This action might not be possible to undo. Are you sure you want to continue?
The key is protecting political speech. b. The marketplace of ideas is the way to arrive at the truth. c. A way to protect minority views/minorities. d. Protect right of self-expression. This includes art and literature. e. Fostering tolerance f. To prohibit censorship/licensing. Prior restraints. Free exercise/Freedom of thought, a. Nonconformists i. The First Amendment can be totally different in different contexts. ii. The free exercise cases also raise issues of symbolic expression and the right not to speak. iii. The Framers had three schools of thought when it came to religions 1. Separate the two because you want to save churches from worldly corruption 2. Safeguard the secular world from religion (Jefferson) 3. Both benefit from being separate (Madison). iv. Discriminating Against Religion 1. Minersville School Dist. v. Gobitis a. The kids are expelled from public school for refusing to salute the flag. b. The children were Jehovah’s Witnesses c. Frankfurter starts the case as a religious case and whether there should be an exemption for religion. d. He is balancing the interest in national unity vs. the interest in individual liberty. i. Frankfurter says that national unity or national security is a very important interest. ii. But religion is an important interest iii. So he is balancing the two e. The balance test is a little more than rational basis because he is saying religious rights are important. But this time period has not quite formalized rational, intermediate and strict scrutiny. f. What Frankfurter does not do is look at the means. Does mandatory flag salute really promote the values? g. He is essentially doing a due process test under the 14th Amendment, while sort of incorporating the 1st Amendment. h. But the justices are reluctant to overturn a state law i. This has to do with the backdrop of Lochner
ii. This is why Frankfurter says we would become the school board of the country if consider whether this was the best way to achieve unity. iii. The court room is not the arena for debating educational policy. i. And because of this reluctance, the Court upholds the law allowing schools to compel the recitation of the pledge of allegiance. j. Frankfurter is also saying if you really object, you can mobilize and change the law. i. The problem is if a minority that is greatly disliked, is that possible? k. Stone is the only dissent. i. He cites to the Carolene Products footnote, discussing how the court needs to be especially vigilant when the law is prejudiced against discrete and insular minorities. 2. Cantwell v. Connecticut (1940), the same year as Gobitis, the Supreme Court incorporates the 1st Amendment through the 14th. 3. West Virginia v. Barnette a. Same issue. Flag salute case where kids can be expelled for not saluting the flag. b. The justices rule on the right to not speak, a right of conscience. i. To sustain the compulsory flag salute, the court would have to say the 1st Amendment allows the gov’t to compel a person to utter what is not in his mind. c. The strike down the law referencing current events: i. The decision adheres to the strength of individual freedom of the mind in preference to officially disciplined uniformity, for which history indicates a disappointing and disastrous end. d. The court says you need more than a rational basis when infringing on freedom of speech, the press, assembly, and worship. e. What changed between Gobitis and Barnette? i. National unity less of a concern. WWII has begun so people are unified. ii. It is clear that these laws are targeted at Jehovah’s Witnesses. There was a flurry of such laws after Gobitis. f. Frankfurter in dissent has backed off the balancing test further. Now he applies a rational basis test. 4. McDaniel v. Paty
a. Tennessee had a law preventing ministers from holding public office. b. Supreme Court found the law to be unconstitutional. 5. Reynolds v. United States a. The case involved a Mormon practicing bigamy. b. The Court said that bigamy was an action. The government can restrict actions but not beliefs. 6. Church of the Lukumi Babalu Aye v. Hialeah (1993) a. The case involved the practice of Santeria religion, which requires animal sacrifice. b. The animal is cooked and eaten except after healing and death rituals. c. The Santeria church announced it was going to open a church in Hialeah, and the city council had an emergency session and adopted ordinances that outlawed animal sacrifice. d. Kennedy writes the opinion of the court i. In a part only getting 4 justices (including Kennedy) he examines the motivation of the city council. ii. Scalia dissents from this part. He is highly critical of this kind of examination into motivation. e. Kennedy’s majority finds that the statute was discriminating against the Santeria. i. He says the text of the statute, particularly the words sacrifice and ritual, indicate a discriminatory purpose. ii. Also, if you look at the record, you see that the resolution is aimed at “certain religions” iii. And the only purpose of some exemptions is so Kosher slaughter is not affected. v. Neutral Laws Adversely Affecting Religion 1. The progression will lead up to the rule in Smith. Then states in response who say they apply Sherbert. And Congress will pass RFRA, which the Supreme Court will interpret as applying to federal statutes, not the states. 2. McGowan v. Maryland (1961) a. The case involved Sunday Closing Laws or Sunday Blue Laws. b. Note that this is an establishment clause case. The appellants did not allege any infringement of their own religious freedoms, so no free exercise issue. The court says the only injury is economic, so they don’t have standing. c. The laws in question have some exceptions for bathhouses, amusement parks, etc.
4. The argument against is this is unfair to orthodox Jews who take Saturday off and then are forced to be closed Sunday. i. If the law had as its purpose to discriminate or restrict free exercise that would be unconstitutional. But they say the question is whether the laws today still retain their religious character. If it allowed certain people exceptions. The practical effect of these laws is to severely hamper the free exercise rights of the defendants. Court says that you can’t strike down law that has only an indirect burden on the exercise of religion in this way. iii. b. The Court held that a town could pass the laws because of a secular interest in the health of the populace or for the enhancement of the recreational atmosphere of the day. c. ii. Verner (1963) . The Court does admit that the laws were originally motivated by religious purposes. You cannot exalt administrative convenience over free exercise. A similar law that prohibited the retail sale of certain commodities. Part of the argument is we need the same day so that there is a sense of quiet. and that would be problematic. f. Brown (1961) a. If we don’t choose the same day. d. Brennan dissent in part i. ii. ii. iv. g. The state has an interest in setting aside a day of rest. The idea is the law requires them to give up their religion or choose a new profession. Also the businesses would have to discriminate by religion in their hiring so they could stay open on those days.d. h. i. Braunfeld v. including getting people to go to church. Sherbert v. iv. it will defeat the purpose. The establishment clause analysis is similar to McGowan. and it is allowed to do that if the goal of the regulation is a secular goal. iii. particularly given the changes in the laws over the years. And businesses open on Sunday might get an economic advantage. the case also has a free exercise challenge as part of it. 3. it would be difficult to enforce who had those exceptions and ensure they were staying closed one day a week. e. While the law is similar. Here the state is regulating general conduct.
