WHY SHOULD WE CARE?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?!?

TYPES OF ARGUMENT/CARDS TO PLAY - bad tendency/slippery slope o shaken foundation - ad homonum - Diverse society - Founders - Judicial Tyranny - Effect on Democracy - Tradition - Zoom in to facts or out to principle as your side demands o Tangible/intangible injury o Specific/generalized injury - Emotion is important vs. Its about reason - Skepticism - Discrimination between points of view v. content regulation is necessary and omnipresent - Plot to suppress speech - Image of the censor - Effective speech and Equality of Speech - Protection of Speech vs. Protection from Speech - There is/is not another way to speak - Orderly-peaceful-good card GOOD WORDS - manipulation - addiction - degradation - destruction - drown out - censorship Law is argument, not treatises, outlines etc. There is no correct answer to any significant question of law There is a culture of argument that lawyers come to grasp through osmosis The difference between holding and dicta is something people get obsessed with, but its like being obsessed with clipping your toenails. Doctrine gives an illusion of the law as stable and clear thats a terrible illusion Look below the waterline!! - Ideas - Assumptions - Images - Sensibilities - Basic emotions fear, hope, etc. Fear is the most basic emotion and is commonly applied to legal argument

Historical social development runs through everything - always look at the date of cases - Argument is fluid through time - Different roots of arguments have varying power at different times At each level we find ambiguity and ambivalence and are driven deeper Good lawyers thrive in ambiguity and ambivalence The law is foggy, fluid, conflicted and contingent! Just like human psyche Generally the conflict is framed as order versus freedom - but freedom depends on order in a state of anarchy no one is free - order without freedom is likely to turn into disorder it cannot last forever without revolution o then is freedom a safety valve, or something more important? The Constitution protects ordered freedom - Its all about context, degree, and balance Other ways to frame the same debate: - State power (sounds more ominous than order) v. Freedom - State Power v. Private order/individual order/ associational order (church) - Democratic freedom v. Private Power / Each man a law unto himself Judicial decisions themselves are exercises of state power - how democratic is that? - Powerfully ironic FREE EXERCISE CLAUSE Reynolds (1878) - Mormons - Polygamy - No right to polygamy - Standard Madison and Jefferson card o Madison statute said regulation was of acts against order beliefs were wholly protected Acts protected up to a point The distinction breaks down easily o Jefferson Letter said there must be a wall of separation between church and state The Constitution doesnt say that o How could this be a good way to interpret the constitution The opinion that matters is of those who voted to ratify the Constitution, not the writers - polygamy has always been odious o mark of Asiatic and African peoples ad hominum - Marriage is foundation on which all of society is built o Frightened of social disintegration - Says it will lead to stationary despotism o Bad tendency argument

Which he just quoted Madison saying should never be made Analogy to human sacrifice o Another bad tendency argument Professed beliefs make every man a law unto himself o Yet another bad tendency argument Belief/Action distinction

Pierce (1925) - Catholics - parochial schools - Right to private school o Parents have right to have a say in their kids education - Consequentialist argument that this will lead to destruction of private schools is meant to move us o So what? the schools do good work - Fundamental theory of liberty upon which all governing in this union repose o Says who? o State will destroy parental nurturing and love Prince (1944) - Jehovahs witnesses - Child labor and public proselytizing - No child proselytizing o State interest in protecting child welfare - Does presence of parent make it unnecessary to regulate child labor? o Parent may martyr himself for the child - Parents exercising power over children, just like leaders of LDS - Calls proselyting propaganda: Cantwell (1940) - Jehovahs Witnesses - Adults and public proselytizing - Ok for adults to proselytize in public - Proselyting in Catholic neighborhood and criticizing Catholic church and indicted for stirring people up - Statute written broadly to confer tons of discretion; into that discretion will creep religious discrimination o Thats one ground to strike down statute - Defendant was not truculent, overbearing, offensive, etc.; didnt impede traffic; no danger of immediate disquiet o Is that what protection depends on? - Diverse society card - Orderly-peaceful-good card Gobitis (1940) - Frankfurter, J. - Jehovahs Witnesses

Public School and flag salute No right to refuse to salute the flag Starts with: in safeguarding conscience we are dealing with interests so subtle and so dear, every possible leeway should be given to the claims of religious faith o But says conformity is necessary for unity and patriotism centuries of strife that the amendment was meant to guard against Foundation of toleration is threatened by absolute protection o Unity is basis of security and security is the basis of liberty o Youre threatening unity and thus the basis of freedom o All freedom demands order Not good for judges to decide this o Fear of judicial tyranny Unelected judges should not put a straight jacket on the nation o Should be left to local school boards Fearing fascism here mocks reason Images of children run riot This will undermine democracy Stone dissents o We should not give the legislature constitutional deference when a discrete minority is subject to prejudice because such minorities cannot be expected to protect their liberties through the democratic process

Barnette (1943) - Jackson - Jehovahs witnesses - Flag salute and public schools - Right to refuse to salute the flag - Effectively overruled Gobitis - WWII is underway and fascism/totalitarianism is a powerfully frightening image associated with excessive governmental power - Images of school boards strangling children o Village tyrants - The very purpose Says who? - Fundamental rights may not be submitted to a vote o vicissitudes of political controversy He could have said, the wonderful diversity and development over time of ideas - We act in these matters not by authority of our competence, but by force of our commission. - Nationalism is dangerous o Bad tendency argument - Difference as diversity and eccentricity - Court refused to believe that a Bill of Rights which guards the individuals right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.

Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. 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.

Braunfield and McGowan - Sunday closing cases - Braunfield (1961) no free exercise problem o Umbrella law o Sunday is not a religious thing its a cultural thing o FEC claim brought by Orthodox Jews that PAs law requiring that businesses be closed on Sundays, which they claimed placed them at a competitive disadvantage so severe as to force them out of business o Plurality (Warren) o Holding: FEC claim rejected o Distinguishes between direct and indirect burdens (Court does away with this in Sherbert) - McGowan (1961) no establishment clause problem o Umbrella law - Basic idea is that religion is nothing for government to get excited about Scherbert (1963) - Woman is denied unemployment because the reason she is unemployed is that she wont work on Sundays o Holding: the State cannot condition the availability of benefits upon a religious believers willingness to violate a cardinal principle of her religious faith [which] effectively penalizes the free exercise of her constitutional liberties. o Rejected the previous direct vs. indirect burden distinction, said that what is more important is the severity of the burden - Government has the burden of showing a compelling purpose and necessity (strict scrutiny) for its burdening of the religion in question o Burden is on government to show that regulation was necessary means of achieving goal, not just non-religious goal but overriding/compelling secular goal. o Was almost automatically fatal to regulation. Yoder (1972) - Amish want to get out of last two years of compulsory education because it will likely induce kids to leave the farm and would destroy kids allegiance to Amish-ness - PA said exempting them would amount to establishment of religion - Justices side with Amish 8-1 - Burger writes that Free-Exercise demands this because Amish are so great, religious, law-abiding, and they reject welfare

Douglas in dissent writes that like Prince there are parents forcing religion on kids This is as far as strict scrutiny has gotten Court started by drawing distinction between religious belief and a subjective evaluation and rejection of the contemporary secular values accepted by the majority like Thoreaus (implied jab at hippies) Court then said that although State had a compelling interest in educating children, an additional two years of education for the Amish children would not do much to advance this interest Good religion argument: Amish organized, law-abiding, reject public welfare, favor self-reliance o Need and deserve protection because of their small size o Problem: court examining a group to decide whether its a religion, so court itself can be said to violate the EC by picking and choosing groups

Hobbie v. Unemployment Appeals Commn (1987) (reaffirming Sherbert) 1) Exemption granted 2) Facts a) Unemployment benefits denied to Seventh-Day Adventist who refused certain hours on Friday and Saturday because she was a Saturday sabbatarian b) Seventh-Day Adventist had acquired her religious beliefs after taking the job in question 3) Majority (Brennan) a) Holding: the denial of benefits violates the FEC; does not matter when the SDA acquired her religious beliefs, she was still confronted with an unconstitutionally coercive choice between faith and employment Latter-Day Saints v. Amos (1987) (religious discrimination claim against LDS Church) 1) Exemption granted 2) Facts a) 702 of Civil Rights Act of 1964 exempts religious organizations from Title VIIs prohibition against discrimination in employment on the basis of religion b) Employee of the LDS Church filed a Title VII action alleging religious discrimination in employment after they were fired for not following church precepts 3) Majority (White) a) Holding: exemption for religious organizations is Constitutional because it is rationally related to the legitimate purpose of alleviating significant government interference with the ability of religious organizations to define and carry out their mission b) Exemption not a conferral of a benefit, but a removal of a burden Lyng v. Nw. Indian Cemetery Protective Assn (1988) (road over Indian burial ground) 1) Exemption denied 2) Majority (OConnor) Holding: FEC does not preclude construction of road over Indian burial ground

Smith (1990) - Scalia - States have taken their constitutions the other way - Congress tried to overrule it and failed - Native American Church which uses Peyote - under Scherbert this should trigger strict scrutiny o this doesnt effectively overrules Scherbert - Scalias main argument is that there is nothing to be afraid of because Churches can get into democratic politics - Step 2: I realize were talking about a small and weak church w/o much power, but in democracy there are winners and losers. - Scalias arguments against compelling interest test o Previously test had involved Q of whether religious practice was central to religion, but courts have no businesses determining this, so it would have to apply to all religiously commanded actions o If this were the case, test could require religious exemptions from huge range of civic obligations; better idea is to leave religious exemptions to legislatures o Conscience would become a law unto itself - However, admits leaving issue to legislatures will disadvantage minority religions - We have a choice between democracy and anarchy, or courts imposition. o Drawing on fear of anarchy o Widespread sense at the time that society was crumbling - the Court had never held that an individuals religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate - Distinguishes Scherbert because that was about unemployment o Things which involve personal examination to begin with Doesnt all criminal law? - Distinguishes Yoder because it involved other constitutional issues as wel - Says this is criminal prosecution for drug offense o Setting it up to be distinguished in the future - OConner says strict scrutiny should be triggered but satisfied o Calls Scalias majoritarian point harsh - Blackmun writes off-point dissent - Notes o Congress tried to overturn Smith with a law requiring a strict scrutiny test on actions restricting religious practices, but statute overturned in City of Boerne v. Flores o Parker thinks this opinion is doctrinally weak because it is based on a conjecture that there is a common thread underlying the religion cases, when there is none City of Boerne v. Flores (1997) (Smith still applies) 1) Exemption denied 2) Facts

a) A decision by local zoning authorities to deny a church a building permit was challenged under the Religious Freedom Restoration Act of 1993 (RFRA) b) RFRA was passed in response to Smith, in attempt to restore the strict scrutiny test and to provide a claim or defense to persons whose religious exercise is substantially burdened by government 3) Majority (Kennedy) a) Holding: RFRA unconstitutional as applied to the states b) Reiterates Scalias assumption (in Smith) that legislative process is fairly benign when it comes to religion; theres little hostility to religion or particular religions i) Parker: compare this to the rhetoric in Everson, where Black goes on about the terrible dangers of mixing religion and politics 4) Concurrence (Stevens) a) [T]he statute has provided the Church with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment. Whoever is tied to the mast is disintegrated into ash and a few bones; why should we be bound by some dead Ulysses? There is massive dissonance between Establishment Clause and Free Exercise Clause - you can use one to criticize, attack, and undermine the other - Train-wreck from 1963-1971 - Real wreck from 1971 to mid Eighties - Why cant the middleground hold o Ebb and flow of the imagination of the world Everson (1947) - Transportation subsidies for schools o Public and non-profit private schools - Black, J. writes for majority upholding law 5-4 - Starts off expounding on the great danger of mixing religion and politics o Religions may conflict with each other o There is a long history of religious strife and war o Thats why we separate them Jefferson - Then says some mixing is ok o Aid to religious practices or institutions is ok so long as its done by an umbrella law o We should interpret the two clauses together, not as in conflict o This is the middle road doctrine o Government must remain neutral vis--vis religion in general and between specific religions - In dissent Rutledge mocks the dissonance of Blacks opinion o Says Black agrees establishment clause prohibits something beyond a state church o Says umbrella law is a faade

o Says we should prohibit all aid What about fire and police Rutledge tries to weasel out now That would violate free exercise clause Dissent (Jackson) o Looks at effects, as opposed to Blacks focus on purpose o [T]he undertones of the opinion, advocating complete and uncompromising separation of Church from State, seem utterly discordant with its conclusion, yielding support to their commingling in educational matters. The case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron's reports, "whispering I will ne'er consent,' -- consented."

