Joshua S. Kyle
Constitutional Law II
Professor J.W. Nowlin
Sources of Constitutional Interpretation:
The Text: vagueness and open-endedness doesn‘t resolve questions.
Original Understanding: what did the drafters of the Constitution understand the text
Precedent: provides continuity and stability in the law—however, precedent may be
Legal Traditions: used when provision is not clear in the text
Contemporary Values: reflects consensus values—con: social trends change
Policy Judgments: made by judges
Judicial Restraint: Text, Original Understanding, Precedent, Legal Traditions
Judicial Flexibility: Contemporary Values, Policy Judgments
Calder v. Bull: debate over natural law
Chase: judges can strike laws that violate ―natural justice‖
Iradell: ct can enforce only the Constitution—must look to the text as the
Judicial Activism v. Judicial Restraint:
Restraint: emphasizes the text and original understanding of Constitution.
o Historic Constitution: focuses on history as an interpretive method; courts
cannot change unless amended.
Activism: Constitution reflects updated values
o Living Constitution: emphasizes contemporary values and policy
Philosophy of Free Expression:
1. The Search for Truth: ―the marketplace of ideas‖. Free speech allows us to find the
truth they are searching for. Assumes rational decisions are made.
2. Self-Governance: political speech must be allowed to inform the public who form
3. Individual Autonomy: human freedom requires one to be allowed to express
themselves without fear of government censorship.
4. Catch-all Category:
a. Checking Function: free speech holds government in check.
b. Safety Valve: free speech should allow socially harmful speech to
occur…allows one to ―blow off steam‖
c. Tolerant Society: allowing speech teaches others to be tolerant
d. Article of Peace: if the majority does not censor the minority, there is civil
History of Free Speech
“Congress shall make no law . . . abridging the freedom of speech” - First Amd.
Three Possible Meanings of Free Speech:
o Blackstone: no prior restraints, but subsequent punishment for bad
tendency is okay.
o Madison: only political speech is protected from prior restraints and
o Federalist: congress has NO power to regulate FS, but states have ALL
the power. The 1st Amd says ―CONGRESS shall make no law....‖ States
can do whatever the hell they want.
Sedition Act (1798): First federal limitation on FS which prohibited the publication
of false, scandalous and malicious writings against the government with intent to
defame. USSC never made a ruling on the constitutionality of the Act. It expired in
Elements to look at when analyzing speech:
Express language: advocating violation of law
Danger of Harm
o Early decision that is not very speech protective
o Shaffer prosecuted under Espionage Act for mailing book that said
―patriotism is murder.‖
o Test: BAD TENDENCY- speaker intended the natural and probable
consequences of his speech.
o Intent is inferred.
o USPS refuses to mail magazine b/c of content.
o Judge Learned Hand doesn‘t like fact based determination.
o Test: to restrict speech, must have express language of law violation.
EXPRESS INCITEMENT test.
o Con: May be overprotective if speaker is dangerous, but doesn‘t use
o Publication of leaflet to hinder recruitment
O HOLMES: CLEAR AND PRESENT DANGER TEST!!!
Not clear that this is anything other than a BT test.
o HOLMES: same year as Schenck.
o Holmes leaves out ―clear and present danger‖ language and uses BAD
o The government doesn‘t have to wait for the fire to start if the tendency of
the speech is to incite law violation.
o Nowlin: CPD is nothing more than BT.
o Speech analogizing slavery and draft.
o Conviction upheld under BAD TENDENCY Test
o Another Holmes opinion not using CPD language
*Although Holmes‘ opinion in Schenck used the CPD language, it appears that it
was nothing more than the BT test being employed. Later that year, Holmes used the
BT test in Frohwerk and Debs.
o Russian-Americans protest US entry into Bolshevik Russia.
o Court upheld conviction citing both Schenck (CPD) and Frohwerk (BT).
o Intent can be inferred from words.
o Holmes Dissents: the speakers had not intent. Wanted to use CPD test.
Demanded either a significant level of clarity, imminence and danger OR
intent. [more speech protective]
Holmes wants to use new version of CPD rather than BT b/c BT
doesn‘t protect speech criticizing the gov‘t.
The Court has used 3 tests:
o Bad Tendency: Shaffer. Does not protect gov‘t criticism (b/c all has BT).
o Express Language: Masses/ L. Hand
o CPD: Schenck/ Holmes. May not be very speech protective. Only
punishes when people listen to what you say.
o Member of Socialists party distributes manifesto advocating overthrow of
o State statute prohibits this. Important: First time 1st Amd. is
incorporated (through 14th Amd.).
o Test: REASONABLENESS TEST- give deference to state legislatures
so long as they were reasonable.
Ct cited both Schenck (CPD) and Frohwerk/Debs (BT), but
ultimately defers to the legislature.
o Holmes Dissents: wants to use CPD test- absent a CPD or intent to
produce a CPD, speech is protected. Holmes supports marketplace of
o Member of Socialist group advocates overthrow of gov‘t in violation of
o Ct follows Gitlow and uses Reasonableness Test. Defer to state leg.
o Brandeis dissents: Advocates CPD test (similar to Holmes).
Remedy for bad speech (in non-emergency situation) is more
speech OR good speech.
o Throws out reasonableness test.
o Test: NEW CPD Test: Gravity/Probability of Harm v. Value of
Speech. [looks like the balancing test swiped from L. Hand.
o New test is a more fluid and balancing version of CPD.
After Dennis, current court was using three different versions of CPD:
o Holmes/Brandies‘s CPD: CPD or intent to produce CPD
o Fluid Balancing Test: Dennis- gravity/probability v. value
o BT version of CPD: Abrams, Frohwork, Debs.
o Clan speech at KKK rally.
o Modern Test: Advocacy directed to imminent, likely, lawless action.
o This is a CPD type test
Intent: directed to
Express language: advocacy
Imminence/ Presence: imminent
Danger: lawless action
o New test is very SPEECH PROTECTIVE.
Applications of the Brandenburg Test:
o ―we‘ll all take the fucking street later‖
o By using word later, statement lacked imminence element.
o ―if you shop at the stores, we‘ll break your necks‖
o Statement lacks likelihood and imminence.
Re-cap of different tests Court formulated:
1) BT: Blackstone
2) Express Incitement Test: Massey
3) CPD as BT Test: Holmes
4) CPD as Speech Protective Test
5) Reasonableness Test: Gitlow, Whitney
6) CPD Balancing: Dennis- Gravity/Prob. of Harm v. Value of Speech
7) Brandenburg Test: advocacy directed to inciting or producing imminent lawless
action likely to incite or produce that imminent lawless action.
HOSTILE AUDIENCE RESPONSE
o Played record on street-corner criticizing Catholics
o Test for HAR!!!!
INTENT or EXPRESS LANGUAGE OF PROVOCATION…
…To create a CPD of riot, disorder, interference with
traffic upon the public streets, or other immediate
threat to public safety, peace or order.
o Under the facts, Court found no intent to create a CPD nor any express
language of provocation.
o Follows Cantwell CPD test looking for intent or express language of
o Held jury instruction violated 1st Amd by not including language of
o Speaker called political figures ―bum‖ who do ―not speak for the negro
o Ct applies CPD test and found D had intent and used express language.
o Also, there was 1 speaker, 2 cops, and crowd of 80. Thus, cops acted in
o This test may create a heckler’s veto.
