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					Speech: isn’t limited to verbalized expression. The court has afforded less protection to the plus aspect of expressive activity. Picketing and parading may be subject to limitations. Press: is the only business expressly protected in the Constitution. Seditious libel: Zinger case rewrote libel laws and today you can say whatever you want about public officials. This kicked off 1 st amendment rights. First National Bank of Boston v. Bellotti (16-18) Whether the Press Clause confers upon the “institutional press” any freedom from the gov’t restraint not enjoyed by all others? NO! Freedom of the press is a fundamental personal right which isn’t confined to newspapers and periodicals. United Artist Corp v. Board of Censors of City of Memphis (19-21) The petitioner has alleged that the Board has banned its motion picture of black kids and that it denied the petitioner the rt of freedom of speech and due process. To bring a 1st amendment cause COA on the ground of abridgment of the rt of freedom of speech may be brought only by someone who has the rt to speak and is denied the privilege of speaking. There was no 1st amendment cause b/c the exhibitors had no standing to sue and only the distributors would have the standing to sue for a denial of freedom of speech. Although the court has never formally defined what constitutes the press case law largely has rejected the premise that media have a higher order of 1 st amendment liberty or rights. Religion: neither a State nor the Federal gov’t can constitutionally force a person to profess a belief or disbelief in any religion Torcaso v. Watkins: the court stuck down a state law requiring a profession of belief in the existence of God as a condition for holding public office. US v. Seeger (24-25) This is a challenge to the Universal Military Training and Services Act which exempts from combat training and service in the armed forces those who by reason of their religious training and belief are conscientiously opposed to participation in war. The test of belief (religion) is whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for this exemption. Welsh v. US (25-26) Man wanted CO status b/c of his political beliefs that war is wrong. Can’t require belief in God in order to constitute religion b/c there are some religions which do not recognize a God. There simply needs to be a belief in a Supreme Being. Political, sociological or philosophical views or a merely personal moral code are not enough to exclude a person from being drafted into the war or being named a conscience objector (CO).

There are 3 Christian beliefs on war: 1. Pacifist: Jesus wouldn’t go to war therefore I wouldn’t go to war. Amish, Quakers, Mennonites 2. The Just-War Theory: there are some wars that are moral and just and there are others that aren’t. There’s a check on the gov’t from taking you into an immoral war. 3. All war is obligated if you are instructed by your gov’t to go to war. There is no moral consideration about whether or not war is good or not. Wisconsin v. Yoder (26-28) Does the WI statute that req’d school attendance violate the Amish people’s rt of their kids to the free exercise of the religious beliefs? The traditional way of life of the Amish isn’t merely a matter of personal preference but one of deep religious conviction shared by an organized group and intimately related to daily living. Probing inquiry into religious belief itself is constitutionally offensive. The refusal of Amish parents to send their children to public school after 8 th grade was a function of their religious belief. Amish society outweighed state’s interest. Thomas v. Review Board, Indiana Employment Security Division (28-29) Whether the states denial of unemployment compensation benefits to the petitioner a Jehovah Witness who terminated his job b/c his religious beliefs forbade participation in the production or armaments, constituted a violation of his 1st amendment rt to free exercise of religion? Religious beliefs need not be acceptable, logical, consistent or comprehensible to others in order to merit 1 st amendment protection. Denied benefits b/c his beliefs were more personal and philosophical then religious. Only religious beliefs are protected by free exercise clause. Incorporation, Preferred Position and Absolutism:  Barren v. Baltimore: the constitution was ordained and established by the people of the US for themselves and not for the gov’t of the individual states.  Selective incorporation the court has incorporated some of the Bill of Rights as applicable to the states; the court has done this through the 14 th amend. All provisions of the 1st amend have been incorporated to apply to all the states.  Gitlow v. NY (1925): the freedom of speech and the press amount to the fundamental personal rights and liberties protected by the due process clause of the 14th amendment from impairment by the states.  Near v. Minnesota (1931): liberty of the press and of speech is w/in the liberty safeguarded by the DPC of the 14th amendment from invasion by state action.  Cantwell v. CT (1940): the fundamental concept of liberty in the 14 th amendment embraces the liberties guaranteed by the 1 st amendment. Selective incorporation.  The court has never embraced the absolutist position on the 1 st amendment: certain forms of speech have been considered outside the scope of constitutional protection (fighting words, obscenity, illegal actions, perjury, sexual harassment, libel and slander). However the language of the amendment sounds as though it is absolute “Congress shall make no law to abridge the freedom of speech”.

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First amendment freedoms are among those constitutional guarantees most carefully protected by standards of review, process and standing. Subliminal speech: isn’t protected by the 1st amendment.

Technology and Expressive Freedom:  The electronic modes of the 20 th century communication have lost a larger part of the 18th and 19th century constitutional protections of no prior restraint, no licenses, no special taxes, no regulations and no laws. Every spectrum user for example must be licensed.  Each new advance in the technology of communications disturbs a status quo.  Three parts of the American communications system: o Print = most free o common carriers = must serve all w/o discrimination (phone, USP, and computer network) o Broadcasting = this is highly regulated and the gov’t must award licenses based on merit and that it is used fairly and for the community welfare. Radio licensing began in 1912 b/c the Navy was experiencing problems w/ interference. Chapter 2: Freedom of Speech The content neutrality rule: the court has held that there are restrictions on fighting words, commercial speech, and obscenity and therefore isn’t covered. Limits to time, place and manner restrictions are ok however content based restrictions are generally not permitted since it results in the gov’t acting as a censor. Content based restrictions must satisfy the strict scrutiny test. Content neutral restrictions must satisfy the intermediate scrutiny test. US v. Playboy Entertainment Group (46-50) There is a challenge to 505 which req’d cable operator’s of sexually oriented programming to scramble or fully block their transmission to hours when children are likely to be viewing b/n 6am and 10pm. The purpose was to shield children seeing or hearing these images. Playboy argues that there is a less restrictive means in which viewers can order a signal block on a house by house basis. Rule: 505 is content based speech restriction it can stand only if it satisfies strict scrutiny. If the state regulates speech based on its content it must be narrowly tailored to promote a compelling state interest. If a less restrictive alternative would serve the gov’t purpose the legislature must use that alternative. Content based regulations are presumptively invalid. Holding: The gov’t failed to show that 505 is the least restrictive means and the statute violate the 1st amendment. City of Renton v. Playtime Theaters (50-57)

This is challenging a statute to a zoning ordinance that prohibits all adult theaters from locating w/in 1,000 ft of any residence, church, park or school. Playtime argued this ordinance violates the 1st and 14th amendment. Rule: Content neutral time place and manner regulations are acceptable so long as they are designed to serve a substantial gov’t interest and do not reasonable limit alternative avenues of communication. The court applied an intermediate test: substantial or important gov’t interest is being promoted. Holding: The Renton ordinance represents a valid gov’t response to the serious problems created by adult theaters. 1st amendment requires only that the city refrain from denying respondents a reasonable opportunity to open and operate adult theaters w/in the city and the ordinance easily meets this requirement. There is no constitutional defect in the method chosen by Renton to further its substantial interest. The ordinance was narrowly tailored to affect only the category of theaters shown to produce the unwanted secondary effects. Dissent:  Renton didn’t show that locating the adult theaters in proximity to its churches will result in undesirable secondary effects.  This is content based discrimination and not as the majority says content neutral. B/c the city singled out adult theaters.  There is a less restrictive alternative that the city could use. Categorically unprotected expression: obscenity, defamation and fighting words are out of the realm of 1st amendment protection. Obscenity: every colony passed statutes outlawing vulgar or obscene language as well as profane and blasphemous words. The early obscenity laws were few in # and rarely enforced. By the turn of the century 30 states enacted some prohibition on the dissemination of obscene materials. Comstock Act: prohibited using the US postal service for distributing a variety of obscene materials. It is still an active federal statute. Roth v. US (61-65) Petitioners, mail-order businessmen, were convicted of mailing obscene materials. The Court concluded that obscenity wasn’t w/in the area of constitutionally protected speech or press. The court determined that the test of whether the materials were obscene was whether, to the average person applying contemporary community standards, the dominant theme of the material taken as a whole appealed to prurient interest, and that the lower courts had applied the proper standard. B/c the material was obscene, 18 U.S.C.S. § 1461 was a proper exercise of the postal power delegated to Congress to punish use of the mail for obscene material. 1st amendment isn’t intended to protect materials that were utterly w/o social importance. The judgments convicting petitioners of violating the state and federal obscenity laws were affirmed.

While searching appellant's home for evidence of bookmaking pursuant to a search warrant, federal and state agents discovered obscene films. Appellant was then convicted of knowingly having possession of obscene. The court held that mere possession of obscene materials could not be a crime and recognized a person’s home is a safe harbor for obscenity, therefore, reversed the judgment. Memoirs test: used although never had the majority vote Material to b obscene 1. Dominant theme appeals to prurient interest in sex 2. Material is patently offensive against community standards 3. Material is truly w/o redeeming social value Justice Stewart on obscenity I know it when I see it.

Stanley v. GA: 66-68

D mailed brochures that contained pictures of sexually explicit activities to individuals who had not requested the material, and the individuals notified the police. After a trial, D was convicted of knowingly distributing obscene matter Rule: this is the test to this day The Court held that the standard to determine whether material was obscene was whether the average person, applying contemporary community standards, not national standards, would find that the work appealed to the prurient interest, whether the work depicted sexual conduct defined by state law, and whether the work lacked serious literary, artistic, or scientific value. The court specifically removed “social value” since they thought that this would be too ambiguous. Dissent this was a 5-4 decision: It’s not up to the court to determine what is obscene that decision should be left up to the people and the legislature.

Miller v. CA: 69- 74

After the determination that the theater owners could be enjoined from showing obscene films, the owners sought certiorari. The Court vacated and remanded. As obscene material wasn’t protected by the 1 st Amend and as the state procedure provided adequate due process, the Court upheld a ruling that obscene materials did not acquire constitutional immunity from regulation simply b/c they were shown only to consenting adults. As the state had a legit interest in regulating commerce in obscene material and in regulating public exhibition of obscene films, nothing precluded the regulation of such materials. Rule: Obscene conduct on commercial premises open to the adult public falls w/in a states broad power to regulate commerce and protect the public requirement since the state has a right to maintain a decent society. Obscene materials didn’t acquire constitutional immunity from regulation simply b/c they were shown only to consenting adults. Dissent this was a 5-4 belief: The gov’t shouldn’t be permitted to sit in judgment of ones tastes or beliefs.

Paris Adult Theater v. Stanton: 74-77

NY v. Ferber: the court upheld a NY statute that prohibits the dissemination of material showing children engaged in sexual conduct, regardless of whether the material is obscene. Surpassing importance of the states interest is preventing the sexual exploitation of children. Child porn is a category of material outside the 1 st amendment. American Booksellers Ass’n v. Hudnut: 80-87 D city enacted an ordinance defining "porn" as a practice that discriminated against women. "Porn" was to be redressed through the administrative and judicial methods used for other discrimination. D city's definition of "porn" was considerably different from "obscenity." The ordinance didn’t refer to the prurient interest, to offensiveness, or to the standards of the community. Ps were of distributors and readers of books, magazines, and films. Ps made, sold, or read just about every kind of material that could be affected by the ordinance. Rule: The ordinance didn’t define pornography in terms of prurient interest, offensiveness, or standards of the community and, thus, wasn’t treated as unprotected obscenity, and the unconstitutional language of the ordinance was content based. Comparative Perspective: Obscenity and Free Speech in Canada: R. v. Butler: 88-103 Butler opened a video store that sells and rents porn videos and magazines. The store has a sign that says that private members only may be admitted, people over 18 and warns that if the sex oriented material offends you not to enter. There was an ordinance that prevented the distribution of obscene materials and the D was arrested and convicted on 8 counts and was fined $1000 per offense. Issue: Whether and to what extent, Parliament may legitimately criminalize obscenity? There are 3 tests: 1. Community standard of tolerance test: is concerned w/ what Canadians wouldn’t tolerate being exposed to themselves, but what they wouldn’t tolerate other Canadians being exposed to. 2. Degradation or dehumanization test: material that degraded or dehumanized people upon whom they are performed exceed the level of community tolerance. 3. Internal necessities test or artistic deference: even material which by itself offends community standard will not be considered undue if its req’d for the serious treatment of a theme Breaks porn into 3 categories 1. Explicit sex w/ violence 2. Explicit sex w/o violence but which subjects people to treatment that is degrading or dehumanizing. 3. Explicit sex w/o violence that is neither degrading not dehumanizing Holding: While the ordinance infringes on section 2 of the charter, freedom of expression it constitutes a reasonable limit and is saved by virtue of the provisions of section 1

