ClassNotesFirstAmendmentKociubes

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First Amendment

Prof. Joe Kociubes

Monday, December 1, 2003 (Class 1)

• Can you have liberty without democracy or vice-versa?
  • Bill of Rights prevents majority from taking certain actions
  • When court invalidates statute, it acts in an essentially anti-democratic way.

• Text of bill of rights -- First Amendment
  • Apparently six rights
  • Apparently "absolute" -- shall make no law

• Can regulate
  • National security
  • Deceptive commercial
  • Some political ads
  • Political symbols (?)
  • Public safety ("fire in a theatre")
  • Erotic material -- maybe from children
  • Obscenity (?)

• Justifications for Protecting Speech
  • Marketplace of ideas
  • Fear of government tyranny -- "fortress" idea
  • Self-government

Wednesday, December 3, 2003 (Class 2)

• First Amendment is function of 20th Century; most jurisprudence is about 85 years old.
• Lochner era: court is striking down economic legislation but upholding legislation affecting speech, e.g., 1907 Patterson v. Colorado Justice Holmes, newspaper editor's conviction upheld.
• Various formulations
  • Should you be able to punish people for speech intended to encourage violation of the law?
  • Intent and Likelihood
  • Likely to cause others to break law and speaker should know bad result will follow

• Initial cases: two World War I acts
  • Espionage Act of 1917
    • Issue false reports with intent to interfere with military success
    • Willfully interfere with military
    • Willfully obstruct recruting for military
  • Sedition Act of 1918
    • Made illegal disloyal statements, statements to discourage production of war materials

Masses Publishing Co. v. Patten

[244 Fed. 535] (1971 Southern District of New York)

• Plaintiff is publishing company, defendant is postmaster general. Postmaster General refuses to distribute Masses publication.
• Plaintiff seeks injunction requiring post office to mail materials.
• Postmaster refused to carry on basis of four cartoons and one poem. Poem glorifies Emma Goldman.
• Hand issues injunction.
• Hand reads statute to permit distribution, says statute limits speech that directly advocates violation of law.
• Bright line test, easy to apply.
• No concern with likelihood of harm, however. Also, anyone intelligent can avoid liability under test.

Schenk v. United States

[249 U.S. 47] 1919 United States Supreme Court (cb15)

• Schenk is convicted of writing pamphlet urging resistance to draft: do not submit to intimidation, conscription violates Thirteenth Amendment, conscript is little better than convict. First side of pamphlet had first section of Thirteenth Amendment.
• No evidence that anyone acted on pamphlet.
• Holmes discusses war-time risks; what might not be prohibitable at peace time is greater risk now.
• Lets Congress determine what's dangerous.
• Intent: wouldn't have distributed document if didn't intend the effect.
• Rule: whether the words used are of such a nature as to create a clear and present danger that they will bring about the substantiv evils that Congress has a right to prevent.
• Clear: must be "real"
• Present: must be imminent
• "No" in First Amendment can't mean "no": must be able to stop person from falsely shouting fire in crowded theatre.

Frohwerk v. United States

[249 U.S. 204] 1919 United States Supreme Court (cb16)

• Frohwerk convicted of publishing German newspaper that said it was mistake to send soldiers to France and that it was a rich man's war.
• "Little breath would be enough to kindle a flame"--sounds very different from "clear and present danger."

Debs v. United States

[249 U.S. 211] 1919 United States Supreme Court (cb17)

• Debs has been socialist candidate for President, gives speech at convention opposing war.
• Convicted of obstructing recruitment.
• New formulation: natural tendency and probable effect to do what is illegal (discouraging draft).
• Probable effect brings in tort "foreseeability" standard.

Abrams v. United States

[250 U.S. 616] 1919 United States Supreme Court (cb19)

• Yiddish language newspaper calls for general strike to protest United States intervention against the Russian Revolution.
• Factually differs from other cases in that message was not protest in war against Germany.
• Court affirms the conviction, should have known that actions could have interfered with war in Germany.
• Holmes dissent: must present danger of immediate evil or intent to bring it about. Would reverse conviction.
• Looks at what was actually done, not just taking government's word for it.
• Holmes thinks there's no chance anything would come of defendant's actions.
• "If you really believe one view point is right, then why tolerate other view points?"

Gitlow v. New York

[268 U.S. 652] 1925 United States Supreme Court (cb25)

• Conviction under criminal anarchy state statute; publication advocated overthrow of government in distant future.
• Words are enough to constitute harm.
• Since statute is constitutional, Court finds words within scope of statute, thus upholds conviction.
• Argument is thus whether words find in statute.

• For Monday: 750 word essay on cases read so far. 1.5 pages.

Monday, December 8, 2003 (Class 3)

Whitney v. California

[274 U.S. 357] 1927 United States Supreme Court (cb33)

• Defendant prosecuted for being present at communist convention although she did not herself advocate lawbreaking.
• Defense: did not advocate violence ("didn't do it"), was deprived of liberty without due process and thus act violates constitution.
• Court affirms conviction.
• Brandeis and Holmes concur: adds "reasonable" requirement/objective requirement. Must be serious harm, and imminent.
• Cannot suppress speech merely because it is persuasive.
• Doesn't rely on "free market of ideas," but "discussion affords ordinarily adequate protection against the dissemination of noxious doctrine." Risk of counterspeech not being effective is inherent in democratic form of government.
• Idea that free speech is necessary for democracy--doesn't depend on marketplace idea. Madisonian view.

Dennis v. United States

[341 U.S. 494] 1951 United States Supreme Court (cb40)

• Early McCarthy? era case; Smith Act makes it a crime to knowingly advocate or teach the overthrow of government by force.
• Defendants were communists teaching communist doctrine.
• Five different opinions.
• Plurality opinion: seems to follow clear and present danger, but "gravity of evil discounted by its improbability" is tort standard that can't really be tried.
• Frankfurter recognizes speech interest and security interest, defers to Congress to balance interests.
• "Common knowledge" of what communist party is all about. But Douglas says "common knowledge" is that communism doesn't work.
• Black: First Amendment absolutist--no law means no law.
• Seven out of nine judges reject complete deference to Congress.

Yates v. United States

[354 U.S. 298] 1957 United States Supreme Court (cb47)

• Smith Act prosecution of communists/alleged communists.
• Court reversed conviction: Smith Act doesn't prohibit teaching as abstract principle.

Brandenburg v. Ohio

[395 U.S. 444] 1969 United States Supreme Court (cb50)

• Per Curiam opinion, sets out basic common elements.
• Defendant arrested for participation in Ku Klux Klan raly under Ohio Criminal Syndicalism statute.
• Masses: direct advocacy of lawless action--may or may not meet this test.
• Schenk: clear and present danger--also could go either way.
• Frohwerk: little breath to kindle a flame--probable would uphold conviction.
• Abrams: present danger of immediate evil or intent to bring it about. Might satisfy second test--"intent to bring it about."
• Dennis: gravity of evil discounted by improbability; probably yes (danger of shooting people very grave).
• Brandenburg
  • Advocacy of violation of law
  • Call for immediate action--imminence
  • Likely to produce action
• Creates several triable issues
• Nothing in per curiam refers to "clear and present danger."
• Test does not seem to apply to other scenarios, e.g., commercial speech, pornography, false fire in crowded theatre.

• Mary Smith question

Wednesday, December 10, 2003 (Class 4)

• Exceptions to First Amendment protection
  • Induce breach of the peace
  • Intentional infliction of emotional distress
    • Does it matter who victim is?

Cantwell v. Connecticut

[310 U.S. 296] 1940 United States Supreme Court (cb55)

• Jehovah's Witness is proselytizing, convicted of breach of peace for denouncing catholicism.
• Rationale for arrest: not that defendant will be violent, but that he will provoke someone else to be violent.
• Court overturns conviction, holds that conduct was not personal abuse/epithets against individual. No breach of peace.

Chaplinsky v. New Hampshire

[315 U.S. 568] 1942 United States Supreme Court (cb56)

• Chaplinsky is convicted for calling peace officer racketeer and fascist under statute prohibiting calling someone by offensive name.
• Two new categories
  • Not protected speech
    • Lewd, obscene, profane, libelous, insulting or fighting words (and words that inflect injury -- maybe "emotional distress"?)
  • Low value speech

Gooding v. Wilson

[405 U.S. 518] 1972 United States Supreme Court (cb58)

• Struck down statute as overbroad where defendant was convicted at anti-war protest blocking draft office.
• Defendant said: "white son of a bitch, I'll kill you."

Cohen v. California

[403 U.S. 15] 1971 United States Supreme Court (cb60)

• Defendant convicted under disturbing the peace statute, wearing "Fuck the Draft" jacket in courthouse.
• Court reverses conviction.
• Harlan goes through exceptions to First Amendment, finds them all inapplicable.
• Finds statement to be political statement, protected by First Amendment. Can it be prevented because of choice of word? No.

Terminiello v. Chicago

[337 U.S. 1] 1949 United States Supreme Court (cb65)

• Can't restrict speech simply because someone is offended

Feiner v. New York

[340 U.S. 315] 1951 United States Supreme Court (cb65)

• Civil rights speaker, calls president and mayor "bums" and American Legion "Nazi Gestapo."
• Someone tells police he'll stop speaker if police don't, so police arrest speaker.
• Court affirms conviction
• Black dissent: why not arrest spectator who treatens speaker?

Cox v. Louisiana

[379 U.S. 536] 1965 United States Supreme Court (cb67)

• 2,000 demonstrators and 100-300 counterdemonstrators in Civil Rights protest.
• Minister urges participants to sit-in at lunch counter--this is alleged "inflammatory" action.
• Police throw tear gas, arrest protestors for disturbing peace.
• Court overturns conviction, says police could have handled any problems.

Gregory v. Chicago

[394 U.S. 111] 1969 United States Supreme Court (cb68)

• 85 demonstrators march to Mayor's house, 1000 counterdemonstrators, police ultimately arrest demonstrators.
• Court says "simple case," no evidence that defendants were disorderly, thus must be protected.

