First Amendment - The Great Writ

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					FIRST AMENDMENT OUTLINE
                                                                              Prof. Aaron Caplan – Fall 2011


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

Generally:
   - Language:
            o   Five or six freedoms?
            o   Why group these together?
                          Brennan Center for Justice: “six textual clauses” are “concentric circles” RE: “private conscience.”
            o   “Abridging” vs. “prohibiting”  a distinction without a difference?
    -   Applies to:
            o Actions of the Federal government.
            o Actions of the States
                     History of incorporation:
    -   Basic History
            o Intent of the First Amendment: very little historic record about the Framers’ intentions
                underlying the First Amendment at the time it was adopted.
                     FREE SPEECH CLAUSE
                             Prior restraints?
                                         o    Common under Henry VIII: submit to censor for approval before publication.
                                         o    Everyone agrees prior restraints prohibited by First Amendment.
                                         o    BLACKSTONE: prohibits prior restraints, but not subsequent punishment.
                                   Criticism of government?
                                                                             st
                                         o    John Peter Zenger trial (pre-1 Amendment) (1735): German printer
                                              prosecuted for seditious libel after printing an anonymous critic’s partisan
                                              scribes targeting Gov. Cosby. Zenger’s lawyer argues that printing the truth
                                              should not be a criminal act; jurors ignore jury instructions, refuse to convict.
                                                       Seditious libel: makes the king or the king’s government look bad;
                                                        truth not a defense: “the greater the truth, the greater the libel.”
                                         o    Sedition Act of 1798:
                                                       Criminalizes criticism of President Adams (Federalist), but not VP
                                                                                                                     st
                                                        Jefferson (anti-Federalist). Passed by many who ratified 1 A.
                                                       Fear of uprising similar French Revolution (guillotines, etc.).
                                                       14 tried and convicted, including Rep. Matthew Lyons (VT) for
                                                        criticizing Adams’ “thirst for power”.
                                                       KY, VA resolutions ghostwritten by Jefferson/Madison condemn Act.
                                                       Jefferson elected President after Sedition Act becomes political hot
                                                        topic, pardons all convicted; Sedition Act sunsets; Congress pays all
                                                        fines. Jefferson refuses to use as tool.
                                                       Condemned by NEW YORK TIMES v. SULLIVAN.
            o   History of incorporation
                     Applies to actions of Federal government by restraining Congress’ power.
                        Restraints on acts of executive/judicial branches through Due Process Clause of
                        the 5th Amendment.
                      Applies to actions of the States following incorporation under the Due Process
                       Clause of the 14th Amendment (Fundamental Right  “liberty”).
                                BARRON v. BALTIMORE (1833): Bill of Rights doesn’t apply against States.
                                PATTERSON v. Colorado (1907): leaves question open.
                                                                         st
                                Prudential Ins. Co. v. CHEEK (1922): 1 A. doesn’t apply against the States.
                                GITLOW v. New York: Assumes 1st A. applies against States.
                                                                                               st
                                WHITNEY v. California (1927): cites GITLOW to say “settled” 1 applies to States.
                                         th
         o   FREE SPEECH CLAUSE: A 20 CENTURY INVENTION
                                                                             th                          th
                     History of incorporation explains why the FSC is a 20 Century invention. Few 19 Century cases
                      relating to speech; picks up steam during World War I (Espionage Acts)
                     Political background:
                                Fear of Communism arising out of European immigrant communities. McKinley
                                 assassinated in 1901 by anarchist, USSC of Lochner Era pushing back against leftist ideas
                                 proposed by legislatures.
                                World War I: Pres. Wilson SOTU calls for censorship power due to “no adequate Federal
                                 laws” to prevent “creatures of passion and disloyalty.” US Enters WWI in 1917.
                                      o THE SPIRIT OF ’76 (1917): film on War of 1812 seen as disparaging British, now
                                            allied w/U.S. Film seized, filmmaker prosecuted under Espionage Act.
                                      o See also: SCHENCK, DEBBS, MASSES PUB. Co., ABRAMS, GITLOW, WHITNEY




FREE SPEECH CLAUSE
RATIONALES FOR PROTECTING FREE SPEECH
  -   Recurring themes:
         o How can we have laws like the Sedition Act of 1798, yet proclaim we love free speech?
  -   Core of the First Amendment is political speech.
  -   Theories
         o   Marketplace of Ideas
                      E.g.,
                                 Holmes in ABRAMS: “the best test of truth is the power of thought to get itself accepted
                                  in the competition of the market… That, at any rate, is the theory of our Constitution. It
                                  is an experiment, as all life is an experiment.”
                                 Anything else is paternalism. (E.g., 44 LIQUORMART)
                                 Legitimizes democratic self-government.
                      Criticisms:
                                 Will “market” lead to truth?
                                 What if we know the truth? Ephemeral concept. But better than letting gov’t decide.
                                 Doesn’t always work: racism, sexism, etc., still persist; Holocaust, etc.
         o   Safety valve theory
                      Fear breeds repression; oppression results in violence. Can’t dissuade unless views are expressed
                       and countered.
         o   Self-determination / self-fulfillment:
                      Speech reflects thought; thought and its expression are important for people to determine and
                       define who they are.
                      Letting people speak is as important as letting them think.
                      Criticism: self-fulfillment might come at expense of destroying others’ self-worth.
         o   Democratic Self-Gov’t
                      Core of the First Amendment: Protect political speech, criticisms of gov’t policies and officials
                                 LEGITIMACY
                      Provide robust debate of the issues affecting self-government.
STATUTORY INTERPRETATION OF FREE SPEECH CASES
   -   DOCTRINE OF INDEPENDENT REVIEW
            o   BOSE: in free speech cases, appellate courts re-examine the facts closely in order to protect speakers.
   -   CONSTRUCTION OF THE STATUTE
            o   Federal: USSC has final say on interpretation of Federal statutes/law.
            o   State: combination of statute and authoritative interpretation given to it by the highest court of state
                (GOODING v. WILSON)
   -   VAGUENESS
            o   Arises from Due Process principles. Violates DPC if you can’t tell what’s prohibited/permitted.
                                        st
                         Rationale in 1 A: chills speech, acting as a sort of prior restraint.
            o   Two-step process:
                         1. Would a person of ordinary intelligence have a reasonable opportunity to know what the law
                          prohibits? [GRAYNED v. CITY OF ROCKFORD]
                                   COATES v. CITY OF CINCINATTI: offense for 3+ people to assemble on sidewalk and
                                    conduct themselves in a manner “annoying” to passers-by.
                         2. Does the law encourage arbitrary or discriminatory enforcement? [GRAYNED]
                                   Rule does not apply if there are explicit instructions to those enforcing it.
                         3. CAPABLE OF A NARROWING CONSTRUCTION?
                                   Federal: USSC has final say on interpretation of Federal statutes/law.
                                   State: combination of statute and authoritative interpretation given to it by the highest
                                    court of state (GOODING v. WILSON)
   -   OVER/UNDERBREDTH
            o   Overbredth test: prohibits real and substantial amount of protected expression (RODERICK v. Oklahoma)
                       Even if speech at issue would be unprotected by a narrowly-drawn statute, speaker can challenge
                        law as overbroad and escape application in the instant case.
                                                                  st
                       JEWS FOR JESUS: LAX reg prohibits any 1 Amendment activity. Intended to target religious
                        pamphleteers, but drawing that narrowly = content-based. As written, prohibits all speech.
                       SCHAD v. Mt. Ephraim: Ordinance prohibits “live entertainment”, intending to target strip clubs,
                        but on its face prohibits even Shakespeare plays.
                       NEW YORK v. FERBER: child porn ban argued that it would prohibit Nat’l Geographic mags. Every
                        statute will be imprecise, won’t invalidate unless substantial danger.



EXCEPTIONS: UNPROTECTED AND “LESS PROTECTED” SPEECH
GENERALLY
   -   Conduct is not protected, unless it’s being restricted for its communicative value.
   -   CHAPLINSKY v. New Hampshire: “There are certain well-defined and narrowly-limited classes of speech, the
       prevention and punishment of which have never been thought to raise any Constitutional problem.”
           o Unclear whether CHAPLINSKY’s line RE “the lewd and the obscene, the profane, the libelous, and the
                insulting or ‘fighting’ words – those which by their very utterance inflict injury or tend to incite an
                immediate breach of the peace” is extending the rationale to all categories or just fighting words, but
                interpreted as the latter.
           o Each of these categories has largely been circumscribed after it was defined: fighting words rarely upheld,
                defamation largely cut down in context of speech relating to public actors/issues, obscenity has many
                procedural hurdles, etc.
                          Profanity no longer recognized as a category (e.g., COHEN v. CALIFORNIA: “fuck the draft”).
   -   CATEGORIES (“proscribable”, “unprotected”, or “less protected”):
            o   Incitement
            o   True threats
            o   Fighting words
            o   Obscenity
            o   Child pornography
            o   Torts:
                         Defamation
                         IIED
                         Privacy torts
            o   Criminal solicitation
            o   Commercial Speech
            o   Government as proprietor
                         Student speech
   -   POLICY ISSUE: does new technology change these categories? Not really.
           o Nothing about new technology really changes the application of these rules.
           o FIGHTING WORDS: difficult to do on the internet. Generally only applies in face-to-face.
           o INCITEMENT: might reach more targeted audience. But imminence? SCHENCK’s leaflet was in writing.
                Twitter and BART shutdown.

INCITEMENT
   -   Historic cases:
            o “Bad tendency” (early 1900s): if words had bad tendency to  illegal act, unprotected.
            o MASSES PUBLISHING CO. v. Patten (1917): Prior restraint by Postmaster. Learned Hand district court
                 opinion rejecting application of Espionage Act to picture because it did not call on anyone to do anything.
                                                       st    nd
                 Narrow interpretation because of 1 A. 2 Cir reverses.
            o SCHENCK v. United States (1919): pamphlet comparing draft to slavery distributed to people who had
                 already been drafted, encouraging them to refuse the draft.
                          HOLMES reads intent into saying the words: “would not have been said unless it had been
                           intended to have some effect.”
                                                  st
                          HOLMES suggests 1 A. not limited to prior restraint, but does not hold.
                                    “FIRE IN A CROWDED THEATER”  depends on context (wartime).
                          CLEAR AND PRESENT DANGER: gov’t doesn’t have to wait for danger to materialize.
                          Has not been explicitly overruled.
            o DEBBS v. United States (1919 – one week later): perennial Socialist candidate for President arrested after
                 praising speeches of imprisoned persons. No application of C&PD test, no analysis of intent.
            o ABRAMS v. United States (1919): Yiddish leaflets tossed off roofs of tenement buildings. USSC hears after
                 summer break following SCHENCK.
                          HOLMES changes position after discussion with LEARNED HAND, law review article (“Free Speech
                           in Wartime”). Thinks D’s being prosecuted for beliefs.
                                    Strong support for marketplace of ideas: “theory of our Constitution: an experiment, as
                                     all life is an experiment […] When men have realized that time has upset many fighting
                                     faiths, they may come to believe more than they believe the very foundation of their
                                     own conduct that the ultimate good desired is better reached by free trade in ideas.”
                                    “A silly leaflet by an unknown man”.
                          C&PD test refined:
                                    Timing: “clear and present” now “bring about forthwith” (now)
                                    Gov’t: right to prevent now seek to prevent; look to intent (“silly leaflet by an unknown
                                     man”)
                                    Must be serious, realistic danger (“certain” result “to save the country”)
                          Overruled by USSC in BRANDENBURG, replacing C&PD test with “incitement to imminent lawless
                           action” standard.
                                                                                                                        st
            o GITLOW v. New York (1925): peacetime case involving state statute prohibiting anarchist speech. 1
                 assumed to apply to states, but great deference to states. Under similar C&PD/”bad tendency” test,
                 convicted.
                          HOLMES DISSENT: this isn’t C&PD; no imminence because small group, no realistic chance of
                                                  st
                           dangerous result. 1 is a Fundamental right, should be protected against incursion by majority.
                                    Hypocrisy with regard to LOCHNER? Issue is whether the majority has the tools to be
                                     right; legitimacy of majority. First Amendment is fundamental (found in Constitution!)
                                     [Double check on this]
            o WHITNEY v. California (date): syndicalism statute. [NEED MORE ON THIS CASE]
                          BRANDEIS concurrence: ‘safety valve’ theory to protect speech, suppression is irrational and
                           cowardly, need to protect democratic self-gov’t/mktplace.
            o YATES v. United States (1957): C&PD test requires that “those to whom the advocacy is addressed must be
                 urged to do something rather than believe in something.”
            o DENNIS v. United States: turn to “bad tendancy” test instead of C&PD.
   -   MODERN INCITEMENT TEST [BRANDENBURG]
            o    BRANDENBURG v. Ohio (1969): new test requires a showing of intent [maybe – unclear] to cause imminent
                 lawless action, and a high degree of likelihood [not just maybe] lawless action will result. Abstract teaching
                 not same as preparing group for violence.
                          F: prosecution under syndicalism statute. Television reporter invited to KKK rally, speaker suggests
                           “revengeance” on minorities, announces march on Washington. USSC overturns conviction in per
                           curiam decision, overturns WHITNEY.
                          HESS v. Indiana: “we’ll take the fucking street later” not imminent; political.
                          NAACP v. CLAIBORNE HARDWARE: “if we catch any of you going into one of them racist stores,
                           we’re gonna break your damn neck…” not imminent and not specific.
                                                                     th
                          PALADIN PUBLISHERS (HIT MAN case): 4 Cir. says how-to manual on being a hit-man was
                           incitement; not appealed to USSC.



