FAQ

First Amendment Center (6)

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The Newseum Institute’s First Amendment Center does not provide legal representation and does not fund litigation. We’re a nonprofit organization focused on education and information about First Amendment issues.

No, you need a qualified attorney for that. Laws differ from state to state. Martindale, Findlaw and other online legal services offer ways to find lawyers by specialty where you live. However, the information posted on our site may help you and your attorney. Use the search engine for topics or terms that interest you.

The mission of the Newseum Institute’s First Amendment Center is to serve as a nonpartisan source of information, rather than as a participant in legal disputes. Therefore, the Center does not file amicus briefs.

No. We are an educational organization. We provide information and sometimes expert testimony that members of Congress or others may find useful, but we do not lobby.

Our website has a wealth of information that may be useful in your project. Search the site for your topic and other terms that interest you. If you quote or paraphrase our information, be sure to cite where you obtained it.

Yes, as schedules and duties permit, Newseum Institute’s First Amendment Center experts speak to groups and conferences or participates in programs. Generally, the inviting group must fund travel-related expenses for the First Amendment Center participant. The Center welcomes invitations to participate in nonpartisan, educational events about First Amendment issues.

Free Spirit (11)

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The Close Up Foundation, which has been bringing high school students to Washington, D.C., for 30 years, will handle travel logistics. The foundation also will provide supervision and oversight of participants.

No. All scholars are required to participate in the entire conference. This is an inspiring opportunity to interact with distinguished journalists, visit newsrooms, tour Washington and share experiences with other Free Spirit Scholars.

Applicants must be U.S. citizens or permanent residents.

The deadline is Feb. 1, 2017. Applications must include the completed application, journalistic work, two essays, letters of reference, a high school transcript, and a color headshot photo. Incomplete applications will not be accepted.

Applications may be accepted beyond the deadline from select states that have an insufficient number of qualified applicants.

No. Applicants are not required to list SAT or ACT scores, because juniors typically don’t take the exams until spring. However, scores should be supplied if they are available.

Freedom of Speech (73)

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It depends on the court and the context. If the student’s speech is deemed to be school-sponsored or endorsed by the school, the student prayer would violate the establishment clause. Some courts have determined that purely student-initiated speech would not run afoul of the establishment clause.

Two federal appeals court decisions show how the courts are divided on this issue.

In October 2000, the 9th U.S. Circuit Court of Appeals rejected a First Amendment challenge brought by students in California who were denied the right to make a religious speech at graduation. The court determined that school district officials reasonably prevented the student’s religious speech to avoid violating the establishment clause. Additionally, in Cole v. Oroville Union High School, the court determined that even “if the graduation ceremony was a public or limited public forum, the District’s refusal to allow the students to deliver a sectarian speech or prayer as part of the graduation was necessary to avoid violating the Establishment Clause.”

However, in May 2001, the 11th U.S. Circuit Court of Appeals refused to strike down a Florida school district policy allowing an elected student to deliver an unrestricted message at graduation. The court in Adler v. Duval County School Board determined that “it is impossible to say that … [the policy] on its face violates the Establishment Clause without effectively banning all religious speech at school graduations, no matter how private the message or how divorced the content of the message may be from any state review, let alone censorship.”

 

Yes and no. Public universities may not completely prevent students from independently printing and distributing written materials on their campus, but they may impose reasonable time, place, and manner restrictions on their distribution. For example, a school may establish certain places on campus as the proper locations for those wishing to pass out written materials, or they may prohibit distribution at times where it could reasonably block the passage of students to and from classes. But the open spaces of a college campus are generally presumed to be an open forum for the purpose of student expression, including written expression.

No, not conclusively. One scholar who analyzed about 200 recent studies of media violence said none provided support for the existence of a cause-and-effect relationship between violent imagery and actual violence. Japanese and Canadian TV programming is more violent than American TV, but those societies have much lower violent-crime rates than the United States.