• Fighting Words
  • Evil: fighting
  • Type of speech: epithets
  • Class of victims: targeted individuals
  • Value: low value speech
• Hate Speech
  • Evil: emotional distress
  • Type of speech: epithet, symbols, content
  • Class of victims: minority group
  • Value: not necessarily low value -- could be high value political core speech
• Offensive Speech
  • Evil: sensibility/morals
  • Type of speech: dirty words/pictures
  • Class of victims: ???
  • Value: could be art, could be political, not necessarily low value

Monday, December 15, 2003 (Class 5)

• High value vs. low value speech: high value doesn't mean the content is good, but rather that it is "political" and within what the framers might have thought was most important.
• Hate speech: "clear and present danger" test doesn't really fit, almost never threat of immediate lawless action.
• If you can say that certain speech exists outside First Amendment, you don't need to do Brandenburg test or other analysis.
• Rationale for regulating group libel
  • History of racial hostility in country (Fourteenth Amendment)
  • Notion of emotional distress (different justification than Brandenburg)
  • Off-shoot/related to "heckler's veto"
• Adverse reaction in listener--is there sufficient reason to ban speech in the fact that words might provoke someone to hit someone? Cohen: fuck the draft not enough; Terminello: political leaders as scum not enough; Edwards, Cox, Gregory: civil rights cases not enough; Gooding: you white son of bitch, not enough.
• Chaplinsky 1942: one-on-one situation fighting words can be banned, Feiner 1951: hostile crowd, could be regulated.
• Notion in political cases that government ought not be judging words; in offended audience cases, audience can leave and not listen.

Beauharnais v. Illinois

[343 U.S. 250] 1952 United States Supreme Court (cb71)

• White racist organization publishes leaflet/petition calling for action against desegregation, justified by statements against blacks.
• Organization prosecuted under statute which prohibits portraying depravity, criminality, unchastity, etc., of racial groups.
• District Court refuses to give "clear and present danger" charge.
• Other defense was that information was true; court does not allow defendants to offer information about truth or falsity.
• Seems to be statement of opinion, though, not of fact, or maybe mixed.
• Court relies on Chaplinsky that libel is outside of First Amendment, then says that if state can prohibit individual libel it can prohibit group libel.
• Historically, truth was not defense for libel.

R.A.V. v. City of St. Paul

[505 U.S. 377] 1992 United States Supreme Court (cb96)

• Youths burn cross on lawn, convicted under ordinance which criminalizes placing symbol, object, etc., which one knows to arouse anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender.
• Court strikes down ordinance because it is not content-neutral.
• Content vs. viewpoint neutrality
  • Content = subject matter; i.e., government shouldn't regulate speech having to do with politics
  • Viewpoint = narrower; i.e., government shouldn't say you can advocate for Democrats but not Republicans
• Viewpoint discrimination is worse than content discrimination.
• Scalia: content-based regulations are presumptively invalid. Government shouldn't pick and choose among content. This regulation is content-based, prohibits speech only about certain things. Aimed at protecting minority groups.
• "Fighting words," on the other hand, is content-neutral: doesn't matter what the person is talking about, look at effect on hearer.
• White concurrence: under Chaplinsky, content discrimination is permitted. Child pornography can be banned based on content.
• Problem is overbreadth.
• Stevens concurrence: statute is overbroad, covers protected speech.
• Claims speech can be regulated on subject matter.
• "Core speech" is content-based distinction.
• Stevens looks at context: some things which are otherwise called "fighting words" are protected by First Amendment.

Wisconsin v. Mitchell

[508 U.S. 476] 1993 United States Supreme Court (cb104)

• Defendant views Mississippi Burning, urges group of African-Americans to attack white kid because he's white. Criminal statute increases penalty because of racial motivation.
• Court upholds statute. In R.A.V. statute was directed at expression, this statute is directed at conduct.

Virginia v. Black

• Defendants burned cross on someone else's yard, claim that it was in retaliation for something victim did.
• Jury instruction said defendant must have intended to intimidate.
• Court holds that statute must separate out intimidation which is punishable from expression of ideas which is not.
• As to defendants who burn cross on someone else's yard, Supreme Court remands for new trial on motivation of defendants as to why they burned cross.
• Scalia: just because cross is prima facie evidence of racial motiation doesn't mean it's not rebuttable.
• Problem reconciling Virginia v. Black with R.A.V..

• Does Beauharnais survive R.A.V. and Virginia v. Black?

• Focus on
  • Value of speech (looks at speech)
    • High value
    • Low/lower value
    • No value
  • Content/viewpoint distinctions -- nervousness/apprehension about these laws (looks at statute/regulation)
    • Picking winners and losers
  • Other interests?
    • E.g., Fourteenth Amendment

• Next time: defamation

Wednesday, December 17, 2003 (Class 6)

• Final exam will be open book, in class.
• Review of content vs. viewpoint neutrality

• Past cases involved criminal liability and government as party, now we deal with libel where government is not a party.
• State action comes in from court enforcement.
• Chaplinsky: defamation etc. "outside" of First Amendment, or alternatively of low value, thus less protected.
• Characteristics of defamation that might make it outside of First Amendment
  • False
  • Holds victim up to scorn, ridicule

• Example: person hears something on radio about governor sleeping with intern, then person repeats it to someone else, governor sues.
• Issues
  • Truth
  • Reckless/believed it (defendant) ---> actual malice
  • Public figure vs. private (plaintiff)

New York Times Co. v. Sullivan

[376 U.S. 254] 1964 United States Supreme Court (cb73)

• Plaintiff is chief of police; defendant is newspaper that published advertisement from Martin Luther King.
• Why is NYT defendant for running ad?
  • Under old defamation law (that is still good law), you're not insulated simply because you didn't write something originally.
• Minor false issues in ad
• Brennan holding: public official suing for defamation must prove "actual malice."
  • Knowledge of falsity or
  • Reckless disregard for truth
• Standard only applies when plaintiff is public official

Curtis Publisher Co. v. Butts

Associated Press v. Walker

[388 U.S. 130] 1967 United States Supreme Court (cb79)

• Butts was accused of fixing football game, Walker was accused of racist conduct. Both sue for libel. Neither plaintiff is "public official."
• Court extends New York Times reasoning to "public figures" as well as "public officials."

Gertz v. Robert Welch

[418 U.S. 323] 1974 United States Supreme Court (cb81)

• John Birch Society publication accused Gertz of framing a policeman and being a communist. Gertz is just a lawyer, not particularly prominent.
• Regular negligence standard imposed, not public figure/public official "actual malice" standard.
• Court says no punitive damages, however, and can't impose liability without fault.

Dun & Bradstreet, Inc. v. Greenmoss Builders

[472 U.S. 749] 1985 United States Supreme Court (cb82)

• Credit report with error hurt contractor.
• Court uses negligence standard, easier case than Gertz.
• Court allows punitive damages.

Hustler Magazine v. Falwell

[485 U.S. 46] 1988 United States Supreme Court (cb84)

• Falwell sues for Intentional Inflection of Emotional Distress rather than defamation; court holds same standard as Butts for public figure ("actual malice").

• Elements for defamation claim
  • Truth
  • Actual Malice
    • Plaintiff tries to get source
    • Reporter refuses, then Judge says you can assume there was no source
  • Injury
  • Damages

Monday, January 5, 2003 (Class 7)

• Historically, defamation was considered to be totally outside the First Amendment, but in New York Times, "actual malice" standard recategorizes defamation such that some of it is core political speech.
• Time v. Hill: actual malice is extended to matters of public interest, not just public figures.
• Nicke v. Voper: Stevens opinion, labor battle, officials were taped threatening violence on cell phones, ultimately played on the radio.
  • Summary judgment for radio station; they didn't do the interception which would have been illegal. Was matter of public concern thus protected by First Amendment.

Obcenity

• Two issues
  • Under what theory can obscenity be regulated?
  • What is obscenity?

• Chaplinsky idea that obscenity is outside the First Amendment.

Roth v. United States & Alberts v. California

[354 U.S. 476] 1957 United States Supreme Court (cb107)

• Test for regulation of obscenity
  • Whether to average person
    • But who is average person? Easier to tell in tort context.
  • applying contemporary community standards
    • Must be different town-to-town, but will cause problems with crossing jurisdictions.
  • the dominant theme of the material taken as a whole appeals to prurient interest.
    • "induces lustful thoughts"

Miller v. California

[413 U.S. 15] 1973 United States Supreme Court (cb113)

• Unwilling exposure
• Roth test
  • Dominant theme appeals to prurient interests
• Plus two additional tests:
• Does work depict in patently offensive way sexual conduct proscribed by law?
• Does work as a whole lack serious literary, artistic, or scientific value?

Jenkins v. Georgia

[418 U.S. 153] 1974 United States Supreme Court (cb123)

• Jury found "Carnal Knowledge" film to be obscene.
• Starred Jack Nicholson, Candace Bergen, Art Garfunkel, nominated for academy award.
• Most of the tests are jury questions.
• Court decides that second test is not met--work does not depict work in patently offensive way.

Paris Adult Theatre I v. Slaton

[413 U.S. 49] 1973 United States Supreme Court (cb116)

• Theatre was labelled "Atlanta's Finest Mature Feature Films," and denied entrance to minors. Nothing obscene outside theatre, however.
• Court concludes that state still has legitimate interest in "stemming tide of commercialized obscenity."

New York v. Ferber

[458 U.S. 747] 1982 United States Supreme Court (cb126)

• Owner of sex shop sold videos to police of underage boys masturbating.
• Jury finds films are not obscene but that defendant violated law against child pornography.
• State interest: protecting children.
• Element of "lacking serious value" is not needed for children; does not need to appeal to prurient interest of average person; does not need to be "patently offensive."
• Essentially special rule to protect children.

Erznoznik v. Jacksonville

[422 U.s. 205] 1975 United States Supreme Court (cb139)

• Nuisance statute; drive-in theatre visible from street.
• Ordinance prohibited exhibitions of buttocks, breasts, or pubic areas.
• No claim of obscenity.
• Court overturns ordinance; says viewer can avert eyes.
• Question: by showing movie that could otherwise not be regulated outside, can it then be regulated?
• Other issue: "traffic problem"
• But then there could be no drive-ins at all--finds reason to be pretextual.
• Also content discrimination notion--overinclusive as it would include educational films.

Young v. American Mini Theatres

[427 U.S. 50] 1976 United States Supreme Court (cb142)

• City was trying to spread out pornographic movie theatres, etc., so they won't be too concentrated. (cf. City of Renton was trying to concentrate movie theatres).
• Court finds zoning constitutional; does not limit ruling to obscenity.
• Court holds that government does not need to be content neutral; but must be viewpoint neutral.
• Viewed more as "protection of neighborhood" rather than speech cases, although speech element is involved.
• Dissent: if not obscene, then it is protected. What is really happening is they are regulating because they find it offensive.

Renton v. Playtime Theatres, Inc.

[475 U.S. 41] 1986 United States Supreme Court (cb145)

• City wants to concentrate adult films.
• Claims it is governed by Young; this is a place/time regulation.
• Justified by "secondary effects"--effects on surrounding community, thus not based on content.
• 5% of city was open for bookstores etc..
• What if zoning scheme effectively banned activity entirely?
  • Would be unconstitutional, because it would be banning something which is protected, even if it is by zoning.
  • Could argue that neighboring municipalities don't have ban, thus material isn't really banned.

