First Amendment Prof.

Parker Spring 2011

TABLE OF CONTENTS The First Amendment................................................................................................................... 2 Overview & Overarching Themes of the Course ....................................................................... 2
Law and The Culture of Argument About Law .................................................................................. 2 Conceptions of Democratic Politics ....................................................................................................... 3 Equality ................................................................................................................................................... 3 Fear and Value ........................................................................................................................................ 4 Conflict .................................................................................................................................................... 4 Dialectics of Freedom ............................................................................................................................. 5

Freedom of Religion ...................................................................................................................... 5

Overview .................................................................................................................................................. 5 Historical Periods ................................................................................................................................. 5 Overarching Themes & Rhetorical Motifs ........................................................................................... 6 Exemptions for Religious Conduct........................................................................................................ 8 Public and Private Schools................................................................................................................... 16 Exemptions from Compulsory Schooling and School Activities ....................................................... 16 Aid to Religious Schools .................................................................................................................... 17 School Prayer ..................................................................................................................................... 21 Creationism ........................................................................................................................................ 23 Public Religious Displays and Messages ............................................................................................. 23

Freedom of Speech ...................................................................................................................... 26

Overview ................................................................................................................................................ 26 Historical Periods ............................................................................................................................... 26 Overarching Themes .......................................................................................................................... 28 Doctrinal Overview............................................................................................................................... 29 The Six Potential Freedom of Speech Interests.................................................................................. 29 Speech versus Conduct....................................................................................................................... 29 Types of Speech ................................................................................................................................. 29 Types of Restraints on Speech ........................................................................................................... 29 Overbreadth and Underbreadth .......................................................................................................... 32 Subversive Speech, Hate Speech, and Symbolic Speech ................................................................... 32 Subversive Speech & Sedition ........................................................................................................... 32 Fighting Words and Hate Speech ....................................................................................................... 37 Symbolic Speech ................................................................................................................................ 40 Public Schools ....................................................................................................................................... 42 Electoral Speech and Campaign Finance ........................................................................................... 44 Campaign Finance .............................................................................................................................. 44 Electoral Speech ................................................................................................................................. 48 The Media and the Internet ................................................................................................................. 48 Prior Restraints ................................................................................................................................... 48 Defamation and Libel ......................................................................................................................... 49 Obscenity and Pornography ............................................................................................................... 51 Internet Speech ................................................................................................................................... 59 Public Forums and Public Spaces: Time, Place and Manner Restrictions ..................................... 60 Time, Place and Manner Restrictions................................................................................................. 60 Leafletting, Handbills, and Door-to-Door Solicitation ...................................................................... 62

Sound Trucks ..................................................................................................................................... 63 Mailboxes ........................................................................................................................................... 63 Public Meetings and Protests ............................................................................................................. 63 Advertising and Signs ........................................................................................................................ 65 Abortion Clinics and Staff Members Residences ............................................................................. 66 Other................................................................................................................................................... 67 Government Employees, Forums, and Programs .............................................................................. 67 Government Employee Speech .......................................................................................................... 67 Government Programs and Speech .................................................................................................... 68 Commercial Speech .............................................................................................................................. 71

Freedom of the Press .................................................................................................................. 71

Freedom of the Press ............................................................................................................................ 71

Freedom of Association .............................................................................................................. 75

Freedom of Association ........................................................................................................................ 75 General Cases ..................................................................................................................................... 76 Student Groups at Public Universities................................................................................................ 77 Political Primaries .............................................................................................................................. 78

Right to Petition .......................................................................................................................... 78

Initiative Campaigns ............................................................................................................................ 78

The First Amendment

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Overview & Overarching Themes of the Course

Law and The Culture of Argument About Law
Parkers Views 1) Parkers conception of how law works: law = the culture of argument about law 2) The 3 Basic Facts About Law a) Ambiguity Law is Foggy b) Ambivalence Law is Conflicted c) Change Throughout Time Law is Fluid 3) The Iceberg a) Above the waterline, we have precedents, general doctrines, and general policies b) But the problem is that at every level we find ambiguity and competing arguments, which drives us down to lower levels, where arguments are generated c) Below the waterline: ideas assumptions images sensibilities basic emotions: fear, hope, etc. d) In other words, law is an artifice built upon the most basic human emotions e) In Parkers world, the most basic human emotion is fear 4) Ultimately, how we conceive of the law will depend on how we conceive the relevant world, and how we imagine the relevant world will be rooted in our emotions 5) The key to constitutional law is which way the presumption tilts

Conceptions of Democratic Politics

Parkers Views 1) Our understanding of the First Amendment will always be rooted in our own particular conception of how democratic politics does and should work, and how it tends to fail 2) Parker sees four main conceptions of democratic politics in America: Small Government Libertarian Primary fear: tyranny crushing individual liberty Primary hope: individual choice and private ordering Government should be contained and separated from the private sphere Government tends to selfaggrandizement and majoritarian passion Central tension: how to protect individuals from harm/prejudice at the hand of other individuals? How to prevent abuses of power if government virtually powerless to stop the concentration of it? Pluralist Primary fear: prejudice, hierarchy, hegemony Primary hope: tolerance Government should be neutral among factions May even hope that government will actively promote tolerance Central tension: if you tolerate everyone and everything, how do you deal with those who do not want to tolerate others? How do you ensure that there is some sort of consensus on values, national community? Majoritarian Populist Primary fear: rule by out-of-touch elites, prejudice against ordinary people Primary hope: populist participation and majority rule Government should foster participation by ordinary people in politics Diverse factions should respect each other, but government should be sensitive to popular opinion emerging Want to prevent concentration of power in hands of elites, which undermines popular debate and decision-making Central tension: how to ensure minority rights are respected when the will of the majority is the guiding principle of the system Communitarian Primary fear: self-interest will lead to destabilization of society Primary hope: foster community and consensus on basic values Government should take a lead in fostering community Public spirited leaders should promote reason and consensus on basic values and institutional legitimacy Self-interest in politics has power to destabilize society, degrade the political, social and moral structure on which freedom depends Central tension: how to ensure tolerance of dissenting viewpoints if focus is on consensus

Equality
Parkers Views 3

1) Among the centrists in constitutional law, equality is a key concept a) Dworkin talks about equal concern and respect, and by that he means an attitude of those in society (particularly judges) toward the others b) A populist, by contrast, insists that the masses are not just objects of concern but are agents, and do not have as much power as they should have 2) The main question is: can I say this other person as my equal in self-government, as a citizen? a) This is both a thought experiment, and a heart experiment

Fear and Value

Parkers Views 1) When thinking about the First Amendment, there are two main questions we should ask ourselves: a) What do we fear most? b) What do we value most? 2) Things We May Fear a) What do we fear more: the activity (i.e., the exercise of freedom) or the regulation (i.e., the curtailment of freedom)? i) What is the danger in each? ii) What is the value in each? b) Four main types of fear: i) Tyranny (the unleashing of power) ii) Passivity/Impotence (the leashing of power) iii) Anarchy (the breakdown of order) iv) Subordination (the imposition of order and/or hierarchy) c) People we may fear: executive officials; legislators; judges; interest groups; the majority; dangerous minorities 3) Things We May Value a) Societal Agreement or Disagreement i) Consensus ii) Moderation iii) Conflict b) Identity i) Faith c) Deliberation d) Tolerance

Conflict
1) Parkers view: conflict is a tonic that sparks freedom a) If theres conflict, theres freedom and freedom makes for conflict b) Mission of law is to keep any one religion from capturing the State, prevent coercion c) Critique: this may be true if theres some conflict within a particular framework where civil rights are respected; but if conflict is between powerful totalitarian religious movement and minorities without robust rights framework, you wind up with bad outcomes (to scaremonger, Iran) 4

d) Critique: if freedom then conflict? No, if conflict then more/less freedom, if freedom more/less conflict? Is conflict beneficial because it takes place in framework of freedom? 2) Respect and civility a) Parker: idea of honorable combat (wrote CRCL article about this) i) Holmes may well have seen conflict in this way ii) But if you trash other peoples fundamental values, things might crack apart (like America in the 1960s and reverberations since) 3) Consensus 4) Majoritarian determination of scope of individual and minority rights a) Parker says this is it b) Critique: dont you need some sort of floor, some sort of rights framework within which individual and minority rights can get the chance to be accepted by the majority?

Dialectics of Freedom
1) Freedom and Order a) Each depends on the other; each always allows the other to be invoked to counter it b) Jacksons dissent in Terminiello: The choice is not between order and liberty. It is between liberty with order and anarchy without either. 2) Freedom and Democracy 3) Freedom and Freedom a) Realization of freedom depends on feeling that theres always more freedom to have and enjoy b) But the farther you go with freedom the more likely you are to become your own jailer (e.g., addiction) 4) Freedom and the Rule of Law a) The Rule of Law provides for freedom b) But we have a limited ability to choose who makes the law

Freedom of Religion
Overview
Historical Periods
Time Period Cases First Period Late 1940s1961 Everson, McCollum, Zorach No coercion allowed; general secular programs okay (broad definition) Little tension Second Period 19611971 Allen, Engel, Schempp, Sherbert More strict: narrower definition, must be necessary to achieve compelling secular goal Tension moderated by EC flexibility More fear of dominant religions (Catholicism) Third Period 1971mid 1980s Lemon, Stone, Yoder, Thomas Even more strict; yet for FEC cases, assess virtues of particular religions Trainwreck-level conflict Intense fear Fourth Period Mid 1980spresent (?) Mueller, Amos, Wallace, Edwards, Thornton Loosening of standards; but more division on the Court

Doctrinal Concerns

War Between the EC and FEC Attitude Toward Mixing of Religion and Politics

Relaxed Government must just be neutral toward

Tension reduced, accommodation possible Need to chill out more, accommodate

and among religions

1) First Period: general secular purpose test Second Period: strict scrutiny (compelling interest + necessary; from Sherbert) Fourth Period: strict scrutiny has fallen out of favor (Scalia in Smith), unclear what test applies 2) Third Period: the Trainwreck a) Came to a head with Burgers opinion in Yoder b) If the Court explicitly grants an exemption to religious individuals that it would not extend to others with equally heartfelt but secular beliefs, it exacerbates the conflict between the FEC and EC because the FEC is being used to justify a policy that comes dangerously close to an EC violation 3) Fourth Period: from 1987present, the key buzzword is accommodation a) Accommodation = policies that are neither constitutionally required nor prohibited b) Idea is government can aid religion to provide for free exercise by leaving for some play in the joints c) The point at which lawful accommodation turns to unlawful establishment is when the statute facially supports a particular religious point of view i) Therefore, targeted aid to religion in general may count as permissible accommodation ii) Critique: this is ridiculous; legislators will never do this on the face of a statute because they wont need to in communities where this sort of thing likely to occur (can say youre providing general/non-targeted aid where in fact it is going to aid a particular religious viewpoint, at least at some level of abstraction; legislators popularly elected, can only get away with this with community support at some level)

Overarching Themes & Rhetorical Motifs

1) The Meta-Question: Why is freedom of religion important? a) To protect minorities? b) To protect the moral basis for our society? 2) The Vicious Circle a) In any case involving a government exemption of a religion from a burden or the granting of a benefit to a religious group or individual, the free exercise clause and the establishment clause can be used to support contradictory arguments b) Vicious circle becomes especially problematic when both of the clauses take on critical power simultaneously, as they did in the Third Period Free Exercise Clause Government refusal to grant exemption from a burden Government exemption from a burden Government refusal to grant a benefit Government grant of a benefit Can be used to criticize Can be used to support Can be used to criticize Can be used to support Establishment Clause Can be used to support Can be used to criticize Can be used to support Can be used to criticize

3) The Establishment Clause: Separation versus Accommodation a) There are two traditional approaches to interpreting the Establishment Clause b) Separationist Approach: Prohibits the establishment of a national religion by Congress i) Extreme Separationist Approach: Prohibits Congress from doing anything which favors religion over atheism/agnosticism/irreligion c) Accommodationist Approach: Prohibits the federal government from favoring one religion over another i) Aiding religion in general is permissible 4) Religion and the Public-Private Distinction a) Religion is often conceived as a private thing, but it also takes us outside of ourselves, involves us in a community b) In addition, because religion is often the basis for our identity and values, it will be difficult to keep it out of the public realm and politics c) As a result, secular liberal attempts to restrict it to the private realm will always face an uphill battle d) Parkers view: mixing religion and politics will exacerbate conflict, and thats a good thing, because conflict is a tonic that sparks freedom 5) Religion and Democratic Politics a) Possible values religion serves in democratic order: i) Check on secular power ii) Identity / self-definition to spur political activism and reform iii) Fosters community moral standards as foundation for sociopolitical order iv) Provide individuals with the opportunity to exit secular life v) Complement to secular life for those who choose to partake in it vi) One source of social meaning among many b) Vulnerabilities of religion in democratic order (at the hands of secular interests, other religions): i) Persecuted ii) Spirit sapped by secularism iii) Integrity undermined through mixing with government/politics iv) Temptation to impose views on others through politics c) Dangers religion may pose to democratic order (through getting involved in politics in some shape or form): i) Intolerance ii) Foster acceptance of authority / passivity / decline of critical rationalism iii) Encourage development of societies apart / separatism iv) Undermining / fracturing of shared values 6) Rhetorical Motifs a) Slippery slope arguments (Reynolds, Souter and Breyers dissents in Zelman) i) To maintain order, we must maintain tradition (Reynolds) ii) Giving the government discretion will lead to oppression (Jackson in Barnette) iii) EC meant to save religion from its own corruption (Souters dissent in Zelman) b) Good religions versus bad religions i) Bad: Mormons (Reynolds), some Jehovahs Witnesses (Prince), hippies (Yoder; not really a religion, but analogous)

c)

d)

e)

f)

g)

ii) Good: some Jehovahs Witnesses (Cantwell), Catholics (Pierce), Amish (Yoder), Seventh-Day Adventists (Sherbert, Hobbie) (1) Peaceful, orderly believers good (Cantwell, Yoder) (2) Need protection because of small size or vulnerability/fragility (Yoder, Lukumi) (3) Established but very small minorities tend to get better treatment (a) But they also dont always get their way (Amish in United States v. Lee) iii) This seems to have loosened a bit in recent years (see Cutter) Mixing of politics and religion i) Religion as social foundation (1) Religion as foundation for our society (Douglas in Zorach, Rehnquist in Van Orden) (2) American civic religion (a) Civic religion as a unifying force (Scalia dissent in Weisman) (b) Even Brennan would accept ceremonial deism (Lynch) ii) Religion as basis for persecution (1) Religion as basis for persecution, graveyard imagery (Jackson in Barnette) iii) Hostility to or motivated by religion in the legislative process (1) Legislative processes have resulted in little hostility to particular religions in recent history (Scalia in Smith) (2) But when legislative process does do that, its not allowed (Kennedy in Lukumi) (3) Hostility to religion in general viewed suspiciously (Rehnquist in Locke, Scalias dissent in Locke) iv) Fear of divisiveness (Black in Everson, Breyers concurrence in Van Orden) v) Fear of non-religious people being excluded from the political community (1) OConnor in Lynch (2) Stevens in Van Orden Coercion i) Concern for coercion (Jackson in Barnette, Brennan in Hobbie, Kennedy in Weisman) ii) No tacit/subtle coercion, only coercion by force matters (Scalias dissent in Weisman) Statutes purpose vs. its effects i) Debate between Black and Jackson in Everson ii) In more recent cases, focus is more on purpose (e.g., aid to schools cases), but the debate lives in (see Zelman) iii) But ostensible secular purposes can just be a sham (Stone, Aguillard, McCreary) iv) Accommodationists often focus on effects: policy okay if it neither advances nor inhibits religion (Burger in Walz, Rehnquist in Zelman) The bait and switch i) Franfurter in Gobitis ii) Black in Everson What is a religious belief or act? i) Won't any attempt to define this cause the Court to violate the EC?

Exemptions for Religious Conduct

General Notes 1) These cases are where the vicious circle / war of the clauses is most apparent

a) Denial of an exemption could be interpreted as inhibiting free exercise; but granting an exemption could be interpreted as establishment 2) If the Court examines a group to decide whether its a religion, and thus whether conduct raises an FEC claim, the Court also be accused of violating the EC by picking and choosing amongst groups and favoring some religions over others a) This of course depends on an assumption that a group of believers can constitute a religious group without the Court first saying so 3) In tax exemption cases, Courts generally pretty deferential to taxes and tax exemptions of general applicability, but not to taxes which specifically target religion in general or a religion in particular 4) Statutes targeted directly at a harm more likely to be upheld than those targeting the religious practice that correlates to the harm (compare Reynolds with Lukumi) a) If its targeted at a religion, it gets strict scrutiny (Lukumi) b) Otherwise, likely the Court will apply a rational basis test Case Reynolds Pierce Cantwell Gobitis Barnette Prince Braunfeld McGowan Sherbert Walz Gillette Johnson Yoder Lee Bob Jones U. Amos Hobbie Lyng Texas Monthly Smith Swaggart Lukumi City of Boerne Cutter Year 1878 1925 1940 1940 1943 1944 1961 1963 1970 1971 1971 1972 1982 1983 1987 1987 1988 1989 1990 1990 1993 1997 2005 Exemption Denied Granted Granted Denied Granted Denied Denied Granted Granted Denied Denied Granted Denied Denied Granted Granted Denied Denied Denied Denied Granted Denied Granted Description Polygamy Mandatory public schooling JW proselytizing Flag salute in school (overruled) Flag salute in school JW and child proselytizing on street Sunday closing laws (and Orthodox Jews) Saturday sabbatarian unemployment benefits Non-profit tax exemptions Draft exemption for conscientious objectors Differing benefits for conscientious objectors Amish and compulsory education Amish and social security taxes IRS denial of tax exempt status due to racism Religious discrimination claim and LDS church Saturday sabbatarian unemployment benefits Road over Indian burial ground Tax exemption for religious periodicals Religious peyote use Sales tax on religious materials Ordinance targeted at Santera Religious Freedom Restoration Act Prisoners non-mainstream religious practices

Cases Reynolds v. United States (1878) (Mormon polygamy) 1) Exemption denied 2) Facts

a) was Mormon charged with violating federal law prohibiting polygamy b) claimed was a religious duty, and that therefore he should be exempted from the statutory prohibition through invocation of the free exercise clauses 3) Majority (Waite) a) Holding: exemption not allowed; individual cannot be excused from compliance with a generally applicable criminal law which is otherwise religiously neutral b) Belief-action distinction: FEC says you can believe in something, but that does not necessarily mean you can act on that belief c) Orientalist scaremongering: Northern and Western Europe as opposed to Asiatic and African peoples d) Slippery slope argument: if we protect polygamy, human sacrifice might be protected e) To maintain order, we need to maintain tradition 4) Notes a) Never overruled though in tension with later cases Pierce v. Socy of Sisters (1925) (secular public schooling made compulsory) 1) Exemption granted 2) Facts a) OR statute made education in a public school compulsory for all children; supporters of religious schools sought exemption from the statute 3) Majority (McReynolds) a) Holding: statute struck down b) Parents have fundamental right protected by 14th Amendment to make a choice regarding how their children shall be educated 4) Notes a) Unanimous opinion Cantwell v. State of Conn. (1940) (JW proselytizing in Catholic neighborhood) 1) Exemption granted 2) Facts a) Cantwell and his two sons were proselytizing in a heavily Roman Catholic neighborhood and doing things highly offensive to Catholics; convicted for soliciting religious contributions without a license 3) Majority (Roberts) a) Holding: reversed conviction on both free speech and FEC grounds b) Significance: FEC made applicable to the states through DP clause of 14th Amend. c) Court gave the s the orderly, peaceful and good treatment even though they were arguably being quite obnoxious 4) Notes a) Unanimous opinion b) Different in tone, feeling from Prince Prince v. Mass. (1944) (JW and child preaching on the street) 1) Exemption denied 2) Facts

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a) Jehovahs Witness woman was convicted of violating child labor laws for bringing her daughter with her to preach on the streets in a downtown area 3) Majority (Rutledge) a) Holding: Court upheld conviction, saying that state has an interest in protecting childrens welfare b) Calls proselytizing propaganda 4) Notes a) 54 decision Minersville Sch. Dist. v. Gobitis (1940) (flag salute compelled) 1) Exemption denied 2) Facts a) Gobitis children were Jehovahs Witnesses, refused to salute the flag at school 3) Majority (Frankfurter) a) Holding: public schools could compel students to salute the flag and recite the Pledge of Allegiance despite students religious objections to these practices b) Frankfurter starts by saying in safeguarding conscience we are dealing with interests so subtle and so dear, every possible leeway should be given to the claims of religious faith c) However, then says compulsion justified by need to foster national unity and patriotism 4) Dissent (Stone) a) We should not give the legislature constitutional deference when a discrete minority is subject to prejudice because such minorities cannot be expected to protect their liberties through the democratic process 5) Notes a) Overturned by Barnette W.V. State Bd. of Educ. v. Barnette (1943) (flag salute no longer compelled) 1) Exemption granted 2) Facts a) Same as Gobitis 3) Majority (Jackson) a) Holding: overturned Gobitis; Jehovahs Witnesses could not be forced to salute the flag an recite the pledge of allegiance at school b) Court refused to believe that a Bill of Rights which guards the individuals right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind. c) Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. d) If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. Braunfeld v. Brown (1961) (Orthodox Jews and Sunday closing laws) 1) Exemption denied 2) Facts