McCollum (1948) and Zorach (1952) - Release time cases laws allowing time for religious instruction during school day o McCollum in public school building is not ok o Zorach outside public school building is ok Dissent says this is really no different, government compulsion is still there - Zorach: Douglas for majority says that hostility and interdependence between religion and government are BOTH bad. o We are a religious people whose institutions presuppose a supreme being Foundation Deep image o Also said the courts holding respects the religious nature of our people and accommodates their spiritual needs and that to ban accommodation would be to show a callous indifference to religious groups o Seek accommodation not separation o NOTE: Douglass was hoping to run for President o Dissents by Black, Frankfurter, and Jackson Engel (1962) - First school prayer case - New York had devised a non-denominational prayer - Court said public officials should not compose prayers because it favors religion against non-religion o Especially having teachers recite it o Holding: Government-directed prayer in public schools violates the EC, even if the prayer is denominationally neutral and students may remain silent or be excused from the classroom during its recitation o Practice was a religious activity and the EC must at least mean that [it] is no part of the business of government to compose official prayers for any group of the American people to recite as a part of a religious program carried on by government. - Stewart dissents

Schemp (1963) - Bible readings are not ok for the same reasons that prayer is not ok - TEST: Government may not purposefully or in primary effect aid religion - Facts o School district opened every school day with Bible verse and the recitation of the Lords Prayer by the students in unison - Majority (Clark) o Holding: extended Engel to say that the EC prohibits the Bible and prayer readings o Court rejected argument that the fact that the readings merely protected the FEC of the majority; Court said that FEC claims cannot be stretched to the point that they justify an establishment o Violation of FEC is predicated on coercion, which is not germane to EC analysis - Note o Coercion approach not applied in following cases Justices, the masters of doctrine, tighten the test. Establishment clause is still less toothsome than Free-Exercise Allen (1968) - Secular textbooks for private schools - Parochial schools were struggling and the Church flexed its political muscle for more aid - There is a secular purpose (kids learning about secular subjects) - Notes o Court not willing to tighten EC approach further o Court did not pay attention to fact that this relieved private religious schools from burden of paying for own textbooks Early 1970s they strengthened Establishment Clause Court followed Scherbert for cases involving individual burdens. 1971 There are storm clouds gathering over establishment clause Lemon struck down aid to religious schools o tax money to pay secular subject teachers Doesnt overrule Everson and Allen Argument is that atmosphere of religion is pervasive in religious schools which indoctrinate students with religion like water-boarding o Thats something to be afraid of Focus on effect Lemon test: the Governments action: o Must have a secular legislative purpose

o Must not have the primary effect of either advancing or inhibiting religion o Must not result in an excessive government entanglement with religion o Parochial school system was an integral part of the religious mission of the Catholic Church, and so the Act fostered excessive entanglement Notes o Still technically on the books, but applied very inconsistently o Scalia and Thomas highly critical of the Lemon test

Edwards (1987) - No taxpayer money for remedial speech and hearing(?) in private schools The train is wrecking - Under free-exercise clause it pretended to apply strict scrutiny - Kept finding that things survived strict scrutiny to avoid crash What do justices focus on above the water-line in their tests? - Coercion o Could be outright prohibition o Inculcation/indoctrination o Sending of messages etc. o Pressure how much necessary? o Imposes costs how much necessary? E.g. unemployment - Discrimination o w/o or w/ coercion? o Favors/disfavors a religion or religion in general o Entanglement - Targeted at Religion o on its Face o purpose o actual sub rosa impact o if its general law thats different Everson - Effects o Indirect or not targeted o When you focus on effects you make your test powerful, stricter, can criticize more regulations and more harshly E.g. Scherbert Non-targeted effect that imposes cost/burder o Doesnt trigger strict scrutiny 1963 (Scherbert) to mid 1980s - Looks like 2 clauses are on collision course o Any aid in effect could violate Establishment Clause Rutledge dissent in Everson

Any burden in effect could violate Free Exercise Clause In Lemon you get effects test under Establishment Clause is most vivid train-wreck case Amish were being unconstitutionally burdened by not being exempted from last 2 years of compulsory education (7th and 8th grades) o Compare with Lemon Whats the difference? Amish are cute and harmless; Catholics are powerful and dangerous o Isnt court itself discriminating between religions now? Aquilar o Sending speech therapists to private schools was aiding religion in effect o Why doesnt this decision violate free exercise clause Church started backpedaling on free exercise in order to avoid collision o o Yoder o

In 60s 70s and 80s it was taken for granted that nothing would survive strict scrutiny - strict in theory and fatal in fact In 1980s laws started to survive strict scrutiny under Free Exercise clause Only so much cynicism is possible above the waterline before lawyers and judges start to get queasy Above the waterline justices dont say much about what religion is, why it should be separated, etc. - should variations between religions matter - Does religion need separation? o Do government regulations especially endanger religion? o Does government mixing with religion especially endanger us? It? o At what level of generality? - Does religion deserve separation? o Is it good for us?

Values, Vulnerabilities, and Dangers We Imagine Vis--vis Religion - Values to democracy 1. Check on secular power 2. Individual spiritual self-determination, etc. 3. Fosters community, moral standards, as foundation of social order 4. Diversity/individual opportunity to engage in political life - Vulnerable to democracy 1. Crushed/persecuted by tyrants 2. Power sapped by secularization 3. Depending on government weakens religion 4. Particular religion discriminated against - Dangers to democracy

1. Flammable; intolerance and tyranny 2. Opiate of the masses; promotes acceptance of authority 3. Religion as diverse as they are break up shared morality of system 4. Zeal will cause some to crush others Mid 40s to early 60s fear of mixing religion and politics was mild and not strong enough to push majority of justices to effects test. Mis 60s the civil rights movement brought more concern for minority groups 71 Many protestants become fearful of Catholic Church Wallace (1985) - At this point it is clear that bible verses, prayer etc are not allowed in public school - Alabama legislature mandates period of silence for meditation OR silent prayer - SCOTUS strikes it down per Stevens o No Secular purpose - Its dangerous because we know what they wanted - Afraid of fundamental evangelical protestants in 1980s and 90s o Fear it was on the march to take over government; it helped elect both Bushes - Burger dissents saying this is too hostile to religion - OConner concurs Edwards v. Aguilar (1987) - last gasp of Scherbert and strong central power under establishment clause - You cant outlaw teaching of evolution after Epperson v. Arkansas. (1968) - Louisiana says you have to teach Creationism alongside Evolution o fair and balanced - Majority looks to legislative history to see that fair and balanced law is just front for forcing the teaching of Creationism - Scalia in dissent says Court is embracing Darwin in violation of both clauses o Scalia is afraid of secularism and secular elitism Stone v. Graham (1980) (Ten Commandments on classroom walls) 1) Facts a) KY statute required posting of the Ten Commandments in public classrooms 2) Per curiam a) Holding: statute violates the EC because it has no secular purpose (KYs ostensible justification was a sham) Burden on religion could be explicit burden or exclusion from general benefit/burden in effect - the former is presumptively not ok; the latter is presumptively ok - this is key doctrinal move of Smith

States can extend Scherbert via own constitution or statute but would be begging for an Establishment Clause problem Locke because of relaxed view of the dangers of mixing religion and politics they say above the waterline that there is room for play in the joints Burden on religion in form of subsidies for higher education tuition with exclusion for people going into ministry o Targeted burden In Smith Scalia said targeted burdens are presumptively unconstitutional This is OK Scalia dissents o Maintains that targeted burdens are unconstitutional o Does say that it is terrible to be singled out which is in tension with Smith o How is this consistent with his dissent in Smith? Is it a balancing test? Action v. Inaction? Tradition has calming effect and this is traditional? Rehnquist says that there is no animus behind the law But at the time it was written it was anti-Catholic o Scalia is afraid of the ideology of elite law schools and political correctness He thinks these people discriminate against those going into ministry whereas they love cute little religions Native Americans will always have elites looking out for them but potential ministers will not

Walz (1970) - exemption from property tax for religious organizations - Burger says its targeted benefit but its ok o Traditional and common Doesnt excite controversy o Targeted along with other things like charity and education o State tax exemption applied to personal property used exclusively for religious purposes as well as other secular non-profits - Majority (Burger) o Holding: exemption is Constitutional because it neither advances nor inhibits religion o Burger justified position on basis that certain entities exist in harmonious relation to the community at large, and that foster its moral or mental improvement o Effect must not be excessive government entanglement with religion - Concurrence (Brennan) & Dissent (Douglas) o Brennan says tax exemption does not subsidize religion; Douglas says it does -

Marsh (1980) - hiring of Chaplains to read prayers at legislative sessions paid for by state public funds - this is ok - not kids and they chose to be there - traditional and common Amos (1987) - Exemption from Title VII of the Civil Rights Act - LDS wanted to hire only Mormons - Thats ok exemption is permissible but not required - Fits with 1987 idea that religion and politics mix pretty neatly, like pancake batter or something - Cuts some foundation out from under Lemon Mergens (1990) - Law says that public schools who allow student groups to use facilities after school day may not exclude religious groups - Thats ok - Inclusion of religion in benefit to others is ok o Even if some legislators want to promote religion At odds with Wallace Bd. of Educ. of Kiryas Joel v. Grumet (1994) (separate school district for sect) 1) Facts a) NY statute constituted Kiryas Joel as a separate school district so Satmar could educate their special needs youth, who previously had problems with integrating in the larger school district outside the village 2) Majority (Souter) a) Holding: statute constituting the school district violates the EC because the benefit flows only to a single sect 3) Notes a) Parker: in contrast to Mergens, this shows the EC still has some bite After Lemon there was a lot of debate about whether unelected Justices had done the right thing by crushing parochial school and thus hurting vulnerable kids. Now were back to Catholic schools and justices are starting to soften up and approve aid. Local control of schools has eroded drastically in last fifty years. Mitchell (2000) - Reaffirms Allen basically ditches Lemon - Federal program that provides secular materials to schools including parochials - Challenged under Establishment Clause saying effect and targeted - Thomas says trend has been running against Lemon

o There was a period when preserving religious schools mattered but that is over with o Religious nature of recipient should not matter Good News Club v. Milford Cent. Sch. (2001) (after-school Christian group meetings) 1) Majority (Thomas) a) Holding: after-school use of schoolrooms by Christian organization does not violate EC because policy toward use of rooms by groups is neutral among religions Zelman (2002) - Tuition aid in Ohio aimed at kids in failing schools - 82% of schools participating were Catholic and 96% of kids went to Catholic schools - Rehnquist plays on coercion point saying no one is forcing parents to send kids to Catholic schools o In reality theres not much choice But thats not the states fault o Yet free choice is main theme of the opinion - Holding: program does not violate EC because it is a program of true private choice that is neutral in all respects toward religion (does not advance or inhibit religion) o EC questions is whether there is coercion Critique: previous EC cases not premised on coercion; coercion sufficient to show EC violation, not necessary; this makes it necessary - Dissents (Souter, Breyer) o Program clearly only neutral in literal sense; Breyer in particular worried about stoking religious strife through suggestion of favoritism in channeling funding, no actual choice for many participants o Souter: The money will thus pay for eligible students instruction not only in secular subjects but in religion as well, in schools that can fairly be characterized as founded to teach religious doctrine and to imbue teaching in all subjects with a religious dimension. o Souter: Need to save religion from its own corruption slippery slope argument o Souter dissents forcefully saying that the state knows perfectly well that this is a structured choice Moving away from idea that mixing politics and religion is inherently dangerous or explosive Sometimes trying to separate religion and politics just makes them further entwined No more wall between Church and State In a religious community like our it is appropriate for govt to recognize religious convictions of its people.

