Constitutional Law Ii

Front 1

Freedom of Speech
Bradenburg v. Ohio

Back 1

cannot punish mere advocacy (even if it is offensive). advocacy that incites imminent lawless action can be punishable. the statute violates freedom of speech. statute can be found over-inclusive or vague (by either limiting too much or not not enough) and therefore void.

Front 2

Schenck v. US

Back 2

• The court admits that in ordinary times and in many places the document would be within their constitutional rights, but the character of the act depends on the circumstances in which its done
• The question is of proximity and degree- when a nation is at war, many things can be said that won’t be protected by the 1st amendment that would be in times of peace

Front 3

The Clear and Present Danger Test (Holmes)

Back 3

o “the question on the evidence is whether the Ds act come near enough to the accomplishment of the substantive offense to be punishable”
o Question of degree and proximity

 Restriction on speech (political) is never legitimate to prevent subversion or violence, that punishment must be limited to illegal action, even if the speech indirectly incites that action
 There should be no constitutional protection for any speech advocating the violation of law

Front 4

Abrams v. United States

Back 4

• Circulation of writings had the purpose to excite, at the supreme crisis of the war, disaffection, sedition, riots, and embarrassing and if possible defeating the military plans of the govt. in Europe
• Even though the writing didn’t incite immediate action, but it had a tendency to encourage it, the language isn’t protected by the 1A

Front 5

Masses Publishing Co. v. Patten

Back 5

• Detestation of existing policies (such as the ones we are dealing with in this case) is easily transformed into forcible resistance of the authority which puts them into execution
• To assimilate agitation, even legitimate, with a direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government
• If one stops short of urging upon others that it is their duty or their interest to resist the law, it seems that one shouldn’t be held to have attempted to cause its violation. If this isn’t the case, then every political agitation which can be shown to be apt to create seditious temper is illegal and this isn’t what congress intended

Front 6

Gitlow v. NY

Back 6

• The freedom of speech and of press are the fundamental personal rights and liberties that are protected by the due process clause of the 14th Amendment from impairments by the states (incorporation doctrine)

• It wasn’t necessary that the D should have advocated “some definite or immediate act or acts” nor was it necessary that the language should have been “reasonably and ordinarily calculated to incite certain persons” to acts of force, violence, or unlawfulness

Front 7

Chaplinky v. New Hampshire "fighting Words"

Back 7

this conviction was upheld. The state's law stated, :" no person shall address any offensive or annoying word to any other person who is lawfully in any street or other public place.
a. Chaplinky, a Jehovah's witness engaged in distributing literature on the streets of Rochester. He attracted a crowd by denouncing all religion as "racket"
d. Chaplinsky called the marshal a "God damned Racketeer" and that was why his conviction was upheld
Racketeering and Facists are likely to provoke a person to retaliate

Front 8

Cohen v. California "fighting Words"

Back 8

this deicsion reversed the breach -of peace conviction of a war protestor who wore in public a jacket which said "fuck the Draft"
Chaplinsky included "lewd and Profane" speech. Fighting words are limited to statements directed to the person of the hearer, Cohen undermined the notion that there is any unprotected catagory of "words tht by their utterance inflit injury" it emphasized the emotive power of words and suggested that preventing psychic offense was not a sufficient justification for punishing speech.

Front 9

Heckler's Veto/Hostile Audiences

Back 9

when you stop the speaker from speaking, you cant threaten the speaker, but only the audience.

if the audience can stop the speech, that is a heckler's veto. cannot limit the speaker b/c of threatening violence, and only the audience. if you don't limit the audience, you have allowed the heckler's to veto the speech

Front 10

Feiner v. NY

Back 10

fighting words used to enrage a crowd and start a riot are not valid b/c it goes against public police & disturbs the peace. speaker was asked to become silent to prevent further rioting in the audience

Front 11

Context v. Content (Fighting Words)

Back 11

can regulate time, place that a speech takes place but not the content of the speech

Front 12

Defamation

Back 12

is the communication of a statement that makes a claim, expressly stated or implied to be factual, that may give an individual, business, product, group, government, or nation a negative image

libel- written defamatory statements
slander- spoken defamatory statements

Front 13

Beauharnais v. Illinois
Group Libel

Back 13

group libel is punishable just as individual libel. however, not often implemented b/c
1- should be able to fight back b/c it's a large group
2- if the courts allow it, it will open the flood gates to allow people to sue on behalf of a group
Exception- if the group is capable of proving damages, they should be able to sue as an individual can

speech or writing that is defamatory is generally not protected by the 1st amendment and may therefore be subject to libel laws.

to pass the libel test, the statement must be both truthful and made with good motives and for justifiable ends

libel is like obscene speech and is not protected by the 1st amendment, no showing of clear or present danger is necessary

Front 14

NY v. Sullivan
Defamation- Public Officials/Figures

Back 14

politicians are subject to public scrutiny & have resources to clear their name.

actual malice test:
limits public officials from seeking damages for "defamatory falsehoods" only if they prove that those who made the statements either knew the statements to be false or made them with reckless disregard of whether they were false or not

if we allowed the public officials to sue then it would lead to self-censorship and the burden of proving their claims true

Front 15

Private figure- defamation suits

Back 15

standard is if its the person who makes the claim knowingly or recklessly makes the false statement, an action can be brought by the private individual for the defamation uttered, especially in radio broadcasts (Rosenbloom v. Metromedia)

Gertz v. Robert Welch
so long as liability isn't imposed without fault states are free to establish their own standards of liability for defamatory statements made about private individuals. however if the state standard is lower than actual malice the std. applying to public figures only actual damages may be awarded. strict liability for defamation is unconst. in the US

Front 16

Speech on matters of private concern

Back 16

Dun & Bradstreet v. Greenmoss Builders- credit reporting agency could be liable in tort if carelessly relayed false information that a business had declared bankruptcy. the false declaration damaged the company's reputation and was liable for damages

Front 17

Non Defamation Torts: IIED

Back 17

intentional infliction of emotional distress

Hustler v. Falwell- free speech guarantees of 1st amendment prohibit public figures from recovering from the tort of IIED. in order to recover from the tort, it must be shown that the ad which contained the false statement was made with actual malice, or with knowledge that the statement was false or with reckless disregard about whether it was true

Front 18

Invasion of privacy (things you cant do)

Back 18

1- intrusion into the Ps private affairs
2- public disclosure of non-newsworthy facts the P would have preferred to keep secret
3- publicity placing the P in false light
4- appropriation of the Ps name or likeness

Front 19

false light of invasion of privacy

Back 19

the claim is that the disclosure not only invaded the privacy but was also false though not necessarily injurious to reputation

Time v. Hill- book was written about family's experience. play was then subsequently made, but contained inaccuracies about the family's experience. court found that absent a finding of such malicious intent on the party of a publisher, press statements are protected under the 1st amendment even if they are otherwise false or inaccurate

Front 20

Rape Victim's Names*

Back 20

names can be released to the public if obtained legally

Front 21

Hate Speech

Back 21

Skokie controversy- Nazi party wanted to march in a Jewish area. court said that you cant prohibit the display of the swatiska b/c its not an exception to fighting words under free speech. also, b/c you anticipate a hostile audience (this is considered a prior restraint)

it was the burden of the citizens of Skokie to avoid the march and symbol instead of preventing the Nazis from marching and violating their 1st amendment freedoms

Front 22

Hate Speech on campus

Back 22

regulating racist/discriminatory speech- court finds this unconst. as being too vague and broad

Front 23

R.A.V. v. St. Paul (Hate Speech v. Expression)

Back 23

ordinance prevented several symbols that couldnt be burned on private property which would arouse anger. court found it facially invalid under 1st amendment b/c it was overbroad and vague.

ordinance was unconst. b/c it prohibited permitted speech solely on the basis of the subject the speech address

1st amend. prevents the govt. from prescribing speech or even expressive conduct because of the disapproval of the ideas expressed. only obsence or defamatory can be regulated. state may prohibit the time, place, and manner, only if its justified as to content without regulating the speech

content based regulations are presumptively invalid, but are permissible in a few areas of social value

implications of RAV

VA v. Black- KKK burned a cross on black family's yard. cross burning can be a criminal offense if it is done to intimidate. if its done to be expressive, it cannot be punishable as it is protected by the 1st amendment. cross burning with an attempt to intimidate is not permissible b/c historically it leads to violence

Front 24

Hate Speech/Holocaust

Back 24

Regina v. Keegstra- teacher promoted hatred of jews and tested students on his anti-semitic opinion. court found that it clearly violated legislation that was designed to suppress expression. THIS IS A CANADIAN CASE

Front 25

Obscenity

Back 25

definition...

Front 26

Regina v. Hicklin
Obscenity

Back 26

something that was offensive or subject to banning or prosecution was material that had a tendency to deprave even nieve minds

Front 27

Butler v. Michigan
Obscenity

Back 27

court reversed convictions of bookseller that sold books that tended to corrupt youth.

Front 28

Roth v. US/Alberts v. California
Obscenity

Back 28

dealt with statute that banned the mailing and selling of obscene literature. court upheld the lower convictions, that it was obscene. found that there was no freedom of speech or press violations. these freedoms are not absolute.