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a) FEC claim brought by Orthodox Jews that PAs law requiring that businesses be closed on Sundays, which they claimed placed them at a competitive disadvantage so severe as to force them out of business 3) Plurality (Warren) a) Holding: FEC claim rejected b) Distinguishes between direct and indirect burdens (Court does away with this in Sherbert) McGowan v. Maryland (1961) (Sunday closing laws) 1) Exemption denied 2) One of four companion cases to Braunfeld in which the Court rejected claims that Sunday Closing Laws violated the FEC and/or EC 3) Warren acknowledged that original purpose of Sunday closing law was religious, but said now they have a secular purpose (providing a uniform day of rest for all citizens) Sherbert v. Verner (1963) (Saturday sabbatarian and unemployment benefits) 1) Exemption granted 2) Facts a) Unemployment benefits denied to Seventh-Day Adventist on the basis that she would not work on Saturday, the Sabbath day of her faith 3) Majority (Brennan) a) Holding: the State cannot condition the availability of benefits upon a religious believers willingness to violate a cardinal principle of her religious faith [which] effectively penalizes the free exercise of her constitutional liberties. b) Rejected the previous direct vs. indirect burden distinction, said that what is more important is the severity of the burden c) Government has the burden of showing a compelling purpose and necessity (strict scrutiny) for its burdening of the religion in question Walz v. Tax Commn (1970) (tax exemption for religious property) 1) Exemption granted 2) Facts a) State tax exemption applied to personal property used exclusively for religious purposes as well as other secular non-profits 3) Majority (Burger) a) Holding: exemption is Constitutional because it neither advances nor inhibits religion b) Burger justified position on basis that certain entities exist in harmonious relation to the community at large, and that foster its moral or mental improvement c) Effect must not be excessive government entanglement with religion 4) Concurrence (Brennan) & Dissent (Douglas) a) Brennan says tax exemption does not subsidize religion; Douglas says it does Gillette v. United States (1971) (no draft exemptions) 1) Exemption denied 2) Majority

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a) Holding: no exemption from conscription for religious conscientious objectors due to overriding government interest Johnson v. Robison (1971) (military benefits for conscientious objectors vs. active duty) 1) Exemption denied 2) Majority a) Holding: educational benefits for veterans who served on active duty vs. conscientious objectors does not violate FEC because there is a rational basis for it Wisc. v. Yoder (1972) (Amish & compulsory education) 1) Exemption granted 2) Facts a) s was Old Order Amish, refused to send his children to school after the eighth grade, then was convicted for violating WIs compulsory education law, which required education for an additional two years 3) Majority (Burger) a) Holding: conviction reversed; Amish get an exemption b) Court started by drawing distinction between religious belief and a subjective evaluation and rejection of the contemporary secular values accepted by the majority like Thoreaus (implied jab at hippies) c) Court then said that although State had a compelling interest in educating children, an additional two years of education for the Amish children would not do much to advance this interest d) Good religion argument: Amish organized, law-abiding, reject public welfare, favor self-reliance i) Need and deserve protection because of their small size ii) Problem: court examining a group to decide whether its a religion, so court itself can be said to violate the EC by picking and choosing groups 4) Notes a) Criticism: this reasoning leads to the trainwreck i) Respect for FE claim here raises EC issue: Court explicitly says it is granting an exemption to religious individuals that it would not extend to others with equally heartfelt but secular beliefs United States v. Lee (1982) (Amish must pay social security taxes) 1) Exemption denied 2) Majority a) Holding: no exemption for Amish from payment of social security taxes b) Tax system would be unworkable if groups allowed to challenge taxes because tax payments spent in a matter their beliefs do not agree with Bob Jones Univ. v. United States (1983) (overriding interest in eradicating racism) 1) Exemption denied 2) Majority

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a) Holding: IRS denial of tax exempt status to private school that practices racial discrimination on basis of sincerely held religious belief does not violate FEC because government has overriding interest in eradicating racism Hobbie v. Unemployment Appeals Commn (1987) (reaffirming Sherbert) 1) Exemption granted 2) Facts a) Unemployment benefits denied to Seventh-Day Adventist who refused certain hours on Friday and Saturday because she was a Saturday sabbatarian b) Seventh-Day Adventist had acquired her religious beliefs after taking the job in question 3) Majority (Brennan) a) Holding: the denial of benefits violates the FEC; does not matter when the SDA acquired her religious beliefs, she was still confronted with an unconstitutionally coercive choice between faith and employment Latter-Day Saints v. Amos (1987) (religious discrimination claim against LDS Church) 1) Exemption granted 2) Facts a) 702 of Civil Rights Act of 1964 exempts religious organizations from Title VIIs prohibition against discrimination in employment on the basis of religion b) Employee of the LDS Church filed a Title VII action alleging religious discrimination in employment after they were fired for not following church precepts 3) Majority (White) a) Holding: exemption for religious organizations is Constitutional because it is rationally related to the legitimate purpose of alleviating significant government interference with the ability of religious organizations to define and carry out their mission b) Exemption not a conferral of a benefit, but a removal of a burden Lyng v. Nw. Indian Cemetery Protective Assn (1988) (road over Indian burial ground) 1) Exemption denied 2) Majority (OConnor) a) Holding: FEC does not preclude construction of road over Indian burial ground Jimmy Swaggart Ministries v. Bd. of Equal. (1990) (sales tax on religious materials) 1) Exemption denied 2) Majority a) Holding: FEC does not prohibit imposing a sales and use tax on sale of religious materials by religious organization b) Tax is of general applicability, not too onerous as to stamp out religious practices Empt Div. v. Smith (1990) (religious peyote use) 1) Exemption denied 2) Facts a) Two Native Americans were fired by private drug rehab organization because they used peyote at a ceremony of the Native American Church

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b) Applications for unemployment compensation were denied under an OR state law disqualifying employees discharged for work-related misconduct 3) Majority (Scalia) a) Holding: the Court had never held that an individuals religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate b) But exceptions can be granted when: i) Yoder: issue involves FEC plus some other constitutional right (e.g., parents rights) ii) Sherbert: government has already provided for individualized treatment (e.g., distribution of unemployment benefits) iii) Note that these exceptions in practice can be quite broadly interpreted c) Scalias arguments against compelling interest test i) Previously test had involved Q of whether religious practice was central to religion, but courts have no businesses determining this, so it would have to apply to all religiously commanded actions ii) If this were the case, test could require religious exemptions from huge range of civic obligations; better idea is to leave religious exemptions to legislatures iii) Conscience would become a law unto itself iv) However, admits leaving issue to legislatures will disadvantage minority religions 4) Notes a) Congress tried to overturn Smith with a law requiring a strict scrutiny test on actions restricting religious practices, but statute overturned in City of Boerne v. Flores b) Parker thinks this opinion is doctrinally weak because it is based on a conjecture that there is a common thread underlying the religion cases, when there is none Tex. Monthly, Inc. v. Bullock (1989) 1) Facts a) Texas exempted religious periodicals from a general sales and use tax which publisher of general interest magazine challenged on EC grounds 2) Majority (Brennan) a) Holding: tax exemption lacks breadth to pass EC scrutiny 3) Reasoning/Notes a) Compare to Walz, which had tax exemption not directed to religion alone but which encompassed other non-profits Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993) (Santera ordinance) 1) Exemption granted 2) Facts a) City passed ordinance that forbade the "unnecessar[y]" killing of "an animal in a public or private ritual or ceremony not for the primary purpose of food consumption." b) Law was enacted soon after city found out about Church which practiced Santera was planning on locating there 3) Majority (Kennedy) a) Holding: Court held city ordinance unconstitutional because it found the object of the ordinance was to suppress the Santeria religion

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City of Boerne v. Flores (1997) (Smith still applies) 1) Exemption denied 2) Facts a) A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA) b) RFRA was passed in response to Smith, in attempt to restore the strict scrutiny test and to provide a claim or defense to persons whose religious exercise is substantially burdened by government 3) Majority (Kennedy) a) Holding: RFRA unconstitutional as applied to the states b) Reiterates Scalias assumption (in Smith) that legislative process is fairly benign when it comes to religion; theres little hostility to religion or particular religions i) Parker: compare this to the rhetoric in Everson, where Black goes on about the terrible dangers of mixing religion and politics 4) Concurrence (Stevens) a) [T]he statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Cutter v. Wilkinson (2005) (prisoners religious practices) 1) Facts a) Case brought by 5 residents of an OH prison, which included two adherents of Asatru, a minister of the white supremacist Church of Jesus Christ Christian, a Wiccan and a Satanist 2) Majority (Ginsburg) a) Holding: prisoners in facilities that accept federal funds cannot be denied accommodations necessary to practice their own religious beliefs. 3) Notes a) Unanimous decision

Public and Private Schools

Exemptions from Compulsory Schooling and School Activities
General Notes 1) The Court is generally sympathetic to religious groups who would rather educate their children outside of the public school system (Pierce, Yoder) 2) The Court is also generally sympathetic to students from religious minorities who wish not to be compelled to engage in a certain activity (Barnette; cf. school prayer cases; but cf. Newdow) Cases Pierce v. Socy of Sisters (1925) (secular public schooling made compulsory) See Exemptions for Religious Conduct setion, supra Minersville Sch. Dist. v. Gobitis (1940) (flag salute compelled) See Exemptions for Religious Conduct setion, supra

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W.V. State Bd. of Educ. v. Barnette (1943) (flag salute no longer compelled) See Exemptions for Religious Conduct setion, supra Wisc. v. Yoder (1972) (Amish & compulsory education) See Exemptions for Religious Conduct setion, supra

Aid to Religious Schools

General Notes 1) Court generally accommodating in this area so long as the aid is being provided in a generalized program with a secular purpose (Lemon is an outlier) 2) Court most likely to strike down programs which bring public schools and religion into unseemly proximity, e.g., religious classes in the public school building (McCollum), separate school district for a religious group (Kiryas Joel) 3) The Lemon Test for EC Violations a) The test: a government program: i) Must have a secular legislative purpose ii) Must not have the primary effect of either advancing or inhibiting religion iii) Must not result in an excessive government entanglement with religion b) Many think the test was abandoned for good in Mitchell 4) Rhetorical Themes a) Secular purpose i) Everson, Zorach, Allen, Lemon, Mitchell, Zelman b) Purpose vs. effects i) E.g., debate between Black and Jackson sin Everson c) The pervasive religious atmosphere argument i) Burger in Lemon, Souters dissent in Zelman Case Everson McCollum Zorach Allen Lemon Mergens Kiryas Joel Mitchell Milford Zelman Locke Year 1947 1948 1952 1968 1971 1990 1994 2000 2001 2002 2004 EC Violation? No Yes No No Yes No Yes No No No No Description Bus subsidies mainly to parochial students Students can attend sectarian classes in public school Like McCollum, except classes outside the school Textbooks for religious private schools Salary reimbursements for private religious schools HS Christian club Separate school district for Hasidic Jews Loaning materials to private religious schools After-school use of rooms by Christian group Cleveland school vouchers Theology scholarships

Cases Everson v. Bd. of Educ. of Ewing Tp. (1947) (bus subsidies) 1) Facts a) NJ had program which subsidized public bus transportation for students of both public and religious schools (which in this township were almost entirely Catholic schools) 17

2) Majority (Black) a) Holding: NJ program upheld because it serves the purpose of promoting child safety b) Fact that it in effect aids RC schools does not mean that it violates the EC c) Wants to avoid conflict between FEC and EC d) Vivid mental image is fear of strife or conflict e) Black started off his opinion by staunchly supporting separation of church and state (wall of separation), but then went on to uphold the program (bait and switch) f) Fact that program basically just aids Catholic schools in particular not a concern 3) Dissent (Jackson) a) Looks at effects, as opposed to Blacks focus on purpose b) [T]he undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion, yielding support to their commingling in educational matters. The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron's reports, "whispering I will ne'er consent,' -- consented." 4) Notes a) 54 decision McCollum v. Bd. of Educ. (1948) (parochial school instruction during the day) 1) Majority (Black) a) Holding: struck down a school boards practice of permitting students to attend sectarian classes held in the public schools during school hours by parochial school instructors. Zorach v. Clauson (1952) (students released to attend religious classes) 1) Facts a) Program like that in McCollum except that students were released during school hours to attend sectarian classes outside the public school 2) Majority (Douglas) a) Holding: program does not violate the EC b) We are a religious people whose institutions presuppose a Supreme Being c) Also said the courts holding respects the religious nature of our people and accommodates their spiritual needs and that to ban accommodation would be to show a callous indifference to religious groups 3) Note a) Dissents by Black, Frankfurter, and Jackson Bd. of Educ. v. Allen (1968) (textbooks for religious private schools) 1) Facts a) Government was providing textbooks in secular subjects like math or reading to schools including religious private schools (greater aid than in Everson, as a matter of $) 2) Majority (White) a) Holding: there is a secular purpose (kids learning about secular subjects) 3) Notes a) Court not willing to tighten EC approach further b) Court did not pay attention to fact that this relieved private religious schools from burden of paying for own textbooks

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Lemon v. Kurtzman (1971) (reimbursed teacher salaries) 1) Facts a) PA Act reimbursed nonpublic schools (most of which were Catholic) for the salaries of teachers who taught only secular material in these nonpublic schools b) 25% of the State's elementary students attended nonpublic schools, about 95% of those attended Roman Catholic schools, and the sole beneficiaries under the act were 250 teachers at Roman Catholic schools 2) Majority (Burger) a) Holding: the salary reimbursement Act violated the EC b) Lemon test: the Governments action: i) Must have a secular legislative purpose ii) Must not have the primary effect of either advancing or inhibiting religion iii) Must not result in an excessive government entanglement with religion c) Parochial school system was an integral part of the religious mission of the Catholic Church, and so the Act fostered excessive entanglement 3) Notes a) Still technically on the books, but applied very inconsistently b) Scalia and Thomas highly critical of the Lemon test Bd. of Educ. v. Mergens (1990) (HS Christian club) 1) Facts a) Act prohibited discriminating against student groups for access to school resources on basis of religious or other beliefs; high school had Christian club 2) Majority (OConnor) a) Holding: EC does not forbid high school from recognizing Christian club as valid student group 3) Notes a) Parker: this shows how the critical power of the EC argument is deflating over time Bd. of Educ. of Kiryas Joel v. Grumet (1994) (separate school district for sect) 1) Facts a) NY statute constituted Kiryas Joel as a separate school district so Satmar could educate their special needs youth, who previously had problems with integrating in the larger school district outside the village 2) Majority (Souter) a) Holding: statute constituting the school district violates the EC because the benefit flows only to a single sect 3) Notes a) Parker: in contrast to Mergens, this shows the EC still has some bite Mitchell v. Helms (2000) (reaffirms Allen, ditches Lemon for good) 1) Facts a) Federal program lent secular, neutral and nonideological educational materials to public and private schools 2) Majority (Thomas)

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a) Holding: program does not violate the EC because it is neutral, and religious nature of the recipient should not matter 3) Notes a) Significance: court ditches the Lemon test for good Good News Club v. Milford Cent. Sch. (2001) (after-school Christian group meetings) 1) Majority (Thomas) a) Holding: after-school use of schoolrooms by Christian organization does not violate EC because policy toward use of rooms by groups is neutral among religions Zelman v. Simmons-Harris (2002) (Cleveland school vouchers) 1) Facts a) OH enacted a scholarship program which was put into effect in Cleveland which gave students vouchers to attend private schools or tutorial aid for students who chose to remain enrolled in public school b) 82% of participating schools had religious affiliation, 96% of participating students enrolled in religious schools 2) Majority (Rehnquist) a) Holding: program does not violate EC because it is a program of true private choice that is neutral in all respects toward religion (does not advance or inhibit religion) b) EC questions is whether there is coercion i) Critique: previous EC cases not premised on coercion; coercion sufficient to show EC violation, not necessary; this makes it necessary 3) Dissents (Souter, Breyer) a) Program clearly only neutral in literal sense; Breyer in particular worried about stoking religious strife through suggestion of favoritism in channeling funding, no actual choice for many participants b) Souter: The money will thus pay for eligible students instruction not only in secular subjects but in religion as well, in schools that can fairly be characterized as founded to teach religious doctrine and to imbue teaching in all subjects with a religious dimension. c) Souter: Need to save religion from its own corruption slippery slope argument Locke v. Davey (2004) (theology scholarships) 1) Facts a) WA postsecondary scholarship excluded funding to students pursuing a devotional theology degree 2) Majority (Rehnquist) a) Holding: scholarship program constitutional because State has merely chosen not to fund a distinct category of instruction, disfavor of religion is mild b) Rehnquists key move: not only was this exclusion from a benefit program, it was not based on hostility to religion c) We have to leave play in the joints to preserve some leeway for the political process to supplement or correct Constitutional law as made by the courts with their own 3) Dissent (Scalia) a) Too much play in the joints; this law facially discriminates against religion

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b) Says case is about a religious minority, those who devote themselves to the ministry; legislature has trendy disdain for those who go into the ministry

School Prayer
General Notes 1) Court likely to strike down anything that looks like a prayer or religious endorsement in public schools 2) Only possible exception is the reference to God in the Pledge of Allegiance, which they have yet to rule on but which they have suggested they would uphold (Newdow) Cases Engel v. Vitale (1962) (non-denominational state-authored prayer) 1) Facts a) NYS Board of Regents created non-denominational prayer for use in public schools 2) Majority (Black) a) Holding: Government-directed prayer in public schools violates the EC, even if the prayer is denominationally neutral and students may remain silent or be excused from the classroom during its recitation b) Practice was a religious activity and the EC must at least mean that [it] is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government. Abington Sch. Dist. v. Schempp (1963) (Lords Prayer in unison and Bible verses) 1) Facts a) School district opened every school day with Bible verse and the recitation of the Lords Prayer by the students in unison 2) Majority (Clark) a) Holding: extended Engel to say that the EC prohibits the Bible and prayer readings b) Court rejected argument that the fact that the readings merely protected the FEC of the majority; Court said that FEC claims cannot be stretched to the point that they justify an establishment c) Violation of FEC is predicated on coercion, which is not germane to EC analysis 3) Note a) Coercion approach not applied in following cases Wallace v. Jaffree (1985) (moment of silence) 1) Facts a) An Alabama law authorized teachers to set aside one minute at the start of each day for a moment of "silent meditation or voluntary prayer b) However, there was evidence that much more than this was actually going on in the schools c) No evidence of secular legislative purpose offered by the legislature; testimony indicated the legislation was solely an effort to return voluntary prayer to public schools 2) Majority (Stevens) a) Holding: struck down the law because of what seemed to be a specific purpose to encourage prayer

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i) No secular purpose 3) Notes a) 6-3 decision; widely regarded as a very close case Stone v. Graham (1980) (Ten Commandments on classroom walls) 1) Facts a) KY statute required posting of the Ten Commandments in public classrooms 2) Per curiam a) Holding: statute violates the EC because it has no secular purpose (KYs ostensible justification was a sham) Lee v. Weisman (1992) (non-denominational prayer at graduation) 1) Facts a) Prayer given by a rabbi at a public high schools graduation ceremony; prayer was nondenominational but mentioned God, in Judeo-Christian tradition 2) Majority (Kennedy) a) Holding: program violated the EC because the government involvement with religion her was pervasive, to the point of creating a state-sponsored and state-directed religious exercise. b) Problem here was coercion, in this case subtle psychological pressure to participate in the event and the prayer 3) Concurrences (Souter, Blackmun) a) Endorsement rather than coercion should be basis of EC violations i) [It] is not enough that the government restrain from compelling religious practices: it must not engage in them either. b) Since state action that coerces religious conformity violates the FEC, why would you need proof of an EC violation? 4) Dissent (Scalia) a) The only coercion that matters is that backed by force of law and penalty i) Suggests that all that would be needed would be a disclaimer before the prayer b) Civic religion theme; religion as a unifying force c) Wont somebody think about the religious people, the majority? They have feelings too. 5) Notes a) 54 decision Santa Fe. Indep. Sch. Dist. v. Doe (2000) (invocation at football games) 1) Facts a) School had policy where students could elect a student council chaplain to deliver an invocation before home football games 2) Majority (Stevens) a) Holding: extended Weisman to say student-lead prayer policy facially violates the EC 3) Dissent (Rehnquist) a) Policy could be unconstitutionally applied but should not be struck down on its face

