nonviolent action against white merchants to pressure them to comply with CIVIL RIGHTS laws. The Court found that though clearly an economic activity, it was primarily designed to advance the NAACP’s political beliefs in civil rights. This added purpose gave the boycott an expressive character sufficient to warrant First Amendment protection. On the other hand, an economic boycott that is not intended to express political ideas or beliefs is not protected under the First Amendment. In FTC v. Superior Court Trial Lawyers Ass’n, 493 U.S. 411, 110 S. Ct. 768, 107 L. Ed. 2d 851 (1990), the Court found that a boycott organized by trial lawyers in an effort to secure increased compensation for their representation of indigent clients was a fundamentally economic activity that did not rise to the level of expressive conduct contem- plated by the First Amendment. During the 1940s and 1950s, a number of cases tested the constitutionality of the Alien Registration Act (also known as the SMITH ACT) (18 U.S.C.A. § 2385), which makes it a crime to conspire to overthrow the government or promote doctrines that advocate sedition. The act was sometimes used to prosecute individuals merely for their membership in organizations suspected of promoting INSURRECTION. The general principle that evolved from these cases is that an individual cannot be punished for membership in an organization that is commit- ted to illegal conduct, unless he or she is an active member with knowledge of the organiza- tion’s illegal objectives and SPECIFIC INTENT to further those objectives. (See Noto v. United States, 367 U.S. 290, 81 S. Ct. 1517, 6 L. Ed. 2d 836 [1961]; Scales v. United States, 367 U.S. 203, 81 S. Ct. 1469, 6 L. Ed. 2d 782 [1961]). This principle has also been applied to invalidate blanket prohibitions on government employ- ment or membership in organizations such as a state bar because of an individual’s past associations. The government may inquire into past associations but must limit the inquiry to the person’s actual knowledge of illegal activity and INTENT to further it. (See Schware v. Board of Bar Examiners, 353 U.S. 232, 77 S. Ct. 752, 1 L. Ed. 2d 796 [1957]; United States v. Robel, 389 U.S. 258, 88 S. Ct. 419, 19 L. Ed. 2d 508 [1967]). The outcome of cases challenging indirect government regulation of freedom of association has been somewhat INCONSISTENT. In general, the Court has balanced the individual’s associational interests against the state’s interests. In the early twentieth century, the Supreme Court held that a KU KLUX KLAN membership list had to be disclosed because the members’ freedom of association was subordinate to the state’s interest in controlling the Klan’s illegalactivities (New York ex rel. Bryant v. Zimmerman, 278 U.S. 63, 49 S. Ct. 61, 73 L. Ed. 184 [1928]). Similarly, in 1961 the Court upheld a forced disclosure of the Communist party’s membership because of the perceived dangers posed by the party’s activities (Communist Party of the United States v. Subversive Activities Control Board, 367 U.S. 1, 81 S. Ct. 1357, 6 L. Ed. 2d 625 [1961]). Conversely, in 1958, in Patterson, the Court had struck down the state’s order that the NAACP disclose its membership, distinguishing Bryant on the grounds that the Klan was involved in illegal activities, whereas the NAACP was not. A similar rationale was applied in Communist Party. In the late twentieth century, the Court moved away from the balancing approach toward a STRICT SCRUTINY standard that made it more difficult for the government to impinge indirectly on freedom of association. In general, freedom of association includes the right to be freefrom compelled association. In Wooley v. Maynard, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752 (1977), and Abood v. Detroit Board of Education, 431 U.S. 209, 97 S. Ct. 1782, 52 L. Ed. 2d 261 (1977), the Court held that freedom of association is unconstitutionally burdened where the state requires an individual to support or espouse ideals or beliefs with which he or she disagrees. Similarly, in Keller v. State Bar, 496 U.S. 1, 110 S. Ct. 2228, 110 L. Ed. 2d 1 (1990), the Court held that mandatory state bar membership dues could not be used to further ideological causes with which some members might disagree, unless the state could show that the expenditures were incurred for the purposeof regulating the legal profession or improving the quality of legal service. When the right to be free from compelled association is exercised on the basis of race, gender, RELIGION, or sexual orientation, compet- ing constitutional rights clash. Such was the dilemma faced by the Court in ROBERTS V. UNITED STATES JAYCEES, 468 U.S. 609, 104 S. Ct. 3244, 82 L. Ed. 2d 462 (1984). The Jaycees is a national organization whose BYLAWS limited full membership to men age 18 to 35. When a group of women challenged their exclusion, this policy was held uncons titutional. The Court GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FREEDOM OF ASSOCIATION AND ASSEMBLY 539 found that the state’s interest in eliminating gender DISCRIMINATION outweighed the male Jaycees’ interest in freedom from compelled association. Although the Court reiterated its position that freedom of association is funda- mental, it also stated that such freedom is not ABSOLUTE: “Infringements on that right may be justified by regulations adopted to serve compel- ling state interests, unrelated to the suppression of ideas, that cannot be achieved through means significantly less restrictive of associational freedoms.” During the late 1990s