First Amendment W/ Fallon

Front 1

Democracy & Distrust

Back 1

What can we trust the government to regulate? In what areas do we have reason to distrust their determinations?

Front 2

Democratic Self-Governance

Back 2

Principle of freedom of speech springs from necessities of self-government, so 1A applies most vigorously only to speech related to issues with which voters have to deal (i.e. matters of public interest). OR, broader conception that free speech moderates authoritarianism.

Front 3

Marketplace of Ideas

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Free flow of information in the market as best way toward search for truth. More speech is the remedy for false/bad speech. But what about market failure?

Front 4

Autonomy

Back 4

Self-expression, fulfillment, and realization, independent of any effective communication to others. Intrinsic rather than instrumental value. (But what happens when speech violates another’s autonomy?)

Front 5

Persuasion principle

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Idea that is presumptively objectionable for gov’t to censor speech based on fear that people will be persuaded by the speech when they shouldn’t be — implying that people aren’t trusted to make decisions.

Front 6

Schenk v. United States

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(1919) (Holmes, J.) — Conviction for publishing document advocating resistance of the draft. Are the words 1) used in such circumstances and 2) of such a nature as to create a clear and present danger that they will bring about a substantive evil that Congress has a right to prevent? Conviction affirmed.

Front 7

Debs v. United States

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(1919) (Holmes, J.) — Conviction for making anti-war speech. Because the speech had as its natural tendency and probable effect to the obstruction of recruitment, and because Δ had specific intent to obstruct, conviction affirmed. (See Democracy & Distrust!)

Front 8

Masses Publishing Co. v. Patten

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(S.D.N.Y 1917) (Hand, J.) — “Words . . . which have no purport but to counsel the violation of law cannot . . . be a part of that public opinion which is the final source of government.” Proposed drawing line at direct advocacy of illegal action.

Front 9

Abrams v. United States

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(1919) (Holmes, J., dissenting) — Leaflets that supported Russia and called on workers to unite in general strike; Court upheld convictions. Holmes wanted a standard of specific intent. Must be speech that is intended to produce a clear and imminent danger. Origin of marketplace of ideas.

Front 10

Gitlow v. New York

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(1925) (Sanford, J.) — NY law made advocacy of anarchy illegal, Δ distributed manifesto advocating communist revolution. Ct: Speech advocating overthrow of government presents sufficient danger of a substantive evil. Because applied statute targeted such speech, Ct. defers to legislature’s clear & present danger probabilistic assessment. (But see Democracy & Distrust.) Holmes & Brandeis dissent.

Front 11

Dennis v. United States

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(1951) (Vinson, J.) — Δ indicted for “knowingly or willfully advocat[ing] or teach[ing] the desirability or propriety of overthrowing U.S. gov’t. Facially invalid b/c it prevented even academic discussion of Marxism? Ct. says no: aimed at advocacy, not discussion. Gravity of evil * probability = justification of prohibition as necessary to avoid danger

Front 12

Yates v. United States

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(1957) (Harlan, J.) — Convictions communist leaders. Mere justification of overthrow insufficient; must be specific advocacy to do something, rather than just believe something

Front 13

Brandenburg v. Ohio

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(1969) (per curiam) — KKK leader convicted for advocating violence: had made speech mentioning “revengence”; some ppl were carrying guns. Conviction invalid unless (a) advocacy is directed to inciting or producing (b) imminent lawless action and is (c) likely to incite or produce such action. Intent-Imminence-Likelihood Test.

Front 14

Hess v. Indiana

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(1973) (per curiam) — Moving from street to sidewalk, demonstrator stated, “We’ll take the f*cking street later”; convicted for disorderly conduct. Overruled b/c statement wasn’t advocating any action; words weren’t intended to and were unlikely to produce imminent disorder.

Front 15

Holder v. Humanitarian Law Project

Back 15

(2010) (Roberts, C.J.) — Fed statute prohibits material support to any designated foreign terrorist org. Π’s wanted to provide support for peaceful & legal activities. Statute is constitutional even as applied to training and advice for peaceful activities. Support could free up resources for violent and illegal purposes. (Unclear what the test is; seems different from other advocacy-of-illegal-conduct cases.)

Front 16

Beauharnais v. Illinois

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(1952) (Frankfurter, J.) — Sustained statute prohibiting group libel. “There are certain . . . classes of speech, [the] punishment of which have never been thought to raise any constitutional problem. . . . [S]uch utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.”

Front 17

New York Times Co. v. Sullivan

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(1964) (Brennan, J.) — Ad alleging civil rights violations by Southern police contained untrue statements. Police sued under state libel law, recovered huge award. Test: speech protected unless (a) actual malice & (b) of and concerning public official. (No negligence or strict liability; chilling effect on robust public debate.)

Front 18

Gertz v. Robert Welch

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(1974) (Powell, J.) — Private att’y accused of framing police officer in death of client: private figure, public concern. When Δ is private figure & subject matter is public, states can authorize negligence; no strict liability. [And no punitive damages w/o malice.] (Why not extend NYT rule to private figures in public matters? Assumed risk; ability to defend.)

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Public figures

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(a) persons who have assumed a role of especial prominence in the affairs of society or (b) people who have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved”

Front 20

Time v. Firestone

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(1976) (Rehnquist, J.) — Divorce proceeding in wealthy family didn’t involve a “public controversy,” nor were divorce suit or press conferences thought to make them public figures / public controversies. Upheld damages w/o actual malice.

Front 21

Dun & Bradstreet

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(1985) — Δ negligently reported false credit info. Defamation suit; Π won damages & punitives. No opinion for Ct., but theme is that 1A places less value on private speech than public speech. Overall, punitive damages w/o malice are constitutionally permissible.