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Elk Grove Unified Sch. Dist. v. Newdow (2004) (Pledge of Allegiance) 1) Facts a) Parent filed suit on behalf of his daughter to challenge use of the words under God in the Pledge of Allegiance; Ninth Circuit ruled in his favor 2) Majority (Stevens) a) Holding: father did not have standing to sue on behalf of his daughter, so Ninth Circuits decision reversed as a matter of procedure 3) Dissent (Rehnquist) a) The term merely acknowledges the nation's religious heritage. b) The Pledge is a secular act rather than an act of religious indoctrination or expression. 4) Notes a) Could show that Weisman and Santa Fe are outliers

Creationism
General Notes 1) Court hostile to any educational statutes and programs which have an anti-evolution bent 2) Court highly likely to view any ostensible secular purpose in this area as a sham Cases Epperson v. Ark. (1968) (law banning teaching evolution) 1) Facts a) Arkansas statute forbid public school teachers from teaching the theory of evolution 2) Majority (Fortas) a) Holding: statute violated both religion clauses because the sole reason for proscribing teaching evolution was because it [was] deemed to conflict with a particular religious doctrine. 3) Notes a) Unanimous decision Edwards v. Aguillard (1987) (creation science in bio classes) 1) Facts a) Law required the inclusion of creation science in biology classes 2) Majority (Brennan) a) Holding: law struck down on EC grounds because it had no secular purpose and furthered a particular religious viewpoint; claims of secular purpose were a sham 3) Dissent (Scalia) a) The Act did have a legitimate secular purpose (promoting academic freedom) and inquiring into legislative purpose is unjustified

Public Religious Displays and Messages

General Notes 1) Court generally fairly deferential in this area a) See Burgers fanciful description of a nativity scene as a non-sectarian historical display in Lynch

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2) Indoor-outdoor distinction: there are really only two instances in which the court has stuck down symbolic and tangible displays owned and managed by government which were said to violate EC in endorsing religion; both of these cases (Allegheny and McCreary) were cases in which the displays were clearly undeniably and uniquely religious in content, and in which the displays appeared indoors in a courthouse Cases Marsh v. Chambers (1983) (legislative chaplains) 1) Facts a) Paid chaplains opened legislative sessions with prayer. 2) Majority (Burger) a) Holding: no EC violation due to practices long pedigree in American history 3) Notes a) Criticism (Prof. Farber): [T]he practice embodied outright viewpoint discrimination, since only religious messages were allowed. (No atheists were likely to receive invitations to open the session with celebrations of the purely secular nature of human virtue.) If distinguishing between religious and non-religious perspectives is impermissible viewpoint discrimination, it is hard to see how the state could justify its exclusion of all secular viewpoints from the opening ceremony, except on the basis of long and unquestioned history. Lynch v. Donnelly (1984) (Christmas display) 1) Facts a) City put up a Christmas holiday display 2) Majority (Burger) a) Holding: does not violate the EC; this was not a religious display, but merely depicted the historical origins of a secular winter holiday 3) Concurrence (OConnor) a) Suggested new endorsement test: i) EC prohibits government from making adherence to a religion relevant in any way to a persons standing in the political community. ii) This would prevent government endorsement or disapproval of religion which sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community iii) Note: test difficult to apply because it focuses on an individuals subjective reaction 4) Dissents (Brennan, Blackmun) a) Protested that the crche was a specifically Christian religious display and communicated an exclusionary message to non-Christians b) Brennan will accept ceremonial deism, but this goes too far Allegheny County v. ACLU (1989) (two holiday displays) 1) Majority (Blackmun) a) Holding 1: display of crche on the main staircase of a county courthouse was unconstitutional because the absence of Santa and reindeer carried a message of endorsement

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b) Holding 2: display of menorah in nearby public building next to a Christmas tree and a sign saying Salute to Liberty constitutional i) Two Justices applying the endorsement test found that in context the menorah was part of a message supporting pluralism and freedom of belief 2) Concur/Dissent (Kennedy) a) Symbolic recognition or accommodation okay except in extreme cases; our society has traditionally become used to ceremonial invocations of God and references to religion; a wall of separation would send a message of disapproval of religion b) Standard should be coercion 3) Notes a) Very messy 54 plurality decision McCreary County v. ACLU (2005) (Ten Commandments in courthouse) 1) Facts a) Two KY counties displayed large copies of the Ten Commandments on the walls of the county courthouses; after previous challenges to the monuments the county governments had responded by enlarging them 2) Majority (Souter) a) Holding (Souter): the displays violated the EC i) Governments alleged secular purpose a sham purpose 3) Concurrence (OConnor) a) Reasonable observer test (reasonable observer would view message as an endorsement) b) Response to Scalia: [W]e do not count heads before enforcing the First Amendment. 4) Dissent (Scalia) a) Honoring the Ten Commandments indistinguishable from publicly honoring God, majority adhere to Judeo-Christian beliefs and traditions i) Critique: but publicly honoring God would also be endorsing religious over nonreligious views. Van Orden v. Perry (2005) (Ten Commandments monument) 1) Facts a) Monument of Ten Commandments on grounds of Texas state capitol, which also contained many other monuments 2) Majority (Rehnquist) a) Holding: the display does not violate the EC; the fact that a government display has some religious content or is consistent with religious doctrine does not in itself violate the EC b) Rehnquist starts off with the our institutions are based on a Supreme Being and JudeoChristian values argument c) Policy of disfavoring religion would undermine the neutrality at the heart of the EC 3) Concurrence (Breyer) a) Ten Commandments monument has both religious and secular purpose b) Context of numerous monuments suggested that the monument here was simply a way of illustrating values that have influenced TX c) Fear of divisiveness 4) Dissent (Stevens) a) The guiding principle should be neutrality between religion and irreligion.

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5) Notes a) 54 decision Capital Square Review & Advisory Bd. v. Pinette (1995) (KKK cross) 1) Facts a) KKK erected large cross in a public square 2) Majority (Scalia) a) Holding: this does not violate the EC; private speech cannot violate the EC just because it takes place in a public forum 3) Concurrence (Thomas) a) Most people would not view the Klans use of the cross as religious Salazar v. Buono (2010) (VFW cross) 1) Facts a) Cross placed atop a rock outcropping by the VFW foundation in 1934 to honor war dead; after federal court held this violative of EC, Congress tried to swap land with VFW 2) Majority (Kennedy) a) Holding: sent case back to a lower court due to rules pertaining to the law of injunctions and standing b) The goal of avoiding governmental endorsement [of religion] does not require eradication of all religious symbols in the public realm. 3) Dissent (Stevens) a) The cross endorses a starkly sectarian message 4) Notes a) 54 decision

Freedom of Speech
Overview
Historical Periods
1) The Holmes-Brandeis Foundation a) Introduction i) At the beginning of this period, a majority of justices on the Court imagined a laissezfaire competition-oriented conception of economic life that justified economic liberty, but saw no such mechanism when it came to civil liberties ii) Holmes and Brandeis took the opposite view iii) Broad themes: liberty, courage, and how speech occurs in our democracy b) Holmes: the Marketplace of Ideas i) Marketplace of ideas (1) Origin in dissent in Abrams (2) Parkers criticism: the elephants jump up and down with the chickens metaphor ii) Holmes conception of truth: acceptance by a majority of people (skeptical of absolute claims)

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iii) Parker: but what if we amend Holmes to say we want it to be a fair fight? Or what if we want it to be reasoned? Or what if we want the participants to be upfront about who they are and what theyre doing (transparency and authenticity)? c) Brandeis: Deliberative Speech i) Brandeis and Holmes were often allies ii) But by the time of Whitney, Brandeis spoke in his own voice iii) In contrast to Holmes marketplace conception of freedom of speech, Brandeis favored deliberative speech (1) Origin in concurrence in Whitney iv) Brandeis advocated a broad meaning of the Constitution, saying it is unclear and its meaning changes over time to adapt to problems unforeseen at the time it was first written v) Judges must be willing to embrace the task of enforcing a Constitution without fixed or stable meaning vi) Parker: Holmes was doing this too, but Brandeis rests less on charisma; he tries frequently to rest his arguments rhetorically on traditions embraced by the American people (but hes in dissent a lot, so its hard to argue that this is really the case) vii) Brandeis also fears fear because of its tendency to irrationality viii) However, Brandeis rejected this mode of discourse in other contexts (e.g., in economic redistribution, which conservative justices claim was based on irrationality, fear of the rich, etc.) d) Holmes and Brandeis compared i) Holmes, like Brandeis, shift the presumption from legislative determinations and jury findings to freedom of speech ii) Both agree that courage is important, and that liberty and courage are interdependent iii) What if an exercise of speech is not deliberative? Does it deserve protection? (1) Holmes: inclined to say yes (2) Brandeis: inclined to say no 2) FOS at its Zenith: The Trilogy a) Brandenburg, Cohen, and Sullivan i) Sullivan (1964): civil rights defamation case, Brennans soaring rhetoric ii) Brandenburg (1969): incitement only illegal if action imminent and likely iii) Cohen (1971): Fuck the Draft symbolic speech protected 3) The Fourth Period a) From Scalia and Kennedy joining Court through now: sharp turn of a sort without precedent b) Looking at the whole of FOS law since the 1940s, you cannot say it is coherent c) Recent cases: B.J.F., Falwell, Bartnicki, Free Speech Coalition, Paps, Snyder i) Set all of this against everything else weve looked at, see terrific fault lines in the body of FOS law ii) Rejection of balancing (particularly in Stevens) that has been part of FOS law from the very beginning iii) Expansion of what is worth protecting beyond what Holmes and Brandeis had in mind (which was political speech content, loosely defined) (1) Consequently, the value of the speech youre protecting at the margins becomes lower and lower once you break this boundary

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iv) Devaluation of intangible harms (both discrete, e.g., privacy, and generalized, e.g., degradation of the culture) (1) Court is talking like this is not a legitimate concern of government; no concern for fostering respect (2) Is it this, or is it a sense that our democratic culture is robust enough to be able to fend for itself? Theres been a shift in our culture generally toward tolerance, and protests like the Phelps are routinely met with vigorous counter-protests. If the speech really does offend our shared morality and values, why wouldnt this come out without a restriction on speech?

Overarching Themes
1) The Difficulties of an Originalist Position for the First Amendment (Leonard Levy article) a) Framers intent with respect to the First Amendment is murky; they may not have been as committed to civil liberties as popularly thought b) Levy also says its possible that the Framers did not really know what they meant to say, or that there was no general agreement on it 2) Overarching Views of Freedom of Speech a) Holmes i) Marketplace of ideas conception b) Brandeis i) Deliberative speech is deserving of protection c) Alexander Meiklejohn i) Similar to Brandeis, but narrower ii) Speech related to self-government must have absolute First Amendment protection iii) Incidental speech not related to self-government may be regulated in some manner iv) Cass Sunstein has essentially rehashed this approach d) Brennan i) According to Parker, moved court from political conception of freedom of speech to social value approach e) Kathleen Sullivan i) Two conceptions of freedom of speech (1) Speech-as-equality (a) Protects unpopular minorities (b) Politically and financially disadvantaged speech prevails over regulation, but regulation promoting political equality prevails over speech (2) Speech-as-liberty (a) Ideas best left to a freely competitive ideological market (b) Treats with skepticism all attempts at speech suppression that might skew the private ordering of ideas (3) Sullivan: the best approach combines the two (a) Few limits on speech + disclosure requirements (b) This may be best approach in the age of the Internet (4) This seems well-suited to deal with core political speech, less well-suited to deal with things like crush videos, obscenity in public places, etc. (a) And if this is the case, we run right back into the debate about the Brandeis-Meiklejohn-Sunstein approach

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3) Which Way Does the Presumption Tilt? 4) The Inevitability of Judging the Value of Speech a) Parker believes all Freedom of Speech argument involves some evaluation of content and its value by the Court itself b) Sometimes the Courts evaluation of content is implicit, but other times it is explicit i) Look at Yoder, Chaplinsky, Sullivan 5) The Audience a) Is speech meaningless if nobody can hear anything? b) Without a limit, do people have to go to extreme lengths to get attention?

Doctrinal Overview
The Six Potential Freedom of Speech Interests
1) 2) 3) 4) 5) 6) Freedom to speak Freedom not to speak Freedom to be an audience Freedom from speech Freedom to be spoken for Freedom to associate with others in order to speak with each other or to pool your resources together to speak to outsiders

Speech versus Conduct

1) Definition of speech is broad 2) Individual justices have been known to classify a particular act as conduct rather than speech when they do not like its content a) E.g., Black in Tinker, Thomas in Black, Blackmun in OBrien

Types of Speech
1) Traditional categories of low-value (unprotected): obscenity, defamation, fraud, incitement, false advertising, and speech integral to criminal conduct a) Child pornography is the farthest this approach went (Ferber); they have consistently declined to create new categories (Ashcroft v. Free Speech Coalition, Stevens)

Types of Restraints on Speech

1) Speech vs. Conduct a) Since the 1960s, there has not been much of a debate on the Court about whether given given activities represent speech or conduct; so long as the activity is seen as expressive, the Court is inclined to find it a form of speech b) Therefore, the most relevant question is not whether the activity in question is speech or conduct, but rather whether the governments regulation is content-based 2) Conduct-Based (Time, Place, and Manner Restrictions) Restrictions a) Generally, the Court is deferential to TPM restrictions that are reasonable and do not present viewpoint discrimination problems (especially in line of cases led by White and those since) b) Court applies some form of balancing test i) Factors: (1) Speech interest

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(2) Burden on speech (alternatives for speaker) (3) Government interest (4) Less drastic means (alternatives for government) c) See Public Forums and Public Spaces section, infra 3) Content-Based Restrictions a) Content-Based vs. Content-Neutral restrictions i) Content-based restrictions (1) Court highly skeptical of restrictions which discriminate based on the subject of the speech (see, e.g., Mosley) (2) Two kinds of content-based restrictions (a) Subject-matter (i) Obscenity, defamation, fraud, incitement, and speech integral to criminal conduct (ii) Usually gets some form of intermediate scrutiny (b) Viewpoint discrimination (i) Court is especially skeptical of viewpoint discrimination (discriminating on a particular message within a subject) (R.A.V., Rosenberger, Velazquez) 1. Anything that resembles viewpoint discrimination is likely to trigger strict scrutiny, regardless of category 2. This mostly starts in the Third Period ii) Content-neutral restrictions (1) In attempting to figure out whether a restriction is content-neutral, the Court often applies the test from OBrien (though note that critics could question whether OBrien dealt with a truly content-neutral restriction): (a) Furthers an important/substantial government interest (b) Government interest is unrelated to the suppression of free expression (c) Incidental restriction of FA freedoms is not greater than necessary (2) However, the Court has struggled with defining what exactly defines a contentneutral regulation (see Barnes, Paps A.M.) (3) Secondary effects doctrine from Renton: if law is justified without reference to the content of the message, but with respect to secondary effects such as crime, it is not content-based (this doctrine no longer holds much water) b) Standard of review for content-regulation depends on the category of speech involved (see supra; see also scrutiny handout) i) Fully Protected (1) Core of the core = electoral speech (2) Strict scrutiny applies; regulation must: (a) Serve compelling governmental interest (b) Be narrowly tailored (c) Be the least restrictive means for achieving that interest ii) Intermediate (1) E.g., commercial speech, sexually explicit speech (2) Some sort of balancing test applies (see scrutiny handout) iii) Unprotected (1) See Chaplinsky

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(2) Traditional categories: obscenity, defamation, fraud, incitement, and speech integral to criminal conduct (including false advertising) (3) Child pornography is the farthest this approach went (Ferber); in recent years the Court consistently declined to create new categories (Ashcroft v. Free Speech Coalition, Stevens) (4) Rational basis applies c) The Two Poles i) The Court has taken two approaches to content regulation, represented by two poles ii) On one side we have Fear of Speech and Chaplinsky, on the other Fear of Government and Cohen iii) Most cases represent some sort of compromise between the poles, with the center of gravity changing over time (Second Period tilted toward Cohen in cases like Brandenburg and Sullivan, Third Period tilted toward Chaplinsky in cases like Gertz, Miller, and Paris Adult Theatre) Regulation of Content-in-Context: Fear of Speech Chaplinsky Slippery slope arguments emphasize fear of speech more than fear of government Open and more or less orderly, transparent competition of views and/or reasoned deliberation = sign of health/strength Stress on collective/community choice of basic standards of, and outer limits to, what should be said and how Stress on value of connection and communication Looser probability-of-harm arguments Broader negative corollary arguments Chaplinsky Fighting Words Regulate causation of tangible harm (e.g., provoking a fight) Regulate causation of discrete intangible harms (e.g., naturally insulting words) Regulate causation of generalized intangible harms (e.g., to order and morality) Categorical, absolutist approach Devalue the content-in-context (speech has slight/no value) d) Parkers views

Fear of Government Cohen Slippery slope arguments emphasize fear of government more than fear of speech Cacophony/tumult/confrontation = sign of health/strength Stress on individual choice of what to say and how Stress on value of effective, vigorous and uninhibited self-expression Tighter probability-of-harm arguments Narrower negative corollary arguments Cohen Fuck the Draft Can regulate causation of direct tangible harm (e.g., intentional face to face insult) Slight interest in preventing intangible harms if audience can turn away Tumult and discord necessary side effects of open debate; risk of censorship; no need to protect the unusually sensitive Relativist approach One mans vulgarity is another mans lyric

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i) In recent years the Courts approach to conduct regulation (TPM restrictions) is causing the bottom to fall out of content regulation law, allowing for more restrictions on speech (see handout) 4) Prior Restraints a) Prior restraint: one is prevented, in advance, from communicating certain material. b) Prior restraints are heavily disfavored; no case seems to allow them c) See N.Y. Times Co. v. United States (1971) (Pentagon papers)

Overbreadth and Underbreadth

1) Overbreadth: a statute is overbroad if, in proscribing unprotected speech, it also proscribes protected speech. Overbreadth allows a party to whom the law may be constitutionally applied to challenge the statute on the ground that it violates the FA rights of others. 2) Underbreadth: not a recognized doctrine, but a derogatory term for Scalias approach in R.A.V.; idea is that if a category of speech is proscribable but only some speech in that category has been banned in a manner that discriminate on viewpoint, the ban is impermissible.

Subversive Speech, Hate Speech, and Symbolic Speech

Subversive Speech & Sedition
General Notes 1) Three general approaches to subversive speech (see chart below) Approach to advocacy of law-breaking (particularly by force): Holmes/Brandeis Dennis Presumption Gravity of Harm Imminence of Harm Role of Alternatives Value of Speech
WWI and Red Scare Against regulation; burden on government Serious or pressing Clear and present Regulation must be necessary / no alternative Consider value and extent of burden on it CPUSA Organizing Deference to legislature and fact-finder Weigh the gravity Discount by relative probability Regulation must be necessary / no alternative Balance benefits of speech and burdens on it

Brandenburg
KKK Incitement Against regulation; burden on government Lawless action Imminent and likely No necessity requirement No reference to balancing

2) Rhetorical Themes a) Fire metaphors (Holmes in Schenck, Frohwerk and Gitlow, Sanford in Gitlow) b) Marketplace of ideas (Holmes dissent in Abrams) c) Deliberative speech (Brandeis concurrence in Whitney) d) Fear of immediate/imminent harm (all cases) i) This is what the crux of the debate is about in these cases ii) Seems like this serves as a proxy for Justices assessment of the value of the viewpoint expressed by the speaker iii) Brandeis counterargument: we must have the courage to accept the dangers that come with liberty (concurrence in Whitney) 32

iv) Blacks counterargument: only safe/orthodox views will be protected, and those who really need protection will not get it (dissent in Dennis) Cases Schenck v. United States (1919) (clear and present danger) 1) Facts a) s convicted of obstructing enlistment for distributing 15,000 copies of a document 2) Majority (Holmes) a) Holding: conviction upheld b) Clear and present danger test: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [The] question in every case is whether the words used 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. It is a question of proximity and degree. i) Note: focus is not on intent Debs v. United States (1919) (Debs anti-war speech) 1) Facts a) Eugene Debs convicted under the Espionage Act for obstructing recruitment/enlistment because he gave an anti-war speech at the state convention of the Socialist party of Ohio to an audience of 1,200 persons 2) Majority (Holmes) a) Holding: conviction upheld; Holmes treats this like a routine criminal appeal, does not discuss whether Debs speech actually presented a clear and present danger Frohwerk v. United States (1919) (anti-war editorials) 1) Facts a) German language newspaper published editorials denouncing US involvement in WWI; convicted for violating Espionage Act 2) Majority (Holmes) a) Holding: conviction upheld b) The First Amendment does not "give immunity for every possible use of language." c) No intent required d) Fire metaphor Masses Publg Co. v. Patten (S.D.N.Y. 1917) (Hand test) 1) Facts a) Postmaster of NY denied monthly revolutionary magazine usage of the mails 2) Majority (Hand) a) Holding: if a citizen stops short of urging upon others that it is their duty or their interest to resist the law, then he or she is protected by the FA. 3) Notes a) Reversed by 2d. Cir. Abrams v. United States (1919) (Holmes silly leaflet and fighting faiths dissent) 1) Facts

33

a) s were socialists, printed two leaflets and distributed several thousand copies in NYC; many copies were thrown from window, others passed around at radical meetings 2) Majority (Clarke) a) Holding: convictions upheld 3) Dissent (Holmes) a) Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so. b) Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition . . . But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas . . . that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. c) I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. d) Parker: he couldnt possibly embrace this test and come to the same conclusion in Schenck, Frohwerk, and Debs Gitlow v. N.Y. (1925) (Holmes every idea is an incitement dissent) 1) Facts a) convicted for printing and distributing 16,000 copies of a Communist manifesto 2) Majority (Sanford) a) Holding: conviction upheld; deferred to legislature b) Fire metaphor c) The danger is real and substantial because the effect of an utterance cannot be accurately foreseen i) This logic seems to be the reason we know it is dangerous is because we do not know just how dangerous it is 3) Dissent (Holmes, joined by Brandeis) a) There was no present danger in this case b) Every idea is an incitement . . . Eloquence may set fire to reason. c) If majority wants proletarian dictatorship, the only meaning of FOS is to let them have their way Whitney v. Cal. (1927) (attendance of Communist meetings) 1) Facts a) was Communist, convicted under criminal syndicalism statute; she had only attended Communist Party meetings 2) Majority (Sanford)

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a) Holding: conviction upheld 3) Concurrence (Brandeis) a) Only a concurrence for technical reasons; he rejected majoritys reasoning completely b) Rejects idea that immediate serious violence was to be expected or was advocated in this case c) Critical difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy. d) Free discussion important for democracy, and we must have the courage to accept the dangers that come with liberty e) Founders eschewed silence coerced by law the argument of force in its worst form. f) Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent . . . [and] that the evil to be prevented is a serious one. Dennis v. United States (1951) (CPUSA organizing) 1) Facts a) Act made it unlawful to be part of an organization that advocates violently overthrowing the US government; s were Communist Party organizers b) Justices felt they were bound to accept the facts about the CPUSA as found in the Court below: CPUSA a regimented, tightly controlled organization; very secretive, sought to infiltrate other organizations 2) Majority (Vinson) a) Holding: conviction upheld b) Court purports to apply clear and present danger test, but really doesnt i) Applied new conception of test taking into account probability of harm and size of harm, like BPL test; preventing overthrow here a sufficiently substantial interest c) The government need not wait until the putsch is about to be execute, the plans have been laid, and the signal is awaited. d) Assumed connection between s speech and a vast on-going conspiracy 3) Dissent (Black) a) The Amendment as so construed is not likely to protect any but those safe or orthodox views which rarely need its protection. 4) Dissent (Douglas) a) Accepts many of the premises of anti-communism, but says strength and tactical position of Communists suggest they dont really pose a serious threat 5) Notes a) i) What is the actual likelihood of harm here (the P in the BPL equation)? That a few thousand intellectuals, though tightly controlled and highly committed to their cause, will somehow defeat the US army and the popular will of the American public and overthrow the government? ii) If this organization is so sophisticated, secretive and hard to pin down, wont outlawing their speech make it harder to identify and combat them?

