Chapter 6: Analyzing the Constitutionality of Restrictions on Communication

The previous chapters in this unit focused on the extent to which the Constitution protects the right to speak and publish. However, analyzing whether a specific restriction is constitutional also requires addressing the factors outlined below. This chapter thus provides a rubric for determining whether government restrictions on communication can be successfully challenged in court.

1. Is the communication constitutionally protected?

There are several issues to consider here. First, because the Constitution does not regulate private action, a restriction on communication can only be challenged as unconstitutional if it involves state action. Social media organizations censor posts, but this does not violate the Constitution since they are private entities and not part of government. You may not like restrictions on speech that your university imposes, but they do not violate the Constitution unless the university is public. Speech in a private forum is not constitutionally protected.

Second, the speech is not protected if it falls within one of four exceptions:

1. Speech that constitutes a crime. The First Amendment does not shield threats of harm, nor solicitations to crime. One cannot defend a call to “assassinate the tyrant who is president” on the grounds that it is political speech. In Watts v. United States, 394 U.S. 705 (1969), the Supreme Court held that the First Amendment does not bar Congress from passing a statute making it a crime to threaten to take the president’s life even though it clearly discriminates on the basis of the content of the speech.
2. “Fighting words”: The Supreme Court held that speech that is likely to provoke physical violence or imminent lawless action may also be punished. See Chaplinsky v. New Hampshire (1942), discussed in chapter 3 of this unit. This rarely applies to publications since there is no immediate threat of harm or the destruction of public order.
3. Obscenity. The Supreme Court has never found obscene speech constitutionally protected, but it has had substantial difficulty determining what is obscene. It defined obscene material in Miller v. California, 413 U.S. 15, 24 (1973): “(a) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Prosecutions for obscenity have been very rare in the last two decades, largely because the internet has made it easily accessible to all. That is also why this unit does not cover cases involving obscenity.
4. Disclosure of “state secrets.” the Supreme Court held in Near v. Minnesota (1931), discussed in chapter 1 of this unit. that “No one would question but that a government might prevent . . . the publication of the sailing dates of transports or the number and location of troops.” However, the fact that information is classified does not mean that it is outside of constitutional protection. See the Pentagon Papers Case (1972), discussed in chapter 1 of this unit.

2. Is the restriction vague?

The Supreme Court requires that all restrictions on speech be specific enough that an ordinary person can determine whether their contemplated speech will violate the law.  Otherwise, constitutionally protected speech may be chilled. The Supreme Court addressed the issue of vagueness in a case involving sanctions imposed on television networks by the Federal Communication Commission.

Justice Anthony Kennedy:

Title 18 U. S. C. §1464 provides that “[w]hoever utters any obscene, indecent, or profane language by means of radio communication shall be fined . . . or imprisoned not more than two years, or both.” The Federal Communications Commission (Commission) has been instructed by Congress to enforce §1464 between the hours of 6 a.m. and 10 p.m., see Public Telecommunications Act of 1992, §15(a), 106 Stat. 954, note following 47 U. S. C. §303, p. 113 (Broadcasting of Indecent Programming). And the Commission has applied its regulations to radio and television broadcasters alike. . . .

This Court first reviewed the Commission’s indecency policy in FCC v. Pacifica Foundation, 438 U.S. 726 (1978). In Pacifica, the Commission determined that George Carlin’s “Filthy Words” monologue was indecent. It contained “‘language that describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory activities and organs, at times of the day when there is a reasonable risk that children may be in the audience.’” Id., at 732 (quoting 56 F. C. C. 2d 94, 98 (1975)). This Court upheld the Commission’s ruling. The broadcaster’s statutory challenge was rejected. The Court held the Commission was not engaged in impermissible censorship within the meaning of 47 U. S. C. §326 (1976 ed.),  and that §1464’s definition of indecency was not confined to speech with an appeal to the prurient interest. Finding no First Amendment violation, the decision explained the constitutional standard under which regulations of broadcasters are assessed. It observed that “broadcast media have established a uniquely pervasive presence in the lives of all Americans,” and that “broadcasting is uniquely accessible to children, even those too young to read.” In light of these considerations, “broadcasting . . . has received the most limited First Amendment protection.” Under this standard the Commission’s order passed constitutional scrutiny.

. . . From 1978 to 1987, the Commission did not go beyond the narrow circumstances of Pacifica and brought no indecency enforcement actions. . . . In 1987, the Commission determined it was applying the Pacifica standard in too narrow a way. It stated that in later cases its definition of indecent language would “appropriately includ[e] a broader range of material than the seven specific words at issue in [the Carlin monologue].” In re Pacifica Foundation Inc., 2 FCC Rcd. 2698, 2699. Thus, the Commission indicated it would use the “generic definition of indecency” articulated in its 1975 Pacifica order, and assess the full context of allegedly indecent broadcasts rather than limiting its regulation to a “comprehensive index . . . of indecent words or pictorial depictions.” . . .

Even under this context based approach, the Commission continued to note the important difference between isolated and repeated broadcasts of indecent material. In the context of expletives, the Commission determined “deliberate and repetitive use in a patently offensive manner is a requisite to a finding of indecency.” Pacifica Order, 2 FCC Rcd., at 2699. For speech “involving the description or depiction of sexual or excretory functions . . . [t]he mere fact that specific words or phrases are not repeated does not mandate a finding that material that is otherwise patently offensive . . . is not indecent.”

In 2001, the Commission issued a policy statement intended “to provide guidance to the broadcast industry regarding [its] caselaw interpreting 18 U. S. C. §1464 and [its] enforcement policies with respect to broadcast indecency.” In re Industry Guidance on Commission’s Case Law Interpreting 18 U. S. C. §1464 and Enforcement Policies Regarding Broadcast Indecency, 16 FCC Rcd. 7999. In that document the Commission restated that for material to be indecent it must depict sexual or excretory organs or activities and be patently offensive as measured by contemporary community standards for the broadcast medium.  Describing the framework of what it considered patently offensive, the Commission explained that three factors had proved significant: “(1) [T]he explicitness or graphic nature of the description or depiction of sexual or excretory organs or activities; (2) whether the material dwells on or repeats at length descriptions of sexual or excretory organs or activities; (3) whether the material appears to pander or is used to titillate, or whether the material appears to have been presented for its shock value.”

As regards the second of these factors, the Commission explained that “[r]epetition of and persistent focus on sexual or excretory material have been cited consistently as factors that exacerbate the potential offensiveness of broadcasts. In contrast, where sexual or excretory references have been made once or have been passing or fleeting in nature, this characteristic has tended to weigh against a finding of indecency.”

It was against this regulatory background that the three incidents of alleged indecency at issue here took place. First, in the 2002 Billboard Music Awards, broadcast by respondent Fox Television Stations, Inc., the singer Cher exclaimed during an unscripted acceptance speech: “I’ve also had my critics for the last 40 years saying that I was on my way out every year. Right. So f*** ‘em.” Second, Fox broadcast the Billboard Music Awards again in 2003. There, a person named Nicole Richie made the following unscripted remark while presenting an award: “Have you ever tried to get cow s*** out of a Prada purse? It’s not so f ***ing simple.” The third incident involved an episode of NYPD Blue, a regular television show broadcast by respondent ABC Television Network. The episode broadcast on February 25, 2003, showed the nude buttocks of an adult female character for approximately seven seconds and for a moment the side of her breast. During the scene, in which the character was preparing to take a shower, a child portraying her boyfriend’s son entered the bathroom. A moment of awkwardness followed. The Commission received indecency complaints about all three broadcasts.

After these incidents, but before the Commission issued Notices of Apparent Liability to Fox and ABC, the Commission issued a decision sanctioning NBC for a comment made by the singer Bono during the 2003 Golden Globe Awards. Upon winning the award for Best Original Song, Bono exclaimed: “‘This is really, really, f ***ing brilliant. Really, really great.’” Reversing a decision by its enforcement bureau, the Commission found the use of the F-word actionably indecent. The Commission held that the word was “one of the most vulgar, graphic and explicit descriptions of sexual activity in the English language,” and thus found “any use of that word or a variation, in any context, inherently has a sexual connotation.” Turning to the isolated nature of the expletive, the Commission reversed prior rulings that had found fleeting expletives not indecent. The Commission held “the mere fact that specific words or phrases are not sustained or repeated does not mandate a finding that material that is otherwise patently offensive to the broadcast medium is not indecent.”

Even though the incidents at issue in these cases took place before the Golden Globes Order, the Commission applied its new policy regarding fleeting expletives and fleeting nudity. It found the broadcasts by respondents Fox and ABC to be in violation of this standard. . . .

