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136 Cards in this Set

  • Front
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FREEDOM OF RELIGION

waht are the elements of freedom of religion?
ii. Two elements:
(a) The right to believe – cannot be restricted
(b) The right to act – can be limited by Congress within the territories
ADVOCACY OF ILLEGAL ACTION

What is the solution to to speech we don't like?
3. The solution is always more speech; we don’t punish those for having different ideas than use; we oppose those ideas with more speech
B. Free speech is not unlimited; one cannot stand up in a crowded theater and yell, “fire.”
How did we determine whether speech that asks people to break the law should be prohibited?
2. Clear and Present Danger Test: Whether the words used are in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent; it’s a question of proximity and degree
What are the elements of the Clear and present danger test?
a. Subjective Inquiry
i. Did he intent the result?
b. Objective Inquiry
i. Is it likely to bring about the unlawful conduct?
c. *It’s a causation test – about proximity and degree
i. The character of every act depends on the circumstances in which it is done
(a) At time of war, less speech is protected
What test do we use today to decide whether a certain type of speech should be criminalized?
K. Brandenburg v. Ohio (1969) - THE TEST WE USE TODAY
K. Brandenburg v. Ohio (1969) - THE TEST WE USE TODAY
1. KKK rally and TV reporter was invited; they were indicted for advocating terrorism
a. Leader said if the gov doesn’t stop repressing the white race, “it is possible that there might be some ‘revengence’ taken”
2. Test: Can’t prohibit free speech/press unless it is:

1. directed at inciting imminent unlawful action; AND

2. is likely to incite or produce such action (causation).

a. Mere abstract teaching of the moral propriety/necessity to resort to violence is nothing but protected speech
b. This is merely a re-crafting of the Clear and Present Danger Test (Objective and Subjective element)
i. Did he intend the result? (Subjective)
ii. Is it likely to bring about the unlawful conduct? (Objective)
So what is the bottom line today?
Bottom line today: You can advocate for illegal action so long as it is not likely to incite or produce such action
What if i say we are going to break the law at some future time?
L. Hess v. IN (1973)
1. Anti-war demonstration, “We’ll take the fucking streets later.”
2. Charged with violating disorderly conduct statute
3. Advocating illegal action at some indefinite time is not unconstitutional; Unconstitutional to stop speech unless imminent lawless action
What if someone tells people not to answer a question or to remain silent?
N. The right to speak is commensurate with the right to be silent
FIGHTING WORDS

Certain words within the English language that if not directed at one with a disarming smile will get your teeth knocked out

Can we prohibit someone from saying these things?
1. Rule: What men of common intelligence understand to be words likely to cause the average person to fight
2. Thus, there are certain things we can constitutionally exclude from free speech
What is the Test for determining whether the fighting words can be restricted?
4. Analysis:
a. Are the words designed to provoke an altercation?
b. Whether a man of common intelligence would understand the words to cause men to be likely to fight

c. Some words are fighting words when not said with a disarming smile
Separate constitutional principal: Imminent Threat of Spectator Violence

2. Open air meeting of socialists at designated area; leader made derogatory remarks about the President and the police
3. Cops told him to get off 4 times, finally they arrested him
4. Court said everything he said would generally be protected but he had no constitutional right to cause violence
a. He was not arrested for expressing his views he was arrested to prevent threat of imminent violence
5. Feiner Doctrine: Imminent threat of spectator violence beyond the capacity of law enforcement to control at that moment allows the state to step in

6. D could have same speech if he made sure there was enough security in order to protect him and others
7. Note: State can charge a reasonably fee to have extra protection, but cannot increase the cost of police protection based on the content of the speech (i.e. can’t charge Neo-Nazis more than Boy Scouts)
D. Cohen v. CA (1971)
1. D went to court wearing jacket that said, “F*** the Draft;” he was charged with disturbing the peace, even though he took the jacket off when he got to court
a. This was a pure speech regulation, not conduct because it was merely words on a shirt
2. Issue: Can a state have a regulation that would prohibit him from wearing the jacket?
b. But, could they if he wore it to jury duty, etc…?
i. Yes. Because he was required to show up, there is a captive audience that will be forced to look at it; there are certain places where offensive conduct may be regulated
What is the rule about whether the state can restrict offensive language, like fuck the draft?
3. Rule: States cannot make speech of this nature criminal without a more specific and compelling reason than a general tendency to disturb the peace
i. Harlan: “One man’s profanity is another man’s lyric.”
4. This wasn’t “Fighting Words” because it was not directed at anyone specific and it wasn’t intended to start a fight
5. This isn’t obscenity because it’s not possible to F*** the Draft
E. Houston v. Hill (1987)
1. City ordinance making it unlawful to oppose, interrupt, assault, etc… a police officer during the administration of his duties
a. People had been previously arrested for: arguing, talking loudly, walking through the scene, etc

3. Issue: is this statute overly-broad?
4. Rule: You can verbally oppose/challenge police action without risking arrest because it separates free nations from police states
a. But, if you actually interfere with the performance of the cop’s duties, this can be regulated, and sometimes verbal opposition is part of the interference
F. Haggerty v. TSU (2004)
1. After Hill, the Legislature changed the Penal Code to say that a person could be arrested for interference with a cop, but it allowed for a defense if the interference was just speech
2. There was a fight at TSU. Teacher told cops not to arrest the kids getting beat up. When he is saying this, he steps toward the cop
3. Court said the cop could have reasonably believed there was danger, as a result of his step, it took him out of the bounds of simple speech and into the realm of conduct
4. Rule: Can verbally oppose police if the action is pure speech; conduct falls outside that scope
1. Simon Glik was arrested for using his cell phone's digital video camera to film several police officers arresting a young man on the Boston Common

3. Issue: Does he have a right to record public officials performing their official duties in a public place, even though he’s not a journalist?
4. Rule: The right to gather news from any source is not one that inures solely to the benefit of the news media; rather, the public’s right of access to information is coextensive with that of the press
COMMERCIAL SPEECH

A. Virginia State Board of Phar. (1976)
1. VA statute prohibiting pharmacies advertising the price of drugs
a. Trying to limit unprofessional conduct because it would dictate who would buy where and increase the likelihood of screw-ups
b. Would lead to price increases to subsidize the price of ads
2. Issue: Is there an exception to commercial speech? Can we advertise the price of drugs?
3. Rule: Commercial speech is protected under the First Amendment
a. There are other ways to ensure professional conduct
b. People can only make decisions if they have the info available to them
4. Commercial Speech = I will sell you X at Y price
Who has a right to challenge a restriction on commercial speech?
5. Note: The parties were the buyers who wanted to know the price of the drugs; Court found that buyers have standing to challenge because they have a right to receive the message
What are the limitations on commercial speech?
7. Limitations (case does not concern):
a. False advertising
b. Advertising that promotes illegal activity
c. Misleading advertising
d. Advertising of other professional services (doctors and lawyers)
8. Time, place, and manner restrictions are constitutional in the context of commercial speech
B. Bates v. State Bar of AZ (1977)
1. AZ rule prohibiting lawyers from advertising