Heckler‟s Veto: suppression of speech of one person b/c of the
beliefs of crowd.
o Black‟s Dissent: Doesn‘t defer to TC and finds under the facts that no
CPD exists. Cops could have controlled crowd had they attempted.
o 180 peaceful protestors, 30 cops, 200 onlookers.
o ―Far cry from Feiner‖. There was a sufficient police presence to forestall
any danger of disorder.
o Holding may not have been b/c of speech, but b/c of ratio of police
o 2,000 black protestors do peaceful sit-in, 75 officers, 200 on-lookers.
o No references to certain people.
o Ct held arrests unconstitutional and found an attempt to exercise a
o 85 protestors, 100 cops, 1,000 whites in crowd.
o ―Far cry from Feiner II‖. HOWEVER, facts look most similar to Feiner.
o Nowlin: Chief Justice Warren doesn‘t like Feiner opinion.
Edwards, Cox, and Gregory follow Black‟s dissent in Feiner: concern for the
heckler‘s veto and recognition of police duty to quell crowd.
HAR Test Today: Court never says what the test is. Could use either:
o 3 cases [Edwards, Cox and Gregory] use Cantwell’s CPD test.
o Another possibility is to apply the Brandenburg test: change ―advocacy‖
element to ―provocation‖.
PROVOCATION directed to imminent, likely, lawless action
o Members of the city hall are ―god-damned racketeers‖.
o Court outlines a two level theory of speech: high value and low value.
Fighting words are low value speech and should thus be
Fighting Words- words which inflict injury or tend to incite an
immediate breach of the peace.
o Ct gives nonexclusive list of low-value, unprotected speech:
Lewd, Obscene, Profane, Libelous, Insulting, Fighting words.
o Court doesn‘t use Brandenburg test b/c they want to create a bright-line
category to supplement the Cantwell CPD test.
Fighting Words requires:
Abusive insults likely to cause breach of peace.
Face to face encounter
Purport to describe an individual
Directed to that individual
o It is a fuzzy category, not clearly defined.
o Note: insults to 3d parties probably NOT fighting words.
When do I apply Cantwell CPD test OR FW test?
o FW for small encounter
o Cantwell CPD for speakers in front of crowds
o What if audience of 5-10 people and 1 speaker?
Nowlin not sure…maybe, apply both tests.
PURE CRIMINAL SPEECH
No, USSC decision on this, but we know it‘s unprotected b/c crimes such as
solicitation, conspiracy, and actus reus for accomplice liability exist.
If you get a case in the middle (b/t express incitement Brandenburg and pure criminal
speech) argue both.
Speaker and crowd of people or publication to wide audience: Apply Brandenburg.
Political speech: Apply Brandenburg
Pure criminal speech: likely unprotected unless crowd or wide audience (in which
case, you may want to apply Brandenburg)
Example: Speaker says to crowd: ―What‘s needed is a generation of people/hippies
who smoke pot and take acid‖
Probably apply Brandenburg test b/c there‘s a crowd and it‘s
Example: Speaker tells someone on street corner to try heroin.
This is individual to individual speech and not political. Thus, it‘s
pure criminal speech.
Problems arise when speech is ―in the middle‖:
o Rice v. Paladin Enterprises- published book entitled ―Hit Man‖ detailing
how to commit murder. Dilemma: publication to large audience suggests
a Brandenburg test, but advocation of pure criminal speech suggests
Nowlin: argue under both tests.
Under Brandenburg, [advocacy directed to imminent,
likely, lawless action] book may not meet imminence
element. Also, may have problems with intent.
Under Pure Criminal Speech, could argue no intent.
Subcategory of pure criminal speech (unprotected)
VIRGINIA v. BLACK:
o Modern Test for true threats:
Requires an intent to communicate a serious expression of an
act of unlawful violence to a particular individual or group of
o Breakdown of the Elements:
Intent to Communicate: subjective intent.
Serious Expression: RPP test
Act of Unlawful Violence
To Particular Individual or Group of Individuals: Circuits split
over whether it must be directly communicated to person
Cases Involving Threats:
o ―If I get drafted, I‘ll shoot LBJ‖
o Not a true threat, but “kind of political hyperbole”
o If analyzed under VA v. Black, element of serious expression fails. Also,
could argue that threat wasn‘t communicated to individual threatened
(note: depends on circuit).
o Nowlin: speaking b/f crowd in political context is usually not a true threat
o ―We‘ll break your necks if you shop in that store‖
o Under VA v. Black, no subjective intent and not a serious expression (rpp).
o Website targeting abortionists (draws line through pic when killed)
o Pre-VA v. Black case.
o Majority found website to be true threat thus, unprotected speech.
o However, today under VA v. Black probably not a true threat b/c not a
threat and not a serious expression.
o If Brandenburg were applied, probably lacks imminence element.
o Could also argue pure criminal speech b/c advocates murder.
o Leaflet distributed urging mayor and city council to stop blacks from
moving in. Threat of violence if not.
o Prosecuted under criminal libel statute. This is group libel.
o Court, applying Chaplinsky, find this is ―low value socially harmful
speech‖ that is unprotected (libel is one in the Chaplinsky list)
o Rule: Group libel can be criminalized like individual libel.
o NO LONGER GOOD LAW as a result of NY Times v. Sullivan.
o Thus, you can no longer suppress speech by claiming it is group libel.
***The USSC recognizes no category called “Hate Speech”***
Note: Canadian Supreme Court (and most Euros) recognizes such a category
RAV v. ST. PAUL:
o Conviction for violating city ordinance prohibiting cross-burning directed
b/c of religion or race. [this is essentially prohibiting a sub-category of
o SCALIA‟s majority:
Content/Viewpoint based prohibition on discrimination is
Virulence or Intensity distinctions is CONSTITUTIONAL
E.g. ―the most fightingest of fighting words‖
o Why? Scalia thought viewpoint-based prohibitions would be a potential
vehicle for political discrimination.
o Rule: Hate speech legislation is unconstitutional.
o Test to apply for content/viewpoint discrimination: strict scrutiny-
compelling state interest.
o Concurring Justices: thought law unconstitutional b/c did not comply w/
Chaplinsky’s FW test.
WISCONSIN v. MITCHELL:
o Black boys beat white boy after watching movie MS Burning.
o State had sentence enhancement for selecting victim based on race.
o Rule: Hate crime legislation is CONSTITUIONAL. Why? Physical
assault is conduct, not speech.
o Sentence Enhancements based on, e.g. race or religion, are
VA v BLACK:
o State statute prohibits threats by cross burning.
o Ct follows RAV v. St. Paul- subject matter/ viewpoint distinction or
o Intensity/ Virulence distinction: CONSTITUIONAL!!!
State decided that the act of cross burning should be prohibited b/c
of its virulence. Cross burning is seen as a serious type of threat.
o But, statute struck down b/c of jury instruction created prima facie
inference of intent.
o Nowlin: Ct recognizes that categories of ―true threats‖ and ―fighting
words‖ can be used to achieve some category of ―hate speech‖.
Example: State law prohibits certain words/phrases that are ―un-American.‖ This is
a content-based speech regulation that requires strict scrutiny. Unless there is a
compelling gov‘t interest, will be invalidated.
Facial challenge resulting in total invalidation of a statute
This is the opposite of an as applied challenge which is a partial invalidation
Doctrine limited to speech laws, does NOT apply to laws regulating conduct
Policy in favor of doctrine:
―Chilling effect‖- overbroad statutes create a chilling effect.
Overbroad statutes encourage self-censorship which in effects deters speech.
Selective enforcement may occur with a broad sweeping law.
Allowing facial challenges is very protective of free speech.
