First Amendment

Overview
The First Amendment to the U.S. Constitution provides that:


 * “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

This language restricts government both more and less than it would if it were applied literally. It restricts government more in that it applies not only to Congress, but to all branches of the federal government, and to all branches of state and local government. It restricts government less in that it provides no protection to some types of speech and only limited protection to others.

The First Amendment limits the federal government from making any law or regulation that would ban or indirectly tend to suppress &mdash; that is, “chill” &mdash; speech or expression. Historically, the First Amendment has been interpreted broadly to protect individuals from government attempts to suppress political, ideological, or scientific ideas or information, and to defend against government incursions on freedom of expression in art, literature, movies, and music.

The provisions of the First Amendment have been interpreted to provide a bulwark against government intervention in the most basic elements of our democracy &mdash; the expression of thought, opinion, and belief. As necessary conditions to democratic governance, the rights embodied in the First Amendment occupy a “preferred position“ in the hierarchy of constitutional rights. As Justice Rutledge, speaking for the majority of the Supreme Court, said in 1945:


 * This case confronts us again with the duty . . . to say where the individual’s freedom ends and the State’s power begins. Choice on that border, now as always delicate, is perhaps more so where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions, and it is the character of the right, not of the limitation, which determines what standard governs the choice. . ..

The First Amendment applies to the states through the due process clause of the Fourteenth Amendment.

First Amendment interests are not limited to authors and publishers; readers have a right to receive information and judge its value for themselves. The First Amendment right to receive information is rooted in the fundamental public interest in the free and open exchange of ideas and information. The open dialogue protected by the First Amendment covers “every sort of publication which affords a vehicle of information and opinion,” including literature.

Notwithstanding the absolute language of the First Amendment and its preferred position, the Supreme Court has never interpreted the freedoms of religion, speech, press, or assembly to be without limits. These rights, which are collectively referred to as freedom of expression, can be limited in a variety of ways.

Government can prohibit entirely speech that threatens national security, that is obscene, or that is an incitement to violence or to the overthrow of the government; it can place reasonable restrictions on the time, place, and manner of speech, and can regulate speech that takes place in public; it can force one to compensate victims of defamation and other forms of speech injurious to private interests; and it can regulate speech that takes place over the airwaves. Moreover, when speech or the exercise of religion merges into action, government can regulate those forms of expression to protect the public health, safety, and welfare.

Because freedom of expression is not absolute, it often involves a balancing of governmental interests against the rights of individuals where the two are in conflict. Balancing rights against power occurs in the context of contemporary values and institutions: economic, political, ethical, legal, and scientific or technological.

The First Amendment generally does not apply to private activity such as industry self-regulation. The exception is when a private party’s actions are attributable to the government, either when: (i) the private party exercises a public function that is traditionally exclusively reserved to the State, or (ii) the government has exercised coercive power or provided such significant encouragement that the challenged action can fairly be attributed to the government.

The Supreme Court has expressly stated that movies and music fall within the First Amendment. Several federal courts have debated whether electronic games should receive the same First Amendment protections as the other entertainment media but have not yet decided the issue conclusively. Compare Rothner v. City of Chicago, 929 F.2d 297 (7th Cir. 1991) (indicating that First Amendment protection of electronic games may depend on creative content), with Malden Amusement Co. v. City of Malden, 582 F. Supp. 297 (D. Mass. 1983) (holding that videogames are not entitled to First Amendment protection because they do not contain expressive or informational content), and America’s Best Family Showplace Corp. v. City of New York, 536 F. Supp. 170 (E.D.N.Y. 1982) (same). In deciding an appeal of a motion to dismiss, the Seventh Circuit in Rothner developed an approach that considers the extent to which the electronic game at issue contains artistic content:


 * On the basis of the complaint alone, we cannot tell whether the video games at issue here are simply modern day pinball machines or whether they are more sophisticated presentations involving storyline and plot that convey to the user a significant artistic message protected by the first amendment. Nor is it clear whether these games may be considered works of art. To hold on this record that all video games &mdash; no matter what their content &mdash; are completely devoid of artistic value would require us to make an assumption entirely unsupported by the record and perhaps totally at odds with reality. As the Supreme Court has confessed its inability to comprehend fully the technology of the cablevision industry on the basis of a complaint, so we must confess an inability to comprehend fully the video game of the 1990s.

Rothner, 929 F.2d at 303. Given the substantial innovations in the current generation of electronic games, including their use of movie clips, music, animation, and the development of plot and character, however, some commentators predict that many courts will eventually accord the same protection to electronic games as to other types of entertainment media. See David B. Goroff, The First Amendment Side Effects of Curing Pac-Man Fever, 84 Colum. L. Rev. 744, 752–53, 764 (1984); Matthew Hamilton, Graphic Violence in Computer and Video Games: Is Legislation the Answer?, 100 Dick. L. Rev. 181, 190 (1995).