Amish want to keep kids home after finishing the 8th grade. ii. d. She was fired because she would not work on Saturday. 1. 2. He rejects the distinction between belief and action in this context. 3. South Carolina denied her request for unemployment because the law required her to be available for work which was defined as being available to work on Saturdays. Douglas dissents a. the state has to show this is the least restrictive means of achieving the interest. . He applies strict scrutiny. Burger majority applies strict scrutiny. in violation of compulsory education law. g. It must be the least restrictive means for achieving the interest. d. All the state offers is a fear of filing fraudulent claims by unscrupulous claimants. Thus there is pressure on her to forgo her religious practice. Here there is no compelling state interest. c. c. 5. He says the Amish have a long history of being successful and self-sufficient and so the state interest in an additional year of education is not that strong. There is no real evidence of this. ii. b. e. iv. A compelling governmental interest b. iii. Yoder (1972) a. The family is fined $5. Thus the question is whether there is a compelling state interest to justify the burden on her religion. She was unable to find other employment because she would not work on Saturday. He also said there is a difference between philosophical beliefs. The court is still using the strict test of Sherbert. Wisconsin v. Even if there was.Case is later marginalized by Smith. The law must be narrowly tailored c. e. b. He distinguishes from Braunfeld by saying there the compelling state interest was a uniform day of rest. The defendant was a Seventh-day Adventist. and religious beliefs. f. Note: Strict scrutiny requires a. but the Amish can. 1. i. Thoreau would not be allowed to keep his kids home. Brennan majority i. iii.
commitment. Goldman v. Amish person objects to paying Social Security tax for his employees. Weinberger (1986) a. This is where the court starts to switch from strict scrutiny. Field counters don’t worry about the parade of horribles until you get to it. He asks what about the interest of Amish children who want to attend high school. United States (1983) a. saying discrimination part of their beliefs. Stevens concurrence points out i. unity. The court is deferring to military judgment. iv. Want subordination of personal preference and identity in favor of the overall group mission. The idea is if you have an exception for a yarmulke. 7. But agrees with the judgment because of the difficulties in processing claims of religious exemption from taxes. The military needs obedience. dreadlocks. e. IRS denied tax-exempt status to Bob Jones because they practiced racial discrimination. f. ii. 6. The government interest in eradicating racial discrimination in education was sufficiently compelling. d. b. Stevens concurrence i. The school challenged on free exercise grounds. Lee a. Rehnquist majority i. United States v. Prof. Court says have to pay taxes. c. The point of the regulations is that the military wants people to be more uniform. So then would have to weigh faiths. iii. d. b. ii.i. iii. ii. e. Still use the strict scrutiny standard. Mandatory participation in the Social Security system was indispensable to the fiscal vitality of the system. c. Orthodox Jew is disciplined for wearing a yarmulke in violation of the uniform dress regulations of the military. etc. And there is no way to distinguish between the Social Security tax and a general tax. c. 8. b. and espirit de corps. then you’ll need them for turbans. Says this would be costless to the government because they say they don’t need Social Security. Blackmun dissent . and you don’t want the government doing that. Here it is essential to pay taxes to accomplish the government interest. Bob Jones University v.
b. 9. d. The key point is Scalia says there is no requirement that generally applicable laws have an exemption for religion. Northwest Indian Cemetery Protective Ass’n (1988) a. The government has to show the exception will cause a substantial harm to the government interest. c. The big point is the 1st Amendment does not require the Government itself to behave in ways that the individual believes will further his/her spiritual development. c. Rehnquist majority applies a reasonableness standard. The case has the same argument that the 1st Amendment cannot be used to tell the government to stop taking its own action because it is inconsistent with your 1st Amendment rights. it seems the Court would say that the American Indians don’t have to provide Social Security numbers. c. Lyng v. b. The specific facts in this case are . 12. 11. There’s no evidence that a parade of horribles is coming. Smith a. ii. b. Estate of Shabazz (1987) a. If prohibiting the exercise of religion is not the object of the tax but merely the incidental effect of a generally applicable and otherwise valid provision. Here the government has not done that. O’Connor dissent i. The facts were the U. The 1st Amendment applies to all citizens alike and it can give none of them a veto over public programs that do not prohibit the free exercise of religion. Roy (1986) a. Bowen v. the 1st Amendment has not been offended.i. The court in several different opinions rules that the government can refer to people by their Social Security numbers. O’Lone v. e. b. If you count votes in the decision. States can create an exemption if they have liked.S. f. Prisoners challenged regulations that set the time and place of work which interfered with their attending a Friday midday service. Forest service was going to build a road and permit timber harvesting in an area of a national forest used by Indian tribes for rituals. 10. meaning prisons also get deference. Employment Division v. Some states have rejected this approach and have passed laws to apply the Sherbert test or state courts have interpreted the state constitution to use the Sherbert test.
