Near vs Minnesota

Brief Fact Summary. A Minnesota law that gagged

a periodical from publishing derogatory statements
about local public officials was held unconstitutional by
the Supreme Court of the United States (Supreme
Court).
Synopsis of Rule of Law. The freedom of press is
essential to the nature of a free state but that freedom
may be restricted by the government in certain
situations.

Facts. The Saturday Press (the Press) published

attacks on local officials. The Press claimed that the
chief of police had illicit relations with gangsters.
Minnesota officials obtained an injunction in order to
abate the publishing of the Press newspaper under a
state law that allowed this course of action. The state
law authorized abatement, as a public nuisance, of a
malicious, scandalous and defamatory newspaper, or
other periodical. A state court order abated the Press
and enjoined the Defendants, publishers of the Press
(Defendants), from publishing or circulating such
defamatory and scandalous periodicals.
Issue. Whether a statute authorizing such proceedings
is consistent with the conception of the liberty of the
press as historically conceived and guaranteed?

Held. No. Judgment of the state court reversed. The

fact that the liberty of press may be abused by
miscreant purveyors of scandal does not effect the

requirement that the press has immunity from

previous restraints when it deals with official
misconduct. Subsequent punishment for such abuses
as may exist is the appropriate remedy, consistent
with the constitutional privilege. Therefore, a statute
authorizing such proceedings is not consistent with the
conception of the liberty of the press as historically
conceived
and
guaranteed
and
is
thus,
unconstitutional. The statute in question cannot be
justified by reason of the fact that the publisher is
permitted to show, before injunction issues, that the
matter published is true and is published with good
motives and for justifiable ends. This statute, if upheld,
could lead to a complete system of censorship. Thus,
the statute is a substantial infringement on the liberty
of the press and in violation of the Fourteenth
Amendment
of
the
Co
nstitution.
Dissent. This statute does not operate as a previous
restraint on publication within proper meaning of that
phrase.

Discussion. The Supreme Court of the United States

(Supreme Court) in this case extended the
presumption against prior restraint in the licensing
context to judicial restraints as well.
New York Times vs United States
Brief Fact Summary. The Supreme Court of the United
States (Supreme Court) held that the Government
failed to meet the requisite burden of proof needed to
justify a prior restraint of expression when attempting
to enjoin the New York Times and Washington Post
from publishing contents of a classified study.

Synopsis of Rule of Law. Any system of prior restraints

on expression comes to the Supreme Court bearing a
heavy presumption against its invalidity. The
Government thus creates a heavy burden of showing
justification for the enforcement of such a restraint.
Facts. The United States sought to enjoin the New York
Times and Washington Post from publishing contents
of a confidential study about the Governments
decision making with regards to Vietnam policy. The
District Court in the New York Times case and the
District Court and the Court of Appeals in the
Washington Post case held that the Government had
not met the requisite burden justifying such a prior
restraint.
Issue. Whether the United States met the heavy
burden of showing justification for the enforcement of
such a restraint on the New York Times and
Washington Post to enjoin them from publishing
contents of a classified study?
Held. No. Judgments of the lower courts affirmed. The
order of the Court of Appeals for the Second Circuit is
reversed and remanded with directions to enter a
judgment affirming the District Court. The stays
entered June 25, 1971, by the Court are vacated. The
mandates shall issue forthwith.
Dissent. The scope of the judicial function in passing
upon activities of the Executive Branch in the field of
foreign affairs is very narrowly restricted. This view is
dictated by the doctrine of Separation of Powers. The
doctrine prohibiting prior restraints does not prevent
the courts from maintaining status quo long enough to
act responsibly. The First Amendment is only part of
the Constitution. The cases should be remanded to be
developed expeditiously.

Concurrence. To find that the President has inherent

power to halt the publication of news by resort to the
courts would wipe out the First Amendment of the
United States Constitution [Constitution]. The First
Amendment of the Constitution leaves no room for
governmental restraint on the press. There is,
moreover, no statute barring the publication by the
press of the material that the Times and Post seek to
publish. The First Amendment of the Constitution
tolerates no prior judicial restraints of the press
predicated upon surmise or conjecture that untoward
consequences may result. Thus, only 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 can support the issuance of an interim
restraining order. Unless and until the Government has
clearly made its case, the First Amendment of the
Constitution commands that no injunction be issued.
The responsibility must be where the power is. The
Executive must have the large duty to determine and
preserve the degree of internal security necessary to
exercise its power effectively. The Executive is correct
with respect to some of the documents here, but
disclosure of any of them will not result in irreparable
danger to the public. The United States has not met
the very heavy burden, which it must meet to warrant
an injunction against publication in these cases. The
ultimate issue in this case is whether this Court or the
Congress has the power to make this law. It is plain
that Congress has refused to grant the authority the
Government seeks from this Court.
Discussion. This very divided opinion shows how heavy
the Governments burden is to justify a prior restraint
of expression

Chaplinsky vs New Hampshire

Brief Fact Summary. Chaplinsky was convicted under
a State statute for calling a City Marshal a God
damned racketeer and a damned fascist in a public
place.
Synopsis of Rule of Law. Fighting words are not
entitled to protection under the First Amendment of
the United States Constitution (Constitution)

Facts. A New Hampshire statute prohibited any person

from addressing any offensive, derisive or annoying
word to any other person who is on any street or public
place or calling him by any derisive name. Chaplinsky,
a Jehovahs Witness, called a City Marshal a God
damned racketeer and a damned fascist in a public
place and was therefore arrested and convicted under
the statute.
Issue. Did the statute or the application of the statute
to Chaplinskys comments violate his free speech
rights under the First Amendment of the Constitution?
Held. No.
The
lower
court
is
affirmed.
Considering the purpose of the First Amendment of the
Constitution, it is obvious that the right to free speech
is not absolute under all circumstances. There are
some narrowly defined classes of speech that have
never been protected by the First Amendment of the
Constitution. These include fighting words, words
that inflict injury or tend to excite an immediate
breach of the peace. Such words are of such little

expositional or social value that any benefit they might

produce is far outweighed by their costs on social
interests
in
order
and
morality.
The statute at issue is narrowly drawn to define and
punish specific conduct lying within the domain of
government power. Moreover, the Supreme Court of
New Hampshire, which is the ultimate arbiter of the
meanings of New Hampshire law, has defined the
Statute as applying only to fighting words. Therefore,
the Statute does not unconstitutionally impinge upon
the right of free speech.

