FAQ

First Amendment Center (6)

View category →

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)

View category →

No. Freedom Forum will pay all expenses for travel, lodging, ground transportation and meals for participants. Additional details will be sent to the winners in mid-April 2017.

The conference will be held June 16-21, 2018, at the Newseum. Scholars will stay in a Washington, D.C., area hotel.

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, 2018. 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.

Freedom of Speech (73)

View category →

Yes, the U.S. Supreme Court ruled in Reno v. ACLU (1997) that speech on the Internet receives the highest level of First Amendment protection. The Supreme Court explained that “our cases provide no basis for qualifying the level of First Amendment scrutiny that should be applied to this medium.”

Preserving the speech rights of students and maintaining the integrity of public education are not mutually exclusive. Schools should model First Amendment principles by encouraging and supporting the rights of students to express their ideas in writing. On the other hand, students should not expect to have unfettered access to their classmates and should be prepared to abide by reasonable time, place and manner restrictions. Schools must continue to maintain order, discipline and the educational mission of the school as they seek to accommodate the rights of students.

Why shouldn’t public colleges be allowed some say in the type of research done by their professors or the funding sources if a line of inquiry might negatively affect the school?

To allow colleges to restrict a field of research, either by censuring a professor or by limiting funding, would be to suggest that no academic advances should be made in that field. Such an attitude would seem to run contrary to the purpose of institutions of higher education. Where a college blocks a professor’s efforts to research a particular issue, the implication is that the censors fear what might be found.

As government entities, public universities are just as precluded by West Virginia v. Barnette from deciding “what shall be orthodox” as Congress is. That means that although a school administration may question the methodology or classroom performance of a professor, it cannot prohibit a field of inquiry simply because the subject is controversial.

Local community standards are difficult to apply on the global medium of the Internet because Web publishers cannot limit access to their sites based on the geographic location of Internet users. For this reason, several U.S. Supreme Court justices expressed their discomfort with applying local standards in determining what material is harmful to minors under the now-defunct Child Online Protection Act (COPA) in Ashcroft v. ACLU (2002).

Justice Sandra Day O’Connor, for example, advocated the adoption of a “national standard for regulation for obscenity of the Internet.” Justice Stephen Breyer reasoned that COPA should be read to include a national standard. Other justices expressed concern about the notion of local community standards, as well.

 

Probably.

In 1991, Congress enacted the Telephone Consumer Protection Act. Part of this act made it unlawful to send unsolicited advertisements to a fax machine without the recipient’s prior permission. However, in 2005 the Junk Fax Prevention Act was signed into law. That act amended the TCPA to allow faxes to be sent to recipients, without prior consent, if there is an established business relationship.

An established business relationship is a prior or existing relationship formed by a voluntary two-way communication between the sender and the recipient. However, the JFPA also allows senders to fax those whose numbers they received from “a directory, advertisement, or site on the Internet to which the recipient voluntarily agreed to make available its facsimile number for public distribution.” There is no time limit on this exception. So, if a fax number appeared on such a list 10 years ago and a sender obtains that list, they can send faxes to that number without being penalized. If a fax owner never put his or her fax number on any type of list that could be available to the public and has no business relationship with a sender, he or she can sue the sender of the unsolicited fax.

However, some states may have laws regulating faxes sent within their states that are more stringent than the JFPA.

Yes. An ad placed on someone else’s Web page for a fee would be considered to be a “public communication” under the regulations. To take this question one step further, paying to place an ad on another’s website may result in a contribution or expenditure. All disclaimer requirements would also apply in this situation.

Yes, it does. If the student uses school computers to create his material, school officials have jurisdiction and more legal authority to regulate the expression. School officials would likely argue that they could censor such expression as long as they had a reasonable educational reason for doing so under the Supreme Court’s 1988 ruling in Hazelwood School District v. Kuhlmeier. When students use school computers, they are also subject to the school’s acceptable-use Internet policy. Most schools have policies that set limits on students’ Internet usage.

