorship that, in order to avoid a contempt citation, the newspaper would have to clear future publications in advance with the judge.25 Liberty of the press to scrutinize closely the conduct of public affairs was essential, said Chief Justice Hughes for the Court. [T]he administration of government has become more complex, the opportunities for malfeasance and corruption have multiplied, crime has grown to most serious proportions, and the danger of its protection by unfaithful officials and of 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, especially in great cities. The fact that the liberty of the press may be abused by miscreant purveyors of scandal does not make any the less necessary the immunity of the press from previous restraint in dealing with official misconduct. Subsequent punishment for such abuses as may exist is the appropriate remedy, consistent with constitutional privilege.26 The Court did not explore the kinds of restrictions to which the term prior restraint would apply, nor do more than assert that only in exceptional cases would prior restraint be permissible.27

Nor did subsequent cases substantially illuminate the murky interior of the doctrine. The doctrine of prior restraint was called upon by the Court as it struck down restrictions on First Amendment rights, including a series of loosely drawn statutes and ordinances requiring licenses to hold meetings and parades and to distribute literature, with uncontrolled discretion in the licensor whether or not to issue them.28 The doctrine that generally emerged was that permit systems and prior licensing are constitutionally valid so long as the discretion of the issuing official was limited to questions of time, place, and manner.29 [O]nly content-based injunctions are subject to prior restraint analysis.30

The most recent Court encounter with the doctrine in the national security area occurred when the government attempted to enjoin press publication of classified documents pertaining to the Vietnam War31 and, although the Court rejected the effort, at least five and perhaps six Justices concurred on principle that, in some circumstances, prior restraint of publication would be constitutional.32 But no cohesive doctrine relating to the subject, its applications, and its exceptions has emerged.

The Supreme Court has written that [t]he special vice of a prior restraint is that communication will be suppressed before an adequate determination that it is unprotected by the First Amendment.33 The prohibition on prior restraint, thus, is essentially a limitation on restraints until a final judicial determination that the restricted speech is not protected by the First Amendment. It is a limitation, for example, against temporary restraining orders and preliminary injunctions pending final judgment, not against permanent injunctions after a final judgment is made that the restricted speech is not protected by the First Amendment.34

Vagueness

Vagueness is a due process vice that can be brought into play with regard to any criminal and many civil statutes,35 but it has a special significance when applied to governmental restrictions of speech: fear that a vague restriction may apply to one's speech may deter constitutionally protected speech as well as constitutionally unprotected speech. Vagueness has been the basis for voiding numerous such laws, especially in the fields of loyalty oaths,36 obscenity and indecency,37 and restrictions on public demonstrations.38 It is usually combined with the overbreadth doctrine, which focuses on the need for precision in drafting a statute that may affect First Amendment rights;39 an overbroad statute that sweeps under its coverage both protected and unprotected speech and conduct will normally be struck down as facially invalid, although in a non-First Amendment situation the Court would simply void its application to protected conduct.40

Overbreadth

Even in a First Amendment situation, the Court has written, there are substantial social costs created by the overbreadth doctrine when it blocks application of a law to constitutionally unprotected speech, or especially to constitutionally unprotected conduct. To ensure that these costs do now swallow the social benefits of declaring a law 'overbroad,' we have insisted that a law's application to protected speech be 'substantial,' not only in an absolute sense, but also relative to the scope of the law's plainly legitimate applications, before applying the 'strong medicine' of overbreadth invalidation. Rarely, if ever, will an overbreadth challenge succeed against a law or regulation that is not specifically addressed to speech or to conduct necessarily associated with speech (such as picketing or demonstrating).41

More on the First Amendment

Freedom of Speech: Historical Background

Schenck v. United States: "Clear and Present Danger"

Footnotes

1. Through interpretation of the Fourteenth Amendment, the prohibition extends to the states as well. See Bill of Rights: The Fourteenth Amendment and Incorporation, infra. Of course, the First Amendment also applies to the non-legislative branches of government—to every government agency—local, state, or federal. Herbert v. Lando, 441 U.S. 153, 168 n.16 (1979).