3. Issue: Whether a state can prevent the publication of an ad displaying the availability of routine legal services?
4. No; Lawyers have a First Amendment right to advertise the prices of routine legal services
a. The state could if it was false or deceptive; or related to the quality of the services
C. Ohralik v. Ohio State Bar Ass’n (1978)
1. P was held in violation of a law because he advertised in person to two victims of a car wreck
2. Issue: Whether in person solicitation is the same as other advertising? Whether the lawyer may be hired by the person he advertises to?
3. Held: The Bar, acting with state authorization, constitutionally may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the State has a right to prevent, and thus the application of the Disciplinary Rules in question to appellant does not offend the Constitution.
1. ACLU lawyer, uncompensated, and works for another company; she is asked to give presentation informing women they have the right to sue and the ACLU will provide free legal services; State disciplined her for soliciting clients
a. Collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment
4. The ACLU isn’t a for-profit organization who only provides legal services; it’s protected
E. Central Hudson Gas (1980)
1. PUC had regulation during OPEC crisis banning ads for utility companies; Central Hudson sued for violation of their right to promote use of electricity
3. A regulation that completely bans an electric utility from advertising violates the First and Fourteenth Amendment
4. Test for whether Commercial Speech violates First and Fourteenth Amendment:
a. Whether the speech concerns unlawful activity or is misleading? (unlawful)
b. Is the asserted governmental interest substantial? (substanital gov. inerest)
c. Whether the regulation directly advances the governmental interest asserted (Causation)?
d. Whether the regulation is more extensive than is necessary to serve the interest?
(narrowly tailored)
F. Consolidated Edison (1980)
1. In their bills, a company discussed the benefits of nuclear power; NRDC wanted to be able to put a rebuttal in their bills
2. Court said they will not use the Central Hudson test because this is not commercial speech; this was political speech on a topic of public concern
3. Commercial speech is speech related solely to the economic interest of the speaker and his audience.
4. If we are dealing with commercial speech, go directly to Central Hudson Test; if it is speech on a topic of public concern, go to compelling state interest
G. Zauderer v. Office of Disciplinary Counsel of State of Ohio (1985)
1. Lawyer advertising to people who had been injured by a hysterectomy procedure; it stated that he has represented and currently represents cases about this issue
2. State argued he fraudulently held himself out to have expertise in this area
3. Court said this was protected speech; state cannot keep a lawyer from making factual representations about his practice on the bases that people might infer that he was expertise in the area; the speech was not false or misleading

6. The mere possibility that some members of the profession might find the ad demeaning the legal profession does not forbid him from exercising his rights
7. Test is reasonableness


5. Bottom Line: The lawyer had a constitutional right to run the ad, which had a factual assertion about his practice
L. FL Bar v. Went For It (1995)
1. FL law prohibiting lawyers from soliciting business from victims of accidents for 30 days – even though insurance companies, etc… can settle immediately
2. Lawyer who got business from direct contact wrongful death claimants sued for declaratory and injunctive relief
3. Court uses the Central Hudson Test


what is it again?
3. Court uses the Central Hudson Test
a. Whether the speech concerns unlawful activity or is misleading?
i. If it is not, the gov must show it has an interest, and law furthers that interest, and the law isn’t more extensive than necessary
b. Is the asserted governmental interest substantial?
i. Yes; Protecting grieving families from intrusion
c. Whether the regulation directly advances the governmental interest asserted (Causation)?
i. Yes; study showed people hate being contacted by these attorneys
d. Whether the regulation is more extensive than is necessary to serve the interest?
i. No; remember, don’t have to use the least restrictive means possible. Here, the period was brief, and there were other ways to find out about legal services (TV, billboards, etc…)
4. Court says each prong is satisfied
N. Rubin v. Coors (1995)
1. Coors applied to the ATF to allow having a label that stated its alcohol content
a. This was allowed for wine and liquor, but not beer
b. State says this is because it will prevent people seeking out the highest content beer – “strength wars”
2. Court says this is not reasonable because the state allows the labels on liquor – it’s does not advance the state’s interest under the Central Hudson Test
P. LAPD v. United Reporting (1999)
1. CA restricted access to arrest records except info except for scholarly use – can’t be used to sell products, or for attorneys to use
2. Lawyers challenge, arguing it infringes on their First Amendment rights
3. Court says this is not free speech regulation; rather, it’s restricting access to government information
a. If you want the information, you must comply with the restrictions
4. There is no constitutional right to this information
Q. Thompson v. Western States Medical Center (2002)
1. A law forbidding pharmacies from advertising the sale of compound drugs
a. This was to protect the quality and safety of compound drugs
2. Used Central Hudson Test
2. Used Central Hudson Test
a. Court holds that the law is bad because consumers won’t know about where to get compound drugs; also it promotes no significant government interest
SYMBOLIC SPEECH

A. US v. O’Brien (1968)
1. O’Brien burned his draft card at courthouse, which violated a federal statute prohibiting the burning of draft cards
3. O’Brien Test for whether conduct is symbolic speech:
a. Is the statute within the constitutional power of the government?
b. Does the regulation further an important or substantial governmental interest?
c. Is it unrelated to the suppression of free speech?
d. Is the regulation no greater than is essential to further the government’s interest?


4. Test applied here:
a. Gov has the power to regulate because of its powers to raise armies, coupled with the N&P Clause
b. It furthers the interest because it expedited your induction in the armed forces
c. It was not directed at the suppression of free speech, it was directed at the conduct of him burning his card
d. The court said they weren’t going to look to Congress’s motive.
5. The statute was constitutional
6. First time the Court recognized symbolic expression encompassed in the First Amendment
C. TX v. Johnson (1989)
1. At protest of Reagan’s nomination, man stole flag from tower and chanted, “America the red, white, and blue, we spit on you.”
3. He was charged with desecrating the American flag
a. Statute: desecrate flag in such a way that will offend others (content-based)
4. This was expressive speech
5. Issue: Whether a state may prescribe a meaning to the flag?
6. Fails the O’Brien test because the statute was intended to directly suppress speech, so the government must justify it with strict scrutiny
D. Tinker v. Des Moines (1969)
1. Kids suspended after wearing black armbands in protest of Vietnam War
a. Other symbols allowed: KKK, swastika, etc…
2. This does not fall under O’Brien because it is pure symbolic speech

3. The discipline would only be OK if the speech substantially and materially interferes with the rights of other students or with the educational mission of the school
F. U.S. v. Eichman, 498 U.S. 310 (1990)
1. After Johnson, the U.S. Congress tried to enact a federal flag burning statute (Flag Protection Act of 1989) that would ban all or most flag burning without being content-based and thus unconstitutional.
b. Because Congress was attempting to suppress expression out of concern for its likely communicative impact, it is subject to strict-scrutiny
c. Fails strict scrutiny because not narrowly tailored to the asserted interest – the interest in preserving the flag as a symbol for certain national ideals
3. Result: there is pretty much no way for the government to stop flag burning short of a constitutional amendment
G. Bethel v. Frazier (1986)
1. Student gave sexually suggestive speech
4. Court says this different from Tinker
a. Tinker didn’t concern the rights of other students
b. Here, the students were required to attend (captive audience)
5. Rule: The First Amendment permits the school regulate speech that materially affects the school’s basic educational goals or the rights of other students
H. Hazelwood v. Kuhlmeier (1988)
1. School newspaper wanted to print about teen pregnancy and divorce; the principal reviewed it and would not let them publish such articles. Students sue
2. Court says there was no violation
a. This was NOT a public forum; it was simply part of the school’s curriculum. The school has the authority to exercise administrative discretion as to what met the standards of professional journalism
3. Distinguishable from Tinker, because this is not tolerating a child’s speech in the classroom (armband), this is a part of the journalism course. The school had to put its stamp of approval on the outcome, so it’s an issue of whether the school has to promote speech
4. Thus, the school can restrain this speech because it is not required to promote student speech that does not meet professional standards
5. The school can edit school-sponsored speech so long as it’s reasonably related to a legitimate pedagogical goal
6. Note: Court did not answer the question of whether the same degree of deference would be granted at the college university level
university level
I. Morse v. Frederick (2007)
1. Students were required to watch the Olympic torch relay; students brought a sign reading, “Bong Hits 4 Jesus.” They were suspended