several lawsuits were filed against the Boy Scouts of America (BSA) contesting the BSA’s rules against allowing gay scout lead ers and troop me mbers. In Curran v. Mount Diablo Council of the Boy Scouts of America, 17 Cal.4th 670, 952 P.2d 218, 72 Cal. Rptr.2d 410 (1998), the California Supreme Court rejected a claim that the BSA violated a California anti-discrimination law. The key issue was whether the BSA was a business establishment and thus a place of public accommodation. Previous decisions had found that country clubs met this definition and were subject to the law. The court ruled that the scout organization was not a place of public accommodation. It was true that the Boy Scouts conducted extensive business activities involving nonmem- bers throu gh its retail shops and stores and through the licensing of its insignia. However, the court ruled that these business activities differed from those of a country club. The Boy Scouts are an “expressive social organization whose primary function is the inculcation of values in its youth members, and whose small social-groups structure and activities are not comparable to those of a traditional place of public accommodation or amusement.” Unlike the country club, the Boy Scouts did not sell to nonmembers “access to the basic activities or services offered by the organization.” Non- members could not purchase ENTRY to scout meetings, overnight hikes, the national jambo- ree, or to training and education programs. As for the Boy Scout retail stores, the court found that while these were business establish- ments, the business transacted at these stores was “distinct from the Scouts’ core functions” and did not demonstrate that the organization had become a “commercial purveyor of the primary incidents and benefits of membership of the organization.” Therefore, the Boy Scouts were not a “public accommodation subject to the anti-discrimination law.” The U.S. Supreme Court ended the dispute over the BSA and gay membership in BOY SCOUTS OF AMERICA V . DALE, 530 U.S. 640, 120 S.Ct. 2446, 147 L.Ed.2d 554 (2000). The New Jersey Supreme Court had ruled that the BSA had violated both the Roberts, decision and New Jersey anti-discrimination laws; it ordered the BSA to allow gay membership. The U.S. Supreme Court rejected this decision, finding that the state supreme court had mistakenly applied the Roberts decision when it should have applied Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 115 S.Ct. 2338, 132 L.Ed.2d 487 (1995). In Hurley, the Court ruled that the spons or of Boston’s St. Patrick’s Day parade could not be forced to let a group of gays and lesbians participate. The Court held that parades are a form of expression and that the sponsors could not be forced to include “a group imparting a message the organizers do not wish to convey.” The Court, in a 5 to 4 decision, held that forcing the organization to accept gay troop leaders would violate the BSA rights of free expression and free association under the First Amendment. Thus, it accepted the BSA argument and rejected the New Jersey Supreme Court’s application of public accommodations law to the case. The Court has also recognized a constitu- tional right to freedom of intimate association, the fundamental human right to create and maintain intimate human relationships. Free- dom of intimate association is generally included within the right of privacy as enunciated in cases such as GRISWOLD V. CONNECTICUT, 381 U.S. 479, 85 S. Ct. 1678, 14 L. Ed. 2d 510 (1965), invalidating a state statute forbidding use of contraception; ROE V. WADE, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), holding a Texas law criminalizing ABORTION unconstitu- tional; and Carey v. Population Services Interna- tional, 431 U.S. 678, 97 S. Ct. 2010, 52 L. Ed. 2d 675 (1977), holding limits on distribution of contraceptives and contraceptive information unconstitutional. FURTHER READINGS Edgar, Christopher R. 2002. “The Right to Freedom of Expressive Association and the Press.” Stanford Law Review 55 (October). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 540 FREEDOM OF ASSOCIATION AND ASSEMBLY Huget, J. Michael. 1985. “Roberts v. United States Jaycees: What Price Freedom of Association?” Michigan State Law Review. Jameson, Ann H. 1985. “Roberts v. United States Jaycees: Discriminatory Membership Policy ” Catholic Univ. Law Review 34 (summer). Moegenburg, Julia A. 1989. “Freedom of Association and the Private Club.” Marquette Law Review 72 (spring). CROSS REFERENCES Club; Communism; NAACP. FREEDOM OF INFORMATION ACT The FREEDOM OF INFORMATION ACT (FOIA) (5 U.S.C.A. § 552 et seq.) provides for the disclosure of information held by administrative agencies to the public, unless the documents requested fall into one of the specific exemp- tions set forth in the statute. FOIA was implemented to prevent FEDERAL agencies from abusing their discretionary powers by forcing them to make certain information about their work available to the public. The law was regarded as a great milestone because it guaran- tees the right of people to learn about the internal workings of their government. Almost all agencies of the EXECUTIVE BRANCH of the federal government have issued regulations implement- ing FOIA. These regulations inform the public where certain types of information are kept, how the information may be obtained on request, and what appeals are available if a member of the public is denied requested information. A person requesting information under FOIA must generally send a letter to the head of the