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First Amendment Outline I. Purposes of the First Amendment a. Discussion/debate is necessary for self-government.

The key is protecting political speech. b. The marketplace of ideas is the way to arrive at the truth. c. A way to protect minority views/minorities. d. Protect right of self-expression. This includes art and literature. e. Fostering tolerance f. To prohibit censorship/licensing. Prior restraints. Free exercise/Freedom of thought, a. Nonconformists i. The First Amendment can be totally different in different contexts. ii. The free exercise cases also raise issues of symbolic expression and the right not to speak. iii. The Framers had three schools of thought when it came to religions 1. Separate the two because you want to save churches from worldly corruption 2. Safeguard the secular world from religion (Jefferson) 3. Both benefit from being separate (Madison). iv. Discriminating Against Religion 1. Minersville School Dist. v. Gobitis a. The kids are expelled from public school for refusing to salute the flag. b. The children were Jehovahs Witnesses c. Frankfurter starts the case as a religious case and whether there should be an exemption for religion. d. He is balancing the interest in national unity vs. the interest in individual liberty. i. Frankfurter says that national unity or national security is a very important interest. ii. But religion is an important interest iii. So he is balancing the two e. The balance test is a little more than rational basis because he is saying religious rights are important. But this time period has not quite formalized rational, intermediate and strict scrutiny. f. What Frankfurter does not do is look at the means. Does mandatory flag salute really promote the values? g. He is essentially doing a due process test under the 14th Amendment, while sort of incorporating the 1st Amendment. h. But the justices are reluctant to overturn a state law i. This has to do with the backdrop of Lochner


ii. This is why Frankfurter says we would become the school board of the country if consider whether this was the best way to achieve unity. iii. The court room is not the arena for debating educational policy. i. And because of this reluctance, the Court upholds the law allowing schools to compel the recitation of the pledge of allegiance. j. Frankfurter is also saying if you really object, you can mobilize and change the law. i. The problem is if a minority that is greatly disliked, is that possible? k. Stone is the only dissent. i. He cites to the Carolene Products footnote, discussing how the court needs to be especially vigilant when the law is prejudiced against discrete and insular minorities. 2. Cantwell v. Connecticut (1940), the same year as Gobitis, the Supreme Court incorporates the 1st Amendment through the 14th. 3. West Virginia v. Barnette a. Same issue. Flag salute case where kids can be expelled for not saluting the flag. b. The justices rule on the right to not speak, a right of conscience. i. To sustain the compulsory flag salute, the court would have to say the 1st Amendment allows the govt to compel a person to utter what is not in his mind. c. The strike down the law referencing current events: i. The decision adheres to the strength of individual freedom of the mind in preference to officially disciplined uniformity, for which history indicates a disappointing and disastrous end. d. The court says you need more than a rational basis when infringing on freedom of speech, the press, assembly, and worship. e. What changed between Gobitis and Barnette? i. National unity less of a concern. WWII has begun so people are unified. ii. It is clear that these laws are targeted at Jehovahs Witnesses. There was a flurry of such laws after Gobitis. f. Frankfurter in dissent has backed off the balancing test further. Now he applies a rational basis test. 4. McDaniel v. Paty

a. Tennessee had a law preventing ministers from holding public office. b. Supreme Court found the law to be unconstitutional. 5. Reynolds v. United States a. The case involved a Mormon practicing bigamy. b. The Court said that bigamy was an action. The government can restrict actions but not beliefs. 6. Church of the Lukumi Babalu Aye v. Hialeah (1993) a. The case involved the practice of Santeria religion, which requires animal sacrifice. b. The animal is cooked and eaten except after healing and death rituals. c. The Santeria church announced it was going to open a church in Hialeah, and the city council had an emergency session and adopted ordinances that outlawed animal sacrifice. d. Kennedy writes the opinion of the court i. In a part only getting 4 justices (including Kennedy) he examines the motivation of the city council. ii. Scalia dissents from this part. He is highly critical of this kind of examination into motivation. e. Kennedys majority finds that the statute was discriminating against the Santeria. i. He says the text of the statute, particularly the words sacrifice and ritual, indicate a discriminatory purpose. ii. Also, if you look at the record, you see that the resolution is aimed at certain religions iii. And the only purpose of some exemptions is so Kosher slaughter is not affected. v. Neutral Laws Adversely Affecting Religion 1. The progression will lead up to the rule in Smith. Then states in response who say they apply Sherbert. And Congress will pass RFRA, which the Supreme Court will interpret as applying to federal statutes, not the states. 2. McGowan v. Maryland (1961) a. The case involved Sunday Closing Laws or Sunday Blue Laws. b. Note that this is an establishment clause case. The appellants did not allege any infringement of their own religious freedoms, so no free exercise issue. The court says the only injury is economic, so they dont have standing. c. The laws in question have some exceptions for bathhouses, amusement parks, etc.

d. The Court does admit that the laws were originally motivated by religious purposes, including getting people to go to church. e. But they say the question is whether the laws today still retain their religious character, particularly given the changes in the laws over the years. f. The Court held that a town could pass the laws because of a secular interest in the health of the populace or for the enhancement of the recreational atmosphere of the day. g. Part of the argument is we need the same day so that there is a sense of quiet. If we dont choose the same day, it will defeat the purpose. h. The argument against is this is unfair to orthodox Jews who take Saturday off and then are forced to be closed Sunday. 3. Braunfeld v. Brown (1961) a. A similar law that prohibited the retail sale of certain commodities. b. The establishment clause analysis is similar to McGowan. i. The state has an interest in setting aside a day of rest. ii. If it allowed certain people exceptions, it would be difficult to enforce who had those exceptions and ensure they were staying closed one day a week. iii. Also the businesses would have to discriminate by religion in their hiring so they could stay open on those days, and that would be problematic. iv. And businesses open on Sunday might get an economic advantage. c. While the law is similar, the case also has a free exercise challenge as part of it. i. The idea is the law requires them to give up their religion or choose a new profession. ii. Court says that you cant strike down law that has only an indirect burden on the exercise of religion in this way. iii. Here the state is regulating general conduct, and it is allowed to do that if the goal of the regulation is a secular goal. iv. If the law had as its purpose to discriminate or restrict free exercise that would be unconstitutional. d. Brennan dissent in part i. You cannot exalt administrative convenience over free exercise. ii. The practical effect of these laws is to severely hamper the free exercise rights of the defendants. 4. Sherbert v. Verner (1963)

Case is later marginalized by Smith. The defendant was a Seventh-day Adventist. She was fired because she would not work on Saturday. She was unable to find other employment because she would not work on Saturday. e. South Carolina denied her request for unemployment because the law required her to be available for work which was defined as being available to work on Saturdays. f. Thus there is pressure on her to forgo her religious practice. g. Brennan majority i. He applies strict scrutiny. 1. Note: Strict scrutiny requires a. A compelling governmental interest b. The law must be narrowly tailored c. It must be the least restrictive means for achieving the interest. ii. Thus the question is whether there is a compelling state interest to justify the burden on her religion. iii. He distinguishes from Braunfeld by saying there the compelling state interest was a uniform day of rest. iv. Here there is no compelling state interest. 1. All the state offers is a fear of filing fraudulent claims by unscrupulous claimants. 2. There is no real evidence of this. 3. Even if there was, the state has to show this is the least restrictive means of achieving the interest. 5. Wisconsin v. Yoder (1972) a. Amish want to keep kids home after finishing the 8th grade, in violation of compulsory education law. b. The family is fined $5. c. Burger majority applies strict scrutiny. i. He rejects the distinction between belief and action in this context. ii. He says the Amish have a long history of being successful and self-sufficient and so the state interest in an additional year of education is not that strong. iii. He also said there is a difference between philosophical beliefs, and religious beliefs. Thoreau would not be allowed to keep his kids home, but the Amish can. d. The court is still using the strict test of Sherbert. e. Douglas dissents

a. b. c. d.

i. He asks what about the interest of Amish children who want to attend high school. 6. United States v. Lee a. Amish person objects to paying Social Security tax for his employees. b. Court says have to pay taxes. c. Still use the strict scrutiny standard. d. Here it is essential to pay taxes to accomplish the government interest. Mandatory participation in the Social Security system was indispensable to the fiscal vitality of the system. e. And there is no way to distinguish between the Social Security tax and a general tax. f. Stevens concurrence i. Says this would be costless to the government because they say they dont need Social Security. ii. But agrees with the judgment because of the difficulties in processing claims of religious exemption from taxes. 7. Bob Jones University v. United States (1983) a. IRS denied tax-exempt status to Bob Jones because they practiced racial discrimination. b. The school challenged on free exercise grounds, saying discrimination part of their beliefs. c. The government interest in eradicating racial discrimination in education was sufficiently compelling. 8. Goldman v. Weinberger (1986) a. Orthodox Jew is disciplined for wearing a yarmulke in violation of the uniform dress regulations of the military. b. This is where the court starts to switch from strict scrutiny. c. Rehnquist majority i. The court is deferring to military judgment. ii. The military needs obedience, unity, commitment, and espirit de corps. iii. The point of the regulations is that the military wants people to be more uniform. iv. Want subordination of personal preference and identity in favor of the overall group mission. d. Stevens concurrence points out i. The idea is if you have an exception for a yarmulke, then youll need them for turbans, dreadlocks, etc. ii. So then would have to weigh faiths, and you dont want the government doing that. iii. Prof. Field counters dont worry about the parade of horribles until you get to it. e. Blackmun dissent

i. Theres no evidence that a parade of horribles is coming. f. OConnor dissent i. The government has to show the exception will cause a substantial harm to the government interest. ii. Here the government has not done that. 9. OLone v. Estate of Shabazz (1987) a. Prisoners challenged regulations that set the time and place of work which interfered with their attending a Friday midday service. b. Rehnquist majority applies a reasonableness standard, meaning prisons also get deference. 10. Bowen v. Roy (1986) a. The court in several different opinions rules that the government can refer to people by their Social Security numbers. b. The big point is the 1st Amendment does not require the Government itself to behave in ways that the individual believes will further his/her spiritual development. c. If you count votes in the decision, it seems the Court would say that the American Indians dont have to provide Social Security numbers. 11. Lyng v. Northwest Indian Cemetery Protective Assn (1988) a. The case has the same argument that the 1st Amendment cannot be used to tell the government to stop taking its own action because it is inconsistent with your 1st Amendment rights. b. The facts were the U.S. Forest service was going to build a road and permit timber harvesting in an area of a national forest used by Indian tribes for rituals. c. The 1st Amendment applies to all citizens alike and it can give none of them a veto over public programs that do not prohibit the free exercise of religion. 12. Employment Division v. Smith a. The key point is Scalia says there is no requirement that generally applicable laws have an exemption for religion. b. States can create an exemption if they have liked. c. If prohibiting the exercise of religion is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision, the 1st Amendment has not been offended. d. Some states have rejected this approach and have passed laws to apply the Sherbert test or state courts have interpreted the state constitution to use the Sherbert test. e. The specific facts in this case are

i. Oregon prohibits possession of a controlled substance. ii. The people were fired for using the drug, which they ingested as part of a religious ceremony iii. They applied for unemployment and were denied because they had been fired for work-related misconduct. f. They can be denied benefits because the law is generally applicable and has the incidental effect of burdening religion. g. Scalia is trying to create a clear rule and so has to try to have exceptions for previous cases. h. The exception he creates is free exercise clause in conjunction with other constitutional protections, like freedom of speech, or the rights of parents to direct their kids education. i. He also relegates the Sherbert test to the area of unemployment compensation. i. And he distinguishes Sherbert by pointing out the conduct there was not illegal. Here it is. ii. Plus, with unemployment, you have to make particular determinations anyway because of the eligibility criteria. But dont want that for generally applicable laws. j. He rejects the compelling interest requirement because you cant have each individual be an island of law unto himself. k. Nor can the court look at the how central it is to the religion because courts cant judge centrality. l. OConnor wants to do a balancing test; the one she uses is strict scrutiny. i. She finds a compelling government interest in uniform application of drug laws. m. Blackmun dissent i. His dissent is based on the level of generality you take. ii. So could frame as war on drugs vs. Smith, or can do as no exemption vs. Smith. 13. In response to Smith, Congress passes RFRA. The statute was designed to restore the compelling interest test of Sherbert and Yoder. a. There is some debate as to whether Smith would hurt minority religions. i. One side says no, because Congress passed RFRA, which shows they will protect religion. ii. The other side says that doesnt show anything because RFRA was a coalition of religions. So

Congress might protect religion in general, but minority religions could still be targeted. 14. City of Boerne v. Flores (1997) a. The Court struck down RFRA as it applied to the states. b. The court said that Congress does not have the right to change the courts interpretation of the Constitution. Section 5 of the 14th Amendment says Congress can enforce the power of the 14th Amendment with appropriate legislation. c. But RFRA is not enforcing a 14th Amendment right, it is changing a right. d. The Court is the one who determines what the right is. e. Thus RFRA exceeds Congresss power under 5 and is unconstitutional as to the states. f. BUT, Congress can go above the constitutional floor, and so RFRA applies to federal laws. 15. Gonzales v. O Centro Espirita Beneficiente (2006) a. Roberts opinion: b. The case involved a small religious sect UDV that received communion by drinking a hallucinogenic tea. c. The ingredient in the tea was a controlled substance. d. Roberts holds that the government did not provide a compelling interest. e. Points out that the law has an exemption for peyote for the Native American Church, so hard to see how an exemption in this case would be problematic. 16. Cruzan v. Director, Missouri Department of Health a. You have a right to refuse medical treatment under the 14th Amendment. b. Thus Christian Scientists can refuse medicine. c. The difficulty is in cases involving children. d. Doctors can go to court and get an order to treat the child. b. Ministers i. Hosanna-Tabor v. EEOC (2012) 1. The EEOC and a teacher brought suit under the ADA against the Hosanna Tabor church and School after the teacher had been fired for threatening to file an ADA lawsuit because the church did not reinstate her after her disability leave. 2. The Court finds that there is a ministerial exception. 3. Roberts for the court state cannot impose an unwanted minister because that would interfere with the Free Exercise Clause. 4. It would also violate the Establishment clause which prohibits government involvement in ecclesiastical decisions. 5. This is different than the peyote cases because it involves a minister. Thus it is dealing with internal church decisions. 6. The court concluded the teacher here counts as a minister.


7. This decision leaves in the background what is a church and who is a minister. Roberts just says the teachers job duties reflect a role in conveying the message and carrying out the church mission, therefore a minister. 8. Note that it is just for the ministers, does not mean churches dont have to follow title VII or other laws. 9. Thomas concurrence says he would defer to good-faith understanding of the church as to who qualifies as a minister. 10. Alito concurrence says that the minister exception should apply to any employee who leads a religious organization, conducts worship services or important religious ceremonies, or serves as a messenger or teacher of its faith. ii. Tony & Susan Alamo Foundation v. Secretary of Labor (1985) 1. The Court rejected a free exercise challenge to minimum wage, overtime, and recordkeeping requirements of the Fair Labor Standards Act. Special Categories/Speech which is not Speech a. Sedition cases or Clear and Present Danger Cases. i. 1798 the Federalists pass the Sedition Act. 1. Sedition is saying something critical of the government. 2. Truth is an accepted defense. ii. The Sedition Act was very unpopular, it expires, and Jefferson pardons those convicted under it. iii. The Court never ruled on its constitutionality. iv. Schenck v. United States (1919) 1. The defendant circulated to men drafted for military service a pamphlet arguing they should not go into the military. 2. But he did not explicitly say dont go. 3. Rather he wrote the text of the 13th Amendment and said the Conscription Act violated that. 4. It said not to submit to the draft but limited its solutions to peaceful measures like a petition to repeal the act. 5. Holmes for the majority says that the permissibility of speech depends on the circumstances. 6. Because the country is at war, the government can restrict to a greater degree what speech people can say. 7. Here, they would have not printed the leaflet unless they intended to have people resist. 8. He creates the clear and present danger test: a. The question is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. b. The danger he refers to here is one person resisting the draft. v. Frohwerk v. United states (1919)

1. Holmes affirmed convictions for conspiracy and attempt to cause disloyalty, mutiny, and refusal of duty. 2. The act was publishing and circulating 12 newspaper articles. 3. Holmes says the 1st Amendment does not give immunity for every possible use of language. 4. They could convict because the circulation was in quarters where a little breath would be enough to kindle a flame and that fact was known and relied upon by those who sent the papers out. vi. Debs v. United States (1919) 1. Debs is running for President. He gives a speech at the state convention of the Ohio Socialist Party. 2. He praises people who resist the draft. 3. During the trial, he also admitted to obstructing the war. 4. Holmes says the jury could read from that the intent of the speech was to obstruct the draft. 5. The jury was carefully instructed that they could not find the defendant guilty for advocacy of any of his opinions unless the words used has as their natural tendency and reasonably probable effect to obstruct the recruiting service. 6. Holmes also instead of inferring intent, now adds a requirement of specific intent. Jury had to find specific intent to obstruct. vii. Abrams v. United States (1919) 1. The statute at issue is about supporting the Germans against the U.S. 2. The protestors are unhappy about the U.S. sending military forces to Russia, which has signed a peace treaty with Germany. 3. The protestors distributed circulars advocating a general strike and appealing to workers in ammunitions factories to stop producing weapons to be used against Russians. 4. Clarke majority says the writing clearly shows that the purpose was to cause sedition and riots to defeat the governments military plans. 5. Holmes dissent a. He points out that the act specifically says intent to hurt the war with Germany. b. They dont have that intent he says. Knowledge is not enough. c. He also says the U.S. can prevent certain substantive evils, when before he had just said substantive evils. d. He also states that the only way you can get to the truth is through the marketplace of ideas. e. We should be eternally vigilant to check the expression of opinions. 6. The trend shown by Holmes in these opinions (including dissents) is move towards specific intent and immediacy. viii. Masses Publishing Co. v. Patten (1917) (S.D.N.Y.)

1. Learned Hand is interpreting a statue but really providing an alternative approach. 2. His test would focus on the actual words used and less on what effect the words have. 3. Thus if one stops short of urging upon others that it is their duty or their interest to resist the law, it seems to me one should not be held to have attempted to cause its violation. 4. Otherwise every political agitation would end up counting as sedition. 5. Also points out the herd instinct that can come from other standard: What seems immediate and direct today may seem very remote next year. 6. He is swatted down on appeal by the 2nd Circuit. ix. Gitlow v. New York (1925) 1. Sanford majority. 2. The case involves socialists who set forth manifestos to mobilize the proletariat into action through mass industrial revolts developing into mass strikes. 3. The jury had to interpret the intent of the manifesto. 4. The law prohibited advocated, advising, or teaching the duty to overthrow the government by force. 5. The Court says the Manifesto clearly advocates and urges. 6. The Court says that by passing the statute, the state has determined through its legislative body that utterances advocating the overthrow of government by force are so inimical to the general welfare that they must be penalized. 7. The Court says that determination must be given great weight. 8. If the category defined by the statute involves a danger of substantive evils as determined by the legislature in the constitutional exercise of its discretion, then the court does not consider the constitutionality of specific utterances if they fall in that category. 9. Holmes dissent a. There was no present danger of an attempt to overthrow the government by force in this case. x. Whitney v. California (1927) 1. Overruled by Brandenburg. 2. Sanford majority a. Radicals in this case adopt a platform similar to the Left Wing Manifesto in Gitlow. b. She supports a more moderate resolution for achieving goals through the political process. c. That is outvoted and a more militant one is adopted. d. Whitney remains a member of the party. e. Again the majority says the legislative determination must be given great weight. THIS IS NO LONGER THE LAW.

3. Brandeis concurring. a. They say a danger does exist b. But they object to deferring to the legislative determination. xi. Holmes evolution--His test moves to 1. Specific intent 2. Danger has to be imminent 3. Also have to look at the gravity of the evil. xii. Dennis v. United States (1951) 1. Case involves trial of Communist Party Leaders for conspiring to organize as the Community Party to teach and advocate the overthrow and destruction of the Government by force and violence. 2. Vinson plurality a. The act is directed at advocacy, not discussion. b. Thus does not stifle academic discussion of the merits of Marxism-Leninism. c. They then look to see what clear and present danger means. d. You dont have to wait until the putsch is about to be executed. e. The threat there is much greater than the threat in Gitlow. Here people are developing an apparatus designed and dedicated to overthrow the Government. f. Field describes this as they are basing this decision on just the sheer gravity of the evil. 3. Frankfurter concurrence a. The evidence shows the legislature was justified in concluding that recruitment of additional members would create a substantial danger to national security. b. Yes, this might silence some criticism, but it is Congresss job to balance. 4. Jackson concurring a. The Court is not capable of evaluating whether this poses a clear and present danger. b. And applying the test here would mean waiting until it is too late. 5. Black dissenting a. The only way to reach this result is to reject the clear and present danger rule. b. We should not do that. 6. Douglas dissent a. The people are just being punished for organizing people to teach and teach themselves Marxist-Leninist doctrine. b. There must be some immediate injury to society that is likely if speech is allowed. c. You shouldnt sacrifice free speech on anything less than plain proof that the danger is imminent.

xiii. Yates v. United States (1957) 1. The case involves Communism. 2. The Court overturns a conviction under the clear and present danger test. 3. They distinguish between advocacy of abstract doctrine and advocacy of unlawful action. 4. In Yates, the people are urged to believe something, not to do something. 5. They say the fear in Dennis was more reasonable. xiv. Scales v. United States (1961) 1. The person is convicted for being a member of the Communist Party. 2. The Court says you can only be convicted if you have a specific intent to further the violent objectives of the Communist Party. xv. Bond v. Floyd (1966) 1. Georgia said it could not seat Julian Bond in the state legislature. 2. He had been elected. 3. The reason the state said was that Bond had criticized the draft. 4. The state said Bond could not take the oath to support the constitution and the state constitution since he had criticized the draft. 5. Supreme Court said Bond could not have been constitutionally convicted for counseling, adding, or abetting the refusal or evasion of draft registration. 6. The oath does not give the state an interest to limit legislators capacity to discuss their views. xvi. Brandenburg v. Ohio (1969) 1. It overrules Whitney v. California. 2. The culture has changed, and it is clear you cannot have Schenck or Dennis. 3. The case involves a KKK leader convicted under Ohio Criminal Syndicalism statute for advocating crime and terrorism for accomplishing political reform. 4. What Brandenburg does is take the three main ideas running through the previous cases and tie them together. a. However, it does not discuss much the gravity of the evil; it is pumping up the other two. 5. The test becomes 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. 6. Thus the intent to cause the bad stuff has to be there 7. And it has to be imminent. 8. Brandenburg does not use the phrase clear and present danger. xvii. Hess v. Indiana (1973)


xix. xx. xxi. xxii.



There is an anti-war demonstration, and protestors block the street. They are moved by the police. Hess says, Well take the fucking street later (or again). Supreme Court reverses conviction. The statement is at worse advocacy of illegal action at some indefinite future time. 6. No evidence the words would produce imminent disorder. NAACP v. Claiborne Hardware Co. (1982) 1. Charles Evers gave a speech. 2. It had emotionally charged rhetoric. 3. The Court says mere advocacy is not enough. 4. If violence had followed immediately, it would be a harder question. 5. When an advocates appeals do not incite lawless action, they must be regarded as protected speech. 6. There has to be imminence. Note that whether violence follows or not is not determinative. It is simply evidence of specific intent. Note that incitement is trying to get your followers to do something. If you have a hostile audience rise up against you, that is not incitement. Usually you cannot be held responsible for that. Planned Parenthood v. American Coalition of Life Activists, (9th Cir. 2002) 1. The court says advocating violence is protected 2. But threatening a person with violence is not. 3. Distinguish from Claiborne. a. No specific individuals targeted in Claiborne b. Here you have specific individuals pictured in the wanted ads. c. In Claiborne, the rhetoric was hyperbolic vernacular. d. Here a jury could decide if these were real threats. Rice v. Paladin Enterprise (4th Cir 1997) 1. The case involved how to book for hit men. 2. The publisher stipulated that it knew the book would be read by would-be murderers for hire. 3. The court said the book could be banned. 4. The book lacked any legitimate purpose 5. And the comprehensive details and explanations of murder meant it could be banned. United States v. Progressive (W.D. Wis. 1979) 1. A magazine wrote an article on how to make an H-bomb. 2. The court stopped the article from being published. 3. The author and publisher said that the article was just a synthesis of information publicly available. 4. The district court accepted that some info was new and some had never been synthesized.

1. 2. 3. 4. 5.

