This summary includes the following free speech decisions of the U. S. Supreme Court for the 1999-2000 term: Erie v. Pap's A.M. (nude dancing), Hill v. Colorado (abortion clinic protests), Nixon v. Shrink Missouri Government PAC (campaign finance reform), Board of Regents, University of Wisconsin v. Southworth (use of student fees to subsidize ideological student groups), and United States v. Playboy Entertainment Group (adult cable programming). Also included are reports on two censorship issues that are still in the lower federal courts, namely, challenges to the Child Pornography Prevention Act of 1996 (criminalizing fake child pornography created with altered photographs and computer generated images), and a challenge to the Child Online Protection Act of 1996 (criminalizing materials considered "harmful to minors" that are posted on the Internet). This update also includes the latest decision in Kincaid v. Gibson (confiscation of student yearbook by administrators at Kentucky State University). Important free speech decisions for 1996-99 are covered in the 1999 Update, which is available from the publisher in printed form to adopters of Freedom of Speech in the United States, third edition. The 1999 Update can also be found on the book's web site:

Chapter 5: Religio-Moral Heresy

Two U.S. Circuit Courts disagree on the constitutionality of the Child Pornography Prevention Act of 1996: United States v. Hilton, 167 F.3d 61 (1st Cir. 1999); and Free Speech Coalition v. Reno, found at 68 Law Week 1381 (9th Cir. 2000). The Child Pornography Prevention Act of 1996 (CPPA) expands the definition of illegal "child pornography" to include altered photographs and computer-generated images of minors engaged in sexual activities in which no minor is actually involved. For example, if someone altered a photo or used a computer to put a child's face on the body of an adult engaged in sexual activity, the resulting graphic images would be illegal. Specifically, CPPA bans sexually explicit visual depictions that "appear to be" of minors or that "convey the impression" that minors are involved. A person found guilty of violating this statute can be fined, and faces a penalty of 15 to 30 years in prison.

When the CPPA was challenged in Maine, a U.S. District Court declared the law unconstitutional because of vagueness and overbreadth. This decision was reversed by the U.S. Court of Appeals for the First Circuit, which found the law constitutional. Meanwhile, in a second challenge to the same law, a federal district court in California found the CPPA constitutional, but was reversed by the U.S. Court of Appeals for the Ninth Circuit. In its opinion, the Ninth Circuit said the law in question violates the constitution because it makes it illegal to use certain types of fictional images "that involve no human being" and that are "entirely the product of the mind." The court continued by asserting that the CPPA is unconstitutionally vague and overbroad. It is vague, said the court, because it provides no definition as to what is meant by "appears to be a minor" or "conveys the impression" that a minor is depicted. And it is overbroad because it prohibits "material that has been accorded First Amendment protection," namely, "non-obscene sexual expression that does not involve actual children." Given the conflict between the rulings of the two circuits, it seems likely that the U.S. Supreme Court will be asked to settle the issue.

U.S. Supreme Court
Case: Erie v. Pap's A.M., (Findlaw or Acrobat file) 68 Law Week 4239 (2000).
Subject: First Amendment protection for nude dancing
Summary of decision: In this case, the Supreme Court upheld the constitutionality of an Erie, Pennsylvania, ordinance that restricts "nude live entertainment" within the city by placing a ban on all public nudity. The ordinance states that entertainment such as nude dancing impacts on the public health, safety, and welfare of the community by helping to create an "atmosphere conducive to violence, sexual harassment, public intoxication [and] prostitution." Justice O'Connor authored the plurality opinion (joined by Chief Justice Rehnquist and Justices Kennedy and Breyer), accepting the Erie city council's reasoning that the purpose of the ban was not to prevent the dancers from expressing themselves but to combat crime and other harms that allegedly result from nude entertainment. Justice Scalia (joined by Justice Thomas) concurred with the judgment of the Court on the grounds that government should promote morality, and that nude dancing was immoral and could be prohibited without raising First Amendment questions.