agency maintaining the documents that are sought, identifying the records as clearly as possible. If the request for information is denied, a letter of APPEAL may be filed, citing, if possible, court rulings explaining why the agency’s decision to withhold the information is inappropriate. If the agency denies the appeal, the individual may seek JUDICIAL REVIEW of the agency’s action. Exemptions to FOIA are designed to allow an agency to withhold records in situations in which disclosure would cause harm to an important govern ment function or private interest. FOIA explicitly exempts from disclo- sure a variety of different types of information, including materials that have been classified as secret in the interest of national DEFENSE or foreign policy; information related solely to the internal personnel rules and practices of an agency; trade secrets and commercial or finan- cial information; and personnel and medical files and similar files for which disclosure would constitute an unwarranted invasion of personal privacy (5 U.S.C.A. § 552(b)). Although the exemptions appear to run counter to the public interest in gaining access to information, they serve certain important national policy interests, including those of national defense, foreign policy, civilian cooperation with law enforce- ment, and the efficient operation of government agencies. Courts have held that, consistent with the purpose of FOIA, these exemptions must be narrowly construed. Most litigation under FOIA has occurred when an agency refuses to release government information, citing one or more of the exemp- tions set forth in the statute. In United States DEPARTMENT OF JUSTICE v. Landano, 508 U.S. 165, 113 S. Ct. 2014, 124 L. Ed. 2d 84 (1993), for example, the U.S. Supreme Court held that the FEDERAL BUREAU OF INVESTIGATION (FBI) does not have a blanket exemption under FOIA from disclosing the identity of FBI informants. Instead, the Court ruled, the bureau must justify, on a case-by-case basis, why informants’ identities must not be disclosed. Thus, the Court performed the difficult task of reconciling two important but opposing interests: FOIA policy of favoring the fullest disclosure possible versus the interest of law enforcement agencies in protecting their cooperative sources. Writing for the Court, Justice Sandra Day O’Connor stated, “Although we recognize that confidenti- ality often will be important to the FBI’s investigative efforts, we cannot say that the government’s sweeping presumption comports with common sense and probability.” Instead, she maintained, the agency must be able to demonstrate that it was reasonable to infer under the circumstances that the information had been provided with an expectation of confidentiality. Requests for intelligence information has likewise been the subject of litigation under the Freedom of Information Act. In 1996, President BILL CLINTON authorized Congress to make public disclosure of the “bottom line” intelli- gence budget APPROPRIATION for the CENTRAL INTELLIGENCE AGENCY , following a recommenda- tion of an intelligence commission. The gov- ernment divulged the government’s intelligence budgets in 1997 and 1998, but former CIA director George Tenet in 1999 determined that GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FREEDOM OF INFORMATION ACT 541 this information could be used to assist foreign countries in countering U.S. intelligence efforts. The FEDERATION of American Scientists, an advocacy group, brought suit in the U.S. district court for the DISTRICT OF COLUMBIA in 1999 to compel disclosure of the budget figures, but the court denied these requests. Congress held hearings about disclosure of this information in 2000, but the group’s reques ts for budget information in 2000 were similarly denied by the CIA. Since FOIA was enacted in 1966, more than a half million requests for information have been filed with government agencies. Although A sample letter requesting information under the Freedom of Information Act. ILLUSTRATION BY GGS CREATIVE RESOURCES. REPRODUCED BY PERMISSION OF GALE, A PART OF CENGAGE LEARNING. Freedom of Information Act Request Letter Under the Freedom of Information Act Your Name Address Telephone Number Date Agency Head [or Freedom of Information Officer] Name of Agency Address RE: Freedom of Information Act Request Dear (specify name): This is a request under the Freedom of Information Act, 5 U.S.C. Sec. 552. I request that a copy of the following documents [or documents containing the following information] be provided to me: [identify the documents or information as specifically as possible]. In order to help to determine my status to assess fees, you should know that I am [insert a suitable description of the requester and the purpose of the request]. [Sample requester descriptions: —a representative of the news media affiliated with (a newspaper, magazine, television station, etc., or a public interest organization that publishes or disseminates information, etc.), and this request is made as part of news gathering and not for a commercial use. —affiliated with an educational or noncommercial scientific institution, and this request is made for a scholarly or scientific purpose and not for a commercial use. —an individual seeking information for personal use and not for a commercial use. —affiliated with a private corporation and am seeking information for use in the company’s business.] [Optional] I am willing to pay fees for this request up to a maximum of $[ ]. If you estimate that the fees will exceed this amount, please inform me first. [Optional] I request a waiver of all fees for this request. Disclosure of the requested information to me is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in my commercial interest. [Include a specific explanation] Very truly yours Your name —Send certified mail, return receipt requested. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 542 FREEDOM OF INFORMATION ACT initially envisioned as a means to make the federal government more accessible to citizens, FOIA has been used extensively by reporters and news-gathering agencies, corporations, and even foreign governments. When the act was first passed, most govern- ment data were stored primarily on paper, microfilm, and microfiche. With the advent of the computer age, more information is available to more people than ever before, creating the need for new guidelines in disseminating government information. In particular, com- puter technology raises questions about what constitutes a reasonable request for information under the act and about how information should be disclosed. The act does not mention computerized records, but the Computer Secu- rity Act of 1987 (Act of Jan. 8, 1988, Pub. L. No. 100-235, 101 Stat. 1724 [1988]) prohibits agencies from withholding computerized records from the public if the records would be available under FOIA as paper documents. Nevertheless, some groups seeking government information have been concerned that govern- ment agencies may release large volumes of paper records when more manageable and convenient computer records may be available. The policies of the administration of GEORGE W . BUSH with respect to disclosure of informa- tion have come under attack from groups seeking to protect this information. The SEPTEM- BER 11TH ATTACKS against the United States spawned a great deal of concern in the country regarding security measures, including secrecy with respect to information. In October 2001, Attorney General JOHN ASHCROFT issued a dire c- tive to federal agencies that emphasized with- holding of public records if the agency could demonstrate a sound legal basis for doing so. Ashcroft has since supported withholding of information from these agencies. Although the memorandum was issued after the terrorist attacks, it had reportedly been in the works prior to September 11. The Homeland Security Act of 2002 created additional restrictions on the release of govern- ment information. The act allows private parties to refuse to disclose information about “critical infrastructure” by voluntarily submitting this information to the HOMELAND SECURITY DEPART- MENT . Members of Congress have criticized this measure, and advocacy groups have threatened litigation to demand the release of this information, but release of certain records could take years. Although government officials claim that Bush’s policies have not hindered the release of information to a considerable extent, examples of limitations include restrictions of the media’s access in the war in Afghanistan in 2001, as well as the refusal to disclose the names of more than 1,000 non-citizens held for IMMIGRATION violations. Nevertheless, when the United States attacked Iraq in March 2003, the media had considerable access, comparable to the level of access in the Gulf War of 1991. FURTHER READINGS Franklin, Justin D., and Robert F. Bouchard. 2003. Guidebook to the Freedom of Information and Privacy Acts. Eagan, MN: West. O’Reilly, James T. 2000–2009. Federal Information Disclo- sure. Eagan, MN: West. The Department of Justice Guide to the Freedom of Information Act. 2007. Washington, D.C.: Justice Department. Available online at http://www.usdoj.gov/ oip/foia_guide07.htm; website home page: http://www. usdoj.gov (accessed July 25, 2009). FREEDOM OF SPEECH Freedom of speech is the right, guaranteed by the First Amendment to the U.S. Constitution, to express beliefs and ideas without unwarranted government restriction. Democracies have long grappled with the issue of the limits, if any, to place on the expression of ideas and beliefs. The dilemma dates back at least to Ancient Greece, when the Athenians, who cherished individual freedom, nevertheless prosecuted Socrates for his teach- ings, claiming that he had corrupted young people and insulted the gods. The Framers of the Constitution guaranteed FREEDOM OF SPEECH and expression to the citizens of the United States with the FIRST AMENDMENT, which reads, in part, “Congress shall make no law abridging the freedom of speech.” Almost since the adoption of the BILL OF RIGHTS, however, the JUDICIARY has struggled to define speech and expression and the extent to which freedom of speech should be protected. Some, like Justice Hugo L. Black, have believed that freedom of speech is ABSOLUTE. But many jurists, along with many U.S. citizens, agree with Justice Oliver Wendell Holmes Jr., who felt that the Constitution allows some restrictions on speech under certain circums tances. To illustrate this point, Holmes wrote, “The most stringent GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FREEDOM OF SPEECH 543 protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic” (Schenck v. United States, 249 U.S. 47, 39 S. Ct. 247, 63 L. Ed. 470 [1919]). During the two centuries since the adoption of the First Amendment, the U.S. Supreme Court has held that some types of speech or expression may be regulated. At the same time, the Court has granted protection to some areas of expression that the Framers clearly had not contemplated. Public Forum Regulation When the government attempts