5. The judge grants injunction because of the gravity of the evil. 6. Does say there is likelihood of direct immediate injury, but focus is really on gravity. 7. It is a little hard to see the specific intent in this case. 8. Note that the case was abandoned before full appellate proceedings because similar information was published elsewhere. b. Fighting Words i. Cantwell v. Connecticut (1940) 1. Cantwell, a Jehovahs Witness was arrested while proselytizing on the street. 2. The Court says that when there is a clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, the state can prevent and punish. a. Field raises question about whether interference with traffic is severe enough. 3. The listeners were very offended, but when people objected he packed up and left. 4. This case stands for the idea that you are allowed to speak on the public street. 5. It is unclear in this case what happens if people are offended. a. The principle now would be, if you are offended, too bad. ii. Chaplinsky v. New Hampshire (1942) 1. A conviction under a state law banning any offensive, derisive or annoying word to any other person was upheld. 2. The state court interpreted the statute to mean that the law banned words that men of common intelligence would understand would be words likely to cause an average addressee to fight. 3. This is the fighting words doctrine. a. If you saying something that causes someone to hit back, you are outside the 1st Amendment. b. The definition is those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. i. People tend to pay attention to the second part of the definition. ii. The focus has been on face-to-face words likely to cause a breach of the peace. iii. Subsequent cases have not embraced the words by the very utterance cause injury part. 4. The Court says there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. 5. These include a. Lewd and obscene b. The Profane





c. The libelous d. And Insulting or fighting words. 6. Also included, though not mentioned is the incitement/clear and present danger. Those are outside the First Amendment. 7. Subsequently, we have eliminated profane. We have also narrowed lewd and obscene to just obscene. 8. But the Supreme Court has never overruled Chaplinskys holding that fighting words are excluded from free speech protection. 9. However, it has not sustained a conviction on the basis of the fighting words doctrine since then. a. Lower courts have convicted for talking back to the police. b. The Supreme Court has overturned these. Gooding v. Wilson (1972) 1. The person said to a police officer, White son of a bitch, Ill kill you, You son of a bitch, Ill choke you to death, etc. 2. This would seem to be fighting words 3. But Brennan majority finds the statue void on its face because it swept in protected speech ranging beyond fighting words. 4. The statute was struck down as overbroad. Terminiello v. Chicago (1949) 1. Limits fighting words to those directed face-to-face to an individual, rather than generally at a group. Texas v. Johnson (1989) 1. The person was arrested for burning an American flag. 2. The majority says no reasonable onlooker would regard Johnsons generalized expression of dissatisfaction with the policies of the federal government as a direct, personal insult or an invitation to exchange fisticuffs. 3. Thus not fighting words. Cohen v. California (1971) 1. Person wore a jacket in a courthouse that said, Fuck the draft. 2. Arrested for disturbing the peace. 3. Harlan does not say he has a constitutional right to wear the jacket in the courthouse; in fact he suggests that a narrower statute about decorum in court might be alright. 4. But the statute at issue in this case, covering offensive conduct, is overbroad and it is applicable throughout the entire state. 5. Unconstitutionally overbroad, which means the law is punishing constitutionally protected conduct even though the conduct at issue might not be protected. 6. Harlan also says this is speech not conduct; it is the words on the jacket that are objectionable. 7. Cohen gets rid of the profanity exception designated by Chaplinsky. 8. Not clear and present danger because no showing of intent to incite disobedience or disruption of the draft.

9. Not fighting words because not individually directed at a person. 10. There was also an argument that there were women and children around and so that was harmful. 11. Harlans response is avert your eyes. 12. The answer would be different in the privacy of your home, but this is a public space. You have to accept some of this outside of the home. 13. And you need to protective because certain language has an emotive function, and you need to protect that function. 14. It also contains the line that one mans vulgarity is another mans lyric. c. Hostile audiences and hate speech i. Terminiello v. Chicago (1949) 1. There is no hecklers veto. ii. Feiner v. New York (1951) 1. Feiner gave a speech on a street corner to about 75-80 people criticizing President Truman, the Mayor of Syracuse, and the American Legion. He then said that African-Americans dont have equal rights and they should rise up in arms and fight for them. 2. This causes some commotion in the crowd. The police tell Feiner to stop, he doesnt, ignoring 2 police requests, and so hes arrested. 3. Hes charged with disorderly conduct, and the court upholds the conviction. 4. Vinson majority a. Justifies the police action because there is an imminent threat to peace, and Feiner refuses to stop when asked. b. Vinson says you cant allow ordinary murmurings and objections of a hostile audience to silence a speaker. c. But he says that wasnt the situation. d. Here the speaker passed the bounds of argument and was undertaking to incite a riot. 5. Black dissent a. First you have to make all reasonable efforts to protect a speaker. b. If they had tried to protect Feiner, that would be one thing, but they didnt try. iii. Field points out that these cases stand for the proposition that you dont have to obey the police when they try to silence you if you are right in fact that silencing violates the 1st Amendment. 1. Note this is different from injunctions. 2. Walker v. Birmingham (1966) a. Supreme Court says you have to obey an injunction, even if it is invalid. b. You cannot defy an invalid injunction; you have to go to court. 3. Carroll v. Princess Anne (1966)





a. You cant give ex parte injunctions. b. This means the group who the injunction is against has to be given notice of the injunction and an opportunity to argue against the injunction. Edwards v. South Carolina (1963) 1. 187 people marched along the South Carolina state house grounds. 2. A large crowd of onlookers gathered. 3. Police ordered the demonstrators to disperse, they didnt, and so they were arrested. 4. Supreme Court says no violence by demonstrators or onlookers, and there was no evidence of fighting words. 5. Thus very different from Feiner and so convictions reversed. Cox v. Louisiana (1965) 1. 23 students are arrested for picketing. 2. 2000 students march to the courthouse to protest the jailing. 3. The police move them 100 feet away. 4. The protestors start singing, and the jailed protestors start singing back. 5. White onlookers show up. 6. Cox, the leader, gives a speech urging the demonstrators to sit in at segregated lunch counters. 7. The onlookers start to murmur. 8. The police say Coxs speech is inflammatory and order the demonstration broken up. 9. They dont disperse, cops tear gas, and arrest Cox the next day. 10. The majority says the meeting was orderly from beginning to end. 11. The students werent violent, did not threaten violence, and the white onlookers did not threaten violence. 12. The police could have handled the crowed. 13. Thus you cannot punish constitutionally protected conduct; if the statute does that, it is overbroad. Gregory v. Chicago (1969) 1. 85 demonstrators marched in a peaceful protest. 2. The number of bystanders increases to over 1,000 and the onlookers become unruly. 3. Cops order the demonstrators to disperse, and they refuse. 4. Court reverses the convictions because the peaceful protest is protected by the 1st Amendment. 5. Warren majority says the convictions cant stand on refusal to disperse because were convicted for demonstration, not refusal. 6. So Warren ducks the issue. Kunz v. New York (1951) 1. Kunz was convicted for holding a meeting without a permit. 2. Permits are at times constitutional because they allow the police to prepare.

3. Here it seems Kunz was denied a permit because of his attacks on Catholics and Jews. 4. Vinson majority condemns the permit system as involving impermissibly standard-less discretion. 5. The ordinance makes no mention of why a permit application can be refused. 6. Jackson dissent is that permits are good because dont have to worry about monitoring speech and ordering someone to stop later. viii. Forsyth County, Georgia v. Nationalist Movement (1992). 1. The court invalidated a county ordinance requiring demonstrations on public property to pay a fee up to $1000 a day to cover any public cost that exceeds the usual and normal cost of law enforcement. 2. Blackmun opinion says the ordinance is facially invalid because it left impermissibly standard-less discretion in the hands of the county administration. 3. Nothing in the law or its application prevents the officials from encouraging some views and discouraging others through the arbitrary application of fees. 4. Also imposing such a fees legitimizes a hecklers veto. Speech cannot be financially burdened, any more than it can be punished or banned simply because it might offend a hostile mob. ix. Beauharnais v. Illinois (1952) 1. Illinois had a group libel law. 2. Libel is saying false and scurrilous things about an individual that will tend to reduce his/her reputation. 3. The court upholds the law. 4. Frankfurter majority a. If an utterance directed at an individual may be the object of criminal sanctions, we cannot deny to a state power to punish the same utterance directed at a defined group. b. He adds willful purveyors of falsehoods promote strife. 5. Black dissent a. Every expansion of the law of criminal libel so as to punish discussion of matters of public concern means a corresponding invasion of the area dedicated to free expression by the First Amendment. 6. The case is sort of halfway between libel and hate speech. x. Skokie cases 1. The Nazi party announced its intention to march through Skokie. 2. First an injunction against the Skokie demonstration. a. Prohibited parading in uniform b. Displaying the swastika c. And distributing pamphlets that incite or promote hatred against person of Jewish faith.

3. The Supreme Court reverses the states high courts denial of a stay. a. You need immediate appellate review of injunctions. b. This is National Socialist Party v. Skokie. 4. On review of the injunction, the Illinois appellate court killed all of the injunction except the ban on displaying the swastika. 5. The Illinois Supreme Court then held the entire injunction, including the swastika provision, was unconstitutional. a. This could not be banned on fighting words i. Not directed towards 1 individual. b. Nor could it be banned on anticipation of the hostile audience. c. They go back to the principal of avert your eyes if can do so without reasonable inconvenience. 6. By the times this is done, Skokie has enacted three ordinances to prohibit the demonstrations. a. They establish a comprehensive permit system for parades and public assemblies requiring $300,000 in public liability insurance. b. Prohibited the dissemination of any materials which intentionally promote and incite hatred against persons by reason of their race, national origin, or religion. c. Prohibited public demonstrations by members of political parties while wearing military-style uniforms. 7. District court held the ordinances unconstitutional. 8. The Court of Appeals affirms in almost all respects. a. It says Beauharnais is not controlling and questions whether it is still good law. b. Displaying the Nazi flag and marching are symbolic acts with free speech and they compare this to Cohen. c. They say this is not libel or fighting words d. Brandenburg does not apply because not clear and present danger. The parades werent banned out of fear of violence. e. The permit requirement was struck down because it allowed restrictions based on subject. f. Insurance invalid because it is clearly intended to suppress speech of unpopular groups. 9. The Supreme Court denies a stay, but Rehnquist and Blackmun dissent, noting that Beauharnais has never been overruled. xi. Regina v. Keegstra (Canadian case) 1. Canada considering hate speech and they come out very differently than the U.S. 2. Constitutional to prohibit the willful promotion of hatred against an identifiable group. xii. College speech code cases

1. They tried to justify the codes using Chaplinsky, words by the very utterance cause injury. 2. Can also distinguish Cohen because they just apply to school, not whole state. 3. But all the attempts at campus speech codes were struck down. 4. University of Michigan code was struck down as overbroad and impermissibly vague. 5. Stanford overbroad and impermissibly content-discriminatory under RAV because it focuses on bigoted insults while leaving other insults alone. xiii. R.A.V. v. City of St. Paul (1992) 1. The law made it a misdemeanor to place a symbol, object, appellation, characterization, or graffiti, including a burning cross or swastika, which one knows or has reasonable grounds to know, will arouse anger, alarm or resentment in others on the basis of race, color, creed, religion, or gender. 2. Notice that this is below specific intent, knows or reasonable grounds to know. 3. The court says the action of burning a cross on a black familys yard can be punished, but not by this law. 4. The Minnesota Supreme Court in trying to save the law had interpreted the statue to only reach fighting words. 5. Scalia majority a. Fighting words are generally valueless, but that doesnt mean you can discriminate within the category. b. Thus you cant disallow fighting words against racial and religious groups, but allow other fighting words. c. But, Scalia does say you can content discriminate and only going after a subclass of unprotected speech if the subclass you are going after is particularly linked to the reason we exclude the whole category to begin with. i. For example, dont have to ban all obscenity, can ban just the most obscene of obscenity. ii. Or you can ban the most serious threats, say only threats against the President are illegal. d. He also has to deal with sex discrimination and Title VII. To do this, he says it is ok for a law to forbid conduct that can sweep up a particular content-based subcategory of a proscribable class of speech. Title VII does this. If the government is not targeting the conduct on the basis of its expressive conduct, the government can regulate. e. Scalia says the government interest is compelling. f. He says strict scrutiny is the correct standard. g. But you could achieve the interest without the content discrimination. 6. White concurrence

a. Agrees with the judgment, but says this can all be done with the old categories. b. The problem is the statue is overbroad because it criminalizes expression protected by the 1st Amendment. c. He criticizes the subset rationale saying the speech in the subset is worthless so you can proscribe it. d. And the strict scrutiny analysis is weird he says, because it holds that there is a compelling interest but the law cannot pass constitutional muster because it could be accomplished by banning a wider category of speech. e. And if what saves Title VII is general anti-discrimination that includes speech, then St. Paul could just add general language to save this statute. 7. Stevens concurrence says the categories are fuzzy a. But he thinks the law is overbroad, so it is unconstitutional. xiv. Wisconsin v. Mitchell (1993) 1. A group of young black men and boys chased a white boy and beat him. 2. One of the people in the group, Mitchell, shouted, There goes a white boy; go get him. 3. The crime was battery, but the punishment was enhanced because the motive was racially based. The jury found Mitchells selected his victim because of the victims race. 4. Majority held that motive that is discriminatory can be a criterion for judging conduct that is unprotected and punished. 5. Unlike R.A.V., the law here is aimed at conduct unprotected by the 1st Amendment. 6. A defendants motive is traditionally a factor considered by a judge at sentencing. xv. Watts v. United States (1969) 1. The person was convicted for threatening the President. 2. The conviction was reversed. 3. What is a threat must be distinguished from what is constitutionally protected speech. 4. The court said the speech in this case was just hyperbole. xvi. Virginia v. Black (2003) 1. Respondents were convicted under a statute that banned cross burning with the intent of intimidating any person. 2. The statute said that any burning of a cross was prima facie evidence of an intent to intimidate a person or group of persons. 3. The court says the 1st Amendment permits a state to ban a true threat. 4. But, OConnor says cross burning may not be to intimidate. It could be a ritual celebrating belonging to the KKK, for instance. 5. The law is different from R.A.V. because the law here does not single out for opprobrium only that speech directed toward a

specified disfavored topic. It does not matter if the crass is burned to intimidate based on race, gender, religion, political affiliation, or anything else. 6. And can just do the subset because cross burning is a particularly virulent form of intimidation, so like doing the worst of obscenity. 7. But the court strikes the statute down because of the provision saying cross burning is prima facie evidence of an intent to intimidate. a. That provision ignores all of the contextual factors necessary to decide whether it is intended to intimidate. b. Scalia says this isnt a problem because the people can rebut. c. Souter says yes it is a problem because the presumption skews things. 8. Souter says a content neutral law could achieve the same goal without silencing a viewpoint, the viewpoint in this case being white supremacy. 9. Thomas in dissent says this is conduct always intended to intimidate and therefore the law is constitutional. d. Libel and Other Torts i. New York Times v. Sullivan (1964) 1. The case involved an ad in the New York Times. 2. It said there was an unprecedented wave of terror against blacks in non-violent demonstrations. 3. Sullivan, the Montgomery, AL police commissioner, sued saying he was damaged particularly by a statement about truckloads of pole armed with shotguns and to statement that Dr. King had been arrested 7 times. 4. Sullivan said his reputation had been damaged. He won and was awarded $500,000. 5. The Supreme Court then took the case. 6. The ad here was not commercial speech. It was a political ad, not an ad for products. 7. The Alabama law said a statement was libelous per se if the words tended to injure a persons reputation. The plaintiff did not have to allege it was untrue. 8. Defendant can use truth as a defense, but it had to be true in all respects. 9. In this case, there were some mistakes in the ad, such as the fact King was arrested 4 times, not 7. 10. Brennans majority opinion held the law unconstitutional. a. People were shocked because this was the first time a tort had been held unconstitutional. b. The Court could have decided the case on the grounds that Sullivan was not named in the ad. c. Instead they create a new theory.

i. It is central to U.S. history that the country allows people to criticize the government. ii. Wexler in brief argued that you cant punish seditious libel. iii. He acknowledges the courts have never held that, but our history shows that. iv. Points to the Sedition acts which were allowed to expired, and offenders were pardoned. 11. The Brennan opinion follows the brief. a. The country has a commitment to debate on public issues that is uninhibited, robust, and wide-open. b. Criticism does not lose its constitutional protection because it is effective criticism. 12. The rule created is the plaintiff has to prove that libel is untrue and that the untruth was made with actual malice. a. Actual malice means knowledge or recklessness. b. The untruth also has to be material. 13. This standard allows room for people to make mistakes. 14. The statements also have to be a provably false statement of fact. a. This means opinion cant be libel. 15. The court says this rule applies in this case even though this is civil libel, and the Sedition Act was dealing with criminal libel. 16. Otherwise fear of civil libel damages could stop newspapers just as much as criminal libel. 17. The Sullivan case covers public officials in their public capacity. 18. Case is important because it is the first case that says sedition laws is unconstitutional. (Case is pre-Brandenburg) 19. Black and Douglas concurring want a complete prohibition on awarding damages for criticism of public individuals taking public action. 20. Note that you do have an absolute right to criticize the government because libel is for an individual, so doesnt cover the government generally. ii. Curtis Publishing v. Butts (1967) and Associated Press v. Walker (decided together) 1. Butts dealt with an article claiming the University of Georgia Athletic Director fixed a football game. 2. Walker was about an article that said a retired general led a violent crowd in opposition of desegregation at the University of Mississippi. 3. The Court divides. a. 4 are against extending NYT v. Sullivan b. 3 are for extending NYT v. Sullivan c. 2 are for broader protection 4. Thus the end result is extending NYT v. Sullivan to public figures.

5. Warren for the 3 extending says there is no logical or policy difference between public figures and public officials. iii. Later cases have construed the public figure narrowly. 1. For example Time Inc. v. Firestone a. Court says a wealthy divorcee is not a public figure. b. She had not assumed any role of special prominence in the affairs of society, other than perhaps Palm Beach society. 2. Hutchinson v. Proxmire a. A scientist whose federally funded research on monkey behavior had been characterized by the defendant Senator as wasteful government spending not a public figure b. Scientist had not thrust himself or his views into public controversy to influence others. 3. Wolston v. Readers Digest Assn a. Wolston briefly in the public eye for a criminal contempt conviction for not appearing before a grand jury investigation of Soviet espionage. b. He is not a public figure for purposes of a 1974 allegation that he was a Soviet agent. iv. Rosenbloom v. Metromedia, Inc. (1971) 1. Court abandons Rosenbloom in Gertz. 2. Libel action by a distributor of nudist magazines. 3. The plurality says there is an artificiality between public and private individuals. 4. Instead they make the test if the matter is a subject of public or general interest, and therefore it doesnt matter if a private individual is involved. 5. Thus extending NYT v. Sullivan. v. Gertz v. Robert Welch, Inc. (1974) 1. Gertz is a lawyer who is well-known in some circles, but the Court says he is a private figure because he had not achieved general fame or notoriety in the community. 2. Narrow view of public figure. 3. The case rejects Rosenbloom. The fact that it is a public issue doesnt matter. 4. Gertz brought a libel action against a magazine. 5. Powell opinion. 6. Because he is not a public figure, he is not subject to the NYT v. Sullivan test. 7. They say in this case libel does not require actual malice for compensatory damages. Negligence is enough. a. Note that the state can choose how to set the level so long as they do not impose liability without fault. b. So no strict liability. i. Note in England, if falsity is shown, strict liability for libel.

8. The statement still has to be false. 9. However, if awarding presumed or punitive damages, you have to show actual malice. 10. Brennan dissentwe should have stuck with Rosenbloom 11. White dissentThis is too much protection for the media. vi. Dun & Bradstreet, Inc. v. Greenmoss Builders (1985) 1. The case involved an untrue statement on his credit report. 2. Thus it really isnt for public consumption 3. And the case involves a private individual. 4. Powell plurality distinguishes between speech on matters of public concern from speech on matters of purely private concern. a. Field says in interpreting this not just private concern but that it was never intended for public consumption. 5. Thus you can have regular libel rules here. The state can award presumed and punitive damages even absent a showing of actual malice. This case would allow strict liability for libel. 6. The court rejects a special rule for newspapers. White in his concurrence and the four dissenters. 7. Burger and White concur to say the Court should overturn Gertz. vii. Hustler v. Falwell (1988) 1. The case involved a parody of Campari Liqueur ads where the Hustler parody alleged Falwell had a drunken incestuous rendezvous with his mother in an outhouse. It also stated Falwell was a hypocrite who only preached when drunk. 2. At the bottom it said Ad parodynot to be taken seriously. 3. Falwell sues for intentional infliction of emotional distress. a. IIED requires specific intent to inflict emotional distress. 4. The court says IIED for public figures and officials requires more than just this intent. The publication must have a false statement of fact made with actual malice. 5. They are importing the NYT v. Sullivan test. 6. They reject an attempt to distinguish between clever parody and the crude kind in Hustler. The standard of outrageousness does not supply a clear standard. 7. The do this because the Court appreciates parody and cartoons. 8. This creates a very big breathing space for parody and cartoons. viii. Time Inc. v. Hill (1967) 1. In 1952 the Hill family was held hostage for 19 hours, though released unharmed. 2. A play is then made of the event three years later, and the play makes it seem as if there was considerable violence. 3. Life magazine ran an article on the play which indicated the play was accurate. 4. The play portrayed the family as courageous. 5. The Hills sue under New Yorks false light statute.

a. A false light statute covers reporting on someone who does not want to be reported on, and the reporting/publicity places the person in a false light. 6. Again Brennan brings in the actual malice standard. You have to show they reported the falsity with actual malice. 7. He also adds in much-debated dicta that the newsworthiness here would also offer similar protection in a true privacy action. 8. The judgment for the Hills was thus overturned. 9. There is a question as to whether Hill survives Gertz, which was decided later. ix. Masson v. New Yorker (1991) 1. The author of an article put things in quotes that the subject didnt say. 2. The author said she was speaking to the spirit of what he said. 3. The Court says that if the alteration of petitioners words gave a different meaning to the statements, then putting that in quotes would be actionable. 4. This is leniency for the media. 5. There is no falsity if theres no change in the material meaning. a. We reject the idea that any alteration beyond correction of grammar or syntax by itself proves falsity in the sense relevant to determining actual malice under the 1st Amendment. x. Snyder v. Phelps (2011) 1. The Westboro Baptist Church protested at a military funeral for a Marine killed in the line of duty in Iraq. 2. The group would hold signs such as God Hates Fags, Priests Rape Boys, Youre Going to Hell, Thank God for IEDs, etc. 3. The protested on public land. 4. The church was sued for IIED. 5. Roberts majority states that whether they can be held liable turns on whether the speech is of public or private concern. 6. He says the content of the speech here plainly relates to broad issues of interest to society at large. 7. Roberts notes that this different from laws that were subsequently passed that prohibit picket at funerals. 8. Those laws are acceptable if they are content neutral. 9. Gertz had said it doesnt matter if it is a public issue. Now it seems this has been revived, though one dealing with libel, the other IIED. xi. Zacchini v. Scripps-Howard Broadcasting Co. (1977) 1. The suit was based on the plaintiffs right of publicity. 2. He performed a human cannonball act. 3. The defendant videotaped the act and showed the entire thing on the local news. 4. The news argues this is fair use.

5. The Court says fair use does not apply because you cant get the whole act in with fair use. 6. So this tort is allowed. 7. You dont have the same issues with dissemination of information because here the question is who gets to do the publishing, not whether it will be released. xii. United States v. Alvarez (2012) 1. The case involved the Stolen Valor Act, which made it a crime to falsely claim receipt of military decorations or medals. 2. Kennedy opinion 3. They strike the law down. 4. There is no 1st Amendment exemption for lies. 5. You cannot exempt a category from the 1st Amendment unless theres been a long history of its exemption. 6. Government may criminalize or restrict false claims made to effect a fraud or to secure moneys or other valuable considerations. a. Examples, perjury, pretending to be a government official, etc. 7. The law here is not content neutral 8. It is not closely tailored to its objectives to survive strict scrutiny. 9. The dynamics of this case indicate that the best solution is counter speech. 10. Breyer concurrence a. He thought intermediate scrutiny was more appropriate. b. He is more a balancing test. c. Field describes this as Breyer will balance it all and hell tell you the answer. 11. Alito dissent a. This speech has no value b. Therefore you can punish lies without hurting speech. xiii. Cox Broadcasting Corp. v. Cohn (1975) 1. Father sued because they broadcasted that his daughter was a rape victim. 2. The father is not allowed to get damages because the newspaper got it legally. 3. You cant sue a broadcaster for accurately publishing information released to the public in official court records. 4. The case does not address whether Hill survives Gertz. xiv. Florida Star v. B.J.F. (1989) 1. A newspaper published the name of a victim of a sexual offense, which it obtained from a police report made available in the police departments press room. 2. The court found the law unconstitutional. 3. It did not hold that truthful publication may never be punished consistent with the 1st Amendment.





4. White dissent tries to distinguish Cox Broadcasting, saying police records are different from judicial records. Bartnicki v. Vopper (2001) 1. The case involved the illegal interception of a cell phone conversation between two union negotiators. 2. The person turned the tape over to a local radio talk show host who then played the tape on air. 3. The court ruled the information could be published. 4. The say the correct method of deterrence is to punish the person who acted illegally, not to punish the publication. 5. Breyer concurrence: a. Again all it is is Breyer will decide. No guidance. Near v. Minnesota (1931) 1. The Supreme Court considered judicial injunctions to be prior restraints and hence unconstitutional. Disadvantages of prior restraint versus punishment afterwards. 1. It is easier to restrict speech with stroke of the pen than to go through cumbersome punishment mechanisms. 2. Censors will have a bias towards censorship. 3. More informal, less review. 4. Speech suppressed in advance never reaches the market. 5. When speech is restraint, it is hard to empirically measure its actual damage. You can be hyperbolic and say the world will come to an end. Saw this with United States v. Progressive. New York Times Co. v. United States (The Pentagon Papers Case) (1971) 1. The case is per curiam, 6-3. It is per curiam because they really cant agree on anything. 2. The per curiam states that any system of prior restraints comes to this Court bearing a heavy presumption against its constitutional validity. 3. The government was trying to get an injunction to stop publication. 4. Black and Douglas are the absolutists. 5. Black is saying no prior restraint. National security is too vague an interest. 6. Douglas says he would consider prior restraint if war is declared, but was has not been declared here. a. He also says the dominant purpose of the 1st Amendment is to prohibit government suppression of embarrassing information. b. Much of the information here is embarrassing to the government. 7. Brennan concurrence says no prior restraints unless it is something so drastic as publishing war plans. a. You could not publish a ships route during war. b. Other than that, there is a heavy presumption against prior restraint.