Locke v. Davey (2004) (theology scholarships) 1) Facts a) WA postsecondary scholarship excluded funding to students pursuing a devotional theology degree 2) Majority (Rehnquist) a) Holding: scholarship program constitutional because State has merely chosen not to fund a distinct category of instruction, disfavor of religion is mild b) Rehnquists key move: not only was this exclusion from a benefit program, it was not based on hostility to religion c) We have to leave play in the joints to preserve some leeway for the political process to supplement or correct Constitutional law as made by the courts with their own 3) Dissent (Scalia) a) Too much play in the joints; this law facially discriminates against religion b) Says case is about a religious minority, those who devote themselves to the ministry; legislature has trendy disdain for those who go into the ministry There are always conflicting ideologies beneath the surface undermining any apparent change in focus of the law - Locke long tradition of excluding religious stuff from govt aid o that tradition softens the discriminatory bite - Zelman to what extent is targeting religion backed by coercion - Marsh official use of government money to hire chaplains is ok b/c its traditional o Stevens dissents because this is favoring religion in general and picking between religions

PUBLIC DISPLAY CASES - All of these cases involve targeting, either religion in general or a specific religion - We are inclined to say who cares? - Why are the justices so obsessed with these cases? o Gets totally tangled in 80s Lynch v. Donnelly (1984) - Pawtucket RI - Town owned nativity scene and displayed it on private land - No per se rule they see complexity are not absolutist nuts - Saying calm down there is no conspiracy the government is just marking a historical event long celebrated in Western world.

o this was not a religious display, but merely depicted the historical origins of a secular winter holiday Says its a celebration but then compares it to a museum Points us below water-line saying that the fears that motivated the religion clauses are no longer present o We dont worry about the Pope or the Archbishop of Canterbury pulling the strings OConner Concurrence o Test should be whether govt involvement amounted to an endorsement of religion in general or of a particular religion Test of endorsement would be a reasonable observer inquiry That would really open a Pandoras Box Is observer an adherent of some religion, no religion, average American, or what? Does it send a message to somebody that s/he is an outsider in the political process? o This display does not send such a message because it is traditional and common No different from using God to solemnize public occasions She does not imagine a danger of conflict o This would prevent government endorsement or disapproval of religion which sends a message to nonadherents that they are outsiders, not full members of the political community, and an accompanying message to adherents that they are insiders, favored members of the political community o EC prohibits government from making adherence to a religion relevant in any way to a persons standing in the political community. This is 5-4 and none of the 5 really agree Brennan Dissents o Nativity is a symbol of one religion and its radioactive o References to ceremonial deism says its different o There is coercion here Coercive but small step toward establishing sectarian preference of majority Fear Blacmun dissent says its clearly favoring Christianity

Allegheny County (1989) - One crche indoors in public building on grand staircase; menorah and Christmas tree outside with sign saluting liberty - Distinguished because tree absorbed poison of menorah - Everything has to do with content - Grand staircase of public building is not museum, nothing detracts from crche there o Its position on grand staircase, central part of building shows government approval and support - Basically uses OConner endorsement theory

o Targeting alone without coercion is enough to violate Constitution Kennedy dissents o tries to say its just like ceremonial deism o Passive and could be ignored o Dumps on reasonable observer o Traditional o Establishment clause is not meant to prevent mere feeling of exclusion Direct assault on OConners approach o Symbolic recognition or accommodation okay except in extreme cases; our society has traditionally become used to ceremonial invocations of God and references to religion; a wall of separation would send a message of disapproval of religion

Post 1987 emphasis was on targeting rather than effects or coercion - worries about discrimination b/w Christian sects, between Christians and non-Christians, between deistic and non-deistic religions 1989 we get Allegheny - how much gravitational force does it have? McCreary County (2005) - Souter - only case extending Allegheny - 10 Commandments in Courthouse struck down - Stood alone (at first) and invited controversy - Secular purpose was a sham - Concurrence (OConnor) o Reasonable observer test (reasonable observer would view message as an endorsement) o Response to Scalia: [W]e do not count heads before enforcing the First Amendment. - Dissent (Scalia) o Honoring the Ten Commandments indistinguishable from publicly honoring God, majority adhere to Judeo-Christian beliefs and traditions Critique: but publicly honoring God would also be endorsing religious over non-religious views. Van Orden - other 10 Commandments case - not struck down - In field with lots of other monuments - the display does not violate the EC; the fact that a government display has some religious content or is consistent with religious doctrine does not in itself violate the EC - Rehnquist starts off with the our institutions are based on a Supreme Being and Judeo-Christian values argument

Policy of disfavoring religion would undermine the neutrality at the heart of the EC Breyer Concurrence o Both religious and secular purpose o Context of numerous monuments suggested that the monument here was simply a way of illustrating values that have influenced TX o Less fear of divisiveness Dissent (Stevens) o The guiding principle should be neutrality between religion and irreligion.

Capital Square Review & Advisory Bd. v. Pinette (1995) (KKK cross) 1) Facts a) KKK erected large cross in a public square 2) Majority (Scalia) a) Holding: this does not violate the EC; private speech cannot violate the EC just because it takes place in a public forum 3) Concurrence (Thomas) a) Most people would not view the Klans use of the cross as religious Salazar v. Buono (2010) (VFW cross) 1) Facts a) Cross placed atop a rock outcropping by the VFW foundation in 1934 to honor war dead; after federal court held this violative of EC, Congress tried to swap land with VFW 2) Majority (Kennedy) a) Holding: sent case back to a lower court due to rules pertaining to the law of injunctions and standing b) The goal of avoiding governmental endorsement [of religion] does not require eradication of all religious symbols in the public realm. 3) Dissent (Stevens) a) The cross endorses a starkly sectarian message 4) Notes a) 54 decision Lee v. Weisman (1992) - Kennedy - Rabbi chosen to give invocation at the beginning of high school graduation - You would expect Kennedy to say this was fine based on his dissent in Allegheny o He voted that way in 1st conference then changed mind and pissed off Scalia - program violated the EC because the government involvement with religion her was pervasive, to the point of creating a state-sponsored and statedirected religious exercise. - In this case he says there is not just targeting; there is also coercion o Its psychological/structural o Were they coerced to attend and/or to participate?

o They were free to not come, to sit, or to walk out o In Barnette Jackson said that if they could leave thered be no problem. They were worried about Jehovahs Witnesses who would be fine if just allowed to leave o This girl is imagined to be coerced just be being in minority Infantilizes high school students Concurrences (Souter, Blackmun) o Endorsement rather than coercion should be basis of EC violations [It] is not enough that the government restrain from compelling religious practices: it must not engage in them either. o Since state action that coerces religious conformity violates the FEC, why would you need proof of an EC violation? Scalia dissents o Religion would not be so difficult if it was as Court imagines it here o Says Court wants it to be private and secret like porn o Points out push toward privatization of religion (122) This could be seen as new separatism bubbling up under religion clauses Religion should be kept in enclave (ghetto?) to protect it and others who have different or no religion o The only coercion that matters is that backed by force of law and penalty Suggests that all that would be needed would be a disclaimer before the prayer o Civic religion theme; religion as a unifying force o Wont somebody think about the religious people, the majority? They have feelings too.

Santa Fe - Students voted to have invocation before the football game adnt hen voted for a student to read it o Non-sectarian, non-proselytizing invocation - Stevens says there is coercion because of all the pressure to attend highschool football games - What got 6 justices so worked up? o Voting fear of majority tyrannizing minority CHRISTIAN LEGAL SOCIETY AND HOSANA TABOR These cases are about reaching inside groups and meddling with their internal affiars. Christian Legal Society - UC Hastings Law can condition school funding on student orgs allowing everyone in, including religious organizations - If they could show that their message was being corrupted or their organization taken over it might come out differently

The group tries to say that true diversity means allowing internally homogenous groups to form

Hosana Tabor - Court goes other way, per Roberts - Federal law applied to internal management of Lutheran Church/School which wanted to terminate a minister - Under ADA it seemed she was terminated for speech impediment - Struck down application of ADA Whats the difference? - imposing fine v. withholding government aid? o Should that matter? NO - If post 1950 emphasis was on toleration and diversity how does that play out here? - Does this implicitly favor hierarchical religions? - Public/private distinction o But everything depends on the public, see Everson FREE SPEECH Modern argument about free speech always refers at least in spirit to Holmes and Brandeis - they were allies but different and the difference matters The 1st Amendment purports to define individual rights against government Thats primarily how we think about the constitution in general - few SCOTUS decisions interpreting the constitution that way for first 110 years - except for Dread Scott Tension between rights to liberty and property have played out over the years - each can be characterized and defended under the other name - when judicial review began to be used in real way to do individual rights it was economic rights - 1890s to 1930s majority of court got into individual rights business but it was almost always econ. Liberty against labor, redistribution, etc. laws - Lochner era had dissenters who did not believe economic liberty disserved such protection Holmes, Brandeis, and Harlan Lochner - state law regulating hours of bakery workers was struck down as infringing on economic liberty and property rights - Court spoke of economic liberty to negotiate and agree on hours and price with no regard for unequal bargaining power - Holmes dissent proceeds from skepticism o Premise that there are competing plausible theories about economic liberty o Holmes says he will defend right of majority to regulate individual liberty Dominant opinion has a right to prevail

4 Cases under espionage act at end of WWI Shenck (1919) - clear and present danger standard created - created or intended danger - Facts o s convicted of obstructing enlistment for distributing 15,000 copies of a document - Majority (Holmes) o Holding: conviction upheld o Clear and present danger test: The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic. [The] question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. Note: focus is not on intent Debs v. United States (1919) (Debs anti-war speech) 1) Facts a) Eugene Debs convicted under the Espionage Act for obstructing recruitment/enlistment because he gave an anti-war speech at the state convention of the Socialist party of Ohio to an audience of 1,200 persons 2) Majority (Holmes) a) Holding: conviction upheld; Holmes treats this like a routine criminal appeal, does not discuss whether Debs speech actually presented a clear and present danger Frohwerk v. United States (1919) (anti-war editorials) 1) Facts a) German language newspaper published editorials denouncing US involvement in WWI; convicted for violating Espionage Act b) threw leaflets out window 2) Conspiracy to inspire resistance to the draft 3) Majority (Holmes) a) Holding: conviction upheld b) The First Amendment does not "give immunity for every possible use of language." c) No intent required d) Fire metaphor: quarters where a little breath would be enough to kindle a flame Gitlow (1925) - statute prohibited advocacy of overthrow of government - majority said advocacy was enough for clear and present danger o Fire metaphor

o The danger is real and substantial because the effect of an utterance cannot be accurately foreseen Clear and present danger standard is not the answer - deferring to a finding of fact by a jury we must defer to it because there is no absolute right - every free speech issue is an issue of fact and degree in context These positions of deference are Holmess from Lochner dissent - majority has double standard absolute on economic liberty deferential on free speech o believed economic liberty was not dangerous checked and balanced by the market and a self-contained liberty o Imagined free speech as dangerous and in need of containment Speech lights and fans fires o Majority fears radical socialist and ethnic speaker who are not businessmen like themselves and their clients - Holmes felt economic liberty could be dangerous and so should be constrained by majority politics o Not as afraid of radical speech HOLMES Abrams Dissent - Holmess dissent o Majority differs to jury - Says other cases were rightly decided - silly leaflet by an unknown man o is he saying that no reasonable person could think this is dangerous? - No hint of deference - No worries about petition - Last paragraph o Premise of skepticism leads him to not defer here because time has upset many faiths - Speaking in name of Constitutional values he makes up ultimate good is better reached by free trade in ideas, competition in the market place of ideas o Flipped majority view and their double standard - Law is politics; I am doing politics; live with it. o We must leave the correction of evils to time o Another premise Free speech has value Corrects evils through time and debate - Now nobody can suppose that the surreptitious publishing of a silly leaflet by an unknown man, without more, would present any immediate danger that its opinions would hinder the success of the government arms or have any appreciable tendency to do so.

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition . . . But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas . . . that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

Gitlow dissent - Holmes - We should differ to majority, except when majority suppresses free speech, because thats what is necessary for the majority opinion to form - There was no present danger in this case - Every idea is an incitement . . . Eloquence may set fire to reason. - If majority wants proletarian dictatorship, the only meaning of FOS is to let them have their way BRANDEIS Whitney Concurrence (technically, basically a dissent) - doing politics and happy about it - discussion affords adequate protection from harms (Holmes) - Fear of paralysis (door 2) - Afraid of appeals to fear - In name of Constitution free speech is worth more than economic freedom - Rejects idea that immediate serious violence was to be expected or was advocated in this case - Critical difference between advocacy and incitement, between preparation and attempt, between assembling and conspiracy. - Free discussion important for democracy, and we must have the courage to accept the dangers that come with liberty - Founders eschewed silence coerced by law the argument of force in its worst form. - Fear of serious injury cannot alone justify suppression of free speech and assembly. Men feared witches and burnt women. It is the function of speech to free men from the bondage of irrational fears. To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent . . . [and] that the evil to be prevented is a serious one.