Fighting words: are placed among those categories of speech that fall outside the 1 st amendment concern. Chaplinsky v. NH (103-104) this is still the law today Appellant was convicted, for using offensive language towards another person in public (called him a GD fascist). In affirming the lower court's decision, the court noted that there were certain well-defined and narrowly limited classes of speech, the prevention and punishment of which had never been thought to raise any Constitutional problem, such as "fighting" words. Furthermore, the word "offensive" was not defined in terms of what a particular addressee thought, it was defined as what reasonable men of common intelligence understood as words likely to cause an average addressee to fight. The court held that the statute was narrowly drawn and limited to define and punish specific conduct lying w/in the domain of the state power. Rule: There are certain limited classes of speech these words include the lewd, obscene, the profane, the libelous, and the insulting fighting words – words which be their very utterance inflict injury or tend to incite immediate breach of the peace. These 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 may be derived from them is clearly outweighed by the social interest in order and mortality. The court affirmed appellant's conviction under the statute prohibiting the use of offensive words towards another in a public place. Notes: Knetchle doesn’t agree with this holding and believes that conduct not speech should be protected. Since this case the court has never upheld another fighting word conviction and the court has strike down a number of fighting words convictions on 3 grounds: 1. Narrowed the scope of the doctrine to only speech directed to an individual person that causes the person to have a violent reaction. 2. Vague and overbroad 3. Impermissible content based restriction Cantwell v. CT (104-5) This was a unanimous decision Ds were arrested after they distributed religious materials and later convicted. USSC held that the applicable statute deprived Ds of their liberty w/o due process of law in contravention of the 1st and 14th Amends. The Court determined that the secretary of the public welfare council was authorized to w/hold his approval if he determined that the cause wasn’t a religious one. Such authority constituted a denial of liberty protected by the 1st and 14th Amendments. Additionally, there was no showing that the co-D was noisy, truculent, overbearing or offensive when he was on a public street. The co-D's actions did not amount to a breach of the peace. The test is what men of common intelligence would understandably be words likely to cause an average addressee to fight. The characteristic is of plainly tending to excite the addressee to a breach of the peace. Ds' convictions were reversed and remanded. Cohen v. CA (105-110) Appellee argued that the 4-letter expletive imprinted on appellant's jacket that said Fuck the Draft was "offensive conduct" that might provoke others to violence against appellant. He was in the county court house corridor there were women and children present. He didn’t engage in, nor threaten to engage in, not did anyone as a result

of his conduct in fact commit or threaten to commit any act of violence. The USSC disagreed, noting that appellant didn’t engage in any act of violence, or make any loud noises, when he wore the jacket in the municipal courthouse as an expression of his feelings toward the Vietnam War and the draft. A conviction resting solely upon "speech" could be justified under the 1st and 14th Amendment only for the manner that the freedom was exercised, but not for the content of the message. The Court observed that the statute wasn’t limited to protecting courtroom decorum, nor directed at erotic messages, and the message did not consist of "fighting words," directed at readers of the message. That the message was thrust upon unsuspecting viewers, who were not captive and could avert their eyes, did not entitle appellee to protect the sensitive by curtailing all such speech. Moreover, no evidence demonstrated that anyone was prepared to strike out at whoever assaulted their sensibilities. Rule: Just b/c something is offensive doesn’t mean that it is prohibited. Holding: The order affirming appellant's conviction of engaging in offensive conduct through the use of vulgar language was reversed, b/c an expletive printed on appellant's jacket was not repugnant to constitutional speech protections, as no "fighting words" that were likely to prompt a reader to violence were involved, and restraints on offensive content of message was difficult to justify. RAV v. City of St Paul (111-120) – this is the most recent fighting words case Petitioner was charged w/ violating St. Paul Bias-Motivated Crime Ordinance, for allegedly burning a cross in the yard of a black family. Petitioner moved to dismiss the charge challenging the statute as overbroad and impermissibly content-based, thus, violating the 1st Amend. The Court reversed, concluding that even if the expression reached by the ordinance was proscribable under the "fighting words" doctrine, the ordinance was facially unconstitutional b/c it prohibited otherwise permitted speech solely on the basis of the subjects the speech addressed. Rule: 1st Amendment didn’t permit the gov’t to impose special prohibitions on speakers who express views on disfavored subjects. While the statute served a compelling interest, there were content-neutral alternatives available. Holding: this was a unanimous decision The Court struck down a bias-motivated crime ordinance as facially unconstitutional. Wisconsin v. Mitchell: The 1st amendment doesn’t prohibit the penalty enhancement statutes for hate motivated crimes. Penalty enhancement statutes for hate crimes were unanimously upheld by the USSC. Beauharnais v. Illinois (123-128) = this is good law today and group libel exists Petitioner was president of a group called the White Circle League. The league distributed bundles of literature that portrayed depravity, criminality, or lack of virtue of black citizens. The league further called on city officials to halt the invasion of white people, their property, neighborhoods, and persons by black citizens. Petitioner was convicted of a form of criminal libel. The court held that § 471 didn’t violate amend. XIV. Petitioner didn’t show that he had good motives or justifiable ends. The jury could see that petitioner's behavior tended to cause a breach of

peace. The court upheld the conviction. Group libel like individual libel isn’t protected by the 1st amendment. COMPARITIVE PROSPCTIVE: Regina v. Keegstra: Keegstra was a high school teacher and charged w/ violating a Canadian criminal code by unlawfully promoting hatred against an identifiable group by communicating anti-Semitic statements to his student. He thought that the Jews were evil and he expected his students to reproduce his teachings on his exams and if they didn’t they failed the exam. He argued that this infringed on his freedom of expression. Rule: Toy test: 1. Whether the activity of the litigant who alleges an infringement of the freedom of expression falls w/in the protected section 2(b) sphere? 2. Whether the purpose of the impugned gov’t action is to restrict freedom of expression? Three part Oakes test: 1. The measures adopted must be carefully designed and may not be arbitrary and should be rationally related 2. Should impair as little as possible the right or freedom in question 3. There must be proportionality b/n the effect of the measure and the objective that has been identified as of sufficient importance and doesn’t produce effects of such severity so as to make the impairment unjustifiable. Holding:

The effects of this statute aren’t of such a deleterious nature as to outweigh any advantage gleaned from the limitation of section 2(b), the statute is narrowly confined the offense and it is neither overbroad nor vague, the statute represents a minimal impairment of the freedom expression. Conditionally protected expression  Advocacy of illegal action: The Espionage Act of 1917 made it a crime to obstruct the draft or to the cause, or attempt to cause, insubordination in the military. Many socialist and CO’s were arrested under this Act for distributing antiwar literature.
While the US was at WWI, Ds circulated leaflets that urged men to refuse to submit to the draft into military service. For attempting to obstruct military recruitment, Ds were convicted of crimes pursuant to the Espionage Act. Ds contended that the distribution of the leaflets was activity protected by the 1st Amendment. The Court admitted that in many places and in ordinary times, the distribution of the leaflets would have been w/in Ds' constitutional rights. The Court explained, however, that the character of protected speech depended upon the circumstances in which it was expressed. Rule: The test is whether the words were used in such circumstances and were of such nature as to create a clear and present danger that they would bring about the substantive evils that Congress had a right to prevent. During war time utterances

Schenck v. US (154-5)

tolerated during peace time may be punished. USSC upheld convictions even though they weren’t inciting violence. Abrahams v. US (157-163) 5 Russian born Ds were charged w/ conspiring, when the US was at war w/ Germany, to publish disloyal language about the form of gov’t of the US, which was intended to bring the form of the gov’t into contempt, to incite resistance to the US in the war, to advocate curtailment of production of ammunition essential to the war. The D’s lived in the US from 5-10 years however none had applied for naturalization. Three of the men avowed that they were anarchists and a 4 th said that he was a socialist. The Court ruled that there was substantial evidence to support the verdicts charging Ds w/ intending to incite resistance to the war and to curtail the production of ammunition. Rule: The US can punish speech that produces or is intended to produce clear and imminent danger that it will bring about forth w/ certain substantive evils that the US constitutionally may seek to prevent. The Court affirmed Ds' convictions. Whitney v. CA (164-168) Whitney sought review of a judgment affirming her conviction under the state Criminal Syndicalism Act. The conviction was based on her involvement w/ the Communist Labor Party, including membership in the party. On appeal, petitioner claimed the Act and its application to her case violated the DPC and EPC. The USSC affirmed the judgment upholding the conviction. The court held that it had jurisdiction to review the state court's judgment where an order of the appeals court indicated that a federal question regarding the Act's constitutionality had been presented and decided. Rule: The essence of the offense was the combining w/ others in an association for the accomplishment of desired ends through the advocacy and use of criminal and unlawful methods and that the Act was not an unreasonable or arbitrary exercise of the police power of the state that unwarrantably infringed any right of free speech, assembly, or association. The Act, as applied, did not violate the Due Process or EPC. The petitioner's conviction was affirmed. Dennis v. US: TEST: Whether the gravity of the evil discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger. This is a watered down version of Schenck (this eliminates the req that danger be clear, minimized the importance of present and increased the importance of evil Brandenburg v. OH (168-172) Petitioner was a leader of the KKK and was convicted by the OH courts after a TV news report was aired broadcasting speeches made by petitioner. He was charged w/ violating OH's criminal syndicalism statute, which made it unlawful, to advocate crime or methods of terrorism or to voluntarily assembly w/ any group to teach or advocate doctrines of syndicalism. The USSC concluded that, b/c OH's criminal syndicalism statute didn’t draw a distinction b/n teaching the need for force or violence and preparing a group for violent action, the statute unconstitutionally intruded on the rights guaranteed by the amends. I and XIV.

Rule: This case overruled the Whitney (woman convicted for teaching Communism) holding. Teaching the need for violence isn’t the same as preparing a group for violent action. Therefore teaching the need for violence is protected under the first amendment whereas the actual preparation isn’t. The USSC reversed the petitioner's conviction and the statute was declared unconstitutional. Defamation: the colonists protected a person’s reputation through defamation law however they were most concerned w/ seditious libel (defamation of gov’t officials). The colonists recognized 3 types of defamation: 1. Scandalum magnatum: Deriding high public officials or great men through charges of incompetence, unfairness, or disloyalty as well as personal insults. 2. Seditious criticism of gov’t laws, practices and policies such as levying of taxes 3. Prosecuted citizens who spread false news that endangered the gov’t

Newspaper sought review of a decision upholding a judgment awarding respondent damages in a civil libel action. The paper had published a full page article in the NY Times that had been paid for by 4 clergymen that criticized how the police had handled the non-violent civil rights protest. Sullivan was the police commissioner and was angry w/ the paper that he and the police force had been libeled. The Court held that the rule of law applied by the AL courts was constitutionally deficient for failure to provide petitioner the safeguards for freedom of speech and of the press that were guaranteed by the 1 st and 14th Amendments in a libel action brought by a public official against critics of his official conduct. Rule:  This case req’d a rule that prohibited a public official from recovering damages for a defamatory falsehood relating to the public official's official conduct unless the official proved that the statement was made w/ actual malice.  The Court defined actual malice as knowledge that the defamatory statement was false or made w/ reckless disregard of the truth whether it was false or not.  P has the burden of proof to prove actual malice w/ clear and convincing clarity.  Respondent presented no evidence to show petitioner was aware of erroneous statements or was in any way reckless in that regard. Dissent: 1st amendment is absolute when it comes to criticizing public officials about their official conduct.  In Curtis Publishing v. Butts the court extended the actual malice requirement to libel action brought by public figures (people that have access to the media “both to influence policy and to counter criticism of their views and activities) Rosenbloom v. Metromedia: if the matter is of public interest the NY Times standard applies despite the fact that the person involved may be a private citizen. Gertz v. Welch (184)

NY Times v. Sullivan (177-182)

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Facts: After a policeman killed a youth, the youth's family retained petitioner (an attorney) to represent them in a civil action. During the trial, respondent (org) published an article about petitioner that labeled him as a "Communist" and a member of a Marxist org. B/c the statements contained serious inaccuracies; petitioner filed a libel action against respondent. The USSC reversed and remanded, holding that petitioner wasn’t a public figure. The state's interest in compensating injury to the reputation of a private individual req’d a different rule. The Court held that the states could define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injuries to a private individual. Rules:  The states could not permit recovery of presumed or punitive damages absent a showing of knowledge of falsity or reckless disregard for the truth.  It is possible or someone to become a public figure through no purposeful action of his own however for the most part they are people who attain this status through assumed roles of special prominence in the affairs of society.  Private individuals are more vulnerable to injury since they have less of an opportunity to counteract false statements then private individuals normally enjoy, which is why the states interest in protecting them is greater. Holding: The Court reversed the court of appeals' decision and held that the facts showed petitioner was a private figure and not a public figure since he had not thrust himself into the public’s eye. Dun v. Greenmoss: a credit reporting agency sent out a report falsely stating the construction co had voluntarily filed for bankruptcy. The jury awarded $50,000 in damages and $300,000 in punitive damages. The USSC held that the state interest adequately supports awards of presumed and punitive damages even absent a showing of actual malice since the report was speech solely in the individual interest and a private concern and private interest they weren’t req’d to prove actual malice to collect punitive damages. Hustler Magazine v. Falwell: Falwell a nationally known minister sued Hustler over a parody in their magazine which was about his first sexual experience w/ his mom in an outhouse. The suit failed on libel since it was a parody and no one would have reasonably believed that this was true. In regards to the intentional infliction of emotional distress claim failed since he didn’t prove that the magazine published the parody w/ actual malice since they knew that it was false when it. The court didn’t like the “outrageous” test b/c it was too subjective. FL Star v. BJF: the court reversed a decision of a lower court that held the paper civilly liable for releasing the name of the rape victim. The court held that the paper wasn’t liable since the newspaper lawfully obtained the name of the victim from the police report, the article in which the name appeared concerned an important public matter (commission of a violent crime) and the state had failed to demonstrate a commitment to preserve the rape victim’s privacy. Comparative Perspective: Australian Defamation and the Public figure Exception: Theophanous v. The Herald and Weekly Times: 192-200 Theophanous is a member of the House of Representatives and played a primary role in migration issues. Campbell criticized the P’s vie and conduct in relation to

migration issues and published this comment. The 2 nd D Ruxton and the Herald published in the paper a letter written by Ruxton entitled “give Theophanous the Shove”. Rule: The burden should be on the D and not on the P to show actual malice. This case criticized NY Times v. Sullivan. The D should be req’d to establish that the circumstances were such as to make it reasonable to publish the impugned material w/o ascertaining whether or not it was true or false. The D should show that they took steps to check the accuracy of the material or establish that it was otherwise justified in publishing the material. The D should be liable for damages unless it can establish that it was unaware of the falsity that it didn’t publish recklessly and that the publication was reasonable. There is no reason to include malice as an element in the test to be applied. Commercial speech: typically refers to ads. Commercial speech w/o any 1 st amendment protection includes: false and misleading speech and ads for illegal transactions. Not protected b/c it is the states interest to prevent the harm that will arise from the false or illegal speech that is of very low value. Relates solely to the economic interests of the speaker and its audience. Commercial speech was once held wholly outside the scope of the 1 st amendment this changed in 1975 w/ Bigelow v. VA: the court held that printing an advertisement for an abortion agency was protected. VA State Board of Pharmacy v. VA Citizens Consumers Council (202-208) Ps were an individual VA resident, who used prescription drugs on a daily basis, and 2 nonprofit orgs. Ps claimed amend. I entitled the user of prescription drugs to receive ads and promotional info from pharmacists concerning the prices of prescription drugs. Ds, VA State Board of Pharmacy, were against commercial advertising of prescription drug info as Ds were concerned w/ maintaining the integrity of the profession. They were afraid this would lead to fighting over prices. Rule: A consumer's interest in the free flow of commercial information was protected by the 1st Amendment, as it was indispensable to well-informed private economic decisions. Legislature may prohibit all false and misleading ads and also prohibit ads seeking to induce transactions that are themselves illegal. Central Hudson Gas and Electric Corp v. Public Service Commission of NY (208-209) Gov’ts ads asking people to conserve energy are protected since this isn’t a false or illegal activity. There is a 4 part test to determine the constitutionality of gov’t regulations of commercial speech: this is still the test today!!! 1. Must be a lawfully activity that isn’t misleading. 2. The gov’t must have a substantial interest: intermediate scrutiny 3. Regulation must directly advance the gov’t interest asserted. 4. Regulation must not be more extensive than is necessary to serve that interest. a. The gov’t has the burden Posada’s de Puerto Rico v. Tourism Co of Puerto Rico: 209

Illegal for Puerto Rican’s from gambling but not for tourists. The court upheld a ban on grounds the commonwealth has an important interest in reducing local demand for gambling, the restriction directly advanced this aim, and that the regulation was no more extensive than necessary to achieve the commonwealth’s interest. Therefore the legislature could shield Puerto Rican residents from casino advertising b/c it might induce them to gamble and need not rely on its own counter-speech to discourage gambling. Cincinnati v. Discovery Network: 211 The court struck down a municipal ordinance banning sidewalk news racks that distributed commercial handbills but not those that dispensed newspapers. The court held that the handbills weren’t anymore of an eye sore then the newspapers. The court held that you can’t differentiate b/n the two. The state can’t assert a legit gov’t interest to clean up the town if they allow the magazine racks to stay and not the handbills. US v. Edge Broadcasting: 211 Upheld a federal law that prohibited lottery ads by radio stations located in states that didn’t operate lotteries. The court held that the gov’t broadcasting restriction and its interest in supporting state’s anti-lottery laws was sufficiently close to satisfy the Central Hudson test. Greater New Orleans Broadcasting v. US: 212 The court struck down a federal statute that banned LA broadcasters from running ads for legal LA casinos. The statute banned the ads since they reached into states (TX and AL) that banned private casino gambling. The court struck this down since gambling wasn’t illegal in LA. Rubin v. Coors Brewing Co: 212: A provision of the FAA prohibiting beer labels from displaying alcohol content violated the 1st amendment. The brewery held that they were attempting to prevent “strength wars” b/n brewers. The regulatory scheme was found irrational since it req’d the listing only on the labels and not on the ads. There were alternative ways to prevent strength wars. Can display alcohol content. FL Bar v. Went For It: 212-213 The court held that the Fl Bar’s rule prohibiting direct mail solicitation of victim’s w/in 30 days following an accident or disaster met the Central Hudson test. The state has a strong interest in protecting injured FL’s from invasive conduct by lawyers and preventing the erosion of confidence in the profession that such repeated invasions have engendered.

