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employee who had criticized his employers. 462 Balancing, however, was not used when the Court struck down restric- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00092 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1105 463 Lamont v. Postmaster General, 381 U.S. 301 (1965). 464 E.g., Cox v. Louisiana, 379 U.S. 536 and 559 (1965) (2 cases); Edwards v. South Carolina, 372 U.S. 229 (1963); Adderley v. Florida, 385 U.S. 39 (1966); Brown v. Louisiana, 383 U.S. 131 (1966). But see Lloyd Corp. v. Tanner, 407 U.S. 551 (1972), where balancing reappears and in which other considerations overbalance the First Amendment claims. 465 389 U.S. 258 (1967). 466 Subversive Activities Control Act of 1950, § 5(a)(1)(D), 64 Stat. 992, 50 U.S.C. § 784(a)(1)(D). 467 United States v. Robel, 389 U.S. 258, 265 (1967). 468 389 U.S. at 265-68. 469 389 U.S. at 268 n.20. tions on receipt of materials mailed from Communist countries, 463 and it was not used in cases involving picketing, pamphleteering, and demonstrating in public places. 464 But the only case in which it was specifically rejected involved a statutory regulation like those that had given rise to the test in the first place. United States v. Robel 465 held invalid under the First Amendment a statute which made it unlawful for any member of an organization which the Subversive Activities Control Board had ordered to register to work in a defense establishment. 466 Although Chief Justice Warren for the Court asserted that the vice of the law was that its proscription operated per se ‘‘without any need to establish that an individual’s association poses the threat feared by the Government in proscribing it,’’ 467 the rationale of the decision was not clear and present danger but the existence of less restrictive means by which the governmental interest could be accomplished. 468 In a concluding footnote, the Court said: ‘‘It has been suggested that this case should be decided by ‘balancing’ the governmental interests . . . against the First Amendment rights asserted by the appellee. This we decline to do. We recognize that both interests are substantial, but we deem it inappropriate for this Court to label one as being more important or more substantial than the other. Our inquiry is more circumscribed. Faced with a clear conflict between a federal statute enacted in the interests of national security and an individual’s exercise of his First Amendment rights, we have confined our analysis to whether Congress has adopted a constitutional means in achieving its concededly legitimate legislative goal. In making this determination we have found it necessary to measure the validity of the means adopted by Congress against both the goal it has sought to achieve and the specific prohibitions of the First Amendment. But we have in no way ‘balanced’ those respective interests. We have ruled only that the Constitution requires that the conflict between congressional power and individual rights be accommodated by legislation drawn more narrowly to avoid the conflict.’’ 469 VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00093 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1106 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 470 United States v. Carolene Products Co., 304 U.S. 144, 152 n.4 (1938). 471 319 U.S. 105, 115 (1943). See also West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 639 (1943). 472 Thomas v. Collins, 323 U.S. 516, 529–30 (1945). 473 336 U.S. 77, 89 (1949) (collecting cases with critical analysis). 474 Konigsberg v. State Bar of California, 366 U.S. 36, 56 (1961) (dissenting opinion). See also Braden v. United States, 365 U.S. 431, 441 (1961) (dissenting); Wilkinson v. United States, 365 U.S. 399, 422 (1961) (dissenting); Uphaus v. Wyman, 364 U.S. 388, 392 (1960) (dissenting); Barenblatt v. United States, 360 U.S. 109, 140 (1959) (dissenting); American Communications Ass’n v. Douds, 339 U.S. 382, 445 (1950); Communist Party v. SACB, 367 U.S. 1, 137 (1961) (dissenting); Beauharnais v. Illinois, 343 U.S. 250, 267 (1952) (dissenting); New York Times Co. v. Sullivan, 376 U.S. 254, 293 (1964) (concurring); New York Times Co. v. United States, 403 U.S. 713, 714 (1971) (concurring). For Justice Douglas’ position, see New York Times Co. v. United States, 403 U.S. at 720 (concurring); Roth v. United States, 354 U.S. 476, 508 (1957) (dissenting); Brandenburg v. Ohio, 395 U.S. 444, 450 (1969) (concurring). The ‘‘Absolutist’’ View of the First Amendment, With a Note on ‘‘Preferred Position’’.—During much of this period, the opposition to the balancing test was led by Justices Black and Douglas, who espoused what may be called an ‘‘absolutist’’ position, denying the government any power to abridge speech. But the beginnings of such a philosophy may be gleaned in much earlier cases in which a rule of decision based on a preference for First Amendment liberties was prescribed. Thus, Chief Justice Stone in his famous Carolene Products ‘‘footnote 4’’ suggested that the ordinary presumption of constitutionality that prevailed when economic regulation was in issue might very well be reversed when legislation that restricted ‘‘those political processes which can ordinarily be expected to bring about repeal of undesirable legislation’’ is called into question. 