Front 29

Memoirs v. Massachusetts
Obscenity

Back 29

plurality opinion held as it as unprotected by 1st amendment only what is patently offensive and utterly without social value

Front 30

Ginsburg v. US
Obscenity

Back 30

affirmed convictions of magazine publishers for exploitation of erotica solely for purirent appeal

Front 31

Mitchkin v. NY
Obscenity

Back 31

affirmed the conviction of publishers of obscene booklets of "calculated conveyance of filth"

Front 32

Cohen v. California
Obscenity

Back 32

wore a shirt saying f the draft. his free speech was violated by the conviction. it was fine to wear the shirt b/c the expression wasn't directed at anyone.

Front 33

Civility v. Censorship
Obscenity

Back 33

the court is trying to find a balance between civility and censorship in dealing with how to handle obscenity

Front 34

Miller v. California
Obscenity

Back 34

court held that obscene materials are not protected by 1st amendment. there is a test to determine what obscene is- whether the average person thinks the material(s)
1) offends contemporary community standards
2) patently offensive
3) without redeeming social value

if the average person believes the material meets the 3 standards, then it is considered obscene, and therefore not protected by the 1st amendment

Front 35

Paris Adult Theatre v. Slaton
Obscenity

Back 35

there is a legitimate state interest in stemming the tide of commercial obscenity even to consenting adults.

Front 36

Jenkins v. Georgia
Obscenity

Back 36

permitted an instruction to the jury to apply community standards without specifying which community. should be the local community.

Front 37

Obscenity- Media

Back 37

should the govt. have the right to regulate media/broadcast

federal law states that no obscene, profane, or indecent language on radio communications. it is also extended to television.

Front 38

Pacifica Case

Back 38

broadcasting stations/networks has some 1st amendment protection, but the most limited protection possible.

after this case, the FCC acted against broadcasters if they used obscene language in a frequent and repeated way.

Congress said that the FCC can only apply the ban on this only between 6AM-10PM, times when children may be listening or watching. in 2004, this was changed (to what?)

single utterance of obscene language is still considered illegal, but just may not be prosecuted against.

Front 39

What is the difference between common law marriage and implied contract marriage ?

Back 39

Common law marriage is oral ( it is harder to prove a common law because you have to show that you hold out to be married and you considered yourself married)

Front 40

Schad v. Mount Ephraim

Back 40

operators of adult bookstore were found guilty of violating a zoning ordinance for operating a peep show booth. SCt found that the ordinance was not justified and was found unconstitutional. total bans on nudity is unconst.

Front 41

3 Prong test for Obscenity

Back 41

1- cant offend contemporary standards (of local community)
2- patently offensive
3- without serious artistic, political, or literary value

Front 42

NY v. Ferber

Back 42

SCt upheld statute that prohibited the knowing promotion of the secual permformance of a child under 16 by distrubuting material that promotes the performance

SCt found that child porn is not entitled to 1st amendment protection. the statute involved was not overly broad.

concern is with statute being over broad- showing an adolescent teen sexuality film in a medical class or setting

Front 43

Child Porn

Back 43

all courts basically agree that child porn is not protected and is illegal. want to protect children from abuse and being exposed to indecent things. strikes at the core of our general values to allow child to be a part of porn. issue becomes creating a statute that isn't too over broad (family pics of children in tub; medical films, etc)

Front 44

Pornography Parody/Satires

Hustler v. Falwell

Back 44

Hustler magazine published a cartoon satire of Falwell- drunken rendezvous in an outhouse with his mother. sued for IIED.

court unanimously held that a public figure is prevented from IIED recovery by the 1st amend. guarantees for an advertising parody/cartoon. the cartoon was too unbelievable for it to be true- it was known that it was untrue

Front 45

Universal Declaration of Civil Liberties

Back 45

doesn't treat freedom of speech separately than press- both treated as part of freedom of expression (international community)

Front 46

National Security

NY Times v. US

Back 46

govt tried to prevent the pentagon papers from being printed for purposes of national security (b/c we were still at war and could potentially put some people at risk). court decided that any restraints placed on the Times & Post had serious questions of const. validity. court ruled in favor of the Times and allow the newspaper to publish the pentagon papers

Front 47

Three Different Kinds of Government Secrets.

Back 47

1. Illegitimate state secrets - the state does not want the public to know some embarrassing issues. Government secrets of incompetency should be exposed.
2. Legitimate but newsworthy government secrets - for example the publication of military rifles miss-fire or helicopters crash. This is both harmful and beneficial for the people to know. It is harmful because the enemy could know, it is beneficial to fix the problem.
3. Legitimate and not newsworthy government secrets - disclosure that the government broke the enemies code. This furthers no public interest. What furthers the public interest is a matter of dispute. But you do not want the enemy to know that we broke the code.

Front 48

How could we prevent the press to publish secrets or what should be done?

Back 48

- To fix this we need clear straightforward rules, they will protect to much or too little expression. They will protect too much or too little secrecy. This is the dilemma.
○ We could learn from history. The government has not punished the press for publishing government secrets. This has been a successful solution.

Congress did entertain enacting legislation -there was a case (espionage act) to stop the publishing of shipment dates to prevent the press to publish so the information could not be used by the enemy. (1917) during war.

Front 49

Religious Tolerance Act

Back 49

Passed in Maryland in `1649. 20 years after Maryland was founded (1632)

Front 50

What does Freedom of religion mean? Should the government be accomadance or completely hands off

Back 50

Answer this from page 506-520

Front 51

Where is the only place in the constitution where "god " is mentioned

Back 51

"In the year of our Lord" ....in the preamble to signify the date.

Front 52

Remonstrance (in the terms of freedom of religion

Back 52

an earnest presentation of reasons for opposition or grievance; especially : a document formally stating such points(in Virginia statute it referred to the history of religious conflicts and the effects of all sort of establishment current and historical, to suppress religion's free exercise.

Front 53

Voluntarism (religious freedom, interpretation of the 1st amendment by the court)

Back 53

that the advancement of a church would come only from the voluntary support of its followers and not from the political support of the state.

Front 54

Separatism ((religious freedom, interpretation of the 1st amendment by the court)

Back 54

that both religion and government function best if each remains independent of the other.

Front 55

Wallace v. Jafree \(1985)

Back 55

invalidated under the estalbihsment clause several AL statute permitting silent prayer or meditation in public schools Dissent - Madison did not intend for a strict separation, he just wanted to bar a national religion.

Front 56

Rosenberger v. Rector (1995)

Back 56

Rosenberger v. Rector (1995) - holding that the Establishment clause did not bar Virginia from including religious magazine among the student activities it subsidized. The framers saw the Establishment clause simply as a prohibition on governmental preferences for some religious faiths over others.

Front 57

What was the flaw of the Virginia Remonstrance

Back 57

• The Remonstrance was a bill establishment a provision for teachers of the Christian religion- Virginia's assement was flawed because it violated that equality which out to be the basis of every law. The bill singled out religious entities for special benefits. The funding provided by the Virginia assessment was to be extended only to Christian sects, and that Remonstrance seized on this defect.

Front 58

Act of toleration

Back 58

act of tolerance was liberalized by 1773.
1- boring the tongue
2- B on the forehead
3- death

Front 59

MD Tolerance in 1770s

Back 59

section 33 of Md Declaration of rights granted equal protection to all professing the Christian religion.

Front 60

Thomas Kennedy

Back 60

scottish presbyterian that settled in frederick/hagerstown. no jews in washington county. ran for office and won a seat in Md legislature and 1st bill introduced (and only bill) was on behalf for jewish equality. made fun of for this in 1816 and reintroduced it in every subsequent session. 1823, he was voted out of office. re-elected in 1825, his bill finally passed from 26-25 with 80 absent or not voting. the new law required a future state of rewards and punishments- common between jews and christians. excludes athiests, agnostics. Md wasnt the last state to give full equality, but among the last.

Front 61

Freedom of Religion cases

Back 61

since 1833 the whole area of govt. support of religion has broadened

govt shouldnt should preference of one religion over another- common decisions among cases

question is, should the govt promote all religions equally?

Front 62

theory behind complete separation between church and state (establishment clause)

Back 62

religious liberty is best protected if the govt. stays out of it completely. issue is one man's neutrality is another man's hostility. (i.e.- denying prayer in school may be violating those who want to pray)

Front 63

Exercise v. Establishment clause

Back 63

establishment clause- church and state are completely separate

exercise-

Front 64

Reynolds v. US

Back 64

upheld application of a federal law making bigamy a crime in the territories to a Mormon claiming that polygamy was his religious duty. Polygamy leads to the patriarchal principle which when applied to large communities fetter the people into stationary despotism, which the principle cannot long exist in connection with monogamy.
a. Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.

mormon claimed violation of his exercise of his religion by the feds banning bigamy.

court drew a distinctions between belief and conduct. govt. has power to prohibit conduct, but not belief. state's power to regulate conduct is superior to the individual's free exercise.

Front 65

Cantwell v. Connecticut

Back 65

Free Exercise embraces two concept - freedom to believe and freedom to act. The first is absolute, but in the nature of thing the second cannot be.

case dealt with solicitation of funds without license. this was unconst. b/c due process and free exercise were violated

power to regulate must be exercised in every case to attain a permissible end, not to unduly infringe on a protected freedom (1st expression of strict scrutiny in cases)

strict scrutiny- compelling state interest, legitimate goal, narrowly tailored (least restrictive regulation)

strict scrutiny is applied in religion/exercise cases

Front 66

Neustrader v. Holy Cross case in MD (no published opinion)

Back 66

an orthodox jewish person who was a P in a malpractice suit in Mont. Co. against a bunch of doctors and holy cross hospital in silver spring. the P & D had to set a trial date and the date was in june, after which the P discovered that there was a jewish holiday june, during which he wasnt allowed to work and to be in the synagogue or have someone to represent him (considered as doing work) so he requested a postponement. the judge wouldnt grant b/c the docket was crowded. trial went forward without himself or lawyer there, trial went forward and P lost the case.

state argued that in the interest of judicial efficiency, they couldnt postpone, b/c they cant cater to every relgions' issues.

