A sentence based on an activity protected by the 1st amendment is constitutionally invalid, but when a sufficient link to criminal activity is shown, the activity is no longer protected. State v. J.E.B., 161 Wis. 2d 655, 469 N.W.2d 192 (Ct. App. 1991). Although music is accorded a presumption of being protected speech, an ordinance prohibiting all unreasonable noise was not an unconstitutionally vague encroachment on free speech. City of Madison v. Baumann, 162 Wis. 2d 660, 470 N.W.2d 296 (1991). An employee’s free speech rights were not violated when the employer’s need for confidentiality and discipline clearly outweighed the employee’s interest in disclosing confidential information. Barnhill v. Board of Regents, 166 Wis. 2d 395, 479 N.W.2d 917 (1992). The 1st amendment rights of inmates are subject to limitation and regulation. Interception and withholding of inter-inmate correspondence was reasonable. Yoder v. Palmeri, 177 Wis. 2d 756, 502 N.W.2d 903 (Ct. App. 1993). Whether a restriction on nude dancing is overbroad depends on whether the ordinance is targeted at curbing only harmful secondary effects of exotic clubs. Fond du Lac County v. Mentzel, 195 Wis. 2d 313, 536 N.W.2d 160 (Ct. App. 1995), 94-1924. The state’s power to ban the sale of alcoholic beverages under the 21st amendment includes the lesser power to ban nude dancing on premises where alcohol is served. Schultz v. City of Cumberland, 195 Wis. 2d 554, 536 N.W.2d 192 (Ct. App. 1995), 94-3106. A zoning ordinance that did not set aside any area where an adult bookstore would be allowed was impermissible. Town of Wayne v. Bishop, 210 Wis. 2d 218, 565 N.W.2d 201 (Ct. App. 1997), 95-2387. A public nudity ordinance will meet a challenge that it is facially overbroad if it is drafted in a manner that addresses the secondary effects of adult entertainment without suffocating protected expression in a real and substantial manner. Lounge Management, Ltd. v. Town of Trenton, 219 Wis. 2d 13, 580 N.W.2d 156 (1998), 96-1853. Obscenity is, and has been, an abuse of the right to speak freely on all subjects under the state constitution. The breadth of protection offered by the Wisconsin Constitution in the context of obscenity is no greater than that afforded by the 1st amendment. County of Kenosha v. C&S Management, Inc., 223 Wis. 2d 373, 588 N.W.2d 236 (1999), 97-0642. When an ordinance regulates 1st amendment activities, the government normally has the burden of defending the regulation beyond a reasonable doubt, but when prior restraints are concerned and the government action at issue is the review of an applicant’s qualifications for a business license, the city does not bear the burden of going to court to effect the denial of a license, nor does it bear the burden of proof once in court. City News & Novelty, Inc. v. City of Waukesha, 231 Wis. 2d 93, 604 N.W.2d 870 (Ct. App. 1999), 97-1504. Unfiled pretrial materials in a civil action between private parties are not public records and neither the public nor the press has either a common law or constitutional right of access to those materials. State ex rel. Mitsubishi Heavy Industries America, Inc. v. Circuit Court, 2000 WI 16, 233 Wis. 2d 1, 605 N.W.2d 868, 99-2810. Only a “true threat” is punishable under statutes criminalizing threats. A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762, 99-1924. But see Counterman v. Colorado, 600 U.S. ___, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023). Purely written speech, even if it fails to cause an actual disturbance, can constitute disorderly conduct, but the state has the burden to prove that the speech is constitutionally unprotected “abusive” conduct. “Abusive” conduct is conduct that is injurious, improper, hurtful, offensive, or reproachful. True threats clearly fall within the scope of this definition. State v. Douglas D., 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, 99-1767. Although the 1st amendment prohibits law enforcement officials from prosecuting protected speech, it does not necessarily follow that schools may not discipline students for such speech. Like law enforcement officials, educators may not punish students merely for expressing unpopular viewpoints, but the 1st amendment must be applied in light of the special characteristics of the school environment. Schools may limit or discipline conduct that for any reason materially disrupts classwork or involves substantial disorder or invasion of the rights of others. State v. Douglas D., 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, 99-1767. Application of the disorderly conduct statute to speech alone is permissible under appropriate circumstances. When speech is not an essential part of any exposition of ideas, when it is utterly devoid of social value, and when