470 Then in Murdock v. Pennsylvania, 471 in striking down a license tax on religious colporteurs, the Court remarked that ‘‘[f]reedom of press, freedom of speech, freedom of religion are in a preferred position.’’ Two years later the Court indicated that its decision with regard to the constitutionality of legislation regulating individuals is ‘‘delicate . . . [especially] where the usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment. . . . That priority gives these liberties a sanctity and a sanction not permitting dubious intrusions.’’ 472 The ‘‘preferred-position’’ language was sharply attacked by Justice Frankfurter in Kovacs v. Cooper, 473 and it dropped from the opinions, although its philosophy did not. Justice Black expressed his position in many cases but his Konigsberg dissent contains one of the lengthiest and clearest expositions of it. 474 That a particular governmental regulation abridged speech or deterred it was to him ‘‘sufficient to render the action of the State unconstitutional’’ because he did not subscribe ‘‘to the VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00094 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1107 475 Konigsberg v. State Bar of California, 366 U.S. 36, 60–61 (1961). 476 Bates v. City of Little Rock, 361 U.S. 516, 528 (1960) (concurring). 477 Cox v. Louisiana, 379 U.S. 559, 578, 581 (1965) (dissenting). 478 These cases involving important First Amendment issues are dealt with infra, under ‘‘Speech Plus.’’ See Brown v. Louisiana, 383 U.S. 131 (1966); Adderley v. Florida, 385 U.S. 39 (1966). 479 The vagueness doctrine generally requires that a statute be precise enough to give fair warning to actors that contemplated conduct is criminal, and to provide adequate standards to enforcement agencies, factfinders, and reviewing courts. See, e.g., Connally v. General Construction Co., 269 U.S. 385 (1926); Lanzetta v. New Jersey, 306 U.S. 451 (1939); Colautti v. Franklin, 439 U.S. 379 (1979); Village of Hoffman Estates v. Flipside, 455 U.S. 489 (1982). 480 E.g., Cramp v. Board of Pub. Instruction, 368 U.S. 278 (1961); Baggett v. Bullitt, 377 U.S. 360 (1964); Keyishian v. Board of Regents, 385 U.S. 589 (1967). doctrine that permits constitutionally protected rights to be ‘balanced’ away whenever a majority of this Court thinks that a State might have an interest sufficient to justify abridgment of those freedoms . . . I believe that the First Amendment’s unequivocal command that there shall be no abridgment of the rights of free speech and assembly shows that the men who drafted our Bill of Rights did all the ‘balancing’ that was to be done in this field.’’ 475 As he elsewhere wrote: ‘‘First Amendment rights are beyond abridgment either by legislation that directly restrains their exercise or by suppression or impairment through harassment, humiliation, or exposure by government.’’ 476 But the ‘‘First and Fourteenth Amendments . . . take away from government, state and federal, all power to restrict freedom of speech, press and assembly where people have a right to be for such purpose. This does not mean however, that these amendments also grant a constitutional right to engage in the conduct of picketing or patrolling whether on publicly owned streets or on privately owned property.’’ 477 Thus, in his last years on the Court, the Justice, while maintaining an ‘‘absolutist’’ position, increasingly drew a line between ‘‘speech’’ and ‘‘conduct which involved communication.’’ 478 Of Other Tests and Standards: Vagueness, Overbreadth, Least Restrictive Means, and Others.—In addition to the foregoing tests, the Court has developed certain standards that are exclusively or primarily applicable in First Amendment litigation. Some of these, such as the doctrines prevalent in the libel and obscenity areas, are very specialized, but others are not. Vagueness is a due process vice which can be brought into play with regard to any criminal and many civil statutes, 479 but as applied in areas respecting expression it also encompasses concern that protected conduct will be deterred out of fear that the statute is capable of application to it. Vagueness has been the basis for voiding numerous such laws, especially in the fields of loyalty oaths, 480 obscen- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00095 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1108 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. See also Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991) (attorney discipline, extrajudicial statements). 481 E.g., Winters v. New York, 333 U.S. 507 (1948); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952); Interstate Circuit v. City of Dallas, 390 U.S. 676 (1968). 