a. School argued it promoted drug use

3. Issue: Whether a school may restrict speech when the speech promotes illegal drug use?
4. Court goes back to Tinker (materially and substantially affect): there’s some interest in the school preventing drug use, so the advocacy of such use could affect the educational mission of the school
J. Barnes v. Glen Theaters (1991) – Plurality
1. Statute prohibiting indecency; stripper sued to enjoin enforcement of it
2. Rule: When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on Constitutional freedoms
a. Therefore, the statue was constitutional


3. O’Brien Test: The regulation must:
a. Be within the government’s Constitutional power to act;
b. Further an important or substantial government interest;
c. That interest must be unrelated to the suppression of speech; AND
d. Prohibit no more speech that is essential to further that interest.
K. Erie v. Paps A.M. (2000)
1. Law restricting nude dancing
2. O’Brien Test is met
a. It was about public morality, spreading STDs, etc… so gov had an interest
b. It furthered that interest
c. It was unrelated to suppression because we merely do not want people running around nude
d. It’s narrowly tailored because she can convey the same message with certain incidental clothing added (Court says you could argue it’s even more erotic)
L. Rumsfeld v. FAIR (2006)
1. Law prohibited GWC funds to be appropriated to schools that would not allow military recruiters on campus
a. Schools protecting against homos not being allowed into the military
2. School argues having them on campus essentially forces them to endorse “Don’t Ask Don’t Tell”
3. Court held that the gov could withhold funding from universities if they refuse to give military recruiters access to school resources
SPEECH IN PUBLIC EMPLOYMENT

Why is this a topic?
1. Certain government members have a lower level of Free Speech than private citizens:
a. Military personnel
b. Inmates
c. Children in public schools
d. Public employees
i. However, public employees do not shed their constitutional rights to speak on matters of public concern and they have a right not to be terminated for exercising those rights
What is a topic of public concern?
2. Topic of public concern is any matter of political, social, or other concern to the community
B. Connick v. Myers (1983)
1. NOLA ADA transferred and she didn’t want to; she made a questionnaire and passed it to the other employees on company time
a. She asked whether they trusted their boss, or felt pressured to do things, etc…

3. Bottom Line: The survey was distributed during company time and her bosses thought she was creating a mini-insurrection, so they fired her
4. Issue: Was the topic a matter of public concern?
a. Topic of public concern is any matter of political, social, or other concern of the community
5. It’s the plaintiffs obligation to prove the speech is upon a topic of public concern (constitutional fact) – if you satisfy, the burden shifts to the government to show that the speech substantially interferes with the job functions
6. In deciding the issue of whether it’s a topic of public concern, the court should look at:
a. Content
b. Context
c. Form of Expression

7. This is a balancing test
a. The more important the speech, the more the balance weighs in favor of the employee
b. The less important the speech, the more likely the balance goes to the gov
Topic of public concern burden shifting for government employees:
10. Rule: If you are dismissed for speaking out on a matter of public concern, this does not mean you automatically win. It merely means that the burden shifts to the employer to prove that it has some interest in office administration that outweighs that speech.
11. 4 Elements to Recover:
a. P must suffer an adverse employment decision
b. P’s speech must involve a matter of public concern
c. P’s interest in commenting on matters of public concern must outweigh D’s interest in efficiency
d. P’s speech must have motivated D’s action
What elements must a plaintiff gov. employee saitssfy to recvoer for a restrcition on their right to speak about a topic of public concern?
11. 4 Elements to Recover:
a. P must suffer an adverse employment decision
b. P’s speech must involve a matter of public concern
c. P’s interest in commenting on matters of public concern must outweigh D’s interest in efficiency
d. P’s speech must have motivated D’s action
C. Rankin v. McPherson (1987)
1. P was a constable but only had clerical duties. She made a comment that she hoped they would kill Reagan if they tried again. Someone overheard and told. She was fired
2. Issue: Was this speech on a topic of public concern?
a. Content: Yes; it was discussion about the president
b. Context: they were talking about the shooting and his policies; it wasn’t a threat
c. Form: not made to public; it was a private conversation
3. Court says this was on a topic of public concern, and, after balancing, she wins (remember, the burden shifts to the gov to justify; they couldn’t) – it was political rhetoric
a. It didn’t really have any affect on the office, so hard to justify

4. Note: Had she said this as part of a general speaking engagement on behalf of the department, the balance would very likely weigh in favor of the employer. This is the balance we have to deal with in every case.
D. Moore v. Kilgore (1989)
1. Firefighter disciplined after making disparaging remarks about city during press conference

was this a topic of public concern?
2. This was definitely a topic of public concern:
a. Context: budget crisis was not over yet, so still public interest; it was not said in a disrespectful manner
b. Content: Said the city was in the wrong and that they shouldn’t have made cuts
c. Form: responding to questions at a press conference
3. Burden shifts:
a. No evidence that this comment would affect the administration of the department or the prosecution of possible arson. Plus, the weight was so big because Kilgore citizens had a significant interest in their departments
4. P’s rights had been violated
E. Waters v. Churchill (1994)

2. Nurse allegedly said something bad about the department; however, the nurse argued she was simply talking about the general problems in the nurse cross-training program

1. This case is an application of the Connick Test when we don’t know what was said

4. Issue: Whether we apply the Connick Test to what the employer believed was said or what was actually said?
5. Court says that when applying the test, it must apply it to what the employer reasonable believed was said

6. As long as there is a reasonable investigation that allows the employee to give their side of the story, a decision to discipline is not arbitrary, even if we find out later that it was protected speech
F. Board of Commissioners v. Umbehr (1996)
1. Extends Connic to cases involving an independent contractor as opposed to an employee
2. Rule: The government cannot discharge or stop using a person or company as an independent contract as retaliation for the contractor speaking out on a matter of public concern unless the government’s interest outweighs the contractor’s free speech interests
G. San Diego v. Roe (2004)
1. Cop selling sex tapes while he’s in uniform – he sells a “custom made” tape to the police department. He’s fired for not follow the order to remove the tapes and for conduct unbecoming
2. This was NOT a matter of public concern – it had nothing to do with his employment and the videos looked poorly on the department, so they had a right to protect their name
a. BECAUSE IT WAS NOT MATTER OF PUBLIC CONCERN, we stop there, we don’t have to balance, and the government has wide latitude in regulating
H. Garcetti v. Ceballos (2006)
1. DA in LA was told by superiors to proceed with warrant even though it was weak. He was later demoted after the suspect was acquitted.
a. Essentially, when public employees speak about their official duties, they are not speaking as a citizen under Connick, so they aren’t protected.

