First Amendment

United States v. Alvarez, 132 S. Ct. 2537 (2012)

The Stolen Valor Act, 18 U.S.C. § 704(b) violates the First Amendment. The law makes it a crime to falsely claim to have been awarded military awards. The law focuses on the content of speech and therefore must fit within one of the limited categories of speech that may be prohibited.

Holder v. Humanitarian Law Project, 130 S. Ct. 2705 (2010)

The Supreme Court upheld the “material support for terrorist organizations” law, 18 U.S.C. § 2339B. The statute makes it a crime to provide material support – including money, services, or personnel – to a designated terrorist organization. Even if the support is designated for humanitarian aid, or consists of medical supplies, the law outlaws providing this type of material support. The government successfully persuaded the court that providing “humanitarian assistance” allows the terrorist organization to spend its resources on other projects, rather than having to pay for medical supplies; thus, providing any kind of support does, in fact, aid the terrorists’ dangerous activities. The Court held that the law does not violate the First Amendment’s association, or free speech guarantees and is not unconstitutionally vague.

United States v. Williams, 128 S.Ct. 1830 (2008)

The Supreme Court upheld the child pornography pandering provision that had earlier been held unconstitutional by the Eleventh Circuit. The statute, 18 U.S.C. § 2252A(a)(3)(B) makes it a crime to solicit, or to offer to sell or distribute material that is purported to be child pornography. The Court rejected the defendant’s claim that it violates the First Amendment to make it a crime to offer to sell or distribute material as child pornography, if, in fact, the material being offered for sale is not, in fact, child pornography. The Court also rejected a Fifth Amendment vagueness challenge.

Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)

The Supreme Court holds that the “virtual” pornography provision contained in the 1996 Child Pornography Prevention Act is unconstitutional. This provision is not intrinsically related to the protection of children or to the sexual abuse of children, because, by definition, no children are involved in the production of the images. In addition, the statute is defective because it does not incorporate the community standards test of obscenity requiring that the artistic merit of a work be judged considering the work as a whole.

Ashcroft v. American Civil Liberties Union, 535 U.S. 564 (2002)

The Child Online Protection Act is not unconstitutionally overbroad just because it uses a community standards test to regulate speech on the World Wide Web.

Virginia v. Black, 123 S. Ct. 1536 (2003)

A state may outlaw cross-burning, as long as an essential element of the offense is the intent to intimidate any person or group of persons. Cross-burning, per se, however, is protected First Amendment expression.

Church of Lukumi Babalu Aye Inc. v. Hialeah, Fla., 508 U.S. 520 (1993)

A local ordinance which banned the cruel or ritualistic killing of animals – but which exempted killing for purposes of food consumption – violated the First Amendment in light of the discriminatory use of the ban against religious activity. The ordinance virtually banned activity which was prompted by a religious motivation, but permitted the same conduct if it was not prompted by a religious motivation.

Wisconsin v. Mitchell, 508 U.S. 476 (1993)

A statute which enhanced penalties if the crime was motivated by the race, religion or other protected status of the victim did not violate the First Amendment.

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)

A city ordinance of St. Paul prohibited the display of a symbol which one knows or has reason to know “arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender.” This statute was unconstitutionally content-based.

Dawson v. Delaware, 503 U.S. 159 (1992)

At the defendant’s death penalty trial, evidence of his membership in a white racist organization was introduced. His affiliation with this group had nothing to do with the crime. The introduction of this evidence violated the defendant’s First Amendment rights.

Simon & Schuster v. New York, 502 U.S. 105 (1991)

New York’s “Son of Sam” law which requires that publishers turn over proceeds of a convict’s book to an escrow account for the benefit of any victim is a violation of the First Amendment.

Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991)

A state bar rule which prohibits an attorney from making certain extrajudicial statements to the press was void for vagueness.

Barnes v. Glen Theatre, Inc., 501 U.S. 560 (1991)

The First Amendment does not prohibit cities from banning non-obscene nude dancing.

United States v. Kokinda, 497 U.S. 720 (1990)

The defendants were convicted of solicitation on posted premises. The Supreme Court upholds the conviction. Although solicitation is a recognized form of speech, the government may regulate such activity on its property to an extent determined by the nature of the relevant forum.

United States v. Eichman, 496 U.S. 310 (1990)

The Federal Flag Protection Act of 1989, 18 U.S.C. §700, is unconstitutional. The defendants’ act of burning the flag constituted expressive conduct which enjoyed First Amendment protection.