482 E.g., Cantwell v. Connecticut, 310 U.S. 296 (1940); Gregory v. City of Chicago, 394 U.S. 111 (1969); Coates v. City of Cincinnati, 402 U.S. 611 (1971). See also Smith v. Goguen, 415 U.S. 566 (1974) (flag desecration law); Lewis v. City of New Orleans, 415 U.S. 130 (1974) (punishment of opprobrious words); Hynes v. Mayor of Oradell, 425 U.S. 610 (1976) (door-to-door canvassing). For an evident narrowing of standing to assert vagueness, see Young v. American Mini Theatres, 427 U.S. 50, 60 (1976). 483 NAACP v. Button, 371 U.S. 415, 432–33 (1963). 484 E.g., Kunz v. New York, 340 U.S. 290 (1951); Aptheker v. Secretary of State, 378 U.S. 500 (1964); United States v. Robel, 389 U.S. 258 (1967); Zwickler v. Koota, 389 U.S. 241 (1967); Lewis v. City of New Orleans, 415 U.S. 130 (1974). However, the Court’s dissatisfaction with the reach of the doctrine, see, e.g., Younger v. Harris, 401 U.S. 37 (1971), resulted in a curbing of it in Broadrick v. Oklahoma, 413 U.S. 601 (1973), a 5–to–4 decision, in which the Court emphasized ‘‘that facial overbreadth adjudication is an exception to our traditional overbreadth adjudication,’’ and held that where conduct and not merely speech is concerned ‘‘the overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep,’’ Id. at 615. The opinion of the Court and Justice Brennan’s dissent, id. at 621, contain extensive discussion of the doctrine. Other restrictive decisions are Arnett v. Kennedy, 416 U.S. 134, 158–64 (1974); Parker v. Levy, 417 U.S. 733, 757–61 (1974); and New York v. Ferber, 458 U.S. 747, 766–74 (1982). Nonetheless, the doctrine continues to be used across a wide spectrum of First Amendment cases. Bigelow v. Virginia, 421 U.S. 809, 815–18 (1975); Erznoznik v. City of Jacksonville, 422 U.S. 205 (1975); Doran v. Salem Inn, 422 U.S. 922, 932– 34 (1975); Village of Schaumburg v. Citizens for a Better Environment, 444 U.S. 620, 633–39 (1980); Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947 (1984) (charitable solicitation statute placing 25% cap on fundraising expenditures); City of Houston v. Hill, 482 U.S. 451 (1987) (city ordinance making it unlawful to ‘‘oppose, molest, abuse, or interrupt’’ police officer in performance of duty); Board of Airport Comm’rs v. Jews for Jesus, 482 U.S. 569 (1987) (resolution banning all ‘‘First Amendment activities’’ at airport). 485 Shelton v. Tucker, 364 U.S. 479 (1960); United States v. Robel, 389 U.S. 258 (1967); Schneider v. Smith, 390 U.S. 17 (1968); Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748 (1976); Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 564, 565, 569–71 (1980). ity, 481 and restrictions on public demonstrations. 482 It is usually combined with the overbreadth doctrine, which focuses on the need for precision in drafting a statute that may affect First Amendment rights; 483 an overbroad statute that sweeps under its coverage both protected and unprotected speech and conduct will normally be struck down as facially invalid, although in a non-First Amendment situation the Court would simply void its application to protected conduct. 484 Similarly, and closely related at least to the overbreadth doctrine, the Court has insisted that when the government seeks to carry out a permissible goal and it has available a variety of effective means to the given end, it must choose the measure that least interferes with rights of expression. 485 Also, the Court has insisted that regulatory measures that bear on expression must relate to the achievement of the purpose asserted as VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00096 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1109 486 Bates v. City of Little Rock, 361 U.S. 516, 525 (1960); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 464 (1958); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961). See also Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 564, 565, 569 (1980). 487 Thus, obscenity, by definition, is outside the coverage of the First Amendment, Roth v. United States, 354 U.S. 476 (1957); Paris Adult Theatre I v. Slaton, 413 U.S. 49 (1973), as are malicious defamation, New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and ‘‘fighting words,’’ Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). The Court must, of course, decide in each instance whether the questioned expression, as a matter of definition, falls within one of these or another category. See, e.g., Jenkins v. Georgia, 418 U.S. 153 (1974); Gooding v. Wilson, 405 U.S. 518 (1972). 488 E.g., the multifaceted test for determining when commercial speech is protected, Central Hudson Gas & Electric Co. v. PSC, 447 U.S. 557, 566 (1980); the standard for determining when expressive conduct is protected, United States v. O’Brien, 391 U.S. 367, 377 (1968); the elements going into decision with respect to access at trials, Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 606–10 (1982); and the test for reviewing press ‘‘gag orders’’ in criminal trials, Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 562–67 (1976), are but a few examples. 