8. Stewart and White both think that if there was a statute that prohibited the publication here, that would make the governments case better. a. Since there is no legislation or promulgated regulation, they sides with the majority. b. Stewart standard is less than Brennan. c. The govt can keep secrets, and that includes more than sailing dates. d. But here they have not met the burden of showing it will surely result in direct, immediate, and irreparable harm to the Nation. e. White says the release of the documents will cause damage, but the government still has not met its very heavy burden, especially without Congresss backing. f. White notes that no prior restraint does not mean you cant punish afterwards. 9. Marshall concurs saying Congress has refused to give the Executive this authority. The Court should not step in and give that power with Congress has consciously denied. 10. Three dissenters: Harlan, Burger, Blackmun. a. Harlan says the judiciary is not in a good position to determine what will cause harm. b. He would let the government restrain the publication if they satisfy the court that the subject is within the Presidents foreign relations power and executive branch has properly determined that the information would irreparably impair national security. c. Then under the proper ground rules, the court could further review the publication. d. Burger wanted a temporary restraining order pending a full trial on the merits. e. Blackmun would remand for a proper presentation of what standards should be used. 11. Note that there is a special part of the Constitution, Article I 6 cl. 1, that says you cant be punished for anything said on the floor of Congress. xix. Snepp v. United States (1980) 1. A former CIA employee published a manuscript about CIA activities in Vietnam. 2. He did not get pre-publication clearance. 3. The Court of Appeals said there could be punitive damages, but not a constructive trust on his profits. 4. The Supreme Court said punitive damages were inadequate and inappropriate and they imposed a constructive trust on the profits. 5. The Court emphasizes that the CIA as an employer can place reasonable restrictions on employee activities.

6. The government has a compelling interest in secrecy to protect national security. xx. Nebraska Press Assn v. Stuart (1976) 1. The state court issued a gag order not just of the lawyers but also prohibited publication or broadcasting of the accuseds confessions or admissions. 2. Logic is you need a fair trial, so 1st Amendment v. right to fair trial. 3. The Supreme Court says there are other ways to deal with the fair trial issues. a. You can change venue b. Postpone the trial c. Question the jury d. Give jury instructions. 4. The probability of the gravity of the evil was not shown to be certain enough that a prior restraint was allowed. 5. There is also an emphasis on how terrible prior restraints are. 6. Brennan concurrence (with Stewart and Marshall) a. They want an absolute ban, saying you can never have a prior restraint to protect the right to a fair trial. b. They also emphasize that commentary on the criminal justice system is at the core of the 1st Amendment. c. To make trials fair they have to be open, not secret. xxi. Branzburg v. Hayes (1972) 1. White for the majority a. There is no reporters privilege. b. Everyone has to testify before a grand jury when called, including the press. i. The argument against this view is government should do its own investigation. c. The investigation of a crime is a compelling government interest. 2. Powell concurs in the opinion of the court a. There will later be debate as to whether White is a majority, but seems since Powell concurred in the opinion and not the judgment, it is a majority. b. Powell says a reporter has access to the court to get a motion to quash the request, which means the report has protection if the information has only a remote and tenuous relationship to the subject of the investigation. c. How does a court balance this? i. It seems Powell is saying you look at these issues case by case with a presumption of no privilege. 3. Stewart dissent is you start with the privilege, but it can be overridden. a. To override

i. The government must show that there is probable cause to believe that the newsman has info relevant to a specific probable violation of law ii. Demonstrate that the info cannot be obtained by alternative means less destructive of 1st Amendment rights iii. And demonstrate a compelling and overriding interest in the info. 4. Douglas dissent a. There is an absolute rule for a privilege. b. It does not matter what the compelling need is. 5. In response thirty-six sates and DC have enacted press shield laws. These laws are ok according to White. xxii. Cohen v. Cowles Media Co. (1991) 1. The newspaper had said it would protect the confidentiality of a source. 2. But then then the newspaper identified the person as the source in the press. 3. White majority 4. The First Amendment does not bar an action in state court for promissory estoppel against a newspaper that breached its promise of confidentiality to a source. 5. Generally applicable laws do not offend the 1st Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. 6. Blackmun dissent a. He says the case is controlled by Hustler. b. The tort in Hustler was a law of general applicability. c. The law cannot be used to punish the expression of truthful information or opinion. 7. Souter dissent a. He proposes a balancing test. b. He emphasized the importance of the information to public discourse, arguing that was integral to the balance that should be struck. c. The test is vague. xxiii. Zurcher v. Stanford Daily (1978) 1. Paper sued saying the police should have used a subpoena, not a warrant. 2. White majority a. Use of a warrant is fine. 3. Powell concurrence a. A magistrate asked to issue a warrant for the search of a press office should be cognizant of the values of 1st Amendment when weighing the decision. 4. Stewart dissent

a. A warrant should be allowed only when a magistrate finds probable cause to believe it would be impractical to get evidence with a subpoena. 5. Congress subsequently passed a law requiring state and federal law enforcement officers to use subpoenas for those in the communication industry. Search warrants are permitted only in exceptional circumstances, such as when there is a fear the material will be destroyed. xxiv. Judith Miller case 1. Sentelle majority opinion a. This case is controlled by Branzburg where the Supreme Court determined there is no reporters privilege. b. Reporters have the same duty as regular citizens to furnish relevant information to the grand jury. c. Point out that Powells concurrence was one in opinion, not judgment, and therefore it does not narrow Whites reasoning. d. Moreover, even looking at Powell, it is not clear what is in that opinion that givers reporters extra protection. e. The court also said a DC Circuit case Zerilli was not applicable. f. That case said Branzburg only applied only applied to criminal cases. Zerilli was a civil case, and Judith Miller is a criminal case. 2. Tatel concurs in the judgment a. He says that Powells opinion seems to show that courts should weigh the government interest against a reporters privilege. b. But it is enigmatic c. And if we are to have some sort of balancing, we need that to be done by the Supreme Court. e. Sex: Obscenity, Pornography, and Child Pornography. i. Chaplinsky talked about obscenity being outside the 1st Amendment because it does not have social value as a step toward truth and any benefit that may be derived from it is clearly outweighed by the social interest in order and morality. ii. Roth v. United States (1957) 1. Brennan majority 2. Roth said the old test was Regina v. Hicklin a. In that test, an excerpt could be judged and you looked at the effect it had on a particularly susceptible person. 3. Roth says obscenity is not within the area of constitutionally protected speech. 4. It creates a new test: Whether the average person using contemporary community standards would conclude the dominant theme, taken as a whole, appeals to the prurient interest.

iii. iv.




a. This means you can stick dirty pictures in an otherwise good book and the book is allowed. 5. The court says obscenity does not have redeeming social value, but that is not part of the test. 6. Also, just the fact that a work depicts sex does not make it obscene. 7. Douglas dissents a. He doesnt think you can weigh all of these interests. b. Who is the government to try to give people pure thoughts? c. People have the ability to reject noxious literature. In our obscenity law, courts dont edit the works. After Roth, you get a lot of per curiam decisions. 1. Black and Douglas thought you could not regulate obscenity. 2. Stewart couldnt define it, but knew it when he saw it. 3. Harlan believed the federal government could control hard core pornography, but the states could ban any material which taken as a whole has been reasonably found in state judicial proceedings to treat sex in a fundamentally offensive manner under rationally established criteria for judging such material. Memoirs v. Massachusetts (1966) 1. Warren, Fortas, and Brennan do an interpretation of Roth 2. The state can control the distribution of material where three elements coalesce a. The dominant theme of the material taken as a whole appeals to a prurient interest in sex b. The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters c. AND the material is utterly without redeeming social value. 3. This is close to the Roth test but it makes clear no redeeming social value is a part of the test. Ginzburg v. United States (1965) 1. He sent ads from Blue Ball, Pennsylvania and Intercourse, Pennsylvania. 2. Warren and Fortas said that because he is accentuating the bad stuff, the material could be banned, even if the rest of the material was on the border. Kingsley Intl Pictures Corp. Regents (1959) 1. The law banned any immoral film, defined as one which portrayed acts of sexual immorality or expressly or implicitly presents such acts as desirable. 2. The state denied a license to the film Lady Chatterleys Lover under this law. 3. Stewart opinion a. Sexual immorality is entirely different from obscenity.

b. The film was banned for presenting an idea, that adultery under certain circumstances is proper behavior. c. But you cannot ban advocacy of an idea d. First Amendment guarantee is the freedom to advocate ideas. viii. Stanley v. Georgia (1969) 1. The defendant tried to concede that the film was obscene 2. Marshall said we do not accept concessions of First Amendment rights. 3. The person was investigated for running numbers. 4. The cops saw no evidence of numbers, but say a film projector and screen in the middle of the room. 5. The cops watched the film and then arrested the person for obscenity. 6. This was exactly the same facts as Mapp. Some just wanted to do Mapp v. Ohio again. 7. Marshall opinion a. It is the combination of the right to receive information in the home and the right to privacy in the home. b. The court says you can possess obscenity, but you cannot sell or distribute. c. If the First Amendment means anything, it means that a State has no business telling a man sitting alone in his own house, what books he may read or what films he may watch. ix. Miller v. California (1973) 1. The case involved a situation in which sexually explicit materials were thrust upon unwilling recipients by aggressive sales action. Miller is mailing stuff to unconsenting adults. 2. Burger opinion. 3. The Court now says that the statute has to be specifically define what is obscenity. 4. The court limits obscenity to works which depict or describe sexual conduct. 5. The basic guidelines for the trier of fact, the test of obscenity is a. Whether the average person, applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest b. Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law c. AND whether the work taken as a whole lacks serious literary, artistic, political or scientific value. 6. The change in the test is part C, which is now whether it has serious social value.

7. The goal of the Burger opinion was to get the Court out of the business of reviewing obscenity. 8. The Court is making clear the question will be left to the jury as one of fact. 9. The Court says the standards will vary from community to community and thus what is tolerable in Las Vegas may not be accepted in Maine. It sets the standard as at the state level. a. This is changed to the local level in Hamling. 10. Douglas dissent a. To send men to jail for violating standards they cant understand or apply is terrible. b. It violates fair trials and due process. 11. Brennan dissent a. The statute is overboard. x. Paris Adult Theatre I v. Slaton (1973) 1. The theater shows dirty movies. 2. Outside it says adults only, no one under 21 admitted. 3. There is also a warning that says if viewing nude bodies offends, do not enter. 4. There are no pictures on the outside. 5. Burger opinion a. Begins with reasons to ban obscenity i. We dont want to thrust it on people if they dont want it ii. We want to keep it from children iii. There is a fear that the material will lead to bad conduct. 1. He discusses the possible link to sex crime, mentioning that the Hill-Link Minority Report indicated a correlation between obscene material and crime. a. And it is not for the court to resolve empirical uncertainties. 2. But he also gets into the argument about the tone of the community. a. Bickel argument, if you have the right to buy pornography and discuss it with others, it affects the world around the rest of us. b. The problem is this argument could really apply to anything. 6. Brennan dissent a. He says Roth or Miller gloss doesnt work. b. We dont have a definition to distinguish unprotected and protected. c. The only clear purposes he sees are







i. protecting kids ii. And protecting unconsenting adults. d. If the law is not to protect either of those, then you cannot ban/punish the material. Note that pornography and obscenity are not the same thing. Pornography either has artistic/political/social merit or it does not appeal to the prurient interest under the community standard. 1. Sometimes hardcore pornography is used as a synonym. Hamling v. United States (1974) 1. The Court clarifies that the community standards are local, rather than statewide or national. Jenkins v. Georgia (1974) 1. The state convicted for showing the film Carnal Knowledge. 2. The film starred Jack Nicholson, and was nominated for an Academy Award. 3. Rehnquist opinion 4. The Court relies in part on the fact that there is a movie star in it and it was nominated and therefore it is mainstream and not obscene. 5. The film could also not be found to depict sexual conduct in a patently offensive way. 6. Nudity is not enough to be obscene under Miller. Smith v. United States (1977) 1. The Court holds that the determination of local community standards is for the jury. 2. It also says that literary, artistic, political or scientific value is not to be measured by local community standards. Pope v. Illinois (1987) elaborates on this point 1. The proper inquiry is not whether an ordinary member of any given community would find serious value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole. Child pornography 1. New York v. Ferber (1982) a. The case created a new category under Chaplinsky b. The N.Y. law prohibited distribution of child pornography, and the law was upheld. c. White majority i. The state has an interest in protecting children. ii. The state can ban distribution to prevent the films from being made. iii. This helps stop child abuse. iv. The Court also says we consider it unlikely that visual depictions of children sex acts would have literary or scientific value.

v. Child pornography does not have to meet any of the prongs of the Miller test. 1. It does not have to appeal to the prurient interest, not required to be in a patently offensive, and it need not be considered as a whole. 2. There has not been a case that argues child pornography had serious artistic/scientific value. 3. Osborne v. Ohio (1990) a. White majority i. Stanley v. Georgia does not apply to child pornography. ii. You can criminalize possession of child pornography in the home because if you buy the porn you are encouraging its production. b. The court is relying on the fact that you are committing a crime to make it. c. Brennan dissents i. The law at issue is too broad, and it could be applied to things like the Coppertone ad. 4. Ashcroft v. Free Speech Coalition (2002) a. The Supreme Court declined to extend Ferber to pornography not produced with actual child actors. b. The statute was not limited to things that were obscene. c. The law here went behind Ferber because it prohibited speech that records no crime and creates no victims by its production. d. Thus could not criminalize virtual child pornography. e. Also could not criminalize sexually explicit conduct advertised as child porn but was in fact not. xvii. Pornography as subordination of Women 1. The MacKinnon-Dworkin ordinance. a. The thought was pornography led to sexual discrimination and abuse. b. This was because it eroticizes dominance and submission. c. The ordinance covered graphic sexually explicit subordination of women. 2. The argument against the ordinance is the slippery slope. 3. American Booksellers Assn v. Hudnut (1986) a. Easterbrook opinion b. He says the ordinance is viewpoint discrimination and hence unconstitutional. i. The law attacks an idea, that women are subservient or men dominant.

c. Easterbrook accepts the argument that images of subordination/domination lead to subordination/domination. i. This kind of judgment he says is for the legislature, and they made that judgment. d. Still viewpoint discrimination. e. If pornography is what pornography does, so is other speech. f. You cannot limit speech on the ground that truth has not prevailed. g. At any time, some speech is ahead in the game. xviii. Nudity bans 1. Erznoznik v. Jacksonville (1975) a. The ordinance prohibited drive-in movie theaters with screens visible from the public streets from showing films containing nudity. b. The law applied to non-obscene films. c. Powell majority d. This discriminates on the basis of content. e. The rule of Cohen should apply here, simply avert your eyes if offended. Thus not a compelling reason to protect intrusions as screens are not that intrusive. f. If goal is to protect minors from seeing the nudity, the statute is too broad. g. Court also rejected the idea that the film might cause traffic accidents. i. Nude scenes are no more distracting than other images. 2. Schad v. Mount Ephraim (1981) a. Public nudity was banned and all live entertainment was banned. b. White majority i. By excluding live entertainment throughout the borough, the ordinance prohibits a wide range of expression that has long been held to be within the protections of the 1st Amendment. ii. Nudity alone does not place otherwise protected material outside the 1st Amendment. iii. The borough presented no evidence that live entertainment posed problems more significant than those associated with various permitted uses. iv. No evidence in the record to support the proposition that the kind of entertainment appellants wish to provide is available in reasonably nearby areas. xix. Erogenous zoning 1. Young v. American Mini Theaters (1976)

a. The Detroit ordinance did not want adult theaters near other types of business like bars, billiard halls, cabarets, etc. b. The ordinance said an adult theater could not be within 1000 feet of two other regulated uses (bars, billiards, hotels, etc.) c. The result is you channel the display of sexually explicit material to limited parts of the city. d. Stevens plurality i. Says adult movies are lower value speech. ii. That means you cant ban, but you can regulate. iii. The city has an interest in trying to preserve the quality of urban life. iv. And the limitation is just a limitation of where the adult films can be exhibited. e. Powell concurs only in the judgment. i. He says there are zoning regulations that have an incidental effect on the 1st Amendment. ii. He says the OBrien test should be used. iii. He says the government interest here was unrelated to free expression. iv. Rather it was about the interaction of some businesses and the crime and problems that might result. 2. Renton v. Playtime Theatres (1986) a. This zoning law tried to concentrate adult theaters rather than disperse them. b. Rehnquist majority said the ordinance was not aimed at content c. Rather it was aimed at the secondary effects of such theaters on the surround community. d. The ordinance was designed to prevent crime, protect the citys retail trade, maintain property values, etc. e. The ordinances are consistent with the 1st Amendment. f. Brennan dissent i. This is content regulation ii. Even if it isnt, the regulations are not narrowly tailored to serve the government interest and did not provide for reasonable alternative avenues of communication. 3. City of Los Angeles v. Alameda Books (2002) a. OConnor plurality i. The city had passed a zoning regulation that imposed density limits on adult establishments. ii. Several years later, they realized this had to lead to multiple adult enterprises under a single structure,

so they amend the law to prohibit more than one adult business within a building. iii. In looking at the secondary effects, the city can show correlation, it does not need slam dunk proof. iv. There just has to be evidence of a link reasonably believed to be relevant; dont need evidence that rules out all other theories. v. In this case the study relied on was about the effects of multiple adult establishments in the same vicinity, but it also could reasonably predict the adverse secondary effects from multiple businesses under the same roof, plurality said. vi. The plurality left open the question of whether a city could justify its ordinance based on another jurisdictions finding of secondary effects when the city had no explicitly considered the study at the time of enacting the ordinance. b. Souter dissent i. You have to have empirical justifications backing up the claims of secondary effects. c. Kennedy concurrence i. Zoning regulations should be subject to intermediate scrutiny, not strict scrutiny. ii. Zoning regulations do not automatically raise the specter of impermissible content discrimination even if they are content based because they have a prima facie legitimate purpose: 1. To limit the negative externalities of land use. iii. The city cannot use the premise of zoning to close these businesses. iv. Here the zoning survives because it would ameliorate the secondary effects and the reduction in speech will be very little because the businesses will disperse. xx. United States v. Stevens (2010) 1. The statute criminalized the creation sale or possession of any visual or auditory depiction in which a living animal is intentionally maimed, mutilated, tortured, wounded, or killed if that conduct violates federal or state law unless the depiction has serious religious, political, scientific, educational, journalistic, historical, or artistic value. 2. The video in question was of dog fighting. 3. Roberts majority 4. The court refused to treat depictions of animals as a class categorically unprotected by the 1st Amendment.

5. Ferber cannot be taken as granting the authority to declare new categories of speech outside the scope of the 1st Amendment. 6. He also says the statute is substantially overbroad and thus facially invalid. a. He says hunting videos could fall under it. 7. Majority did not decide whether a law limited to crush videos would be constitutional. 8. Alito dissent a. You are committing a crime when making the video. b. The purpose the law is to stop criminal conduct. c. He says the worry about hunting vides is dealt with by the clause excepting works with serious value. d. Alito says the crush act is done for the sole purpose of creating videos. xxi. FCC v. Pacifica (1978) 1. Carlin did a 20 minute sketch on the radio about the seven words you couldnt use on the public airwaves. 2. A father driving his child turned on the radio and heard these seven words. 3. There was a warning at the beginning of the broadcast. 4. The FCC had the power to sanction things that were indecent or profane. 5. Stevens majority a. The problem with broadcast is the material comes right in your home. b. You cant unhear the words. c. And you might turn on the radio in the middle of the broadcast after the warning. d. Broadcasting is less protected because it is pervasive. The ease with which children may obtain access to broadcast material amplifies the concerns. e. The FCC also has the power to channel the content to certain times of day. 6. In a part that is a plurality, Stevens says this kind of speech is low value speech. 7. Brennan dissent a. You can just turn the radio off. b. Since it is so easy to turn off, it is not worth curtailing the 1st Amendment. xxii. The FCC later changes its prior interpretations to say that fleeting expletives or nudity are no longer good law. xxiii. FCC v. Fox (2009) 1. Scalia majority a. The FCC policy change is not arbitrary or capricious. b. They decline to rule on the constitutionality.






2. The case went back down to the 2nd Circuit, who held the regulations were void for vagueness 3. The Supreme Court agreed. a. Field says how can you distinguish between Saving Private Ryan, which was allowed, and NYPD Blue, which wasnt. Rowan v. U.S. Post Office Department (1970) 1. The statute says you can tell the post office not to deliver dirty stuff to your house. 2. The Supreme Court says the statute is constitutional. 3. You cant ban solicitation, but you can put a sign outdoors and say no solicitation. Same concept. 4. This is protecting the right of privacy. 5. No one has a right to press even good ideas on an unwilling recipient. Con Ed. v. PSC (1980) 1. Limits the scope of Rowan 2. The PSC had issued an order barring utilities from using bill inserts to discuss political matters, including the desirability of future development of nuclear power. 3. Powell majority overturns the law. 4. Even if a short exposure to Con Eds views offends, they can escape exposure by throwing the inserts away. Bolger v. Youngs Drug Products Corp. (1983) 1. The law banned the mailing of unsolicited advertisements for contraceptives. 2. The law found unconstitutional. 3. Difference with Rowan is here the law says cant deliver unless they ask. Rowan was cant deliver if they say they dont want. Sable Communications, Inc. v. FCC (1989) 1. Dial-a-porn services. 2. These are pre-recorded telephone messages. 3. The law banned indecent or obscene telephone messages. 4. White majority a. This is different from Pacifica. b. You have to take steps to receive the communication. c. You cant limit adults to things that are only acceptable for kids. d. Also there was enough protection here to prevent kids from using like requiring credit card payments, access codes, and scrambling options. Denver Area Educational Telecommunications Consortium v. FCC (1996) 1. The law allowed cable operators to enforce a policy that prohibits programming on sexual or excretory functions. 2. Breyer majority a. He thinks protecting children is important

b. Also this is like Pacifica in that the conformation is in your home. c. And it is easy for kids to watch. d. In another part of the opinion, the Court struck down cable operators discretion over indecent programming on leased access channels, which federal law required cable operators to reserve for commercial use by cable programmers unaffiliated with the operator and public access channels which federal law permits municipalities to reserve for their own public, educational, or governmental use. xxix. United States v. Playboy Entertainment Group (2000) 1. The law required cable operators to either fully scramble sexually explicit programming or confine it to late-night hours. 2. The court struck down the law. 3. Kennedy said the law was content-based, so strict scrutiny. 4. The tine-channeling requirement significantly restricted cable operators speech. 5. Erogenous zoning cases were irrelevant because those are about secondary effects, not targeting the speech. 6. Cable systems also not like broadcast because cable had the capacity to block channels on a household-by-household basis. This is the least restrictive alternative. xxx. Reno v. ACLU (1997) 1. Case deals with the Communications Decency Act (CDA) 2. That law prohibited the transmission of obscene or indecent messages to any recipient under 18 years of age. 3. The statute does not define indecency and does not have any exception for serious literary, artistic, political or scientific value. 4. Stevens majority 5. Thus they strike down the law. 6. The majority also distinguishes between broadcast and the Internet. The internet doesnt invade the home. a. The internet also isnt a scarce resource 7. The zoning cases arent on point here because arent regulating secondary effects. 8. And this places too great a burden on adult speech. a. Requiring websites to set up credit card screen was a bit too much of a burden. b. Compare to library cases where filtering software not too much of a burden. 9. Also there are less restrictive alternatives like filtering software, and it is very difficult for websites to verify the viewers identity. a. Here ACLU was arguing for filters. Note in ALA they argue against filters. xxxi. Ashcroft v. ACLU I (2002)

1. The court rejects the argument that COPA is unconstitutional on its face. 2. The challengers claimed that the community standards provision would mean abiding by the most puritan standards. 3. Thomas for the plurality said absent geographic specification, a juror applying community standards will inevitably draw upon personal knowledge of the community they come from. 4. OConnor concurs but says we need to adopt a national standard. 5. Breyer concurs: He says community is the adult community taken as a whole. 6. Kennedy concurs: Says COPA makes an eavesdropper the arbiter of propriety on the web, but this by itself did not enjoin the Act. 7. Stevens dissent a. Community standards doesnt work because well be limited by the most puritan standards. b. A provider cannot limit web content by geography xxxii. Ashcroft v. ACLU II (2004) 1. Kennedy majority says that filtering, which burdens free speech less, is just as effective as COPA. 2. The closets precedent was Playboy where absent a showing that the proposed less restrictive alternative would not be as effective, the court concluded that the more restrictive option could not survive strict scrutiny. 3. Scalia in dissent says commercial pornography should not be subject to strict scrutiny. 4. Breyer dissent a. Filtering software does not solve the problem. b. The need to protect children is compelling enough to survive strict scrutiny. f. Children i. Tinker v. Des Moines School Dist. (1969) 1. The Court held that a public school could not discipline two high school students and one junior high school student for wearing black armbands to school to publicize their objections to the Vietnam War. 2. Fortas majority a. Students and teachers do not shed their constitutional rights when enter the school. b. A big point is the protest here is unaccompanied by any disorder or disturbance on the part of the petitioners. c. Students are allowed to protest as long as they do not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school or impinge upon the rights of other students. d. It was also important that the school order singled out the armband for prohibition.

