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Friday, January 22, 2016


10:22 AM



Schenck v. United



Debs v. United



Abrams v. United


Gitlow v. New



Clear and

Clear and present danger doctrine

First of the Free Speech trilogy
WWI leaflets case






Two pamplets--against Russian revolution intervention and war with Germany

Holmes dissent on its face adhered to clear and present danger, but actually examined the content of the
speech and argued for strict interpretation of the speech-limiting law. Holmes says that if the aim of the
speech is to obstruct the war, it would be punishable. But no danger of that here, and Congress can't
restrict all efforts to change minds.

Dennis v. US




Brandenburg v.


Incitement Seminal Case

Chaplinsky v. New 202



Texas v. Johnson



Fighting Words Certain words are by their very utterance an injury or tend to inflict breach of the peace
Lewd and obscene, the profane, the libelous, and the insulting or "fighting" words

Virginia v. Black



Watts v. United










New York Times v. 63



Debs speech case

Debs specifically opposed this war, not war in general, and the natural purpose of his speech was to
obstruct recruiting

Majority accepts state determination of what is a "clear and present danger" and thus applies an arbitrary
and unreasonable standard to an anti-speech law
Holmes dissents under clear and present danger test, argues that all ideas call for adoption and are thus
more than theories. If the speech calls for immediate action, it potentially is dangerous.
No longer good law. The idea that the court will be more deferential to laws targeting incitement has been
abandoned. The Holmes dissent on the propriety of deference still applies.
Vinson plurality: "Clear and present danger" requires court to ask whether the gravity of the 'evil,'
discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.
Immediacy is irrelevant, and in this case the Communist Party is ready to act whenever it sees that it can.
Chances of success is also irrelevant.
Frankfurter concurrence: Abandon clear and present danger test and defer to legislature.
Jackson concurrence: "Clear and present danger" test is more appropriate for classic cases rather than the
case at hand, which involves international or nation-wide conspiracy
Dissents (Black and Douglas): Free speech is the rule and not the exception. Must be an immediate
threaten to society. Undermine the majority's reasoning that the communist party is such a big threat as
to justify the restrictions here.

Brandenburg Test: There must be (1) an intent to imminently cause some type of unlawful activity, (2) that
is likely to create that activity.
Mere abstract teaching of moral propriety to resort to force or violence is not the same as preparing a
group for violent action and steeling it to such action. Statute unconstitutionally does not distinguish
between mere advocacy and incitement to imminent lawless action

Fighting Words Flag burning case

In light of Johnson, fighting words are limited to those that are likely to bring about an immediate
This category of words are limited to those in Chaplinsky
No subjective intent requirement - it's an objective stance

Cross burning case

Definition of threat: Threats of violence (and probably of other illegal conduct) "direct[ed] to a person or
group of persons with the intent of placing the victim of bodily harm or death"
The statute was struck as it had a provision that the burning of a cross was prima facie evidence that it was
intended to threaten
This robbed the defendant of the context-heavy analysis. There are valid political or theatrical/artistic uses
for cross burning. The act itself is not automatically offensive or threatening.
To determine whether the listener's response is reasonable, we must look at the whole context
Engaging in fiery political rhetoric, a defendant engaged only in mere political hyperbole when he said that
if he were drafted, he'd put the president in his sights. Audience laughed when he said it.
A heavily contextual analysis.
Boycott of white businesses is acceptable when it's politically motivated and not economically motivated
Mere advocacy of the use of force or violence does not remove speech from the protection of the First
Amendment (citing Brandenburg)
Enforcement of the boycott through social ostracism and fiery impassioned speeches threatening to break
the necks of boycott violators was all acceptable
Court is intent on being very very precise on what is a threat. Political hyperbole is acceptable. The threat
must be calling for something that is actually illegal (ie, not a political boycott, which is legal)
NY Times ran full-page ad containing statements about Montgomery police department's actions towards
MLK and students. Many of the allegations were false or misrepresented.
Court held that the commitment to robust, wide-open debate on public debate make clear that there's

First Amendment Page 1

Court held that the commitment to robust, wide-open debate on public debate make clear that there's
room for breathing room. We don't want to punish falsehood because it will squash some truth.
Takeaway: this type of speech has no 1A value (but it does cite Mill's On Liberty) but punishing it will have
a chilling effect on the truth
Must show that the Times printed this with actual malice or with reckless disregard for whether it was true
or not. Here, the NY Times followed normal ad protocol.

Gertz v. Robert
Welch, Inc.




Dun & Bradstreet

v. Greenmoss



Defamation Private

United States v.



Beauhranais v.



Defamation Historical

United States v.




