to the organization’s exercise of its free speech
rights. Justice CLARENCE THOMAS, in his majority
opinion, addressed the freedom-of-speech ar-
gument. He noted that the school was a limited
public forum and that the state, therefore, was
not required to permit persons “to engage in
every type of speech.” However, the state’s
ability to restrict speech was not unlimited. In
addition, the state could not discriminate
against speech on the basis of viewpoint. Justice
Thomas wrote that the school district decision
had unlawfull y imposed this requirement. He
pointed to recent Court decisions that had
forbidden states to prevent religious groups
from using public facilities or to receive funding
for an undergraduate organization.
Statutes that prohibit the desecration of the
U.S.
FLAG have been found to restrict free
expression unconstitutionally. In Texas v.
Johnson, 491 U.S. 397, 109 S. Ct. 2533, 105 L.
Ed. 2d 342 (1989), the Court overturned
Gregory L. Johnson’s conviction for burning a
U.S. flag during a demonstration. Johnson’s
actions were communicative conduct that
warranted First Amendment protection, even
though they were repugnant to many people.
Similarly, in United States v. Eichman, 496 U.S.
310, 110 S. Ct. 2404, 110 L. Ed. 2d 287 (1990),
the Court struck down the federal Flag Protec-
tion Act of 1989, 103 Stat. 777, 18 U.S.C.A.

Commercial Speech
Commercial speech, usually in the form of
advertising, enjoys some First Amendment
protection, but not to the same degree as that
which is given to noncommercial forms of
expression. Generally, the First Amendment
protects commercial speech that is not false or
misleading and that does no t advertise illegal or
harmful activity. Commercial speech may be
restricted only to further a substantial govern-
ment interest and only if the restriction actually
furthers that interest. In Central Hudson Gas &
Electric Co. v. Public Service Commission, 447
U.S. 557, 100 S. Ct. 2343, 65 L. Ed. 2d 341
(1980), the U.S. Supreme Court held that a
statute banning promotional advertising by
public utilities was unconstitutional. That case
set forth a “general scheme for assessing
government restrictions on commercial speech.”
Commercial speech will be protected by the First
Amendment if: (1) it concerns lawful activity
and is not misleading; (2) the asserted govern-
ment interest is not substantial; (3) the regula-
tion does not directly advan ce the asserted
governmental interest; and (4) the regulation is
more extensive than is necessary to serve that
interest. The U.S. Supreme Court has struck
down bans on drug advertising, (Thompson v.
Western States Medical Center, 535 U.S. 357, 122
S. Ct. 1497, 152 L. Ed. 2d 563 (2002), and

figures voluntarily place themselves in positions
that invite close scrutiny, whereas private citizens
have a greater interest in protecting their
reputation. A private citizen’s reputational and
privacy interests tend to outweigh free speech
considerations and, therefore, deserve greater
protection from the courts (see Gertz v. Robert
Welch, Inc., 418 U.S. 323, 94 S. Ct. 2997, 41 L.
Ed. 2d 789 [1974]).
FURTHER READINGS
Amar, Vikram David, ed. 2009. The First Amendment,
Freedom of Speech: Its Constitutional History and the
Contemporary Debate. Amhurst, N.Y.: Prometheus
Books.
Haiman, Franklyn S. 1993. Speech Acts and the First
Amendment. Carbondale: Southern Illinois Univ. Press.
Hall, Kermit L. 1989. The Magic Mirror: Law in American
History. New York: Oxford Univ. Press.
Heyman, Steven J. 2008. Free Speech and Human Dignity.
New Haven, Conn.: Yale University Press.
Wagman, Robert J. 1991. The First Amendment Book. New
York: World Almanac.
CROSS REFERENCES
Broadcasting; Censorship; E-Mail; Fairness Doctrine; First
Amendment; Freedom of the Press; Hate Crime; Movie
Rating; Overbreadth Doctrine; Prior Restraint; Privacy;
Roth v. United States; Symbolic Speech; X Rating.
FREEDOM OF THE PRESS
Freedom of the press is the right, guaranteed by
the First Amendment to the U.S. Constitution, to