Discussion. By holding that fighting words are not

protected forms of speech the Supreme Court of the
United States (Supreme Court) announced a rare form
of content based restriction on speech that is
permissible. The student should consider what
characteristics distinguish a fight word from a bona
fide criticism. One difference may lie in the speakers
intent. Fighting words are intended to inflict harm,
bona-fide criticisms are intended to communicate
ideas. Another difference may lie in the differing likely
effects of each: fighting words are likely to provoke
the average person to violence while bona fide
criticisms are not.

US Vs Alvarez
Brief Fact Summary. The Defendant, Alvarez
(Defendant), was convicted of conspiring to transport
marijuana to the United States from Columbia based
on his participation in unloading the drugs from a pick-

up truck prior to their being put on a United States

bound
airplane.
Synopsis of Rule of Law. Evidence of agreement in a
conspiracy may be inferred from indirect evidence
such as participation in overt acts that further the
conspiracy.

Facts. The Defendant, prior to unloading drugs

concealed in large household appliances from a pickup
truck to be put on a United States bound airplane,
responded affirmatively to an undercover agents
inquiry as to whether he would be at the unloading site
in the United States. He was convicted of conspiring to
transport marijuana on this evidence.
Issue. Is circumstantial evidence alone sufficient to
prove the agreement element of a conspiracy
charge?
Held. Yes. Affirmed. A jury may properly have
concluded that the Defendants intended presence at
the unloading site in the United States was evidence of
a prior agreement by the Defendant to assist in the
criminal conspiracy. The Defendant cannot escape
criminal liability solely on the basis that he did not join
a criminal conspiracy until well after its inception or
played
only
a
minor
role
therein.
Dissent. There was no evidence that the Defendant
had knowledge that criminal activity was afoot. The
evidence only showed that he unloaded a washing
machine from a truck and indicated that he would be
present at the unloading site in the United States. The
majority does not explain how a jury could not accept

this scenario over the contention that the defendant

was aware of the criminal activity underway.

Discussion. The majority in this case broadens the

net of a conspiracy charge to include those for whom
the only evidence of agreement in the conspiracy is an
overt act in furtherance of it, even where that act may
permit of an inference of innocent conduct unrelated
to the conspiracy.
Miller vs California
Brief Fact Summary. The Defendant, Millers
(Defendant) conviction for mailing advertisements for
adult books to unwilling recipients was vacated and
remanded in an effort to shift the burden of obscenity
determinations to the state and local courts.
Synopsis of Rule of Law. In determining whether
speech is obscene, the basic guidelines for the trier of
fact must be: (a) whether the average person,
applying contemporary community standards would
find the material, taken as a whole, appeals to the
prurient interest of sex, (b) whether the work depicts
or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state
law, and (c) whether the work, taken as a whole, lacks
serious literacy, artistic, political, or scientific value.

Facts. The Defendant was convicted under the

California Penal Code for mailing advertisements for
adult material to non-soliciting recipients.

Issue. Whether state statutes may regulate obscene

material without limits?
Held. No. Judgment of the lower court vacated and
remanded for further proceedings. In determining
whether speech is obscene, the basic guidelines for
the trier of fact must be: (a) whether the average
person, applying contemporary community standards
would find the material, taken as a whole, appeals to
the prurient interest of sex, (b) whether the work
depicts or describes, in a patently offensive way,
sexual conduct specifically defined by the applicable
state law, and (c) whether the work, taken as a whole,
lacks serious literacy, artistic, political, or scientific
value. The Supreme Court of the Untied States
(Supreme Court) does not adopt as a constitutional
standard the utterly without redeeming social value
test. If a state law that regulates obscene material is
thus limited, as written or construed, First Amendment
constitutional values are adequately protected by the
ultimate power of appellate courts to conduct an
independent review of constitutional claims when
necess
ary.
Dissent. To send men to jail for violating standards
that they cannot understand due to vagueness, denies
them
of
due
process.
The statute in question is overbroad and thus,
unconstitutional.

Stanley vs Georgia
Brief Fact Summary. The Petitioner, Stanleys
(Petitioner) home was being searched for evidence of
bookmaking when officers found obscene films.
Synopsis of Rule of Law. Mere possession of
obscenity is not punishable under the United States
Constitution (Constitution).

Facts. The Petitioner was being investigated for

bookmaking. Officers were searching his home when
they found 8mm films that they determined to be
obscene. They confiscated the materials and charged
the Petitioner with knowingly having possession of
obscene matter.
Issue. Does this law prohibiting possession of
obscenity violate the First Amendment of the
Constitution?
Held. Yes. The Constitution prohibits making mere
possession a crime.

Discussion. The government is not allowed to dictate

to people what they will and will not read, watch or
enjoy. The Constitution strictly protects an individual
from such unwarranted intrusion and control.
Osborne vs Ohio

Discussion. This case attempts a new definition and

clarification of obscenity while also trying to shift the
burden of obscenity determinations to the state and
local courts.

Osborne v. Ohio, 495 U.S. 103 (1990), is a Supreme

Court of the United States case in which the Court held
that the First Amendment allows states to outlaw the

mere possession, as distinct from the distribution, of

child pornography. In so doing, the Court extended the
holding of New York v. Ferber, 458 U.S. 747 (1982),
which had upheld laws banning the distribution of child
pornography] against a similar First Amendment
challenge, and distinguished Stanley v. Georgia, 394
U.S. 557 (1969), which had struck down a Georgia law
forbidding the possession of pornography by adults in
their own homes. The Court also determined that the
Ohio law at issue was not overbroad, relying on a
narrowing interpretation of the law the Ohio Supreme
Court had adopted in prior proceedings in the case.
However, because it was unclear whether the State
had proved all the elements of the crime, the Court
ordered a new trial.

With respect to child pornography, however, the

government does not act out of a "paternalistic
interest" in regulating a citizen's mind. By outlawing
the possession of child pornography, the government
seeks to eradicate legitimate harms by diminishing the
market for child pornography. These harms include the
psychological damage to children -- both the children
depicted in the pornography, for whom the images
produced serve as a permanent record of the abuse,
and the children whom potential abusers might lure
with such images. "Given the importance of the State's
interest in protecting the victims of child pornography,
we cannot fault Ohio for attempting to stamp out this
vice at all levels in the distribution chain."