Front 22

Hustler v. Falwell

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(1988) (Rehnquist, J.) — Hustler Magazine 1-page parody called “The First Time,” depicting Falwell having drunk sex w/ mother in latrine. Ct.: IIED unconstitutional for public figures w/o falsity; no one could interpret this as asserting fact. Also rejects “outrageousness” standard as vague. (NB: Why does the Ct. protect this speech? Democracy value? Political cartoons?)

Front 23

Snyder v. Phelps

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(2011) (Roberts, C.J.) —Westborough Baptist at military funeral. They march in a public space about 1K feet from funeral; IIED suit. Ct.: Speech is constitutionally protected b/c matter of public concern. (What about content-neutral TPM restrictions for funerals?)

Front 24

Florida Star v. B.J.F.

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(1989) (Marshall, J.) — Statute against mass media publishing name of rape victim. Fl Star liable for name obtained from mistakenly released police report? Unconstitutional. If newspaper lawfully obtains information about publically significant matter, strict scrutiny applies to penalties. State interests are strong [(1) privacy of victims; (2) the physical safety of victims, who may be targeted for retaliation; (3) encouraging victims to report], but statute was not narrowly tailored.

Front 25

Bartnicki v. Vopper

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(2001) (Stevens, J.) — Labor convo was illegally recorded by unknown person; sent to taxpayer’s org; shared with broadcaster; played on radio. Πs brought action for disclosing unlawfully intercepted materials. Statutes unconstitutional as applied: Δs played no role in illegal acquisition and conversation was about public issue. (Interest in matters of public concern > privacy concerns?)

Front 26

Roth (1957)

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First case challenging prosecution for obscenity; Brennan has no problem upholding prosecution: says IF prurient interest, THEN no serious value

Front 27

Kingsley (1959)

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Film board wanted to stop showing of the film Lady Chatterley’s Lover b/c it eroticized adultery. SCOTUS treats speech about sex as same as other protected speech w/r/t 1A, despite lack of clarity on what 1A values it serves.

Front 28

Memoirs (1966)

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Brennan, writing for plurality: Appealing to prurience doesn’t automatically mean obscenity; state must separately prove that the work has no serious value in obscenity prosecution.

Front 29

Stanley (1969)

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1st and 4th Amendments say Constitution doesn’t allow prosecution for possession of obscenity in one’s own home

Front 30

Paris Adult Theatre I v. Slaton (1973)

Back 30

(Burger, C.J.) —Const. to bar public showing of obscene films, even assuming that showings were limited to consenting adults. Ct. talks about debasement, social interest in morality.

Front 31

Miller v. California

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(1973) (Burger, C.J.) — Δ sent unsolicited ads w/ graphic sexual content. Defines obscenity → (a) whether average person, applying contemporary community standards, would find that the work . . . appeals to the prurient interest; (b) whether the work depicts or describe, in a patently offensive way, sexual conduct; (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

Front 32

Hudnut

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(7th Cir. 1985) (Easterbrook, J.) — Dworkin-McKinnon Ordinance. Purports to accept all justifications as true. Even w/ multitude of harms, the ordinance still isn’t constitutional: Gov’t is trying to censor an idea that’s embedded in pornography.

Front 33

New York v. Ferber

Back 33

(1982) (White, J.) — Δ convicted for selling videos of young boys masturbating. Ct.: Child pornography is unprotected, even where it doesn’t meet Miller obscenity test. Ct. concerned w/ kids getting hurt in these productions.
(But compare, e.g., documentary exposing mental health institution w/ scene of staff mocking a resident publically masturbating.)

Front 34

Ashcroft v. Free Speech Coalition

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(2002) (Kennedy, J.) — Statute makes it illegal for somebody to distribute depictions that appear to show children engaged in sexual acts even if fake. Ct.: far too broad; sweeps in CGI, adult actors made up to look younger, etc.

Front 35

United States v. Stevens

Back 35

(2010) (Roberts, C.J.) — Statute prohibits the distribution of depictions of animal cruelty where the act would be unlawful in state where filmed or sold. Ct. says they don’t do balancing & will recognize no new unprotected categories; also statute is overbroad. (But what core conduct is regulable? Or do they mean it’s not narrowly tailored?)

Front 36

Brown v. Entm’t Merchants Ass’n

Back 36

(2011) (Scalia, J.) — Prohibition of violent video games for minors. Ct.: No new category; cites lack of tradition of proscription, says this isn’t obscenity b/c it’s not sex. (But why not different b/c focused on minors?)

Front 37

Chaplinsky

Back 37

(1942) (Murphy, J.) — Jehovah’s Witness ranting about organized religion; cop says crowd is getting restless. Speaker shouts that police officer is “a damned racketeer” and “a damned fascist”; is arrested. Fighting words, which “by their very utterance inflict injury or tend to incite an immediate breach of the peace,” are unprotected; conviction affirmed.

Front 38

Cohen v. California

Back 38

(1971) (Harlan, J.) — “F*ck the draft” jacket in courthouse; arrested for disturbing the peace. Not fighting words b/c not directed at specific person; not likely to provoke violence. (Could “f*ck” be banned via TPM restriction? Risk is that allowing gov’t to ban particular words could be vehicle for banning unpopular ideas.)

Front 39

United States v. O’Brien

Back 39

(1968) (Warren, C.J.) — Δs burned their draft cards to protest War, in violation of law prohibiting knowing destruction of draft cards. Look at statute and ask: (i) Supported by substantial gov’t interest? (ii) Related to suppression of content of speech? (iii) Any greater than necessary to further interest? (Actual intent or motive not an issue.) [See Track 1 / Track 2 (would gov’t regulate even w/o speech content?)]