Front 67

Lukumi Babalu v. Hialeah
Animal Sacrifice

Back 67

sacrificed animals. ate some of the animals. religion argued that it could freely exercise its religion. city argued that they had an interest in banning it b/c of animal cruelty, grotesque nature of the sacrifice.

trial court found for the city. appellate court affirmed. went to SCt and found it unconst. b/c it targeted a particular religion. the law wasnt narrowly tailored- overbroad and under inclusive. could have protected its interest in animal cruelty without mandating the blanket prohibition that it enacted- made it more narrowly tailored.

Front 68

Freedom of Speech notation

Back 68

can protest/demonstrate using freedom of speech, but the speaker has a right to speak without being disruptive. others have a right to listen to the speech

Front 69

standard to be applied in cases involving religion

Back 69

strict scrutiny- means must be narrowly tailored to justify the goal.

note- can't place court/state convenience against freedom of religion.

Front 70

Braunfeld v. Brown
Religious Freedom in employment

Back 70

Jewish kosher butcher closed on saturday for his religious purposes. state required him to be closed on sunday, but he said that it would hurt his business.

SCt held that the free exercise rights of the butcher had not been violated. but the court said that the state could give exemptions for people whose religion required them to be closed on other days.

Front 71

MD religious history

Back 71

MD was founded as a haven for religious toleration. many courts look to the history of the state, area, concept, etc. and take that into consideration in making a decision- legal and historical history

Front 72

Snyder v. Holy Cross Hospital

Back 72

case involving autopsy, father- othro jew, whose son died, didnt want an autopsy. court of app ruled against the father saying that the state had a state interest to have the autopsy. legislature stepped in to prevent this and permitted autopsies to be denied for religious purposes unless there is a substantial interest of the state, such as a criminal investigation

Front 73

Hypo- Religious/Employment

Back 73

what if Md passed a law that you can't crab on sunday b/c they want rest.

state's interest is to protect a day of rest. the justification is that they want to have some quiet and no activity- part of the christian principle b/c its supposed to be good for you, so the state has an obligation/police power to regulate activity and promote the well being of its citizens

if this law is passed, what economic group will be disadvantaged? 7th day adventists. many of them are crabbers, whose sabbath is saturday vs. sunday. so the proposal was denied.

Front 74

Sherbet v. Verner
Religion/Employment

Back 74

lost her job b/c she couldnt work on saturdays b/c of religion. couldnt find another job. denied unemployment b/c she refused to take jobs that she was offered b/c of her religion. this denial led to her loss of state benefit. this violated her rights. the govt must respect her religion.

this case enunciated strict scrutiny standard in the religious context for the 1st time (compelling state interest, practice has to be narrowly tailored, and least restrictive way of achieving the goal)

Front 75

Larson v. Valenti

Back 75

passed registration/disclosure acts on charitable donations to prevent fraud (contribution of over 50% of members then they were exempt). the law was challenged. court struck down the 50% rule as preferential b/c you cant have preferential treatment of religions

Front 76

Amish case

Back 76

not all burdens on religion are unconst. for social security...

Front 77

Types of Content Based Restrictions (Symbolic Speech)

Back 77

Viewpoint Restrictions
Subject Matter Restrictions
Speaker Restrictions
Communicative impact on the audience

content based restrictions are subject to strict scrutiny

Front 78

Viewpoint Restrictions
Content Based

Back 78

Restrictions placed on a particular viewpoint violate the 1st Amend.

Kingsley v. Regents- held that a state may not deny a license to a film because that pic advocates an idea, that adultery under certain circumstances may be proper behavior

Bradenburg v. Ohio- made clear that in the absence of incitement to imminent lawless action, mere advocacy of violent overthrow of democracy or capitalism couldn’t be made a crime

state can't discriminate based on differing viewpoints

Front 79

Subject Matter Restrictions
Content Based

Back 79

generally scrutinized strictly by the court

R.A.V. v. St. Paul- court subject the ordinance (forbade fighting words that were only addressed to the disfavor race, color, religion) to strict scrutiny

Jacksonville case- the court invalidated a ban on the display of nudity on all drive in theaters

Front 80

Subject Matter
Burson v. Freeman

Back 80

court upheld against 1st amend challenge a state law prohibiting the solicitation of votes, the display of political posters or signs, and the distribution of political campaign materials within 100 feet of the entrance of a polling place. 1st amend’s hostility to content based regs extends not only to a restriction on a particular viewpoint, but also to a prohibition of public discussion of an entire topic. To survive strict scrutiny, a state must do more than assert a compelling interest, but demonstrate that its necessary to serve the asserted interest. State has asserted that the exercise of free speech rights conflicts with another fundamental right- to vote in an election free from the taint of intimidation and fraud. Court found that the § doesn’t constitute an unconstitutional compromise. Kennedy wrote a concurrence stating that there is a narrow area where 1st amend permits freedom of expression to yield to the extend necessary for the accommodation of another const. right

Front 81

Symbolic Speech- Content Based-Subject Matter

Republican Party of Minnesota v. White

Back 81

court invalidated a provision of the Minnesota code of judicial conduct that stated that a candidate for judicial office shall not announce his views on disputed legal or political issues. The § prohibits speech on the basis of its content and burdens a category of speech that is at the core of the 1st amend freedoms. Strict scrutiny should be applied. Court found that its not narrowly tailored and is not a compelling state interest as strict scrutiny requires. Kennedy concurred but stated that content based speech restrictions that don’t fall within any traditional exception should be held invalid per se without undergoing the strict scrutiny test. Stevens dissented- difference between legislators and judges. Ginsburg dissented- judges aren’t political actors

Front 82

Symbolic Speech- Content Based- Communicative Impact on Audience

Back 82

o Laws barring speech that is deemed likely to cause a certain response in the audience based on its content are typically viewed as skeptically as direct content restrictions

o Boos v. Barry- court struck down a provisions of DC code prohibiting display within 500 feet of a foreign embassy of any sign tending to bring that foreign govt. into public odium or public disrepute. Although the provision wasn’t viewpoint based it was content based because the govt. has determined that an entire category of speech critical of foreign govt. is not to be permitted. Subject to strict scrutiny, but failed b/c it wasn’t narrowly tailored to any interest protecting the dignity of foreign diplomatic personnel.

Front 83

Symbolic Speech- Content Based- Speaker restrictions

Back 83

A speaker’s identity can sometimes function as a proxy for viewpoint or subject matter and when it does, the court typically applies the same strict scrutiny to speaker-based restrictions as it applies to other content restrictions

Front 84

Symbolic Speech- Content neutral

Back 84

o Aimed at a wider range of behavior that has only an incidental impact on speech
o Aims at expression, but for reasons unrelated to its content
o Time, place, manner regulations of speech in the public forum represent the largest single example of this type of content neutral law
o Intermediate scrutiny is used for content neutral laws

Front 85

Reasons for treating content based v. content neutral regulations

Back 85

o Purpose- are content based laws more likely than content neutral laws to reflect governmental disapproval of the ideas expressed?
o Effect- sometimes it can be over inclusive
o Political safeguards – are content neutral laws less likely to require judicial intervention because the political process itself will help protect unpopular speakers against such laws?

Front 86

Symbolic Speech- Total Medium Bans

Back 86

o Such laws involve discrimination on neither the basis of viewpoint nor subject matter, yet do single out for special treatment activities of 1st amendment concern
o Court cases have struck down total medium bans focusing on their negative effects on the distribution of speech, treating them as suspect

Front 87

Content Neutral/Symbolic Speech

US v. O'Brien

Back 87

case decided by the Supreme Court of the United States that ruled that a criminal prohibition against burning a draft card did not violate the First Amendment's guarantee of free speech. Though the Court recognized that O'Brien's conduct was expressive as a protest against the Vietnam War, it considered the law justified by a significant government interest that was unrelated to the suppression of speech and was tailored towards that end.

The law did not restrict speech on its face, but instead only addressed conduct that was not necessarily expressive, and applied without regard to whether the draft card was destroyed in private or before an audience.

can only prohibit time, manner, and place. this was considered a freedom of speech, not expression, therefore the state can regulate it.

Front 88

Incidental restrictions on expression

Back 88

• Arcara v. Cloud Books, Inc. (1968) - a law defined places of prostitution, assignation and lewdness as public health nuisances . There was a sex book store, and it was found that sexual acts were committed in and around the book store. It was shut down because of it was considered a nuisance . The store claimed that closing the book store due to its context which was protected by the freedom of speech was unnecessarily broad, and the highest state court agreed. However the Supreme court ruled that sexual activity is not a form of protected expression.

Front 89

Is Flag Burning a Protected form of Expression?

Back 89

Yes, it is.