Policy against doctrine:
May be used to strike down laws that will never be misapplied.
Gives windfall to guilty Ds.
Often, standing of P isn‘t appropriate.
Erodes separation of powers.
Overbreadth doesn‘t clarify what is constitutional.
o Convicted under statute prohibiting the use of opprobrious words and
o The Court found that the definition of “opprobrious” and “abusive”
o The statute swept into constitutionally protected speech facially
BROADRICK V. OK:
o Rule: To find a statute is unconstitutional b/c overbroad must be
o How to determine substantial overbreadth:
Possible for selective prosecution
High ratio of unconstitutional applications
High state interest in suppressing the speech
Problem of narrowing construction:
o Legislative narrowing does NOT defeat overbreadth claim. Oaks. This is
b/c it would be an ex post facto law.
o Judicial narrowing does defeat an overbreadth claim. Osborne. This is
essentially interpreting the law.
o Policy: incentive for legislature to get it right the first time.
Partial Invalidation: Brockett v. Spokane Arcades allows the partial invalidation of
Vagueness: due process doctrine. Concerned with notice. If statue is too vague,
there is no fair warning or notice.
o Rule: A law is void on its face if it is so vague that persons ―of common
intelligence must necessarily guess at its meaning and differ as to its
o Rule: Look at overbreadth doctrine first (b/c it‘s a free speech doctrine),
THEN move on to vagueness analysis. Hoccum v. Flipside.
Restraints on speech prior to speech engagement
Policy Arguments Against Prior Restraints:
Prevents ideas from reaching marketplace
Often decided by overzealous censors
Potential for selective enforcement chilling effect.
System set up in favor of censorship
Historical Arguments Against Prior Restraints:
Blackstone: liberty of press means no prior restraints.
Lovell v. Griffin:
o City law requires permit to distribute pamphlets.
o Law is facially invalid b/c a prior restraint.
Prior Restraints: Content Neutral v. Content Based
Constitutional Content Neutral Regulation:
1. Speech regulation is otherwise constitutional as a subsequent punishment
2. Clear standards that govern the exercise of the prior restraint. Lakewood.
Example: Parade permits. They are constitutional as subsequent
punishments if they are time, place and manner restrictions. If there are
clear standards for the permits, they are constitutional prior restraints.
Constitutional Content Based Prior Restraints:
1. Speech regulation is otherwise constitutional as a subsequent punishment
2. Clear standards that govern the exercise of the prior restraint. Lakewood.
3. Freedman safeguards:
i) burden placed on censor
ii) prompt judicial determination on the merits.
Nowlin: Freedman required safeguards for an obscene movie. Thus, it is
not clear that the safeguards will save the statute if outside the arena of
obscenity or movies.
Injunctions: can have effect of prior restraint
o City abated certain articles criticizing city officials with an injunction
against newspaper. Operated like a prior restraint.
o Collateral Bar Rule: prevents violator of injunction from raising the
constitutionality of the injunction as a defense to enforcement.
o Holding: Injunction works as an unconstitutional prior restraint.
MADSEN v. WOMEN‟S HEALTH CENTER:
o Injunction issued prohibiting individuals from protesting outside abortion
o Content Neutral Injunction
o Constitutional IF constitutional as subsequent punishment and Lakewood
Constitutional time, place and manner restriction as subsq. punish.
Clear standards are built into judicial process. Meets Lakewood.
o City commissioner issues order prohibiting newspaper ads organized by
o Content Based Injunction:
Constitutional as subsequent punishment
Clear Lakewood standards (built into judicial process)
o Constitutional Injunction
PENTAGON PAPERS CASE:
o US Gov‘t attempts to get injunction prohibiting NYT from publishing
stolen pentagon papers.
o Per Curiam Opinion: Any system of prior restraint is presumptively
unconstitutional. PRs are heavily disfavored in American FS law.
Constitutionality of prior restraint requires HEAVY BURDEN
o Shows a move by the court to a very speech protective doctrine.
o BARTNICKI v. VOPPER:
Radio stations who play illegal recordings (e.g. wiretap) can‘t be
punished unless the radio station was directly involved in
obtaining the illegal recordings.
Court has always agreed that obscenity is a unprotected category
Early attempts to define obscenity:
o Test: Whether the tendency of the matter is to deprave and corrupt
those whose minds are open to such immoral influences.
o This is a BT test used my many American courts in the 19th century.
ONE BOOK CALLED „ULYSSES‟:
o Test: Is material obscene based on average member of the
community and work as a whole.
o More speech protective.
o Test: Whether to the average person, applying contemporary
community standards, the dominant theme of the material taken as a
whole appeals to prurient interests.
Contemporary community standards
Theme of work as a whole
Appeals to prurient (lustful) interests
Speech with sexual content:
o FS Value:
Contributes to marketplace of ideas
Self-expression (individual autonomy)
Promotes democratic self-government
o Social Harm:
Children may suffer harm
Promotes violence against women
Public Health: produces promiscuity
Moral corruption/ degradation of family
Roth test only lasted until the late 1960s.
The dominant theme of the material, taken as a whole, appeals to
a prurient interest in sex.
The material is patently offensive b/c it affronts contemporary
The material is utterly without redeeming social value.
o Extended Roth test
o Example of a period in late 60s where court began reversing obscenity
convictions with per curium opinions.
o Provided no guidance to lower courts.
o Modern Test!!!
Whether the average person, applying contemporary community
standards, would find that the work, taken as a whole, appeals to
the prurient interest.
Whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined in the applicable state
law. [Based on Contemporary Community Standards]
Whether the work, taken as a whole, lacks serious literary, artistic,
political, or scientific (LAPS) value.
o Defines a larger box of obscene speech than Memoirs
o Applying CCS leaves determination with jury.
o Burger (wrote opinion) said test will provide notice, reduce litigation,
have no chilling effect, respect the diversity of opinion (by using ccs), and
be in-line w/ history (in that historically, obscenity has been prosecuted)
Application of Miller test:
PARIS ADULT THEATRE:
o Rule: There is no consenting adult exception to the Miller obscenity
o ―We categorically disapprove the theory that obscene, pornographic films
acquire constitutional immunity from state regulation simply because they
are exhibited for consenting adults only.‖
o Rule: Third prong of Miller test [lacks serious LAPS value] is a
JENKINS v. GEORGIA:
o Rule: Miller test only applies to hard core pornography.
o Movie Carnal Knowledge was, according to Court, not obscene based on
o Rule: Obscenity with respect to minors may be banned from minors.
o Although something may not be banned as obscene to adults, it may be
banned as to minors if, under the variable Miller test (taking minors into
account) the item is obscene.
o COPA prohibited putting material on web that was obscene as to children.
o Ct held, statute not substantially overbroad.
o Rule: The use of CCS is correct for a fed‘l statute banning obscenity.
However, using national CCS may be unconstitutional ‗as applied‘.
o Problem with fed‘l statutes and CCS. What community?
o Hamling- D wants to mail porn info all over US. USSC said don‘t mail
to any jurisdiction where CCS will subject you to prosecution.
o Exception to obscenity doctrine: You may possess obscene material in
your own home.
o State may sill prohibit the reception or transmission of the material.
SMITH and HAMLING:
o No strict liability for obscenity.
o Mental state element: probably knowledge of character of materials.
o Rule: Child porn is an unprotected category of speech.
State interest in protecting children from physical and
Children harmed by ongoing existence of permanent record of
Ct wants to shut down national market.