Chapter 10: Constraints of Time, Place, and Manner

U.S. Supreme Court
Case: Hill v. Colorado, (Findlaw or Acrobat file) 68 Law Week 4643 (2000)
Subject: Challenge to a Colorado law restricting protestors at abortion clinics
Summary of decision: Colorado antiabortion protesters challenged a state law that made it unlawful for any person within 100 feet of the entrance to a health care facility to "knowingly approach" within 8 feet of another person, without that person's consent, for the purpose of passing a handbill or leaflet, displaying a sign, or "engaging in oral protest, education or counseling." Although the law in question prohibits speakers from approaching unwilling listeners, it does not-as was the case of the 15-foot "floating bubble" rejected by the Court in Schenck-require a speaker to move away from anyone passing by. (Schenck v. Pro-Choice Network of Western New York, 519 U.S. 357 (1997)) The plaintiffs argued that the Colorado law should be declared unconstitutional on the grounds that it was overbroad, vague, and constituted a prior restraint on expression.

By a vote of 6 to 3, the U.S. Supreme Court found that the Colorado law was constitutional. Writing for the majority, Justice Stevens pointed out that the law was content neutral, for it prohibited unwanted approaches within 100 feet of all medical facilities in the state regardless of the message a speaker was attempting to communicate. Furthermore, the law was not overbroad, for it was narrowly tailored to accomplish the state's legitimate interest of protecting a citizen's right to be free from persistent "following and dogging" once an offer to communicate has been declined. Such protection was especially valid for those attempting to enter health care facilities, he continued, for such persons "are often in particularly vulnerable physical and emotional conditions" that justify protection by the state from "unwanted encounters, confrontations, and even assaults." Colorado's law accomplishes its goal while placing "exceedingly modest restriction on the speakers' ability to approach."

Justice Stevens then asserted that the statute was not unconstitutionally vague, for its language provides people of ordinary intelligence a reasonably clear understanding of the conduct it prohibits. He noted that the law only applies "to a person who `knowingly' approaches within eight feet of another, without that person's consent, for the purpose of engaging in oral protest, education, or counseling. The likelihood that anyone would not understand any of those common words seems quite remote." Finally, Justice Stevens wrote that the law does not impose an unconstitutional prior restraint on speech. "Under this statute," he explained, "absolutely no channel of communication is foreclosed. No speaker is silenced. And no message is prohibited. . . . [T]his statute . . . allows every speaker to engage freely in any expressive activity . . . subject only to the narrow place requirement imbedded within the `approach' restriction." This narrow requirement "does not constitute an unlawful prior restraint."

U.S. Supreme Court
Case: Nixon v. Shrink Missouri Government PAC, (Findlaw or Acrobat file) 68 Law Week 4102 (2000).
Subject: campaign finance
Summary of decision: The Federal Election Campaign Act (FECA) of 1971, as amended in 1974, sets limits on political contributions and expenditures. When combined with laws already on the books, the FECA made three important changes in campaign finance. First, it set limits for political contributions by individuals or groups to any single candidate for a federal elective office. For example, individuals could give no more than $1,000 and political committees could give no more than $5,000 to a single candidate. Also, political committees were required to keep records of contributions and to file reports disclosing the source of all contributions above $100. Second, it restricted expenditures by individuals or groups supporting the election or defeat of a candidate for federal office, and it placed fixed ceilings on overall campaign expenditures by candidates. Finally, it included provisions for some public financing from general revenues of presidential nomination conventions and presidential campaigns.

Soon after the 1974 FECA amendments became law, several political groups and candidates for federal office challenged the law on First Amendment grounds. The U.S. Supreme Court addressed the issues presented in Buckley v. Valeo, 424 U.S. 1 (1976). In brief, the Court said that it was constitutional to limit campaign contributions, to require disclosure of the source of such contributions, and to provide some public financing for presidential campaigns. However, in a significant rejection of a key part of the FECA, the Court ruled that it was unconstitutional to place limits on campaign spending. In the years since 1976, and in a variety of cases concerning campaign finance, the High Court has adhered to the principles set out in this case.