Olmstead Dissent - Wiretapping is search and seizure, 4th A does not apply - Argues opposite - Ill adapt the Constitution to the times - Announces new right to be let alone o Word privacy does not appear in the text much less a right to be let alone o Pulls it from his robes o Hes eloquent and he believes hes right o Beginning of Roe v. Wade Holmes and Brandeis felt economic liberty could be and was abused - Bosses tyrannized workers Felt freedom of speech was important and not in danger of being abused Brandeis thinks free speech is simply more valuable than economic liberty - Does not seem skeptical - Full-throated Holmes worked from premise of skepticism - reasonable people disagree about almost everything - we need to have free speech to inform majority view and keep it from becoming too entrenched Is there a choice to be made between them? - Brandeis talks about deliberative speech being good for democracy - Holmes does not o His skepticism undermines great faith in reason or deliberation o Imagines polarized, arational debate Both looking at a fairly abstract level of generality How do we think about revolutionary speech fitting into/being dangerous to democracy? - is it faith based, worked up, not deliberate? o Does that make it inconsistent with democracy? Does arational, faith based, disturbing rhetoric have less value than rational deliberate speech? Reynolds turned on judicial evaluation of the way a freedom was being exercised All justices claimed to but couldnt separate law and politics. Brandeis thinks lack of energy and courage is most dangerous ailment, as does Holmes Harlan Stone, CJ footnote in Carolene Products - follows Holmes and Brandeis in embracing new double standard - 3 situations in which we should not presume regulations of liberty to be valid o those that infringe on specific Bill of Rights liberties o When government restricts political process

o Regulations effecting liberty that were rooted in prejudice or directed against discrete and insular minority that doesnt have fair political shot By 1943 all but 2 justices are FDR appointed New Dealers - adopt Holmes/Brandeis double standard - overruled lots of stuff Dennis Holmes/Brandeis developed views in light of isolated draft resisters and anarchists Dennis involved a group imagined to be very different Communist Party (CPUSA) Leadership of CPUSA indicted and convicted under Smith Act (sort of like Criminal Anarchy act) o 16,000 pages of evidence Trial judge took job of determining sufficiency of danger under clear and present danger standard on himself Learned Hand revised clear and present danger test o Is it sufficiently imminent? o See Chart Became balancing test o Applied new conception of test taking into account probability of harm and size of harm, like BPL test; preventing overthrow here a sufficiently substantial interest The government need not wait until the putsch is about to be execute, the plans have been laid, and the signal is awaited. Assumed connection between s speech and a vast on-going conspiracy Justices go back and forth on what level of generality to assess clear and present danger but focus on its application to CPUSA SCOTUS adopts Hand test Quadrant 2 argument that government will be helpless which will lead to anarchy (quadrant 3) o Integrity of government is central in order to protect other values Defer to jury and trial judge Differentiates between advocacy and incitement Not tying hands of Congress or impairing political process Frankfurter o Its balancing test and we should differ to elected officials to do balancing Jackson o Communists will win if we require immediate danger o Captive in a judge made verbal trap CPUSA organization is imagined as hierarchical and rigid and top down o Is a foreign dominated top down organization as deserving of protection Dissent (Black) o The Amendment as so construed is not likely to protect any but those safe or orthodox views which rarely need its protection.

Dissent (Douglas) o Accepts many of the premises of anti-communism, but says strength and tactical position of Communists suggest they dont really pose a serious threat

New Deal Justices want to act - is political process likely to malfunction? - If so can our instructions improve it? - If so we can and should act Stone believes the Judiciary should protect people who he imagines as weak - paternalistic - protecting or rewarding weakness o Holmes and Brandeis would hate this Brandeis was more devoted to reason than Holmes was Should court ever protect anti-democratic organization? - what if theyre right and democracy is bad? o Thats not what Holmes, Brandeis or Stone would say o Holmess skepticism did not reach to democracy FIGHTING WORDS Words that produce physical violence - provocative speech induces violence toward speaker - inducement incites violence toward third party Cantwell - Jehovahs Witness record playing case - No Clear and present dangers - Same basic issue Its inevitable that people will get riled up in a society valuing vigorous, feisty speech. Chaplinsky (1942) - insulted law enforcement official and arrested for using provocative epithets - danger o inherently provocative words with tendency to cause physical violence - Injury o The very utterance of the words inflict injury Hurt feelings Intangible injury - Fighting words doctrine: words that are likely to cause a fight and which by their very utterance inflict injury or tend to incite an immediate breach of the peace 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. Such utterances are no essential part of any expostition of ideas and are of such slight social value as a step to truth o to have value as free speech it must be exposition of ideas Value must outweigh intangible harm done to social morality and feelings of addressee Chaplinsky loses in every way Could be read as broad enough to cover hate speech, but in subsequent cases Court has taken a very narrow view of fighting words doctrine, to the extent it probably no longer retains any vitality; Court has never upheld a conviction under the fighting words doctrine since then.

Terminiello (1949) - Fasciest speaker in a hall egged on communist rioters outside - Trial judge instructed jury to convict if his speech tended toward dispute - Court says dispute is good, one of the important functions of speech, so the instruction is enough to overturn the conviction - Jackson describes event through record with great detail and imagination o Quotes Hitler and Goebbels o Fears destruction of democracy through street brawling o Emphasized danger of situation, threat of totalitarianism o The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact. Feiner v. N.Y. (1951) (black militarist speech) 1) Facts a) Speaker insulted President, American Legion, and citys mayor, who he called a bum who does not speak for the negro people, and also suggested that blacks should rise up in arms and fight for their rights. b) Fearing riot, police arrested him for disorderly conduct 2) Majority (Vinson) a) Holding: conviction upheld; hostile audience doctrine; clear and present danger of a riot 3) Dissents (Black, Douglas) a) Were always going to have to worry about hostile audiences when it comes to controversial speakers, and we dont want the police being censors

In 1960s the strategy was to use presumptions - where government imposes a substantial burden on free exercise its presumed unconstitutional - Goldberg came on in 1963 and allied with Brennan

Brandenburg - KKK leader making speech to Klan about marching on Washington - Arrested under criminal syndicalism law for advocating duty to commit crime terrorism etc. - Holding: advocacy of violence can be prohibited only when 1) it is directed to inciting imminent lawless action, and 2) it is likely to produce such action. o Court willing to rein in its subversive speech doctrine, but this case concerns a pretty hapless ; they might be more squeamish with a tougher case (like a terrorist) o Presumption is against the regulation, but in all other aspects it actually broadens the governments ability to regulate incitement: Applies to lawless action (probably broader than serious harm, could be non-physical) Doesnt help to clarify what imminent is (and in many cases Justices have not been able to resist temptation of branding a remote possibility as imminent) No necessity requirement No balancing requirement - At this point liberals saw themselves as opponents of clear and present danger test b/c of its use in Dennis which they though was wrong, but never overruled - Strike down the law on its face o Because it sweeps up regulations that would be ok and those that would not o Over-breadth doctrine - Reformulate test - This opinion does not deserve the praise it gets from civil libertarians o No reference to necessity of regulation o Harm doesnt need to be serious or even weighed Just lawless action is necessary Cohen v. California - Justice Harlan - Flagship provocation case - Chaos in America just like Jackson imagines in Terminiello - Arrested for disturbing the peace when he wears a jacket in courthouse that says Fuck the Draft - SCOTUS strikes down conviction - Possible justifications for conviction o Not obscene itself o Not fighting words unless face to face and ad hominem o Not about maintaining decorum in courthouse o This is not a matter of protecting the privacy of those who dont want to see the word fuck because he is not intruding in sanctity of home - Arrested for offensive nature of content of words or manner of expressing content

o Cant allow the majority to silence dissent b/c of personal predilections o unwilling viewers were only subject to it momentarily and they could look away burden on viewer to not be provoked Issue is that California wants to remove epithet from public discourse o Is it for public morality or undifferentiated fear of disturbance Later is not enough Burden on government to show tangible injury imminent As for public morality, intangible harm, implicit devaluation of the word free speech is powerful medicine Decline to be paternalistic Allow citizens to choose words and be vigorous citizens o Respect dignity of speakers choice The whole political system rests on this o Tumult and discord are side effects we must accept There is a fear of government, regulators, inherently boundless regulation Officials cannot make principled distinctions between epithets o Taste is left to the individual o one mans vulgarity is another mans lyric Extreme Holmesian skepticism Words dont only serve rational argument they have an emotive function too that is often more important than the overall intellectual message This opinion combines diverse society, slippery slope, skepticism, emotion is important Dissent (Blackmun) o This was not speech by conduct, and an absurd and immature antic at that

Speech has two poles: incitement and provocation; at both poles there is assessment of value and danger to regulation and assessment of value of speech. Even though they are not supposed to asses the value of speech. Moving between generalizations and sets of facts is key - Chaplinsky focuses on general tendencies of words - Cohen focuses on fact pattern Harm can be tangible or intangible Threats to President Watts (1969) - individual said that if they ever make me carry a rifle the first person I want in my sights is LBJ - thats not a threat says SCOTUS 9th Circuit struck down conviction of man for making racist statemetns about killing Obama

If youre worried that this will feed violence against president you cant wait until that violence is imminent. Material Aid to Terrorists Holder v. Humanitarian Law Project (2010) (support for terrorists) 1) Facts a) Congress prohibits providing material support or resources to any organization designated by the Sec. of State to be a foreign terrorist organization b) s sought to train PKK and Tamil Tigers on how to use law to peacefully resolve disputes, petition the UN, and engage in general political advocacy; convicted under statute 2) Majority (Roberts) a) Holding: conviction upheld; the congressional prohibition could be constitutionally applied to training and expert advice for peaceful speech activities even if the provision of such support was not intended to assist in the lawful activities of the organization b) Purports to apply strict scrutiny, but really does not c) Deferred to the findings of the legislative and executive branches that foreign terrorist organizations are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct. i) Any support could free up resources, or help them to achieve their goals. d) Court states clearly that a regulation focused on content rather than conduct would be unconstitutional e) Court said it was drawing a distinction between independent advocacy of terrorism in general and that under the direction of or coordinated with a terrorist organization 3) Dissent (Breyer) a) Court fails to insist on specific evidence, rather than general assertion; no sign of tailoring 6-3 Majority with Stevens said it did not violate 1st A to convict group of material aid for training in advocacy - that freed up PKK resources Obscenity and Libel Obscenity and Libel are both about intangible harms Chaplinsky said both deserved no protection b/c not part of exposition of ideas Brennan lead charge to cut back Chaplinsky on both Catholic Church cared a lot about obscenity Brennan writes Roth in 1957 - says obscenity gets no protection BUT defines obscenity narrowly (or at least tries to) Because Brennan kept tinkering with the standard they kept getting cases Roth (1957) - Dominant theme taken as a whole appeals to the prurient interest and utterly without redeeming social importance

Brennan hoped definition would limit incursion on free publication Black and Douglas think 1st A protects obscenity too

Memoirs (1966) - prurient interest in sex, utterly without redeeming value - must be patently offensive - affront contemporary community standards Brennan and Marshall had found a way out of obscenity mess only punishable if shown to minors and unwilling adults. Powell was going to sign on to this until he watched one of the videos. Then he wanted to crush porn. Miller v. Cal. (1973) (current obscenity standard) 1) Majority (Burger) a) 3-part test for whether material is obscene and therefore not constitutionally protected: i) Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest ii) Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law iii) Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value b) Court delegates line-drawing to the States (standards are community standards, not national standards prescribed by SCOTUS) 2) Dissent (Douglas) a) Vagueness concerns until a civil proceedings has deemed a tract obscene, no criminal prosecution should be sustained b) The idea that the First Amendment permits punishment for ideas that are "offensive" to the particular judge or jury sitting in judgment is astounding. No greater leveler of speech or literature has ever been designed. To give the power to the censor, as we do today, is to make a sharp and radical break with the traditions of a free society. The First Amendment was not fashioned as a vehicle for dispensing tranquilizers to the people. Its prime function was to keep debate open to "offensive" as well as to "staid" people. The tendency throughout history has been to subdue the individual and to exalt the power of government. 3) Dissent (Brennan) a) Raises line-drawing, fair notice, and chilling effect concerns limits should not be put on situations involving consenting adults N.Y. v. Ferber (1982) (child pornography category) 1) Facts a) Seller of films depicting young boys masturbating convicted 2) Majority (White) a) Holding: upheld conviction; this kind of speech may be prohibited to prevent the sexual exploitation and abuse of children (compelling interest)

b) Created new category: child pornography i) Not subject to the Miller test 3) Notes a) Unanimous decision loosens up definition of obscenity returns discretion to jury to apply community standards of decency