[T]he Court of Appeals held the Commission’s indecency policy unconstitutionally vague and invalidated it in its entirety. The Court of Appeals found the policy, as expressed in the 2001 Guidance and subsequent Commission decisions, failed to give broadcasters sufficient notice of what would be considered indecent. Surveying a number of Commission adjudications, the court found the Commission was inconsistent as to which words it deemed patently offensive. It also determined that the Commission’s presumptive prohibition on the F-word and the S-word was plagued by vagueness because the Commission had on occasion found the fleeting use of those words not indecent provided they occurred during a bona fide news interview or were “demonstrably essential to the nature of an artistic or educational work.” The Commission’s application of these exceptions, according to the Court of Appeals, left broadcasters guessing whether an expletive would be deemed artistically integral to a program or whether a particular broadcast would be considered a bona fide news interview. The Court of Appeals found the vagueness inherent in the policy had forced broadcasters to “choose between not airing . . . controversial programs [or] risking massive fines or possibly even loss of their licenses.” And the court found that there was “ample evidence in the record” that this harsh choice had led to a chill of protected speech.

The procedural history regarding ABC is more brief. On February 19, 2008, the Commission issued a forfeiture order finding the display of the woman’s nude buttocks in NYPD Blue was actionably indecent. See In re Complaints Against Various Television Licensees Concerning Their February 24, 2003 Broadcast of the Program “NYPD Blue”, 23 FCC Rcd. 3147 (2008). The Commission determined that, regardless of medical definitions, displays of buttocks fell within the category of displays of sexual or excretory organs because the depiction was “widely associated with sexual arousal and closely associated by most people with excretory activities.” The scene was deemed patently offensive as measured by contemporary community standards, id.; and the Commission determined that “[t]he female actor’s nudity is presented in a manner that clearly panders to and titillates the audience.” Unlike in the Fox case, the Commission imposed a forfeiture of $27,500 on each of the 45 ABC-affiliated stations that aired the indecent episode. In a summary order the United States Court of Appeals for the Second Circuit vacated the forfeiture order, determining that it was bound by its Fox decision striking down the entirety of the Commission’s indecency policy. . . .

A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. See Connally v. General Constr. Co., 269 U.S. 385, 391 (1926) (“[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law”). This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. See United States v. Williams, 553 U.S. 285, 304 (2008). It requires the invalidation of laws that are impermissibly vague. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained “fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” As this Court has explained, a regulation is not vague because it may at times be difficult to prove an incriminating fact but rather because it is unclear as to what fact must be proved.

Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns: first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. See Grayned v. City of Rockford, 408 U.S. 104, 108-109 (1972). When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech.

These concerns are implicated here because, at the outset, the broadcasters claim they did not have, and do not have, sufficient notice of what is proscribed. And leaving aside any concerns about facial invalidity, they contend that the lengthy procedural history set forth above shows that the broadcasters did not have fair notice of what was forbidden. Under the 2001 Guidelines in force when the broadcasts occurred, a key consideration was “‘whether the material dwell[ed] on or repeat[ed] at length’” the offending description or depiction. In the 2004 Golden Globes Order, issued after the broadcasts, the Commission changed course and held that fleeting expletives could be a statutory violation. In the challenged orders now under review the Commission applied the new principle promulgated in the Golden Globes Order and determined fleeting expletives and a brief moment of indecency were actionably indecent. This regulatory history, however, makes it apparent that the Commission policy in place at the time of the broadcasts gave no notice to Fox or ABC that a fleeting expletive or a brief shot of nudity could be actionably indecent; yet Fox and ABC were found to be in violation. The Commission’s lack of notice to Fox and ABC that its interpretation had changed so the fleeting moments of indecency contained in their broadcasts were a violation of §1464 as interpreted and enforced by the agency “fail[ed] to provide a person of ordinary intelligence fair notice of what is prohibited.” This would be true with respect to a regulatory change this abrupt on any subject, but it is surely the case when applied to the regulations in question, regulations that touch upon “sensitive areas of basic First Amendment freedoms,” Baggett v. Bullitt, 377 U.S. 360, 372 (1964). . . .

The Commission failed to give Fox or ABC fair notice prior to the broadcasts in question that fleeting expletives and momentary nudity could be found actionably indecent. Therefore, the Commission’s standards as applied to these broadcasts were vague, and the Commission’s orders must be set aside.

3. Is the restriction overinclusive or underinclusive?

Laws restricting speech cannot be overinclusive, forbidding protected speech in an attempt to regulate unprotected speech, or underinclusive, prohibiting some speech but not other speech that has the same effect. The Supreme Court addressed both of these issues in a case involving the application of sanctions to a candidate in a judicial election who violated a state regulation barring direct mail solicitation of campaign contributions.

Chief Justice John Roberts:

Our Founders vested authority to appoint federal judges in the President, with the advice and consent of the Senate, and entrusted those judges to hold their offices during good behavior. The Constitution permits States to make a different choice, and most of them have done so. In 39 States, voters elect trial or appellate judges at the polls. In an effort to preserve public confidence in the integrity of their judiciaries, many of those States prohibit judges and judicial candidates from personally soliciting funds for their campaigns. We must decide whether the First Amendment permits such restrictions on speech.

We hold that it does. Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money. We affirm the judgment of the Florida Supreme Court. . . .

Canon 7C(1) governs fundraising in judicial elections. The Canon, which is based on a provision in the American Bar Association’s Model Code of Judicial Conduct, provides: “A candidate, including an incumbent judge, for a judicial office that is filled by public election between competing candidates shall not personally solicit campaign funds, or solicit attorneys for publicly stated support, but may establish committees of responsible persons to secure and manage the expenditure of funds for the candidate’s campaign and to obtain public statements of support for his or her candidacy. Such committees are not prohibited from soliciting campaign contributions and public support from any person or corporation authorized by law.”

Florida statutes impose additional restrictions on campaign fundraising in judicial elections. Contributors may not donate more than $1,000 per election to a trial court candidate or more than $3,000 per retention election to a Supreme Court justice.  Campaign committee treasurers must file periodic reports disclosing the names of contributors and the amount of each contribution. . . .

Lanell Williams-Yulee, who refers to herself as Yulee, has practiced law in Florida since 1991. In September 2009, she decided to run for a seat on the county court for Hillsborough County, a jurisdiction of about 1.3 million people that includes the city of Tampa. Shortly after filing paperwork to enter the race, Yulee drafted a letter announcing her candidacy. The letter described her experience and desire to “bring fresh ideas and positive solutions to the Judicial bench.” The letter then stated: “An early contribution of $25, $50, $100, $250, or $500, made payable to ‘Lanell Williams-Yulee Campaign for County Judge’, will help raise the initial funds needed to launch the campaign and get our message out to the public. I ask for your support [i]n meeting the primary election fund raiser goals. Thank you in advance for your support.” Yulee signed the letter and mailed it to local voters. She also posted the letter on her campaign Web site.

Yulee’s bid for the bench did not unfold as she had hoped. She lost the primary to the incumbent judge. Then the Florida Bar filed a complaint against her. As relevant here, the Bar charged her with violating Rule 4–8.2(b) of the Rules Regulating the Florida Bar. That Rule requires judicial candidates to comply with applicable provisions of Florida’s Code of Judicial Conduct, including the ban on personal solicitation of campaign funds in Canon 7C(1).

Yulee admitted that she had signed and sent the fundraising letter. But she argued that the Bar could not discipline her for that conduct because the First Amendment protects a judicial candidate’s right to solicit campaign funds in an election. The Florida Supreme Court appointed a referee, who held a hearing and recommended a finding of guilt. As a sanction, the referee recommended that Yulee be publicly reprimanded and ordered to pay the costs of the proceeding ($1,860). The Florida Supreme Court adopted the referee’s recommendations. . . .

The First Amendment provides that Congress “shall make no law . . . abridging the freedom of speech.” The Fourteenth Amendment makes that prohibition applicable to the States. . . . The parties agree that Canon 7C(1) restricts Yulee’s speech on the basis of its content by prohibiting her from soliciting contributions to her election campaign. The parties disagree, however, about the level of scrutiny that should govern our review.

We have applied exacting scrutiny to laws restricting the solicitation of contributions to charity, upholding the speech limitations only if they are narrowly tailored to serve a compelling interest. See Riley v. National Federation of Blind of N. C., Inc.,487 U. S. 781, 798 (1988). As we have explained, noncommercial solicitation “is characteristically intertwined with informative and perhaps persuasive speech.” Id., at 796 Applying a lesser standard of scrutiny to such speech would threaten “the exercise of rights so vital to the maintenance of democratic institutions.” Schneider v. State (Town of Irvington), 308 U. S. 147, 161 (1939).