Front 40

Clark v. CCNV

Back 40

(1984) (White, J.) — People want to sleep on mall for homelessness protest. Law prohibited sleeping in park. Formulates time, place, manner doctrine: regulation constitutional if (1) content neutral; (2) serves important/significant gov’t interest; (3) narrowly tailored to serve that interest; and (4) ample alternative channels exist for communication

Front 41

Texas v. Johnson

Back 41

(1989) (Brennan, J.) — Law prohibited flag-destruction that actor knows “will seriously offend.” Δ convicted for burning flag in protest. Ct.: Unconst b/c gov’t interest was related to suppression of the message (dissent).

Front 42

Arcara v. Cloud Books, Inc.

Back 42

(1986) (Burger, C.J.) — Court order closing an adult bookstore that had been used for prostitution upheld as constitutional, though store sold 1A-protected materials. 1A not relevant to nonexpressive activity, and owners could carry on bookselling elsewhere.

Front 43

Renton v. Playtime Theatres, Inc.

Back 43

(1986) (Rehnquist, J.) — Zoning prohibited adult theatres w/in 1K feet of residence, church, park, or school. Excluded theatres from 94% of the city. TPM test applies b/c the regulation is content-neutral (that is, Ct. deemed it content-neutral b/c justified by the secondary effects of the speech).

Front 44

Boos v. Barry

Back 44

Restriction of speech critical of foreign gov’ts near their embassies. Gov’t argued justified based on int’l law obligation to shield diplomats and protect their dignity. Renton doesn’t apply, b/c the restrictions were justified only by reference to the content of the speech.

Front 45

Los Angeles v. Alameda Books

Back 45

(2002) (O’Connor, J.) — Law prohibited more than one adult business per building. Upheld, w/ O’Connor plurality expressing deference to the city’s judgment re: prevention of undesirable secondary effects.

Front 46

Barnes v. Glen Theatre, Inc.

Back 46

(1991) — Gov’t may completely ban nude dancing. Ct. upheld law that requires dancers to wear pasties & g-strings. Nude dancing is “expressive conduct,” within only “outer perimeter” of 1A protection. O’Brien test: Ct. split by social order & morality vs. secondary effects as gov’t interest. (What’s the “content” of nude dancing?)

Front 47

Erie v. Pap’s A.M.

Back 47

(2000) (O’Connor, J. plurality) — City ordinance prohibiting public nudity, w/ goal of shutting down nude dancing club. Law is const., but no majority opinion. Prohibition justified by undesirable secondary effects, but some justices want more proof. (What’s the “content” of nude dancing?)

Front 48

Public Forum

Back 48

Regulation of speech in public fora (1) must be content-neutral unless justified by strict scrutiny, and (2) must be a reasonable TPM regulation that (a) serves an important gov’t interest and (b) leaves open adequate alternative channels; (3) any permit system must serve (a) important purpose; (b) give clear criteria [] that leaves almost no discretion; and (c) provide procedural safeguards (e.g., prompt determination & judicial review); (4) narrow tailoring req’d, but need not be least restrictive alternative.

Front 49

Schneider v. Irvington

Back 49

(1939) (Roberts, J.) — Invalidated ordinances prohibiting leafleting on public streets & etc. Legislation can keep streets open for movement (primary purpose of streets), but legislature can’t stop one rightfully there from speaking/pamphleteering. City must allow speech even if it will impose costs (i.e. through littering).

Front 50

Cox v. New Hampshire

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(1941) (Hughes, C.J.) — Upheld convictions for parading w/o a permit. ~90 marched along sidewalk in single file, carrying signs, handing out leaflets. Licensing okay to 1) “afford opportunity for proper policing,” 2) “prevent confusion by overlapping parades,” 3) “secure convenient use of streets by other travelers,” and 4) “minimize risk of disorder.” (Licensing schemes must be content-neutral, obviously.)

Front 51

Heffron v. Int’l Society for Krishna Consciousness

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(1981) (White, J.) — Upheld state fair rule prohibiting printed material & solicitation of funds except from a licensed booth. Restrictions must (a) be justified w/o reference to content of speech; (b) serve a significant gov’t interest; and (c) leave open alternative channels. Important interest: regulate flow of pedestrian traffic through state fair grounds

Front 52

Ward v. Rock Against Racism

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(1989) (Kennedy, J.) — Upheld requirement that performances in Central Park use city sound engineers & equipment. Justified for noise reduction, an important gov’t interest. Says O’Brien test and TPM test are basically the same: regulation must be narrowly tailored to serve the govt’s legitimate content-neutral interest, but need not be least restrictive.

Front 53

Chicago Police Dept. v. Mosley

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(1972) (Marshall, J.) — Law prohibited demonstrations within 150 ft. of in-session school, unless re: labor dispute. Conviction for protest of race discrimination unconstitutional b/c impermissible subject matter restriction.

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Tradt’l public forum

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Streets, parks, etc.; determined by history and purpose. Strict scrutiny for speech regulations. (Narrowly tailored to achieve a compelling state interest.)

Front 55

Designated or limited public forum

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Property that the state has opened for expressive activity by part or all of the public. Strict scrutiny for speech regulations.

Front 56

ISKCon v. Lee

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(1992) (Rehnquist, C.J.) — Airport terminals aren’t public fora, neither by tradition nor purpose standard. Prohibition of solicitation is reasonable; prohibition on distributing literature not reasonable.

Front 57

Lehman v. Shaker Heights

Back 57

(1974) (Blackmun, J.) — City ban on public transportation selling ad space to candidates for public officer upheld. Ad space on buses isn’t a public forum; city engaged in proprietary venture; interest in protecting captive audience.

