First Amendment topicsAbout the First Amendment
2004-2005 Supreme Court Term
   Petitions Filed
Freedom of Expression
  Review Granted
  City of San Diego v. Roe
  Whether the city of San Diego can, consistent with the First Amendment, terminate a police officer for selling videotapes that showed him engaging in sexually explicit acts.
  Clingman v. Beaver
  Whether Oklahoma’s semi-closed primary law, which allows parties to invite independents to vote in primaries, violates the petitioner’s First Amendment associational rights.
  Garcetti v. Ceballos
  Does the First Amendment protect the speech of a deputy district attorney who wrote and circulated a memorandum suggesting that a deputy sheriff lied in a search warrant affidavit and in his subsequent testimony at court?
  Johanns v. Livestock Marketing Association
  Did the 8th Circuit err in holding that the 1985 Beef Promotion & Research Act, and regulations promulgated there under -- which impose assessments on beef producers and importers to fund research, education, and promotional activities carried out by special administrative bodies created by Congress for the express purpose of furthering important governmental objectives under direct supervision of Secretary of Agriculture -- are unconstitutional and unenforceable?
  Nebraska Cattlemen Inc. v. Livestock Marketing Association
  Whether the U.S. Department of Agriculture's pork-check-off program, which was created under the National Pork Promotion, Research and Consumer Information Act of 1985, violates the First Amendment.
  Rumsfeld v. Forum for Academic & Institutional Rights
  The Solomon Amendment, 10 U.S.C. 983(b)(1), withholds specified federal funds from institutions of higher education that deny military recruiters the same access to campuses and students that they provide to other employers. The question presented is whether the court of appeals erred in holding that the Solomon Amendment's equal access condition on federal funding likely violates the First Amendment to the Constitution and in directing a preliminary injunction to be issued against its enforcement.
  Tory v. Cochran
  Whether an injunction, stemming from a defamation and privacy judgment, that ordered the petitioner never again to display a sign or speak about respondent Johnnie Cochran (favorably or otherwise) in a public place violates the petitioner’s First Amendment rights.
 Petitions for Review (pending cases)
  Bannon v. Palm Beach County School District
  (1) Did school officials engage in viewpoint discrimination in violation of the First Amendment when they required that religious references be removed from murals painted by student on construction barriers at public school as part of a project meant to allow for student expression and school beautification? (2) Does the First Amendment allow school officials to discriminate on the basis of viewpoint in censoring student speech that also is considered ‘school-sponsored’ speech under Hazelwood School District v. Kuhlmeier? (3) Did the court of appeals err in holding that a mural project, which was intended to beautify school and serve as a forum for student expression, was ‘school-sponsored’ speech subject to regulation on the grounds that such regulation was reasonably related to pedagogical interests under Hazelwood?
  Barnes v. Rozman
  Is the law of constructive discharge applicable to First Amendment retaliation claims for speaking out on matters of public concern and for denial of access to courts?
  Blackwell v. Beacon Journal Publishing Co.
  Whether, as applied, a state anti-loitering law related to election polling places violates the First Amendment.
  Brakken v. Hoyme
  Was "anti-harassment" injunction directed to petitioner overbroad and unduly restrictive of her rights to liberty and freedom of speech and association, when it prohibited her not only from certain modes of contacting respondent, but also extended to her contacting him "in any way whatsoever"?
  Burt v. Rumsfeld
  Whether the funding provisions of the Solomon Amendment re recruiters on campus violate the First Amendment.
  DuPage County, Ill. v. Palmetto Properties
  Can a county with a shrinking territorial jurisdiction rely on statewide location restriction for adult entertainment facilities, imposed under state law, to avoid challenge that it failed to leave open reasonable alternatives for such establishments to locate within its limited jurisdiction?
  Frye v. Tarwater
  Do police limits on public display of anti-abortion signs violate the First Amendment?
  Gorecki v. Carlson
  Is the legal standard for determining whether a public can be subjected to dismissal for political reasons, as first enunciated in Elrod v. Burns (1976), vague, uncertain, and unworkable in practice, as demonstrated by circuit conflicts, thus entitling petitioner to qualified immunity from money damages liability?
  Hurdle v. New York City Board of Education
  Whether an alleged retaliatory transfer of a public school principal violated her free speech rights under the First Amendment.
  Kirby v. Elizabeth City, N.C.
  Whether alleged retaliation against a government employee violated his free speech rights under the First Amendment.
  Kucera v. Bradbury
  Are the free speech and association rights of independent candidates for federal office violated if a state statute (as interpreted by the state’s high court) allows the secretary of state to disqualify voter signatures on nominating petitions for reasons that are not stated in any statute or in any published administrative rule or any other means of communication available to candidates or their signature gatherers?