ii. Board of Education v. Pico (1982) 1. The issue was the school board took the recommendation of a conservative parents organization and removed books from the school library. 2. Brennan plurality a. Our Constitution does not permit the official suppression of ideas. b. A school board cannot remove books to deny access to ideas or because of a political motive. c. A school board can remove books if they deem them vulgar or remove them based on their educational suitability. d. Students are allowed to learn ideas not taught in the classroom. e. Brennan noted that nothing in the decision affected a schools discretion in choosing which books to add to the library. 3. Blackmun concurs a. Cant remove for the sole purpose of suppressing exposure to ideas. 4. White concurs giving 5th vote a. This could be done on summary judgment without touching the 1st Amendment 5. Burger dissent: school boards have to determine morality and vulgarity. 6. Rehnquist dissent a. Schools job is to inculcate values. b. The information at question here could be acquired elsewhere. c. The idea that students have a right to access in school info other than that thought by educators to be necessary is against our understanding of education. d. School libraries are not like public libraries. e. And you cant make a plausible distinction between removal and purchase. iii. Bethel School Dist. No. 403 v. Fraser (1986) 1. Student gave a lewd speech at an assembly. 2. Burger majority 3. The school can punish. 4. It is a school activity that everyone has come to. 5. It was not political speech and could say it was disruptive. 6. Unlike Tinker, the penalties were unrelated to any political viewpoint. iv. Hazelwood School district v. Kuhlmeier (1988) 1. The principal deleted two stories from a school newspaper. 2. White majority

a. Educators do not offend the 1st Amendment by exercising editorial control over the style and content of student speech in school sponsored expressive activity so long as their actions are reasonably related to legitimate pedagogical concerns. b. School newspaper is not a forum. c. Here the control was reasonable as students anonymity might not have been adequately protected. d. Could also say it was inappropriate conversation for the age and for younger children that might read. e. As for divorce story, they could conclude that an inattentive parent was entitled to an opportunity to defend himself. 3. This case introduces a new factor: if you think the school is sponsoring or giving its imprimatur, that is a reason it can censor. v. Morse v. Frederick (2007) 1. Students went outside as part of a school-sponsored teachersupervised trip to watch the Olympic torch pass through. 2. Roberts majority a. This is school speech as it is during school hours during a school trip. b. The schools interpretation that this promotes drug use is a reasonable one. c. This is not political speech as student said it was not. d. Schools have a compelling interest in deterring drug use. e. The danger here is greater than a fear of disruption, it is a fear of drugs, so school can punish. 3. Thomas concurs to say students have no free speech rights. 4. Stevens dissents a. It is one thing to restrict speech that advocates drug use. b. This is not advocacy but nonsense. c. The 1st Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. vi. Brown v. Entertainment Merchants Assn (2011) 1. California statute prohibited the sale or rental to minors of violent video games. 2. Scalia majority a. The law is unconstitutional. b. Video games communicate ideas. c. The obscenity exception only covers depictions of sexual conduct, not violence. d. The state does not have free floating power to restrict the ideas to which children may be exposed. e. They apply strict scrutiny.

f. The law fails strict scrutiny because they cant show a causal link between violent video games and harm to minors. g. The law is under-inclusive (did not prohibit cartoons or distribution of pictures of guns) which raises doubts about the government interest. This makes it seem they really want to suppress a viewpoint. h. California cant show the law meets a substantial need of parents. i. There is already a voluntary rating system in place j. And the aid to parents is overinclusive as it bans games to minors whose parents are indifferent on violent video games. 3. Alito concurrence a. Says maybe you could regulate video games but this law void for vagueness. 4. Thomas: Children dont have 1st Amendment rights. 5. Breyer: Says strict scrutiny but the Court meets it. 6. There are studies showing a causal link between violent video games and violence in kids. 7. There should be some degree of deference to the legislature. g. Commercial speech i. Valentine v. Chrestensen (1942) 1. The Court says that the 1st Amendment puts no restraint on purely commercial advertising 2. Thus the Court sustained a ban on distribution of a handbill advertisement. ii. Pittsburgh Press Co. v. Pittsburgh Human Relations Commn (1973) 1. The Court upheld a sex discrimination ordinance prohibiting newspapers from listing employment advertisement in genderdesignated columns. 2. Commercial speech not protected by the 1st Amendment iii. Bigelow v. Virginia (1975) 1. The Court held that Virginia could not criminalize ads about availability of abortion services in NY. 2. This case was really more about abortion than speech. iv. Virginia Pharmacy Board v. Va. Citizens Consumer Council (1976) 1. The state interest is professionalism. The state fears a price war which may affect quality. 2. The question in this case is whether there is an exception in the 1st Amendment for commercial speech. 3. Blackmun majority a. He says the government cannot be paternalistic b. The speaker and the recipient determine what the value of the speech is, not the government. c. He emphasizes the right of the recipient to receive info.





d. Blackmun is not worried about losing pharmacy expertise. e. He doesnt like keeping people ignorant. f. He says the government is just speculating as to how people will react, and it cannot legislate based on that speculation. g. The 1st Amendment means we do not suppress information because of the possibility the information will be misused. h. You can regulate commercial speech i. Advertising cannot be banned if it is truthful and not misleading. ii. It also has to be advertising legal activities. i. So long as we preserve a predominantly free enterprise economy, the allocation of our resources depends on private economic decisions. j. It is a matter of public interest that those decisions, in the aggregate, be intelligent and well informed. 4. Rehnquist dissent a. He is spot on that consumers will start asking their doctors for certain drugs. b. Virginia is not required to hew to the teachings of Adam Smith in its legislative decisions. c. He is worried about illicit use or patients pressuring doctors. d. He also does not see information on competing shampoos as having the same protection as political speech. Bolger v. Youngs Drug Products Corp (1983) 1. The Court invalidated a federal statute prohibiting the mailing of unsolicited advertisements for contraceptives. 2. The Court first ruled that the speech was commercial speech notwithstanding the fact that the mailers contained discussion of important public health issues. In between Virginia Pharmacy and Central Hudson, the Linmark Associates Inc. v. Willingboro (1977) 1. The ordinance banned posting for sale and sold signs on your yard 2. The objective was to stem white flight. 3. Court struck down the ordinance. 4. You have a right to convey that information. Other cases dealt with the professions. For example before this lawyers couldnt run ads or be listed in the yellow pages. Almost all of these restrictions are knocked down. 1. But, they did limit lawyers from soliciting with mail targeted to personal injury victims for 30 days. Central Hudson Gas v. Public Service Commn (1980) 1. This is the test that nobody likes, but it is still the test.

2. The New York Public Service commission prohibited electrical utilities from engaging in promotional advertising designed to stimulate demand for electricity. 3. Powell majority a. The states interest in conserving energy is substantial. b. But, the state cannot restrict ads in this way. c. They create a four part test to determine whether commercial speech is protected by the First Amendment i. It must concern lawful activity and not be misleading ii. Next, they must ask whether the asserted governmental interest is substantial iii. Does the regulation directly advance the govt interest asserted iv. Whether it is not more extensive than is necessary to serve that interest. 1. This may seem like least restrictive alternative, but later cases make clear it is looser standard than that. d. This is an intermediate scrutiny standard. e. Here the regulation was more extensive than was necessary. ix. Board of Trustees v. Fox (1989) 1. Here the court clarifies that no more extensive than necessary does not mean they must employ the least restive alternative. 2. The fit between the legislatures ends and means does not have to be perfect, but needs to be reasonable. 3. Thus, the college could ban Tupperware parties on campus. 4. The substantial interest was promoting an educational rather than commercial atmosphere, insuring security of students, and preventing their exploitation. x. Metromedia, Inc. v. San Diego (1981) 1. It is ok to distinguish between commercial and non-commercial billboards. 2. The Court struck down an ordinance regulating the placement of noncommercial billboards. 3. But it made clear that the portion of the ordinance banning offsite commercial billboards would be permissible. 4. The court was deferential to the government in reviewing whether the ban advanced the interest of traffic safety and appearance of the city. xi. City of Cincinnati v. Discovery Network (1993) 1. The Court held that commercial speech may not be treated differently form noncommercial speech for aesthetic or safety purposes in the absence of some distinctive harm from commercial speech.

2. Here the city banned the respondents from placing news racks on public property to dispense free advertisements but allowed news racks for distributing general circulation newspapers. 3. The motivation behind the ordinance is that it will reduce littering and improve the appearance of the streets. 4. The interest in aesthetics does not work because these news racks are no more of an eye sore than the news racks for newspapers. xii. Los Angeles Police Department v. United Reporting (1999) 1. State law permitted arrest records to be disclose for scholarly, journalistic, political or government purposes, but not in order to sell a product or service. 2. Rehnquist opinion: a. The section in question is not an abridgement of anyones right to engage in speech. b. Rather it is a law regulating access to information in the hands of the police department. xiii. Rubin v. Coors Brewing Co. (1995) 1. The Court rejected any notion that there is a vice exception to the protection of commercial speech. 2. The case involved a federal law that prohibited beer labels from displaying alcohol content. 3. The reason was the government wanted to prevent strength wars. 4. The brewers remained free to disclose alcohol content in ads, just not labels. 5. Thomas opinion a. This restriction makes no sense if trying to prevent ad wards. b. Plus with wine they have to disclose the alcohol content if above 14% alcohol. c. The regulatory framework is therefore irrational. d. Plus it is more extensive than necessary because government could limit the alcohol content of beers, prohibit marketing emphasizing high alcohol strength. xiv. 44 Liquormart, Inc. v. Rhode Island (1996) 1. Rhode Island prohibited advertisements of the price of alcoholic beverages in any manner whatsoever except by tags or signs inside liquor stores. 2. The state goal is temperance 3. Supreme Court unanimously invalidates the law, but several different reasons. 4. Stevens plurality a. 1 part of it says that bans against dissemination of truthful, nonmisleading commercial messages unrelated to the preservation of a fair bargaining process should receive strict scrutiny. b. In the alternative, the law fails Central Hudson





i. The state gives no evidence this prohibition will significantly reduce consumption. ii. The law is also more extensive than necessary. For example they could tax the product or regulate by raising the price. Or per capita purchases could be limited. 5. Thomas view is that a ban on truthful price information is per se illegitimate. 6. OConnor plurality says this fails Central Hudson. a. Again less restrictive means like a tax. 7. Scalia concurs in judgment under Central Hudson, but says he doesnt like the test. Glickman v. Wileman Bros (1997) 1. Mandatory fees for generic fruit advertising did not amount to compelled speech so no 1st Amendment concern. 2. Souter dissent would have applied Central Hudson and found the government failed the test. Greater New Orleans Broadcasting Association v. United States. (1999) 1. The Court unanimously struck down a 65 year old federal law banning broadcast advertising of lotteries and casino gambling. 2. The problem was the law had so many holes and exceptions it could not be seen as rationally advancing the government interest in discouraging gambling. Lorillard Tobacco Co. v. Reilly (2001) 1. Massachusetts prohibited advertising cigarettes and cigars within 1000 feet of a school or playground and indoor point of sale advertising be no lower than five feet from the floor. 2. 5-4 OConnor says the law fails the 4th part of Central Hudson. 3. The fact that the 1000 foot rule applied to signs of any size did not make sense. 4. Also, you cannot unnecessarily burden adult speech. 5. The five foot high requirement doesnt make sense as children can look up. Thompson v. Western States Medical Center (2002) 1. The law gave exemption from FDA approval requirements for makers of compounded drugs if they did not advertise or promote the compounding of any particular drug, class of drug, or type of drug. 2. The Court said the government had failed to demonstrate that the speech restrictions are not more extensive than is necessary to serve the interest of protecting the new drug approval process. 3. Regulating speech must be a last not a first resort. 4. Also, the Court has previously rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information.

xix. Sorrell v. IMS Health Co., (2011) 1. The Court found a VT law unconstitutional that pharmacies and health insurers could not sell regulated records containing prescriber-identifiable information for marketing or promoting a drug. 2. There was an exception for private or academic researchers. 3. Kennedy majority a. The law created content-based rules. b. He noted that a consumers concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. c. The courts reason for the restriction was to promote generic drugs over brand name drugs. d. They could advance this goal is a less restrictive way. e. The fear that people will make bad decisions if given truthful information cannot justify content-based burdens on speech. h. Subsidies i. Red Lion Broadcasting v. FCC (1969) 1. The Court rejected the broadcasters 1st Amendment challenge to the FCC fairness doctrine. 2. The fairness doctrine required licensed broadcast stations to provide free reply time in response to certain personal attacks and political editorials. 3. White opinion for unanimous court a. The government is allowed to regulate broadcasting more because there is a scarcity of broadcasting resources b. Also there is the idea of a right of reply. c. The Court is worried that station owners and a few networks could only broadcast their own views. d. It is the right of the viewer and listener which is paramount. e. The Court is looking at broadcasting as a public service. f. The regulation here is pro free speech because it lets both sides out. g. The Court says the First Amendment preserves an uninhibited marketplace of ideas rather than to countenance monopolization of that market, whether by the Government or private licensee. ii. The FCC repeals the fairness doctrine in 1987. iii. Tornillo 1. Rejected an enforceable right of access to the press with respect to print media. 2. The advocates pointed out the concentration of power in the newspaper business. 3. But the court says the remedy would call for coercion and that would conflict with the 1st amendment.

iv. Columbia Broadcasting, Inc. v. Democratic National Comm. (1973) 1. CBS refused to air an editorial advertisement. 2. The Court says broadcasters are not constitutionally required to accept such advertisements. 3. The Burger majority highlights the broadcasters discretion. 4. He doesnt want the government deciding what can be said. 5. We should worry more about government control than is the result fair. 6. The Court does not want the FCC determining this on a case-bycase 7. Douglas concurrence: a. You cant regulate news agencies save only business or financial practices which do not involve the 1st Amendment. b. He feels Red Lion curtails rights unduly. 8. Brennan dissent a. In the absence of an effective means of communication, the right to speak would ring hollow. b. Any policy that absolutely denies citizens access to the airwaves was unjustifiable. v. Speiser v. Randall (1958) 1. The court overturned the CA requirement that property tax exemption for veterans would be available only to those who declared that they did not advocate the forcible overthrow of the government. 2. To deny an exemption to people who engage in certain forms of speech is to penalize them for such speech. 3. Field: Later in South Dakota v. Dole (1987) we learn that there has to be a nexus between the grant and the restriction. vi. Regan v. Taxation with Representation of Washington (1983) 1. Nonprofits organized under 501(c)(4) free to lobby, but the contributions are not tax deductible. 2. 501(c)(3) cant lobby, but contributions are tax deductible. 3. The nonprofits can separate their lobbying and non-lobbying. 4. They can then take tax deductible money by just keeping these two things separate. 5. The Supreme Court upholds this provision of the Internal Revenue Code. 6. Rehnquist opinion a. The government does not want to subsidize lobbying and the government is allowed to decide what they want to subsidize. b. The law has an exception for veterans groups which allows them to lobby and donations are tax deductible. c. Rehnquist says this is fine; it is just an extra benefit for veterans.

d. He says the distinction is status based not content based. e. Thus you can limit programs but cant restrict activity outside of the program. Can limit the tax exempt, but not activity outside of that. vii. FCC v. League of Women Voters (1984) 1. The Court invalidated a provision of the Act forbidding any noncommercial educational broadcasting station which receives a grant from the Corporation for Public Broadcasting from engaging in editorializing. 2. The government was giving 1% of funding, and on the basis of that saying no editorializing on your stations. 3. Through this tiny amount, government is trying to control the whole ballgame. 4. The station has no way of limiting the use of its federal funds to non-editorializing activities and the station is barred from using wholly private funds to finance its editorial content. 5. Thus this is not a subsidy of speech but a penalty on broadcasters protected speech. 6. Here the government justification for the editorial ban was inadequate: the restriction was not closely tailored to the goal of protecting public broadcasters from becoming propaganda vehicles for the government. 7. Stevens dissent a. He is worried the stations will take the money and then they will become propaganda organs for the government. b. He supports the regulation for this reason and because it is viewpoint neutral. viii. Rust v. Sullivan (1991) 1. The Court upheld an HHS regulation forbidding projects receiving funding under Title X from counseling or referring women for abortion and from encouraging, promoting, or advocating abortion. 2. Rehnquist majority a. The government does not have to give money to both sides of the debate. b. It is the governments money. c. It can selectively fund a program to encourage certain activities it believes to be in the public interest. i. It does not need to then fund an alternative program which seeks to deal with the problem in a different way. ii. This is not viewpoint discrimination, it is choosing to fund one activity to the exclusion of another. d. The doctors are not prevented from offering the abortion services on their own. They have to keep such activities separate and distinct from Title X activities.

e. This is different from FCC v. LWV because there the restriction was placed on the recipient, not on the program. f. The person does not have to operate a Title X project, it could decline the subsidy. Thus it does not matter that Title X projects to raise private matching funds. i. Field: As a practical matter, they have to take the funds. g. He also says that this program will not disrupt the doctorpatient relationship. 3. Blackmun dissent a. This suppresses speech favorable to abortion and compels antiabortion speech. b. This is viewpoint-based suppression. ix. We have ended up with the view that the market should decide because we fear government control. 1. This is similar to the position we take with campaign finance. x. Since Tornillo, it is not up to the government to see that there is a fair distribution of information. xi. NEA v. Finley (1998) 1. The law required the Chairperson of the NEA to ensure that artistic excellence and artistic merit are the criteria by which grant applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public. 2. OConnor opinion 3. The Court held the law constitutional on its face 4. Absolute neutrality is impossible when you have a selective program of rants 5. The read the decency requirement as hortatory. 6. This was a facial challenge. If the NEA were to use its power to disfavor certain viewpoints, that would be a different case. 7. When spending money, you can make content based judgments. But you cannot make viewpoint based judgments. 8. Scalia concurs a. You dont need to read the criteria as merely hortatory b. It does establish content and viewpoint based criteria, and that is fine. c. This is because the law does not abridge the speech of those who want to make indecent art. d. They can still make that art, they just cant get government money. 9. You could say this is like Rust and the subsidy is limited to decent art. 10. Or you could say Rust is viewpoint discrimination, and that is allowed because you dont have to accept the government money.

a. This is the development of when government is the speaker, viewpoint discrimination is ok. b. Scalia goes with this government speech. i. Like Rosenberger, the funding of religious groups case, the government can engage in viewpoint discrimination if the government is the speaker or the government is disbursing public funds to private entities to convey a governmental message (second part is the reinterpretation of Rust) ii. This case is different from Rosenberger because they struck down the restrictions because the government had created a limited public forum. iii. This is not creating a forum, this is granting money for certain viewpoints. It doesnt matter if you have government employed artists, establish an office of art appreciation, or fund private art classes or give money who advocate for art classes. 11. Scalia does say that if the program was driving the other viewpoints out of the market, that might be a different situation. But the NEA here is not the sole source of funding for the arts. 12. Souter dissent a. Viewpoint discrimination in the exercise of public authority over expressive activity is unconstitutional. b. The government is not speaking through the NEA subsidies, c. Nor is it guying anything for itself with its NEA grants. d. The government is acting as a patron here, and you cant do viewpoint discrimination then. xii. Legal Servs. Corp. v. Velazquez 1. The law banned the Legal Services Corporation from funding any organization that represented indigent clients in an effort to amend or otherwise challenge existing welfare law. 2. Court struck down the law 3. Kennedy opinion a. Viewpoint based funding decisions can be sustained in instances in which the government is itself the speaker b. OR instances like Rust in which the government uses private speakers to transmit information pertaining to its own program. c. The LSC program is different. i. It was designed to facilitate private speech. ii. Advice from an attorney to his/her client and advocacy by the attorney cannot be classified as government speech. d. Also unlike Rust there is no alternative channel for expression of the advocacy Congress seeks to restrict.

i. The patient in Rust did not have to forfeit government advice if she sought abortion counseling. ii. But here, the LSC attorney must withdraw if a question of validity arises. There cant be joint representation. e. Plus the restriction here insulates current welfare laws from constitutional scrutiny and other legal challenges. f. The Constitution does not let the government insulate the governments interpretation of the Constitution. 4. Scalia dissent a. This is the same as Rust b. The provision simply declines to subsidize a certain class of litigation. c. It does not infringe on the right to bring such litigation. d. Thus it simply places restrictions on the use of its funds. e. And if take the view that Rust was government speech, if doctors advice to their patients counts as government speech, it is hard to imagine what is not government speech. f. Lawyers professional obligation is no different than doctors professional obligation. xiii. United States v. American Library Association (ALA) (2003) 1. If a public library receives federal subsidies, it is required to install filtering software to block Internet access to obscenity. 2. They have to install the filtering software on every computer, not just ones bought with a subsidy. 3. The Court rejects the view that library computers are akin to public forums or designated public forums. a. Libraries dont seek universal coverage, they seek to provide materials that would be of the greatest direct benefit or interest to the community. b. Internet is provided not to encourage a diversity of views but to facilitate research, learning, and recreational pursuits. c. A library needs to exercise judgment in making collection decisions. It can still play that role when it collects material from the Internet. d. And when a patron hits a blocked site, he/she can ask a librarian to unblock it. e. The Constitution does not give patrons the right to acquire info at the library without the risk of embarrassment. 4. And when the government appropriates public funds to establish a program, it is entitled to define the limits of that program. 5. The court also says public libraries have traditionally excluded pornographic material, so Congress is allowed to impose a parallel limitation on Internet access.

6. This case is not like Velazquez because libraries are not pitted against the government like lawyers are. a. Zittrain analogizes to Ginsberg v. NY b. In Ginsberg, the Court said it was ok to have a law that said if you sell Playboy you have to put it out of reach of small hands and you have to ask for ID if you want to buy. c. Since under the law in ALA the adult can ask the librarian to turn off the filtering software, he thinks this is analogous to Ginsberg. 7. Note here, unlike Reno v. ACLU, ACLU now arguing against filters. 8. Breyer concurrence a. This is a selection restriction. b. It affects the kinds and amounts of materials a library can present to its patrons. c. Applying strict scrutiny would unreasonably interfere with the discretion needed to create a collection. d. Under intermediate scrutiny there is a compelling interest of protecting minors. e. Filtering is cheap, effective and narrowly tailored because an adult can ask for access. f. Asking for access is a small burden. 9. Stevens dissent a. Denial of benefits is just as bad as a penalty. b. Rust only applies to government speech, meaning situations when the government seeks to communicate a specific message. c. There is no message here: the govt just wants to help libraries give patrons Internet access. d. This is also too much leverage as it covers all computers, not just the ones purchases with govt money. 10. Souter dissent a. This is not like selection at all. b. The blocking of sites is not necessitated by scarcity of either money or space. c. This is censorship. d. Filtering software is crude and tends to over-block. 11. Field distinguishes Internet from books a. Books they have to choose which to buy. Limited resources. b. Internet it is all free and they are being forced to exclude some speech. 12. Field also says this is taking away adult speech to protect kids. Cites to the line in Sable/dial-a-porn case, among others, that you cant force speech to only be what is appropriate for children.

13. Zittrain thinks the case would have looked different if it was emphasized that the library is the only way for some people to access the Internet. i. Public employee/government employee speech i. Pickering v. Board of Education (1968) 1. A teacher wrote a letter to a newspaper criticizing the school board criticizing their handling of revenue measures for the school. 2. He was fired. 3. Marshall majority a. You cannot fire teacher for this. b. Just because he is a public employee, does not mean he relinquishes all 1st Amendment rights. c. That said, the state does have an interest as an employer in regulating speech of its employees. d. So the two interests have to be balanced. e. Here what causes the balance to weigh towards the teacher is the Court likes the fact that a teacher is particularly well informed on this issue. i. Free and open debate is vital to informed decisionmaking and teachers have informed opinions. ii. Thus, it is essential they be able to speak out freely on these issues. f. Moreover, the speech did not cause a disruption, nor did it impede his performance or the schools performance. ii. Connick v. Myers (1983) 1. Connick, the DA, said he was going to transfer ADA Myers. 2. She opposed the transfer and circulated a questionnaire 3. One of Connicks assistants said she was starting a miniinsurrection and so Connick fired her. 4. Most of the survey was about internal stuff in the office. It was not really of public concern. 5. White majority a. When a public employee speaks not as a citizen upon matters of public concerns, but instead as an employee upon matters of only personal interest, the court should not get involved. b. The questions in the survey, except for one, did not fall under the rubric of public concern. c. But the 1 question of public concern was whether employees were pressured to work on political campaigns. d. So then one has to balance this speech on this issue with the employers rights. i. The speech did not substantially involve matters of public concern. ii. Also the speech rights were exercised at the office, which weighs against the speaker.

iii. And the employer had a strong interest in a close working relationship. e. Thus it was ok to fire her. 6. Brennan dissent a. It does not matter where speech is spoken or why when determining if a matter is of public concern. b. Extreme deference to the employer is not appropriate when public employees voice critical views concerning the operation of the agency they work for. c. This ruling will deter public employees from making critical statements. iii. Ranking v. McPherson (1987) 1. A clerical employee in a county constables office could not be fired for saying If they go for him again, I hope they get him, in reference to the attempted assassination of Pres. Reagan. 2. Marshall majority a. The speech was a matter of public concern. It was made in context of discussion of Reagan policies. b. Did not matter that was inappropriate or controversial. c. The states interest in content-related sanctions is minimal where the employee serves no confidential, policymaking or public contact role. d. No showing that the statement interfered with the effective functioning of the office e. Nor was it made in a context where it could bring discredit upon the office. 3. Scalia dissent a. No law enforcement agency is required to have an employee ride with the cops and cheer for the robbers. b. The statement could hurt working relationships and undermine public confidence in the organization. iv. Waters v. Churchill (1994) 1. A nurse sued the public hospital for firing her based on a conversation with a co-worker. 2. She claimed the comment was a legitimate complaint about training that could harm patients 3. But her employer thought it was disruptive speech critical of her bosses. 4. OConnor plurality a. Employer does not violate the 1st Amendment if it fires an employee for what the employer reasonably believed was speech on a matter of private concern. 5. Scalia concurs a. He thinks employer can only be sued if he/she intentionally retaliated against an employee for speech on a matter of public concern.