Petitioner liquor stores sought declaration laws which prohibited alcohol price ads, violated the 1st Amendment. The USSC concluded that the statutes abridged speech in violation of amends. I, as made applicable to the states by the DPC. The Court said that the regulations were blanket bans on ads and thus req’d special care in analysis. It said the commercial speech was protected and the governmental interest in reducing alcohol consumption was substantial, but the regulations didn’t directly advance the governmental interest asserted. Rule:

44 Liquor-mart v. RI (214-222)

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This case revised and rejected its Posada analysis. A blanket ad ban is an abridgment of speech protected by the 1 st amendment A federal law abridging a brewer’s right to provide the public w/ accurate info about the alcoholic content of malt beverages is unconstitutional. These statutes failed under strict scrutiny b/c can’t have an absolute ban on truthful ads.

Campaign financing, corporations and the political process: Congress has the power under the constitution to regulate the election of federal officers, including the president and the VP. The congressional power includes the authority to protect the elective processes against the two great and natural and historical enemies of all republics, open violence and insidious corruption. Burroughs v. US: the court upheld the Federal Corrupt Practices Act which req’d political committees to keep records and file reports concerning all contributions and expenditures received and made by political committees for the purposes of influencing the election of candidates for federal office. The Watergate investigation raised concerns about the corruption of election campaigns: 1. Large contribution might influence the future policies of elected officials as well as 2. Large expenditures by candidates that gave them an unfair advantage over less wealthy opponents. Federal Election Campaign Act of 1971: regulated 4 aspects of campaign financing: 1. Limited the amount of political contributions to candidates for federal elective office by an individual or a group 2. Limited the amount of expenditures by individuals or groups “relative to a clearly identified candidate” and by a candidate from his personal or family funds, 3. Required political committees to keep detailed records of contributions and expenditures and to file quarterly reports. 4. Created an 8 member Federal Election Comm’n as the administering agency w/ the record keeping, adjudicatory and enforcement powers. Buckley v. Valeo, 424 U.S. 1 (U.S., 1976) Ps, candidates, contributors, political parties, and others, brought suit against D gov’t officials, in their official capacity and as members of the Federal Election Comm’n. Ps challenged the constitutionality of the Act. The Court found that the individual and political committee contribution limits, the disclosure and reporting provisions, and the public financing scheme were justified by weighty interests in restricting influences stemming from the dependence of candidates on large campaign contributions. The Court held, however, that the limitations on campaign expenditures were unconstitutional b/c they placed substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in political expression that was protected by the 1st amend. Rule:  Limitations on campaign expenditures (ads) were unconstitutional b/c they placed substantial and direct restrictions on the ability of candidates, citizens, and associations to engage in political expression that was protected by the 1st Amend.



Limits on campaign contributions are constitutional to avoid influence.

Nixon v. Shrink Missouri Gov’t PAC: 236-248 There was a bill in MS passed that limited contributions permissible for candidates to state office. Respondents (politicians) sought to enjoin enforcement of the contribution statue as violating their 1st and 14th amendment. Issue: Whether Buckley v. Valeo ($1000 cap for contributions which can occasionally be increased) is authority for state limits on contributions to state political candidates and whether the federal limits approved in Buckley w/ or w/o adjustment for inflation define the scope of permissible state limitations today? Rule:  The test to use is whether the contribution limitation was so radical in effect as to render political ass’n ineffective, drive the sound of a candidate’s voice below the level of notice, and render contributions pointless?  There are limitations on contributions  There are no limitations on expenditures. Holding: This case upheld Buckley and held that the constitutional interest in limiting contributions to political campaigns prevents corruption or the appearance of corruption is a gov’t interest that outweighs an individuals rights to contribute a large amount of money to the politician campaign. Dissent: 3 Voted to overrule Buckley 1st Nat’l bank of Boston v. Bellotti: the court struck down a Mass criminal statute prohibiting corporate expenditures to influence the vote in any referendum other than one materially affecting any of the property, business, or assets of the corp. except those concerning the taxation of individuals. FEC v. Massachusetts Citizens for Life: the court held that a the requirement that corp. finance political expenditures through special segregated funds rather than treasury funds was unconstitutional b/c it posed too burdensome an administrative hurdle on the political expression of small, nonprofit corp. Austin v. Michigan Chamber of Commerce: 249-260 Respondent, state chamber of commerce, brought an action to challenge the constitutionality of § 54(1) of the Michigan Campaign Finance Act, which prohibited corps from using corporate treasury funds for independent expenditures in support of, or in opposition to, any candidate in elections for state office. Rule: § 54(1) was constitutional b/c the provision was narrowly tailored to serve the compelling state interest of eliminating from the political process the corrosive effect of political war chests amassed w/ the aid of the legal advantages given to corps. Holding: The Act is constitutional b/c it is narrowly tailored to serve a compelling state interest.

Symbolic and unconventional modes of Speech: Speakers claim 1st amendment protection for destroying a draft card, sleeping in a nat’l park and burning an American flag. Cases involve symbolic speech concern gov’t attempts to regulate speech based on its non-communicative impact, rather than its message. US v. O’Brien: 264-267 Universal Military Training and Service Act prohibited the knowing destruction of Selective Service registration certificates. D was convicted and sentenced after he publicly burned his registration certificate in an attempt to influence others to adopt his antiwar beliefs. D argued that the amendment was unconstitutional in its application and as enacted b/c of Congress' alleged purpose to suppress freedom of speech. The Court held that a sufficient governmental interest justified the conviction b/c of the govt's substantial interest in assuring the continuing availability of issued Selective Service certificates, b/c the amendment condemned only the independent non-communicative impact of conduct w/in its reach, and b/c the noncommunicative impact of D's act frustrated the govt's interest. 7 to 1 affirmed the conviction as well as the law after applying intermediary scrutiny. Rule: INTERMEDIARY  Content neutral O’Brien’s 4 prong test: A gov’t regulation is sufficiently justified if: 1. it is within the constitutional power of the Gov’t; 2. if it furthers an important or substantial governmental interest; 3. if the gov’t interest is unrelated to the suppression of free expression; and 4. If the incidental restriction on alleged First Amendment freedoms is not greater than is essential to the furtherance of that interest." Clark v. Community for Creative Non-Violence: 268-277 The demonstrators' permit, which was issued by the Nat’l Park Service, authorized the erection of two symbolic tent cities to demonstrate the plight of the homeless, but it didn’t permit them to sleep in the tents. The demonstrators filed an action to prevent the application of the no-camping regulations to the proposed demonstration, which, it was claimed, wasn’t covered by the regulation. The Secretary argued that prohibited camping in the nat’l memorial-core parks. Rule:  The ban on camping didn’t violate the 1 st Amend.  The court found that the demonstrators' proposed activities fell w/in the definition of camping and the ban on camping was a reasonable time, place, and manner limitation to protect the park.  The Court also found that the ban was content-neutral and didn’t interfere w/ the demonstrators' message regarding the homeless.  The regulation narrowly focused the government's substantial interest in maintaining the parks in an attractive and intact condition for visitors. Holding: This was content neutral and this restriction wasn’t about the content TX v. Johnson (279-286) Respondent participated in a political demonstration where he doused the American flag w/ kerosene and set it on fire. Respondent was charged and convicted of desecration of the flag. The USSC held that petitioner's interest in preventing

breaches of the peace didn’t support respondent's conviction b/c his conduct didn’t threaten to disturb the peace. Petitioner's interest in preserving the flag as a symbol of nationhood didn’t justify the conviction for engaging in political expression. The statute which made it a crime to burn an American flag was unconstitutional and thus the D’s conviction was reversed (this was a 5-4 decision). Rule:  Interest in preventing breaches of the peace didn’t support respondent's conviction b/c his conduct didn’t threaten to disturb peace; interest in preserving the flag as a symbol of nationhood didn’t justify a criminal conviction for engaging in political expression.  1st amendment protects symbolic expression (flag burning) so long as it doesn’t create a public hazard (such as yelling fire in a crowded building)  O’Brien test is a lower level of scrutiny then strict scrutiny.  The fact that an audience takes offense to something isn’t a reason for prohibiting it. Speech in the Public Forum:  Assembly is expressed protected under the 1 st amendment however the property that is available for such assembly may be limited.  Public forum: sidewalks and parks, the gov’t must make these available for assembly and speech however the court can limit this right so long as it passes the following 4 prong test: 1. Regulation must be content neutral 2. Must be reasonable time, place, manner restriction, and allow the speaker an adequate alternative means of communicating their message. 3. Permit and licenses requirement must serve an important state interest 4. Regulation must be narrowly tailored to the states interest.  The gov’t has recognized 3 types of forums: 1. Public forum: Places which by long tradition have been devoted to assembly and debate such as parks, streets and sidewalks. The court will apply strict scrutiny. 2. Limited public forums: also applies strict scrutiny to designated public forums which the gov’t had opened for the use by the public as a place for expressive activity, such as public schools or a state fairground. The gov’t may later choose to close a limited public forum. 3. Non-public forums: which is not by tradition or designation for public communication, the gov’t may exclude speakers based on the content of their message. This doesn’t apply strict scrutiny.  There is no right to use private property for assembly b/c it is privately owned there is no state action therefore the constitution doesn’t apply. Davis v. Mass (287-289) D was charged in Boston's municipal court with violating § 66. He contended that the ordinance violated his rights under the 14 th Amendment. His motion was overruled, and a jury convicted him. Court held that § 66 showed an assumption by the Commonwealth of control over the public grounds in question. In affirming, the Court stated that there was no rt for D to use the public grounds except in such mode and subject to such regulations as the legislature deemed proper to prescribe and that the 14th Amend didn’t destroy the states' power to enact police regulations as to the subjects w/in their control and didn’t have the effect of creating a rt to use public

property in defiance of the state's constitution and laws. The Court affirmed D's conviction. Scheider’s v. NJ (289-292) Ds were convicted under municipal ordinances forbidding or regulating the distribution of literature in the streets or other public places. Three of the acts took place in the streets and the 4 th was by distribution of circulars by house to house visitations w/o a permit. Ds challenged their convictions. Concerning the three cases where Ds were convicted for distributing literature in the street, the Court held that the purpose of the ordinances to keep the streets clean and of good appearance was insufficient to justify prohibiting Ds from handing out literature to other persons willing to receive it. Any burden imposed upon the city authorities in cleaning and caring for the streets as an indirect consequence of such distribution resulted from the constitutional protection of the freedom of speech and press. Concerning the distribution of materials from house to house w/o a permit, the ordinance was void. The ordinance banned unlicensed communication of any views or the advocacy of any cause from door to door and permitted canvassing only subject to the power of a police officer to determine, as a censor, what literature could be distributed and who could distribute it. The Court reversed Ds' convictions for distributing literature in streets and other public places and remanded the cases. However a municipality may enact legislation in the interest of the public safety, health, welfare or convenience, these may not abridge the individual liberties secured by the constitution to those who wish to speak, write, print or circulate info or opinion. Adderley v. FL (292-297) Several students were convicted after they were arrested for demonstrating, on jailhouse grounds, against the arrest of other students who had been protesting against state and local policies and practices of racial segregation. The Court rejected the claim that the statute was unconstitutionally vague, ruling it was clearly aimed at conduct of one limited kind, that is, trespass onto another's land w/ a malicious and mischievous intent. The Court then ruled that the students' prosecutions weren’t abated b/c a trespass could be prosecuted regardless of the fact that it was the means of protesting segregation of establishments covered by the Civil Rights Act of 1964. The Court then ruled that the evidence, as established by the record and the students' own summary of the facts, support the jury's verdict of guilty. The court affirmed the convictions of the D’s (protesters). Rule:  Since the jail is state owned property the state has the right to limit the use of the property and to prevent people from speaking and assembling at the jail to protest. The state was authorized to preserve the property under its control for the use to which it is lawfully dedicated; the students' 1 st Amend rights weren’t violated.  The 1st amend doesn’t deprive the gov’t from the power to preserve its property for its intended use. Time, place and manner restrictions: Speech in traditional public forums may be subject to gov’t limits on time, place, and manner, provided that the regulation is content neutral, promotes a substantial gov’t interest, and allows the speakers adequate alternative means of communicating their message. Typical restrictions include licensing schemes for parades on public streets, restrictions on the hours of door-to-door solicitation, and limits on the location of sidewalk picketing.