City of Los Angeles v. Alameda Books, Inc.

[535 U.S. 425] 2002 United States Supreme Court (cb147)

• Los Angeles has done study that shows that concentrations of adult businesses brings about crime.
• Court holds that relying on 20-year-old study was not unreasonable.
• Upheld by plurality.
• Souter says that regulation is viewpoint based and thus can't survive scrutiny.

FCC v. Pacifica Foundation

[438 U.S. 726] 1978 United States Supreme Court (cb150)

• FCC receives complaint about "seven dirty words" from George Carlin on Pacifica, followed by warning that there would be sensitive language.
• Court sustains regulation, looks at context.
• Does not think regulation is content-based, you can say the word with lots of different words. (but is this true when message has to do with censorship on radio?)
• No need to prove obscenity on radio.
• This is "time, place and manner."

Reno v. American Civil Liberties Union

[521 U.S. 844] 1997 United States Supreme Court (cb161)

• Communications Decency Act, §223(a) prohibited making communciations that are indecent or obscene that will be available to minors, measured by community standards.
• Two defenses: good faith reasonable effort to restrict access, and get proof of age.
• Made very clear what content can't be made available to kids, thus is content-based restriction.
• Distinguishes Pacifica--no specialized agency like FCC; involves criminal statute; no "safe time of day"; Internet history is different from TV; no history of regulation of Internet.

Wednesday, January 7, 2003 (Class 7)

• Miller test for obscenity
  • Average person -- community standards find work, as a whole, appeals to prurient interest
  • Depicts proscribed sexual conduct in offensive way
  • Work as whole lacks serious artistic, etc., value
• Once material is defined as obscene as Miller test, it is "outside" protection of First Amendment.

Reno v. American Civil Liberties Union

[521 U.S. 844] 1997 United States Supreme Court (cb161)

• Act prohibited making communication on Internet that was indecent or obscene that is available to minors.
• Obscenity can be regulated; however, act included more than just obscenity.
• Not content neutral; not limited to commercial transactions; not limited to matters without redeeming value, even for minors.
• Struck down for vagueness.

Ashcroft v. American Civil Liberties Union

[535 U.S. 564] 2002 United States Supreme Court (cb171)

• COPA prohibited communications via WWW for commercial purposes available to minors that includes material that is "harmful to minors" by "community standards."
• Definition of harmful to minors:
  • obscene
  • (or) Miller as applied to minors
    • average person, applying contemporary community standards, would find, taking the material as a whole nad with respect to minors, is designed to appeal to, or is designed to pander to, the prurient interest.
    • patently offensive with respect to minors actual or simulated act, lewd exhibition of genitals or female breast
    • taken as a whole, lacks serious literary, etc., value for minors
      • Very different--matter that has literary value might not have it for minors

Commercial Speech

• Just because something is sold (e.g., newspaper), does not make it commercial speech.
• Because it is about money (e.g., Wall Street Journal), does not make it commercial speech.
• Advertisement not necessarily commercial speech (New York Times v. Sullivan).
• Speaker as corporation not necessarily commercial speech.

• Example regulation that prohibits images in cigarette ads
• Rationale for regulating smoking ads
  • Public health of smokers
  • Cost to state of health care
  • Second-hand smoke
• Is governmental interest substantial enough?
• How closely tailored is regulation to goals?
• Issue: can you restrict advertisement because you think people will make unwise choices?

Virginia State Pharmacy Board v. Virginia Citizens Consumer Council

[425 U.S. 748] 1976 United States Supreme Court (cb179)

• Virginia law prohibited price advertising, claimed justification is to preserve professionalism of pharmacists.
• Blackmun shows that none of the exceptions to the First Amendment fit this situation.
• Commercial speech fits "somewhere" within First Amendment, not clear exactly where at this point
• Rehnquist dissent defines it entirely as economic matter, outside of First Amendment

Linmark Associates, Inc. v. Willingboro

[431 U.S. 85] 1977 United States Supreme Court (cb187)

• Ordinance prohibits "for sale" signs on lawns, to discourage white flight.
• Same notion as Virginia State Pharmacy Board: information is truthful, people are entitled to have it.

Central Hudson Gas v. Public Service Comm'n

[447 U.S. 557] 1980 United States Supreme Court (cb192)

• Utility wanted to advertise to encourage people to use electricity
• Four part test
  • Is expression protected?
    • Lawful activity
    • Not misleading
  • Substantial Government Interest
  • Directly advance the interest
  • Are more limited restrictions available? (must be narrowly tailored/not too broad)
• "Intermediate scrutiny"

City of Cincinnati v. Discovery Network, Inc.

[507 U.S. 410] 1993 United States Supreme Court (cb196)

• Cincinnati bans newsracks with flyers (advertising material) on city property. Does not ban racks which distribute newspapers.
• Government interest: aesthetic
• Ban does advance interest, but court overturns because it is selective -- newspaper stands have same aesthetic effect but are not banned.

Posadas de Puerto Rico Assocs. v. Tourism Company of Puerto Rico

[478 U.S. 328] 1986 United States Supreme Court (cb197)

• Puerto Rico legalizes gambling but prohibits ads aimed at residents of Puerto Rico.
• Court applies Central Hudson test.
• Court upholds ordinance, finds that substantial government interest in discouraging gambling locally is directly advanced and narrowly restricted.
• Brennan dissent: if gambling is legal, how substantial can interest in stopping it be?
• May be first case where Court holds constitutional prohibition on ads for legal activity.

United States v. Edge Broadcasting Co.

[509 U.S. 418] 1993 United States Supreme Court (cb199)

• Federal law that prohibits broadcasting of lottery ads except in stations licensed in states that have lotteries (i.e., can't advertise other state's lottery).
• Court also upholds under Central Hudson test.

44 Liquormart, Inc. v. Rhode Island

[517 U.S. 484] 1996 United States Supreme Court (cb200)

• Rhode Island statute prohibits advertising price of alcohol
• Stevens, Kennedy, Ginsburg plurality opinion
• "Not all commercial speech is analyzed under same standard"--some commercial speech is in core, some protected by not in core, some outside First Amendment.
• This is complete restriction on truthful speech.
• Lots of other ways to achieve goal without restricting speech
• Indistinguishable from Edge Broadcasting except that lottery was not legal in North Carolina. Otherwise facts seem to be same and thus holdings contradictory.
• O'Connor concurrence: would just stick to Central Hudson

Greater New Orleans Broadcasting Association v. United States

[527 U.S. 17] 1999 United States Supreme Court (cb205)

• Government bans advertising of gambling except by Indians and government, held unconstitutional like in Posadas.

Lorillard Tobacco Co. v. Reilly

[533 U.S. 525] 2001 United States Supreme Court (cb207)

• Billboards prohibited within 1000 feet of playgrounds, schools, or parks. In store ads had to be 5 feet above ground. Tobacco products only had to be accessible to store personnel.
• Court applies Central Hudson again.
• Issues: is government interest directly advanced, and is more limited restriction available?
• Court holds ban unconstitutional because it is too broad.
• Upheld only requirement to sell tobacco products behind counter.

Monday, January 12, 2003 (Class 8)

• February 2: will do campaign finance

• Under what circumstances does conduct qualify for First Amendment protection?
• There is also fully expressive conduct which can be regulated. Sit-ins at lunch counters; blocking traffic in front draft centers. Whole point of activity is speech, but may not be immune from suppression. Part of message is that people are willing to break the law and suffer consequences to spread message.

Simon & Schuster, Inc. v. Members of New York State Crime Victims Board

[502 U.S. 105] 1991 United States Supreme Court (cb214)

• Legislature passed law prohibiting Son of Sam (Berkowitz) and others from profitting from their crimes.
• Can't pass law prohibiting people from speaking about crimes, so New York passes law putting proceeds from sales into fund for victims of crime.
• Doesn't look like they're regulating speech at all, looks like they're regulating money that will result from speech.
• But issue of whether or not you will be paid for speech is tantamount to restriction of speech.
• Speech is clearly within First Amendment: there could be significant public interest in what this guy was doing. Thus strict scrutiny is triggered.
• After deciding that state interest is compelling, court decides that regulation is not sufficiently narrowly tailored to survive strict scrutiny.
• If matter is compensating victim, it doesn't matter where money is coming from. State could have passed law allowing victim to attach assets of criminal. It shouldn't matter if the money comes from speech or other activity.
• Statute is overinclusive, because it includes lots of speech that should be protected.

United States v. O'Brien

[391 U.S. 367] 1968 United States Supreme Court (cb221)

• Standard where speech and conduct are both involved.
• Decided the year before Brandenburg--hadn't yet worked out the mork protective standard.
• Defendant convicted of burning draft card; there was already a law on the book requiring people to carry draft card at all times.
• O'Brien testified that he burnt draft card to convince people to oppose draft.
• District Court convicts O'Brien; First Circuit reverses.
• Analysis
  • Is expression involved? (focus on actor)
    • Intending to convey message?
    • Likelihood message would be understood
    • Within traditionally protected area
  • Is regulation aimed at suppressing expression? (focus on state)
    • First Circuit was bothered by fact that Congress passed law to chill expression
  • Unless threshold inquiries are passed, you don't even reach O'Brien. O'Brien represents a lower level of scrutiny.
  • O'Brien test
    • Is regulation within constitutional of power of government?
      • In this case, yes, US interest in raising armies, etc..
    • Does regulation further government interest?
      • Depends on how you define interest. Supreme Court sees destroying draft card as harming government interest in raising army; First Circuit said this law didn't further that interest at all, because you already needed to have your draft card on you at all times.
    • Government interest unrelated to suppressing expression?
    • Is restriction incidental to speech?
  • O'Brien test is content neutral analysis, doesn't look at subject matter.
• No "clear and present danger" kind of analysis
• General test used for content neutral laws

• Tinker case: students sanctioned for wearing black arm band in school. School did not reach O'Brien test, because it found that black arm was pure expression.

Street v. New York

[394 U.S. 576] 1969 United States Supreme Court (cb228)

• Crime to defile or cast contempt on flag by words or act. Defendant says "we don't need no damn flag."
• Held unconstitutional. Clearly regulating expresion, content specific.

Smith v. Goguen

[415 U.S. 566] 1974 United States Supreme Court (cb228)

• Massachusetts law making it a crime to treat the flag contemptuously, void for vagueness.

Spence v. Washington

[418 U.S. 405] 1974 United States Supreme Court (cb229)

• Illegal to display flag with any mark transposed on it.
• Aimed clearly at expression, held unconstitutional.