The Federal Election Commission in 1979 issued a regulation allowing political parties to raise funds for “party-building” efforts — such as voter registration drives and TV advertising. This “soft money” remains outside the normal rules that require reporting the source and amount of donations. It was originally justified as a way for parties to remain viable as entities separate from their candidates. But over the years, soft-money donations from corporations and unions — otherwise barred from making donations — to political parties have skyrocketed. And the national parties have transferred much of the money to state party accounts that are used to influence specific elections. The growth of soft money was seen by reformers as thwarting the purpose of all campaign-finance regulations.

No, the First Amendment does not limit private employers. The Bill of Rights — and the First Amendment — limit only government actors, not private actors. This means that private employers can restrict employee speech in the workplace without running afoul of the First Amendment. Private employees would have to rely on other sources of law (e.g., contract law, tort law or state employment statutes) to seek relief in court.

Public employers also can set rules for employee behavior in the workplace. However, public employers are government actors and are subject to the limitations of the Bill of Rights, including the First Amendment.

 

Public school students possess a range of free-expression rights under the First Amendment. Students can speak, write articles, assemble to form groups and even petition school officials on issues. The U.S. Supreme Court has said that students “do not shed their constitutional rights to freedom of speech and expression at the schoolhouse gate.”

There is a fundamental distinction between public and private school students under the First Amendment. The First Amendment and the other provisions of the Bill of Rights limit the government from infringing on an individual’s rights. Public school officials act as part of the government and are called state actors. As such, they must act according to the principles in the Bill of Rights. Private schools, however, aren’t arms of the government. Therefore, the First Amendment does not provide protection for students at private schools.

Though public school students do possess First Amendment freedoms, the courts allow school officials to regulate certain types of student expression. For example, school officials may prohibit speech that substantially disrupts the school environment or that invades the rights of others. Many courts have held that school officials can restrict student speech that is lewd.

Many state constitutions contain provisions safeguarding free expression. Some state Supreme Courts have interpreted their constitutions to provide greater protection than the federal Constitution. In addition, a few states have adopted laws providing greater protection for freedom of speech.

Freedom of the Press (39)

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Many different types of conduct can cause someone to file an intrusion/invasion-of-privacy lawsuit. Common examples include trespassing on private property without the owner’s consent; installing hidden cameras or other secret surveillance equipment to monitor someone’s behavior; and harassing a person by continually following him.

An example of conduct that was held to be intrusive enough to warrant judicial relief was the case of paparazzi photographer Ron Galella. Galella was relentless in his pursuit of photographs of Jackie Onassis and her children. After a court injunction and appeal, Galella was prohibited from approaching within 25 feet of Jackie O., blocking her movement in any public place and engaging in “any conduct which would reasonably be foreseen to harass, alarm or frighten the defendant.”

The First Amendment provides only the minimum level of constitutional protection. The states are free to provide additional protection under their own state laws, including their state constitutions. This notion of “dual federalism,” envisioned by the Framers, thus provides citizens and others with two important levels of legal protection by which to safeguard our rights.

A prior restraint is a legal restraint on material before publication. It’s an order that prevents publication.

In criminal libel, the theory is that the damage is to the public rather than to a private individual. Therefore, the state becomes the prosecuting entity against an individual speaker. Presumably, the individual’s libelous statement would have to be deemed serious enough to warrant removing the case from the civil realm. The defamation involved in criminal libel could be of another individual, a public official, a government entity, a group, or even a deceased person.

In theory, the protection against prior restraint applies to all speakers. Practically, however, fewer circumstances exist in which individuals can assert this protection. Moreover, in light of the balancing test suggested in Landmark Communications, a court might be more likely to find that the government’s interest in preventing harmful speech outweighs an individual’s interest in disseminating sensitive information.

No. In Sullivan (1964), as well as in Garrison v. Louisiana the same year, the Supreme Court extended some First Amendment protection to some false statements of fact leveled against public officials and public figures. But it did not find criminal libel unconstitutional.