Front 58

Lovell v. Griffin

Back 58

(1938) (Hughes, C.J.)
Ordinance prohibiting distribution of literature of any kind w/o first obtaining written permission from city manager held unconstitutional as impermissible prior restraint. (Historical note: struggle for freedom of the press was primarily directed against the power of the licensor.)

Front 59

Watchtower Bible

Back 59

(2002) (Stevens, J.) — Ct. invalidated ordinance prohibiting door-to-door advocacy w/o first registering & receiving a permit. Licensing would put substantial burden on speech by preventing spontaneous speech & discouraging speakers who don’t want to seek license. Gov’t justifications (privacy, crime prevention) didn’t satisfy intermediate scrutiny.

Front 60

Terminiello v. Chicago

Back 60

(1949) (Douglas, J.) — Speaker before rowdy mob uses vigorous epithets convicted for breach of peace. Conviction is unconstitutional; 1A functions to invite dispute. Serious substantive evil must be greater than public inconvenience, annoyance, or unrest.

Front 61

Feiner v. New York

Back 61

(1951) (Vinson, C.J.) — Arrest for racial speech exhorting audience to “rise up in arms and fight.” Mixed-race crowd started to get disorderly; audience member threatened to “haul SOB off stand if police didn’t do it.” Speaker arrested for disorderly conduct. Arrest upheld as constitutional. 1A doesn’t sanction incitement to riot or exhortation to physical attack. When CPD of immediate threat to public safety, State may act to prevent or punish. (Heckler’s veto: why punish rather than protect speaker here?)

Front 62

Collin v. Smith

Back 62

(7th Cir. 1978) — Racial Slur Ordinance prohibited distribution of materials inciting racial or religious hatred was applied neo-Nazi demonstration that wanted to peacefully protest. Unconstitutional. No allegations of potential violence, so can’t apply Feiner/Brandenburg/Chaplinsky. Rejects psychic harm justification (would make racism, etc., unprotected speech).

Front 63

R.A.V. v. St. Paul

Back 63

(1992) (Scalia, J.) — City prohibited hate speech likely to “anger, alarm, or cause resentment.” Convicted for burning cross on black family’s lawn overturned: even within unprotected categories (fighting words), no content-based distinctions w/o strict scrutiny. Exceptions: (1) when basis of content discrimination advances the reason the class is proscribable and (2) where content-based distinctions are designed to prevent secondary effects.

Front 64

Virginia v. Black

Back 64

(2003) (O’Connor, J.) — Gov’t may prohibit cross burning w/ intent to intimidate, but intent must be proved. (Cross burning itself can’t be treated as prima facie case of intimidation.) Cross was burned on relatively isolated farm. (How to reconcile w/ RAV?)

Front 65

Hill v. Colorado

Back 65

(2000) (Stevens, J.) — Illegal within 100 ft. of health care facility to approach person in order to pamphleteer, protest, educate, or counsel. Constitutional: content-neutral (though it’s not really; it’s only facially neutral) and protects access and privacy and gives police clear guidelines. (Uniquely protected places — healthcare, workplace, etc.? Or general public forum TPM regulation?)

Front 66

McCullen v. Coakley

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(1st Cir. 2009) — Stricter buffer zone than Hill v. Colorado; upheld as content-neutral TPM regulation.

Front 67

Frisby v. Schultz

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(1988) — Law prohibited picketing “before or about” any residence. Constitutional b/c 1) content-neutral and 2) narrowly tailored to 3) protect people’s tranquility and repose in their homes. (Basis for “captive audience” doctrine?)

Front 68

Burson v. Freeman

Back 68

(1992) (Blackmun, J.) — Law prohibiting campaign literature w/in 100 ft. of polling place constitutional, even though a content-based regulation: passed strict scrutiny b/c history of campaign workers intimidating voters created a compelling interest.

Front 69

Title VII

Back 69

Prohibits gender discrimination & prohibition against employers maintaining workplaces where sexual harassment occurs

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Sexual harassment

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(1) quid pro quo; (2) hostile environment that consists of speech of a sexual nature that can be either (a) speech conveying message of hostility or (b) sexuality message

Front 71

Hostile environment

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(1) unwelcome; (2) severe or pervasive as (3) reasonable person would view as objectively abusive or hostile

Front 72

Virginia Pharmacy

Back 72

(1976) (Blackmun, J.) — Law prohibits advertising prices of rx drugs: unconstitutional. Speech that merely proposes a commercial transaction is protected by 1A.
Interest in free flow of information; commercial speech may even have relevance to politics.

Front 73

Ohralik v. Ohio State Bar Ass’n

Back 73

(1978) (Powell, J.) — Professional regulation; constitutional to prohibit face-to-face solicitation of clients by attorneys where solicitation is solely for purposes of pecuniary gain. Inherent risk of deception.

Front 74

In re Primus

Back 74

(1978) (Powell, J.) — Ohralik doesn’t apply to ACLU attorney soliciting pro bono client for impact litigation. Political speech >>> ordinary commercial solicitation.

Front 75

Cincinnati v. Discovery Network

Back 75

(1993) (Stevens, J.) — Prohibition of commercial newspapers on newsracks unconstitutional b/c “no relationship whatsoever to interests city asserted” (secondary effects w/r/t safety and aesthetics).

Front 76

Commercial speech

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Expression related solely to the economic interests of the speaker and its audience. Test is a form of intermediate scrutiny (must be narrowly tailored and substantially related to achieving important govt interest). Must concern lawful activity and not be false/misleading. Disclosure is preferred form of regulation.

Front 77

Central Hudson

Back 77

(1980) (Powell, J.) — Prohibition of promotional ads by electrical utility, justified by need for conservation of fuels; also utility had a monopoly, so no need to advertise. Unconstitutional b/c less restrictive means available. Test: narrowly tailored to further a substantial gov’t interest.