TRUE THREATS
   -   Few USSC cases on this area.
   -   Rationale:
             o Causes emotional distress / psychological injury
             o Changes behavior of victim (perhaps radically)
             o Potential to reduce possibility of violence.
                             Doubtful: safety valve theory suggests otherwise. Potential to intervene when threat made (but if
                              protected, could intervention happen legally?); if really intend to follow through, possibility of
                              prosecution for threat won’t happen.
   -   WATTS v. United States: “if they make me carry a rifle, the first man I want to get in my sights is LBJ” was protected
       political hyperbole – not a true threat.
   -   KILBORN (Wash. Sup. Ct.):
             o Threat must involve violence. Serious bodily injury or death.
             o Against a specific target. Someone has to be specified, or rationale doesn’t work.
                             Unclear whether V needs to learn of the threat.
             o Imminence? Unclear whether needs to be imminent threat. Can be conditional/future.
             o Doesn’t need:
                             Threat to actually occur.
                             Fear actually generated in victim.
                             Speaker to actually intend to carry out.
                             Intent to cause fear in V: RP in speaker’s position would foresee RP perceiving as threat.
                                                             rd
                             Direct communication to V. 3 party communication OK.
   -   Distinguishing True Threats and Incitement
             o Topic of speech: Incitement encourages law violation, while threats threaten death/bodily injury
             o Audience: Incitement targets people who might agree; threats target unwilling people who fear speaker.
             o Gov’t interest: Incitement interest is public order; threat is personal security and well-being.
             o Preventative vs. punitive: incitement: gov’t acts to prevent imminent result; threats punish fear imposed.
             o Intent: incitement is intended to have others act unlawfully; threat is unclear: intent to create fear, or is it
                  strict liability?

FIGHTING WORDS
   -   Rule: language directed at a person which has slight social value and which, upon its utterance, is likely to provoke an
       immediate breach of the peace against the speaker.
            o NOT a heckler’s veto: worried about violent reaction, but have to protect speaker.
            o Unclear what words qualify. Doctrine is rarely applied by USSC, always finding some other way out.
            o Reasonable person standard: theory assumes there’s point where RP would resort to violence.
   -   Rationale: Balance between interest in social order/morality & speech “of such slight social value as a step to truth”
   -   CHAPLINSKY v. New Hampshire (1942): Protester arrested after calling police officer “fascist,” a very charged word at
       the time given history: seems like calling him an enemy of the state. Categorically unprotected.
            o Key quote: “There are certain well-defined and narrowly limited classes of speech, the prevention and
                 punishment of which have never been thought to raise any Constitutional problem. These include the lewd
                 and the obscene, the profane, the libelous, and the insulting or ‘fighting’ words – those which by their very
                 utterance inflict injury or tend to incite an immediate breach of the peace. […] such utterances are no
                     essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit
                     that may be derived from them is clearly outweighed by the social interest in order and morality.”
                               Historic/policy args: always had these laws, interest in order outweighs unproductive speech.
                               Unclear whether rationale here applies just to fighting words, or all of the enumerated categories.
                               Probably protected today – “fascist” carries more political commentary than insult now.
     -    GOODING v. WILSON (1972): Georgia statute overbroad. “Opprobius” and “abusive” language encompassed more
          than fighting words: just because the words convey disgrace, are “harsh insulting language”, or are offensive does not
          mean they tend to incite an immediate breach of the peace.
               o “You son of a bitch, I’ll cut your throat.” Unclear if this would actually be FW: overbredth decision.
     -    HOUSTON v. HILL (): “Why don’t you pick on someone your own size?”
     -    SNYDER v. PHELPS (2011): “God hates fags” etc., not directed at any particular person, contra ALITO’s dissent.
     -    STREET v. New York (1969): statute against burning/insulting flag not FW: mere offensiveness != fighting words
     -    COHEN v. California (1971): “Fuck the draft” on jacket protected speech: not directed at anyone.
     -    Police officers? All three cases involve police officers. Would this be the same today?
               o Args: police should be more capable of tolerating insults / being level headed; self-interested in using power
                     of arrest as reaction to insults – probably wouldn’t be so quick to arrest when someone else insulted; but,
                     letting people ‘mouth off’ to them can make situations get out of control.
     -    Difference from INCITEMENT: incitement involves intent of speaker to make audience tool of his speech; fighting
          words involves listener’s reaction against the speaker.

CRIMINAL SOLICITATION
    -   Didn’t really cover this one at all.

TORTS:
   - Creature of state law
               o    State action in providing a mechanism for private parties to sue each other, sometimes implicates speech.
               o    Anti-SLAPP statutes: provide a quick exit from litigation for D’s when P cannot show a reasonable
                    probability of succeeding on merits of their claim. [SLAPP: Strategic Lawsuit Against Public Participation].
     -    DEFAMATION
               o    Classification:
                              Slander = spoken
                              Libel = written
               o    Elements
                              False statement of fact
                              Of and concerning Plaintiff
                                        NYT v. SULLIVAN: statements RE police force didn’t necessarily concern commissioner.
                              Unprivileged publication to a third party
                                        Privileges: witness, litigation, fair reporting / fair comment, letters of recommendation.
                              Culpable mental state
                                        Level required varies based on the Plaintiff (defamed party) and the subject matter.
                                        ACTUAL MALICE: knew it was false or acted with reckless disregard to falsity.
                                               o Need high burden of proof: clear and convincing.
                                               o ST. AMANT v. THOMPSON: must show that speaker actually entertained
                                                   serious doubt about veracity.
                                               o HARTE-HANKS COMMUNICATIONS v. CONNAUGHTON: willful blindness to
                                                   truth can show actual malice. Failure to interview witness that both
                                                   accusing/accused said would confirm their side of the story.
                                               o Required for:
                                                            Public Officials: “has or appears to have substantial responsibility or
                                                             control over government affairs.” (ROSENBLATT)
                                                                        NYT v. SULLIVAN: police commissioner.
                                                                        Factors: high degree of discretion, important/public role,
                                                                         elected or political appointees, oversight of subordinates,
                                                                         access to media.
                                                                        NB: separate public/private life unless elected official.
                                                            Public Figures
                                                      Difficult to define. Pervasive fame and notoriety, play an
                                                       influential role in ordering society [CURTIS PUBLISHING
                                                       CO. v. BUTTS]
                                                      Rationale: Influential persons with high access to media.
                                                       Public can’t vote out, can only discuss.
                                                      BUTTS: athletic director of U of Georgia (state school), but
                                                       employed by private company. Public figure
                                                      Associated Press v. WALKER: private, well-known
                                                       conservative leads charge against Fed marshals enforcing
                                                       African-American access to school. Public Figure.
                                                      Limited purpose public figures: public figure only with
                                                       regard to a particular subject. Public figure only to extent
                                                       relating to that issue.
                                           Private Figures
                                                      GERTZ: may recover for actual damages on showing of
                                                       negligence (no strict liability), may recover punitive or
                                                       presumed damages only w/showing of actual malice.
                                                             o F: Chicago civil rights attorney served on local
                                                                  bar assoc. panels, known only in legal circles.
                                                                  John Birch Society accuses him of being a
                                                                  communist who helped railroad a police officer.
                                           Matters of Public Concern:
                                                      HEPPS: P’s burden to show falsity. Not D’s to show truth.
             Causation of harm to reputation
                        Types of damages
                             o Special: specific damage capable of being objectively assigned a dollar amount
                             o General: presumed damages (usually arising in defamation per se).
                        Defamatory meaning:
                             o Defamatory per se: accused of committing a crime, having loathsome disease.
                                   Debate over whether false accusation of being gay is defamatory per se.
o   Public Officials
             NEW YORK TIMES v. SULLIVAN: police commissioner sues NYT over ad placed by civil rights
              leaders. Ad discussed actions taken by police against students, made inaccurate statements
              relating to what songs sung by students, whether they were locked out of a cafeteria, said MLK
              was arrested seven times (he was only arrested four times). Didn’t name commissioner.
                        Concern over sedition-style laws. Criticism of gov’t being suppressed by tort law.
                             o    There must be “breathing room” for debate which is “uninhibited, robust, and wide-
                                  open.” Politics = “vehement, caustic, & sometimes unpleasant attacks.”
                             o    Protect doesn’t turn on truth: “erroneous statement inevitable in free debate.”
            ROSENBLATT: “has or appears to have substantial responsibility or control over gov’t affairs.”
            H: police lieutenant accused of fondling a woman. Controls how law is enforced (high discretion),
             but little media access.
            H: public teacher accused of being disorganized. Courts vary: public servant, great impact on
             lives, doing essential gov’t job.
            H: public school teacher accused of polygamy. Little to do with job; most courts separate
             public/private life, unless elected official: entitled to know everything.
o   POLICY ISSUES/QUESTIONS:
            Is Actual Malice a good standard?
                       Support: protects public speech about public issues/figures. Legitimizes democracy.
                       Criticisms: why does it matter what a speaker was thinking – shouldn’t it be whether
                        damage occurred?
                              o GERTZ fn: truth doesn’t catch up with a lie. Contradicts Marketplace theory.
                       What about strict liability or negligence?
                              o Cons: chilling effect, reporters would have to know w/absolute certainty.
                              o Pro: protect reputation.
                              o Good/bad of negligence standard
                                            Con: leaves some victims uncompensated.
                                            Pro: protects some speech, especially RE: politics/public concern.
                                HILL (CANADA): rejects the NYT standard. Requiring proof into a reporter’s mind
                                 requires extensive discovery (costly), and high burden of proof. Expensive, invasive of
                                 reporters’ sources. Needs more emphasis on reputation – dignity of individuals.
                      Are private lawsuits really that chilling?
                                Chilling effects of criminals vs. civil liability
                                       o Civil liability might be just as bad: bankrupts people.
                                       o No double jeopardy bar in civil cases. In criminal, you’ll only lose once and pay
                                            some money. In torts suits, just as chilling: much more money.
                                       o Criminal sanctions come with much more social impact.
                                       o More likely to be subject to civil suit – prosecutors have limited resources.
                                       o Prosecutors unlikely to go after a newspaper.
  -   INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
         o   Elements
                      Extreme and Outrageous Conduct
                      Intentionally or Recklessly
                      Cause Severe Emotional Distress
         o   HUSTLER v. FALWELL: speech concerning public figures protected against tort claims. “Outrageous” too
             vague a standard, invites jurors to punish speech they dislike.
                      F: Adult magazine publishes parody critical of famous televangelist, jokes that he lost his virginity
                       to his mother in an outhouse. Sued for IIED, USSC denies.
         o   SNYDER v. PHELPS: extended FALWELL protection to speech on matters of public concern.
                      F: Phelps’ Baptist church protests outside of soldier’s funeral with offensive signs (“God Hates
                       Fags”, “Thank God for Deal Soldiers”). No verifiable statements of fact, obeyed police instructions
                       to remain certain distance from funeral. Sued by soldier’s father for IIED. USSC denies.
  -   PRIVACY
         o   E.g., informational privacy: ability to control dissemination of info about you.
         o   INTRUSION UPON SECLUSION
                       Arises from Justice Brandeis’ law review article.
                       Elements
                                 Intrusion upon solitude or seclusion (“physically or otherwise”)
                                 Intentional
                                 Highly offensive to a reasonable person
         o   PUBLICITY GIVEN TO PRIVATE LIFE
                       Arises from R.2d Torts §652D
                       E.g., medical records, sex life, criminal records.
                       Elements
                                 Public disclosure
                                 Of private facts
                                 Highly offensive to reasonable person [fact question for jury]
                                 Not of legitimate public concern
         o   LIMITATIONS ON GATHERING/SHARING INFO
                       Statutory limitations on gathering: wiretapping, hacking, voyeurism laws
                       Statutory limitations on sharing: info held by gov’t (FOIA, Fed. Privacy Act) vs. private parties
                        (HIPAA, FERPA, ECPA, SCA, financial and banking regulations).
                       Constitutional limitations on sharing:
                                 BARTNICKI v. VOPPER: wiretaps of calls shared by radio host was protected speech.
                                  Radio host not involved in illegally recording the calls, which concerned union activists
                                  discussing violent techniques (matter of public concern).
                                 FLORIDA STAR v. B.J.F.: name of rape victim accidentally placed in public court records
                                  by court clerk, subsequently published in newspapers, violating law against publishing
                                  names of rape victims. Protected speech: right to accurately report on gov’t documents.