Miller v. California 127



New York v. Ferber 178



Aschcroft v. Free
Speech Coalition




United States v.




Brown v. Enter.
Merchants Ass'n




Cohen v. CA



Texas v. Johnson



Content-Based Man wore shirt in court that said "Fuck the Draft", was charged with disturbing the peace
Court rejected a "fighting words" category, so the speech was not automatically unprotected. This is
content-based because it relates to word choice.
Emotive content of the speech is just as significant to public discourse as is the intellectual or cognitive

Buckley v. Valeo




Gertz represented family of kid shot by a cop when they sued the cop for civil damages.
Magazine ran a series that said that Gertz was basically a communist.
Holding: People are private citizens may have a lower burden to show defamation against a newspaper.
Only need to show negligence when you are not a public official.
How to determine whether person is public official: Look to the nature and extent of an individual's
participation in the particular controversy giving rise to the defamation. NOTE: He may be a limited public
figure but clearly is not a general public figure. If he was deemed a public figure merely by doing his duty
as a lawyer in connection with this case, then that would have a chilling effect on attorneys getting
involved in high-profile cases
Credit reporting agency erroneously reported to subscribers that plaintiff was going bankrupt. Reporter
corrected the mistake. Company sued.
This is a matter of private interest, not public interest. Only five subscribers were told of the bankruptcy.
Suing company does not need to show actual malice.
Open question as to whether strict liability would be alright where the matter is strictly private concern.
Man prosecuted for making statements critical of President Adams under the Alien and Sedition Act
Court went through each statement, noted that it could not be true, and held that the defendant
knowingly stated those things with the knowledge that they were not true

Defendant convicted of violating Illinois law banning the defamation of any race or group
Court held that the statute was valid. Deferred to group libel laws. If you can prosecute individuals for
libels, you can prosecute groups for libel as well. Court deferred to legislature's authority to impose such
laws to protect public peace.
Stolen Valor Act defendant claimed to have gotten the purple heart.
Lies are not an unprotected category under the first amendment.

Speech is unprotected if:

(1) the (i) average person, (ii) applying contemporary community standards, would find that the
work (iii) taken as a whole, (iv) appeals to the prurient interest; and
(2) the work depicts or describes (i) in a patently offensive way, under (ii) contemporary community
standards, (iii) sexual conduct specifically defined by the applicable state law; and
(3) the work (i) taken as a whole (ii) lacks serious (iii) literary, artistic, political or scientific value.
Child pornography is unprotected if: (1) it visually depicts children below the age of majority; and (2)
performing sexual acts or lewdly exhibiting their genitals.
Thus, it doesn't matter whether any of the Miller test prongs are met. Something can be pornography
about children, pornography that looks like it, etc. Pg. 177
California statute outlawed any film, photograph, computer generated image appearing to depict
children in pornography
Court clarified that there may be some value in depictions of people that look like children
None of the rationales for Ferber (ie, protecting children from harms of production) apply here

Animal cruelty videos banned

Majority led by Chief Justice Roberts struck down the law for unconstitutional overbreadth, since while the
underlying activity could be banned, dissemination of the footage could not. It bans videos of unlawful
animal abuse, but that varies wildly based on the jurisdiction
Ban on sale or rental of "violent video games" to minors, requires packaging to be labeled "18"
Majority (Scalia) struck it down--video games are clearly protected speech.
Dissent (Thomas): This is the state aiding parents traditional control over their children. No one at the time
of the nation's founding would have felt that controlling what kids are exposed to was within the realm of
the First Amendment.

Content-Based Flag burning case

If the state regulation is not related to expression, then the less stringent US v. O'Brien test applies. If it is,
then strict scrutiny applies.
This anti-flag burning law was passed to support Texas' interest in the flag as a symbol of national unity.
But that itself is a political view that can't be abridged.
Restrictions on Campaign finance laws limit speech, not conduct, because money is required to effect communication
Solution to not liking the composition of the marketplace of ideas is not to restrict speech.
Government tipped their hand by saying that equalization was its rationale. This means the government
knew it was targeting speech, not conduct.
For expenditure limits strict scrutiny applies.
First Amendment Page 2

First Nat'l Bank of 474

Boston v. Bellotti


Austin v. MIC
Chamber of


Citizens United v.



For expenditure limits strict scrutiny applies.

For contribution limits something between strict scrutiny and intermediate scrutiny applies.
Dissent: This is just similar to the time, place, and manner restrictions. It's not content-based at all.

Restrictions on Mass. Law prohibits corporations from making contributions or expenditures for the purpose of
influencing or affecting the vote on any matter submitted to the voters, other than one materially
affecting the property or operations of the corporation.
Main rationale: avoid quid pro quo or appearance of impropriety.
Could even be viewpoint-based, to prevent corporations from opposing corporate tax. However, is
content-based speech as well. Nevertheless, strict scrutiny applies.