2. See Fourteenth Amendment: Equal Protection of the Laws: Scope and Application: State Action, infra.

3. Manhattan Cmty. Access Corp. v. Halleck, 587 U.S. ___, No. 17-702, slip op. at 6 (2019) (internal citations omitted) (citing Jackson v. Metro. Edison Co., 419 U.S. 345, 352–54 (1974)Blum v. Yaretsky, 457 U.S. 991, 1004–05 (1982), and Lugar v. Edmondson Oil Co., 457 U.S. 922, 941–42 (1982), respectively).

4.513 U.S. 374, 383, 394 (1995); see also Dep't of Transp. v. Ass'n of Am. R.R., 575 U.S. ___, No. 13-1080, slip op. at 11 (2015) (extending the holding of Lebron, such that Amtrak was considered a governmental entity for purposes of the Fifth Amendment due process and separation-of-powers claims presented by the case).

5. Lebron, 513 U.S. at 391–93, 398.

6. 412 U.S. 94 (1973).

7.I d. at 98.

8. Id. at 120 (plurality opinion of Burger, C.J., and Stewart and Rehnquist, JJ.).

9. Id. at 119–20.

10. Id. at 120.

11. Id. at 150 (Douglas, J., concurring in the judgment); id. at 172–73 (Brennan and Marshall, JJ., dissenting).

12. See id. at 171 (Brennan, J., dissenting) (noting that Justices White, Blackmun, and Powell would not have reached the state action question).

13. Id. at 129 (majority opinion).

14. 587 U.S. ___, No. 17-702, slip op. at 2–3, 6 (2019).

15. Id. at 6–7 (stating that while running elections and operating a company town qualify as traditional, exclusive public functions, running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity do not).

16. Id. at 7.

17. Id. at 10.

18. See id. at 11 (reasoning that absent performance of a traditional and exclusive public function, a private entity is not a state actor merely because the government licenses, contracts with, grants a monopoly to, or subsidizes it); id. at 12 (reasoning that state regulations that restrict MNN's editorial discretion and effectively require it to operate almost like a common carrier do not make MNN a state actor). Cf. Pub. Utils. Comm'n v. Pollak, 343 U.S. 451, 462 (1952). The majority also rejected the argument that MNN was simply standing in for New York City in managing government property, reasoning that the record did not show that any government-owned, leased, or otherwise had a property interest in the public access channels or the broader cable network in which they operated. Manhattan Cmty. Access Corp., slip op. at 14–15.

19. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 716 (1931).

20. Bantam Books v. Sullivan, 372 U.S. 58, 70 (1963).

21. Organization for a Better Austin v. Keefe, 402 U.S. 415, 419 (1971)New York Times Co. v. United States, 403 U.S. 713, 714 (1971).

22. Near v. Minnesota ex rel. Olson, 283 U.S. 697, 713–14 (1931)Lovell v. Griffin, 303 U.S. 444, 451 (1938).

23. 283 U.S. 697 (1931).

24. 283 U.S. at 723, 733–36 (Justice Butler dissenting).

25. 283 U.S. at 713.

26. 283 U.S. at 719–20.

27. 283 U.S. at 716.

28. E.g.Lovell v. Griffin, 303 U.S. 444 (1938)Cantwell v. Connecticut, 310 U.S. 296 (1940)Kunz v. New York, 340 U.S. 290 (1951)Niemotko v. Maryland, 340 U.S. 268 (1951)Staub v. City of Baxley, 355 U.S. 313 (1958). For other applications, see Grosjean v. American Press Co., 297 U.S. 233 (1936)Murdock v. Pennsylvania, 319 U.S. 105 (1943)Follett v. McCormick, 321 U.S. 573 (1944).