to regulate the exercise of speech rights in traditional public forums, suc h as parks or public sidewalks, the U.S. Supreme Court examines whether the regulation restricts the content of the speech or merely regulates the time, manner, and place in which the speech is delivered. If the law regulates the content of the expression, it must serve a compelling STATE INTEREST and must be narrowly written to achieve that interest (Perry Education Ass’nv. Perry Local Educators’ Ass’n, 460 U.S. 37, 103 S. Ct. 948, 74 L. Ed. 2d 794 [1983]). Restrictions on speech in a public forum also may be upheld if the expressive activity being regulated is of a type that is not entitled to full First Amendment protection, such as obscenity. Laws that regulate the time, manner, and place, but not content, of speech in a public forum receive less scrutiny by the Court than do laws that restrict the content of expression. These so-called content-neutral laws are permissible if they serve a significant government interest and allow ample alternative channels of communica- tion (see Perry). It is not necessary that a content- neutral law be the least restrictive alternative, but only that the government’s interest would be achieved less effectively without it (Ward v. Rock against Racism, 491 U.S. 781, 109 S. Ct. 2746, 105 L. Ed. 2d 661 [1989]). An important distinction is drawn between public premises that serve as traditional public forums and those that constitute limited public forums. For example, state fair grounds are public premises that have not traditionally served as public forums. The government may impose more restrictions on free speech in limited public forums than in traditional public forums. In Heffron v. International Society for Krishna Consciousness, 452 U.S. 640, 101 S. Ct. 2559, 69 L. Ed. 2d 298 (1981), the Court upheld regulations limiting the sale or distribution of religious materials to fixed locations on state fair grounds. In Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S. Ct. 775, 151 L. Ed. 2d 783 (2002), the Court reaffirmed that local governments do not violate the First Amendment when they require the obtaining of a permit before individuals can hold large-scale rally events in public parks. In this case, the Chicago Park District denied a rally permit to a group that had sought to hold a “Hempfest.” The park district denied the permit because of violations of park rules at previous events run by the organizers. The group challenged the denial, arguing that the park district could use its unfettered discretionary power to deny permits to those who held unpopular or controversial political views, such as support for the legaliza- tion of marijuana. The U.S. Supreme Court held that the park district’s ordinance was a constitutionally permissible “content-neutral” regulation of time, manner, and place. It was directed toward all activity in a public park, not just toward communicative or political activity. It did not constitute subject-matter CENSORSHIP A Hare Krishna follower speaks to men in a public park, a traditional public forum in which freedom of speech is protected. In a 1981 decision, the court upheld limitations on the distribution of religious material in limited public forums such as state fair grounds. ADAM WOOLFITT/ CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 544 FREEDOM OF SPEECH in any way. The Court explained that the park district’s object was to coordinate multiple uses of limited space; to assure preservation of park facilities; to prevent dangerous, unlawful, or impermissible uses; and to assure financial accountability for DAMAGES caused by an event. Although it seems reasonable to assume that public premises owned and operated by the government are public forums, some are not. In Adderley v. Florida, 385 U.S. 39, 87 S. Ct. 242, 17 L. Ed. 2d 149 (1966), the U.S. Supreme Court upheld the trespass CONVICTION of students who demonstrated on the grounds of a JAIL. Although jailhouse grounds are public property, they have not been used traditionally as public forums: “No less so than a private owner of property, the state has the power to preserve the property under its control for the use to which it is lawfully dedicated.” Later cases challenging restricted access to public premises focused on whether the government, in creating the pre- mises, had intended to create a public forum. In United States v. Kokinda, 497 U.S. 720, 110 S. Ct. 3115, 111 L. Ed. 2d 571 (1990), the Court upheld a postal-service regulation that bars the SOLICITATION of contributions on a post office’s sidewalk, because that sidewalk lacked the characteristics of a general public sidewalk. Similarly, it declared an airport terminal to be a nonpublic forum because “the tradition of airport activity does not demonstrate that airports have historically been made available for speech activity” (International Society for Krishna Consciousness v. Lee, 505 U.S. 672, 112 S. Ct. 2701, 120 L. Ed. 2d 541 [1992]). When private property rights conflict with the public-forum doctrine, the Court examines whether the regulation in question is narrowly tailored to serve a significant government interest. A law may not prohibit all canvassing or solicitation of, or distribution of handbills to, homeowners in a residential neighborhood, because a pu blic street is a traditional public forum. However, it may limit specific types of speech activity that target particular individuals. In Frisby v. Schultz, 487 U.S. 474, 108 S. Ct. 2495, 101 L. Ed. 2d 420 (1988), the Court upheld an ordinance that