The principles underlying these charitable solicitation cases apply with even greater force here. Before asking for money in her fundraising letter, Yulee explained her fitness for the bench and expressed her vision for the judiciary. Her stated purpose for the solicitation was to get her “message out to the public.”  As we have long recognized, speech about public issues and the qualifications of candidates for elected office commands the highest level of First Amendment protection. See Eu v. San Francisco County Democratic Central Comm., 489 U. S. 214, 223 (1989). Indeed, in our only prior case concerning speech restrictions on a candidate for judicial office, this Court and both parties assumed that strict scrutiny applied. Republican Party of Minn. v. White, 536 U. S. 765, 774 (2002). . . .

The Florida Supreme Court adopted Canon 7C(1) to promote the State’s interests in “protecting the integrity of the judiciary” and “maintaining the public’s confidence in an impartial judiciary.” The way the Canon advances those interests is intuitive: Judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity. This principle dates back at least eight centuries to Magna Carta, which proclaimed, “To no one will we sell, to no one will we refuse or delay, right or justice.” The same concept underlies the common law judicial oath, which binds a judge to “do right to all manner of people . . . without fear or favour, affection or ill-will,” and the oath that each of us took to “administer justice without respect to persons, and do equal right to the poor and to the rich,” 28 U. S. C. §453. Simply put, Florida and most other States have concluded that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.

The interest served by Canon 7C(1) has firm support in our precedents. We have recognized the “vital state interest” in safeguarding “public confidence in the fairness and integrity of the nation’s elected judges.” Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 889 (2009). The importance of public confidence in the integrity of judges stems from the place of the judiciary in the government. Unlike the executive or the legislature, the judiciary “has no influence over either the sword or the purse; . . . neither force nor will but merely judgment.” The Federalist No. 78. The judiciary’s authority therefore depends in large measure on the public’s willingness to respect and follow its decisions. As Justice Frankfurter once put it for the Court, “justice must satisfy the appearance of justice.” Offutt v. United States,348 U. S. 11,14 (1954). It follows that public perception of judicial integrity is “a state interest of the highest order.” Caperton, 556 U. S., at 889 (quoting White, 536 U. S., at 793 (Kennedy, J., concurring)). . . .

The parties devote considerable attention to our cases analyzing campaign finance restrictions in political elections. But a State’s interest in preserving public confidence in the integrity of its judiciary extends beyond its interest in preventing the appearance of corruption in legislative and executive elections. As we explained in White, States may regulate judicial elections differently than they regulate political elections, because the role of judges differs from the role of politicians. Politicians are expected to be appropriately responsive to the preferences of their supporters. Indeed, such “responsiveness is key to the very concept of self-governance through elected officials.” McCutcheon v. Federal Election Comm’n (2014). The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must “observe the utmost fairness,” striving to be “perfectly and completely independent, with nothing to influence or controul him but God and his conscience.” Address of John Marshall, in Proceedings and Debates of the Virginia State Convention of 1829–1830, p. 616 (1830). As in White, therefore, our precedents applying the First Amendment to political elections have little bearing on the issues here.

The vast majority of elected judges in States that allow personal solicitation serve with fairness and honor. But “[e]ven if judges were able to refrain from favoring donors, the mere possibility that judges’ decisions may be motivated by the desire to repay campaign contributions is likely to undermine the public’s confidence in the judiciary.” White, 536 U. S., at 790 (O’Connor, J., concurring). In the eyes of the public, a judge’s personal solicitation could result (even unknowingly) in “a possible temptation . . . which might lead him not to hold the balance nice, clear and true.” Tumey v. Ohio, 273 U. S. 510, 532 (1927). That risk is especially pronounced because most donors are lawyers and litigants who may appear before the judge they are supporting. . . . The Florida Bar’s interest is compelling.

Yulee acknowledges the State’s compelling interest in judicial integrity. She argues, however, that the Canon’s failure to restrict other speech equally damaging to judicial integrity and its appearance undercuts the Bar’s position. In particular, she notes that Canon 7C(1) allows a judge’s campaign committee to solicit money, which arguably reduces public confidence in the integrity of the judiciary just as much as a judge’s personal solicitation. Yulee also points out that Florida permits judicial candidates to write thank you notes to campaign donors, which ensures that candidates know who contributes and who does not.

It is always somewhat counterintuitive to argue that a law violates the First Amendment by abridging too little speech. We have recognized, however, that underinclusiveness can raise “doubts about whether the government is in fact pursuing the interest it invokes, rather than disfavoring a particular speaker or viewpoint.” In a textbook illustration of that principle, we invalidated a city’s ban on ritual animal sacrifices because the city failed to regulate vast swaths of conduct that similarly diminished its asserted interests in public health and animal welfare. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 547 (1993).

Underinclusiveness can also reveal that a law does not actually advance a compelling interest. For example, a State’s decision to prohibit newspapers, but not electronic media, from releasing the names of juvenile defendants suggested that the law did not advance its stated purpose of protecting youth privacy. Smith v. Daily Mail Publishing Co., 443 U. S. 97, 105 (1979).

Although a law’s underinclusivity raises a red flag, the First Amendment imposes no freestanding “underinclusiveness limitation.” R. A. V. v. St. Paul, 505 U. S. 377, 387 (1992). A State need not address all aspects of a problem in one fell swoop; policymakers may focus on their most pressing concerns. We have accordingly upheld laws—even under strict scrutiny—that conceivably could have restricted even greater amounts of speech in service of their stated interests.

Viewed in light of these principles, Canon 7C(1) raises no fatal underinclusivity concerns. The solicitation ban aims squarely at the conduct most likely to undermine public confidence in the integrity of the judiciary: personal requests for money by judges and judicial candidates. The Canon applies evenhandedly to all judges and judicial candidates, regardless of their viewpoint or chosen means of solicitation. And unlike some laws that we have found impermissibly underinclusive, Canon 7C(1) is not riddled with exceptions. Indeed, the Canon contains zero exceptions to its ban on personal solicitation.

Yulee relies heavily on the provision of Canon 7C(1) that allows solicitation by a candidate’s campaign committee. But Florida, along with most other States, has reasonably concluded that solicitation by the candidate personally creates a categorically different and more severe risk of undermining public confidence than does solicitation by a campaign committee. The identity of the solicitor matters, as anyone who has encountered a Girl Scout selling cookies outside a grocery store can attest. When the judicial candidate himself asks for money, the stakes are higher for all involved. The candidate has personally invested his time and effort in the fundraising appeal; he has placed his name and reputation behind the request. The solicited individual knows that, and also knows that the solicitor might be in a position to singlehandedly make decisions of great weight: The same person who signed the fundraising letter might one day sign the judgment. This dynamic inevitably creates pressure for the recipient to comply, and it does so in a way that solicitation by a third party does not. Just as inevitably, the personal involvement of the candidate in the solicitation creates the public appearance that the candidate will remember who says yes, and who says no. . . .

Likewise, allowing judicial candidates to write thank you notes to campaign donors does not detract from the State’s interest in preserving public confidence in the integrity of the judiciary. Yulee argues that permitting thank you notes heightens the likelihood of actual bias by ensuring that judicial candidates know who supported their campaigns, and ensuring that the supporter knows that the candidate knows. Maybe so. But the State’s compelling interest is implicated most directly by the candidate’s personal solicitation itself. A failure to ban thank you notes for contributions not solicited by the candidate does not undercut the Bar’s rationale. . . .

Taken to its logical conclusion, the position advanced by Yulee and the principal dissent is that Florida may ban the solicitation of funds by judicial candidates only if the State bans all solicitation of funds in judicial elections. The First Amendment does not put a State to that all-or-nothing choice. We will not punish Florida for leaving open more, rather than fewer, avenues of expression, especially when there is no indication that the selective restriction of speech reflects a pretextual motive.

After arguing that Canon 7C(1) violates the First Amendment because it restricts too little speech, Yulee argues that the Canon violates the First Amendment because it restricts too much. In her view, the Canon is not narrowly tailored to advance the State’s compelling interest through the least restrictive means.

By any measure, Canon 7C(1) restricts a narrow slice of speech. . . . Canon 7C(1) leaves judicial candidates free to discuss any issue with any person at any time. Candidates can write letters, give speeches, and put up billboards. They can contact potential supporters in person, on the phone, or online. They can promote their campaigns on radio, television, or other media. They cannot say, “Please give me money.” They can, however, direct their campaign committees to do so. Whatever else may be said of the Canon, it is surely not a “wildly disproportionate restriction upon speech.”