who or what the press is and what activities fall
under its special protection. Burger concluded
that the free speech guarantees of the First
Amendment adequately ensure freedom of the
press and that there is no need to distinguish
between the two rights:
Because the First Amendment was meant to
guarantee freedom to express and commu-
nicate ideas, I can see no difference between
the right of those who seek to disseminate
ideas by way of a newspaper and those who
give lectures or speeches and seek to enlarge
the audience by publication and wide
dissemination.
The Court has generally rejected requests to
extend to the press
PRIVILEGES AND IMMUNITIES
beyond those available to ordinary citizens. In
Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646,
33 L. Ed. 2d 626 (1972), it held that a
journalist’s privilege to refuse to disclose
information such as the names of informants
is no broader than that enjoyed by any citizen.
As long as an inquiry is conducted in
GOOD
FAITH
, with relevant questions and no harass-
ment, a journalist must cooperate.
Justice Stewart’s
DISSENT in Branzburg urged

journalists a privilege to maintain their sources’
confidentiality. However, the privilege recog-
nized by state and federal jurisdictions is not
ABSOLUTE. Journalists may still be compelled to
reveal the identity of a confidential informant if
the party seeking disclosure can make a showing
of relevance, need, and the unavailability of the
information from other, non-journalist sources.
Despite the inroads journalists have made in
many state and federal jurisdictions, a large
number of jurisdictions have declined to
recognize a reporter’s privilege, as New York
Times reporter Judith Miller realized when she
was jailed for
CONTEMPT of court after refusing to
disclose the identity of a confidential source in
the Valerie-Plame-Scooter-Libby affair. The case
began when Chicago Sun-Times columnist
Robert Novak published a column disclosing
that Valerie Plame was a covert operative of the
CENTRAL INTELLIGENCE AGENCY (CIA), specializing
in gathering intelligence on
WEAPONS OF MASS
DESTRUCTION
(WMD). Based on Plame’s recom-
mendation, Novak revealed, the White House
had appointed Joseph Wilson, Plame’s husband,
to investigate a British intelligence report that
Iraq president Saddam Hussein had attempted to
purchase uranium from Niger for the purpose of

against Bush were published in the Times.Libby
was suspected of disclosing the covert status of
Plame as payback for her husband’s article,
which had made the president look bad.
Although Miller admitted that a confidential
informant had given her the information about
Plame’s covert status, she refused to identify the
name of that informant and was subsequently
jailed for contempt of court by a federal district
court.
The U.S. Court of Appeals for the
DISTRICT
OF COLUMBIA
upheld the contempt CITATION
against Miller’s assertion of “reporter’s privi-
lege” (In re Grand
JURY SUBPOENA, Judith Miller,
438 F.3d 1141 [2006]). In rejecting the claim of
privilege, the
CIRCUIT COURT relied on the
Supreme Court’s decision in Branzburg v.
Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L. Ed.
2d 626 (1972). In that case, the nation’s high
court observed that grand juries operate under a
longstanding principle that “the public has a
right to every man’s evidence, ” and “the only
testimonial privilege for unofficial witnesses
that is rooted in the federal constitution is the
FIFTH AMENDMENT privilege against compelled
self-incrimination.” In the final analysis, the

BYRON R. WHITE
stated that laws which apply to the general
public and do not target the press do not violate
the First Amendment simply because their
enforcement against members of the press has
an incidental burden on their ability to gather
and report the news: “Enforcement of such
general laws against the press is not subject to
stricter scrutiny than would be applied
to enforcement against other persons or orga-
nizations.” The Cohen decision indicates the
Court’s continued unwillingness to extend
special First Amendment protection to jour-
nalists.
Generally, the First Amendment prohibits
PRIOR RESTRAINT, that is, restraint on a publication
before it is published. In a
LANDMARK decision in
Near v. Minnesota, 283 U.S. 697, 51 S. Ct. 625, 75
L. Ed. 1357 (1931), the Court held that the
government could not prohibit the publication
of a newspaper for carrying stories that were
scandalous or scurrilous. The Court identified
three types of publications against which a prior
restraint might be valid: those that pose a threat
to national security, those that contain obscene
materials, and those that advocate violence or the
overthrow of the government.
The government argued that publication of
certain material posed a threat to national