Paris Adult Theater (1973) - No kids or unwilling adults - Burger upholds this conviction too - Even if it is only willing adults, seeing it pollutes culture and erodes morality o Generalized intangible harm o Emphasis on the social interest in order and morality, quality of public life, community environment, etc. o Legislature does not need conclusive proof of connection between antisocial behavior and obscene material to pass statute o Court decline to extend privacy of the home to distributors/consumers of obscene materials outside of the home - Dissent (Brennan) o Consenting adults theme o There is no legitimate state concern in controlling the moral content of a persons thoughts - Dissent (Douglas) o Obscenity at most is the expression of offensive ideas. There are regimes in the world where ideas offensive to the majority (or at lest to those who control the majority) are suppressed. There life proceeds at a monotonous pace. Most of us would find that world offensive. One of the most offensive experiences in my life was a visit to a nation where the bookstalls were filled only with books on mathematics and books on religion. o If Court defines obscenity, it is acting as a censor Young v. Am. Mini-Theatres (1976) (adult theatre zoning) 1) Facts a) Detroit had zoning ordinance placing restrictions on locations of adult theaters relative to designated zoning areas (including residential areas) 2) Majority (Stevens) a) Holding: ordinances are constitutional; this is content regulation but neutral, societys interest in protecting this type of expression less important than for political speech b) Few of us would march our sons and daughters off to war to protect the freedom to see specified anatomical areas in theatres of their choice 3) Dissent (Stewart) a) TPM restrictions should be content neutral except in the limited context of a captive or juvenile audience

FCC v. Pacifica Foundation (1978) (Carlins Seven Dirty Words) 1) Facts a) NY radio station aired George Carlins seven dirty words routine; FCC found the broadcast indecent 2) Majority (Stevens) a) Holding: FCCs action upheld b) Speech in broadcast media different from other speech, less deserving of protection i) Quotes Chaplinskys view of which speech content has value ii) Prior warnings dont necessarily protect listener iii) Think of the children! 3) Dissent (Brennan) a) You can turn the radio off with minimal effort; monologue not obscene b) Marketplace free from the censors hand c) Non-conformity and ethnocentrism: Courts decision shows ethnocentric myopia and is another of the dominant cultures inevitable efforts to force those groups who do not share its mores to conform to its way of thinking, acting, and speaking 4) Notes a) Decisions especially controversial because many people find Carlin to be the classic dissenter, challenging conventions and the prescribed orthodoxy (though hes arguably not engaging in directly political speech) Barnes v. Glen Theatre (1981) (nude dancing) 1) Facts a) State had public indecency law forbidding public nudity; state courts had construed the law to require go-go dancers in the s bar to wear pasties and G-strings 2) Plurality (Rehnquist) a) Holding: restrictions valid; statute was content-neutral because it banned public nudity across the board; applied the OBrien test 3) Concurrence (Scalia) a) Law regulates conduct, not express, so no constitutional scrutiny required 4) Concurrence (Souter) a) Statute did not satisfy the OBrien test, but secondary effects (crime in the vicinity) justified it 5) Dissent (White) a) Statute meant to apply to public places, not in this context b) The reason for applying the statute to nude dancing is because of its harmful message Arcara v. Cloud Books, Inc. (1986) (adult bookstores) 1) Facts a) Adult bookstore shut down under NY statute authorized forced closure of a building for one year if it had been used for the purpose of lewdness, assignation or prostitution

2) Majority (Burger) a) Holding: FA does not apply; regulations with incidental effect on FA activities need not do so in manner least restrictive to those FA activities; impact on speech is incidental Renton v. Playtime Theatres (1986) (adult theatre zoning) 1) Facts a) Zoning ordinance prohibited adult motion picture theaters from locating within 1,000 feet of any residential zone, church, park or school b) Theatres effectively excluded from 94% of city; most of remaining 6% not up for sale, industrial wasteland, etc. 2) Majority (Rehnquist) a) Holding: ordinance upheld as a content-neutral TPM restriction b) Community environment / secondary effects reasoning 3) Dissent (Brennan) a) Ordinance facially discriminates against particular content b) Even if it were not facially unconstitutional, should still be unconstitutional as applied because it does not provide meaningful alternative avenues of communication 4) Notes a) Secondary effects reasoning would never hold water for political speech cases (e.g., statute banning political rallies because they are associated with litter and violence) Erie v. Paps A.M. (2000) (the G-strings case) 1) Facts a) Case concerned ordinance to prevent fully nude dancing; required pasties and G-strings 2) Plurality (OConnor) a) Holding: ordinance upheld on secondary effects reasoning b) Applied intermediate scrutiny c) [The] requirement that dancers wear pasties and G-strings is a minimal restriction in furtherance of the asserted government interest, and the restriction leaves ample capacity to convey the dancers erotic message. 3) Concurrence (Scalia) a) No need to show secondary effects, the state can regulate immoral behavior 4) Concur/Dissent (Souter) a) Intermediate scrutiny requires an evidentiary for the restriction and here there is none 5) Dissent (Stevens) a) To believe that the mandatory addition of pasties and a G-string will have any kind of noticeable impact on secondary effects requires nothing short of a titanic surrender to the implausible.

Times v. Sullivan (1964) - Cut back on Chaplinsky statement that libel has no 1st A protection - Begins by lauding civil rights movement - False statements are inevitable in vigorous free speech and we value vigorous free speech o It should be uninhibited, robust, and wide-open - Erroneous statements are inevitable if free speech is going to have the breathing space it requires to survive. o Speech no longer imagined as fire but as frail child or flower o Afraid of regulation and afraid for speech - The public official with damaged reputation is left out mostly o Only intangible harm o He assumed risk by choosing to be public official o He has greater capacity than the average individual to engage in counter-speech - Rule: public official whose reputation is damaged by false statement about performance of duties can only win suit by showing actual malice - Sliding scale balancing test just like Dennis that is always ready to be softened up - [A] profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials. - It is as much [the citizen-critics] duty to criticize as it is the officials duty to administer. - Free speech needs breathing room o Note: compare to fire metaphor from earlier cases - Chilling effect fears - Why did Brennan not say that lying gets protection as an inevitable byproduct of vigorous speech? o Garrison v. Louisiana Brennan said lies are at odds with premises of democratic government Why arent negligent false statements - Why not protect more? o Why not private lives of public figures? o Why not private figures? o Brennan eventually gets to private lives of public people and private people in matters of public concern Gertz v. Welch (1973) - Overrules Rosenblum said private people not covered by Times because it is a harm to dignity which is a constitutional value - so long as they do not impose liability 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 standard applying to public figures, then only actual damages may be awarded.

Private individuals deserve greater protection because they have less access to the media, and because unlike public officials they have not voluntarily assumed positions of prominence Court considered but rejected applying NYT Test to private defamation suits State has interest in protecting peoples reputations Dissents o Douglas: libel laws too strict, leaving standards for private figures up to the states too capricious o Brennan: press could practice self-censorship in reporting on public affairs as a result o Burger: decision might make it less likely that lawyers would be willing to take the cases of unpopular clients

1st Amendment law is not content blind/neutral Brandeis would say imagery in ads is not reasoned deliberation and thus worth less Holmes might be more inclined to prevent it Are we more afraid of regulators (including judges) or of emotional ads Stone, Brandeis, and Holmes all talked about protecting democracy - Stone wanted to protect minorities from majority o What if the majority needs to be protected from minority OBrian v. United States (1968) - one of Warrens last opinions - upheld the conviction of draft card burner - said we must look not just at what OBrian was trying to do we must look at government interest as well o if this interest is generalized, neutral vis--vis speech in general and any particular viewpoint we apply intermediate test like Smith and other religion cases o Government interest must be substantial or important and there cant be an alternative option - There is a bureaucratic interest in preserving draft cards o This is absurd o Warren says they have to accept the rationalization - Drained the alternatives test of all critical power - We cannot accept the view that an apparently limitless variety of conduct can be labeled speech whenever the person engaging in the conduct intends thereby to express an idea - OBrien test (intermediate-type test) for content neutrality Regulation is within the constitutional power of the government Furthers an important or substantial government interest Governmental interest is unrelated to the suppression of free expression Incidental restriction on FA freedom is no greater than is necessary to further that interest

Johnson v. Texas (1989) - Flag burning became a popular protest technique during Vietnam, had not been in labor or civil-rights movements - 3 cases came up before this and court dodged the issue - By the time you get here it is taken for granted that expressive conduct is protected if it is intended to express and likely to be understood as such. - Brennan looks to OBrian and says there is no government interest here that is neutral vis--vis speech - Therefore you dont get intermediate test, you get strict scrutiny o Must be necessary to serve a compelling state interest o Strict in theory, fatal in fact o Outside of free exercise field nothing other than the prosecution of war was comepelling - What is Texass interest? o Preventing people from being offended is not compelling o Said it was trying to protect the integrity of the flag as unique symbol of American nationhood. Also not compelling but it took Brennan a lot of time to counter it Slippery slope argument Nonsense about framers and Union Jack Says government does have interest in good treatment but its not compelling o Doesnt say why Says it doesnt need protection and its place will be strengthened by decision o Toleration of criticism is source/sign of strength One of proudest images is flag being bombarded in National anthem o Thats irrelevant Counter-speech argument o Says government was discriminating against a point of view opposite that represented by the flag - [B]edrock principle of FA is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable - Concurrence (Kennedy) o Basically apologizes for agreeing with Brennan, says flag-burning is both technically and fundamentally speech, so it must be protected - Dissent (Rehnquist) o The flag is not just a symbol o Flag-burning is like an inarticulate grunt or roar - Dissent (Stevens) o Basically says but this case is different o Flag not just a symbol, banning flag-burning trivial burden on free expression

Some signals triggering impulses are good and some are bad under 1st A - E.g. is there a fire when you yell Fire!? Flag is a signal that triggers impulse of patriotic feeling which is good - We need a sense of bond and community for laws to work - Flag is not divisive, symbolizes nation not government or officials etc. o Symbolizes political equality, inclusion, popular sovereignty Thats what OConner and Kennedy are so concerned about in religion cases Much of how we read constitution is about tradition Basis of constitutional law is popular sovereignty, not the other way around Court was handmaiden of minority that thought it was better than the masses Hate Speech 1990 was turning point of absolutist approach to content regulation issues Beauharnais (1952) - Statute prohibiting degrading people by race upheld 5-4 - Certain speech content can be regulated because it tends to cause harm (tangible or intangible) or because its simply worthless to rational deliberation o This is both - Racist speech promotes strife and obstructs life in a diverse community and harms democracy - Differ to legislature - Dissents (Black, Reed, Douglas, Jackson) o Reed: implied the statute is overbroad this statute not only regulates content but takes sides between different points of view Holmesian skeptic Foreshadows Brennan and Scalia o Black: this degrades FA to rational basis test Regulation is scary o Douglas: raises specter of Nazism hate speech could be an indictable offense, and this would be free speech plus but must be CPD to restrict speech Regulation is scary o Jackson: need to consider truth and good faith of the speaker, CPD Collin v. Smith (7th Cir. 1978) (Skokie Nazis) 1) Facts a) Village of Skokie Racial Slur Ordinance, 20-30 minute Sunday Nazi protest 2) Majority (Pell) a) Holding: Nazis must be allowed to march b) Town doesnt make close enough connection to potential for violence c) Fear of content regulation d) Attempts to make whole town a privacy zone that is sanitized from viewpoints it doesnt like

e) 7th Circuit cited Terminiello and said infliction of psychic trauma is not reason enough to limit speech f) Offensiveness does not mean it can be prohibited Virginia v. Black (2003) - Intentional infliction of discrete harm on particular person is more appropriately regulated but then it doesnt deliver on that promise and throws out IIED tort judgment - Majority (OConnor) o Holding: cross-burning can be prohibited so long as theres an intent to intimidate, given cross-burnings history, but you cant prohibit cross-burning in and of itself - Look at Thomas opinion in cross-burning case o Be realistic, its conduct not speech and their terrorists Gender and Pornography Indianapolis, LA etc. ban pornography which is defined as subordination of women etc Broader than definition of obscenity They do it in the name of democracy Pornography dehumanizes women and makes them incapable of participation in democracy Look at the verbs in the findings. American Booksellers (1985) - Is as bold and sweeping as the ordinance it is striking down - By one of the most right wing judges in the country o foreshadowing breakup of the traditional left/right free speech divisions o Afraid of political correctness, the left, and feminism - Recognizes SCOTUS decisions that let govt regulate content o But this is taking sides in a controversy There you need an absolute rule - that is thought control - buys socialization argument BUT that process of socialization occurs through mental intermediation and therefore it is absolutely forbidden to ban it o when socialization occurs through images and emotion counter argument is not possible but that doesnt mean it can be oppressed because thats true of all speech - Under the 1st Amendment there is no truth R.A.V. v. St. Paul (1992) - Hate crime ordinance - Libertarian opinion - The law is struck down because it discriminates between points of view o What regulation of speech content is not discrimination between points of view

o Viewpoint discrimination: ordinance applies only to fighting words expressing a certain viewpoint, not all Scalia says fighting words may be regulated because of the danger they pose but they are not utterly worthless like obscenity o no essential part of the exposition Even if something may be regulated because its dangerous or of low value, its regulation may not be vehicle for discrimination among points of view Some words are prohibited to those who dont want tolerance but not vice versa Rules with rule like exceptions are different from balancing tests, at least to Scalia Concurrences (White, Blackmun, Stevens) o Criticize Scalias underbreadth approach; basic idea is that if fighting words / hate speech is proscribable as a category to begin with, why can't you treat a subset of that category differently? o Stevens: no viewpoint discrimination because all racial groups were prohibited from using racial epithets against each other Must meet times standard Clearly a farce Buying into Cohen/Times approach of fearing the chilling of speech Even hateful motives are ok