3. Court said that what is an “official duty” is a matter of practicality, which is really no standard at all
a. Meaning, the employer can define “official duties” broadly in a K, so that the employee can’t speak on anything without being punished
I. O’Hare Truck Service v. Northlake (1996)
1. Rule: Party affiliations may be considered only if it’s an appropriate requirement for effective performance when government work is being done by an independent contractor, as well as by as an employee.

2. Consequences of the case:
Impact traditional patronage. Government contracts are now subject to this rule – the government will now have the burden of demonstrating that either it would have hired or not hired the same contractor (legal work, construction, architectural, cable TV, etc.) regardless of the applicant’s affiliations, or that consideration of affiliation is an “appropriate requirement for effective performance.”
THE RIGHT NOT TO BE ASSOCIATED WITH PARTICULAR IDEAS

A. US v. United Food (2001)
1. Statute requiring mushroom growers to pay an excise tax to fund advertising mushroom growers across the country
2. United sued because they argued they can do their own advertising and shouldn’t have to be lumped in with everyone else
a. i.e. gov is making them speak when they don’t want to
b. It’s viewpoint discrimination
3. Court recognizes that you have a First Amendment right not to speak and you can speak in the manner that you wish
4. MANDATED SUPPORT IS UNCONSTITUTIONAL
B. Johanns v. Livestock Marketing (2005)
1. Follow-up case
2. Tax on each head of imported cattle that went to advertise beef
3. Cattlemen didn’t like it because they claimed it sent to wrong message
4. Issue: Whether a federal program that finances generic advertising violates the First Amendment right not to speak
5. This is government speech and compelled support of government speech is not susceptible to a First Amendment challenge
a. Gov may validly support programs by taxes that are binding on even disapproving parties; sometimes those programs are going to involve speech made by the government; and therefore, there is no First Amendment violation, even though the US is advocating a position you oppose
6. Even though the government is speaking on something you don’t agree with, your solution is to vote them out
C. WV Board of Education v. Barnette (1943)
1. Jehovas refused to say pledge because they considered it worshiping a graven image
3. First Amendment does not allow state to compel someone to speak what is not in his mind
a. Rights contained in the Bill of Rights may not be submitted to vote. They are to be interpreted as Constitutional facts by the federal court
D. Wooley v. Maynard (1977)
1. Law making it a crime to disfigure or obscure license plates
2. Ps covered up a motto on their plates (he was cited 5 times)
3. State interests:
a. Identification of vehicles
b. Promotes appreciation of history, individualism, and state pride
4. These were not compelling enough interests to override First Amendment right not to speak – this isn’t ideologically neutral because State’s attempting to dictate the appropriate expression
5. Court cites Barnet: The right to speak and the right to refrain from speaking are complimentary components of the First Amendment guarantee
6. Here, the court cannot require him to endorse the state motto. The right of freedom of through includes the right to speak freely and the right not to speak at all
E. Keller v. State Bar of CA (1990)
1. The state bar requires dues, which are used for administration, CLE, discipline, etc…
2. It was also using the money for lobbying. Members upset because funds were being used for causes with which they disagreed
3. Issue: Whether CA bar can use the dues for lobbying the legislature with regard political issues
4. The Bar is not a government agency such that the gov is speaking for the members
a. It’s not democratic because the members have no choice about paying dues
5. Compulsory dues many not be spent to advance political ideas because it violates the members’ rights not to speak
6. The bar must use money toward things that promote its goals of advancing the profession, not toward ideological issues
Hurley v. Irish GLBT (1995)

F. Hurley v. Irish GLBT (1995)
1. St. Patrick’s Day Parade – private organization determined who could be in the parade and who couldn’t
2. Fags wanted to march with banners and a gay pirate ship. They could be in it but not with banners
3. Note: No state action because it was a private organization denying the permit. No first amendment claim
7. Parade organizers have the right determine what their message will be (expressive speech) – cannot be forced to convey a message with which they disagree
G. Rosenberger v. UVA (1995)
1. UVA would certify certain student groups who could then be reimbursed for their operational expenses
2. A religious group was certified, but when they asked to be reimbursed for expenses in creating a magazine, they were denied
4. The school had opened up the forum to any kind of speech and the only reason this group hadn’t been reimbursed was because of their Christian viewpoint (remember, they were originally approved)
a. This is viewpoint discrimination: the school is requiring a greater degree of separation between church and state than is constitutionally required, which is constitutional violation
Boy Scouts v. Dale (1995)

H. Boy Scouts v. Dale (1995)
1. Gay scoutmaster has his membership revoked
2. The parade case dealt with expressive parade, this one deals with expressive association
a. D argued it had a freedom not to be associated with him
3. Rule: The group must engage in some form of expression for the public or private in order to assert its rights of association (or not associate)
a. Forced inclusion violates their freedom not to associate
4. The law is not free to interfere with speech for the purpose of promoting an approved message or discouraging a disfavored one (discrimination), however enlightened either purpose may strike the government.
5. Bottom Line: The forced inclusion of the homosexual would impermissibly interfere with the Boy Scouts First Amendment freedom of expressive association.
What is the analysis for freedom to not associate?
6. Analysis:
a. Can we exclude (do we have the right not to associate)?
i. Does the event, group, etc… have a message?
(a) If so, it’s expressive speech, and you can decide the content. This allows you to exclude if something is inconsistent with your message
b. Solution: the excluded can have their own message
I. UW v. Southworth (2000)
1. Mandatory fee system that gave out a portion to student organizations – some of the students challenge this because they say it forces them to endorse
2. Issue: Can students be forced to pay the mandatory fee to establish the fund for registered student groups?
3. As long as the scheme is viewpoint neutral, giving of such funds is not an encroachment on your freedom not to associate
a. The university isn’t speaking, they are allowing the students speak; the goal of the university is to expose students to new ideas, this policy furthers that goal
b. The result would be different if the school was responsible for the content
4. Solution: Start your own group
5. The requirement on the school is VIEWPOINT NUETRALITY in distributing the funds
J. Clingman v. Beaver (2005)
1. Libertarian party wanted to open the primary election to all voters, regardless of affiliation (OK had a closed system)
2. Issue: Whether the state can prevent other parties from voting in closed primaries?
3. Interests:
a. To keep parties as viable interest groups
b. Enhance party campaigning groups
c. To protect against party raiding and sore loser mentality
4. These are legitimate and are rationally related to the law
L. Rumsfeld v. FAIR (2006)
1. Law requiring schools allow military recruiters if they want GWC funds
2. School said you’re requiring us to be associated with anti-homo views
3. Solution: more speech; allows students to denounce them, etc…
4. The school isn’t sending out the message; Congress is regulating conduct, not speech – no one thinks Harvard is swinging from their position
a. Congress can’t require school to violate the constitution (discrimination), but this didn’t happen here – Congress isn’t making them say anything
The right to speak anonymously