Indeed, Yulee concedes—and the principal dissent seems to agree—that Canon 7C(1) is valid in numerous applications. Yulee acknowledges that Florida can prohibit judges from soliciting money from lawyers and litigants appearing before them. In addition, she says the State “might” be able to ban “direct one-to-one solicitation of lawyers and individuals or businesses that could reasonably appear in the court for which the individual is a candidate.” She also suggests that the Bar could forbid “in person” solicitation by judicial candidates. But Yulee argues that the Canon cannot constitutionally be applied to her chosen form of solicitation: a letter posted online and distributed via mass mailing. No one, she contends, will lose confidence in the integrity of the judiciary based on personal solicitation to such a broad audience.

This argument misperceives the breadth of the compelling interest that underlies Canon 7C(1). Florida has reasonably determined that personal appeals for money by a judicial candidate inherently create an appearance of impropriety that may cause the public to lose confidence in the integrity of the judiciary. That interest may be implicated to varying degrees in particular contexts, but the interest remains whenever the public perceives the judge personally asking for money.

Moreover, the lines Yulee asks us to draw are unworkable. Even under her theory of the case, a mass mailing would create an appearance of impropriety if addressed to a list of all lawyers and litigants with pending cases. So would a speech soliciting contributions from the 100 most frequently appearing attorneys in the jurisdiction. Yulee says she might accept a ban on one-to-one solicitation, but is the public impression really any different if a judicial candidate tries to buttonhole not one prospective donor but two at a time? Ten? Yulee also agrees that in person solicitation creates a problem. But would the public’s concern recede if the request for money came in a phone call or a text message?

We decline to wade into this swamp. The First Amendment requires that Canon 7C(1) be narrowly tailored, not that it be “perfectly tailored.” The impossibility of perfect tailoring is especially apparent when the State’s compelling interest is as intangible as public confidence in the integrity of the judiciary. Yulee is of course correct that some personal solicitations raise greater concerns than others. A judge who passes the hat in the courthouse creates a more serious appearance of impropriety than does a judicial candidate who makes a tasteful plea for support on the radio. But most problems arise in greater and lesser gradations, and the First Amendment does not confine a State to addressing evils in their most acute form. Here, Florida has concluded that all personal solicitations by judicial candidates create a public appearance that undermines confidence in the integrity of the judiciary; banning all personal solicitations by judicial candidates is narrowly tailored to address that concern.

In considering Yulee’s tailoring arguments, we are mindful that most States with elected judges have determined that drawing a line between personal solicitation by candidates and solicitation by committees is necessary to preserve public confidence in the integrity of the judiciary. These considered judgments deserve our respect, especially because they reflect sensitive choices by States in an area central to their own governance—how to select those who “sit as their judges.” Gregory v. Ashcroft, 501 U. S. 452, 460 (1991).

Finally, Yulee contends that Florida can accomplish its compelling interest through the less restrictive means of recusal rules and campaign contribution limits. We disagree. A rule requiring judges to recuse themselves from every case in which a lawyer or litigant made a campaign contribution would disable many jurisdictions. And a flood of postelection recusal motions could “erode public confidence in judicial impartiality” and thereby exacerbate the very appearance problem the State is trying to solve. Caperton, 556 U. S., at 891 (Roberts, C. J., dissenting). Moreover, the rule that Yulee envisions could create a perverse incentive for litigants to make campaign contributions to judges solely as a means to trigger their later recusal—a form of peremptory strike against a judge that would enable transparent forum shopping.

As for campaign contribution limits, Florida already applies them to judicial elections. Fla. Stat. §106.08(1)(a). A State may decide that the threat to public confidence created by personal solicitation exists apart from the amount of money that a judge or judicial candidate seeks. Even if Florida decreased its contribution limit, the appearance that judges who personally solicit funds might improperly favor their campaign donors would remain. Although the Court has held that contribution limits advance the interest in preventing quid pro quo corruption and its appearance in political elections, we have never held that adopting contribution limits precludes a State from pursuing its compelling interests through additional means. And in any event, a State has compelling interests in regulating judicial elections that extend beyond its interests in regulating political elections, because judges are not politicians.

In sum, because Canon 7C(1) is narrowly tailored to serve a compelling government interest, the First Amendment poses no obstacle to its enforcement in this case. As a result of our decision, Florida may continue to prohibit judicial candidates from personally soliciting campaign funds, while allowing them to raise money through committees and to otherwise communicate their electoral messages in practically any way. . . .

Justice Antonin Scalia, joined by Justice Thomas, dissenting:

An ethics canon adopted by the Florida Supreme Court bans a candidate in a judicial election from asking anyone, under any circumstances, for a contribution to his campaign. Faithful application of our precedents would have made short work of this wildly disproportionate restriction upon speech. Intent upon upholding the Canon, however, the Court flattens one settled First Amendment principle after another.

The first axiom of the First Amendment is this: As a general rule, the state has no power to ban speech on the basis of its content. One need not equate judges with politicians to see that this principle does not grow weaker merely because the censored speech is a judicial candidate’s request for a campaign contribution. Our cases hold that speech enjoys the full protection of the First Amendment unless a widespread and longstanding tradition ratifies its regulation. Brown v. Entertainment Merchants Assn., 564 U. S. 986 (2011). No such tradition looms here. Georgia became the first State to elect its judges in 1812, and judicial elections had spread to a large majority of the States by the time of the Civil War. Yet there appears to have been no regulation of judicial candidates’ speech throughout the 19th and early 20th centuries. . . . In the absence of any long-settled custom about judicial candidates’ speech in general or their solicitations in particular, we have no basis for relaxing the rules that normally apply to laws that suppress speech because of content.

One likewise need not equate judges with politicians to see that the electoral setting calls for all the more vigilance in ensuring observance of the First Amendment. When a candidate asks someone for a campaign contribution, he tends (as the principal opinion acknowledges) also to talk about his qualifications for office and his views on public issues. This expression lies at the heart of what the First Amendment is meant to protect. In addition, banning candidates from asking for money personally “favors some candidates over others—incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower-income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.” Carey v. Wolnitzek, 614 F. 3d 189, 204 (CA6 2010). This danger of legislated (or judicially imposed) favoritism is the very reason the First Amendment exists.

Because Canon 7C(1) restricts fully protected speech on the basis of content, it presumptively violates the First Amendment. We may uphold it only if the State meets its burden of showing that the Canon survives strict scrutiny—that is to say, only if it shows that the Canon is narrowly tailored to serve a compelling interest. I do not for a moment question the Court’s conclusion that States have different compelling interests when regulating judicial elections than when regulating political ones. Unlike a legislator, a judge must be impartial—without bias for or against any party or attorney who comes before him. I accept for the sake of argument that States have a compelling interest in ensuring that its judges are seen to be impartial. I will likewise assume that a judicial candidate’s request to a litigant or attorney presents a danger of coercion that a political candidate’s request to a constituent does not. But Canon 7C(1) does not narrowly target concerns about impartiality or its appearance; it applies even when the person asked for a financial contribution has no chance of ever appearing in the candidate’s court. And Florida does not invoke concerns about coercion, presumably because the Canon bans solicitations regardless of whether their object is a lawyer, litigant, or other person vulnerable to judicial pressure. So Canon 7C(1) fails exacting scrutiny and infringes the First Amendment. This case should have been just that straightforward.

The Court concludes that Florida may prohibit personal solicitations by judicial candidates as a means of preserving “public confidence in the integrity of the judiciary.” It purports to reach this destination by applying strict scrutiny, but it would be more accurate to say that it does so by applying the appearance of strict scrutiny.

The first sign that mischief is afoot comes when the Court describes Florida’s compelling interest. The State must first identify its objective with precision before one can tell whether that interest is compelling and whether the speech restriction narrowly targets it. . . .

The Court at first suggests that “judicial integrity” involves the “ability to administer justice without fear or favor.” As its opinion unfolds, however, today’s concept of judicial integrity turns out to be “a mere thing of wax in the hands of the judiciary, which they may twist, and shape into any form they please.” 12 The Works of Thomas Jefferson 137 (P. Ford ed. 1905). When the Court explains how solicitation undermines confidence in judicial integrity, integrity starts to sound like saintliness. It involves independence from any “‘possible temptation’” that “‘might lead’” the judge, “even unknowingly,” to favor one party. When the Court turns to distinguishing in-person solicitation from solicitation by proxy, the any-possible-temptation standard no longer helps and thus drops out. The critical factors instead become the “pressure” a listener feels during a solicitation and the “appearance that the candidate will remember who says yes, and who says no.” But when it comes time to explain Florida’s decision to allow candidates to write thank-you notes, the “appearance that the candidate . . . remember[s] who says yes” gets nary a mention. . . .