Low FS value
High social harm
o Ct still must define ―child porn.‖
o Rule: Stanley exception does not apply to child porn.
o Fed‘l law prohibits virtual child porn.
o Does not fall under Ferber test b/c no child victims.
o Apply Miller.
o Ct held substantially overbroad
LEWD AND PROFANE SPEECH
USSC recognizes NO category of lewd and profane speech (see also hate speech)
All we have is Chaplinsky dictum.
o Fuck the Draft T-shirt
o Miller Obscenity test: not obscene b/c doesn‘t appeal to prurient interests.
o Chaplinsky FW test: not an insult directed at a particular person.
o Not HAR.
o Drive-in movie theatre w/ nudity visible from road.
o Not obscene under Miller.
o Ct places burden on viewer to avert their eyes.
o Speech is protected.
o George Carline ‗Dirty Words‘ monologue on radio.
o FCC placed reprimand letter in station‘s file.
o Ct gives deference to FCC
o This is low value speech, and Ct recognized broadcast went into the
o Dial-a-porn prohibited by fed‘l law.
o Law does not meet Miller obscenity test, so Court applies strict scrutiny.
o Clearly establishes strict scrutiny test: CSI and Narrowly Tailored.
o Ct found that less speech restrictive alternatives exist (not narrowly
o Fed‘l law required cable operators to either fully scramble porn channels
OR limit transmission of porn to b/t 10pm and 6am.
o Ct applies strict scrutiny and holds that there are less speech restrictive
o Alternatives: parents could call in and have channels blocked.
o Pacifica was different b/c radio is more available and must be regulated
DENVER AREA EDUCATIONAL
o Fed‘l law requires cable operators to put indecent material on one channel,
and also limits time it can be broadcasted.
o Strict Scrutiny: Ct found CSI (protecting children will almost always be
the CSI), but law is not narrowly tailored.
RENO v. ACLU:
o CDA prohibits putting indecent material on internet that can be accessed
by children under 18.
o Law is ambiguous: what does ―indecent‖ mean?
o Less Restrictive Alternatives exist: require credit card, v-chip, tagging,
o Distinguished from Pacifica- must take affirmative steps to access
o COPA, as applied, works to ban provision of obscene materials to adults.
o Strict Scrutiny: CSI is children, but not narrowly tailored.
Summary: Butler says you can‘t restrict material from adults that is only obscene as
to children. Playboy Entertainment says you apply SS to measures to protect
In the above cases, Ct shows it wants narrowly tailored laws. Technology-specific
areas are important in the narrowly tailored analysis.
Regulating Indecency by Zoning:
YOUNG v. AMERICAN MINI-THEATRES:
o Zoning ordinance works to scatter adult theatres.
o Constitutional time, place, and manner restriction. But ct doesn‘t decide
whether to analyze law under content-based or content-neutral restriction.
o Court looks at secondary effects of adult theatres and finds that the
zoning restrictions are NOT content-based, but content-neutral.
CITY OF RENTON:
o Ordinance prohibits adult theatres from locating w/in 1000 ft of any
residential, church, park or school zone.
o If law is based on secondary effects and is a time, place and manner
restriction, it will be considered content neutral and get intermediate
o Intermediate Scrutiny Test:
Substantial state interest
Law substantially related to state interest
Ample alternative avenues of communication.
o Note: Secondary effects zoning cases get IS.
o Holding: law constitutional. But Ct required some evidence (study) that
zoning ordinance will reduce secondary effects.
o Majority of Court held city can rely on old study from another city as
factual support required.
o 4 Dissenters want more on-point study.
o Court does not recognize category of lewd/profane/indecent speech.
o If law is based on Primary Effects:
E.g., Moral corruption, offensive
Ct. says this is content-based
Apply strict scrutiny: CSI and NT (least restrictive means)
CSI: protecting children and unconsenting adults are valid
NT: the question of technology often drives this analysis.
Gov‘t often loses here.
o If law is based on Secondary Effects:
E.g., urban blight, loss of prop. value, crime
Ct says this is content-neutral
Apply intermediate scrutiny: Important state interest and NT
ISI: property value is valid. Must show factual basis: Ct
will accept study from another city. Alameda Books.
NT: must have alternative avenues of communication
Argument that porn is a type of hate speech:
o Exploits women
o Degrades women
o Encourages men to view women as objects of aggression
Argument that porn should be protected:
o Contributes to marketplace of ideas
o Expression of autonomy
o 7th Cir.
o City ordinance prohibited pornography (defined as material sexually
degrading to women)
o Ct held content-based restriction: strict scrutiny!
CSI: protecting women (valid)
NT: Ordinance is not narrowly tailored. City could have banned
obscenity that is unprotected under Miller test.
o Canadian case
o Upholds ordinance similar to that in Hudnut.
o Hate speech laws Constitutional in Canada.
U.S. Courts Stance: No recognition of hate speech or pornography categories, but
will validate hate crime or sex crime laws. States cannot prohibit content-based hate
speech: it will get SS, and there will always be a less restrictive alternative.
Early on, Commercial Speech was an unprotected category.
o State law: pharmacists can‘t advertise issues relating to drugs.
o State rationale: price wars will ensue; quality of pharmaceuticals will
suffer; pharmacy services will suffer.
o Held: Commercial Speech is protected by 1st Amd.
o Commercial Speech defined: speech that proposes a commercial
o Reasons why Commercial Speech is important:
Major interest in receiving accurate price info
Free market economy needs free flow of prices
Commercial business needs
o Rule: false and misleading ads can still be prohibited
o Rule: illegal transactions can be prohibited
o Law forbade promoting use of electricity.
o Court found it to be more extensive than necessary (other alternatives)
o Modern Test for commercial speech
o 4 Part Test:
Is the expression truthful, nonmisleading ads concerning
Is there a substantial state interest?
Does regulation directly advance the state interest?
Is regulation no more extensive than necessary to achieve that
o Last three prongs are a type of IS test. NT test is essentially split up into
two separate prongs (directly advance and no more extensive)
o If answer to prong 1 is ―no‖, speech is unprotected.
o Rehnquist Dissents: Economic regulations should get no 1st Amd.
protection. Citing Lee Optical.
BOLGER V. YOUNGS DRUGS:
o Defined Commercial Speech: Look at factors-
Advertisement of some kind
Reference to a specific product
o One factor is not dispositive.
Commercial Speech Test:
o First: Is expression commercial speech?
VA Pharmacy- speech that proposes a commercial transaction.
Bolger- economic motive, ad of some kind, reference to specific
o Second: Is prong 1 of Central Hudson satisfied?
Truthful, nonmisleading ads concerning lawful transaction.
o Third: Is IS test (last 3 prongs) of Central Hudson satisfied?
Substantial state interest.
Directly advance state interest
Empirical evidence must be shown. 44 Liquor Mart
No more extensive than necessary.
Reasonable Fit- SUNY v. FOX
o If ―yes‖ to all 3 = protected commercial speech.
Why didn‘t court apply rational basis review (LS)? Would constitutionalize any
regulation on commercial speech. Commercial speech is entitled to some protection.
Why didn‘t court apply SS? Hardihood of speech. It‘s not vulnerable to chilling
SUNY v. FOX:
o Last prong of Central Hudson (no more extensive than necessary)
interpreted to be reasonable fit.
o Watering down of Central Hudson test by Rehnquist (dissenter in Cent.
