First Amendment Research

phillypride86 — Wed, 10 Dec 2008 03:06:38 +0000

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

These 45 words, the First Amendment of the United States Constitution, set the foundation for the American democracy. The First Amendment allows Americans to speak and express themselves freely. It ensures a free press and allows for individual freedoms.

This Web site serves as a guide to First Amendment legal research. Here, researchers will find links to the most helpful First Amendment resources specifically aimed towards journalists. These resources include First Amendment organizations, journalism resources and basic legal research tools. Using the tools available from this Web site will serve as a strong foundation for any First Amendment legal research for journalists. This Web site focuses on issues such as: freedom of the press, freedom of information and other freedoms guaranteed by the First Amendment. In addition to these legal resources, on the home page of this Web site, researchers will find two position papers dealing with First Amendment issues. These resources were used during the creation of these position papers.

This Web site was created by Patrick A. Carney, a graduate student in the College of Journalism and Communications at the University of Florida. Patrick, a graduate of Saint Joseph’s University with a degree in political science, created this site for a media law class at the University of Florida.

Simon & Schuster Case Study

phillypride86 — Tue, 09 Dec 2008 20:51:15 +0000

Legal claims involving the First Amendment:

In Simon & Schuster, Inc. v. Members of the New York State Crime Victims Board, [1] the constitutionality of a New York law known as the “Son of Sam” law revolved around the interpretation of the First Amendment. Simon & Schuster, which published a book by Henry Hill, who admitted his involvement in various criminal activities, was ordered by the State of New York to suspend payments of royalties to Hill due to New York’s “Son of Sam” law. However, the issue to face the courts involved the constitutionality of this law. Simon & Schuster sought to prevent the statute from being enforced by having the law declared unconstitutional. [2]

The First Amendment issue argued before the Supreme Court was whether a lien could be placed on speech based on its content. The Court eventually ruled that the “Son of Sam” law discriminated against a certain type of speech and places a financial burden on the speech deemed offensive. If the Supreme Court granted certiorari to Sondra London, who claims Florida’s “Son of Sam” law also violates the First Amendment, the First Amendment issue before the Court would be the same as in Simon & Schuster.

“The Son of Sam law is such a content-based statute,” said Justice O’Connor in delivering the opinion of the Court. “The statute plainly imposes a financial disincentive only on a speech of a particular content.”[3]

Summary of First Amendment arguments:

After the New York State Crime Victims Board became aware of Hill’s book in January, 1986, they contacted Simon & Schuster to inform them that their dealings with Hill violated the “Son of Sam” law. On January 31, 1986, the board told Simon & Schuster, “It has come to our attention that you have contracted with a person accused or convicted of a crime for the payment of monies to such a person.” As a result, the New York State Crime Victims Board demanded copies of all contracts and payments made involving Hill and his recently published book. After review, on May 21, 2987, the New York State Crime Victims Board issued a Proposed Determination and Order. They demanded Simon & Schuster to turn over all money payable to Hill to be placed in an escrow account for the victims of Hill’s crimes in accordance with the “Son of Sam” law.[4]

In August, 1987, Simon & Schuster filed a law suit to have the “Son of Sam” law be ruled unconstitutional under protections of the First Amendment, thus preventing the monies associated with Hill’s book from being seized. Both the District Court and Court of Appeals found the law to be consistent with the First Amendment.[5]

Certiorari was granted by the United States Supreme Court because they believed the issue would continue to recur without a ruling from the Court.[6]

The first argument made by the New York State Crime Victims Board was to differentiate this case from Arkansas Writers’ Project v. Ragland. The Supreme Court ruled on April 22, 1987 in Arkansas Writers’ Project, that discriminatory taxes on speech violate the First Amendment. In the opinion of the Court, Justice Marshall wrote, “Our cases clearly establish that a discriminatory tax on the press burdens rights protected by the First Amendment.”[7] The New York State Crime Victims Board argued before the Supreme Court that the “Son of Sam” law was clearly different than the taxation laws in Arkansas which led to Arkansas Writers’ Project. The Supreme Court rejected this notion ruling that “Both forms of financial burden operate as disincentives to speak.”[8]