Texas v. Johnson

[491 U.S. 397] 1989 United States Supreme Court (cb229)

• Crime to mistreat flag in way actor knows will offend.
• Court finds two reasons for statute
  • Maintenance of the peace
    • But this could be true of any political protest (i.e., Jehova's Witnesses cases).
    • There was no actual disturbance in this case
  • Offense
• Court strikes down conviction, finding it was based on potential offensiveness of message
• Didn't use O'Brien, finding O'Brien was for regulation not aimed at expression.

United States v. Eichman

[496 U.S. 310] 1990 United States Supreme Court (cb236)

• Congress passes another flag-burning ban, says its not worried about message, just about integrity of flag. Removes 'intent to offend'.
• Court finds the same problem here as in Texas v. Johnson.

Barnes v. Glen Theatre

[501 U.S. 560] 1991 United States Supreme Court (cb238)

• Ordinance prohibited nude dancing (without pasties or g-string)
• Ordinance did not meet any definition of obscenity, however.
• Dancing is form of expression
• Court applies O'Brien test, finds that limitation is incidental restriction.
• Dissent: why is this public place? Found O'Brien inapplicable.

• Next issue: government property. To what extent is government equivalent to private property owner?
• Same issues about content neutrality
• Other issues: different sorts of property--e.g., streets and sidewalks, inside of government buildings.

Wednesday, January 14, 2003 (Class 9)

• O'Brien Test for Conduct
  • Regulation within power of government
  • Furthers important government interest
  • Is government interest unrelated to suppression of expression?
  • Is First Amendment restriction incidental only? (not greater than essential to further government interest)
• Test is content neutral.

• Two different types of scenario
  • Government is regulating a la Robert's Rules of Order: who gets to talk; decibel levels; etc.
  • Government as employer or property owner

Hague v. CIO

[307 U.S. 496] 1939 United States Supreme Court (cb245)

• Ordinance requiring permit for public meeting on the street.
• Court voided regulation because there was unbounded discretion in granting the permit.
• Dictum: Public streets have been used "for time out of mind" for public discussion; government can't regulate public speech in guise of other regulation.

Schneider v. State

[308 U.S. 147] 1939 United States Supreme Court (cb248)

• Adopts Hague dicta; can't ban pamphlets under littering statute.

Cox v. New Hampshire

[312 U.S. 569] 1941 United States Supreme Court (cb247)

• Law prohibited parade without a permit.
• Jehova's Witnesses did not apply for a permit.
• Regulation upheld: state is concerned with street safety, licensing scheme had sufficient limits (not unbridled discretion).

Martin v. Struthers

[319 U.S. 141] 1943 United States Supreme Court (cb249)

• Illegal to ring doorbells for distributing leaflets; Jehova's witnesses going door-to-door ringing doorbells.
• Supreme Court holds ordinance unconstitutional; door-to-door canvassing only way for the poor to communicate.
• Some discussion of overbreadth as well.

Kovacs v. Cooper

[336 U.S. 77] 1949 United States Supreme Court (cb250)

• Issue of loudspeakers, sound trucks, prohibited by ordinance.
• Supreme Court upholds ban, unlike other cases there is no way to stop listening.

City of Ladue v. Gilleo

[512 U.S. 43] 1994 United States Supreme Court (cb252)

• Town is worried about visual clutter; bans residential signs.
• Resident puts 8.5 x 11 sign with message "For Peace in the Gulf," prosecuted under ordinance.
• Ordinance bans "too much" speech.
• Ordinance had lots of exceptions; but this suggests it is underinclusive if purpose is really reducing visual clutter.
• Also casts doubt on strength of state interest if exceptions exist.

• Issues

1. Impact on opportunity for communication
2. Alternative means available to state to achieve ends (tailored)
3. Disproportionate impact on particular group or viewpoint
4. Direct or incidental impact on communication
5. "Time out of mind"--tradition of free speech (disfavors new technologies!)
6. Strength of state interest
7. Alternatives to speaker

Watchtower Bible & Tract Society v. Stratton

[122 S.Ct. 2080] 2002 United States Supreme Court (cb253)

• No door-to-door solicitations permitted without permit; Jehova's witnesses challenge ordinance.
• Court holds ordinance unconstitutional.
• Does not specify standard of review, but court finds too broad.
• Asserted justification
  • Prohibit criminal acts
    • But there are a lot of door-to-door canvassers with no criminal purposes
  • Annoyance/privacy
    • But ordinance could include people who don't mind solicitation; also could post 'No Solicitation' signs and pass ordinance for that.
• Public forum sense--"time out of mind"--longstanding tradition of soliciting door-to-door

Public Order and Safety

Cox v. Louisiana

[379 U.S. 536] 1965 United States Supreme Court (cb256)

• March to a court protesting segregation; also counterdemonstrators.
• Cox urged demonstrators to sit-in at lunch counters; sheriff ordered demonstrators to disperse and then arrested and convicted for disturbing the peace and obstructing the sidewalk.
• Conviction struck down.

Heffron v. International Society for Krishna Consciousness

[452 U.S. 640] 1981 United States Supreme Court (cb257)

• State fair permitted groups to have booths in fair grounds but prohibiting selling anything except from approved booths, on first come first served basis.
• Krishnas did not get booth, challenged under First Amendment.
• Court finds state fair to be public forum.
• Court finds it to be minimal time, place, and manner regulation.
• State regulation maintains order, crowd control.
• Regulation was totally content neutral.
• Is government rule narrowly tailored? Court finds fit to be good--limited room, and thus state is managing limited space.

Metromedia, Inc. v. San Diego

[453 U.S. 490] 1981 United States Supreme Court (cb259)

• Ordinance restricted billboards in San Diego. Court found unconstitutional part of ordinance that restricted noncommercial billboards.
• Two purposes for ordinance
  • Billboards distract drivers; traffic safety rationale
  • Aesthetics; ugly
• Court notes that aesthetics are limited state interest; probably would find outright ban to be constitutional

Members of City Council v. Taxpayer for Vincent

[466 U.S. 789] 1984 United States Supreme Court (cb261)

• Ordinance prohibits posting signs on public property.
• No criminal prosecution; city is taking down signs as they are put up.
• Signs have political message for candidate.
• Purports to use O'Brien--claiming that O'Brien applies to viewpoint-neutral situations (although typically O'Brien is for content-neutral situations).
• City's interest: visual clutter.
• Within power of government to improve city's appearance? Yes. Furthers interest? Yes.
• Is government interest unrelated to suppression of expression? Yes, not related to ideas.
• Is restriction incidental/narrowly tailored? Yes, exactly tailored for evil of visual clutter.
• Thus Court upholds regulation.

Clark v. Community for Creative Non-Violence

[468 U.S. 288] 1984 United States Supreme Court (cb266)

• Washington Mall, need permit for demonstration. No unbridled discretion, so okay.
• Homeless demonstration. Park service grants permit for tents in Lafayette Park.
• Demonstration intended to show plight of homeless in winter.
• Question is whether rule prohibiting demonstrators from sleeping in tent cities is valid; court upholds rule.
• Court relies on O'Brien; expressive conduct on public property; neutral permitting scheme.
• Thus it is time, place, or manner restriction on public property, triggering O'Brien.
• Court assumes arguendo sleeping is expressive.
• Are regulations content neutral? Yes, appears to be.
• Government is permitting demonstration, thus First Amendment restriction is incidental.
• Government interest? Preservation of parks.
• Court upholds rule.
• Marshall dissent: finds interest unpersuasive, and expression undervalued.

• Abortion picketing cases

Frisby v. Schultz

[487 U.S. 474] 1988 United States Supreme Court (cb272)

• City had preexisting ban on residential picketing; picketers are protesting abortion doctor's home.
• Content neutral ban, alternative channels available, etc., thus ban is upheld.
• Government interest is privacy.
• May not be attempt to disseminate message, but actually may be attempt to intimidate doctor.

Madsen v. Women's Health Center, Inc.

[512 U.S. 753] 1994 United States Supreme Court (cb274)

• Court issued injunction prohibiting blocading of abortion clinics; second more specific injunction is entered when first injunction is violated.
• Injunctions are closely scrutinized (prior restraint issue).
• Second injunction: buffer zone, no amplification, 300 foot moving bubble for patients to enter.
• Recognize substantial government interest: woman to seek medical care, traffic.
• Uphold buffer zone as constitutional.
• Limitation on noise is constitutional (patient recovery).
• Can't ban holding up offensive signs; this part struck down as unconstitutional.
• 300 foot bubble unconstitutional because overbroad.
• Buffer zone unconstitutional because it goes into street and other public forums.
• Court looks at each restriction on its own; applies O'Brien to each.

Wednesday, January 21, 2003 (Class 10)

Madsen v. Women's Health Center, Inc.

[512 U.S. 753] 1994 United States Supreme Court (cb274)

• Public property (street) involved; also constitutional right to abortion.
• Court upheld some restrictions, struck down others, from injunction.

Schenck v. Pro-choice Network of Western Nwe York

[519 U.S. 357] 1997 United States Supreme Court (cb277)

• Another injuction case, involving sidewalk "counselors."
• Injunction set up "floating" 15-foot buffer zone. Allowed 2 counselors to enter buffer zone as long as they would stop when requested.
• Court found fixed buffer constitutional based on past behavior, but "floating" buffer zone was overly broad.
• Found constitutional limit to 2 counselors in buffer.

Hill v. Colorado

[530 U.S. 703] 2000 United States Supreme Court (cb278)

• Case based on statute rather than injunction; thus no longer based on particular findings of emergency.
• Statute made it unlawful for anyone within vicinity of health care facility knowingly to approach within eight feet of another person without consent to pass out leaflets, etc..
• Court upholds restriction as valid, content-neutral, time, place, and manner regulation.

Brown v. Louisiana

[383 U.S. 131] 1966 United States Supreme Court (cb281)

• Segregated library, black person refuses to leave after requested book is not present, then arrested.
• Court overturns conviction, person was not doing anything different from what people would do in library.

Adderly v. Florida

[385 U.S. 39] 1966 United States Supreme Court (cb283)

• Students ordered to leave protesting jail, then arrested.
• Convictions affirmed.

Lehman v. Shaker Heights

[418 U.S. 298] 1974 United States Supreme Court (cb285)

• Transit system refused to run political ads.
• Court applies reasonableness standard, upholds restriction.
• This is content-based distinction, thus could not pass strict scrutiny. Thus issue is why this restriction is not subjected to strict scrutiny.
• Advertising space on train is not "traditional public forum," thus lesser standard of review is used.