Restrictions on There is a concern about corporate money overtaking speech and weakening democracy
Corporations can't spend money on candidates directly
Corporations could create PACs, however, as that keeps the money separate and is solely for that purpose.
Couldn't take general corporate wealth and spend it on elections.
Restrictions on Majority: it's a natural part of democracy that people will support the candidates they like, and there will
be some gratitude from the candidate. The law is broadly targeted at that, and not just quid pro quo
corruption, and thus there is no narrow tailoring. Corporations out spending their own money making ads
are not the same as donations sent in coordination to a candidate. Doesn't pose the same danger.
This isn't special access, this is democracy. We have support manifested through spending, and we
have responses elicited from candidates.
More speech is better. More in the marketplace of ideas.
Even if this is a bad solution, it's the least bad solution. Large corporations will always have the
ability to get involved in backroom meetings with politicians. Campaign finance laws restrict large
and small corporations, but small corporations suffer more due to limited access.
Dissent: Many corporations give money to both sides. Clearly then, this is more transactional speech. Plus,
even if the majority is taken at its word that there is no special access here, this paves the way for special
access and quid pro quo corruption.

McCucheon v. FEC


Restrictions on Plurality + Thomas concurrence struck down limitation on aggregate campaign donation limit
Concurrence would have overturned Buckley and applied strict scrutiny to this case. Would have said that
strict scrutiny should apply to contribution limits as well as expenditure limits.

Virginia State Bd. 261

of Pharmacy v.
Virginia Citizens
Consumer Council


Ohralik v. Ohio
State Bar Ass'n




Central Hudson v.
Public Serv.




Sorrell v. IMS
Health Inc.




RAV v. City of St.




Virginia v. Black



Content-distinctions within unprotected speech categories get 1st Amendment (strict) scrutiny
Discrimination Such content-distinctions are okay if they pass strict scrutiny. BUT narrow tailoring not deemed to exist if
unprotected speech restrictions without internal content distinctions could achieve same interest!
Additional exceptions:
Basis for "content discrimination consists entirely of the very reason the entire class of speech at
issue is proscribable"
Restriction targets only secondary effects of speech (we will study secondary effects doctrine later)
Words "swept up incidentally" in statute "directed at conduct"
Whenever there is no reason to suspect that "official suppression of ideas is afoot"


Government regulations forbid pharmacies from advertising prices.

Majority struck down the ban. Marketplace of ideas requires a free flow of ideas.
Not all commercial messages are deprived of protection, nor is speech made commercial just because
money is spent on it
Paternalist approach, where government makes choices on behalf of what it thinks their citizens want to
hear, is wrong.

State may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely
to pose dangers that the state has a right to prevent
Protecting vulnerable people from vexatious conduct is a legitimate interest
If the state were required to show actual harm, client solicitation attempts (which are largely private)
would be virtually immune from the state's equalizing interest
Law barred utilities from advertising off-hours usage, as a means of saving energy.
First Amendment assumes that some accurate information is better than no information at all.
Four-part test (in between strict scrutiny and intermediate scrutiny):
Determine whether the expression is protected by First Amendment. For commercial speech, it at
least must concern lawful activity and not be misleading.
Next, we ask whether the asserted government interest is substantial.
If the answer to both of those is "yes," we determine whether the regulation directly advances the
government interest asserted; and
Determine whether it is not more extensive than is necessary to serve that interest.

Law banned "detailing" when pharmaceutical salespeople presented to doctors

Law struck down because we are dealing with information. The choice between information available and
the dangers of when it's misused is a choice that the First Amendment makes for us.

Virginia statute banned cross burning with an intent to discriminate, and made the act prima facie
Discrimination evidence of intent to discriminate.
Majority: A state may ban cross-burning with an intent to intimidate. This would fall under the truethreats exception to the First Amendment. However, to the extent that this statute states that crossburning itself is prima facie evidence of an intent to intimidate, it is struck down. Cross-burning can be a
message of shared ideology.
Dissent (Thomas): Cross-burning ban is regulation of physical acts, not a regulation of speech. Further, due
First Amendment Page 3

Frisby v. Schultz




McCullen v.




United States v.