The Court’s twistifications have not come to an end; indeed, they are just beginning. In order to uphold Canon 7C(1) under strict scrutiny, Florida must do more than point to a vital public objective brooding overhead. The State must also meet a difficult burden of demonstrating that the speech restriction substantially advances the claimed objective. The State “bears the risk of uncertainty,” so “ambiguous proof will not suffice.” Entertainment Merchants, 564 U. S., at 798. In an arresting illustration, this Court held that a law punishing lies about winning military decorations like the Congressional Medal of Honor failed exacting scrutiny, because the Government could not satisfy its “heavy burden” of proving that “the public’s general perception of military awards is diluted by false claims.” United States v. Alvarez, 567 U. S. 709, 723 (2012).

Now that we have a case about the public’s perception of judicial honor rather than its perception of military honors, the Justices of this Court change the rules. The Court announces, on the basis of its “intuiti[on],” that allowing personal solicitations will make litigants worry that “‘judges’ decisions may be motivated by the desire to repay campaign contributions.’” But this case is not about whether Yulee has the right to receive campaign contributions. It is about whether she has the right to ask for campaign contributions that Florida’s statutory law already allows her to receive. Florida bears the burden of showing that banning requests for lawful contributions will improve public confidence in judges—not just a little bit, but significantly, because “the Government does not have a compelling interest in each marginal percentage point by which its goals are advanced.” Entertainment Merchants, 564 U.S. at 804, n. 9.

Neither the Court nor the State identifies the slightest evidence that banning requests for contributions will substantially improve public trust in judges. Nor does common sense make this happy forecast obvious. . . . The peaceful coexistence of judicial elections and personal solicitations for most of our history calls into doubt any claim that allowing personal solicitations would imperil public faith in judges. Many States allow judicial candidates to ask for contributions even today, but nobody suggests that public confidence in judges fares worse in these jurisdictions than elsewhere. And in any event, if candidates’ appeals for money are “‘characteristically intertwined’” with discussion of qualifications and views on public issues, how can the Court be so sure that the public will regard them as improprieties rather than as legitimate instances of campaigning? In the final analysis, Florida comes nowhere near making the convincing demonstration required by our cases that the speech restriction in this case substantially advances its objective.

But suppose we play along with the premise that prohibiting solicitations will significantly improve the public reputation of judges. Even then, Florida must show that the ban restricts no more speech than necessary to achieve the objective.

Canon 7C(1) falls miles short of satisfying this requirement. The Court seems to accept Florida’s claim that solicitations erode public confidence by creating the perception that judges are selling justice to lawyers and litigants. Yet the Canon prohibits candidates from asking for money from anybody—even from someone who is neither lawyer nor litigant, even from someone who (because of recusal rules) cannot possibly appear before the candidate as lawyer or litigant. Yulee thus may not call up an old friend, a cousin, or even her parents to ask for a donation to her campaign. The State has not come up with a plausible explanation of how soliciting someone who has no chance of appearing in the candidate’s court will diminish public confidence in judges.

No less important, Canon 7C(1) bans candidates from asking for contributions even in messages that do not target any listener in particular—mass-mailed letters, flyers posted on telephone poles, speeches to large gatherings, and Web sites addressed to the general public. Messages like these do not share the features that lead the Court to pronounce personal solicitations a menace to public confidence in the judiciary. Consider online solicitations. They avoid “‘the spectacle of lawyers or potential litigants directly handing over money to judicial candidates.’” People who come across online solicitations do not feel “pressure” to comply with the request. Nor does the candidate’s signature on the online solicitation suggest “that the candidate will remember who says yes, and who says no.” Yet Canon 7C(1) prohibits these and similar solicitations anyway. This tailoring is as narrow as the Court’s scrutiny is strict. . . .

The Court’s decision disregards these principles. The Court tells us that “all personal solicitations by judicial candidates create a public appearance that undermines confidence in the integrity of the judiciary.” But Canon 7C(1) does not restrict all personal solicitations; it restricts only personal solicitations related to campaigns. The part of the Canon challenged here prohibits personal pleas for “campaign funds,” and the Canon elsewhere prohibits personal appeals to attorneys for “publicly stated support.” Judicial Conduct Code 38. So although Canon 7C(1) prevents Yulee from asking a lawyer for a few dollars to help her buy campaign pamphlets, it does not prevent her asking the same lawyer for a personal loan, access to his law firm’s luxury suite at the local football stadium, or even a donation to help her fight the Florida Bar’s charges. What could possibly justify these distinctions? Surely the Court does not believe that requests for campaign favors erode public confidence in a way that requests for favors unrelated to elections do not. Could anyone say with a straight face that it looks worse for a candidate to say “please give my campaign $25” than to say “please give me $25”? . . .

This case involves selectivity on the basis of content. The Florida Supreme Court has decided to eliminate the appearances associated with “personal appeals for money,” when the appeals seek money for a campaign but not when the appeals seek money for other purposes. That distinction violates the First Amendment.

4. Does the restriction involve content or viewpoint discrimination?

The First Amendment establishes a strong presumption against laws that disfavor particular types of speech (content discrimination) or disfavor particular positions on issues (viewpoint discrimination). Content discrimination involves restrictions on subject matter, such as whether religious issues may be discussed. Viewpoint discrimination involves restrictions on what may be said about those issues, such as barring people from denying the existence of God. While both are subject to strict scrutiny, content-discriminatory laws occasionally pass strict scrutiny, while viewpoint discriminatory laws almost always do not. The distinction between the two types of discrimination is discussed in the next case, which involved a town sign code that placed special restrictions on signs announcing live events.

Justice Clarence Thomas:

Justice Thurgood Marshall:

Appellant Marvin L. Pickering, a teacher in Township High School District 205, Will County, Illinois, was dismissed from his position by the appellee Board of Education for sending a letter to a local newspaper in connection with a recently proposed tax increase that was critical of the way in which the Board and the district superintendent of schools had handled past proposals to raise new revenue for the schools. Appellant’s dismissal resulted from a determination by the Board, after a full hearing, that the publication of the letter was “detrimental to the efficient operation and administration of the schools of the district” and hence, under the relevant Illinois statute, Ill.Rev.Stat. c. 122, § 10-22.4 (1963), that “interests of the school require[d] [his dismissal].”

Appellant’s claim that his writing of the letter was protected by the First and Fourteenth Amendments was rejected. Appellant then sought review of the Board’s action in the Circuit Court of Will County, which affirmed his dismissal on the ground that the determination that appellant’s letter was detrimental to the interests of the school system was supported by substantial evidence and that the interests of the schools overrode appellant’s First Amendment rights. On appeal, the Supreme Court of Illinois, two Justices dissenting, affirmed the judgment of the Circuit Court. . . .

In February of 1961, the appellee Board of Education asked the voters of the school district to approve a bond issue to raise $4,875,000 to erect two new schools. The proposal was defeated. Then, in December of 1961, the Board submitted another bond proposal to the voters which called for the raising of $5,500,000 to build two new schools. This second proposal passed, and the schools were built with the money raised by the bond sales. In May of 1964, a proposed increase in the tax rate to be used for educational purposes was submitted to the voters by the Board and was defeated. Finally, on September 19, 1964, a second proposal to increase the tax rate was submitted by the Board, and was likewise defeated. It was in connection with this last proposal of the School Board that appellant wrote the letter to the editor that resulted in his dismissal.

Prior to the vote on the second tax increase proposal, a variety of articles attributed to the District 205 Teachers’ Organization appeared in the local paper. These articles urged passage of the tax increase and stated that failure to pass the increase would result in a decline in the quality of education afforded children in the district’s schools. A letter from the superintendent of schools making the same point was published in the paper two days before the election and submitted to the voters in mimeographed form the following day. It was in response to the foregoing material, together with the failure of the tax increase to pass, that appellant submitted the letter in question to the editor of the local paper:

Dear Editor:

I enjoyed reading the back issues of your paper which you loaned to me. Perhaps others would enjoy reading them in order to see just how far the two new high schools have deviated from the original promises by the Board of Education. First, let me state that I am referring to the February thru November, 1961 issues of your paper, so that it can be checked.

One statement in your paper declared that swimming pools, athletic fields, and auditoriums had been left out of the program. They may have been left out but they got put back in very quickly, because Lockport West has both an auditorium and athletic field. In fact, Lockport West has a better athletic field than Lockport Central. It has a track that isn’t quite regulation distance even though the board spent a few thousand dollars on it. Whose fault is that? Oh, I forgot, it wasn’t supposed to be there in the first place. It must have fallen out of the sky. Such responsibility has been touched on in other letters but it seems one just can’t help noticing it. I am not saying the school shouldn’t have these facilities, because I think they should, but promises are promises, or are they?

