With a few exceptions, the U.S. Constitution prohibits a government employer from discharging or demoting an employee because the employee supports a particular political candidate. When an employer demotes an employee out of a desire to prevent the employee from engaging in political activity, the employee is entitled to challenge that unlawful action under the 1st amendment and 42 USC 1983—even if the employer makes a factual mistake about the employee’s behavior. A discharge or demotion based upon an employer’s belief that the employee has engaged in protected activity can cause the same kind, and degree, of constitutional harm whether that belief does or does not rest upon a factual mistake. Heffernan v. City of Paterson, 578 U.S. 266, 136 S. Ct. 1412, 194 L. Ed. 2d 508 (2016).

A North Carolina statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites, violated the 1st amendment. A fundamental principle of the 1st amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. To foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of 1st amendment rights. Packingham v. North Carolina, 582 U.S. 98, 137 S. Ct. 1730, 198 L. Ed. 2d 273 (2017).

Minnesota’s political apparel ban lacked objective, workable standards required for a reasonable content-based restriction on speech in a nonpublic forum and therefore violated the 1st amendment. Minnesota Voters Alliance v. Mansky, 585 U.S. ___, 138 S. Ct. 1876, 201 L. Ed. 2d 201 (2018).

The 1st amendment prohibits government officials from retaliating against individuals for engaging in protected speech. Lozman v. City of Riviera Beach, 585 U.S. ___, 138 S. Ct. 1945, 201 L. Ed. 2d 342 (2018). But see Nieves v. Bartlett, 587 U.S. ___, 139 S. Ct. 1715, 204 L. Ed. 2d 1 (2019); Houston Community College System v. Wilson, 595 U.S. ___, 142 S. Ct. 1253, 212 L. Ed. 2d 303 (2022).

Under Illinois law, if a public-sector collective-bargaining agreement includes an agency-fee provision and the union certifies to the employer the amount of the fee, that amount is automatically deducted from a nonmember’s wages. No form of employee consent is required. This procedure violates the 1st amendment and cannot continue. Neither an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment, unless the employee affirmatively consents to pay. By agreeing to pay, nonmembers are waiving their 1st amendment rights, and such a waiver cannot be presumed. Janus v. AFSCME, 585 U.S. ___, 138 S. Ct. 2448, 201 L. Ed. 2d 924 (2018).

The free speech clause of the 1st amendment constrains governmental actors and protects private actors. To draw the line between governmental and private, the court applies the state-action doctrine. Under that doctrine, a private entity may be considered a state actor when it exercises a function “traditionally exclusively reserved to the state.” Operation of public access channels on a cable system is not a traditional, exclusive public function. In operating the public access channels, the plaintiff in this case was a private actor, not a state actor, and therefore was not subject to 1st amendment constraints on its editorial discretion. Manhattan Community Access Corp. v. Halleck, 587 U.S. ___, 139 S. Ct. 1921, 204 L. Ed. 2d 405 (2019).

The special characteristics that give schools additional license to regulate student speech do not always disappear when a school regulates speech that takes place off campus. However, three features of off-campus speech often distinguish schools’ efforts to regulate that speech from their efforts to regulate on-campus speech. Those features diminish the strength of the unique educational characteristics that might call for special 1st amendment leeway. Mahanoy Area School District v. B.L., 594 U.S. ___, 141 S. Ct. 2038, 210 L. Ed. 2d 403 (2021).

A rule that holds that a regulation cannot be content neutral if it requires reading the sign at issue is too extreme an interpretation of U.S. Supreme Court precedent. A city regulation of signs that advertise things that are not located on the same premises as the sign or that direct people to offsite locations, known as off-premises signs, is facially content neutral and therefore is not subject to strict scrutiny under the free speech clause of the 1st amendment. City of Austin v. Reagan National Advertising of Austin, LLC, 596 U.S. ___, 142 S. Ct. 1464, 212 L. Ed. 2d 418 (2022).

When a government does not speak for itself, it may not exclude speech based on religious viewpoint; doing so constitutes impermissible viewpoint discrimination. In this case, the city’s program that allowed private groups to request use of the flagpole outside city hall to raise flags of their choosing did not express government speech. As a result, the city’s refusal to let the applicants fly their Christian flag based on its religious viewpoint violated the free speech clause of the 1st amendment and did not raise an establishment of religion violation. Shurtleff v. City of Boston, 596 U.S. ___, 142 S. Ct. 1583, 212 L. Ed. 2d 621 (2022).

The expressive activity of a high school football coach who knelt at midfield after games to offer a quiet prayer of thanks during a period when school employees were free to attend to personal matters and while students were otherwise occupied was protected by the free exercise and free speech clauses of the 1st amendment, and the establishment clause did not require or allow the school district to single out the coach’s private religious speech for special disfavor. The establishment clause does not compel the government to purge from the public sphere anything an objective observer could reasonably infer endorses or partakes of the religious. Kennedy v. Bremerton School District, 597 U.S. ___, 142 S. Ct. 2407, 213 L. Ed. 2d 755 (2022).

True threats of violence are outside the bounds of 1st amendment protection and punishable as crimes, but the 1st amendment still requires proof that a defendant has some subjective understanding of the threatening nature of the statements. A mental state of recklessness is sufficient. In a true-threats case, a state must show that the defendant consciously disregarded a substantial risk that the defendant’s communications would be viewed as threatening violence. Counterman v. Colorado, 600 U.S. ___, 143 S. Ct. 2106, 216 L. Ed. 2d 775 (2023).