SPEECH IN SPECIAL CONTEXTS
COMMERCIAL SPEECH
   -   Rationale for protecting:
            o Important: may be more important than political debate for some people (VIRGINIA).
            o Anti-paternalism: let people decide. Marketplace of ideas leads to better decisions. (self-gov’t)
                                            st
            o Mechanical approach? 1 doesn’t say can abridge speech if a good reason (criticism of CENTRAL HUDSON)
            o Counterspeech might work better. (E.g., worked with Joe Camel).
            o “Greater includes the lesser” argument: if state can ban it, we should be able to regulate ads, instead.
                          PUSADOS: could ban gambling ads because could ban gambling. (overruled by 44 LIQUORMART).
                          Counter-arg: speech is different. If you can ban newsracks, you could ban newspapers (44
                                                   st
                           LIQUORMART). The 1 restricts how a gov’t may regulate.
   -   Defining “commercial speech”
            o Speaker pays for distribution? No. NYT v. SULLIVAN, would impact political speech, e.g.
            o Speaker receives money for speech? No: sale of political writings, lecture circuit, etc.
            o Takes form traditionally used for advertising? Problem: parody, etc. (e.g., HUSTLER v. FALWELL)
            o Purpose to receive more money? political speech on economic issues w/ulterior motive, e.g. (implicitly
                 rejected by CITIZENS UNITED)
            o Proposed definitions:
                          “Commercial advertising” (VALENTINE)
                          Does no more than propose commercial transaction (VIRGINIA PHARMACY)
                          Expression related solely to economics interests of speaker and audience (44 LIQUORMART)
                          Combination of factors: [BELGER v. YOUNGS DRUG PRODUCTS]
                                     Looks like traditional advertising
                                     Refers to product or service
                                     Economic motivation for speaker
   -   Historic cases
            o VALENTINE (1942): Commercial speech is entirely unprotected.
            o BIGELOW v. Virginia: statute prohibits advertising abortions. Protected speech. Looks like state trying to
                 prevent protected right by prohibiting advertising of that right.
            o VIRGINIA STATE BD. of PHARMACY v. VIRGINIA CITIZENS CONSUMER COUNCIL, INC. (1976): commercial
                 advertising protected because of alternative means. USSC backs away from VALENTINE.
                          F: Virginia banned ads of drug prices by pharmacies to prevent competition that might degrade
                           integrity of business (by degrading quality of svc and respect for profession –ads are unseemly).
                          R: free flow of info helps many people by deterring public ignorance; info might be more
                           important to some people than “the days’ most urgent political debate”; other means of
                           protecting integrity (e.g., ethics requirements); rejection of paternalism (gov’t deciding which
                           speech is best) while paternalistic (some pharmacists might advertise higher quality services).
                          REHNQUIST: we can’t prevent state from preferring small businesses via due process, so why use
                             st
                           1 A to restrict legislative judgment?
            o CENTRAL HUDSON: ban on ads of electricity prices overturned. Rationale of getting people to conserve
                 energy not advanced by prohibiting ads.
   -   CENTRAL HUDSON TEST FOR COMMERCIAL SPEECH
            o 1. Does the speech relate to LAWFUL transaction in a manner that is not FALSE or MISLEADING?
                          United States v. WILLIAMS: criminal solicitation unprotected; D was advertising child porn, even
                           though he didn’t have it. Fear of driving up demand or suggesting activity is legal.
                          Misleading: blurs truth to the point where it generates wrong impression.
                          False: objectively false. Unprotected (unlike NYT) because speaker in better position to know
                           truth, greater time to determine falsity, profit motive in ads, no chilling effect on political speech.
            o 2. Is the ban in service of a SUBSTANTIAL GOV’T INTEREST?
                          Does not need to be compelling, but more than merely acceptable [legitimate].
                          Rarely challenged. Courts typically accept the proffered interest (e.g., aesthetic regulations of
                           billboards for beauty or property value purposes).
                                     Libertarian arg: if advertising a lawful service, how can gov’t have a substantial interest?
            o 3. Does the regulation DIRECTLY AND MATERIALLY ADVANCE that interest?
                          State has burden to prove.
                          E.g., PHARMACY: banning ads of pharmaceuticals did not advance interest of protecting integrity
                           of profession because alternative means existed (ethics rules).
                          44 LIQUORMART v. Rhode Island: prohibited advertising of liquor in order to keep prices high to
                           reduce drinking.
                                     If regulating for paternalistic reasons, greater scrutiny.
                                            o Stevens, Kennedy, Ginsberg wouldn’t permit. Only justification is to restrict
                                                 harms that come from the ads themselves – not paternalistic attempts to
                                                 modify economic behavior. “Prevention of a fair bargaining process.”
                                     THOMAS: steps 3 and 4 will always fail because the state can always just tax it or ban it.
                                      Never a valid interest in keeping people ignorant about a legal product. Should be
                                      protected in all cases except for falsity.
            o    4. Is the regulation NO MORE EXTENSIVE THAN NECESSARY?
                           “Reasonable fit”
                                     CENTRAL HUDSON sounds strict (“no more extensive than necessary”), but:
                                     SUNY v. FOX: defines loosely. Not necessary to have the least restrictive means.
                                            o F: Tupperware student case.
                                     LORRIDLARD: defines strictly.
                                     44 LIQUORMART: if want to keep prices high, just increase taxes.
                           Often fought over.

COMPELLED SPEECH
   -   Is there a right not to speak?
            o Gov’t can’t compel you to speak when the speech goes to the core of your spirit and beliefs. [BARNETTE,
                  overruling GOBITIS]
            o Rationale: what government wants you to say is not viewpoint-neutral. [WOOLEY v. MAYNARD]
                            Compare: PRUNEYARD SHOPPING CENTER v. ROBINS: state law requiring businesses to allow
                             expressive activity viewpoint neutral  not compelled speech. [see also GLICKMAN RE: no
                             political/ideological messages from taxes on apricots]
   -   Minersville School Dist. v. GOBITIS (1940): USSC upholds compelled recitation of pledge of allegiance over religious
       objections of Jehovas Witnesses in elementary school.
            o Role of schools: protect nationalism as a means of national security. Preserve values of civilization.
            o Judicial restraint: influence of rejection of Lochner era, fear of striking down laws based on Constitution.
                  Problem with this is that the First Amendment isn’t an unenumerated right.
   -   West Virginia State Bd. of Ed. v. BARNETTE (1943): USSC strikes down compelled recitation of pledge of allegiance.
       Freedom to differ not just about minor things (which would be “a mere shadow of freedom”), but big things.
            o In midst of rise of Nazis – fear of nationalism, now, especially symbolic.
            o Kids are there involuntarily and touches upon deeply held beliefs, not mere facts (e.g., “2+2=4” compelled).
            o “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe
                  what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to
                  confess by word or act their faith therein. If there are any circumstances which permit an exception, they do
                  not now occur to us.”
   -   WOOLEY v. MAYNARD (1977): State’s interest in displaying motto (“Live Free or Die”) on license plate did not
       outweigh right to be free of compelled speech.
            o Interest in ID of motor vehicles could be met by less-drastic means.
            o Interest in fostering state pride not viewpoint-neutral.
                            Note viewpoint neutrality problem with compelled speech. What state wants you to say is
                             different from your own views.
   -   Compelled speech through fees
            o ABOOD v. DETROIT BOARD OF EDUCATION (1977): must provide non-members with an opt-out for union
                  dues which are spent on political activity. Union members can vote and can thus be charged.
                            KELLER v. CALIFORNIA STATE BAR applies this rule to state bar associations.
                            Rule can’t be applied to gov’t spending  every citizen can vote.
            o GLICKMAN v. WILEMAN BROS. & ELLIOTT: USDA taxes on apricots spent on generic product ads. Not
                  compelled speech: no restraint on producers’ freedom to express any message, no compelled speech
                  directly from anyone, and no requirement or endorsement of any political or ideological views.



EXPRESSIVE ASSOCIATION
   -   GENERALLY:
          o Expressive and intimate association may both be present.
          o Expressive association arises from right to assemble peaceably.
            o       Early cases (e.g., WHITNEY, GITLOW) saw association as something nefarious: conspiracy!
            o       Rationale in protecting: more effective to be a group.
                              Implicit in right to associate is a right to NOT associate. [JAYCEES]
   -   BALANCING TEST FOR EXPRESSIVE ASSOCIATION:
   -   Preliminary question: does the relevant public accommodations statute apply?
   -   1. Is the group entitled to Expressive Association rights?
             o If no  intimate association
                              Substantive Due Process issue. Highly restricted to, e.g., families.
                                         DALLAS v. STANGLIN: no intimate association or expressive association in dance club for
                                          teenagers – “chance encounters on a dance floor”. Not something highly exclusive.
             o JAYCEES: O’CONNOR only justice to require this initial threshold, wants group to be “predominantly
                    expressive”. [opening group membership to commerce prevents it from being predominantly expressive].
   -   2. Does the regulation burden the group’s expressive association?
             o What are the group’s beliefs?
                              DALE: group merely needs to state what belief is, deference to group.
                                         STEVENS dissent: doesn’t see how discrimination relates to Scouting, evidence in oath,
                                          etc., of real beliefs.
             o Does the regulation adversely affect group’s ability to pursue those beliefs?
                                                                                               rd
                              NAACP: yes: chilling due to violence/harassment by public/3 parties.
                              JAYCEES: no: evidence of local groups allowing women in undermines arg.
                              DALE: deference to group’s argument that they’ll be impaired. No record of successful
                               integration (JAYCEES), person asking to be admitted as a scoutmaster (not just rank-and-file):
                               leader of consequence.
   -   3. If so, is the regulation justified anyway?
             o Content Neutral
                              JAYCEES: public accommodation laws are content-neutral.
             o Compelling gov’t interest
                                                                                 th
                              NAACP: anti-discrimination compelling (i.e., 14 A., civil war).
                              DALE: majority suggests sexual orientation not compelling, but little discussion [STEVENS dissents]
                              DOE v. REED: interest in democratic process RE: signatures on petitions.
             o Least intrusive methodology
                              JAYCEES: forcing member in is least intrusive way of dealing w/discrimination.
   -   NAACP v. ALABAMA: NAACP refuses to register as corporation; state seeks membership lists in discovery, NAACP
       offers to settle and register to avoid turning over lists, state refuses. Fear of harassment by members of public if list
       got out, as past harassment and violence had occurred.
             o State action in making list public – didn’t matter that state itself wasn’t doing harassment.
             o Compare: DOE v. REED: strong public interest in making public signatures on petition: it’s an act of
                    legislative and legal significance. Not merely association (and maybe only remote ‘association’ – passing by
                    a table and signing it, e.g.).
   -   ROBERTS v. UNITED STATES JAYCEES: public accommodations law requiring male club to accept women did not
       abridge rights to intimate or expressive association because of their large size (~400/chapter), unselective
       membership (no criteria for admission), and purpose (little, if any, political advocacy relating to men).
             o Local charters had accepted women, and associate membership available to women, evidencing
                    unlikelihood that purpose would be undermined.
             o Statute’s purpose was not to inhibit expression.
             o “Freedom of association therefore plainly presupposes a freedom not to associate.”
   -   DALE v. BOY SCOUTS OF AMERICA: BSA not required to admit homosexual as Scoutmaster. NJ public
                                                                 st
       accommodations law, as applied, would violate 1 A. right to expressive association.
             o Deference to group:
                              RE: accepting at face value group’s statement as to what it’s beliefs are. Who are courts to tell a
                               group what it’s beliefs are?
                              RE: whether its beliefs will be impacted by the statute.
             o Majority suggests equality RE: sexual orientation is not compelling, but little discussion.
             o STEVENS dissent: BSA just wants to discriminate – proffered ‘belief’ poorly founded, has little to do with
                    ‘scouting.’



GOVERNMENT AS PROPRIETOR
  -   Regulation by government as sovereign (enact/enforcing rules for society at large, controlling behavior of private
      parties) is different than government as proprietor:
           o Rules applicable to operation of government-run enterprise
           o Controls behavior of private parties related to that enterprise
  -   Government employees
           o E.g., teachers, soldiers.
           o HOLMES: “no constitutional right to be a policeman.” (McALIFFE v. CITY OF NEW BEDFORD)
  -   STUDENT SPEECH
          o    Test:
                        Students are “persons” under the Constitution (TINKER)
                        To punish speech, school must show:
                                   1. “Material” or “substantial” disruption of educational process [TINKER] OR
                                          o A. Vulgar speech and lewd conduct may cause disruption and may be
                                               circumscribed. [BETHEL v. FRASER]
                                   2. Violation of rights of others [TINKER] OR
                                   3. Speech reasonably promotes illegal drug use [MORSE v. FREDERICK]
                                          o Exception (ALITO): social/political discussion.
                        Don’t have to wait if disruption can be “reasonably forecast” (“undifferentiated fear” is not
                         enough). [TINKER]
                                   TYLER CHASE HARPER case: reasonable forecast of violence over gay rights due to
                                                      th
                                    school history; 9 Cir. case mooted by student’s graduation.
          o    TINKER v. DES MOINES INDEPENDENT SCHOOL DISTRICT: black armbands protesting Vietnam War
               protected speech. School board clearly trying to censor the message. But, highly contentious issue, real
               threat of disruption (people whose friends had died in Vietnam)  ignored by USSC.
                        FORTAS: students do not “shed their constitutional rights to freedom of speech or expression at
                         the schoolhouse gate”
                        Purpose of school: training to be citizens, “Wide exposure to that robust exchange of ideas.” Not
                         a legit goal to “foster homogenous people” (compare to GOBITIS: entire point was nationalism).
                         Schools are not “enclaves of totalitarianism.”
          o    BETHEL SCHOOL DISTRICT v. FRASER: student’s innuendo-laden speech in a school assembly endorsing
               candidate for student gov’t not protected. Vulgar, before captive audience.
                        Role of schools: teach “shared values of a civilized social order” (contra TINKER), “inculcate the
                         habits and manners of civility” and the “boundaries of socially-appropriate behavior.”
                        And TINKER: unclear whether repudiation of TINKER or just an application. MORSE notes they
                         didn’t apply TINKER in this case.
          o    MORSE v. FREDERICK: “bong hits for jesus” banner at Olympic parade during school field trip, event though
               student didn’t show up with the class. Concern by principal that the banner would be attributed to the
               school.
                        Role of schools: no discussion. This speech is just… bad.
                                   School’s interest: “Failing to act would send message to students about drugs” – but
                                    that’s the school’s interest (embarrassment).
                                          o Contra WESTSIDE BOARD OF ED. v. MERGENS: “The proposition that schools
                                               do not endorse everything they fail to censor is not complicated”
                        And TINKER: says “mode of analysis set forth in Tinker is not absolute…”, suggests FRASER didn’t
                         apply substantial disruption test of TINKER (but it kind of did).
                        ALITO concurrence: won’t extend this exception to speech that can be “plausibly interpreted as
                         commenting on any political or social issue.” Suggests Ct should not tinker w/elected school bds.
                        THOMAS concurrence: wants to overrule TINKER entirely because jurisprudence suggests
                         “students have a right to speak in schools except when they don’t.” (NB: originalism argument
                         difficult because there weren’t public schools at founding.)
                                           th
          o    TYLER CHASE HARPER: (9 Cir.) reasonable forecast of violence over gay rights due to school history; case
               mooted by student’s graduation.