City of Renton v.
Playtime Theaters,



City of Los Angeles 371

v. Alameda Books,



Reed v. Gilbert

Near v. Minnesota 700





Rust v. Sullivan



Dissent (Thomas): Cross-burning ban is regulation of physical acts, not a regulation of speech. Further, due
to the association of cross-burning with terrorism, it should be an exception to the First Amendment.
Dissent (Souter): Under RAV v. City of St. Paul, cross burning is constitutional.
Picketing outside an individual home prohibited by local ordinance
Majority: (1) This is content neutral (easy question); (2) the substantial government interest here is
residential privacy. Home is the last citadel to retreat from the world; (3) This is narrowly tailored. It
doesn't prohibit entering or picketing neighborhoods, just targeting individuals.
Dissent: to the extent there's a harm here, it is not narrowly tailored. You can regulate time, place, and
manner. You can regulate the number of protestors, how often they can protest, etc.

Single Mass. abortion clinic was picketed once per week. State law barred people from protesting within
35 feet of a place, other than a hospital, where abortions are performed
Majority: Content neutral time, place, and manner law. The law must be struck down. It is not narrowly
tailored. Thus we need not discuss whether alternative channels of speech exist.
Dissent: This is really content-based. (Note: under strict scrutiny, the law also could not stand. The court's
nine justices agreed on the result)

O'Brien burned his Selective Service registration certificate to influence others to adopt his antiwar beliefs.
He was tried for violating a federal statute that punishes those who forge, alter, or knowingly destroy or
mutilate those certificates.
This is content-neutral. There is nothing necessarily expressive about the burning of the cards. We cannot
accept the view that any activity can be labeled "speech" when the person engaging in the conduct wishes
to express an idea.
The government interest is administrative in nature. There is a government interest in having these
"receipts" readily available. If there's a national emergency, we can easily ensure quick registration.
The law is narrowly tailored to this government interest. O'Brien was prosecuted for his action, and
nothing more. There is no other legislation that can ensure the availability of the cards.
Local ordinance prohibits any adult motion picture theater from locating within 1,000 feet of any
residential zone, single- or multi-family dwelling, church, school, or park.
The law is aimed not at the content of the speech here, but rather the secondary effects of such theaters
on the surrounding community. Predominate intent was the city's pursuits of zoning interest, rather than
the suppression of free expression.
Thus, it's content neutral. Zoning/community protection is a substantial interest. Narrow tailoring is here,
and the ordinance may be under-inclusive (as it only targets adult theaters) but we can't assume that the
city will not amend its ordinance to include other kinds of adult businesses with the same types of
secondary effects.

Issue: Is a city ordinance that prevents more than one adult entertainment business from operating out of
the same premises unconstitutional with regard to the First Amendment?
Majority: No. A city has the authority to establish what concentration of adult businesses in a locality will
be conducive to a reduction in the crime rate, and whether they should be restricted as to one or more
buildings. This ordinance does not restrict speech based on content (it is content-neutral) but instead
targets secondary effects.

Content-Based Odd sign ordinance with all these exceptions (political signs can be displayed in certain ways, etc)
Clearly content-based. Must look to content to determine how the law applies. It may seem like time,
place, and manner, but because it decides what type of speech gets what treatment, it's content-based.
Even if the reasons for the ordinance has nothing to do with content, if it draws a content distinction, we
need a hard-and-fast rule
Majority is straightforward, concurring opinions ask for a common-sense approach. For example, treating
content-based restrictions differently when there is no official censorship afoot.

Content-Based Minnesota "gag" law prevented people from creating a "public nuisance" through publishing "scandalous"
Restrictions or "defamatory" newspapers.
Prior Restraint Majority: This is unconstitutional. Censorship is generally unconstitutional, unless the balance is tipped by
the necessity of maintaining an orderly society.
No prior restraint of the content of news by the government is allowed unless it reveals crucial military
information, contains obscenity, or may directly incite "acts of violence".
Property Public Forum

International Society for Krishna Consciousness, Inc. is not-for-profit religious corporation whose members
perform a ritual known as sankirtan, where they visit airports to hand out literature and seek donations.
Airport responded by (1) banning leafletting and (2) soliciting immediate payment of money.
Justices split on the issues of (A) whether an airport was a traditional public forum and (B) accordingly,
what level of scrutiny to apply to each ban.
Majority of justices found it a nonpublic forum, and a majority applied reasonableness. A majority found
the leafletting ban unconstitutional (all four justices that would have found it a traditional public forum
said that it failed the intermediate scrutiny test, plus Justice O'Connor, who believed that it was
unreasonable). 6-3 majority found the solicitation ban constitutional.

Government as Title X of Public Health Service Act provided funding to non-profit healthcare organizations to assist in the
Subsidizer /
establishment of voluntary family planning projects to offer a broad range of acceptable and effective
family planning methods and services. Regulations implementing the law barred recipients from using
government funds to promote or discuss abortion
The restriction differentiates between a Title X grantee and a Title X project. The regulations govern the
scope of the projects. A Title X grantee can still engage in abortion advocacy.
First Amendment Page 4

Agency for Int'l

Development v.
Alliance for an
Open Society


Walker v. Sons of
Confed. Vets



Rosenberger v.