6. Stevens dissent a. Employers state of mind doesnt matter b. Employer is liable if the matter is of public concern as determined by a court. v. Garcetti v. Ceballos (2005). 1. Los Angeles deputy DA wrote his supervisors a memo stating an affidavit police had used to obtain a critical search warrant contained serious misrepresentations. 2. The government took allegedly retaliatory employment action against him. 3. Kennedy majority a. It is not dispositive that he expressed his views inside the office b. It is not dispositive that the subject matter is his employment. c. They say the controlling factor is that his expressions were made pursuant to his duties as deputy. d. When public employees make statements pursuant to their official duties, the employees are not speaking for 1st Amendment purposes, and the constitution does not insulate their communications from employer discipline. 4. Souter dissent a. He says the need for balance hardily disappears when an employee speaks on matters his job requires him to address. Protected Free Speech: General Modes of Regulation a. Content Neutral vs. Content Based Regulation i. Content based laws are aimed at expression ii. Content neutral law could be aimed at non-speech government interest, but nevertheless have an effect on speech. iii. We do strict scrutiny for content based laws iv. Intermediate scrutiny for content neutral law aimed at non-speech. v. But remember, 1st Amendment cases very dependent on facts, and often dont follow clear rules. vi. Police Dept. v. Mosley (1972) 1. The ordinance banned picketing within 150 feet of a school while school was in session. 2. There was an exemption for peaceful picketing of any school involved in a labor dispute. 3. Marshall opinion a. Decides the case on the basis of equal protection. b. Government must afford all viewpoints an equal opportunity to be heard. c. If labor picketing is allowed, there is no justification for prohibiting non-labor picketing vii. Carey v. Brown (1980) 1. Peaceful picket outside of mayors house for racial integration

2. The picketers are convicted under a state law that generally banned picketing outside a residence or dwelling. 3. It exempted the peaceful picketing of a place of employment involved in a labor dispute. 4. Thus it becomes content based on the basis of the exception. 5. The Court says you cannot give preferential treatment to the expression of views on one particular subject. viii. Simon & Schuster, Inc. v. Members of New York State Crime Victims Board (1991) 1. This is the Son of Sam case 2. The law was enacted to prevent a serial murderer and other criminals from profiting from books about their crimes. 3. The law said the money from the books would go to the victims, and if they dont claim it, youll get it. 4. OConnor opinion 5. The law is definitely content based. 6. That means it is subject to strict scrutiny. 7. The state did not show any greater interest in compensating the victims from the proceeds of such storytelling than from any of the criminals other assets. 8. She also found the law over-inclusive as it would sweep in books like the Autobiography of Malcolm X, which describes crimes committed by the civil rights leader before he became a public figure. 9. Kennedy concurring a. He wants a per se rule that you cannot have raw censorship based on content. ix. Burson v. Freeman (1992) 1. The law banned soliciting votes, displaying signs and distributing political campaign materials within 100 feet of the entrance of a polling place. 2. Blackmun opinion 3. This is content based so it is strict scrutiny 4. It survives strict scrutiny. 5. The say an examination of the evolution of election reforms, both in this country and abroad, demonstrates the necessity of restricted areas in and around polling places. 6. The history reveals a persistent battle against two evils a. Voter intimidation b. And election fraud. 7. Kennedy concurrence a. There is an exception to his per se rule against raw censorship. b. That is the 1st Amendment will yield to the extent necessary to accommodate another constitutional right. x. Republican Party of Minnesota v. White (2002)

1. State code of judicial conduct stated that a candidate for judicial office, including an incumbent judge, shall not announce his or her views on disputed legal or political issues. 2. Scalia opinion a. This is strict scrutiny because content based. b. The announce clause is not narrowly tailored to serve impartiality or the appearance of impartiality because it does not restrict speech for or against particular parties. c. And it is under-inclusive as it allows judges to make this speech before running and once elected. d. If you are going to have judges run for office, they have to be able to say what their views are. xi. Boos v. Barry (1988) 1. DC law prohibited displaying a sign within 500 feet of a foreign embassy that tended to bring the foreign government into public odium or public disrepute. 2. OConnor concludes this is not viewpoint-based, but is contentbased. 3. It then fails strict scrutiny because you could go with a lesser alternative such as prohibiting the intimidation, coercion, threatening, or harassment of foreign officials. 4. You cannot justify this under secondary effects analysis, she adds. 5. The listeners reactions to the speech are not secondary effects. 6. Brennan concurs a. He says the secondary effects analysis only applies to sexually explicit speech. xii. United States v. OBrien (1968) 1. The defendant is convicted for burning his draft card. 2. It was criminal to knowingly destroy or mutilate a draft card. 3. Warren opinion a. We cannot accept the view that an apparently limitless variety of conduct can be labeled whenever the person engaging in the conduct intends to express an idea. b. When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on 1st Amendment freedoms. c. He then lays out the test for whether limitation is ok i. If it is within the constitutional power of the government ii. If it furthers an important or substantial government interest (intermediate scrutiny) iii. If the government interest is unrelated to the suppression of free expression


xiv. xv. xvi. xvii.

iv. If the incidental restriction is no greater than is essential to the furtherance of that interest. d. The 4th prong looks like least restrictive alternative. i. That would be strict scrutiny ii. But this part of the test has been modified in later cases to make clear that, while a content-neutral law must be clearly tailored to its ends, the government need not employ the least restrictive alternative. e. Warren finds a legitimate and important interest in making sure a person has their draft card at all times. Otherwise the draft process could be screwed up. f. And they dont see an alternative mans that would more precisely and narrowly assure the continuing availability of draft cards. g. Thus Warren says the law is ok. 4. Harlan concurrence a. Even if regulation meets the four criteria of test you could still strike it down if in practice it had the effect of entirely preventing a speaker from reaching a significant audience with whom he could not otherwise lawfully communicate. b. Not the case here, as many other ways OBrien could have communicated. Arcara v. Cloud Books, Inc. (1986) 1. A New York law defined places of prostitution as public health nuisances and provided for the closure of any building found to be such a nuisance. 2. Here they found an adult bookstore was being used for solicitation and so they shut down the bookstore. 3. Burger majority opinion a. The Court says you dont even need to apply OBrien here. b. Here there was a general law governing conduct. c. The Court says the sexual activity here manifests absolutely no element of protected expression. d. The law was not targeting bookstores; it was targeting any building where this conduct is going on. e. It was not obvious this would have an effect on speech. f. Thus the 1st Amendment is not implicated. 4. The Court does not want every law to be evaluated under intermediate scrutiny. Field says you could consider this track 3/rational basis Track 1 is content based, so strict scrutiny Track 2 is content neutral/ government interest unrelated to suppressing expression. Then you do intermediate scrutiny/OBrien test. Flag burning 1. Street v. New York (1969)



4. 5.

a. The law made it a crime to mutilate, deface, defile, defy, or cast contempt upon by word or act any flag of the United States. b. Street burned a flag after heard James Meredith had been shot. He also told the cop, If they let that happen to Meredith we dont need an American flag. c. Harlan majority i. Found that on the record the law had been applied to permit punishment of Street merely for words about the American flag. ii. He said the words were not incitement or fighting words iii. Thus could not convict. Smith v. Goguen (1974) a. Massachusetts law made it a crime to publicly mutilate, trample upon, deface, or treat contemptuously the flag of the United States. b. Convicted for wearing a small American flag on the seat of his trousers. c. Powell majority i. He rested opinion on the due process doctrine of vagueness ii. He also noted that the casual treatment of the flag in many contexts has become widespread iii. Thus, the defendant had no fair notice since the law was vague. Spence v. Washington (1974) a. Spence displayed a U.S. flag with a large peace symbol made of removable tape affixed to both sides. b. He said this was in protest of the invasion of Cambodia and the killings at Kent State University. c. Per curiam decision d. Court assumed the state had an interest in preserving the flag. e. They found the statute unconstitutional as applied because there was no risk his acts would mislead viewers into assuming the Government endorsed his viewpoint. f. Spence says you have symbolic or expressive conduct when you have an intent to convey a particularized message, and in the surrounding circumstances, the likelihood was great that the message would be understood by those who viewed it. These cases end up turning on what is the government interest. Texas v. Johnson (1989) a. Johnson was part of a protest. b. He poured kerosene on a flag and set it on fire.

c. The law violated was intentionally or knowingly desecrating a public monument, place of burial or state or national flag. d. Desecrate was defined as deface, damage, or physically mistreat in a way the actor knows will seriously offend. i. Field notes that when you see the word offend, you should take note because you cant have a statute that worries if the viewer will be offended. e. The law was evaluated as applied. f. Brennan opinion i. The court relies on Spence test for expression and says we have expression here. ii. Then the court looks at the government interest to see if the interest is unrelated to the suppression of expression. iii. The Court rejects disturbing the peace as no breach occurred here. iv. You cant assume provocative speech will start a riot. v. The state also asserts an interest in preserving the flag as a symbol of nationhood. vi. The Court says that interest is related to expression, as it is a view about national unity. vii. That means it is subject to strict scrutiny, and it does not survive that analysis. viii. The Court asks how could it decide which symbols were sufficiently special to warrant this unique status. g. Rehnquist dissent i. He thinks burning the flag should be outside the first amendment. ii. There is no social value to it. iii. It is worthless speech iv. He is saying there is a separate Chaplinsky exception for flag burning. h. Stevens dissents i. He is being punished for conduct, not his viewpoint. ii. He would also be prosecuted if he chose to spray paint his message of dissatisfaction on the Lincoln Memorial. 6. There is a lot of backlash to the decision. Congress responds by passing the Flag Protection Act a. They thought this might work because Congresss law did not have the part about may also cause offense. 7. United States v. Eichman (1990) a. The Flag Protection Act is challenged.

b. The Court knows that the law is intended to suppress expression because they know the context of the law. c. They say although the Act contains no explicit contentbased limitation, it is nevertheless clear the Governments asserted interest is related to the suppression of free expression. xviii. Nude dancing 1. Barnes v. Glen Theatre, Inc. (1991) a. The Court by a 5-4 vote holds that law requiring dancers to wear pasties and G-strings does not violate the 1st Amendment. b. Rehnquist plurality i. Nude dancing is expressive conduct within the outer perimeters of the 1st Amendment. ii. He applies the OBrien test. iii. He then finds the statue protects public order and morality. iv. He says the statute is not aimed at suppressing an erotic message because other erotic messages are conveyed by the dancers, so law is content neutral. v. The law prohibits all public nudity. c. Scalia concurrence i. Says OBrien should not be applied because this is a general law that is not related to expression. ii. He says we should apply the smith test, where general laws not specifically targeted at religious practices does not require heightened 1st Amendment scrutiny. d. Souter concurs based on secondary effects i. The law applies to nude dancing because it encourages prostitution, increases sexual assaults, and attracts other criminal activity. ii. Compares the law to Renton. iii. And says the restriction is no greater than essential to further the governmental interest. e. White dissent i. Secondary effects is for pornography, not this. ii. The purpose here is to prevent people from seeing nude dancing iii. This is expressive content. iv. The state cannot ban because of the message of eroticism nude dancing sends. 2. City of Erie v. Paps A.M. (2000) a. The state invalidated a nudity ban as applied to totally nude erotic dancing. b. OConnor plurality

i. The restriction should be evaluated under OBrien test. ii. Said the law was not content-based, but aimed at combating negative secondary effects of nude dancing. c. Scalia concurring i. No 1st Amendment scrutiny at all as this is a general law regulating conduct that is not specifically directed at expression. d. Souter partial dissent i. He agrees OBrien is the right test, but the government has to make some demonstration of an evidentiary basis for the harm. ii. He found the record here deficient. iii. He says he was wrong in Barnes not to demand an evidentiary basis. e. Stevens dissent i. He opposes the extension of the secondary effects tests from zoning to what he called a total ban on a medium of expression. ii. The ordinance is impermissibly aimed at nude dancing rather than nudity in general. xix. Holder v. Humanitarian Law Project (2010) 1. Federal law criminalized knowingly providing material support or resources to a foreign terrorist organization. 2. Material support defined to include training, expert advice or assistance, service, and personnel. 3. Two groups challenge a. PKK which aims to establish an independent state for Kurds in Turkey b. LTTE which seeks the same for Tamils in Sri Lanka. 4. The groups sought determination that the law could not constitutionally apply to training members of the terrorist organizations to use international law to resolve disputes peacefully and to petition the United Nations for relief, and engaging in political advocacy on behalf of Kurds and Tamils. 5. Roberts majority a. He says strict scrutiny applies. b. Outside the OBrien test because as applied the law covered communicating a message. c. He says the government has a compelling interest: protecting us from terrorists. d. He says the law isnt too vague. e. It is carefully drawn to cover only a narrow category of speech.

f. He says money or support for non-terrorist activities is not ok because material support is a valuable resource by definition and it is fungible, thereby freeing up other resources. g. There is also evidence the groups dont respect the line between humanitarian and violent activities. h. Part of it is also the Jackson argument in the steel seizure case that when Congress and the President are on the same side on national security, it is hard for the Court to fight that because they dont know national security. i. Those you give significant weight to the views of the executive branch. 6. Problem is this case is in real conflict with Brandenburg and Scales. Brandenburg says you cannot prevent advocacy of violence unless it is going to produce imminent illegal action. There is no imminence requirement here. 7. Also Brandenburg and Scales had intent requirements for the bad stuff. 8. Also in the Communist Party cases, there had to be some element of due process and review before you are banned for all time. a. To get on the list is State Department puts you on. b. The DC Circuit is supposed to be able to review. c. But in the one case DC Circuit looked at they said there is nothing to review. So the review process does not work. d. Also the said the lack of review is not a problem because the groups have no real presence or property in the U.S. and therefore dont have basis for due process rights. 9. Field believes to reconcile the cases, you need to make some distinction between foreign and domestic activity. 10. Breyer dissent a. He says protecting national security is a compelling interest. b. But he questions how fungible the material support in this case is. c. To avoid constitutional difficulties, Breyer would have read the statute to apply to speech only when the defendant knows or intends that those activities will assist the organizations unlawful terrorist actions. b. Public Forums and Time-Place-Manner Restrictions i. Massachusetts v. Davis (1895) (Mass. SJC) 1. Holmes opinion 2. Said government could ban speech on a road or highway because the government owns it. ii. Hague v. CIO (1939)

iii. iv.







1. Roberts for the Supreme Court says wherever the title of streets and parks may rest, they have immemorially been held in trust for the use by the public for assembly and discussing public questions. The early cases are mostly about standard-less permit schemes. Lovell v. Griffin (1938) 1. The Court invalidates a conviction for leafleting because the licensing scheme vested unfettered discretion in the city manager. Staub v. Boxley (1958) 1. Law prohibited solicitation of membership in a dues paying organization without a permit. 2. Cant be contingent upon the uncontrolled will of an official. Saia v. New York (1948) 1. The law prohibited amplification without permission of the police chief. 2. Struck down because it is standard-less. 3. The court did say you can regulate amplification. You can regulate the decibels, the hours, and the place of the devices. 4. You cannot ban. 5. Frankfurter dissents saying the noise intrudes into cherished privacy. Hynes v. Mayor of Oradell (1976) 1. Invalidated as vague an ordinance requiring advance notice to the police by any person desiring to canvass or solicit. Lakewood v. Plain Dealer Publishing Co. (1988) 1. Invalidated an ordinance requiring a permit for news racks on public property because too much discretion. Cox v. New Hampshire (1941) 1. Affirmed the conviction of Jehovahs Witnesses for having a parade without a permit and paying a licensing fee. 2. The Court says the government has an interest in ensuring safety and convenience in use of the highway. 3. The question is whether the control is exerted so as not to deny or unwarrantedly abridge the right of assembly. 4. The purpose of the permit was to give public authorities notice in advance so as to afford the opportunity for proper policing. 5. Here there was no evidence the statute was administered other than in a fair and non-discriminatory manner. 6. The Court also upheld the fee saying it was to cover the administration of the act 7. The book notes the Court has never invalidated a content-neutral user fee. a. But remember Skokie cases where knocked down a fee calculated according to the anticipated hostility of the audience. Schneider v. State (1939)

1. First Amendment cases are decided on the facts. You weigh public convenience on one hand and 1st Amendment rights on the other 2. Thus it is a case by case process. 3. The Court here invalidated ordinances forbidding distribution of leaflets. 4. The reason for the ordinances was to prevent littering. 5. The Court applied strict scrutiny. 6. The streets are a natural and proper place for disseminating information 7. And there were least restrictive alternatives, like punishing littering. xi. Martin v. Struthers (1943) 1. Here invalidated an ordinance prohibiting the distribution of handbills to residences by ringing doorbells. 2. The government interest was to protect public from annoyance and crime. 3. The Court says door-to-door distribution of circulars is essential to the poorly financed causes of little people. 4. You have to allow this medium of expression. 5. The Court also says you could make it an offense for a person to ring the bell of a person who has a sing out saying do not disturb. xii. Kovacs .v Cooper (1949) 1. The law banned sound trucks, loud speakers, or sound amplifiers with emit loud and raucous noises. 2. Reed Plurality a. This is not a ban on amplification. b. It is a ban on loud and raucous noises. c. Therefore it is not a full medium ban, but a time, place, manner restriction. d. The state interest in privacy in homes or business form distracting noises was greater than the right to disseminate info in the public streets. e. Jackson and Frankfurter concur in the judgment i. They both say the statute is a flat ban on amplification ii. Such bans are permitted so long as the law did not censor or discriminate among ideas. f. Black dissent i. This is a flat ban. ii. People have ideas they want to disseminate, but they may not have the money to own newspapers, radio, etc. iii. You cannot wholly prohibit one form of communication. iv. You could restrict the volume or the hours. xiii. City of Ladue v. Gilleo (1994)

1. The law banned posting signs in the window of a home 2. Stevens opinion a. This ordinance bans too much speech. b. Part of the reason this is too much of a ban is this means of communication is venerable. It is a medium we count on. c. The city says you can convey messages with other means. d. The court says that is not enough in this case. e. You cannot ban an entire medium of speech. xiv. Field says another way you could invalidate the Ladue law was so many exceptions it looks content based. xv. Watchtower Bible & Tract Society v. Stratton (2002) 1. The court invalidated a municipal ordinance which required a permit for door-to-door proselytizers. 2. Stevens opinion a. He notes that Jehovahs Witnesses, who he says dont have a lot of money, are required by faith to go door to door. b. He declines to pick a standard of review. c. He says the mere fact that the ordinance covers so much speech raises constitutional concerns. d. He also notes that the permit requirement prohibits anonymous and spontaneous speech. e. The ordinance was not tailored to the Villages state interest. i. It would not be good at preventing fraud or crime ii. And a no solicit sign would be better for privacy. f. Stevens also says that if the ordinance was limited to commercial activities it might be ok. 3. Breyer concurrence a. He says this is intermediate scrutiny. b. That means the Court does not supply the reasons. c. Thus you cant uphold the law on crime prevention or fraud because these were not the reasons for the law. 4. Rehnquist dissents a. He says this should just be intermediate scrutiny. b. He says this is just a time-place-manner restriction. c. The government interests, preventing fraud and crime, protecting privacy, are significant. d. And, there are ample alternatives for expression. xvi. Cox v. Louisiana (1965) 1. The Court overturned Coxs conviction under a law prohibiting the obstruction of the free, convenient and normal use of any public sidewalk. 2. Goldberg for the Court a. The government can control travel on the streets to insure order. b. The statute here has not been applied fairly.

c. And it has no standards for the determination by local officials as to which assemblies to permit. 3. Heffron v. ISKCON (1981) a. The Minnesota state fair prohibited the sale or distribution of any merchandise except from booths. b. White majority i. There is a significant government interest here, the need to maintain the orderly movement of the crowd. ii. The space in the booths is allocated first come, first serve. iii. The rule is content neutral. iv. It is improbable that alternative means would deal adequately with the problem. v. If you make an exception for one group, youre going to have to make it for all groups and that will be a real problem. It will defeat the regulation. c. Brennan dissent i. He says the law is not narrowly tailored. ii. If really worried about traffic, they could have structured the rule to just cover the entrances and exits. iii. For Brennan, you allow as much speech as you can. xvii. Metromedia, Inc. v. San Diego (1981) 1. Plurality plus three dissenters would find a ban on all billboards ok. 2. The plurality said the San Diego ordinance was impermissibly content-based because of the number of exceptions. This leads to content distinction. xviii. Members of City Council v. Taxpayers for Vincent (1984) 1. The law prohibited the posting of signs on public property. 2. There was no dispute that improving the citys appearance was with the citys power or that this interest was basically unrelated to the suppression of ideas. 3. Thus the citys interest is aesthetics. 4. Using OBrien/intermediate scrutiny. 5. The law was narrowly tailored because by banning the signs, the city did no more than eliminate the exact source of the evil it sought to remedy. 6. The Court distinguishes from Schneider. a. In Schneider, they banned leafleting because of the possible byproduct of littering. b. Here visual blight is not merely a possible byproduct, it is created by the medium of expression itself. 7. There is also a difference between signs on private property and on public property

8. Stevens for the Court also holds that this is not a public forum. You dont have a traditional right to utility poles like you do for streets or parks. a. For public forum doctrine, he says a traditional right of access is important. b. The 1st Amendment does not guarantee access to government property simply because it is owned by the government. 9. At some point government is like any other property owner. 10. Brennan dissent a. People with unpopular views cannot rely on posting on private land. b. This is an effective means of communication. c. He also says the ban is problematic because it is a total ban of a particular media and there is no equivalent alternative media. d. He is also skeptical of aesthetic interests, he thinks they are often a faade for content-based suppression. e. The Court should require proof of the legitimacy of the aesthetic objective. f. It could also have a less restrictive alternative, say regulating the density of signs. xix. Clark v. Community for Creative Non-Violence (1984) 1. Under the regulation, camping in National Parks is permitted only in campgrounds designated for that purpose. 2. This is a conduct regulation a. Field says you could make an argument this is track 3, meaning rational basis. 3. The court assumes this is expressive conduct/symbolic conduct. 4. The Court says the Park regulation is sustainable under OBrien. 5. The regulation is a restriction the manner in which demonstrations can be carried out. 6. The regulation is content neutral. 7. The interest is maintaining the parks, and the regulation narrowly focuses on that substantial interest. 8. Marshall in dissent says there is no evidence that sleeping as symbolic speech will cause substantial wear and tear on park property. xx. Ward v. Rock Against Racism (1989) 1. New York City had a regulation mandating the use of cityprovided sound systems and technicians to control the volume of concerts in Central Park. 2. This is the case where the Supreme Court says the OBrien test does not require the least restrictive alternative.

3. Rather, so long as the means are not substantially broader than necessary to achieve the government interest, the regulation will not be held invalid. 4. Court then found the regulation was a reasonable regulation of the place and manner of expression. xxi. Frisby v. Schultz (1988) 1. A group ranging from 11 to over 40, all of whom opposed abortion, protested on 6 occasions within one month the residence of a doctor who performs abortions. 2. The town passed a flat ban on all residential picketing. 3. Court held that the ordinance was content-neutral 4. Was narrowly tailored 5. And it left open ample alternative channels of communication. a. The protestors were free to march through neighborhoods so long as they did not focus on a particular residence. 6. The court (OConnor) said there is no right to force speech into the home of an unwilling listener. 7. The 1st Amendment permits the government to prohibit offensive speech as intrusive when the captive audience cannot avoid the objectionable speech. 8. Brennan dissent a. You can more narrowly tailor b. You could limit the number of picketers c. Limit the hours d. Limit the noise of the picketers. 9. Stevens dissent a. The scope of the ordinance gives town officials far too much discretion in making enforcement decisions. xxii. Madsen v. Womens Health Center, Inc. (1994) 1. This is an injunction case. 2. Rehnquist opinion a. An injunction is not content or viewpoint based. i. An injunction is always against specific people ii. But it is imposed not for the view, but because in this case, they violated a previous injunction. b. The injunction cannot discriminate, so it cannot burden more speech than necessary. c. Here the injunction serves several compelling government interests: i. Protecting womans freedom to seek lawful medical or counseling services in connection with her pregnancy ii. Ensuring the public safety and order iii. Promoting the free flow of traffic on public streets iv. Protecting the property rights of all citizens v. And the right to medical privacy.

d. He upheld the 36 foot buffer for the front of the clinic so that women and staff had access to the clinic. e. He struck it down for the sides and back because there was no showing it interfered with clinic access. f. He upheld the part of the injunction restricting high noise levels, noting noise control is particularly important around hospitals and medical facilities during surgery and recovery periods. i. The First Amendment does not demand that patients at medical facility undertake the Herculean efforts to escape the cacophony of political protests. g. Rehnquist invalidated the injunction covering observable images. i. He said it is much easier to pull the curtains then to stop up your ears. h. Majority also invalidated 300 foot zone saying you cannot approach someone. i. This burdened more speech than necessary to prevent intimidation. j. The 300 foot buffer would prohibit a general march of protest through the zone. i. There are lesser alternatives like a limitation on time, duration of picketing, or the number of picketers. 3. Stevens concurrence a. He thinks the court should be more deferential to injunction than ordinances b. The majority is applying intermediate scrutiny in essence. c. Stevens would have upheld the 300 foot buffer. 4. Scalia dissent a. He said there was no finding of violence or an attempt to prevent access. b. He would have struck down everything. c. He says the restrictions are content-based because targeted suppression of particular ideas. d. Protestors have a right to protest where they want on a public sidewalk. xxiii. Schenck v. Pro-Choice Network of Western New York (1997). 1. This case again involves an injunction against protestors outside an abortion clinic. 2. The injunction had a floating buffer component, which said protestors had to stay fifteen feet away from any person or vehicle seeking access to or leaving such facilities. 3. The protestors could approach persons entering or exiting the clinics to make non-threatening conversation, but if requested to cease and desist, they had to retreat 15 feet from the people.