Front 78

Posadas de Puerto Rico Associates v. Tourism Company of Puerto Rico

Back 78

(1986) — Prohibition of gambling advertising is fine even though gambling is legal. (Gov’t could prohibit gambling, but has chosen not to do so.) Probably not good law, but never overturned.

Front 79

44 Liquormart, Inc. v. Rhode Island

Back 79

(1996) — Prohibition on price advertising of liquor was unconstitutional; fails intermediate scrutiny. Court splits on rule for prohibiting true info in ads. 1) No prohibition of true info re: legal product; 2) prohibition aiming at secondary effects gets higher scrutiny than regulation promoting fair bargaining process; or 3) Central Hudson [ambivalent w/r/t nature of gov’t interest] is fine.

Front 80

Lorillard Tobacco Co. v. Reilly

Back 80

(2001) (O’Connor, J.) — MA made it unlawful to advertise tobacco within 1K ft. of school/playground & required tobacco ads be at least 5 ft. off ground to avoid being at kids’ eye level. Ct. accepts substantial, even compelling, gov’t interest in stopping kids from using tobacco. 91% of area is off limits, though, so inadequate alternative channels of commc’n are left open. (But see Renton!)

Front 81

Buckley v. Valeo

Back 81

(1976) (per curiam) — Contribution & expenditure limitations on candidates for public office. Contribution limits: upheld under something less than strict scrutiny. Doesn’t infringe on the contributor’s freedom to discuss candidates and issues; threat of quid pro quo. Expenditure limits: invalidated under strict scrutiny, put substantial restraints on the quantity of political speech. Equalizing political opportunity is UNACCEPTABLE gov’t motive.

Front 82

Austin

Back 82

(1990) — Restriction on corporate contributions & expenditures upheld to limit distortion caused by corporate wealth. F’s 1A conflict → Free speech idealist (more speech = better) vs. civic egalitarians (a different conception of what political democracy is and how it ought to work) & realists (“sounds good, but that’s not how it works”) [Overruled by Citizens United.]

Front 83

McConnell v. FEC

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(2003) — FECA amended to limit spending by corporations & unions for broadcast ads, for or against identifiable candidates (30 days before primary, 60 days before general election). Ct. upheld restrictions, designed to prevent circumvention of campaign finance laws. [Overruled by Citizens United.]

Front 84

Citizens United v. FEC

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(2010) (Kennedy, J.) — Limitations on independent expenditures by corporations & unions, previously allowed, are now unconstitutional restrictions on core political speech. No speaker-based restrictions; anti-corporate-distortion rationale rejected; dissenting shareholder rationale rejected. State interest is preventing ONLY quid pro quo corruption. (More political speech > less is now a near-absolute maxim.)

Front 85

McIntyre v. Ohio Elections Comm’n

Back 85

(1995) (Stevens, J.) — Prohibition of anonymous campaign literature is unconstitutional. Anonymous pamphleteering has long tradition in U.S. Can punish fraud directly, but can’t outlaw a category of speech based on content. (But see disclosure laws?)

Front 86

Brown v. Socialist Workers

Back 86

(1982) (Marshall, J.) — Compelled election disclosures (political parties had to report names of contributors) couldn’t be constitutionally applied to Socialist Workers Party. Compelled disclosure would subject minor party to reasonable probability of threats, harassment, etc.
Focuses on substantive (not formal) content neutrality.

Front 87

Lamont v. Postmaster General

Back 87

(1965) (Douglas, J.) — Invalidated statute that permitted delivery of “communist political propaganda” only if addressee specifically requested in writing that it be delivered.
Can’t put affirmative obligation on addressee; fear of deterrent effect.

Front 88

Davis v. FEC

Back 88

(2008) — Invalidated provision that allowed increased contribution limits for opponents when candidates spent more than a certain amount of their own money (so-called “millionaire’s provision”). No equalizing of wealth in political campaigns; can’t selectively benefit one side.

Front 89

Arizona Free Enterprise Clubs Freedom PAC v. Bennett

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(2011) — Invalidated scheme in which candidates taking public financing rather than private received matching funds when opponents & supporters spent beyond public financing cap. Same no-equalization rationale as Davis.

Front 90

Garcetti v. Ceballos

Back 90

(2006) (Kennedy) — Prosecutor dismissed as a result of memo; transferred to less desirable work location & denied a promotion. No constitutional problem. Test: (1) whether employee spoke as a citizen on a matter of public concern; (2) if yes, whether relevant gov’t entity had adequate justification for treating the employee differently than any other member of the public. Must have potential to affect entity’s operations; high burden when citizen speaking on public matter. Ct. notes administrative burden of contrary rule; invokes federalism and separation of powers.

Front 91

Southeastern Promotions

Back 91

(1975) — Municipal theater generally allows local companies to put on productions; effectively made it a voluntary public forum.

Front 92

Pleasant Grove City v. Summum

Back 92

(2009) (Alito) — Gov’t as speaker. Town permitted private groups to place permanent monuments in park, including Ten Commandments. An organization wanted to erect a monument w/ “Seven Aphorisms” presented by God to Moses. City declined/denied; held constitutional. Park is a traditional public forum for transitory expressive acts; display of a monument in a public park is not a form of expression to which forum analysis applies. (Also absurd results if otherwise.)

Front 93

Rust v. Sullivan

Back 93

(1991) (Rehnquist) — HHS regs limit Title X fund recipients’ ability to engage in abortion-related counseling, advocacy, etc. Constitutional; not illicit viewpoint discrimination. Gov’t can selectively fund programs to encourage certain activities it believes in public interest, w/o at same time funding an alternate program that deals w/ problem another way. (Doesn’t restrict their speech activities as private individuals.)