prohibited the pick- eting of individual residences. The law had been narrowly drawn to serve the government’s interest in precluding the picketing of captive householders and allowed picketers ample alternative means of expression. Inciting, Provocative, or Offensive Speech Laws that limit inciting or provocative speech, often called fighting words, or offensive expres- sions such as PORNOGRAPHY, are subject to STRICT SCRUTINY . It is well established that the govern- ment may impose content regulations on certain categories of expression that do not merit First Amendment protection. To illustrate this point, the Court stated in Chapli nsky v. New Hamp- shire, 315 U.S. 568, 62 S. Ct. 766, 86 L. Ed. 1031 (1942), “There are certain well-defined and narrowly limited classes of speech, the preven- tion and punishment of which have never been thought to raise CONSTITUTIONAL problems.” With the increase of activity in cyberspace, individuals can distribute questionable speech throughout the United States and the world. In Planned Parenthood of the Columbia/Willamette Inc. v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. 2002), a FEDERAL appeals court ruled that an anti-abortion Website was not protected by the First Amendment. The Website posted photos, names, addresses, and other information pertaining to ABORTION pro- viders, their family members, and others who were perceived as supporting abortion rights. Although neither the site nor the posters made explicit threats against the abortion providers, violence at clinics that provided abortions had followed poster distribution in the past. Planned Parenthood sued the group under the Freedom of Access to Clinic Entrances Act of 1994 (FACE), 18 U.S.C. § 248, and other laws. The trial judge instructed the jury that if the A member of the Ku Klux Klan at a rally held in Pennsylvania. Freedom of speech is guaranteed to groups that many people may find offensive. AP IMAGES GALE ENCYCLOPEDIA OF AMERICAN LAW, 3 RD E DITION FREEDOM OF SPEECH 545 defendants’ statements were “true threats,” the First Amendment would not protect them. The jury awarded the plaintiff a multimillion-dollar verdict. The Ninth Circuit stated that a jury could conclude that the postings constituted a true threat under FACE, which removed any First Amendment protection for the defendants. The Court has also upheld laws that regulate speech activity if those laws do not limit the content of speech and impose only an indirect burden on freedom of speech. In such cases, the Court applies a less stringent test and balances the individual’s free speech interests against the government’s i nterest that is furthered by the law in question. In O’Brien v. United States, 393 U.S. 900, 89 S. Ct. 63, 21 L. Ed. 2d 188 (1968), the Court held that a statute prohibiting the destruction of DRAFT cards did not violate the First Amendment, because the government’s interest in maintaining a viable selective-service pool outweighed the statute’s INCIDENTAL IN- FRINGEMENT of free expression. Since the 1980s, a number of laws have been passed that attempt to regulate or ban hate speech, which is defined as utterances, displays, or expressions of racial, religious, or sexual BIAS. The U.S. Supreme Court has generally invali- dated such laws on the ground that they infringe First Amendment rights. In R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992), the Court invalidated the city of St. Paul’s hate-crime ordinance, RULING that it unconstitutionally infringed free speech. The DEFENDANT in that case had been prosecuted for burning a cross on the lawn of an African American family’s residence. The Minnesota Supreme Court held that the ordinance was limited to restr icting conduct that amounted to Chaplinksky “fighting words.” Therefore, the ordinance was not impermissibly content-based because it was “narrowly tai- lored” to further the “compelling governmental interest in protecting the community against bias-motivated threats to public safety and order.” The U.S. Supreme Court disagreed. Justice ANTONIN SCALIA, in his majority opinion, wrote that, even assuming that the cross burning was proscribable under the “fighting words” doctrine, the ordinance was, on its face, unconstitutional. It violated the First Amend- ment because it prohibited “otherwise permit- ted speech solely on the basis of the subjects the speech addresses.” Scalia agreed that the government may constitutionally proscribe content such as libel but that it may not proscribe only libel that is critical of the government. In majority’s view, the unprotected features of “fighting words” are their “non- speech” element of communication. Thus, fighting words are like a noisy sound truck: Each is a mode of speech, and both can be used to convey an idea, but neither has a claim on the First Amendment. The government cannot, however, regulate fighting words or a sound truck based on “hostility—or favoritism—to- wards the underlying message expressed.” In addition, the ordinance was not over- broad but underinclusive. The content limita- tion was impermissible because it displayed “the city council’s special hostility towards the particular biases thus singled out.” An ordi- nance not restricted “to the favored topics” would have the same effect the city desired, but without the DISCRIMINATION against unpopular views. Justice Scalia also noted that the city could have prosecuted the defendant under traditional CRIMINAL LAW statutes, including ARSON, trespass, and terroristic threats. In his view, the city had other means to address the problem “without adding the First Amendment to the fire.” This decision did not end the debate over hate crimes. The Court took up the issue again in Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536. 