  Media General Inc. v. FCC
  Whether media cross-ownership restrictions violated the First Amendment.
  Multnomah County, Ore. v. Alpha Energy Savers Inc.
  Whether a municipality impermissibly retaliated against a government contractor when he testified on behalf of a former county employee.
  National Taxpayers Union v. Social Security Administration
  Pre-enforcement challenge to Section 1140 of Social Security Act, which prohibits the use of the words “Social Security” in any ad, solicitation, or other communication that might convey the false impression that the communication is approved or authorized by the Social Security Administration.
  Pearson Education Inc. v. National Labor Relations Board
  Does the NLRB infringe upon an employer’s First Amendment rights when it interprets a one-page communication made during an organizing campaign to be a threat if individual statements in that single communication are, on their face, accurate and otherwise lawful?
  Randall v. Sorrell
  (1) Whether Vermont's mandatory limits on candidate expenditures violate the 1st and 14th Amendments and the Supreme Court's decision in Buckley v. Valeo? (2) Whether Vermont's treatment of independent expenditures by political parties and committees presumptively coordinated if they benefit fewer than six candidates, and thereby subject to strict contribution and expenditure limits, is consistent with the 1st and 14th Amendments and the Supreme Court's decision in Colorado Republican Federal Campaign Committee v. FEC? (3) Whether Vermont's contribution limits, which are the lowest in the country, which allow only a single maximum contribution over a two-year election cycle, and which prohibit state political parties from contributing more than $400 to their gubernatorial candidate, fall below an acceptable constitutional threshold and should be struck down?
  Sinclair Broadcast Group, Inc. v. Federal Communications Commission
  Did the Third Circuit err in upholding, against First Amendment challenges, a local television ownership rule of the FCC that singles out and places unique restrictions on television broadcasters on the ground that a rational basis supported such regulation?
  Tribune Co. v. FCC
  Whether media cross-ownership restrictions violated the First Amendment.
  Vermont Republican State Committee, et al., v. Sorrell
  (1) Whether Vermont's mandatory candidate expenditure limits violate the freedom of political speech guaranteed by the First and Fourteenth Amendments to the United States Constitution. (2) Whether Vermont's $200-$400 limits per election cycle on campaign contributions to state candidates violate the freedoms of political speech and association guaranteed by the First and Fourteenth Amendments to the United States Constitution because they are unconstitutionally low. (3) Whether Vermont's presumption of coordination, which provides that an expenditure made by a political party or political committee that primarily benefits six or fewer candidates is presumed to be a related expenditure subject to contribution limits, violates the freedoms of political speech and association guaranteed by the First and Fourteenth Amendments to the Unites States Constitution.
  Video Management, Inc. v. Charleston Board of Zoning Appeals
  (1) Is a city ordinance unconstitutional for vagueness because it defines ‘adult business’ as one having a substantial portion of its ‘stock in trade’ devoted to adult material without providing a formula or percentages for what constitutes ‘substantial’ so as to allow Petitioner to tailor his operation to avoid an ‘adult’ classification? (2) Does a city’s refusal to define percentages or provide a formula to allow operator to conform to a local ordinance violate the First Amendment?
 Review Denied
  Akers v. McGinnis
  Does a Michigan Department Corrections rule prohibiting employees’ “improper or overly familiar contact” with prisoners, parolees, probationers, or their family members or visitors violate the freedom of speech and association guaranteed by the First Amendment?
  Albuquerque v. Homans
  Whether a per se ban on mandatory spending limits for mayor and city council members violated the First Amendment as interpreted in Buckley v. Valeo.
  American Teleservices Association v. FTC
  Whether the nationwide "do-not-call registry" regulations, which establish a database of consumers who do not wish to receive commercial telemarketing calls and which prohibit commercial telemarketers from soliciting via telephone consumers who voluntarily list themselves on this database, violate the First Amendment rights of commercial telemarketers.
  Battle v. Virginian-Pilot
  Under the First and Fourteenth Amendments, can a state dismiss a civil litigant’s libel suit – on newspaper’s demurrer – and award sanctions to newspaper because litigant, as public figure, failed to prove actual malice by clear and convincing evidence that statement was made with knowledge of its falsity or with reckless disregard of whether it was true or false?
  Bellecourt v. Cleveland, Ohio
  Did the city of Cleveland violate Petitioners’ First Amendment rights when police arrested (but did not prosecute) them for burning effigies of Chief Wahoo and “Little Black Sambo” in a cordoned area, at which safety personnel were present, during a Cleveland Indians Baseball game?