35

(1) Granted, in this case the statute is criminalizing belonging to an organization that advocates violent overthrow, but still iii) Where is the discussion of alternative means to achieve the ends of the statute? b) Most scholars think this was a bad decision; hardly ever cited today Brandenburg (1969) (incitement test) 1) Facts a) KKK member convicted under criminal syndicalism statute for utterances at meeting attended by 12 people and a news crew; statements were mostly vague and somewhat contradictory about revengence, whatever that is, and he said racist things 2) Per curiam a) Holding: advocacy of violence can be prohibited only when 1) it is directed to inciting imminent lawless action, and 2) it is likely to produce such action. 3) Note a) Court willing to rein in its subversive speech doctrine, but this case concerns a pretty hapless ; they might be more squeamish with a tougher case (like a terrorist) b) Presumption is against the regulation, but in all other aspects it actually broadens the governments ability to regulate incitement: i) Applies to lawless action (probably broader than serious harm, could be nonphysical) ii) Doesnt help to clarify what imminent is (and in many cases Justices have not been able to resist temptation of branding a remote possibility as imminent) iii) No necessity requirement iv) No balancing requirement Holder v. Humanitarian Law Project (2010) (support for terrorists) 1) Facts a) Congress prohibits providing material support or resources to any organization designated by the Sec. of State to be a foreign terrorist organization b) s sought to train PKK and Tamil Tigers on how to use law to peacefully resolve disputes, petition the UN, and engage in general political advocacy; convicted under statute 2) Majority (Roberts) a) Holding: conviction upheld; the congressional prohibition could be constitutionally applied to training and expert advice for peaceful speech activities even if the provision of such support was not intended to assist in the lawful activities of the organization b) Purports to apply strict scrutiny, but really does not c) Deferred to the findings of the legislative and executive branches that foreign terrorist organizations are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct. i) Any support could free up resources, or help them to achieve their goals. d) Court states clearly that a regulation focused on content rather than conduct would be unconstitutional e) Court said it was drawing a distinction between independent advocacy of terrorism in general and that under the direction of or coordinated with a terrorist organization 3) Dissent (Breyer)

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a) Court fails to insist on specific evidence, rather than general assertion; no sign of tailoring

Fighting Words and Hate Speech

General Notes 1) Doctrines without any vitality a) Fighting words doctrine: has its origin in Chaplinsky, but the Court has never upheld a conviction under the fighting words doctrine since then. b) Hostile audience doctrine: has its origin in Feiner, similar to fighting words doctrine, no longer has any vitality. 2) Scholars views a) Schauer: Can we make a distinction between speech with attempt to persuade vs. with attempt to assault? b) Shiffrin: Racist speech seeks to persuade people that government should not treat all persons with equal concern and respect; why should we se if this speech prevails in the marketplace of ideas? c) Minow: if we regulated hate speech, could we turn racist perpetrators into martyrs, would focus on them instead of the social problems 3) Rhetorical Themes a) Need for order (Murphy in Chaplinsky, Jacksons dissent in Terminiello) i) Distrust of those keeping the order (i.e., cops) (Blacks and Douglas dissents in Feiner) b) Value of public debate and dispute (Douglas in Terminiello, Roberts in Snyder) c) Fear of totalitarianism (Jacksons dissent in Terminiello, Douglas dissent in Beauharnais) d) On the lookout for viewpoint discrimination (Collin, R.A.V., Black) e) Brutalization of vulnerable people (Alitos dissent in Snyder) f) Devaluation of intangible harms (Collin, R.A.V., Black, Snyder) Cases Cantwell v. State of Conn. (1940) (JW proselytizing in Catholic neighborhood) See Exemptions for Religious Conduct section, supra Chaplinsky v. N.H. (1942) (JW and unfriendly crowd) 1) Facts a) Jehovahs Witness was haranguing unfriendly crowd with message that religions are rackets traffic officer hustled speaker to police station in hopes of avoiding riot without formally telling him he was under arrest called city marshall (who had told the crowd the JW had a right to speak) a God damned racketeer and a damned fascist 2) Majority (Murphy) a) Holding: conviction upheld under fighting words doctrine b) Fighting words doctrine: words that are likely to cause a fight and which by their very utterance inflict injury or tend to incite an immediate breach of the peace are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.

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3) Notes a) Unanimous decision b) Could be read as broad enough to cover hate speech, but in subsequent cases Court has taken a very narrow view of fighting words doctrine, to the extent it probably no longer retains any vitality; Court has never upheld a conviction under the fighting words doctrine since then. Terminiello v. Chicago (1949) (Chicago near-riot) 1) Facts a) Speaker inside an auditorium gave racist speech which infuriated crowd outside b) Scene outside was like small-scale riot: breaking windows, physically attacking people, stink bombs, etc. c) Speaker convicted of breach of the peace ordinance. 2) Majority (Douglas) a) Holding (Douglas): peace ordinance unconstitutional as applied i) One of free speechs functions is to invite dispute ii) Can't censor or punish speech unless theres a clear and present danger 3) Dissent (Jackson) a) Emphasized danger of situation, threat of totalitarianism (even quotes Goebbels) b) The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact. Feiner v. N.Y. (1951) (black militarist speech) 1) Facts a) Speaker insulted President, American Legion, and citys mayor, who he called a bum who does not speak for the negro people, and also suggested that blacks should rise up in arms and fight for their rights. b) Fearing riot, police arrested him for disorderly conduct 2) Majority (Vinson) a) Holding: conviction upheld; hostile audience doctrine; clear and present danger of a riot 3) Dissents (Black, Douglas) a) Were always going to have to worry about hostile audiences when it comes to controversial speakers, and we dont want the police being censors Beauharnais v. Illinois (1952) (hate speech publications) 1) Facts a) IL statute prohibited hate speech publications 2) Majority (Frankfurter) a) Holding: group libel statute fine, no need to apply CPD test b) Fear of racial tension, violence founded in history basis for legislative decision, we should respect it c) Metropolitan, polyglot community 3) Dissents (Black, Reed, Douglas, Jackson)

38

a) Reed: implied the statute is overbroad b) Black: this degrades FA to rational basis test c) Douglas: raises specter of Nazism hate speech could be an indictable offense, and this would be free speech plus but must be CPD to restrict speech d) Jackson: need to consider truth and good faith of the speaker, CPD Collin v. Smith (7th Cir. 1978) (Skokie Nazis) 1) Facts a) Village of Skokie Racial Slur Ordinance, 20-30 minute Sunday Nazi protest 2) Majority (Pell) a) Holding: Nazis must be allowed to march b) Town doesnt make close enough connection to potential for violence c) Fear of content regulation d) Attempts to make whole town a privacy zone that is sanitized from viewpoints it doesnt like R.A.V. v. St. Paul (1992) (hate crime ordinance) 1) Facts a) St. Paul had a bias-motivated crime ordinance which prohibited cross-burning 2) Majority (Scalia) a) Holding: statute facially unconstitutional because it represents impermissible content regulation b) Viewpoint discrimination: ordinance applies only to fighting words expressing a certain viewpoint, not all 3) Concurrences (White, Blackmun, Stevens) a) Criticize Scalias underbreadth approach; basic idea is that if fighting words / hate speech is proscribable as a category to begin with, why can't you treat a subset of that category differently? b) Stevens: no viewpoint discrimination because all racial groups were prohibited from using racial epithets against each other 4) Note a) Technically a unanimous decision; but a messy coalition Va. v. Black (2003) (cross burning) 1) Facts a) Virginia statute banned cross-burning as a form of intimidation 2) Majority (OConnor) a) Holding: cross-burning can be prohibited so long as theres an intent to intimidate, given cross-burnings history, but you cant prohibit cross-burning in and of itself 3) Dissent (Thomas) a) Cross burning is unprotected conduct, not speech b) Court ignores reality, KKK is a terrorist organization 4) Notes a) Messy opinion in terms of majority, concurrences, concur/dissents and dissents

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Snyder v. Phelps (2011) (WBC funeral protests) 1) Facts a) Westboro Baptist Church, a hate group, picketed the funeral of a Marine; picketers displayed placards such as "America is doomed", "You're going to hell", "God hates you", "Fag troops", "Semper fi fags" and "Thank God for dead soldiers" b) Mr. Snyder testified that, although he glimpsed the tops of the signs from the funeral procession, he did not see their content until he watched a news program on television later that day. He also indicated that he had found the offensive "epic" on WBC's website. c) Snyder sued the WBC 2) Majority (Roberts) a) Holding: WBCs speech is protected b) Stressed speech was on an issue of public importance c) Noted that Westboro stayed well away from the memorial service . . . and there is no indication that the picketing interfered with the funeral service itself. 3) Dissent (Alito) a) Lone dissenter b) In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. 4) Notes a) If speech were not on a matter of public importance, would it still have been protected? i) Perhaps what Roberts was saying was this was not the best case to use to rein in the Courts permissiveness of hate speech or intentional hurtful speech ii) Or maybe this is just a charade; maybe anything can be made to look like a matter of public importance

Symbolic Speech
General Notes 1) Overview a) Symbolic speech generally covers acts which are obviously meant to be expressive of an idea and which reflect a particular viewpoint (e.g., burning draft card, flag burning) b) The Court is generally deferential to symbolic speech (with exception in Clark, but that mainly deals with TPM restrctions, not the symbolic speech itself) c) OBrien test (see below) d) If the speech can have symbolic expressive value, then why is symbolic harm not accepted as a viable reason for curtailing it? 2) Rhetorical Themes a) Tensions between symbolic speech and conduct (Warren in OBrien, Blackmun in Cohen, White vs. Marshall in Clark, Rehnquist in Texas v. Johnson) b) [O]ne mans vulgarity is anothers lyric (Harlan in Cohen) c) Alternative for speaker vs. audience (Brennan v. Rehnquist in Texas v. Johnson) Cases United States v. OBrien (1968) (burning draft cards) 1) Facts a) s convicted for burning draft cards 2) Majority (Warren)

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a) Holding: conviction upheld b) We cannot accept the view that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express an idea c) OBrien test (intermediate-type test) for content neutrality i) Regulation is within the constitutional power of the government ii) Furthers an important or substantial government interest iii) Governmental interest is unrelated to the suppression of free expression iv) Incidental restriction on FA freedom is no greater than is necessary to further that interest d) Raising armies through the draft system is a legitimate purpose 3) Notes a) Some commentators think test collapses into two requirements: regulation must serve a substantial government interest + be narrowly tailored Cohen v. California (1971) (Fuck the Draft jacket) 1) Facts a) arrested for wearing jacket that said Fuck the Draft in an LA courthouse b) Convicted of disturbing the peace by offensive conduct 2) Majority (Harlan) a) Holding: conviction overturned b) Discussion of civility, captive audience rationale i) Concern for government becoming instrument of majoritarian repression of dissidents c) Rejection of privacy claim in this case i) Exposure to unwilling listeners brief and took place in public building ii) No evidence that anyone unable to avoid exposure to the jacket actually objected d) Concern for freedom of expression i) [F]ree expression is powerful medicine in a society as diverse and populous as ours. i) [O]ne mans vulgarity is anothers lyric. ii) Line-drawing concerns 3) Dissent (Blackmun) a) This was not speech by conduct, and an absurd and immature antic at that Clark v. Comty. for Creative Non-Violence (1984) (DC tent city) 1) Facts a) Group wanted to protest homelessness by erecting tent city in DC; was denied camping permit that would allow them to sleep there 2) Majority (White) a) Holding: TPM restriction is okay because the prohibition on camping in designated area is content-neutral, government has interest in maintaining national parks 3) Dissent (Marshall) a) Sleeping here is important to the protest (basically, hes saying it has an expressive element that is important) b) [P]ublic officials have strong incentives to overregulate Texas v. Johnson (1989) (flag burning) 1) Facts

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2)

3)

4)

5)

6)

a) convicted for violating TX flag-burning law Majority (Brennan) a) Holding: flag-burning law is an unconstitutional content-based restriction b) [B]edrock principle of FA is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable c) The way to preserve the special flags role is to convince the flag-burner he is wrong d) Slippery slope argument Concurrence (Kennedy) a) Basically apologizes for agreeing with Brennan, says flag-burning is both technically and fundamentally speech, so it must be protected Dissent (Rehnquist) a) The flag is not just a symbol b) Flag-burning is like an inarticulate grunt or roar Dissent (Stevens) a) Basically says but this case is different b) Flag not just a symbol, banning flag-burning trivial burden on free expression Notes a) 54 decision b) Congress responded to case by passing anti-flag-burning legislation, which Court struck down in another 5-4 decision in United States v. Eichman

Public Schools
General Notes 1) Overview a) With exception of Pico, all cases involve schools either disciplining students for things they said or censoring their speech b) Like the military, schools seem to be considered a community apart, although the speech rules are less lax than they are for the military 2) Rhetorical motifs a) Inculcating values / educational mission / school discipline (recognized in all cases) i) Reason why orderly protesters arguments especially important in this line of cases b) Orderly protesters / silent protest (Fortas in Tinker) c) Censorship (Fortas in Tinker, Brennan in Pico and Kuhlmeier, Stevens dissent in Morse) Cases Tinker v. Des Moines Sch. Dist. (1969) (Vietnam protest armbands) 1) Facts a) Two HS students and one junior high student wore armbands to protest Vietnam War 2) Majority (Fortas) a) Holding: FA does not permit a public school to punish the student for wearing a black armband as an anti-war protest absent any evidence that the rule was necessary to avoid substantial interference with school discipline or the rights of others i) So recognized rights are: 1) school discipline, 2) others rights b) It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. c) Orderly protesters argument: here, protest was silent 42

d) Worries about censorship, totalitarianism 3) Dissent (Black) a) This isnt speech, its conduct; complains that speech diverted students minds, involved emotional subjects 4) Notes a) Parker thinks this case not what people think it is, because reasoning suggests that if they had truly been disruptive, their conduct would not have been protective Island Trees v. Pico (1982) (school library) 1) Facts a) School district removed books it considered vulgar from the school library 2) Majority (Brennan) a) Holding: regulation struck down because it was based on the content of the books; but narrowly applies to removal of books, does not apply to acquisition b) Censorship argument (official suppression of ideas) 3) Notes a) 54 decision Bethel Sch. Dist. v. Fraser (1986) (lewd assembly speech) 1) Facts a) Case dealt with students lewd speech at a school assembly 2) Majority (Burger) a) Holding: speech not protected by the FA i) Inculcating values / mission of schools argument 3) Notes a) Brennan concurred, Marshall sole dissenter Hazelwood Sch. Dist. v. Kuhlmeier (1988) (school newspaper) 1) Facts a) School newspaper advisor refused to publish articles on teen pregnancy and divorce 2) Majority (White) a) Holding: regulation upheld because it was reasonably related to legitimate pedagogical concerns b) School newspaper is not a public forum; it is part of the school curriculum, so school may be able to set high standards for what is allowed 3) Dissent (Brennan) a) Calls this official censorship Morse v. Frederick (2007 (Bong Hits 4 Jesus) 1) Facts a) Students on field trip to see Olympic torch pass by unfurled banner stating BONG HiTS 4 JESUS in large letters as torchbearer ran by; were disciplined by the school 2) Majority (Roberts) a) Holding: the school officials did not violate the FA by confiscating the pro-drug banner and suspending the student responsible for it

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b) Two principles from Bethel: forum makes a difference (here, theyre on a public street), and we must consider it in light of the special characteristics of the school environment i) So we dont apply a substantial disruption test c) Focus on fact that banner promoted drug use, which is illegal d) Compelling interest = deterring drug use by schoolchildren e) Engages in odd textualist-style interpretation of the text of the banner 3) Dissent (Stevens) a) Concern for censorship b) Criticized the majority decision as one that "trivializes the two cardinal principles upon which Tinker rests", because it "upholds a punishment meted out on the basis of a listener's disagreement with her understanding (or, more likely, misunderstanding) of the speaker's viewpoint." c) Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible.