489 395 U.S. 444 (1969). their justification. 486 The prevalence of these standards and tests in this area appear to indicate that, while ‘‘preferred position’’ may have disappeared from the Court’s language, it has not disappeared from its philosophy. Is There a Present Test?.—Complexities inherent in the myriad varieties of expression encompassed by the First Amendment guarantees of speech, press, and assembly probably preclude any single standard. For certain forms of expression for which protection is claimed, the Court engages in ‘‘definitional balancing’’ to determine that those forms are outside the range of protection. 487 Balancing is in evidence to enable the Court to determine whether certain covered speech is entitled to protection in the particular context in which the question arises. 488 Use of vagueness, overbreadth, and less intrusive means may very well operate to reduce the occasions when questions of protection must be answered squarely on the merits. What is observable, however, is the reemergence, at least in a tentative fashion, of something like the clear and present danger standard in advocacy cases, which is the context in which it was first developed. Thus, in Brandenburg v. Ohio, 489 a conviction under a criminal syndicalism statute of advocating the necessity or propriety of criminal or terrorist means to achieve political change was reversed. The prevailing doctrine developed in the Communist Party cases was that ‘‘mere’’ advocacy was protected but that a call for concrete, forcible action even far in the future was not protected speech and knowing membership in an organization calling for such action was not protected associa- VerDate Apr<15>2004 08:57 Jun 25, 2004 Jkt 077500 PO 00000 Frm 00097 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1110 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 490 Yates v. United States, 354 U.S. 298 (1957); Scales v. United States, 367 U.S. 203 (1961); Noto v. United States, 367 U.S. 290 (1961). And see Bond v. Floyd, 385 U.S. 116 (1966); Watts v. United States, 394 U.S. 705 (1969). 491 395 U.S. at 447. Subsequent cases relying on Brandenburg indicate the standard has considerable bite, but do not elaborate sufficiently enough to begin filling in the outlines of the test. Hess v. Indiana, 414 U.S. 105 (1973); NAACP v. Claiborne Hardware Co., 458 U.S. 886, 928 (1982). But see Haig v. Agee, 453 U.S. 280, 308–09 (1981). 492 In Stewart v. McCoy, 123 S. Ct. 468 (2002), Justice Stevens, in a statement accompanying a denial of certiorari, wrote that, while Brandenburg’s ‘‘requirement that the consequence be ‘imminent’ is justified with respect to mere advocacy, the same justification does not necessarily adhere to some speech that performs a teaching function. . . . Long range planning of criminal enterprises – which may include oral advice, training exercises, and perhaps the preparation of written materials – involve speech that should not be glibly characterized as mere ‘advocacy’ and certainly may create significant public danger. Our cases have not yet considered whether, and if so to what extent, the First Amendment protects such instructional speech.’’ 493 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943); Cantwell v. Connecticut, 310 U.S. 296, 303–04 (1940); United States v. Ballard, 322 U.S. 78 (1944); Torcaso v. Watkins, 367 U.S. 488 (1961); American Communications Ass’n v. Douds, 339 U.S. 382, 408 (1950); Bond v. Floyd, 385 U.S. 116, 132 (1966); Speiser v. Randall, 357 U.S. 513 (1958); Baird v. State Bar of Arizona, 401 U.S. 1, 5–6 (1971), and id. at 9–10 (Justice Stewart concurring). 494 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943). 495 Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). tion, regardless of the probability of success. 490 In Brandenburg, however, the Court reformulated these and other rulings to mean ‘‘that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.’’ 491 The Court has not revisited these issues since Brandenburg, so the long-term significance of the decision is yet to be determined. 492 Freedom of Belief The First Amendment does not expressly speak in terms of liberty to hold such beliefs as one chooses, but in both the religion and the expression clauses, it is clear, liberty of belief is the foundation of the liberty to practice what religion one chooses and to express oneself as one chooses. 493 ‘‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.’’ 494 Speaking in the context of religious freedom, the Court at one point said that, while the freedom to act on one’s beliefs could be limited, the freedom to believe what one will ‘‘is absolute.’’ 495 But matters are not so simple. VerDate Aug<10>2004 12:54 Aug 16, 2004 Jkt 077500 PO 00000 Frm 00098 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. 1111 496 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). 497 310 U.S. 586 (1940). 