By contrast, the First Amendment has been interpreted to provide more narrow protection for commercial expression such as advertising. The Supreme Court also has placed outside the protections of the First Amendment certain limited classes of speech that are viewed as having little or no value at all because they do not promote democratic ideals: incitement, fighting words, and obscenity.

Commercial vs. Non-commercial Speech
In analyzing governmental restrictions on speech, the Supreme Court traditionally has divided speech into two categories &mdash; commercial speech and “fully protected,” non-commercial speech. Although the Supreme Court has struggled to define the differences between these two categories, there are some clear general rules. Non-commercial speech is generally viewed as political, ideological, artistic, or scientific expression. Commercial speech has been defined broadly as speech “related solely to the economic interests of the speaker and its audience,” and described more narrowly as speech that does “no more than propose a commercial transaction.”

Whether speech is categorized as commercial or non-commercial is critical because the degree of First Amendment protection varies depending on the category of speech. Traditionally, the Supreme Court has applied a “strict scrutiny” standard to non-commercial speech, while analyzing commercial speech under an “intermediate scrutiny” test. In practice, to restrict non-commercial speech, the government must prove that the restriction promotes a compelling government interest and is narrowly tailored to promote that interest. If a less restrictive alternative would serve the government’s purpose, the government must use that alternative. By contrast, to restrict commercial speech that concerns lawful activity and is not misleading, the government must prove that its interest is substantial, that the regulation directly advances the governmental interest asserted, and that it is not more extensive than is necessary to serve that interest.

Advertising Entertainment Media Products
The categorization of advertising for entertainment media products as commercial or non-commercial speech is unsettled. Although some observers argue that advertisements for movies, sound recordings, and electronic games should be viewed as commercial speech because they are merely advertising products that have been placed in the stream of commerce for profit, industry members and some First Amendment advocates assert that such advertisements should be analyzed as protected, non-commercial speech because: (i) they promote a product that itself is entitled to protection; and (ii) they often incorporate or summarize parts of the underlying non-commercial expression, and therefore are, in substance, nothing more than a particular subset of the content of the non-commercial expression.

The Supreme Court has never specifically ruled on this issue, and the existing federal and state court opinions are not uniform. At least one state court has held that an advertisement for a movie “goes beyond proposal of a commercial transaction and encompasses the ideas expressed in the motion picture which it promotes; thus it is afforded the same First Amendment protections as the motion picture. . . .” State courts in New York and California have reached opposite conclusions regarding whether promotional statements on a book cover and flyleaf constitute commercial or non-commercial speech.

Gambling
Gambling implicates First Amendment free speech concerns on two levels. Gambling is communicative by nature. Gambling also relies on advertising and a wide range of auxiliary communication services.

Historically, gambling itself has been considered a vice and consequently beyond the protection of the First Amendment. There is every reason to believe that illegal gambling remains beyond the shield of the First Amendment. Gone, however, is the notion that the power to outlaw a vice includes the power to outlaw auxiliary speech when the underlying vice remains unregulated. The U.S. Supreme Court made this readily apparent when it approved an advertising ban on gambling illegal at the point of broadcast, but invalidated an advertising ban on gambling lawful at the point of broadcast.

Although the Court’s decisions acknowledges the ambivalence of American gambling policies, they do not appear to threaten the basic premise that the First Amendment permits Congress to outlaw gambling in any form (including Internet gambling) and to ban any speech incidental to illegal gambling.

Freedom of the Electronic Press
As it first did with the printing press and again with radio and television, new technology will give rise to new ways of communicating, which amplify the ways in which individuals and organizations express themselves. Information and communications technologies, such as satellites, computers, and the Internet, are, like the telegraph, telephone, radio, and television before them, changing the range, cost, and quality of communications.

Taken together, advances in computers and telecommunications have changed the concept of “the press.” Traditionally, the term usually refers to a formal organization that gathers and publishes or broadcasts news. Such communications generally take the form of one-to-many exchange. Today, that exchange has shifted to many-to-many communications in which people with common interests share information amongst themselves, as with electronic bulletin boards.

With these changes come the prospect of new First Amendment challenges to the power of government to regulate access to and ownership of communications media. New technologies, such as electronic publishing, may not fit easily into old models of regulation, and distinctions between the First Amendment rights of print publishers, television or radio broadcasters, common carriers and the Internet will become increasingly difficult to justify.

New capabilities for the press to gather, store, and retrieve information on individuals may require that rules of liability for constitutionally protected speech be reexamined. The potential for technology to decentralize the editorial function may raise questions of editoial control and liability under the First Amendment. And, in an era of global communications, the question of whether First Amendment rights extend to foreign speakers in this country, or to speakers in foreign countries when they are heard or read here, will also be raised.

Newsgathering
In order to publish news and information, the press must have an ability to gather it in the first place. The U.S. Supreme Court has yet to decide, however, whether newsgathering is itself a protected First Amendment activity, separate from speaking and publishing.