enormous power and influence and is burdened
with commensurate responsibility. Because
journalists generally have access to more
information t han does the average individual,
they serve as the eyes, ears, and voice of the
public. Some legal scholars even argue that the
press is an important force in the democratic
system of checks and balances.
In the wake of the September 11, 2001,
attacks, the White House placed pressure on the
five major
TELEVISION networks not to broadcast
videotaped statements by terrorist mastermind
Osama bin Laden and his associates. The
networks had shown a videotape of bin Laden,
and this angered the White House. In early
October 2001, the networks agreed not to show
such statements again without reviewing them
first. The decision came after a conference call
among U.S. national security adviser Condo-
leezza Rice and the heads of the networks. The
White House feared that broadcasts from
suspected terrorists could contain anything from
incitement to coded messages. This agreement
aroused concerns that the press was forfeiting its
responsibility to report all of the news. Com-
mentators noted that the rest of the world would
see the bin Laden tapes via television and the
INTERNET, and that the security concerns raised
by the U.S. government thus would have

Trial.
FREEHOLD
A life estate, an interest in land the duration of
which is restricted to the life or lives of a particular
person or persons holding it, or an estate in fee, an
interest in property that is unconditional and
represents the broadest ownership interest recog-
nized by law.
In order to be categorized as a
FREEHOLD,an
estate must possess the characteristics of (1)
immobility—in the sense that the property
must be either land, or some interest derived
from or affixed to land—and (2)
INDETERMINATE
duration.
DETERMINABLE freeholds are life estates created
by language that provides that the estate is to
terminate automatically upon the occurrence of
a s pecified event.
FREIGHT
The price or compensation paid for the transpor-
tation of goods by a carrier. Freight is also applied
to the goods transported by such carriers.
The liability of a carrier for freight damaged,
lost, or destro yed during shipment is deter-
mined by contract, statute, or
TORT LAW.
The responsibility for the payment of freight
is a subject of a term of a sales contract between

▼▼
▼▼
Ernst Freund 1864–1932
18501850
19001900
19251925
19501950
18751875
❖
1864 Born,
New York City
1861–65
U.S. Civil War
◆
1884 Earned law degree
from University
of Heidelberg
◆
1894 Joined
University of
Chicago
faculty
1904 Police Power: Public Policy and
Constitutional Rights published
1908 Helped
found the
Immigrants'
Protective
League
1914–18

Freund entered academe in 1892 when he
became professor of administrative law and
municipal corporations at Columbia University.
(He was also a doctoral student at Columbia’s
School of Political Science; he received his Ph.D.
in 1897.) In 1894, he began a long association
with the University of Chicago, accepting a
position in the political science department as a
professor of
ROMAN LAW and JURISPRUDENCE.In
1903, he joined the faculty of the university’s
newly opened law school. Freund taught
courses in social legislation and proposed a
new field, the “science of legislation,” to
underscore the connection between political
science and law.
Freund became a prominent figure at the
law school and served as the John P. Wilson
Professor of Law from 1929 to 1932. One of his
many achievements was the establishment of
the University of Chicago’s highly regarded
graduate-level social services program, the first
such program in the nation. Involved in several
professional organizations, Freund served as
president of the American Political Science
Association in 1915.
Freund’s renown in legal circles grew as a
result of his cogent writing on the function and
parameters of administrative law (the body of
statutes, regulatory rules and regulations, and

the less privileged members of society who were
vulnerable to exploitation. A man of action, he
helped organize the Immigrants’ Protective
League in 1908 and served as president of that
organization for several terms.
A staunch supporter of free speech, Freund
published articles on the specific rights guaran-
teed by the First Amendment of the U.S.
Constitution. He believed that the open discus-
sion of public affairs was a crucial underpinning
of U.S. society.
Freund married Harriet Walton on May 13,
1916. The couple had two children, Nancy
Freund and Emily Lou Freund. In 1931, Freund
was awarded an honorary doctor of laws degree
from the University of Michigan. He died the
following year, in Chicago, on October 20,
1932.
FURTHER READINGS
Firmage, Edwin Brown. 1963. Ernst Freund, Pioneer: The
Contributions of Ernst Freund to Administrative Law.
Chicago: Univ. of Chicago Press.
Freund, Ernst. 2006. Standards of American Legislation: An
Estimate of Restrictive and Constructive Factors. Clark,
NJ Lawbook Exchange.
Kraines, Oscar. 1974. The World and Ideas of Ernst Freund.
Birmingham: Univ. of Alabama Press.
THE STATE TAKES
PROPERTY BY
EMINENT DOMAIN