155 L. Ed. 2d 535 (2003). This case also involved a cross burning aimed at terrorizing an African American family. A Virginia criminal statute had outlawed cross burning “on the property of another, a highway or other public place with the INTENT of intimidating any person or group.” In a 6–3 decision, the Court upheld the statute. It emphasized that the First Amendment would protect some types of cross burnings, such as one held at a political rally. However, when the cross burning was targeted at individuals for the purposes of criminal intimidation, freedom of speech would not protect the cross burners. Like fighting words, materials that are judged obscene are not protected by the First Amendment. The three-part Miller test stands as the measure for differentiating material that is merely offensive and, therefore, protected by the First Amendment, from that which is legally obscene and, therefore, subject to restriction (Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 546 FREEDOM OF SPEECH 37 L. Ed. 2d 419 [1973]). The Miller test determines that material is obscene if: (1) the average person, applying contemporary com- munity standards, would find that it appeals to shameful or morbid sexual interests; (2) it depicts or describes patently offensive sexual conduct; and (3) it lacks serious literary, artistic, political, or scientific value. The Seventh CIRCUIT COURT of Appeals ruled in Kendrick v. American Amusement Machine Association, 244 F.3d 572 (7th Cir. 2001), that a city ordinance that prohibited minors from playing violent or sexually explicit video arcade games was unconstitutional. The court noted that the city had not sought to regulate video games because they were “offensive” under Miller. Rather, the ordinance premised its restriction on the belief that violent fantasy video games led to real-world harm. The appeals court found no real difference between the content of the allegedly “violent” video games and generally available, unrestricted literature that depicted the same level of violence. They were both examples of “a children’s world of violent adventures.” The court, therefore, found that the ordinance impermissibly restricted minors’ freedom of expression without any offsetting justification. Prior Restraint The Court uses a stringent standard when it evaluates statutes that impose a PRIOR RESTRAINT on speech. The test that is most frequently employed asks whether the prohibited activity poses a CLEAR AND PRESENT DANGER of resulting in damage to a legitimate government interest. Most often, the clear-and-present-danger doc- trine has applied to prior restraints on the publication of materials thought to threaten national security. This test was first expressed by Justice Holmes in the Schenck case. Charles T. Schenck had been charged with violating the ESPIONAGE Act (Tit. 1, §§ 3, 4 [Comp. St. 1918, §§ 10212c, 10212d]) by distributing pamphlets that urged insubordination among members of the military. The Court held that his activities created “a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.” The govern- ment’s interest in maint aining national security and preventing dissension among the troops outweighed Schenck’s interest in free speech. The clear-and-present-danger test was ex- tended during the 1950s, when widespread fear of COMMUNISM led to the passage of the SMITH ACT , 18 U.S.C.A. § 2385, which prohibited advocating the overthrow of the government. The act was challenged as a prior restraint on speech. It was upheld by the U.S. Supreme Court, which state d that the clear-and-present- danger test does not require the government to prove that a threat is IMMINENT or that a plot probably would be successful (Dennis v. United States, 341 U.S. 494, 71 S. Ct. 857, 95 L. Ed. 1137 [1951]). The Dennis decision was criticized as weakening the clear-and-present-danger test and allowing the government too much free- dom to restrict speech. These results were remedied somewhat in Brandenburg v. Ohio, 395 U.S. 444, 89 S. Ct. 1827, 23 L. Ed. 2d 430 (1969), in which the Court invalidated a statute that punished the advocacy of violence in industrial disputes. The Court held that the government cannot forbid the advocacy of the use of force unless that advocacy is directed to inciting imminent illegal activity and is likely to succeed. Expressive Conduct In West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S. Ct. 1178, 87 L. Ed. 1628 (1943), Justice ROBERT H. JACKSON wrote that symbols are “a short cut from mind to mind.” Expressive conduct or SYMBOLIC SPEECH involves communicative conduct that is the behavioral equivalent of speech. The conduct itself is the idea or message. Some expressive conduct is the equivale nt of speech and is protected by the First Amendment. In Tinker v. Des Moines Independent Com- munity School District, 393 U.S. 503, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), the U.S. Supreme Court held that it was unconstitutional to suspend high-school students for wearing black armbands to protest the VIETNAM WAR, because their conduct was “akin to pure speech” and did not interfere with the work of the school or the rights of other students. Thus, the Court ruled that student expression may not be suppressed unless school officials reasonably conclude that it will “materially and substan- tially disrupt the work and