Electoral Speech and Campaign Finance

Campaign Finance
General Notes 1) Speech vs. Conduct a) If campaign spending is speech, its the core of the core: electoral speech i) Triggers strict scrutiny ii) Parker: but if youre going to trigger strict scrutiny, youre setting the regulations up to be invalidated b) But even if its not speech, as the per curiam opinion in Buckley argues, its a TPM regulation that focuses on a particular subject-matter of speech, and one of very high value, and often based on who the speaker is i) This would also trigger a presumption of unconstitutionality 2) Who do we want to protect here, and why? a) Audience? b) Speaker? i) Are we really concerned about too little speech, or is it about too few speakers, or muzzling certain speakers? 3) Fears a) Rich vs. the rest b) Organized vs. the unorganized c) Special interest groups vs. the public d) Corporate power vs. government power vs. people power e) Politicians self-interest f) Ignorant/misinformed public vs. dont assume the American people are stupid g) Unregulated competition perfect competition most socially beneficial competition 4) Potential alternatives a) Voucher system

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i) What about giving everyone a set allowance? b) What about allowing unlimited expenditures, but subsidizing counter-speech? i) Current debate in McComish v. Bennett ii) Charles Fried argues that the majority should go for this because its more speech, an thats what the majority wants iii) But conservative justices said that the high-spending campaign will be chilled by the thought that their speech would trigger subsidized counter-speech, so in the aggregate there won't necessarily be more speech iv) Also, isnt discriminating based on the identity of the speaker a problem? 5) Inequality in property ownership and freedom a) The other TPM cases were mostly focused on place, and from the start in Hague through Adderley, Logan Valley Plaza, and the 1980s cases, property ownership has been the foundation for these cases b) Compare to Holmes-Brandeis conception of FOS i) Holmes and Brandeis said that FOS and FOR deserve protection, but economic liberty does not; but justified approach to FOS and FOR on the same grounds ii) Whats happening in Buckley is something like Lochner-era majority; attempt to prevent redistribution; theres no such thing as too much democracy here c) For 40 years, Court has taken the view that leveling the playing field for FOS is not a permissible interest, let alone a compelling one i) Similar to Lochner eras approach to economic liberty d) But even if it were permissible to level the playing field, you have the huge problem of independent expenditures; can we justify eliminating or reducing them? 6) Rhetorical themes a) Corruption (all cases) b) Limits vs. disclosure requirements (Buckley, Citizens United) c) Fear of chilling core political speech (Roberts in Wisc. Right to Life and Citizens United) d) Corporations We the People (Stevens dissent in Citizens United) vs. no reason corporations not protected by FA (conservatives in McConnell) e) The American people are not stupid (Kennedy in Citizens United) f) Leveling the playing field (concern of commentators, but not the Court) Cases Case Standard Applied Strict Scrutiny Contribution Limits Upheld Soft money upheld State limits struck down (too low) Independent Expenditure Limits Express advocacy struck down Non-express advocacy upheld State limits struck down (too low) Non-express Disclosure Requirements Upheld

Buckley (1976)

McConnell (2003) Randall (2006)

Strict Scrutiny

Strict Scrutiny

Wisc. Right to

Strict Scrutiny

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Life (2007) Citizens United (2010) Current Law Strict Scrutiny

Strict Scrutiny

Valid

advocacy narrowed Non-express advocacy struck down Invalid

Upheld

Valid

Buckley v. Valeo (1976) (invalidates expenditure limits for individuals) 1) Facts a) Federal Election Campaign Act (FECA): i) Limits on contributions to electoral candidates ii) Limits on independent expenditures in support of such candidacy iii) Disclosure requirement 2) Per curiam a) Court basically says this is a TPM restriction (specifically, manner) but that the test will be strict scrutiny anyway i) Contribution limits sustained (1) Contribution limits justified by danger of quid pro quo corruption, danger to democracy of appearances of corruption (a) But limits can only be justified by fears of corruption, but not by equalizing the opportunity of groups or individuals to participate in the public debate (b) [T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment. ii) Limits on campaign expenditures, independent expenditures by individuals and groups, and expenditure by a candidate from his personal funds struck down (1) Go more to the core of political expression iii) Disclosure requirements sustained 3) Notes a) Distinction between contributions and expenditures very weak; when a campaign spends money, it is also paying other people to make and show the ads, so how is it that different? b) Contributions are also used to fund expenditures (by the campaign) McConnell v. FEC (2003) (upholds soft money restrictions) 1) Facts a) Bipartisan Campaign Reform Act (BCRA): i) Ban on soft money donations (donations made directly to political parties) ii) Ban on independent expenditures on electioneering communications 2) Majority (Stevens) a) Holding: i) Ban on soft money donations sustained (1) Soft money restrictions justified by desire to prevent corruption, which extends beyond simple quid pro quo arrangements ii) Independent expenditure limits sustained (1) Can run genuine issues ads, just cannot specifically reference federal candidates

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3) Dissents (Scalia, Thomas, Rehnquist) a) Campaign spending is core political speech b) No reason not to attach FA rights to corporations c) Politicians already have incentives not to be corrupt or to be seen as being in the pocket of the corporations, and close association with others corruption 4) Notes a) Overruled by Citizens United Randall v. Sorrell (2006) (VT expenditure and contribution limits invalidated) 1) Majority (Breyer) a) Holding: Vermonts expenditure and contribution limitations struck down b) Limits too low, would impair ability of candidates to challenge an incumbent 2) Dissent (Stevens) a) Interest in freeing candidates from the fundraising straightjacket 3) Dissent (Souter) a) These limits arent that different from others that have been upheld FEC v. Wisc. Right to Life (2007) (filibuster ads) 1) Facts a) McCain-Feingold Act limited issue ads within certain time period of an election 2) Majority (Roberts) a) Holding: issue ad limits unconstitutional as applied to ads criticizing Senators for blocking Presidents judicial nominees within certain time period of an election b) Ads do not express advocacy for a political candidate nor its functional equivalent c) Worried about chilling core political speech 3) Dissent (Souter) a) Criticizes Roberts for his magic words test (says theres no difference between an ad urging viewers to vote against Jane Doe and one exhorting viewers to call Jane Doe and tell her what you think) Citizens United v. FEC (2010) (corporate expenditure limits invalidated) 1) Facts a) BCRA prohibited corporations and unions from using their general treasury funds to make "electioneering communications" (broadcast ads mentioning a candidate within 30 days of a primary or 60 days of a general election) 2) Majority (Kennedy) a) Holding: government may regulate corporate political speech through disclaimer or disclosure requirements, but it cannot suppress that speech altogether through expenditure limits b) Core political speech applies strict scrutiny c) Argument prohibitions = censorship, PACs are a burdensome alternative, worries about media companies d) We can make up our own minds and the American people are not stupid arguments i) The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. 3) Dissent (Stevens)

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a) While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics. b) Alternatives available (see p34) there is no ban here, law just targets a class of communications that is especially likely to corrupt the political process c) Majority unrealistic; its not just about quid pro quo corruption d) [C]orporate domination of the airwaves before elections will drown[] out other citizens voices. e) Corporations We the People

Electoral Speech
Cases McIntyre v. Ohio Elections Commn (1995) (leaflets at school before referendum) 1) Facts a) Woman fined for distributing unsigned leaflets at school meeting before referendum vote 2) Majority (Stevens) a) Holding: Ohios interest in preventing the misuse of anonymous election-related speech does not justify a prohibition of all uses of that speech b) Speech was political, so exacting scrutiny applies c) Overbreadth: no language limiting application to fraudulent/false statements d) Alternatives: OH has other means to limit fraudulent speech Republican Party of Minn. v. White (2002) (judge candidate views) 1) Facts a) MN Supreme Court prohibited candidates for judicial election in MN from announcing their views on disputed legal and political issues (announce clause) 2) Majority (Scalia) a) Holding: the announce clause restrictions are unconstitutional 3) Dissents (Stevens, Ginsburg) a) Restrictions here were precisely targeted; Court should have recognized difference between judicial and legislative elections

The Media and the Internet

Prior Restraints
General Notes 1) Cases here also relevant to Subversive Speech and Sedition section, supra, and Freedom of the Press section, infra 2) Prior restraints are heavily disfavored; no case allows them Cases N.Y. Times Co. v. United States (1971) (Pentagon papers) 1) Facts a) Government attempted to enjoin the NYT and WaPo from publishing a classified study about US policy in Vietnam b) Documents were top secret, evidence that release would damage foreign relations; material was turned over by a disgruntled government consultant

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2) Per curiam a) Holding: affirmed refusal of lower courts to grant the government relief i) Heavy presumption against constitutionality of prior restraints 3) Concurrence (Black) a) [T]he history and language of the First Amendment demonstrate that the press must be left free to publish news, whatever the source, without censorship, injunctions, or prior restraints. b) Security a broad term which should not be invoked to abrogate the FA 4) Concurrence (Douglas) a) Secrecy in government is fundamentally anti-democratic . . . Open debate and discussion of public issues are vital to our national health. 5) Concurrence (Brennan) a) Judicial relief only justified if it will result in serious, immediate damage and this can be actually proven by the government 6) Concurrence (Stewart, White) a) Acknowledge that allowing the NYT to publish the story would do damage to public interests, but this is still not enough to meet the heavy burden for a prior restraint

Defamation and Libel

General Notes 1) Overview a) Court especially worried of chilling effect on speech criticizing the government b) Public officials: actual malice required (Sullivan) i) Public figures (e.g., Jerry Falwell) may be treated the same, and they cannot recover even when theres actual malice if the speech is clearly meant to be satirical (Falwell) c) Private individuals: Court more permissive of limits (Gertz) i) But trend in Fourth Period has been that if the info is true and it concerns a matter of public concern or public interest, no limits allowed (Bartnicki, Fla. Star) 2) Rhetorical Themes a) Public vs. private individuals i) Public officials less protected, have voluntarily assumed positions of prominence (compare Sullivan with Gertz) b) Fear of chilling effect on speech criticizing the government Cases N.Y. Times v. Sullivan (1964) (civil rights ad) 1) Facts a) NYT ran ad by civil rights protestors stating that civil rights protests in the South were being met by wave of terror and giving examples of events in Montgomery b) Sullivan was one of the city commissioners of Montgomery, AL; ad contained some minor factual inaccuracies but nothing related to Sullivan himself; he brought libel suit 2) Majority (Brennan) a) Holding: a public official may not recover damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with actual malice that is, with knowledge that it was false or with reckless disregard of its truth

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b) [A] profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. c) It is as much [the citizen-critics] duty to criticize as it is the officials duty to administer. d) Free speech needs breathing room i) Note: compare to fire metaphor from earlier cases e) Chilling effect fears 3) Notes a) Significance: SC federalized defamation law, which was previously state tort law b) Who is a public official? c) But what about an individuals reputation? Gertz v. Robert Welch, Inc. (1974) (right-wing publication and civil rights lawyer) 1) Facts a) Chicago lawyer had represented civil rights clients; right-wing publication criticized him; he sued for libel 2) Majority (Powell) a) Holding: so long as they do not impose liability without fault, states are free to establish their own standards of liability for defamatory statements made about private individuals. However, if the state standard is lower than actual malice, the standard applying to public figures, then only actual damages may be awarded. i) Private individuals deserve greater protection because they have less access to the media, and because unlike public officials they have not voluntarily assumed positions of prominence ii) Court considered but rejected applying NYT Test to private defamation suits (1) State has interest in protecting peoples reputations 3) Dissents a) Douglas: libel laws too strict, leaving standards for private figures up to the states too capricious b) Brennan: press could practice self-censorship in reporting on public affairs as a result c) Burger: decision might make it less likely that lawyers would be willing to take the cases of unpopular clients 4) Notes a) Standard criticized for being convoluted Hustler Magazine v. Falwell (1988) (Falwell parody ad) 1) Facts a) Ad in Hustler parodied Jerry Falwell talking about his first time 2) Majority (Rehnquist) a) Holding: parodies of public figures which could not reasonably be taken as true are protected against civil liability by the First Amendment, even if intended to cause emotional distress. b) Compares ad to political cartoons, which he says we need to protect

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The Fla. Star v. B.J.F. (1989) (rape victim name) 1) Facts a) FL newspaper found liable for publishing the name of a rape victim, which violated a state statute; newspaper had obtained police report which was inadvertently not sanitized i) Note: information here was truthful 2) Majority (Marshall) a) Holding: the FL statute is unconstitutional because if a publication lawfully obtains truthful information about a matter of public significance no sanction can apply absent a need to further a state interest of the highest order i) Balancing test approach ii) Protecting the identity/privacy of rape victims is an important interest, but problems with this case: (1) Paper was entitled to assume under these facts it could publish the info (2) Statute did not take degree of harm into account (3) Statute only covered the mass media 3) Note a) This is a classic this isnt blanket unprotected speech but, hint hint, you could rewrite the statute this way ad it would probably be oay case b) See also Stevens, possibly Snyder Bartnicki v. Vopper (2001) (radio broadcast of wiretapped message) 1) Facts a) Suit brought under federal anti-wiretapping law, which made it illegal to intercept cell phone calls and other electronic communications b) Cell phone conversation of union representative was intercepted, then passed off to radio station, then played on-air on right-wing talk radio show 2) Majority (Stevens) a) Holding: statute unconstitutional as applied because while individuals have an interest in privacy there is an overriding interest in publishing on matters of public importance 3) Concurrence (Breyer) a) Stressed holding should only apply to narrow circumstances of this case, which involved physical threats 4) Dissent (Rehnquist) a) Decision chills Americans speech when they are using electronic technology

Obscenity and Pornography

General Notes 1) Lines of Cases a) Pornography Itself: Roth, Memoirs, Kinglsey, Jacobellis, Stanley, Miller, Ferber, Hudnut, Ashcroft v. ACLU, Ashcroft v. FSC, Stevens i) First set of cases: obscenity not protected BUT to qualify as obscene need to meet standard of shocking community conscience (1) Ended with Miller, which is where were still at today ii) Second set of cases: other than child pornography (Ferber), decline to create new categories of obscene low-/no-value materials

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(1) So the whole basis for defining low-value obscene speech is community standards, but whenever a community has found this standard to not be met, the Court won't allow it, but also won't define what those standards are b) Secondary Effects Approach: Paris Adult Theatre I, Am. Mini-Theatres, Pacifica, Barnes, Arcara, Renton, Paps A.M. 2) Overview a) Obscenity in General i) In past, obscenity has encompassed spoken and written language that could be publicly transmitted or received by the general public ii) However, obscenity now usually limited to content that visually depicts explicit sexual acts in a publicly accessible manner iii) Court has struggled with attempts to define what is obscene (1) Justice Stewarts famous quote: I shall not today attempt further to define the kinds of material I understand to be embraced[b]ut I know it when I see it . . . iv) Many historically important works have been described as obscene or prosecuted under obscenity laws (e.g., James Joyce, Lenny Bruce) b) Porno Theatres and Bookstores i) Court generally willing to allow ordinances targeting porno theatres and bookstores on quality of life and secondary effects grounds c) Child Pornography i) New category of low-value speech, starting with Ferber ii) Not subject to Miller test d) New Categories of Low Value Speech? i) Court hesitant to extend logic of Ferber to new cases (1) Hudnut 7th Cir. case on feminist pornography ordinance (2) Ashcroft v. Free Speech Coalition simulated child pornography case (3) Stevens animal cruelty videos case 3) Periods a) In First Period, taken for granted that obscene content not protected by the FA b) In the mid-1950s, in Roth, majority of justices undertook to rethink this; expanded protection for obscenity, but did not settle on a solid definition of just what obscenity was c) Memoirs tried to come up with new test, but failed d) As a result, Justices had to personally review materials for obscenity i) But Black and Douglas did not participate, believing that the materials were protected no matter what e) After Memoirs, Justices started to write per curiam opinions, but flood of materials continued, Justices had to review materials for obscenity f) 1969: Marshall writes Stanley opinion g) Beginning of the 1970s: discontent rose among justices Brennan said time to put a stop to it, move up the Chaplinsky ladder, say test should be whether an unwilling adult was exposed to it i) Idea was to wash out a lot of these convictions (for production, distribution, purchase, and possession; depended on state law) ii) Idea was to build on Stanley h) Ultimately, we wound up with Miller, which is basically where we still are today 4) Standards

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a) Miller Test i) Current standard ii) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest iii) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law iv) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value b) RothJacobellisMemoirs standard i) Obscene = appeals to the prurient interest to average person applying contemporary community standards + patently offensive + no redeeming social value (1) Material is utterly without redeeming social importance (Jacobellis) or possesses not a modicum of social value (Memoirs) c) Roth standard i) Overruled by Miller ii) "Whether to the average person applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to the prurient interest." 5) Rhetorical Themes a) Fear of social corruption i) Contemporary community standards (Roth, Memoirs, Miller) ii) Quality of life (Paris Adult Theatre I) / secondary effects (Arcara, Renton, Paps A.M.) iii) Think of the children! (Stevens in Pacifica) b) Fear of censorship and the moral police i) Censorship (Douglas dissent in Miller, anything by Douglas and Black, Brennans dissent in Pacifica) ii) Consenting adults (Brennans dissent in Miller) iii) Privacy of the home (Stanley) iv) Note: outside of private possession of adult pornography in the home, this rhetorical strand has rarely, if ever, carried the day c) Key Distinctions i) Art/literature vs. pornography (Kingsley) ii) In the home vs. outside the home (Stanley, Paris Adult Theatre I) iii) Captive audience vs. no captive audience Cases: Pornography Itself Roth v. United States (1957) (obscenity standard 1) 1) Facts a) Roth was convicted for sending of "obscene, lewd, lascivious or filthy" materials through the mail for advertising and selling a publication containing literary erotica and nude photography. Alberts was convicted for publishing pictures of "nude and scantily-clad women." 2) Majority (Brennan) a) Holding: convictions affirmed; obscenity not constitutionally protected (Chaplinsky reasoning does not contribute social value), but sexually explicit material not necessarily obscene

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b) Definition of obscene: material whose "dominant theme taken as a whole appeals to the prurient interest" to the "average person, applying contemporary community standards." 3) Dissents (Black, Douglas) a) FA protects obscene material 4) Note a) Before Roth, any material that tended to "deprave and corrupt those whose minds are open to such immoral influences" was deemed "obscene" and could be banned on that basis b) Results of approach: i) Jury would assess constitutional fact of whether work was obscene; this determination could be appealed ii) Forced situation where Justices had to evaluate obscene materials (brought in by the cartload; viewing room in basement) c) Overruled by Miller Memoirs v. Mass. (1966) (obscenity standard 2) 1) Plurality of the Court further redefined the Roth test by holding unprotected only that which is "patently offensive" and "utterly without redeeming social value Kingsley Intl Pictures Corp. v. Regents (1959) (portrayal of sex in art/literature not obscene) 1) Significance: Court underlined distinction between obscenity and non-obscene portrayal of sex in art and literature. Jacobellis v. Ohio (1964) (obscenity standard 3 I know it when I see it.) 1) Concurrence (Stewart) a) Wrote "hard-core pornography" was hard to define, but that "I know it when I see it." b) Note: later recanted this view in Miller Stanley v. Georgia (1969) (obscene material in your own home allowed) 1) Majority (Marshall) a) Holding: FA protects possession of obscene material in the home. Miller v. Cal. (1973) (current obscenity standard) 1) Majority (Burger) a) 3-part test for whether material is obscene and therefore not constitutionally protected: i) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest ii) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law iii) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value b) Court delegates line-drawing to the States (standards are community standards, not national standards prescribed by SCOTUS) 2) Dissent (Douglas) a) Vagueness concerns until a civil proceedings has deemed a tract obscene, no criminal prosecution should be sustained

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b) The idea that the First Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to "offensive" as well as to "staid" people. The tendency throughout history has been to subdue the individual and to exalt the power of government. 3) Dissent (Brennan) a) Raises line-drawing, fair notice, and chilling effect concerns limits should not be put on situations involving consenting adults N.Y. v. Ferber (1982) (child pornography category) 1) Facts a) Seller of films depicting young boys masturbating convicted 2) Majority (White) a) Holding: upheld conviction; this kind of speech may be prohibited to prevent the sexual exploitation and abuse of children (compelling interest) b) Created new category: child pornography i) Not subject to the Miller test 3) Notes a) Unanimous decision Am. Booksellers v. Hudnut (7th Cir. 1985) 1) Facts a) Feminist pornography ordinance i) Proposed by Prof. MacKinnon and other feminists and adopted by Indianapolis ii) Said pornography = sexual discrimination iii) Pornography treating women as equals okay, but treating as women submissive not 2) Majority (Easterbrook) a) Holding: struck down Indianapolis version of the pornography ordinance, finding it impermissibly discriminated on the basis of a point of view Ashcroft v. ACLU (2002) (internet porn and community standards) 1) Holding: the Child Online Protection Act (COPA) was not impermissibly overbroad simply because it relies on community standards to define "material that is harmful to minors." 2) Dissent (Stevens): I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children's viewing. 3) Note: not covered by course. Ashcroft v. Free Speech Coalition (2002) (Child Pornography Act of 1996) 1) Facts a) Child Pornography Act of 1996 had provisions outlawing images that appear to be or convey the impression of a minor engaging in sexually explicit conduct

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2) Majority (Kennedy) a) Holding: struck down provisions as overbroad; rejected argument that simulated child pornography could be banned because it encouraged pedophiles b) The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it . . . First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. United States v. Stevens (2010) (crush videos) 1) Facts a) Statute intended to ban the sale of visual depictions of animal cruelty (e.g., dog fighting videos, crush videos) 2) Majority (Roberts) a) Holding: statute substantially overbroad, not true that depictions of animal cruelty categorically unprotected by the FA b) For instance, would cover depictions of hunting c) Left opening for Congress to pass more narrowly-tailored statute (which it ultimately did shortly after the case) d) Derides balancing tests i) The First Amendments guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. 3) Dissent (Alito) a) Lone dissenter b) Makes Chaplinsky argument and even cites Chaplinsky for it c) Basically, he doesnt like the speech in question and thinks that efforts to prosecute the criminal conduct depicted by these videos will be difficult without the speech restrictions 4) Notes a) This is another hint hint, you can rewrite the statute like this case Cases: Secondary Effects Approach Paris Adult Theatre I v. Slaton (1973) (porno theatre regulation) 1) Facts a) Case concerned state court's injunction against the showing of obscene films in a movie theatre restricted to consenting adults 2) Majority (Burger) a) Holding: the state may permissibly regulate commercialized obscenity i) Emphasis on the social interest in order and morality, quality of public life, community environment, etc. ii) Legislature does not need conclusive proof of connection between antisocial behavior and obscene material to pass statute iii) Court decline to extend privacy of the home to distributors/consumers of obscene materials outside of the home 3) Dissent (Brennan)

