The First Amendment and the Right to Hear

Yale Law Journal

Volumn 108, Issue 3, 1998, Pages 669-676

  Wagner, Dana R ^a  

^a NONE

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EID: 0346727434     PISSN: 00440094     EISSN: None     Source Type: Journal    
DOI: 10.2307/797500     Document Type: Article

References (43)

1. See VA. CODE ANN. §§ 2.1-804 to -806 (Michie Supp. 1998).
2. See id. § 2.1-805.
3. 995 F. Supp. 634 (E.D. Va. 1998).
4. Id. at 636 (quoting the defendant's trial memorandum). This argument was not without precedential support. As Justice Holmes once stated, "There are few employments for hire in which the servant does not agree to suspend his constitutional rights of free speech . . . by the implied terms of his contract," McAuliffe v. Mayor of New Bedford, 29 N.E. 517, 517-18 (Mass. 1892), and recent Fourth Circuit decisions had adhered to this principle in allowing restrictions on state employees' speech, see Boring v. Buncombe County Bd. of Educ., 136 F.3d 364 (4th Cir. 1998); DiMeglio v. Haines, 45 F.3d 790 (4th Cir. 1995). But see, e.g., Perry v. Sindermann, 408 U.S. 593, 597 (1972) (arguing that the government may not deny a person benefits "on a basis that infringes his constitutionally protected interests - especially, his interest in freedom of speech").
5. FCC v. Pacifica Found., 438 U.S. 726, 746 (1978) (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942)).
6. Urofsky, 995 F. Supp. at 636.
7. VA. CODE ANN. § 2.1-805 (Michie Supp. 1998). Only employees of the Department of State Police were exempted from this prohibition. See id. § 2.1-804. Thus, state agencies prohibited from using or maintaining databases containing sexually explicit information included Virginia's Departments of Corrections, Social Services, Juvenile Justice, and Mental Health, as well as the Office of the Attorney General and the Library of Virginia. See Urofsky, 995 F. Supp. at 638, 642.
8. VA. CODE ANN. § 2.1-805.
9. Id. § 2.1-804.
10. The statute apparently covered communications on standard office telephones that were part of a computerized network. See Urofsky, 995 F. Supp. at 635 n.1.
11. See id. at 635.
12. See id. at 639.
13. 391 U.S. 563 (1968).
14. Urofsky, 995 F. Supp. at 636 (quoting Pickering, 391 U.S. at 568).
15. Id. at 637.
16. Id. at 639. As a method of furthering workplace efficiency, the court found the statute overinclusive because it interfered with "countless work-related endeavors . . . dealing with sexuality" and underinclusive because it targeted only sexual distractions. Id. at 640. As a method of preventing sexually hostile work environments, the court found the statute overinclusive because it restricted speech on matters such as sadomasochistic abuse and human rights violations and underinclusive because, inter alia, it targeted only electronic communications. See id. 17. See id. at 643. For example, state policy already prohibited Virginia employees from making "[i]nappropriate or unauthorized" use of state computers, and numerous content-neutral federal laws penalize activities that may create or contribute to a hostile work environment. See id. 18. Id. at 639 (quotations and citations omitted).
17. Id. (quotations and citations omitted).
18. See, e.g., United States v. National Treasury Employees Union, 513 U.S. 454 (1995); United States Civil Serv. Comm'n v. National Ass'n of Letter Carriers, 413 U.S. 548 (1973).
19. See, e.g., Rankin v. McPherson, 483 U.S. 378 (1987); Pickering v. Board of Educ., 391 U.S. 563 (1968).
20. See, e.g., Rutan v. Republican Party, 497 U.S. 62 (1990); Branti v. Finkel, 445 U.S. 507 (1980); Elrod v. Burns, 427 U.S. 347 (1976).
21. See, e.g., United States v. Robel, 389 U.S. 258 (1967); Elfbrandt v. Russell, 384 U.S. 11 (1966); Garner v. Board of Pub. Works, 341 U.S. 716 (1951).
22. See Pickering, 391 U.S. at 563.
23. See id. at 568. In Rankin, the Court used this same balancing test to analyze the claim of a county employee who had been fired for an on-the-job comment. In so doing, the Court clarified that this approach was proper regardless of whether the speech at issue occurred within or outside of the workplace. See 483 U.S. at 383.
24. 513 U.S. 454 (1995).
25. See id. at 468.
26. Urofsky, 995 F. Supp. at 637 (quoting NTEU, 513 U.S. at 468).
27. Indeed, proper analysis of the Virginia statute as a restriction of expressive activities would require application of the O'Brien standard, which the Supreme Court has developed for evaluating nonspeech restrictions that incidentally affect free speech. See United States v. O'Brien, 391 U.S. 367 (1968). The Urofsky court may have avoided this form of analysis because it realized, correctly, that the First Amendment issues at stake could not be captured fully within it.