1. Street v. New York (1969)
• Street burned a flag after hearing about a civil rights leader was shot by a sniper
• The court did not reach the question whether it was constitutional to ban flag burning as a means of political protest, funding instead that, on the record below, the law had been unconstitutionally applied to permit punishment of Street merely for speaking out against the American flag
• Holding - the conviction could not be justified on the theory that by making his remarks about the flag appellant failed to show that respect for out national symbol.

2. Smith v. Goguen (1974)
• The court reversed a conviction under a Mass. Law making it a crime to publicly mutilate, trample, upon, deface or treat contemptuously the flag of the united states,
• The D wore a small flag sewn into the seat of his pants
• The court found that D could not be convicted because of the vagueness of the law
3. Spence v. Washington (1974)
• The court overturned a conviction under a Washington Statute prohibiting improper use of the flag.
• Spence placed a US flag in the window of his apartment with a taped Peace symbol on it. He did it to protect the invasion of Cambodia.
• Holding - the statute unconstitutional as applied to appellant's activity. It was peaceful protest.
• The court notes two factor's 1. the speakers intent and the context indicating that the message would be understood by the audience.

Front 90

Symbolic Speech- Texas v. Johnson

Back 90

• Johnson burned an American flag and was convicted of desecrating a flag in violation of Texas law.
• Does the State's interest in preserving the flag as a symbol of nationhood justify Johnson's conviction?

• If the conduct is expressive, then the state's regulation is related to the suppression of free expression.(O'Brien)
• If the state's regulation is not related to expression, then the less stringent standards will be used.
• The protection by the 1st amendment is not in speech alone, some conduct possess sufficient communicative elements to bring the first amendment into play.
• An intent to convey a particular message was present and the likelihood was great that the message would be understood by those who view it.
• It is not simply the verbal or nonverbal nature of the expression, but the governmental interest at stake, that helps to determine whether a restriction on that expression is valid. There fore the applicability of O'Brien's relatively lenient standard to those cases in which the governmental interest is unrelated to the suppression of free expression.

Holding/ Reasoning
• Johnson did burn the flag to express the message of his discontent of the republican party.
• Burning of the flag is permitted to dispose of the flag when it is torn or dirty, but if it is politically charged with the act of burning a flag it would seriously offend. Therefore Texas law is not thus aimed at protecting the physical integrity of the flag in all circumstance, but is designed to protect it only against impairments that would cause serious offense .
• Strict scrutiny is applied because Texas seeks to restrict the message.
Decision ;
The statute is unconstitutional

Front 91

Symbolic Speech- Flag Burning

United States v. Eichman

Back 91

(1990) - the court struck down the federal law of 1989.
• The government argued that unlike the Johnson law, the new federal law did not target expressive conduct on the basis of the content of it s message, that the federal law was designed to safeguard "the physical integrity of the flag under all circumstances"
• Although the law does not contain an conduct-based limitation, it is clear that the government asserted interest is "related to the suppression of free expression"
• The governments interest in protecting the physical integrity of a privately owned flag rests upon a perceived need to preserve the flags 'status as a symbol of our nation and certain national ideas.

Front 92

Symbolic Speech- Nude Dancing

Barnes v. Glen Theatre, Inc.

Back 92

FACTS:
• The challenge was brought by owners of Kitty Kat Lounge and the owner of an Adult book store
• The statute read " a person who knowingly or intentionally , in a public place appears in a state of nudity public indecency a misdemeanor and that nudity means the showing of the human male or females genitals, pubic area or buttocks with less than a fully opaque covering of any part of the nipple.
• The state interpreted this statute to mean public accommodations.


Rule
O'Brien Test
• The O'Brien test was applied because the Indiana statute was content-neutral and had only an incidental effect on expression. - the state did not ban nude dancing, but banned nudity across the board.
Holding
The court vote 5-4 held that the Indiana statutory requirement that the dancers in the establishment involved in this case must wear pasties and G-string does not violate the First Amendment.

Holding
• The statute is justified despite its incidental limitation on some expressive activity,
• The public indecency statute is clearly within the constitutional power of the state and furthers substantial governmental interest.

Decision:
Upheld the statute, it was constitutional

Front 93

2nd effects doctrine- Symbolic Speech

Young v. American Mini theatres.

Back 93

1st amend challenge brought by adult film business against a Detroit city ordinance regulating the zoning of adult businesses. S Ct stated that the regulation was content neutral and only concerned with secondary effects- increased crime, decreased property values. Took the regulation out of the purview of 1st amend. restriction was upheld. Allows legislatures/councils to claim laws that have an impact on free expression are in fact content neutral and not intended to suppress freedom of speech, but rather to prohibit nude dancing or other adult related things

• City of Renton v. Playtime Theatres (pg. 50, 312)
o Court extended 2nd effects doctrine to allow city officials to rely on studies suggesting negative secondary effects
• Barnes v. Glen Theatre- doctrine was further expanded. Indecency statute banned public nudity. Law justified based on 2nd effects doctrine. Taken away from original application of zoning cases and place it on a direct restriction on exotic dancing
• Sct upheld city ordinance that prohibited nude dancing – specific aim at nude dancing, not just public nudity

Front 94

Commercial Speech

Back 94

• This section deals with commercial advertising or speech that merely proposes a commercial transaction that b/c of its content, was once treated wholly outside of the 1st amendment
• This form is speech is now considered to be protected, but not fully so it is therefore “lower value” speech not entitled to the high degree of protection afforded to “core” speech
• Some justices don’t agree with this categorization and should be protected just as the other forms of speech, but these justices are in the minority

• Valentine v. Chrestensen
o Court stated that the 1st amendment imposed no restraint on govt. as respect purely commercial advertising
o Ban on distribution of a handbill advertisement was upheld b/c it was a business activity rather than political speech
• Pittsburgh Press v. Pittsburgh Human Relations Comm’n
o Upheld a sex discrimination ordinance prohibiting newspapers from listing employment advertisements in gender-designated columns
• Bigelow v. VA
o Held that the VA could not criminalize advertisement in VA newspapers of the availability of abortions in NY

Front 95

Commercial Speech

VA Pharmacy Board v. VA Citizens Consumer Council

Back 95

• The Commonwealth of Virginia had a statute which prohibited pharmacists from advertising prescription drug prices, providing that those who did would be guilty of “unprofessional conduct”. Drug prices varied throughout the state, as the District Court found. The law was challenged by an individual consumer and consumer groups, who brought suit in the United States District Court for the Eastern District of Virginia. Public Citizen's Litigation Group argued and won the case before the Supreme Court.

Issues
• Whether there is a 1st amendment exception for commercial speech
• Whether speech which does no more than propose a commercial transaction is so removed from any exposition of ideas and from truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of govt.

less about truth, more about a profit. commercial speech is not so far removed that it shouldn't be protected. not given full protection.

Front 96

Commonsense difference between commercial and other speech

Back 96

o in VA Pharmacy, the court set forth 3 important limitations on protection for commercial speech: free speech doesn’t extend to
 advertisements for illegal transactions
 factually false or misleading advertisements
 commercial speech doesn’t enjoy special procedural protections such as the ban on prior restraint
o hardiness- must not fear that commercial magazines and newspapers will cease publication for fear of govt. regulation b/c they are in the business for profit
o verifiability- the seller can check his facts more easily than a 3rd party

Front 97

Commercial Speech after VA Pharmacy

Back 97

o Linmark Associates v. Willingboro
 Court struck down an ordinance prohibiting the posting of real estate for sale and sold signs that was intended to stem the flight of white homeowners from a racially integrated community
 Court found that the prohibition prevented its residents from obtaining vital information they will need in determining where to live and raise their families

Front 98

Commercial Speech- Regulating the legal profession

Back 98

o Bates v. State Bar of Arizona- court held that states couldn’t prohibit lawyers from price advertising of routine legal services. The advertising didn’t involve advertising relating to the quality of services or in person solicitation of clients
o Ohralik v. Ohio State Bar- court sustained a lawyer’s suspension from practice violating antisolicitation rules, who had solicited contingent fee employment from accident victims. In majority opinion, the state may proscribe in person solicitation for pecuniary gain under circumstances likely to result in adverse consequences without a showing of actual harm and with some leeway for prophylactic rules
o In re Primus- court set aside disciplinary action in a case involving an attorney who did volunteer work for the ACLU. Attorney wrote a letter to a woman who had been sterilized about being in a lawsuit against a dr. who has allegedly participated in a program sterilizing pregnant mothers as a condition of continued receipt of Medicaid benefits. It was found that the letter fell within 1st amendment protection reserved for associational freedoms. A state cant punish a lawyer who advises a lay person of her legal rights and discloses in a subsequent letter that free legal assistance is available from a non profit organization
o In re RMJ- court held unconstitutional a range of Missouri restrictions on lawyer advertising that limited such advertising to certain categories of info and in some instances specified language
o Zauderer v. Office of Disciplinary Counsel- ohio attorney used an illustration in an advertisement. Court struck down the ban on using illustrations in ads. The mere possibility that some members of the public may find advertisement embarrassing or offensive cannot justify suppressing it. Rejected Ohio’s attempt to forbid solicitation regarding specific legal problems
o Shapero v. Kentucky Bar- struck down a flat ban on direct mail solicitation by lawyers that was targeted to specific recipients known to need legal services of a particular kind. The court found the state’s argument of not wanting potential clients from feeling overwhelmed as insufficient. Dissent (O’Connor) expressed some concerns about the entire venture into the commercial speech area

Front 99

Commercial Speech

Central Hudson Gas v. Public Service Comm’n

Back 99

Facts
• Comm’n ordered electric utility Co. in NY to cease all advertising promoting electricity use b/c it found connection btwn increase use resulted, which led to decrease in limited fuel sources necessary to provide winter supply. 3 years later the supply problem evaporated, but ban continued.
• Central opposed cont’n of ban on promo advertising. Comm’n upheld ban. Central challenged in State Ct. St Ct and intermediate App Ct upheld Comm’n order; Ct of App affirmed. USSCt Reversed.
Issue
• Whether New York Public Service Comm’n regulation that completely bans promotional advertising by an electric utility violates the 1st Amend?