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a) Consenting adults theme b) There is no legitimate state concern in controlling the moral content of a persons thoughts 4) Dissent (Douglas) a) Obscenity at most is the expression of offensive ideas. There are regimes in the world where ideas offensive to the majority (or at lest to those who control the majority) are suppressed. There life proceeds at a monotonous pace. Most of us would find that world offensive. One of the most offensive experiences in my life was a visit to a nation where the bookstalls were filled only with books on mathematics and books on religion. b) If Court defines obscenity, it is acting as a censor Young v. Am. Mini-Theatres (1976) (adult theatre zoning) 1) Facts a) Detroit had zoning ordinance placing restrictions on locations of adult theaters relative to designated zoning areas (including residential areas) 2) Majority (Stevens) a) Holding: ordinances are constitutional; this is content regulation but neutral, societys interest in protecting this type of expression less important than for political speech b) Few of us would march our sons and daughters off to war to protect the freedom to see specified anatomical areas in theatres of their choice 3) Dissent (Stewart) a) TPM restrictions should be content neutral except in the limited context of a captive or juvenile audience FCC v. Pacifica Foundation (1978) (Carlins Seven Dirty Words) 1) Facts a) NY radio station aired George Carlins seven dirty words routine; FCC found the broadcast indecent 2) Majority (Stevens) a) Holding: FCCs action upheld b) Speech in broadcast media different from other speech, less deserving of protection i) Quotes Chaplinskys view of which speech content has value ii) Prior warnings dont necessarily protect listener iii) Think of the children! 3) Dissent (Brennan) a) You can turn the radio off with minimal effort; monologue not obscene b) Marketplace free from the censors hand c) Non-conformity and ethnocentrism: Courts decision shows ethnocentric myopia and is another of the dominant cultures inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking 4) Notes a) Decisions especially controversial because many people find Carlin to be the classic dissenter, challenging conventions and the prescribed orthodoxy (though hes arguably not engaging in directly political speech)

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Barnes v. Glen Theatre (1981) (nude dancing) 1) Facts a) State had public indecency law forbidding public nudity; state courts had construed the law to require go-go dancers in the s bar to wear pasties and G-strings 2) Plurality (Rehnquist) a) Holding: restrictions valid; statute was content-neutral because it banned public nudity across the board; applied the OBrien test 3) Concurrence (Scalia) a) Law regulates conduct, not express, so no constitutional scrutiny required 4) Concurrence (Souter) a) Statute did not satisfy the OBrien test, but secondary effects (crime in the vicinity) justified it 5) Dissent (White) a) Statute meant to apply to public places, not in this context b) The reason for applying the statute to nude dancing is because of its harmful message Arcara v. Cloud Books, Inc. (1986) (adult bookstores) 1) Facts a) Adult bookstore shut down under NY statute authorized forced closure of a building for one year if it had been used for the purpose of lewdness, assignation or prostitution 2) Majority (Burger) a) Holding: FA does not apply; regulations with incidental effect on FA activities need not do so in manner least restrictive to those FA activities; impact on speech is incidental Renton v. Playtime Theatres (1986) (adult theatre zoning) 1) Facts a) Zoning ordinance prohibited adult motion picture theaters from locating within 1,000 feet of any residential zone, church, park or school b) Theatres effectively excluded from 94% of city; most of remaining 6% not up for sale, industrial wasteland, etc. 2) Majority (Rehnquist) a) Holding: ordinance upheld as a content-neutral TPM restriction b) Community environment / secondary effects reasoning 3) Dissent (Brennan) a) Ordinance facially discriminates against particular content b) Even if it were not facially unconstitutional, should still be unconstitutional as applied because it does not provide meaningful alternative avenues of communication 4) Notes a) Secondary effects reasoning would never hold water for political speech cases (e.g., statute banning political rallies because they are associated with litter and violence) Erie v. Paps A.M. (2000) (the G-strings case) 1) Facts a) Case concerned ordinance to prevent fully nude dancing; required pasties and G-strings 2) Plurality (OConnor) a) Holding: ordinance upheld on secondary effects reasoning

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b) Applied intermediate scrutiny c) [The] requirement that dancers wear pasties and G-strings is a minimal restriction in furtherance of the asserted government interest, and the restriction leaves ample capacity to convey the dancers erotic message. 3) Concurrence (Scalia) a) No need to show secondary effects, the state can regulate immoral behavior 4) Concur/Dissent (Souter) a) Intermediate scrutiny requires an evidentiary for the restriction and here there is none 5) Dissent (Stevens) a) To believe that the mandatory addition of pasties and a G-string will have any kind of noticeable impact on secondary effects requires nothing short of a titanic surrender to the implausible.

Internet Speech
General Notes 1) The Courts Approach a) Court has avoided dealing with FOS issues concerning the Internet i) E.g., in Snyder, practically bent over backwards to avoid having to deal with the issue (Breyer even seemingly went out of his way to express this in his concurrence) b) Court has not figured out yet whether the Internet is a public forum or a space with its own set of rules 2) Can the Internet really get us beyond many of the issues weve talked about this semester? a) What is the interest of the speaker? Of the audience? b) Does the Internet have so much on it that it may make matters worse? c) The Big Sort argument: as part of the polarization of our society, people are choosing where to live based on the views of others in that area, choosing what to read based on what they want to hear, choosing who they want to interact based on how similar they are to themselves, to an unprecedented degree Readings 1) Virtual Freedom Darn Nunziato a) Gatekeepers: broadband providers, Internet backbone providers, email providers, search engines b) Each may have incentives for censorship c) Negative conception of FA + SCOTUS decision that broadband providers not common carriers problematic here 2) The Master Switch Tim Wu a) Vertical integration between info providers can lead to conflicts of interest 3) The Future of the Internet and How to Stop It Jonathan Zittrain a) Wikipedia i) Advantages: comprehensive, great success story ii) Disadvantages: dictator king phenomenon b) Is this a model of FOS? i) What does it say about FOS that people seem to prefer these more Brandeisian, consensus-oriented online sources like Wikipedia over a more marketplace-like inductive search for truth?

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4) The Political Power of Social Media Clay Shirkey a) The dictators dilemma / The conservative dilemma i) State accustomed to having a monopoly on public speech finds itself called to account for anomalies between its view of events and the publics ii) Responds with either propaganda, censorship, or both iii) Both are more costly than simply not having any critics to silence in the first place iv) But if the government tries to shut down Internet access or ban cell phones, it would risk radicalizing otherwise pro-regime or apathetic citizens or harming the economy 5) Small Change Malcolm Gladwell a) Social networks are effective at increasing participation by lessening the level of motivation that participation requires 6) The Net Delusion Evgeny Morozov a) Customization and sophistication of internet censorship is rising 7) Is Google Making Us Stupid? Nicholas Carr a) Distraction and attention span 8) Alone Together Sherry Turkle a) Difficulty of tuning out b) The nostalgia of the young for a time when there was no constant communication and technological connection

Public Forums and Public Spaces: Time, Place and Manner Restrictions
Time, Place and Manner Restrictions
General Notes 1) Overview a) Without some limits on ability of government to impose TPM restrictions, FOS would be meaningless (you might only have the right to speak in your own home; what kind of a right would that be?) 2) Four Periods a) First Period (193949): court mostly strikes down TPM restrictions; concern for access to public means of communication by little people i) Hague v. CIO, leafletting cases, Martin v. Struthers, sound truck cases b) Second Period (196575): civil rights and Vietnam protest era; Court is looking for viewpoint discrimination or at least content discrimination; ad hoc approach i) Cox, Brown, Adderley, Mosley c) Third Period (197588): White takes the lead, Court upholds lots of TPM restrictions i) Lehman, Spock, Greenberg, Heffron, Metromedia, Vincent, Clark ii) Owner of property (including the government) can restrict the use of the property to that for which it was intended (1) But if property owner is the government, must satisfy intermediate test (which turns out to be fairly easy to do) iii) Court accepts aesthetic interests as valid (contrast with Schneider) iv) Openly dismissed LDM arguments, but did accept speakers alternative arguments, thereby limiting the speakers interest

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3)

4)

5)

6)

d) Fourth Period (1988present): gradual pulling back, but mostly in abortion cases, and several cases uphold TPM restrictions i) Kokinda, Krishna v. Lee, Frisby, Madsen, Schenck, Hill, Ladue v. Gilleo, Am. Library Assn Some kind of a balancing test for TPM Restrictions a) Inconsistent approach across cases b) Key questions i) Who has the burden? (1) Does government have it, as it would under strict scrutiny, or does the challenger have it? ii) How will the interest be weighed? (1) Important Substantial Significant (in order of decreasing critical power) iii) Does the regulation adequately/effectively promote the interest? (1) Sometimes this variable drops out of the test, isnt mentioned at all (2) But if you want to criticize a governmental regulation, youre going to want to reintroduce it iv) Is there an alternative means of protecting the interest which is less drastic (LDM)? (1) But Court usually does not engage in a rigorous inquiry of this part of the test v) How does the speaker address the audience, how effectively can the speaker reach how large an audience, and what are the speakers alternatives? Public forum doctrine a) Summary of forum-based approach for TPM restrictions on public property (from Perry) i) Public forum state must show compelling interest ii) Limited forum state must show compelling interest (1) Once open, government cannot engage in viewpoint discrimination; but government can close it off entirely iii) Non-public forum reasonableness test Separate Societies a) Military treated as a separate society with more lax speech protections (Greer, Albertini) b) Cf. schools (see Public Schools section, supra) Rhetorical Themes a) Widely-used and cost-effective communication methods b) LDM arguments c) Privately-owned spaces vs. public spaces vs. government-owned spaces i) Private property (Tanner) (1) Focus on purpose for which property is designed (2) Owner may exclude if speech is unrelated to that purpose ii) Then government analogized to private property owner (1) Critique: if the government can ban speech from taking place on public property, and owners of private property can ban speech from taking place on private property, does that leave the speaker with meaningful alternatives? d) On the lookout for viewpoint discrimination (Mosley, abortion cases) e) Aesthetic interests (signs cases) f) Freedom from speech (Kovacs, Vincent, Frisby, Hare Krishna cases)

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Public Forum Public parks and streets Hague, Schneider, Mosley, Krishna v. Lee, Watchtower (but see Kokinda) Public library Brown v. La. Home window Gilleo

Limited Public Forum State fair grounds Heffron Charitable campaign in federal office (maybe) Cornelius

Non-Public Forum Jailhouse grounds Adderley Military base grounds Spock Public bus ads Lehman Public school teacher mailboxes Perry Home mailboxes Greenburgh Post office parking lot (maybe) Kokinda Utility poles Vincent Airport terminal Krishna v. Lee

Leafletting, Handbills, and Door-to-Door Solicitation

Schneider v. Irvington (1939) (leafletting ban struck down) 1) Holding (Roberts): Court struck down a ban on leafleting designed as a prophylactic measure against littering 2) Court said regulations on handing out leaflets can be reasonable, but even if they lead to litter and slow down pedestrian traffic you cannot ban leafleting completely Lovell v. Griffin (1938) (leafletting permits struck down) 1) Holding: Court struck down on its face a law requiring a permit to leaflet under the press clause (prior restraint), but not the speech clause Martin v. Struthers (1943) (door-to-door handbills ban struck down) 1) Holding (Black): Court struck down ordinance prohibiting going door-to-door and distributing handbills on its face 2) This mode of communication, in this place, is one of widespread use (not just tradition) and it is essential to the poorly financed causes of little people 3) Also makes an LDM argument (people can put up a no solicitation sign) Lloyd Corp v. Tanner (1972) (no FA protection for leafleteers at shopping center) 1) Holding: FA does not protect anti-war leafleteers from shopping center ban on the distribution of handbills 2) Distinguished Logan Valley; unlike Logan Valley, here speech is unrelated to the shopping centers operations, no relation to purpose for which it was built, alternative forums available Watchtower Bible & Tract Socy v. Stratton (2002) (door-to-door permits struck down) 1) Holding (Stevens): invalid a municipal ordinances permit requirement for door-to-door proselytizers, reasoning that even though the ordinance was nondiscriminatory, and even though it did not amount to a total medium ban, it inhibited too much speech 62

2) This kind of speech important for those who lack resources argument 3) LDM argument (no solicitation signs), Court skeptical of citys reasons for ordinance 4) Dissent (Rehnquist): worried about burglars, fraud

Sound Trucks
Saia v. N.Y. (1948) (sound truck ordinance struck down) 1) Holding (Douglas): Court struck down sound truck ordinance because it required a prior permit without providing a standard to limit discretion in granting permits 2) Speech interest substantial because sound trucks very important means of speaking a) Note: This true in historical context; this used to be a very common method of public communication Kovacs v. Cooper (1949) (sound truck regulation upheld) 1) Holding (Vinson): Court upheld a municipal ban on the use of any sound system emitting "loud and raucous" noises on public streets 2) Court did, however, say that an absolute prohibition of loudspeakers would probably be unconstitutional 3) Black dissented on Saia reasoning; concern for reaching people on large scale, free use of communication argument

Mailboxes
USPS v. Greenburgh (1981) (mailbox restrictions upheld) 1) Holding: Court upheld federal regulation prohibiting leaving unstamped mail in a mailbox 2) Even though individual owner owns the mailbox, it is part of a system owned by the government, and they can decide who can use it Perry Educ. Assn v. Perry Local Educators Assn (1983) (mailboxes not a public forum) 1) Holding (White): upheld a provision of a collective bargaining contract restricting access to the interschool mail system and teacher mailboxes in a townships schools to the incumbent union 2) Mailboxes are a non-public forum, so focus is on their purpose 3) Dissent (Brennan): public forum argument irrelevant here because this case is one of viewpoint discrimination and censorship

Public Meetings and Protests

Hague v. CIO (1939) (use of public spaces right of the people) 1) Holding: City ordinance used to prevent labor meetings in public places violates the FA 2) Traditionalist argument: use of public parks, sidewalks, etc. is the right of the people; [f]rom ancient times, such use . . . has been the privilege of citizens Cox v. La. (1965) (courthouse protest narrowing) 1) Holding (Goldberg): struck down convictions arising from a civil rights demonstration near a courthouse but on very narrow terms; statute provided no standard to limit discretion

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Adderley v. Fla. (1966) (govt. like property owner) 2) Holding (Black): upheld convictions of 32 students at Florida A&M for protesting on premises of the county jail 3) Throws out Hague rhetoric, says government an act like private property owner 4) 54 decision Brown v. La. (1966) (library sit-in okay) 1) Case concerned library sit-in by African-Americans 2) Holding (Fortas): Court holds protesters are protected in their right to sit-in a) Orderly protesters argument Food Employees v. Logan Valley (1968) (picketing of supermarket upheld under PF idea) 1) Peaceful union picketing of supermarket 2) Holding (Marshall): protected by FA under public forum principles 3) Note: overruled Chicago Police Dept v. Mosley (1972) (viewpoint disc. on protected subj. matter impermissible) 1) Ordinance said picketing outside schools banned except for labor disputes 2) Holding (Marshall): Court strikes down the ordinance because of viewpoint discrimination in favor of labor union speech and against other subject matters 3) Standard citation for this point: if you regulate conduct in a way that regulates by viewpoint and against protected subject matter, its unconstitutional Hudgens v. NLRB (1976) (said Tanner overruled Logan Valley) 1) Said that Tanner overruled Logan Valley 2) Labor picketing of a store in a private shopping center not protected (private property argument) Greer v. Spock (1976) (upheld military base campaigning restrictions) 1) Holding: Court upheld rules against distributing campaign literature and holding an electoral campaign meeting on a military base 2) Interpreted earlier case, Flower v. United States, narrowly Heffron v. Intl Socy for Krishna Consciousness (1981) (MN state fair restrictions upheld) 1) Holding (White): upholds TPM restrictions; rule is content-neutral; government has significant interest in orderly movement of the crowd 2) Alternative way to speak: outside the fair grounds Cornelius v. NAACP (1985) (charitable campaign in federal office PF dispute) 1) Holding (OConnor): upheld Executive Order limiting the organizations that could participate in an annual charitable fundraising drive conducted in federal offices to voluntary, tax-exempt, nonprofit charitable agencies that provide direct health and welfare services to individuals 2) 4-3 decision; disputes were over whether forum was nonpublic or limited public, what standard of reasonableness/interest to hold government to

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United States v. Kokinda (1990) (post office sidewalk not a PF) 1) Holding (OConnor): upheld a Postal Service prohibition of soliciting contributions on postal premises 2) Postal regulation viewpoint-neutral and reasonable as applied (Postal Service run like a business); said post office sidewalk not a traditional enough public forum 3) But this was a plurality opinion, and a majority of Justices did not accept the reasonableness approach Intl Socy for Krishna Consciousness v. Lee (1992) (Hare Krishnas at airport) 1) Holding (Rehnquist): uphold limitations on solicitations of money or sale of literature in metropolitan airports 2) States interest = ensure proper flow of pedestrian traffic (weak argument) + prevent duress from face-to-face solicitation (also weak argument), plus alternative forum readily available (sidewalks)

Advertising and Signs

Lehman v. Shaker Heights (1974) (electoral ads on bus) 1) Facts a) Public bus company sold advertising space up above the windows, but refused to sell it for electoral advertising 2) Majority (Blackmun) a) Holding: ordinance upheld i) Buses are not a public forum; city is engaged in commerce in renting ad space ii) Users could be subject to the blare of propaganda 3) Notes a) Many think this was wrongly decided, because government is discriminating against the most protected subject matter of all, electoral political speech Metromedia v. San Diego (1981) (non-commercial billboards) 1) Holding (White): Court struck down part of a city ordinance restricting non-commercial billboard displays, but indicated considerable willingness to defer to governments aesthetic interests City Council v. Taxpayers for Vincent (1984) (aesthetic clutter and signs) 1) Holding (Stevens): upholds Citys position that it may decide the aesthetic interest in avoiding visual clutter justifies a removal of signs creating or increasing that clutter on public property (here, utility poles) 2) Note: Court allows restriction on electoral speech due to aesthetic interests City of Ladue v. Gilleo (1994) (signs in/on home) 1) Suburban city banned posting of most signs; resident posted anti-Gulf War sign 2) Holding (Stevens): even assuming the ordinance and exemptions were content-neutral, the ordinance banned too much speech 3) Access to communication by people with modest means 4) Special respect for individual liberty in the home

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Abortion Clinics and Staff Members Residences

Frisby v. Schultz (1988) (residence picketing) 1) Holding (OConnor): narrowly construed and sustained a flat ban on focused picketing of a particular residence 2) Unwilling listener case 3) Public street a traditional public forum, but ordinance valid because it was content-neutral, narrowly-tailored to serve a significant government interest, and left open ample alternative avenues of communication Madsen v. Womens Health Center, Inc. (1994) (various restrictions) 1) Facts a) FL state court issued injunction limiting activities of anti-abortion protesters on the public streets outside an abortion clinic, had several requirements (see below) 2) Majority (Rehnquist) a) Holding: upheld 36-foot buffer zone around the clinic, noise level restrictions, and 300foot residence buffer zone, but struck down the visual images and 300-foot buffer zone around the clinic specifically relating to approaching individuals seeking services of the clinic b) Requires heightened narrowly tailored requirement 3) Concur/Dissent (Scalia) a) Court should have struck down all of the restrictions Schenck v. Pro-Choice Network of W.N.Y. (1997) (fixed and floating zones) 1) Facts a) Court reviewed FA challenge to injunction similar to that in Madsen 2) Majority (Rehnquist) a) Holding: upheld fixed buffer zones, struck down floating buffer zones b) Floating buffer zones burden more speech than is necessary to serve the relevant governmental interests. 3) Dissent (Scalia) a) Court should have struck down all of the restrictions 4) Dissent (Breyer) a) Court should have upheld all of the restrictions Hill v. Colo. (2000) (fixed and within-fixed floating zones) 1) Facts a) Colorado legislated that protesters within one hundred feet of any healthcare facility may not approach within eight feet of any other person (without consent) for the purpose of protest, education, distribution of literature or counseling 2) Majority (Stevens) a) Holding: regulation upheld b) Basically says, if theres viewpoint discrimination here, so what 3) Dissent (Scalia) a) Law is not content neutral; only applied to abortion clinics b) Protecting citizens from unwanted speech is not a compelling state interest c) No effective alternatives (+ overbreadth) for abortion protesters

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Other
United States v. Am. Library Assn, Inc. (2003) (library porn filters) 1) Facts a) Congress enacted act which said that a public library could not receive federal assistance in providing Internet access unless it installed software to block porn and prevent minors from obtaining access to material that is harmful to them b) Evidence filters over-inclusively blocked content; adults were able to have filters lifted by asking librarian 2) Majority (Rehnquist) a) Holding: upheld the Act because the use of the internet in public libraries did not involve a public forum b) Purpose of libraries providing the internet is for it to serve as a research and learning tool, not as a forum for debate c) Found it significant that libraries could remove the blocks 3) Dissent (Stevens) a) Say the Act allows forces libraries to censor protected speech, opportunities to get blocks lifted arent meaningful in practice b) Libraries have an editorial role, so theres probably no way to avoid viewpoint discrimination

