"I would hope they would recognize they are not entitled to making a content-based speech restriction," Belin said.
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And, while the government can regulate commercial speech to protect consumers, strict rules apply to any government-imposed speech restriction.
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"Fundamentally it's a speech restriction," said Beirne Roose-Snyder, director of public policy at the Center for Health and Gender Equity (CHANGE).
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The case hinged on whether the justices saw the law as a speech restriction or a traditional form of price regulation not subject to a free speech challenge.
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In First Amendment parlance, a law that forces speakers to receive government approval in advance of speaking (including publishing) is called a prior restraint – the most insidious form of government speech restriction.
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The newly imposed censorship is a direct attack on the First Amendment rights of federal employees; the speech restriction also violates the ethical principles that underpin public health practice — and CDC's core values of accountability, respect, and integrity.
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With no evidence that limiting the description of flushable wipes will yield cleaner sewer lines and no indication that the city considered more targeted means to achieve its goal, it is hard to see how the NDPA's speech restriction can pass constitutional muster.
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Within these limited areas, other limitations on free speech balance rights to free speech and other rights, such as rights for authors over their works (copyright), protection from imminent or potential violence against particular persons, restrictions on the use of untruths to harm others (slander and libel), and communications while a person is in prison. When a speech restriction is challenged in court, it is presumed invalid and the government bears the burden of convincing the court that the restriction is constitutional.
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On May 4, 2017, Trump signed the "Presidential Executive Order Promoting Free Speech and Religious Liberty." The executive order does not repeal the Johnson Amendment, nor does it allow ministers to endorse from the pulpit, but it does halt the enforcement of its consequences by directing the Department of Treasury that "churches should not be found guilty of implied endorsements where secular organizations would not be." Douglas Laycock, speaking to The Washington Post, indicated that he was not aware of any cases where such implied endorsements have caused problems in the past. Walter B. Jones Jr. had been the principal congressional advocate for repealing the speech restriction altogether and had support from the Family Research Council in modifying religious speech language in the Kevin Brady sponsored tax re-write legislation styled, the Tax Cuts and Jobs Act of 2017.
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A Journal of Law and Politics article by Jay Johnson was critical of the decision and the Court's claimed distinction between the speech restriction in Rust and the one on LSC and contended that there was no functional difference between the two. The article highlighted a problem with the Court's interpretation of the statute's purpose at hand: "Even assuming the propriety of invoking legislative purpose in statutory interpretation, the text of the [Act] does not support the Court's understanding of the Act's purpose." The article noted that although the Court looked at a section of the Act discussing attorneys "protecting the best interest of their clients," the same section noted that the program must be free of "political pressures." Because a factor in the Court's reasoning was its understanding of the Act's purpose, that alleged error purportedly misguided the rest of the Court's analysis.
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Yerushalmi has represented the American Freedom Defense Initiative (AFDI), an organization founded by Pamela Geller and Robert Spencer, in several legal actions against various transportation authorities around the country. The lawsuits stem from transportation authorities' decision not to run proposed advertisements by AFDI, including one advertisement in Detroit that promotes a website recommending "refuge from Islam". On January 31, 2012, Yerushalmi's legal group, the American Freedom Law Center (AFLC) filed a request for a preliminary injunction in the U.S. District Court for the Southern District of New York against the Metropolitan Transportation Authority of the State of New York (MTA), seeking to have the MTA run an AFDI "pro-Israel / anti-Jihad" bus advertisement. On Friday, July 20, 2012, federal judge Paul Engelmayer ruled that the MTA violated the First Amendment rights of AFDI when it rejected their advertisement. In July 2012, Engelmayer issued a final ruling, striking down the Metropolitan Transportation Authority of New York’s (MTA) "no- demeaning speech" restriction and ordering the MTA to display the advertisement. The judge’s order converted an earlier preliminary injunction into a permanent injunction, and it declared that the MTA speech regulation violated the First Amendment right to free speech.
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