The New York State Crime Victims Board further argued that discriminatory financial penalties on speech are only unconstitutional when the legislation attempts to suppress certain speech or ideas.[9] The Supreme Court also rejected this notion. While citing Arkansas Writers’ Project, Justice O’Connor’s opinion of the Court states:

“The Son of Sam law establishes a financial disincentive to create or publish works with a particular content. In order to justify such differential treatment, the State must show that its regulation is necessary to serve a compelling state interest, and is narrowly drawn to achieve that end.”[10]

The Supreme Court does see a compelling reason why the state would want to prevent criminals from profiting from works based on crimes. Additionally, the Court recognizes that the state has an interest in raising revenue. However, citing Arkansas Writers’ Project, the Court holds that this interest does not justify selective taxation of the press.[11]

This notion of selective taxation or discriminatory financial penalties based on content is the primary First Amendment issue in Simon & Schuster. The opinion of the Court, written by Justice O’Connor, cites Texas v. Johnson which says, “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”[12]

The conclusion of Justice O’Connor’s opinion of the Court summarizes the Court’s holdings of the critical First Amendment arguments in Simon & Schuster. The opinion states:

We conclude simply that, in the Son of Sam law, New York has singled out speech on a particular subject for a financial burden that it places no other speech and no other income. The State’s interest in compensating victims from the fruits of crime is a compelling one, but the Son of Sam law us not narrowly tailored to advance that objective. As a result, the statute is inconsistent with the First Amendment.[13]

Simon & Schuster as a basis for analyzing Danny Rolling and Sondra London:

In Simon & Schuster, the United States Supreme Court roundly rejected the constitutionality of laws which selectively discriminated against speech based on its content. The Supreme Court relied on precedent from Arkansas Writers’ Project and Texas v. Johnson to justify their ruling.

A similar case to Simon & Schuster occurred in Florida following the murder of five college students in Gainesville, Florida by serial killer Danny Rolling. Sondra London, Rolling’s lover, wrote about Rolling’s murders for The National Enquirer and The Globe. Additionally, London wrote two books with Rolling, The Making of a Serial Killer and Knockin’ on Joe: Voices from Death Row. In total, London earned approximately $21,000 from her publications about Rolling’s criminal actions to which he plead guilty.[14]

Using the authority of Florida’s Civil Restitution Lien and Crime Victims’ Remedy Act of 1994, known as Florida’s “Son of Sam” law, prosecutors sought to place a lien on London’s earnings and seize the $21,000.[15]

London argued that her work was protected by the First Amendment because it was journalistic despite her personal relationship with Rolling.[16] Citing Florida’s “Son of Sam” law, state prosecutors, continued to attempt to seize the monies earned from London’s work about Rolling’s criminal actions. The law states, “A judge may place a lien prior in dignity to all others in favor of the state or county upon any financial settlement payable to or accruing to a convicted offender or person on her or his behalf.”[17]

One critical difference between the statutes in New York and Florida involves semantics. New York’s “Son of Sam” law defines a “person convicted of a crime”, which is the classification that determines which people are subject to the law, to include “any person who has voluntarily and intelligently admitted the commission of a crime for which such a person is not prosecuted.”[18] Justice O’Connor points out that this definition is overbroad and could potentially include a very large number of people’s publications. She writes how Martin Luther King, Jr. would be classified as a person who would fall under the rules of the New York statute.[19] The Florida statute, however, defines those who are subject to the “Son of Sam” law more narrowly. A convicted felon (or a person on her or his behalf) is defined in Florida as someone who received a “guilty verdict by a jury or judge, or a guilty or nolo contendere plea by the defendant, regardless of adjudication of guilt.”[20]

Florida prosecutors use this language to apply the law to Sondra London. They contended that Danny Rolling was a convicted felon, by the aforementioned definition, and that Sondra London was working on his behalf, thus giving state authorities the right to seize the monies she received for her publications about Rolling’s murder.

The constitutionality of Florida’s “Son of Sam” law:

Based on the precedent set by the Supreme Court’s overwhelming 8-0 opinion in Simon & Schuster, if the Court granted certiorari in the Danny Rolling and Sondra London case, I believe the Court would rule the Florida “Son of Sam” law unconstitutional.

