The Burger Court (1969–86)

First Amendment

What were the major First Amendment cases of the Burger Court?

In New York Times Co. v. United States (1971), the Court ruled 6–3 that the government could prohibit the New York Times and the Washington Post from publishing the Pentagon Papers, a government study about U.S. foreign policy in Vietnam and the Vietnam War.

In Cohen v. California (1971), the Court reversed the breach-of-peace conviction of an individual who wore a jacket with the words “F—the Draft” in a courthouse. Justice John Marshall Harlan wrote that “one man’s vulgarity is another’s lyric.”

In Lemon v. Kurtzman (1971), the Court established a three-part test to determine whether a government action violates the Establishment Clause, the part of the First Amendment that provides for separation between church and state. The test required that (1) the action must have a secular purpose; (2) its primary effect must neither advance nor inhibit religion; and (3) there must be no excessive government entanglement.

In Branzburg v. Hayes (1972), the Court ruled 5–4 that the First Amendment does not give reporters the right to refuse to testify about their confidential sources before a grand jury.

In Wisconsin v. Yoder (1972), the Court ruled that Wisconsin cannot require Amish children to attend school beyond the eighth grade on the grounds that doing so would violate the free exercise of religion. The Court held that only “those interests of the highest order and those not otherwise served could overbalance legitimate claims to the free exercise of religion.”

In Miller v. California (1973), the Court refined its test for determining when expression constitutes obscenity. The Court established the three-part Miller test: (1) whether the “average person applying contemporary community standards” would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

In Miami Herald Publishing Co. v. Tornillo (1974), the Court unanimously struck down a Florida “right of reply” statute which required newspapers to give political candidates the right to equal space to respond to political attacks in the newspapers. The Court ruled that such a statute infringed on the newspapers’ “exercise of editorial control and judgment.”

In Buckley v. Valeo (1976), the Court ruled that certain provisions of the Federal Election Campaign Act of 1976, which limited expenditures and contributions to political campaigns, violated the First Amendment. The Court upheld contribution limits but struck down the expenditure limits.

In Young v. American Mini-Theatres (1976), the Court upheld by 5–4 a Detroit ordinance that restricted the locale of adult businesses. “Even within the area of protected speech, a difference in content may require a different governmental response,” the Court ruled.

In Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council (1976), the Court ruled explicitly that commercial speech is a form of speech that deserves a degree of First Amendment protection. The Court invalidated a Virginia law that prohibited the advertisement of prescription drug prices.

In Nebraska Press Association v. Stuart (1976), the Court unanimously struck down a judicial order gagging the press, writing that “prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.”

In Bates v. State Bar of Arizona (1977), the Court ruled 5–4 that truthful attorney advertising was a form of commercial speech deserving of First Amendment protection.

In FCC v. Pacifica (1978), the Court ruled 5–4 that the Federal Communications Commission (FCC) could fine a radio station for broadcasting comedian George Carlin’s “Filthy Words” monologue during daytime hours.

In Central Hudson Gas & Electric Corporation v. Public Service Commission (1980), the Court established a four-part test to determine whether restrictions on commercial speech passed First Amendment review. The Central Hudson test provided that: (1) the speech must not be misleading or involve illegal activity; (2) the government must have a substantial interest in its regulation; (3) the regulation must directly advance the asserted government interest; and (4) the government regulation must be narrowly drawn.

In Richmond Newspapers, Inc. v. Virginia (1980), the Court ruled that the public, including the press, had a First Amendment right to attend criminal trials. The Court established that trial judges may close trial proceedings only after finding that such closure is necessary to ensure a fair trial for the defendant.

In New York v. Ferber (1982), the Court ruled 5–4 that child pornography was not protected by the First Amendment.

In Board of Education v. Pico (1982), the Court ruled that public school officials could not remove books from school library shelves simply because they disliked the ideas found in those books.

In Connick v. Myers (1983), the Court ruled a district attorney did not violate the First Amendment rights of an assistant district attorney who was terminated for circulating a questionnaire critical of office policy and practices. The Court ruled that “when close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer’s judgment is appropriate.”

In Roberts v. United States Jaycees (1984), the Court unanimously ruled that a Minnesota law requiring the U.S. Junior Chamber of Commerce, or Jaycees, to admit women did not violate the group’s First Amendment freedom of association rights. The Court noted that the law “imposes no restrictions on the organization’s ability to exclude individuals with ideologies or philosophies different from those of its existing members.”

In Wallace v. Jaffree (1985), the Court invalidated an Alabama law authorizing a one-minute silent period at the start of each school day “for meditation or voluntary prayer.” The Court found that the law was enacted to endorse religion, thus violating the Establishment Clause.

In City of Renton v. Playtime Theatres, Inc. (1986), the Court ruled that the city of Renton, Washington, could pass a law limiting the location of adult businesses by relying on a study of such businesses and the harmful secondary effects they caused in nearby Seattle.

In Bethel School District v. Fraser (1986), Chief Justice Burger’s last opinion, the Court ruled 7–2 that public school officials could discipline a student for giving a vulgar, sexually-themed speech before the student body. The Court ruled that “surely it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse.”


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