Government Employees, Forums, and Programs

Government Employee Speech
General Notes 1) Post-Pickering cases generally allow limits on government employees speech a) Rationale: issues of private vs. public concern, scope of duties b) Parker in general strongly disagrees with Perry, Connick, Cornelius, Garcetti i) Believes the distinctions they make do not make sense Cases Pickering v. Bd. of Educ. (1968) (public school teacher op-ed) 1) Facts a) Teacher was dismissed after writing a letter to a local newspaper which criticized how the Board of Education and the district superintendent had handled proposals to raise revenue 2) Majority (Marshall) a) Holding: the dismissal of a public school teacher for public statements regarding issues of public importance, without a showing that his statements were knowingly or recklessly false, violated his First Amendment right to free speech. Elrod v. Burns (1976) (patronage) 1) Holding (Brennan): patronage dismissals severely restrict political belief and association; government may not, without seriously inhibiting First Amendment rights, force a public employee to relinquish his right to political association as the price of holding a public job

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Perry Educ. Assn v. Perry Local Educators Assn (1983) 1) See Public Spaces and Public Forums section, supra 2) Main point relevant to this section: Court upholds limits on unions speech Connick v. Myers (1983) (ADA questionnaire) 1) Facts a) Assistant DA distributed a questionnaire to her fellow prosecutors asking about their experience with DA's management practices; then was fired 2) Majority (White) a) Holding: questionnaire was largely a matter of personal interest, so her subsequent termination for that action did not violate her First Amendment rights b) Significance: government employee speech that is not on a matter of public concern (or not primarily so) is not protected by the FA 3) Notes a) Parker thinks this is Whites worst opinion, distinction between matters of public and private concern does not make any sense Cornelius v. NAACP (1985) (charitable campaign in federal office) 1) See Public Spaces and Public Forums section, supra 2) Main point relevant to this section: Court upholds limits on speech Garcetti v. Ceballos (2006) (DA dismissal memo) 1) Facts a) Supervising DA wrote disposition memo recommending dismissal of a case on the ground that the affidavit in support of a search warrant contained false representations; claims employer retaliated against him for this 2) Majority (Kennedy) a) Holding: because the speech was conduct within his official employment duties, it is not protected by the FA b) Note: commentators believe this gives government employees two options: speak out as a citizen to the media/public, or speak in manner unprotected by FA 3) Dissents (Souter, Breyer) a) Concern for government employees who come into contact with wrongdoing that is not directly related to the scope of their duties b) Line-drawing concerns (HR officer would not be protected if protesting about hiring policies, but regular employee would be)

Government Programs and Speech

General Notes 1) Overview a) Idea is that the government can: i) Create a forum for speech ii) Be a speaker itself iii) But may be unclear whether it is doing one or the other iv) And if the government is merely creating a forum, regulations of who can use that forum or what messages appear in it could raise viewpoint discrimination concerns

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b) Two poles (from Bezanson and Buss): i) Rosenberger: Court says, when the government makes a decision to create a forum for individual speech, the government is stuck with it. The government may not pick and choose among speakers because it prefers some messages over others. ii) Rust: government may favor one message over another because the favored message is the governments own message, and because the government has not created any forum for the expression of individual views. iii) Between these poles is sometimes a third one; the government may create a forum for the expression of individual views, but a forum that is not open to everyone. c) Strong connection to Public Forums and Government Employee cases 2) Rhetorical themes a) On the lookout for viewpoint discrimination (Rosenberger) b) Ability to dissociate oneself from the speech (Rust) Cases Rust v. Sullivan (1991) (HHS family planning regs) 1) Facts a) Case concerned the legality of the Dept. of HHS regulations on the use of funds spent by the US federal government to promote family planning; prohibited funds from being used in programs where abortion suggested as an approved method of family planning 2) Majority (Rehnquist) a) Holding: statutory prohibition is constitutional; Government can selectively fund a program to encourage certain activities it believes to be in the public interest; doing so is not viewpoint discrimination 3) Dissent (Blackmun) a) This is content-based regulation of speech and viewpoint discrimination; restrictions are aimed at the suppression of dangerous ideas Rosenberger v. Univ. of Va. (1995) (religious group at UVA) 1) Facts a) UVA subsidized printing costs of student groups but refused to do so for religious and atheist groups 2) Majority (Kennedy) a) Holding: refusal to fund religious speech violated the free speech clause because it was unconstitutional viewpoint discrimination 3) Dissent (Souter) a) This was merely subject-matter discrimination, with the subject matter being religious advocacy. 4) Notes a) Distinguished Rust NEA v. Finley (1998) (controversial NEA grants) 1) Facts a) NEA funded some artists whose works conservatives didnt like, so they changed funding regulations and procedures for NEA, included decency and obscenity as criteria for funding work

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2) Majority (OConnor) a) Holding: provision constitutional; does not preclude NEA from funding such works, just says that decency, obscenity and the like must be taken into consideration 3) Concurrence (Scalia) a) Avant-garde artistes such as respondents remain entirely free to pater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. Legal Services Corp. v. Velazquez (2001) (LSC challenging welfare law) 1) Facts a) Federal appropriations law barred LSC funding for any organization that represented indigent clients in an effort to amend or otherwise challenge existing welfare law 2) Majority (Kennedy) a) Holding: statute invalid as viewpoint discrimination b) In contrast to Rust, here, no alternative channel for expression of the advocacy Congress seeks to restrict c) Nor is the restriction necessary to define the scope and contours of the federal program 3) Dissent (Scalia) a) The LSC Act is a federal subsidy program, not a federal regulatory program . . . regulations directly restrict speech; subsidies do not. 4) Notes a) Parker: this imports into the FA the idea that some people are more equal than others, some can be gagged (doctors) and others cannot (lawyers); smacks of elitism b) Parker: what about alternatives? If someone wants an abortion, they can probably figure out a way to get one or get counseling on one; that doesnt really work for arguing for changing the law in court Pleasant Grove v. Summum (2009) (Summum monument) 1) Facts a) Summum, a non-mainstream religion, asked city to have a monument placed in a public park that also had a Ten Commandments monument in it, and was denied 2) Majority (Alito) a) Holding: denial upheld b) Distinction between government speech and private speech c) Permanent monuments on public property represent government speech, not private speech, and government can be selective with respect to the message of monuments d) Administrability concerns 3) Concurrence (Souter) a) Observer test approach: To avoid relying on a per se rule to say when speech is governmental, the best approach that occurs to me is to ask whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech the government choose to oblige by allowing the monument to be placed on public land. 4) Notes a) Also concurrences by Stevens, Scalia, Breyer

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Commercial Speech
General Notes 1) Intermediate/middle category a) Is price advertising FOS or just economic activity? b) Why not put the value of speech along a spectrum? i) In our post-realist legal world, isnt this how we do everything? c) Can't we leave the decision whether to regulate or protect to elected officials? Do we need the Justices second-guessing the value of their decisions along a spectrum? Cases Va. Pharmacy (1976) (prescription drug price advertising) 1) Facts a) Statute made advertising the prices of prescription drugs by pharmacists unprofessional conduct subject to license suspension or revocation 2) Majority (Blackmun) a) Holding: this form of commercial speech is protected by the First Amendment; states retain the power to prohibit false or deceptive advertisements, but the states could not suppress truthful information about a lawful economic activity, simply out of fear of potential consequences. b) Importance of free flow of information for the free market; case just as much about the listener (consumers) as about the speaker (sellers) 3) Concurrence (Stewart) a) Commercial speech different from political speech in that its claims may be tested empirically 4) Dissent (Rehnquist) a) Distinguishing between truthful and false commercial speech just as problematic as distinguishing between commercial speech and protected speech Ohralik v. Ohio State Bar Assn (1978) (client solicitation by lawyers) 1) Majority (Powell) a) Holding: a state may forbid in-person solicitation of clients by lawyers for pecuniary gain b) Speech proposing an economic transaction distinguished from other forms of protected speech, historically subject to regulation

Freedom of the Press

Freedom of the Press
General Notes 1) The defense of independent journalism / idea of press as surrogote or fiduciary of the People; 1970s-1980s idea that died out a) Idea: the Press is the surrogate of the People, will inform them, will do that fairly b) Press as a Fourth Branch of Government c) Parker thinks this was self-aggrandizement / wishful thinking / both 2) Freedom of the Press

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a) Powell in famous speech: In setting up the three branches of the Federal Government, the Founders deliberately created an internally competitive system. [The] primary purpose of [the Free Press Clause] was a similar one: to create a fourth institution outside the Government as an additional check on the three official branches. b) But some believe freedom of the press means that citizens have the freedom to publish, not that a right is conferred on an institution known as the press 3) Rhetorical Themes a) Press has no greater right of protection than anybody else (White in Branzburg, Zurcher) b) Need for an independent press (Stewart dissent in Branzburg) c) Flow of important information to the public (Stewart dissent in Zurcher) d) Right to gather news (Stewart dissent in Branzburg, Stevens concurrence in Richmond) i) Court generally resistant to this idea e) Court resistant to attempts to require press to publish certain things, or which otherwise target the press (Tornillo, Minneapolis Star) Cases N.Y. Times Co. v. United States (1971) (Pentagon papers) 1) See The Media and the Internet section, supra Branzburg v. Hayes (1972) (questions before grand jury) 1) Majority (White) a) Holding: journalists may be forced to reveal their confidential sources to a grand jury or at trial b) Press could be eviscerated without some protection c) But the press has no special right to refuse to answer a relevant question put before a grand jury d) Slippery slope argument i) Who is a representative of the press? ii) How many people are we going to have asserting a privilege not to answer questions before a grand jury? iii) Evocation of fear; uncertain destination e) Privilege is conditional on preliminary showings and compelling need f) Investigations in bad faith would not be protected 2) Dissent (Stewart) a) Need for an independent press argument b) A corollary of the right to publish must be the right to gather news. [This right] implies, in turn, a right to a confidential relationship between a reporter and his source. 3) Notes a) 54 decision b) Powell in famous speech: In setting up the three branches of the Federal Government, the Founders deliberately created an internally competitive system. [The] primary purpose of [the Free Press Clause] was a similar one: to create a fourth institution outside the Government as an additional check on the three official branches. Zurcher v. Stanford Daily (1978) (search of newspapers offices) 1) Facts

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a) Student newspaper had published a story about a clash between demonstrators and police; police searched its offices for film and pictures of the events 2) Majority (White) a) Holding: 4th Amendment does not prevent the government from issuing a search warrant simply because the owner or possessor of the place to be searched is not reasonably suspected of criminal involvement; also rejected additional FA factors justifying a nearly per se rule forbidding the search warrant and permitting only subpoenas 3) Dissent (Stewart) a) Worried about diminishing flow of potentially important information to the public b) Supoenas would be good enough Houchins v. KQED (1978) (access to government info) 1) Plurality (Burger) a) [N]either the First Amendment nor the Fourteenth Amendment mandates a right of access to government information or sources of information within the governments control. 2) Related Powell speech a) The Constitution itself is neither a Freedom of Information Act nor an Official Secrets Act. Richmond Newspapers, Inc. v. Va. (1980) (courtroom access) 1) Facts a) , in his fourth murder trial, moved to have public excluded from the courtroom, without objection by the prosecution; Court granted it 2) Majority (Burger) a) Holding: absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public b) Importance of public knowing how criminal trials are conducted c) P 346 n.2: should the media enjoy greater access rights than the general public? Press is the agent of the citizens. 3) Concurrence (Stevens) a) Suggests the controlling principle is an FA right to gather news 4) Notes a) Seen as press biggest victory b) Court tries to avoid recognizing rights under the Press Clause (as Stevens would do), instead grants rights to the public at large, though such rights will mostly benefit he media Miami Herald Pub. Co. v. Tornillo (1974) (right of reply statute) 1) Majority (Burger) a) Holding: struck down a Florida right of reply statute, which required any newspaper that assails the personal character of a candidate in any election to print, on demand, free of charge, any reply the candidate may make to the charges in as conspicuous a place and the same kind of type, provided the reply takes up no more space than the charges b) Distinction: newspapers require editorial control, privately owned 2) Notes

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a) Press claiming a right of access to information, but denying the public access to the press Red Lion Broadcasting Co. v. FCC (1969) (fairness doctrine) 1) Facts a) FCC imposed fairness doctrine on TV and radio broadcasters where they had to 1) devote a reasonable percentage of broadcast time to discussion of public issues and 2) assure fair coverage for each side; had similar rules for political candidates in elections 2) Majority (White) a) Holding: upheld the access regulations b) Here, broadcast rights granted by government; worried about licensees monopolizing the frequency to the exclusion of fellow citizens c) There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. d) Broadcasters are proxies or fiduciaries of the public CBS v. DNC (1973) (paid editorial announcements) 1) Majority (Burger) a) Holding: FA does not require broadcasters to accept paid editorial announcements b) Editors rhetoric again; invoked journalistic independence or journalistic discretion; Fairness Doctrine would not serve interests here c) The role of the Government as an overseer and ultimate arbiter and guardian of the public interest and the role of the licensee as a journalistic free agent call for a delicate balancing of competing interests. 2) Dissent (Brennan) a) Worried about exclusion of non-mainstream ideas 3) Notes a) Parker: attempt to cure inequality with more inequality b) Prof. Tribe: CBS was firmly in the Red Lion tradition when it refused to consider the possibility that either the technologically scarce radio and television channels, or the finite time available on such channels, might be allocated much as economically scarce newspaper opportunities are allocated: by a combination of market mechanisms and chance rather than by government design coupled with broadcaster autonomy. Minneapolis Star v. Minnesota Commr of Revenue (1983) (ink use taxes) 1) Facts a) MN had sales and use taxes; changed them to set them up so that largest users of paper and ink paid use taxes 2) Majority (OConnor) a) Holding: taxing scheme violated appellants rights under the FA b) Reasoning: here, the scheme helps them, but such schemes could hurt them i) Note: this is bad reasoning 3) Notes a) Parker thinks this opinion is garbage

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Freedom of Association
Freedom of Association
General Notes 1) Not explicitly mentioned in text of First Amendment, but implied by right of assembly and right of petition 2) Role of associations in American democracy a) Tocqueville vs. Breyer i) Tocqueville argued that associational experience was the genius of American politics ii) Parker: compare this with Breyers opinion in Jaycees (1) Breyer says the scope of the FOA will be determined by the purposes or values we attribute to it (2) Breyer identifies two values (a) Associations can and should serve as buffers between central government and localities (b) Associations should serve as guarantors of diversity (3) Notice what he left out: the basic Tocqueville argument: associations are the basic organization fostering democratic virtue and civic engagement in America b) Diminished Democracy (Skocpol book) i) Idea of book: associations in America have changed, no longer anything like the Tocqueville idea; now they are governed by professional managers, and they are governed by the same elite class that rules everything else and which according to Parkers view of the world are spoiling freedoms for the majority ii) Note: on Parkers own logic, isnt this not a problem because ordinary people can just go and start their own organizations? Whats stopping them from doing this? Are they not smart enough? Lack the resources? Low self-esteem because of elitist bullying? 3) Right to exclude a) Connection to property rights theme in other FA cases i) Cf. campaign finance, editorial control in FOP cases b) If we dont allow people to exclude, couldnt unpopular minority groups get overwhelmed? Then we might have fewer groups, less conflict, less robust institutions. i) Parker: but people who dont like the results could just go start their own organization c) Why not force an organization to admit all comers? i) Idea: organizations internal democracy can be limited to members ii) Downside to this: fear of hijacking by outsiders (1) Parker doubts this is a fear worth taking seriously anymore; original people could just go form a new one 4) Rhetorical Themes a) Ability to disavow the message b) Right to exclude (Hurley, Jaycees) i) Property rights c) Diversity d) Associational experience

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General Cases
Cases Wooley v. Maynard (1977) (NH license plates) 1) Facts a) JW ironically convicted of misdemeanor for covering up Live Free or Die on NH state license plates 2) Majority (Burger) a) Holding: requiring the appellee to display the motto on his license plates violated his FA right to refrain from speaking i) Similar to cases involving privacy 3) Notes a) Not really an FOA case, but put it here because this is where it showed up in the course b) Prof Tribe: double-irony here: as a result of the holding in this case, now everyone is forced to take a POV on the motto PruneYard Shopping Ctr. v. Robins (1980) (shopping center courtyard) 1) Facts a) Appellees wanted access to the central courtyard of a shopping center in order to solicit signatures for a petition opposing a UN resolution b) CA SC construed state constitution to protect speech and petitioning in shopping centers, even when privately owned 2) Majority (Rehnquist) a) Holding: affirmed; appellants can disavow any connection with the message i) Unlikely anyone will think owner of shopping mall embraces this views ii) No specific message dictated by shopping mall (no Live Free or Die message) iii) Shopping mall can disavow the message Hurley v. Irish-Am. GLIB (1995) (veterans parade and GLBT) 1) Facts a) Boston authorized veterans group to have a parade; GLBT group wanted to march, but was denied by the veterans group 2) Majority (Souter) a) Holding: the parade organizers can exclude the GLBT group because a speaker has the autonomy to choose the content of his own message Johanns v. Livestock Marketing Assn (2004) (pro-beef campaign) 1) Facts a) Government sponsored pro-beef campaign; not clearly marked as government speech 2) Majority (Scalia) a) Holding: compelled support of private speech raises FA issues, compelled support of government speech does not, and the beef promotional messages were government speech 3) Dissent (Souter) a) The public would not know that this speech was government speech

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Roberts v. United States Jaycees (1984) (male-only business club) 1) Facts a) US Jaycees limited regular membership to men aged 1835; admitted women and older men as associate members without full rights b) MN groups which admitted women and were challenged by the national Jaycees organization claimed national organization violated MN state discrimination laws 2) Majority (Breyer) a) Holding: upheld state antidiscrimination law, prohibiting a private organization from excluding a person from membership based on sex, because the state had a compelling interest in prohibiting discrimination which outweighed the First Amendment right of freedom of association. b) Two traditional kinds of association i) Freedom of intimate association (1) Jaycees dont qualify; not very selective in membership, relatively big, not secluding kind of association ii) Freedom of expressive association (1) Can exclude members whose joining would impair your ability to push the message you want to push iii) Most cases fall between two poles; in such cases, consider size of group, purpose, selectivity, etc. iv) Also, even freedom of expressive association can be limited if limits satisfy strict scrutiny-type test 3) Concurrence (OConnor) a) Says Jaycees are effectively a commercial organization, and as such they get less protection Boy Scouts of Am. v. Dale (2000) (BSA and gays) 1) Majority (Rehnquist) a) Holding: BSA can exclude gay members b) BSA sincerely holds view that homosexuality is unacceptable, has an FA right to choose to send one message and not the other 2) Dissent (Stevens) a) Scathing dissent; denies that BSA had a clear and unequivocal view, which is especially important in discrimination cases b) The only apparent explanation for the majoritys holding, then, is that homosexuals are simply so different from the rest of society that their presence aloneunlike any other individualsshould be singled out for special First Amendment treatment . . . [Though] unintended, reliance on such a justification is tantamount to a constitutionally prescribed symbol of inferiority.