• Govt has total power to suppress or regulate commercial speech. Const provides less protection to commercial vs. other forms of expression. The level of protection turns on nature of expression and Govt Int served by the regulation.
• 1) Is Commercial speech neither misleading or concerning illegality, (Govt power is limited);
• 2) Has State asserted Subst’l interest to be achieved by restriction on commercial speech. (That regulation must be proportional to the interest). If yes to 1 and 2, then:
• 3) Does Reg directly advance GI; {Limitation on Expression must be designed carefully to achieve Govt goal}–measured by: a) restriction must directly advance state interest involving; and b) it cannot be upheld if it provides ineffective or remote support for the Govt purpose.
• 4) Is the Reg more extensive than necessary to accomplish the Goal?
o If you cant meet any one of these standards, the regulation is unconstitutional

Holding
• Yes, the Comm’n Order violates 1st b/c it is more extensive than necessary to accomplish St Int-energy conservation.
Rule
• 1st and 14th. Comm. Speech = “related solely to the economic interest of the speaker and its audience?

Front 100

Commercial Speech

44 Liquormart, Inc. v. Rhode Island

Back 100

Facts
• Petitioners are 44 Liquor and Peoples Liquor stores (RI licenses retailers). Peoples operate in Mass. as well and sells to RI customers. Peoples advertise its prices in MA, but not RI b/c its not allowed in RI. 1991 44 placed an ad in RI newspaper and competitors complained. The ad did not state a price, but a bargain price cold have been inferred from the ad. "WOW"
Issue
• Whether RI’s ban against alcoholic beverage pricing ads, when accurate, constitutes an UnConst’l infringement of the 1st Amend?
Holding
• Yes, Rhode Island’s statutory total prohibition against advertising to the public accurate information about retail prices of alcoholic beverages is invalid.
-when a state entirely prohibits the dissemination of truthful non misleading commercial messages for reasons unrelated to the preservations of a fair bargaining process, there is a far less reason to depart from the figures review that the 1st amendment generally demands
-its the states interest in protecting the consumers from commercial harms such as deception and overreaching that provides the typical reason why commercial speech can be subject to greater govt. regulation than noncommercial speech

Front 101

commercial speech regulation after 44 liquormart

Back 101

• What standard of scrutiny
o A majority of the justices refuse to abandon the central Hudson test
o After liquormart, the stringency of a standard of review depends more on its application than its verbal formulation: it is a function of the factors that must be examined, the strength of the state justifications required

Front 102

Freedom of Press

Back 102

• Something overbroad or too vague is unconst.
• Thing to remember- who has freedom of the press?
o The press- people who own the press. The owners. The people of this country are not the owners
o The owner can say whatever they want
• Freedom of speech vs. press can overlap.
• General agmt that most prior restraints are forbidden
o Prior restraints is something that hinders or prohibits or discourages speech in advance

Front 103

Impermissible Methods of restricting Speech: Overbreadth, Vagueness and Prior Restraint

Back 103

• This section turns to a last set of doctrine limiting how government may regulate speech: The doctrine of overbreadth, vagueness and prior restraint.
• An overbroad law sweeps in too much speech
• A vague law is unclear about what speech is sweeps in
• A prior restraint is premature even if the if publication might be subsequently punished

Front 104

Freedom of Press- Overbreadth

R.A.V. v. City of Paul

Back 104

1. Gooding v. Wilson - where court invalidated a conviction of an antiwar demonstrator at an induction center who in a scuffle with the police. He said "White son of a bit, I'll Kill you, He was convicted under GA statute using "opprobrious worse tending to cause a breach of the peace
i. Holding: Swept in too much [protected speech along with fighting words.
ii. Chaplinsky - It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute.
iii. The courts failed to narrowly construe the opprobrious words statute to limit its reach to fighting words. And the court voided the statute on its face.

2. R.A.V. v. city of Paul - Justice's white concurrence stated that the law barring racist symbols causing anger or alarm was overbroad because it was not limited to fighting words.
3. The distinctive feature of overbreadth - It results in the invalidation of a law on its face rather than as applied to a specific person. If this is done the court just judges each case by a case-by case basis. However, overbreadth strikes down the statute completely.
4. Overbreadth is an exception to the usual rules of standing - in overbreadth analysis challengers are in effect permitted to raise the right of third parties (ordinarily, challengers are not permitted to raise the rights of their parties)
5. The courts are motivated for a concern with the deterrent of chilling effect of the overbroad statute on third parties not courageous enough to bring the suit,
i. An overbreadth ruling is designed to remove that deterrent effect on the speech of those third parties.
6. Overbreadth analysis is more attractive to justices because it holds out the post that narrower means may be available to achieve legislative objective, it conveys the appearance of intervening in legislative policy choices far more marginally than outright balancing would.

i. United States v. Robel - invalidated a law which made it a crime for communists members to be employed in a defines facility because it swept passive and active members alike.

Front 105

Limits on Overbreadth

Back 105

ii. Broadrick v. Oklahoma - Broadrick challenged an OK statute restricting political activities by classified civil
servants.
1. It prohibited employees from taking part in the management or affairs of any political party or in any political campaign, except to exercise his right as a citizen privately
2. Decision: The court rejected the challenges and upheld the statute
3. Rule: a person to whom a statue may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in other

10. The consequence of out departure from traditional rule of standing in the first amendment area is that any enforcement of a statue thus placed at issue is totally forbidden until and unless a limiting construction or partial invalidation so narrows it as to remove the seeming that o deterrence to constitutionally protected expression.
i. Facial overbreadth has not been invoked when a limiting construction has been or could be placed on the challenged statute.
11. Overbreadth of a statue must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep.
12. Justice Brennan Concurrence - the court makes not effort to define what it means to be substantially overbreadth. It is an unclear standard.
i. The court offers no rationale to explain its conclusion that, for the purposes of overbreadth analysis, deterrence of conduct should be viewed differently from deterrence of speech, even where both are equally protected by the 1st amendment.

Front 106

Overbreadth

NY v. Ferber

Back 106

the court found no substantial over-breadth in the New York child pornography law
i. The claim was that N.Y.'s law was unconstitionally overbroad because it forbid the distribution of material with serious literary or educational value which does not threaten the harms sought to be combated by the state
ii. The highest court in N.Y. was concerned that some protected expression, ranging from medical text books to National Geographic would fall prey to the statute,
iii. The S.C. Ruled - this issue is such a small part of the large amount of corruption out there, We seriously doubt that these application of the statute amount to more than a tiny fraction of the materials within the statute's reach. It is not substantially overbroad and whatever over breadth exist should be cured through a case by case analysis

15. Ashcroft v. Free Speech Coalition - the court found that the child Pornography Prevention Act of 1996 was unconstitutional for substantial over breadth

16. Virginia v. Hicks - the court rejected a 1st amendment challenge to a public housing development's policy controlling entry to its premises

Front 107

Limits on Over breadth analysis: incapable of narrowing construction

Back 107

18. Brockett v. Spokane Arcades, Inc. (1985) - held a Washington obscenity law unconstitutional because it defined prurient interest as that which incited lasciviousness or lust, a definition broad enough to encompass "normal" as well as "shameful" sexual responses.
i. Despite the over breadth fining , the court declined to permit an individual whose own rights were violated under the statute, to invalidate the law on its face
ii. Decision: Upheld the law - but limited to "as applied on a case-by case situation"
iii. Holding: the parties challenging the statute are those who desire to engage in protected speech that the overbroad statute purports to punish, there is no want of property party to challenge the law and it may forthwith be declared invalid to the extent it reaches too far, but otherwise left intact.
19. Schaumburg v,. Citizens for Better Environment - the court continues to employ facial invalidation when a statute is rotten at its very root. The court invalidated several law designed to limit charitable solicitation to organization with low overhead expenses.
i. The court struck down an overboard ordinance barring door-to-door and on-street solicitation of contributions by charitable organizations that did not use at least 75% of their receipts for "Charitable purposes". These charitable purposes excluded solicitation expenses , Because of this rule, The citizens for better environment was denied permission to solicit contributions.
ii. Decision - the court facially invalidated the rule.
iii. The state's interest were - to protect the public form fraud, crime, and undue annoyance were.
iv. The court found these reasons to be "substantial"
v. The flaw in the law is not simply that it includes within its sweep some impermissible applications, but that in all its application it operates on a fundamentally mistaken premise that high spoliation costs are an accurate measure of fraud.

Front 108

Freedom of Press
Vagueness

Back 108

1. If a statute is vague it does not - Sufficient definite warning as to the proscribed conduct when measured by common understanding and practices.
1. A law will be void on it s dace for vagueness if persons of common intelligence must necessarily guess at its meaning and differ as to its application
2. This is to ensure fair notice to the defendant.
2. The finding of 1st amendment vagueness has greater bite than of due process vagueness.
1. Vagueness challenges in the 1st amendment context like over breadth challenges, typically produce facial invalidations, while statute found vague as a mater of due process typically are invalidated as applied to a particular defendant.