Although there are clear differences between the laws in New York and Florida such as the aforementioned difference in regard to whom the law applies, the laws ultimately enforce financial penalties based on speech based on content.

Precedent in Texas v. Johnson, Arkansas Writers’ Project and Simon & Schuster provide the basis for my assertion that the Court would find Florida’s statute unconstitutional. It is clear that the government may not impose a discriminatory financial penalty on any writings or speech found to be objectionable.

I believe the Court would find the law unconstitutional because “a statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.”[21] Additionally, when considering the manner in which the Justices on the Supreme Court would go through to determine the constitutionality of the Florida “Son of Sam” law it is important to review the steps they would take to come to a conclusion. The Supreme Court Justices would have to apply strict scrutiny in this case because it deals with suppression speech. When applying strict scrutiny, I don’t believe the Court would find the law the ‘least drastic means’ to accomplish a ‘compelling governmental interest’.[22] This case would fail to meet the high standards of strict scrutiny.

While I believe the Florida “Son of Sam” law and other similar laws have good intentions and seek to assist the victims of crimes while preventing the perpetrators of those crimes from benefiting financially from their criminal actions, I believe the law is unconstitutional. The rulings mentioned in Texas v. Johnson, Arkansas Writers’ Project and Simon & Schuster set a good precedent for First Amendment protection. It is the speech we don’t agree with that is most important to protect. Otherwise, the First Amendment would protect no speech at all. It is convenient to say that Florida’s “Son of Sam” is constitutional because one doesn’t want these criminals to profit off of their crimes and they find the material published highly offensive and objectionable. However, the First Amendment prevents government, in this case the Florida legislature, from abridging freedom of speech.

[1] Simon & Schuster, Inc. v. New York State Crime Victims Board, 502 U.S. 105 (1991).

[2] Id. at 115.

[3] Id. at 116.

[4] Id. at 114.

[5] Id. at 115.

[6] Id.

[7] Arkansas Writers’ Project v. Ragland, 481 U.S. 227 (1987).

[8] Simon & Schuster, 502 U.S. at 127.

[9] Id.

[10] Id. at 118.

[11] Id. at 120.

[12] Texas v. Johnson, 491 U.S. 414 (1989).

[13] Simon & Schuster, 502 U.S. at 123.

[14] Florida v. Rolling and London, Court TV, Mar. 20, 1998.

[15] Id.

[16] Id.

[17] Fla. Stat. ch. 944.512 (1994).

[18] Simon & Schuster, 502 U.S. at 105.

[19] Id at 122.

[20] Fla. Stat. ch. 944.512 (1994).

[21] Simon & Schuster, 502 U.S. at 115.

[22] Kent R. Middleton and William E. Lee, The Law of Public Communication 36 (Person Education, Inc. 2009).

First Amendment Rights in Cyberspace

phillypride86 — Tue, 09 Dec 2008 20:22:45 +0000

The Communications Decency Act

In 1996, during the infancy of the public consumption of the internet, it was not clear what First Amendment protections internet speech would receive. Then, President Clinton signed the Communications Decency Act of 1996 (CDA), which was aimed at preventing minors (those under the age of 18) from being exposed to “obscene or indecent” material on the internet [1]. The subsequent legal actions would begin to shape the way internet speech in cyberspace would be protected under the First Amendment.

Since the CDA restricted speech based on its content, the First Amendment questions surrounding the battle over First Amendment rights in cyberspace involve strict scrutiny. Throughout the legal battles over the CDA and subsequent legislation aimed at restricting speech on the internet based on content, the courts scrutinized the regulations for overbreadth and vagueness. Additionally, the courts sought to determine whether the regulations were the least drastic means to accomplish a compelling governmental interest.

The Court’s ruling shows that they believed the CDA to be vague, overbroad and not the least drastic means to accomplish a compelling governmental interest.

There were two provisions in the CDA that resulted in a lawsuit aimed to have the law ruled unconstitutional. The first provision “criminalizes the “knowing” transmission of “obscene and indecent” messages to any recipient under 18 years of age.” The second provision challenged requires those who seek to view such materials on the internet to enter an adult identification number or a verified credit card number[2].