the one she uses is strict scrutiny. or the rights of parents to direct their kids’ education. Nor can the court look at the how central it is to the religion because courts can’t judge centrality. like freedom of speech. ii. h. Oregon prohibits possession of a controlled substance. His dissent is based on the level of generality you take. 13. k. m. The statute was designed to restore the compelling interest test of Sherbert and Yoder. So . with unemployment. because Congress passed RFRA. The exception he creates is free exercise clause in conjunction with other constitutional protections. The other side says that doesn’t show anything because RFRA was a coalition of religions. which shows they will protect religion. The people were fired for using the drug. They applied for unemployment and were denied because they had been fired for work-related misconduct. In response to Smith. Plus.i. i. g. i. Smith. She finds a compelling government interest in uniform application of drug laws. O’Connor wants to do a balancing test. He rejects the compelling interest requirement because you can’t have each individual be an island of law unto himself. a. There is some debate as to whether Smith would hurt minority religions. Smith. Here it is. l. ii. Congress passes RFRA. They can be denied benefits because the law is generally applicable and has the incidental effect of burdening religion. So could frame as war on drugs vs. One side says no. ii. Scalia is trying to create a clear rule and so has to try to have exceptions for previous cases. i. ii. f. you have to make particular determinations anyway because of the eligibility criteria. j. And he distinguishes Sherbert by pointing out the conduct there was not illegal. which they ingested as part of a religious ceremony iii. i. or can do as no exemption vs. But don’t want that for generally applicable laws. Blackmun dissent i. He also relegates the Sherbert test to the area of unemployment compensation.
6. Missouri Department of Health a. Thus Christian Scientists can refuse medicine. O Centro Espirita Beneficiente (2006) a. f. d. b. City of Boerne v. It would also violate the Establishment clause which prohibits government involvement in ecclesiastical decisions. This is different than the peyote cases because it involves a minister. The Court struck down RFRA as it applied to the states. c. Hosanna-Tabor v. The court concluded the teacher here counts as a minister. 5. 2. Roberts opinion: b. You have a right to refuse medical treatment under the 14th Amendment. 16. Section 5 of the 14th Amendment says Congress can enforce the power of the 14th Amendment with appropriate legislation. The EEOC and a teacher brought suit under the ADA against the Hosanna Tabor church and School after the teacher had been fired for threatening to file an ADA lawsuit because the church did not reinstate her after her disability leave. The court said that Congress does not have the right to change the court’s interpretation of the Constitution. e. but minority religions could still be targeted. Flores (1997) a. and so RFRA applies to federal laws. Congress can go above the constitutional floor. . Cruzan v. Ministers i. Gonzales v. But RFRA is not enforcing a 14th Amendment right. The ingredient in the tea was a controlled substance. Director. Thus RFRA exceeds Congress’s power under § 5 and is unconstitutional as to the states. 3. The Court is the one who determines what the right is.Congress might protect religion in general. Roberts holds that the government did not provide a compelling interest. b. Doctors can go to court and get an order to treat the child. c. 15. it is changing a right. EEOC (2012) 1. The case involved a small religious sect UDV that received communion by drinking a hallucinogenic tea. Roberts for the court state cannot impose an unwanted minister because that would interfere with the Free Exercise Clause. The difficulty is in cases involving children. 4. Points out that the law has an exemption for peyote for the Native American Church. BUT. The Court finds that there is a ministerial exception. Thus it is dealing with internal church decisions. so hard to see how an exemption in this case would be problematic. e. d. c. d. 14. b.
the government can restrict to a greater degree what speech people can say. Tony & Susan Alamo Foundation v. 8.III. conducts worship services or important religious ceremonies. v. Because the country is at war. 9. But he did not explicitly say don’t go. 10. and Jefferson pardons those convicted under it. 1. Note that it is just for the ministers. does not mean churches don’t have to follow title VII or other laws. Sedition is saying something critical of the government. Alito concurrence says that the minister exception should apply to any employee who leads a religious organization. 2. or serves as a messenger or teacher of its faith. 2. overtime. they would have not printed the leaflet unless they intended to have people resist. 4. Rather he wrote the text of the 13th Amendment and said the Conscription Act violated that. 1798 the Federalists pass the Sedition Act. 7. Roberts just says the teacher’s job duties reflect a role in conveying the message and carrying out the church mission. therefore a minister. He creates the clear and present danger test: a. The Sedition Act was very unpopular. Thomas concurrence says he would defer to good-faith understanding of the church as to who qualifies as a minister. i. Schenck v. Holmes for the majority says that the permissibility of speech depends on the circumstances. The question is whether the words 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. 6. The danger he refers to here is one person resisting the draft. iv. The Court never ruled on its constitutionality. Here. The Court rejected a free exercise challenge to minimum wage. It said not to submit to the draft but limited its solutions to peaceful measures like a petition to repeal the act. Special Categories/Speech which is not Speech a. and recordkeeping requirements of the Fair Labor Standards Act. 7. it expires. 8. b. ii. iii. Frohwerk v. ii. Sedition cases or Clear and Present Danger Cases. This decision leaves in the background what is a church and who is a minister. The defendant circulated to men drafted for military service a pamphlet arguing they should not go into the military. Truth is an accepted defense. Secretary of Labor (1985) 1. 3. United States (1919) 1. United states (1919) . 5.