• Categorizations
  • Traditional/quintessential public forum
    • Subjected to strict scrutiny
  • Voluntarily opened forum (limited/designated forum)
    • Problem if there are content-based distinctions
  • Not by tradition
    • "Pretense" standard

U.S. Postal Service v. Council of Greenburgh Civic Associations

[453 U.S. 114] 1981 United States Supreme Court (cb289)

• U.S. statute made it a crime to put unstamped mail into someone's home mailbox.
• Court finds mailbox not to be traditional public forum, thus subject to reasonableness review. Doesn't have to be content-neutral.

Perry Education Association v. Perry Local Educators' Association

[460 U.S. 37] 1983 United States Supreme Court (cb291)

• Rival union wants access to school's mail system.
• Court upholds restriction, not public forum.

Cornelius v. NAACP Legal Defense and Educational Fund

[473 U.S. 788] 1985 United States Supreme Court (cb293)

• Restriction on list of organizations that can appear in charitable compaign for federal employees.
• Court holds that "Combined Federal Campaign" is not a traditional public forum or designated.
• Subject to reasonableness: government argues that its interest as employer justifies restriction.
• Court notes that even under lower standard government could not engage in viewpoint discrimination.
• Blackmun dissent

United States v. Kokinda

[497 U.S. 720] 1990 United States Supreme Court (cb294)

• Advocacy group wants to have table on sidewalk near post office.
• Plurality holds that sidewalk near post office is not like regular sidewalk and thus is not public forum.

International Society for Krishna Consciousness, Inc. v. Lee

[505 U.S. 672] 1992 United States Supreme Court (cb297)

• Port Authority has ban on panhandling, selling of goods, etc., in airport.
• Court holds that airport is not traditionally open public forum, nor is it voluntarily opened.
• Kennedy, Blackmun, Stevens, and Souter reject historical analysis, should do functional analysis instead.
• Court upholds solicitation ban as constitutional: traffic concern.
• Leafletting ban is unconstitutional, however, because it doesn't stop people in same way.

Arkansas Educational Television Commission v. Forbes

[523 U.S. 666] 1998 United States Supreme Court (cb302)

• Public Television station owned by state, debate excludes non-major party candidate.
• Sounds like public forum, but because television needs to make editorial decisions.
• Criteria are not "viewpoint based" because they only involve general status, i.e., not specific party affiliations, etc..

U.S. v. Public Library Association

• CIPA (Children's Internet Protection Act), libraries that receive public funding are required by congress to install filters to block obscene or indecent material to children.
• Is library a public forum or designated forum?
  • Court says no. Librarians have always had to make editorial decisions.
  • But here librarian isn't making decision.
  • Analogizes library to television station in Forbes.
• Even under reasonableness standard, still need to see if it's overbroad, etc..
• Court upholds filter since patron can ask librarian to turn it off.

Widmar v. Vincent

[454 U.S. 263] 1981 United States Supreme Court (cb303)

• Group of students want to use public (University) property for religious services.
• University denies students access because it thinks establishment clause prohibits--separation of church and state.
• Court strikes down rule: University has opened designated forum, cannot make content-based distinctions.

Lamb's Chapel v. Center Moriches Union Free School District

[508 U.S. 384] 1993 United States Supreme Court (cb305)

• Similar restriction in public school.
• Lamb's Chapel wants to show films on family values on school property, denied by school board.
• Court says this is viewpoint discrimination, unconstitutional.

Good News Club v. Milford Central School

[533 U.S. 98] 2001 United States Supreme Court (cb306)

• Enabling statute allows schools to be open for public use.
• Milford passes ordinance allowing for use by residents who want to provide education or social events of certain types.
• Group wants to proselytize, comes closer to establishment clause issues.
• Town wins on summary judgment.
• Supreme Court reverses summary judgment in favor of town, and enters summary judgment in favor of Good News Club.
• Breyer, Souter, and Ginsburg would have remanded: sees difference between group that seek conversion.

• Government can do what it wants with property except property that is devoted to expression.

Tinker v. Des Moines Independent Community School District

[393 U.S. 503] 1969 United States Supreme Court (cb309)

• Action is black armband to protest Vietnam.
• Court holds: wearing of armband is akin to pure speech.
• First Amendment does not automatically stop at school gate.

Board of Education v. Pico

[457 U.S. 853] 1982 United States Supreme Court (cb310)

• School board wants certain books removed from school library.
• Court remands to see what was intention of school board.
• Inherently editorial decision to decide whether or not to purchase a book. Must be deference to this sort of decision except viewpoint discrimination.
• Once book is on the shelf, level of scrutiny and interest of court increases.

Bethel School District No. 403 v. Fraser

[478 U.S. 675] 1986 United States Supreme Court (cb314)

• Student suspended for giving lewd speech.
• Upheld, message was not appropriate.

Hazelwood School District v. Kuhlmeier

[484 U.S. 260] 1988 United States Supreme Court (cb315)

• One story is about impact of pregnancy on students; other is about impact of divorce. School refuses to permit student newspaper to publish articles.
• Court holds student newspaper is not traditional/quintessential public forum nor is it limited/designated public forum.
• Court upholds restriction as reasonable.
• Curriculum matters: usually reasonableness test, becomes subset of public property cases.

• Usually viewpoint based distinctions won't even survive rationality test

Monday, January 26, 2003 (Class 11)

• Tension between desire for consistent, unifying doctrine vs. new technologies and new contexts which don't fit.

Pickering v. Board of Education

[391 U.S. 563] 1968 United States Supreme Court (cb318)

• Public school teacher criticizes school board in letter to editor and is fired
• Court holds termination unconstitutional
• Teacher's commentary concerned matter of public interest
• Court weighs teacher's interest (classic First Amendment core speech) vs. school's interest (regulating its employees, efficiency)
  • Speech on matter of public concern?
  • No showing of:
    • Speech impedes or undermines employee performance or
    • Impedes or undermines operation of school

Connick v. Myers

[461 U.S. 138] 1983 United States Supreme Court (cb319)

• District attorney wants to transfer assistant D.A.; she doesn't want to be transferred, circulates survey around the office, is fired and sues.
• Court applies Pickering to parts of claim, but finds they aren't of public interest.
• Court holds that there is a First Amendment interest, but not strong enough.
• One question on survey was whether employees were pressured into political activity, which is matter of public concern.
• Thus subject to second prong: was ADA fired for permissible reason (i.e., impeding office activity)
• Court upholds firing; dissent thought this was too much deference in First Amendment context.

Rankin v. McPherson?

[483 U.S. 378] 1987 United States Supreme Court (cb323)

• Clerk in Constable's office says he hopes Reagan is killed next time.
• Court applies Pickering, finds termination unconstitutional.

United States v. National Treasury Employees Union

[513 U.S. 454] 1995 United States Supreme Court (cb324)

• Act prohibits honoraria for government employees.
• Two different standards: Pickering and Connick (internal speech)
• Court applies Pickering but expands beyond "public concern," to non-work related speech.
• Government interest is to prevent government employees from unfairly using influence

Hatch Act

United Public Workers v. Mitchell

[330 U.S. 75] 1947 United States Supreme Court (cb327)

• Prohibits political activity from government workers
  • Want government workers to carry out laws, not political goals
  • Don't want government workers to be used to build political machines
  • Free government workers of political pressure from superiors
• Pickering test:
  • Matters of public concern? Yes.
  • Constitutional? Yes, justifications are sufficient. Government neutrality is heavy interest.
  • Not strict scrutiny--balancing, so probably intermediate scrutiny.

Elrod v. Burns

[427 U.S. 347] 1976 United States Supreme Court (cb327)

• Democratic Sheriff in Cook County fires Republican staff.
• Court holds that people at that level can't be fired for political reasons; patronage is possible at higher/policymaking levels.

Branti v. Finkel

[445 U.S. 507] 1980 United States Supreme Court (cb328)

• Court holds unconstitutional termination of public defenders, but does not apply Elrod.
• Test is not whether person is policymaking, but whether hiring entity can prove party affiliation is required to perform activities.

Rutan v. Republican Party of Illinois

[497 U.S. 62] 1990 United States Supreme Court (cb329)

• Question is whether something short of termination is subject to Elrod.
• First Amendment interest on both sides: patronage dismissal inhibit political activity; but allowing patronage dismissal strengthens party affiliation of incoming party.
• Patronage practices short of dismissal need to be narrowly tailored to serve vital government interest.

Board of Commissioners v. Umbehr

[518 U.S. 668] 1996 United States Supreme Court (cb331)

• Trash hauler with public contract criticizes county government, contract is terminated.
• Court holds that public contractors protected in same way as public employees.

O'Hare Truck Service, Inc. v. City of Northlake

[518 U.S. 712] 1996 United States Supreme Court (cb331)

• Tow truck operator removed from rotation for failure to make contribution, applies Elrod here, contractor protected.

Subsidized Speech

• Government has no obligation to subsidize speech
• But, what government might be doing is bribing or penalizing someone for exercising speech rights

Speiser v. Randall

[357 U.S. 513] 1958 United States Supreme Court (cb333)

• California requirement that property tax exemption available only to veterans who took loyalty oath
• Court overturned requirement, said that it was penalizing certain speech.

Regan v. Taxation With Representation of Washington

[461 U.S. 540] 1983 United States Supreme Court (cb334)

• Challenge to lack of tax exemption for nonprofits that lobby
• Court holds tax code constitutional:
  • No one has right to tax exemption
  • No viewpoint discrimination here
    • Content discrimination (can't lobby) but not particular ideas

FCC v. League of Women Voters

[468 U.S. 364] 1984 United States Supreme Court (cb335)

• Rule: public broadcaster that receives any money from Corporation for Public Broadcasting can't engage in editorializing.
• Court strikes down rule, finds it is a penalty rather than lack of subsidy.
• No way to segregate editorials, unlike in Regan where 501(c)(4) affiliate could do lobbying

Rust v. Sullivan

[500 U.S. 173] 1991 United States Supreme Court (cb337)

• Organizations which receive Title X money prohibited from counseling abortion.
• Constitutional: government can selectively fund programs which government considers to be in public interest

Rosenberger v. Rector and Visitors of the University of Virginia

[515 U.S. 819] 1995 United States Supreme Court (cb338)

• UVA permitted student funds to be used for student groups except for groups that advocate existence of deity.
• Court holds rule to be viewpoint discrimination: aims at speech from a religious perspective, thus unconstitutional.
• Kennedy says that this differs from Rust because here Government is not speaker.
• Souter dissent: no viewpoint discrimination; applies equally to all religions or atheists. Speech is belief 'about' as well as 'in' a deity.