Falwell -

Florida v. B.J.F. - Newspaper published true fact about matter of public significance that was lawfully obtained - They cant be punished unless there is a state interest of the highest order - Afraid of chilling media Bartnicki v. Vopper (2001) (radio broadcast of wiretapped message) 1) Facts a) Suit brought under federal anti-wiretapping law, which made it illegal to intercept cell phone calls and other electronic communications b) Cell phone conversation of union representative was intercepted, then passed off to radio station, then played on-air on right-wing talk radio show 2) Majority (Stevens) a) Holding: statute unconstitutional as applied because while individuals have an interest in privacy there is an overriding interest in publishing on matters of public importance 3) Concurrence (Breyer) a) Stressed holding should only apply to narrow circumstances of this case, which involved physical threats 4) Dissent (Rehnquist) a) Decision chills Americans speech when they are using electronic technology

Snyder v. Phelps (2011) - Westboro Baptist Church case - Protesters selected private figure as target of abuse but because its wrapped up in issues of public concern its protected - Overturns Gertz which said that defamation of private figures is not covered by Times even when its a matter of public concern - New orthodoxy of the Court - Viewpoint discrimination - Alito was lone dissenter o In order to have a society in which public issues can be openly and vigorously debated, it is not necessary to allow the brutalization of innocent victims like petitioner. Can we distinguish IIED, hate speech and times scenarios? - Which is worst? o You could say hate speech is worst of all because it robs group of dignity necessary for citizenship (Fish and Waldren) But as a group they are probably able to respond o IIED could be worst because its hard to respond and its most concrete damage o Defamation of public figures could be worst because it could dissuade good people from seeking office - Which is most valuable? o SCOTUS and Parker both think defamation of public figures is most valuable o Democracy depends on people standing up for themselves if they can and can be heard Everything depends on whether you suspect a plot to suppress speech is afoot. Do you feel a trend toward silencing speech? We can have a rational and coherent understanding of irrationality and incoherence Unpopular speech was a frail flower that needed to be fed chicken soup and put in bed and taken care of so it can be robust and strong. Stevens (2010) - Crush video case - Roberts assigned the opinion to himself - A few categories of speech are not covered by 1st Amendment but we wont expand those categories any further o Behind all of those categories it is claimed lies a balancing test Denounces that as startling and dangerous No freewheeling authority to balance - Not clear if this is absolute rule or strict scrutiny - The First Amendments guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government

outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. Dissent (Alito) o Lone dissenter o Makes Chaplinsky argument and even cites Chaplinsky for it o Basically, he doesnt like the speech in question and thinks that efforts to prosecute the criminal conduct depicted by these videos will be difficult without the speech restrictions

Brown (2011) - Violent video games for minors cant be banned - Scalia - We will not add new types of content to unregulated speech - We cant take free floating authority to constrain ideas, even for minors - Government says this is different because they are participating in the violence o Scalia says its a difference of degree not kind Choose your own adventure books - Alit writes separately to say the violence is disgusting - Strict scrutiny will apply and there are alternatives - Breyer moves away too o We should differ to judgment of legislature Carrigan (2011) - New ethics rule requiring recusal of some public officials - Scalia upholds law saying a vote is not speech - Universal and longstanding tradition that was also intent of framers - Vote of official is not personal right because it belongs to the people so it can be regulated o Shouldnt this cut the other way?? If your uncle started talking this way you would consider calling someone. RP Alvarez (2012) - Phalanx of jackboots is breaking apart o Kagan joins Breyer in concurrence o Alito dissents with Thomas and Scalia o Kennedy, Roberts, Ginsberg and Sotomayor for 4 vote plurality - Plurality o 1St Amendment protects ideas Goertz o Theres no false idea But facts can be false o No power to restrict message due to content - Alito w/ Thomas and Scalia o These statements have no value White Judicial candidates

Scalia majority o Electoral speech at the heart of 1st A protection OConner thinks electing judges is terrible because it undermines prestige of court and sends message that law is political Stevens, Souter, Ginsberg, Breyer all dissent because law is apolitical

REGULATION OF CONDUCT First Period Schneider (1933) - right to hand out leaflets - worried about litter - basically balancing test Hague v. CIO (1939) (use of public spaces right of the people) 1) Holding: City ordinance used to prevent labor meetings in public places violates the FA 2) Traditionalist argument: use of public parks, sidewalks, etc. is the right of the people; [f]rom ancient times, such use . . . has been the privilege of citizens Saia (1948) and Kovacs (1949) (p. 305-6) - sounds amplification devices subject to permit requirements - Saia struck down permitting requirement because amplification is necessary for effective speech o you can have time restrictions o permitting allowed too much discretion - Kovacs would ban loud and raucous noise trucks o Black dissents Martin v. Struthers (1943) - Jehovahs Witnesses canvassing door to door - Struck down restriction - This is a traditional manner of communication - Interest of privacy cannot trump freedom to speak - This mode of communication, in this place, is one of widespread use (not just tradition) and it is essential to the poorly financed causes of little people Second Period 1960s Court allows very few prosecutions to stand in civil rights movement b/c rules applied discriminatorily and court approves of the movement - But court kept saying protests were peaceful and orderly which was a lie o It would have been better to admit they were neither peaceful nor orderly but say thats ok like Cohen Why didnt they recognize incipient chaos and say it was ok Did they same thing with labor

o President Kennedy knew the demonstrations were disorderly and out of control o Take Brandeis whose approach is inimical to Cohen cacophony approach; he said fear of anarchy breads oppression and more fear Cox v. La. (1965) (courthouse protest narrowing) 1) Holding (Goldberg): struck down convictions arising from a civil rights demonstration near a courthouse but on very narrow terms; statute provided no standard to limit discretion Adderley v. Fla. (1966) (govt. like property owner) 2) Holding (Black): upheld convictions of 32 students at Florida A&M for protesting on premises of the county jail 3) Throws out Hague rhetoric, says government an act like private property owner 4) 54 decision Brown v. Louisiana (1966) - Court splinters and strikes down convictions for civil rights sit in in library - 3 arguments from the majority o freedom of speech, assembly, petition includes right to appropriate action o No disorder, intent to provoke etc. because they were reasonable, orderly etc. o What they did was consistent with purpose of the building - Black dissents o Incomprehensible that state must measure disturbance on street and in library in the same way o 1st Amendment does not guarantee right to use someone elses (the governments) property State as private property owner Logan Valley Plaza (1968) - picketing store in privately owned shopping mall arrested for trespass - Marshall overturns convictions - It may be private but its functional equivalent of down town city street Third Period 1971-Late 1980s Congealing of formalism around government as private property owner and tradition Doctrinal formalism as well Chicago Police Dept v. Mosley (1972) (viewpoint disc. on protected subj. matter impermissible) 1) Ordinance said picketing outside schools banned except for labor disputes 2) Holding (Marshall): Court strikes down the ordinance because of viewpoint discrimination in favor of labor union speech and against other subject matters

3) Standard citation for this point: if you regulate conduct in a way that regulates by viewpoint and against protected subject matter, its unconstitutional Hudgens v. NLRB (1976) (said Tanner overruled Logan Valley) 1) Said that Tanner overruled Logan Valley 2) Labor picketing of a store in a private shopping center not protected (private property argument) Greer v. Spock (1976) (upheld military base campaigning restrictions) 1) Holding: Court upheld rules against distributing campaign literature and holding an electoral campaign meeting on a military base Interpreted earlier case, Flower v. United States, narrowly USPS v. Greenburgh (1981) (mailbox restrictions upheld) 1) Holding: Court upheld federal regulation prohibiting leaving unstamped mail in a mailbox 2) Even though individual owner owns the mailbox, it is part of a system owned by the government, and they can decide who can use it Heffron v. Intl Socy for Krishna Consciousness (1981) (MN state fair restrictions upheld) 1) Holding (White): upholds TPM restrictions; rule is content-neutral; government has significant interest in orderly movement of the crowd 2) Alternative way to speak: outside the fair grounds 3) balancing test upholds fairground restrictions on Harri Krishna collections Clark (1984) - Demonstration on behalf of the homeless wanted to camp in Lafayette Park o Nope harm to national parks is too important o Content neutral - Dissent (Marshall) o Sleeping here is important to the protest (basically, hes saying it has an expressive element that is important) o [P]ublic officials have strong incentives to overregulate Cornelius v. NAACP (1985) (charitable campaign in federal office PF dispute) 1) Holding (OConnor): upheld Executive Order limiting the organizations that could participate in an annual charitable fundraising drive conducted in federal offices to voluntary, tax-exempt, nonprofit charitable agencies that provide direct health and welfare services to individuals 2) 4-3 decision; disputes were over whether forum was nonpublic or limited public, what standard of reasonableness/interest to hold government to Lehmann v. Shaker Heights (1974) - Government owned bus system bans political advertising upheld ban - No tradition of advertising in buses - City is like private property owner - blare of political propaganda

Spock -

slippery slope Streets and sidewalks within military base can be off limits for campaigning No tradition of it Need for military to appear apolitical

Metromedia v. San Diego (1981) (non-commercial billboards) 1) Holding (White): Court struck down part of a city ordinance restricting non-commercial billboard displays, but indicated considerable willingness to defer to governments aesthetic interests

City Council v. Taxpayers for Vincent (1984) (aesthetic clutter and signs) 1) Holding (Stevens): upholds Citys position that it may decide the aesthetic interest in avoiding visual clutter justifies a removal of signs creating or increasing that clutter on public property (here, utility poles) - Note: Court allows restriction on electoral speech due to aesthetic interests - wants to put things on utility poles - different from Snyder because its not active communication - Not a public forum either by tradition or designation - Exception for poltical speech would be constitutionally disallowed as content discrimination 1) If one of you wants to defend Justice Souter from my terrible statements please do. He may once have written an opinion worth reading; I just dont know what it is. RP Fourth Period You expect court to turn back to Cohen theme and say noise and disorder is ok In 3 cases a majority of the justices upheld some of regulations on speech outside abortion clinics - upheld buffer zones and noise restrictions o Never before had buffer zones been upheld on streets and sidewalks o Intangible harm of emotional distress was enough - struck down floating buffers and image restrictions United States v. Kokinda (1990) (post office sidewalk not a PF) 1) Holding (OConnor): upheld a Postal Service prohibition of soliciting contributions on postal premises 2) Postal regulation viewpoint-neutral and reasonable as applied (Postal Service run like a business); said post office sidewalk not a traditional enough public forum 3) But this was a plurality opinion, and a majority of Justices did not accept the reasonableness approach