1. Margaret McIntyre, a taxpayer, passed out pamphlets that opposed a proposed school tax.
2. The Ohio Elections Commission found her guilty of violating Ohio Code § 3599.09(A), which forbade "the distribution of campaign literature that does not contain the name and address of the person or campaign official issuing the literature” and fined her.
3. The Right to Speak Anonymously
a. “An author’s decision to remain anonymous, like other decisions concerning omissions or additions to the content of the publication, is an aspect of the freedom of speech protected by the First Amendment.”
4. Any limitation of this right of anonymity will be strictly scrutinized and probably struck down – both broad prohibitions on anonymous handbills and narrower ones have been struck down by the Court
A. Roth v. US (1957)
1. Court said obscenity is not in the marketplace of ideas and it is not constitutionally protected
2. First Amendment extends to all ideas having the slightest redeeming social value
a. Because obscenity has no redeeming social value, it’s not protected
3. Roth Two Level Theory
3. Roth Two Level Theory
a. That which is utterly without redeeming value
i. Not protected; mere possession can be outlawed
b. That which has some socially redeeming value
i. Protected
4. How do we define obscenity?
5. Test: Whether to the average person, applying contemporary community standards, the dominant theme of the material taken as a whole appeals to one’s prurient interest
a. Changes with society
b. Prurient interest: an itching desire for the lascivious, not merely the psychological interest in sex
D. Ginsberg v. N.Y. (1968)
1. Under New York Law it was illegal to willfully sell to a minor under 17 any picture which depicts nudity, is harmful to minors and any magazine which taken as a whole is harmful to minors
6. Rule: it was well within the state’s power to protect minors and that just because the material is not classified as obscene to adults it may still be regulated with minors.
4. Issue: What is the proper jury instruction to determine whether materials are obscene? Does it require an objective standard or a community standard to judge whether the material has value?
5. Held: “The proper inquiry is not whether an ordinary member of any given community would find serious literary, artistic, political, or scientific value in allegedly obscene material, but whether a reasonable person would find such value in the material, taken as a whole.”
a. The instruction at issue in this case was therefore unconstitutional
F. Stanley v. GA (1969)
1. Cops found porn when they searched D’s house for gambling
2. GA statute making it illegal to possess obscene materials
3. Issue: Can possession of obscenity be regulated by the states?
a. No, because the right to receive information regardless of its worth, especially within the privacy of one’s home, is protected
4. Bottom Line: State has no business to tell a man sitting along in his home what books he may read and what movies he may watch. Legislation can’t be based on controlling the desirability of a man’s thoughts
G. Note: People have the right to read what they want in their own home, but that does not mean that there is a right to bring it through the channels of interstate commerce
H. Osborne v. OH (1990)
1. OH law prohibiting possession or viewing any depiction of a child in a state of nudity
2. How does this comport with Stanley?
a. Distinct because law prohibiting possession of obscene material was about protecting people from themselves.

Here we are trying to protect children
b. State has a strong interest because they are protecting the victims of pornography, rather than the viewer
I. NY v. Ferber (1982)
1. D sold child porn to undercover cop; arrested under NY statute regulating child porn – held that a person was guilty of promoting sexual performance of a child when he sells the material
2. Issue: Can a law barring any video of child porn comport with First Amendment?
a. Yes; state has the right to ban this because it has a heightened interest in protecting children
b. In the balance between child and D, child wins

