Jurisprudence
Under American jurisprudence, what permissible exceptions exist?
| Right | Breakout | Contents |
|---|---|---|
| Freedom of Association | The freedom of association is derivative from the First Amendment which guarantees the freedoms of speech, assembly, and petition (Hudson 2020) . These freedoms of speech, assembly, and petition all form sub-categories of the freedom of association. Collectively, this right permits a group to act in the collective interest of its members and to maintain private associations and assemblies without government interference. The legal problems regarding its practice have only recently arisen- particularly from the loyalty investigations of the Communist Party membership and a series of other cases in the 1950s and 1960s in relation to the activities of the National Association for the Advancement of Colored People (Cornell Law School Legal Information Institute 2020) . For example, in 1958, with the case of the NAACP v. Alabama, the right to freedom of association was strengthened and supported by the Supreme Court who ruled in favor of the NAACP’s decision to withhold a list of members in the organization from the government (Hudson 2020) . In response to Brown v. Board of Education 1954, Alabama authorities was closely investigating the NAACP under the foreign corporation law. The NAACP complied with the state’s request of its business records, including its charter and list of organizational officers and staff. They refused, however, to give lists of rank-and-file members due to confidentiality, potential economic reprisal attacks, and potential repression. Giving up the lists, civil rights activists said, would dissuade members and potential recruits from associating with the organization, ultimately violating their right of association.
Prior to this case the Court had supported a stronger suppression of the freedoms of association and assembly regarding organizations that were alleged to be involved in subversive and unlawful activities. In 1928’ s New York ex rel. Bryant v. Zimmerman and 1951’ s Dennis v. United States the Court had ruled in favor of government efforts to restrict and limit the rights of assembly and speech of both the KKK and the Communist Party (U.S. Supreme Court 1928, 1951) . In this case, however, the Court said NAACP did not cause harm to government or society, and they had complied with the demands of the Alabama government sufficiently; therefore they were justified and protected by law in their decision to withhold membership lists. Later, in the 1967 case of United States v. Robel in which Eugene Robel, an inactive member of the Communist Party, was charged with violating the Subversive Activities Control Act when he continued his work at the Todd Pacific Shipyards, a location that was deemed by the Secretary of Defense to be a defense facility (U.S. Supreme Court 2020) . Under the Act, his actions was illegal due to his membership to the Communist Party and members of the Party’s legal inability to remain employed at a location deemed a “defense facility”. The Supreme Court ruled that the “defense facility” employment provision was an unconstitutional abridgment of the right of association regardless of its application solely to active Party members. Chief Justice Earl Warren wrote that the provision was overbroad while Justice William J. Brennan added that the designation of defense facilities being a power given to the Secretary of Defense was unconstitutional because the Act provided no meaningful standards for the Secretary to follow. This case was a milestone because, once tested, the Court upheld the broad freedoms of association and continued the prohibition of government interference and bias towards any individual based upon an affiliated association. Later cases regarding the Bar examine and admission to the bar further backed this right. In 1971’ s Baird v. State Bar of Arizona and Law Students Research Council v. Wadmond, the Supreme Court established that the government could only deny admission to the bar if an applicant’s membership in a group advocating overthrow of the government (such as the Communist Party) was legitimately coupled with the specific intent to achieve that end (U.S. Supreme Court 1971) . These cases established that organized groups in association that gather in efforts to advance political, economic, religious, or cultural matters may gather without government interference (and particularly without government knowledge of listed members) unless the group explicitly poses a threat to society or engages in criminal activity. Under American jurisprudence, permissible exceptions to the freedom involve matters of internal affairs such as discrimination cases. In the 1976 case of Runyon v. McCrary, discrimination based upon race was established as a limitation to a body’s freedom of association after two children were denied access to certain private schools in Virginia as a result of the schools’ admitted segregationist school policies (U.S. Supreme Court 1976) . Later, in the Roberts v. United States Jaycees court case of 1984, the court ruled that the Jaycees, an organization of young business leaders that only fully accepted male members and who claimed that the anti-discrimination laws that forced them to accept qualified women was a breach of their freedom of association, lacked “the distinctive characteristics that might afford constitutional protection to the decision of its members to exclude women,” ultimately prohibiting their exclusion of women (Bernstein 2020) . Also, if the state has a compelling interest, it can justifiably limit associations’ rights to organizational autonomy (Alexander 2008, 14). Here, the state would be setting limits and requirements for how a group is organizationally run and made up. By giving an organization a quota, the state forces a particular pattern of inclusion that is in the public interest. For example, the US government is permitted to work to create less segregated schools, involving programs like the Moving to Opportunity (MTO). It is permitted to do in efforts to promote certain patterns of inclusion and acceptance within communities and associations (U.S. Department of Housing and Urban Development 1992) . | |
| Freedom of Expression | Clear and Present Danger: As the Supreme Court ruled in Schenck v. US (1919), speech can be curtailed when it poses a “clear and present danger.” This case arose when a defendant was accused of violating the Espionage Act by distributing leaflets encouraging people to dodge the draft. As the majority held, the defendant’s ability to undermine the war effort constituted such a danger, akin to yelling “fire” in a crowded theatre.
