Page 1 Fall 2007, Constitutional Law 1st Amendment, Professor Fried. Grade AQuestion I.

. Music has received 1st Amendment protection as expression since Ward v. Rock Against Racism. Music may be as expressive as speech. All art communicates ideas, whether or not it communicates them with words. And expressions emotive quality also receives protection: one mans vulgarity is another mans lyric. Cohen v. CA. This is the reason why all art is protected, and under the Miller test any work with serious artistic value is not obscene. Music is thus more than expressive conduct, as in OBrien; it is expression itself. Government would therefore deal with similar 1st Amendment issues when encouraging, mandating, discouraging, or forbidding music as it does with speech. But the context in which music is performed may affect its protected status to a greater degree even than speech. If government desires to encourage certain kinds of music, it may do so through the use of subsidies. NEA v. Finley establishes that when the government confers a benefit, such as art subsidies, there is no 1st Amendment bar to using whatever criteria it wishes in giving the subsidies. It could not grant them in a way inconsistent with equal protection, for example, by giving them only to Catholics, but the 1st Amendment provides no bar to the government promoting the speech, or music, it wants with its own funds. Cf. Rust v. Sullivan. Similarly, in public schools, government has considerable freedom in deciding what music to promote. Because schools are authoritarian institutions in which educators have significant interest in maintaining discipline and teaching civic values as well as general knowledge, the government is largely able to promote in classes the music it thinks is edifying, and to prohibit in school music that it believes will interfere with its educational message. Bethel, Kuhlmeier, Morse. Government would run into problems if it tried to compel a musician to perform. Any compelled expression is suspect, and subjected to strict scrutiny. Barnette. We must be able to

Page 2 maintain our silence, and not have to declare our position one way or another. If music is disagreeable to us, we cannot be forced by the government to sing it, just as we cannot be forced to be moving billboards for the state of New Hampshire, Wooley v. Maynard. Barnette would not have come out differently had the students refused to sing the Star Spangled Banner rather than recite the pledge of allegiance. But government could compel commercial music when it is part of a general regulatory scheme. Individual producers can be compelled to pay for generic advertisement for the product when part of a greater scheme. Glickman, Johanns. The generic advertisement in Johanns was primarily comprised of music. Only if the entire regulatory scheme consists of advertisements is it unconstitutional compelled speech. United Foods. In broadcast media as well, government may be able to require radio stations to play certain music. Broadcast television stations were required to show opposing viewpoints if they editorialized, because they are a physically scarce resource. Red Lion. Government regulators might be able to regulate content in order to ensure diversity in radio as well, because radio airwaves are also physically scarce. The trouble is that the government becomes an engine for allocation of official diversity, and that necessarily means that some musicians the government does not think worthy will be left out. Forbes (a minor candidate is excluded from a public television debate). This is dangerously close to suppression of ideas. As broadcast television invented around the problem with cable, perhaps XM radio could obviate the problem through invention of a non-scarce medium, however. The government could forbid various kinds of music entirely. But, with the possible exceptions of defamation, obscenity, and commercial speech, the government could not prohibit the music outright for its dangerous qualities, but only punish its performer for the context in which it is played. Beginning with incitement, music could be an incitement to unlawful action.

Page 3 For example, if at a Klan rally, a piece of music urged the Klansmen to terrorize, the music might be punishable under the Brandenburg test if it is intended to incite imminent unlawful action and was likely to do so. But if the same music were recorded and played in a classroom for educational purposes, it would neither be intended nor likely to provoke such imminent lawless action. Thus, the music itself could not be prohibited, nor the composer punished only the act of incitement and the person who plays the music. This is comparable to speech regulations. Brandeis/Holmes in Whitney/Gitlow, Eichman, Texas v. Johnson (burning the flag cannot be outlawed as a prohibition on blasphemy). Prohibition of music as fighting words would face similar obstacles. It is uncertain if much remains of the fighting words doctrine at all after Rosenfeld, Lewis, and Brown. Since Chaplinsky, no convictions under this doctrine have been upheld. But Justice Scalia intimates that such prosecutions might still be possible. RAV. Conceivably, if some music were played as part of an attempt to terrorize, the government could punish it. RAV, Virginia v. Black. But the government would still have to prove that the defendant played the music in order to terrorize. Virginia v. Black. Music is probably outside the scope of defamation law. In order for speech to be defamatory or otherwise tortious, it must assert facts. Falwell. Music, like other art, does not usually purport to assert facts. It may discuss actual persons, but normally its assertions about them are not meant to be taken literally, like the cartoon in Hustler was not. Thus, it would lie outside defamation law. If a piece of music truly purported to convey incorrect facts about a person, however, the music, as expression, would receive the NY Times standard as long as the facts were about a public figure and a matter of public concern.