Even if the First Amendment did not categorically

forbid the government to ban the possession of child
pornography, Osborne argued that the Ohio statute

under which he was convicted was overbroad. A ban

on speech is "overbroad" if it outlaws both prohibited
speech as well as a substantial amount of legitimate
speech. The statute, as written, banned depictions of
nudity, and the Court had previously held that nudity
was protected expression. But the Ohio Supreme Court
had held that the statute only applied to nudity that
"constitutes a lewd exhibition or involves a graphic
focus on the genitals, and where the person depicted
is neither the child nor the ward of the person
charged" with violating it. Furthermore, the Ohio
Supreme Court had required that the defendant had to
know that the images depicted children before being
convicted of possession of child pornography. By
narrowing the scope of the statute in these ways, the
Ohio Supreme Court had sufficiently tailored the law
only to those images most harmful to children.

However, the Court reversed Osborne's conviction

because, after reviewing the record of the trial, it
observed that the State did not present evidence that
the images were "lewd" within the meaning of the
statute. Because lewdness was an essential element of
the crime, the State had not satisfied its obligation to
prove all the elements of the crime beyond a
reasonable doubt.

The dissenting opinion, written by Brennan and joined

by Marshall and Stevens, argued, "When speech is
eloquent and the ideas expressed lofty, it is easy to
find restrictions on them invalid. But were the First
Amendment limited to such discourse, our freedom
would be sterile indeed. Mr. Osborne's pictures may be
distasteful, but the Constitution guarantees both his

right to possess them privately and his right to avoid

punishment under an overbroad law."[1]
New York Times vs Sullivan
Brief Fact Summary. The Plaintiff, Sullivan (Plaintiff)
sued the Defendant, the New York Times Co.
(Defendant), for printing an advertisement about the
civil rights movement in the south that defamed the
Plaintiff.
Synopsis of Rule of Law. The constitutional
guarantees require a federal rule that prohibits a
public official from recovering damages for a
defamatory falsehood relating to his official conduct
unless he proves that the statement was made with
actual malice that is, with knowledge that it was false
or with reckless disregard of whether it was false or
not.

Facts. The Plaintiff was one of three Commissioners of

Montgomery, Alabama, who claimed that he was
defamed in a full-page ad taken out in the New York
Times. The advertisement was entitled, Heed Their
Rising Voices and it charged in part that an
unprecedented wave of terror had been directed
against those who participated in the civil rights
movement in the South. Some of the particulars of the
advertisement were false. Although the advertisement
did not mention the Plaintiff by name, he claimed that
it referred to him indirectly because he had oversight
responsibility of the police. The Defendant claimed
that it authorized publication of the advertisement
because it did not have any reason to believe that its
contents were false. There was no independent effort

to check its accuracy. The Plaintiff demanded that the

Defendant retract the advertisement. The Defendant
was puzzled as to why the Plaintiff thought the
advertisement reflected adversely on him. The jury
found the ad libe
lous per se and actionable without proof of malice. The
jury awarded the Plaintiff $500,000 in damages. The
Alabama Supreme Court affirmed. The Defendant
appealed.
Issue. Is the Defendant liable for defamation for
printing an advertisement, which criticized a public
officials official conduct?
Held. No.
Reversed
and
remanded.
* Safeguards for freedom of speech and of the press
are required by the First and Fourteenth Amendments
of the United States Constitution (Constitution) in a
libel action brought by a public official against critics of
his
official
conduct.
* Under Alabama law, a publication is libelous per se if
the words tend to injure a person in his reputation or to
bring him into public contempt. The jury must find that
the words were published of and concerning the
plaintiff. Once libel per se has been established, the
defendant has no defense as to stated facts unless he
can persuade the jury that they were true in all their
particulars.
* Erroneous statement is inevitable in free debate and
it must be protected if the freedoms of expression are
to have the breathing space that the need to survive.
* The constitutional guarantees require a federal rule
that prohibits a public official from recovering damages
for a defamatory falsehood relating to his official
conduct unless he proves that the statement was
made with actual malice that is, with knowledge that

it was false or with reckless disregard of whether it was

false
or
not.
* The Supreme Court of the United States (Supreme
Court) holds that the Constitution delimits a States
power to award damages for libel in actions brought by
public officials against critics of their official conduct.
In this case, the rule requiring proof of actual malice is
applicable.
* The Defendants failure to retract the advertisement
upon the Plaintiffs demand is not adequate evidence
of malice for constitutional purposes. Likewise, it is not
adequate evidence of malice that the Defendant failed
to check the advertisements accuracy against the
news stories in the Defendants own files. Also, the
evidence was constitutionally defective in another
respect: it was incapable of supporting the jurys
finding that the allegedly libelous statements were
made
of
and
concerning
the
Plaintiff.
Concurrence. Justice Hugo Black (J. Black) argued that
the First and Fourteenth Amendments of the
Constitution do not merely delimit a States power to
award damages, but completely prohibit a State from
exercising such a power. The Defendant had an
absolute, unconditional right to publish criticisms of
the Montgomery agencies and officials.

Discussion. In order for a public official to recover in a

defamation action involving his official conduct, malice
must be proved. Without the showing of malice, the
Supreme Court felt that a defamation action in this
case would severely cripple the safeguards of freedom
speech and expression that are guaranteed in the First
Amendment of the Constitution and applicable to the
States via the Fourteenth Amendment of the
Constitution.

Rosenbloom v Metro Media, Inc.

403 U.S. 20
June 7 1971
In 1963, petitioner was a distributor of nudist
magazines in the Philadelphia metropolitan area.
Respondent Metromediaradio station, which broadcast
news reports every half hour, broadcast news stories
of petitioner Rosenblooms arrest for possession of
obscene literature and the police seizure of "obscene
books," and stories concerning petitioner's lawsuit
against certain officials alleging that the magazines he
distributed were not obscene and seeking injunctive
relief from police interference with his business. These
latter stories did not mention petitioner Rosenblooms
name, but used the terms "smut literature racket" and
"girlie-book peddlers." Following petitioner's acquittal
of criminal obscenity charges, he filed this action
seeking damages under Pennsylvania's libel law.
Issue:
Whether the New York Times' knowing-or-recklessfalsity standard applies in a state civil libel action
brought not by a "public official" or a "public figure"
but by a private individual for a defamatory falsehood
uttered in a news broadcast by a radio station about
the individual's involvement in an event of public or
general interest
Held:
The actual malice standard applies.
If a matter is a subject of public or general interest, it
cannot suddenly become less so merely because a
private individual is involved, or because in some
sense the individual did not "voluntarily" choose to
become involved.