GOVERNMENT SPEECH
  -   Ability to restrict depends on who’s speaking: funding recipients? Individuals in gov’t institution? Gov’t itself?
            o PLEASANT GROVE CITY v. SUMMUM: town’s receipt and agreement to post privately-donated in town-
                 operated and -maintained park would be seen by the reasonable person to be government speech. Town
                 not required to allow another religious organization to put its “seven aphorisms” monument in the park.
                       ALITO: who knows what a “monument” is? Setting up Establishment Clause fight later on.
                                  FSC restricts gov’t regulation of private speech – never restricts gov’t speech.
                       STEVENS: FSC limits gov’t speech  not a “free license to communicate offensive or partisan
                        messages” due to Establishment Clause.
                       BREYER: if gov’t discriminates on something other than the theme of the park (history), “say
                        solely on political grounds”  might be violation of FSC.
                       SOUTER: monuments not categorically gov’t speech. Sometimes gov’t maintenance of
                        monument won’t look like gov’t speech at all (e.g., sectarian markers on graves at Arlington). Ask
                        whether RP, fully informed, would understand expression to be gov’t speech (as opposed to
                        private speech gov’t permits to be placed on public land). Some monuments on public land
                        display religious symbols that don’t reflect gov’t views.
         o H: “live free or die” on license plates (not as compelled speech). Gov’t owns license plates, perhaps – it’s
             creating the forum for the message it wants to send.
                                           rd
         o BARAKA v. McGREEVEY (3 Cir.): Poet Laureat of NJ fired over 9/11 poem. Pretty clear poet laureate post
             was gov’t speech. (But court didn’t reach this issue: no deprived right because governor wasn’t authorized
             to provide him an honorarium).
-   Limited by Establishment Clause. (See, STEVENS in SUMMUM)
-   Government-funded speech
         o If gov’t provides money towards a project, can they control the speech of that project? Can they prohibit
             others from utilizing that resource?
         o Unconstitutional conditions doctrine: gov’t grants benefit if recipient agrees to a condition.
                       Strong version: can’t be fired for belonging to political party (PERRY v. SINDERMANN: “if the gov’t
                        could deny a benefit to a person because of his constitutionally protected speech or associations,
                        his exercise of those freedoms would in effect be penalized and inhibited.”)
                       Weak (modern) version: can’t be structured to “induce” recipient “to engage in activities that
                        would themselves be unconstitutional” (U.S. v. AMERICAN LIRBARY ASSOCIATION).
                       Examples:
                                  Bad: food stamps if sterilized, reduced time in prison if submit to torture, tax exemption
                                   for charity if no subversive advocacy [but: ban on campaign contributions OK:
                                   viewpoint-neutral]
                                  OK: plea bargaining.
                                  Unclear: subsidy for internet access if install filtering software (depends on software).
         o Concern with benefits: is the benefit being given to everyone but you, or just to a small group of people?
                       RUST v. SULLIVAN: USSC upholds restriction on funding for voluntary family planning clinics on
                        condition that they not use abortion as a method of family planning.
                       LEGAL SERVICES CORP. v. VELAZQUEZ: USSC strikes down funding of legal services conditioned on
                        refusing to litigate to reform welfare systems or litigate class actions. USSC distinguishes from
                        RUST by saying RUST was gov’t speech: you don’t think your lawyer is speaking for the gov’t but
                        you would think the doctor is; improper interference with lawyer-client relationship.
                       NEA v. FINLEY: Grants to private artists if selected on basis of artistic merit, considering
                        “standards of decency” of American people, and no funding for “obscenity.”
                                  Obscenity restriction clearly OK.
                                  O’CONNOR MAJORITY: “even in [subsidizing speech], gov’t may not aim at the
                                   suppression of dangerous ideas, and if a subsidy were ‘manipulated’ to have a ‘coercive
                                   effect’, then relief could be appropriate.”
                                  SCALIA (concurrence): preposterous to equate denial of taxpayer subsidy with measures
                                   ‘aimed at the suppression of dangerous ideas.’
                                  DISSENT (Souter): “when gov’t act as a patron, subsidizing expression of others, it may
                                   not prefer one lawfully stated view over another.”
                                  Reaction to ANDREAS SERRANO (piss Christ), ROBERT MAPLETHORPE (S&M photos).
         o H: does public radio have to accept ads/make time for the KKK?
                       SUMMUM was about donations, too.
                       Distinguish SUMMUM: FORBES v. ARKANSAS TELEVISION: whole broadcast day a forum, or some
                        of it gov’t speech? Unless gov’t acts otherwise, it’s gov’t speech. But if, e.g., candidate’s debate,
                        have to be viewpoint-neutral in who they invite.
CONTENT AND VIEWPOINT NEUTRALITY
  -   Is the restriction CONTENT-NEUTRAL?
         o   Rule: whether application of a rule is justified with (or triggered by) reference to the content of the
             speaker’s speech or the identity of the speaker. [MOSLEY] [GRAYNED v. City of Rockford] [Colo. v. HILL]
             [FRISBY v. SCHULTZ] [SCHNEIDER v. NEW JERSEY] [WARD v. ROCK AGAINST RACISM] [TEXAS v. JOHNSON]
             [JAYCEES]
                        Content-based restrictions are presumptively invalid. [R.A.V. v. City of St. Paul]
                        Restrictions based on identity of speaker are content-based. [CITIZENS UNITED] [contra EPC’s
                         limited classes]
                        Content-based restrictions within unprotected categories of speech are impermissible. [R.A.V. v.
                         City of St. Paul], EXCEPT:
                                   Content discrimination consisting entirely of the very reason the entire class of speech
                                    is proscribable: otherwise, remains content discrimination.
                                   Regulation of speech for secondary effects;
                                   “No realistic possibility that official suppression of ideas is afoot.”
                                   [BUT: BEUHARNAIS, VIRGINIA v. BLACK]
         o   Police Dept. of Chicago v. MOSLEY: ordinance prohibited picketing within 150 feet of a school except during
             times of a labor dispute. Content-discriminatory.
                        USSC rejects argument that statute on its face let anyone picket on any topic during labor dispute:
                         not how intended or enforced.
                        “The First Amendment means that government has no power to restrict expression because of its
                         message, its ideas, its subject matter, or its content.”
                        Compare: GRAYNED v. City of Rorckford: noise ordinance prohibiting “noise or diversion”
                         adjacent to school upheld because it was content-neutral and sought to prevent disruptions,
                         relying on TINKER. Decided same day as MOSLEY. [BUT: deleted labor part after prosecution, so
                         unclear whether “picketing” portion would still be content-based].
                                   BUT SEE FRISBY v. SCHULTZ: law prohibiting “picketing” outside homes content-neutral.
                                   SEE ALSO: WARD v. ROCK AGAINST RACISM: noise ordinance content-neutral.
         o   COLORADO v. HILL: statute prohibiting people from approaching within 8 feet other people at abortion
             clinic for purpose of passing them leaflets, holding signs, or engaging in counseling or education.
                        NOT content-based (but court split). Though really only applies to anti-abortion protestors,
                         applies to anyone. (But wouldn’t that distinction make it viewpoint discrimination?)
                                   SEE SCHNEIDER v. NEW JERSEY: Los Angeles ordinance prohibiting all leafleting content-
                                    neutral (but was not a reasonable TPM regulation).
                        SCALIA (dissent): quotes Anatole France (“The law, in its majestic equality, forbids the rich and
                         poor alike from sleeping under bridges.”)
                        NB: difference between disagreeing with this on basis of disparate impact on particular view vs.
                         thinking it’s still applied based on content. (But: passing out a handbill, holding a sign, etc. 
                         those are conduct still; has nothing to do with what’s written on them. But problem is when it
                         attacks speaking, e.g., “counseling”).
         o   TEXAS v. JOHNSON: statute permitting burning of US flag in “respectful” manner not content-neutral
             (prohibits non-respectful burning).
         o   CITIZENS UNITED v. FEC: campaign expenditure restrictions based on identity of speaker (union,
             corporation) were content-based and did not meet strict scrutiny.
                        Rejected gov’t interests as not compelling:
                                   Corruption
                                   Appearance of corruption
                                   Anti-distortion
                                   Shareholder rights
         o   JAYCEES: public accommodations laws are content-neutral. About equality of opportunity, not speech.
             [counterarg: our speech is that these groups are not welcome, so it’s not neutral as to content.]
         o   R.A.V. v. City of St. Paul: even though cross-burning ban purported to ban only fighting words,
             discriminated on both viewpoint- and content-basis. Viewpoint-discriminatory because … [why]. Would
             not meet strict scrutiny
                        WHITE (concurrence): could simply charge as trespassers/vandals; content discrimination not
                         necessary to achieve the interest. Even if content-neutral, [would or would not?] pass SS.
                  STEVENS (dissent): not viewpoint-discriminatory: prohibits fighting words from gay and straight,
                   black and white alike.
                  EXCEPTIONS:
                            Content discrimination consisting entirely of the very reason the entire class of speech
                             is proscribable: otherwise, remains content discrimination.
                                  o Here: viewpoint-discriminatory, so not being banned for same reasons that
                                        the category (fighting words) is banned (intolerable mode of expressing
                                        whatever idea speaker wishes to convey).
                                  o E.g., true threats against President OK because done for the same reason true
                                        threats can be proscribed.
                                  o E.g., prohibiting gay or interracial porn: might be obscenity, but banned for
                                        reasons other than obscenity. In RAV, prohibiting certain fighting words.
                            Regulation of speech for secondary effects;
                            “No realistic possibility that official suppression of ideas is afoot.”
                  BUT: VIRGINIA v. BLACK: law prohibiting cross-burning struck down only to extent that act of
                   burning was prima facie evidence of intent to intimidate.
                            Arg RAV irrelevant: still discriminating on basis of content (cross-burning). [SOUTER
                             dissent]
                            Arg RAV still relevant: burning cross to “intimidate” within reason why broader class
                             may be proscribed.
                  BUT: BEAUHARNAIS v. Illinois: USSC: defamation of group unprotected. Never explicitly
                   overruled. (BUT: would this meet “of and concerning” requirement of NYT v. SULLIVAN?)
       o    Is the restriction VIEWPOINT-NEUTRAL?
                  Viewpoint-discrimination is a form of content-discrimination.
                  WOOLEY v. MAYNARD
                 
-   If content-neutral:
         o TPM?
                  BURDEN: gov’t must show reasonable time, place, manner restriction. Much lower than SS.
                  TEST:
                            Is the regulation within Congress’/the State’s powers?
                            Content-neutral?
                                  o WARD v. ROCK AGAINST RACISM: noise ordinance content-neutral.
                            Significant gov’t interest?
                                  o GRAYNED v. Rorckford: protecting schools from disruption (e.g., TINKER).
                                  o HILL: access to abortion clinics.
                                  o SCHNEIDER v. NJ: trash from handbills.
                            Narrowly tailored to serve the gov’t interest?
                                  o Need not be least restrictive means
                                  o SCHNEIDER v. NJ: completely banning handbills excessive; underinclusive:
                                       ignores trash from things other than handbills. Overinclusive: doesn’t limit
                                       only to those handbills that cause litter. Alternative means: can instead just
                                       ban littering.
                            Leaves open ample alternative channels of communication.
                                  o HILL: can still shout, hold signs from eight feet away.
                                  o GRAYNED v. City of Rorckford: can just go 150 feet away.
                  WARD v. ROCK AGAINST RACISM: noise ordinance content-neutral, little impact, limited hours.
                  HILL v. COLORADO:
                  SCHNEIDER v. NEW JERSEY:
       o   EXPRESSIVE CONDUCT (O’BRIEN)?
                  Generally
                            Speech and non-speech elements combined in the same course of conduct. [O’BRIEN]
                                                                            st
                                 o But gov’t can have incidental limit on 1 by regulating conduct. [O’BRIEN]
                            To determine how much protection to give to expressive conduct, look at gov’t’s intent.
                             Clamp down on idea? Bad. Legitimate conduct concerns? We’ll treat like conduct.
                  BALANCING TEST:
                                    Is the regulation within Congress’/the State’s powers?
                                    Is the conduct expressive?
                                          o Intent to convey a message? [O’BRIEN]
                                          o Great likelihood that the message would be understood by those who
                                                viewed the conduct?
                                                          CLARK v. COMMUNITY FOR CREATIVE NON-VIOLENCE: protesters
                                                           sleeping in park outside White House to protest homelessness not
                                                           conveying an understandable message.
                                    “Important” or “substantial” gov’t interest? [rarely contested]
                                          o O’BRIEN: raising an army.
                                    Gov’t interest unrelated to suppression of expression? [BIG QUESTION] [content-
                                     neutral]?
                                          o If related to suppression  content based  TEXAS v. JOHNSON  super-
                                                strict scrutiny.
                                          o Gov’t will argue that interest unrelated; speaker will argue means are related.
                                          o O’BRIEN: USSC sidesteps Congressional reports RE: draft cards being burned.
                                    Incidental impact not excessive?
                                          o Need not be least restrictive means.
                                          o O’BRIEN: little to say on this.
                          O’BRIEN: Congress passes law against mutilating, burning, destroying draft cards after House
                           report on people burning draft cards in open defiance.
                                    Recognizes speech/non-speech elements can be combined in same course of conduct.
                                    Says legislative history unreliable. “will not strike down an otherwise unconstitutional
                                     statute on the basis of an allegedly illicit motive”
    -   IF NOT CONTENT-NEUTRAL:
            o Compelling Gov’t Purpose
                          Legitimate purposes:
                                    BURSON v. FREEMAN: political activity outside of polling places.
                          Not legitimate purposes:
                                    JOHNSON v. TEXAS
                                    WOOLEY v. MAYNARD
                                    CITIZENS UNITED v. FEC
               o   Narrowly Tailored?
               o   Overbredth
               o   Vagueness Doctrine



FREEDOM OF THE PRESS
Historically
    -   Jefferson: “Were it left to me to decide whether we should have a government without newspapers, or newspapers
        without a government, I should not hesitate a moment to prefer the latter.”
    -   Madison: “A popular government without popular information or the means of acquiring it, is but a prologue to a
        farce, or a tragedy, or perhaps both.”