498 310 U.S. at 594. Justice Stone alone dissented, arguing that the First Amendment religion and speech clauses forbade coercion of ‘‘these children to express a sentiment which, as they interpret it, they do not entertain, and which violates their deepest religious convictions.’’ Id. at 601. 499 West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943). Justices Roberts and Reed simply noted their continued adherence to Gobitis. Id. at 642. Justice Frankfurter dissented at some length, denying that the First Amendment authorized the Court ‘‘to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chosen.’’ Id. at 646, 647. 500 319 U.S. at 631, 633. 501 319 U.S. at 633-34. Barnette was the focus of the Court’s decision in Wooley v. Maynard, 430 U.S. 705 (1977), voiding the state’s requirement that motorists display auto license plates bearing the motto ‘‘Live Free or Die.’’ Acting on the complaint of a Jehovah’s Witness, the Court held that one may not be compelled to display on his private property a message making an ideological statement. Compare PruneYard Shopping Center v. Robins, 447 U.S. 74, 85–88 (1980), and id. at 96 (Justice Powell concurring), in which the Court upheld a state requirement that privately owned shopping centers permit others to engage in speech or petitioning on their property. The First Amendment does not preclude a public university from charging its students an activity fee that is used to support student organizations that engage in extracurricular speech, provided the money is allocated to those groups by use of viewpoint-neutral criteria. Board of Regents of the Univ. of Wisconsin System v. Southworth, 529 U.S. 217 (2000) (upholding fee except to the extent a student referendum substituted majority determinations for viewpoint neutrality in allocating funds). Nor does the First Amendment preclude the Government from ‘‘compel[ling] financial contributions that are used to fund advertising,’’ pro- Flag Salute Cases.—That government generally may not compel a person to affirm a belief is the principle of the second Flag Salute Case. 496 In Minersville School District v. Gobitis, 497 the Court upheld the power of the State to expel from its schools certain children, Jehovah’s Witnesses, who refused upon religious grounds to join in a flag salute ceremony and recitation of the pledge of allegiance. ‘‘Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.’’ 498 But three years later, a six-to-three majority of the Court reversed itself. 499 Justice Jackson for the Court chose to ignore the religious argument and to ground the decision upon freedom of speech. The state policy, he said, constituted ‘‘a compulsion of students to declare a belief. . . . It requires the individual to communicate by word and sign his acceptance of the political ideas [the flag] bespeaks.’’ 500 But the power of a State to follow a policy that ‘‘requires affirmation of a belief and an attitude of mind’’ is limited by the First Amendment, which, under the standard then prevailing, required the State to prove that the act of the students in remaining passive during the ritual ‘‘creates a clear and present danger that would justify an effort even to muffle expression.’’ 501 VerDate Aug<10>2004 12:54 Aug 16, 2004 Jkt 077500 PO 00000 Frm 00099 Fmt 8222 Sfmt 8222 C:\CONAN\CON024.SGM PRFM99 PsN: CON024 1112 AMENDMENT 1—RELIGION, FREE SPEECH, ETC. vided such contributions do not finance ‘‘political or ideological’’ views. Glickman v. Wileman Bros. & Elliott, Inc., 521 U.S. 457, 471, 472 (1997) (upholding Secretary of Agriculture’s marketing orders that assessed fruit producers to cover the expenses of generic advertising of California fruit). But for compelled financial contributions to be constitutional, the advertising they fund must be, as in Glickman, ?ancillary to a more comprehensive program restricting marketing autonomy? and not ?the principal object of the regulatory scheme.? United States v. United Foods, Inc., 533 U.S. 405, 411, 412 (2001) (striking down Secretary of Agriculture’s mandatory assessments, used for advertising, upon handlers of fresh mushrooms). 502 Cole v. Richardson, 405 U.S. 676 (1972); Connell v. Higginbotham, 403 U.S. 207 (1971); Bond v. Floyd, 385 U.S. 116 (1966); Knight v. Board of Regents, 269 F. Supp. 339 (S.D.N.Y. 1967) (three-judge court), aff’d, 390 U.S. 36 (1968); Hosack v. Smiley, 276 F. Supp. 876 (C.D. Colo. 1967) (three-judge court), aff’d, 390 U.S. 744 (1968); Ohlson v. Phillips, 304 F. Supp. 1152 (C.D. Colo. 1969) (three-judge court), aff’d, 397 U.S. 317 (1970); Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154, 161 (1971); Fields v. Askew, 279 So. 2d 822 (Fla. 1973), aff’d per curiam, 414 U.S. 1148 (1974). 503 Compare Bond v. Floyd, 385 U.S. 116 (1966), with Law Students Civil Rights Research Council v. Wadmond, 401 U.S. 154 (1971). 504 Cantwell v. Connecticut, 310 U.S. 296, 303 (1940). 505 The issue has also arisen in the context of criminal sentencin

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