Page 4 Hate speech as such is fully protected by the 1st Amendment. RAV, Virginia v. Black. The government can prohibit conduct intended to terrorize or meant as a threat, RAV, but mere expression of derision towards any group cannot be prohibited. Cf. Hudnut (an obscenity statute cannot ban only pornography, that is, obscenity that demeans women). Music bears comparison to pornography in that it is a particularly powerful way of delivering a message, as all the theoreticians quoted in the question recognized. But again, that only speaks to its effectiveness in conveying the message. The message itself receives full protection. A particularly rousing speaker cannot be silenced because he expresses bigotry or cannot be responded to rationally. Because music is normally expressive, and not also conduct, it would be difficult to imagine a situation in which music expressing hate speech could be prohibited as conduct, unless, again, it was intended to convey a threat or incite violence. Cf. Wisconsin v. Mitchell (when racial motivations are bound up in conduct, or racial animus is only one of several explanations of racial motivation, sentence enhancements are permissible). Musics power to incite morbid interest in sex and, shameful, lustful prurience has been widely recognized. Indeed, Allen Bloom dedicates a significant portion of his Closing of the American Mind to criticizing the Rolling Stones for their shameless sexualizing of youth through the rhythm of their music. But such music is widely available, and it is unlikely the government could do anything to prohibit it (as it does little to prohibit most obscenity). The problem with prohibiting obscene music is that under the Miller test, obscenity must lack all serious social value. By virtue of being art, music almost necessarily has some social value. In Luke Records v. Navarro, the 11th Circuit accepted trial testimony about the literary value of a sexually explicit rap record, and ruled that it was not obscene, although the trial judge had ruled that music obscene. Rarely would music be intended only as a masturbatory aid, to quote

Page 5 Sunstein. And even if it were, the fact that it has rhythm and other musical elements would give it some social value when taken as a whole. Additionally, the 1st Amendment protects willing adults access to obscene auditory material over the telephone. Sable. So, while obscene music could theoretically be prohibited, it is unlikely that any music is obscene under Miller. Indecent, sexually explicit music, however, could be, and is, restricted over the broadcast media in order to prevent its coming into the homes of unwilling adults and the ears of children. Pacifica, cf. Renton (zoning of sex stores is permissible, as would be zoning to the late hours of sexually explicit programming). Commercial music would receive no more protection than ordinary commercial speech just because it is music, and regulations are constitutional as long as they pass the Central Hudson test. In the lawyer advertising cases, the attorneys would not have received any additional protection if they solicited clients with musical messages. Ohralik, Florida Bar. So, if, for example, a musical ad for tobacco was targeted to children somehow, it could be banned as long as the substantial state interest in preventing youth smoking is accomplished directly (but not absolutely directly, Fox) by the prohibition. And again, commercial speech may be compelled when it is part of a general regulatory scheme. Glickman, Johanns. When music does not express ideas from any of the disfavored categories, the government may impose reasonable time, place, and manner restrictions on its performance. Ward v. Rock Against Racism. Music can be loud and disruptive, so reasonable restrictions on its performance can be imposed if they are content-neutral, they are narrowly tailored to advance a significant government interest, and they leave open ample alternative modes of communication. Normally, things like volume control and requiring the use of certain equipment or technicians are permissible regulations. Ward. Total medium bans sometimes are

Page 6 constitutional, Taxpayers for Vincent, but normally they are not. Martin v. Struthers. In the context of music, it would depend on how the total medium ban works. If it bans a certain instrument, that would be impermissible. As in Cohen v. CA, that particular instrument, like a particular word, might be necessary to express the message. But if it only banned certain kinds of loudspeakers to project the music, for example, that would be constitutional, because there would still be other ways to convey the message. Taxpayers for Vincent, CCNV (sleeping in the park across from the White House is expressive, but having the tents there without sleeping expresses the same message). Question II. The Fellowship has no 1st Amendment defense to the breach of contract and defamation actions. Nor will it be able to defend the IRSs revocation of 501(c)(3) status on 1st Amendment grounds. If Gantry were an at-will employee, which he is not, his discharge would have been permissible under the 1st Amendment. To begin, the Fellows are an expressive association. Although the Fellows let in anyone regardless of religion or morals, the Board screens its members. They discuss political and other matters, and provide counseling. They are something of a secular church. Furthermore, even if an expressive association has no specific message, it can still decide to exclude people whose message it disagrees with. Hurley. The Fellows do not appear to engage in business networking. Cf. Roberts, NY State Clubs, Rotary (associations that look commercial enough can be forced not to discriminate). Although they charge dues, many expressive and religious organizations do so as well. For all practical purposes, the Fellows are an expressive association. Roberts. As such, they get to decide what their message will be. Dale, cf. Tornillo (a newspaper gets to decide its message, and cannot be required to include a message with which it disagrees).