Hudson). Makes it almost LS review.
o Puerto Rico legalized gambling, but prohibited advertising directed at
Puerto Rican residence.
o Court upholds ban using language of Central Hudson, but giving
deference to legislature.
o On last two prongs: Rehnquist asks whether there is a reasonable belief of
direct advancement and no more extensive than necessary.
o Uses Greater Inclusive Argument: because Puerto Rico can completely
ban gambling, they can surely ban advertisement.
o Fed‘l law prohibits lotto ads in states not allowing lottos.
o Upheld under Central Hudson.
o Substantial interest in supporting states who ban lottos.
o Court follows Posadas and is deferential to fed‘l gov‘t.
WENT FOR IT:
o Regulation prohibits lawyers from contacting accident victim w/in 30 days
o Substantial Gov‘t Interest (2d prong): privacy and tranquility of injury
o Directly Advances and No More Extensive than Nec: other ways to get
message out in those first 30 days.
RUBIN v. COORS BREWING:
o Fed‘l Reg prohibits beer labels from stating alcohol content.
o While regulation is truthful, non-misleading(1st prong) and b/c of legit
gov‘t concern (2nd prong), fails 3d and 4th prongs: doesn‘t directly
advance b/c other ads w/ alcohol content were okay and is more extensive
than necessary b/c could have taxed beer.
o Struck down! Takes Central Hudson back to original meaning.
44 LIQUOR MART:
o Nail in the coffin for Posadas
o State law prohibits ads on price of alcohol, except for price tags or signs
inside liquor store.
o 3d prong of Direct Advancement: Ct wants evidentiary support.
o 4th prong: more extensive than nec b/c gov‘t could have raised taxes.
o Court swings to side of SS.
o Nowlin: Since this case, ct has applied a more searching analysis and very
few restrictions on commercial speech have been upheld.
Modern Application of Central Hudson looks like SS. See 44 Liquor Mart.
o 2001 Tobacco Case.
o State Reg:
no outdoor tobacco ads w/in 1K ft of school/playground.
Indoor ads must be higher than five feet.
o Outdoor Ads: more extensive than necessary b/c virtually all of state is
w/in 1K ft of school/playground. Also, ct cites Butler v. Michigan- can‘t
restrict from adult consumers who have lawful right to receive information
just b/c children should be protected.
o Indoor Ads: no direct advancement b/c kids can simply look up.
Hypo Exam Problem: Regulation of Tobacco Products:
o Federal ban on electronic ads on tobacco.
o Constitutional under Central Hudson?
1st Prong: lawful, nonmisleading ad
2nd Prong: substantial gov‘t interest- health, safety, welfare
3rd Prong: need empirical study showing direct advancement. 44
4th Prong: Probably more extensive than necessary b/c gov‘t could
levy a tax. 44 Liquor Mart(holding that instead of prohibiting ads
for beer to lower consumption, could levy tax on beer). Also, can‘t
prohibit lawful communication based on harm to children. Butler
o Therefore, probably unconstitutional b/c prongs 3 and 4 are not met.
o Also, throw in a cite to Pacifica claiming that gov‘t may have greater
authority to ban broadcast advertising.
Other issues arising in Commercial Speech doctrine
Compelled Disclosure: ZAUDERER:
o Holding: a court may compel disclosures about a product if reasonably
related to preventing consumer deception. E.g. Surg. General Warnings.
o Facts: Disciplinary rule required attorneys to disclose, on ads, that clients
must pay for ―costs‖ of unsuccessful suits.
Overbreadth Doctrine: No application to Commercial Speech!!!
o Bates dicta and Flipside. Why? b/c of commercial speech‘s hardihood-
not vulnerable to chilling effect.
Discrimination in Commercial Speech:
o City bans commercial free standing news racks b/c of safety and
o Rule: Can‘t discriminate b/t commercial and non-commercial when both
present same problem.
o Undermines Discovery Network.
o Ban on billboards.
o Constitutional for commercial speech, but unconstitutional for non-
o Lower court case over ―Do Not Call Registry‖.
o District Court followed Discovery Network and invalidated b/c it
o 10th Circuit reversed by following Metromedia. [While 10th Cir. cannot
overturn Discovery, they distinguished.] Analyzed under Central Hudson.
Nowlin: in these cases, Ct never brings up that regulation on commercial speech is
viewpoint discrimination. R.A.V. held that subject matter distinctions within a
regulable category are unconstitutional. Only intensity distinctions are okay. Would
have to argue that it is an intensity distinction b/c of the harmful effects of Tobacco,
Alcohol, etc. According to 44 Liquor Mart, need empirical evidence to prove this.
Valid State Interests we have seen above:
o Protecting consenting/unconsenting adults in home. Mainstream Media.
o Paternalism. Went For It.
o Protecting people/ tranquility from unwanted communications.
CONTENT BASED v. CONTENT NEUTRAL DISTINCTIONS
Content Based Restrictions:
o Restrictions based on content of speech or viewpoint of speaker
o Test: strict scrutiny.
o Exceptions: unprotected categories
Fighting Words. Chaplinsky.
Advocacy of Unlawful Actions. Brandenburg.
o Why different treatment? Content-based has chilling effect, stifle
Content Neutral Restrictions:
o E.g., time, place, manner restrictions; secondary effects doctrine
o Test: intermediate scrutiny
Substantial/Significant State Interest
Alternative Avenues of Communication
o Other factors court has considered:
Disparate impact on poor
Impact of speech
Motive to censor.
o Ordinance prohibits signs bringing foreign gov‘t into disrepute from w/in
500 feet of that embassy.
o Content-based – strict scrutiny. Court refused to consider secondary
effects (and thus classifying content neutral) outside realm of adult speech.
HILL V. COLORADO:
o State statute: unlawful to approach someone w/in 100 ft of healthcare
facility, w/out their consent, to pass out leaflet or engage in protest,
education or counseling.
o Content-neutral b/c applies to all viewpoints. This is a constitutional
time, place, and manner restriction. Personally, I think this is horse shit
b/c the practical effect is to limit anti-abortion groups.
o Ordinance prohibits distributing leaflets in public street…to prevent
o Content-neutral b/c applies to all types of leaflets, even blank ones.
o Intermediate Scrutiny: not NT b/c there are less restrictive means, e.g. put
up trash cans, make fine high.
CITY OF STRUTHERS:
o City ordinance against knocking on doors to distribute leaflets.
o Content-neutral, so IS. Not least restrictive means b/c could put time,
place and manner restrictions.
o Court also considers impact on poor.
o City ordinance prohibits use of sound trucks to prevent ―loud or raucous
o Content-neutral: upheld b/c there are alternative avenues.
o Dissent cites disparate impact on poor. See City of Struthers.
o Ordinance banned all outdoor advertising signs.
o Plurality found content-based and held unconstitutional.
o Brennan concurred and said content neutral, but still unconstitutional
b/c no empirical evidence of state interest. Remember: in 44 Liquor Mart,
Brennan required empirical evidence of state interest.
CITY OF LADUE:
o Ordinance bans the erection of sign on your property. Works to prohibit
homeowners from displaying signs.
o Content-neutral b/c bans all types of signs.
o While ordinance appears to meet IS test (state interest, NT, and alternative
avenues of communication exist), court gives respect to tradition.
o Also, this is a unique method of expression, e.g. Cohen.
NAACP V. ALABAMA:
o State law requires disclosure of names/addresses of in-state members of
o NAACP is a corporation, but wants to keep names private.
o Content-neutral b/c applies to all corporations.
o While IS test seems to be satisfied, this case is an example of the Court
looking at other concerns. Ct. takes into consideration the disparate
impact of the speech.
Concerns Court may Consider:
o Traditional expressions
o Disparate impact on poor
City of Struthers; Kovacs(dissent)
o Impact of speech
NAACP v. Ala.
o Motive to censor.