City of Ladue v. Gilleo (1994) (signs in/on home) 1) Suburban city banned posting of most signs; resident posted anti-Gulf War sign 2) Holding (Stevens): even assuming the ordinance and exemptions were content-neutral, the ordinance banned too much speech 3) Access to communication by people with modest means 4) Special respect for individual liberty in the home Watchtower Bible Society (2002) - Stevens - Door to door proselyting required permit struck down - Equal opportunity argument - This kind of speech important for those who lack resources argument - Rehnquist dissents saying that criminals go door to door Intl Socy for Krishna Consciousness v. Lee (1992) (Hare Krishnas at airport) 2) Holding (Rehnquist): uphold limitations on solicitations of money or sale of literature in metropolitan airports States interest = ensure proper flow of pedestrian traffic (weak argument) + prevent duress from face-to-face solicitation (also weak argument), plus alternative forum readily available (sidewalks) Abortion Cases Frisby (1988) - Abortion case - you can march in residential areas - You cannot pause for long in front of someones house in particular because of privacy interest o Privacy does not appear in Constitution o See Central Park case - Holding (OConnor): narrowly construed and sustained a flat ban on focused picketing of a particular residence - Unwilling listener case - Public street a traditional public forum, but ordinance valid because it was content-neutral, narrowly-tailored to serve a significant government interest, and left open ample alternative avenues of communication Schenck v. Pro-Choice Network of W.N.Y. (1997) (fixed and floating zones) 1) Facts a) Court reviewed FA challenge to injunction similar to that in Madsen 2) Majority (Rehnquist) a) Holding: upheld fixed buffer zones, struck down floating buffer zones b) Floating buffer zones burden more speech than is necessary to serve the relevant governmental interests. 3) Dissent (Scalia) a) Court should have struck down all of the restrictions 4) Dissent (Breyer)

a) Court should have upheld all of the restrictions

Hill v. Colorado (2000) - upheld statute creating 100 ft buffer zone outside all healthcare facilities - floating buffer zone of 8 feet - Cant leaflet, display signs, or engage in protest, education or counseling w/o consent - Says 1st Amendment value is greater in approaching willing audience than unwilling audience o What about Cohen - 8ft is reasonable - No adverse effect on ability to read signs - No move toward formalism here - Scalia dissent o Conservatives moving toward protecting speech o This is content based o Discriminates against protest in favor of happy talk Conservatives as champions of protest and rebels American Booksellers o Privacy is never enough to outweigh speech o Effective speech argument That is the only audience that matters - Kennedy dissent o Speaking in voice of Cohen o Law doesnt distinguish b/w peaceful and not-peaceful o Never before has there been this kind of protection from speech o Its censorship o astonishing view of the First Amendment o Equality argument These people dont have resources MOVIES Quaker women as symbol of civilization and culture against the chaos of gun-toting and drinking men That point of view is eventually broken through What produces that moment of breakthrough from civilized constraints? INDECENCY - Parker thinks this is the key - The indecency is what they cant stand - At some point they say no o The display of the body in Unforgiven o The abandonment of the Sheriff by the townsfolk in High Noon - Moment of indecency cannot be generalized - In a country built on popular sovereignty and political equality passivity of the people is indecent

PUBLIC SCHOOLS AND GOVERNMENT WORKPLACES Schools Tinker (1969) - Black armbands in schools to protest Vietnam - Fortass most important decision - Quoting the rhetoric is very important - Armband is closely akin to pure speech - If they substantially and materially disrupted educational process they could be disciplined - It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. - Orderly protesters argument: here, protest was silent - Worries about censorship, totalitarianism - Dissent (Black) o This isnt speech, its conduct; complains that speech diverted students minds, involved emotional subjects o Students and teachers cant use school at their whim Bethel (1986) - Election for student office student gives lewd speech - Court upholds punishment - Teaching socially appropriate behavior inculcating values etc. - Basically content regulation under guise of regulating place - Idea that schools inculcate values is one that the Court has bought for a long time Hazelwood (1988) - student newspaper deletes articles on pregnancy and divorce thats ok o related to legitimate pedagogical concerns - Brennan dissent says its official censorship Pico (1982) - Brennan - you cant remove books based on content o Censorship fears - but you can refuse to buy them Morse Bong Hits for Jesus sign Roberts The Court does a close reading of the sign Upholds discipline because he expressed point of view that the school condemned Alito Dissent says this is viewpoint discrimination Dissent (Stevens) o Concern for censorship

o Criticized the majority decision as one that "trivializes the two cardinal principles upon which Tinker rests", because it "upholds a punishment meted out on the basis of a listener's disagreement with her understanding (or, more likely, misunderstanding) of the speaker's viewpoint." o Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. How do you imagine public schools in America today? Government Workplaces Treated much like the school cases Union B is not allowed to use school mailboxes - thats ok because its based on status or identity of speaker, not viewpoint o Bull Government employer has to maintain peace and tranquility Always says there is another way to speak Charity drive in federal workplace excluded political and advocacy groups Connick v. Myers (1983) (ADA questionnaire) 1) Facts a) Assistant DA distributed a questionnaire to her fellow prosecutors asking about their experience with DA's management practices; then was fired 2) Majority (White) a) Holding: questionnaire was largely a matter of personal interest, so her subsequent termination for that action did not violate her First Amendment rights b) Significance: government employee speech that is not on a matter of public concern (or not primarily so) is not protected by the FA 3) Notes a) Parker thinks this is Whites worst opinion, distinction between matters of public and private concern does not make any sense Garcetti v. Ceballos (2006) (DA dismissal memo) 1) Facts a) Supervising DA wrote disposition memo recommending dismissal of a case on the ground that the affidavit in support of a search warrant contained false representations; claims employer retaliated against him for this 2) Majority (Kennedy) a) Holding: because the speech was conduct within his official employment duties, it is not protected by the FA

b) Note: commentators believe this gives government employees two options: speak out as a citizen to the media/public, or speak in manner unprotected by FA 3) Dissents (Souter, Breyer) a) Concern for government employees who come into contact with wrongdoing that is not directly related to the scope of their duties b) Line-drawing concerns (HR officer would not be protected if protesting about hiring policies, but regular employee would be) To be a good arguer you must be a good rule breaker Rust v. Sullivan (1991) - family planning - slippery slope - certain exceptions - Universities are different - Facts o Case concerned the legality of the Dept. of HHS regulations on the use of funds spent by the US federal government to promote family planning; prohibited funds from being used in programs where abortion suggested as an approved method of family planning - Majority (Rehnquist) o Holding: statutory prohibition is constitutional; Government can selectively fund a program to encourage certain activities it believes to be in the public interest; doing so is not viewpoint discrimination - Dissent (Blackmun) o This is content-based regulation of speech and viewpoint discrimination; restrictions are aimed at the suppression of dangerous ideas NEA v. Finley (1998) (controversial NEA grants) 1) Facts a) NEA funded some artists whose works conservatives didnt like, so they changed funding regulations and procedures for NEA, included decency and obscenity as criteria for funding work 2) Majority (OConnor) a) Holding: provision constitutional; does not preclude NEA from funding such works, just says that decency, obscenity and the like must be taken into consideration 3) Concurrence (Scalia) a) Avant-garde artistes such as respondents remain entirely free to pater les bourgeois; they are merely deprived of the additional satisfaction of having the bourgeoisie taxed to pay for it. Legal Services Corp. v. Velazquez (2001) (LSC challenging welfare law) 1) Facts

a) Federal appropriations law barred LSC funding for any organization that represented indigent clients in an effort to amend or otherwise challenge existing welfare law 2) Majority (Kennedy) a) Holding: statute invalid as viewpoint discrimination b) In contrast to Rust, here, no alternative channel for expression of the advocacy Congress seeks to restrict c) Nor is the restriction necessary to define the scope and contours of the federal program 3) Dissent (Scalia) a) The LSC Act is a federal subsidy program, not a federal regulatory program . . . regulations directly restrict speech; subsidies do not. 4) Notes a) Parker: this imports into the FA the idea that some people are more equal than others, some can be gagged (doctors) and others cannot (lawyers); smacks of elitism - Parker: what about alternatives? If someone wants an abortion, they can probably figure out a way to get one or get counseling on one; that doesnt really work for arguing for changing the law in court Comedy and Tragedy are closely related Regulation is often undertaken to prevent tangible harm and often in name of intangible harm Type of harm will not serve for long as a distinction Justices discriminate against points of view that challenge the status quo Conduct regulation cases often hurt lower status people

Commercial Speech Va. Pharmacy (1976) (prescription drug price advertising) 1) Facts a) Statute made advertising the prices of prescription drugs by pharmacists unprofessional conduct subject to license suspension or revocation 2) Majority (Blackmun) a) Holding: this form of commercial speech is protected by the First Amendment; states retain the power to prohibit false or deceptive advertisements, but the states could not suppress truthful information about a lawful economic activity, simply out of fear of potential consequences. b) Importance of free flow of information for the free market; case just as much about the listener (consumers) as about the speaker (sellers) 3) Concurrence (Stewart) a) Commercial speech different from political speech in that its claims may be tested empirically 4) Dissent (Rehnquist) a) Distinguishing between truthful and false commercial speech just as problematic as distinguishing between commercial speech and protected speech

CAMPAIGN FINANCE Citizens United (2010) - Kennedy - does follow from precedent o around 1990 the Court did seem to shift directions and become more accepting of regulation in Austin That was overruled in Citizens United Turned back to Buckley and Bulatti - Holding: government may regulate corporate political speech through disclaimer or disclosure requirements, but it cannot suppress that speech altogether through expenditure limits - Core political speech applies strict scrutiny - Argument prohibitions = censorship, PACs are a burdensome alternative, worries about media companies - We can make up our own minds and the American people are not stupid - The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy. - Dissent (Stevens) o While American democracy is imperfect, few outside the majority of this Court would have thought its flaws included a dearth of corporate money in politics. o Alternatives available (see p34) there is no ban here, law just targets a class of communications that is especially likely to corrupt the political process o Majority unrealistic; its not just about quid pro quo corruption o [C]orporate domination of the airwaves before elections will drown[] out other citizens voices. o Corporations We the People Buckley (1976 p. 495) - per curium - throws out regulation of contributions - whats being protected is not speakers but speech and communication itself - Regulation of money invokes effective enjoyment of speech - Expenditures get strict scrutiny b/c closely connected to speech - Contributions are different, that involves little direct constraint on freedom o You get less protection when youre helping someone else speak - By corruption the court means quid pro quo not general rottenness - [T]he concept that government may restrict the speech of some elements of our society in order to enhance the relative voice of others is wholly foreign to the First Amendment. Bellotti (1978 p. 408) - Attempt to ban independent expendatures from corporations - Singles out speaker by identity or status o Thats not ok

What about Teachers Union case

Wisconsin Right to Life (2007) - issue add that doesnt explicitly advocate for candidate cannot be banned o Ads do not express advocacy for a political candidate nor its functional equivalent o Worried about chilling core political speech - Dissent (Souter) o Criticizes Roberts for his magic words test (says theres no difference between an ad urging viewers to vote against Jane Doe and one exhorting viewers to call Jane Doe and tell her what you think) Arizona burdens speech by some candidates and not others will help those who do take public financing

They must be afraid of content regulation You could go after whats a compelling government interest You could try to expand the definition of corruption Distinguish between independent and coordinated expenditures - independence launders away the problems o but theyre not actually all that important - operating at formal abstract removed level Issue ads separated from pro-candidate ads - very artificial Speech itself is valuable to democracy - its about voting and audience Point 6: The centerpiece of the argument is effective enjoyment of speech; rejects idea that equality is an important value and rejects redistribution of speech by regulation. Equality is important value in Kovacs dissent, Adderly dissent, and Logan Valley Plaza What Should Political Equality Mean? What is there to fear about political inequality in a democracy? 1. If the gap between rich and poor widens and middle class gets squeezed out the power gap will widen and greater power of rich will tend toward tyranny a. Are the rich homogenous? 2. A lower class gets larger and lower even if its not angry or resentful their own sense of self-worth, power, political agency will erode and they will become more politically impotent 3. Political inequality tends to break apart community, shared values, participation in common enterprise, national story etc. 4. As inequality gap grows pluralistic diverse checking and balancing that Madison hoped would guarantee freedom will break down and civil society will erode.