The Supreme Court said in Branzburg v. Hayes that “it is not suggested that news gathering does not qualify for First Amendment Protection; without some protection for seeking out the news, freedom of the press could be eviscerated. . . .” However, the Court has declined to say that government has a positive duty to allow journalists special access to information. The press has access to government proceedings, records, or other information that is available to members of the public generally. Presumably, the converse is also true; access denied to the general public may also be denied to the press, but the government may not close down avenues for gathering and acquiring news that are generally available to the public, without a compelling reason.

Although the press may not, as a constitutional matter, have any greater rights to gather information than the general public, they may, as a practical matter, have a greater and more concerted ability to gather information than most individuals. Technology has greatly amplify the information-gathering resources of the press. As a result, familiar constitutional issues &mdash; pitting freedom of the press against privacy rights and national security interests &mdash; are being encountered in unfamiliar contexts. Technology is blurring the distinctions between gathering information and publishing it, and the Court will eventually have to confront the question of whether the press interests in gathering news merit constitutional protection under the First Amendment.

First Amendment and the Internet
in Reno v. American Civil Liberties Union, the U.S. Supreme Court recognized that “[t]he Internet is an international network of interconnected computers. . . ‘a unique and wholly new medium of worldwide human communication.'" As the Court stated, the Internet "constitut[es] a unique medium &mdash; known to its users as ‘cyberspace’ &mdash; located in no particular geographical location but available to anyone, anywhere in the world." The Court recognized further that “cyberspace” contains “vast democratic fora” and that the “content on the Internet is as diverse as human thought” itself.

Speech on the Internet is accorded First Amendment protection. As stated by the U.S. Supreme Court:


 * “Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer. . . . [O]ur cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”

Unlike newspapers or radio or broadcast television or even on-demand television, the Internet gives Americans “a great degree of control over the information that they receive.” Consequently, the Internet “offer[s] a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.” Recognizing the Internet’s dynamic potential, Congress set forth the federal policies of “promot[ing] the continued development of the Internet” and of “encourag[ing] the development of technologies [that] maximize user control over what information is received by individuals. . . who use the Internet” as part of the Telecommunications Act of 1996.

Impact of Science and Technology
Science and technology may affect the balance between First Amendment rights and government interest by changing power relationships between individuals and between the individual and the State. As it first did with the printing press, technology will give rise to new ways of communicating, which amplify the ways in which individuals and organizations express themselves. Information and communications technologies, such as satellites, computers, and the Internet are, like the telegraph, telephone, radio, and television technologies before them, changing the ways in which we communicate ideas, theories, opinions, and incitements to action &mdash; they affect who can say what, to whom, to how many, and at what cost.

Taken together, advances in computers and telecommunications may change the concept of “the press” from one in which one organization publishes for many to one in which many share information amongst themselves. With these changes will come new First Amendment challenges to the power of the government to regulate access to and ownership of communications media. New technologies, such as electronic publishing, may not fit easily into old models of regulation, and First Amendment distinctions between the rights of print publishers, broadcasters, and common carriers will become increasingly difficult to justify.

The open communication of scientific information &mdash; data, hypotheses, conclusions, explanatory theories, technological know-how &mdash; is a special kind of speech or publication. There no consensus on the question as to whether scientific communication enjoys the full protection provided by the First Amendment to political communications.

It is well established that scientific communication can be limited when necessary to protect national security. But how severe can and should that limitation be? As science and technology become ever more important to our economy and our military strength, the delicate balance between individual rights and the national interest becomes both more important and more difficult to maintain. Do the limits imposed by classification, congressionally legislated restrictions, and export controls, collectively negate the right of free speech and free press in the field of science?

In fields such as mathematics, biology, or physics, basic research results in certain areas can have direct and immediate implications for technological development. In those case where the line between basic knowledge (science) and its implementation (technology) becomes thin and difficult to discern, a balance between the right of expression and interest of the state in preserving security is very difficult to achieve. There are likely to be many situations in the future in which the government will assert compelling reasons for limiting basic scientific communications.

Privacy
First Amendment principles also bear on privacy, both in the sense of protecting it, but more often in terms of overriding privacy protection in the interests of protecting speech and press.

Electronic surveillance
Two First Amendment concerns arise with regard to electronic surveillance &mdash; access to records, and related investigatory activities. One addresses direct restrictions on speech that may accompany government collection of private information, such as non-disclosure requirements accompanying orders compelling government access to business records. A second concern is that overly broad authorities permitting government intrusion may lead to a “chilling” (i.e., stifling) effect on public discourse.

Some post-9/11 laws address the latter issue directly, for example by prohibiting investigations based solely on a person’s First Amendment activities. Despite safeguards, there is concern that post-9/11 authorities may have been used to circumvent First Amendment limitations on analogous authorities.