3. Child porn does not have to pass the obscenity test of Miller, it simply has to be indecent
K. Miller v. CA (1973)
1. Test for obscenity:
1. Test for obscenity:
a. Whether to the average person applying contemporary standards, the dominant theme of the material taken as a whole, appeals to the person’s prurient interest;
b. Whether the work depicts or describes sexual content in a patently offensive way as described by state law; AND
c. Whether the work taken as a whole lacks serious literary, artistic, political, or scientific value.
2. Part 1 and 2 are determined by the local community standard (there’s no national community standard); the third is a reasonableness standard.
L. Paris Adult Theaters v. Slaton (1973)
1. Owners of adult theaters were arrested for showing porn; Ds argued this was shown in private to consenting adults, so it was OK – trying to extend Stanley (can’t restrict what a man watches in his own home)
2. As long as the material meets the Miller Test, the state may regulate that which is obscene
3. Bottom Line: One private individual cannot convey porn to another in a commercial private setting
M. U.S. v. 12,200 Reels of 8MM Film (1973)
1. D tried to bring porn into the country
2. Issue: can US prohibit importation of obscene material, which a person claims simply for private use?
3. Holding: Congress has the power to regulate the channels of foreign commerce, and they can exercise moral judgments under that power.
a. Port of entry isn’t a private home, so Stanley does not apply
N. US v. Orito (1973)
1. D found on plane with 83 reels of porn in briefcase
2. Holding: Congress has the power to regulate interstate commerce, as such, it can prevent immoral materials from entering the channels
O. Kaplan v. CA (1973)
1. D owned peek-a-boo bookstore; undercover cop went to store and owner gave him a book without pictures but described sexual content
2. Issue: Can words alone be obscene?
3. Ruling: Yes; commercial exposure and sale of obscene materials to anyone, including consenting adults, can be regulated by the state.
P. Jenkins v. GA (1974)
1. Man showed “Carnal Knowledge” at a theater and he was charged with distributing obscene material.
2. The jury has the right to determine whether the material is patently offensive based on the local community standard; but...
but this discretion is not unbridled – to hold that the jury has unbridled discretion in determining whether something is patently offensive would be a misreading of Miller
a. This is a question of constitutional fact and is reviewable by the Court
3. The court found it was not patently offensive, so it wasn’t obscene
Q. Barnes v. Glen Theaters (1991) – Plurality
1. Statute prohibiting indecency; stripper sued to enjoin enforcement of it
2. Rule: When speech and non-speech elements are combined...
2. Rule: When speech and non-speech elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on Constitutional freedoms
a. Therefore, the statue was constitutional
3. O’Brien Test: The regulation must:
a. Be within the government’s Constitutional power to act;
b. Further an important or substantial government interest;
c. That interest must be unrelated to the suppression of speech; AND
d. Prohibit no more speech that is essential to further that interest.
R. Erie v. Paps A&M (2000)
1. Statute similar to Barnes
2. Issue: Is nude dancing speech or conduct?
a. Conduct
3. Now we have a majority opinion stating that the O’Brien Test applies in cases like this
S. Ashcroft v. Free Speech Coalition (2002)
1. Group challenging the Child Porn Prevention Act, which prohibits the virtual representation of children engaging in sexual acts or people who appear to be children engaging in sexual acts
a. Bottom line: the porn here doesn’t include any actual children
2. Court said statute was unconstitutional – can’t forbid conduct if there are no children
3. There was no sufficient causal connection between the attempt to stop pedophiles and the statute to justify the law
4. Court said that virtual child porn is not intrinsically related to criminal activity because it creates no victim
T. US v. Williams (2008)
1. D went in chat room to talk to children, he spoke with a secret service agent acting as a child and tried to send him child porn
2. Federal law prohibiting knowing solicitation of child porn
a. A conviction is warranted simply based on an attempt to transfer the material
3. Issue: Is the statute overbroad under the First Amendment or unconstitutionally vague under the Fifth Amendment?
a. No; statute prohibiting child porn is not unconstitutionally overbroad, even if no child porn exists
4. Anyone who solicits or advertises child porn is guilty – the statute doesn’t require the existence of any child porn
a. We are after those who think it’s real porn because that promotes more purchasing of child porn
U. US v. American Library (2003)
1. Statute said if libraries were going to accept funding, they had to use certain filtering software to keep children from viewing porn; funding was from GWC
2. Remember, if you take federal funding, you take it with the strings attached; and you have to follow the conditions imposed, so long as the conditions don’t violate express prohibitions in the Constitution
3. This law did not violate the First Amendment because the library isn’t a true public forum; therefore, any regulation that is reasonable and viewpoint neutral is constitutional
4. The library has the right to choose what goes on the shelf and what to provide on the internet
5. Note: adults can ask the filter be taken off; the First Amendment does not give you the right to be free from embarrassment
V. FCC v. Fox (2009)
1. This case involves “fleeting expletives” on live TV
2. FCC changed its rule on what was indecent: previously, as long as “fuck” was used non-literally, it was not indecent; but the rules were changed to add fines for fleeting expletives, even when used non-literally
3. FCC fined networks because there was a 7 second delay whereby they could prevent the airing of profanity
4. This law as not arbitrary and capricious, it was reasonable
W. US v. Stevens (2010)
1. D violated a law that forbade the creation, sale, or possession of a depiction of cruelty to animals and putting it in interstate commerce
a. Purpose was to stop “Crush Videos”
2. Congress has the power to control ISC; If they decide it is immoral, they can regulate it as long as it doesn’t infringe on your Constitutional rights
3. This is a content based exclusion: they are regulating the transmission of free speech
4. Court is not willing to extent obscenity to depiction of animal cruelty; the statute is overbroad
X. Brown v. Entertainment Merchants Association (2011)
1. Court struck down a California law that prohibited the sale or rental of “violent video games” to minors.
2. Rule: Video games qualify for First Amendment protection just like books, plays, and movies do, and the obscenity exception to the First Amendment does not apply to violent video games any more than it does to violent books if there is no direct depiction of sexual conduct.
PUBLIC FORUMS
A. Hague v. CIO
1. Organizers filed suit regarding law staying they had to get a permit before speaking (prior restraint)
2. City argues it has control over the public areas
What are the catergories of public forums?
B. Categories
1. Quintessential Public Forum
a. Their mere construction makes it a public forum (streets, sidewalks, parks, etc…)
2. Dedicated Public Forum
a. Becomes a public forum by way of the state dedicating it as such; when it is dedicated as such, the same rules apply as for public forums, but the state doesn’t have to keep it designated
3. Limited Public Forum
4. Non-Public Forum
a. Facilities owned by the gov that are not dedicated for expression of ideas but exist for the purpose of doing the gov’s business (IRS, Social Security offices)
C. Grayned v. Rockford (1972)
1. Anti-noise/picketing statutes
2. There were black students picketing in front of school
3. Court held the anti-picketing statute was Un-K, but the anti-noise was K
4. What is reasonable is based on the circumstances
a. Whether the manner of expression is incompatible with the normal use of a particular time and place
b. The requirement must be narrowly tailored the further the government interest
5. The anti-noise statute was OK because they were disrupting the school
D. Southeastern Promoters v. Conrad (1975)
1. TN city said “Hair” was too inappropriate so they were denied the use of the auditorium
a. This was prior restraint
2. This was a dedicated forum because it was designed for theatrical productions
3. Court said you must follow 3-tierd analysis to follow DP
a. Burden of investigating judicial proceeds to prove it was indecent
b. Can only restrain prior to judicial review for specified period of time
c. Final judicial decision as to whether it’s protected
E. Heffron v. Int’l Society for Krishna Consciousness (1981)
1. Group wanted to have table at fair – there was limited space so the fair instituted a first-come-first-serve policy for signing up for space
2. Ps were denied because they showed up too late – they argue the fair is discriminating on their freedom of religion because they should get preference
a. Court says, “Fuck you
3. This is a limited public forum – there was limited space and the fair is not primarily concerned with exchanging views (quasi-social/quasi-entertainment)
a. State is concerned with too many people at fair
4. Test for Time, Place, and Manner Restrictions:
a. Was the restriction content neutral?
i. Yes, it was first-come-first-serve
b. Is there a substantial governmental interest?
i. Yes; mobs, stomping, etc…
c. Are there alternative channels of communication available?
i. Yes, could practice inside if you had gotten there early enough, they can talk outside of the fair, or they could mingle amongst the fair-goers
What is the test for time/place/manner restrictions on limited public forums?
4. Test for Time, Place, and Manner Restrictions:
a. Was the restriction content neutral?
b. Is there a substantial governmental interest?
c. Are there alternative channels of communication available?
F. Widmar v. Vincent (1981)
1. Mizzou prohibited use of buildings for worshiping or teaching religion
a. Student group sued (state actor), alleging violation of freedom of speech, religion, association, and equal protection
2. Issue: Whether state universities, that make facilities open to students, can close it to those who want to use it for religious discussion?
3. Test for Non-Public Forums is Reasonableness
a. State can prohibit all speech-related conduct in non-public fora, so long as it’s reasonable
4. But the court said the school dedicated it as a public forum
a. Even so, the state says it is an interest in not violating the Establishment Clause, so it can limit access
5. The state’s interest was not compelling to overcome the content-based restriction of the rule
6. Because Mizzou required more from the religious groups, they violated free exercise of religion, speech, and assembly
What options does the university have?
7. Note: University can make reasonable time, place, and manner restrictions – or get rid of the dedicate public forum
A policy will not offend the Establishment Clause if:
a. The policy has secular legislative purposes
i. Yes; school is the meeting place of ideas
b. Policy’s primary purpose does not advance or inhibit religion
i. An open forum doesn’t allow this, so the policy is un-K
c. Policy must not foster excessive entanglement with religion
i. Not here, so OK

10. Bottom Line: The school hid behind the Establishment Clause to deprive the group of their rights of speech, religion, and association
11. The basis for the decision was narrow: having creating a for a for all student groups, the university had excluded this group for content based reasons, and that is unconstitutional
G. Perry Ed. Ass’n v. Perry Local Ed. Ass’n (1983)
1. Fight over a collective bargaining agreement for teachers
2. One group wins, and as part of the CBA, they can use the interschool mailbox system
3. The loser sues and claims the mailbox is a public forum, from which they have been unconstitutionally excluded – they argue it’s a dedicated PF, because other groups were allowed to use it to communicate with teachers
4. Issue: Does the lack of access to the mailbox violate the First Amendment, as it does for streets and sidewalks?
a. Quintessential PF
i. In places which by long tradition are by their own design PF
ii. Gov may not prohibit all communicative activity in a QPF
iii. Can place time, place, and manner restrictions
b. Dedicated PF
i. Property which the state has opened for use by the pubic for expressive activity
ii. The regulation must be compelling if content based, or pass the three-tiered test if it is T, P, M based
iii. Like a theater and union at Mizzou
iv. Dedication can be revoked
c. Non-PF
i. Public property which is not by designation or tradition a forum for communication
ii. Gov may completely prohibit all expressive conduct so long as it is REASONABLE and viewpoint neutral
6. Court says the mailbox is a non-public forum, and restriction was neutral
H. Frisby v. Schultz (1988)
1. Picketers were in front of a Dr’s house (he performed abortions). There was a law making it illegal to picket in front of a dwelling – for the privacy and sanctity of the home
2. Are streets in a private neighborhood quintessential public fora?
a. Yes; We have never distinguished public from private streets. Even streets in a residential neighborhood are public for.