The public's primary interest is in the event; the public

focus is on the conduct of the participant and the
content, effect, and significance of the conduct, not
the participant's prior anonymity or notoriety. The
present case illustrates the point.
The community has a vital interest in the proper
enforcement of its criminal laws, particularly in an area
such as obscenity where a number of highly important
values are potentially in conflict: the public has an
interest both in seeing that the criminal law is
adequately enforced and in assuring that the law is not
used unconstitutionally to suppress free expression.
Whether the person involved is a famous large-scale
magazine distributor or a "private" businessman
running a corner newsstand has no relevance in
ascertaining whether the public has an interest in the
issue. We honor the commitment to robust debate on
public issues, which is embodied in the First
Amendment, by extending constitutional protection to
all discussion and communication involving matters of
public or general concern, without regard to whether
the persons involved are famous or anonymous.
Bartnicki vs Vopper
Brief Fact Summary. Bartnicki (P) and Kane (P) were
union representatives whose cell phone conversation
was illegally intercepted and recorded at a time when
collective-bargaining negotiations were going on, in
which they were involved. Vopper (D) was a radio
commentator who played a tape of the conversation
between the two unionists on his radio show in
connection with his news story featuring the
negotiated settlement. Bartnicki (P) and Kane (P) filed
for damages, one ground being that Vopper (D) with

others used the tape on public media despite knowing

or having reasonable grounds to know that the tape
was of an illegally tapped conversation. Vopper (D)
claimed that his disclosure was protected under the
freedom of speech guaranteed under the First
Amendment.

Synopsis of Rule of Law. The anti-wiretapping laws

make it illegal to disclose the content of a conversation
which was itself illegally intercepted. However, if these
provisions are made to apply to the disclosure of
information which has been obtained in a legal way
from the party which intercepted the conversation, and
if the information relates to some matter of public
concern, the said provisions violate the First
Amendment.

Facts. Some unknown person tapped and recorded a

cell phone conversation between Bartnicki (P ) who
was chief negotiator for a teachers union, and Kane
(P) who was president of the same union. The
conversation included a threat of violent action
(perhaps metaphorically) by Bartnicki in the event the
unions demands were not met. The negotiations
eventually wound up with a settlement in favor of the
teachers. After the settlement, Vopper (D), a radio
commentator, aired a recording of the intercepted
conversation on his show along with his report on the
settlement. He was not party to the interception, and

did not know who was responsible for it, and had
obtained the recording by legal means. The two union
leaders filed for damages under federal wiretapping
laws, which under S. 2511(1)(a) prohibits intercepting
cell phone calls, and under S. 2511(1)(c) prohibits
disclosure of material obtained by illegal interception.
The U.S. Supreme Court granted review of the case.

Issue. Do the wiretapping laws which proscribe

disclosure of material obtained by unlawfully tapping
communications violate the First Amendment, if used
to conceal information which has been obtained by
legal means from the intercepting party, and when
such information is related to public concern?
Held. (Stevens, J.) Yes. The provisions of federal
wiretapping laws are in violation of the First
Amendment if used to suppress the disclosure of
information obtained legally from a party which
illegally intercepted a conversation, and if the
information is such as concerns the public. Since the
Court has no doubt of Voppers statement that he was
not involved in nor had knowledge of the illegal
interception of the conversation, that he came into
possession of the intercepted communication lawfully,
and that the disclosed information was of public
concern. In such a case, it would be a violation of the
constitution if a state were to make a citizen liable for
the publication of true information. The issue to be
determined here is whether a person who has obtained
access to some material in a legal manner from one

who has procured it through illegal means should be

punished for publishing the material. The wiretapping
legislation has as its first intent the removing of
incentive
for
any
interception
of
private
communication. This is not served if an innocent
disclosure of public information obtained legally is
punished under that law. The person who performed
the illegal act is the one who merits punishment, and
only in such a case will the punishment have the
desired deterrent action. The second intent the
government intends to serve through this law is to
prevent harm from ensuing to the persons whose
private
communications
were
thus
illegally
intercepted. This is a much stronger motive, as it is an
important essential of government to ensure privacy of
comversation. In this suit, however, the maintenance
of privacy is of less concern than the disclosure of
matters which concern the public. When a person
involves himself in public affairs, he invites some loss
of privacy as a matter of course. This material of public
concern cannot be removed from the protection
afforded by the First Amendment because some
unknown person acted illegally in obtaining the tapped
conversation. The decision is affirmed.

Dissent. (Rehnquist, C. J.) The federal and state

government anti- wiretapping laws were enacted in
order to prevent the privacy of citizens from violation.
Under these laws, it is illegal to intentionally tap into a
private conversation and also to disclose material from
electronic communications. The majority view of the

court is that these laws are in violation of the First

Amendment, since the illegally obtained information
relates to a matter of public concern, even though the
concept of what constitutes valid public concern is not
a matter the majority even touch upon. However, it is
undoubtedly true that this view as held by the majority
actually reduces the freedoms protected by the First
Amendment, since millions of citizens who use
electronic communication have reason to fear
disclosure of their private conversation under this
nebulous view. The anti-wiretapping statutes are
neutral as to the content of the tappedconversations,
and only apply to the fact of illegally obtaining private
information. This definition is extremely precise to fit
the demands of the statutes object, and therefore it is
against all precedent to review these laws as
unconstitutional under strict scrutiny, the standards of
which they already meet. These laws should be upheld
under intermediate scrutiny as they do further the
important governmental interest of protecting citizen
privacy. The constitution should not be a means of
protecting
unwilling
publication
of
private
conversations.
Concurrence. (Breyer, J.) The Court decision in this
case is intended to be applicable only to the facts of
this specific case, and not to extrapolate beyond this
situation. The facts here considered are that,first, the
broadcasters were within the law up to the time of
their publishing the information, and that secondly, the
information disclosed involved a threat of possible
physical harm to others, which is a matter of public
concern.

Discussion. The issue in this case led to a decision

which expanded the legal precedent in this area. Until
this time the Courts holding was that under the First
Amendment, a person could not be held liable for
publishing private facts provided the information was
legally obtained from public records. The only
justification for liability would be a governmental
interest of highest magnitude. This present case
involved communication of a matter which could be
regarded as public in some aspects so that it could not
be treated as a purely private matter, which might
have rendered the publisher liable.
Reno vs American Civil Liberties Union
Brief Fact Summary. Two provisions of the
Communications Decency Act of 1996 (CDA) that
criminalized providing obscene materials to minors by
on the internet were held unconstitutional by the
Supreme Court of the United States (Supreme Court).
Synopsis of Rule of Law. Where a content-based
blanket restriction on speech is overly broad by
prohibiting protected speech as well as unprotected
speech, such restriction is unconstitutional.