The latest such decision is Nixon v. Shrink Missouri Government PAC, in which the Court cited Buckley to uphold Missouri's election campaign law limiting contributions to candidates for state office to a maximum of $1,075. In his opinion of the Court, Justice Souter said that Buckley applied not only to federal regulation of campaign finance, but to state regulation as well. He emphasized that the Court continues to draw a line between contributions and expenditures, "treating expenditure restrictions as direct restraints on speech." Students of free speech should stay alert for developments because campaign finance reform remains an active political issue.

Chapter 11: Institutional Constraints (schools)

Kincaid v. Gibson (confiscation of student yearbook by administrators at Kentucky State University). A panel of 10 judges of the U.S. Court of Appeals for the Sixth Circuit held that Kentucky State University violated the First Amendment when officials confiscated 2,000 copies of the Thorobred, the student yearbook, in 1994. This result is significant as it rejected a lower court's ruling that extended a high school-based censorship (set out in Hazelwood v. Kuhlmeier) standard to restrict the speech of college students. Rejecting this reasoning, the court held that the yearbook constituted a limited public forum. Since restrictions on speech in a limited public forum must be narrowly drawn to effectuate a compelling state interest, the court concluded that Kentucky State officials violated the student's freedom of expression when they blocked distribution.

U.S. Supreme Court
Case: Board of Regents, University of Wisconsin v. Southworth, (Findlaw or Acrobat file) 68 Law Week 4220 (2000).
Subject: use of student fees to subsidize ideological student organizations
Summary of decision: During the 1995-96 academic year a group of conservative students at the University of Wisconsin-Madison sued to stop the allocation of mandatory student fee funds to eighteen campus organizations engaged in political or ideological activities. At the University of Wisconsin, registered student organizations were eligible to apply to the student government for some financial support. Student government decisions concerning grants were subject to university review and approval to assure that funding was consistent with the school's broad educational goals, which included stimulating advocacy and debate on diverse points of view. In addition, registered student organizations could obtain funding through a student referendum. Groups targeted in the suit included Amnesty International, the International Socialist Organization, and the Lesbian, Gay, Bisexual Campus Center.

Both the federal district court and the U.S. Court of Appeals for the Seventh Circuit agreed with the plaintiffs, emphasizing that the First Amendment includes the right not to speak and the right not to be required to subsidize the speech of another. (A summary of the circuit court's opinion is found at 67 Law Week 1108 (1998).) On appeal, the U.S. Supreme Court unanimously reversed the courts below. In his opinion of the Court, Justice Kennedy asserted that the "First Amendment permits a public university to charge its students an activity fee used to fund a program to facilitate extracurricular student speech if the program is viewpoint neutral." [Emphasis added.] He pointed out that the university did administer the funds in question in a viewpoint-neutral way, and that the "sole purpose" of the fee was to facilitate "the free and open exchange of ideas by, and among, its students." However, because the referendum method of funding "substitutes majority determinations for viewpoint neutrality" it was remanded to the court below for reexamination.

Chapter 13: Broadcasting, Cable, the Internet, and Access Theory

Circuit court sustains injunction against enforcing the Child Online Protection Act of 1998 (COPA): ACLU v. Reno II.The decision of the U.S. District Court to grant a preliminary injunction against enforcing the provisions of COPA is found at 31 F.Supp. 2d 473 (E.D. Pa. 1999). The decision of the U.S. Court of Appeals for the Third Circuit, unanimously affirming the decision of the district court and thereby keeping the injunction in effect, is found at 217 F.3d 162 (3rd Cir. 2000) and at 28 Media Law Reporter 1897 (2000). The Child Online Protection Act is Public Law 105-277, found at 112 Statutes at Large 2681 (1998) and codified at 47 U.S.C. Sec. 231.