4. Also a fixed buffer of 15 feet from doorway entrance and the parking lot entrance. 5. Rehnquist majority a. He struck down the floating buffers but upheld the fixed buffers. b. The problem with the floating buffer is it is hard to remain in compliance with. c. Protestors also need to be able to protest and get their message out. d. The buffer meant protestors couldnt use their normal voice or pass leaflets. 6. Scalia dissent a. The fixed buffer is not based on access but on preventing people from hearing unwanted speech. xxiv. Hill v. Colorado (2000) 1. The state passes a statute which creates 8 foot buffer zones around people outside abortion clinics. 2. Protestors cannot knowingly approach another person without that persons consent for the purpose of passing a leaflet or handbill or to engage in protest, education or counseling. 3. Stevens majority a. This is a valid content-neutral time, place and manner regulation. b. It is content neutral because it is not regulating speech, it regulates where the speech may occur. i. It applies to all protest and all counseling whether or not about abortion and regardless of ones view on abortion. c. The statute is narrowly tailored to important interests in privacy and access to abortion d. And it leaves protestors adequate alternatives. 4. Scalia dissent a. (Field notes all the dissenters are Catholic) b. Scalia says this is obviously content-based because whether the speaker get permission to approach depends on what the speaker intends to say. c. This is not narrow tailoring to the interest of preserving access. 5. Field: Could analogize these cases to the funeral protest cases, where if a general content-neutral rule is set before the protest, that is constitutional. c. Speech Outside Traditional Public Forums i. United States v. Grace (1983) 1. The law says you could not display a flag, banner, etc. in the Supreme Court building or on its ground.

2. The idea behind the law is that the Supreme Court is above politics. 3. White for the Court: a. The sidewalks outside the Court look like any other public sidewalk. b. Sidewalks are traditionally open areas. c. This is not a time, place or manner restriction. d. He found no sufficient connection with any of the asserted state interests to warrant the restriction. e. The Court is very skeptical the public will draw the opinion that the Court is swayed by picketing. ii. Brown v. Louisiana (1966) 1. Young black men enter the library and sit down in violation of the white people only policy. 2. They are convicted for breach of the peace 3. Fortas plurality a. The men sat there quietly. There was no disorder. b. There was no intent to provoke a breach. c. Segregation at this point is unconstitutional, so they are allowed to be there. d. There can be no claim that others use of the library was disturbed. 4. Brennan and White concurrence a. They did not depart from what normal library use would contemplate. 5. Black dissent a. The First Amendment does not guarantee the right to use someone elses property, even that owned by the government, to express dissident ideas. iii. Adderley v. Florida (1966) 1. The Court upholds the conviction of 32 students for trespass on a jail. 2. Black majority a. There is not a shred of evidence in the record that the arrest power was exercised because the sheriff objected to what was said or sung. b. The sheriff arrested the students for being on jail grounds. c. The state can enforce trespass for being on the curtilage of the jail. d. The state, no less than a private owner of property, has the power to preserve property under its control for the use to which it is lawfully dedicated. 3. This case is really a transition to the non-public forum doctrine. a. Douglass dissent

i. The jail is like a courthouse, legislature is a seat of govt and there is an ancient right to petition for a redress of grievances. ii. Whenever students are asked to move from the driveway, they did. iii. The minority also expresses the idea that those of lesser means dont have access to radio or TV, so have to allow these protests. iv. Grayned v. Rockford (1972) 1. Upheld an ordinance banning a demonstration near a school. 2. The law stated no person on grounds adjacent to any school building in which a class is in session shall willfully make or assist in the making of any noise or diversion which disturbs the good order of school. 3. A silent vigil might not unduly interfere, but schools cant tolerate boisterous demonstrations that drown out classroom conversation. v. Lehman v. Shaker Heights (1974) 1. The town had a rule against political advertising on buses. 2. They allowed commercial advertising. 3. Blackmun plurality a. The city is engaged in commerce b. This space for ads in busses is part of a commercial venture c. In developing ad revenue, the city is free to refuse certain ads on the bus. d. The Court says revenue from long-term commercial advertising could be jeopardized by short term political ads. e. Also, could choose to do this because worried about favoritism or the perception of favoritism. f. To hold otherwise would mean that display cases in public hospitals, libraries, office buildings and other public facilities would become Hyde Park, open to every wouldbe pamphleteer. vi. Southeastern Promotions, LTD. V. Conrad (1975) 1. The 1st Amendment violated when municipal board managing a city theater refund refused to present the musical Hair. 2. Blackmun majority a. He says the municipal theater is a public forum. b. They were not trying to use the theater for a competing use c. Nor is this restriction a time place or manner restriction. No rights of individuals in surrounding areas were violated by noise or other aspects of the production. d. There is no captive audience e. And the fact of whether or not the production of Hair could use a private theater is irrelevant. f. The refusal to allow them to use the theater is a prior restraint imposed without sufficient procedural safeguards.





3. Rehnquist in dissent says this is absurd. a. This would mean the theater could not devote a season to just Shakespeare. b. Field counter is the real objection is that the refusal is based on standard-less. Flower v. United States (1972) 1. Per curiam 2. 7-2 decision reversing a conviction for distributing leaflets within the boundaries of a base. 3. The military had not excluded the public from the streets. Greer v. Spock (1976) 1. Narrows Flower 2. 2 regulations banned political activities on the base. 3. The Court (Stewart) says the base is there to train soldiers, not act as a public forum. 4. Military bases are not like streets or parks 5. They have not historically been treated as such. 6. The regulations were evenhandedly applied to keep official military activities free from military entanglement. 7. Powell concurrence a. The question is whether the manner of expression is incompatible with the normal activity of the place. b. The regulations here are justified by a desire to make a clear divide between military and politics. 8. Brenna dissent a. The Court should take a flexible approach. b. This is not necessary for neutrality. c. Streets unrestricted to civilian traffic should allow leafleting. United States v. Albertini (1985) 1. OConnor majority upholds the special nature of military bases. 2. Bases are not a public forum just because the public is allowed in on that day. U.S. Postal Service v. Council of Greenburgh Civic Assns (1981) 1. Rehnquist opinion a. Mailboxes are not a traditional public forum. b. Mailboxes are property owned and controlled by the government. c. A person agrees to obey by postal regulations by putting out a letter box. d. Since not a traditional forum, he doesnt have to worry about time, place, or manner analysis. e. Property owned by the government which is not a public forum may be subject to a prohibition of speech without running afoul of the 1st Amendment as long as the govt

acts reasonably in imposing such restrictions and the prohibition is content-neutral. f. This regulation is content neutral. 2. Stevens dissents a. He says mailboxes are private property b. And the law interferes with the right to receive information. xi. Perry Education Assn. v. Perry Local Educators Assn. (1983) 1. The case involves competing teachers unions and an interschool mail system. 2. A provision in the collective bargain agreement restricts access to the interschool mail system and teacher mailboxes to the incumbent union. 3. The school is a state actor. 4. White majority a. This is not a public forum. b. The court says public property which is not by tradition or designated a public forum has different standards. c. This is not a limited public forum because the school granted selective access d. Even if it was, the right of access would just be for similar civic groups that were given access e. The Court says this is not viewpoint discrimination, but status. The union is allowed to use the mail system because they are incumbents. xii. Cornelius v. NAACP Legal Defense and Educ. Fund (1985) 1. OConnor plurality a. There is an annual charitable fundraising drive (charity drive) conducted in federal offices b. They only let in charities dealing with health and welfare. Do not let in legal defense or political advocacy. c. Nothing is in the designated public forum category unless the government intends it to be a designated public forum. d. She is not persuaded this is a designated public forum because the governments consistent policy has been to limit participation in the CFC to appropriate voluntary agencies. e. The campaign was created to lessen the amount of expressive activity. f. Since this is a nonpublic forum, the exclusion is only held to a standard of reasonableness. g. There is also no requirement that the restriction be narrowly tailored or that the government interest be compelling. h. It was reasonable to conclude that help for food/shelters is more important or that participation in legal advocacy or political advocacy would generate controversy.

2. Blackmun dissent a. He argues that the CFC is a limited public forum. b. That means need a compelling government interest. c. There is no such interest here d. Nor is the restriction one that reserves the CFC for expressive activity compatible with the property. e. He also argues that the restrictions are blatantly viewpointbased. 3. Stevens dissent says this could all be struck down on the grounds of viewpoint discrimination. xiii. United States v. Kokinda (1990) 1. The Court upheld a Postal Service prohibition of soliciting contributions on postal premises. 2. The post office was a freestanding building with its own sidewalk and parking lot. The sidewalk is owned by the Post Office. 3. OConnor plurality a. The sidewalk is a nonpublic forum. b. The regulation was viewpoint neutral and reasonable as applied. c. It is reasonable to prohibit solicitation because it is disruptive to the business. 4. Kennedy concurs: a. He thinks this may be an appropriate place to have free speech. b. As society becomes more insular/times change, it becomes essential to protect public places where traditional modes of speech can take place. c. But finds this to be a reasonable time, place and manner restriction. 5. Brennan dissent a. It is a sidewalk, so it is a public forum. b. Even if not, it is a limited purpose forum. c. That means need a compelling interest to which any exclusion is narrowly tailored. d. Not narrowly tailored as you could design rules governing solicitation that fall short of a total ban, such as hour limits, or the placement of tables. xiv. ISKCON v. Lee 1. Court 5-4 says this airport is a public forum. 2. 6-3 they uphold the solicitation ban. 3. 5-4 They invalidate the ban on sale or distribution of literature. 4. Not a public forum a. Rehnquist i. Airports have not been immemorially held in public trust and used for purposes of expressive activity. ii. These are not traditional forums.

iii. And they have not been opened up by the operators. b. Kennedy partial concurrence disagrees on this point i. Airports are open, public spaces and thoroughfares which are suitable for discourse. ii. They can be public forums regardless of their historical pedigree. iii. Have to recognize new types of government property as appropriate forums. c. Souter partial concurrence i. It doesnt make sense to just define public forums by historical definition. 5. Solicitation ban a. Rehnquist i. Solicitation can impede the flow of traffic ii. Delays in airports are particularly costly. iii. There is already too much congestion, so the ban is reasonable. b. OConnor concurs i. Just because it is a nonpublic forum does not mean the government can restrict in any way it likes. ii. You still have to make some inquiry into the nature of the nonpublic forum. iii. She still finds the ban reasonable. c. Kennedy concurs i. The ban is a reasonable time, place, or manner regulation OR as a regulation directed at the nonspeech element of expressive conduct. ii. Solicitation creates a risk of fraud and duress. iii. Because the ban is on solicitation that collects money at that moment, that is the kind of solicitation that can lead to fraud. iv. The regulation is content-neutral. d. Souter dissent i. This is not narrowly tailored. ii. Duress is avoidable because a person can walk away. iii. Not narrow for fraud because can prohibit fraud or impose disclosure requirements. 6. Invalidate the ban on sale or distribution of literature a. Kennedy plurality i. The right to distribute flyers lies at the heart of the 1st Amendment. ii. The regulation was not narrow iii. And did not leave open ample alternative channels for communication.

iv. Congestion can be addressed by time and place restrictions. b. OConnor concurs i. With solicitation, the person has to stop. ii. With leafleting ,the person keeps moving, and so the congestion rational fails even a reasonableness standard. c. Rehnquist dissent i. Leafleting has the same risk of congestion as solicitation. ii. And those who accept may drop the leaflet on the floor, creating a safety hazard and need for cleanup. xv. Arkansas Educational TV Commn v. Forbes (1998) 1. Kennedy majority a. The broadcasters decision to exclude the candidate was a reasonable viewpoint neutral exercise of journalistic discretion. b. First Amendment obligations might not apply to most public television programming. c. But it does in the limited context of publicly televised debates because they are by design a forum for political speech. d. Kennedy concludes this is not a designated public forum. i. They did not intend to make it generally available. ii. It was not an open mike format. e. Under the standards of a nonpublic forum, the majority found the exclusion reasonable and view point neutral. f. Forbes was excluded because of his lack of support, not his platform. 2. Stevens dissent a. This is impermissibly standard-less discretion. b. There was no written criteria. c. He wants pre-established objective criteria. xvi. Marsh v. Alabama (1946) 1. Company town has to allow leafletters because it is a town. 2. If a company is performing what a government would do, you treat it like government, and so you have the right to leaflet. xvii. Amalgamated Food Employees v. Logan Valley Plaza (1968) 1. Peaceful union picketing of a supermarket in a privately owned shopping center. 2. Marshall majority a. This is like the company town in Marsh. b. They are inviting the public in to walk around and shop, so a public forum. c. Also they are protesting a market in the shopping center, so it is a particularly good place to protest.


xviii. Lloyd Corp v. Tanner (1972) 1. Protestors passing out anti-war leaflets in a shopping center. 2. The Court distinguishes Logan Valley 3. There it was an appropriate place to protest. 4. This is not. There is no relation to any purpose for which the shopping center was built is or being used for. xix. Hudgens v. NLRB (1976) 1. This case announced Lloyd had overruled Logan Valley 2. This case involved labor picketing of a store in a private shopping center. 3. If people dont have a right to enter the store to distribute flyers about Vietnam, then they dont have a right to enter to advertise their strike. Rights Subsidiary to the First Amendment a. Rights Not to Speak and Not to Distribute the Speech of Others i. Wooley v. Maynard (1977) 1. The case involved a NH law requiring most car license plates to carry the state motto, Live Free or Die. 2. The challengers were Jehovahs Witnesses. 3. Majority a. The statute in effect requires people to use their property as a mobile billboard for the states ideological message or suffer a penalty. b. The Court said the state interest was not sufficiently weighty state interest. ii. Red Lion Broadcasting Co. v. FCC (1969) 1. The Court upheld the 1st Amendment challenge to the FCCs fairness doctrine. 2. The scarcity of the broadcast spectrum justified imposing force access rights on unwilling media. iii. Miami Herald Publishing Company v. Tornillo (1974) 1. Case involved a Florida law allowing a right of reply, which granted political candidates a right to equal space to reply to criticism and attacks on their record by a newspaper. 2. Majority a. Government compulsion to publish that which the newspaper editor believes should not be published is unconstitutional. b. The choice of material to go into a newspaper and the decisions made as to limitations on the size and content of the paper and treatment of public issues and public officials whether fair or unfair constitute the exercise of editorial control and judgment. c. Government enforced right of access inescapably dampens the vigor and limits the variety of public debate. iv. Pruneyard Shopping Center v. Robins (1980)

1. A shopping center in accordance with its nondiscrimination policy of banning all expressive activity not directly related to its commercial purposes, had excluded several high school students who sought to solicit signatures for a petition protesting a UN resolution against Zionism. 2. California courts say the state constitution guarantees such speakers access to a privately owned shopping center. 3. The majority says this does not violate the shopping center owners First Amendment rights not to be forced by the state to use his property as a forum for the speech of others. 4. Even though the U.S. Constitution does not make you allow the protest, it is within the state constitutional power to force you to allow. 5. Perhaps if there was confusion as to who the speaker was, you could reject. 6. But in this case, the shopping center is open to the public, so unlikely the leafletters will be identified with the owner. 7. The state does not require a specific message so no worry of government discrimination. 8. And Pruneyard can disavow connection with the leafletters by posting signs. v. PG&E v. Public Utility Commn (1986) 1. The government said PG&E had to allow users to use the extra space in their billing envelopes. 2. An advocacy wanted to put in lower rate information and criticize higher rates. 3. This was speech the company disagreed with. 4. Extra space in envelope was defined as the difference between the bill and required legal notices. 5. The Court says compelled access like this penalizes the expression of particular points of view 6. And it forces speakers to alter their speech to conform with an agenda they did not set. 7. The state cannot restrict speech to certain topics or force appellant to respond to views that others may hold. 8. The distinguished Pruneyard. a. In that case there was no concern that access to the area might affect the owners exercise of his own right to speak. b. And the access right was not content based. 9. Here the commission gives access on the basis of viewpoint, with the goal of assisting groups that challenge PG&E. 10. The company has the right to be free from government restriction that abridges its own rights in order to enhance the voice of its opponents. 11. Marshall concurrence

a. The difference here is you cant use envelope space that you would for your own use. b. In Pruneyard there was no such interference. 12. Rehnquist dissent a. Only natural persons enjoy negative free speech rights because of their interest in self-expression. b. Extension of freedom of conscience to corporations strains the rationale of these cases beyond the breaking point. vi. Turner Broadcasting System v. FCC I and II 1. The broadcaster and the cable companies were fighting. 2. Congress passes the Cable Act of 1992 which says cable needs to get the consent of the big networks to retransmit. They cant just get the signal with an antenna and pump into the cable. 3. But the act also says for the little broadcasters, the UHF channels, that if a channel says it wants to be carried, then cable must deliver that content on the same channel or lower. 4. The cable company said this is compelled speech. 5. The Court said we apply intermediate scrutiny. 6. This is content neutral. It is based on giving broadcasters access, not based on what they say. 7. They said it is enough of a government interest to have a multiplicity of voices. Also interesting in preserving free over the air local broadcasts and promoting fair completion in the market for TV programming. 8. Cable also doesnt have a scarcity limitation like broadcast where you can get interference between channels. 9. And cable wont have to alter its messages to respond to the broadcast programming they are required to carry. 10. Was it narrowly tailored? The Court remands on this question. a. Reiterates the standard is intermediate scrutiny. b. The Court found it was too difficult to switch from UHF to cable. c. They give great deference to Congress in Turner II. Given conflicting views is their substantial evidence for the judgment Congress made. d. The Court cant displace Congresss judgment regarding content-neutral regulation with their own views. 11. OConnor dissents, arguing that the must-carry rules amount to impermissible content-based compulsion of speech. a. If you think diversity and local affairs is desirable, that is content based. 12. OConnor dissents from Turner II saying the level of scrutiny is too lenient. b. Rules regarding anonymity. i. Talley v. California (1960)

1. Invalidated a Los Angeles ordinance that prohibited distribution of any handbill unless it had the name and address of the person who prepared, distributed or sponsored it. 2. The Court held the law was void on its face. 3. Throughout history groups have been allowed to criticize laws or practices anonymously. 4. Requiring identification would tend to restrict freedom of expression. 5. They rejected the argument that the law was a way to fight fraud or libel saying the law was not limited to that. Not narrowly tailored. ii. McIntyre v. Ohio Elections Commission (1995) 1. The Court invalidated a law that prohibited the circulation of anonymous leaflets in connection with a political campaign. 2. Stevens majority a. A authors decision to remain anonymous is protected by the 1st Amendment b. There is a tradition of anonymity in advocacy of political causes, like the Federalist Papers. c. Strict scrutiny was appropriate because this burdened core political speech. d. Ohios interest in providing voters relevant information was not enough to overcome strict scrutiny. e. And it was too broad to ban fraud because it encompassed documents that werent fraudulent. 3. Thomas concurs a. Says under originalism, Frames engaged in anonymous speech b. And the Framers opposed attempts to have anonymous writers identities revealed. 4. Scalia dissent a. The majority is just accepting the view of John Stuart Mills over the people. b. Just because the Founders wrote anonymously does not mean there is a constitutional right to do so. c. Where the meaning of the 1st Amendment is unclear, the widespread and long accepted practices of the people is the best guide to what was intended to be enshrined. d. He would allow an exception for anonymity if you could show a reasonable probability of threats or harassment. iii. NAACP v. Alabama (1958) 1. Everybody knows if there was no anonymity, the members of the NAACP were going to be terrorized. 2. They say producing a membership list is a substantial restraint on freedom of association.

3. The interest offered by the state, to determine whether petitioners were conducting intrastate business in violation of Alabama law, was not compelling. 4. You dont need to disclose the rank and file members to meet this state interest. iv. Shelton v. Tucker (1960) 1. The law required every teacher to file an affidavit listing without limitation every organization to which he/she belonged or contributed over the last five years. 2. Stewart opinion says this disclosure impaired a teachers right to free association. 3. The scope of the inquiry of the law is completely unlimited. 4. Many of the associations could have no possible bearing on a teachers competence or fitness. 5. The purpose of investigating the fitness of teachers is legitimate and substantial 6. BUT, the end here could be more narrowly achieved. 7. Frankfurter dissent a. Schools need to know the number of organizations a teacher belongs to in order to know if the teacher is overcommitted. b. Also listing the organizations provides references to investigate the teachers. c. If there is evidence that the information is used to terminate teachers based on associations, that would violate the 14th Amendment. v. Doe v. Reed (2010) 1. Washington law required the names and addresses of people who sign a referendum ballot petition to be disclosed. 2. Roberts majority a. Strict scrutiny the standard. b. Disclosure is substantially related to the government interest of combatting fraud and fostering government transparency. c. The typical referendum topic will not be as heated as gay marriage, so you dont need to worry about harassment. d. But a litigant can bring an as applied challenge to show disclosure poses a specific danger of threats/harassment. 3. Alito concurs a. People should be able to get the exception quickly and without clearing a high evidentiary hurdle. 4. Sotomayor concurs a. An as applied challenge is available only when the state selectively applies a neutral disclosure requirement to discriminate on the basis of content or viewpoint

b. OR it is available in the rare circumstances when disclosure poses a reasonable probability of serious and widespread harassment that the state is unwilling or unable to control. 5. Stevens concurs a. For an as applied challenge to succeed, there has to be a significant threat of harassment that cannot be mitigated by law enforcement measures. b. He would demand strong evidence before concluding an indirect and speculative chain of events imposes a substantial burden on speech. 6. Note there are only 4 votes for the high burden, and 1 explicit vote for the low burden. 7. Scalia concurs in the judgment a. Signing a petition doesnt fir the 1st Amendment at all. b. The nation has a long-standing tradition of legislating and voting in public. c. When a citizen signs the petition he/she is acting as a legislator and the exercise of law making power has traditionally been public. d. As for the fear of harassment, there are laws against intimidation. e. Harsh criticism is a price people pay for self-governance. 8. Thomas dissents a. This is unconstitutional because it severely chills citizen participation in the referendum process. b. He applies strict scrutiny. c. That means can only use the least restrictive means. d. He lists several ways this interest could have been done less restrictively. vi. Buckley v. Valeo (1976) 1. Per curiam 2. The law requires the candidates and political committees to maintain records of the name and address of every person who gives more than $10 in a calendar year. 3. You need the occupation and principal place of business if the contribution exceeds $100. 4. The standard is strict scrutiny. 5. There are three government interests a. It provides info to voter about where the money comes from b. Deters actual corruption and avoids the appearance of corruption c. It is an essential means of gathering the data necessary to detect violations of the contribution limits. 6. The court agreed that disclosure was the least restrictive means of curbing campaign ignorance and corruption.