Fighting Words: In a doctrine similar to the clear-and-present-danger test, the Supreme Court ruled in Chaplinsky v. New Hampshire (1942) that the First Amendment does not protect “fighting words” - words that, as the court argued, “by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Though this doctrine exists today, it has been undermined, especially by the court’s rulings protecting “hate speech” (see RAV v. St. Paul). O’Brien Test: In US v. O’brien (1968), the Supreme Court developed a four-pronged test for determining whether the government could justifiably limit expression. “We think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.” In this case, the Supreme Court held that a ban on burning draft cards did constitute a substantial government interest. Speech in schools: In general, public schools have greater leeway to curtail free speech, although the court’s attitudes have changed repeatedly. In Tinker v. Des Moines (1965), the Supreme Court voided suspensions on students wearing armbands to protest the Vietnam War, holding that limited speech must “materially and substantially interfere” with school activities. In Hazelwood v. Kuhlmeier (1988), the court gave considerable leniency to schools restricting student speech in a school-sponsored platform (in this case, a school newspaper), allowing it to censor an article because it was “inconsistent with the shared values of a civilized social order.” In Bethel School District v. Fraser (1986), the court allowed a public school to suspend a student for using sexual innuendo at a speech at a school assembly because such speech undermined “fundamental values of public school education.” the Supreme Court ruled similarly in Morse v. Frederick (2007), holding that schools could limit speech advocating drug use. Imminent Lawless Action: In Brandenburg v. Ohio (1969), the Supreme Court elaborated on the clear-and-present-danger test. To lack protection, certain speech must incite “imminent lawless action.” This means that the mere advocacy of violence is not enough; the speech must actually incite it. It was on these grounds that the court ruled that offensive, inflammatory speech from a klansman was protected because it did not imminently incite violence. This test has generally replaced clear and present danger, although clear and present danger is still the test used in military courts. Obscenity: The Supreme Court adopted a three-pronged test in Miller v. California (1973) to determine whether material is legally obscene (and therefore not protected). The prongs are as follows: “whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Pornography is often not legally obscene. Libel: Standards for what constitutes libel differ between private citizens and public figures (who can include political figures but also celebrities, business tycoons, etc). Libel against a public person requires a statement to have been false and made negligently. Libel against a public figure, does not include good-faith mistakes that may be considered negligent. Rather, it requires material to be false, and to have been published with “actual malice” (Hustler v. Falwell, 1988). Intellectual property: For example, in Zacchini v. Scripps-Howard Broadcasting (1977), the court ruled that the First Amendment does not protect the right of a television station to air an entire performance without the consent of the performers. Unlawful assembly: Authorities may restrict assemblies as long as the restrictions are reasonable, narrowly tailored to a specific public interest while limiting rights as little as possible, and are not content-based. For example, a city