Holmes says the jury could read from that the intent of the speech was to obstruct the draft. He also says the U. He gives a speech at the state convention of the Ohio Socialist Party. United States (1919) 1. v. We should be eternally vigilant to check the expression of opinions.1. now adds a requirement of specific intent. The protestors are unhappy about the U.S.S.S. The act was publishing and circulating 12 newspaper articles. b. Holmes also instead of inferring intent. 3. Holmes dissent a. 3. The jury was carefully instructed that they could not find the defendant guilty for advocacy of any of his opinions unless the words used has as their natural tendency and reasonably probable effect to obstruct the recruiting service. The protestors distributed circulars advocating a general strike and appealing to workers in ammunitions factories to stop producing weapons to be used against Russians. During the trial. Patten (1917) (S. vi. 2. He also states that the only way you can get to the truth is through the marketplace of ideas. 4. 2.) . Abrams v. Holmes affirmed convictions for conspiracy and attempt to cause disloyalty. 2. mutiny. 5. The statute at issue is about supporting the Germans against the U. Masses Publishing Co. They could convict because the circulation was in quarters where a little breath would be enough to kindle a flame and that fact was known and relied upon by those who sent the papers out. The trend shown by Holmes in these opinions (including dissents) is move towards specific intent and immediacy. 5. c. 4.N. 4. and refusal of duty.D. Debs v. 3. He praises people who resist the draft. 6. vii. Jury had to find specific intent to obstruct.Y. They don’t have that intent he says. United States (1919) 1. Debs is running for President. when before he had just said substantive evils. sending military forces to Russia. can prevent certain substantive evils. e. he also admitted to obstructing the war. He points out that the act specifically says intent to hurt the war with Germany. Clarke majority says the writing clearly shows that the purpose was to cause sedition and riots to defeat the government’s military plans. 6. which has signed a peace treaty with Germany. viii. d. Knowledge is not enough. Holmes says the 1st Amendment does not give immunity for every possible use of language.
d. He is swatted down on appeal by the 2nd Circuit. The case involves socialists who set forth manifestos to mobilize the proletariat into action through mass industrial revolts developing into mass strikes. it seems to me one should not be held to have attempted to cause its violation. The Court says that determination must be given great weight. Radicals in this case adopt a platform similar to the Left Wing Manifesto in Gitlow. Sanford majority. 6. Also points out the herd instinct that can come from other standard: What seems immediate and direct today may seem very remote next year. That is outvoted and a more militant one is adopted. 3. 6. The Court says the Manifesto clearly advocates and urges. The jury had to interpret the intent of the manifesto. There was no present danger of an attempt to overthrow the government by force in this case. Otherwise every political agitation would end up counting as sedition. ix. If the category defined by the statute involves a danger of substantive evils as determined by the legislature in the “constitutional exercise of its discretion. Holmes dissent a. or teaching the duty to overthrow the government by force. the state has determined through its legislative body that utterances advocating the overthrow of government by force are so inimical to the general welfare that they must be penalized. . His test would focus on the actual words used and less on what effect the words have. Whitney remains a member of the party. b. Gitlow v. c. 9. Learned Hand is interpreting a statue but really providing an alternative approach. Sanford majority a. The Court says that by passing the statute. 2. 7. Overruled by Brandenburg. 2. The law prohibited advocated. THIS IS NO LONGER THE LAW. Whitney v. California (1927) 1. 2.” then the court does not consider the constitutionality of specific utterances if they fall in that category. e. 3. Again the majority says the legislative determination must be given great weight. 4. x. 5. advising. She supports a more moderate resolution for achieving goals through the political process. 5. 8.1. 4. New York (1925) 1. Thus if one stops short of urging upon others that it is their duty or their interest to resist the law.
They say a danger does exist b. c.3. Douglas dissent a. Also have to look at the gravity of the evil. b. this might silence some criticism. d. The threat there is much greater than the threat in Gitlow. Black dissenting a. Case involves trial of Communist Party Leaders for conspiring to organize as the Community Party to teach and advocate the overthrow and destruction of the Government by force and violence. b. There must be some immediate injury to society that is likely if speech is allowed. Vinson plurality a. b. xii. The Court is not capable of evaluating whether this poses a clear and present danger. Frankfurter concurrence a. Yes. You don’t have to wait until the putsch is about to be executed. Jackson concurring a. f. c. The only way to reach this result is to reject the clear and present danger rule. You shouldn’t sacrifice free speech on anything less than plain proof that the danger is imminent. Specific intent 2. e. b. not discussion. We should not do that. Danger has to be imminent 3. xi. . Dennis v. And applying the test here would mean waiting until it is too late. Holmes evolution--His test moves to 1. but it is Congress’s job to balance. 5. But they object to deferring to the legislative determination. 3. Here people are developing an apparatus designed and dedicated to overthrow the Government. a. Field describes this as they are basing this decision on just the sheer gravity of the evil. They then look to see what clear and present danger means. The people are just being punished for organizing people to teach and teach themselves Marxist-Leninist doctrine. 4. The act is directed at advocacy. 2. United States (1951) 1. Brandeis concurring. b. The evidence shows the legislature was justified in concluding that recruitment of additional members would create a substantial danger to national security. 6. Thus does not stifle academic discussion of the merits of Marxism-Leninism.
it is pumping up the other two. Brandenburg does not use the phrase clear and present danger. or abetting the refusal or evasion of draft registration. The case involves a KKK leader convicted under Ohio Criminal Syndicalism statute for advocating crime and terrorism for accomplishing political reform.xiii. 4. The Court overturns a conviction under the clear and present danger test. United States (1961) 1. The test becomes “The constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. 2. it does not discuss much the gravity of the evil. Thus the intent to cause the bad stuff has to be there 7. The case involves Communism. 6. Bond v. 2. What Brandenburg does is take the three main ideas running through the previous cases and tie them together. And it has to be imminent. Supreme Court said Bond could not have been constitutionally convicted for counseling. Yates v. 2. 4. United States (1957) 1. Floyd (1966) 1. 2. However. The Court says you can only be convicted if you have a specific intent to further the violent objectives of the Communist Party. not to do something. It overrules Whitney v. Brandenburg v. xvii. 6. xvi. California. He had been elected. 3. Scales v. and it is clear you cannot have Schenck or Dennis. 5. 3. 5. xv. a. In Yates. Indiana (1973) . the people are urged to believe something. Georgia said it could not seat Julian Bond in the state legislature. The state said Bond could not take the oath to support the constitution and the state constitution since he had criticized the draft. adding. 8. xiv. The reason the state said was that Bond had criticized the draft. 5. They say the fear in Dennis was more reasonable. Hess v. 4. 3. The oath does not give the state an interest to limit legislator’s capacity to discuss their views. They distinguish between advocacy of abstract doctrine and advocacy of unlawful action. The culture has changed. Ohio (1969) 1. The person is convicted for being a member of the Communist Party.
