Petitioner filed suit against respondents, a county school board and school officials, seeking damages for the sexual harassment of her daughter LaShonda by G. F., a fifth-grade classmate at a public elementary school. Among other things, petitioner alleged that respondents' deliberate indifference to G. F.'s persistent sexual advances toward LaShonda created an intimidating, hostile, offensive, and abusive school environment that violated Title IX of the Education Amendments of 1972, which, in relevant part, prohibits a student from being "excluded from participation in, be[ing] denied the benefits of, or be[ing] subjected to discrimination under any education program or activity receiving Federal financial assistance," 20 U. S. C. § 1681(a). In granting respondents' motion to dismiss, the Federal District Court found that "student-on-student," or peer, harassment provides no ground for a Title IX private cause of action for damages. The en banc Eleventh Circuit affirmed.

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In 1986, the Colorado Republican Federal Campaign Committee paid for several radio ads attacking the voting record of Tim Wirth, the potential Democratic senatorial candidate. The ads ran before the Republican nominee for senator had been selected. The Federal Election Commission (FEC) filed an action alleging that the party had violated the Party Expenditure Provision (PEP) of the Federal Election Campaign Act of 1971 by exceeding spending limits for political parties. The Colorado Republican Party sued in federal court, claiming that the provision violated the First Amendment. The case eventually reached the United States Supreme Court, which ruled in Colorado Republican Federal Campaign Committee v. Federal Election Commission, 518 U.S. 604 (1996)("Colorado I") that the provision could not be applied to independent expenditures by political parties. In 1996, the U.S. Supreme Court handed down a plurality decision that the PEP was unconstitutional as applied to the particular expenditure at issue. The Court characterized the radio ads as "independent expenditures" (not subject to the PEP) as opposed to "coordinated expenditures" (subject to the PEP). The majority determined the Wirth ads were "independent expenditures" because the chairman of the Colorado Republican Party had approved the ad and had not consulted with the respective Republican candidates. The Colorado I court then remanded the case to the district court for further proceedings with regard to the broader issue of whether the PEP of the Federal Election Campaign Act of 1971 violates a political party's First Amendment rights by limiting the amount of money a party may spend in "coordination" with its congressional candidates. Four justices in Colorado I (Thomas, Scalia, Kennedy and Rehnquist) ruled that they would have struck down the PEP with regards to both independent and coordinated expenditures. In 1999, the U.S. District Court granted summary judgment to the Colorado Republican Party, ruling that the limits on political parties' coordinated expenditures violated the First Amendment. In May of 2000, the U.S. Court of Appeals for the 10th Circuit affirmed. The U.S. Supreme Court granted certiorari on Oct. 10, 2000.

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The Greater New Orleans Broadcasting Association, a non-profit trade association of various radio and television broadcasters in the New Orleans area, challenged the federal law banning broadcast advertisements of casino gaming. The law, 18 U.S.C. _ 1304 prohibits the broadcasting of "any advertisement of any lottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part upon lot or chance." The lower federal courts upheld the law, ruling that it did not violate the First Amendment under the U.S. Supreme Court's commercial speech doctrine. In order for a regulation of commercial speech to survive constitutional review, the regulation must directly and materially advance the government's substantial interests in the regulation. The government must demonstrate that the harms the speech- restriction advances are real and that the restriction will alleviate them in to a "material degree." The government cannot satisfy its constitutional burden by citing speculative harms.

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