COPA is the second effort of Congress to censor the Internet, the first effort being the Communications Decency Act of 1996, which was declared unconstitutional by the Supreme Court in Reno v. ACLU I, 521 U.S. 844 (1997). COPA makes it a federal crime to use the World Wide Web to communicate "for commercial purposes" material considered "harmful to minors." The statute defines a minor as a person under the age of seventeen, and defines material "harmful to minors" according to a three-part test. All three parts must be met for the material in question to be illegal. The test:

A. the average person, applying contemporary community standards, would find, taking the material as a whole and with respect to minors, [that the material] is designed to appeal to, or is designed to pander to, the prurient interest;

B. [the material] depicts, describes, or represents, in a manner patently offensive with respect to minors, an actual or simulated sexual act or sexual contact, an actual or simulated normal or perverted sexual act, or a lewd exhibition of the genitals or post-pubescent female breast; and

C. [the material] taken as a whole, lacks serious literary, artistic, political, or scientific value for minors.

A U.S. District Court granted a preliminary injunction against enforcement of COPA, ruling that the law was likely to be unconstitutional because it was a content-based constraint on speech that is legal for adults, and that it was "not apparent" that the government could prove that the provisions of the law represented the "least restrictive means . . . of restricting the access of minors" to adult materials. In affirming the district court's decision, the U.S. Court of Appeals for the Third Circuit stated:

We . . . affirm the District Court's grant of a preliminary injunction because we are confident that the [legal challenge to] . . . COPA's constitutionality is likely to succeed on the merits. Because material posted on the Web is accessible by all Internet users worldwide, and because current technology does not permit a Web publisher to restrict [a] particular Internet user, COPA essentially requires that every Web publisher subject to the statute abide by the most restrictive and conservative state's community standards in order to avoid criminal liability. Thus, because "harmful to minors" is based on identifying "contemporary community standards" the inability of Web publishers to restrict access to their Web sites based on the geographic local of the site visitor, in and of itself, imposes an impermissible burden on constitutionally protected First Amendment speech.

U.S. Supreme Court
Case: United States v. Playboy Entertainment Group, (Findlaw or Acrobat file) 68 Law Week 4409 (2000).
Subject: First Amendment protection for legal adult cable programming when "signal bleed" in the cable system permits some of that programming to reach the screens of those who have not subscribed to it and do not want their children to see it.
Summary of decision: Section 505 of the Telecommunications Act of 1996 attempts to shield children from cable channels "primarily dedicated to sexually-oriented programming" by requiring cable operators to "fully scramble" (i.e., permit no "signal bleed" whatsoever) or fully block adult channels except during those hours when children are unlikely to be viewing. By regulation, those hours were defined as those between 10 p.m. and 6 a.m. Because cable operators did not have the technical means to prevent all signal bleed, most operators complied with the law by limiting the Playboy Channel and other adult channels to the hours of 10 p.m. to 6 a.m., a policy that the Playboy Entertainment Group challenged as too restrictive and thus in violation of the First Amendment. By a vote of 5 to 4, and in an opinion by Justice Kennedy, the U.S. Supreme Court agreed that the law was too restrictive and thus violated the First Amendment rights of adults who wanted to view legal sexually-oriented programming. Justice Kennedy emphasized that the government had failed to prove that signal bleed of adult programming was a serious and widespread problem. Furthermore, he noted that children could be protected in a number of ways that were less restrictive than the ban imposed by the 1996 law. For example, cable systems can completely block unwanted channels on a household-by-household basis. Such "target blocking" is less restrictive than banning, yet achieves the goal of protecting children.

Thomas L. Tedford and Dale A. Herbeck Freedom of Speech in the United States, 6th ed. State College, PA: Strata Publishing, Inc., 2009 www.bc.edu/free_speech