Freedom of Religion (89)

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Selecting a Bible for use in literature, history or elective Bible courses is important, since there is no single Bible. There is a Jewish Bible (the Hebrew Scriptures, or Tanakh), and there are various Christian Bibles — such as Catholic, Protestant and Orthodox — some with additional books, arranged in a different order. These differences are significant. For example, Judaism does not include the Christian New Testament in its Bible, and the Catholic Old Testament has 46 books, while the Protestant has 39. There are also various English translations within each of these traditions.

To adopt any particular Bible — or translation — is likely to suggest to students that it is normative, the best Bible. One solution is to use a biblical sourcebook that includes the key texts of each of the major Bibles or an anthology of various translations.

At the outset and at crucial points in the course, teachers should remind students about the differences between the various Bibles and discuss some of the major views concerning authorship and compilation of the books of the Bible. Students should also understand the differences in translations, read from several translations, and reflect on the significance of these differences for the various traditions.

The Supreme Court has declined to address this issue, though the lower courts strongly favor the constitutionality of such holidays. The 9th Circuit in 1991 upheld legislation making Good Friday a state holiday in Cammack v. Waihee, reasoning that the absence of a major traditional holiday in the spring created a state interest in decreeing one, and that it made sense for the legislature to select a day that would already be used by the majority of citizens as a holiday. This decision set the stage for the 4th and 6th Circuits to issue similar rulings. The 7th Circuit disagreed in Metzl v. Leininger (1994), holding that because Good Friday is an exclusively Christian holiday that has in no way been secularized, as have Christmas and Easter, its elevation to the status of a state holiday was unconstitutional, because it sent a message of endorsement to the public, even if the practical result was neither to advance nor inhibit religion. The holding in Metzl did allow for a finding of constitutionality, however, if the legislature would merely make the effort to advance a secular reasoning for the case.

They may engage in lobbying activities as long as the lobbying does not form a “substantial part” of their activities. According to the IRS, lobbying is “attempting to influence legislation” and “an organization will be regarded as attempting to influence legislation if it contacts, or urges the public to contact, members or employees of a legislative body for the purpose of proposing, supporting, or opposing legislation, or if the organization advocates the adoption or rejection of legislation.” The IRS says it “considers a variety of factors, including the time devoted (by both compensated and volunteer workers) and the expenditures devoted by the organization to the activity, when determining whether the lobbying activity is substantial.” According to the courts, devoting 5% of an organization’s time and effort to political activity is not considered substantial within the meaning of the IRS Code. See Seasongood v. Commissioner.

Given the importance and influence of religion, public schools should include study about religion in some depth on the secondary level. As already suggested, such study may include study about the Bible, where appropriate, in history and literature courses as well as in elective courses that deal with the Bible.

However, a course that includes study about the Bible and its influence will not educate students about religion generally. Just as there is more to history than American history, so there is more to religion than the Bible, Judaism and Christianity.

Public schools should also include study about other religious faiths in the core curriculum and offer electives in world religions. Because religion plays a significant role in history and society, study about religion is essential to understanding both the nation and the world. Moreover, knowledge of the roles of religion in the past and present promotes crosscultural understanding in our increasingly diverse society.

Some school districts require that high schools offering a Bible elective also offer an elective in world religions. There is considerable merit in this approach. This gives students an opportunity to learn about a variety of religions and conveys to students from faiths other than the biblical traditions that their religions are also worthy of study. It is important for public schools to convey the message that the curriculum is designed to offer a good education, and not to prefer any religious faith or group.