Interpretations
    -   Press clause is identical to speech clause. Protects the technology behind speaking. But makes the speech clause
        somewhat redundant and would mean everyone has this right.
    -   Press as an institution with unique functions. Does “the press” have its own right, providing a right for press
        organizations/entities to be treated differently, or a right to gather info/sources? Issue often arises RE: taxes.
             o Taxation: taxes on press generally disfavored, unless generally-applicable (applies to more than just press)
                            GROSJEAN: tax applied to press based on higher circulation struck by USSC. 2% gross sales tax on
                             circulation above 20k. Tax affects only press, reaches small subset of publishers.
                     MINNEAPOLIS STAR: use tax on $100k+ of paper/ink struck by USSC. Papers were exempt from
                      sales taxes, but “use” taxes supposed to plug hole in taxes (not happening here). Affected only
                      press, only some papers, and was atypical application of “use” tax. Intent to suppress irrelevant.
                     ARKANSAS WRITERS PROJECT v. RAGLAND: content-based sales tax exemption for publications
                      dedicated to religious, professional, trade and sports topics. Content-based and suspicious
                      because it reached only some publications.
                     LEATHERS v. MEDLOCK: sales tax exemption for newspapers, magazines, satellite TV, but not
                      cable TV. USSC permits [why? Not content based, no intent to suppress – how?]
          o   News gathering and sources:
                     BRANZBURG v. HAYES: reporter writes article depicting drug use, subpoenaed as a witness. USSC
                      says no special privilege.
                                POWELL concurrence: can seek to quash subpoena if only a “remote and tenuous
                                 connection” or “no legitimate law enforcement need” (e.g., can get info elsewhere).
                                Dissent test: [three requirements – need]
                     NB: most circuits find a reporter’s privilege in civil cases. May also be statutory protection.
                     Difficulty of defining who a ‘journalist’ is, especially in age of blogs, etc.




RELIGIOUS CLAUSES
RELIGIOUS CLAUSES GENERALLY
  -   Purpose of the religious clauses
          o   History of England and religious discord/persecutions: Henry VIII  strife and oppression.
          o   Individualism, right to autonomy.
          o   Social contract of citizenship / living a good life
                       Incentivize becoming religious: democracy needs a moral population.
          o   Separation of powers / Federalism: protect the states from the Federal gov’t.
  -   What is “religion”?
          o   A sincerely held belief [BALLARD] which is religious in nature: confronts the same concerns, or serves the
              same purposes, as those things that are recognized as religions. [AFRICA v. PENNSYLVANIA]
                       “Useful indicia” [AFRICA] include:
                                 Addresses fundamental and ultimate questions having to do with deep and imponderable matters;
                                 Constitutes a comprehensive belief system, not teachings on isolated topics;
                                 Often has certain formal and external signs.
                        Lack of belief (atheism) may be considered religious in nature in some contexts. [TORCASO]
                        Policy question: what is the court’s role here? Recognized religions? If we can’t define religion,
                         why should we permit exceptions at all?
          o   United States v. BALLARD: religious couple took donations to pray for illnesses, charged with fraud. Jurors
              shouldn’t have been asked whether beliefs ‘true’, but whether beliefs sincerely held.
                        JACKSON DISSENT: dismiss whole indictment, not for gov’t to decide. “Price of freedom or
                         religion or speech or press is that we must put up with a good deal of rubbish.”
          o   TORCASO: Maryland law preventing atheist from becoming a notary due to lack of theistic belief
              overturned under the religious test clause (Art. VI).
                                             rd
          o   AFRICA v. PENNSYLVANIA (3 Cir.): prisoner adherent to the “MOVE” belief structure was not part of a
              “religion” protected by the 1A: did not address “ultimate” concerns: nothing about meaning or purpose of
              life, morality, etc. Focus on personal and political interests, not “spiritual or other-worldly”. Not about
              “secular” or “personal” philosophy (see, e.g., YODER: distinguishing source of objection as religious).
ESTABLISHMENT CLAUSE
  -   GENERALLY
         o   Minimum: means no official church, no preferences among/between religions. No coercion.
                   LARSON: “clearest command… no preferences”
                   Not just creating an establishment: “respecting”.




  -   THEORIES
         o   NEUTRALITY THEORY (Symbolic Endorsement theory): gov’t must be neutral towards religion, can’t favor
             or be hostile. Gov’t cannot send message that religion or particular religion favored/disfavored.
                       Neutrality: within religions? Between belief and disbelief? Word is inconsistent.
                       O’Connor’s “symbolic endorsement” test: EC violated if act symbolically endorses particular
                        religion or endorses either religion or non-religion.
                       LYNCH v. DONNELLY: O’CONNOR: “Endorsement sends a message to nonadherents that they are
                        outsiders, not full members of the political community, and an accompanying message to
                        adherents that they are insiders, favored members of the political community.”
                       Focus on the message conveyed by the law: would a reasonable observer, knowledgeable about
                        the history and context of the practice, see it as an endorsement?
                                  Some would argue that lower RP standard OK: don’t need “knowledgeable” part.
                                  Cares more about how gov’t perceived than what gov’t actually doing.
                       CRITICISMS:
                                  Strict separationists: RP standard too amorphous to ensure a wall between
                                   church/state. RP might not be sensitive enough to minority religions. (E.g., many will see
                                   crosses as memorializing death).
                                  Accomodationists:
                                         o believe there should be more support for religion. Goal of EC isn’t neutrality:
                                              gov’t can and should favor religion over non-religion.
                                         o Meaning of EC should not turn on what reasonable observer thinks.
         o   Strict Separationist: strong wall between church and state. Gov’t should not be involved in religion and
             religion should not get involved in gov’t.
                       Criticism: would threaten free exercise. E.g., gov’t refusal to provide police/fire services to
                        religious organizations.
                       Loves the Lemon test.
                       Jefferson’s Letter to the DANBURY BAPTISTS: source of “wall of separation”
         o   Non-preferentialist: don’t favor one sect over another, but not completely separate.
                       Engel v. VITALE [pre-LEMON]: Plain vanilla prayer in school RE: “almighty God”: God concept isn’t
                        very generic; just because not being selective among religions doesn’t mean not EC viol.
         o   Accomodationist: religion is a good thing, should foster beliefs (SCALIA)
                       Probably about to hold a majority on the USSC.
                       Very little violates EC under this theory, except:
                                  Gov’t literally establishes national church or official religion.
                                  Government coerces a religious belief.
                                         o COERCION: two views:
                                                       Psychological and indirect pressures to conform. (Kennedy joins
                                                        neutrality group in LEE v. WEISMAN).
                                                                  Neutrality group would say coercion violates EC, but not
                                                                   req’d.
                                                       Legal coercion or its equivalent. (Most accomodationists believe
                                                        this).
                    Acceptable: funding religions, school prayer (unless coercive).
                    CRITICISMS:
                              Little sensitivity to minority religions.
                              Makes EC irrelevant: anything violating FEC would also violate EC, making it superfluous.
        o   French secularism: Laicité: citizens, not just gov’t, should be secular.
-   Use of history:
        o   EVERSON v. Bd of Ed.: reimbursements for busing to religious schools did not violate EC, because
            reimbursements offered to all children regardless of religion and payments were made to parents, not to
            religious organization.
                      BLACK Majority: strict wall of separation btwn church, state. [Separationist]
        o   WALLACE v. JAFFREE: ‘silent meditation’ at beginning of school day violated EC.
                      REHNQUIST Dissent: Jefferson’s didn’t write the 1A – he was in France! Madison drafted it and
                       he indicated that it was about not establishing a national church.
        o   LEE v. WEISMAN: non-sectarian prayer in school context (graduation) indirectly coercive [KENNEDY]
                      SOUTER CONCUR: Framers didn’t share common understanding of “establishment”.
        o   McCREARY COUNTY v ACLU: display of 10 Commandments at court violated EC; not integrated with a
            secular message.
                      SCALIA Dissent: founding fathers often appealed to religion; there was a Chaplain hired in the first
                       Congress, 3 days before 1A. [Accomodationist]
-   STANDING FOR EC CLAIMS
        o   NB: definition of ‘religion’. [BALLARD] [AFRICA] [TORCASO]
        o   Grounds:
                                     st
                     Congress: 1 Amendment prohibits Congress explicitly.
                                            th
                     Other Fed Gov’t: 5 A. Due Process Clause: “liberty”.
                                  th
                     States: 14 A. Due Process Clause: “liberty”
                                 THOMAS: doesn’t believe it should apply against states, as explicitly IDs “Congress”
        o   Federal standing
                     Article III: Can only hear cases/controversies
                     Prudential doctrines: asserting third person’s rights (Congress can override), zone of interest,
                      political question doctrine, generalized grievances.
                     INJURY-IN-FACT?
                                 MARSH v. CHAMBERS: Nebraska legislature could hire chaplain, open session w/prayer;
                                  had been done by Congress around time of ratification. Legislator had standing.
                                 Arg: cannot be member of group whose religion is being elevated. (e.g., BUONO)
                                        o Madison: Christians should be most offended by estab. Chrst as law of land
                                        o Offensive when state appropriates your religious symbols for its politics.
                                        o Social divisiveness resulting, even if you’re majority.
                                 Taxpayer standing?
                                        o MADISON: three pence from me to spend on religion = bad.
                                        o HINE: president/Sec. of Ed giving speeches promoting religion.
                                                       Didn’t fall within FLAST exceptions.
                                                       Taxpayer standing only when there’s Congressional spending – not
                                                        executive acts. Concern about floodgates, supposedly.
                                                                  SOUTER: courts should be able to fix meritorious claims.
                                                                  SCALIA: no taxpayer standing ever.
                                        o Or maybe this should be political question, and nobody has standing.
                                 Organizational standing: organization has standing if its members would have standing
                                  and it’s part of the organization’s mission. (ALLEGHENY COUNTY v. ACLU)
        o   STATE STANDING
                     CA: any citizen can bring a case they think is worthwhile.
-   ENDORSEMENT TEST
       o   LYNCH v. DONNELLY: O’CONNOR CONCURRENCE: “Endorsement sends a message to nonadherents that
           they are outsiders, not full members of the political community, and an accompanying message to
           adherents that they are insiders, favored members of the political community.”
                    Focus on the message conveyed by the law: would a reasonable observer, knowledgeable about
                     the history and context of the practice, see it as an endorsement?
                              Some would argue that lower RP standard OK: don’t need “knowledgeable” part.
                              Cares more about how gov’t perceived than what gov’t actually doing.
       o   COMPARE WITH LEMON TEST: all three parts of the lemon test deal with endorsement: purpose is to
           endorse religion, effect is to endorse religion, and entanglement results. Just avoid endorsement and no
           entanglement will follow.
-   COERCION TEST
       o   COERCION: two views:
                 Psychological and indirect pressures to conform. (Kennedy joins neutrality group in LEE v.
                  WEISMAN  indirect coercion in prayers at graduation).
                 Legal coercion or its equivalent. (Most accomodationists believe this).
-   LEMON TEST FOR E.C.
       o   OFTEN USED WHEN THERE IS FUNDING OF A RELIGIOUS ORGANIZATION
       o   Test:
                  1. STATUTE MUST HAVE A SECULAR LEGISLATIVE PURPOSE
                           Not a sham.
                                  o McCREARY COUNTY v. ACLU: put up Magna Carta alongside 10 Comm’s. Not
                                      really about history.
                                  o WALLACE v JAFFREE: “moment of silence” at beginning of school day was
                                      legislative attempt to re-introduce prayer.
                           Determining “purpose”:
                                  o Legislative history.
                                                Policy issue: will this lead to legislative silence? (Isn’t that what we
                                                 want – to avoid religious strife?)
                           Abington Township v. SCHEMPP [pre-LEMON]: 10 verses from Bible read each day
                            before class without comment, Lord’s prayer. No possible secular purpose.
                           Engel v. VITALE [pre-LEMON]: Plain vanilla prayer in school acknowledging “almighty
                            God”: God concept isn’t very generic; just because not being selective among religions
                            doesn’t mean not EC viol.
                           Criticisms:
                                  o SCALIA: gov’t should be promoting religion.
                                  o Difficult to determine legislative purpose/intent.
                  2. PRINCIPAL OR PRIMARY EFFECT MUST NEITHER ADVANCE NOR INHIBIT RELIGION
                           Not very controversial, but unclear what an “effect” is. LEMON didn’t address.
                           NB: Effect bad because it could interfere with FEC.
                           AGOSTINI v. FELTON:
                                  o Define recipients by reference to religion?
                                  o Look to character of institution benefitted (predominantly religious?) and:
                                  o Nature of aid provided: result in gov’t indoctrination? (neutral and
                                      nonideological?)
                                                EVERSON v. Bd of Ed: gov’t money for busing for all students, even
                                                 when going to Catholic school OK.
                                                BOARD of EDUCATION v. ALLEN: state provision of textbooks
                                                 regardless of whether attended public/private schools OK. Secular
                                                 purpose in increasing educational opportunities. Books loaned to
                                                    students, not to private schools. DOUGLAS dissents: books too close
                                                    to teaching, are ideological (but books were non-religious).
                    3. STATUTE MUST NOT FOSTER AN EXCESSIVE GOV’T ENTANGLEMENT WITH RELIGION
                             LEMON: excessive entanglement in having to supervise whether Catholic school
                              teachers were also teaching religious material when salaries reimbursed by state, and in
                              gov’t ability to inspect church records to ensure compliance.
                                   o COMPARE: AGOSTINI v. FELTON: special ed teacher going to various schools;
                                         no presumption she’ll lapse into religious education.
                                                   NB: AGOSTINI says inquiry is similar to ‘effects’ test, just adds on
                                                    question of whether entanglement is excessive. Interaction
                                                    between church/state “inevitable”.
                             MARKIN v. GRENDEL’S DEN: no taverns w/in 500 ft of church if church objects.
                              Delegation of gov’t functions to church  entanglement.
       o   Criticisms of LEMON test:
                    No predictable results. But maybe grand, unified theory impossible.
                    How do you determine legislature’s purpose?
-   SCHOOL PRAYER
       o   Abington Township v. SCHEMPP [pre-LEMON]: 10 verses from Bible read each day before class without
           comment, Lord’s prayer. No possible secular purpose.
       o   Engel v. VITALE [pre-LEMON]: Plain vanilla prayer in school acknowledging “almighty God”: God concept
           isn’t very generic; just because not being selective among religions doesn’t mean not EC viol.
       o   WALLACE v. JAFFREE: “moment of silence” at beginning an attempt to re-introduce prayer.
       o   LEE v. WEISSMAN: Jewish family upset about Rabbi giving somewhat-ambiguous prayer at graduation.
                     NOT a Lemon-type test: focus on whether there is coercion.
                                KENNEDY: coercion means more than just a legal act – might be indirect. Suggestive.
                                SCALIA: coercion should be limited to legal acts. Rejects “psychological coercion”.
                     KENNEDY (majority): divisiveness may result, irrelevant that family is Jewish (perhaps even
                      because they’re Jewish – malcontents!). No alternative but to comply (graduation isn’t really
                      mandatory, but significant).
                     See also: SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE: pre-football game prayer “on school
                      property, at school-sponsored events, over the school's public address system, by a speaker
                      representing the student body, under the supervision of school faculty, and pursuant to a school
                      policy that explicitly and implicitly encourages public prayer” not private, but public speech.
       o   EPPERSON v. ARKANSAS: religious purpose behind banning of evolution. BLACK dissents, says secular
           purpose in avoiding controversy.
-   RELIGIOUS DISPLAYS
       o   No specific test: use best judgment. Look to a variety of factors, most important of which
           (“determinative”) is the length of time the symbol has been in place (avoid riots). Some factors: [VAN
           ORDEN]
                    Mixed Symbols: are there non-religious symbols around it?
                    Capable of secular meaning: Come commandments, e.g., secular.
                    Clear whether donated by private party?
                    Not in a school.
       o   LYNCH v. DONNELLY: nativity scene amongst other symbols (snowflake, etc.) not endorsement: would be
           seen as holiday festival.
       o   ALLEGHENY COUNTY v. ACLU: nativity scene in front of courthouse and city building, next to menorah not
           an establishment: not seen as establishing a religion or engaging in favoritism.
       o   McCREARY COUNTY v. ACLU: 10 Commandments in courthouse with ‘brickabrack’ around it (and
           explanation that the other symbols were just elaborations of the 10 C’s) violated EC.
       o   VAN ORDEN: 10 C’s outside Texas State Capitol present for 40 years, among mixed symbols.
                     decided same day; Breyer switches votes, spells out list of factors.
         o   PAULSON v. SAN DIEGO: violated CA’s No Preference Clause. Unclear what to do about it. Probably
             wouldn’t violate EC.
                     NB: unclear whether CA’s FEC follows a SMITH-like test.