Freedom of the Press (39)

View category →

Truth is an absolute defense to libel claims, because one of the elements that must be proven in a defamation suit is falsity of the statement. If a statement is true, it cannot be false, and therefore, there is no prima facie case of defamation. There are numerous jurisdictions (including Florida) that have adopted the substantial-truth doctrine, which offers protection to a defendant of a defamation claim, as long as the “gist” of the story is true.

In the 1964 ruling New York Times v. Sullivan, the U.S. Supreme Court held that the First Amendment protects the publication of all statements regarding public officials unless the statement was made with actual malice — “with knowledge of its falsity or with reckless disregard of whether it was true or false.” The Court set a new standard by requiring that a public-official defamation plaintiff show evidence of actual malice by clear and convincing evidence. If the plaintiff is a private person, then only negligence needs to be proven, assuming the defamatory statement was false. However, if the private person wants to recover punitive damages, she must show that actual malice existed, as well.

Assuming that sidebar conferences and meetings in chambers are not being used to circumvent hearings that should be held in open court, the right of access does not extend to such discussions. Courts that have considered this issue have denied access on the grounds that there is no historical tradition of access to these portions of a trial. These discussions, however, almost always are recorded by the court reporter, and many courts, if asked, will release transcripts of the discussions after the trial.

Yes, newspapers do have a First Amendment right to refuse letters to the editor and ads. Since they are privately owned entities whose editors have editorial control, they are free to promote whatever political, social or economic view they wish.

The U.S. Supreme Court addressed the issue of editorial control and freedom of the press in 1974 in the case Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241. This case concerned a Florida political candidate who brought suit against The Miami Herald pursuant to the state’s “right-to-reply” statute after the paper refused to print the candidate’s reply to editorials critical of him. The statute in question required a newspaper to provide equal space to a political candidate to reply to any criticism of the candidate’s personal character or official record printed by the newspaper. The Supreme Court found the statute to be unconstitutional in that it violated the First Amendment right to a free press.

The Court wrote:

“A newspaper is more than a passive receptacle or conduit for news, comment, and advertising. The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials — whether fair or unfair — constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.”

 

Generally, the material published must be private information that “is not of legitimate concern to the public.” Its disclosure must also be “highly offensive to a reasonable person.” Material private enough to trigger this tort claim could include disclosure of sexual orientation, medical history, or other personal, private facets of a person’s life. The pressing question in public disclosure of private-facts cases is whether the information is newsworthy or of legitimate concern to the public. Newsworthiness is evaluated by an examination of several factors, including the social value of the disclosed material, the depth of intrusion into personal life, and the extent to which the person is already in public view. Even Louis Brandeis and Samuel Warren, authors of a famous 1890 law review article, “The Right To Privacy,” wrote: “The right to privacy does not prohibit any publication of matter which is of public or general interest.”

Anonymous juries were first used in the late 1970s and the early 1980s in trials of drug kingpins and other defendants who posed a special danger to jurors. In those cases and in cases in which there is a high risk of jury tampering, anonymous juries are necessary to protect both jurors and the integrity of the judicial system. Since the mid-1990s, however, judges often have empaneled anonymous juries in cases, including civil cases, in which the only “risk” to jurors is the possibility of being approached for press interviews after the case. Anonymous juries should not be used so lightly, however, particularly because being anonymous almost always suggests to jurors that the defendant is dangerous. An anonymous jury is also often beyond scrutiny, even by the parties in the case. One of the jurors in the anonymous jury seated to hear one of mobster John Gotti’s trials, for example, was a man with ties to organized crime. Many believe this juror contacted Gotti’s attorneys, arranged for a bribe and ensured Gotti’s acquittal. Because of the jurors’ anonymity, neither the prosecutors nor the news media were aware of this juror’s background until after the trial.

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.”