29. Cox v. New Hampshire, 312 U.S. 569 (1941)Poulos v. New Hampshire, 345 U.S. 395 (1953). In Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175 (1968), the Court held invalid the issuance of an ex parte injunction to restrain the holding of a protest meeting, holding that usually notice must be given the parties to be restrained and an opportunity for them to rebut the contentions presented to justify the sought-for restraint. In Organization for a Better Austin v. Keefe, 402 U.S. 415 (1971), the Court held invalid as a prior restraint an injunction preventing the petitioners from distributing 18,000 pamphlets attacking respondent's alleged blockbusting real estate activities; he was held not to have borne the heavy burden of justifying the restraint. No prior decisions support the claim that the interest of an individual in being free from public criticism of his business practices in pamphlets or leaflets warrants use of the injunctive power of a court. Designating the conduct as an invasion of privacy is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by this record. Id. at 419–20. See also City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (ordinance vesting in the mayor unbridled discretion to grant or deny annual permit for location of newsracks on public property is facially invalid as prior restraint).

The necessity of immediate appellate review of orders restraining the exercise of First Amendment rights was strongly emphasized in National Socialist Party v. Village of Skokie, 432 U.S. 43 (1977), and seems to explain the Court's action in Philadelphia Newspapers v. Jerome, 434 U.S. 241 (1978)But see Moreland v. Sprecher, 443 U.S. 709 (1979) (party can relinquish right to expedited review through failure to properly request it).

30. DVD Copy Control Association, Inc. v. Bunner, 75 P.3d 1, 17 (Cal. 2003) ([a] prior restraint is a content-based restriction on speech prior to its occurrenceid. at 17–18). Regarding the standard for content-neutral injunctions, see Public Issue Picketing and Parading, infra.

31. New York Times Co. v. United States, 403 U.S. 713 (1971). The vote was 6-to-3, with Justices Black, Douglas, Brennan, Stewart, White, and Marshall in the majority and Chief Justice Burger and Justices Harlan and Blackmun in the minority. Each Justice issued an opinion.

32. The three dissenters thought such restraint appropriate in this case. Id. at 748, 752, 759. Justice Stewart thought restraint would be proper if disclosure will surely result in direct, immediate, and irreparable damage to our Nation or its people, id. at 730, while Justice White did not endorse any specific phrasing of a standard. Id. at 730–33. Justice Brennan would preclude even interim restraint except upon governmental allegation and proof that publication must inevitably, directly, and immediately cause the occurrence of an event kindred to imperiling the safety of a transport already at sea. Id. at 712–13.

The same issues were raised in United States v. Progressive, Inc., 467 F. Supp. 990 (W.D. Wis. 1979), in which the United States obtained an injunction prohibiting publication of an article it claimed would reveal information about nuclear weapons, thereby increasing the dangers of nuclear proliferation. The injunction was lifted when the same information was published elsewhere and thus there was no appellate review of the order.

With respect to the right of the Central Intelligence Agency to prepublication review of the writings of former agents and its enforcement through contractual relationships, see Snepp v. United States, 444 U.S. 507 (1980); Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362 (4th Cir.), cert. denied, 421 U.S. 992 (1975); United States v. Marchetti, 446 F.2d 1309 (4th Cir.), cert. denied, 409 U.S. 1063 (1972).

33. Pittsburgh Press Co. v. Pittsburgh Commission on Human Relations, 413 U.S. 376, 390 (1973)see also Vance v. Universal Amusement Co., 445 U.S. 308, 315–316 (1980) (the burden of supporting an injunction against a future exhibition [of allegedly obscene motion pictures] is even heavier than the burden of justifying the imposition of a criminal sanction for a past communication).

34. See Mark A. Lemley and Eugene Volokh, Freedom of Speech and Injunctions in Intellectual Property Cases, 48 Duke Law Journal 147, 169–171 (1998).