may require a permit for holding a large assembly. In Forsyth County v. Nationalist Movement, the Supreme Court ruled that a permitting authority could not vary its demonstration permit fees based on the anticipated cost of maintaining public order. As the court held, making such a determination would require the government to differentiate its treatment toward demonstrations based on the content of their messages. References: US Free Speech Cases: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-speech-general/ Fighting words: https://www.mtsu.edu/first-amendment/article/293/chaplinsky-v-new-hampshire US v. Obrien: https://www.mtsu.edu/first-amendment/article/709/united-states-v-o-brien#:~:text=In%20United %20States%20v.,of%20an%20anti%2Dwar%20protester. RAV v. St. Paul: https://mtsu.edu/first-amendment/article/270/r-a-v-v-st-paul Tinker v. Des Moines: https://www.oyez.org/cases/1968/21 Bethel v. Fraser: https://www.oyez.org/cases/1985/84-1667 Morse v. Frederick: https://www.oyez.org/cases/2006/06-278 Imminent lawless action: https://www.mtsu.edu/first-amendment/article/970/incitement-to-imminent-lawless-action Libel info: https://www.freedomforum.org/libel/ Hustler v. Falwell: https://www.oyez.org/cases/1987/86-1278 Free press cases in the US: https://billofrightsinstitute.org/educate/educator-resources/landmark-cases/freedom-of-the-press/ Info on assembly: https://www.lawyers.com/legal-info/criminal/the-right-to-gather-has-some-restrictions.html#:~:t ext=No%20First%20Amendment%20rights%20are,raises%20a%20%E2%80%9Cclear%20and %20present Info on broadcast TV and radio, which includes descriptions of all relevant cases: https://www.law.cornell.edu/constitution-conan/amendment-1/broadcast-radio-and-television | |
| Freedom of Religion | The Supreme Court ruled in Employment Division v. Smith (1990) that the First Amendment does not provide for religious exemptions to a generally applicable law. In the case, a Native American was fired from his job and denied unemployment benefits for using Peyote, a substance sometimes smoked during religious ceremonies. The court had previously ruled in Sherbert v. Verner (1963) that the First Amendment does provide for that type of exception unless there is a compelling reason to enforce the law anyway (Munoz 2008, 1083). However, the Supreme Court’s ruling in Gonzales v. O Centro Espírita Beneficente União do Vegetal (2006) appears to undermine this ruling. In that case, a religious group claimed the right to use a drug called hoasca. The Supreme Court held that, under the Religious Freedom Restoration Act, the government is obligated to grant religious exemptions to general laws unless the government can demonstrate a compelling state interest in regulating the drug’s religious use (“Gonzales v. Centro”). Pandemic: The COVID-19 pandemic has caused many governments to limit religious gatherings. For example, at the outset of the pandemic, Maryland banned gatherings of more than ten people, including religious services (Pitts 2020). Ensuring Success of a Government Operation: In Goldman v. Weinberger (1986), the court upheld an Air Force ban on headgear, which was challenged by an Orthodox Jew seeking to wear a yarmulke while on duty. The court found that the Air Force had a legitimate interest in ensuring obedience and conformity (“Landmark”). Non-Discrimination Law (a notable non-exception): In a landmark case, Masterpiece Cake Shop v. Colorado Civil Rights Commission ( 2017), the Supreme Court decided that Colorado anti-discrimination law could not compel a baker to violate his religious beliefs by baking a cake for a same-sex wedding (“Masterpiece”).