FREE EXERCISE CLAUSE
  -   GENERALLY
         o   Conflict between gov’t ability to regulate conduct and belief.
                      REYNOLDS (1800s): no religious exemption to Utah Territory bigamy law.
                               “Congress was deprived of all legislative power over mere opinion, but was left free to
                                reach actions which were in violation of social duties or subversive of good order. …
                                [Gov’t] may [interfere] with practices.”
                               Dishonest reliance on Jefferson’s LETTER TO THE DANBURY BAPTISTS.
                               Interpreted as holding that gov’t never has to make religious exceptions.
                               Alternative interpretation: applied a strict scrutiny analysis.
                               Historical arg: we’ve never allowed polygamy, so why now?
                               Democratic arg: defer to legislative branch.
                               Concern of exception for religious violation, but punishing, e.g., Jews who violate for
                                non-religious reasons.
                      CANTWELL v. CONNECTICUT:
                                                                               th
                               Applied FEC against states as “liberty” in 14 A.
                               Freedom to believe is absolute, freedom to act is not absolute. Balancing test: power
                                to regulate must be exercised so as not to unduly infringe free exercise. Unclear at what
                                point the state must give an exception.
  -   THE SMITH TEST
         o   A neutral law of general applicability does not violate FEC; no exception needed for religious reasons.
                      1. Prohibition?
                                Does act REQUIRE act religion forbids or FORBID an act religion requires?
                                      o BLUE LAWS: Jews upset law required stores to be closed on Sundays; Jewish
                                           religion requires them not to work on Saturdays. No prohibition: not required
                                           to open stores on Saturdays.
                                NB: definition of religion: [BALLARD] [AFRICA] [TORCASO]
                      2. Objection being made on religious grounds?
                      3. Generally applicable? [SMITH]
                                HYBRID RIGHTS EXCEPTION  HEIGHTENED SCRUTINY
                                      o YODER: Amish families don’t want to send high-school-age children to public
                                           schools for religious reasons. No compelling, narrowly-tailored interest in
                                           forcing families to send children to HS.
                                                     Characterized as FEC plus another right. Here, rearing children.
                                                     CANTWELL: religion and speech: statute prohibiting religious
                                                      solicitation, solicited donations.
                                                     BARNETT: religion and speech: religious objections to Pledge.
                                      o PASSED SS:
                                                     GOLDMAN v. WEINBERGER: Jewish member of military could not
                                                      get exception to wear yarmulke.
                                                     US v. LEE: Amish didn’t want to pay Social Security taxes.
                                                     LING: Native Amers seek to block construction over religious sites.
                                                     BOB JONES UNIV.: gov’t withdrew tax exemption: discrimination;
                                                      religious beliefs prohibited interracial dating. Passed SS.
                                   SHERBERT EXCEPTION  HEIGHTENED SCRUTINY
                                         o If lots of exceptions, doesn’t look much like it’s a law of general applicability.
                                              If exceptions point to some neutral, consistent principle, no need to have
                                              religious exception. Problem arises if they’re all over the place.
                                         o Alternative: if administrative body is making determinations as to merit of
                                              benefits claims  exception required.
                                         o Alternative: only applies to unemployment insurance.
                                                            th
                                         o SHERBERT: 7 Day Adventist fired because she wouldn’t work on Saturdays,
                                              denied unemployment benefits due to ‘misconduct’. Fails SS-type analysis
                                              because no compelling gov’t interest in denying unemployment benefits
                                                                     th
                                              because someone is 7 Day Adventist.
                                         o SMITH: similar: Native Amer. Substance abuse counselor fired for using
                                              peyote, denied unemployment benefits.
                                                        Distinguish from SHERBERT: act itself not illegal in SHERBERT.
                       4. Is the law NEUTRAL? If not, STRICT SCRUTINY [LUKUMI]
                                   Point: avoid disparate treatment of religion.
                                         o Unclear: does it have to simply be facially discriminatory?
                                   LUKUMI: prohibition of animal sacrifices passed after emergency meetings of town
                                    council held soon after learning that Santeria church would be established.
                                         o Regulation “because [conduct] undertaken for religious reasons”
                                         o Exemptions for other religions (e.g., for kosher slaughterhouse)
                                         o Didn’t refer to Santeria explicitly, but prohibited “ritual sacrifices”
-   INTERACTION WITH EC: LOCKE v. DAVEY: FEC doesn’t require exception to be made in case of funding to religious
    causes where the state is concerned about EC violations.
        o But see TEXAS MONTHLY v. BULLOCK: State does not have to provide funding or subsidy as an exception.
             Texas could not grant tax exemption to religious publications, as that would essentially be a taxpayer
             subsidy of religion. Might burden free exercise to have to comply, but did not prohibit.
        o “Play in the joints” -- states must have some wiggle-room to avoid EC violations. Scylla and Charybdis.
-   STATUTORY PROTECTIONS OF FEC
        o RELIGIOUS FREEDOM RESTORATION ACT: Federal gov’t must make exception for anything that burdens
             free exercise unless it meets strict scrutiny. Not applicable to the states.
                       GONZALES: uniformity in drug laws didn’t meet SS as applied to small religion using peyote.
        o RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT: applies to state actions affecting:
                       Institutionalized persons: prisoners
                                   CUTTER v. WILKINSON: RFRA not unconstitutional by requiring religious exceptions.
                                    Goal of freedom of religion is to maximize peoples’ choices.
                       Land use: zoning disputes and historic preservation laws.
-   STATE CONSTITUTION PROTECTION FOR FEC
        o CA: “Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This
             liberty of conscience does not excuse acts that are licentious or inconsistent with peace or safety of state.”
                       Unclear whether this sets up a SMITH-type test.
                       CATHOLIC CHARITIES: constitutional to require group health prescription plans to include
                        prescription contraception.
                                   SMITH: would probably pass SS anyway  compelling interest in gender non-
                                    discrimination. No alternative on which to say it’s not narrowly tailored. So dodges
                                    question of what right standard is: SMITH or SHERBERT?
                                   DISSENT: not neutral because CC didn’t fall within definition of ‘religious’ orgs.
SHORT OUTLINE: GUIDE TO ANALYSIS
 I.    GOV’T ACTION?
       a.   Fed gov’t 
                        st
                   i. 1 A. (Acts of Congress)
                        th
                  ii. 5 A. Due Process Clause (“liberty”) (Acts by any branch)
                             th
       b.   State gov’t  14 A. Due Process Clause (“liberty”) (GITLOW, WHITNEY)
                   i. Torts: state action in providing forum. [NB: anti-SLAPP statutes]
                  ii. NAACP v. ALABAMA: state action in disclosing membership list.