Heffron v. International Society for Krishna Consciousness: the court validates the requirement that the Krishna Society confine its solicitation of donation and distribution of religious literature to a licensed booth on the fairgrounds was a valid time, place and manner regulation and served a significant state interest in maintaining the orderly movement of crowds at the fair. Frisby v. Schultz (299-304) Appellees were strongly opposed to abortion and expressed their views by picketing on a public street outside the resident of a Dr who performed abortions. The town board enacted an anti-picketing ordinance that made it unlawful to engage in picketing before or about any individual's residence in the town. Appellees filed an action for injunctive relief, which the trial court granted. The court found that the ordinance wasn’t narrowly tailored enough to restrict protected speech in a public forum, which the appellate court affirmed. The USSC granted appellants' petition for certiorari to determine whether the ordinance was constitutional, as appellants asserted. The Court found that streets were considered to be public forum. However, the Court found the state had a legitimate interest in protecting the unwilling listener while in their house. Therefore, b/c the picketing was considered to be intrusive, the ordinance was narrowly tailored and was constitutional. Rule:  Individuals aren’t req’d to welcome unwanted speech into their homes and that the gov’t may protect this freedom.  A statute is narrowly tailored if it targets and eliminated no more than the exact source of the evil that it seeks to remedy. Ward v. Rock against Racism (305-310) Respondent's rock concert took place in an amphitheater and stage structure known located in city's park. In close proximity was a grassy open area, which the city designated as a quiet area for passive recreations. Just beyond the park were apartments and residences. The city attempted to regulate the volume of amplified music at the band shell so the performances were satisfactory to the audience w\o intruding upon those using the grassy area or living in the vicinity. The regulation req’d performers to use sound-amplification equipment and a sound technician provided by city. Respondent sought damages and a declaratory judgment striking down the guidelines as facially invalid. The USSC reversed, holding that the regulation met the demands of the 1 st Amend didn’t require the city to prove that its regulation was the least intrusive means of furthering its legitimate gov’t interests . Rule:  The regulation on the volume of the amplified music at the band shell was valid as a reasonable regulation of the place and manner of expression b/c it was content neutral and narrowly tailored to serve the city's legitimate public interest in protecting citizens from unwelcome noise.  Restrictions on time, place and manner aren’t invalid simply b/c there is some imaginable alternative that might be less burdensome on speech Ladue v. Gilleo: court invalidated a town ordinance that banned all residential signs w/ some exceptions in order to minimize visual clutter. Possible alternatives were inadequate since the audience intended to be reached through residential signs on your front lawn couldn’t be reached as well by these other means of communication. Regulating the secondary effects of speech:

Secondary effects: non speech justification for regulating speech. In Young v. American: court upheld an ordinance that restricted the location of adult movie theatres. The Court concluded that the ordinance was content neutral by focusing on the gov’t interest in combating the theaters secondary effects. City of Renton v. Playtime Theaters (312-318) Appellee adult motion picture theaters sought a declaratory judgment that a zoning ordinance of appellant city violated amend. I and XIV. The zoning ordinance prohibited adult motion picture theaters from locating w/in 1,000 ft of any residential zone, single- or multiple-family dwelling, church, park, or school. This ordinance was constitutional. Rule:  Secondary effects may be relevant to the constitutionality of time, place, and manner restrictions of speech on public property.  Content-neutral time, place and manner restrictions are acceptable so long as they are designed to serve a substantial gov’t interest and don’t unreasonably limit alternative avenues of communication  Zoning ordinances designed to combat the undesirable secondary effects are to be reviewed under the standards applicable to content-neutral time, place and manner restrictions City of Eerie v. Paps AM (320-328) The state supreme court determined that petitioner City's ordinance banning public nudity violated respondent operator of totally nude dancing establishment's right to freedom of expression under amend. I. Since the ordinance was content-neutral, the O'Brien test for evaluating restrictions on symbolic speech applied. Since petitioner's ordinance satisfied that test, the state supreme court's judgment was reversed. Rule:  The ordinance was content-neutral b/c it regulated conduct alone, didn’t target nudity that contained an erotic message, and petitioner's interest in preventing harmful secondary effects associated w/ adult entertainment establishments wasn’t related to the suppression of the exotic message conveyed by nude dancing.  If the gov’t purpose in enacting the regulation is unrelated to the suppression of expression then the regulation need only satisfy the lesser stringent standard from O’Brien.  secondary effects: an activity that adversely impacts and threatens to impact on the public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of STDs and other deleterious effects.  Incidental burdens: when speech and non-speech elements are combined in the same course of conduct and the gov’t interest in regulating the latter.  Nakedness is conduct and not speech The limits on public forums: Quintessential traditional public forums were parks, streets and sidewalks. International Society for Krishna Consciousness v. Lee (329-343)

Petitioner religious group sought a declaratory judgment that a regulation limiting distribution of literature and solicitation at an airport to areas outside the terminals violated amend. I, and sought an injunction preventing respondent police superintendent from enforcing the regulation. The USSC affirmed holding that airports weren’t public forums therefore respondent's regulation limiting speech was req’d to be reasonable. Rule:  Airports weren’t traditional public forums b/c their traditional purpose wasn’t to promote the free exchange of ideas but to facilitate air travel. Therefore, the regulation needed only to be reasonable.  The regulation was reasonable b/c it promoted respondent's interest in crowd control and efficient air travel  Restrictions need only satisfy a requirement of reasonableness; need not be the most reasonable or the only reasonable limitation. Injunctions: The speakers in Madsen violated a court injunction that restricted the actives near a clinic that performed abortions. The court considered whether the injunction should be treated differently when analyzed under the 1st amendment compared to the treatment of ordinance analysis. What standard analyzes injunctions and is that analysis different then that used for ordinances and statutes. Madsen v. Women’s Health Center (344-357) Petitioners, antiabortion protesters, challenged the constitutionality of an injunction entered by a FL state court which prohibited them from demonstrating in certain places and in various ways outside of a health clinic that performed abortions. Court upheld the noise restrictions and the buffer zone around the clinic entrances and driveway b/c they burdened no more speech than necessary to eliminate the unlawful conduct targeted by the state court's injunction. However, the Court struck down as unconstitutional the buffer zone as applied to private property to the north and west of the clinic, the images observable provision, the no-approach zone around the clinic, and the larger buffer zone around the residences b/c the provisions swept more broadly than necessary to accomplish the permissible goals of the injunction. Rule:  The analysis that applies to injunction is to determine whether challenged provisions of the injunction burdened no more speech than necessary to eliminate the unlawful conduct and to promote the important gov’t interest.  If the court took the dissent’s opinion it would have to find that all injunctions were content based. Dissent: Argues that the injunction was content based and that it violated the 1 st amendment in that it was not = applied to pro-choice supporters. Government supported Speech:  Historically there was a rts privilege condition. There was restriction imposed on what people were allowed to say when they were employed by the state.

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McAuliffe v. New Bedford: the petitioner has a constitutional rt to free speech to talk politics but there is no rt to be a policeman, therefore he could be rightly fired for discussion politics at work. This approach has been replaced by a balancing approach o Pickering v. Board of Ed: a teacher was allowed to write a letter to the editor even w/ erroneous facts complaining about the school board’s handling of the funds wasn’t grounds to fire the teacher. o

Rankin v. McPherson: 360-366 Respondent was terminated from her position as a deputy constable (secretary) when a co-worker overheard a comment she had made regarding a president Reagan assassination attempt. She said she wished he was shot and she was fired. The Court weighed the speech, which was clearly a matter of public concern, against petitioner's interest in maintaining discipline in the workplace. It was found that respondent had not discredited her office by making the comment b/c of her position. The Court concluded that the termination was improper given the function of the agency, respondent's position in the office, and the nature of her statement. Rule: 1. Public concern  public interest and public debate there is greater protection for these matters. Talk regarding an attempted assignation on the president is a matter of public concern. A private employer can restrict both public and private concerns. a. The court will use a balancing test: balance b/n the interests of the employee (citizen) in commenting upon matters of public concern and the interest of the state as an employer in promoting the efficiency of the public services it performs through its employees. The pertinent consideration whether the statement impairs discipline by superiors harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duty or interferes w/ the regular operation of the enterprise. b. Where the employee serves no confidential, policy making, or public contact role, the danger to the agency’s successful functioning from that employee’s private speech is minimal. 2. Private concern  there is little gov’t interest to protect these matter Gov’t subsidies: the gov’t may not condition the conferral of a benefit on the beneficiary’s waiver of a constitutional rt, although the gov’t may choose not to provide the benefit altogether. 1. Speiser v. Randall: denial of funding for engaging in certain speech necessarily will have the effect of coercing the claimants to refrain from proscribed speech. The court invalidated a rule requiring anyone who sought to take advantage of property tax exemption to sign a declaration stating that he didn’t advocate the forcible overthrow of the gov’t of the US. 2. Regan v. Taxation w/ representation of Washington: upheld an internal venue code provision that allowed veteran’s orgs to engage in political lobbying w/ tax deductible contribution while denying this benefit to other charitable orgs 3. Selective taxation based on content of a magazine isn’t ok if its based on the material the magazine. Rust v. Sullivan: 369-375

Public Health Service Act challenged the validity of the Dept of Health and Human Services regulations which limited the ability of Title X fund recipients to engage in abortion-related activities. The USSC affirmed holding that the regulations were a permissible construction of the underlying legislation and didn’t violate either amend. I or amend. V. It said that the Constitution didn’t require the gov’t to distort the scope of its program in order to provide info about abortion to indigent women where the statute doesn’t encroach on a doctor's ability to provide or a woman's rt to receive info concerning abortion-related services outside the Title X project. Decision upholding the health department regulations limiting the ability of Title X fund recipients to engage in abortion-related activities affirmed where the Court held that the regulations were a permissible construction of the underlying legislation and did not violate either the First or Fifth Amendments. Rule:  The gov’t can w/o violating the constitution, selectively fund a program to encourage certain activities it believes to be in the public interest, w/o at the same time funding an alternative program which seeks to deal w/ the problem in another way.  Unconstitutional conditions: gov’t placed a condition on the recipient of the subsidy rather than on a particular program or service, thus effectively prohibiting the recipient from engaging in the protected conduct outside the scope of the federally funded program. Speech in public schools:  Tinker v. Des Moines School District: the court rejected the argument that students lose their rt to free expression when they enter the school grounds. School offices violated the 1 st amendment by imposing a ban on armbands after three students wore armbands in protest of the Vietnam War. Passive wearing of the armbands hadn’t interfered w/ the school’s work. Therefore the school had not justified its infringement.  Tinker ROL  to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. For the prohibition to be sustained there must be a showing that there would materially and substantially interfere w/ the requirements of appropriate discipline in the operation of the school.  Bethel School District v. Fraser: the court upheld the 3 day suspension of a student who delivered a speech nominating a school mate for school office at an assembly in which he referred to the candidate in terms of a graphic sexual metaphor. The student’s sexual innuendo interfered w/ the schools educational mission. The determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests w/ the school board. Vulgar speech and lewd conduct is wholly inconsistent w/ the fundamental values of public school education. Hazelwood School Districts v. Kuhlmeir: 379- 385 The students brought an action against petitioners for allegedly violating their rights under amend. I. The principal didn’t believe the students' articles were appropriate for publication b/c the identity of the students in the articles would be easily ascertained. The principal made the decision to eliminate two pages from the newspaper, which removed the articles from publication. The articles that the students had written were students own stories of teen pregnancy and the effect of their parents divorce on them. The Court found that the principal's actions weren’t

unreasonable. The Court found that public schools didn’t possess all of the attributes of streets and other traditional public forums. The school had an interest in protecting the identity of the students in a pregnancy article as well as maintaining the integrity of student speech allowed in the school newspaper. Therefore, no violations of amend. I rights occurred. Rule:  Educators don’t offend the 1 st amendment by exercising editorial control over the style and content of student speech in school sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns. Procedural Safeguards: courts may invalidate a state restriction on speech b/c it constitutes a prior restraint or b/c its vague or overbroad w/o reaching the question of whether or not the content of the speech at issue deserves 1 st amendment protection. The issue isn’t whether the gov’t may impose a particular restriction of substance in an area of public expression, such as forbidding obscenity in newspapers, but rather whether it may do so by a particular method, such as advance screening of newspaper copy. Near v. Minnesota: 390-396 The newspaper publisher (published an article about “Jew gangsters”) argued that the statute unfairly denied it liberty of press b/c an injunction issued under the statute would restrain any future newspaper publication. The Court found that the first section of the statute provided for the abatement of a malicious, scandalous, and defamatory newspaper against any person engaged in the business of regularly producing, publishing or circulating, having in possession, selling or giving away a newspaper. The purpose of the statue was to prevent libel before it actually occurred. The alleged libel was that the article accused public figures including the chief of police for neglecting his duties and was involved w/ gangsters. The Court held that the liberty of the press was safeguarded by the DPC of the 14th Amend. The rt wasn’t absolute, and the state could punish its abuse. The rt to a free press couldn’t be lost by exercising the rt. The language of the statute at issue placed a prior restraint on the newspaper publisher to avoid language that might not be protected, thereby denying him the rt of publication. This freedom, by virtue of its very reason for its existence, didn’t depend on proof of truth. This statute as applied against the newspaper publisher infringed the freedom of the press guaranteed by the 14th Amend. Rule:  The statute that attempts to prevent libel before it actually occurs is unconstitutional as an improper restraint.  The protection as to previous restraint isn’t absolutely unlimited; the limitation has been recognized only in exceptional cases. For example in times of war NY Times v. US: 396- 402: There was an article published on a policy decision. The gov’t considered this a classified (defense dept study based on US participation in Vietnam) study that was leaked to the press and that it shouldn’t have been published since it wasn’t a public document. Rule:

Any system of prior restraint of expression comes to this court bearing a heavy presumption against its constitutional validity. The gov’t thus carries the heavy burden of showing justification for the imposition of such a restraint. Holding: The court held that the gov’t didn’t meet the burden against prior restraint and that the newspaper was allowed to publish the article. Walker v. Birmingham = the court heard the challenge against the marching statute and the court issued an injunction not to march and they violated the injunction. The USSC upheld the conviction since the group violated the injunction it would have been different is they just violated the statute. The court showed preference in protecting a court order over a legislative order. Shuttlesworth v. City of Birmingham: 404-406 On the afternoon of Good Friday, 52 blacks were led out of a Birmingham church by 3 ministers, one of whom was the petitioning minister. They walked in orderly fashion, two abreast, for 4 blocks, in order to protest the alleged denial of civil rights to blacks in the city. The marchers stayed on the sidewalks except at street intersections, didn’t interfere w/ other pedestrians or automobiles, and didn’t disobey traffic signals. The city police stopped the marchers and arrested them for violating AL General Code § 1159. The minister was convicted for violating § 1159 and was sentenced to 90 days' imprisonment at hard labor and an additional 48 days at hard labor in default of payment of a $ 75 fine and $ 24 costs. The Court reversed the minister's conviction, holding that the city authorities clearly indicated to the minister that under no circumstances would he and his group be permitted to demonstrate, not that a demonstration would be approved if a time and place were selected that would minimize traffic problems. It was evident that the ordinance was administered so as to deny or unwarrantedly abridge the right of assembly. Rule: A person faced w/ unconstitutional licensing law may ignore it and engage w/ impunity in the exercise of the rt of free expression for which the law purports to require a license. Vagueness a reasonable person can not tell whether their speech or conduct is prohibited. People are unsure whether there speech/conduct is criminal or not. Vagueness challenges are brought under the 1 st amendment and the 14th amendment due process (lack of notice). Reasons for the vagueness doctrine: unjust to punish someone w/o adequate notice that their behavior is prohibited fairness. Over breadth  statute is so broadly written that regulates substantially more then the constitutional allows. An ordinance that prohibits all live entertainment was struck down as overly broad; although nude dancing isn’t protected the owner of the strip club was allowed to challenge the statute as overly broad. Over broad  there must be a realistic danger that the statute will prohibit more then what is constitutionally prohibited. Herndon v. Lowry: 410-414 Black communist was convicted of attempting to incite insurrection and solicited contributions for the party and was attempting to recruit new members. The Court noted that the inmate had a constitutional rt to address meetings and organize

parties unless in so doing he violated some prohibition of a valid statute. The Court found that the evidence was lacking to show that he had violated § 56 (b/c language of § was vague), and thus, as applied to him, the statute unreasonably limited his freedom of speech and freedom of assembly embodied in the 14th Amendment. Rule: A statute will be found vague when it allows too much discretion in allowing a jury to impose a conviction based on the statute based on literature that they simply don’t agree w/. Maintaining literature despite that fact that it is unpopular is protected under the 1st amendment. Gooding v. Wilson: 414-419 D picketed a building in which the US Army was located in opposition to the war in Vietnam. When inductees arrived, there was a scuffle. D committed assault and battery on two police officers and used opprobrious and abusive words. The State contended that GA § 26-6303 was narrowly drawn to apply only to a constitutionally unprotected class of words, namely fighting words. The Court rejected the State's argument and found that the statute had not been construed to be limited in application to words that had a direct tendency to cause acts of violence the person to whom, individually, the remark was addressed. Further, the Court held that the constitutional guarantees of freedom of speech prohibited the states from punishing the use of words or language not w/in limited classes of speech, such as fighting words. The Court found that D was permitted to raise a statute's vagueness or unconstitutional overbreadth as applied to others. The Court found that a statute must be carefully drawn or authoritatively construed to punish only unprotected speech to avoid violation of the 1 st Amendment. This statute was overbroad and vague b/c it allows the jury to create its own standard in each case. Rule:  The statute had not been construed to be limited in application to words that had a direct tendency to cause acts of violence the person to whom, individually, the remark was addressed. Board of Airport Commissioners v. Jews for Jesus: 421-422 Respondent nonprofit religious corp. filed an action challenging the constitutionality of petitioner's resolution. Respondent contended that the resolution was facially unconstitutional b/c it banned all speech in a public forum, that the resolution had been applied to it in a discriminatory manner, and that the resolution was unconstitutionally vague and overbroad. USSC held that the resolution was substantially overbroad as it expressly applied to all 1st Amend activities and the words of the resolution left no room for a narrowing construction. The resolution, on its face, reached the universe of expressive activity and purported to create a virtual "1st Amendment Free Zone" at the airport. The Court stated that it was obvious that such a ban couldn’t be justified even if the airport were a nonpublic forum b/c no conceivable gov’t interest would justify such an absolute prohibition of speech. Rule: Under the overbreadth doctrine an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face b/c it also threatens others not before the court – those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.

Chapter 3: Freedom of the Press: Medium Specific 1st amendment standards: function of two primary variables. 1. How speech is classified and the 2. The nature of the medium a. Print media has received the highest level of protection b. ands broadcasting the least Promoting Expressive Diversity:  Essential Principles of Communications Law: originally broadcasting was treated differently b/c there are less frequencies then people wanted to be on the radio and it is more expensive and requires a license. Whereas print media is cheaper and pretty much anyone who wants to print something can. However Lively thinks that all modes of media are expensive and that everyone doesn’t have an equal opportunity to the press or the radio therefore there is very little justification for treating the two differently. o Miami Herald Publishing v. Tornillo: whether a state statute granting a political candidate a right to = space to reply to the criticism on his record by a newspaper violates the guarantees of the 1 st amendment? The statute was fatally defective b/c of its intrusion into the function of the editors. The statute is imposing a penalty based on the content of the paper. Compelled the paper to expend $ and time and taking up space that could be devoted to other material the paper may have preferred to print.

o Red Lion Broadcasting v. FCC: the court upheld the commissions finding that the broadcast constituted a personal attack and that the licensee must provide free reply time b/c there is a limited number of frequencies and therefore the frequencies are regulated by the gov’t. The public interest in broadcasting clearly encompasses the presentation of controversial issues of importance and concern. The fairness doctrine was developed by the FCC = licensees were obligated to devote reasonable % of their broadcast time to the consideration and discussion of public issues.. o US v. Paramount Pictures: differences in the characteristics of new media justify differences in the 1 st amendment standards applied to them so long as the restriction are reasonable and applied w/o discrimination. o NBC v. US: developed the division of the radio spectrum into portions reserved respectively for public broadcasting and for other important radio uses amateur operation for aircraft, police, defense and navigation. Therefore the gov’t could tell some applicant for licenses that they weren’t allowed to broadcast at all. o CBS v. Democratic Nat’l Committee: involved a failed effort of an anti war group to get airtime in DC to express their views. The USSC rejected the idea of an unqualified right of public access at the same time it reiterated the statue of licensees as public trustees and their duty to comply w/ fairness standards. The court continued to uphold the fairness standard. o FCC v. League of Women Voters: court still didn’t strike down the fairness standard but held that the arguments for it were weakening w/ the new media mediums being made available. Acknowledged the possibility that the scarcity premise might be less viable than previously assumed.

o Telecommunications Research and Action Center v. FCC: the court upheld the commission’s determination that teletext resembled the print media more then broadcasting and thus shouldn’t be governed by the implications of scarcity, including fairness obligations. The court sharply attacked the scarcity rationale. All economic goods are scare but this doesn’t justify content regulation. o The FCC review of the fairness doctrine resulted in its abandonment of the fairness doctrine on grounds that it chilled coverage of important issues. The FCC’s decision was upheld by the court in Syracuse Peace Council v. FCC.
Appellants filed consolidated actions against appellees seeking to have the mustcarry provisions of the Cable T.V. Consumer Protection and Competition Act. The USSC vacated the summary judgment order and remanded, holding that: (a) the Cable Act's must-carry rules were content-neutral in application, as they weren’t activated by any particular message spoken by cable operators and thus exacted no content-based penalty; (b) the gov’t must show that the economic health of local broadcasting was in genuine jeopardy and in need of the protections afforded by the must-carry; and (c)., the economic necessity of the must-carry provision - was in doubt, summary judgment was inappropriate. Rule:  The level of scrutiny is intermediate which the O’Brien test is.  The must carry provisions don’t pose inherent dangers to free expression or present such potential for censorship or manipulation as to justify application of the most exacting level of 1 st amendment scrutiny.  None of the gov’t interest is related to the suppressions of free expression or to content, and each is an important gov’t interest. Holding: this was a 5-4 The must-carry provision was a content-neutral restriction, it still had to be supported by a factual showing of economic necessity. Limits of Expressive Diversity: when it abandoned the fairness doctrine, the FCC conclude that electronic and print media are functionally identical and thus the 1 st amendment protections against content regulation should apply equally to the electronic and the printed press (however the court has failed to view it as such). FCC v. Pacifica Foundation: 456-463 After the radio station broadcast a humorist's (George Carlin’s) monologue on “7 Dirty Words” containing indecent language, the FCC issued an order that the language was patently offensive, although not obscene. The Court held that the FCC's action was constitutionally permissible. The action wasn’t forbidden "censorship" w/in the meaning of 47 U.S.C.S. § 326 b\c that statute didn’t limit the FCC's authority to impose sanctions on licensees who engaged in obscene, indecent, or profane broadcasting. The monologue was indecent b/c it didn’t conform to accepted standards of morality; prurient appeal wasn’t an essential component of indecent language. There were 2 important gov’t interests in regulating the time in which indecent material may be played on the radio 1. the broadcast media has a uniquely pervasive presence in the lives of all Americans and 2. Broadcasting is

Turner Broadcasting System v. FCC: 442-449

uniquely accessible to children. The gov’t had legit gov’t interest in upholding the ban Rule:  Content that was vulgar, offensive, and shocking wasn’t entitled to absolute protection under the First Amendment. Words don’t need to be obscene to warrant sanction.  Consideration for a host of variables in justifying special treatment of indecent broadcasting: the time of day, the content on the program in which the language is being used, the differences b/n radio, TV and closed circuit transmission. Sable Communications in CA v. FCC: 465-468 Petitioner offered sexually oriented prerecorded phone messages through Pacific Bell. Petitioner arranged w/ Bell to use special telephone lines. Customers of the service were charged a fee and billed by Bell. The fee was split b/n petitioner and Bell. Petitioner brought suit seeking declaratory and injunctive relief against enforcement of 49 U.S.C.S. § 223(b), which imposed a blanket prohibition on indecent as well as obscene interstate commercial telephone messages. Petitioner brought suit to enjoin respondents from initiating any criminal investigation also challenged the constitutionality of the indecency and obscenity provisions of the statute. The court held 49 U.S.C.S. §223(b) didn’t survive constitutional scrutiny b/c the statute denied adult access to telephone messages which were indecent but not obscene and thus, exceeded that which was necessary to limit the access of minors to such messages. Sexual expression which is indecent but not obscene is protected by the 1 st amendment. The court upheld a prohibition against obscene interstate telephone communications for commercial purposes, but enjoined the enforcement of the statute insofar as it applied to indecent messages. Reno v. ACLU: 471 Communications decency act to protect minors form obscene and indecent materials (describing sex acts and organs) which are offensive by community standards. The court held that this was a content based blanket restriction of free speech. Failed to define restrictions, or demonstrate that the materials were devoid of any social value. Could have been saved from overbreadth has it dropped the words “or indecent”. This Act was unconstitutional b/c it was overbroad (things can be indecent) Comparative perspective: LICRA and UEJF v. Yahoo and Yahoo France: Chapter 4: Penumbral Concepts: penumbral = to a lesser or uncertain degree Freedom of association: isn’t expressly mentioned in the constitution however the court has recognized the importance of citizen’s ability to join w/ others in pursuing 1st amendment goals. NAACP v. AL: 487 1st time the court articulated a constitutional rt to freedom of association. Al req’d NAACP to reveal the names and addressees of all of its members. Compelled disclosure of the NAACP was unconstitutional. State must give a controlling justification for deterrent fact of free enjoyment of the rt to associate which disclosure of membership lists is likely to have.

Roberts v. US Jaycees: Bylaws: membership was limited to men 18-35, woman and older men were limited to associate members. MN allowed women is as full members. The Jaycees closed there chapter and Jaycees filed for discrimination. Court held that J chapter lacked distinct characterization that might afford con protection to the decision of it male members to exclude members. Making women full members wouldn’t affect men’s rts of freedom of ass’n. Hurley v. Irish American Gay, Lesbian and Bisexual Group of Boston: 500-501 Gays wanted to be in the Boston Irish Day Parade however the organizers of the parade refused to allow them to participate b/c they were against openly gay demonstrations. The gay group sued saying that the refusal violated the state’s discrimination law. The parade organizers argued that the gay group’s views were against the orgs views and their promotion of Irish heritage. The USSC held that the group doesn’t have the rt to prevent individuals from participating in the parade, it can prevent a group their message was opposed to the one the parade intended to express through their activity and that the gay group had alternative methods for promoting their expressive activity such as holding their own gay pride message. The Irish message of pride and heritage was significant enough to be treated as an expressive activity which should be protected under the 1 st amendment. The court found that parades are a form of protected expression b/c the marchers are making a collective point through symbolic acts. Boy Scouts of America v. Dale: 502-510 Respondent's complaint alleged petitioners ass’n and one of its divisions violated NJ's public accommodations law, by revoking his membership b/c of his sexual orientation. Petitioners appealed the judgment that held application of the statute violated 1st amend. The Court found that the group's mission was to instill values in youth by adult leaders' expressions and examples. The official position was that avowed homosexuals weren’t to be group leaders. Respondent admitted public advocacy of homosexuality. His presence would have forced a message that the group accepted homosexual conduct. That a heterosexual member might openly disagree w/ the policy was irrelevant. The group's official position was sufficient for 1st amend freedom of association purposes. ROL The state's interests embodied in the statute didn’t justify such severe intrusion on the group's rights to freedom of expressive ass’n. 1st amend prohibited the state from imposing such a requirement by application of its public accommodations law. Holding: this was a 5-4 decision Boy scouts aren’t req’d to admit Dale under freedom of ass’n since gay conduct is inconsistent w/ the values it wishes to instill. May exclude a person if that person violates their public or private viewpoint. Dissent This isn’t expressive activity b/c there is nothing taught by the BSA that teaches that homosexuality is wrong, Dale wasn’t trying to promote homosexuality as a leader and BSA instruct that the boys should discuss sex w/ their parents and not w/ leaders. BSA has adopted an exclusionary membership policy and has no shared goal of disapproving homosexuality. In the by-laws however is that boys should be honest and defend the rts and feelings of others. Now all a group needs to do to discriminate is to claim it and say this is what we believe in and hope to express.