Facts. At issue is the constitutionality of two statutory

provisions enacted to protect minors from indecent
and patently offensive communications on the
Internet. The District Court made extensive findings of

fact about the Internet and the CDA. It held that the
statute abridges the freedom of speech protected by
the First Amendment of the United States Constitution
(Constitution).
Issue. Whether the two CDA statutory provisions at
issue are constitutional?
Held. No. Judgment of the District Court affirmed.
Under the CDA, neither parents consent nor their
participation would avoid application of the statute.
The CDA fails to provide any definition of indecent
and omits any requirement that the patently offensive
material lack serious literary, artistic, political or
scientific value. Further, the CDAs broad categorical
prohibitions are not limited to particular times and are
not dependent on any evaluation by an agency
familiar with the unique characteristics of the Internet.
CDA applies to the entire universe of the cyberspace.
Thus, the CDA is a content-based blanket restriction on
speech, as such, cannot be properly analyzed as a
form of time, place and manner restriction. The CDA
lacks the precision that the First Amendment of the
Constitution requires when a statute regulates the
content of speech. In order to deny minors access to
potentially harmful speech, the statute suppresses a
large amount of speech that adults have a
constitutional right to receive. The CDA places an
unacceptable burden on protected speech, thus, the
statute
is
invalid
as
unconstitutional.
Concurrence. The constitutionality of the CDA as a
zoning law hinges on the extent to which it
substantially interferes with the First Amendment

rights of adults. Because the rights of adults are

infringed only by the display provision and by the
indecency transmission provision, the judge would
invalidate the CDA only to that extent.

Discussion. This case brings the First Amendment of

the Constitution into the Internet age while prohibiting
speech regulations that are overbroad despite their
seemingly benevolent goals.
Times Film Corp vs City of Chicago
I. ISSUES:
A. Issues Discussed: 1st Amendment (speech,
press, assembly)
B.
Legal
Question
Presented:
Did a Chicago city ordinance that required
submission of motion pictures to city officials for
approval prior to their public exhibition, and forbid
their exhibition unless they met certain standards,
violate the First Amendment?
II.
A.

CASE

SUMMARY:
Background:

Petitioner Times Film Corporation owned the

exclusive right to exhibit the film Don Juan in
Chicago. A Chicago city ordinance required that
anybody who wished to publicly exhibit a film

within city limits submit the film to the office of the

commissioner of police and pay a license fee. The
office of the commissioner of police was allowed to
refuse to issue a permit to show the film if it
determined that the film did not meet certain
standards. A denial of a permit to show a film
could be appealed to the mayor and the mayor's
decision
would
then
be
final.
Petitioner paid the license fee, but refused to
submit the film Don Juan to the office of the
commissioner of police for examination. After
Petitioner was refused a permit to show the film,
the corporation brought suit in federal court
seeking to prevent the city from interfering with
the exhibition of the film. Petitioner argued that
the
provision
of
the
ordinance
requiring
submission of the film constitutes a violation of the
First
and
Fourteenth
Amendments.
The court dismissed Times Film Corporation's suit
on the grounds that it did not have jurisdiction
over the matter. Petitioner appealed that ruling to
the Court of Appeals for the Seventh Circuit which
also denied that the corporation had jurisdiction.
Subsequently, Petitioner sought review in the
United States Supreme Court and the high court
granted certiorari.

B. Counsel of Record:

ACLU Side
(Petitioner/Appellant)

Opposing Side
(Respondent/Appellee)

Felix J. Bilgrey and

Abner J. Mikva argued
the cause and filed a
brief for petitioner.

Robert J. Collins and

Sydney R. Drebin
argued the cause for
respondents. With them
on the brief was John C.
Melaniphy.

C. The Arguments:
ACLU Side
(Petitioner/Appellant)
Unavailable

requirements as to the submission of the film.

Opposing Side
(Respondent/Appellee)
Unavailable

III. AMICI CURIAE:

ACLU Side
(Petitioner/Appellant)
Emanuel Redfield filed
a brief for the American
Civil Liberties Union, as
amicus curiae, urging
reversal.

Opposing Side
(Respondent/Appellee)
Unavailable

IV. THE SUPREME COURT'S DECISION:

"[T]here is not a word in the record as to the
nature and content of 'Don Juan.' We are left
entirely in the dark in this regard, as were the city
officials and the other reviewing courts. Petitioner
claims that the nature of the film is irrelevant, and
that even if this film contains the basest type of
pornography, or incitement to riot, or forceful
overthrow of orderly government, it may
nonetheless be shown without prior submission for
examination. The challenge here is to the censor's
basic authority; it does not go to any statutory
standards employed by the censor or procedural

In this perspective we consider the prior decisions

of this Court touching on the problem. Beginning
over a third of a century ago in Gitlow v. New York,
they have consistently reserved for future decision
possible situations in which the claimed First
Amendment privilege might have to give way to
the necessities of the public welfare. It has never
been held that liberty of speech is absolute. Nor
has it been suggested that all previous restraints
on speech are invalid...
Chicago emphasizes here its duty to protect its
people against the dangers of obscenity in the
public exhibition of motion pictures. To this
argument petitioner's only answer is that
regardless of the capacity for, or extent of, such an
evil, previous restraint cannot be justified. With
this we cannot agree. It is not for this Court to limit
the State in its selection of the remedy it deems
most effective to cope with such a problem,
absent, of course, a showing of unreasonable
strictures on individual liberty resulting from its
application in particular circumstances. We, of
course, are not holding that city officials may be
granted the power to prevent the showing of any
motion picture they deem unworthy of a license.
As to what may be decided when a concrete case
involving a specific standard provided by this
ordinance is presented, we intimate no opinion.
The petitioner has not challenged all - or for that
matter any - of the ordinance's standards.