Nat'l Endowment
for the Arts v.



Legal Services
Corp. v. Velazquez


Connick v. Myers



Rankin v.



Garcetti v.



scope of the projects. A Title X grantee can still engage in abortion advocacy.

Government as The Leadership Act outlined a comprehensive strategy to combat the spread of HIV/AIDs around the
Subsidizer /
world, and Congress authorized billions to fund nongovernmental organizations to assist in the fight
Two conditions on funding: (1) no funds provided by the Act "may be used to promote or advocate the
legalization or practice of prostitution or sex trafficking; and (2) no funds may be used by an organization
that does not have a policy explicitly opposing prostitution and sex trafficking.
Majority: This is not like Rust, which distinguished between the speaker and the programs that the federal
funds went towards. This act requires the recipient to adopt a viewpoint and essentially making speech.
Dissent: This is just like Rust, because the government can condition use of its funding to ensure that the
funds are used properly and the purpose of the funding is not undermined.

Government as Texas permits people to design their own license plates

Subsidizer /
Sons of Confederate Veterans wanted a Confederate flag on their license plates
Majority: This group cannot force Texas to speak. In the case of license plates, the content is a form of
speech by the state. State need not convey a pro-Confederacy message if it chooses not to.
Dissent: This isn't government speech. Look at the program itself. Look at the other designs that have been
approved. If we too readily allow things to be designated as government speech, it can be very dangerous
to free speech.

Government as University of Virginia had a policy of paying the printing bills of newspapers run by student groups, so long
Subsidizer /
as the newspapers did not "primarily promote or manifest a particular belief in or about a deity or an
ultimate reality"
Christian student group wanted to take advantage of the program
Majority: When the government is conveying its own message, it can shape it as it pleases. But here, there
is a virtual forum of some type. It's not quite a traditional public forum, it's more limited than that. This is a
pretty specific program with a mission, not akin to opening a park or the like. The government cannot
discriminate based on viewpoint in a limited public forum. Discrimination in a limited public forum must
be reasonable in light of the purpose of the forum and not be viewpoint-based.
Dissent: This decision implies that there are only two viewpoints on any topic, and that this position of the
university suppresses one viewpoint and leaves the other untouched. This is actually a subject-matter
Government as NEA has a lot of discretion to award grants, with limited guidelines including looking to artistic merit.
Subsidizer /
In 1990, Congress amended the criteria by requiring the NEA to consider "artistic excellence and artistic
merit taking into consideration general standards of decency and respect for the diverse beliefs and values
of the American public."
Question: Are the Congressional guidelines mandating that NEA consider "decency and respect" overly
Majority (8-1): No express viewpoint discrimination here. Scalia concurs and says that this case is like Rust.
When the government is the speaker, it can say whatever it wants. When it gives money to doctors, it can
restrict speech of the doctors in that program. Same as this case. The government is giving the money, and
can condition receipt of the money on whatever it wants.
Government as Legal services grants provided to local grantees for welfare matters in court.
a Subsidizer / The prohibition was such that grantees could not continue representation in a welfare matter even where
a constitutional or statutory validity challenge became apparent after representation was well under way.
Majority: First, lawyers speak for their clients. That speech is private. This is viewpoint-based restriction on
private speech. Thus, this is like Rosenberger and not like Rust. This skews the traditional roles of lawyers
and disrupts the judiciary, all while insulating federal law from legitimate opposition.
Dissent (Scalia): The act "does not directly regulate speech, and it neither establishes a public forum nor
discriminates on the basis of viewpoint."
Government as Attorney in DA office, upset at a transfer, composed and printed and distributed a questionnaire asking
about how office felt about how the office was run, about transfer policies, about whether they felt
pressured to work on public campaigns.
Majority: Apply Pickering test. The one question on the questionnaire about the political campaigns is of
public concern. Matters of public interest are not limited to matters that involve the public, but rather any
speech that touches the political sphere. The speech here was mainly just office politics, and was
Dissent: All of the questions on the questionnaire relate to an office operated for public funds and
questions about potential mismanagement. These matters are intrinsically of public concern. Majority is
also extremely deferential in balancing the government and employee interests. If merely thinking that
asking about matters of public concern could be so disruptive, then it leaves too much speech
Government as Issue: whether the protection of the First Amendment extends to government employees who make
extremely critical remarks about the President.
Majority: This is at the "heart" of the First Amendment. While direct threats on the President's life would
not be protected speech, a comment even an unpopular or seemingly extreme one made on a
matter of public interest and spoken by a government employee with no policymaking function and a job
with little public interaction, would be protected.
Dissent: This was only slightly removed from a direct threat on the President's life. Balancing test should
balance the employee's right to speak against the Constable's right to prevent such speech from occurring
in the office. One does not have a right to "ride with the cops and cheer for the robbers"
Government as DA staff attorney reviewed affidavit on a warrant, and found several issues that were concerning to him.
First Amendment Page 5

Garcetti v.