REFERENCES: Evaldo Xavier Gomes, “The Implementation of Inter-American Norms on Freedom of Religion in the National Legislation of OAS Member States,” BYU Law Review, 2009, Issue 3 Article 5, 9-1-2009 Muñoz, Vincent Phillip, The Original Meaning of the Free Exercise Clause: The Evidence from the First Congress (2008). Harvard Journal of Law and Public Policy, Vol. 31, No. 3, pp. 1083-1120, 2008, Available at SSRN: https://ssrn.com/abstract=1150780 “Landmark”: https://billofrightsinstitute.org/cases/ “Gonzalez v. Centro”: https://www.oyez.org/cases/2005/04-1084 “Masterpiece”: https://www.oyez.org/cases/2017/16-111 | |
| Freedom of the Press | The Constitutional right to a free press is not absolute, and certain exceptions exist for this right as they do for other civil liberties such as free speech and free exercise. A series of landmark decisions dating back to the early Twentieth Century has gradually clarified the limits to freedom of the press, with exceptions for libel, obscenity, and imminent lawless action. Furthermore, the government’s ability to exercise prior restraint (i.e. preventing the publication of certain materials prior to their release) has been severely limited by the courts, but not entirely prohibited. In many instances, holdings for cases that do not specifically concern freedom of the press have been extended to impose new limitations (or privileges) for the press, by virtue of the content in question and the similarities that exist between the press and free speech.
Written material that is found to be libelous or defamatory is not protected by the First Amendment. The threshold for proving defamation can be strenuous, however, and especially difficult for public figures. In New York Times Co. v. Sullivan, 376 U.S. 254 (1964), the Court took a major step in limiting the ability of government officials to sue for defamation. Following the publication of an advertisement in the New York Times that criticized the behavior of police officers in Montgomery, Alabama, the Montgomery police commissioner filed suit, alleging that the critical nature of the advertisement constituted defamation. Ruling against Montgomery, the Court asserted that “vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials” are nevertheless protected by the First Amendment. Furthermore, the justices established the Actual Malice test, contending that public officials cannot bring libel cases unless they can prove that a defendant published defamatory material with “reckless disregard” for its accuracy (Justice Brennan, 1964). The Actual Malice Test was later affirmed in Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989), in which plaintiff Daniel Connaughton filed a defamation claim against a local newspaper that ran negative articles about his campaign for local office in Hamilton, Ohio. Ruling for Connaughton, the Court affirmed Sullivan while asserting that the publication in question failed to verify its source material while ignoring obvious indications of its falsity (Justice Stevens, 1989). It should be noted, however, that this case represented an affirmation—rather than an extension—of the Sullivan test, as the justices largely limited themselves to criticizing material that displays a “reckless disregard for the truth” in the Connaughton decision. Finally, The Court expanded the Sullivan test to include both public officials and public figures in Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988). Following a libel suit against Hustlers Magazine by conservative commentator and Moral Majority founder Jerry Falwell Sr., the Court extended the Sullivan standard to satirical speech, given the latters’ “prominent role in public and political debate” in spite of inaccuracies that are obvious to the reasonably-minded reader. The criminalization of obscene material was largely derived from the Hicklin test in English Common Law, a premodern system of judicial decision-making that would later influence legal proceedings in the United States. This is evidenced by the contemporary legal definition of obscenity, which largely centers around speech or actions that are sexually explicit. The Supreme Court never established a firm view on obscenity, however, until its decision in Roth v. United States, 354 U.S. 476 (1957). The Court ruled against Samuel Roth, an author who was charged with violating a federal obscenity statute due to his dissemination of obscene books in public. In light of the sexually explicit nature of the books he sold, the justices asserted that speech that is “utterly without redeeming social importance” is not protected by the First Amendment, which was never meant to give “absolute protection for every utterance” to begin with (Justice Brennan, 1957). Given the ambiguous interpretation of obscenity in Roth, the Court would later revisit the issue and craft a more succinct definition in Miller v. California, 413 U.S. 15 (1973). California businessman Marvin Miller disseminated