Page 7 Furthermore, if the Fellows are a quasi-religious organization, the content of their message does not appear to depend on whether they are a hierarchical or congregational organization. Both the majority of the congregation and the Board (who are in charge, as they get to select the leader and screen members) oppose the Iraq War. The Leader is essentially a figurehead, while the Board has substantial control over the Fellowship, including the authority to decide what behavior undermines the fellowship. The Board has the right to promote its message by not having its public face promote the contrary message. It is doubtful, however, whether they are a religious organization. Although they were founded by dissident Quakers who believed in a Supreme Being, many organizations (such as Harvard) were founded by religious individuals but no longer qualify as religious associations. They appear to have no rituals or common set of beliefs, other than agreement that the Iraq war is immoral. Cf. Aguillard (creationism only religious because of legislative history indicating a religious motive for including it in the curriculum). Perhaps this sense of moral obligation to oppose the war is like religion, as were the convictions of the conscientious objectors in Seeger, Welsh. But those were definitions of religion in statutory, not constitutional, cases. The Fellowship thus has no religious features for constitutional purposes. Regardless of whether they are a religious organization, Gantrys dismissal is governed by the law of contracts, a law of general applicability that is unrelated to the suppression of expression, to which there is no 1st Amendment exception. Arcara, cf. Tornillo (the newspaper has the right to determine its message, and so could fire a reporter who publishes something it disagrees with). But, under Gantrys contract, he could only be terminated for cause. If Gantry did not engage in sexual relations with Fellows, there was no cause for firing him, and his termination was therefore a breach of contract. As stated above, the law of contracts governs his dismissal,

Page 8 and if the Fellows fired Gantry for an impermissible reason under the contract, they must make him whole, even if his views did not comport with the Fellowships. I assume Gantrys employment contract was a standard, secular contract. That being the case, the law of contracts provides neutral principles against which to decide whether the contract has been performed, even if the Fellows are a religious organization. Presbyterian, Jones, cf. Walz (general tax exemption applied to churches and other charities is permissible). There is no danger of an establishment clause violation by prying into the intricacies of Fellowship doctrine when all they must do is decide whether or not there was cause to fire Gantry. Free exercise would also not protect the Board if their religion somehow required them to fire him, because the law of contracts does not target religion. Smith, Hialeah. The Fellows will not get any special 1st Amendment protection in the defamation action either. I assume that Gantry is a private figure. His sexual relationships are therefore not a matter of public concern. False statements about him do not receive the NY Times standard. In fact, because the statements were about a private figure on a matter of private concern, no fault is required at all, and there may be punitive damages without a showing of malice. Dun & Bradstreet. Of course, truth is always a defense to defamation, but the Fellows will have the burden of proving that the statements were true. As to the IRS denying the Fellowship 501(c)(3) status, the Fellows also have no 1st Amendment defense. Granting tax exemptions to all donations to an organization is a substantial benefit to the organization. It has the effect of a cash grant to the organization. Taxation With Representation. It is unlike the tax exemption available for all veterans that would be denied if the veteran refused to take an unrelated loyalty oath. Speiser. Rather, it is a subsidy for charitable organizations that is conditioned on not lobbying, and not a penalty on political

Page 9 speech. The government may determine what activities it will subsidize. NEA v. Finley, Rust v. Sullivan. Content-specific determinations of subsidy eligibility are subject only to rational basis review, because the government must make even viewpoint-specific decisions about what programs it will promote. Thus, the government can prevent 501(c)(3) organizations from engaging in political advocacy, a content-specific regulation. TWR. After all, the Fellows could always split their organization, and create a non-501(c)(3) that lobbies. In this way, 501(c)(3) status is a non-public forum. NAACP v. Cornelius, Greenburgh, Perry. As with mailboxes or solicitations for federal charities, the government can implement reasonable content-specific regulations as long as they are viewpoint-neutral. This regulation is content-specific, as it prohibits politicking, but it is viewpoint-neutral, as it does not prohibit only lobbying for Republicans. The Supreme court has already ruled this very regulation reasonable. TWR. Velasquez and LWV are inapposite. This is not a case of the adversary determining the rules of the game, or of a very small subsidy that dictates content to an organization that cannot split up its editorializing and non-editorializing components. Gantry might have a claim against the Fellows for compelled association, inasmuch as he was required by his job to belong to an association that has values with which he disagrees. Abood. This is unlikely to succeed, however, because, as discussed above, the Fellows are an expressive association, not a commercial one. Unlike belonging to the union in Abood, whose purposes were wholly economic, Gantrys job requires at least some degree of adherence to the organizations principles, which it gets to decide for itself. Dale, Hurley. It is noteworthy that, assuming the Fellows receive soft money contributions, they also violated the constitutional portion of BCRA by using its funds to pay for express advocacy ads within a short time of the

Page 10 election. Wisconsin Right to Life. The Fellows are thus susceptible to suit for that violation as well. The judges rulings may be subject to 1st Amendment scrutiny if Gantry wishes to challenge them. Potentially problematic is the judges ruling that Gantry does not qualify as a member of the clergy. But this ruling also is unlikely to be challenged successfully. First, the Fellows do not appear to be a religious organization, as argued above. Additionally, assuming that qualification as a member of the clergy is a matter of secular, not religious, law, the determination of privilege depends on neutral principles. Presbyterian, Jones. It therefore does not require excessive entanglement with religion in violation of the establishment clause. Lemon. Nor do the compelled disclosures ordered by the judge violate the right to silence. Branzburg.