Yes. Where the state determines that a day of rest would be desirable in some kinds of businesses and not in others, they are permitted to restrict only those that they deem to be necessary. Likewise, the state may decide to forbid or limit the sale of certain items (such as alcohol) on any given day, so long as the decision is justified by some secular purpose instead of a religious one. In a 1999 decision, Harris County, Texas v. CarMax Auto Superstores, Inc., the 5th U.S. Circuit Court of Appeals upheld a Texas law that forbade car dealerships from being open on consecutive Saturdays and Sundays. Effectively this forced the business owners to choose one day or the other as a day of rest for their employees, though it did not dictate any particular preference as to which one should be adopted. The court denied that the law unfairly discriminated against car dealers or established any sort of preference for religion as opposed to no religion.

No, all states include a medical exemption in their vaccination policy, and almost half of the states offer philosophical exemptions in addition to their medical and religious accommodations.

Freedom of Assembly (13)

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Generally, no. The Bill of Rights provides protection for individual liberty from actions by government officials. This is called the state-action doctrine. Private property is not government-owned. Restrictions on individuals’ free-speech rights on private property do not involve state action.

However, a few states have interpreted their own state constitutions to provide even greater free-speech protection than the federal Constitution offers. For example, the New Jersey Supreme Court has ruled that individuals have free-speech rights at privately owned shopping malls. Most state supreme courts that have examined the issue have disagreed. In April 2002, the Iowa Supreme Court refused to extend its definition of public property to include large, privately owned shopping malls.

A 2010 case, Snyder v. Phelps, involved whether a verdict assessing damages against the Westboro Baptist Church for a protest causing emotional distress to a soldier’s family violates the First Amendment.

In a somewhat related case, the Court in Frisby v. Schultz (1988) upheld a Wisconsin city ordinance banning picketing in front of private residences. “The type of picketers banned by the Brookfield ordinance generally do not seek to disseminate a message to the general public, but to intrude upon the targeted resident, and to do so in an especially offensive way,” Justice Sandra Day O’Connor wrote for the Court. The Court has also decided a series of cases involving limitations on abortion protesters outside clinics. For example, in Hill v. Colorado (2001), a divided Court (6-3) upheld a Colorado law that imposed an 8-foot floating buffer zone between protesters and those entering and leaving abortion facilities.

 

A law discriminates on the basis of viewpoint if it singles out a specific point of view for regulation. Consider a protest at a military funeral in which demonstrators denigrated the soldier and offended family members. If government officials punished that protest but allowed a demonstration praising the deceased, a serious charge of viewpoint discrimination could be leveled, because only protesters advocating a specific type of message were targeted.

The U.S. Supreme Court held on Feb. 28, 2006, in a case involving anti-abortion protests, that federal extortion and racketeering laws cannot be used to ban demonstrations. Use of those laws against protesters also was opposed by unions and a variety of social activists. Many states currently are considering laws that would ban protests at funerals, but those bans would be based on different kinds of laws. The proposed state bans often set out time limits starting before and ending after funeral services, or map out physical distances to separate families from demonstrators.

As a general rule, the government cannot ban speech — including public protests — because of the protest’s “content,” or subject matter. Government can restrict the time, place and manner of the speech in order to meet a higher need, such as public safety. What a demonstrator might say without challenge at noon in the public square likely would have First Amendment protection, while that same speech at midnight under an apartment building window likely would not.

No. The government can limit such protests depending on several factors. First, violent protests are outlawed anywhere. The text of the First Amendment provides for “the right of the people peaceably to assemble.” The key word is “peaceably” — violent protesting is not allowed.

Second, not all government property is treated the same for First Amendment purposes. The U.S. Supreme Court has established the public-forum doctrine to examine whether certain types of public property are open to First Amendment expressive activity. These categories include traditional public forums, limited or designated public forums and nonpublic forums. Still other government property is not considered a forum at all.