Student Groups at Public Universities

Cases Christian Legal Socy v. Martinez (2010) (all-comers policy) 1) Majority (Ginsburg) a) Holding: Hastings Law School could condition official recognition of a student group and the resulting eligibility or financial resources and access to certain facilities on its

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agreement to open its membership for access to leadership positions to all students (allcomers policy) b) Policy was reasonable 2) Notes a) 54 decision Rumsfeld v. Forum for Academic And Institutional Rights, Inc. (2006) (campus recruiters) 1) Facts a) Solomon Amendment provides that if any part of an institution of higher education denies military recruiters access equal to that afforded to other recruiters, the entire institution would be deprived of federal funds 2) Majority (Roberts) a) Holding: the amendment did not unduly burden freedom of speech or association b) Regulates conduct, not speech c) Allowing recruiters access being forced to express a viewpoint i) Nobody will mistake recruiters speech for that of the university d) Cites PruneYard free to dissociate argument 3) Notes a) 80 decision

Political Primaries
Cases Tashjian v. Republican Party (1986) (party can open its primaries) 1) Holding (Marshall): struck down CT law requiring that voters in any party primary be registered members of that party on FOA grounds EU v. S.F. Cnty. DCC (1989) (invalidated bar on official party candidate endorsements) 1) Holding (Marshall): applied strict scrutiny and held that a bar on official party candidate endorsements burdened both the speech and associational rights of the parties, and that CAs interest in preserving party stability was not compelling Cal. Democratic Party v. Jones (2000) (party can restrict/open its primaries) 1) Holding (Scalia): associational principles that parties should be able to restrict access or open access to their primaries

Right to Petition
Initiative Campaigns
General Notes 1) Initiative and Referendum a) Origin in Progressive and Populist era b) War about initiative and referendum since the 1990s, has gone on largely under the radar c) Criticized for mis-government, especially in CA (e.g., Broders book) d) In other countries, referendums are held on especially important matters 2) Supreme Court approach

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a) SCOTUS has waffled b) Black said this was the purest form of democracy c) Then fall out of favor, but around the beginning of the Fourth Period, the Court began hearing arguments on state restrictions on I&R d) Meyer saved I&R, but Court has struggled in subsequent cases, e.g., Buckley 3) Two obvious comparisons a) What restrictions do states place on whether candidates can be on the ballot? b) What FA restrictions are put circulating a leaflet? c) If I&R restrictions are more like the former, then they are more justified, and if they are more like the latter, they are less justified 4) Parker: question is whether we want to empower average people a) With full acknowledgment that people may be ignorant b) Everything comes down to political equality Cases Buckley v. Am. Constitutional Law Found. (1999) (CO ballot initiative regulations) 1) Facts a) CO requirements for ballot initiatives: i) Registered voters: Initiative-petition circulators must be registered voters ii) ID: Initiative-petition circulators must wear badge with their name on it iii) Disclosure: proponents of an initiative must report in an affidavit the names and addresses of all paid circulators and the amount paid to each circulator 2) Majority (Ginsburg) a) Holding: regulations i and ii struck down because they significantly inhibit communication with voters and are not warranted by the state interests (administrative efficiency, fraud detection, informing voters) alleged to justify them; disclosure requirements upheld b) Core political speech, but elections can be regulated to ensure fair, orderly process i) Applied strict scrutiny c) Registered voters requirement i) Decrease number of voices decrease audience members reached ii) Many citizens not registered to vote concern for their speech iii) State interest re: policing lawbreakers served by disclosure requirements d) ID requirement i) Fear of harassment of speakers, discouragement of participation in the political process strike down badge ID requirement e) Disclosure requirement i) Public has right to know where the money comes from 3) Dissent (Rehnquist) a) Limiting to voters okay b) Worried about out-of-state interests, political dropouts, felons

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FULL TABLE OF CONTENTS The First Amendment................................................................................................................... 2 Overview & Overarching Themes of the Course ....................................................................... 2
Law and The Culture of Argument About Law .................................................................................. 2 Conceptions of Democratic Politics ....................................................................................................... 3 Equality ................................................................................................................................................... 3 Fear and Value ........................................................................................................................................ 4 Conflict .................................................................................................................................................... 4 Dialectics of Freedom ............................................................................................................................. 5

Freedom of Religion ...................................................................................................................... 5

Overview .................................................................................................................................................. 5 Historical Periods ................................................................................................................................. 5 Overarching Themes & Rhetorical Motifs ........................................................................................... 6 Exemptions for Religious Conduct........................................................................................................ 8
Reynolds v. United States (1878) (Mormon polygamy) .................................................................................9 Pierce v. Socy of Sisters (1925) (secular public schooling made compulsory)............................................ 10 Cantwell v. State of Conn. (1940) (JW proselytizing in Catholic neighborhood) ......................................... 10 Prince v. Mass. (1944) (JW and child preaching on the street) ..................................................................... 10 Minersville Sch. Dist. v. Gobitis (1940) (flag salute compelled) .................................................................. 11 W.V. State Bd. of Educ. v. Barnette (1943) (flag salute no longer compelled) ............................................ 11 Braunfeld v. Brown (1961) (Orthodox Jews and Sunday closing laws) ........................................................ 11 McGowan v. Maryland (1961) (Sunday closing laws) .................................................................................. 12 Sherbert v. Verner (1963) (Saturday sabbatarian and unemployment benefits) ............................................ 12 Walz v. Tax Commn (1970) (tax exemption for religious property) ........................................................... 12 Gillette v. United States (1971) (no draft exemptions) .................................................................................. 12 Johnson v. Robison (1971) (military benefits for conscientious objectors vs. active duty) .......................... 13 Wisc. v. Yoder (1972) (Amish & compulsory education) ............................................................................. 13 United States v. Lee (1982) (Amish must pay social security taxes) ............................................................ 13 Bob Jones Univ. v. United States (1983) (overriding interest in eradicating racism) ................................... 13 Hobbie v. Unemployment Appeals Commn (1987) (reaffirming Sherbert) ................................................. 14 Latter-Day Saints v. Amos (1987) (religious discrimination claim against LDS Church) ............................ 14 Lyng v. Nw. Indian Cemetery Protective Assn (1988) (road over Indian burial ground) ............................ 14 Jimmy Swaggart Ministries v. Bd. of Equal. (1990) (sales tax on religious materials)................................. 14 Empt Div. v. Smith (1990) (religious peyote use) ....................................................................................... 14 Tex. Monthly, Inc. v. Bullock (1989) ............................................................................................................ 15 Church of the Lukumi Babalu Aye, Inc. v. Hialeah (1993) (Santera ordinance) ......................................... 15 City of Boerne v. Flores (1997) (Smith still applies) .................................................................................... 16 Cutter v. Wilkinson (2005) (prisoners religious practices) .......................................................................... 16

Public and Private Schools................................................................................................................... 16 Exemptions from Compulsory Schooling and School Activities ....................................................... 16
General Notes ................................................................................................................................................ 16 Cases ............................................................................................................................................................. 16 Pierce v. Socy of Sisters (1925) (secular public schooling made compulsory) ............................................ 16 Minersville Sch. Dist. v. Gobitis (1940) (flag salute compelled) .................................................................. 16 W.V. State Bd. of Educ. v. Barnette (1943) (flag salute no longer compelled) ............................................ 17 Wisc. v. Yoder (1972) (Amish & compulsory education) ............................................................................. 17

Aid to Religious Schools .................................................................................................................... 17

Everson v. Bd. of Educ. of Ewing Tp. (1947) (bus subsidies) ...................................................................... 17 McCollum v. Bd. of Educ. (1948) (parochial school instruction during the day) ......................................... 18 Zorach v. Clauson (1952) (students released to attend religious classes) ...................................................... 18 Bd. of Educ. v. Allen (1968) (textbooks for religious private schools) ......................................................... 18 Lemon v. Kurtzman (1971) (reimbursed teacher salaries) ............................................................................ 19

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Bd. of Educ. v. Mergens (1990) (HS Christian club) .................................................................................... 19 Bd. of Educ. of Kiryas Joel v. Grumet (1994) (separate school district for sect) .......................................... 19 Mitchell v. Helms (2000) (reaffirms Allen, ditches Lemon for good) .......................................................... 19 Good News Club v. Milford Cent. Sch. (2001) (after-school Christian group meetings) ............................. 20 Zelman v. Simmons-Harris (2002) (Cleveland school vouchers) ................................................................. 20 Locke v. Davey (2004) (theology scholarships) ............................................................................................ 20

School Prayer ..................................................................................................................................... 21

Engel v. Vitale (1962) (non-denominational state-authored prayer) ............................................................. 21 Abington Sch. Dist. v. Schempp (1963) (Lords Prayer in unison and Bible verses) ................................... 21 Wallace v. Jaffree (1985) (moment of silence) ............................................................................................. 21 Stone v. Graham (1980) (Ten Commandments on classroom walls) ............................................................ 22 Lee v. Weisman (1992) (non-denominational prayer at graduation) ............................................................. 22 Santa Fe. Indep. Sch. Dist. v. Doe (2000) (invocation at football games)..................................................... 22 Elk Grove Unified Sch. Dist. v. Newdow (2004) (Pledge of Allegiance) ..................................................... 23

Creationism ........................................................................................................................................ 23
Epperson v. Ark. (1968) (law banning teaching evolution) .......................................................................... 23 Edwards v. Aguillard (1987) (creation science in bio classes) ...................................................................... 23

Public Religious Displays and Messages ............................................................................................. 23

Marsh v. Chambers (1983) (legislative chaplains) ........................................................................................ 24 Lynch v. Donnelly (1984) (Christmas display) ............................................................................................. 24 Allegheny County v. ACLU (1989) (two holiday displays) .......................................................................... 24 McCreary County v. ACLU (2005) (Ten Commandments in courthouse) ................................................... 25 Van Orden v. Perry (2005) (Ten Commandments monument) ..................................................................... 25 Capital Square Review & Advisory Bd. v. Pinette (1995) (KKK cross) ....................................................... 26 Salazar v. Buono (2010) (VFW cross) .......................................................................................................... 26

Freedom of Speech ...................................................................................................................... 26

Overview ................................................................................................................................................ 26 Historical Periods ............................................................................................................................... 26 Overarching Themes .......................................................................................................................... 28 Doctrinal Overview............................................................................................................................... 29 The Six Potential Freedom of Speech Interests.................................................................................. 29 Speech versus Conduct....................................................................................................................... 29 Types of Speech ................................................................................................................................. 29 Types of Restraints on Speech ........................................................................................................... 29 Overbreadth and Underbreadth .......................................................................................................... 32 Subversive Speech, Hate Speech, and Symbolic Speech ................................................................... 32 Subversive Speech & Sedition ........................................................................................................... 32
Schenck v. United States (1919) (clear and present danger) ......................................................................... 33 Debs v. United States (1919) (Debs anti -war speech) .................................................................................. 33 Frohwerk v. United States (1919) (anti-war editorials) ................................................................................. 33 Masses Publg Co. v. Patten (S.D.N.Y. 1917) (Hand test) ............................................................................ 33 Abrams v. United States (1919) (Holmes silly leaflet and fighting faiths dissent) ............................... 33 Gitlow v. N.Y. (1925) (Holmes every idea is an incitement dissent) ....................................................... 34 Whitney v. Cal. (1927) (attendance of Communist meetings) ...................................................................... 34 Dennis v. United States (1951) (CPUSA organizing) ................................................................................... 35 Brandenburg (1969) (incitement test) ........................................................................................................... 36 Holder v. Humanitarian Law Project (2010) (support for terrorists) ............................................................. 36

Fighting Words and Hate Speech ....................................................................................................... 37

Cantwell v. State of Conn. (1940) (JW proselytizing in Catholic neighborhood) ......................................... 37 Chaplinsky v. N.H. (1942) (JW and unfriendly crowd) ................................................................................ 37 Terminiello v. Chicago (1949) (Chicago near-riot) ....................................................................................... 38 Beauharnais v. Illinois (1952) (hate speech publications) ............................................................................. 38 Collin v. Smith (7th Cir. 1978) (Skokie Nazis) ............................................................................................. 39 R.A.V. v. St. Paul (1992) (hate crime ordinance).......................................................................................... 39

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Va. v. Black (2003) (cross burning) .............................................................................................................. 39 Snyder v. Phelps (2011) (WBC funeral protests) .......................................................................................... 40

Symbolic Speech ................................................................................................................................ 40

United States v. OBrien (1968) (burning draft cards) .................................................................................. 40 Cohen v. California (1971) (Fuck the Draft jacket) ................................................................................... 41 Clark v. Comty. for Creative Non-Violence (1984) (DC tent city) ............................................................... 41 Texas v. Johnson (1989) (flag burning)......................................................................................................... 41

Public Schools ....................................................................................................................................... 42

Tinker v. Des Moines Sch. Dist. (1969) (Vietnam protest armbands) .......................................................... 42 Island Trees v. Pico (1982) (school library) .................................................................................................. 43 Bethel Sch. Dist. v. Fraser (1986) (lewd assembly speech) .......................................................................... 43 Hazelwood Sch. Dist. v. Kuhlmeier (1988) (school newspaper) ................................................................... 43 Morse v. Frederick (2007 (Bong Hits 4 Jesus) .............................................................................................. 43

Electoral Speech and Campaign Finance ........................................................................................... 44 Campaign Finance .............................................................................................................................. 44

Buckley v. Valeo (1976) (invalidates expenditure limits for individuals) ..................................................... 46 McConnell v. FEC (2003) (upholds soft money restrictions) ....................................................................... 46 Randall v. Sorrell (2006) (VT expenditure and contribution limits invalidated)........................................... 47 FEC v. Wisc. Right to Life (2007) (filibuster ads) ........................................................................................ 47 Citizens United v. FEC (2010) (corporate expenditure limits invalidated) ................................................... 47

Electoral Speech ................................................................................................................................. 48

McIntyre v. Ohio Elections Commn (1995) (leaflets at school before referendum) .................................... 48 Republican Party of Minn. v. White (2002) (judge candidate views) ........................................................... 48

The Media and the Internet ................................................................................................................. 48 Prior Restraints ................................................................................................................................... 48

N.Y. Times Co. v. United States (1971) (Pentagon papers) .......................................................................... 48

Defamation and Libel ......................................................................................................................... 49

N.Y. Times v. Sullivan (1964) (civil rights ad) ............................................................................................. 49 Gertz v. Robert Welch, Inc. (1974) (right-wing publication and civil rights lawyer) ................................... 50 Hustler Magazine v. Falwell (1988) (Falwell parody ad) .............................................................................. 50 The Fla. Star v. B.J.F. (1989) (rape victim name) ......................................................................................... 51 Bartnicki v. Vopper (2001) (radio broadcast of wiretapped message) .......................................................... 51

Obscenity and Pornography ............................................................................................................... 51

Roth v. United States (1957) (obscenity standard 1) ..................................................................................... 53 Memoirs v. Mass. (1966) (obscenity standard 2) .......................................................................................... 54 Kingsley Intl Pictures Corp. v. Regents (1959) (portrayal of sex in art/literature not obscene) .................. 54 Jacobellis v. Ohio (1964) (obscenity standard 3 I know it when I see it.) .............................................. 54 Stanley v. Georgia (1969) (obscene material in your own home allowed) ................................................... 54 Miller v. Cal. (1973) (current obscenity standard) ........................................................................................ 54 N.Y. v. Ferber (1982) (child pornography category) ..................................................................................... 55 Am. Booksellers v. Hudnut (7th Cir. 1985) .................................................................................................. 55 Ashcroft v. ACLU (2002) (internet porn and community standards) ........................................................ 55 Ashcroft v. Free Speech Coalition (2002) (Child Pornography Act of 1996) ............................................... 55 United States v. Stevens (2010) (crush videos) ............................................................................................. 56 Paris Adult Theatre I v. Slaton (1973) (porno theatre regulation) ................................................................. 56 Young v. Am. Mini-Theatres (1976) (adult theatre zoning).......................................................................... 57 FCC v. Pacifica Foundation (1978) (Carlins Seven Dirty Words) ............................................................... 57 Barnes v. Glen Theatre (1981) (nude dancing) ............................................................................................. 58 Arcara v. Cloud Books, Inc. (1986) (adult bookstores) ................................................................................. 58 Renton v. Playtime Theatres (1986) (adult theatre zoning) ........................................................................... 58 Erie v. Paps A.M. (2000) (the G-strings case) ............................................................................................. 58

Internet Speech ................................................................................................................................... 59 Public Forums and Public Spaces: Time, Place and Manner Restrictions ..................................... 60 Time, Place and Manner Restrictions................................................................................................. 60 Leafletting, Handbills, and Door-to-Door Solicitation ...................................................................... 62

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Schneider v. Irvington (1939) (leafletting ban struck down) ......................................................................... 62 Lovell v. Griffin (1938) (leafletting permits struck down) ............................................................................ 62 Martin v. Struthers (1943) (door-to-door handbills ban struck down) .......................................................... 62 Lloyd Corp v. Tanner (1972) (no FA protection for leafleteers at shopping center) ..................................... 62

Sound Trucks ..................................................................................................................................... 63

Saia v. N.Y. (1948) (sound truck ordinance struck down) ............................................................................ 63 Kovacs v. Cooper (1949) (sound truck regulation upheld) ........................................................................... 63

Mailboxes ........................................................................................................................................... 63
USPS v. Greenburgh (1981) (mailbox restrictions upheld) ........................................................................... 63 Perry Educ. Assn v. Perry Local Educators Assn (1983) (mailboxes not a public forum) ........................ 63

Public Meetings and Protests ............................................................................................................. 63

Hague v. CIO (1939) (use of public spaces right of the people) ................................................................... 63 Cox v. La. (1965) (courthouse protest narrowing) ..................................................................................... 63 Adderley v. Fla. (1966) (govt. like property owner) ..................................................................................... 64 Brown v. La. (1966) (library sit-in okay) ...................................................................................................... 64 Food Employees v. Logan Valley (1968) (picketing of supermarket upheld under PF idea) ....................... 64 Chicago Police Dept v. Mosley (1972) (viewpoint disc. on protected subj. matter impermissible) ............ 64 Hudgens v. NLRB (1976) (said Tanner overruled Logan Valley) ................................................................ 64 Greer v. Spock (1976) (upheld military base campaigning restrictions) ....................................................... 64 Heffron v. Intl Socy for Krishna Consciousness (1981) (MN state fair restrictions upheld) ...................... 64 Cornelius v. NAACP (1985) (charitable campaign in federal office PF dispute) ...................................... 64 United States v. Kokinda (1990) (post office sidewalk not a PF) ................................................................. 65 Intl Socy for Krishna Consciousness v. Lee (1992) (Hare Krishnas at airport) .......................................... 65

Advertising and Signs ........................................................................................................................ 65

Lehman v. Shaker Heights (1974) (electoral ads on bus) .............................................................................. 65 Metromedia v. San Diego (1981) (non-commercial billboards).................................................................... 65 City Council v. Taxpayers for Vincent (1984) (aesthetic clutter and signs).................................................. 65 City of Ladue v. Gilleo (1994) (signs in/on home) ....................................................................................... 65

Abortion Clinics and Staff Members Residences ............................................................................. 66

Frisby v. Schultz (1988) (residence picketing) .............................................................................................. 66 Madsen v. Womens Health Center, Inc. (1994) (various restrictions) ......................................................... 66 Schenck v. Pro-Choice Network of W.N.Y. (1997) (fixed and floating zones) ............................................ 66 Hill v. Colo. (2000) (fixed and within-fixed floating zones) ......................................................................... 66

Other................................................................................................................................................... 67
United States v. Am. Library Assn, Inc. (2003) (library porn filters) .......................................................... 67

Government Employees, Forums, and Programs .............................................................................. 67 Government Employee Speech .......................................................................................................... 67
Pickering v. Bd. of Educ. (1968) (public school teacher op-ed).................................................................... 67 Elrod v. Burns (1976) (patronage) ................................................................................................................. 67 Perry Educ. Assn v. Perry Local Educators Assn (1983) .......................................................................... 68 Connick v. Myers (1983) (ADA questionnaire) ............................................................................................ 68 Cornelius v. NAACP (1985) (charitable campaign in federal office) ........................................................... 68 Garcetti v. Ceballos (2006) (DA dismissal memo) ....................................................................................... 68

Government Programs and Speech .................................................................................................... 68

Rust v. Sullivan (1991) (HHS family planning regs) .................................................................................... 69 Rosenberger v. Univ. of Va. (1995) (religious group at UVA) ..................................................................... 69 NEA v. Finley (1998) (controversial NEA grants) ........................................................................................ 69 Legal Services Corp. v. Velazquez (2001) (LSC challenging welfare law) .................................................. 70 Pleasant Grove v. Summum (2009) (Summum monument).......................................................................... 70

Commercial Speech .............................................................................................................................. 71

Va. Pharmacy (1976) (prescription drug price advertising) .......................................................................... 71 Ohralik v. Ohio State Bar Assn (1978) (client solicitation by lawyers) ....................................................... 71

Freedom of the Press .................................................................................................................. 71

Freedom of the Press ............................................................................................................................ 71

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N.Y. Times Co. v. United States (1971) (Pentagon papers) .......................................................................... 72 Branzburg v. Hayes (1972) (questions before grand jury) ............................................................................ 72 Zurcher v. Stanford Daily (1978) (search of newspapers offices) ............................................................... 72 Houchins v. KQED (1978) (access to government info) ............................................................................... 73 Richmond Newspapers, Inc. v. Va. (1980) (courtroom access) .................................................................... 73 Miami Herald Pub. Co. v. Tornillo (1974) (right of reply statute) ............................................................. 73 Red Lion Broadcasting Co. v. FCC (1969) (fairness doctrine) .................................................................. 74 CBS v. DNC (1973) (paid editorial announcements) .................................................................................... 74 Minneapolis Star v. Minnesota Commr of Revenue (1983) (ink use taxes) ................................................ 74

Freedom of Association .............................................................................................................. 75

Freedom of Association ........................................................................................................................ 75 General Cases ..................................................................................................................................... 76
Wooley v. Maynard (1977) (NH license plates) ............................................................................................ 76 PruneYard Shopping Ctr. v. Robins (1980) (shopping center courtyard) ..................................................... 76 Hurley v. Irish-Am. GLIB (1995) (veterans parade and GLBT) ................................................................... 76 Johanns v. Livestock Marketing Assn (2004) (pro -beef campaign) ............................................................ 76 Roberts v. United States Jaycees (1984) (male-only business club) ............................................................. 77 Boy Scouts of Am. v. Dale (2000) (BSA and gays) ...................................................................................... 77

Student Groups at Public Universities................................................................................................ 77

Christian Legal Socy v. Martinez (2010) (all-comers policy) .................................................................. 77 Rumsfeld v. Forum for Academic And Institutional Rights, Inc. (2006) (campus recruiters) ...................... 78

Political Primaries .............................................................................................................................. 78

Tashjian v. Republican Party (1986) (party can open its primaries) ............................................................. 78 EU v. S.F. Cnty. DCC (1989) (invalidated bar on official party candidate endorsements) ........................... 78 Cal. Democratic Party v. Jones (2000) (party can restrict/open its primaries) .............................................. 78

Right to Petition .......................................................................................................................... 78

Initiative Campaigns ............................................................................................................................ 78
Buckley v. Am. Constitutonal Law Found. (1999) (CO ballot initiative regulations) .................................. 79

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