A three judge District Court enacted an injunction against both of the aforementioned provisions of the CDA to prevent the government from enforcing the provisions they found to be unconstitutional[3].

In Reno, Attorney General of the United States, et al. v. American Civil Liberties Union et al., the Supreme Court affirmed the ruling of the lower court and found the provisions in question to be unconstitutional[4]. Justice Stevens, who delivered the opinion of the Court, said, “…the statute abridges “the freedom of speech” protected by the First Amendment[5].”

Due to the fact that the CDA is a content based regulation, the Supreme Court employed the ‘strict scrutiny’ test to determine whether the provisions were constitutional. In its ruling in Reno v. ACLU, the Court held that, “The CDA lacks the precision that the First Amendment requires when a statute regulates the content of speech[6]”.

When applying ‘strict scrutiny’, the Court held that the CDA was vague and overbroad. Additionally, the Court held that the CDA is not the least drastic means to ensuring a governmental interest. The Court held, “Its breadth is wholly unprecedented. The CDA’s burden on adult speech is unacceptable if less restrictive alternatives would be at least as effective in achieving the Act’s legitimate purposes. The Government has not proved otherwise[7].”

The government made three main arguments defending the constitutionality of the CDA. First, the government argued that the statue leaves open ample “alternative channels” of communication.[8] In the opinion of the Court, Justice Stevens argued, “This argument is unpersuasive because the CDA regulates speech on the basis of content. A “time, place, and manner” analysis is therefore inapplicable.”[9] The Court does not see this as a substantive or compelling argument because it would place extra costs and burdens on the speaker to move to an “alternative channel” which would serve as a deterrent to speak[10].

The second argument from the government is that the “knowledge requirement” in regard to the transmission of “indecent and obscene” materials to minors prevents the CDA from violating the overbreadth requirement of the strict scrutiny test. The government argues that the statute stipulates that is only a violation to knowingly transmit these materials specifically to persons under the age of 18. These specifics, the government argues, show the CDA not to be overbroad[11].

The Court, however, did not find this argument compelling due to the fact that the internet is “open to all comers”[12]. Minors can access chat rooms, Web sites, and e-mail in the same manner as adults. Since minors are readily on the internet, the Court held that it would not be possible to invoke this knowledge requirement proposed by the government. With respect to the age verification provision in question, the Court held that using a credit card number would alienate some adults from accessing material on the internet that they have a constitutional right to access. The Court held that access to a credit card number was “effectively unavailable to a substantial number of Internet content providers. Moreover, the imposition of such a requirement would completely bar adults who do not have a credit card and lack the resources to obtain one from accessing blocked material”[13].

Citing the ruling from the District Court, the Reno v. ACLU ruling held: “Even if credit card verification or adult password verification were implemented, the Government presented no testimony as to how such systems could ensure that the user of the password or credit card is in fact over 18. The burdens imposed by the credit card verification and adult password verification systems make them effectively unavailable to a substantial number of Internet content providers.[14]”

The government’s third argument claims the CDA “almost always” prohibits materials lacking social value[15]. The government argued that by “tagging” the indecent or obscene material with software would successfully block such material from only minors. However, the Court held that such software did not exist at the time of the ruling. Furthermore, the Court held that if such software did exist, it would be impossible to know whether the material was actually being blocked from minors and transmitted to adults[16].

After negating the main arguments of the government, the Court held, “We agree with the District Court’s conclusion that the CDA places an unacceptably heavy burden on protected speech, and that the defenses do not constitute the sort of “narrow tailoring” that will save an otherwise patently invalid unconstitutional provision…The CDA, casting a far darker shadow over free speech threatens to torch a large segment of the Internet community.[17]”

Child Online Protection Act

After suffering a defeat in Reno v. ACLU, the Clinton Administration sought to fix the First Amendment issues contained in the CDA and sign a new law to achieve many of the same objectives. In 1998, President Clinton signed the Child Online Protection ACT (COPA). COPA intended to prevent people from knowingly transmitting inappropriate materials to minors by way of the internet.

The district court found that COPA does not meet all of the standards of the strict scrutiny test because it is not narrowly tailored enough. Judge Reed, in his opinion, claims that the broad language used ultimately restricts more speech than the government has a compelling interest in restricting[31].