 II.   FREEDOM OF SPEECH
       a. Speech issue?
                   i.   Pure conduct  no FSC implications.
                  ii.   Pure speech  continue
                 iii.   Mixture speech/conduct  O’BRIEN (below)
                 iv.    Who is speaking?
                             1. GOV’T SPEECH
       b. Statutory interpretation:
                   i.   Doctrine of independent review (BOSE): in free speech cases, look closely at facts.
                                                                                                               st
                  ii.   Is the statute susceptible to a narrowing construction such that it doesn’t implicate 1 A. rights?
                               1. USSC gets final say on Federal Laws.
                               2. Did State SC narrow construction? Statute + authoritative construct is law of the state.
                 iii.   Is it OVERBROAD or VAGUE, even if in application to the instant case it would be unprotected?
                               1. VAGUE?
                                        a. 1. Can ordinary people understand what’s prohibited?
                                        b. 2. Does the law encourage arbitrary or discriminatory enforcement?
                               2. OVERBROAD? [JEWS FOR JESUS, SCHAD v. MT . EPHRAIM]
                                        a. Does statute prohibit a real and substantial amount of protected expression?
                                            [RODERICK v. OKLAHOMA]
       c. Unprotected / “less protected” category?
                   i. FIGHTING WORDS
                           1.
                  ii. TRUE THREATS
                 iii. INCITEMENT
                           1. BAD TENDENCY test
                 iv. Not covered: Obscenity / Criminal Advocacy /
                  v. TORTS
                                                                                                               th
                           1. Source: state law // NB: anti-SLAPP statutes. State action in creating forum. (14 A DPC)
                           2. DEFAMATION
                                      a.   Libel (written) vs. Slander (spoken)
                                      b.   False statement of fact
                                      c.   Of and concerning Plaintiff (NYT v. SULLIVAN: police != commissioner)
                                      d.   Unprivileged publication to a third party
                                                   i. Privileges: witness, litigation, fair reporting / comment, letters of rec.
                                      e.   Culpable mental state (varies by Plaintiff and subject matter)
                                                   i. ACTUAL MALICE: knew it was false or acted w/reckless disregard to falsity.
                                                             1. High burden of proof: clear and convincing.
                                                             2. ST. AMANT v. THOMPSON: actually entertained serious doubt
                                                             3. HARTE-HANKS COMMs v. CONNAUGHTON: willful blindness
                                                             4. Required for:
                                                                         a.   Public Officials: “has/appears to have substantial
                                                                              responsib/control over gov’t affairs.” (ROSENBLATT)
                                                                                      i. NYT v. SULLIVAN: police commissioner.
                                                                                     ii. Factors: discretion, import/pub role,
                                                                                           elect/polit appoint, subord’s, media access
                                                                                   iii. NB: separate pub/private life unless elected
                                                                         b. Public Figures: Pervasive fame/notoriety, influential
                                                                            role in ordering society [CURTIS PUB. CO. v. BUTTS]
                                                                                     i. R: Infl/media access. Can’t vote out.
                                                                                    ii. BUTTS: athletic director of U of Georgia
                                                                                   iii. A.P. v. WALKER: well-known conservative
                                                                      c.    Limited purpose public figures: PF only with regard to
                                                                            particular subject. PF only to extent relating to issue.
                                                                      d. Private Figures: GERTZ: Chicago civ rights atty. May
                                                                            recover for actual damages on showing of negligence
                                                                            (no strict liability), may recover punitive or presumed
                                                                            damages only w/showing of actual malice.
                                                                      e. Matter of Pub Concern: (HEPPS: P burden show false)
                                                  ii. Policy question: is Actual Malice a good standard? HILL.
                                      f.    Causation of harm to reputation
                                                   i. Types of damages: general (objective $), general (presumed – def per se)
                                                  ii. Defamatory meaning: Defamatory per se: crime, loathsome disease. Gay?
                 vi.    COMMERCIAL SPEECH
                vii.    STUDENT SPEECH
                            1.   Gov’t acting as proprietor
                            2.   Students are “persons” under the Constitution (TINKER)
                            3.   To punish speech, school must show:
                                        a.  1. “Material” or “substantial” disruption of educational process [TINKER] OR
                                                    i. Vulgar speech/lewd conduct may disrupt. [BETHEL v. FRASER]
                                        b. 2. Violation of rights of others [TINKER] OR
                                        c.  3. Speech reasonably promotes illegal drug use [MORSE v. FREDERICK]
                                                    i. Exception (ALITO): social/political discussion.
                            4.   Don’t have to wait if disruption can be “reasonably forecast” (“undifferentiated fear” is not
                                 enough). [TINKER]
                            5.   E.g.: TYLER CHASE HARPER case.
               viii. Should a new category be created?
                            1.   STEVENS: reluctance to create new categories
                            2.   Rationales for protecting speech.
                                      a.    Political speech? Core of 1st A.
                                      b.    Marketplace Theory
                                      c.    Safety-valve Theory
       d. Content-Neutral?
                i. TPM?
               ii. O’BRIEN EXPRESSIVE CONDUCT?
       e. Viewpoint-Neutral?
       f. If conduct- or viewpoint-discriminatory, does it meet strict scrutiny?
                   i.   Content-discrimination: [upheld case]
                  ii.   Viewpoint-discrimination [upheld case]
       g. Other angles/issues:
                   i.   Prior restraint?
                  ii.   COMPELLED SPEECH
                 iii.   ELECTION-RELATED EXPENDITURES

III.   FREEDOM OF THE PRESS
       a.   Historically: Jefferson (“newspapers without a gov’t”), Madison (“popular gov’t without popular info”).
       b.   Interpretations:
                   i. Press clause is identical to speech clause. Protects technology. Speech clause redundant?
                  ii. Press as an institution with unique functions. Own right to gather info, be treated differently, or
                      immune from different treatment?
                            1. Taxation: generally disfavored unless generally-applicable to more than just press.
                                      o     GROSJEAN: 2% gross sales tax on circ >20k: affects only press, small subset of publishers
                                      o     MINNEAPOLIS STAR: use tax on $100k+ paper/ink. Affected only press, only some
                                            papers, atypical use of “use” tax (exempt from sales tax). Intent to suppress irrelevant.
                                      o     ARKANSAS WRITERS PROJECT v. RAGLAND: content-based sales tax exempt for pubs on
                                            relig, prof, trade & sports. Content-based; suspicious: reached only some publications.
                                   o    LEATHERS v. MEDLOCK: sales tax exemption for newspapers, magazines, satellite TV,
                                        but not cable TV. USSC permits [WHY?]
                             News gathering and sources:
                                   o    BRANZBURG v. HAYES: drug use art., subpoena as witness. USSC: no special privilege.
                                                  POWELL concurrence: can seek to quash if only “remote and tenuous
                                                   connection” or “no legitimate law enforcement need”
                                                  Dissent test: [three requirements – need]
                                   o    NB: most circuits: reporter’s privilege in civil cases. May also be statutory protection.
                                   o    Policy question: Difficulty of defining who a ‘journalist’ is, especially in age of blogs, etc.



IV.   FREE EXERCISE CLAUSE
      a.   GENERALLY: conflict between conduct/belief
                i. REYNOLDS: may interfere with all conduct. 1800s bigamy Utah Territory case.
               ii. CANTWELL v. CT:
                        1. Free of belief absolute, conduct may be limited. Balancing test (unclear).
      b. SMITH/LUKUMI TEST
      c.   A neutral law of general applicability does not violate FEC; no exception needed for religious reasons.
                 i. 1. Prohibition?
                         1. Does act REQUIRE act religion forbids or FORBID an act religion requires?
                                   a. BLUE LAWS, e.g.
                                   b. Definition of religion: [BALLARD] [AFRICA] [TORCASO]
                ii. 2. Objection being made on religious grounds?
               iii. 3. Generally applicable? [SMITH]
                         1. HYBRID RIGHTS EXCEPTION  HEIGHTENED SCRUTINY
                                   a. YODER: Amish families, HS-age kids. No compelling, narrowly-tailored interest
                                         in forcing families to send children to HS.
                                                 i. Characterized as FEC plus another right. Here, rearing children.
                                                ii. CANTWELL: rel + speech: statute prohibiting religious solicitation,
                                                    solicited donations. (partially, anyway)
                                               iii. BARNETT: rel + speech: religious objections to Pledge.
                                   b. PASSED SS:
                                                 i. GOLDMAN v. WEINBERGER: Jewish military: no yarmulke exception.
                                                ii. US v. LEE: Amish didn’t want to pay Social Security taxes.
                                               iii. LING: Native Amers seek to block construction over religious sites.
                                               iv. BOB JONES UNIV.: withdrew tax exempt: interracial discrimination.
                         2. SHERBERT EXCEPTION  HEIGHTENED SCRUTINY
                                   a. If lots of exceptions, doesn’t look much like it’s a law of general applicability.
                                         If exceptions point to some neutral, consistent principle, no need to have
                                         religious exception. Problem arises if they’re all over the place.
                                   b. Alternative: if administrative body is making determinations as to merit of
                                         benefits claims  exception required.
                                   c. Alternative: only applies to unemployment insurance.
                                                       th
                                   d. SHERBERT: 7 Day Adventist. Fails SS-type analysis: no compelling gov’t
                                                                                                             th
                                         interest in denying unemployment benefits because someone is 7 Day.
                                   e. SMITH: similar: Native Amer. Substance abuse counselor fired for using
                                         peyote, denied unemployment benefits.
                                                 i. Distinguish from SHERBERT: act itself not illegal in SHERBERT.
               iv. 4. Is the law NEUTRAL? If not, STRICT SCRUTINY [LUKUMI]
                         1. Point: avoid disparate treatment.
                         2. LUKUMI: prohibition of animal sacrifices passed after emergency meetings of town
                               council held soon after learning that Santeria church would be established.
                                   a. Regulation “because [conduct] undertaken for religious reasons”
                                        b. Exemptions for other religions (e.g., for kosher slaughterhouse)
                                        c. Didn’t refer to Santeria explicitly, but prohibited “ritual sacrifices”
V.      INTERACTION WITH EC: LOCKE v. DAVEY: FEC doesn’t require exception to be made in case of funding to
        religious causes where the state is concerned about EC violations.
        a. But see TEXAS MONTHLY v. BULLOCK: State does not have to provide funding or subsidy as an exception.
              Texas could not grant tax exemption to religious publications, as that would essentially be a taxpayer
              subsidy of religion. Might burden free exercise to have to comply, but did not prohibit.
        b. “Play in the joints” -- states must have some wiggle-room to avoid EC violations. Scylla and Charybdis.
VI.     STATUTORY PROTECTIONS OF FEC
        a. RELIGIOUS FREEDOM RESTORATION ACT: Federal gov’t must make exception for anything that burdens
              free exercise unless it meets strict scrutiny. Not applicable to the states.
                     i. GONZALES: uniformity in drug laws didn’t meet SS as applied to small religion using peyote.
        b. RELIGIOUS LAND USE AND INSTITUTIONALIZED PERSONS ACT: applies to state actions affecting:
                     i. Institutionalized persons: prisoners
                              1. CUTTER v. WILKINSON: RFRA not unconstitutional by requiring religious exceptions.
                                   Goal of freedom of religion is to maximize peoples’ choices.
                    ii. Land use: zoning disputes and historic preservation laws.
VII.    STATE CONSTITUTION PROTECTION FOR FEC
        a. CA: “Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This
              liberty of conscience does not excuse acts that are licentious or inconsistent with peace or safety of state.”
                     i. Unclear whether this sets up a SMITH-type test.
                    ii. CATHOLIC CHARITIES: constitutional to require group health prescription plans to include
                         prescription contraception.
                              1. SMITH: would probably pass SS anyway  compelling interest in gender non-
                                   discrimination. No alternative on which to say it’s not narrowly tailored. So dodges
                                   question of what right standard is: SMITH or SHERBERT?
                              2. DISSENT: not neutral because CC didn’t fall within definition of ‘religious’ orgs.



VIII.   ESTABLISHMENT CLAUSE
        a. STANDING

                  o    NB: definition of ‘religion’. [BALLARD] [AFRICA] [TORCASO]
                  o    Grounds:
                                                st
                                Congress: 1 Amendment prohibits Congress explicitly.
                                                       th
                                Other Fed Gov’t: 5 A. Due Process Clause: “liberty”.
                                             th
                                States: 14 A. Due Process Clause: “liberty”
                                            THOMAS: doesn’t believe it should apply against states, as explicitly IDs
                                             “Congress”
                  o    Federal standing
                                Article III: Can only hear cases/controversies
                                Prudential doctrines: asserting third person’s rights (Congress can override), zone of
                                 interest, political question doctrine, generalized grievances.
                                INJURY-IN-FACT?
                                            MARSH v. CHAMBERS: Nebraska legislator had standing.
                                            Taxpayer standing?
                                                   o MADISON: three pence from me to spend on religion = bad.
                                                   o HINE: president/Sec. of Ed giving speeches promoting religion.
                                                               Taxpayer standing only when there’s Congressional
                                                                spending – not executive acts. Concern about floodgates.
                                                                     SOUTER: courts should be open for meritorious
                                                                      claims.
                                                                     SCALIA: no taxpayer standing ever.
                                              o Or maybe this should be political question
                                        Organizational standing: org has standing if members would have standing &
                                         part of org’s mission. (ALLEGHENY COUNTY v. ACLU)
               o      STATE STANDING
                             CA: any citizen can bring a case they think is worthwhile.