Since there seems to be a problem getting all the facts to the voter on the twice defeated bond issue, many letters have been written to this paper and probably more will follow, I feel I must say something about the letters and their writers. Many of these letters did not give the whole story. Letters by your Board and Administration have stated that teachers’ salaries total $1,297,746 for one year. Now that must have been the total payroll, otherwise the teachers would be getting $10,000 a year. I teach at the high school and I know this just isn’t the case. However, this shows their “stop at nothing” attitude. To illustrate further, do you know that the superintendent told the teachers, and I quote, “Any teacher that opposes the referendum should be prepared for the consequences.” I think this gets at the reason we have problems passing bond issues. Threats take something away; these are insults to voters in a free society. We should try to sell a program on its merits, if it has any.

Remember those letters entitled “District 205 Teachers Speak,” I think the voters should know that those letters have been written and agreed to by only five or six teachers, not 98% of the teachers in the high school. In fact, many teachers didn’t even know who was writing them. Did you know that those letters had to have the approval of the superintendent before they could be put in the paper? That’s the kind of totalitarianism teachers live in at the high school, and your children go to school in.

In last week’s paper, the letter written by a few uninformed teachers threatened to close the school cafeteria and fire its personnel. This is ridiculous, and insults the intelligence of the voter because properly managed school cafeterias do not cost the school district any money. If the cafeteria is losing money, then the board should not be packing free lunches for athletes on days of athletic contests. Whatever the case, the taxpayer’s child should only have to pay about 30 cents for his lunch instead of 35 cents to pay for free lunches for the athletes.

In a reply to this letter, your Board of Administration will probably state that these lunches are paid for from receipts from the games. But $20,000 in receipts doesn’t pay for the $200,000 a year they have been spending on varsity sports while neglecting the wants of teachers.

You see we don’t need an increase in the transportation tax unless the voters want to keep paying $50,000 or more a year to transport athletes home after practice and to away games, etc. Rest of the $200,000 is made up in coaches’ salaries, athletic directors’ salaries, baseball pitching machines, sodded football fields, and thousands of dollars for other sports equipment.

These things are all right, provided we have enough money for them. To sod football fields on borrowed money and then not be able to pay teachers’ salaries is getting the cart before the horse.

If these things aren’t enough for you, look at East High. No doors on many of the classrooms, a plant room without any sunlight, no water in a first aid treatment room, are just a few of many things. The taxpayers were really taken to the cleaners. A part of the sidewalk in front of the building has already collapsed. Maybe Mr. Hess would be interested to know that we need blinds on the windows in that building also. Once again, the board must have forgotten they were going to spend $3,200,000 on the West building and $2,300,000 on the East building.

As I see it, the bond issue is a fight between the Board of Education that is trying to push tax supported athletics down our throats with education, and a public that has mixed emotions about both of these items because they feel they are already paying enough taxes, and simply don’t know whom to trust with any more tax money.

I must sign this letter as a citizen, taxpayer and voter, not as a teacher, since that freedom has been taken from the teachers by the administration. Do you really know what goes on behind those stone walls at the high school?

Respectfully,

Marvin L. Pickering.

The letter constituted, basically, an attack on the School Board’s handling of the 1961 bond issue proposals and its subsequent allocation of financial resources between the schools’ educational and athletic programs. It also charged the superintendent of schools with attempting to prevent teachers in the district from opposing or criticizing the proposed bond issue.

The Board dismissed Pickering for writing and publishing the letter. Pursuant to Illinois law, the Board was then required to hold a hearing on the dismissal. At the hearing, the Board charged that numerous statements in the letter were false, and that the publication of the statements unjustifiably impugned the “motives, honesty, integrity, truthfulness, responsibility and competence” of both the Board and the school administration. The Board also charged that the false statements damaged the professional reputations of its members and of the school administrators, would be disruptive of faculty discipline, and would tend to foment “controversy, conflict and dissension” among teachers, administrators, the Board of Education, and the residents of the district. Testimony was introduced from a variety of witnesses on the truth or falsity of the particular statements in the letter with which the Board took issue. The Board found the statements to be false as charged. No evidence was introduced at any point in the proceedings as to the effect of the publication of the letter on the community as a whole or on the administration of the school system in particular, and no specific findings along these lines were made.

The Illinois courts reviewed the proceedings solely to determine whether the Board’s findings were supported by substantial evidence and whether, on the facts as found, the Board could reasonably conclude that appellant’s publication of the letter was “detrimental to the best interests of the schools.” Pickering’s claim that his letter was protected by the First Amendment was rejected on the ground that his acceptance of a teaching position in the public schools obliged him to refrain from making statements about the operation of the schools “which in the absence of such position he would have an undoubted right to engage in.” It is not altogether clear whether the Illinois Supreme Court held that the First Amendment had no applicability to appellant’s dismissal for writing the letter in question or whether it determined that the particular statements made in the letter were not entitled to First Amendment protection. In any event, it clearly rejected Pickering’s claim that, on the facts of this case, he could not constitutionally be dismissed from his teaching position.

To the extent that the Illinois Supreme Court’s opinion may be read to suggest that teachers may constitutionally be compelled to relinquish the First Amendment rights they would otherwise enjoy as citizens to comment on matters of public interest in connection with the operation of the public schools in which they work, it proceeds on a premise that has been unequivocally rejected in numerous prior decisions of this Court. E.g., Wieman v. Updegraff, 344 U. S. 183 (1952); Shelton v. Tucker, 364 U. S. 479 (1960). “[T]he theory that public employment which may be denied altogether may be subjected to any conditions, regardless of how unreasonable, has been uniformly rejected.” Keyishian v. Board of Regents, 385 U. S. 589, 605-606 (1967). At the same time, it cannot be gainsaid that the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.

The Board contends that the teacher by virtue of his public employment has a duty of loyalty to support his superiors in attaining the generally accepted goals of education and that, if he must speak out publicly, he should do so factually and accurately, commensurate with his education and experience.” Appellant, on the other hand, argues that the test applicable to defamatory statements directed against public officials by persons having no occupational relationship with them, namely, that statements to be legally actionable must be made “with knowledge that [they were] . . . false or with reckless disregard of whether [they were] . . . false or not,” New York Times Co. v. Sullivan, 376 U. S. 254, 280 (1964), should also be applied to public statements made by teachers. Because of the enormous variety of fact situations in which critical statements by teachers and other public employees may be thought by their superiors, against whom the statements are directed, to furnish grounds for dismissal, we do not deem it either appropriate or feasible to attempt to lay down a general standard against which all such statements may be judged. However, in the course of evaluating the conflicting claims of First Amendment protection and the need for orderly school administration in the context of this case, we shall indicate some of the general lines along which an analysis of the controlling interests should run.

An examination of the statements in appellant’s letter objected to by the Board reveals that they, like the letter as a whole, consist essentially of criticism of the Board’s allocation of school funds between educational and athletic programs, and of both the Board’s and the superintendent’s methods of informing, or preventing the informing of, the district’s taxpayers of the real reasons why additional tax revenues were being sought for the schools. The statements are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus, no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant’s employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning. Accordingly, to the extent that the Board’s position here can be taken to suggest that even comments on matters of public concern that are substantially correct . . . may furnish grounds for dismissal if they are sufficiently critical in tone, we unequivocally reject it.

We next consider the statements in appellant’s letter which we agree to be false. The Board’s original charges included allegations that the publication of the letter damaged the professional reputations of the Board and the superintendent and would foment controversy and conflict among the Board, teachers, administrators, and the residents of the district. However, no evidence to support these allegations was introduced at the hearing. So far as the record reveals, Pickering’s letter was greeted by everyone but its main target, the Board, with massive apathy and total disbelief. The Board must, therefore, have decided, perhaps by analogy with the law of libel, that the statements were per se harmful to the operation of the schools.

However, the only way in which the Board could conclude, absent any evidence of the actual effect of the letter, that the statements contained therein were per se detrimental to the interest of the schools was to equate the Board members’ own interests with that of the schools. Certainly an accusation that too much money is being spent on athletics by the administrators of the school system (which is precisely the import of that portion of appellant’s letter containing the statements that we have found to be false) cannot reasonably be regarded as per se detrimental to the district’s schools. Such an accusation reflects rather a difference of opinion between Pickering and the Board as to the preferable manner of operating the school system, a difference of opinion that clearly concerns an issue of general public interest. . . .