it can cause or provoke a disturbance, the disorderly conduct statute can be applicable. State v. A.S., 2001 WI 48, 243 Wis. 2d 173, 626 N.W.2d 712, 99-2317. A county public assembly ordinance that contained a 60-day advance filing requirement, a 45-day processing time period, a prohibition against advertising, promoting, and selling tickets before a license was issued, a required certification by the zoning administrator, and a license fee in excess of $100 per application was not narrowly tailored to achieve a significant government interest and violated the 1st amendment free speech guarantee. Sauk County v. Gumz, 2003 WI App 165, 266 Wis. 2d 758, 669 N.W.2d 509, 02-0204. The exception to protection for “true threats” is not limited to threats directed only at a person or group of individuals, nor is it limited to a threat of bodily harm or death. State v. Robert T., 2008 WI App 22, 307 Wis. 2d 488, 746 N.W.2d 564, 06-2206. In this case, supervisory conditions limiting the defendant’s internet use were not unconstitutionally overbroad and did not impermissibly infringe the defendant’s 1st amendment rights when the conditions were crafted to provide protection for the public, and the defendant had a history of violating similar conditions. The circuit court could reasonably conclude that the defendant’s prior violations of internet conditions raised significant concerns about the need to protect the public and children in light of the defendant’s convictions for using a computer to facilitate a sex crime, child enticement, sexual assault of a child, and child abuse. State v. King, 2020 WI App 66, 394 Wis. 2d 431, 950 N.W.2d 891, 19-1642. The name change prohibition in s. 301.47 (2) (a) does not implicate the right to free speech by infringing expressive conduct. The 1st amendment right to free speech does not encompass the power to compel the state to facilitate a change of a legal name. Producing one’s legal name is properly understood as conduct subject to government regulation, not speech. State v. C.G., 2022 WI 60, 403 Wis. 2d 229, 976 N.W.2d 318, 18-2205. Discussing free speech and the state’s campaign finance law in light of Buckley, 424 U.S. 1 (1976). 65 Atty. Gen. 145. A flag misuse statute was unconstitutional as applied to a flag hung upside down with a peace symbol affixed when the context imbued the display with protected elements of communication. Spence v. Washington, 418 U.S. 405, 94 S. Ct. 2727, 41 L. Ed. 2d 842 (1974). Campaign expenditure limitations unduly restrict political expression. Contribution limits impose serious burdens on free speech only if they are so low as to prevent candidates and political committees from amassing the resources necessary for effective advocacy. Buckley v. Valeo, 424 U.S. 1, 96 S. Ct. 612, 46 L. Ed. 2d 659 (1976). Reversed in part. Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010). See also McConnell v. Federal Election Commission, 540 U.S. 93, 124 S. Ct. 619, 157 L. Ed. 2d 491 (2003); Randall v. Sorrell, 548 U.S. 230, 126 S. Ct. 2479, 165 L. Ed. 2d 482 (2006); Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 127 S. Ct. 2652, 168 L. Ed. 2d 329 (2007); McCutcheon v. Federal Election Commission, 572 U.S. 185, 134 S. Ct. 1434, 188 L. Ed. 2d 468 (2014); Federal Election Commission v. Ted Cruz for Senate, 596 U.S. ___, 142 S. Ct. 1638, 212 L. Ed. 2d 654 (2022). A board of education may not prevent a non-union teacher from speaking on a bargaining issue at an open meeting. City of Madison Joint School District v. WERC, 429 U.S. 167, 97 S. Ct. 421, 50 L. Ed. 2d 376 (1976). The 1st amendment prohibited the prosecution of a newspaper for publishing confidential proceedings of a commission investigating judicial conduct. Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 98 S. Ct. 1535, 56 L. Ed. 2d 1 (1978). The 1st amendment does not guarantee the public’s or media’s right of access to sources of information within government control. Houchins v. KQED, Inc., 438 U.S. 1, 98 S. Ct. 2588, 57 L. Ed. 2d 553 (1978). The press and public have no constitutional right to attend a pretrial suppression hearing when the defendant demands a closed hearing to avoid prejudicial publicity. Gannett Co. v. DePasquale, 443 U.S. 368, 99 S. Ct. 2898, 61 L. Ed. 2d 608 (1979). A public utility had the free speech right to enclose with bills inserts discussing controversial issues of public policy. Consolidated Edison Co. of New York v. Public Service Commission, 447 U.S. 530, 100 S. Ct. 2326, 65 L. Ed. 2d 319 (1980). For restrictions on commercial speech to stand a constitutional challenge, the restriction must not be more extensive than is necessary to serve the government’s interests. Central Hudson Gas & Electric Corp. v. Public Service Commission, 447 U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980). A statute that prohibits placing unstamped mailable matter in any box approved by the U.S. Postal Service does not violate the free speech clause. U.S. Postal Service v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 101 S. Ct. 2676, 69 L. Ed. 2d 517 (1981). An ordinance that placed substantial restrictions on billboards other than those used for onsite commercial advertising violated the free speech clause. Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 101 S. Ct. 2882, 69 L. Ed. 2d 800 (1981). A public university that provided a forum to many student groups but excluded religious student groups violated the principle that state regulation of speech should be content neutral. Widmar v. Vincent, 454 U.S. 263, 102 S. Ct. 269, 70 L. Ed. 2d 440 (1981). There are constitutional limits on the state’s power to prohibit candidates from making promises in the course of an election campaign. Some promises are universally acknowledged as legitimate, indeed indispensable, to decisionmaking in a democracy. Brown v. Hartlage, 456 U.S. 45, 102 S. Ct. 1523, 71 L. Ed. 2d 732 (1982). A school board’s discretion to determine the contents of school libraries may not be exercised in a narrowly partisan or political manner. Board of Education v. Pico, 457 U.S. 853, 102 S. Ct. 2799, 73 L. Ed. 2d 435 (1982). The government’s substantial interest in maintaining the park in the heart of the capital in an attractive condition sustained a regulation against camping or overnight sleeping in public parks. Free speech was not denied. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 104 S. Ct. 3065, 82 L. Ed. 2d 221 (1984). A school district did not violate the free speech clause by disciplining a student for giving an offensively lewd and indecent speech at a school assembly. Bethel School District No. 403 v. Fraser, 478 U.S. 675, 106 S. Ct. 3159, 92 L. Ed. 2d 549 (1986). School administrators may exercise control over style and content of student speech in school-sponsored activities as long as control is reasonably related to “legitimate pedagogical concerns.” Hazelwood School District v. Kuhlmeier, 484 U.S. 260, 108 S. Ct. 562, 98 L. Ed. 2d 592 (1988). The 1st amendment prohibits employment decisions concerning low-level public employees from being based upon political patronage. Rutan v. Republican Party of Illinois, 497 U.S. 62, 110 S. Ct. 2729, 111 L. Ed. 2d 52 (1990). A public indecency statute barring public nudity and requiring dancers to wear pasties and G-strings did not violate the right of free expression. Barnes v. Glen Theatre, Inc., 501 U.S. 560, 111 S. Ct. 2456, 115 L. Ed. 2d 504 (1991). Press freedom does not confer a constitutional right to disregard promises that would otherwise be enforceable under state law. A possible promissory estoppel action for breaching an agreement to keep a source confidential was not barred. Cohen v. Cowles Media Co., 501 U.S. 663, 111 S. Ct. 2513, 115 L. Ed. 2d 586 (1991). A county ordinance requiring permits for all parades, public assemblies, and other private uses of public property that gave the county administrator the power to adjust permit fees to meet police expenses incident to the permitted activity violated the 1st amendment because the ordinance lacked narrowly drawn, reasonable, and definite standards guiding the administrator and because it impermissibly required an analysis of the content of the applicant’s message. Forsyth County v. Nationalist Movement, 505 U.S. 123, 112 S. Ct. 2395, 120 L. Ed. 2d 101 (1992). Exclusion of “fighting words” from free speech protections did not justify a city ordinance banning displays that convey messages of racial, gender, or religious intolerance. A city may not selectively ban fighting words based on the particular idea expressed. R.A.V. v. City of St. Paul, 505 U.S. 377, 112 S. Ct. 2538, 120 L. Ed. 2d 305 (1992). A city ban on newsracks for commercial publications violated the right to free speech when the city failed to establish a “reasonable fit” between its legitimate interest in safety and aesthetics and the ban. City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 113 S. Ct. 1505, 123 L. Ed. 2d 99 (1993). Denial of the use of a school building to a church seeking to exhibit a film when a nonsectarian group would have been allowed the use of the building to show a secular film on the same topic violated the right of free speech. Lamb’s Chapel v. Center Moriches Union Free School District, 508 U.S. 384, 113 S. Ct. 2141, 124 L. Ed. 2d 352 (1993). For a government employee’s speech to be protected, the speech must be on a matter of public concern and the employee’s interest in expressing himself or herself on the matter must outweigh the injury the speech could cause the employer in providing public services through its employees. Waters v. Churchill, 511 U.S. 661, 114 S. Ct. 1878, 128 L. Ed. 2d 686 (1994). See also Burkes v. Klauser, 185 Wis. 2d 308, 517 N.W.2d 503 (1994). The selection of the makeup a parade is entitled to free speech protection. A parade sponsor’s free speech rights include the right to deny a group’s participation who intends to convey a message contrary to the sponsor’s. Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557, 115 S. Ct. 2338, 132 L. Ed. 2d 487 (1995). A state university that funded printing a broad range of student publications but denied funding for a student religious group’s publication violated free speech guarantees and was not excused by the need to comply with the establishment of religion clause. Rosenberger v. Rector & Visitors, 515 U.S. 819, 115 S. Ct. 2510, 132 L. Ed. 2d 700 (1995). As with government employees whose employment may not be terminated for exercising 1st amendment rights, independent contractors may not have their government contracts terminated for refusing to support a political party or its candidates or for exercising free speech rights. Board of County Commissioners v. Umbehr, 518 U.S. 668, 116 S. Ct. 2342, 135 L. Ed. 2d 843 (1996). See also O’Hare Truck Service, Inc. v. City of Northlake, 518 U.S. 712, 116 S. Ct. 2353, 135 L. Ed. 2d 874 (1996). Assessments against commodity producers under an agricultural marketing order to pay for the costs of generic advertising did not violate the producers’ free speech rights. Glickman v. Wileman Brothers & Elliott, Inc., 521 U.S. 457, 117 S. Ct. 2130, 138 L. Ed. 2d 585 (1997). A public broadcasting network’s decision to exclude from a televised debate an independent political candidate who had little public support was a reasonable, viewpoint-neutral exercise of journalistic discretion. Arkansas Educational Television Commission v. Forbes, 523 U.S. 666, 118 S. Ct. 1633, 140 L. Ed. 2d 875 (1998). It is a violation of the 4th amendment for police to bring members of the media or other third persons into a home during the execution of a warrant when the presence of the third persons in the home is not in aid of the execution of the warrant. Wilson v. Layne, 526 U.S. 603, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999). The financing of student organizations through mandatory student fees does not violate the 1st amendment if viewpoint neutrality is the operational principal. Board of Regents v. Southworth, 529 U.S. 217, 120 S. Ct. 1346, 146 L. Ed. 2d 193 (2000). An ordinance prohibiting public nudity was valid when the government’s asserted interest was combating the secondary effect associated with adult entertainment and was unrelated to suppression of the erotic message of nude dancing. City of Erie v. Pap’s A.M., 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265 (2000). A statute that makes it unlawful within regulated areas near a health care facility for any person to knowingly approach within eight feet of another person, without that person’s consent, for the purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral protest, education, or counseling with such other person is constitutional. Hill v. Colorado, 530 U.S. 703, 120 S. Ct. 2480, 147 L. Ed. 2d 597 (2000). The 1st amendment protects speech that discloses the content of an illegally intercepted telephone call when that speech was by a person not a party to the interception. Bartnicki v. Vopper, 532 U.S. 514, 121 S. Ct. 1753, 149 L. Ed. 2d 787 (2001). Speech discussing otherwise permissible subjects cannot be excluded from a limited public forum, such as a school, on the grounds that it is discussed from a religious viewpoint. A club’s meetings, held after school, not sponsored by the school, and open to any student who obtained parental consent, did not raise an establishment of religion violation that could be raised to justify content-based discrimination against the club. Good News Club v. Milford Central School, 533 U.S. 98, 121 S. Ct. 2093, 150 L. Ed. 2d 151 (2001). A village ordinance making it a misdemeanor to engage in door-to-door advocacy without first registering with the village and obtaining a permit violated the 1st amendment. Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton, 536 U.S. 150, 122 S. Ct. 2080, 153 L. Ed. 2d 205 (2002). A state, consistent with the 1st amendment, may ban cross burning carried out with the intent to intimidate, but a Virginia statute treating any cross burning as prima facie evidence of intent to intimidate was unconstitutional. Instead of prohibiting all intimidating messages, a state may choose to regulate this subset of intimidating messages in light of cross burnings’ long and pernicious history as a signal of impending violence. Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536, 155 L. Ed. 2d 535 (2003). Regulation of charitable subscriptions, barring fees in excess of a prescribed level, effectively imposes prior restraints on fundraising, and is incompatible with the 1st amendment. However, any and all reliance on the percentage of charitable donations fundraisers retain for themselves is not prohibited. While bare failure to disclose that information to potential donors does not establish fraud, when nondisclosure is accompanied by intentionally misleading statements designed to deceive the listener, a fraud claim is permissible. Illinois ex rel. Madigan v. Telemarketing Associates, Inc., 538 U.S. 600, 123 S. Ct. 1829, 155 L. Ed. 2d 793 (2003). The 1st amendment requires that an adult business licensing scheme assure prompt judicial review of an administrative decision denying a license. An ordinance providing that the city’s final decision may be appealed to state court pursuant to state rules of civil procedure did not violate the 1st amendment. City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774, 124 S. Ct. 2219, 159 L. Ed. 2d 84 (2004). While a governmental employer may impose certain restraints on the speech of its employees that would be unconstitutional if applied to the general public, the courts have recognized the right of employees to speak on matters unrelated to their employment and to speak on matters of public concern. Because a police officer’s off-duty activities were not related to a matter of public concern and were designed to exploit his employer’s image, they were not protected under the 1st amendment. City of San Diego v. Roe, 543 U.S. 77, 125 S. Ct. 521, 160 L. Ed. 2d 410 (2004). When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for 1st amendment purposes, and the constitution does not insulate their communications from employer discipline. Restricting speech that owes its existence to a public employee’s professional responsibilities does not infringe any liberties the employee might have enjoyed as a private citizen. It simply reflects the exercise of employer control over what the employer itself has commissioned or created. Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951, 164 L. Ed. 2d 689 (2006). Enforcement of a rule adopted by a statewide membership corporation organized to regulate interscholastic sports among its members that prohibited high school coaches from recruiting middle school athletes did not violate the 1st amendment. There is a difference of constitutional dimension between rules prohibiting appeals to the public at large and rules prohibiting direct, personalized communication in a coercive setting. Bans on direct solicitations are more akin to a conduct regulation than a speech restriction, but restrictions are limited to conduct that is inherently conducive to overreaching and other forms of misconduct. Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 127 S. Ct. 2489, 168 L. Ed. 2d 166 (2007). Schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use. School officials did not violate the 1st amendment by confiscating a pro-drug banner and suspending the student responsible for it. Morse v. Frederick, 551 U.S. 393, 127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007). Offers to provide or requests to obtain child pornography are categorically excluded from the 1st amendment. Offers to deal in illegal products or otherwise engage in illegal activity do not acquire 1st amendment protection when the offeror is mistaken about the factual predicate of his or her offer. Impossibility of completing the crime because the facts were not as the defendant believed is not a defense. United States v. Williams, 553 U.S. 285, 128 S. Ct. 1830, 170 L. Ed. 2d 650 (2008). The free speech clause of the 1st amendment restricts government regulation of private speech; it does not regulate government speech. Although a park is a traditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the free speech clause of the 1st amendment. Pleasant Grove City v. Summum, 555 U.S. 460, 129 S. Ct. 1125, 172 L. Ed. 2d 853 (2009). The government may regulate corporate political speech through disclaimer and disclosure requirements, but it may not suppress that speech altogether. Federal law prohibiting corporations and unions from using their general treasury funds to make independent expenditures for speech defined as an “electioneering communication” or for speech expressly advocating the election or defeat of a candidate is unconstitutional. Citizens United v. Federal Election Commission, 558 U.S. 310, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010).
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wisconsinconstitution
/constitution/wi/000229/000008/000041
section
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