  Blankenship v. Blackwell
  Whether the First Amendment is violated when a state denies a nominating petition seeking the placement of Ralph Nader and Miguel Camejo as independent candidates for President and Vice-President of the United States on the November 2, 2004 general election ballot in Ohio.
  Church of American Knights of Ku Klux Klan v. Kelly
  Does the First Amendment protect the right of conceal one’s identity in public demonstrations even if such concealment is prompted by reasonable fear of retaliation and harassment by those who disagree with the message of such demonstrators? Can the state, consistent with the First Amendment, deny the wearing of masks for political demonstrations but nonetheless allow them for public theatrical purposes?
  Cobb LLC v. Marietta, Ga.
  Does a municipality’s revocation of petitioner’s business license because of petitioner’s past sale of sexual devices to adults violate the petitioner’s rights to continue to disseminate non-obscene expressive works protected under the First Amendment?
  Cooper and Time, Inc. v. United States
  (1) Whether a reporter’s privilege exists under Federal Rule of Evidence 501 and the common law, or under the First Amendment, that provides protection against compelled disclosure of confidential source information. (2) Whether the Due Process Clause provides protection against imprisonment or fines for contempt based on secret evidence presented ex parte by a prosecutor.
  Cotter v. Portland, Ore.
  Whether a land use board of appeals ruling violated the First Amendment when it subjected public art wall murals to size and other regulations applicable to "signs"
  Dahl v. Fridley
  In evaluating a First Amendment challenge to the regulation of signs, must the reviewing court defer to the judgment of a legislative body when all evidence available to that body indicates that the regulation is unrelated to any legitimate public interest?
  Flynt v. Rumsfeld
  Whether reporters had a First Amendment right to accompany the first wave of U.S. troops sent to Afghanistan shortly after the Sept. 11, 2001, terrorist attacks.
  Friends of Falun Gong v. Pacific Culture Enterprise Inc.
  Do intentional and defamatory falsehoods against group systematically published by foreign press in U.S. subject publishers to liability for defamation, or are they “group defamation” protected under the First Amendment?
  Garter Belt Inc. v. Charter Township of Van Buren, Mich.
  (1) Did Michigan appellate courts err in applying rational basis scrutiny to local ordinance that bans nudity in liquor-licensed businesses and in finding ordinance a constitutionally valid regulation of expression otherwise protected by First Amendment?; (2) Did Michigan appellate courts err in determining that ordinance was not unconstitutional for overbreadth and vagueness?; and (3) Did the Michigan appellate court’s affirmation of trial court’s permanent injunction constitute an impermissible prior restraint?
  Gilchrist v. Board of Review of Oklahoma Employment Security Commission
  First Amendment rights in employee-discharge case
  Howard v. Columbia, Mo., Public School District
  Are school officials entitled to qualified immunity against a public elementary school principal who alleged that her contract was un-renewed because of statements she made about literacy training and exclusionary treatment of minorities and special needs children?
  Jones v. Delgado
  Whether a police officer’s First Amendment rights were violated when, as he alleged, his chief transferred him to an undesirable job after he brought to light allegations of wrongdoing by an alderwoman’s husband.
  Koziara v. Seminole County, Fla.
  Can Florida court’s decision upholding a public nudity ordinance stand even though the trial found that the ordinance was not supported by evidence of adverse secondary effects under City of Los Angeles v. Alameda Books (2002)? Can bathing suit requirement imposed on exotic dancers stand under fourth prong of United States v. O’Brien (1968)?
  McGuire v. Reilly
  Whether a speech-restrictive no-approach buffer zone law violates the First Amendment where, unlike the statute sustained in Hill v. Colorado (2000), it (i) bars speech-related approaches only outside free-standing abortion clinics, rather than outside all health-care facilities, and thus is not content-neutral; and (ii) expressly exempts un-consented, speech-related approaches by clinic employees or agents.
  McKee v. Casselberry, Fla.
  Can Florida court’s decision upholding a public nudity ordinance stand even though the trial found that the ordinance was not supported by evidence of adverse secondary effects under City of Los Angeles v. Alameda Books (2002)? Is Alameda Book’s standard satisfied by trial court’s recitation that ordinance is constitutional because other local municipalities banned nudity?
  Miller v. United States
  (1) Should the Fist Amendment provide any protection for journalists subpoenaed to reveal the identity of confidential sources in federal criminal proceedings? (2) Should a federal common law privilege be recognized under Federal Rules of Evidence 501 to provide any protection for journalists who are subpoenaed in federal criminal proceedings to reveal the identity of their confidential sources? (3) Is it consistent with the Fifth Amendment for a journalist to be adjudicated in contempt and ordered imprisoned for up to 18 months on the basis of evidence submitted ex parte to the district court which the journalist and her counsel were denied the opportunity to see or rebut?