28. See, e.g., Greer v. Spock, 424 U.S. 828, 832 (1976) (upholding the military's refusal to permit a presidential candidate to enter an army base to hold a meeting "to discuss election issues with service personnel and their dependents"); General Media Communications v. Cohen, 131 F.3d 273 (2d Cir. 1997), cert. denied, 118 S. Ct. 2367 (1998) (upholding a statute that prohibited the sale or rental of sexually explicit material on military property).
29. There are several paths to the conclusion that "freedom of speech necessarily protects the right to receive." Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 757 (1976) (quotations omitted). For instance, the receiver's right can be predicated upon the free speech right of the speaker; the right to deliver a message lacks substance if the government may prevent it from being heard. Cf. Martin v. City of Struthers, 319 U.S. 141, 143 (1943) ("This freedom embraces the right to distribute literature, and necessarily protects the right to receive it."). Alternatively, the receiver's right can be predicated upon his or her own right of free speech; one cannot participate in "the uninhibited, robust, and wide-open debate and discussion that are contemplated by the First Amendment" if one cannot access information to debate and discuss. Lamont v. Postmaster Gen., 381 U.S. 301, 307 (1965) (citation omitted).
30. Virginia State Bd. of Pharmacy, 425 U.S. at 756.
31. See, e.g., Kleindeinst v. Mandel, 408 U.S. 753, 762 (1972) ("'It is now well established that the Constitution protects the right to receive information and ideas.'") (quoting Stanley v. Georgia, 394 U.S. 557, 564 (1969)).
32. Turner Broad. Sys. v. FCC, 117 S. Ct. 1174, 1204 (1997) [Turner II] (Breyer, J., concurring) (quoting Turner Broad. Sys. v. FCC, 512 U.S. 622, 663 (1994) [Turner I]); accord Arkansas Educ. Television Comm'n v. Forbes, 118 S. Ct. 1633, 1640 (1998); Denver Area Educ. Telecomms. Consortium v. FCC, 518 U.S. 727, 753-60 (1996); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).
33. This is not to say that restrictions on public employees' right to hear should be scrutinized in the same manner as analogous restrictions imposed on ordinary citizens. Quite the contrary: The claim that the government as employer may impose more restrictions than the government as sovereign, see, e.g., Pickering v. Board of Educ., 391 U.S. 563, 568 (1968), retains its validity in the right-to-hear context. Thus, while strict scrutiny would be appropriate if the government imposed content-based restrictions on the citizenry's ability to access information, see Turner II, 117 S. Ct. at 1208 (O'Connor, J., dissenting), a more flexible approach is required in government employment cases, see infra note 36 and accompanying text.
34. There was some argument in Urofsky as to whether the balancing test was indeed appropriate, given the content-discriminatory nature of the Virginia statute. In most circumstances, content-based restrictions must withstand strict scrutiny in order to survive. See, e.g., Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116-18 (1991). However, the Urofsky court decided to apply a less stringent standard of review because it believed that under Board of County Comm'rs v. Umbehr, 518 U.S. 668 (1996), "the government may take actions as an employer that are forbidden to it as a sovereign." Urofsky, 995 F. Supp. at 638 (citing Umbehr, 518 U.S. at 678). But as the court itself realized, "the application of Umbehr to the [Virginia statute] is limited" because Umbehr involved an adverse action against an individual speaker, not "a content-based prior restraint affecting thousands of government employees." Id. It should also be noted that, whereas Umbehr involved the government in its role as a contractor, Urofsky involved the government in its role as an educator, and content-based speech restrictions are particularly pernicious in the education context. See Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 514 (1969); Shelton v. Tucker, 364 U.S. 479, 487 (1960). Thus, there is at least a plausible argument that the correct standard for analyzing the Virginia statute is strict scrutiny.
35. Urofsky, 995 F. Supp. at 638 (citing Reno v. ACLU, 117 S. Ct. 2329, 2335 (1997)).
36. See Urofsky, 995 F. Supp. at 639-42.
37. See supra notes 9-10 and accompanying text.
38. Urofsky, 995 F. Supp. at 639.