Lane v. Franks



Government as DA staff attorney reviewed affidavit on a warrant, and found several issues that were concerning to him.
He wrote a memo to supervisors stating his concerns about the misstatements. A meeting with the
sheriff's office affiant and the attorney and his supervisors turned heated, and attorney testified about his
concerns for the defense.
Majority: Attorney was speaking (in the memo) in his official duties, and so it has no 1st Amendment
protection. This threshold question ends the inquiry. This was implicitly included in the prior cases--in
particular, we've always asked in the first prong of Pickering whether the speech was made as a citizen in a
matter of public concern.
Dissent: This creates a perverse incentive to speak publicly and not through internal channels to avoid this
"speaking as an employee" problem. The majority's test is too extreme; too black and white.

Government as Lane ran a community college program, ran an audit, and found a state rep. had abused the program. Lane
testified at the rep's trial later. Lane then had a new boss, and was fired, allegedly for this speech.
Majority: This was speech made "as a citizen" and also in the course of Lane's duties. Truthful testimony
demanded by subpoena, is quintessential speech made by citizens and subject to First Amendment
protections. The mere fact that he testified about information that he learned on the job does not make
this Garcetti speech.
As to the Pickering test, this was clearly a matter of public concern. For the second prong, the
government's side of the scale is entirely empty.
Concurrence (Scalia): We need only apply Garcetti here. Lane spoke "as a citizen" because he was not
testifying within the scope of his employment.

Miami Herald Pub. 514

Co. v. Tornillo



Pacific Gas & Elec. 520

Co. v. Public Util.
Comm'n (PG&E)



Broadcasting Sys.
v. FCC




Hurley v. Irish527
American Gay,
Lesbian & Bisexual



West Virginia
State Bd. Of Ed. v.



Wooley v.




Shopping Center v.



Florida statute granted a "right of reply" for candidates who have their character assailed by a newspaper.
The reply must be printed, free of cost to the candidate, in a conspicuous place in the newspaper. Failure
to comply would be a misdemeanor and would also give rise to a civil suit.
Majority rejects argument that the Framers' understanding of newspapers as a true marketplace of ideas
no longer holds up
Government-enforced right of access inescapably "dampens the vigor and limits the variety of public
This law intrudes into the function of editors too much.
Concurrence (White): This turns the government into a censor. The balance struck by First Amendment is
to favor private control of what people see and read.
Note: Content-based trigger for this. Strict scrutiny should apply. Forces association with the message, in a
private vehicle in speech. Then, once strict scrutiny is established, note that there's no compelling interest
here and it's not narrowly tailored. (could the government require that the newspaper say "Senator X
disputes all or part of the article published last week." ? After all, there's no content there.
California's Public Utilities Commission decided that envelope space of the utility company's newspaper
was public property, and permitted Toward Utility Rate Normalization (TURN), an advocacy group, to use
some of the envelope space.
Majority: Compelled access as ordered in this case both penalizes the expression of particular points of
view and forces speakers to alter their speech to conform with an agenda they do not set. Utility forced to
carry speech with which it disagreed, and might then feel compelled to respond. It discriminates on the
basis of viewpoints, as the envelope space is limited to persons or groups. It requires appellant to
associate with speech with which appellant may disagree.
Cable television providers are required to assign up to one-third of its programming to local channels.
Must give space to all who apply, and may choose what it wants to carry if too many channels apply.
Majority: Regulation is constitutional. Much less degree of intrusion. People already know that cable
television stations regularly carry the messages of others; less chance of people assuming that the cable
station itself is speaking. Finally, cable television enjoys a monopoly, unlike newspapers (or websites).
Content-neutral in application.
Gay, lesbian, bisexual descendants of the Irish immigrants organized GLIB to march in a parade.
Government's public accommodation law cannot force council to include group in its parade.

Pledge of Allegiance was made mandatory for students in schools.

"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."
Dissent: "Saluting the flag suppresses no belief nor curbs it." (Dissent maybe suggest this is action, not
speech?) People are free to believe or say what they wish.