Employment Division State of Oregon v. Smith, 494 U.S. 872 (1990)

The Free Exercise Clause permits the State to prohibit sacramental peyote use and may deny unemployment benefits to persons discharged for using peyote. See Francis v. Mineta, 505 U.S. 266 for future developments in this area. Also, see 42 USC § 2000bb, enacted three years after Smith.

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990)

It is a violation of the First Amendment to create a licensing scheme for sexually oriented businesses that neither requires a prompt judicial review of the municipality’s licensing decision nor provides for the municipality to make a decision within a specified and reasonable time.

Sable Communications of California v. F.C.C., 492 U.S. 115 (1989)

The Supreme Court holds that the statute which prohibits “Dial-a-Porn” is constitutional insofar as it applies to “obscene” messages, but not insofar as it applies to “indecent” messages.

Texas v. Johnson, 491 U.S. 397 (1989)

The Supreme Court holds that the Texas flag desecration crime did not pass First Amendment muster.

United States v. Stevens, 130 S. Ct. 1577 (2010)

The statute (18 U.S.C. § 48) that criminalized the making, sale or possession of certain “depicions of animal cruelty” was so overbroad that it violated the First Amendment on its face.

United States v. Caronia, 703 F.3d 149 (2d Cir. 2012)

The Second Circuit holds that prosecutions based on “off-label” promotion violates the First Amendment. The defendant’s were charged with promoting the off-label use of certain drugs (i.e., promoting the use of a drug that was approved by the FDA for one purpose, but advocating its use for another purpose). While it is perfectly legal for a doctor to prescribe a drug approved for a purpose other than the use for which the FDA approved the drug, it is not legal for the drug manufacturer to promote the drug’s use for any purpose other than the approved purpose. The Second Circuit held that this violates the First Amendment.

United States v. Marcavage, 609 F.3d 264 (3rd Cir. 2010)

The defendant’s citation for violating a “verbal permit” to conduct his abortion protest at a certain location (other than the public forum he had chosen) violated the First Amendment.

United States v. Alvarez, 617 F.3d 1198 (9th Cir. 2010)

The Stolen Valor Act, 18 U.S.C. § 704(b), (c) makes it a crime to falsely represent oneself either verbally, or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces. The Ninth Circuit held that this statute violates the First Amendment, because it does not require any fraudulent intent or anything more than a simple false statement. Merely telling a lie cannot, without more, be a criminal offense. Affirmed by the Supreme Court, as noted above.

United States v. Stevens, 533 F.3d 218 (3rd Cir. 2008)

The defendant was charged with selling visual depictions of animal cruelty (dog fighting). The Third Circuit concluded that the defendant’s conduct was protected by the First Amendment and the statute which the defendant allegedly violated, 18 U.S.C. § 48, is unconstitutional.

Chaker v. Crogan, 428 F.3d 1215 (9th Cir. 2005)

A California state law makes it a crime to file a false allegation of misconduct against a police officer. It is not a crime, however, to file a false report in support of a police officer. TheNinth Circuit holds that this “view point” discrimination violates the First Amendment thus invalidating the criminal provision.

Cooper v. Dillon, 403 F.3d 1208 (11th Cir. 2005)

A Florida state law that makes it a crime to disclose information obtained in an internal investigation of a law enforcement officer violates the First Amendment.

United States v. Cassel, 408 F.3d 622 (9th Cir. 2005)

The defendant was charged with interfering with a sale of federal land by intimidation (18 U.S.C. § 1860). He defended on First Amendment grounds. The Ninth Circuit held that the government must prove that the defendant subjectively intended to intimidate the victim. Absent this requirement, the First Amendment would bar a prosecution. The trial court’s failure to properly instruct the jury on this element – subjective intent to intimidate – was harmful error.

American Civil Liberties Union v. Ashcroft, 322 F.3d 240 (3rd Cir. 2003)

On remand from the Supreme Court (535 U.S. 564) which upheld certain portions of the “Child Online Protection Act” 47 U.S.C. § 231, the Third Circuit found other provisions unconstitutional. First, because the Internet has no geographical limits, the Act is too broad in invoking “community standards” for determining what constitutes pornography. Second, the Act’s definition of “material harmful to minors” fails to allow for an evaluation of the material in context, thus the “taken as a whole” definition fails to meet First Amendment strictures. See also American Civil Liberties Union v. Mukasey, 534 F.3d 181 (3rd Cir. 2008).