Front 109

Vagueness Cases

Back 109

3. Coates v. Cincinnati (1971) - a ordinance made it illegal for three or more person to assemble any of the sidewalk and there conduct themselves in a manner annoying to persons passing by,
1. Holding : The court found the ordinance unconstitutionally vague because it subjects the exercise of right of assembly to an unascertainable standard
2. And "annoying content" meant that no specifics of conduct were stated.
3. The majority looked at it on its face, rather than as applied.
4. National Endowment for the Arts v. Finely (1998) The court upheld the statute. Does the first amendment prohibition on vagueness extend to vague condition on public subsides for speech? NO
1. There was a challenge to a statute authorizing arts grants by the NEA that required chairperson of the NEA to ensure that artistic excellence and artistic merit are the criteria to judge the art,
2. Holding: There is a difference between an art contest and criminal statutes. There would be vagueness concerns if it were in criminal law.

Front 110

Prior Restraint

Back 110

1. Focuses on the means of restraining free speech. The prior restraint statute may be struck down even though the particular expression involved could validly be restricted through subsequent criminal punishment or civil liability.
2. Licensing- this gives extensive discretion on public officials creating the risk of selective content -discriminatory enforcement.

can restrain something if it is time, place, and manner

9. The Doctrine of Prior Restraint - focuses on the largely irrelevant timing of the restraint to the detriment of attention to those flaws that are the actual source of the objection.

Front 111

Prior Restraint Cases

Freeman v. MD

Back 111

Freeman v. Maryland (1965) - The challenger to a "movie censorship ordinance" he exhibited a movie without first submitting the picture to the state censorship board.
1. He was convicted because of his failure.
2. He argued that the censorship was invalid prior restraint.
3. Holding: the court found the statute unconstitutional especially because of its long time delays for the review process. The state is not free to adopt any procedure it pleases for dealing with obscenity without regard to the possible consequences for constitutionally protected speech.
a. The burden of proving that the film is unprotected expression must rest on the censor
b. The state may require advance submission of all films in order to proceed effectively to bar all showings of unprotected films, the requirement cannot be administered in a manner which would lend an effect of finality to the censor's determination when a filing , constitutes protected speech
c. The procedure must also assure a prompt final judgment decision to minimize the deterrent effect of an interim and possibly erroneous denial of a license
• Notes- subjected to an unconstitutional prior restraint. Failed to provide adequate safeguards to determine the film’s unsuitability

6. FW/PBS, Inc. v. Dallas(1990) - the opinion above relied on this case -
1. Holding that an ordinance requiring the licensing a sexually oriented businesses was an unconstitutional prior restraint in violation of Freedom because there was not "effective limitation on the time within which the licensor's decision must be made" and because the ordinance failed to prove "an avenue for a prompt judicial review"

Front 112

Exception to Prior Restraint

Back 112

7. Thomas v. Chicago Park District (2002) - (EXCEPTION)
1. Holding ; Freeman v. Maryland's procedural requirement did not apply to a "municipal park ordinance requiring individuals to obtain a permit fore conducting large scale events. The reasoning was a fear of amplified sound. The park would have a decision for the permit in 14 days
2. Freedman is inapposite because the licensing scheme at issue here is not subject-matter censorship but content-neutral time, place and manner regulation of the use of a public forum.

Front 113

Prior Restraint

Near v. Minnesota

Back 113

Facts:
• A Minnesota law authorized abatement as a public nuisance, of malicious, scandalous and defamatory newspaper or other periodical.
• A prosecutor wanted to abate publication of "The Saturday Press".
• The press published articles on Jewish gangsters who were in control of gambling and racketeering, and the police were not performing their duties.
• The State court allowed for the abate of the article.
Issue: Whether a state in authorizing such proceeding is consistent with the conception of the liberty of the press.
Rule:
• Public Officers whose character and conduct remain open to debate and free discussion in the press find their remedies for false accusations in actions under libel law providing for redress and punishment, and not in proceedings to restrain the publication of newspapers and periodicals.
• The operation and effect of the statute is that public authorities may bring the owner or publisher of a news paper before a judge upon a charge of conducting a business of publishing scandalous matter unless the owner is able to prove that the charges are true and were published in good motive, This is the essence of censorship.
Holding : The statute so far as it authorizes the proceedings in this action to be an infringement of the liberty of the press guaranteed by the 14th amendment
Decision: Reversed, did not uphold the statute.
• Near v. Minnesota: 14th amendment incorporates freedom of the press to make it applicable to the states

Front 114

Freedom of the Press
Truth and Justice

Branzburg v. Hayes

Back 114

o Newspaper reporter had been order to testify about the Id of a drug dealer who had been a suspect. Had written about the dealer without disclosing the name of an informant b/c of safety and the sources would dry up.
o Courts have said that there is no right to withhold such information
o reporters don’t want to be considered part of the prosecutorial team to help uncover evidence for the govt.
o State would argue that the more important factor that the freedom of the press is to solve crime and to track down criminals (freedom of press- right to speech includes right to withhold information)

Front 115

Truth & Justice Cases

Back 115

• Press can criticize a current/ongoing court proceeding (attorneys cannot)
• Bridges v. California- o Reversed contempt orders against publishing criticism of a judge on an opinion
• Irwin v. Dowd- SCt reversed murder conviction b/c there was so much pre trial talk that the Ds pending trial was impossible for him to get a fair trial. Courts have determined that a trial can be televised if the judge wants it to be, but there is no rule for it or against it- up to a discretion of the judge
• Attorneys don’t have to disclose information that they may have from their clients b/c of confidentiality, although reporters do not have such an exception
• Herbert v. Lando- 60 min. the P was a war hero who publicly accused his superiors of covering up atrocities in Vietnam. Did a special on this. Herbert sued for defamation b/c they didn’t consider his state of mind. Does 1st amendment protect a reporters state of mind? SCt found that it didn’t
• Massachusetts case- Charged with rape of 3 minor girls. § required no press of trial b/c minors were involved. SCt held that the 1st amendment was violated. Illegal to exclude the press b/c they had access to public transcript. Interests of the state/b/c of the minor was not substantial enough to outweigh the 1st amendment protections
• Hari Chrisnas- Went into airports to distribute religious literature and solicit donations
o In jurisdiction a § prohibited the sale or distribution of state fairgrounds except particular location. Group claimed 1st amend protections were violated, but Sct found that it was not a violation. Restriction was a valid time, place, manner restraint
• Bd of Ed v. Pico- Removal of textbooks from libraries. Held that local school boards cant remove books b/c they dislike the ideas in the books. If they want to remove the books to prescribe what is fine in politics, religious, nationalism, etc, they cant. Need to have better reasons. They can exclude sexually explicit material or other obscene books

Front 116

Sunday Closing/Blue Laws

Freedom of Religion

Back 116

• In 1961 McGellan v. Md- appellant was convicted of selling random items (looseleaf binder, toy, etc) on a Sunday in violation of the Sunday closing laws. SCt found that their 1st amendment rights hadn’t been violated b/c there was no religious coercion, but rather economic. The blue laws were enacted to fulfill a fully secular purpose.
o Loan dissenter thought that the blue laws were violating the rights of Jews, Seventh Day Adventists, etc who had Saturday rest days vs. Sunday
• 7 states still had blue laws at the time MD repealed their laws

Front 117

School/Compulsory Public Education

Freedom of Religion

Back 117

• Question becomes where is the divisive line between church and state. Most agree that this is the way to go
• Wisconsin v. Yoder- struck down law requiring amsih people from attending school trhgouh 12 grades on the grounds that the state’s interest in having an education wasn’t greater than the amish’s freedom to exercise their religion
• Peirce v. Society of Sisters- SCt struck down law requiring 8th education for all students who had more compelling interest due to religious reasons

Front 118

Zorach v. Clauson

Freedom of Religion

Back 118

Facts
• New York Education Law and the regulations thereunder, New York City permits its public schools to release students during school hours, on written requests of their parents, so that they may leave the school buildings and grounds and go to religious centers for religious instruction or devotional exercises. The same section makes school attendance compulsory; students not released stay in the classrooms, and the churches report to the schools the names of children released from public schools who fail to report for religious instruction. The program involves neither religious instruction in public schools nor the expenditure of public funds.

Legal Theory
• The Court noted that public facilities were not being used for the purpose of religious instruction and that "no student was forced to go to the religious classroom." Writing for the majority, Justice Douglas argued that there was "no constitutional requirement which makes it necessary for government to be hostile to religion and to throw its weight against efforts to widen the effective scope of religious influence."
• No one is forced to go to the religious classroom and no religious exercise or instruction is brought to the classroom

Holding
• Does not violate the establishment clause
• (a) By this system, New York has neither prohibited the "free exercise" of religion nor made a law "respecting an establishment of religion" within the meaning of the First Amendment. Pp. 310-315.
• (b) There is no evidence in the record in this case to support a conclusion that the system involves the use of coercion to get public school students into religious classrooms. Pp. 311-312.