In Claiborne. 5. Progressive (W. xxi. xxii. 5. 4. When an advocate’s appeals do not incite lawless action. A magazine wrote an article on how to make an H-bomb. they must be regarded as protected speech. The district court accepted that some info was new and some had never been synthesized. The case involved how to book for hit men. The publisher stipulated that it knew the book would be read by would-be murderers for hire. If violence had followed immediately. xxiv. and protestors block the street. Planned Parenthood v. The statement is at worse advocacy of illegal action at some indefinite future time. Paladin Enterprise (4th Cir 1997) 1. a. 3. (1982) 1. Note that incitement is trying to get your followers to do something. it would be a harder question. 4. (9th Cir. Rice v. 2. 6. c. 4. xxiii. the rhetoric was hyperbolic vernacular. xix. 3. 4. And the comprehensive details and explanations of murder meant it could be banned.xviii. 2002) 1. The author and publisher said that the article was just a synthesis of information publicly available. The court stopped the article from being published. They are moved by the police. 1. 3. No evidence the words would produce imminent disorder. The court says advocating violence is protected 2. It is simply evidence of specific intent. Hess says.D. that is not incitement. Claiborne Hardware Co. xx. 2. 2. d. If you have a hostile audience rise up against you. Here you have specific individuals pictured in the wanted ads. NAACP v. 3. There is an anti-war demonstration. American Coalition of Life Activists. United States v. Note that whether violence follows or not is not determinative. Wis. There has to be imminence. But threatening a person with violence is not. Here a jury could decide if these were real threats. 3. The book lacked any legitimate purpose 5. Usually you cannot be held responsible for that. It had emotionally charged rhetoric. 1979) 1. 2. No specific individuals targeted in Claiborne b. The court said the book could be banned. “We’ll take the fucking street later (or again). . Distinguish from Claiborne. The Court says mere advocacy is not enough. Charles Evers gave a speech. 6.” Supreme Court reverses conviction.
The definition is those words which by their very utterance inflict injury or tend to incite an immediate breach of the peace. a. Does say there is likelihood of direct immediate injury. disorder. The principle now would be. The judge grants injunction because of the gravity of the evil. Lewd and obscene b. 7. 3. the prevention and punishment of which have never been thought to raise any Constitutional problem. ii. Note that the case was abandoned before full appellate proceedings because similar information was published elsewhere. 6. People tend to pay attention to the second part of the definition. b. The Court says that when there is a clear and present danger of riot. Chaplinsky v. 8. 2. but when people objected he packed up and left. or other immediate threat to public safety.5. The Profane . too bad. The state court interpreted the statute to mean that the law banned words that “men of common intelligence would understand would be words likely to cause an average addressee to fight. If you saying something that causes someone to hit back. interference with traffic upon the public streets. a. you are outside the 1st Amendment. a. This case stands for the idea that you are allowed to speak on the public street. Subsequent cases have not embraced the words by the very utterance cause injury part. ii. Fighting Words i. iii. 4. It is a little hard to see the specific intent in this case. Connecticut (1940) 1. 2. The listeners were very offended. the state can prevent and punish. 5. These include a. but focus is really on gravity. 5. The focus has been on face-to-face words likely to cause a breach of the peace. derisive or annoying word to any other person was upheld. b. It is unclear in this case what happens if people are offended. New Hampshire (1942) 1. Cantwell v. This is the fighting words doctrine. a Jehovah’s Witness was arrested while proselytizing on the street. i. The Court says there are certain well-defined and narrowly limited classes of speech. Cantwell. A conviction under a state law banning any offensive. 4.” 3. Field raises question about whether interference with traffic is severe enough. if you are offended.
covering offensive conduct. 2. Chicago (1949) 1. Harlan also says this is speech not conduct. vi. The person was arrested for burning an American flag. iv. though not mentioned is the incitement/clear and present danger. “White son of a bitch.iii. Harlan does not say he has a constitutional right to wear the jacket in the courthouse. But the Supreme Court has never overruled Chaplinsky’s holding that fighting words are excluded from free speech protection.” 2. it is the words on the jacket that are objectionable.” etc. Those are outside the First Amendment. 4. This would seem to be fighting words 3. Johnson (1989) 1. Wilson (1972) 1. 3. The Supreme Court has overturned these. in fact he suggests that a narrower statute about decorum in court might be alright. I’ll choke you to death. Texas v. c. The libelous d. which means the law is punishing constitutionally protected conduct even though the conduct at issue might not be protected. But Brennan majority finds the statue void on its face because it swept in protected speech ranging beyond fighting words. . Thus not fighting words. California (1971) 1. Lower courts have convicted for talking back to the police. rather than generally at a group. 6.” “You son of a bitch. Cohen v. personal insult or an invitation to exchange fisticuffs. Cohen gets rid of the profanity exception designated by Chaplinsky. 2. Gooding v. 5. Person wore a jacket in a courthouse that said. 3. Terminiello v. 4. 8. The statute was struck down as overbroad. The majority says no reasonable onlooker would regard Johnson’s generalized expression of dissatisfaction with the policies of the federal government as a direct. However. 8. “Fuck the draft. Arrested for disturbing the peace. we have eliminated profane. But the statute at issue in this case. The person said to a police officer. I’ll kill you. 6. b. Limits fighting words to those directed face-to-face to an individual. a. 7. it has not sustained a conviction on the basis of the fighting words doctrine since then. is overbroad and it is applicable throughout the entire state. v. 7. Unconstitutionally overbroad. Also included. Not clear and present danger because no showing of intent to incite disobedience or disruption of the draft. Subsequently. And Insulting or fighting words. 9. We have also narrowed lewd and obscene to just obscene.