Public Forum Doctrine
o Old case! Ct held gov‘t has same property rights as homeowners – can
restrict at will.
HAGUE V. CIO:
o Overruled Davis
o Streets and parks are held in public trust for public use. Government has
no extra authority to restrict speech.
o Ordinance prohibits residential picketing (outside certain homes).
o Public Forum- sidewalk and street.
o Content-neutral b/c applies to all types of protests.
o Test: IS
State interest: privacy and tranquility in home.
NT: can still protest, just not in that location.
Ample Alt. Ave: many
o Nat‘l Park regulation: no sleeping in park overnight.
o Public Forum: parks
o Content-neutral time, place and manner restriction:
o Upheld b/c meets IS test.
o Regulation requires concerts in Central Park to use city-provided sound
o Traditional Public Forum: park
o Content-neutral: applies to all concerts.
o IS Test: Upheld.
o Rule: NT prong does not require the least restrictive means. [note: SS
HILL v. COLORADO:
o State law: unlawful to protest w/in 100 feet of abortion clinic and 8 ft halo
o Traditional Public Forum: sidewalks around abortion clinic.
o Content-neutral: IS test met.
Forum owned by gov‘t, but not for pubic-use.
Gov. has additional power to restrict speech.
The battle of the tests: Adderley versus Grayned!
o Protests outside county jail.
o Court states that jailhouse curtilage is not a public forum.
o Test for non-public forum: Reasonable in light of the use of the
property and viewpoint neutral.
o Early case showing that gov‘t will have more power to regulate speech in
o Suggests, in dicta, alternative test for non-public forums: is speech
compatible with the function of the normal activity of a particular place at
a particular time.
GREER v. SPOCK:
o Army base regulation prohibits campaigning.
o Non-public forum: not held in public trust for public use (like parks).
o What test? Adderley or Grayned dicta? ADDERLEY!!!
o Test: reasonable and viewpoint neutral
o Reasonable: military base doesn‘t want politics on base.
o Viewpoint Neutral: applies to all political speeches.
o Regulation Upheld
o Law prohibits solicitation on sidewalks entering Post Office.
o Sidewalk on private property is a non-public forum. Plurality opinion.
o Test: Reasonable and Viewpoint Neutral (Adderley; Greer)
o Reasonable: allows for free flow of traffic in and out of post office.
o Viewpoint Neutral: applies to all solicitors.
INTERNATIONAL SOCIETY FOR KRISHNA CONSCIOUSNESS:
o Law bans solicitation and distribution in airport.
o 5 justices hold airport to be non-public forum.
o Why? Haven‘t been around long enough to be considered a tradition.
o Solicitation Ban: Upheld b/c reasonable to be concerned about duress,
fraud, and traffic congestion.
o Distribution Ban: Struck Down b/c not reasonable.
MARSH v. ALABAMA:
o Privately-owned town.
o Holding: Company-owned town treated exactly the same as gov‘t owned
o “The more an owner…opens up his property for use by the public in
general, the more do his rights become circumscribed by the statutory
and constitutional rights of those who use it.”
What about private shopping centers?
o Ct, citing Marsh, held shopping center – although private – is a traditional
o Overrules Logan Valley!!!
o Rule: Private shopping center is private forum.
o Shopping center policy prohibits visitors to engage in any public
expressive activity not directly related to shopping center‘s commercial
o Students protesting UN sought passersby to sign petitions.
o Shopping center argued takings. Ct held no takings claim.
o Ct ruled students had constitutional right to seek signatures for petition.
Hypo: Municipality sells a park to a private owner. What type of forum?
o Marsh suggests treating it as traditional public forum.
o Hudgens suggests treating it as private property.
o Also, raise issue of takings. Pruneyard.
Limited Public Forum/ Designated Public Forum
Designated General Public Forum: designated by gov‘t for wide open free speech
o Gov‘t can take public designation away at any time.
o Test: Same as Traditional Public Forum:
*Only difference: gov‘t can close forum down at anytime.
Designated Limited Public Forum: limited to certain groups and certain free
o Test: same as non-public forum
Reasonable and Viewpoint Neutral
o High school‘s inter-school mailing system can only be used by certain
o Forum Analysis: inter-school mailing system is not traditional (not held in
public trust); not designated general (not held open to all public).
o Therefore it‘s either designated limited or non-public. Note: either way,
same test applies (reasonable and viewpoint neutral).
o Regulation upheld.
o Reasonable: school wants to limit access to mail system.
o Viewpoint Neutral: excludes all sorts of groups.
Note: speaker status distinction is okay!
o For court to find designation, need evidence of purpose or intent
manifested in official policy.
o School district allowed after school use of classrooms for community
groups but prohibited use by religious groups.
o Forum: limited public forum b/c open to some of the public.
o Test: reasonable and viewpoint neutral.
o Fails test.
o Not viewpoint neutral b/c excludes based on religious viewpoint.
o UVA funds student publications but excludes those promoting religion.
o Forum: student activities fund is a metaphysical forum- limited public
o While the speaker status distinction is reasonable, it‘s not viewpoint
neutral b/c discriminates on basis of religious viewpoint.
GOOD NEWS CLUB:
o Middle School allowed groups on school grounds, but prohibited groups
seeking to worship, or convert people.
o Limited public forum: not viewpoint neutral b/c prohibits only religious
First Determine: Is conduct expressive conduct?
o Expressive Conduct:
Arm bands to protest war. Tinker
Flag burning. TX v. Johnson; Eichman
Wearing military uniforms. Schacht
Dancing. Glen Theatre
o Not Expressive Conduct:
Expressive Association (litigation for political purposes, Jaycees,
Will apply BUTTON test (see below)
Second: If Expressive Conduct, Apply O’BRIEN TEST:
o Regulation is within the government‘s constitutional power
o Important or Substantial governmental interest
E.g. moral disapproval of public nudity Glen Theatre
Secondary effects. Pap’s (O‘Connor for plurality)
o CN: unrelated to suppression of ideas
If CB apply SS (almost always fails)
o NT: restriction is no greater than essential
Expressive Conduct Cases:
o Fed‘l law prohibits destruction of draft card.
o D burns draft card in protest of Vietnam.
o Ct faced with question of whether conduct is speech entitled to 1st Amd.
protection. Court does not decide the issue.
o Instead, Ct assumes that burning the draft card is speech and gives four
o Test: Conduct combining speech and non-speech elements can be
The regulation is within the government‟s constitutional power
Important or Substantial government interest
Gov‟t interest is unrelated to suppression of ideas (CN)
Restriction is no greater than is essential (NT)
o Ct upheld law finding that gov‘t had an important interest in proof that
someone has properly registered for draft.
TX v. JOHNSON:
o No flag burning
o Expressive Conduct? Yes.
o O‘Brien Test:
Government Interest: national unity
CB: Yes (so apply SS). No FW exception b/c not directed at one
No need to analyze NT prong
o Rehnquist Dissents: Argues i) ample alt ave exist; ii) FW should be
enlarged to cover flag burning.
o Flag Burning
o Flag Protection Act of 1989 protected flag under all circumstances.
o Ct invalidated: still CB b/c state interest is physical integrity.
o Rehnquist Dissents (again): broaden Chaplinsky!!!
o Dancing at strip club
o Law requires pasties and g-string.
o Dancing is expressive conduct, so apply O’Brien
o O’BRIEN TEST:
W/in state‘s constitutional power
State interest: moral disapproval of public nudity
CN: applies to all public nudity, not just dancing
NT: doesn‘t ban, just requires pasties and g-string
o Constitutional burden!
o Note: decision will almost always turn on whether Ct considers law CN
o Ban on public nudity. Preamble of law: purpose is to respond to
secondary effects of property value.
o O’Brien Test applied. Same result as Glen Theatres.
o Secondary effects are considered CN citing Renton.
o Stevens Dissents: O‘Connor erred when she combined O’Brien test w/
Renton rationale. Renton was for burdens on speech, not bans.