Naturally we could not say that every one of the

standards, including those which Illinois' highest
court has found sufficient, is so vague on its face
that the entire ordinance is void. At this time we
say no more than this - that we are dealing only
with motion pictures and, even as to them, only in
the context of the broadside attack presented on
this record."
Held: the judgment is affirmed.
Freedman vs Maryland
Freedman v. Maryland, 380 U.S. 51 (1965), is
a United States Supreme Court case that ended
government-operated rating boards with a decision
that a rating board could only approve a film and had
no power to ban a film. The ruling also concluded that
a rating board must either approve a film within a
reasonable time, or go to court to stop a film from
being shown in theatres. Other court cases determined
that television stations are federally licensed, so local
rating boards have no jurisdiction over films shown on
television. When the movie industry set up its own
rating systemthe Motion Picture Association of
Americamost state and local boards ceased
operating.
Ronald Freedman challenged the law of Maryland that
films must be submitted to the Maryland State Board
of Censors before being shown in theaters, claiming it
unconstitutional; violating freedom of expression
granted by the First Amendment.

In a unanimous opinion by Justice Brennan, the Court

held that a rating board could only approve a film and
had no power to ban a film.
The Maryland law is unconstitutional, since it provides
the danger of unduly suppressing protected
expression.

US vs O Brien
Brief Fact Summary. The Defendant, OBrien
(Defendant), was convicted for symbolically burning
his draft card under a federal statute forbidding the
altering of a draft card. His conviction was upheld after
the Supreme Court of the United States (Supreme
Court)
found
the
law
constitutional.
Synopsis of Rule of Law. First, a government
regulation is sufficiently justified if it is within the
constitutional power of the government. Second, if it
furthers a substantial or important governmental
interest. Third, if the governmental interest is
unrelated to the suppression of free expression.
Fourth, if the incidental restriction on alleged First
Amendment constitutional freedoms is no greater than
is essential to the furtherance of that interest.

Facts. The Defendant was convicted under

Section:462(b)(3) of the Universal Military Training and
Service Act (UMTSA) of 1948, amended in 1965 to
include the applicable provision that made it an
offense to alter, knowingly destroy, knowingly

mutilate a Selective Service registration certification.

Defendant knowingly burned his draft card on the front
steps of the local courthouse. The Court of Appeals
held the 1965 amendment unconstitutional as a law
abridging the freedom of speech.
Issue. Whether the 1965 Amendment is
unconstitutional as applied to Defendant because his
act of burning the draft card was protected symbolic
speech within the First Amendment?
Whether the draft cards are merely pieces of paper
designed only to notify registrants of their registration
or classification, to be retained or tossed into the
waste basket according to the convenience of the
registrant?
Whether the 1965 Amendment is unconstitutional as
enacted because it was intended to suppress freedom
of speech?
Held. No. Judgment of the Court of Appeals reversed.
It cannot be accepted that there is an endless and
limitless variety of conduct that constitutes speech
whenever the person engaging in the conduct intends
to express an idea. However, even if the alleged
communicative element of Defendants conduct is
sufficient to bring into play the First Amendment of the
United States Constitution (Constitution), it does not
necessarily follow that the destruction of a draft card is
constitutionally protected activity. First, a government
regulation is sufficiently justified if it is within the
constitutional power of the government. Second, if it
furthers a substantial or important governmental
interest. Third, if the governmental interest is
unrelated to the suppression of free expression.
Fourth, if the incidental restriction on alleged First
Amendment constitutional freedoms is no greater than

is essential to the furtherance of that interest. The

1965 Amendment meets all these requirement
s. Therefore, the 1965 Amendment is constitutional as
applied
to
Defendant.
No. Judgment of the Court of Appeals reversed.
Although the initial purpose of the draft card is to
notify, it serves many other purposes as well. These
purposes would be defeated if the card were to be
mutilated
or
destroyed.
No. Judgment of the Court of Appeals reversed. The
purpose of Congress is not a basis for declaring this
legislation unconstitutional. Therefore, the 1965
Amendment is constitutional as enacted.

Discussion. This case creates a symbolic speech test

that was used here to uphold the 1965 Amendment to
the UMTSA.
Clark vs Community for Creative
Brief Fact Summary. A National Park Service
regulation banning camping in certain parks was held
by the Supreme Court of the United States (Supreme
Court) not to violate the First Amendment when
applied to prohibit demonstrators from sleeping in
Lafayette
Park
and
the
Mall.
Synopsis of Rule of Law. A message may be
delivered by conduct that is intended to be
communicative and that, in context, would reasonably
be understood by the viewer as communicative.
Symbolic expression of this kind may be forbidden or
regulated if the conduct itself may constitutionally be
regulated, if the regulation is narrowly drawn to further

a substantial governmental interest and if the interest

is unrelated to the suppression of speech.

Facts. In 1982, the Park Service issued a renewable

permit to the Respondent, Community for Creative
Non-Violence (Respondent), to conduct a wintertime
demonstration in Lafayette Park and the Mall for the
purpose of demonstrating about the plight of the
homeless. The permit authorized the erection of
symbolic tent cities. The Park Service, however, denied
Respondents request that the demonstrators be
permitted to sleep in the tents. Respondent filed this
action to prevent the application of the anti-camping
regulations to the proposed demonstration.
Issue. Whether a National Park Service regulation
banning camping in certain parks violates the First
Amendment of the United States Constitution
(Constitution) when applied to prohibit demonstrators
from sleeping in Lafayette Park and the Mall?
Held. No. Judgment of the lower court reversed. The
regulation forbidding sleeping is defensible as both a
time, place or manner restriction and as a regulation of
symbolic conduct. The requirement that the regulation
be content neutral is clearly met. The Park Services
decision to permit non-sleeping demonstrations does
not impugn the camping prohibition as a valuable, but
perhaps imperfect protection to the parks. The Park
Service regulation is necessary. Further the Park
Service has the authority to judge how to protect the
park lands. Therefore, the National Park Service
regulation banning camping in certain parks does not
violate the First Amendment of the Constitution when
applied to prohibit demonstrators from sleeping in

Lafayette

Park

and

the

Mall.

Dissent. The proper starting point for analysis in this

case is the recognition that the Respondents speech is
symbolic speech and therefore protected by the First
Amendment of the Constitution. The regulations as
applied to Respondent, fails to satisfy the time, place
or manner standards. The Supreme Court should have
subjected the Governments restrictive policy to
something more than minimal scrutiny.

Discussion. This case illustrates that symbolic speech

can be regulated by the government as long as the
regulation is narrowly drawn to further a substantial
governmental interest and if the interest is unrelated
to the suppression of speech.
Virginia State Board vs Virginia Citizens Consumer
Brief Fact Summary. The Respondent, the Virginia
Citizens Consumer Council, Inc. (Respondent), argues
that the state code prohibiting the advertising of
prescription
prices
is
unconstitutional.
Synopsis of Rule of Law. Commercial speech is a
form of protected speech that can be regulated to
protect the public from deceptive or misleading
information.