First Amendment rights apply the most in a traditional public forum, such as a public park. In its 1939 decision Hague v. C.I.O. the U.S. Supreme Court explained: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”

The general rule is that government officials may not impose content-based restrictions on speech in a public forum. This means that city officials must not treat different persons and groups of persons differently on the basis of the content (and viewpoint) of their messages. The government can justify content-based speech restrictions only by showing that it has a compelling state interest in imposing them (such as safety or security concerns), and that it has done so in a narrowly tailored way. Even in a public forum, the government may impose reasonable time, place and manner restrictions that are content-neutral, leave open ample, alternative ways for expression and are narrowly tailored. This means that city officials could limit protests to certain hours of the day and perhaps certain locations. Again, the key terms are “reasonable” and “content-neutral.”

The next category is a limited or designated public forum (though some lower courts distinguish between limited and designated — see discussion in Speaking at public meetings section).

In a limited public forum (such as a meeting room on a public college campus that is frequently used by outside groups), the government designates the certain types of subject matter that can be discussed at the location. After the government has created such a forum, setting boundaries on classes of speakers or topics, the government must meet the standards of a traditional public forum; namely, restrictions on speech must be reasonable and viewpoint-neutral. The theory is that when the government opens a forum up to the public, it shouldn’t be able to skew discussions by over-regulating expression.

Still another category is the nonpublic forum, a place where the government has greater leeway for control, as restrictions on expression must only be reasonable and viewpoint-neutral. What this means is that the right to protest is often affected by the location and purpose of the government property where the protest takes place. In United States v. Grace (1983), the U.S. Supreme Court wrote that the “public sidewalks forming the perimeter of the Supreme Court grounds, in our view, are public forums and should be treated as such for First Amendment purposes.” The same protest rights would not apply inside the Supreme Court building or on the steps right outside the Court. In U.S. v. Kokinda (1990), the U.S. Supreme Court ruled that postal sidewalks were not public forums, writing that they do “not have the characteristics of public sidewalks traditionally open to expressive activity.” The Court clarified that “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.”

In sum, there is no unfettered right to protest on government property. Protests must be peaceable, and the government has the right to impose content-neutral, reasonable time, place and manner restrictions on expression. Furthermore, as the Supreme Court said in Kokinda, “the government’s ownership of property does not automatically open that property to the public.”

The government has greater power to regulate expression when it acts as a proprietor controlling its internal operations than it does as a sovereign lawmaker. This means that government officials could limit protests inside a courthouse because the government has important operations to conduct. It must be able to control its operations to carry out its functions. The government must be able to carry on its own speech and expression free from interference. Contrast this with the public sidewalks two blocks from a courthouse. Here, the government cannot argue that it is conducting its own internal operations. Speech restrictions there would implicate a forum analysis and trigger a higher degree of judicial scrutiny.

Simply attending peaceful meetings of an organization will not make a person guilty, even if other members of that organization commit lawless acts. Guilt can be shared only if the organization and its members have a common plan to break the law.

Freedom to Petition (9)

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No. The right to such legal resources in prison falls under due process.

Historically, a petition was a written request stating a grievance and requesting relief from a ruling authority such as a king. In modern America, petitioning embraces a range of expressive activities designed to influence public officials through legal, nonviolent means.

The right to petition reaches back at least to the Magna Carta in 1215. The English Declaration of Rights in 1689 confirmed that subjects were entitled to petition the king without fear of prosecution.

Courts seldom address the petition clause in isolation, instead grouping it with other rights to free association and collective speech. The U.S. Supreme Court has noted that the right to petition at least provides the opportunity to institute nonfrivolous lawsuits and mobilize popular support to change existing laws in a peaceful manner.

No. The U.S. Supreme Court has incorporated the petition clause of the First Amendment as part of the 14th Amendment’s guarantees against the states. The petition clause applies equally to state and local governments and protects petitions directed to the judicial, executive and legislative branches.

The First Amendment does not mandate that the government consider the public’s petitions or actually provide any “redress.” At a minimum, the government must have a mechanism for receiving complaints and grievances from the public, even if only to file them without consideration. Of course, due process — the guarantee that justice will be administered fairly — would apply if a citizen’s “petition” took the form of a court case.