in contrast, the question whether there is a First Amendment exception for “commercial speech” is squarely before us. Our pharmacist does not wish to editorialize on any subject, cultural, philosophical, or political. He does not wish to report any particularly newsworthy fact, or to make generalized observations even about commercial matters. The “idea” he wishes to communicate is simply this: “I will sell you the X prescription drug at the Y price.” Our question, then, is whether this communication is wholly outside the protection of the First Amendment….
As to the particular consumer’s interest in the free flow of commercial information, that interest may be as keen, if not keener by far, than his interest in the day’s most urgent political debate. Appellees’ case in this respect is a convincing one. Those whom the suppression of prescription drug price information hits the hardest are the poor, the sick, and particularly the aged. A disproportionate amount of their income tends to be spent on prescription drugs; yet they are the least able to learn, by shopping from pharmacist to pharmacist, where their scarce dollars are best spent. When drug prices vary as strikingly as they do, information as to who is charging what becomes more than a convenience. It could mean the alleviation of physical pain or the enjoyment of basic necessities. Generalizing, society also may have a strong interest in the free flow of commercial information….
There is, of course, an alternative to this highly paternalistic approach. That alternative is to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them. If they are truly open, nothing prevents the “professional” pharmacist from marketing his own assertedly superior product, and contrasting it with that of the low-cost, high-volume prescription drug retailer. But the choice among these alternative approaches is not ours to make or the Virginia General Assembly’s. It is precisely this kind of choice, between the dangers of suppressing information, and the dangers of its misuse if it is freely available, that the First Amendment makes for us.
Do young students have the same rights to free speech as adults? Recent Supreme Court decisions have held that they do not (iStock).
A problem in this area is that it is unclear when an employee is speaking pursuant to their official job duties. Sometimes a public employee may speak both as an employee and as a concerned citizen. Many courts look to the “core functions” of an employee’s job and try to determine whether the speech is required by the job.
What level of First Amendment rights do students possess?
Public school students possess First Amendment rights but they are limited by the school environment. Generally, public school officials can restrict student speech that they reasonably forecast would cause a substantial disruption or material interference with school activities. This is known as the Tinker standard from the U.S. Supreme Court decision in Tinker v. Des Moines Independent Community School District (1969; see LegalSpeak, p. 56).
In later decisions, the U.S. Supreme Court explained in Bethel School District v. Fraser (1986) that school officials can restrict student speech that is vulgar or lewd. The Court later ruled in Hazelwood School District v. Kuhlmeier (1988) that school officials have greater ability to restrict student speech that is school-sponsored, such as expression from most school newspapers, school plays and school mascots. More recently, the Court ruled in Morse v. Frederick (2007) that public school officials can restrict student speech that they reasonably believe advocates illegal drug use.
LegalSpeak: Garcetti v. Ceballos (2006)
Justice Anthony Kennedy (majority): “The controlling factor in Ceballos’ case is that his expressions were made pursuant to his duties as a calendar deputy. See Brief for Respondent 4 (“Ceballos does not dispute that he prepared the memorandum ‘pursuant to his duties as a prosecutor’”). That consideration—the fact that Ceballos spoke as a prosecutor fulfilling a responsibility to advise his supervisor about how best to proceed with a pending case—distinguishes Ceballos’ case from those in which the First Amendment provides protection against discipline. We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”
Justice John Paul Stevens (dissenting): “public employees are still citizens while they are in the office. The notion that there is a categorical difference between speaking as a citizen and speaking in the course of one’s employment is quite wrong…. Moreover, it seems perverse to fashion a new rule that provides employees with an incentive to voice their concerns publicly before talking frankly to their superiors.”
Justice David Souter (dissenting): “I agree with the majority that a government employer has substantial interests in effectuating its chosen policy and objectives, and in demanding competence, honesty, and judgment from employees who speak for it in doing their work. But I would hold that private and public interests in addressing official wrongdoing and threats to health and safety can outweigh the government’s stake in the efficient implementation of policy, and when they do public employees who speak on these matters in the course of their duties should be eligible to claim First Amendment protection.”
Justice Stephen Breyer (dissenting): “Where professional and special constitutional obligations are both present, the need to protect the employee’s speech is augmented, the need for broad government authority to control that speech is likely diminished, and administrable standards are quite likely available. Hence, I would find that the Constitution mandates special protection of employee speech in such circumstances. Thus I would apply the Pickering (see p. 53) balancing test here.”
What happened in Garcetti v. Ceballos?
In this 2006 case, an assistant district attorney in Los Angeles, Richard Ceballos, learned from a defense attorney about possible perjured statements from a law enforcement officer in a search warrant affidavit. Ceballos conducted an independent investigation and agreed with the defense attorney that the officer’s testimony was troubling. Ceballos, as calendar deputy which gave him some supervisory authority, wrote a memorandum to his superiors, recommending that the criminal charges in the case be dismissed. His superiors did not agree with Ceballos, who later testified at a suppression hearing in the criminal case. Ceballos was demoted and transferred to a less desirable office after this controversy. Ceballos sued Gil Garcetti, the district attorney, and others, contending that they retaliated against him for his protected speech.
The U.S. Supreme Court ruled 5 to 4 (see LegalSpeak, p. 54) against Ceballos, finding that his speech in his memorandum was part of his official job duties and not protected citizen speech.
What expression was involved in the Tinker case?
In Tinker v. Des Moines Independent Community School District (1969; see Legal-Speak, p. 56), several students wore black peace armbands to school to protest U.S. involvement in the Vietnam War. School officials had learned of the protest and quickly passed a no-armband rule. School officials believed the armbands were too controversial and could cause problems. The U.S. Supreme Court ruled 7 to 2 in favor of the students and against school officials. The Court reasoned that the school officials did not show that the armbands would be disruptive of school activities in any significant way.
SECOND AMENDMENT
What makes the Second Amendment controversial?
