12.3 Speech in Government Settings, Expressive Conduct, Prior Restraints, Press & Association

12.3 Speech in Government Settings, Expressive Conduct, Prior Restraints, Press & Association

Some First Amendment questions arise when the government acts as employer, educator, funder, or speaker, or regulates conduct rather than words. Others involve the press and the right to associate. The rules in this section modify the general framework in Section 12.2, so identify the government's role before choosing a test.

---

Overarching Speech Protections: Vagueness, Overbreadth, & Prior Restraints

• Void-for-Vagueness: A statute is unconstitutionally vague under the Due Process Clause if a person of ordinary intelligence cannot understand what conduct is prohibited, or if it authorizes arbitrary and discriminatory enforcement (Kolender v. Lawson).
• Substantial Overbreadth: A law is unconstitutionally overbroad if it punishes a substantial amount of protected speech relative to its plainly legitimate sweep (Broadrick v. Oklahoma). An overbroad statute is facially invalid; even a defendant whose own conduct was unprotected can challenge the law facially.
• Prior Restraints: Government orders, injunctions, or licensing schemes that prevent speech before it occurs face a heavy constitutional presumption against validity (Near v. Minnesota, New York Times Co. v. United States - Pentagon Papers). A licensing scheme is constitutional only if it contains narrow, objective, and definite standards leaving no unfettered discretion to government officials, coupled with prompt judicial review (City of Lakewood, Freedman v. Maryland).

---

Speech in Government Employment, Schools, and Funding

Public Employees

• Balancing test: A public employee speaking as a citizen on a matter of public concern is protected unless the government's interest in efficient public services outweighs the employee's interest in speaking (Pickering v. Board of Education, 1968, protecting a teacher's letter to a newspaper criticizing the school board).
• Public concern: Speech about internal office grievances is not a matter of public concern (Connick v. Myers, 1983).
• Official duties: Statements made pursuant to an employee's official duties are not protected, such as a prosecutor's internal memorandum about a warrant affidavit (Garcetti v. Ceballos, 2006). Truthful sworn testimony given under subpoena outside the employee's ordinary job duties is citizen speech (Lane v. Franks, 2014).
• Political affiliation: Government may not fire, promote, or hire most public employees based on political party affiliation unless affiliation is an appropriate requirement for the job (Elrod v. Burns, 1976; Branti v. Finkel, 1980; Rutan v. Republican Party of Illinois, 1990).
• Union fees: Public employees may not be required to pay fees to a union unless they affirmatively consent (Janus v. AFSCME, 2018).
• Oaths: Government may require employees to swear to support the Constitution and oppose its overthrow by unconstitutional means (Cole v. Richardson, 1972), but not to take vague oaths or disclaim mere membership in groups.

Students in Public Schools

Government Speech, Funding Conditions, and Coercion

• Government speech: When the government speaks for itself, it may choose its message. Permanent monuments in a public park (Pleasant Grove City v. Summum, 2009) and specialty license plate designs (Walker v. Texas Division, Sons of Confederate Veterans, 2015) are government speech. By contrast, a city program that let private groups raise flags of their choosing at City Hall was not government speech, so refusing a religious group's flag was viewpoint discrimination (Shurtleff v. City of Boston, 2022). Trademark registration is not government speech (Matal v. Tam, 2017).
• Defining a program: Government may decline to fund activities outside its program, such as abortion counseling in a federally funded family-planning program (Rust v. Sullivan, 1991), and may consider decency and respect for diverse beliefs in awarding arts grants (National Endowment for the Arts v. Finley, 1998).
• Leveraging funds: Government may not require funding recipients to adopt a policy position as a condition of funding (Agency for International Development v. Alliance for Open Society International, 2013), forbid public broadcasters receiving federal funds from editorializing (FCC v. League of Women Voters, 1984), or bar funded legal-aid lawyers from challenging welfare laws (Legal Services Corp. v. Velazquez, 2001).
• Indirect coercion: Officials may not threaten private parties to punish or suppress speech the government disfavors. A state financial regulator's alleged pressure on insurers to cut ties with a gun-rights group stated a First Amendment claim (National Rifle Ass'n of America v. Vullo, 2024).
• Permit fees: A parade permit fee may not vary based on the expected hostility of the audience, because that makes the fee depend on the content of the speech (Forsyth County v. Nationalist Movement, 1992).