First: Is conduct expressive association?
o E.g., litigation (Button)
Second: Button Test: Is there a significant burden on the expressive association?
o There is an assumption that no significant burden exists.
Third: CN or CB
o If CN: (weak form of SS)
Compelling State Interest (this is SS language)
Narrowly Tailored- no significantly less restrictive means (this is
* Then balance state interest with level of intrusion (if intrusion
significantly burdens suppression even though CSI and NT,
o If CB:
Strict Scrutiny: CSI and NT
Expressive Association Cases:
o State law prohibits organization from retaining lawyer for litigation in
which it‘s not involved.
o Effect: stop NAACP from funding law suits.
o Rule: Litigation for political purposes is expression.
o Unconstitutional to prohibit litigation. Ct uses above ―Button Test‖.
o Law prohibits ambulance chasing attorneys.
o Not litigation for expressive association political purposes.
o Mere private practice of law is not expressive association.
ROBERTS V. U.S. JAYCEES
o Men‟s social organization limits membership to middle-aged men.
o State law does not allow such sex discrimination.
o First: expressive association? Yes.
o Second: significant burden?
Ct decides that requiring non-discriminatory membership policy is
no significant burden.
o Note: Not clear whether Court determines law is not significant burden at
second step or whether they go through the test, and when balancing
determine it is significant burden. Not important, just know there is a
significant burden analysis at two places.
o Boy Scouts forced by state court to let in gay scoutmaster.
o Are Boy Scouts an expressive association?
Yes. They have oath, motto, handbook, etc.
o Apply Button Test: Is there a significant burden?
Yes. Ct defers to what group believes will significantly burden
o CN or CB?
CN b/c anti-discrim law applies to all.
CSI (SS): eradicating discrimination.
NT (IS): maybe
Balance: This is a severe intrusion and NJ‘s interest does
not outweigh Boy Scout‘s interest.
o Unconstitutional as applied!!!
RIGHT NOT TO SPEAK
Two ways to analyze:
o If state dictates a message, it will be invalid. Barnette (flag salute);
Wooley (license plate motto)
o However, even if no state dictated message exists, but there is i) some
attribution; and ii) inability to disclaim, right not to speak is violated.
Pruneyard (shopping center); Hurley (Irish parade)
Note: requiring students to pay into student activity fund, so long as viewpoint
neutral, is not a violation of right not to speak. Southwark
Commercial Speech: The state may constitutionally require advertisers to disclose
specific information in their ads if that requirement is reasonably related to the state‘s
interest in preventing deception of consumers. Zauderer
Right not to speak cases:
o Compulsory pledge of allegiance.
o Rule: State cannot dictate a message and force citizens to endorse or
appear to endorse that message.
o License plate motto: live free or die.
o Court applies balancing analysis: state interest v. individual interest.
o Nowlin: balancing language is dead today.
o Calif. Constitution: protects speech and petitioning in private shopping
o Shopping center sues claiming right not to speak is violated.
o Protests upheld b/c:
No state dictated message
No attribution to owner of shopping center
Ct said owner could put up signs expressly disclaiming
o St. Patty‟s Day Parade put on by veterans groups.
o Gay/Lesbian Irish group (GLIB) wants to be in parade.
o State ct rules anti-discrimination law allows GLIB to be in parade.
o Veterans group sues claiming right not to speak.
o Analysis (Pruneyard)
State dictated message? No
Attribution issue? Yes, some concern that gay group will be
attributed to Veterans group
Possibility for disclaimer? Not really possible for parade.
o Note: attribution and lack of possibility for disclaimer will invalidate even
when state dictates no message.
o Univ. required students pay into student activity fund.
o Viewpoint neutral requirement.
o Rule: So long as viewpoint neutral, requirement is no violation of right
not to speak.
o Issue over right not to speak and commercial advertising.
o Rule: State may constitutionally require advertisers to disclose specific
information in their ads if that requirement is reasonably related to the
state‘s interest in preventing deception of consumers.
FREEDOM OF RELIGION
Two constitutional provisions address religion:
o Free Exercise Clause
o Establishment Clause
Religion is an important part of our constitutional tradition. Many historical
documents, including Washington‘s farewell address and the Pledge, mention
Freedom of Religion Policy:
o Freedom of Conscience: it‘s morally wrong to coerce someone to say or
believe religious beliefs they do not, in fact, believe.
o Gov‟t Corruption of Religion: an infusion of church and state leads to
o Civil Strife: establishment of religion causes wars and may lead to
Historical Understanding of the Est. Clause:
o Federalism: only the national government is prohibited from establishing
a religion. There is no prohibition on the states from establishing a
o Founders: the founders disagreed over what Est. Clause meant.
Originalism as an Approach: this is a problem b/c…
o Today we have greater religious diversity
o Growth in government presents a special challenge
o There is a rise in secularism as an alternative viewpoint
Three different views of the Establishment Clause:
o Strict Separation: gov‘t should do nothing that aids religion.
o Strict Neutrality: no preferential aid to religion. Neutrality is okay, e.g.
gov‘t can give aid to both public and private schools.
o Non-preferentialism: gov‘t cannot aid one sect of religion over another,
but can aid religion over non-religion.
Cases addressing Establishment Clause:
o Fed‘l law allows statutory exemption from draft if one ―believes in a
o USSC held this was not a violation of the establishment clause. Broad
o Three part test to determine if law violates the est. clause.
o Test: In order for law to pass muster, gov‟t must show:
Secular Purpose: no religious purpose
Primary Effects: law may neither advance nor inhibit religion
Excessive Entanglement: no excessive entanglement w/ religion
LEE v. WISEMAN:
o School prayer at graduation from rabbi.
o Is this a violation of the establishment clause?
o Court split three ways: it‘s important to understand the rationale of each
o Kennedy: psychological coercion test. Because students will want to
attend b/c of peer pressure and will participate because of peer pressure, it
is psychological coercion and violates est. clause.
o Four liberals: endorsement of religion. The mere fact that the gov‘t has
an invocation is an endorsement of religion and therefore unconstitutional.
These justices agree that psychological coercion is also a violation.
o Four conservatives: actual coercion test. If school had required students
to attend and penalized them for not participating, it would have been
SANTA FE INDEP. SCHOOL DISTRICT:
o School district has prayer before football games. Students vote whether to
have invocation and who speaker will be.
o Stevens combines psychological coercion test with endorsement of
religion test to obtain a majority.
o Dissent: still wants actual coercion.
o 9th Circuit. 2004.
o Parent challenged the words ―under God‖ in pledge of allegiance claiming
they violate est. clause when students are required to recite pledge in
o 9th Circuit panel held it was a psychological coercion.
o USSC denied cert for lack of standing.
o Note: if USSC did take it, it looks like it is both a psychological coercion
and an endorsement of religion.
o O‘Connor, Rehnquist and Thomas dissented in denial of cert and upheld
Public Displays of Religion
o No excessive entanglement
o No endorsement (purpose or effect)
o City sets up Christmas display in public park which includes: Santa,
reindeer, seasons greeting banner, and nativity scene.
o Berger majority: changes Lemon test to factors.
