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First Amendment Library:
Seth P. Waxman


127 S.Ct. 2652 (2007) FEDERAL ELECTION COMMISSION, Appellant, v. WISCONSIN RIGHT TO LIFE, INC. Senator John McCain, et al., Appellants, v. Wisconsin Right to Life, Inc.         Nos. 06-969, 06-970. Supreme Court of United States.    Argued April 25, 2007. Decided June 25, 2007.*2658 Paul D. Clement, Solicitor General, Washington, DC, for… Read more



540 U.S. 93 (2003) McCONNELL, UNITED STATES SENATOR, ET AL. v. FEDERAL ELECTION COMMISSION ET AL.     No. 02-1674. Supreme Court of United States.    Argued September 8, 2003. Decided December 10, 2003[*] APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA*94 *95 *96 *97 *98 *99 *100 *101 *102 *103… Read more


In 1990, Congress amended the statute governing the National Endowment for the Arts to require that the NEA chairperson consider "general standards of respect and decency for the diverse beliefs and values of the American public" when awarding art grants. Four artists—Karen Finley, John Fleck, Holly Hughes and Tim Miller, known collectively as the "NEA 4"—sued in federal court, claiming the so-called "decency clause" violated the First Amendment and forced artists to engage in self-censorship in order to obtain NEA funding. The trial judge ruled in favor of the "NEA 4," ruling that the decency clause was both unconstitutionally vague and overbroad. On appeal, the U.S. Court of Appeals for the 9th Circuit affirmed for "essentially the same reasons as the district court." The 9th Circuit determined the decency clause was void for vagueness and for violating the First Amendment’s general prohibition against content- and viewpoint-based discrimination. A bedrock principle of the First Amendment is that government may not prohibit speech just because it finds the speech offensive or disagreeable. Texas v. Johnson, 491 U.S. 397 (1989). Sexual expression which is indecent but not obscene is also protected by the First Amendment. Sable Communications of Cal., Inc. v. Sable, 492 U.S. 115 (1989). The First Amendment protects against viewpoint discrimination above other forms of content discrimination. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995). When the government promotes a particular program and defines the limit of a program, it can fund speech that promotes its goals, even to the detriment of other goals. Rust v. Sullivan, 500 U.S. 173 (1991). "There is a basic difference between direct state interference with a protected activity and state encouragement of an alternative activity consonant with legislative policy." Maher v. Roe, 432 U.S. 464 (1977).