3. 3-Tiered Test
a. Is the regulation content neutral?
i. Yes
b. Is the regulation narrowly tailored to serve a significant gov interest?
i. Yes – sanctity of the home (the highest order of free society) is the evil it is trying to stop
ii. Narrowly Tailored if it targets and eliminates no more than the exact source of the evil it seeks to remedy
iii. It’s NT because it merely limits picketing in front of one home exclusively; they can still walk up and down the street
c. Does the regulation leave open other alternative channels of communication?
i. Yes; they may protest up and down the street or go door-to-door, mail, etc…
4. Bottom Line: Streets in a residential neighborhood are public forums, but the city has a right to prohibit protests in front of one single residence
I. Lambs Chapel v. Center Moriches (1993)
1. School permitted local groups to use the school grounds for social, civic, and recreational meetings
2. P wanted to use, but was rejected for being religious
3. A school is a non-PF: the purpose is for the kids to learn
4. After school or when school isn’t in session, the school becomes a DPF
a. This is a limited PF, because the meetings were limited to meetings pertaining to the welfare of the community
b. Child-rearing/discipline (which is what P wanted to teach about) was within the boundary
c. But the school board rejected them because they wanted to teach about child rearing from a religious viewpoint
5. Even if the school was considered a non-PF, the Court found the exclusion unconstitutional because it was viewpoint discrimination, because the child rearing P’s taught was reasonable within the purposes of the forum, the exclusion was viewpoint discrimination, based totally on the religious nature
6. Can’t restrict some viewpoints and not others
K. International Society of Krishna v. Lee (1992)
1. Krishnas in airports
2. Port Authority banned sale or distribution of written material or goods inside the buildings
3. Court found that the airport is a non-public forum. Any expressive conduct directly interfering with the mission of the forum may be prohibited as long as it is reasonable and viewpoint neutral.
4. Court finds that the airport is a non-PF because it is not traditionally a place for the exchange of ideas
5. 2 Prohibitions in Statute
a. Pamphletting
b. Selling
6. Court said the prohibition on selling was rzbl because they wanted to ensure open operation of the airports; but the prohibition on distributing materials was NOT OK because the desire to prohibit people from handing out pamphlets was not was reasonable
L. Capital Square v. Pinette (1995)
1. KKK wanted to put a cross at the capital during the holidays – had to get approval; allowed Christmas tree, Jewish Menorah, but rejected the cross, arguing it violated the Establishment Clause
a. This was a public forum
2. The display was private religious speech (Purely Private Speech) that is fully protected. Because Capitol Square is designated as a traditional public forum, any group may express their views there, and the Board may regulate the content of the Klan's expression on the plaza only if a restriction is necessary and narrowly drawn to serve a compelling state interest
3. Thus, they had a right to put up the cross
M. Van Orden v. Perry, 545 U.S. 677 (2005)
1. Texas Case – On the grounds of the Texas Capitol, there was a six-foot high display containing the text of the King James Version of the Ten Commandments.
2. Plurality: does not violate Establishment Clause because the Ten Commandments, although religious, also have an undeniable historical meaning since Moses was a lawgiver as well as a religious leader
a. Simply having a religious content or promoting a message consistent with a religious doctrine does not run afoul of the Establishment Clause
b. Because this monument was “passive use” of the Ten Commandments and placed alongside many other monuments representing the several strands in the state’s political and legal history, it did not violate the Establishment Clause
N. Pleasant Grove City v. Summum (2009)
1. A public park housed several monuments (including the 10 Commandments, which is OK)
2. Religious group wanted to erect a monument, but city denied request
3. Issue: Does free speech entitle a private group to insist that a monument be put in a park?
4. City argued it didn’t want the monument because the other monuments had historical ties to the city
5. Court said that the placement of this monument in the public park is a form of government speech, and the fact that the city picks and chooses the types of monuments to be used is a form of permissive expression on the part of the government
6. Otherwise the government would be forced to accept any monument by any group that could rise the funding or reject all monuments; the government should not have to advocate any message that those groups might want
O. Christian Legal Society v. Perry (2010)

3. Hastings refused to grant CLS the RSO status because of these limits on who may join in violation of the all-comers policy.
a. CLS claimed the all-comers policy violates the First Amendment requirement that when government restricts access to limited public forums the restriction must be both reasonable and viewpoint neutral.
4. Court held the all-comers policy to be constitutional because it is completely viewpoint neutral and it is reasonable
a. Reasonable for several reasons: (1) an equal-access policy promotes the educational experience, and (2) in light of the fact that RSOs get school funding, no Hastings student should be forced to fund a group that would reject her as a member.

5. Rule: When government gives a subsidy to certain organizations, it may require as a condition of the subsidy that the organization themselves not discriminate against certain viewpoints.
P. Snyder v. Phelps (2010)
1. Westborough Baptist Church protesting at military funerals: the deaths in Iraq and Afghanistan are God punishing American for embracing homosexuals

c. They were protesting about 300 yards away from the church on public property contiguous to the sidewalk – a QUINTESSENTIAL PUBLIC FORUM (Frisby v. Schultz)
4. Issue: whether the First Amendment shields the church members from tort liability for their speech in this case.
5. HELD: The First Amendment shields Westboro from tort liability for its picketing in this case
a. Opinion written by Chief Justice Roberts – one of the most conservative justices ever, but a huge proponent of the First Amendment
b. “It is not the speech that we love that we must protect but the speech that we hate”
When is a speaker shielded from tort liability?
d. Rule: When speech is of public concern at a public place, the First Amendment shields the speaker from tort liability.
FREEDOM OF THE PRESS AND DEFAMATION

A. INTRODUCTION
1. Near v. MN (1931) CORNERSTONE OF CIV LIB
a. Crime to publish any malicious, scandalous, defamatory magazine or article
b. D ran an article that MN was run by Jew gangsters
c. Court incorporated First Amendment FoS to the states through DP of 14th
d. This was suppression; the purpose of the statute wasn’t punishment but suppression
e. Suppression is constitutional where:
i. Impedes military or risks national security
ii. Indecency/obscenity
iii. Incitements to acts of violence
iv. Overthrow of the gov

f. Bottom Line: The First Amendment generally prohibits any sort of prior restraint of the press
2. Miami Herald v. Tornillo (1974)
a. D ran for office and paper ran story about him
b. State statute requiring papers who ran a story about person running for office to allow the person to respond
c. This constituted prior restraint because it chills the press from reporting on controversial topics
d. If the paper publishes something false about you, your remedy is to sue for defamation
DEFAMATION
1. Intro
a. False, scandalous, malicious writing with the intent to bring into contempt or disrepute to destroy one’s reputation
b. The most important right a person has is the right to his good name
Defeamation Overview