If a state law forbidding businesses from engaging in discrimination when they sell goods and services to the public is used to compel an individual to create speech the individual does not believe, that course violates the free speech clause of the 1st amendment. In this case, the parties stipulated that the plaintiff sought to engage in expressive activity by designing wedding websites, and thus the state could not force the plaintiff to convey messages inconsistent with the plaintiff’s belief that marriage should be reserved to unions between one man and one woman. 303 Creative LLC v. Elenis, 600 U.S. ___, 143 S. Ct. 2298, 216 L. Ed. 2d 1131 (2023).

Generally, the 1st amendment protects a person from being removed from public employment for purely political reasons. However, exemptions from the patronage dismissal ban are allowed on the theory that a newly elected administration has a legitimate interest in implementing the broad policies it was elected to implement without interference from disloyal employees. Pleva v. Norquist, 195 F.3d 905 (1999).

With one exception, the university’s system, as required by Southworth, for distributing compelled fees collected from university students to student groups that delegates funding decisions to the student government was subject to sufficient limits. Southworth v. Board of Regents, 307 F.3d 566 (2002).

A regulation prohibiting the sale of liquor on the premises of adult entertainment establishments is constitutional if: 1) the state is regulating pursuant to a legitimate governmental power; 2) the regulation does not completely prohibit adult entertainment; 3) the regulation is aimed at combating the negative effects caused by the establishments, not the suppression of expression; and 4) the regulation is designed to serve a substantial governmental interest, is narrowly tailored, and reasonable avenues of communication remain; or alternatively the regulation furthers substantial governmental interests and the restriction is no greater than is essential to further that interest. Ben’s Bar, Inc. v. Village of Somerset, 316 F.3d 702 (2003).

Under Tinker, 393 U.S. 503 (1969), restrictions on student speech are constitutionally permissible if school officials reasonably forecast that the speech would materially and substantially disrupt the work and discipline of the school or invade the rights of others. Although that test is deferential to school officials and is applied in light of the special characteristics of the school environment, it is stricter than the test for speech restrictions in a nonpublic forum. In this case, the Tinker test applied to the student’s claim challenging the school’s enforcement of its policy barring clothing that depicts firearms. N.J. v. Sonnabend, 37 F.4th 412 (2022).

A town board was restrained from discharging its police chief until the issue of impermissible consideration of the chief’s political activities was resolved. Kuhlmann v. Bloomfield Township, 521 F. Supp. 1242 (1981).

Content-neutral size restrictions placed on a banner proclaiming “Church/State — Separate,” after it was hung in the state capitol rotunda, served the state’s significant interest in protecting the capitol from visual degradation. That a Christmas tree and Menorah in the rotunda were allowed to remain without restriction did not prove content-based discrimination. Gaylor v. Thompson, 939 F. Supp. 1363 (1996).

Although the 1st amendment establishment clause neither compels nor authorizes the university to categorically exclude funding of activities related to worship, proselytizing, and sectarian religious instruction with segregated fees, the university may nevertheless be able to exclude some or all of the activities to which it objects. The university is free to enact viewpoint neutral rules restricting access to segregated fees, for it may create what is tantamount to a limited public forum if the principles of viewpoint neutrality are respected. However, before excluding an activity from the segregated fee forum pursuant to a content-based distinction, the university must explain specifically why that particular activity, viewed as a whole, is outside the forum’s purposes. Roman Catholic Foundation, UW-Madison, Inc. v. Regents of University of Wisconsin System, 578 F. Supp. 2d 1121 (2008).

Affirmed. Badger Catholic, Inc. v. Walsh, 620 F.3d 775 (2010).

A public employer may choose not to hire a particular applicant for a nonpartisan position because of the applicant’s history of partisan political activity. This is an appropriate exception to the general rule that public employers may not make employment decisions on the basis of protected 1st amendment activities. However, an applicant’s political affiliation and the applicant’s history of partisan activities are two distinct considerations. Albers-Anders v. Pocan, 905 F. Supp. 2d 944 (2012).

The 1st amendment accommodates reasonable restrictions on the time, place, and manner of speech as long as they are: 1) content-neutral; 2) narrowly tailored to serve a significant government interest; and 3) leave open ample alternative channels for communication of the information. Even content-neutral regulations may not condition speech on obtaining a license or permit from a government official in that official’s boundless discretion. An acceptable regulation must contain adequate standards to guide the official’s decision and render it subject to effective judicial review. Candy Lab Inc. v. Milwaukee County, 266 F. Supp. 3d 1139 (2017).

Constitutional Law: Testimonial Privilege of Newsmen. Baxter. 55 MLR 184 (1972).

Constitutional Law: Academic Freedom: Some Tentative Guidelines. Keith. 55 MLR 379 (1972).

Constitutional Law—First Amendment—Protection of Commercial Speech. Lohmann. 60 MLR 138 (1976).

Zurcher: Third Party Searches and Freedom of the Press. Cantrell. 62 MLR 35 (1978).

A Newspaper Cannot Constitutionally Be Compelled to Publish a Paid Advertisement Designed to Be an Editorial Response to Previous Newspaper Reports. Layden. 64 MLR 361 (1980).

Granting Access to Private Shopping Center Property for Free Speech Purposes on the Basis of a State Constitutional Provision Does Not Violate the Shopping Center Owner’s Federal Constitutional Property Rights or First Amendment Free Speech Rights. Munroe. 64 MLR 507 (1981).