explicit content through postal advertisements, and was subsequently arrested and charged under a state obscenity statute. Ruling for California, the Court reaffirmed that the distribution of obscene material without “serious literary, artistic, political, or scientific value” did not violate the Speech or Press Clauses of the First Amendment. In superseding Roth, the justices succeeded in creating a concrete definition for obscene material that can also be employed for issues pertaining to the Press Clause. Written or spoken words that prompt some form of public disorder are not necessarily protected under American jurisprudence. The current threshold for proving the illegality of this conduct is exceptionally high, however, due to the Imminent Lawless Action test established in Brandenburg v. Ohio, 395 U.S. 444 (1969). Prior to this decision, the Court adhered to the Clear and Present Danger test adopted in Schenck v. United States, 249 U.S. 47 (1919), and the Bad Tendency test adopted in Gitlow v. New York, 268 U.S. 652 (1925). In both cases, the justices took firm positions against the permissibility of views deemed as offensive by the U.S. Government while failing to articulate a test that did not amount to the targeting of certain unpopular viewpoints by the judiciary. The Court successfully remedied this approach in Brandenburg by overturning the conviction of a Ku Klux Klan member in Hamilton County, Ohio, who was charged under a state criminal syndicalism statute following his incendiary remarks at a Klan rally. Ruling for Brandenburg, the justices asserted that speech or press material can only be criminalized if it is “directed to inciting or producing imminent lawless action” or “likely to incite or produce such action”—a threshold that Brandenburg’s remarks, however incendiary and offensive they were, failed to clear (Per Curiam, 1969). The Imminent Lawless Action test was later affirmed in Hess v. Indiana (1973), in which an antiwar protestor was charged with disorderly conduct after exclaiming “we'll take the [explicative] street later” in response to a crackdown by campus police at Indiana University Bloomington. Ruling for Hess, the Court dismissed the aggressive nature of his comments towards law enforcement officers as “not directed to any person or group in particular,” given that the Brandenburg test required offending language to mention a target, time, or method for prospective activities (Per Curiam, 1973). Despite Hess and Brandenburg directly addressing spoken words rather than written material, it should be noted that each decision applies equally to the Speech and Press Clauses of the First Amendment, thereby making written threats of imminent lawless action and verbal threats equally illegal. With few exceptions, prior restraint has largely been ruled unconstitutional in several landmark decisions that remain in force today. Prior to New York Times Co. v. United States, 403 U.S. 713 (1971), which is often regarded as the most notable case on this subject, the Court had already denied the constitutionality of prior restraint in Near v. Minnesota, 283 U.S. 697 (1931), in which the justices contended that the societal harms often caused by “miscreant purveyors of scandal” (In this case, a Minnesota Newspaper that regularly engaged in antisemitic commentary in violation of a state public nuisances law) do not provide a compelling reason for government actors to impose prior restraint on the publications in question, especially when no overarching national security implications are relevant to the issue at hand (Justice Hughes, 1931). In retrospect, the establishment of exceptions for national security issues in Near likely gave hope to the Nixon Administration in its attempt to halt the publication of the Pentagon Papers, which culminated in New York Times Co. v. United States. Ruling for the New York Times, the justices acknowledged the “heavy burden of showing justification for the imposition of [prior restraint]” (Per Curiam, 1971), while arguing that issuing an injunction against various media outlets would represent a “flagrant, indefensible, and continuing violation of the First Amendment (Concurring Opinion by Justices Black and Douglas, 1971).” Following this decision, the imposition of prior restraint was largely relegated to several unique and (relatively) unpublicized issues (see Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) or Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), which allowed prior restraint for information gained in closed-door legal proceedings and for the conduct of a student-run news publication, respectively). Following New York Times, no significant and publicized enactment of prior restraint has earned judicial approval. References Epstein, McGuire, and Walker, 2021. Constitutional Law for a Changing America: Rights, Liberties, and Justice. Thousand Oaks, California: Cq Press, An Imprint Of Sage Publications, Inc. Justia. 2019. “Justia: Free Law & Legal Information for Lawyers, Students, Business and the Public.” https://www.justia.com/ New York Times Co. v. Sullivan, 376 U.S. 254 (1964) https://supreme.justia.com/cases/federal/us/376/254/ Harte-Hanks Communications, Inc. v. Connaughton, 491 U.S. 657 (1989) https://supreme.justia.com/cases/federal/us/491/657/ Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988) https://supreme.justia.com/cases/federal/us/485/46/ Roth v. United States, 354 U.S. 476 (1957) https://supreme.justia.com/cases/federal/us/354/476/