What do you have to prove to recover for defamation if you are a public official or public figure?
a. Public Figure/Official
i. Statement was defamatory
ii. False
iii. Relates to official duties
iv. Actual malice (high degree of probably falsity)
v. Named or identified person with sufficient specificity
What must you prove to recover for defamation if you are a private citizen making a statemetn on a topic of pubic concern?
b. Private Citizen on matter of public concern
i. Fault
ii. False
c. Private Citizen on matter not of public concern (compensatory/punitive)
i. Fault
d. To get punitive damages for public figures/officials/public concern
i. Fault
ii. Falsity
iii. Actual malice
Who determines what the qualifies as fault?
e. Fault = level of culpability as defined by the state

could be negligence, gross negligence, actual malice etc.
3. NY Times v. Sullivan (1964)
a. Ad printed regarding brutal actions by police as part of the Civil Rights Movement
d. A public figure must prove actual malice in order to recover
What is actual malice?
i. Actual Malice: a statement made with knowledge that it was false or a reckless disregard for the truth or falsity of the statement
To recover for defamation a Public official must prove:
e. Public official must prove:
i. The statement was defamatory;
ii. The statement was false;
iii. Relates to official conduct;
iv. The statement was made with actual malice (high degree of probably falsity); AND
v. Named or identified the person with sufficient specificity
4. Garrison v. LA (1964)
a. Garrison, DA, said the judges were lazy, worthless, and inefficient and he was charged with criminal defamation
c. Court says a public official can and will be criticized in his public and private life. There’s not a lower level of protection because the speech was about his private life (anything that might touch on his fitness for office is germane to the public debate)
2. Rosenbloom v. Metromedia, (1971)
a. Radio station sued for libel b/c aired allegedly defamatory information about a private individual
b. Held: Even though a news broadcast contains information about a private citizen it is not libel unless the plaintiff can demonstrate a reckless disregard for the truth or malicious intent.
6. Monitor Patriot v. Roy (1971)
a. P running for office and paper printed article saying he was a former bootlegger
b. P argues this activity was too far removed from the race to be relevant
c. Because he was not yet in office, he was a public figure not public official
d. Court said the speech was ok because any allegation of criminal conduct is never irrelevant to a candidate’s qualifications for office
7. Ocala Star-Banner v. Damron (1971)
a. Paper printed something about a candidate’s criminal past. He lost. It turned out the real criminal was his brother.
b. Ct says because criminal allegations are relevant, actual malice standard applies
9. Gertz v. Welch (1974)
a. Cop charged with killing a child. Gertz represented the family.
b. Article published alleging Gertz fraudulently brought suit against the cop and that he was part of a communist conspiracy
c. Issue: Was he a public figure? Does a private citizen, where the topic is one of public concern, have to prove actual malice?
i. No to both; for a private individual to recover, he doesn’t have to prove actual malice – even if the topic is one of public concern
ii. Why? Public figures have access to media to respond; private individuals haven’t voluntarily injected themselves into the public arena

d. States can choose the standard of recovery for compensatory damages, so long as the states do not impose liability without fault

iii. But to recover punitive damages on a topic of public concern, private citizen must prove actual malice with clear and convincing evidence
Court distinguishes b/w two types of public figures:
e. Court distinguishes b/w two types of public figures:
iv. General Purpose Public Figures
(a) People who are in such a high visibility that they are public figures for all purposes and in all circumstances
(b) Must prove actual malice in order to recover anything
v. Limited Purpose Public Figures
(a) People who are public figures for a specific purpose. They voluntarily thrust themselves into the vortex of public discussion on a specific issue and thus become public figures in regard to that issue
(b) Actual malice standard when in the public aspect
f. Test: proof of mere failure to investigate, without more, cannot establish reckless disregard for the truth
vi. Publisher only has the duty to investigate if there is some notice that the story was false
10. Time v. Firestone (1976)
a. Messy divorce, and Time printed article stating the divorce was on grounds of cruelty and adultery. This was false because that’s not what the judgment said.
b. Time argued P was a public figure
c. Holding: the media cannot make a person a public figure by defaming them

viii. Media has the absolute right to report what occurs in court, so long as it’s accurate
d. Her voluntary appearance in court did not make her voluntarily inject herself in the public arena, because she was compelled to use the court to get a divorce
ix. This does not rule of the possibility of making someone a public figure based on coming to court (ex: OJ type case where lawyers publicize the case)
11. Herbert v. Lando (1979)
a. Former military officer accused of malfeasance. CBS reported and called him a liar. They had information both positive and negative, but chose to publish the negative
b. Issue: When a P sued for defamation, is he barred from inquiry into the editorial process to determine whether the speech was disseminated recklessly?
x. No. Process of publication must be open to examination
c. P wanted to ask producer how he chose which interviews to air and which not.
d. This inquiry bears on whether the defamatory statements were made with actual malice
What does it mean to have a reckless disregard for the truth?
f. Reckless Disregard for Truth: D in fact entertained serious doubts as to the truth of the publication. Such subjective awareness of probable falsehood may be found if there are obvious reasons to doubt the veracity of the information of the accuracy of the reports.
xi. This definition works in conjunction with Actual Malice
12. Dun and Bradstreet v. Greenmoss (1985)
a. D published info to creditors about P, and P was denied a loan. This was in fact a clerical error and the info was not true
b. Issue: Can a private citizen recover punitive damages without actual malice if it is not a matter of public concern?
c. Rule: In order for a private citizen to recover compensatory/punitive damages for matters not of public concern, P must only show fault by a preponderance of the evidence
13. Philadelphia v. Hepps (1986)
a. P owned convenient stores and paper published article stating he made his money through organized crime

does he only have to prove fault to recover?
b. Rule: P not only has to prove fault, but he must prove the statement was false if it is a topic of public concern
xii. This case adds to Gertz
xiii. This really doesn’t add much though because to prove fault, you will most likely have to prove falsity
c. Must still prove actual malice if trying to recover punitive damages if on a matter of public concern
14. Hustler v. Falwell (1988)
a. Hustler published parody of Falwell. Falwell is a Class A Public Figure. If he wants to recover at all he must prove actual malice
b. Court said the public would not believe this was true. Even though this was offensive, there’s a need for cartoons – the add color and value to political discourse
15. Milkovich c. Lorain (1990)
a. Paper published article about high school coach allegedly lying about a fight between students. Author claimed this was his opinion
b. Just because something is alleged to be an opinion does not mean it is automatically protected
c. Rule: If “opinion” can be disproven with objectively verifiable facts, it’s unprotected speech
d. Here, because the comments were objectively verifiable through the courts, they could constitute defamation
16. Masson v. New Yorker (1991)
a. P fired after he criticized Freud, even though he worked at a Freud Museum. He was called a “self-destructive fool.”
b. The article was written from recordings P made, but some of the text was not actually what P said. D knew the statements were false because he had tapes to prove such
c. Issue: how false does something have to be to constitute defamation?
d. Rule: Deliberate alteration of words does not necessarily constitute knowledge of falsity (Actual Malice), unless the alteration results in a material change in the MEANING conveyed by the statement

i. Thus, you can lie a little. When quoting, can correct grammar/syntax. If you are writing from memory, can write it as best as you remember.
17. Tory v. Cochran (2005)
a. Man picketed outside of Cochran’s office, calling him a liar. Won suit, but D was poor
b. P asked for a permanent injunction (prior restraint from expression on sidewalk)
c. Rule: Can have a permanent injunction that constitutes prior restraint but it must be narrowly tailored to accomplish its goal
FREE SPEECH & POLITICAL CAMPAIGNS

A. Citizens United v. FEC (2010)
1. A provision of the Bipartisan Campaign Reform Act prohibiting unions, corporations and not-for-profit organizations from broadcasting electioneering communications within 60 days of a general election or 30 days of a primary election violates the free speech clause of the First Amendment to the United States Constitutio
2. HELD: Corporations have First Amendment rights
B. Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett, 131 S.Ct. 2806 (2011)
1. HELD: Arizona’s matching funds scheme, which provides additional funds to a publicly funded candidate when expenditures by a privately financed candidate and independent groups exceed the funding initially allotted to the publicly financed candidate, substantially burdens political speech and is not sufficiently justified by a compelling interest to survive First Amendment scrutiny.