  Montana Right to Life Association v. Eddleman
  Whether, consistent with the First Amendment, caps on contributions by individuals and political action committees were justified to prevent even the appearance of corruption in the state political process.
  Nader v. Connor
  Did the Fifth Circuit’s decision allowing more severe ballot access requirements for independent presidential candidates than for political party candidates and independent statewide candidates conflict with the First Amendment holding of Anderson v. Celebrezze (1983)?
  Nader v. Serody
  Whether, in violation of First Amendment expression and association rights, Pennsylvania courts improperly excluded signatures from more than 15,000 state residents who are not registered to vote.
  Nissan Motor Co. v. Nissan Computer Corp.
  Whether a permanent injunction barring Nissan Computer Corporation from providing visitors to its web sites, “” and “,” with links to sites with disparaging or negative commentary about Nissan Motor Co. is an impermissible content-based restriction on non-commercial speech.
  Nordyke v. King
  Does state law regulating the possession of firearms, and displays at gun shows violate the right to bear arms under the Second Amendment and freedom of expression under the First Amendment?
  Ober v. Brown
  Whether there was sufficient evidence to support a claim of unlawful retaliation against a police officer by his officials concerning the exercise of his First Amendment right of free speech.
  O'Hanian v. California
  Must a jury view alleged harmful material, rather than hear mere testimonial descriptions of portions of it, in order to comply with the First Amendment's "taken as a whole" requirement?
  Osburn v. Georgia
  Can African American Democratic Party members assert a First Amendment right of association in order to protect their party primary from malicious Republican crossover or does that right belong solely to a state political party?
  Porter v. Ascension Parish School Board
  Is off-campus speech that is neither directed at school nor intended to be communicated on school grounds entitled to First Amendment protection?
  Portland Public Schools v. Settlegoode
  Whether public school officials engaged in impermissible retaliation against a teacher for openly advocating on behalf of students with disabilities
  Rahn v. Robb
  Were the First Amendment rights of a KKK organization violated when a highway beautification commission refused to allow the group to participate in an adopt-a-highway program?
  Robart v. Alaska
  Does Alaska law providing criminal penalties for reproduction of state seal for commercial purposes in absence of written permission from state’s lieutenant governor violate the First Amendment?
  Rose v. Planned Parenthood of South Carolina
  Assuming the plaintiffs have standing, did the Fourth Circuit error in holding that the issuance of “Choose Life” license plates violates plaintiffs’ First Amendment rights even though license plates are governed by the government speech doctrine?
  Serrato v. Kaplan
  Did the Sixth Circuit, in claims brought pursuant to 42 U.S.C. § 1983 for alleged retaliation in violation of First and Fourteenth Amendments, correctly uphold district court’s finding that plaintiff’s employee speech, in which she reported death threats made against her by co-worker and expressed concerns for her personal safety, did not touch upon matter of public concern?
  Stumbo v. Anderson
  (1) Did the Sixth Circuit err in (a) striking down 500-foot radius as too large (in conflict with Fifth Circuit) or (b) holding that “electioneering” must be limited to “express advocacy”? (2) Did the Sixth Circuit err in holding unconstitutional provision that voluntary spending cap for gubernatorial candidates is lifted if non-participating candidate exceeds cap? (3) Did the Sixth Circuit err in holding (in conflict with the high courts of Alaska and Florida) that Kentucky cannot prevent gubernatorial candidates from lending unlimited sums to their own campaigns and then, after being elected governor, recouping loans by soliciting contributions from persons seeking non-bid contracts from state? (4) Can Kentucky prevent voter fraud and circumvention of its disclosure requirements by requiring that contributions to candidates be made in traceable form, such as by check, rather than in cash?
  Troy Publishing Co. v. Norton
  (1) If a public official levels wild accusations against other public officials, may an observer safely report this behavior only if he believes that the allegations themselves are accurate, or does such an observer who views such allegations as bizarre or questionable have a First Amendment right nonetheless to let the public know about the behavior he witnessed, and does the public have a protected interest in learning about it? (2) Is the common law rule -- that automatically deems anyone who relays defamatory statements made by others to have adopted them -- consistent with the First Amendment’s protection of free speech, and if not, what republication may constitutionally be punished?
  Veneman v. Cochran
  Does a federal law that requires milk producers to pay for generic advertising violate the First Amendment?
  Virginia Department of State Police v. Washington Post
  Whether in a civil case the plaintiff and the press have a First Amendment and/or common law right of access to certain sealed court records concerning an ongoing police investigation related to a man who was convicted and sentenced but years later pardoned for the crime of murder.
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