More importantly, the question whether a school system requires additional funds is a matter of legitimate public concern on which the judgment of the school administration, including the School Board, cannot, in a society that leaves such questions to popular vote, be taken as conclusive. On such a question free and open debate is vital to informed decisionmaking by the electorate. Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal.

In addition, the amounts expended on athletics which Pickering reported erroneously were matters of public record on which his position as a teacher in the district did not qualify him to speak with any greater authority than any other taxpayer. The Board could easily have rebutted appellant’s errors by publishing the accurate figures itself, either via a letter to the same newspaper or otherwise. We are thus not presented with a situation in which a teacher has carelessly made false statements about matters so closely related to the day-to-day operations of the schools that any harmful impact on the public would be difficult to counter because of the teacher’s presumed greater access to the real facts. Accordingly, we have no occasion to consider at this time whether, under such circumstances, a school board could reasonably require that a teacher make substantial efforts to verify the accuracy of his charges before publishing them.

What we do have before us is a case in which a teacher has made erroneous public statements upon issues then currently the subject of public attention, which are critical of his ultimate employer but which are neither shown nor can be presumed to have in any way either impeded the teacher’s proper performance of his daily duties in the classroom or to have interfered with the regular operation of the schools generally. In these circumstances, we conclude that the interest of the school administration in limiting teachers’ opportunities to contribute to public debate is not significantly greater than its interest in limiting a similar contribution by any member of the general public.

The public interest in having free and unhindered debate on matters of public importance–the core value of the Free Speech Clause of the First Amendment–is so great that it has been held that a State cannot authorize the recovery of damages by a public official for defamatory statements directed at him except when such statements are shown to have been made either with knowledge of their falsity or with reckless disregard for their truth or falsity. New York Times Co. v. Sullivan, 376 U. S. 254 (1964). The same test has been applied to suits for invasion of privacy based on false statements where a “matter of public interest” is involved. Time, Inc. v. Hill, 385 U. S. 374 (1967). It is therefore perfectly clear that, were appellant a member of the general public, the State’s power to afford the appellee Board of Education or its members any legal right to sue him for writing the letter at issue here would be limited by the requirement that the letter be judged by the standard laid down in New York Times.

This Court has also indicated, in more general terms, that statements by public officials on matters of public concern must be accorded First Amendment protection despite the fact that the statements are directed at their nominal superiors. Garrison v. Louisiana, 379 U. S. 64 (1964). In Garrison, the New York Times test was specifically applied to a case involving a criminal defamation conviction stemming from statements made by a district attorney about the judges before whom he regularly appeared. While criminal sanctions and damage awards have a somewhat different impact on the exercise of the right to freedom of speech from dismissal from employment, it is apparent that the threat of dismissal from public employment is nonetheless a potent means of inhibiting speech. We have already noted our disinclination to make an across-the-board equation of dismissal from public employment for remarks critical of superiors with awarding damages in a libel suit by a public official for similar criticism. However, in a case such as the present one, in which the fact of employment is only tangentially and insubstantially involved in the subject matter of the public communication made by a teacher, we conclude that it is necessary to regard the teacher as the member of the general public he seeks to be.

In sum, we hold that, in a case such as this, absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment. Since no such showing has been made in this case regarding appellant’s letter, his dismissal for writing it cannot be upheld and the judgment of the Illinois Supreme Court must, accordingly, be reversed and the case remanded for further proceedings not inconsistent with this opinion.

6. Are the time, place and manner restrictions on communication reasonable?

The last issue addressed here concerns the regulations that governments may place on the use of public space. While parks, streets and sidewalks are traditional public forums for communication, the First Amendment does not require that they be open to all forms of communication at all times. Government may also establish limited public forums that impose content-based restrictions on the type of speech permitted. For example, at Lincoln Center in New York City, permits will only be granted for artistic performances, not for political protests. The government must establish reasonable rules for the time, place and manner (TPM) of allowable communication at both types of public forums. The test for such rules is intermediate scrutiny, as discussed in unit three, chapter 3.

The next case examines how this standard applied to a rule on amplified sound at a bandshell located in one of the most iconic parks in the world, New York’s Central Park.

Justice Anthony Kennedy:

In the southeast portion of New York City’s Central Park, about 10 blocks upward from the park’s beginning point at 59th Street, there is an amphitheater and stage structure known as the Naumberg Acoustic Bandshell. The bandshell faces west across the remaining width of the park. In close proximity to the bandshell, and lying within the directional path of its sound, is a grassy open area called the Sheep Meadow. The city has designated the Sheep Meadow as a quiet area for passive recreations like reclining, walking, and reading. Just beyond the park, and also within the potential sound range of the bandshell, are the apartments and residences of Central Park West.

This case arises from the city’s attempt to regulate the volume of amplified music at the bandshell so the performances are satisfactory to the audience without intruding upon those who use the Sheep Meadow or live on Central Park West and in its vicinity. The city’s regulation requires bandshell performers to use sound amplification equipment and a sound technician provided by the city. The challenge to this volume control technique comes from the sponsor of a rock concert. The trial court sustained the noise control measures, but the Court of Appeals for the Second Circuit reversed. We granted certiorari to resolve the important First Amendment issues presented by the case.

Rock Against Racism, respondent in this case, is an unincorporated association which, in its own words, is “dedicated to the espousal and promotion of antiracist views.” Each year from 1979 through 1986, RAR has sponsored a program of speeches and rock music at the bandshell. RAR has furnished the sound equipment and sound technician used by the various performing groups at these annual events.

Over the years, the city received numerous complaints about excessive sound amplification at respondent’s concerts from park users and residents of areas adjacent to the park. On some occasions, RAR was less than cooperative when city officials asked that the volume be reduced; at one concert, police felt compelled to cut off the power to the sound system, an action that caused the audience to become unruly and hostile.

Before the 1984 concert, city officials met with RAR representatives to discuss the problem of excessive noise. It was decided that the city would monitor sound levels at the edge of the concert-ground, and would revoke respondent’s event permit if specific volume limits were exceeded. Sound levels at the concert did exceed acceptable levels for sustained periods of time, despite repeated warnings and requests that the volume be lowered. Two citations for excessive volume were issued to respondent during the concert. When the power was eventually shut off, the audience became abusive and disruptive.

The following year, when respondent sought permission to hold its upcoming concert at the bandshell, the city declined to grant an event permit, citing its problems with noise and crowd control at RAR’s previous concerts. The city suggested some other city-owned facilities as alternative sites for the concert. RAR declined the invitation, and filed suit in United States District Court against the city, its mayor, and various police and parks department officials, seeking an injunction directing issuance of an event permit. After respondent agreed to abide by all applicable regulations, the parties reached agreement and a permit was issued.

The city then undertook to develop comprehensive New York City Parks Department Use Guidelines for the Naumberg Bandshell. A principal problem to be addressed by the guidelines was controlling the volume of amplified sound at bandshell events. . . . T]he city concluded that the most effective way to achieve adequate but not excessive sound amplification would be for the city to furnish high quality sound equipment and retain an independent, experienced sound technician for all performances at the bandshell. After an extensive search, the city hired a private sound company capable of meeting the needs of all the varied users of the bandshell.

The Use Guidelines were promulgated on March 21, 1986. After learning that it would be expected to comply with the guidelines at its upcoming annual concert in May, 1986, respondent returned to the District Court and filed a motion for an injunction against the enforcement of certain aspects of the guidelines. The District Court preliminarily enjoined enforcement of the sound amplification rule on May 1, 1986. Under the protection of the injunction, and alone among users of the bandshell in the 1986 season, RAR was permitted to use its own sound equipment and technician, just as it had done in prior years. RAR’s 1986 concert again generated complaints about excessive noise from park users and nearby residents.

After the concert, respondent amended its complaint to seek damages and a declaratory judgment striking down the guidelines as facially invalid. After hearing five days of testimony about various aspects of the guidelines, the District Court issued its decision upholding the sound amplification guideline. The court found that the city had been “motivated by a desire to obtain top-flight sound equipment and experienced operators” in selecting an independent contractor to provide the equipment and technician for bandshell events, and that the performers who did use the city’s sound system in the 1986 season, in performances “which ran the full cultural gamut from grand opera to salsa to reggae,” were uniformly pleased with the quality of the sound provided. Although the city’s sound technician controlled both sound volume and sound mix by virtue of his position at the mixing board, the court found that “[t]he City’s practice for events at the Bandshell is to give the sponsor autonomy with respect to the sound mix: balancing treble with bass, highlighting a particular instrument or voice, and the like,” and that the city’s sound technician “does all he can to accommodate the sponsor’s desires in those regards.” Even with respect to volume control, the city’s practice was to confer with the sponsor before making any decision to turn the volume down. In some instances, as with a New York Grand Opera performance, the sound technician accommodated the performers’ unique needs by integrating special microphones with the city’s equipment. The Court specifically found that “[t]he City’s implementation of the Bandshell guidelines provides for a sound amplification system capable of meeting RAR’s technical needs and leaves control of the sound ‘mix’ in the hands of RAR.” Applying this Court’s three-part test for judging the constitutionality of government regulation of the time, place, or manner of protected speech, the court found the city’s regulation valid.