Front 119

Prayer & Bible in Public Schools

Freedom of Religion

Back 119

• These 2 cases were combined: Murray v. Curly & Abington v. Schempp
• Murray v. Curly
o Visited soviet union & flirted with communism
o She was an athiest
o Took her son to a local Baltimore school to enroll him
o Saw prayer going on in the school and sued the city school system
o Case when to the SCt
o Baltimore city had a requirement for prayer in schools
o 1st & 14th amendments had been violated. Rights of non believers were violated if public school prayer was permitted or required. Nothing in the law that prevents religion from being involved in private education. Dissent argued that atheism itself is a religion.
• What about moment of silence? There is debate about this. Some say this is problematic while others don’t. SCt doesn’t permit a moment of silence b/c they believe it is inconsistent with the establishment clause

Front 120

McCreary County v. ACLU of Kentucky
Freedom of Religion

Back 120

• Petitioners put up copies of the 10 commandments, including a citation to the Book of Exodus in their courthouses, readily visible to all in the hallway at the courthouse
Issue:• Whether the petitioners display violates the establishment clause.
Holding: Yes it is in violation.

Front 121

Van Orden v. Perry
Freedom of Religion

Back 121

• Display with primary text of 10 commandments in TX state capital building on a monolith
• Wants to keep separation of church and state, but not cripple the govt. from displaying things that recognize our religious heritage
Issue
• Whether the display is in violation of the establishment clause
Legal Theory
• Lemon test is not useful in dealing with this case
• 10 commandments are religious and still viewed as such, but have a historical meaning
• Moses was also a lawgiver and religious leader
• Simply having a religious content or promoting a message consistent with religious doctrine doesn’t run afoul of the EC
Holding
• The display doesn’t violate the EC- it is passive enough and has historical significance

Front 122

Public Financial Aid to Religious Institutions

Back 122

• Court’s first decision in the area of financial aid to religious institutions was in the 1940s
o Bradfield v. Roberts- sustained a federal appropriation for the construction of a public ward to be administered as part of a hospital under control of the sisters of a Roman Catholic church. Didn’t reach the issue of financial aid, b/c they held the hospital wasn’t a religious body

Front 123

Everson v. Board of Education
Aid to religious Institutions

Back 123

Facts
• NJ enacted a law that gave School Dist authority to make rules and K’s pertaining to the transportation of children to and from schools.
• Bd of Ed authorized reimbursement of money paid by parents for bus transportation of their kids who rode public transit to school.
• Some of this money was paid for the transportation of some kids to parochial schools–Catholic.
Issue
• Whether the NJ statute or the Bd resolution, authorizing the reimbursement of tax funds to parents with with students of parochial schools, unconstitutionally regulates the establishment of religion?• No, under the facts the 1st Amend does not bar NJ from spending tax funds to pay the bus fares of parochial students under a general program that reimburses the fares of students who attend other schools. As a general program NJ law is neutral in its application.

Front 124

Mueller v. Allen

Back 124

• A Minnesota law allowed parents to deduct from their state income taxes any expenses from school tuition, textbooks, or transportation for their children. This covered elementary and secondary students and was available regardless of whether the children attended public or private (including parochial) schools. The Court was to decide whether this offered unconstitutional aid to religious schools.
Issue
• Whether the deductions are in violation of the EC
• The court allowed the deductions to be made by parents with students attending religious schools

Front 125

Everson v. Mueller
Freedom of Religious

Back 125

there is a separationist view of church and state.
o No financial benefit could flow from the government to religious institution

Front 126

Board of Education v. Allen
Freedom of Religion

Back 126

articulate an alternative more inclusionary view
o Religious individual or institution may receive unlimited government financial aid so long as they do so on the dame terms as other comparable beneficiaries.
• The latter approach would conceive neutrality under the Establishment Clause as requiring equal access for religion not a wall of separation.

Front 127

Walz v. Tax Comm'n (1970)
Freedom of Religion

Back 127

upheld a state tax exemption for real or personal property used exclusively for religious educational or charitable purposes.
b. The tax exemption conferred "indirect economic benefit upon churches but emphasized that the state had granted exemption to all houses of religious worship within a broad class of property own non profit corporations

Front 128

Wildmar v. Vincent (1981)
Freedom of Religion

Back 128

the court struck down a state university ban on the use of its facilities for pray and religious discussion by student groups. The court found that equal access does not violate the Establishment clause - in applying the effect part of the Lemon Test - he instituted that any aid to religious groups from a policy of nondiscrimination against religious speech would be only incidental because an open forum in a public university does not confer any imprimatur of state approval religious sects.

Front 129

Zelman v. Simmons - Harris (2002)
Freedom of Religion

Back 129

• In one of its most important establishment clause cases in a century, a divided Court upheld an Ohio school voucher plan and removed any constitutional barriers to similar voucher plans in the future.
Used the 5 part test Under the Private Choice Test developed by the court, for a voucher program to be constitutional it must meet all of the following criteria:
• the program must have a valid secular purpose,
• aid must go to parents and not to the schools,
• a broad class of beneficiaries must be covered,
• the program must be neutral with respect to religion, and, there must be adequate nonreligious options.

Front 130

Snyder v. Westborough Baptist Church

Back 130

pickets military funerals with signs saying "god loves american soldiers"- protesting homosexuals in the military. sued the church for IIED and invasion of privacy. this is before the supreme court at this time. issue is over freedom of speech and practicing faith.

very high threshold in this case.

Front 131

University of California Hastings School of Law case to go before the SCt in April 2010

Back 131

Univ of Cali Hastings College of Law- prohibited a Christian Legal Society from organizing, using classroom space b/c they limited its membership for their officer positions by being Christian and that they weren't going to have any relations outside of marriage.

Front 132

Stone v. Gram

School Prayer

Back 132

posted copy of 10 commandments in every classroom in Kentucky school. the school supervisors argued that these posters were purchased with private funds and put in classrooms in public schools. the posters stated at the bottom something to the effect of it had historical background in the development of this country. the SCt found this unconst. b/c there was no secular legislative purpose. there were 4 dissents in this case. rehnquist said that just b/c there is an overlap in religious purpose and historical/legislative purpose, doesn't render the item unconstitutional

Front 133

Widmar v. Vincent

Religion/School

Back 133

refused access to the university to a group who planned to conduct religious services on campus b/c they had a compelling interest to keep state and church separate. the court found that the university kept an open forum and so long if there was no discrimination in groups, then it is fine to allow them on campus

Front 134

Religion/School Prayer Campaign

Back 134

launched nationwide campaign for federal amendment to permit prayer in public schools in 1982 (jerry falwell and senator helms)

it never passed. others have attempted to have this passed as well.

Front 135

Wallace v. Jaffrey

Religion/Schools

Back 135

statute allowed a 1 min period of silence in all schools for meditation. SCt found that this was unconst. b/c it clearly violated the establishment clause

Front 136

MD Annotated Code 7-104

Back 136

provides for silent meditation in schools in the mornings for 1 min

praying or reading holy scripture in school is permitted

this has never been challenged

Front 137

Santa Fe School Dist v. Doe?

Back 137

prayer done before high school football games violated the establishment clauses b/c they amounted to public speech, on govt property, at govt sponsored event. this was govt endorsement of religion by the prayer

Front 138

School Prayer

Back 138

• If school prayer is allowed, a child who doesn’t want to pray may feel left out
• If school prayer is allowed, it may promote one particular religion over another, therefore leading to establishment
• Can’t have a moment of meditation/contemplation because it- still creates a chilling effect on those students who don’t want to pray or meditate
• Opponents of school prayer argue that a moment of silence can be done on students own time, not at a pre-set time for the school

Front 139

Everson v. Board of Education
Religion in Schools

Back 139

o The SCt allowed reimbursement for parochial school students using transportation, as well as public school students, because they decided that the 1st Amend does not bar NJ from spending tax funds to pay the bus fares of parochial students under a general program that reimburses the fares of students who attend other schools. As a general program NJ law is neutral in its application.

Front 140

Mueller v. Allen
Religion in Schools

Back 140

o State mandated that textbooks be given to all students, public and private
o Court held that this didn’t violate the establishment clause b/c this is neutral
o Questions to ask:
 Does the law either promote or inhibit religion?- if the answer is yes, then the law is unconstitutional
 Does it have a primary secular purpose? – if the answer is yes, then the law is constitutional

Front 141

Walz v. Tax Commission
Establishment Clause

Back 141

o In 1970, NY put a property tax exemption on religious organizations
o Taxpayer claimed that the exemption violated the 1st amendment
o Held that the legislative purpose of the exemption wasn’t an advancement or inhibition of religion

Front 142

Lemon v. Kurtzman
Religion in Schools

Back 142

o Supreme Court of the United States ruled that Pennsylvania's 1968 Nonpublic Elementary and Secondary Education Act, which allowed the state Superintendent of Public Instruction to reimburse nonpublic schools (most of which were Catholic) for teachers' salaries who taught secular material in these nonpublic schools, secular textbooks and secular instructional materials, violated the Establishment Clause of the First Amendment.
o Statute must meet 3 criteria in order to be constitutional (if it fails one prong, then it is unconstitutional)
 The government's action must have a secular legislative purpose;
 The government's action must not have the primary effect of either advancing or inhibiting religion;
 The government's action must not result in an "excessive government entanglement" with religion.
• This 3rd prong is entirely subjective, thereby giving the SCt the ability to find the decision they want by applying the rule as they see fit (according to Professor’s theory)
o MUST APPLY THIS LEMON TEST TO STATUTES RELATING TO RELIGION

Front 143

Tuition Related Cases
Religion in Schools

Back 143

• Sloan v. Lemon
• 1973 a NY law reimbursed students and parents for education (tuition) for private schools. Court found this to be a violation.