Feiner gave a speech on a street corner to about 75-80 people criticizing President Truman. Hostile audiences and hate speech i. d. Field points out that these cases stand for the proposition that you don’t have to obey the police when they try to silence you if you are right in fact that silencing violates the 1st Amendment. And you need to protective because certain language has an emotive function. 2. Birmingham (1966) a. he doesn’t. iii. and you need to protect that function. If they had tried to protect Feiner. 11. 3. even if it is invalid. that would be one thing. Note this is different from injunctions. Justifies the police action because there is an imminent threat to peace. 2. You have to accept some of this outside of the home. and Feiner refuses to stop when asked. Princess Anne (1966) . b. Here the speaker passed the bounds of argument and was undertaking to incite a riot. The police tell Feiner to stop. He’s charged with disorderly conduct. It also contains the line that one man’s vulgarity is another man’s lyric. The answer would be different in the privacy of your home. 4. Vinson majority a. 13. 10. Walker v. This causes some commotion in the crowd. and the court upholds the conviction. and so he’s arrested. Terminiello v. but this is a public space. ignoring 2 police requests. b. There is no hecklers’ veto. Not fighting words because not individually directed at a person. 3. the Mayor of Syracuse. He then said that African-Americans don’t have equal rights and they should rise up in arms and fight for them. New York (1951) 1. and the American Legion. 12. Carroll v. Black dissent a. Vinson says you can’t allow ordinary murmurings and objections of a hostile audience to silence a speaker. Harlan’s response is avert your eyes. ii. you have to go to court. Chicago (1949) 1. c. c. 14. 5. Supreme Court says you have to obey an injunction. Feiner v. There was also an argument that there were women and children around and so that was harmful. but they didn’t try. b. 1. You cannot defy an invalid injunction. But he says that wasn’t the situation. First you have to make all reasonable efforts to protect a speaker.9.
Gregory v. vi. 5. 9. 2. the leader. vii. 10. Louisiana (1965) 1. a. not refusal. 2000 students march to the courthouse to protest the jailing. if the statute does that. Cops order the demonstrators to disperse. and they refuse. Cox v. 3. South Carolina (1963) 1. b. 3. .000 and the onlookers become unruly. Permits are at times constitutional because they allow the police to prepare. Warren majority says the convictions can’t stand on refusal to disperse because were convicted for demonstration. Edwards v. Chicago (1969) 1. 7. did not threaten violence. The police move them 100 feet away. 6. They don’t disperse. 187 people marched along the South Carolina state house grounds. 13. cops tear gas. 5. 4. and there was no evidence of fighting words. 5. Court reverses the convictions because the peaceful protest is protected by the 1st Amendment. The protestors start singing. White onlookers show up. they didn’t. and the jailed protestors start singing back. The onlookers start to murmur. The students weren’t violent. and arrest Cox the next day. 3. gives a speech urging the demonstrators to sit in at segregated lunch counters. Thus you cannot punish constitutionally protected conduct. Supreme Court says no violence by demonstrators or onlookers. 85 demonstrators marched in a peaceful protest. 4.iv. 11. 12. and so they were arrested. Police ordered the demonstrators to disperse. 2. So Warren ducks the issue. 4. 6. Kunz v. Kunz was convicted for holding a meeting without a permit. A large crowd of onlookers gathered. 2. v. New York (1951) 1. The police say Cox’s speech is inflammatory and order the demonstration broken up. You can’t give ex parte injunctions. The number of bystanders increases to over 1. 8. This means the group who the injunction is against has to be given notice of the injunction and an opportunity to argue against the injunction. it is overbroad. and the white onlookers did not threaten violence. Thus very different from Feiner and so convictions reversed. 23 students are arrested for picketing. The majority says the meeting was orderly from beginning to end. The police could have handled the crowed. 2. Cox.
Also imposing such a fee’s legitimizes a hecklers’ veto. Speech cannot be financially burdened. 4. Skokie cases 1. a. we cannot deny to a state power to punish the same utterance directed at a defined group. viii. Every expansion of the law of criminal libel so as to punish discussion of matters of public concern means a corresponding invasion of the area dedicated to free expression by the First Amendment. The Nazi party announced its intention to march through Skokie. Libel is saying false and scurrilous things about an individual that will tend to reduce his/her reputation. Jackson dissent is that permits are good because don’t have to worry about monitoring speech and ordering someone to stop later. Blackmun opinion says the ordinance is facially invalid because it left impermissibly standard-less discretion in the hands of the county administration. Nationalist Movement (1992). Beauharnais v. Prohibited parading in uniform b. Georgia v. 5. Vinson majority condemns the permit system as involving impermissibly standard-less discretion. Forsyth County. Frankfurter majority a. b. If an utterance directed at an individual may be the object of criminal sanctions. any more than it can be punished or banned simply because it might offend a hostile mob. 3. x. And distributing pamphlets that incite or promote hatred against person of Jewish faith. 2. 4. Illinois had a group libel law. 2. The court upholds the law. ix. He adds willful purveyors of falsehoods promote strife. The case is sort of halfway between libel and hate speech. Here it seems Kunz was denied a permit because of his attacks on Catholics and Jews. 4. Illinois (1952) 1. The court invalidated a county ordinance requiring demonstrations on public property to pay a fee up to $1000 a day to cover any public cost that exceeds the usual and normal cost of law enforcement. Black dissent a. 3. 2. Nothing in the law or its application prevents the officials from encouraging some views and discouraging others through the arbitrary application of fees. 6. 6. 5. The ordinance makes no mention of why a permit application can be refused. 1. . Displaying the swastika c. First an injunction against the Skokie demonstration.3.