Wednesday, January 28, 2003 (Class 12)

National Endowment for the Arts v. Finley

[524 U.S. 569] 1998 United States Supreme Court (cb340)

• Congress passed law requiring NEA to take into account standards of decency in approving grants.
• Court says it is not really viewpoint discrimination
• Subsidy involves editorial decisions
• Unlike Rosenberger, there is a competitive element in this case to getting grants; someone must make aesthetic judgments
• Congress has latitude in funding priorities; i.e., Rust

Legal Services Corporation v. Velazquez

[531 U.S. 533] 2001 United States Supreme Court (cb344)

• Statute prohibited legal services that received from federal money from raising constitutional claims or class actions
• Court notes that viewpoint discrimination can be sustained in context of government money, but must:
  • Government must be speaker itself--Rust
  • Distinguish from when government uses private speakers itself to get message out--Rosenberger--Government has not charged lawyers with advocating one message or viewpoint or another

• Library filter case
  • Rehnquist: when government is appropriating money, it is generally entitled to define limitations of program which it is funding, Rust
  • Distinguishes LSC because there lawyers job is to advocate against government. LSC involves exceptional program.

Overbreadth, Vagueness, and Prior Restraints

• Focus is not on defendants action, but on statute generally
• Tension with standing; normally defendant doesn't have standing to raise something that doesn't apply to them

Gooding v. Wilson

[405 U.S. 518] 1972 United States Supreme Court (cb58)

• Struck down statute as overbroad where defendant was convicted at anti-war protest blocking draft office.
• Defendant said: "white son of a bitch, I'll kill you."
• Court decides statute is aimed at pure speech; doesn't look at defendant's behavior because statute is overbroad

Broadrick v. Oklahoma

[413 U.S. 601] 1973 United States Supreme Court (cb349)

• State Hatch Act challenge.
• Defendant claims statute is overbroad because he says statute would prohibit defendant from wearing a button for a candidate at home, etc..
• Court upholds the Act because it says you need "substantial overbreadth" to overturn statute; here that isn't the case.
• Can't be struck down just because someone can think of example of protected activity that would be covered in statute

New York v. Ferber

[458 U.S. 747] 1982 United States Supreme Court (cb126)

• Child pornography statute. On face, looked like it might reach scientific and educational material.
• Court upholds statute; says it can deal with these cases on a case-by-case basis. Not substantially overbroad.

Ashcroft v. Free Speech Coalition

• Child pornography protection act prohibited images even if no child was involved in making images.
• Government argues that it can't always tell if child was involving in making pornography.
• Court holds statute unconstitutional: can't suppress legal speech to get to unlawful speech.

Schaumburg v. Citizens for Better Environment

[444 U.S. 620] 1980 United States Supreme Court (cb354)

• Court struck down law which prohibited organizations from door-to-door solicitations unless 75% of receipts went to "charitable purposes."
• Law is overbroad: wouldn't allow advocacy organizations to function.

Brockett v. Spokane Arcades, Inc.

[472 U.S. 491] 1985 United States Supreme Court (cb354)

• Ordinance banned materials that appeals to prurient interest.
• Court says statute might be overbroad, but decide to wait until state court definitively interprets it.

Board of Airport Commissioners v. Jews for Jesus

[482 U.S. 569] 1987 United States Supreme Court (cb358)

• Airport says no First Amendment activity at all in Airport, Court strikes down for overbreadth.

• Vagueness: similar to overbreadth, but overlaps with criminal law concept that people need to know what is prohibited.
• Vague law is not necessarily overbroad; you shouldn't have to guess at what you have to do.

Coates v. Cincinnati

[402 U.S. 611] 1971 United States Supreme Court (cb360)

• Ordinance prohibits three or more people from standing on sidewalk and "annoying" people.
• Struck down for vagueness.

National Endowment for the Arts v. Finley

[524 U.S. 569] 1998 United States Supreme Court (cb340)

• NEA guidelines not struck down for vagueness:
  • Does not involve criminal/regulatory law

Prior Restraint

• Historically, it was thought that First Amendment only barred prior restraints.
• In old English common law, "free press" meant you couldn't be stopped from printing.
• Prior restraint is worse than other sorts of limitations: speech never gets out at all.
• Injunctions: If injunction is granted and violated, then underlying case is not litigated; will only litigate whether injunction was violated.
• Licenses/permit schemes: can't speak without permit.
• Copyright law: inherent prior restraint; not only constitutional but constitution provides separately for it.
• Canons of ethics--what lawyers can say about cases before they're over

Lovell v. Griffin

[303 U.S. 444] 1938 United States Supreme Court (cb362)

• Can't distribute circulars without written permission from city manager.
• Court strikes down ordinance facially because there are no standards.
• Classic standardless censorship.

Lakewood w. Prain Dealer Publishing Co.

[486 U.S. 750] 1988 United States Supreme Court (cb362)

• Another standardless permitting case (for newspaper racks) struck down.

Freedman v. Maryland

[380 U.S. 51] 1965 United States Supreme Court (cb364)

• Maryland movie censorship law has standards. Can't show movie without license.
• Defendant decided not to get licenes, showed film anyway.
• Court holds scheme unconstitutional.
• Burden is on censor to prove the expression is unprotected
• State can't make final decision: state must bring suit for judicial determination to ban expression.
• Must be procedure in place to insure quick resolution.

FW/PBS, Inc. v. Dallas

[493 U.S. 215] 1990 United States Supreme Court (cb365)

• Required sexually-oriented businesses to get licenses; but provided for no time limit on decisionmaking.
• Struck down because of lack of time limit on state decision.

Thomas v. Chicago Park District

[534 U.S. 316] 2002 United States Supreme Court (cb366)

• Ordinance required permit for gathering of more than 50 people; 14 day limit; content neutral criteria for decision.
• Court holds this is time, place, and manner restriction, doesn't rely on Freedman at all.

Injunctions

Near v. Minnesota

[283 U.S. 697] 1931 United States Supreme Court (cb369)

• Paper ran article about gangsters, Minnesota law authorized "abatement."
• Newspaper injoined from publishing any more "defamatory" articles.
• Ordinance is vague, overbroad, and prior restraint, thus struck down.

New York Times Co. v. United States [The Pentagon Papers]

[403 U.S. 713] 1971 United States Supreme Court (cb373)

• Daniel Ellsberg took 47 volumes of Defense Department study and disseminated them to newspapers. Government sued New York Times and Washington Post seeking injuction to prevent publication on grounds of national security.
• New York Times lost its case; Washington Post case won. Within three weeks went to Supreme Court.
• Per Curiam: injunction was unconstitutional as prior restraint; government didn't meet heavy burden of justifying injunctions.
• Black and Douglas: no prior restraints on press ever.
• Brennan: at war emergency would allow prior restraint, clear and present/imminent danger.
• Stewart: government can undertake security measures to guard materials, but once it is disclosed, it's too late.
• White: resorts to common law approach; you can punish but not injoin.
• Marshall: judicial branch doesn't have authority to impose contempt; let Congress pass statute if it wants.
• Burger (dissent): too much haste, should wait until trial.
• Harlan (dissent): foreign policy, separation of powers, judicial review should be very narrow. This is executive's expertise.
• Blackmun (dissent): First Amendment is only one part of Constitution; executive power is also in Constitution, should be balanced.
• Nothing in New York Times that would prevent Government from prosecuting Ellsberg afterwards.

United States v. Progressive, Inc.

[467 F.Supp. 990] 1979 Western District of Wisconsin (cb379)

• Progressive magazine intended to publish instructions to make hydrogen bond
• Case ultimately dismissed because information was published everywhere

Monday, February 2, 2003 (Class 13)

• Possibly late class on Wednesday--will contact us.
• No class on 2/16 (President's Day).
• For this Wednesday, combine Compelled Speech and Associational Rights.

• Regulation of money in politics: contributions and expenditures
• Question: is it viewpoint and/or content neutral?
• Is money speech or instrumentality of speech (like loudspeaker/sound truck)?
• Interests at stake
  • Preventing corruption
  • Equalizing finances
  • Preserving confidence in government
  • Protecting shareholders
  • Austin Interests
• Limitations
  • Contributions to candidates
  • Independent spending limits
  • Limitation on spending own funds
  • Limitations on corporation referenda spending
  • Soft money
  • Contributions by minors

Buckley v. Valeo

[424 U.S. 1] 1976 United States Supreme Court (cb430)

• Constitutional review of Federal Election Campaign Act of 1971
• Law imposes several restrictions on campaign finance
  • Limits individual contributions towards candidate both coordinated and uncoordinated
  • Limits candidates abilities to spend own money
  • Disclosure
• Is this speech or combination of speech and action?
• Court holds O'Brien inapplicable--says this is pure speech regulation, not speech/action dichotomy.
• Expenditure limits: goal would be equalizing finances, not sufficient compelling interest, too invasive of First Amendment.
• §608(b) deals with contribution limits--prohibits donations over $1000.
  • Contribution limits passes strict scrutiny because interest is preventing corruption.
• §608(e): no expenditure relative to a clearly identified condidate over $1000.
  • Unconstitutional--too easy to get around--overbroad and underinclusive (not properly tailored).
• Limitation on spending own funds
  • Unconstitutional: not good fit for corruption, and equalizing finances in not compelling

McConnell? vs. FCC

• Soft money allowed people to contribute to party even if it limited in contributions to candidate. McCain?-Feingold attempt to bring soft money under finance restrictions.
• State/local elections preivously not covered; McCain?-Feingold prohibited shifting funds from state/local committess to national elections.
• Issue ads uneffected by Buckley; McCain?-Feingold attempted to regulate issue ads.
• Contributions by minors limited; struck down because more narrowly tailored possibilities exist.

California Medical Association v. FEC

[453 U.S. 182] 1981 United States Supreme Court (cb442)

• Limited contributions to PACs to no more than $5000 per year.
• Upheld as legitimate contribution limit.

FEC v. National Conservative PAC

[470 U.S. 480] 1985 United States Supreme Court (cb443)

• Unconstitutional expenditure limit on PAC spending. Even if action was coordinated with candidate.

Colorado Republican Federal Campaign Committee v. FEC

[518 U.S> 604] 1996 United States Supreme Court (cb443)

• "Colorado I"
• Issue of independent political expenditures by party.
• Parties are no different from individuals, struck down expenditure limitation.

Colorado Republican Federal Campaign Committee

[533 U.S. 431] 2001 United States Supreme Court (cb444)

• Here party expenditure was coordinated with candidate, upheld since otherwise this would be way to circumvent contribution limits.