Front 144

Mueller v. Allen
Religion in Schools

Back 144

o A Minnesota law allowed parents to deduct from their state income taxes any expenses from school tuition, textbooks, or transportation for their children. This covered elementary and secondary students and was available regardless of whether the children attended public or private (including parochial) schools. The Court was to decide whether this offered unconstitutional aid to religious schools.
o Applied the Lemon Test
o The court allowed the deductions to be made by parents with students attending religious schools

Front 145

Romer v. Board of Public Works
Religion in Schools

Back 145

o MD allowed qualifying colleges to get funds from the state for non sectarian purposes (Loyola, for example) even if it is a religious schools
o Proponents say that it is neutral, b/c the state gives money to public schools
o Opponents say that giving this money to the private, religious school gives them more money for religious thing
o Opponents say that there is too much entanglement with government with the religious schools
o The court found that this was constitutional b/c the primary effect of the law didn’t promote or inhibit religion and that there wasn’t excessive entanglement (b/c the sectarian and secular sides could still be separated)

Front 146

Other religion in school cases

Back 146

deal with release time, religious organizations, speech in school, etc (get these cases from the notes)

Front 147

Commercial Speech- Regulating the legal profession (Part 2)

Back 147

o Peel v. Attorney Registration & Disciplinary Comm’n of Illinois- attorney included on his letterhead that he was certified as a civil trial specialist by the NBTA. Plurality opinion concluded that the truthful representation of certification by a legit organization couldn’t be deemed misleading under the 1st amendment
o Edenfield v. Fane- court struck down a FL rule prohibiting CPA from engaging in direct, in-person, uninvited solicitation. Majority agreed with the substantial state’s interests in protecting potential clients against fraud, overreaching invasions of privacy, but found that the state failed to provide adequate studies or evidence that its rule directly and materially advanced those interests. Dissent (O’connor) stated that states have broad authority to prohibit commercial speech that is inconsistent with the speaker’s membership in a learned profession and that its no different that it should be no different than in-person solicitation with attorneys and CPAs
o Ibanez v. FL Board of Accountancy- court held that it was not inherently misleading for an attorney to advertise truthfully in the yellow pages or on business cards that she was also a CPA
o FL v. Went For It- court upheld a FL bar rule prohibiting personal injury lawyers from sending targeted direct mail solicitation to victims and relatives for 30 days following an accident or disaster and from receiving an referrals from anyone who made such contact. Court held that the rule served a substantial state interest in protecting the privacy and tranquility of PI victims. FL allows attorneys to send un-targeted mailings or to advertise on TV, newspaper, yellow pages, etc. Dissent (Kennedy) found that it is often urgent to immediately begin investigation of the facts and therefore necessary to obtain counsel immediately. Found that the bar rule didn’t serve substantial state interests

Front 148

Limits on Over breadth analysis: incapable of narrowing construction (Part 2)

Back 148

22. Massachusetts v. Oakes - (1989) - a law that prohibited the taking of nude photographs of those under 18 years old was challenged by a man who have been convicted under this statute. He had taken pictures of his 14 year old step-daughter
i. The highest court struck down the statute - and then the legislature amended the statute to include "with the lascivious intent"
ii. The court concluded that the over breadth application did not apply to laws that were no longer enforced. However this was rejected that the over breadth challenge was closed due to the amendment.
iii. Decision: The law is not substantially over broad

Front 149

Prior Restraint Cases
(Part 2)

Back 149

3. Lovell v. Griffin (1938) - The court invalidated a law in GA which prohibited the circulation of any books or information without written permission form the city manager first.
1. Lovell was a Jehovah's witness who was arrested and convicted under the ordinance for circulating her material
2. The court reversed her sentence
3. Holding ; the ordinance is not limited to literature that is obscene or offensive to public morals. This violates freedom of the press, the liberty of the press became initially a right to publish without a license. The prevention of such a restraint was a reason to adopt the 1st amendment.
4. Lakewood v. Plain Dealer Publishing (1988) - the issue was a local ordinance restricting the placement of newspaper vending racks on public property. The news racks could be placed on public property with an application and permit,
1. A facial challenge lies whenever a licensing law gives a government official or agency substantial power to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers.
2. The city can have some form for licensing but the constitution requires that it establishes neutral criteria to insure that the licensing decision is not based on the content or view point of the speech being considered.

Front 150

Illinois v. Board of Ed
Religion/Schools

Back 150

o Public schools that had release time programs for students for religious lessons
o Violation of 1st & 14th amendments b/c school buildings had been used to disseminate religious doctrines. The religious groups had been aided in teaching religion which violates the principle of separation of church and state

Front 151

Rosenberger v. University of VA
Religion/Schools

Back 151

o Student organization which wanted to publish a Christian oriented newspaper
o University denied funding to this group b/c it was a religious activity
o SCt held that the law violated the student’s 1st amendment rights (free speech rights)
o The university’s denial was improper and in violation of 1st amendment b/c there is no issue of church and state being together

Front 152

Tinker v. Des Moines
Speech in Public Schools

Back 152

 SCt held that a public school couldn’t discipline students who wore arm bands to protest the war in Vietnam
 This is expressive conduct speech
 The silent protest didn’t disrupt any classes
 Classroom is a market place of ideas. Student’s symbolic conduct was close to pure speech

Front 153

Bd of Ed v. Pico
Speech in Schools

Back 153

o Students should have a right of access to books in library to books that may be deemed offensive
o Court held that schools can’t ban books that may be deemed offensive

Front 154

Bethel School District v. Fraiser
Speech in Schools

Back 154

Disciplined a student who delivered an indecent school sponsored, student run assembly
o Court upheld the discipline action based on a balancing analysis

Note: a university is considered a public forum (student's speech rights may be curtailed some what in the classroom, but not in campus in general)

Front 155

Religious Displays

Back 155

o Publicly funded religious scenes on private property- questionable
o Publicly funded religious scenes on public property- questionable/not allowed
o Privately funded religious scenes on private property-not questionable/allowed
o Privately funded religious scenes on public property-questionable
o Lynch v. Domily- manager scene on private property supported by public funds was found to not be in violation b/c it is a passive art and a seasonal display, therefore not in violation of the Lemon test
o Alleghany v. ACLU
 Manager scene and menorah erected on public property
 Ruled unconstitutional by the court
 The manager scene violated the establishment clause, but not the menorah
 Not quite sure why the court decided this court

Front 156

Right to Privacy

Back 156

• How do we get a right to privacy since it isn’t in the constitution?- from case law
• 1890 in a law review article (Harvard) on the right of privacy- Common law has always recognized that a person’s home is their own domain and should be private
• 4th amendment- right to be free from unreasonable search and seizures
• Where is there a right to privacy to a funeral?
o It depends on where the funeral is, type of cemetery, where the protestors are, etc
• Abortion brought right to privacy issues to a head

Front 157

Griswold v. Connecticut
Right to Privacy

Back 157

SCt took a step towards recognizing right to privacy. Struck down state law that forbade the dissemination of birth control information as state policy b/c it violated the right of marital privacy. Privacy is part of a penumbra (gathering of constitutional rights and guarantees). There are various zones of privacy

Front 158

Roe v. Wade
Right to Privacy

Back 158

The court admitted that the consitution does not mention the right to privacy, but Justice Blackmen stated that the court recognizes the right of privacy or the zones of privacy. In the Thornberg case - there were 6 provisions that deterred a women's choice.

Front 159

Webster v. Reproductive Health Services
Right to Privacy

Back 159

The majority of that court was prepared to uphold state restrictions on abortion. In 1989 the court upheld provision on a restrictive Missiouri Law. The court stated that the right ot have an abortion is not a fundamental right. Carrey v. population service - held unconstitutional that the state made a law prohibiting drug manufactures for targeting teenagers for contraception.

Front 160

Stanely v. Georgia -
Right of Privacy

Back 160

The court upheld the right to the private possession of obscene materials in one's home.

Front 161

office romances

Back 161

if someone in your office says you look nice everyday, but it could turn into harassment. A clear and violation of the law, is "you go out with me and I will give you a promotion"

Front 162

New York Times v. Sullivan progeny concerning damage to character - Time Magazine v. Hill

Back 162

Can the press cover a tragedy like an individual's child is kidnapped. cna the press camp out onthe front lawn of that person's house? Yes they can there is no brightline rule

Front 163

Can a citizen be prohibited from distributing anonymous political literature.

Back 163

No you can't prohibited - decided in 1995 - pg 381 Macentire v. Ohio election commission

Front 164

Fairness Doctrine

Back 164

Requires broadcast stations - to have respond time.if Obama is attacked on the air, he has the right to argue

Front 165

Red Lion v. FCC Case on pg 393 -

Back 165

it can be mandated. What was distinguished - newspapers were different. the court distinguished between newspapers to resolve offering rebuttel space.

Front 166

Robinson case

Back 166

Commerical speakers have access. the speech was taking place in a shopping center and hterefore it is private. The court said that they still have access to the parking lot and it was quasi public space. The stores in the shopping center could easily disenvalue the message.

Front 167

Rumsfeld v. Fell
look at the lawson case

Back 167

The supreme court reject the solem amendment- the state denied funding to schools who allowed military recruitment on campus. This was based on "don't ask, don't tell"