Facts. Virginia will charge a licensed pharmacist of

being unprofessional if he advertises the amount he
charges for prescription drugs. Drug prices vary
greatly (up to 650%) by location. Therefore, the
Respondent advocates for disclosure of the prices of

drugs.
Issue. Is commercial speech protected by the First
Amendment?

Issue: Whether the State Bars ban on attorney

advertising violated the attorneys right to free,
commercial speech, where the advertisement only lists
specific prices for routine services?

Held. Yes. But, the First Amendment does not prevent

the
state
from
regulating
advertisements.
Dissent. Restrictions on commercial speech should be
left to the discretion of state legislatures.

Discussion. There is a substantial public interest in

the content of advertisements. The wording and
suggestions will lead consumers to buy or use
products. If the product does not function as
advertised, then the government has a legitimate
interest in protecting the economic well-being and
health of the public.
Summary of Bates v. State Bar of Arizona, 433
U.S. 350 (1977)
Facts: Two Arizona attorneys opened a legal clinic for
low income people. Seeking to increase their volume
of business they ran a newspaper ad. The State Bar
tried to discipline them and they claimed the
prohibition violated the Sherman Act and the
1st Amendments free speech clause, as it applied to
the state through the 14th Amendment.

Holding: Yes, the flow of such information may not be

restrained, and the present application of the
disciplinary rule against attorney advertising violates
the 1st Amendment.

Procedure: Judgement of S. Ct. of AZ is affirmed in

part and reversed in part by S.Ct.

Rule : 1st Amendment and 14th Amendment.

Rationale: The Sherman Act does not apply to

restraint of trade that is conceived and supervised by a
state government. If the Commercial basis of the attyclient relationship is to be promptly disclosed on
ethical grounds, once the client is in the office, it
seems inconsistent to condemn the candid revelation
of the same information before he arrives. Habit and
tradition are not in themselves an adequate answer to
a constitutional challenge, and therefore the HX
foundation has crumbled. The belief that legal

services are so unique that fixed rates cannot be

established is refuted by the record, the State Bar
sponsors a program where attorneys perform services
like those advertised at standardized rates. The
prohibition of advertising serves only to restrict
information that flows to consumers. Advertising is the
traditional means for a supplier to inform a potential
purchaser of the availability and terms of exchange.
The disciplinary rule at issue likely has served to
burden access to legal services. Restraints on
advertising are an ineffective way of determining
shoddy work. An atty who is inclined to cut quality will
do so regardless of the rule on advertising. Most
lawyers will behave as they always have: They will
abide by their oaths. Advertising by attys may not be
subjected to blanket suppression. Advertising that is
false, misleading, illegal, or deceptive is subject to
restraint, and there may be reasonable restrictions on
the time, manner, and place of advertising.

Central Hudson Gas vs Public Service Commission

Brief Fact Summary. In the winter of 1973-74 there
existed an electricity shortage in the State of New
York. Accordingly the Appellee, the Public Service
Commission (Appellee), imposed a ban on all
advertising that promotes the use of electricity. By
1976 the electricity shortage subsided, causing the
Appellee to determine whether or not to continue the
ban. Upon further inquiry, the Appellee decided to
continue the ban, causing the Appellant, Central
Hudson Gas and Electric Corp. (Appellant), to file suit
claiming that the regulation of the Appellee was

infringing on their First and Fourteenth Amendment

constitutional rights involving commercial speech.
Synopsis of Rule of Law. This case established a
four-part analysis for commercial speech cases. (1)
Whether the expression is protected by the First
Amendment of the United States Constitution
(Constitution). To be protected, it must concern lawful
activity and not be misleading. (2) Whether the
asserted governmental interest is substantial. If both
part one and part two are satisfied then (3) A court
must determine whether the regulation directly
advances the governmental
interest asserted.
(4)Whether it is not more extensive than is necessary
to serve that interest.

Facts. In December 1973, the Appellee ordered

electric utilities in New York State to cease all
advertising that promotes the use of electricity. The
Appellee based this regulation on a finding that the
interconnected utility system in New York State does
not have sufficient fuel stocks to continue furnishing all
customer demands for the 1973-74 winter. In 1976,
the fuel shortage ended, causing the Appellee to
request public comment on its proposal to continue the
ban on advertising. The Appellant opposes the ban on
First Amendment constitutional grounds and filed this
suit after the Appellee decided to continue the ban.
The 1976 order from the Appellee was that information
advertising, used to encourage shifts of consumption
of electricity from peak use times to periods of low
electricity demand would be allowed because it does
not increase aggregate consumption, but would
promote the leveling of demand throughout the day.
The Appellee also offered to review specific proposals

by co
mpanies to determine if their advertisement meets
this criterion. The Appellant challenged this order in
state court, arguing that the Appellee restrained
commercial speech in violation of the First and
Fourteenth Amendments of the Constitution. The
Appellees order was upheld in the trial court, by the
appellate level and by the New York Court of Appeals.
Issue. Whether a regulation of the Appellee of the
State of New York violates the First and Fourteenth
Amendments of the Constitution because it completely
bans promotional advertising by an electrical utility?
Held. Yes. The Appellees ban is unconstitutional even
though the United States Constitution (Constitution)
accords a lesser protection to commercial speech than
to other constitutionally guaranteed expression. The
protection
available
for
particular
commercial
expression turns on the nature both of the expression
and of the governmental interests served by the
regulation. There is a four-part analysis for commercial
speech cases. (1) Whether the expression is protected
by the First Amendment of the Constitution. To
determine if it is protected, the speech must concern
lawful activity and not be misleading. (2) Whether the
asserted governmental interest is substantial. If both
parts one and part two are satisfied then (3) A court
must determine whether the regulation directly
advances the governmental
interest asserted.
(4)Whether it is not more extensive than is necessary
to
serve
that
interest.
Under this four-part analysis the Supreme Court of the
United States (Supreme Court) found that the
advertising is commercial speech protected by the First
Amendment of the Constitution. The Supreme Court

found that the state interest in suppressing the use of

energy is substantial. The Supreme Court also found a
direct link between the state interest in conservation
and the Appellees order as there is a connection
between advertising and demand for electricity. This
lead the Supreme Court to consider whether the
complete suppression is more extensive than what is
necessary. The Supreme Court in this case determined
that the Apellee has not shown that it could not protect
its interest in energy conservation through a less
restrictive means. For example, providing information
in its advertisement about the relative efficiency and
expense of its offered service. Therefore since there is
a less restrictive means available, the restriction by
the
Appellant
is
an
unconstitutional
restri
ction
of
free
speech.
Dissent. The Supreme Courts decision fails to give
due deference to the subordinate position of
commercial speech. The dissenting judge feels the
court has gone back to the days of Lochner, feeling
that it can strike down regulations of a State through
its own notions of what is the most appropriate means
of
regulation.
Concurrence.
Doubts whether suppression of information concerning
the availability and price of a legally offered product is
ever a permissible way for the State to dampen
demand for or use of the product. But, agrees with the
majority that even though commercial speech is
involved, it is protected by the First Amendment of the
Constitution. In fact, the Appellees ban is a covert
attempt by the State to manipulate the choices of its
citizens, not by persuasion or direct regulation, but by
depriving the public of the information needed to make
a
free
choices.