39. See, e.g., Andre R. Barry, Balancing Away the Freedom of Speech: Turner Broadcasting System v. FCC, 21 HARV. J.L. & PUB. POL'Y 272 (1997) (objecting to this doctrinal trend); Cass R. Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1798-99 (1995); Owen M. Fiss, The Censorship of Television (Nov. 3, 1998) (unpublished manuscript, on file with author). Whereas the right to receive was originally explored as it applied to such traditional forms of speech as literature distribution, see Martin v. City of Struthers, 319 U.S. 141, 143 (1943); Lovell v. City of Griffin, 303 U.S. 444, 452 (1938), and interpersonal communication, see Thomas v. Collins, 323 U.S. 516 (1945), these forms of speech have in many respects been superseded by television, radio, and computer technology as methods of information exchange, cf. Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1408-13 (1986) (making a similar observation); Sunstein, supra, at 1792-94 (same). Arguably, the greater the role a technology plays in the public discourse, the more its regulation implicates First Amendment concerns.
40. See, e.g., Andre R. Barry, Balancing Away the Freedom of Speech: Turner Broadcasting System v. FCC, 21 HARV. J.L. & PUB. POL'Y 272 (1997) (objecting to this doctrinal trend); Cass R. Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1798-99 (1995); Owen M. Fiss, The Censorship of Television (Nov. 3, 1998) (unpublished manuscript, on file with author). Whereas the right to receive was originally explored as it applied to such traditional forms of speech as literature distribution, see Martin v. City of Struthers, 319 U.S. 141, 143 (1943); Lovell v. City of Griffin, 303 U.S. 444, 452 (1938), and interpersonal communication, see Thomas v. Collins, 323 U.S. 516 (1945), these forms of speech have in many respects been superseded by television, radio, and computer technology as methods of information exchange, cf. Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1408-13 (1986) (making a similar observation); Sunstein, supra, at 1792-94 (same). Arguably, the greater the role a technology plays in the public discourse, the more its regulation implicates First Amendment concerns.
41. See, e.g., Andre R. Barry, Balancing Away the Freedom of Speech: Turner Broadcasting System v. FCC, 21 HARV. J.L. & PUB. POL'Y 272 (1997) (objecting to this doctrinal trend); Cass R. Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1798-99 (1995); Owen M. Fiss, The Censorship of Television (Nov. 3, 1998) (unpublished manuscript, on file with author). Whereas the right to receive was originally explored as it applied to such traditional forms of speech as literature distribution, see Martin v. City of Struthers, 319 U.S. 141, 143 (1943); Lovell v. City of Griffin, 303 U.S. 444, 452 (1938), and interpersonal communication, see Thomas v. Collins, 323 U.S. 516 (1945), these forms of speech have in many respects been superseded by television, radio, and computer technology as methods of information exchange, cf. Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1408-13 (1986) (making a similar observation); Sunstein, supra, at 1792-94 (same). Arguably, the greater the role a technology plays in the public discourse, the more its regulation implicates First Amendment concerns.
42. See, e.g., Andre R. Barry, Balancing Away the Freedom of Speech: Turner Broadcasting System v. FCC, 21 HARV. J.L. & PUB. POL'Y 272 (1997) (objecting to this doctrinal trend); Cass R. Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1798-99 (1995); Owen M. Fiss, The Censorship of Television (Nov. 3, 1998) (unpublished manuscript, on file with author). Whereas the right to receive was originally explored as it applied to such traditional forms of speech as literature distribution, see Martin v. City of Struthers, 319 U.S. 141, 143 (1943); Lovell v. City of Griffin, 303 U.S. 444, 452 (1938), and interpersonal communication, see Thomas v. Collins, 323 U.S. 516 (1945), these forms of speech have in many respects been superseded by television, radio, and computer technology as methods of information exchange, cf. Owen M. Fiss, Free Speech and Social Structure, 71 IOWA L. REV. 1405, 1408-13 (1986) (making a similar observation); Sunstein, supra, at 1792-94 (same). Arguably, the greater the role a technology plays in the public discourse, the more its regulation implicates First Amendment concerns.
43. The Virginia statute is just one example of this recent trend. Other examples include the Child Online Protection Act, Publ. L. No. 105-775 (Oct. 22, 1998), the Telecommunications Act of 1996, 110 Stat. 56 (to be codified in scattered sections of 47 U.S.C.), the Cable Television Consumer Protection and Competition Act of 1992, 106 Stat. 1460 (codified in scattered sections of 47 U.S.C.), and the Television Program Improvement Act of 1990, 47 U.S.C. § 303c (1994).