Freedom of Religion (89)

View category →

Academic study of the Bible in a public secondary school may appropriately take place in literature courses. Students might study the Bible as literature. They would examine the Bible as they would other literature in terms of aesthetic categories, as an anthology of narratives and poetry, exploring its language, symbolism and motifs. Students might also study the Bible in literature, the ways in which later writers have used Bible literature, language and symbols. Much drama, poetry and fiction contains material from the Bible.

Most experts agree that teachers are permitted to wear unobtrusive jewelry, such as a cross or a Star of David. But they should not wear clothing with a proselytizing message (e.g., a “Jesus Saves” T-shirt).

Schools have great latitude to control the speech that occurs in a classroom and, in that setting, can probably prohibit the distribution of student publications altogether. Similarly, schools may impose any reasonable constraint on student speech in a school-sponsored publication such as the school newspaper.

No. Title 45, Part 87, Section 2, Subsection E of the Code of Federal Regulations says that “an organization that participates in programs funded by direct financial assistance from the [government] shall not, in providing services, discriminate against a program beneficiary or prospective program beneficiary on the basis of religion or religious belief.”

In order to provide for the safety of students traveling to and from schools, the school district may ask local institutions (e.g., businesses, firehouses, religious institutions) to serve as temporary shelters for students who seek to avoid danger or threatening situations. The school shall provide signs indicating that the place is a shelter available for students.

All states currently require children to follow at least some form of standardized immunization schedule in order to be enrolled in public school. Vaccinations often required by this schedule include those against diphtheria, whooping cough, and the measles. Of the 50 states, all offer some exemptions for religious opposition to vaccination except Mississippi and West Virginia.

Freedom of Assembly (13)

View category →

The movement drew upon several First Amendment freedoms — primarily speech, assembly and petition — to protest racial injustice and promote racial equality. In addition, the U.S. Supreme Court strengthened these First Amendment freedoms through its rulings in court cases arising out of the civil rights movement.

In some cases, anti-abortion demonstrators physically obstruct and/or intimidate those entering and exiting abortion clinics. Legislatures and judges create and permit buffer zones to ensure that people can work safely at the clinics and that women have access to them.

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.

Freedom to Petition (9)

View category →

Lobbyists try to persuade government officials either to support or oppose various policy issues. Therefore, lobbying can be considered a form of petitioning the government for redress of grievances, subject to protection under the First Amendment’s petition clause. Although there has not been a great deal of judicial analysis on First Amendment protections afforded to lobbying, the courts have carved out several parameters. First, the petition clause does not grant a lobbyist the absolute right to speak to a government official, nor does it grant a lobbyist the right to a hearing based on his or her grievances. In addition, the clause does not create an obligation for a government official to take action in response to a grievance. Finally, any statement made while a lobbyist petitions a government official does not receive greater protection than any other expression protected by the First Amendment.

A libel suit, whether involving online or off-line speech, is one of the ways a SLAPP suit could be disguised; anti-SLAPP laws would apply. However, not all libel suits are SLAPP suits. Anti-SLAPP laws would apply only if it were found that a suit was filed in response to or in retaliation for citizen communications with government entities or employees, or for speech to bring attention to an issue of public interest or concern.

In 2001, U.S. District Judge David O. Carter determined that California’s anti-SLAPP statute does apply to cyber-SLAPPs. (See Global Telemedia International Inc. v. Doe et al., 132 F. Supp. 2d 1261 (C.D. Cal. 2001))

In 2003, the Massachusetts Appeals Court cited that state’s anti-SLAPP statute in throwing out a libel lawsuit against a website operator whose posted statements suggested a town official was a Nazi. (See MacDonald v. Paton, 57 Mass.App.Ct. 290 (2003) and “State appeals court rules online libel suit was really SLAPP.”)

Other state anti-SLAPP statutes may also apply to online libel suits. See “Anti-SLAPP statutes: state summary” for a state-by-state list.

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.