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First Amendment Library:
Walter E. Dellinger III


In 1993, the St. Peter Catholic Church in Boerne, Texas, applied to city officials for permission to expand the size of the church. The city's Landmark Commission denied the church's request on the grounds that the church's facade was within the city's historic district. After the city council rejected the church's appeal, the church sued in federal court, claiming that the local ordinance establishing the city's historic district was unconstitutional and violated the Religious Freedom Restoration Act, 42 U.S.C. __ 2000bb et seq. ("RFRA"). Congress passed the RFRA in 1993 in response to the United States Supreme Court's decision in Employment Division, Dep't of Human Resources v. Smith, 494 U.S. 872 (1990). In Smith, the Court held that laws not directed at religion are constitutional even if they adversely affect persons who are attempting to practice their religions. The RFRA establishes a higher standard than the decision in Smith and provides that a law may not substantially burden a person's exercise of religion unless the government demonstrates that the law furthers a compelling governmental interest and that the law is the least restrictive way of furthering that interest. The trial court rejected the church's argument and ruled that the RFRA was unconstitutional because it infringed on the authority of courts to establish standards for evaluating constitutional issues. On appeal, the Fifth Circuit Court of Appeals reversed, holding that the RFRA was constitutional because the law did not usurp the judiciary's power to interpret the Constitution. Rather, according to the appellate court, the RFRA simply created rights and protections in addition to the constitutional rights already recognized by the courts. Congress can legislate only in those areas permitted by the Constitution. In passing the RFRA, Congress relied on its power under Section 5 of the Fourteenth Amendment to adopt laws designed to enforce individual rights. Although the Court had on many occasions examined Congress' power under Section 5, it had not clearly articulated the limits on that authority.


In 1996 and 1997, various media outlets report on allegedly unsafe working conditions at Nike facilities in Southeast Asia. Nike responds to these allegations and negative publicity with a series of press releases, letters to university presidents and athletic directors and editorial advertisements. These documents deny that Nike mistreats workers, subjects them to unsafe working conditions and fails to pay proper overtime pay. In 1998, consumer activist Marc Kasky files a lawsuit against Nike and five of its corporate officers in San Francisco Superior Court, alleging negligent misrepresentation, intentional or reckless misrepresentation, unlawful business practices, and false advertising. The lawsuit claims that Nike violated state consumer laws prohibiting false advertising and unfair competition. Nike files a demurrer (motion to dismiss) on First Amendment grounds. In 1999, a trial court dismisses the suit on First Amendment grounds. A state appeals court affirms this ruling next year in Kasky v. Nike, Inc., 79 Cal. App. 4th 165, 93 Cal. Rptr. 2d 854 (Cal.App. 2000). The California appeals court disagrees with plaintiffs theory that Nikes expression is commercial speech deserving reduced First Amendment protection. The court writes that a public relations campaign focusing on corporate image, such as that at issue here, calls for a different analysis than that applying to product advertisement. Instead, the court determines that Nikes speech is noncommercial speech and public dialogue on a matter of public concern. On May 2, the California Supreme Court reverses in Kasky v. Nike, Inc. , 27 Cal. 4th 939, 45 P.3d 243 (Cal. 2002) by a vote of 4-3. The majority determines that because the messages in question were directed by a commercial speaker to a commercial audience, and because they made representations of fact about the speakers own business operations for the purpose of promoting sales of its products, we conclude that these messages are commercial speech for purposes of applying state laws barring false and misleading commercial messages. Nike appeals to the U.S. Supreme Court, which agrees to hear the case. The Court schedules oral arguments for April 23, 2003.


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).