7. The Court did say for minor parties there could be a case where the threat to the exercise of 1st Amendment rights is so serious and the state interest furthered so insubstantial that the act is unconstitutional as applied. 8. Burger dissent a. Secrecy as to political preferences is fundamental in a free society. b. The threshold limits are much too low to be plausibly linked to a rationale of fighting corruption. c. There is no legitimate public interest in forcing the disclosure of modest contributions that are the prime support of new unpopular or unfashionable political causes. vii. Brown v. Socialist Workers 74 Campaign Committee (1982) 1. Marshall for unanimous Court 2. The Socialist Workers Party in Ohio had made a sufficient showing of a reasonable probability of threats, harassment, or reprisals that it could not be compelled to disclose campaign contributions. 3. Over 3 dissents, the Court also held the party could not be required to disclose campaign disbursements. viii. McConnell v. Federal Election Comn (2003) 1. Majority upholds disclosure requirements for expenditures for socalled electioneering communication, defined as broadcast ads that specifically identity any candidate for federal office within 60 days of an election or 30 days before a primary. 2. The requirement was closely tailored to keeping voters informed and deterring actual or apparent corruption. ix. Citizens United v. FEC (2010) 1. The Court upheld disclosure requirements as applied to Hillary a documentary critical of Sen. Clinton. 2. Kennedy majority a. Disclosure is a less restrictive alternative to more comprehensive regulation of speech. b. Citizens United offered no evidence its members might face threats. c. With the advent of the Internet, prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and support. 3. Thomas dissent a. Congress cannot abridge the right to anonymous speech based on an interest in providing voters additional information. b. After Prop 8, a lot of supporters were intimidated c. This has spawned a cottage industry to use forcefully disclosed donor information to intimidate.

c. Freedom to Associate or Not to Associate i. There is no explicit right of association in the 1st Amendment. ii. There is a right to assemble. iii. You can also infer the right from the right to free speech: I have a right to join with others to push our views together. iv. You could call this a conscience right, and if you do, you could say you can take it away from corporations because they have no conscience. v. NAACP v. Alabama clarified that the right to associate could not be infringed. vi. Abood v. Detroit Bd. of Educ. (1977) 1. Every nonunion employee was required to pay to the union a fee equal to union dues as a condition of employment. 2. Nonunion members objected to paying this fee. They said they were objecting to the union representing them. 3. The Court ruled that nonunion employees could be required to pay the fee. 4. This was allowed because forcing them to pay fees prevents free riders, assures labor peace and makes sure the collective bargain system works properly. 5. But the challengers won on the point that they could not be forced to pay for ideological union expenditures not directly related to collective bargain. 6. Unions are free to advance ideological views not part of collective bargaining, but they cant fund with the nonunion fees. 7. If you dont like the ideological position the union takes, you have to object and get a rebate. 8. Powell concurrence a. The union should have the burden to show it needs the money rather than dissenting employees having to come forward. vii. In subsequent cases, the Court has been fairly liberal in what can use nonmember money for. Has allowed for union conventions, publications, and social activities. viii. Compare to the government where a taxpayer has no standing to sue if he/she doesnt like how taxpayer money is being spent. The reason is the taxpayer amount is a small part. 1. Exception to this rule is Flast v. Cohen where taxpayer objected to spending government money that went to a church. 2. The Court held there was standing because the establishment clause says public money cant be spent on religion. ix. Keller v. State (1990) 1. Restricted use of compulsory state bar dues to expenditures for regulating the legal profession or improving the quality of legal services. 2. You could not spend the money to endorse gun control or a nuclear weapons freeze.

x. Davenport v. Washington Education Assn (2007) 1. Washington state law said the union had to bear the burden and get affirmative consent in advance before making any non-germane expenditure. 2. The Court says this is not required, but a state is allowed to do this. 3. This is moving the burden from the nonunion member to the union. xi. Board of Regents of The University of Wisconsin v. Southworth (2000) 1. The Court rejected a 1st Amendment challenge to a public universitys requirement that students contribute to a student activity fund used in part to support controversial student advocacy organizations. 2. Universities are different. 3. The standard of what is germane speech is unworkable at universities. 4. The proper requirement is viewpoint neutrality. 5. So you can require students to contribute to the fund. xii. Glickman v. Wileman Bros (1997) 1. The case involved agricultural marketing orders assessing from California fruit growers the costs of generic advertising of California nectarines, plums, and peaches. 2. Stevens for the majority a. The marketing order imposes no restraint on the freedom of any producer to communicate any message to any audience. b. They do not compel any person to engage in any actual or symbolic speech. c. They do not compel the producers to endorse or finance any political or ideological views. d. The Court says with trivial exception none of the generic advertising conveys a message respondents disagree with. e. This is different from Abood because having to pay wont cause any crisis of conscience. f. This is not ideological or political like in Abood. g. The generic advertising is consistent with regulatory goals of the overall statutory scheme. 3. Souter dissent a. We should apply Central Hudson. b. Under that test the governments justification is inadequate. c. He added that Abood is not as permissive as the majority makes it seem. d. That case applies strict scrutiny and it requires the compelled speech to be justified by a vital policy interest of the government. e. Nothing in the Abood case says that government can compel funding nonpolitical speech.

f. The respondents here do disagree with some of the messaging they are forced to fund. g. They also think the generic ads are bad, creating the idea that their products are interchangeable. h. They should be allowed to spend the money on brand specific ads. xiii. United States v. United Foods, Inc. (2001) 1. Kennedy majority a. Mushroom growers object to funding generic mushroom advertising. b. The Court distinguishes Glickman because there the ads were ancillary to a more comprehensive program restricting marketing autonomy. c. Here the ads are the principal object of the regulatory scheme. d. They will not uphold compelled subsidies for speech where the speech is the principal object of the program. 2. Breyer dissent a. Why does it matter if there is more economic regulation? b. Like Glickman, the ads here cant trigger a crisis in conscience. c. He argues the ads should be treated as a type of economic regulation, not speech. d. Even if subject to the 1st Amendment, you need a substantial government interest under Central Hudson, and you have one here. It is the government interest in agricultural promotion and it is done by proportionate means. xiv. Johanns v. Livestock Marketing Association (2005) 1. The case involved beef promotion. 2. Scalia majority a. There is no broader regulatory system in place here. b. But he rejects the 1st Amendment challenge because this is government speech. c. Compelled support of government speech, even for programs one does not approve of, is constitutional. d. Here the message of the campaign was controlled by the government itself. e. It does not matter whether the money comes from general taxes or through targeted assessment. f. The Act did not require that the ads be attributed to the government, so this could serve as an as applied challenge if you could show the ads were being attributed to the challengers. 3. Ginsburg concurrence a. Upholds as permissible economic regulation.





4. Souter dissent a. This is just like United Foods, where we struck the law down. b. If the government is going to rely on the government speech doctrine, it has to attribute the content to the government. There are two different rights of associate. 1. One is associating for expressive purposes. If there is compelling interest, the government can restrict/regulate this. 2. The other is intimate association. a. This is who your friends are, who you invite to your house. b. It also covers private clubs/country clubs. c. This cannot be regulated. Roberts v. United States Jaycees (1984) 1. The state statute says no sex discrimination. 2. The association says full voting membership is limited to men between 18 to 35. 3. The Court finds this is an expressive association for civic and educational activities. 4. The state has a compelling interest in eradicating gender discrimination. 5. The anti-discrimination law is content neutral. 6. This compelling interest outweighs the expressive association interest. 7. The Court says the Act requires no change in the Jaycees cred of promoting the interest of young men 8. And it imposes no restrictions on the organizations ability to exclude individuals with ideologies different from those of its existing members. 9. OConnor concurrence a. The Jaycees are primarily a commercial association and so state regulation is readily permitted. b. But expressive associations should be protected. Rotary International v. Rotary Club (1987) 1. The Court allowed a California anti-discrimination law to apply to the rotary club, meaning women had to be admitted. 2. The Court said this did not interfere with intimate association or expressive association. 3. It did say in a footnote it was not considering the right to associate in private clubs. a. Whether the zone of privacy extends to a particular club requires careful inquiry into the objective characteristics of the particular association at issue. New York State Club Assn v. City of New York (1988) 1. Upheld a law prohibiting discrimination in any club or place of accommodation that has more than 400 members, provides regular

meal service, and regularly receives payment from nonmembers for facilities and services for the furtherance of trade or business. 2. The Court said it was possible an association could show it was organized for an expressive purpose and it will not be able to advocate for that viewpoint nearly as effectively if it cannot confine its membership. 3. That was not the case here, so discrimination law applied. xix. Boy Scouts v. Dale (2000) 1. Scout master was gay. 2. NJ law says you cant discriminate on the basis of sexual orientation. 3. A lot of the things the Court says the Boy Scouts stand for are what the group says it stands for now. 4. The Boy Scouts say morally straight and clean conflict with homosexuality. 5. The Court does say sexuality is not expressly mentioned in the various creeds and that the terms are not self-defining. 6. But the Court says it is not the role of the Courts to reject a groups expressed values because they disagree with those values or find them internally inconsistent. 7. Thus they accept the Boy Scouts assertions. 8. The Court says it will also give deference to an associations view of what would impair the expression. 9. Dales presence would interfere with the Boy Scouts choice not to propound a point of view contrary to its beliefs. 10. The Court distinguished Jaycees because there the Court said it would not materially interfere with the ideas that the organization sought to express. Here it would interfere. 11. Dissent a. Neither morally straight nor clean says the slightest thing about homosexuality. b. Dales inclusion does not send any cognizable message. c. Thus, you cant keep him out. xx. Hurley v. Irish-American GLIB (1995) 1. Privately organized St. Patricks Day Parade. 2. Massachusetts has an antidiscrimination law covering sexual orientation. 3. Gay Irish-Americans wanted to march in the parade. 4. The Court admits the council is rather lenient in admitting participants in the parade. 5. But they were not banning gay people, but the banners expressing gay pride. 6. The Court says this would conflict with the message of the parade. 7. The Court rejected the analogy to Turner, saying a parade, unlike a cable system, is not a mere conduit that is unlikely to be identified with the speech it carries.

8. It did not matter that the parades message was not wholly articulate. xxi. Rumsfeld v. FAIR (2006) 1. Case involves the Solomon Amendment which denied federal funding that prevents the military from gaining access to campus or access to students for the purposes of military recruiting in a manner that is equal to other employers. 2. Roberts for unanimous Court a. The Solomon Amendment regulates conduct, not speech. b. Law schools are not forced to support the military or dont ask, dont tell. c. A law schools decision to allow recruiters on campus is not inherently expressive. The purpose is to help students get jobs. d. There is little danger that the military recruiters speech would be erroneously attributed to the law school. e. This is not compelled speech because it did not dictate the content of speech at all, and it only requires forwarding a recruiting e-mail from the military if the school provides such speech for other recruiters. f. Also, if the law school doesnt like this, it can reject the federal funds. 3. Problem with the reject the funds approach is the leverage argument. They would withdraw the federal funds for the whole University. a. So could cite FCC v. League of Women Voters b. But if want to counter that argument, you can cite ALA. d. Political Expenditures and Campaign Contributions i. Policy arguments in favor of campaign finance 1. We dont think one person one vote is an example of reducing the speech of some to enhance the relative speech of others. Why should superior spending power be rightfully mine if superior voting power is not? 2. In the political process, ideas and candidates should prevail because of their inherent worth, not because one side puts on a more elaborate show of support. 3. Buckley like Lochner rests on a decision to take the market status quo as just and pre-political, and to use that decision to invalidate democratic efforts at reform. ii. Buckley v. Valeo (1976) 1. Per curiam a. The court finds limits on individual contributions acceptable. i. At the time the limit was 1000. 2. A limit on contributions involves little direct restrain on political communication, for it permits the symbolic expression of support

evidenced by a contribution, and does not in any way infringe the contributors freedom to discuss candidates and issues. 3. There is an exception if the limits are so drastic that they would greatly affect campaigns. 4. The justification accepted for the limits is combating corruption and the appearance of corruption resulting from large donations. 5. Expenditure is different from contributions. 6. Limiting expenditures places direct limitations on the quantity of speech. a. The interest in fighting corruption is covered by disclosure. 7. The Court also strikes down the expenditure limit for independent groups that advocate for the election or defeat of a candidate. 8. The Court rules that the absence of prearrangement and coordination alleviate the danger that this will cause corruption. 9. The direct contribution limit did not apply to soft money. a. Soft money was money for the purpose of influencing state or local elections or issue advocacy. b. Express advocacy was ads containing the magic words like elect or defeat, and those could only be funded using hard money, which was subject to the disclosure and contribution limits. i. Again there is no limit on how much you can expend for direct advocacy. c. Issue advocacy can be funded with soft money and soft money could be donated to the parties or paid for directly by advocacy organizations, corporations, and unions. d. Issue advocacy also did not require disclosure. e. FEC rulings held that soft money could go to mixed state/federal election activities, such as GOTV and generic party advertising. 10. The Court also said that controlled or coordinated expenditures are treated as contributions rather than expenditures under the Act, and are therefore restricted by the contribution limits. 11. The Court also stuck down the limits on expenditures by the candidate or their immediate family. a. The interest in equalizing the relative resources of candidates is not sufficient to justify this restriction. 12. The Court also upheld the public financing system. a. The system provided more funding for major party candidates than minor party candidates. b. As a condition of getting public money, the campaign had to limit expenditures to the amount of the subsidy. c. The Court says this system is fine because it is designed to encourage speech. d. If the candidate doesnt want the limits, they dont have to take the money.

13. Burger dissent a. Contributions and expenditures are two sides of the same coin. b. Limiting contributions will limit expenditures. c. The reason people spend money on political activities is they wish to communicate ideas. 14. White dissent a. It makes little sense to limit contributions, but not expenditures. b. The two reinforce each other and help eradicate corruption. c. This will also lessen the need for fundraising and free candidates to communicate in ways not connected to fundraising. d. It is also acceptable for Congress to say elections should be decided among candidates, none of whom has a ton more money. e. He also would have upheld the limit on personal expenditures because it ensures candidates have a modicum of support. f. Both of these restrictions would help dispel the idea that elections are purely about money. 15. Blackmun dissent a. Against upholding the contribution restrictions. b. There is no distinction between limits on contributions and limits on expenditures. 16. Marshall dissent a. He dissents from the limits on how much of his/her own money a candidate can spend. b. He emphasizes the interest in promoting the reality and appearance of equal access to the political arena. 17. Burger/Rehnquist a. They dissent from the part that upholds the public financing provisions. b. Rehnquist argues Congress has enshrined the Republican and Democratic parties in a permanently preferred position. iii. By previous law corporations (1907) and labor unions (1947) could not give hard money, that is money from their own treasuries. They were allowed to set up PACS. iv. Nixon v. Shrink Missouri Government PAC (2000) 1. Souter majority a. He reiterated contribution limits are subject to greater deference than expenditure limits. b. Contribution limits will survive if closely drawn to a sufficiently important interest such as preventing corruption or the appearance of corruption. c. They do not face strict scrutiny.

d. The limits will only be struck down if they are so radical that they render political association ineffectual. 2. Kennedy dissents a. Criticizes the distinction between contributions and expenditures. b. This forces speech into loopholes like soft money. c. He also notes this is not a system designed by Congress, but instead was designed by the Court. d. He would overturn Buckley and free the congress or state legislatures to attempt some new reform, if that is possible given the 1st Amendment. 3. Thomas dissent a. It is strange to give less protection to campaign contributions than to nude dancing. b. He questions the distinction between expenditures and contributions. c. He is critical of the lower standard of scrutiny used to evaluate contribution limits. d. He wants to use strict scrutiny. v. Randall v. Sorrell (2006) 1. The Court reiterated the distinction between contributions and expenditures. 2. It rejects expenditure limits and the new reason offered for them: expenditure limits are necessary to reduce the amount of time candidates fundraise. 3. The Court also struck down the contribution limits as too low, meaning they prevent challengers from mounting effective campaigns. 4. Thomas concurs but says should overturn Buckley. 5. Stevens dissent a. He now believes there can be limits on expenditures. b. The Framers would have been appalled by modern fundraising practices. vi. Brown v. Hartlage (1982) 1. The candidate promised he would lower his salary to a more realistic level. 2. Brennan applies strict scrutiny. 3. Here the promise was like a promise to lower taxes. 4. It helped inform the voters and helped voters hold the politician accountable. 5. The candidate was not offering voters money, he was simply saying how he would use the fiscal powers of the office. vii. Colorado Republican Federal Campaign Committee v. FEC (Colorado I) (1996) 1. The law imposed dollar limits on expenditures in connection with a general election campaign of a congressional candidate.

2. Breyer plurality a. They dont reach the question if coordinated contributions can be limited. b. The Court strikes down the expenditure limit because here it was independent and uncoordinated from the candidate. An as applied challenge. c. Breyer plurality declines to find that party expenditures should be conclusively presumed to be coordinated. 3. Kennedy concurs a. He would strike down the expenditure limits on their face. 4. Thomas concurs a. Says he would strike down the limits on the ground that the anticorruption rationale has no place here because this is just political parties advocating ideas. 5. Stevens dissents a. The limits are constitutional because they avoid corruption and level the electoral playing field. viii. FEC v. Colorado Republican Federal Campaign Committee (Colorado II) (2001) 1. Souter majority a. Limits on coordinate expenditures are facially constitutional. b. He says the Court should apply intermediate scrutiny. c. They survive because of the interest in avoiding corruption and the appearance of corruption. 2. Thomas dissent a. He would overrule Buckley and apply strict scrutiny to contribution limits. b. The regulations also fail intermediate scrutiny. c. The government presented no evidence of corruption or of the perception of corruption, so that is not a valid interest. d. Even if there was evidence, there are more narrowly tailored solutions available, like banning bribery and having disclosure laws. ix. First National Bank of Boston v. Bellotti (1978) 1. The court held that the 1st Amendment prohibits a restriction on corporate expenditures for political speech from their own treasuries to express the corporate point of view for state referenda campaigns. 2. Powell majority a. The speech by the corporations is the type of speech indispensable to decision=making in a democracy. b. The inherent worth of the speech in terms of its capacity for informing the public does not depend on the identity of its source.

c. He says the law is content based and requires strict scrutiny. d. He rejects the reasons that corporations have an overwhelming or even significant influence on referenda in Massachusetts. There is no evidence of that. e. Second reason offered was protect shareholders whose views may differ from management. f. But the statute doesnt fit this reason well. i. It is under-inclusive in that it still allows lobbying ii. It is over-inclusive in that it forbids spending even if the shareholders unanimously agreed to the position. g. Shareholders can withdraw from these companies at any time. 3. White dissent a. Corporate communications do not constitute a principal function of the 1st Amendment, which is communication for self-expression, self-realization, and self-fulfillment. b. Ideas that are not a product of individual choice are entitled to less 1st Amendment protection c. Corporations are able to control vase economic power, which if not regulated could dominate the electoral process. d. The interest is preventing those who get a special advantage from the state to amass wealth from using that wealth to get an unfair advantage in the political process. e. Also the interest is making sure shareholders are not compelled to support speech they disagree with. 4. Rehnquist dissent a. The 14th Amendment does not require the state to endow a business corporation with the power of political speech. b. Corporations are created by the state and are entitled to the rights explicitly or implicitly guaranteed as part of the state charter. c. He would uphold the law even if the legislatures motive was to muzzle corporations on the tax issue. x. Citizens Against Rent Control v. Berkeley (1981) 1. A $250 limit on contributions to committees founded to support or oppose ballot measures struck down as interfering with the rights of association. 2. Burger majority says Buckley does not support limitations on contributions to committees formed to favor or oppose ballot measures. xi. Meyer v. Grant (1988) 1. Court strikes down a Colorado law prohibiting the payment of people circulating petitions in connection with a voter initiative. 2. Stevens opinion stresses this is subject to strict scrutiny

3. He is not persuaded that the prohibition is justified by its interest in making sure that an initiative has sufficient grass roots support or by its interest in protecting the integrity of the initiative process. xii. FEC v. Massachusetts Citizens for Life (1986) 1. The Court held that certain nonprofit ideological corporations like MCFL must be permitted to make independent campaign expenditures from their own treasuries. 2. They do not have to use PACs in these circumstances. 3. The law was analyzed under strict scrutiny. 4. The law cannot be justified by preventing corruption since the expenditures are independent 5. It cant be justified by protecting contributors from the diversion of their funds to a cause they dont support because people contribute to these organizations to support these views. xiii. Austin v. Michigan Chamber of Commerce (1990) 1. Ultimately overruled by Citizens United 2. Marshall opinion a. Upholds the Michigan law banning corporations from making independent expenditure from general treasury fund of corporation. b. Because of the nature of corporations they can amass resources in the economic marketplace and use them to obtain an unfair advantage in the political marketplace. c. The compelling interest is the distorting effect of immense aggregation of wealth with the help of the corporate form that has little correlation to the publics support of the corporations political position. d. This is unlike MCFL because they do not have a clear political goal 3. Scalia dissent a. The corporate advantages dont justify the restrictions. b. This is just an attempt to equalize spending power, which is not allowed. 4. Kennedy dissent a. Not all corporations are wealthy, so the statute is overinclusive. b. The government does not have a legitimate interest in equalizing the influence of different speakers. xiv. McCain/Feingold Reform. 2 main parts. 1. End soft money. The party could not solicit direct or spend soft money. 2. It placed limits on when electioneering communications could play: Not within 60 days of the general or 30 days of the primary. a. Electioneering communication was defined as an ad mentioning a candidate and targeted to the relevant electorate.

xv. McConnnell v. FEC 1. Stevens/OConnor opinion a. The law is designed to prevent soft money in federal elections. b. The national party cannot raise or spend soft money. c. The party cant donate money to tax-exempt organizations that engage in electioneering d. Federal candidates cant receive or solicit soft money. e. The Court points out that none of these restrictions limit the amount of money that can be spent. f. They limit the source of money. g. This means they apply less rigorous scrutiny. h. Large soft money contributions have a corrupting influence and give rise to the appearance of corruption. i. There is evidence of soft money leading to the failure to enact laws or ii. Manipulations of the legislative calendar. i. There is a worry that issues will be decided because a person made a large contribution. j. The law also said corporations and labor unions could not fund electioneering communications 60 days before the general or 30 days before the primary. k. The Court said that Buckleys magic word requirement is meaningless. l. The 1st Amendment does not create a strict line between express advocacy and issue advocacy. m. Corporations can form PACS for express advocacy. n. PACs could still do issue advocacy if it fell within the definition of electioneering communication. o. And corporations could do issue advocacy outside of the 60 or 30 day time frame. p. The Court said these restrictions were OK because issue advocacy within 30 or 60 days is the functional equivalent of express advocacy. q. The majority did strike down the requirement that if a political party wanted to spend more than 5K in coordination with nominee it could not use independent expenditures that used the magic words. r. The Court struck this down because the magic words distinction is meaningless. 2. Rehnquist for the court a. Found nonjusticiable the provisions that limit discounted airtime unless they promise not to run negative ads, the increases in the hard money limits, and the provision allowing staggered increases in contribution limits if the opponent spends certain amounts of his/her own money.

b. This part also struck down a provision banning kids 17 or younger from making contributions. c. Minors have free speech rights and the government offers little evidence that parents are using their kids to evade the limits. 3. Breyer opinion a. Upheld the requirement that broadcasters keep and make records of requests for political ads. 4. Rehnquist dissent a. Criticizes the majority for saying the close relationship between officeholders and the party make all donations to the party suspect. b. He says this means all donations to the party are regulated/restricted no matter their use. c. This kind of restriction is not closely drawn to the government interest, and hence unconstitutional. 5. Scalia dissent a. Effective communication requires money. b. Banning delivery of newspapers is just as effective as banning speech. c. The freedom to associate includes the pooling of financial resources for expressive purposes. d. There is no reason 1st Amendment rights should not attach to 1 form of association, the corporation. e. This form is often how issue advocates organize. f. The law does not stop quid pro quo corruption g. And corrupt influence is checked by disclosure. 6. Thomas dissent: a. A broadly drawn bribery law would cover all of this. b. The only problem of immense wealth is that it might be used to fund ads to vote one way or another. c. That is just the marketplace of ideas. 7. Kennedy dissent a. The principle of fighting corruption arising from the real or apparent creation of political debts has no limiting principle. b. It could be used to ban issue ads completely. c. PACs are an inadequate alternative because they face too much regulation. d. Corporations are engines of our modern economy. They should be able to alert the public to political issues. They should not face restraints that arent applicable to the established press. xvi. FEC v. Wisconsin Right to Life (WRTL) (2007) 1. Roberts plurality a. McConnell was a facial challenge; this is as applied.

b. The Court says McConnell had no test for what the functional equivalent of express advocacy is. i. This was the logic by which McConnell said it was ok to restrict issue advocacy because it was the functional equivalent of express campaign speech. c. You cant have an intent based test because that would lead to a trial on every ad. d. The Court creates a test: an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than an appeal to vote for or against a candidate. i. Contextual factors should seldom play a significant role in this inquiry. e. Since the ad here is not the equivalent of express advocacy there has to be a compelling interest and the law must be narrowly tailored. f. Quid pro quo corruption does not justify issue ads. g. The Austin justification, the distorting influence of great wealth accumulated in the corporation form which have little to no support for the corporations political ideas, does not work because it does not apply to issue advocacy. 2. Scalia concurring a. We should overturn McConnell and not do this as an asapplied challenge. 3. Souter dissent a. Corruption is not limited to bribery or quid pro quo. b. The ads in question were not tied to the issue, but the election. c. Any voter watching knew the ads were advocating voting against Feingold. d. The Court is effectively overturning McConnell. xvii. Davis v. FEC (2008) 1. This case invalidated the millionaires amendment. 2. Alito majority a. The provision said when a candidate spent > 350K, his/her contribution limits remained the same, and the opponents limits rose. b. This scheme burdened 1st Amendment rights to spend your own money. c. The burden was the advantage for the opponent. d. This is not justified by corruption because it is the candidates own money. e. And there is no government interest in leveling the playing field. 3. Stevens dissent

a. Reducing the importance of wealth and countering the perception that seats are for the wealthiest bidder are important interests. b. Enhancing the opponents speech advances core 1st Amendment principles as if only one candidate speaks, the ability to make a good choice is impaired. xviii. Citizens United v. Federal Election Commission (2010) 1. Kennedy opinion a. The movie is equivalent to express advocacy. b. Corporations cant advocate or electioneer within 30 days of a primary or 60 days of a general. c. PACs can, but this is a burdensome alternative. d. He strikes down the rule under the logic of Buckley and Bellotti. e. Austin is wrongly decided. f. Media companies are allowed to be corporations and to speak, and they often do so in ways with little correlation to public support. g. Also the Austin rationale could be extended to ban the printing of books. h. Moreover the ban is for all corporations, most of which are small, which means they dont have large wealth. i. As for the corruption interest, the Court concludes independent expenditures cant give rise to corruption because they are independent. j. Government also says they can do this because shareholders are compelled to speak. k. But if that is the reason, the statute is over inclusive because it includes all corporations AND because 30 or 60 day time frame doesnt fit that reason. 2. Scalia concurs a. The Founders hatred of corporations was a hatred of state charter monopolies. b. The right of free speech is only for individuals, but it includes the right to associate. 3. Stevens dissent a. Stare decisis is important b. Under Austin and McConnell, individuals could do as much electioneering as they want. c. And if they want to associate, they could rely on the MCFL exception. d. Corporations were disfavored by the Founders. e. The free speech right is an individual right. f. It is implausible Founders thought corporations have free speech rights.

g. Bellotti was about referendums, and the corruptions concerns are not as great in that context as they are with candidates. h. Corruption takes many forms and the difference between selling votes and selling access is a matter of degree. Donors get special access. i. And there is the issue that shareholders who disagree can have their money spent. xix. Arizona Free Enterprise Club v. Bennett (2011) 1. The law said public funded candidates got additional matching funds if private funding for their opponent plus independent expenditures for the opponent exceeded public funding. 2. Roberts opinion a. This is like Davis b. The system burdens individual speech rights. c. It is a heavy burden because opponents get money not just higher contribution limits and IE spending can trigger. d. Leveling the playing field is not a justifying reason. 3. Kagan dissent a. This law subsidizes and produces more speech. b. It is viewpoint neutral. c. The candidate has the option of participating in the public system, or not participating. d. Davis is different because the law there applied different levels of restrictions to different candidates. This is a subsidy. xx. Lessigs thoughts 1. There are two elections. a. The general election b. And the money election 2. In the 2012 election cycle, .3% gave $200 or more. 3. .055% gave the maximum amount. 4. .01% gave 10K. 5. .003% gave 100K 6. 132 Americans gave 60% of the SuperPac money. 7. The people do have the ultimate influence, but only after the funders have influence. 8. This has an effect on Congress. a. They spend 30-70% of their time raising money. b. Always lean to the green. c. Obama had 101 public rallies and 221 fundraisers. d. Ronald Reagan had 0 fundraisers in 1984 9. And the funders are out for themselves. a. Wall St. gave the most money in 2010 because they saw financial reform on the horizon.

