The First Amendment

Unconstitutional Conditions

Speiser v. Randall

In Speiser, a unanimous Court invalidated a veterans’ property tax exemption provided by the California Constitution, which required recipients of the exemption to compete an application form that included an oath by which the applicant asserted that he did not advocate the overthrow of the government of the United States. Brennan, J., writing for the Court, wrote that denying an exemption to claimants who engaged in certain forms of speech was, in effect, penalizing them for such speech, noting that the deterrent effect was the same as if the State were to fine them for their speech. The Court denied that the provision could be justified as targeting unlawful advocacy, because it was overbroad with respect to this speech. Further, the Court distinguished cases in which the Court had sustained the validity of loyalty oaths required for public employees. The Court noted that the government’s interest in these cases was substantially greater than California’s interest in restricting its property tax exemption to loyal soldiers. And the Court suggested that “the congressional purpose was to achieve an objective other than restraint on speech” and that the effect on speech was tangential. “The principal aim of those statutes was not to penalize political beliefs, but to deny positions to persons supposed to be dangerous because the position might be misused to the detriment of the public.” But the provision being considered in this case could not be justified on this ground. #baselines

Regan v. Taxation Without Representation

In Regan, the Court upheld a provision of the federal tax law that conditioned tax-exempt status on the requirement that an organization not participate in lobbying or partisan political activities. The Court said that Congress had not infringed any First Amendment activity; it had merely declined to pay for TWR’s lobbying. The Court found no indication that the statute was intended to suppress any ideas or any demonstration that it has had that effect. And “a legislature’s decision not to subsidize the exercise of a fundamental right does not infringe the right, and thus is not subject to strict scrutiny.” The Court indicated that the case would have come out differently if Congress were to discriminate invidiously in its subsidies in such a way as to aim at the suppression of dangerous ideas.

Blackmun, J., concurred in the judgment because the tax code allowed nonprofit organizations to create a separate affiliate group to pursue its charitable goals through lobbying.

Compare this case to Citizens United. It is clear that the Regan Court did not consider political lobbying to be on par with more conventional expressive activities.

FCC v. League of Women Voters

In League of Women Voters, the Court declared unconstitutional a federal statute that prohibited any noncommercial educational broadcasting station which received a grant from the Corporation for Public Broadcasting from engaging in any editorializing. The Court distinguished Regan on the ground that a broadcasting station had no means to segregate its activities according to the source of its funding.

Legal Services Corp. v. Velazquez

In Velazquez, the Court used the unconstitutional conditions doctrine to invalidate a restriction on the activities of lawyers receiving funds from the federal Legal Services Corporation. The statute prevented a legal representative funded by a recipient of LSC money from seeking to amend or otherwise challenge existing welfare law. The Court found it significant that the prohibition applied to all of the activities of an LSC grantee, including those paid for by non-LSC funds. Further, the Court was concerned that the law would “distort[] the legal system by altering the traditional role of attorneys,” undermine the adversarial nature of a lawsuit involving a LSC attorney, and insulate the government’s interpretation of the constitution from judicial review. Scalia, J., dissented, arguing that there was no precedent for the proposition that the First Amendment had anything to do with government funding that – though it does not actually abridge anyone’s speech – distorts an existing speech medium. Contra Arizona v. Bennett (majority opinion joined by Scalia, J.). Scalia also found it notable that, unlike League of Women Voters, there was an opt-out option, whereby a recipient of government aid could establish an affiliate to engage in the conduct the government wished to avoid subsidizing.

Right to See, Hear, and Confront

Lamont v. Postmaster General

In Lamont, the Court invalidated a federal statute permitting delivery of “communist political propaganda” only if the addressee specifically requested in writing that it be delivered. The Court held that the government could not impose such an affirmative obligation on an individual seeking to receive the material, arguing that the rule would have an impermissible deterrent effect on the ability of individuals to confront these materials. Compare Meese v. Keene (upholding the Foreign Agents Registration Act of 1938, which required the labeling of expressive materials deemed “political propaganda” to comply with registration, filing, and disclosure requirements, concluding that the term “propaganda” could be deemed to have a neutral meaning, and rejecting the argument that the use of the label “political propaganda” with respect to the works in question constituted a “conscious attempt to place a whole categories of materials beyond the pale of legitimate discourse.”).

Stanley v. Georgia

In Stanley, the Court held that the First Amendment protected the possession of obscene material in the home. “The constitutional right to receive information and ideas, regardless of their social worth, is fundamental to our free society.” In concurrence, Stewart, J., emphasized that the material was seized in violation of the Fourth Amendment. Compare Osborne v. Ohio (holding...

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