First National Bank of Boston v. Bellotti

[435 U.S. 765] 1978 United States Supreme Court (cb446)

• Massachusetts limited corporate spending on ballot questions except those directly applicable to corporation.
• Court holds restriction unconstitutional.
• Question is not whether corporation has First Amendment rights; but rather whether law abridges First Amendment speech, regardless of speaker.
• Thus, law on its face abridges speech in context of election.

FEC v. Massachusetts Citizens for Life, Inc.

[479 U.S. 238] 1986 United States Supreme Court (cb449)

• Can money from general treasury be used to support candidates, or must it be segregated?
• No corruption interest here, constitutional.

FEC v. Beaumont

• Souter opinion.
• North Carolina Right to Life wanted to make contributions directly to candidates out of treasury funds.
• Court holds that you need to set up PAC or other separated body, otherwise you could circumvent contribution limits.

Austin v. Michigan Chamber of Commerce

[494 U.S> 652] 1990 United States Supreme Court (cb449)

• Law prohibited corporations from using treasury funds to support candidates, but permitted corporations to have segregated funds for political purposes.
• Court upholds ban.
• Marshall notes that corporations have unique legal and economic characteristics; amount of money a private corporation has doesn't say anything about popular support for political ideas
• To some extent, ban is justified by equalization goals, even though this is usually not accepted.

Citizens Against Rent Control v. Berkeley

[454 U.S. 290] 1981 United States Supreme Court (cb451)

• Invalidated ordinance limiting personal contributions to committees formed to support or oppose ballot measures.
• Corruption interest is not the same as in candidate contributions; here there is no risk of "buying" the candidate.

Brown v. Hartlage

[456 U.S. 45] 1982 United States Supreme Court (cb452)

• Candidate promised to reduce his salary if elected; accused of violating corrupt practices act.
• Court overturns application of law in this case, applies strict scrutiny.

Wednesday, February 4, 2003 (Class 14)

• Compelled speech and rights of association: uses some general methodology as prohibited speech.

West Virginia State Board of Education v. Barnette

[319 U.S. 624] 1943 United States Supreme Court (cb385)

• Issue: can students be compelled to say pledge of allegiance and salute the flag?
• Court holds rule unconstitutional. Rule requires people to affirm something which they might not believe.
• State's interests
  • "National unity": but court says this is bad fit, government could use persuasion insteaad.

Wooley v. Maynard

[430 U.S. 705] 1977 United States Supreme Court (cb386)

• Can state force someone to show "live free or die" on license plate?
• "State pride" justification, not very weighty.
• First Amendment interest in not expressing state's ideas on car.

Red Lion Broadcasting Co. v. FCC

[395 U.S. 367] 1969 United States Supreme Court (cb389)

• Upheld regulation of "fairness doctrine" on broadcast media. Relies on scarcity in spectrum.

Miami Herald Pub. Co. v. Tornillo

[418 U.S. 241] 1974 United States Supreme Court (cb389)

• Strikes down "right of reply" in newspaper as unconstitutional under First Amendment
• Compelled speech
• Content discrimination: imposes burden on press when it decides to criticize politicians

Pruneyard Shopping Center v. Robins

[447 U.S. 74] 1980 United States Supreme Court (cb389)

• Pruneyard is held under California Constitution to allow students to collect petition
• Question is whether California Constitution thus violates Pruneyard's First Amendment rights
• Court holds requirement is constitutional
• Unlikely for speech to be confused with that of mall
• Mall can disclaim speech
• There could be a Fifth Amendment property right claim; but court notes this isn't that much intereference

Pacific Gas & Elec. Co. v. Public Util. Comm'n

[475 U.S. 1] 1986 United States Supreme Court (cb390)

• Electric company required to include "right of reply" to messages in letters in bill without increasing weight of bill
• Court holds requirement unconstitutional, needs to distinguish Pruneyard

Turner Broadcasting System, Inc. v. FCC

[512 U.S. 622] 1994 United States Supreme Court (cb392)

• FCC requires cable carriers to include local broadcast TV.
• Turner challenges regulation under First Amendment, says it interferes with editorial discretion.
• Supreme Court rejects strict scrutiny approach.
• "Must carry" rule is supposedly "purely content neutral."
• Government justification: preserve broadcast TV, promote multiplicity of sources, promote fair competition
• Remands for fact-finding on whether broadcasters would suffer without must-carry provision and harms cable company will suffer.

Turner Broadcasting System, Inc. v. FCC

[520 U.S. 180] 1997 United States Supreme Court (cb394)

• Returns from remand, Court upholds factual findings as sufficient.

Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston

[515 U.S. 557] 1995 United States Supreme Court (cb394)

• Parade has expressive and associational rights. Means you also have right not to associate with certain individuals.
• Shopping center in open to all, unlike parade participants.
• Also, Pruneyard there was not expressing anything, message would not be confused with mall.

Associational Rights

NAACP v. Alabama

[357 U.S. 449] 1958 United States Supreme Court (cb399)

• State sues NAACP regarding corporate issue, tries to discover membership list.
• Court holds that discovery of membership list is only marginally relevant, and discovery would inhibit associational rights which are a necessary part of First Amendment.

Shelton v. Tucker

[364 U.S. 479] 1960 United States Supreme Court (cb400)

• School Board required every public school teacher to disclose every organization they had been part of for past five years
• Step 1: First Amendment interest? Yes--asociational rights.
• Step 2: state interest? Some affiliations might be relevant, but not narrowly tailored here.
• Thus unconstitutional.

Gibson v. Florida Legislative Investigation Committee

[372 U.S. 539] 1963 United States Supreme Court (cb402)

• Head of NAACP subpoaned to testify before Florida legislature on communist issue, legislature requests person to bring lists with him, he refuses, held in contempt.
• Court reverses conviction.

Buckley v. Valeo

[421 U.S. 1] 1976 United States Supreme Court (cb404)

• First Amendment associational rights are implicated in disclosure of donations, but Court finds disclosure justified by sufficient state interests.

• Similar reasoning for litigation, boycott cases.

Elfbrandt v. Russell

[384 U.S. 11] 1966 United States Supreme Court (cb415)

• Court struck down loyalty oath requirement for teachers.
• Plaintiff was quaker who would not take oath.
• State needs to have something about intent to break law, etc..

Keyishian v. Board of Regents

[385 U.S. 589] 1967 United States Supreme Court (cb417)

• Oath requires person to disclaim membership in "seditious" organization
• Too vague, can't penalize simple membership

Cole v. Richardson

[405 U.S. 676] 1972 United States Supreme Court (cb418)

• Upholds Massachusetts oath requirement that civil servant will uphold the constitution, and oppose overthrow.
• Didn't involve associational rights, thus constitutional.

Abood v. Detroit Board of Education

[431 U.S. 209] 1977 United States Supreme Court (cb420)

• Issue of whether objecting fee-paying workers can be forced to pay for union's ideological activities
• Plaintiff claims he doesn't believe in unions or ideological activities of unions

Monday, February 9, 2003 (Class 15)

Board of Regents of the University of Wisconsin v. Southworth

[529 U.S. 217] 2000 United States Supreme Court (cb422)

• Student challenging allocation of activity fees to causes he disagrees with.
• Distinguishes Keller and Abood: no way to identify "core" mission versus other things.

Roberts v. United States Jaycees

[468 U.S. 609] 1984 United States Supreme Court (cb426)

• Minnesota enforces anti-gender discrimination law on Junior Chamber of Commerce, organization claims First Amendment associational rights are being infringed.
• Court notes that First Amendment is implicated, this does interfere with internal structure of organization.
• For statute to be deemed constitutional, state must show compelling state interest.
• Eradication of discrimination is compelling state interest.
• Second step: was regulation unrelated to suppression of ideas? I.e., viewpoint neutral?
• Court holds regulation was, in fact, unrelated to suppression to ideas.

Boy Scouts v. Dale

[530 U.S. 640] 2000 United States Supreme Court (cb427)

• New Jersey applied public accommodation law, which banned discrimination on sexual orientation, on boy scouts.
• Court holds New Jersey statute unconstitutional as applied to Boy Scouts.
• Difference from Roberts: Boy Scouts has expressive message, homosexual conduct is inconsistent with message.

Overview

• What is regulated?
  • Speech
    • Categorizing
      • High value
        • Need compelling interest
        • Narrow fit
      • Lesser/low value (defamation--could also be high value)
      • Outside First Amendment altogether (e.g., obscenity)
  • Speech and Conduct
    • What is regulation aimed at? If suppressing speech, then go back to speech restrictions.
    • Otherwise, O'Brien test
  • Government context
    • Traditional public forum
    • Restricted environment
    • Subsidy

Religion

• Two constitutional clauses
  • Free exercise (government can't interfere with practice of religion)
  • Anti-establishment (government can't favor religion)

• Widmar v. Vincent: school allowed use of building for activities, but not worship, Court strike down as content discrimination.
• Lambs Chapel: similar idea, nonviewpoint neutral regulation prohibiting religious uses.
• Good News Club: can't discriminate against religion, even for proselytizing.

McDaniel? v. Paty

[435 U.S. 618] 1978 United States Supreme Court (cb505)

• Court invalidated law that prevented clergy from serving in office.
• Court applies strict scrutiny, holds this to be burden on religion.
• Interest not that compelling, fit not so good either.

Church of Lukumi Babalu Aye v. City of Hialeah

[508 U.S. 520] 1993 United States Supreme Court (cb505)

• Religion includes animal sacrifice.
• City council banned ritual slaughter.
• Superficially, appears to be 'content neutral', but exceptions exist.
• Bad fit: doesn't deal with cruelty to animals.
• Looks at words of statute: finds target in "ritual" "sacrifice" etc..

Braunfeld v. Brown

[366 U.S. 599] 1961 United States Supreme Court (cb511)

• Orthodox Jew challenges Sunday closing law, which puts him at competitive disadvantage for business.
• Court holds that law is aimed at conduct, not belief.
• Doesn't seem to target specific religion, upheld as constitutional.
• Freedom to act is different from freedom to believe.

Sherbert v. Verner

[374 U.S. 398] 1963 United States Supreme Court (cb512)

• 7th Day Adventist refused unemployment compensation because she wouldn't work on Saturday.
• Court holds denial of benefits unconstitutional.
• First question: does South Carolina law burden religion? Answer, yes, must make decision between religion and benefits.
• State interest: preventing fraud.
• Unconstitutional condition.
• Harlan dissent: state does not have to carve out special exception, just has to let her believe what she wants. Doesn't have to give her subsidy to make it easier.

Wisconsin v. Yoder

[406 U.S. 205] 1972 United States Supreme Court (cb515)

• Yoder fined for refusing to send children to school past 8th grade.
• Court holds law as applied to Amish unconstitutional.
• Court looks into substance of religion itself and finds it bonafide, sincere religion, and school belief is deeply religious.
• Sending children to high school interferes with religious beliefs.
• Thus, strict scrutiny is triggered--"interest of highest order."
• State interest: universal education.
• But whether student stops at 16 or 14 won't advance interest that much.