Front 94

Limits on gov’t subsidies of speech

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(1) Public forum doctrine (effective subsidy, but gov’t must be content neutral); (2) Vagueness and overbreadth in the university setting

Front 95

Rosenberger v. University of Virginia

Back 95

(1995) (Kennedy)
UVA subsidized printing costs of various student orgs, but refused to fund religious activities. Held unconstitutional. Analogy to public forum doctrine: this is a program to encourage private speech of all kinds, while Rust chose specific kinds of speech. When expending funds to encourage diversity of views, must be content neutral.

Front 96

Tinker v. Des Moines School District

Back 96

(1969) (Fortas) — Students wore black armbands as Vietnam protest; principals had adopted a ban on armbands in anticipation, so the kids were suspended. Unconstitutional: speech restrictions allowed only if necessary to avoid material and substantial interference with appropriate discipline, operation of the school, or rights of others.

Front 97

Bethel School Dist. v. Fraser

Back 97

(1986) — Speech to assembly in campaign for student office contained sexual jokes. Punishment was constitutional: public schools may teach civility. (Civil-education model of public schools.)

Front 98

Hazelwood School Dist. v. Kuhlmeier

Back 98

(1988) (White) — School newspaper; principal reviewed proofs prior to publication, found two objectionable. (Re: students’ experiences w/ pregnancy & divorce.) Constitutional. Whether 1A requires school to tolerate speech is different than whether it must promote it. Test: (1) school sponsored; (2) reasonably related to legitimate pedagogical concerns.

Front 99

Morse v. Frederick

Back 99

(2007) (Roberts) — Upheld suspension of HS student for refusing to take down a banner at a school-sponsored event that read “Bong Hits 4 Jesus.” Speech was reasonably viewed as promoting illegal drug use; not political.

Front 100

Tornillo

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(1974) — Rule that when newspaper attacks a candidate for public office it must give its subject a chance to respond in as prominent a place is unconstitutional. Rationale: (1) chilling effect and (2) intrusion on editorial function.

Front 101

Red Lion

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(1969) — To get license, networks must broadcast programming in the public interest. FCC rules say when broadcaster publishes attack ad, opposition must have chance to respond. Scarcity arg.: Gov’t can’t avoid make choices about who can broadcast; this prevents one-sided distribution. (But since when is equalizing speech permissible?) (Also, F thinks scarcity is a terrible argument: if you don’t trust gov’t to regulate newspapers you shouldn’t trust to regulate broadcasters. There are content-neutral alternatives, like a lottery.)

Front 102

FCC v. League of Women Voters

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(1984) — Invalidated law prohibiting editorializing on public broadcasting stations; seems like intermediate scrutiny is being applied (narrowly tailored to further a substantial gov’t interest).

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Pacifica

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(1978) –FCC prohibited public broadcasting of indecency (definitionally short of obscene). Held: constitionally permissible. (1) broadcast media uniquely invasive (almost a trespass type argument); and (2) uniquely accessible to children.

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Turner Broadcasting

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(1994 & 1997) — Law requiring cable companies to include leading local broadcast stations is constitutional; fear of squeezing out over-the-air broadcasters is strong enough gov’t interest, regulation is content-neutral.

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Denver Area

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(1995) — Upheld federal law requiring cable operators reserve channels for commercial lease; allowed operators to prohibit the broadcast of offensive sexual/excretory material. Used a “sufficiently tailored to address a significant problem” test (intermediate scrutiny?).

Front 106

U.S. v. Playboy

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(2000) — Struck down FCC regs requiring porn channels be blocked except at night; needs to be necessary to promote a compelling gov’t interest, fails b/c there are LRM that are adequately tailored to interest (blocking unwanted channels).

Front 107

Reno v. ACLU

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(1997) — Attempts to regulate content on Internet are subject to strict scrutiny.

Front 108

West Virginia State Bd. of Educ. v. Barnette

Back 108

(1943) (Jackson) — Public school students have constitutional right to refuse to salute the flag. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

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Wooley v. Maynard

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(1977) (Burger) — NH required license plates w/ state motto “Live Free or Die.” Jehovah’s Witness challenged the law after several convictions. Unconstitutional; violates right to refrain from speaking. (Right to dissent from the majoritarian orthodoxy?)

Front 110

Pruneyard Shopping Center v. Robins

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(1980) (Rehnquist) — CA constitution requires private shopping centers to allow others onto property to speak and petition. Constitutional: nature of shopping center means views of private speakers won’t be attributed to the owners. No specific message is being dictated by State, and owners can expressly disavow the message.

Front 111

Hurley v. Irish-American GLB

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(1995) (Souter) — Boston authorized private group to conduct St. Patrick’s Day parade; group refused to let Irish-American Gay, Lesbian, and Bisexual Group of Boston march. Mass. cts. say they have to be allowed in. SCOTUS: Unconstitutional. Parade is an inherently expressive activity, and speakers have right to choose content of their message. (But could they ban LGBT participants w/ different message because LGBT? No.)

Front 112

Roberts v. United States Jaycees

Back 112

(1984) (Brennan) — Jaycees limited membership to men, in violation of sex discrimination statute. Constitutional as applied. Two kinds of freedoms of association: (1) Freedom of intimate association; and (2) Freedom of expressive association. Efforts to dictate structure/membership of expressive associations subject to strict scrutiny — satisfied here b/c compelling interest in eliminating gender discrimination. (Also minimal expressive effect.)

Front 113

Boy Scouts of America v. Dale

Back 113

(2000) (Rehnquist) — Anti-discrimination ordinance forbids discrimination against gays is unconstitutional. Violates the expressive association rights of the Boy Scouts; deference to association’s view of what would impair its expression. Compelling interest here? Unclear; expressive effect of requiring inclusion would be too much.