In addition to the aforementioned failings of COPA to meet the requirements of strict scrutiny, Judge Reed found that the law is certainly not the least drastic means. After the case was remanded to the district court for further fact finding as a result of changing technology, the court outlined technologies in their ruling that would certainly be considered less drastic than enforcing COPA[32]. As technology has advanced since 1998, the use of filters on the internet would serve as a far less drastic mean to achieve the compelling governmental interest than enforcing COPA[33].

In the conclusion of the court’s opinion, Judge Reed wrote, “Indeed, perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection. [34]”

On July 23, 2008 the Third Circuit Court of Appeals affirmed the district court’s ruling that COPA is unconstitutional[35]. Now, COPA waits to be granted a writ of certiorari by the Supreme Court to potentially give a final ruling on the constitutionality of COPA.

The Supreme Court’s ruling in Ginsberg v. New York is a foundation and precedent for upholding COPA. In Ginsberg, the Supreme Court ruled that a law prohibiting the selling of obscene material to minors was constitutional. In that case, the Supreme Court affirmed that it was constitutional to prohibit a store owner from selling a minor a magazine of nudity[36]. As a result of the Court’s ruling in Ginsberg, it shows that the Court is willing to accept a “variable obscene approach” when approaching content based restrictions if the case involves the transmission of these materials to minors. This approach legitimizes the idea that the government can lower the threshold of obscenity for minors[37].

In FCC v. Pacifica Foundation, the Supreme Court ruled that the FCC had the right to impose sanctions against Pacifica Foundation because of their broadcast of George Carlin’s “Filthy Words” in the afternoon when children were likely in the audience[38]. The Court found the broadcast to be patently offensive and indecent.

The Ginsberg and Pacifica cases could serve as the foundation of an argument to uphold COPA. Like COPA, Ginsberg and Pacifica aim to prevent harmful materials, whether they are a printed magazine, a broadcasted comedy routine or a pornographic Web site, from being transmitted to minors. Additionally, like COPA, Ginsberg and Pacifica place restrictions based on the content of the speech.

Despite these precedents, there are also ample legal precedents to strike down COPA. R. A. V. v. St. Paul provides that content based regulations of speech are presumed to be invalid. This presumption lays a solid foundation for striking down COPA. Additionally, when analyzing the merits of the law, the precedent of strict scrutiny offers a valid reason for striking down COPA. There are flaws with vagueness, overbreadth, narrow tailoring and serving as the least drastic means to accomplish a compelling governmental interest.

The Future of COPA

When COPA makes its way back to the Supreme Court, I think the law will be found unconstitutional. I think it will be struck down because of the current makeup of the Court, the merits of the legislation, the differences with similar legislation which was upheld and the procedural history of COPA.

The Ashcroft v. ACLU ruling in 2004 showed a 5-4 majority in the Supreme Court who ruled that the Third Circuit Court of Appeals made the right decision to uphold the injunction against the implementation of COPA[39]. Since 2004, two Justices have changed. First, after the death of Chief Justice William Rehnquist, President Bush appointed and the Senate confirmed Chief Justice John Roberts. Next, Justice Samuel Alito was appointed and confirmed to the Supreme Court following the retirement of Justice Sandra Day O’Connor. In 2004, both Chief Justice Rehnquist and Justice O’Connor voted in dissent in the Ashcroft ruling. It is likely, based on history and ideology that Chief Justice Roberts and Justice Alito would be in favor of allowing COPA to stand along with fellow conservative Justices Scalia. However, the argument involving the makeup of the Court, however, is subject to change if the Bush or Obama Administrations appoint any new Justices before the COPA case is heard.

When the Supreme Court analyses COPA, based on the merits of the legislation, they will strike down the law. The Court will find that the law, as previously detailed, does not meet the demands of the strict scrutiny test. Although there is a compelling governmental interest, the Court will find the legislation to be vague and overbroad. Furthermore, the Court will see that the legislation, when applied to the technologies of the present day, is not narrowly tailored or the least drastic means to accomplish the government’s interest.

When the Supreme Court analyses similar cases such as the aforementioned Ginsberg and Pacifica, they will see that there is precedent for restricting speech based on content to achieve a compelling governmental interest. However, it will also be clear that there are critical differences between those rulings and the facts of a potential COPA case.