New Hampshire required non-commercial drivers to display the motto "Live Free or Die" on their license
Majority: State cannot do this. It turns appellees and their private vehicles into "mobile billboards" for the
state's ideological message or suffer a penalty.
Where the state's interest is to disseminate an ideology, no matter how acceptable to some, such interest
cannot outweigh an individual's First Amendment right to avoid becoming the courier for such a message.

Privately owned shopping center that was open to the public attempted to stop high school students from
handing out handbills and setting up a stand in protest of Israel. Shopping center regularly stopped people
from handing out information.
California Supreme Court held that the owner of the shopping center had to permit protests on its
property. Owner argues that this decision violated his First Amendment Right.

First Amendment Page 6

Speech /

property. Owner argues that this decision violated his First Amendment Right.
Majority: It is not a constitutional violation for the California Sup. Court to hold that right to free speech
could be exercised on the property. First, there's no chance that passersby would assume the owner was
speaking. Second, no specific message has been dictated by the state. Third, owner can expressly disavow
any views held by protesters.
Dissent: The result in Wooley ("Live Free or Die") would not have been different had the state required the
slogan to be used in shop windows instead of cars. That case applies here.

Rumsfeld v. FAIR



Roberts v. U.S.



Boy Scouts of
America v. Dale



Burwell v. Hobby

52 (64)

Exemptions RFRA Regime

Holt v. Hobbs




Lemon v.
Kurtzman [Lemon



Zelman v.



Establishment To be constitutional:
1. A government action must have a secular legislative purpose;
2. The action's principal or primary effect must be one that neither advances nor inhibits religion;
3. The action must not foster an excessive government entanglement with the religion.
Note: This test is overly general, and is often ignored.

Marsh v.





Law school sought to avoid posting notices that Army recruiters were on campus.
Majority: No First Amendment violation. This is conduct-based, not content-based.

Jaycees are an organization that allows full voting membership for young men only. Women and older
men can become associate members, but not full voting members.
Minnesota Department of Human Rights concluded that the exclusion of women violated the Minnesota
Human Rights Act. Jaycees argue that women may change the nature of the group and alter the group's
Majority: Two types of freedom of association: intimate and expressive. The Jaycees are an expressive
association because their organization is quite large. While the Jaycees argue that women might not agree
with the group's message, the Jaycees need not accept any members--men or women--who disagree with
what the group wants to do. The state here has a substantial interest in preventing discrimination and it
achieves that goal in the least intrusive way.
Concurrence (O'Connor): If the Jaycees had a history of opposing women, would that change the court's
analysis? It shouldn't depend on what their members say or why they say it. There is minimal
constitutional protection of the freedom of commercial association. A shopkeeper has no constitutional
right to deal only with persons of one sex.
Excellent Boy Scout applied to be a Scout Leader. At college, he became co-president of the local Gay
Lesbian Alliance. Boy Scouts rejected his application due to homosexuality.
Majority: This would be a substantial burden on the Boy Scouts. Anti-homosexuality is part of the group's
"expressive image". The Boy Scouts' official position tells us as much, and it is not important that all
speakers have the same view on the matter.
Dissent: Membership is not a substantial burden.

Hobby Lobby opposed (under RFRA) the HHS mandate that it provide contraception to its employees.
Majority: This is a substantial burden on the exercise of religion. Strict scrutiny applies here. Thus, we must
determine whether (1) there is a compelling government interest and (2) the least restrictive means of
achieving that interest is used. However, we won't decide whether there is a compelling government
interest, since we believe that the means are not narrowly tailored. However, if this is really a compelling
interest, there shouldn't be any exceptions (whether it's a small business, non-profit, church, etc). Less
burdensome means of achieving the interest (even if it is compelling), the government could fund
contraception directly, or do what the ACA already does, but extend the exception to for-profit
corporations that are significantly burdened.
Under RLUPA (essentially a RFRA for prisons), Holt seeks exemption from prison rule requiring him to
shave beard. Seeks to maintain a 1/2 inch beard to fulfill religious directive as a Muslim. Issue: is there a
substantial burden? If so, does the non-exemption pass strict scrutiny.
Majority: There is a substantial burden here. Holt is faced with the choice of violating religious tenets or
prison rules. It doesn't matter that not all Muslims follow this belief. It's not some made-up thing--it's a
sincere religious belief. We don't need to get into the weeds and determine whether it's a substantial
burden. It's a real belief, that is burdened. Strict scrutiny applies. There is a compelling interest here
(security [sneaking in contraband], safety [facial recognition], etc). However, there is not narrow tailoring.
People with medical conditions have a 1/4 inch beard. The government has problems with consistency
here. Further, a 1/2 inch beard can't conceal much.