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Voluntarism

Back 114

Voluntarily arrived-at religious belief ought to be respected, may be a constitutional good. Although “good,” gov’t cannot try to coerce people into religious practices.

Front 115

Reynolds v. United States

Back 115

(1878) — Generally applicable law prohibiting polygamy challenged by Mormons. No constitutionally mandated exemption. Religion has two components: (1) beliefs, which are absolutely protected, and (2) religious acts, which are regulable.

Front 116

Cantwell v. Connecticut

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(1940) — Overturned convictions of Jehovah’s Witnesses convicted of soliciting money w/o a license; defendants didn’t want to comply b/c it would require gov’t to pass judgment on their religion. Violated both clauses.

Front 117

Hobbie v. Unemployment Appeals Comm’n

Back 117

(1987) (Brennan) — Religious beliefs prohibited plaintiff from working certain hours, so she was fired & denied unemployment. Constitutional mandated exemption for religious beliefs here. (Warren and Burger Courts applied strict scrutiny to generally applicable laws that burdened practices central to a person’s religious beliefs.)

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Sherbert

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(1963) — Ct. applied strict scrutiny and invalidated the denial of unemployment benefits to a woman who was fired rather than work on her Saturday Sabbath.

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Yoder

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(1972) — Yoder entitled to exemption from compulsory high school ed b/c it was contrary to his Amish religion and infringed on parents’ right to control upbringing of children.

Front 120

Employment Division v. Smith

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(1990) (Scalia) — Lost jobs w/ private drug rehab organization after ingesting peyote for sacramental purposes, then denied unemployment benefits. Power to prohibit ingestion of peyote doesn’t violate 1A, so neither does denying benefits to persons who engage in that conduct. Text & history are ambiguous. Strong free exercise jurisprudence not workable: judges incapable weighing centrality of religious beliefs.

Front 121

Lukumi

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(1993) (Kennedy) — City law banning ritual animal sacrifice violates Free Exercise Clause. Not a neutral law of general applicability. Strict scrutiny applies, is not satisfied.

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Hosanna-Tabor v. EEOC

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(2012) — Church/school fires teacher; EEOC brings enforcement action. “Both religion clauses” require ministerial exception. Long history of ministerial exception; deeply rooted in First Amendment. Smith is distinguishable b/c it involved “outward physical acts” whereas this involves “internal church decision that affects the faith and mission of the church.” Distinction is difficult, if not untenable.

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Everson

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(1947) (Black) — NJ township reimbursed cost of sending kids by public transit to and from schools, including nonprofit private & parochial schools. Payment for Catholic parochial school students does not violate the Establishment Clause. Emphasis on formal neutrality.

Front 124

Walz v. Tax Comm’n

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(1970) (Burger) — Tax exemption for real or personal property used for religious, charitable, or education purposes upheld as constitutional; no purpose to advance (or inhibit) religion.

Front 125

Texas Monthly

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(1989) (Brennan) — Tax exemption availably only for religious orgs held unconstitutional. Unlike incidental benefit to religious organizations, direct benefit constitutes impermissible endorsement.

Front 126

Lemon v. Kurtzman

Back 126

(1971) (Burger) — State subsidized teachers’ salaries in parochial schools that taught secular subjects. Unconstitutional. TEST: (1) Statute must have a secular legislative purpose; (2) principal or primary effect neither advances nor inhibit religion; (3) must not foster excessive gov’t entanglement with religion. Here the primary effect would be to teach religion, b/c teachers are members of school whose mission is to inculcate religious tenets. (Trying to prevent this would excessively entangle gov’t w/ religion.)

Front 127

Mitchell v. Helms

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(2000) (Thomas) — Federal program lent “secular, neutral, and nonideological” educational materials to public and parochial elementary and secondary schools. Constitutional: law is neutral, doesn’t directly support indoctrination.

Front 128

Zelman v. Simmons-Harris

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(2002) (Rehnquist) — Program provided aid for students to attend participating school of their parents’ choosing. Any private school could participate, but had to agree not to discriminate. Money was distributed to parents then given to chosen school. 82% of participating private schools were religious; 96% of students attended religious schools. Constitutional: program is formally neutral & shaped by private choice.

Front 129

Locke v. Davey

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(2004) (Rehnquist) — Scholarship Program assisted w/ postsecondary education, excluding only devotional theology. Constitutional: State could have allowed devotional theology consistent w/ EC, but was not required to do so by FEC. Establishment: Lemon (purpose, effect, entanglement). Free Exercise: not prohibiting or burdening anything, but simply choosing to fund something else.

Front 130

Wallace v. Jaffree

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(1985) (Stevens) — Alabama authorized one-minute period of silence in public schools for meditation, then amended to a period of silence for meditation or voluntary prayer. Modification adding “voluntary prayer” unconstitutional b/c its purpose was to endorse religion; no secular purpose.

Front 131

McCollum v. Board of Educ.

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(1948) (Black) — Privately employed teachers held religion classes in public schools for students whose parents signed request cards. Non-attending students pursued secular studies in other parts of the building. Unconstitutional: public buildings used to disseminate religious doctrine & compulsory school law provides pupils for religious classes.

Front 132

Zorach v. Clauson

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(1952) (Douglas) — Released time program where religious classes were held in church buildings is constitutional. All costs paid by the religious organizations. Accommodation theory: not promoting or discouraging. (But see Jackson’s Dissent: Shortening the school day would facilitate voluntary and optional attendance at church classes; school here serves as a temporary jail for a pupil who will not go to Church.)

Front 133

Stone v. Graham

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(1980) (per curiam) — Statute requiring a copy of the Ten Commandments, paid for w/ private funds, on the wall of public classrooms w/ notation that “The secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States.” Unconstitutional b/c no secular legislative purpose / educational function.