      b. ENDORSEMENT TEST
                 i.   O’Connor / LYNCH v. DONNELLY: would a reasonable observer, knowledgeable about the history
                      and context of the practice, see it as an endorsement?
      c. COERCION TEST
                 i.   Psychological and indirect pressures to conform. Kennedy’s vote switch in LEE v. WEISSMAN
      d. LEMON TEST
            i. PURPOSE: Statute must have A secular legislative purpose
                          1.   Not a sham [McCREARY COUNTY v. ACLU: Magna Carta alongside 10 Cs] [WALLACE v.
                               JAFFREE: “moment of silence” runaround]
                          2.   Determine purpose from legislative history.
                          3.   Pre-lemon cases: Abington Township v. SCHEMPP (10 verses/day in school), Engel v.
                               VITALE (plain vanilla prayer)
                ii. EFFECT: Principal or primary effect must neither advance nor inhibit religion
                          1.   NB: Effect of endorsement (described above) is why endorsement is bad. Effect could
                               interfere with FEC.
                          2.   AGOSTINI v. FELTON:
                                    a. Define recipients by reference to religion?
                                    b. Look to character of institution benefitted (predominantly religious?) and:
                                    c. Nature of aid provided: result in gov’t indoctrination? (neutral and
                                         nonideological?) [EVERSON: $ for busing  students] [ALLEN: textbooks
                                         loaned to students. DOUGLAS: too close to ideological, unlike buses]
               iii. ENTANGLEMENT: Statute must not foster excessive entanglement.
                          1.   LEMON: supervising whether Catholic school teachers were also teaching religious
                               material when salaries reimbursed by state, and in gov’t ability to inspect church
                               records to ensure compliance.
                                    a. COMPARE: AGOSTINI v. FELTON: special ed teacher going to various schools;
                                         no presumption she’ll lapse into religious education.
                                    b. NB: AGOSTINI: inquiry similar to ‘effects’ test, adds on question of whether
                                         entanglement is excessive. Interaction between church/state “inevitable”.
                          2.   MARKIN v. GRENDEL’S DEN: no taverns w/in 500 ft of church if church objects.
                               Delegation of gov’t functions to church  entanglement.
IX.   SCHOOL PRAYER
      a.   Abington Township v. SCHEMPP [pre-LEMON]: 10 verses from bible @ school. No possible secular purpose.
      b.   Engel v. VITALE [pre-LEMON]: Plain vanilla prayer in school acknowledging “almighty God”: God concept
           isn’t very generic; just because not being selective among religions doesn’t mean not EC viol.
      c.   WALLACE v. JAFFREE: “moment of silence” at beginning an attempt to re-introduce prayer.
      d.   LEE v. WEISSMAN: Jewish family upset about Rabbi giving somewhat-ambiguous prayer at graduation.
                   i. NOT a Lemon-type test: focus on whether there is coercion.
                           1. KENNEDY: coercion means more than just a legal act – might be indirect. Suggestive.
                           2. SCALIA: coercion should be limited to legal acts. Rejects “psychological coercion”.
                  ii. KENNEDY (majority): divisiveness may result, irrelevant family Jewish (perhaps even because
                      Jewish – malcontents!). No alt but to comply (graduation isn’t really mandatory, but significant).
                     See also: SANTA FE INDEPENDENT SCHOOL DISTRICT v. DOE: pre-football game prayer “on school
                  iii.
                     property, at school-sponsored events, over the school's public address system, by a speaker
                     representing the student body, under the supervision of school faculty, and pursuant to a school
                     policy that explicitly and implicitly encourages public prayer” not private, but public speech.
         e.   EPPERSON v. ARKANSAS: religious purpose behind ban of evolution. BLAC: sec. purp.: avoid controversy.
  X.     RELIGIOUS DISPLAYS
         a.   No specific test: use best judgment. Look to a variety of factors, most important of which
              (“determinative”) is the length of time the symbol has been in place (avoid riots). Some factors: [VAN
              ORDEN]
                     i. Mixed Symbols: are there non-religious symbols around it?
                    ii. Capable of secular meaning: Come commandments, e.g., secular.
                   iii. Clear whether donated by private party?
                   iv. Not in a school.
         b.   LYNCH v. DONNELLY: nativity scene by other symbols (snowflake) not EC vio: seen as holiday festival.
         c.   ALLEGHENY COUNTY v. ACLU: nativity scene in front of courthouse and city building, next to menorah not
              an establishment: not seen as establishing a religion or engaging in favoritism.
         d.   McCREARY COUNTY v. ACLU: 10 Commandments in courthouse with ‘brickabrack’ around it (and
              explanation that the other symbols were just elaborations of the 10 C’s) violated EC.
         e.   VAN ORDEN: 10 C’s outside Texas State Capitol present for 40 years, among mixed symbols.. Decided
              same day; Breyer switches votes, spells out list of factors.
         f.   PAULSON v. SAN DIEGO: violated CA’s No Preference Clause. Unclear what to do about it. Probably
              wouldn’t violate EC. NB: unclear whether CA’s FEC follows a SMITH-like test.
  XI.




LIST OF CASES (FROM SYLLABUS):
  1. 44 Liquormart v. Rhode Island (246-264) [note two categories of regulation, continued ferment,
      return to Lochner?]
  2. Abood v. Detroit Board of Education (323-350) [note: elaborations on Abood, applying Abood
      beyond unions]
  3. Abrams v. United States (11-21) [note: dissent and seditious libel, Massas Publishing, Masses on
      appeal]
  4. Africa v. Pennsylvania (coursepack 205-214)
  5. Airport Commissioners v. Jews for Jesus (311-313) [note “substantial” overbredth] [vagueness
      doctrine on 318-320]
  6. Ballard v. United States (1020-1024) [note: individual brief]
  7. Bartnicki v. Vopper (127-140) [note rights of privacy & 1st Amendment]
  8. Beauharnais v. Illinois (83-88) [note: group libel]
  9. Boy Scouts of America v. Dale (351-380) [note: Dale and precedent, status and message]
  10. Brandenburg v. Ohio (52-62) [note Brandenburg and antecedents]
11. Branzburg v. Hayes (831-844) [note: powell’s enigmatic concurrence, journalists’ privilege in
    lower courts, legislative & executive responses]
12. Butler v. Michigan (603-627) [note: Ginsberg v. new York]
13. Catholic Charities v. Superior Court (coursepack 196-204)
14. Central Hudson (232-237) [optional; note coursepack 51-63: commercial speech in Europe]
    [note 237-239, identifying commercial speech]
15. Chaplinsky v. New Hampshire (69-80) [note antecedents]
16. Church of Lukumi Babalu Aye (1039-1050) [skim] [note: Smith-Lukumi analysis]
17. Citizens United v. FEC (coursepack 64-92)
18. City of Houston v. Hill [note fighting words today] [note overbredth doctrine on 307-308]
19. County of Allegheny v. ACLU (974-1012) [optional]
20. Debs v. United States (see 7-11)
21. Edwards v. Aguilard (952-974)
22. Employment Division v. Smith (1039-1050) [note: free exercise redux, RFRA & RLUIPA]
23. Engel (942-956) [optional school prayer case]
24. Epperson v. Arkansas (952-974)
25. Everson v. Board of Education (867-886) [black majority]
         a. Again at (893-906) [note: two competing principles]
26. FAIR v.Rumsfeld (323-350)
27. FCC v. Pacifica Foundation (603-627) [note: dial-a-porn and Sable]
28. Frohwerk v. United States (see 7-11)
29. Gertz v. Robert Welch, Inc. (106-121) [note: who is a public figure? Public figures in lower court,
    suits by private plaintiffs]
30. Ginsberg v. New York (603-627) [note case]
31. Gitlow v. New York (22-31) [note Gitlow and Lochner, 22-31]
32. Gooding v. Wilson (69-80) [note implications of Gooding]
33. Good News Club v. Milford Central School (1128-1139)
34. Grosjean v. American Press Co (815-831) [note: Grosjean and the Free Press Clause]
35. Hein v. Freedom From Religion Foundation (coursepack 141-173) [note: Hein complaints]
36. Hess v. Indiana (52-62) [note summary reversal in Hess]
37. Hill v. Colorado (416-429) [note: restrictions on abortions protests]
38. Hill v. Scientology (coursepack 29-37) [Canada]
39. Hurley (351-380)
40. Hustler Magazine v. Falwell (121-127) [note: “fact” and “opinion”]
41. Kilborn (coursepack 19-28)
42. Lebach (coursepack 37-45) [note privacy problems]
43. Lee v. Weisman (867-886) [Souter concurrence]
         a. Again at (952-974) [problem: moment of silence policy]
44. Lemon v. Kurtzman (893-906) [skim] [note: the lemon test: three part disharmony] [note on
    925-942: what si the test as modified?]
45. Locke v. Davey (1085-1096) [note: “Mr Chief Justice…” Locke Argument, Play in the Joints, Blaine
    Amendments]
46. McCreary County v. ACLU (867-886) [Scalia dissent]
         a. Again at (974-1012) [optional]
47. Minneapolis Star (815-831) [note Grosjean and Minneapolis Star, discriminating among media
    categories]
48. Morse v. Frederick (755-776) [note: implications of Morse]
49. NAACP v. Alabama (351-380) [note: NAACP and beyond]
50. NAACP v. Claiborne Hardware (52-62)
51. NEA v. Finley (777-800) [note: gov’t funding of legal services (Velasquez), library funding and
    internet access)
52. New York Times v. Sullivan (89-105) [note holding, proving malice, public officials/official
    conduct, beyond public officials]
53. Paulson v. San Diego (coursepack 174-184) [note: CA Constitution excerpts]
54. Pleasant Grove City v. Summum (800-814) [note: gov’t speech]
55. R.A.V. v. City of St. Paul (629-662) [note: implications of RAV, penalty enhancement statutes]
56. Reno v. ACLU (603-627) [note: post-Reno regulation]
57. Reynolds v. United States (1017-1020)
58. Roberts v. US Jaycees (351-380) [note: competing approaches, Hurley]
59. Rosenburger [note case (777-800)]
        a. Same case? Rosenberger v. University of Virginia (1110-1121) [note: free speech / public
             forum overlay]
60. Rust v. Sullivan (777-800) [Note: Rust and Rosenberger]
61. Sable [note case (603-627)]
62. Schempp (942-956) [optional school prayer case]
63. Schenck v. United States (p3-7) [note Schenck and antecedents, Holmes and Saltzer]
64. Schwimmer v. United States (65-67) [note freedom for the thought we hate]
65. Seeger v. United States (1070-1081) [optional]
66. Sherbert v. Verner (1025-1039) [optional]
67. Terminiello v. Chicago (521-525) [optional; note coursepack 96-110: int’l hate speech]
68. Texas v. Johnson (450-469) [note: flag burning]
69. Tinker v. Des Moines Independent School District (p755-760) [note Amar article on coursepack
    1-12] [note: implications of Tinker, from Tinker to Morse]
70. Torcaso v. Watkins (1067-1070)
71. United States v. O’Brien (450-469) [note: symbolic speech and Tinker, incidental burdens on
    expression]
72. United States v. Strandlof
73. Van Orden v. Perry (867-886) [Stevens dissent]
        a. Again at (974-1012) [optional]
74. Velasquez [note case (777-800)]
75. Valentine v. Christensen (223-232) [skim]
76. Virginia State Board of Pharmacy (223-232) [note 1st Amendment and Commercial Speech]
77. Virginia v. Black (629-662) [note: cross-burning and the First Amendment]
78. Wallace v. Jaffree (867-886) [Rehnquist dissent]
        a. Again at (952-974)
79. Watts v. United States (62-65)
80. Welsh v. United States (1070-1081) [optional]
81. West Virginia State Board of Education v. Barnette (323-350) [note: implications of Barnette]
82. Whitney v. California (22-31, focus on concurrence & skim majority]
83. Wisconsin v. Yoder (1025-1039) [optional]
84. Wooley v. Maynard (323-350) [note: Barnette principle, trivializing Barnette [FAIR v. Rumsfeld],
    speech coercion and meaning]
85. Zelman v. Simmons-Harris (925-942) [note: a supreme court scorecard]
Other Articles
  -   Jefferson’s Letter to the Danbury Baptists [coursepack 118-120]
  -   Note: Incorporation of religious clauses (887-892)
  -   Zechariah Chaffee, Jr., “Freedom of Speech in War Time,” 32 Harv. L. Rev. 932 (1919)
  -   Ronald Collins & David Skover, “A Curious Concurrence: Justice Brandeis' Vote in Whitney v.
      California,” 2005 Supreme Court Review 333 (2006).
  -   David Rabban, “The First Amendment In Its Forgotten Years,” 90 Yale L.J. 514 (1981)
  -   Geoffrey Stone, “Judge Learned Hand and the Espionage Act of 1917: A Mystery Unraveled,” 70
      U. Chi. L. Rev. 335 (2003)
  -   Ronald Collins & David Skover, “The Landmark Free Speech Case that Wasn’t: The Nike v. Kasky
      Story,” 54 Case Western Res. L. Rev. 965 (2004) (introduction to a symposium issue)
  -   Boston Review, Democracy After Citizens United,
      http://www.bostonreview.net/BR35.5/ndf_citizens.php (short magazine articles providing a
      good diversity of views about the decision)
  -   Richard Briffault, “Corporations, Corruption, and Complexity: Campaign Finance afterCitizens
      United,” 20 Cornell. J. L. & Pub. Pol. 643 (2011) (first article in symposium issue)
  -   Fox Television Stations, Inc. v. F.C.C., 613 F.3d 317 (2d Cir. 2010) cert. granted, 131 S. Ct. 3065 (U.S.
      2011) (followup case to Pacifica)
  -   Eugene Volokh, “Cheap Speech and What It Will Do,” 104 Yale L.J. 1805 (1995) (focus on Parts II and
      III, outlining social and legal implications of internet communication)
  -   Aaron H. Caplan, “Freedom of Speech in School and Prison,” 85 Wash. L. Rev. 71 (2010), available online
      at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1543857
  -   Aaron H. Caplan, “Visions of Public Education in Morse v. Frederick” (2008), available online
      at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1201869
  -   Caroline Mala Corbin, “Mixed Speech: When Speech Is Both Private And Governmental,” 83 N.Y.U. L.
      Rev. 605 (2008)
  -   Coursepack 121 – 127          FBI Helps Restore Jefferson’s Obliterated Draft
  -   Coursepack 128 – 150          Russell Shorto, “How Christian Were
                                    The Founders?” New York Times Magazine
                                    (February 14, 2010)
  -   Coursepack 111 - 117          Madison’s Memorial and Remonstrance
                                   Virginia Bill Establishing Religious Liberty
  -   Coursepack 185 – 195              Int’l Law on Religious Displays [optional]
  -   Aaron H. Caplan, “Invasion of the Public Forum Doctrine,” 46 Willamette L. Rev. 658 (2010), available
      at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1585406

				
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