496 U.S. 91 (1990) PEEL v. ATTORNEY REGISTRATION AND DISCIPLINARY COMMISSION OF ILLINOIS No. 88-1775. Supreme Court of United States. Argued January 17, 1990 Decided June 4, 1990 CERTIORARI TO THE SUPREME COURT OF ILLINOIS *93 Bruce J. Ennis, Jr., argued the cause and filed briefs for petitioner. Stephen J. Marzen argued the cause for the Federal Trade Commission as amicus curiae urging reversal. With him on the brief were Solicitor General Starr, Assistant Attorney General Rill, Deputy Solicitor General Merrill, Kevin J. Arquit, Jay C. Shaffer, and Ernest J. Isenstadt. William F. Moran III argued the cause for respondent. […]

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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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In 1996, California law was amended to prohibit the release of the addresses of persons arrested if the information would be used for commercial purposes. The same law allowed the release of such information if used for a "scholarly, journalistic, political or governmental purpose" or for "investigative purposes" by a licensed investigator. Both lower courts ruled the law unconstitutional on First Amendment grounds. Laws that burden commercial speech must advance a substantial governmental interest in a direct and material way and be narrowly drawn. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557 (1980). "Neither the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the government's control." Houchins v. KQED, Inc., 438 U.S. 1 (1978).

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We granted certiorari to decide whether the Petition Clause of the First Amendment provides absolute immunity to a defendant charged with expressing libelous and damaging falsehoods in letters to the President of the United States.

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Congress in 1992 passed the Cable Television Consumer Protection and Competition Act, which required, among other things, that cable television systems carry local broadcast stations. Several cable operators filed suit, claiming that the legislation violated the freedoms of speech and of the press guaranteed by the First Amendment. In 1993, the district court held that the "must-carry" provisions of the Act were constitutional. On direct appeal, the Supreme Court, in Turner Broadcasting System v. Federal Communications Comm., 114 S. Ct. 2445 (1994), held that the "must-carry" provisions constituted a content-neutral regulation and could be constitutional. The Court then ordered the district court to determine whether the government could demonstrate that the provisions reasonably advanced an important governmental interest. On remand, a divided district court held that Congress had before it "substantial evidence" from which to conclude that the must-carry provisions were necessary to protect the local broadcast industry. When examining content-neutral regulations, courts apply an "intermediate" level of scrutiny. Under this analysis, legislation that affects speech but that does not favor the message of one speaker over another can be constitutional if the legislation (1) furthers an important governmental interest and (2) does not burden more speech than necessary to advance that interest. United States v. O'Brien, 391 U.S. 367 (1968).

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