10. He says Congress was supposed to be dependent on the people alone. But they are now also dependent on the funders. He calls this dependency corruption. 11. The effect of this is Americans believe that money buys results. 75% believe that. 12. What the funders want from Congress is nothing. They want to stop progress. a. Examples: b. Power companies can pass the externality of their pollution at no cost. c. Government cant bargain down drug prices, so companies are exempted from market forces. d. Wall St. wants to externalize gambling. 13. And it is very easy to keep the status quo. 14. If money is speech, then votes are speech. 15. But in the vote context we have equalized votes, yet we cant do that in the money context. 16. We have fairness limits on speech all the time. a. Time limits on Supreme Court arguments. b. That is the government trying to enhance relative power. c. Another example is time limits at city council meetings. 17. SpeechNow v. FEC a. DC Circuit case b. It said Citizens United held that the government has no anti-corruption interest in limiting independent expenditures. c. It struck down the contribution limits to independent PACs. 18. If dependency corruption had been recognized as corruption, that affects the ruling. 19. FEC released regs saying PACs have to disclose donors, but they dont have to pierce the corporate form of the donors. 20. And 501(c)(4)s can do political speech if it is less than 50%. And they dont have to disclose their donors. So you give to the c4 and it gives 50% to the Super PAC. 21. He says we should look at the issue more like the 14th Amendment. There we say no discriminatory intent, but impact ok. a. So his dependency corruption rationale is an anticorruption intent, but the effect is equalizing. But thats ok. 22. In speech they look at the impact, not the intent. 23. PACs just have extra reporting and tracking requirements. Its not clear there is more of a burden on PACs than publicly traded companies with SOX. 24. He says we should apply the rules of antitrust. You dont need independent, you can just regulate parallel behavior. 25. Disclosure as a remedy is a fallacy. What do you do with that information?

26. Disclosure in fact can make things worse. Compare to the study with doctors. a. Doctors disclose and say Ive done enough by disclosing. b. Patient says wow this doctor is honest, I trust him/her. 27. Lessig solution is to add in clean money. He supports a voucher program. Everyone gets a $50 voucher and you can only get if agree to only vouchers with a cap of $100 form each person. 28. Compares dependency corruption to the emolument clause in the Constitution. They said no gifts from foreign leaders, they were afraid of dependency. 29. He also thinks a solution is Article V Conventions, which they did for direct elections for Senate. They were 1 vote away and the Congress chose to short circuit and so get the 17th Amendment. a. All you need is 34 states to call for a convention; it doesnt matter what for. 30. The dependency corruption also generates voter apathy. 31. He says Kennedy should see this because saw dependency corruption in the Masse Coal case. VI. Establishment a. Subsidies i. Everson v. Board of Education (1947) 1. The case involved a NJ statute that allowed school districts to make contracts transporting kids to school, both public and private. 2. It was challenged under the establishment clause. 3. Black majority a. The Court says no government money large or small to religion. b. The 1st Amendment has enacted a wall between church and state. c. Black majority then fits the NJ law in. d. The contract here is like a general service, like a fire department or police. e. The state has to be neutral in its relations with groups of religious believers and on-believers; it does not have to be adversarial. f. One of the limiting factors Black highlights is the money goes to the parents, not the school, as the parents dont have to pay for bus fare. g. They arent paying for anything religious, like tuition. ii. Field says to remember the state can give anything only to public schools. iii. Everson is the beginning of the crumbling of the wall between church and state. iv. McCollum v. Bd. of Educ. (1948) 1. The Court struck down a school boards practice of permitting students to attend sectarian classes led by parochial school instructors held in the public schools during school hours.





2. Field says kids who did not go were in study hall. 3. Black majority sees two problems a. School buildings are being used for the purpose of religious education b. The program afforded sectarian groups an invaluable aid in that it helped to provide pupils for their religious classes. Zorach v. Clauson (1952) 1. The majority (Douglas) says NYC can release public school students to attend religious instruction at religious centers off campus. a. This would seem to have the second problem of McCollum, the weight of the school is behind the program, as public school teachers are policing it and classroom activities come to a halt. 2. Douglas responds that no one is forced to go to the religious classroom and no religious exercise or instruction is brought into the classrooms. Lemon v. Kurtzman (1971) 1. The Lemon test is the test and nobody likes it. 2. Lemon struck down certain types of financial aid to nonpublic schools. 3. The test: a. The statute must have a secular legislative purpose b. Its principal or primary effect must be one that neither advances nor inhibits religion c. The statute must not foster an excessive government entanglement with religion. Another per se rule is that when there is a fight between two religious factions and they are fighting over property, if the fight is based on church law, the court will not get involved. 1. This is true even when it is a property dispute of the type people could normally go to court for. Mueller v. Allen (1983) 1. Minnesota allows taxpayers in computing their state income tax to duct certain expenses incurred in providing for the education of their children. 2. Rehnquist majority a. A state decision to defray the cost of education expenses regardless of the type of school is a secular decision. b. This does not have the primary effect of advancing sectarian aims because legislatures have broad latitude to create classification in the tax statute and this is available to all parents. c. This allows does not excessively entangle the government with religion because there is no real need for government oversight.

d. This case is like Everson or Allen (where they allowed the government to loan secular textbooks to all children within the state). e. He says this is not like Nyquist. i. Nyquist was a case where the public funds were being used for the maintenance and repair of a school AND ii. There were thinly disguised tax benefits amounting to tuition grants. iii. That was struck down. f. Rehnquist also says it doesnt matter that this tax really benefits private schools, and really religious schools at that because 96% of the private schools here are religious. g. He says we would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law. ix. Field points out that after this case, Arizona gave tax credits for the cost of all tuition, meaning taxpayers are paying for parochial school. The Supreme Court said there was not standing to object to this. x. Pleasant Grove City v. Summum (2009) 1. A Utah city displayed permanent monuments in a public park. 2. Alito majority. 3. The court there said you dont have a right to put up a permanent monument. 4. There is limited space for this, unlike speech or protest. 5. They distinguished the KKK case (Capital Square v. Pinnette) because the cross put up there was temporary (16 days), not permanent. a. Some parks can accommodate such displays and need to be made available for such. b. But permanent monuments are different. 6. Monuments on public grounds are government speech, and the government can choose which speech with which monuments. a. This is true whether government financed monument b. Or government accepts the monument form a private group. 7. The government gets to choose the meaning of a monument. 8. Breyer concurrence a. If the city discriminated on selection monuments on a basis unrelated to display themes, like political grounds, that would violate the 1st Amendment. xi. Rosenberger v. Rector and Visitors of the University of Virginia (1995) 1. UVA uses mandatory student fees to pay the costs of extracurricular activities including the costs of printing various student-edited publications.

2. The University refused to pay the printing costs of a student group advancing a Christina perspective under guidelines which prohibiting using the fee for any religious activity. 3. Kennedy majority a. This is viewpoint discrimination. b. Content discrimination may be permissible if it preserves the purposes of a limited forum. c. Viewpoint discrimination is presumed impermissible when against speech otherwise within the forums limitations. d. Religion as a subject matter is not excluded, but what is banned is journals with a religious viewpoint. e. That is viewpoint discrimination and not allowed. f. This is different from Rust because Rust was government appropriate funds to promote a particular policy of its own. g. Here the funds are being used to create a forum, they are trying to encourage a diversity of views from private speakers. i. Note that this is a change in the reading of Rust to now make it a government speech case. h. Funding would not violate the Establishment Clause because the government is neutral toward religion. And it has taken pains to disassociate itself form the private speech involved. i. The comparison is to the Lambs Chapel case which says you cant allow school facilities for non-religious activity after school, but not religious activity. You have to be neutral. 4. OConnor concurrence a. Money goes directly to 3rd party vendors and not a group. b. That one way this does not violate the Establishment Clause. c. Also students who object can opt out of the fee. 5. Souter dissent a. There is no viewpoint discrimination. It applies to agnostics atheists deists and theists. b. The school is denying funding for the entire subject matter of religious apologetics. xii. Christian Legal Society v. Martinez (2010) 1. The school ays you have to accept all comers, even those who disagree. So the Dem group has to accept Republicans and vice versa. 2. The student groups can use school funds, facilities, the Hastings name if they allow all comers to participate, become members and seek leadership positions regardless of their status or beliefs. 3. The Christian Legal Society was denied status because it required members to renounce homosexual conduct.

4. School said this excludes students on the basis of their religion and sexual orientation. 5. Ginsburg majority a. Hastings has established a limited public forum. b. This is a subsidy, not a prohibition. c. The requirements are viewpoint neutral. d. The restrictions are also reasonable given the forums purpose which is to ensure leadership and education opportunities to all students, to encourage tolerance and cooperation, and police Hastings nondiscrimination policy without inquiring into student groups motives. 6. Stevens concurs a. Religious associations need broad freedom in public b. But this is a limited public forum. It is not an open commons. c. Hastings is not a legislature. 7. Kennedy concurs a. The restriction is not content based and applies equally to everyone. 8. Alito dissents a. He tries to argue that the policy was a pre-textual substitute for a prior nondiscrimination policy that discriminated against student groups organized around religion. b. This is a McCreary type argument. c. Also, the school is trying to create a public forum where students are free to form the broad range of groups they could off campus. d. But the policy is antithetical to that broad public forum design. e. The rule would be unconstitutional off campus, and since trying to create diversity off campus on campus, this is unconstitutional. xiii. Zelman v. Simmons-Harris (2002) 1. The school system in Cleveland City is quite bad. 2. The tuition aid portion of the program was designed to provide educational choices to parents who reside in covered districts. 3. Tuition aid is distributed according to need. 4. Rehnquist majority a. The aid is given to parents. b. The program was enacted for the valid secular purpose of providing educational assistance to poor children. c. This is true private choice, no direct aid to schools. d. It does not matter, like Mueller how many of the program beneficiaries attend religious schools.

e. There is no evidence the program fails to provide genuine opportunities for Cleveland City parents to select secular options. f. The schools had to agree not to discriminate on the basis of race, religion, or to advocate or foster unlawful behavior or teach hatred. 5. Field points out there is an entanglement problem. How can the state monitor any of this. 6. OConnor concurs a. This case is different from indirect aid cases because a significant portion of the funds reach religious schools without restrictions on the funds. b. But she goes through the analysis and is persuaded it affords parents nonreligious choices. c. And the money while large here is nothing like the tax breaks we give religious organizations. 7. Souter dissent a. The money will pay for secular and religious education. b. 96.6% of the voucher recipients go to religious schools. c. There are not enough non-religious private schools and adjacent schools cant fit/dont have the financial incentives to take extra students. d. Worse, religious teaching at taxpayer expense simply cannot be cordoned form taxpayer politics. e. All major religions have social positions that provoke intense debate. f. If we have public debates about this, free exercise is going to be challenged because religious matters will no longer be private. xiv. Locke v. Davy (2004) 1. Rehnquist majority a. It is ok for the state of Washington to give a scholarship but you cannot use it to pursue a degree in devotional theology. b. You can distinguish this from Rosenberger because there they were creating a forum. c. The state has merely chosen not to fund a distinct category of instruction. It is not criminalizing or sanction any type of religion. d. The Court said you could allow students to purse theological degrees but dont have to. e. And the law is not hostile to religion. i. You can go to religious college ii. You can take devotional theology classes. iii. You just cant get a degree. b. Prayer i. Engel v. Vitale (1962)



iv. v.

1. The New York Board of Regents prepared a nondenominational prayer. The school board directed the prayer be recited daily by each class. 2. Black majority a. This is clearly religious activity. b. The government cant compose prayers for people to recite as part of a religious program carried out by the government. c. It does not matter that students do not have to participate d. Nor does it matter that it is nondenominational. e. It is still govt establishing religion. 3. Stewart dissent a. There are references to religion in all sorts of government, like official oaths and congressional prayers. Abington v. Schempp (1963) 1. State law requires selection and reading at the opening of the school day verses from the Bible and reciting the Lords Prayer. 2. Clark majority a. They foreshadow the Lemon test: Ask what is the purpose and primary effect of the enactment. b. Here this is a religious exercise required by the state, so they strike it down on establishment clause grounds. 3. Stewart dissent a. In the absence of coercion upon those who do not wish to participate, this is allowed. b. There might be some psychological compulsion in this case, but the record here was wholly inadequate to support an informed decision on that matter. Wallace v. Jaffree (1985) 1. The law authorized schools to set aside one minute for meditation or prayer. 2. Stevens majority a. The law here was not motivated by any clearly secular purpose b. That means it fails the Lemon test. c. The law originally allowed for one minute of meditation, and then they added voluntary prayer or mediation. d. This showed the state was endorsing religion. 3. OConnor concurrence a. Not all moments of silence are unconstitutional. b. But in this case the purpose and likely effect was to endorse and sponsor voluntary prayer in the public schools. You see more tolerance in college for religious speech than in elementary or high school. Part of the idea is younger kids are in a state of formation. Lee v. Weisman (1992) 1. This is a middle school graduation.

2. A rabbi gave a prayer at the beginning and end. 3. He was advised to be nonsectarian, but he mentions God. 4. Kennedy opinion a. He relies on psychological coercion to strike down. b. He says you cant have prayer here because while graduation is not compulsory, everyone wants to go to graduation. c. You cant have the choice of not go or sit through a prayer. d. Even if you stayed seated during the prayer, you had to declare yourself and say Im not participating in this. e. Kids would feel a reluctance to stand out, and this causes the psychological coercion to participate. 5. Blackmun concurs a. Government pressure to participate in a religious activity is an obvious indication that the government is endorsing religion. b. Our cases have prohibited government endorsement of religion, its sponsorship, and active involvement in religion, whether or not citizens were coerced to conform. 6. Souter concurs a. Our precedents cannot support the position that a showing of coercion is necessary to a successful Establishment Clause claim. 7. Scalia dissents a. The establishment clause protects citizens from coercion. b. I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty. vi. Santa Fe Ind. School District v. Doe (2000) 1. The student body was empowered to vote each year on whether to have a student speaker precede football games and deliver a brief invocation. 2. Stevens majority a. Fact that it is student initiated speech does not make it private. b. It is authorized by government policy, takes place on government property, and is at a government approved event. c. Thus it seems to have the approval of the school. d. The election aspect of the policy does nothing to protect minorities. e. Nor is this that different from commencement. f. Some students (team, band, cheerleaders) are required to go. g. For students choosing to attend the game or face the prayer, the choice is not easy.

h. Even if attending is voluntary, the prayer coerces those there to participate. 3. Rehnquist dissent a. Cant invalidate on its face because the program could be applied in a non-religious way. vii. Good News Club v. Milford Central School (2001) 1. If open up school facilities for extracurricular after school programs, cant exclude religious speech from this limited public forum. 2. The school created the forum by opening the facilities. 3. Thomas for majority says allowing a Christina club on the grounds ensures neutrality. 4. It is not coercion because the kids cant attend without parents permission. 5. And this is during non-school hours. 6. Breyer says there should be a remand as need more facts to see if the kids saw this as an endorsement. 7. Souter agrees saying good case that this actually blurs the line between classroom and private religion, which elementary school kids are unable to appreciate. c. Evolution i. Epperson v. Arkansas (1968) 1. The Court invalidated the Arkansas version of the Tennessee antievolution law. 2. The law was in conflict with the Establishment Clause mandate of neutrality. 3. The law prohibited teachers in state schools from teaching evolution. 4. Fortas majority a. The law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine. b. You cannot prescribe the curriculum to bar the teaching of a scientific theory where the prohibition is based upon reason that violate the 1st Amendment. c. Given the history of the law, sectarian conviction was the laws reason for existence. 5. Black and Stewart concur solely on the ground of vagueness. ii. Edwards v. Aguillard (1987) 1. Could not teach evolution unless accompanied by instruction in creation science. 2. Brennan majority a. He demonstrates there is bias because the law requires curriculum guides for creation science to be developed, research services are supplied for creation science only,

only creation scientists can serve on the panel that supplies the resource services. b. The law forbids school boards from discriminating against anyone who teaches creationism, but does not protect those who chose to teach evolution. c. These differences show that the preeminent purpose of the law was to advance a religious viewpoint. d. The legislative history also showed the purpose was to advantage creationism. e. Thus the law violates the Establishment Clause. iii. Kitzmiller v. Dover Area School (2005) (M.D. Penn.) 1. The Court finds that intelligent design is not science. a. There is no testing, no peer review, and no research, meaning it is not science. 2. It grew out of Christian Fundamentalism and the religious nature of intelligent design would be readily apparent to an objective observer. 3. The required disclaimer would be viewed by an objective student as an endorsement of religion. d. Christmas i. What is the difference between the prayer cases and the Christmas cases Field says? The answer is adults vs. children. ii. The problem with arguments based on the Framers is that the Framers had all sorts of different ideas. iii. Lynch v. Donnelly 1. In a nonprofit park, the city puts up a Christmas display. It includes Santa, reindeer, and a crche. 2. The argument is the crche depicts the historical origins of the national holiday and there are lots of other decorations. 3. Burger majority a. We are unable to discern a greater aid to religion deriving from inclusion of the crche than from endorsements previously held not violative of the Establishment Clause, citing Sunday closing law cases. b. We can assume that the display advances religion in a sense. c. But precedents contemplate on occasion some advancement of religion will result from government action. He points to religious art in museums. d. There is also the idea that passive is better than active. 4. OConnor concurring a. Government can run afoul of the Establishment Clause in 2 ways. i. Excessive entanglement with religious instruction. ii. Government endorsement or disapproval of religion.

b. Here the city did not intend to convey any message of endorsement of Christianity or disapproval of non-Christian religions. c. Celebration of public holidays, which have cultural significance even if they also have religious aspects, is a legitimate secular purpose. d. The overall holiday setting changes what viewers can fairly understand to be the purpose of the display. 5. Brennan dissent a. The nativity scene, unlike the other elements, reflects a sectarian view. b. The primary effect, therefore, is to place the governments imprimatur of approval on the particular religious beliefs exemplified by the crche. c. Even in the context the crche is displayed in, it retinas a specifically Christina meaning. d. When government decides to recognize Christmas Day as a public holiday, it does no more than accommodate the calendar to the fact that many Americans will spend Christmas with family or at religious services. i. The free exercise clause does not require this step. e. If government goes further and celebrates the secular elements of Christmas, it is closer to the limit, but still within the Establishment Clause. f. It is also ok for government to pursue a practice that started because of religious motivations if it is continued today for solely secular reasons. Citing McGowan/Sunday closing. g. Here this is not ceremonial deism, like in God We Trust, because there that has lost religious content due to the rote repetition. h. Since nativity scenes as displays are newer than the founding, you cant go by what the Framers thought. 6. Blackmun dissent: a. The result is displaying a symbol where Christians feel constrained in acknowledging its meaning and nonChristians feel alienated. This makes no sense. iv. The rule of Lynch is crche is fine if shown with other secular celebrations of Christmas. v. Allegheny County v. ACLU (1989) 1. Majority held unconstitutional a freestanding display of a nativity scene at the county courthouse. 2. The scene was owned by a Catholic group. 3. A different majority upheld the display of a menorah next to a Christmas tree and a sign saying salute to liberty. 4. Blackmun majority: a. Embraces the endorsement test.

b. The Establishment Clause prohibits government from appearing to take a position on questions of religious belief. c. Thus the freestanding nativity scene was unconstitutional. d. Nothing in the context of the display detracted from the crches religious message. 5. OConnor concurrence a. Defends the endorsement test. b. A test that prohibits only coercion or overt efforts at proselytizing would not take account of the more subtle ways the government can favor a particular belief. c. It would not therefore protect religious liberty. 6. Kennedy dissent a. Endorsement test is unjustifiably hostile towards religion. b. Should use the coercion test. c. That means state cannot coerce support of religion or directly give a benefit to religion in such a degree that it tends to establish a state religion. d. Flexible accommodation or passive acknowledgement of existing symbols does not violate the Establishment Clause e. Here the crche is a passive symbol of a religious holiday. f. It is not proselytizing. g. Passerbys are free to ignore it like any other government speech. 7. The Court upholds the menorah next to the Xmas tree. 8. Blackmun for himself a. The presence of the menorah next to a Christmas tree and a sign indicates an overall holiday setting. b. The government can acknowledge Christmas and Chanukah as secular holidays. c. The menorah is not an exclusively religious symbol. d. Here the government is simply recognizing that both holidays are part of the winter holiday season, which has attained secular status in the country. 9. OConnor a. Agrees the menorah is fine. b. One need not characterize Chanukah as a secular holiday or find the menorah a secular symbol to so hold. c. The display as a whole conveys a message of pluralism and freedom of belief. d. Therefore it was permissible. 10. Brennan dissent a. This is clearly a religious symbol. b. The government cannot promote pluralism by sponsoring a display with a strong religious association. 11. Stevens dissent

a. The Establishment Clause should be construed to create a presumption against the display of religious symbols on public property. b. Such displays can offend nonmembers of the faith. e. Ten Commandments i. McCreary County v. ACLU of Kentucky (2005) 1. The County first put up the 10 Commandments in the courthouse. 2. The 2nd display was the 10 Commandments with a note saying it is the precedent legal code upon which Kentuckys code is founded. 3. The district court struck that down so they changed the display to the 10 Commandments, the Magna Carta, Bill of Rights, Declaration of Independence, etc. 4. Souter opinion a. Government purpose is key element of understanding. b. The second display was clearly religious looking at the legislative history and the resolutions and the fact that it was just the 10 Commandments. c. These resolutions were not repealed before the 3rd display was put up. d. This shows the county is just looking for a way to include a religious message. e. You cant look to the Framers because they disagreed. No common understanding. 5. OConnor concurs a. Given the particular history of this display it is unconstitutional. 6. Scalia dissents a. Government can favor religion over non-religion. b. It can acknowledge the Creator. c. The Establishment Clause is about establishing a church or giving money to a particular religion; it is not about striking the word God. d. Even if accept the Lemon test, this display is secular. e. It was framing the 10 Commandments with the Countrys history. ii. Van Orden v. Perry (2005) 1. 22 acres surrounding the Texas State Capitol contain 17 monuments and 21 historical markers. 2. One is a monolith that is 6 feet high and 3 feet wide that displays the text of the 10 Commandments. 3. Rehnquist plurality. a. The Lemon test is not useful in dealing with passive monuments. b. And an acknowledgment of the role played by the 10 Commandments in our nations heritage is acceptable.


c. The 10 Commandments have an undeniable historical meaning. d. Moses was a lawgiver and a religious man. e. Stone v. Graham where struck down 10 Commandments display is different because there it was in a school. f. With McCreary they said the purpose was clear from the history, you just want the 10 commandments in there. g. Here you can say thats not the purpose, the history of Texas is the purpose. 4. Breyer concurring a. If it has been there since the beginning of time, they arent going to tear it down. Part of this is the history. This is the comparison to the frieze in the Supreme Court. b. McCreary is a contrast because there they are trying to put this display up now. c. Also the tablets here convey a secular message, not simply a religious message. Zittrain generally on the Internet (notes are also injected in the case sections) a. Scalia in ACLU v. Reno was saying the government can regulate the Internet however it wasnt because you still have the public square. b. Zittrain counters now the Internet is like the public square. c. The Supreme Court has not followed Marsh v. Alabama, where cant stop leafleting on the sidewalk in a company town. d. He would say Internet cases should be more like Marsh. e. He would also say you could make arguments under the CA constitution, as was shown by Pruneyard. f. The problem with the First Amendment is doesnt apply to Facebook or Gmail. g. Those companies can kick you off, really restricting your access, and that doesnt implicate the 1st Amendment. h. He also points out that what Apple is doing, only allowing you to run code that Apple approves, is much worse than what Microsoft did with Internet Explorer. Microsoft didnt say you couldnt have Netscape, it just said Internet Explorer had to be there. i. Plus Apple takes a 30% cut of any software it sells. j. Another example the Kindle. People bought 1984 for 99 cents because thought it was in the public domain. i. But only in the public domain in Canada. ii. So Amazon went into every Kindle and deleted the books. iii. Scalia would say you still have bookstores. iv. Zittrain, yea, but for how long. k. The Framers were dealing with a speech starved world and surveillance was very difficult. l. They were worried about the government monopolizing speech. m. Today we have a speech stuffed world, but we are privacy starved. n. He also gives the example of the Facebook experiment i. Facebook ran an experiment where it asked are you a voter.

If you said yes, it put that in your feed. It also had a control group. They are going to measure if this affected turnout. Zittrain guesses it did. If that is the case, what if Facebook decides to favor Democrats, and uses these questions to up Democratic turnout and sends Republicans YouTube videos to distract from voting. vii. The argument is the market will solve. viii. But if Facebook doesnt announce it is doing this, how will the market solve.

ii. iii. iv. v. vi.