Secular purpose: facilitates commercial sales, holiday atmosphere
Secular effect (primary effect can‘t be to inhibit religion): effect is
celebration of the holiday season, not the birth of Christ in
No entanglement: gov‘t put it up…didn‘t put it up w/ a church or
o Brennan‘s majority upholds the display, but O‘Connor‘s concurrence is
most important b/c it is the majority approach today.
o O‟Connor Concurs: establishes 2-prong test for public displays:
o The Endorsement Test-
Endorsement: concerned about both the purpose to endorse and
the effect of endorsement. Ask: would a reasonable observer
understand the gov‘t to be endorsing the display?
o Under test, O‘Connor saw no entanglement w/ religion, nor did she find a
purpose to endorse religion. This was simply a celebration of a traditional
o Town has two displays. First is a nativity scene on county courthouse
steps. Second is a Christmas tree, Jewish menorah, and statement
declaring the city‘s ―salute to liberty.‖
o Majority of the court adopts O‟Connor‟s Endorsement Test.
o Nativity Scene: there is clearly a purpose to endorse the Christian aspect
of the holiday. Invalidated 5-4.
o Tree/Menorah Scene: The tree is somewhat secular. Combining a
religious scene with another religion and secular things is not an
endorsement of religion.
CAPITAL SQUARE v. PINETTE:
o City denies KKK permission to put up a cross in a public park b/c the city
doesn‘t want to violate the est. clause.
o This situation requires a forum analysis and an establishment clause
o This is a traditional public forum and a content-based regulation.
Therefore, gov‘t must show CSI and NT.
o CSI: the city‘s state interest is that it‘s trying to avoid an establishment
clause violation. Therefore, in order to validate the state‘s CSI, must
determine if this is, in fact, an est. clause violation.
Excessive Entanglement: gov‘t isn‘t putting cross up,
private group is.
Intent or Purpose to Endorse: a reasonable observer
would see cross as being endorsed by the city.
So, CSI is valid: this would be an establishment clause violation.
o NT: While there is a CSI, the prohibition is not NT b/c the city could
have simply put a disclaimer under the cross.
o Scalia‟s plurality: 4 justices. Private speech can never violate the est.
clause unless there‘s some type of collusion b/t the gov‘t and the speaker.
o 10 commandments are posted in school rooms.
o Ct applies Lemon test: it‘s not possible to see a secular purpose in posting
o 10 commandments are displayed in KY courthouse.
o Invalidated 5-4.
o No secular purpose. While there were other non-religious items
surrounding display (would seem to be Donnelley), the state had added the
other secular items recently. Clearly, there was a religious purpose.
o 10 commandments free-standing display on capital grounds in TX that had
been up for 40 years.
o Breyer was swing vote (he invalidated the display in McCreary Co).
o He likened this display to Donnelley‘s nativity scene surrounded by other
displays. He also saw this as a celebration of history rather than an
Aid to Schools
Issue: whether government aid to schools, specifically religious schools, violates the
The court applies the Lemon test:
o A secular purpose can almost always be found.
o Secular effect: this is where the court has split. Current test depends on
whether aid is direct or indirect
o State gives money directly to school.
o Majority Rule:
o Minority Rule: only requires neutrality.
o State gives money to individuals, who make choice of where to use it.
o Majority Rule:
o Minority Rule:
Split in courts: is due to O‘Connor, who found neutrality enough for indirect aid
cases, but switched to stricter standard for direct aid cases. Test will be up in the air
when she is off.
Indirect Aid Cases:
MUELLER v. ALLEN:
o State tax credit for tuition, textbooks, and transport available to all kids
enrolled in a school (public, private-religious or secular)
o Indirect Aid case b/c individual has choice of where to attend school.
o Neutrality Test: neutral b/c available to all parents regardless of where
child is enrolled.
o LEMON TEST:
Secular purpose: clearly
Secular effect: b/c aid is indirect and neutral, it‘s secular
No entanglement: these cases leave out the entanglement analysis
o OH issued school vouchers for tuition. Parents‘ choice where to apply
o Aid is indirect (to parents rather than schools), so apply neutrality test for
secular effect prong of Lemon.
o LEMON TEST:
There is a secular purpose: education.
Secular effect: Neutrality test- available to all schools.
Direct Aid Cases:
o State statute provides aid, in form of equipment, to be provided to private
o 5 justices apply three prong test: neutrality; substantiality; divertibility
3 justices find test violated, i.e. unconstitutional
2 justices find test met, i.e. constitutional
O‘Connor and Breyer claim equipment isn‘t substantial,
nor is there actual diversion (3 only req potential
o 4 justices apply neutrality test and find it met.
Establishment Clause Tests:
o Endorsement/ Psychological Coercion Test. Lee v. Wiseman (this is a
version of the Lemon test)
o Endorsement Test. Allegheny O‟Connor
Can‟t have purpose or effect of endorsing religion
No excessive entanglement
Aid to Schools:
o Indirect Aid: neutrality test
o Direct Aid:
Free Exercise Clause
SMITH Test: a neutral, generally applicable law that is not targeting religion is
constitutional no matter what burden that law places on someone‘s religion.
Sherbert balancing test (same test as Button free expression test)
is used if individual administrator is making an individual
Balance above against degree of intrusion
Hybrid rights analysis grants strict scrutiny if a free exercise
claim is combined with another constitutional claim. Yoder.
Strict Scrutiny: for facially discriminatory law, i.e. targets religion. Will almost
o Example: Church of Lukimi Babalu Aye- city ordinance prohibits animal
sacrifice. Court found this directed at religion: applied SS. Preventing
animal killing for religious purposes isn‘t CSI.
Locke v. Davey ad hoc balancing test: A law that i) places a mild burden on
religion, and ii) state interest is a historic and substantial interest related to the
separation of church and state, is constitutional.
o Locke- State scholarship program prohibited using it to pursue degree in
devotional theology. While looks to be targeting religion which should
trigger SS, Court applied ad hoc balancing.
Play on the Joints of the Religion Clauses
Layman‘s terms: you must understand that the two religion clauses often work
together. The fact that the establishment clause doesn‘t forbid the state from doing
something does not mean that the free exercise clause mandates it.
Example: State school voucher program provides vouchers, but excludes using them
at religious schools.
o This is clearly not a violation of the establishment clause.
o Free Exercise analysis:
Lukumi held that a law targeting religion triggers SS: this law
would fail SS.
Locke v. Davey held that if the burden is mind and if the state
interest is a historic and substantial interest in the separation of
church and state, the law can beupheld.
o Therefore, Locke v. Davey and the ―play on the joints of the religion
clauses‖ would suggest upholding the law.
Analyzing a law to ensure the Free Exercise Requirement does not violate the
o Test for a permissible accommodation, not necessarily mandated by
the Free Exercise Clause, but not prohibited by the Establishment
Clause must meet Lemon Test:
Secular Purpose: if gov‘t is lifting a special burden on religion,
it‘s a secular purpose.
Secular Effect: lifting the burden is not advancing religion, but
allowing religion to advance itself.
No excessive entanglement
o Above test would be used for something like a law criminalizing use of
peyote, but exempting use for religious purposes.
CUTTER V. WILKINSON:
o Fed‘l Law: grants institutionalized persons additional religious rights.
Essentially, Congress prescribed use of Sherbert balancing (rather than
Smith) for institutionalized persons.
o USSC: Under Amos and Lemon Test for Permissible