This is National Socialist Party v. including the swastika provision. b. 7. Prohibited public demonstrations by members of political parties while wearing “military-style” uniforms. a. Canada considering hate speech and they come out very differently than the U. b. Keegstra (Canadian case) 1. They go back to the principal of avert your eyes if can do so without reasonable inconvenience. 8. 2. The Supreme Court reverses the state’s high court’s denial of a stay. The permit requirement was struck down because it allowed restrictions based on subject. c. was unconstitutional. They say this is not libel or fighting words d. Not directed towards 1 individual. They establish a comprehensive permit system for parades and public assemblies requiring $300. Skokie has enacted three ordinances to prohibit the demonstrations. a. Insurance invalid because it is clearly intended to suppress speech of unpopular groups. a. 4. Regina v. Displaying the Nazi flag and marching are symbolic acts with free speech and they compare this to Cohen. Prohibited the dissemination of any materials which intentionally promote and incite hatred against persons by reason of their race. xii. f. Brandenburg does not apply because not clear and present danger. national origin. District court held the ordinances unconstitutional. By the times this is done. b. The Illinois Supreme Court then held the entire injunction. On review of the injunction. the Illinois appellate court killed all of the injunction except the ban on displaying the swastika. 6.000 in public liability insurance. a. but Rehnquist and Blackmun dissent. It says Beauharnais is not controlling and questions whether it is still good law. 5.3. This could not be banned on fighting words i. e. c. The parades weren’t banned out of fear of violence. College speech code cases . You need immediate appellate review of injunctions. The Supreme Court denies a stay. Nor could it be banned on anticipation of the hostile audience.S. noting that Beauharnais has never been overruled. or religion. The Court of Appeals affirms in almost all respects. 9. xi. b. Skokie. Constitutional to prohibit the willful promotion of hatred against an identifiable group. c.
including a burning cross or swastika. say only threats against the President are illegal. but not by this law. but allow other fighting words. Scalia says the government interest is compelling. c. 5. he says it is ok for a law to forbid conduct that can sweep up a particular content-based subcategory of a proscribable class of speech. 3. 6. d. which one knows or has reasonable grounds to know. Notice that this is below specific intent. religion. or gender. e. Stanford overbroad and impermissibly content-discriminatory under RAV because it focuses on bigoted insults while leaving other insults alone. appellation. creed.A. f. For example. b. or graffiti. don’t have to ban all obscenity. alarm or resentment in others on the basis of race. g. 2. 4. City of St. Can also distinguish Cohen because they just apply to school. The Minnesota Supreme Court in trying to save the law had interpreted the statue to only reach fighting words. xiii. 2. The court says the action of burning a cross on a black family’s yard can be punished. If the government is not targeting the conduct on the basis of its expressive conduct. characterization. He says strict scrutiny is the correct standard. Scalia does say you can content discriminate and only going after a subclass of unprotected speech if the subclass you are going after is particularly linked to the reason we exclude the whole category to begin with. The law made it a misdemeanor to place a symbol. He also has to deal with sex discrimination and Title VII. They tried to justify the codes using Chaplinsky. color. To do this.1. 5. Title VII does this. can ban just the most obscene of obscenity. But. 4. knows or reasonable grounds to know. White concurrence . But you could achieve the interest without the content discrimination.V. ii. University of Michigan code was struck down as overbroad and impermissibly vague. Or you can ban the most serious threats. but that doesn’t mean you can discriminate within the category. Thus you can’t disallow fighting words against racial and religious groups. words by the very utterance cause injury. not whole state. the government can regulate. Scalia majority a. 3. i. Paul (1992) 1. object. But all the attempts at campus speech codes were struck down. v. R. Fighting words are generally valueless. will arouse anger.
Majority held that motive that is discriminatory can be a criterion for judging conduct that is unprotected and punished. The conviction was reversed. b. But. Unlike R. Stevens concurrence says the categories are fuzzy a. And if what saves Title VII is general anti-discrimination that includes speech. 3. the law here is aimed at conduct unprotected by the 1st Amendment. The person was convicted for threatening the President. 4. The court says the 1st Amendment permits a state to ban a true threat. O’Connor says cross burning may not be to intimidate. e. 5.. but the punishment was enhanced because the motive was racially based. because the law here does not single out for opprobrium only that speech directed toward a . 7. c. 2. go get him.a. But he thinks the law is overbroad. What is a threat must be distinguished from what is constitutionally protected speech. Agrees with the judgment. because it holds that there is a compelling interest but the law cannot pass constitutional muster because it could be accomplished by banning a wider category of speech. then St. shouted. Mitchell. 2. Watts v. A defendant’s motive is traditionally a factor considered by a judge at sentencing. He criticizes the subset rationale saying the speech in the subset is worthless so you can proscribe it.A. 6. The jury found Mitchells selected his victim because of the victim’s race. so it is unconstitutional. Respondents were convicted under a statute that banned cross burning with the intent of intimidating any person. It could be a ritual celebrating belonging to the KKK.V. xvi. xv. Mitchell (1993) 1. And the strict scrutiny analysis is weird he says. Wisconsin v. Paul could just add general language to save this statute. 3. A group of young black men and boys chased a white boy and beat him. 5. 4. “There goes a white boy. The court said the speech in this case was just hyperbole. The problem is the statue is overbroad because it criminalizes expression protected by the 1st Amendment. d. for instance. 4. 2. One of the people in the group.” 3.V.A. The statute said that any burning of a cross was prima facie evidence of an intent to intimidate a person or group of persons. but says this can all be done with the old categories. Virginia v. The law is different from R. The crime was battery. United States (1969) 1. xiv. Black (2003) 1.