United States v. Lee

[455 U.S. 252] 1982 United States Supreme Court (cb517)

• Amish plaintiff does not want to pay social security tax for employees.
• Amish believe it is sinful not to care for elderly.
• Court holds social security tax to be constitutional, meets compelling state interest.

Bob Jones University v. United States

[461 U.S. 574] 1983 United States Supreme Court (cb517)

• University loses tax-exempt status because it is racially discriminatory; Court holds eliminating racial discrimination is sufficently compelling interest.

Goldman v. Weinberger

[475 U.S. 503] 1986 United States Supreme Court (cb518)

• Orthodox Jew challenges regulation that prohibits him from wearing yarmulke.
• Court defers to military.
• Brennan dissent: this isn't even rational review, this is sub-rational review.

O'Lone v. Estate of Shabazz

[482 U.S. 342] 1987 United States Supreme Court (cb519)

• Same issue, in prison, prison wins.

Bowen v. Roy

[476 U.S. 693] 1986 United States Supreme Court (cb519)

• Plaintiff does not want child to be assigned social security number for food stamps, because it will rob child of spirit.
• This is government action, not forcing individual. First Amendment doesn't require government itself to accommodate in how it does things.

Lyng v. Northwest Indian Cemetery Protective Association

[485 U.S. 439] 1988 United States Supreme Court (cb520)

• Forest Service wants to build road on sacred Indian land.
• Court holds that First Amendment only prevents government from prohibiting practice of religion through coercion.

Employment Division v. Smith

[494 U.S. 872] 1990 United States Supreme Court (cb522)

• Native American challenging peyote ban; not criminal prosecution, however.
• Individual fired for using peyote, denied unemployment compensation, challenges denial of benefits.
• Because religious practices are involved, First Amendment is implicated.
• But First Amendment is not offended by incidental effects of general applicable law, not aimed at religious practices.
• Facially neutral laws must violate "some other part" of First Amendment before they will be struck down.
• Sherbert is limited to unemployment cases.
• No balancing.
• Neutral laws appear to get a rationality test.
• O'Connor concurrence: fact that it is of general applicability is irrelevant; even under scrutiny the statute can be upheld.
• Blackmun dissent: not compelling, they're not really enforcing this statute.
• Once interest is not compelling, then government must make exception for bonafide religious use.
• After this decision, Oregon and United States made exception for peyote use.

Techniques for Rejecting Religious Claims

• Administrative issues
  • Military Shabazz
  • Prisons Goldman
• Interest in uniformity
  • Braunfield
  • Lee
  • Bob Jones University
• No real infringement anyway
  • Lyng
  • Roy

Wednesday, February 18, 2003 (Class 16)

• United Nations Convention Against Genocide--passes First Amendment scrutiny?
• Argument against: looks like standard is different from Brandenburg. Could be overbreadth, vagueness.
• Argument for: court could interpret treaty -- "direct" sounds like "imminent"
• Start with Brandenburg

• Exam will be four essay questions, not unlike what we've seen.

Establishment Clause

• Default test: Lemon v. Kurtzman [403 U.S. 602] 1971 United States Supreme Court (cb535).
  • Does statute have secular purpose?
  • Primary effect to advance or inhibit religion?
  • Excessive entanglement
• School cases
  • School attendance is mandatory--captive audience
  • Children are impressionable
  • Even without coercion, there may be exclusion

Zorach v. Clauson

[343 U.S. 306] 1952 United States Supreme Court (cb536)

• New York City had program that permitted release for religious instruction part of the day.
• Court holds it constitutional: no evidence of coercion. Government doesn't have to be hostile to religion.
• More matter of accommodation, not establishment.

Engel v. Vitale

[370 U.S. 421] 1962 United States Supreme Court (cb538)

• Nondenominational mandatory prayer in school.
• Court holds prayer unconstitutional, religious activity; inherently coercive with children.
• Government is favoring prayer, establishment clause is designed to keep government out of religious activity.

Abington School District v. Schempp

[374 U.S. 203] 1963 United States Supreme Court (cb539)

• School required reading lord's prayer, unconstitutional.

Wallace v. Jaffree

[472 U.S. 38] 1985 United States Supreme Court (cb540)

• Alabama changes law from "minute of silence for meditation" to "minute of silence for meditation or prayer."
• Court holds new law unconstitutional.
• O'Connor: state was communicating message supporting prayer, but could be okay if state just permitted prayer.

Lee v. Weisman

[505 U.S. 577] 1992 United States Supreme Court (cb541)

• Principal invited clergy to give nonsectarian benedictions at graduation.
• Unconstitutional
• Pressure on students to conform
• Entanglement--too much involvement with religion, even though non sectarian
• Blackmun: no need to prove coercion, not business of government to articulate favorism towards any set of beliefs.
• Souter: shouldn't need coercion, because free exercise clause already bars coercion, and establishment clause must mean something more.
• Scalia: if there is no legal coercion, then it's okay.

Santa Fe Independent School District v. Doe

[530 U.S. 290] 2000 United States Supreme Court (cb548)

• Each case, school tries to get around the last Supreme Court ruling. But by definition, this casuse problem, because school is trying to figure out how to get students to pray.
• Students choose fellow student to give address at games that is always a prayer.
• Unconstitutional, still sending the same message, exclusion/state-sponsored religion.

• Good News Club: viewpoint neutrality problem to exclude religious use from school.
• Stone v. Graham [449 U.S. 39] 1980 United States Supreme Court (cb550): unconstitutional to have Ten Commandments in classroom.

Edwards v. Aguillard

[482 U.S. 578] 1987 United States Supreme Court (cb551)

• If evolution was taught, then creationism had to be taught.
• Unconstitutional under Lemon test.
• Secular purpose is sham.

Lynch v. Donnelly

[465 U.S. 668] 1984 United States Supreme Court (cb557)

• Town has Christmas display with various "secular" objects (Santa Claus, tree, etc.) including a creche.
• Court did not follow Lemon, "not bound by any one test."
• Court finds display constitutional, says this is a secular display.
• O'Connor concurrence: entanglement and "stamp of approval"--doesn't meet that test.

Allegheny County v. American Civil Liberties Union

[492 U.S. 573] 1989 United States Supreme Court (cb563)

• Free-standing nativity scene in County Court, owned by Catholic Organization. Second display with Christmas Tree, Menorah, and salute to liberty.
• Majorities find nativity unconstitutional, other display constitutional.
• Seems to be the "kitsch" test.

Capitol Square Review Board v. Pinette

[515 U.S. 753] 1995 United States Supreme Court (cb565)

• Klan wants to erect cross in public square.
• Court finds unconstitutional content-based denial of permit.
• Public forum notion
• Souter concurrence: government can disclaim, so it doesn't appear to be government speaking.
• O'Connor: would reasonable observer view this as endorsement?

Financial Aid

• Separationist view
• Neutrality view

Everson v. Board of Education

[330 U.S. 1] 1947 United States Supreme Court (cb568)

• New Jersey law permitted school boards to pay transportation to non-public schools.
• Subsidy goes to children/parents, not to schools, thus constitutional.

Mueller v. Allen

[463 U.S. 388] 1983 United States Supreme Court (cb572)

• Taxpayers could deduct educational expenses, benefitted private school students much more than public school.
• Rehnquist changes second prong of Lemon test: does it advance sectarian aims of religious schools? Thus it passes test.
• No entanglement, even though state officials are making sure that qualifying textbooks aren't inculcating religious beliefs

Tilton v. Richardson

[403 U.S. 672] 1971 United States Supreme Court (cb577)

• Student can use financial aid to attend sectarian school.

Bowen v. Kendrick

[487 U.S. 589] 1988 United States Supreme Court (cb579)

• Federal grants to public and nonpublic organizations for premarital/sexual relations counseling.
• Rehnquist applies Lemon test:
  • Secular purpose is teenage pregnancy
  • Primary effect: also mentions nonreligious institutions, thus impact on religion is incidental
  • Assumes funds won't be spent for religious counseling

Zobrest v. Catalina Foothills School District

[509 U.S. 1] 1993 United States Supreme Court (cb581)

• Federal funding for sign-interpreter in religious schools
• Court holds funding constitutional, says it doesn't create incentive to go to private religious school.

Rosenberger v. Rector and Visitors of the University of Virginia

[515 U.S. 819] 1995 United States Supreme Court (cb581)

• Mandatory student fee; University refuses to fund religious student group and publication.
• Court holds funding magazine does not violate establishment clause, and thus First Amendment violation.
• Program itself is facially neutral, is not set up to favor religion.

• Factors considered
  • Generality of benefitting class -- widely benefitted class is likely permitted, this is neutral
  • Funding mechanism -- decentralized (through parents) or centralized (through school)

Agostini v. Felton

[521 U.S. 203] 1997 United States Supreme Court (cb583)

• Public employees served as instructors in private schools in remedial programs.
• No establishment because it doesn't create incentive.
• Constitutional.

Mitchell v. Helms

[530 U.S. 793] 2000 United States Supreme Court (cb591)

• Program to fund computers in public and private elementary school.
• Thomas test: can religious indoctrination reasonably be attributed to the government?
• If aid is to broad range of groups, then it looks neutral.
• O'Connor (fifth vote): why invent new test?
  • As long as aid is offered on neutral basis, no establishment problem--this is inconsistent with precedent. Instead look at Agostini.

Zelman v. Simmons-Harris

[122 S.Ct. 2460] 2002 United States Supreme Court (cb592)

• Financial aid to kids based on parents' income in underperforming district, can be used wherever you want (i.e., tuition vouchers).
• Quasi-Lemon analysis
• Secular purpose -- yes.
• Court upholds as constitutional.
• Souter dissent: tuition voucher for religious schools is just taxpayer support for religious institutional.
  • Tuition obviously pays for secular on religious education.

• Problem with Lemon test: entirely malleable.

Board of Education of Kiryas Joel v. Grumet

[512 U.S. 687] 1994 United States Supreme Court (cb603)

• Hasidic Jews didn't have enough people to have special needs in their own schools, but special-needs kids couldn't survive in public schools.
• Legislature gerrymandered special school district just for Hasidic Jews.
• Court holds unconstitutional: village was not drawn neutrally, instead was designed for sectarian advantage.

• Accommodation gets more difficult as it gets more difficult to find what you are trying to accommodate.
• Also can't run afoul of coercion principle.
• Can't be for specific group (e.g., Kiryas Joel)