35. The vagueness doctrine generally requires that a statute be precise enough to give fair warning to actors that contemplated conduct is criminal, and to provide adequate standards to enforcement agencies, factfinders, and reviewing courts. See, e.g.Connally v. General Const. Co., 269 U.S. 385 (1926)Lanzetta v. New Jersey, 306 U.S. 451 (1939)Colautti v. Franklin, 439 U.S. 379 (1979)Village of Hoffman Estates v. The Flipside, 455 U.S. 489 (1982).

36. E.g.Cramp v. Board of Pub. Instruction, 368 U.S. 278 (1961)Baggett v. Bullitt, 377 U.S. 360 (1964)Keyishian v. Board of Regents, 385 U.S. 589 (1967)See also Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (attorney discipline, extrajudicial statements).

37. E.g.Winters v. New York, 333 U.S. 507 (1948)Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968)Reno v. ACLU, 521 U.S. 844, 870–874 (1997). In National Endowment for the Arts v. Finley, 524 U.S. 569 (1998), the Court held that a decency criterion for the awarding of grants, which in a criminal statute or regulatory scheme could raise substantial vagueness concerns, was not unconstitutionally vague in the context of a condition on public subsidy for speech.

38. E.g.Cantwell v. Connecticut, 310 U.S. 296 (1940)Gregory v. City of Chicago, 394 U.S. 111 (1969)Coates v. City of Cincinnati, 402 U.S. 611 (1971)See also Smith v. Goguen, 415 U.S. 566 (1974) (flag desecration law); Lewis v. City of New Orleans, 415 U.S. 130 (1974) (punishment of opprobrious words); Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) (door-to-door canvassing). For an evident narrowing of standing to assert vagueness, see Young v. American Mini Theatres, 427 U.S. 50, 60 (1976).

39. NAACP v. Button, 371 U.S. 415, 432–33 (1963).

40. E.g.Kunz v. New York, 340 U.S. 290 (1951)Aptheker v. Secretary of State, 378 U.S. 500 (1964)United States v. Robel, 389 U.S. 258 (1967)Zwickler v. Koota, 389 U.S. 241 (1967)Lewis v. City of New Orleans, 415 U.S. 130 (1974)Massachusetts v. Oakes, 491 U.S. 576, 581 (1989)But see Washington State Grange v. Washington State Republican Party, 128 S. Ct. 1184, 1190 (2008) (facial challenge to burden on right of association rejected where the statute has a 'plainly legitimate sweep').

41. Virginia v. Hicks, 539 U.S. 113, 119–20, 124 (2003) (italics in original; citations omitted) (upholding, as not addressed to speech, an ordinance banning from streets within a low-income housing development any person who is not a resident or employee and who cannot demonstrate a legitimate business or social purpose for being on the premises). Virginia v. Hicks cited Broadrick v. Oklahoma, 413 U.S. 601 (1973), which, in the majority opinion and in Justice Brennan's dissent, id. at 621, contains extensive discussion of the overbreadth doctrine. Other restrictive decisions include Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974)Parker v. Levy, 417 U.S. 733, 757–61 (1974); and New York v. Ferber, 458 U.S. 747, 766–74 (1982). Nonetheless, the doctrine continues to be used across a wide spectrum of First Amendment cases. Bigelow v. Virginia, 421 U.S. 809, 815–18 (1975)Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975)Doran v. Salem Inn, 422 U.S. 922, 932–34 (1975)Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633–39 (1980)Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) (charitable solicitation statute placing 25 percent cap on fundraising expenditures); City of Houston v. Hill, 482 U.S. 451 (1987) (city ordinance making it unlawful to oppose, molest, abuse, or interrupt police officer in performance of duty); Board of Airport Comm'rs v. Jews for Jesus, 482 U.S. 569 (1987) (resolution banning all First Amendment activities at airport); Reno v. ACLU, 521 U.S. 844, 874–879 (1997) (statute banning indecent material on the Internet).

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