The right to gather news: penumbras are concepts that to the extent identified; broaden the scope of a constitutional guarantee. Court has reviewed many arguments for expanding penumbral boundaries to facilitate the press’ capacity to inform the public. 1st amendment enable reporters to protect confidential sources, immunize newsrooms from police searches, gives press access to prisons.  Pell v. Procunier: the court denied the press access to a prison notwithstanding the impact of newsgathering activity. The press has no rt to access info beyond what is available to the public generally. 1st amendment privilege: against testifying under oath reflects the sense that w/o an ability to preserve confidential sources, reporting critical to informed self-gov’t will be compromised. Branzburg v. Hayes: 512-517 What is the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime which may result in the exposure of a confidential informant? Facts: The, a newspaper staff reporter, had to appear before a grand jury to answer questions put to him, as the Constitution of the US didn’t exempt petitioner from performing the normal citizen's duty of appearing and furnishing info relevant to the grand jury's task. Petitioner, who was subpoenaed by the grand jury, contended that the KY reporters' privilege statute authorized his refusal to answer. The Court perceived no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings was insufficient to override the consequential, but uncertain, burden on news gathering that petitioner argued would result from insisting that he answer to the grand jury. Moreover, the evidence failed to demonstrate that there would be a significant constriction of the flow of news to the public if the Court reaffirmed the prior common law and constitutional rule regarding testimonial obligations of newspaper reporters. Rule:  There is nothing that would exempt a reporter from performing the citizen’s normal duty of appearing and furnishing info relevant to the grand jury’s task. The court can’t entertain the notion that the 1 st amendment protects a newsman’s agreement to conceal the criminal conduct of his source.  Press is treated like an ordinary person when it comes to testifying about confidential sources, the press is awarded no special 1 st amendment protections. Dissent: Forcing a reporter before a grand jury and forcing him to testify as to the source of confidential info will have chilling effects in that it will retard effects on what a reporter will write and cause him to censor himself, fear of exposure will prevent sources from communicating less w/ reporters. Immunity from search and seizure: Zurcher v. Stanford Daily: 519-523 Respondents, a newspaper and its staff, filed suit seeking declaratory and injunctive relief against petitioners, police officers who conducted a search of respondents' offices looking for photos of criminals for the purpose of identification. Respondents

alleged that the search deprived them, rights secured to them by the 1 st and 4th Amend. The USSC held that it was untenable to conclude that property could not be searched unless its occupant was reasonably suspected of a crime and subject to arrest. The court declined to reinterpret the 4 th Amend to impose a general constitutional barrier against warrants to search newspaper premises, to require resort to subpoenas as a general rule, or to demand prior notice and hearing in connection w/ the issuance of search warrants. The press isn’t to receive special immunity from police searches and seizures. The decision holding that petitioners' search of respondents' offices was unreasonable w/in the meaning of the 4th Amendment and in violation of the 1 st Amendment was reversed. If the framers intended that the press be entitled to special procedure one would have expected the terms of the 4th amendment to reflect that belief. Dissent: Police searches causing physical disruption of the operation of the paper, the possibility that disclosure of info received from confidential sources; there was no emergency need to protect life or property by an immediate search. Subpoena duces tecum would have been just as effective. Access to information and facilities:  Prisons: Pell v. Procunier: 524-528 The media and inmates brought a civil rights suit against the corrections dept alleging that a certain regulation was violative of amend. I and amend. XIV. The Court found that CA Dep't of Corrections Manual § 415.071 prohibited media interviews w/ specific inmates. The Court reversed the summary judgment for the inmates and affirmed the dismissal of the media's claim. The Court determined that the inmates' 1st Amendment freedom of speech rts had to be analyzed against the legitimate goals of the corrections system. B/c the inmates had access to anyone through writing and were permitted visitation w/ family, friends, acquaintances, clergy, and attorneys, who, in turn, had access to the media, the Court concluded that § 415.071 didn’t infringe on the inmates' freedom of speech. B/c § 415.071 did not deny media access to sources of info available to members of the general public and, in fact, the media had more access to the prisons than the general public, the Court found that § 415.071 did not abridge the media's freedom of the press. The Court affirmed the dismissal of the media's claim that the same regulation violated the media's freedom of the press. Newsmen have no more rts to access to prisoners then the general public. The court is afraid that some “popular” prisoners will gain notoriety. Houchins v. KQED, Inc.,: 528-537 The news personnel contended that public access to penal institutions was necessary to prevent officials from concealing prison conditions (after a recent inmate suicide) from the voters and impairing the public's rt to discuss and criticize the prison system and its administration. The public importance of conditions in penal facilities and the media's role of providing info afforded no basis for reading into the Constitution a rt of the public or the media to enter the institutions, w/ camera equipment, and take moving and still pictures of inmates for broadcast purposes. The guarantee of freedom to publish didn’t create a special access privilege to the press then that granted to the public generally. Whether the gov’t should open penal institutions in the manner sought by the news personnel was a question of policy, which a legislative body could appropriately resolve one way or the other. The Court reversed the injunction and remanded.

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In Gannett v. DePasqualde: upheld a district crt order closing pretrial proceedings to the press and to the public. It did so on the grounds the 6 th amend rt to a public trial was personal to the D and couldn’t be asserted by the press or public. Richmond Newspapers v. VA: access to the judicial process was essential for an educated and informed public. The press and the general public have a constitutional rt to access to criminal trials.

Globe Newspaper v. Superior Court A newspaper sought access to a rape trial where the alleged victims were minors. The trial court denied access, relying on § 16A. The state supreme court dismissed the newspaper's appeal, finding that § 16A req’d the closure of sex-offense trials only during the testimony of minor victims. It also found that § 16A didn’t violate the 1st Amendment as it furthered genuine state interests in having minor victims come forward to report sex offenses and protecting them from psychological harm during their testimony. On appeal, the Court held that § 16A's mandatory closure rule did violate the 1st Amendment, b/c it wasn’t drawn narrowly enough to meet the state's interests. The Court held that as compelling as the interest in safeguarding the wellbeing of a minor was, it didn’t justify a mandatory closure rule, b/c the circumstances of the particular case could affect the significance of the interest. The Court held that the interest could be served by requiring the trial court to determine on a case-by-case basis whether closure was necessary. Also, there was no evidence the rule would lead to an increase in the # of minor sex victims coming forward. Press – Enterprise v. Superior Court: 541-543 All hearings are afforded the same rts as trials and therefore they are open unless the party seeking to close the haring advances an overriding interest that it is likely to be prejudiced. Media technology and due process:  Sheppard v. Maxwell: the media’s presence must be limited when it’s apparent that the accused might otherwise be prejudiced or disadvantaged. Court is responsible for controlling prejudicial pretrial publicity.  TV’s and media are not permitted in federal courts. Chandler v. FL: 546- 547 FL promulgated Canon 3A(7) as an experiment in regulating radio, TV’s., and other photo coverage of court proceedings. Ds' case received a great deal of media attention and was covered by tv b/c it was 2 cops charged w/ burglary. Ds argued the televising of criminal trials was inherently a denial of DPC. Ds based their argument on a previous court opinion that they interpreted as announcing a per se constitutional rule to that effect. The court determined that the case wasn’t to be interpreted as announcing a constitutional rule barring still photos, radio, and TV coverage in all cases and under all circumstances. The court held the case didn’t stand as an absolute ban on state experimentation with an evolving technology. The court affirmed judgment in favor of the state, and held that Ds weren’t denied a fair trial due to the televised coverage of their trial. Chapter 5: Freedom of religion:

Introduction: this was the dominant social issue in the first half of this century.  Art. 6 cl. 3 of the constitution: no religious tests should ever be req’d of any public gov’t office. Reuben Quick Bear v. Leupp: 550-551 The petitioner in this case argued that the gov’t can never act in a sectarian capacity either in the use of its own funds or in that of funds of others. Hence the gov’ts payment to the Sioux trust fund can’t be applied for education in Catholic schools. The respondent argues that restricting the way they can use their trust $ will restrict their freedom of religion. The court can’t concede the proposition that Indians can’t be allowed to use their $ to educate their kids in the schools of their own choice. The establishment clause: Everson v. Board of Education Acting pursuant to a NJ statute, a township board of education authorized reimbursement to parents of $ that they expended for the bus transportation of their children to and from parochial schools. Appellant, a taxpayer, filed suit in a state court challenging the right of the board to reimburse parents of parochial school students. Taxpayer contended that the statute and the resolution passed pursuant to it violated both the state and the federal constitutions. The court held that the 1st Amendment didn’t prohibit NJ from spending tax-raised funds to pay the bus fares of parochial school pupils as a part of a general program under which it paid the fares of pupils attending public schools. NJ couldn’t hamper its citizens in the free exercise of their religion. Consequently, it couldn’t exclude individual’s b/c of their faith from receiving the benefits of public welfare legislation. The state legislation did no more than provide a general program to help parents get their children, regardless of their religion, safely and expeditiously to and from accredited schools. What is religion? Doesn’t just apply to those beliefs based on a deity, b/c other religions aren’t based on a God. Religious = belief is sincere and meaningful and fills the place in their life as does a religion based on God in the lives of others. There are 3 approaches to the establishment clause: 1. strict separation: separate church and state as much as possible: different motivations  concerns about the evils of gov’t infiltrating religion, evils of religion infiltrating the gov’t, further they are apart the better it is for gov’t and religion, wall of separation isn’t possible but under this approach the attempt to separate is attempted. 2. Neutrality  this says that the gov’t is req’d to minimize the extent to which it encourages or discourages religion. Gov’t may not disapprove or approve of any religious or nonreligious approach. Social pressure is a form of coercion. 3. Accommodation approach  allows for the most intermingling of state and religion. Gov’t must treat religious groups and religious beliefs the same as nonreligious groups. Establishment clause is only violated if the gov’t establishes a religion or coerces participation in religion. Coercion is only there if the gov’t punishes people for failing to participate in a certain religion. Religion is a good thing is a society and the gov’t may encourage it so long as it is in a non-partisan way (cant favor one over the other) Wallace v. Jaffree: 559-564 Appellee, a resident AL, filed suit against the appellant governor, school board and other public officials, seeking an injunction restraining appellants from maintaining or

allowing regular prayer services in the public schools. Appellee alleged that his two children were subjected to various acts of religious indoctrination during the school year and appellants refused to stop the services. The action later became a class action. USSC held that since the statute was intended to convey a message of state approval of prayer in the public schools, it was clearly violative of amend. I. O’Connor: concurrence Thinks the moment of silence is ok b/c it doesn’t endorse religion but the 2nd statute isn’t ok b/c verbal prayer violated the establishment clause. Burger: dissent Believes that this statute doesn’t violate establishment clause b/c it in no way encourages religion or promotes one religion more then another. White Dissent: This isn’t religious therefore doesn’t violate the establishment clause. Rehnquist Dissent: Wall of separation isn’t a legitimate basis since there is no historical basis. Madison played a big part in the floor debates and adoption in the 1 st amendment however Jefferson was not. The terminology of Jefferson’s wall of separation wasn’t dispositive in the adoption of the 1 st amendment. Certain states ratified the constitution they said that they wanted a Bill of Rights included. Madison was not a fan of necessity of a Bill of Rts. Intent wasn’t that the gov’t be neutral about religions only that the gov’t couldn’t adopt a national religion. Christianity should receive support from the states so long as they don’t force people to participate. Justice Rutledge, Frankfurter, Jackson and Burton: Madison’s work in VA w/ Jefferson is evidence that he intended that there he wouldn’t have wanted any aid to go to any religion b/c that would have been contradictory to the freedom of religion clause. In England the country paid for the church. He didn’t want any gov’t $ going to religion at all. Lee v. Weisman: 568-570 In the public school system, principals were permitted to invite members of the clergy to offer invocation and benediction prayers as part of formal school graduation ceremonies. Respondent parent, whose daughter was scheduled to graduate from middle school, sought a temporary restraining order in the district court to prohibit school officials from including invocation or benediction in the graduation ceremony. The Court denied the motion for lack of adequate time for consideration. The parent then amended the complaint, seeking a permanent injunction barring the officials from inviting the clergy to deliver benedictions at future graduations, which the district court granted, and the court of appeals affirmed. The Court affirmed. Including clerical members who offered prayers as part of the official school graduation ceremony was inconsistent w/ the Establishment Clause of the 1 st and 14th Amendment. This is a religious/ gov’t exercise which is unconstitutional in creating subtle and indirect coercion. Justice Souter’s concurrence: This is an argument against the accommodation approach: state can’t give support to religion. Under the establishment clause the crt has struck down:

1. 2. 3. 4.

Bible reading, classroom religious displays Laws prohibiting the teaching of evolution Or requiring balancing of teaching of creationism w/ evolution

Upheld: 1. Transportation reimbursement plans 2. Textbook loans 3. Tax deductions for educational costs 4. Gov’t funding of standardized test Evolving standards: Purpose and effect The court generally uses the 3 prong Lemon test 1. Purpose: 2. Effect 3. Does this action risk entangling religion w/ gov’t Abington School District v. Schempp: to w/stand the Establishment clause there must be secular legislative purpose and a primary effect that neither advances not inhibits religion. Secular  non religious Epperson v. Ark: 574The teacher had challenged the constitutionality of the Ark law that made it a misdemeanor to teach the evolution theory and subjected her to dismissal from her position. The Court didn’t rest its decision on the vagueness of the Ark statute, but held that the statute couldn’t stand b/c the State of Ark rt to prescribe the curriculum for its public schools didn’t carry w/ it the rt to prohibit, on pain of criminal penalty, the teaching of a scientific theory or doctrine where the prohibition was based upon reasons that violated the 1 st Amend. There was no doubt that Ark had sought to prevent its teachers from discussing the theory of evolution. Thus, the Ark law couldn’t be defended as an act of religious neutrality b/c the State didn’t seek to excise form the curricula of its schools and universities all discussion of the origin of man. The law attempted to blot out a particular theory b/c of its supposed conflict w/ the Biblical account. 1st prong of the test to determine whether or not something violates the Establishment Clause is what is the purpose and effect of the statute. If it’s intended to promote religion than it violates the 1 st amendment establishment clause however if there’s no religious intent and simply a secular reasoning then there is no violation of the establishment clause. Comparative perspective: Germany and School Prayer: German School Prayer Case: 582-586 German Federal constitutional crt examined school prayer in a public school when one parent complained who thought that prayer violated his constitutional rts w/ a complainant who claimed that being forced to pray in school over his objection violated his constitutional rts. The German constitution has Art 6 which is the parents rt of control concerning the care and custody of minors and Art 4 which is the rt to freedom of religion and Art 7 which is the state’s mandate to establish educational systems. The crt placed greater weight on positive expression rts than on negative expression rts in holding that school prayer if voluntary is constitution. There may be social ramifications for children that don’t wish to pray however this is outweighed by the greater interest of freedom of prayer for the religious students who wish to use this time to pray.