Establishment Ohio state gave money to families with children in the Cleveland school district. Students could choose to
attend a private school with a voucher, attend their current public school with a tutoring credit, or public
schools in adjacent districts could accept vouchers as well (though none did).
Majority: Lemon test: (1) Clearly this is a secular purpose. (2) This program doesn't directly affect religion.
The state gives the choice and money to the parents, who then use their voucher money where they want.
This is a secondary effect on religion, not a primary effect. Further, the program itself does not favor
religious schools. (3) This is a neutral with respect to religion.
Dissent (Souter): The proper impact should be on the actual impact of the program. This funds activities
that religious schools do or promote. It directly advances religious instruction (point 2). It entangles the
government in religion (point 3).
Dissent (Breyer): This actually harms religion because it forces religious schools to compete with secular
schools for dollars, and forces them to cater to secular preference. It entangles the government in religion.
Establishment Nebraska legislature begins each session with prayer offered by a chaplain who is chosen by the Executive
Board of the Legislative Council and paid out of public funds.
First Amendment Page 7



Town of Greece v. Supp.



Rosenberger v.



Locke v. Davey



Board of the Legislative Council and paid out of public funds.

Majority: This is not a violation of the Establishment Clause. A review of history shows that the First
Congress appointed and paid a chaplain as one of its first acts. Thus the Framers of the First Amendment
didn't consider it to be a violation of the First Amendment. Prayer gets all legislators on the same page and
represents community values and creates a sense of gravity of the legislative duty. It's not religious
indoctrination. The Presbyterian minister here was asked back for 20 years because he performed his
duties well, not because he's Presbyterian. He's also not proselytizing, and we won't get into the weeds of
the content of the prayers.
Dissent (Brennan): It's erroneous to assume that the First Congress would not violate its own amendment,
for political reasons. The majority also forgets that the states approved the First Amendment, not the First
Congress. Note that the Constitution does not refer to a deity! The majority focuses on historical practice
only, and traditional violations of the Constitution will not save a modern-day unconstitutional practice.

Establishment Prayers uttered at beginning of town meetings. The prayers were more clearly Christian. They regularly
involved Christ and the cross, etc. Nobody contends that having some type of prayer was a problem. Does
Marsh extend to the town council meeting context?
Majority: The Christian makeup of the town was reflected in the meetings. The council searched for prayer
leaders from within the town, including looking in the phonebook. That's neutral. This is not coercive
because people are free to not pray or to leave. These are adults and are not subject to influence.
Dissent: This is absolutely coercive. A Muslim woman who arrives for a variance will have to ostracize
herself from society.
Establishment Background (earlier examination): Christian school group successfully challenged UVA on free speech
grounds for creating a virtual limited public forum by paying printing bills for student newspaper
enterprises, but discriminated based on viewpoint by not permitting student groups from participating in
the program when they advocated for belief in a deity.
Current Establishment Clause issue: UVA suggests that if this rule was not imposed, the university would
violate the Establishment Clause. UVA raises this as a defense to the Free Speech challenge. The
presumption against viewpoint restrictions was thus overcome because the restriction met strict scrutiny.
Majority: UVA is not the speaker here. A neutral regime for determining what to fund that does not favor
religion overtly provides only incidental benefit to religion. Thus, there is no violation of the Establishment
Clause when a religious student organization meets the requirements of a neutral funding test and is
funded. The presumption that a viewpoint-based restriction is unconstitutional has not been refuted.
Dissent: The paper here is clearly religious in nature. Look at the text. It asks for readers to adopt
Christianity and to prepare for salvation. The University funds this speech, thereby endorsing or
supporting it. The majority asks for neutrality, but uses an Establishment Clause analysis to support that
neutrality. In other cases, the Establishment Clause required much more indirect benefit to religion. Here,
UVA directly funds proselytizing.

Establishment Washington legislature had a Promise Scholarship Program. It was awarded to academically gifted
Clause and
students and could be applied to any college major so long as the student wasn't studying devotional
Free Exercise
Davey had a double major in business administration and theology, and argued that the Washington
Clause Tension
program unconstitutionally violated his Free Exercise right under the Constitution. Question is whether the
Washington state constitution (which prohibits the state from using public money to any religion worship,
exercise or instruction, or the support of any religious establishment) violated the Free Exercise Clause.
Majority: No Establishment Clause issue because a third-party (the student) has a choice which creates a
barrier between the state's use of funds and the support for religion (the Court cites to the school cases).
This burden on religion is minute, and so it doesn't trigger this strict scrutiny analysis.
Dissent (Scalia and Thomas): This program is not even-handed and neutral, either on its face or under the
surface. Strict scrutiny thus applies. The only possible compelling interest to survive strict scrutiny would
be to avoid an Establishment Clause issue, which is not present here under the majority's analysis.

First Amendment Page 8