The Court of Appeals reversed. 848 F.2d 367 (CA2 1988). After recognizing that “[c]ontent-neutral time, place and manner regulations are permissible so long as they are narrowly tailored to serve a substantial government interest and do not unreasonably limit alternative avenues of expression,” the court added the proviso that “the method and extent of such regulation must be reasonable, that is, it must be the least intrusive upon the freedom of expression as is reasonably necessary to achieve a legitimate purpose of the regulation.” Applying this test, the court determined that the city’s guideline was valid only to the extent necessary to achieve the city’s legitimate interest in controlling excessive volume, but found there were various alternative means of controlling volume without also intruding on respondent’s ability to control the sound mix. For example, the city could have directed respondent’s sound technician to keep the volume below specified levels. Alternatively, a volume-limiting device could have been installed; and as a “last resort,” the court suggested, “the plug can be pulled on the sound to enforce the volume limit.” In view of the potential availability of these seemingly less restrictive alternatives, the Court of Appeals concluded that the sound amplification guideline was invalid because the city had failed to prove that its regulation “was the least intrusive means of regulating the volume.”

We granted certiorari to clarify the legal standard applicable to governmental regulation of the time, place, or manner of protected speech. Because the Court of Appeals erred in requiring the city to prove that its regulation was the least intrusive means of furthering its legitimate governmental interests, and because the ordinance is valid on its face, we now reverse. . . .

Music, as a form of expression and communication, is protected under the First Amendment. . . .  [T]he city justifies its guideline as a regulatory measure to limit and control noise. Here the bandshell was open, apparently, to all performers; and we decide the case as one in which the bandshell is a public forum for performances in which the government’s right to regulate expression is subject to the protections of the First Amendment. United States v. Grace, 461 U. S. 171, 177 (1983). Our cases make clear, however, that even in a public forum, the government may impose reasonable restrictions on the time, place, or manner of protected speech, provided the restrictions “are justified without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information.” Clark v. Community for Creative NonViolence, 468 U. S. 288, 293 (1984). We consider these requirements in turn.

The principal inquiry in determining content-neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages, but not others. See Renton v. Playtime Theatres, Inc., 475 U. S. 41, 47-48 (1986). Government regulation of expressive activity is content-neutral so long as it is “justified without reference to the content of the regulated speech.”

The principal justification for the sound amplification guideline is the city’s desire to control noise levels at bandshell events, in order to retain the character of the Sheep Meadow and its more sedate activities, and to avoid undue intrusion into residential areas and other areas of the park. This justification for the guideline “ha[s] nothing to do with content,”  and it satisfies the requirement that time, place, or manner regulations be content-neutral. . . .

Respondent argues further that the guideline, even if not content-based in explicit terms, is nonetheless invalid on its face because it places unbridled discretion in the hands of city officials charged with enforcing it. According to respondent, there is nothing in the language of the guideline to prevent city officials from selecting wholly inadequate sound equipment or technicians, or even from varying the volume and quality of sound based on the message being conveyed by the performers. . . .

The District Court expressly found that the city’s policy is to defer to the sponsor’s desires concerning sound quality. With respect to sound volume, the city retains ultimate control, but city officials “mak[e] it a practice to confer with the sponsor if any questions of excessive sound arise, before taking any corrective action.” The city’s goal of ensuring that “the sound amplification [is] sufficient to reach all listeners within the defined concert-ground,” serves to limit further the discretion of the officials on the scene. . . .

The city’s regulation is also “narrowly tailored to serve a significant governmental interest.” Clark v. Community for Creative Non-Violence, 468 U.S. at 293. Despite respondent’s protestations to the contrary, it can no longer be doubted that government “ha[s] a substantial interest in protecting its citizens from unwelcome noise.” City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 806 (1984) . . . We think it also apparent that the city’s interest in ensuring the sufficiency of sound amplification at bandshell events is a substantial one. The record indicates that inadequate sound amplification has had an adverse affect on the ability of some audiences to hear and enjoy performances at the bandshell. The city enjoys a substantial interest in ensuring the ability of its citizens to enjoy whatever benefits the city parks have to offer, from amplified music to silent meditation. See Community for Creative Non-Violence, 468 U. S. at 296.

The Court of Appeals recognized the city’s substantial interest in limiting the sound emanating from the bandshell. The court concluded, however, that the city’s sound amplification guideline was not narrowly tailored to further this interest, because “it has not [been] shown . . . that the requirement of the use of the city’s sound system and technician was the least intrusive means of regulating the volume.” In the court’s judgment, there were several alternative methods of achieving the desired end that would have been less restrictive of respondent’s First Amendment rights.

The Court of Appeals erred in sifting through all the available or imagined alternative means of regulating sound volume in order to determine whether the city’s solution was “the least intrusive means” of achieving the desired end. This “less-restrictive-alternative analysis . . . has never been a part of the inquiry into the validity of a time, place, and manner regulation.” Regan v. Time, Inc., 468 U. S. 641 (1984). Instead, our cases quite clearly hold that restrictions on the time, place, or manner of protected speech are not invalid “simply because there is some imaginable alternative that might be less burdensome on speech.” United States v. Albertini, 472 U. S. 675, 689 (1985).

The Court of Appeals apparently drew its least-intrusive-means requirement from United States v. O’Brien, 391 U. S. at 377, the case in which we established the standard for judging the validity of restrictions on expressive conduct. The court’s reliance was misplaced, however, for we have held that the O’Brien test, “in the last analysis, is little, if any, different from the standard applied to time, place, or manner restrictions.” Community for Creative Non-Violence, 468 U. S. at 298. Indeed, in Community for Creative Non-Violence, we squarely rejected reasoning identical to that of the court below: “We are unmoved by the Court of Appeals’ view that the challenged regulation is unnecessary, and hence invalid, because there are less speech-restrictive alternatives that could have satisfied the Government interest in preserving park lands. . . . We do not believe . . . that either United States v. O’Brien or the time, place, or manner decisions assign to the judiciary the authority to replace the [parks department] as the manager of the [city’s] parks or endow the judiciary with the competence to judge how much protection of park lands is wise and how that level of conservation is to be attained.” 468 U. S. at 299.

Lest any confusion on the point remain, we reaffirm today that a regulation of the time, place, or manner of protected speech must be narrowly tailored to serve the government’s legitimate, content-neutral interests, but that it need not be the least restrictive or least intrusive means of doing so. Rather, the requirement of narrow tailoring is satisfied “so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.” United States v. Albertini, 472 U. S. at 689. To be sure, this standard does not mean that a time, place, or manner regulation may burden substantially more speech than is necessary to further the government’s legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals. So long as the means chosen are not substantially broader than necessary to achieve the government’s interest, however, the regulation will not be invalid simply because a court concludes that the government’s interest could be adequately served by some less-speech-restrictive alternative. . . .

The city’s second content-neutral justification for the guideline, that of ensuring “that the sound amplification [is] sufficient to reach all listeners within the defined concert-ground,” also supports the city’s choice of regulatory methods. By providing competent sound technicians and adequate amplification equipment, the city eliminated the problems of inexperienced technicians and insufficient sound volume that had plagued some bandshell performers in the past. No doubt this concern is not applicable to respondent’s concerts, which apparently were characterized by more-than-adequate sound amplification. But that fact is beside the point, for the validity of the regulation depends on the relation it bears to the overall problem the government seeks to correct, not on the extent to which it furthers the government’s interests in an individual case. Here, the regulation’s effectiveness must be judged by considering all the varied groups that use the bandshell, and it is valid so long as the city could reasonably have determined that its interests overall would be served less effectively without the sound amplification guideline than with it. Considering these proffered justifications together, therefore, it is apparent that the guideline directly furthers the city’s legitimate governmental interests, and that those interests would have been less well served in the absence of the sound amplification guideline. . . .

The final requirement, that the guideline leave open ample alternative channels of communication, is easily met. Indeed, in this respect the guideline is far less restrictive than regulations we have upheld in other cases, for it does not attempt to ban any particular manner or type of expression at a given place or time.  Rather, the guideline continues to permit expressive activity in the bandshell, and has no effect on the quantity or content of that expression beyond regulating the extent of amplification.