Brandenburg v. Ohio, 395 U.S. 444 (1969) https://supreme.justia.com/cases/federal/us/395/444/ Schenck v. United States, 249 U.S. 47 (1919) https://supreme.justia.com/cases/federal/us/249/47/ Gitlow v. New York, 268 U.S. 652 (1925) https://supreme.justia.com/cases/federal/us/268/652/ Hess v. Indiana, 414 U.S. 105 (1973) https://supreme.justia.com/cases/federal/us/414/105/ New York Times Co. v. United States, 403 U.S. 713 (1971) https://supreme.justia.com/cases/federal/us/403/713/ Near v. Minnesota, 283 U.S. 697 (1931) https://supreme.justia.com/cases/federal/us/283/697/ Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) https://supreme.justia.com/cases/federal/us/467/20/ Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988) https://supreme.justia.com/cases/federal/us/484/260/ | |
| Privacy Rights | The Fourth Amendment states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” ( 1791) . While this amendment protects the right to privacy from the government, it also brings forth exceptions: reasonable search and seizure as well as infringements allowed by court-issued warrants seeking specific items or people. Other amendments used to extend privacy by the Supreme Court, namely the First, Third, Fifth, Ninth, and Fourteenth, do not have notable exceptions regarding privacy.
Limitations of Reasonability Defining what constitutes a reasonable search has proven to be difficult. In Katz v. United States ( 1967) the Supreme Court ruled the Fourth Amendment protects “people, not places” and created the Katz test to determine where it is reasonable to expect privacy from law enforcement and a warrant is needed (Katz v. United States, 1967) . This test examines whether the information was meant to be kept private and if it had been disclosed (Hu, 2018, 129). Prior to the Katz test, the court used the trespass test, a common-law approach to the Fourth Amendment in which physical intrusion can violate the Fourth Amendment. Fifty years after Katz, the Court again relied on the trespass test in United States v. Jones (Hu, 2018, 130; United States v. Jones, 2012) . In doing so, the court claimed while the Katz test extended the right to privacy to people, it did not revoke the traditional common-law protections (United States v. Jones, 2012) . Hu, citing Justices Sotomayor and Alito, feels that the Katz test ends before cyber-surveillance begins and recognizes the need for change (Hu, 2018, 139, 141). In analyzing Fourth Amendment Supreme Court rulings, Orin Kerr found that four general models have been used to decide privacy cases ( 2017, 524). These models vary in scale (micro or macro) and normativity (normative or descriptive) and consider one of the following: how public the information is, what information was found, the actions that were taken, or whether or not government conduct should be regulated (Kerr, 2017, 506, 524). Kerr claims the last of these considerations was the basis for the Katz ruling ( 2017, 519). Unfortunately, the Supreme Court has used all four of these models to both protect and deny privacy and has not provided clear guidance as to what is a reasonable search (Ker, 2017, 507, 508). Kerr concludes by suggesting there is no one size fits all test or model because of the importance of case facts ( 2017, 525). As such, Kerr would rather see many definitive models so that the limitations of reasonability are clear and contextualized for future court decisions at all levels ( 2017, 542). Privacy Violations by a Non-Government Entity The Supreme Court has rarely ruled on notable cases in which the privacy offender was not a government entity. However, in Senn v. Tile Layers Protective Union ( 1937) the Court ruled that Senn could not invoke his privacy in work against the right to publicity of the union’s picketing (Richards, 1334) . In the opinion of the Court, Justice Brandeis held that because it was a commercial dispute and affected the competition for customers, the right to privacy was not applicable (Richards, 1334) . He also protected counter-speech in this opinion (Richards, 1334) . References Hu, M. ( 2018) . Cybersurveillance intrusions and an evolving Katz privacy test. American Criminal Law Review 55(1), 127-152. https://www.law.georgetown.edu/american-criminal-law-review/in-print/volume-55-issue-1-winter- 2018/ cybersurveillance-intrusions-and-an-evolving-katz-privacy-test/
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