Front 134

Epperson v. Arkansas

Back 134

(1968) (Fortas) — Statute forbade public school teachers from teaching evolution; violated both religion clauses. Fundamentalist religious conviction was the law’s only reason for existence.

Front 135

Edwards v. Aguillard

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(1987) (Brennan) — LA statute barring evolution in public schools unless accompanied by “creation science” was unconstitutional. No secular purpose, though claimed purpose was to protect academic freedom: law didn’t give teachers more flexibility than they had before.

Front 136

Engel v. Vitale

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(1962) (Black) — NY statute required school days begin w/ recitation of a prayer. No child in the public schools could have been required to recite the prayer under Barnette, but Ct. says that the mere prescription of the prayer, even w/ opt-out provision, was unconstitutional. O’Connor: “it is no part of the business of government to compose official prayers for any group of the American people to recite as part of a religious program carried on by the government.”

Front 137

Pierce v. Society of Sisters

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(1925) (McReynolds) — State law requiring that students attend public schools violated substantive due process rights of parents and schools. State can legislate compulsory school education, but can’t require only public schools or forbid use of parochial schools.

Front 138

Lee v. Weisman

Back 138

(1992) (Kennedy) — Clergy-delivered prayers at public school graduations unconstitutional; inherently coercive b/c great pressure on students to attend their graduation ceremonies and not leave during prayers. Establishment Clause at a minimum guarantees no coercion to support or participate in religion. Three theories: 1) Coercion isn’t only way to violate EC; gov’t simply can’t engage in religious practices; 2) Coercion is sufficient, but not necessary: symbolic endorsement of religion also a violation; 3) coercion is a narrow concept, and we should allow people in gov’t and etc. to practice their religion.

Front 139

Elk Grove

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(2004) — Court used standing doctrine to reverse 9th Circuit holding that “Under God” in Pledge violated the EC. Some would have reached merits: “Under God” doesn’t convert Pledge into a religious exercise; invocation solemnizes the occasion (“ceremonial deism”).

Front 140

Allegheny County v. ACLU

Back 140

(1989) (Blackmun) — Displays of (1) nativity in a county courthouse, and (2) holiday display in front of gov’t building w/ Christmas tree, menorah, and sign saying that the city salutes liberty during the holidays. Result: nativity is unconstitutional & the latter is fine.

Front 141

McCreary County v. ACLU

Back 141

(2005) — Posting Ten Commandments in courthouses violates the EC.
5-4 w/ now-stronger dissent arguing that history contradicts the demonstrably false principle that gov’t cannot favor religion over irreligion.

Front 142

Van Orden v. Perry

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(2005) (Rehnquist, Scalia, Kennedy, and Thomas) — Display of privately donated monument w/ Ten Commandments on Texas State Capitol grounds is constitutional. The grounds contained 17 monuments & 21 historical markers re: compose Texan identity. Okay for gov’t to acknowledge religious heritage. Breyer concurrence disagrees w/ “coercion” approach but thinks this is narrowly acceptable under Lemon-like test.

Front 143

LDS v. Amos

Back 143

(1987) (White) — Civil Rights Act forbids employers from discriminating on basis of religion, but specific exemption for religious organizations. Employee dismissed for lack of good standing w/ Mormon Church. No establishment clause violation under lemon test: PURPOSE: to alleviate significant gov’t interference w/ ability to define and carry out their religious missions. EFFECT: Didn’t have primary effect of advancing religion b/c it wasn’t gov’t itself advancing religion, just let religion promote itself. ENTANGLEMENT: eliminates line-drawing problem w/ ministerial exception.

Front 144

Cutter v. Wilkinson

Back 144

(2005) (Ginsburg) — RLUIP requires that state and local gov’ts provide religious exemptions in land-use and incarcerative institutions unless they have a compelling reason not to do so. Unanimous opinion says it’s constitutional. Gov’t relieving exceptional gov’t-created burdens on private religious exercise. Takes account of burdens imposed on non-beneficiaries.

Front 145

Thornton v. Caldor

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(1985) (Burger) — CT law required employers to allow any person who observes a Sabbath to be excused from work “no matter what burden or inconvenience.” Held unconstitutional as violative of the Establishment Clause. Primary effect that impermissibly advances a particular religious practice; subsidizes religion w/o recognizing potential burdens.

Front 146

Walz

Back 146

Upheld tax exemptions for religious orgs where non-religious organizations also got them.

Front 147

Texas Monthly

Back 147

TX statute exempting sale of religious periodicals from sales tax that applied to every other periodical violated religion clauses.

Front 148

Overbreadth

Back 148

When freedom of speech is at issue, a person whose speech or conduct is not constitutionally protected can still argue that statute can’t be applied b/c other applications are invalid 1A rights are special: (1) individually and (2) to democratic self-governance. Substantial overbreadth required; look at proportion of invalid app to valid apps.

Front 149

U.S. v. Alvarez

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(2012) — Stolen Valor Act, making it illegal to claim to have military medals never really earned, is unconstitutional: no unprotected category of falsity alone. (Perjury, false statements to gov’t officials, etc., have an extra element.) BUT five Justices (concurrence & dissent) seem to take a balancing approach.

Front 150

Widmar v. Vincent

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State university may not exclude religious student groups when it opened its classroom buildings to use by student groups. Strict scrutiny for content-based restrictions, as would be used for public forum or designated public forum analysis.

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Whitney v. California

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(1927) (Sanford, J.) — Conviction for organizing with & assisting a group that advocates criminal syndicalism. Δ was present, advocated lawful political change, but the group was more radical, committed crimes w/o her direct involvement. Conviction affirmed. Theory is similar to criminal conspiracy.