Expressive Conduct

1. Is the conduct expressive? Conduct is expressive if the actor intends to convey a particularized message and viewers are likely to understand it (Spence v. Washington, 1974). Requiring law schools to give military recruiters equal access regulates conduct, not speech (Rumsfeld v. FAIR, 2006).
2. Is the law aimed at the message? If the government's interest is related to suppressing expression, strict scrutiny applies. Laws punishing flag burning to protect the flag's symbolic meaning are invalid (Texas v. Johnson, 1989; United States v. Eichman, 1990).
3. If not, apply United States v. O'Brien (1968). A regulation of conduct with an incidental effect on expression is valid if it is within the government's constitutional power, furthers an important or substantial interest, the interest is unrelated to suppressing expression, and the incidental restriction is no greater than essential. O'Brien upheld a conviction for burning a draft card; Clark v. Community for Creative Non-Violence (1984) upheld a ban on sleeping in certain parks; and public-nudity bans have been upheld as applied to nude dancing (City of Erie v. Pap's A.M., 2000).
4. Cross burning: A state may ban cross burning done with intent to intimidate, but it may not treat the burning itself as prima facie evidence of that intent (Virginia v. Black, 2003).

Compelled Speech and Editorial Choices

• The government may not compel students to salute the flag (West Virginia State Board of Education v. Barnette, 1943) or require drivers to display a state motto on license plates (Wooley v. Maynard, 1977).
• A state may not use a public-accommodations law to force a website designer to create custom wedding websites expressing messages she disagrees with (303 Creative LLC v. Elenis, 2023), or force private parade organizers to include a group whose message they do not wish to convey (Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 1995).
• A social-media platform's curation of third-party content in its feeds is expressive activity, and a facial challenge to a law regulating such curation requires analyzing the law's full range of applications (Moody v. NetChoice, LLC, 2024).
• Requirements that commercial advertisers disclose purely factual and uncontroversial information are reviewed more leniently if they are reasonably related to preventing deception and not unduly burdensome (Zauderer v. Office of Disciplinary Counsel, 1985).

Campaign Finance

• Contributions versus expenditures: Contribution limits are valid when closely drawn to prevent quid pro quo corruption or its appearance, but limits on independent expenditures are invalid (Buckley v. Valeo, 1976).
• Corporations and unions: The government may not ban independent political expenditures by corporations or unions (Citizens United v. FEC, 2010), although disclosure requirements are generally valid.
• Other limits struck down: Aggregate limits on the total a donor may give to all candidates (McCutcheon v. FEC, 2014) and a limit on using post-election contributions to repay a candidate's personal loans to the campaign (FEC v. Ted Cruz for Senate, 2022) violated the First Amendment.

Freedom of the Press

• No special privileges: Reporters have no First Amendment privilege to refuse to testify before a grand jury (Branzburg v. Hayes, 1972), and the press has no greater right than the public to access prisons (Houchins v. KQED, Inc., 1978).
• Access to criminal proceedings: The public and press have a right to attend criminal trials (Richmond Newspapers, Inc. v. Virginia, 1980) and preliminary hearings (Press-Enterprise Co. v. Superior Court, 1986), which may be closed only when necessary to serve an overriding interest and narrowly tailored. Mandatory closure during all testimony by minor sex-offense victims is invalid; closure must be decided case by case (Globe Newspaper Co. v. Superior Court, 1982).
• Publishing lawfully obtained truthful information: A state may punish publication of truthful information lawfully obtained about a matter of public significance only to further a state interest of the highest order (Smith v. Daily Mail Publishing Co., 1979; Florida Star v. B.J.F., 1989; Bartnicki v. Vopper, 2001).
• Gag orders: Orders forbidding the press from reporting on criminal proceedings are almost never valid (Nebraska Press Ass'n v. Stuart, 1976).
• Taxes: The press is subject to generally applicable taxes, but a special tax singling out the press (Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue, 1983) or a tax exemption based on content (Arkansas Writers' Project, Inc. v. Ragland, 1987) is invalid.
• Broadcasting and the internet: Broadcast media may be regulated more extensively because of spectrum scarcity (Red Lion Broadcasting Co. v. FCC, 1969; FCC v. Pacifica Foundation, 1978), but speech on the internet receives full First Amendment protection (Reno v. ACLU, 1997).

Freedom of Association

• Disclosure: Compelled disclosure of membership lists or donors is subject to exacting scrutiny, which requires a substantial relation to a sufficiently important interest and narrow tailoring (NAACP v. Alabama ex rel. Patterson, 1958). A state's blanket requirement that charities give the attorney general the names of their major donors failed that test (Americans for Prosperity Foundation v. Bonta, 2021).
• Punishing membership: A person may be punished for membership in a group only if the person knows of the group's illegal aims and specifically intends to further them (Scales v. United States, 1961).
• Antidiscrimination laws: A state's compelling interest in eliminating sex discrimination justified requiring a large civic organization to admit women, with little effect on its expression (Roberts v. United States Jaycees, 1984). But forcing an expressive organization to accept a leader whose presence would significantly burden its message violates its expressive association (Boy Scouts of America v. Dale, 2000). A public law school's requirement that recognized student groups accept all comers was a reasonable, viewpoint-neutral condition in a limited public forum (Christian Legal Society v. Martinez, 2010).
• Political parties: A state may not force a political party to open its primary to voters who are not party members (California Democratic Party v. Jones, 2000).