In the Court’s opinion of Reno v. ACLU, delivered by Justice Stevens, there are crucial differences between the rulings made in Ginsberg and COPA. First, in Ginsberg, which involves nude magazines, a parent could legally purchase a magazine for their child. However, COPA mandates that minors, regardless of parental consent, can not access the blocked materials[40].

A key difference between Pacifica and COPA is the medium in which the objectionable material is transmitted. Although the Supreme Court ruled in the FCC’s favor on a content based regulation, the government has more authority over broadcast speech because of the scarcity principle of the broadcast spectrum[41]. However, the internet is clearly not scarce. Therefore, it cannot be as regulated by the government as the broadcast industry.

Finally, I think the Supreme Court will ultimately strike down COPA because of the procedural history of the CDA and COPA. Throughout the judicial history of both statutes, there is a history of judges at all levels finding elements of the legislation unconstitutional. There will be great precedent for the Supreme Court to rule against the government and strike down COPA.

Opinion of the Constitutionality of the Child’s Online Protection Act

After analyzing the COPA legislation, similar legislation (CDA), the procedural history and precedent from various courts and the elements necessary to meet the strict scrutiny test, I find COPA to be unconstitutional as it is inconsistent with the First Amendment.

In Texas v. Johnson, Justice William Brennan captured the essence of content based speech regulations. He said, “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”[42]

There are clearly elements of the strict scrutiny test which COPA cannot meet. The statute is vague, overbroad and not narrowly tailored. With modern day technology, this legislation written ten years ago, although it fits a compelling governmental interest, does not meet the least drastic means of accomplishing such an interest.

By enforcing COPA instead of far less drastic means of accomplishing the clear and compelling governmental interest, the government would be restricting speech based on its content while also serving as a deterrent for future speakers. By ruling COPA constitutional, the Supreme Court would be ruling that speech that is objectionable can be eliminated based on content and rejecting the notion espoused by Justice Brennan about enforcing the principles of the First Amendment. After analyzing a history of First Amendment cases, I conclude that it is the speech we do not agree with that is most important to protect. Otherwise, the First Amendment protects no speech at all.

[1] Reno, Attorney General of the United States, et al. v. American Civil Liberties Union et al., 521 U.S. 844 (1997).

[2] Id.

[3] Id.

[4] Id at 847.

[5] Id at 849.

[6] Id at 846.

[7] Id.

[8] Id. at 879.

[9] Id.

[10] Id at 880.

[11] Id.

[12] Id.

[13] Id at 856.

[14] Id at 857.

[15] Id at 879.

[16] Id at 881.

[17] Id at 882.

[18] Child Online Protection Act, H.R. 3783, 105^th Cong. (1998).

[19] Id.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Ashcroft, Attorney General of the United States v. American Civil Liberties Union, 99-1324 (3^rd Cir. 2003)

[25] Id.

[26] Timothy Zick, Congress, the internet, and the intractable pornography problem: The Child Online Protection Act of 1998, 32 Creighton L. Rev. 1147 (1999).

[27] Ashcroft v. ACLU

[28] Id.

[29] American Civil Liberties Union et al. v. Alberto R. Gonzales, Attorney General of the United States (No. 98-5591) 2007.

[30] Id.

[31] Id.

[32] Id.

[33] Institute of Management and Administration, Inc., Third Circuit Again Invalidates Online Indecency Law for First Amendment Flaws (2008).

[34] ACLU v. Gonzales

[35] Ryan Singel, Child Online Protection Act Overturned, ABC News (2008), at http://abcnews.go.com/Technology/AheadoftheCurve/Story?id=5428228&page=1

[36] Ginsberg v. New York, 390 U.S. 629 (1968).

[37] Scott A. Shail, Reno v. ACLU: The first congressional attempt to regulate pornography on the internet fails First Amendment Scrutiny, 28 U. Balt. L. Rev. 273 (1998).

[38] FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

[39] Ashcroft v. ACLU

[40] Reno v. ACLU, 521 U.S. at 865.

[41] Id at 870.

[42] Texas v. Johnson, 491 U.S. 414 (1989).