Rule:  Praying in school isn’t fundamentally and constitutionally objectionable. However prayer must also comply w/ the limits of the state’s rt to establish school systems. School prayer must be completely voluntary and will only be unconstitutional if prayer is coerced and therefore not voluntary.  German courts apply more of a balancing test then the Lemon test. Entanglement: During the 1970s Establishment Clause analysis expanded beyond primary purpose and primary effect to include attention to excessive entanglement of gov’t and religion. The 1st post Lemon decision was in Tilton v. Richardson: the court noted that there was significant differences b/n the religions aspects of church related institutions of higher learning and parochial elementary schools. College students are less impressionable. The court acknowledged that it could only dimly perceive the boundaries of permissible gov’t (federal grants to parochial colleges for facilities to be used for secular education purposes) Edwards v. Aguillard: 586-589 Appellees challenged the constitutionality of the LA Creationism Act which forbids the teaching of evolution in public schools unless accompanied by instruction in “creation science”. Appellees sought an injunction and declaratory relief. Appellants defended on the ground that the purpose of the Act was to protect a legit secular interest, namely, academic freedom. Appellees stated the Act was facially invalid b/c it violated the Establishment Clause. The USSC found that the Act advanced a religious doctrine by requiring either banishment of the theory of evolution or the presentation of a religious viewpoint that rejected evolution in its entirety. Court found the LA Creationism Act violated the Establishment Clause b/c the Act sought to employ the symbolic and financial support of gov’t to achieve a religious purpose when it sought to banish the theory of evolution from public school classrooms. Rule: The court applies the Lemon Test a 3 prong test to determine whether the statute comports w/ the Establishment Clause: 1. The legislature must have adopted the law w/ a secular purpose 2. The statute’s principal or primary effect must be one that neither advances nor inhibits religion 3. The statute must not result in an excessive entanglement of gov’t w/ religion Accommodation vs. Endorsement:  Further exacerbating the difficulties of review to purpose, effect and entanglement has been an interest in accommodating religion.  Marsh v. Chambers: applying rigid purpose, effect and entanglement would have invalidated the state legislature’s practice of opening its sessions w/ prayer led by a chaplain. Invocations were rather an acknowledgement of beliefs widely held among the people of this country.  Lynch v. Donnelly: upheld a Christmas season display of a nativity scene paid for by the city and erected on private property in the communities shopping district. There was no violation of the Establishment clause. County of Allegheny v. ACLU: 592-602

Respondents alleged that the display of a crèche and a Chanukah menorah in gov’t buildings by petitioners violated the Establishment Clause. Respondents contended that the displays had the effect of endorsing religion. The Court examined whether the display of the crèche and the menorah, in their respective particular settings, had the effect of endorsing or disapproving religious beliefs. The Court held that petitioners sent an unmistakable message that it supported and promoted the Christian praise to God that was the crèche’s religious message, and therefore held that the display of the crèches was unconstitutional. The Court held that the display of the menorah in its particular setting was a visual symbol for a holiday w/ a secular dimension. The injunction against the display of the menorah was reversed. Comparative perspective: Germany and Crucifixes in the Classroom: Classroom Crucifix case: A Bavarian school ordinance req’d the display of the crucifix in every elementary school classroom. The parents of one of the kids attending the school objected to the display of the crucifix in the classroom. The parents were members of a cult known as anthroposophy and argued that the display offended their children’s religious beliefs and violated the basic law. School officials sought to resolve the conflict by removing the large crucifix and replaced it w/ small cross absent the figure of Christ. The parents filed an action which the federal constitutional court rejected the parents application for a temporary injunction against the practice of displaying the cross. The rejection of the Ps claim is incompatible with Art 4 and 6. The cross is the symbol of a particular religious conviction and not merely an expression of cultural values that have been influenced by Christianity. The school ordinance encroaches on the basic rt of freedom of religion. One can’t deny that the cross also has an effect on students. IS THIS LEMON TEST ?? Doctrinal challenge and turmoil: Since it is uncertain about whether the justice likes to apply the Lemon test or not argue all of the different analysis to determine whether or not a statute is in violation of the establishment clause. Majority of justices don’t like the Lemon test. Lee v. Weisman (611-620): this was a 5-4 decision In the public school system, principals were permitted to invite members of the clergy to offer invocation and benediction prayers as part of formal school graduation ceremonies. Respondent parent, whose daughter was scheduled to graduate from middle school, sought a temporary restraining order in the district court to prohibit school officials from including invocation or benediction in the graduation ceremony. The court considered how kids of this age were affected by peer pressure and the fact that the school was including prayer in the graduation would subject the kids to indirect coercion. Despite the fact that graduation isn’t mandatory it is an important event in a student’s life and it would take away their rt to celebrate their success. The Court affirmed, holding that including clerical members who offered prayers as part of the school graduation was inconsistent w/ the Establishment Clause. Dissent: Prayer has always been an important part of American’s life and students don’t need to feel obliged to participate in the prayer at the graduation ceremony. Founders wouldn’t have a problem w/ this prayer and neither should the USSC. Lambs Chapel: the court seemed to go out of its way to demonstrate the standard’s continuing vitality. Freedom of speech clause prohibited a school district from

denying church access to school premises when they were open to other groups, court stressed that such an exclusion didn’t offend the establishment clause.

Free exercise clause: the clause in the First Amendment to the U.S. Constitution prohibiting Congress from making any law prohibiting the free exercise of religion
Zobrest v. Catalina Foothills District: 620-623 Petitioner student, who had been deaf since birth, asked respondent school district to provide a sign-language interpreter to accompany him to classes at a Catholic H.S. pursuant to the Individuals w/ Disabilities Education Act. The Court determined that the IDEA created a neutral gov’t program dispensing aid not to schools but to individual children w/ disabilities. The Court held that the Establishment Clause didn’t prevent the respondent school district from furnishing petitioner student w/ a sign-language interpreter to facilitate his education at a sectarian school. Dissent: There isn’t an absolute bar on gov’t financed or sponsored indoctrination into the beliefs of a particular religious faith. But there must be a line drawn despite the fact that the line is fine. The majority in this case crosses the line when it furnishes the medium for communication of a religious message. This is not a provision for a secular purpose whose content is immutable. The petitioner is seeking relief that would serve in his religious education thereby assisting the school in its mission of religious indoctrination. The Establishment Clause is thus violated. Board of education of Kiryas Joel Village School District v. Grument: 624-9 In Aguilar v. Felton the court held that the establishment clause barred the city is NY from sending public schools teachers into parochial schools to provide remedial education to disadvantaged kids pursuant to a congressionally mandated program. A village that was a religious enclave fell w/in a nearby school district until a special state statute carved out a separate district, following village lines, to serve this distinctive population. Before the new district began operations, petitioners brought this action against respondents, the state school board ass’n, the new school district, and the nearby school district; alleging that the new statute was unconstitutional under the Establishment Clause. The court declared the statute unconstitutional b/c the court found that the statute violated the prohibition against establishment of religion. The purpose was to exclude all but those who lived in the village. The state wasn’t maintaining neutrality towards religion and was demonstrating a preference of 1 religion over another. Rule On writ of certiorari, the court held that the statute departed from a course of neutrality toward religion by delegating the state's discretionary authority over public schools to a group defined by its character as a religious community, in a context that gave no assurance that gov’t power had been or would be exercised neutrally. Agostini v. Felton: 630-637 This action arose from a case in which USSC held that the Establishment Clause barred a city from sending public school teachers into parochial schools to provide education to disadvantaged children pursuant to a congressionally mandated program. On remand, the district court entered a permanent injunction reflecting the ruling. 12 years later, petitioners sought relief from its operation as a result of intervening Establishment Clause jurisprudence. The Court overruled its prior

decision holding that a federally funded program providing instruction to disadvantaged children on a neutral basis was valid under the Establishment Clause when such instruction was given on the premises of sectarian schools by gov’t employees pursuant to a program containing safeguards such as those present in this case. This case ruled that Aguilar is no longer good law since it isn’t consistent w/ the USSC establishment clause decisions. There is no excessive entanglement of the gov’t in religion under this Act. (Therefore passes Lemon test) The Speech and Establishment Clauses: Rosenberger v. UVA: 640-649 Petitioner (students) brought an action against respondents (UVA) alleging amend. I violations for respondents' refusal to authorize payment to a 3rd party contractor for the printing costs of student publication. The school authorizes payments from its student activities fund to outside contractors for printing costs of publications by student groups. School refused to pay this for a student org b/c the group promotes a Christian belief. Students argue that this violates their freedom of speech. The school argued that the discrimination was justified by the necessity of complying w/ the Establishment clause. USSC held that the respondents discriminated on the basis of religious editorial viewpoints, not religion itself. The Court held that the petitioners sought funding as a student journal, an enterprise supported by the student activity fund (SAF). Additionally, the Court held that (students) disbursement request was for payment to a private contractor for the printing costs of materials that are protected under the 1st Amend. Thus, the Court reversed the grant of summary judgment in favor of respondents (UVA) b/c respondents (UVA’s) Establishment Clause concern didn’t warrant denying payment to the 3rd party contractor. Free speech obligates a state university to subsidize printing costs for religious student orgs to the extent that it underwrote those expenses for other student groups. The Free Exercise Clause: Precludes official acts of impairment of religion. It was inspired by historical instances of religion persecution and intolerance. At a minimum the protections of the Free exercise Clause pertain if the law at issue discriminated against some or all religious beliefs or regulates or prohibits conduct b/c it is undertaken for religious reasons. Seminal Criteria: Belief and Action Reynolds v. US: 650-651 Mormon said that it was the duty of a Mormon man and that it was the duty of a Mormon man to practice polygamy and that failing to do so would be damned to hell. Should the accused have be acquitted if h married the second time, b/c he believed it to be his religious duty? Congress can’t pass a law for the gov’t which shall prohibit the exercise of religion. However the law in the US is that plural marriages shall not be allowed. To permit this practice would make professed religious belief superior to the law of the land and would allow every man to take the law into his own hands. This case creates a separation of belief and action. Modern Analysis: Balancing Constitutional and Regulatory Interests  Braunfild v. Brown: Jews challenged Sunday closing laws b/c they observed another day as the Sabbath and claimed that they were economically burdened as a consequence of their beliefs. However the court rejected their claims. Laws impeding on observance of a religion or individiously discriminating among religions would be constitutionally invalid. General



regulation for a secular goal however would be valid despite its indirect burden on religious observance unless the state may accomplish its purpose by means which don’t impose such a burden. State’s interest in preserving a day of rest and there is no less restrictive methodologies exist. Sherbert v. Verner: a 7th day Adventist claimed that her religious beliefs precluded her from working on Saturdays and she was fired for that reason. She then attempted to collect unemployment and she was denied. State’s action had a significant coercive effect in forcing a choice b/n belief and benefits and wasn’t supported by a compelling regulatory justification.

Wisconsin v. Yoder: 653-657 The parents were convicted of violating the state's compulsory public school attendance law. The parents practiced the Amish and Mennonite religions and argued that sending their kids to public school after the 8 th grade violated their religious beliefs and threatened their religious way of life. Court found that the parents' fundamental religious belief that they should remain "aloof from the world" was endangered by the enforcement of the public education laws. Although neutral on its face, the compulsory school attendance law unduly burdened the Free Exercise Clause. The parents educated their children at home in practical pursuits and prepared them to become functioning adults in their communities. The court held that accommodating the parents' religious objections by forgoing 1 or 2 additional years of compulsory education wouldn’t impair the physical or mental health of the child, result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from societal welfare. The court held that Wisconsin's compulsory school attendance law unduly burdened the Free Exercise Clause by forcing Amish parents to send their kids to public school after the 8th grade, which violated Amish religious beliefs. Toward more restrictive conditions for strict scrutiny Bown v, Roy: Federal law requiring welfare applicants to provide their ss# was challenged on free exercise grounds by parents who argued that the condition would rob the spirit of their daughter. Unless official action discriminated against religion generally it’s sufficient that gov’t demonstrated that a challenged requirement is reasonable means of promoting a legit public interest. Hobbie v. Unemployment Appeals Commission of FL: 658-660 The employer discharged the employee when she refused to work certain scheduled hour’s b/c of sincerely held religious convictions adopted after beginning employment. The employee filed a claim for unemployment compensation w/ the Fl Dep’t of Labor and Employment Security. A claims examiner for the denied the claim, which the Unemployment Appeals Commission affirmed. The court concluded that the Unemployment Appeals Commission's disqualification of the empl oyee from receipt of benefits violated the Free Exercise Clause. The court noted that the accommodation of the employee's religious beliefs wouldn’t amount to a violation of the Establishment Clause. Lyng v. NW Indian Cemetery Protection Assn: 661-663: Respondents, an Indian org and the State of CA, challenged the road building and timber harvesting decisions and claimed that the decisions violated the Free Exercise Clause. After trial, the court issued a permanent injunction that forbade petitioners from constructing the road or putting the timber harvesting plan into effect. During pendency of the appeal, Congress enacted an act that forbade timber harvesting in the area. The appellate court vacated the injunction b/c the act rendered the issue

moot. The Court affirmed the lower court's decision. The Court found that the Free Exercise Clause afforded respondents protection from certain forms of gov’t compulsion but it did not afford them the right to dictate the conduct of the government's internal affairs. B/c the govt's actions weren’t coercing respondents into acting contrary to their religious beliefs; the Court could not rule that petitioners' actions were unlawful. Therefore, the Court reversed the lower courts' decisions. The USSC found that the 1st Amendment didn’t preclude petitioners from completing a road or from permitting timber harvesting on Indian religious grounds b/c those religious practices must yield to some higher consideration despite incidental negative effects to the Indians. Employment Division, Dept of Human Resources of OR v. Smith: 663 – 670 Respondent employees were fired by a drug rehabilitation org after ingesting peyote for sacramental purposes. The Employment Division denied them unemployment compensation b/c peyote use was criminal under OR law, making their discharge work-related "misconduct." The Free Exercise Clause was inapplicable b/c the state law wasn’t aimed at promoting or restricting religious beliefs. B/c the employees' peyote use was prohibited and the prohibition was constitutional, Oregon could deny unemployment compensation. Religious don’t exercise criminal behavior. Boerne v. Flores: 670The statute was unconstitutional b/c it exceeds congresses power to deny a church a building permit. The court applies strict scrutiny to the Religious Freedom restoration act. Church of the Lukumi Babalu v. Hialeah: 674Petitioners, church of Santeria applied for and received licensing, inspection and zoning approvals to establish a church including a ritual of animal sacrifice from respondent city. In response, an emergency public session of respondent's city council was held and ordinances were passed which prohibited animal sacrifice. Petitioners filed an action alleging that their rights under the Free Exercise Clause were violated. The USSC held that the ordinances were unconstitutional. It found that they weren’t neutral nor of general application, therefore it applied a strict scrutiny analysis. The Court determined that the governmental interests weren’t compelling, the ordinances were not drawn in narrow terms, and were both overbroad and under-inclusive in substantial respects. (hunting and fishing would both be illegal under this act) EPC  Due process clause  fundamental rights: CAMPER Fundamental rts: some liberties are so important that they are fundamental and if the gov’t seeks to violate one of these rts the court will apply strict scrutiny. Protected under due process  DP: whether the gov’t interference is justified by a sufficient interest. If the rt is denied by all use DP.  Rt to refuse medical care Protected under EPC   EPC: whether the gov’t discrimination as to who can exercise the rt is justified by a sufficient purpose. If the rt is denied to some and not others apply EPC.  Rt to travel Most rts are protected by both DP and PC  Restricting the rt to contraception

Little depends on whether the court applies DP or EPC  Court must decide whether the rt is important enough to be protected as fundamental even though it isn’t mentioned Framework of analysis for a fundamental rt: 1. Is there a fundamental rt: a. Yes: apply strict scrutiny b. No: only rational basis applies 2. Was the rt infringed a. When is a law that burdens the fundamental rt unconstitutional? 3. Is there sufficient justification for the govt’s infringement on the fundamental rt? a. Need to show a compelling state interest. 4. are the means sufficiently based on the purpose: a. necessary to achieve the purpose b. couldn’t obtain the goal through a less intrusive alternative Where the court has found fundamental rts: I. Protecting family autonomy: 1. the rt to control the upbringing of one’s children a. Myers v. NE: NE statute prohibited teacher from teaching German. Teacher hired by parents to teach their kids German was their fundamental rt to have what they want their children to learn. Therefore the statute was unconstitutional since it violated the parents fundamental rt to K w/ someone to teach they children useful information. Teacher rt to teach and parents rt to hire someone to instruct their kids were both fundamental rts. b. The rt to home school your kids 2. RT to Marry: 1. Loving v. VA: prohibited interracial marriage. Freedom to marry is a fundamental rt and therefore the couple’s conviction was overturned. 3. RT to custody of one’s children: 1. Common law woman was the parent w/ custody and the father could obtain custody / paternity rts only through marriage. Child born out of wedlock was the child of no one. 2. Michael H v. Gerald D: Woman was married and got pregnant while having an affair. Blood test proved that her bf and not her husband was the father of the child, although the husband was holding out the child as his own. The bf attempted to file a paternity action. CA law held that the husband was presumed to be the child’s father if the couple was cohabiting at the time of conception and could be rebutted only 2 years after the child is born. This was much after 2 years. 5-4 decision the court held biological dad doesn’t have a fundamental rt to a relationship w/ the child b/c there is no historical basis to give the biological dad rts when the mother is already married. There is also no tradition to recognize multiple fatherhood so that daughter’s claim also failed. 4. RT to keep the family together:

1. Village of Belle Terre v. Boras: a group of college kids doesn’t have a fundamental rt to challenge a statute which restricted people living in a single family home to those related to each other. 2. However family does extended to extended family which means that grandparents have the fundamental rt to have their grandkids to live w/ them. Fundamental rt to keep a family living together. 3. The court has limited this rt in 2 ways: a. Individuals must be related to each other to be considered family and b. The infringement must be direct and substantial. II. Reproductive autonomy: 1. the rt to procreate: a. Buck v. Bell: the court allowed institutions to sterilize mentally retarded women. This was a low for the court and eventually reversed. b. Skinner v. OK: rt to procreate is a fundamental rt, involuntary sterilization imposed by the gov’t must meet strict scrutiny. c. Eugenics movement: pinnacle under Hitler, to create a super race. 2. the rt to purchase and buy contraception’s a. Comstock law: info about contraception’s through the mail was a crime b/c it was considered obscene. b. 1960’s most of these laws were reversed and there was a free flow of info about contraception’s except in CT: where there was an absolute ban on all contraceptives and info about them. c. Poe v. Ulman: court refused to consider the contraception issue d. Griswold v. CT: the Drs of a planned parenthood prosecuted for giving contraceptives to a married woman. The court struck the CT statute down as unconstitutional. There was a rt to privacy articulated for the first time. Privacy is protected under the 1st amendment from a gov’t intrusion. Freedom of ass’n. 3 rd amend (don’t have to quarter soldiers), 4th amend (against unreasonable searches and seizures), 5 th (against self incrimination) are all implications of a rt to privacy. Marriage also holds the rt of privacy. e. Eisenstadt v. Bard: struck down a statute which prohibited contraception to be sold to single couples but allowed the sale to married couples. f. Carry v/ Population services: struck down a statute in NY that prohibited minors from buying contraceptives, prohibited ads for contraceptives and allowed only pharmacists to sell them. 3. RT to obtain an abortion: a. Roe v. Wade: pregnant single woman wanted an abortion but at the time this was a crime in TX. Constitution protects a woman’s rt to terminate a pregnancy prior to the fetuses viability and a court cant prohibit an abortion before “quickening” viability (usually the 2 nd trimester). This rt isn’t absolute and must be balanced w/ state interest in protecting a life, requires strict scrutiny (narrowly drawn and serve a compelling state interest). No indication in the constitution that persons meant fetuses. State interest in protecting human life and the health and life of the mother. 1st trimester the state can’t intrude, 2nd the state can intrude/ regulate in ways reasonably related to the

III.

maternal health, 3rd the state can regulate as well as prohibit abortions. As the life of the fetuses developed the state interest grew. b. Post Roe decision: court struck down regulations that req’d 2 nd trimester abortions to be done in hospitals, for 2 Drs to determine viability, spousal consent (don’t need husband’s approval), parental consent for teens under 18. Upheld a statute that denied public funds for abortions not medically necessary c. Planned Parenthood v. Casey: PA statute req’d 24 hour waiting period, Dr had to inform the woman about the fetus, parental consent, record keeping and spousal notification. 5-4 decision court held that the state could regulate abortions in the 1 st trimester. The court overruled strict scrutiny regulation and the new standard is that gov’t can regulate abortions in the 1st trimester unless there is an undue burden in access to abortions. States can regulate abortions unless it creates an undue burden on the woman. 4 justices thought that Roe should be struck down and that the state should be able to regulate abortions as they wished and that all 4 of the PA regulations should be upheld. RT to medical care decisions: 1. Rt to refuse medical treatment 1. Historically been a distinction b/n taking someone’s life and refusing medical treatment although this isn’t an easily line to draw: Doctrine of informed consent: medical procedure w/o consent was a crime. 2. In re Quinlyn: woman was sick and her dad asked to take her off the respirator and the court 2. Rt to take affirmative steps to take a life 1. OR was the 1st state to allow assisted suicide. The state is now being sued by the US gov’t b/c the US doesn’t believe the state has this rt. 2. Cruzan v. Missouri Dept of Health: woman was left in a vegetative state and her family wanted to take her off of all food and water. Mo statute said that if there was no living will whoever wanted to pull the plug had to prove through clear and convincing evidence that this is want the incompetent would have wanted. The court upheld the clear and convincing standard. 3. People have the rt to terminate life saving nutrients and hydration and the state may require clear and convincing evidence that this would be what the person wanted b/c the state has an interest in the patients life. 4. There is no automatic rt that a family may terminate the life of another member. 5. Court has avoided whether or not there is a constitutional rt to die b/c most states have criminal statutes against attempted suicide as well as assisted suicide. 3. The RT to physician assisted suicide / DR giving an overdose to kill you. 1. WA v. Gluxberg: whether the state statute is against the 14 th amend. The court said no. In almost every western country there is a law against assisted suicide. The state interest is against more assisted suicides, Americans are in a debate about this subject and to left the debate to continue, to

IV.

protect people in this situation who are unable to defend themselves and to protect human life. 2. Distinction b/n assisted suicide and life sustaining measures. By taking a lethal injection you are doing something the body wouldn’t do immediately however stopping life support dying is something that the body would do immediately anyway. The intent to be taken off of life support could be for something other then to die. rt to sexual identity 1. Bowers v Hardwick: Hardwick was charged w/ sexual activity w/ a man in his bedroom. Police man came into his bedroom and arrested him under the GA sodomy law. This was a 5-4 decision which upheld the GA sodomy statute. Was there a fundamental rt to engage in homosexual sex. The court answered no there was no such rt. GA statute applied to all homo and heterosexuals preventing all acts of sodomy. The dissent said that the question wasn’t whether there was a rt to homosexual activity but rather was there a fundamental rt to privacy to protect certain activities. The dissent said that the rt to privacy should protect consensual sex w/in the home. GA in ’98 overturned this decision based on the GA constitution. 2. Romer v. Evans: unconstitutional under the EPC a CO law that protected gay and lesbians from discrimination. Applied rational basis to strike the statute down. The court said there was no reason for making gays different then anyone else in giving them special legal protection. 3. Lawrence v. TX: ’03 police came to an apartment where 2 men were engaged in sex, they were charged under a TX statute. The court overturned Bowers (which Powell said was the one decision he would change when he retired if he could). Focused on the dissent’s language in Bowers. Adults have the rt to privacy to engage in consensual sex in the privacy of their home. O’Connor thought the statute should be struck down on EPC b/c it wasn’t criminal for heterosexuals to engage in the acts. Scalia and Thomas dissented and their was no fundamental rt to be gay and that traditionally morality was a legit state interest for this statute. They were afraid this would open the door to legal prostitution, bestiality, etc. this case changed the equation and homosexual acts are now decriminalized in the US. Now homosexuality is protected under the rt of privacy. Constitutional protection for control over information about one’s self: both access and control to info is in constitution 1. Walen v. Rose: state of NY can collect info about every person that has been prescribed certain medication. The 4th amend limits the govt’s ability to search a person at home. You can resort to legislation if you felt the need for greater protection Fundamental rt to travel: 1. W/in the US: there is a fundamental rt to travel w/in the US must meet strict scrutiny if there are any burdens placed on this rt. 1. Edwards v. CA: invalidated a statute that made it a crime for someone to bring an indignant person into CA. Rt was protected under PIC

V.

VI.

2. Shapiro v. Thompson: overturned a statute that req’d a 2 year waiting period to receive welfare 3. Sans v. Roe: struck down a statute that limited welfare benefits they would’ve received from the state they moved form 4. Divorce: duration requirement was justified b/c domestic cases are under the jurisdiction of the state. 5. Voting: invalidated a 1 year requirement to vote in that state but upheld a 50 day waiting residency period. 2. Rt to foreign travel: 1. There is no fundamental rt to travel outside US and therefore only need to meet rationale basis scrutiny. VII. rt to vote: 1. 15th amend: race 2. 19 amendment: sex 3. 24th: failure to pay poll tax 4. 26th: citizen 18 or over 5. is a fundamental rt under the EPC 6. Reynolds v. Sims: voting for ones candidate is the essence of one’s rt as a citizen of the US the way citizens influence the election process 7. restrictions of rt to vote: 1. laws that deny some citizens the rt to vote: 1. apply strict scrutiny 2. state leg can appoint governor when neither candidate receives the majority of votes 3. poll taxes: fees to vote, 26 th amend prohibits poll 4. Harper v. VA Brd of elections: poll tax are unconstitutional for all elections 5. Property ownership requirements: the court hasn’t been clear on this subject. 6. Kramer v. Union school district: struck down statute which req’d ownership of property or kids that attended the school in order to vote in school board elections. Gov’t can’t measure interest in the election based on property ownership. Wasn’t sufficiently tailored. 7. Ball v. James: water district election: 1 vote per acre basis. The court upheld the law b/c only landowners were subject to this tax. Landowner’s were disproportionably affected. a. property ownership can be a prerequisite to vote if 1 group has more interest in the election then others 8. durational residency requirements: upheld limiting to city residences, struck down discrimination which prevented military to vote, 1 year waiting period struck down but 50 day upheld 9. Literacy tests: are permissible but they have been outlawed by federal statute. Can still discuss issues if they can’t read. 10. Prisoners and felons: may be permanently banned from voting but those awaiting trial can not. 11. voting limited in primaries to party affiliation:

a. Rosario v. NY: upheld law to select a political party 30 days before primary election to vote in the next lection. This is to prevent rating (throw off results of the other party’s election) b. 2 years waiting period was struck down as too long c. court struck down CT law which prohibited independents from voting in primaries b/c this wouldn’t affect d. Jones case: struck down CA law which allowed a person to vote for either party in a primary. Law violated freedom of ass’n. This case cast into doubt laws that force parties to allow independents to vote. Can’t be forced but can do it if they want. 2. dissolution of the rt to vote: 1. Baker v. Car: EPC applies to malaportionment. One person one vote. Districts must be about the same size. Both houses on a state level must be apportioned based on population 2. Gerrymandering: isn’t allowed where is consistently degrades certain voters. 3. Reynolds v. Simms: population not geographical areas are the proper way to determine districts. 4. Westbury v. Saunders: one person one vote applies to congress as well. 5. Bush v. Gore: 1st time court determined who went to the White House. Disparate Recount standards applied in different election districts violated the EPC. Different districts were using different standards on which vote counted. There wasn’t a statewide standard. This decision applies only to this case. 3. Laws that limit parties to the access to the ability to get on a ballot. If the crt believes that a law significantly burdens access then the crt will apply strict scrutiny. This is an ongoing concern for independents. Burdens for them getting on the ballot cant be excessive VIII. Access to courts and be heard is essential to DPC and thus is a fundamental rt. 1. Gideon v. Wainwright: where prison is a possible punishment rt to counsel is fundamental. 2. Gov’t must pay for an attorney for an indigent D for the 1st appeal and for copies of all transcripts. 2 nd appeal or more the state has no obligation to pay for those appeals. 3. Court filing fees for indigent D’s in civil cases. In forma a pauperus: you plead to the court that you are too poor to pay. 4. Boodie v. CT: gov’t req’d to pay for filing fees for poor to get a divorce b/c this affects their fundamental rt to marry.

5. Cross case: not req’d to waive filing fees for indigent persons filing for bankruptcy. VIII. Constitutional rt to education: isn’t a fundamental rt. Although it is req’d by some states. 1. San Antonio School district v. Rodriguez: Mexican parents argued that the poor kids where being discriminated against since their school wasn’t as nice as rich kid’s public school. Court said that there is no fundamental rt to education. 2. Plyer v. Doe: unconstitutional a TX law that allowed documented immigrants to free education but req’d undocumented to pay for their education. Court emphasized the harm to kids if they didn’t receive education and that kids shouldn’t be penalized for their parent’s improper actions. 3. several states have decided under their constitutional that education is fundamental and that discrimination in funding is unconstitutional Procedural due process:  Procedures the gov’t must follow before it deprives a person of life, liberty or property  Notice is req’d  3 questions of procedural due process: o What is a deprivation?  Negligence are insufficient, denial of due process is req’d to show recklessness or intentional act of a gov’t official  Daniels v. Williams: prisoner tripped on a pillow this was negligence and therefore insufficient  Gov’t has no duty to protect people from harm inflicted by an individual.  Dishanny v. Winnebago County: parents sued county for failing to protect their child when the dad beat the child. No constitutional violation b/c the child was in the hands of a private party and the county didn’t have custody over the child. o What is life  Deprivation of property  Goldberg v. Kelly: gov’t must provide due process b/c terminating welfare benefits.  Property  real, personal, gov’t benefits (is it essential to life), gov’t employment is an area of debate.  Board of Regents v. Roth: Roth’s position as a professor wasn’t renewed and was given no opportunity to challenge his termination and given no reason for failure to be reemployed. He wasn’t entitled to a reason for termination since he wasn’t tenured nor was there a constitutional requirement that he be granted a hearing to argue the termination was unjustified.  Deprivation of life:  There are the fewest cases brought under this. 2 areas: o Abortions rts o Rt to refuse life saving treatments. o Death penalty brought up under 8th amendment and not due process.  Deprivation of liberty  liberties are:

 

Importance of the interest at stake Expectations engendered by state law. o Inconsistent about whether harm to reputation is a liberty interest o Goth v. Lopez: upheld rep as a liberty interest. o Paul v. Davis: rejected students interest in his rep o For prisoners: initially the crt held that they had liberty interest, now the crt says that this interest is only protected o Sandon v. Connor: regardless of the statute there is a liberty interest for prisoners only if there is a deprivation of freedom that is atypical to the usual conditions of confinement.

o o

What process is req’d Matthews v. Eldridge: balancing test: importance of interest to the individual the more important the interest the more safeguards, ability of additional proceedings to increase the ability and accuracy of the fact finding and the burden imposed on the gov’t (the more expensive the less likely the court will impose them)

3 things that are req’d 1. Notice of the charges 2. Hearing 3. Impartial judge


				
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Description: Constitutional Law II- general focus economic liberties through amendments