discipline of the school.” In Morse v. Frederick, 551 U.S. 393, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007), the Supreme Court found that the Tinker precedent did not GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FREEDOM OF SPEECH 547 protect student expression that a school official perceived as promoting illegal drug use, even though the expression took place off school property. During January 2002, the Olympic Torch Relay passed in front of Juneau-Douglas High School (JDHS) in Juneau, Alaska, en route to the winter games in Salt Lake City, Utah. Students at JDHS were permitted to leave classes and watch the relay from outside the school. Joseph Frederick, a senior at JDHS, watched the event from across the street from JDHS. Just as the relay runner and TELEVISION cameras passed by Frederick, he and his friends held up a large banner containing the phrase “BONG HITS 4 JESUS.” JDHS principal Deborah Morse crossed the street, demanded that Frederick take down the banner, and then confiscated it when he refused to take it down. Morse subsequently suspended Frederick for ten days, though the suspension was later reduced to two days. Frederick responded by suing Morse and the school board for violating his free speech rights under the First Amendment. The U.S district court for the District of Alaska granted SUMMARY JUDGMENT for the defendants, finding that “it is a highly appropriate function of public education to prohibit the use of offensive terms in public discourse” and that the First Amendment does not prevent school officials from deter- mining that certain language “would undermine the school’s basic educational mission” (Freder- ick v. Morse, 2003 WL 25274689 [2003]). The U. S. Court of Appeals for the Ninth Circuit reversed, finding that in the absence of proof that Frederick had disrupted educational activi- ties, Morse had no right to punish and censor off-campus speech simply because the speech promoted a social message contrary to the one favored by the school (Frederick v. Morse, 439 F.3d 1114 [2006]). Morse and the school board appealed. In its opinion, the Supreme Court first rejected Frederick’s argument that Morse had no authority over him because he was off school property. The event occurred during normal school hours, and it was sanctioned by the principal “as an approved social event or class trip,” and the school district’s rules expressly provided that pu pils in “approved social events and class trips are subject to district rules for student conduct,” the Court observed. The Court also noted that teachers and administrators were interspersed among stu- dents and charged with supervising them, and the high school band and cheerleaders per- formed. Thus, Morse had an obligation to oversee Frederick’s activities across the street from the school just as if they had taken place inside the school. Next the Court focused on the content of the Frederick’s speech. According to testimony at trial, a banner proclaiming “BONG HITS 4 JESUS” could have one of four meanings: “smoke marijuana,”“use an illegal drug,”mar- ijuana bong hits are a good thing,“or”we take marijuana bong hits.“Each of the four messages promote the use of a drug that is illegal, the Court said, and flies in the face of the school’s message that illegal drug use is harmful.“The 1st Amendment does not require schools to tolerate student expression that contributes to those dangers,”the Court ruled. Thus, the principal was well within her authority in confiscating Frederick’s banner and punishing Frederick for unveiling it during a school activity. Justice JOHN PAUL STEVENS, joined by Justices DAVID SOUTER and Ruth Bader Ginsburg, wrote a caustic DISSENT. “It takes real imagination to read a cryptic message with a slanting drug reference as an incitement to drug use. Admittedly, some high school students (includ- ing those who use drugs) are dumb. Most students, however, do not shed the ir brains at the schoolhouse gate, and most students know dumb advocacy when they see it.” The majority countered by pointing out that in Bethel School Dist. No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986), the Court upheld the suspension of a student who delivered a high school assembly speech employing a graphic sexual metaphor that the school found disruptive, even though it did not rise to the level of inciting the students to take illegal action. Curtailing student speech that promotes illegal activity is supported by a stronger justification than the one offered in Bethel, the Court said. In Good News Club v. Milford Central School, 533 U.S. 98, 121 S. Ct. 2093, 150 L. Ed. 2d 151 (2001), the U.S. Supreme Court ruled that a private Christian organization could not be denied use of the public school space for after- school activities. The Court emphasized that the establishment claus e could not serve as a barrier GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 548 FREEDOM OF SPEECH . 2002. “The Right to Freedom of Expressive Association and the Press.” Stanford Law Review 55 (October). GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 540 FREEDOM OF ASSOCIATION AND ASSEMBLY Huget,. WOOLFITT/ CORBIS. GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION 544 FREEDOM OF SPEECH in any way. The Court explained that the park district’s object was to coordinate multiple uses of limited space;. illustrate this point, Holmes wrote, “The most stringent GALE ENCYCLOPEDIA OF AMERICAN LAW, 3RD E DITION FREEDOM OF SPEECH 543 protection of free speech would not protect a man in falsely shouting