What then should political equality mean? Ackerman has a voucher idea, like Lessig If key problem is lack of confidence and sense of empowerment Lack of self-respect may come from lack of respect Key to respect is education post WWII If voting could seem to make a difference in a way voting for a candidate does not that could provide opportunity initiative and referendum McIntyre v. Ohio Elections Commn (1995) (leaflets at school before referendum) 1) Facts a) Woman fined for distributing unsigned leaflets at school meeting before referendum vote 2) Majority (Stevens) a) Holding: Ohios interest in preventing the misuse of anonymous electionrelated speech does not justify a prohibition of all uses of that speech b) Speech was political, so exacting scrutiny applies c) Overbreadth: no language limiting application to fraudulent/false statements d) Alternatives: OH has other means to limit fraudulent speech Republican Party of Minn. v. White (2002) (judge candidate views) 1) Facts a) MN Supreme Court prohibited candidates for judicial election in MN from announcing their views on disputed legal and political issues (announce clause) 2) Majority (Scalia) a) Holding: the announce clause restrictions are unconstitutional 3) Dissents (Stevens, Ginsburg) a) Restrictions here were precisely targeted; Court should have recognized difference between judicial and legislative elections FREEDOM OF THE PRESS There was a belief that media could make up for inequality Broadcast media owned by government and distributed through licensing In exchange for use of frequencies licensees had to agree to promote public interest in fair and balanced way Fairness doctrine upheld in Red Lion Enthusiasm built for approach in broadcast and print medias Nixon brought down by media investigation added to idea Journalists said they should be like a 4th Branch of Government as fiduciary and that should be protected under freedom of the press clause Stewart thought press should get free speech rights beyond that of ordinary citizens Thought was that this could be used to give press greater access to info in order to perform their function of informing the public and giving voice to public Branzburg (1972)

Stewart 4 justice opinion that became dissent argued that subjecting journalists to subpoenas hindered their ability to gather info o Need for an independent press argument o A corollary of the right to publish must be the right to gather news. [This right] implies, in turn, a right to a confidential relationship between a reporter and his source. White starts by granting premise of Stewart that for press to perform their role they need confidential sources and without some protections for news gathering freedom of the press could be eviscerated BUT Press has no greater right than any citizen to gather information Slippery slope o the press has traditionally included the lone pamphleteer uncertain destination o State legislatures are free to grant special privileges Powell concurs with White but interprets it as a case-by-case balancing test Many courts took Powells balancing test and ran with it Most states passed reports privileges

Richmond Newspapers, Inc. v. Va. (1980) (courtroom access) 1) Facts a) , in his fourth murder trial, moved to have public excluded from the courtroom, without objection by the prosecution; Court granted it 2) Majority (Burger) a) Holding: absent an overriding interest articulated in findings, the trial of a criminal case must be open to the public b) Importance of public knowing how criminal trials are conducted c) P 346 n.2: should the media enjoy greater access rights than the general public? Press is the agent of the citizens. 3) Concurrence (Stevens) a) Suggests the controlling principle is an FA right to gather news 4) Notes a) Seen as press biggest victory b) Court tries to avoid recognizing rights under the Press Clause (as Stevens would do), instead grants rights to the public at large, though such rights will mostly benefit he media Several cases of reports seeking access to prisons and even Stewart got worried 1st Amendment is not FOIA Transparency is not a part of 1st Amendment Law Miami Herald Pub. Co. v. Tornillo (1974) (right of reply statute) 1) Majority (Burger) a) Holding: struck down a Florida right of reply statute, which required any newspaper that assails the personal character of a candidate in any election to print, on demand, free of charge, any reply the candidate may make to the charges in as conspicuous a place and the same kind of type, provided the reply takes up no more space than the charges

b) Distinction: newspapers require editorial control, privately owned 2) Notes a) Press claiming a right of access to information, but denying the public access to the press Red Lion Broadcasting Co. v. FCC (1969) (fairness doctrine) 1) Facts a) FCC imposed fairness doctrine on TV and radio broadcasters where they had to 1) devote a reasonable percentage of broadcast time to discussion of public issues and 2) assure fair coverage for each side; had similar rules for political candidates in elections 2) Majority (White) a) Holding: upheld the access regulations b) Here, broadcast rights granted by government; worried about licensees monopolizing the frequency to the exclusion of fellow citizens c) There is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all. d) Broadcasters are proxies or fiduciaries of the public CBS v. DNC (1973) (paid editorial announcements) 1) Majority (Burger) a) Holding: FA does not require broadcasters to accept paid editorial announcements b) Editors rhetoric again; invoked journalistic independence or journalistic discretion; Fairness Doctrine would not serve interests here c) The role of the Government as an overseer and ultimate arbiter and guardian of the public interest and the role of the licensee as a journalistic free agent call for a delicate balancing of competing interests. 2) Dissent (Brennan) a) Worried about exclusion of non-mainstream ideas 3) Notes a) Parker: attempt to cure inequality with more inequality b) Prof. Tribe: CBS was firmly in the Red Lion tradition when it refused to consider the possibility that either the technologically scarce radio and television channels, or the finite time available on such channels, might be allocated much as economically scarce newspaper opportunities are allocated: by a combination of market mechanisms and chance rather than by government design coupled with broadcaster autonomy. Minneapolis Star v. Minnesota Commr of Revenue (1983) (ink use taxes) 1) Facts a) MN had sales and use taxes; changed them to set them up so that largest users of paper and ink paid use taxes 2) Majority (OConnor) a) Holding: taxing scheme violated appellants rights under the FA

b) Reasoning: here, the scheme helps them, but such schemes could hurt them i) Note: this is bad reasoning 3) Notes a) Parker thinks this opinion is garbage In 1987 FCC abandoned fairness doctrine Was it a good idea in the first place? - it was presumed media was capable of and wanted to serve the public interest I think they should be forced to wear wigs if they insist on wearing robes RP Its quaint to hear them squeaking like dinosaurs on TV talking about journalistic judgment RP Equal Opportunity to Participate in Speech Citizens United was more not less consistent with 1st Amendment precedent - Buckley, Bulotti, Arizona, Citizens United o There may be no restriction on or burden triggered by effective electoral speech when that restriction is placed on some speakers to redress an imbalance of power in that debate The marketplace is a political construct and it can therefore be reconstructed How could the legislature challenge this? - Flag burning and school prayer are the only issues where the court has stayed far from public opinion - Subsidy approach probably wouldnt work o Is it a good idea Would involve ordinary people sending voucher to mouthpiece Thats not political equality Incumbents would favor themselves Money finds a way The internet was supposed to solve all problems Political Equality The solution is direct democracy, law making at the ballot box, initiative and referendum. What do you imagine is wrong with democracy in America? - 6 possibilities on the chart Parkers problem - Its representative - Representation has broken down - It has broken down because representatives are alienated from the masses Iron Law of Oligarchy Whats the relationship between political and economic equality? Voting for representatives is inadequate. Right to petition is separate from right to speech.

Ginsberg seems to say there is 1st Amendment value to law making at the ballot box The fear of ordinary people is a symptom of our insecurity about ourselves Buckley v. Am. Constitutional Law Found. (1999) (CO ballot initiative regulations) 1) Facts a) CO requirements for ballot initiatives: i) Registered voters: Initiative-petition circulators must be registered voters ii) ID: Initiative-petition circulators must wear badge with their name on it iii) Disclosure: proponents of an initiative must report in an affidavit the names and addresses of all paid circulators and the amount paid to each circulator 2) Majority (Ginsburg) a) Holding: regulations i and ii struck down because they significantly inhibit communication with voters and are not warranted by the state interests (administrative efficiency, fraud detection, informing voters) alleged to justify them; disclosure requirements upheld b) Core political speech, but elections can be regulated to ensure fair, orderly process i) Applied strict scrutiny c) Registered voters requirement i) Decrease number of voices decrease audience members reached ii) Many citizens not registered to vote concern for their speech iii) State interest re: policing lawbreakers served by disclosure requirements d) ID requirement i) Fear of harassment of speakers, discouragement of participation in the political process strike down badge ID requirement e) Disclosure requirement i) Public has right to know where the money comes from 3) Dissent (Rehnquist) a) Limiting to voters okay b) Worried about out-of-state interests, political dropouts, felons FREEDOM Freedom is energy in the sense of power to/for rather than power over empowerment If we take freedom in a sense of energy/power it includes conflict it is through conflict that energy is generated and regenerated conflict is the great tonic any victory is temporary and provisional Does law generate conflict and empowerment? - Brandeis says freedom of speech is for reasoning o But reasoning has and requires energy - Holmes, Brandeis and Nietzsche quotes and Brennan in Times v. Sullivan - Speech should be as robust as possible

o Reject peace and order as a value SCOTUS in Reynolds says it will interpret free speech with reference to whether the claim promotes democratic politics Paradigm is right to vote - everyone can vote - and its realistic Issue of drown-out - current court has said limiting speech of some is not ok on the grounds it drowns out and distorts speech of others - Parker differentiates between speech and noise for purposes of drown-out o There can be no robust speech with a Robertss Rules of Order for speech o All ideological things should be up for grabs o Obscenity/Porn should not be protected Privacy - countervailing value to limit speech thats too loud or to captive audience - also figures inside free speech so that you may not be compelled to speak o Property rights at work Right to exclude Inconsistent with idea of freedom of speech What about the right to hide and recharge ones batteries at home Classic Democratic Paradox - what do you do if majority votes to shut down democracy, enforce orthodoxy, etc. o Holmes and Parker would say thats when you limit majority rule Thats what the 1st Amendment is for o But there might be some orthodoxies that are energizing Like the flag Wooley v. Maynard (1977) (NH license plates) 1) Facts a) JW ironically convicted of misdemeanor for covering up Live Free or Die on NH state license plates 2) Majority (Burger) a) Holding: requiring the appellee to display the motto on his license plates violated his FA right to refrain from speaking i) Similar to cases involving privacy 3) Notes a) Not really an FOA case, but put it here because this is where it showed up in the course b) Prof Tribe: double-irony here: as a result of the holding in this case, now everyone is forced to take a POV on the motto PruneYard Shopping Ctr. v. Robins (1980) (shopping center courtyard) 1) Facts a) Appellees wanted access to the central courtyard of a shopping center in order to solicit signatures for a petition opposing a UN resolution

b) CA SC construed state constitution to protect speech and petitioning in shopping centers, even when privately owned 2) Majority (Rehnquist) a) Holding: affirmed; appellants can disavow any connection with the message i) Unlikely anyone will think owner of shopping mall embraces this views ii) No specific message dictated by shopping mall (no Live Free or Die message) Shopping mall can disavow the message PG&E - Electric companies can exclude others from their bills Johanns v. Livestock Marketing Assn (2004) (pro-beef campaign) 1) Facts a) Government sponsored pro-beef campaign; not clearly marked as government speech 2) Majority (Scalia) a) Holding: compelled support of private speech raises FA issues, compelled support of government speech does not, and the beef promotional messages were government speech 3) Dissent (Souter) The public would not know that this speech was government speech Right to freedom of association is of same sort as freedom of speech NAACP v. Alabama - Can keep membership secret Does right to associate include right to exclude? Roberts v. United States Jaycees (1984) (male-only business club) 1) Facts a) US Jaycees limited regular membership to men aged 1835; admitted women and older men as associate members without full rights b) MN groups which admitted women and were challenged by the national Jaycees organization claimed national organization violated MN state discrimination laws 2) Majority (Breyer) a) Holding: upheld state antidiscrimination law, prohibiting a private organization from excluding a person from membership based on sex, because the state had a compelling interest in prohibiting discrimination which outweighed the First Amendment right of freedom of association. b) Two traditional kinds of association i) Freedom of intimate association Jaycees dont qualify; not very selective in membership, relatively big, not secluding kind of association Brennan says intimate associations can exclude Small, face-to-face

ii) Freedom of expressive association (1) Can exclude members whose joining would impair your ability to push the message you want to push iii) Most cases fall between two poles; in such cases, consider size of group, purpose, selectivity, etc. Also, even freedom of expressive association can be limited if limits satisfy strict scrutiny-type test

Hurley v. Irish-Am. GLIB (1995) (veterans parade and GLBT) 1) Facts a) Boston authorized veterans group to have a parade; GLBT group wanted to march, but was denied by the veterans group 2) Majority (Souter) a) Holding: the parade organizers can exclude the GLBT group because a speaker has the autonomy to choose the content of his own message Boy Scouts of Am. v. Dale (2000) (BSA and gays) 1) Majority (Rehnquist) a) Holding: BSA can exclude gay members b) BSA sincerely holds view that homosexuality is unacceptable, has an FA right to choose to send one message and not the other 2) Dissent (Stevens) a) Scathing dissent; denies that BSA had a clear and unequivocal view, which is especially important in discrimination cases o The only apparent explanation for the majoritys holding, then, is that homosexuals are simply so different from the rest of society that their presence aloneunlike any other individualsshould be singled out for special First Amendment treatment . . . [Though] unintended, reliance on such a justification is tantamount to a constitutionally prescribed symbol of inferiority.

Rumsfeld v. Forum for Academic And Institutional Rights, Inc. (2006) (campus recruiters) 1) Facts a) Solomon Amendment provides that if any part of an institution of higher education denies military recruiters access equal to that afforded to other recruiters, the entire institution would be deprived of federal funds 2) Majority (Roberts) a) Holding: the amendment did not unduly burden freedom of speech or association b) Regulates conduct, not speech c) Allowing recruiters access being forced to express a viewpoint i) Nobody will mistake recruiters speech for that of the university d) Cites PruneYard free to dissociate argument 3) Notes a) 80 decision