Another concurring judge argued that this is not a

commercial speech case. Therefore, they see no need
to decide whether the four-part analysis, adequately
protects commercial speech as properly defined in
the face of a blanket ban of speech of the sort involved
in this case.

Discussion. This case is most significant because it

clearly provides a four-part test to be used in cases
involving commercial speech. The Supreme Court in
this case also provides a clear use of this test through
its analysis. This case builds on the definition of
commercial speech provided in Virginia State Board of
Pharmacy. That case defined commercial speech as
expression related solely to the economic interests of
the speaker and its audience, which is to be used to
determine whether or not part one of the test in this
case is satisfied. Part two of the test, looks at whether
the States interest is substantial and is similar to all
other First Amendment analysis, except as stated in
this case and Virginia State Board of Pharmacy, the
state possess an elevated standard of interest in
regulating commercial speech, as does part three
determining whether the regulation furthers the
interest. This leads to part four of the test, where it
seems most commercial speech cases will be d
ecided. In part four once again, as is with most First
Amendment expression cases, e.g. obscenity cases,
the Supreme Court will on a case-by-case basis
determine if there was a less restrictive means of
regulation. If a less restrictive means is available to
achieve the same goal, the answer will always
necessarily strike down the regulation as
unconstitutional.

Pleasant Grove vs Summum

Pleasant Grove City v. Summum, 555 U.S.
460 (2009), is a United States legal case relating to the
intersection of government speech and the
Constitution's prohibition on a government
"establishment" of a religion for the country,
specifically with respect to monuments (e.g., statues)
on public land.
Issue
In this case, the United States Supreme
Court considered whether the municipality of Pleasant
Grove, Utah, which allows privately donated
monuments, including one of the Ten Commandments,
to be displayed on public property, must also let
the Summumchurch put up its own statue, similar in
size to the one of the Ten Commandments.
According to the New York Times: "In 2003, the
president of the Summum church wrote to the mayor
here with a proposal: the church wanted to erect a
monument inscribed with the Seven Aphorisms in the
city park, similar in size and nature to the one
devoted to the Ten Commandments. The city declined,
a lawsuit followed and a federal appeals court ruled
that the First Amendment required the city to display
the Summum monument."[1]
The Supreme Court's decision was expected to be the
most important establishment clause decision of the
term. Some court-watchers believed the Court would
rule that the United States Constitution does not allow
government to favor one religion over another. [2]

Arguing for the petitioner (the City of Pleasant Grove)

was Jay Alan Sekulow, chief counsel for the American
Center for Law and Justice (ACLJ), and for the
Summum, attorney Pamela Harris of the
firm OMelveny & Myers. The ACLJ argued that there
should be a distinction between government speech
and private speech and though the government should
have the right to display the 10 Commandments, it
should not have to endorse all private speech.
Holding
On February 25, 2009, the Supreme Court ruled
unanimously against Summum in the Pleasant Grove
case. Justice Samuel Alito, in his opinion for the court,
explained that a municipality's acceptance and
acquisition of a privately funded permanent monument
erected in a public park while refusing to accept other
privately funded permanent memorials is a valid
expression of governmental speech, which is
permissible and not an unconstitutional interference
with the First Amendment's guarantee of free speech.
According to Alito, "the display of a permanent
monument in a public park" is perceived by an
ordinary and reasonable observer to be an expression
of values and ideas of the government, the owner of
the park and the monument, even though the
particular idea expressed by the monument is left to
the interpretation of the individual observer. Alito
made a clear distinction between forms of private
speech in public parks, such as rallies and temporary
holiday displays (Christmas trees and menorahs), and
the government speech represented by permanent
monuments. He opined that even long winded
speakers eventually go home with their leaflets and
holiday displays are taken down; but, permanent

monuments endure and are obviously associated with

their owners. Alito wrote, "cities and other jurisdictions
take some care in accepting donated monuments."
While Summum attempted to persuade the Court that
preventing governments from selecting monuments on
the basis of content would be tenable, Justice Alito
noted that such a situation could put government in
the position of accepting permanent monuments with
conflicting messages, that do not represent the values
and ideals of the community, or removing all
monuments from public space. Alito also questioned
whether, if the law followed the view expressed by
Summum, New York City would have been required to
accept a Statue of Autocracy from the German
Empire or Imperial Russia when it accepted the Statue
of Liberty from France
A municipality's acceptance and acquisition of a
privately funded permanent monument erected in a
public park while refusing to accept other privately
funded permanent memorials is a valid expression of
governmental speech
Walker vs Texas
Walker v. Texas Division, Sons of Confederate
Veterans, 576 U.S. ___ (2015), was a United States
Supreme Court case in which the Court held
that license plates are government speech and are
consequently more easily regulated/subjected to
content restrictions than private speech under the First
Amendment.
The Texas Division of the Sons of Confederate
Veterans sought to have a specialty license plate
issued in the state of Texas. The request was denied

prompting the group to sue, claiming that denying a

specialty plate was a First Amendment violation
The majority opinion, written by Associate
Justice Stephen Breyer, relied heavily on the Courts
2009 decision in Pleasant Grove City v. Summum,
which stated that a city in Utah was not obliged to
place a monument from a minor religion in a public
park, even though it had one devoted to the Ten
Commandments. The court ruled that refusing the
minor monument was a valid expression ofgovernment
speech which did not infringe on the First
Amendment's guarantee of free speech.[1]

Justice Samuel Alito wrote the dissent, arguing that

specialty license plates are more commonly regarded
as a limited public forum for private expression,
consisting of "little mobile billboards on which
motorists can display their own messages". Therefore,
rejecting the design basically amounts to viewpoint
discrimination