the Montgomery. so like doing the worst of obscenity.000. a. religion. the viewpoint in this case being white supremacy. Defendant can use truth as a defense. 9. c.specified disfavored topic. In this case. such as the fact King was arrested 4 times. The ad here was not commercial speech. The Supreme Court then took the case. 7. AL police commissioner. 5. 7. there were some mistakes in the ad. a. The Alabama law said a statement was libelous per se if the words tended to injure a person’s reputation. That provision ignores all of the contextual factors necessary to decide whether it is intended to intimidate. Brennan’s majority opinion held the law unconstitutional. 10. The plaintiff did not have to allege it was untrue. Scalia says this isn’t a problem because the people can rebut. sued saying he was damaged particularly by a statement about truckloads of pole armed with shotguns and to statement that Dr. 6. not an ad for products. c. It said there was an unprecedented wave of terror against blacks in non-violent demonstrations. 8. The Court could have decided the case on the grounds that Sullivan was not named in the ad. But the court strikes the statute down because of the provision saying cross burning is prima facie evidence of an intent to intimidate. 2. 9. 3. or anything else. And can just do the subset because cross burning is a particularly virulent form of intimidation. b. Sullivan said his reputation had been damaged. Souter says yes it is a problem because the presumption skews things. . Sullivan. He won and was awarded $500. political affiliation. Souter says a content neutral law could achieve the same goal without silencing a viewpoint. Thomas in dissent says this is conduct always intended to intimidate and therefore the law is constitutional. Instead they create a new theory. not 7. but it had to be true in all respects. Sullivan (1964) 1. 4. King had been arrested 7 times. The case involved an ad in the New York Times. New York Times v. gender. People were shocked because this was the first time a tort had been held unconstitutional. b. 8. 6. It was a political ad. Libel and Other Torts i. d. It does not matter if the crass is burned to intimidate based on race.
Walker was about an article that said a retired general led a violent crowd in opposition of desegregation at the University of Mississippi. 4 are against extending NYT v. ii. The country has a commitment to debate on public issues that is uninhibited. Wexler in brief argued that you can’t punish seditious libel. Black and Douglas concurring want a complete prohibition on awarding damages for criticism of public individuals taking public action. The statements also have to be a provably false statement of fact. 3. iii. The rule created is the plaintiff has to prove that libel is untrue and that the untruth was made with actual malice. 13. history that the country allows people to criticize the government. Otherwise fear of civil libel damages could stop newspapers just as much as criminal libel. The court says this rule applies in this case even though this is civil libel. This standard allows room for people to make mistakes. Sullivan c. Butts dealt with an article claiming the University of Georgia Athletic Director fixed a football game.i. Actual malice means knowledge or recklessness. Note that you do have an absolute right to criticize the government because libel is for an individual. Butts (1967) and Associated Press v. 11. The Sullivan case covers public officials in their public capacity. Points to the Sedition acts which were allowed to expired. Curtis Publishing v. Sullivan b. 2. This means opinion can’t be libel. 15. The Court divides. Case is important because it is the first case that says sedition laws is unconstitutional. b. Criticism does not lose its constitutional protection because it is effective criticism. Sullivan to public figures. 16. 2 are for broader protection 4. 20. iv. a. a. 3 are for extending NYT v.S. and offenders were pardoned. The Brennan opinion follows the brief. and the Sedition Act was dealing with criminal libel. He acknowledges the courts have never held that. The untruth also has to be material. a. . and wide-open. robust. 14. Walker (decided together) 1. a. It is central to U. Thus the end result is extending NYT v. (Case is pre-Brandenburg) 19. so doesn’t cover the government generally. but our history shows that. 18. 12. b. 17. ii.
3. 7. For example Time Inc. b. Because he is not a public figure. b. Gertz brought a libel action against a magazine. Thus extending NYT v. Negligence is enough. v. 1. So no strict liability. 2. Instead they make the test if the matter is a subject of public or general interest. Powell opinion. He is not a public figure for purposes of a 1974 allegation that he was a Soviet agent. Proxmire a. if falsity is shown. 3. Warren for the 3 extending says there is no logical or policy difference between public figures and public officials. a. b. 5. Hutchinson v. Rosenbloom v. Court abandons Rosenbloom in Gertz. They say in this case libel does not require actual malice for compensatory damages. . Firestone a. and therefore it doesn’t matter if a private individual is involved. Metromedia. but the Court says he is a private figure because he had not achieved general fame or notoriety in the community. 5. other than perhaps Palm Beach society. v. iv. Court says a wealthy divorcee is not a public figure. Gertz is a lawyer who is well-known in some circles. iii. Reader’s Digest Ass’n a. Sullivan. he is not subject to the NYT v. Wolston briefly in the public eye for a criminal contempt conviction for not appearing before a grand jury investigation of Soviet espionage. 4. 6. (1971) 1. 2. Wolston v. Libel action by a distributor of nudist magazines. Later cases have construed the “public figure” narrowly. 2. strict liability for libel. The fact that it is a public issue doesn’t matter. (1974) 1. Inc.5. She had not assumed any role of special prominence in the affairs of society. The plurality says there is an artificiality between public and private individuals. The case rejects Rosenbloom. Sullivan test. i. 4. Inc. Scientist had not thrust himself or his views into public controversy to influence others. Gertz v. Narrow view of public figure. Note that the state can choose how to set the level so long as they do not impose liability without fault. A scientist whose federally funded research on monkey behavior had been characterized by the defendant Senator as wasteful government spending not a public figure b. 3. Robert Welch. Note in England.
Dun & Bradstreet. The state can award presumed and punitive damages even absent a showing of actual malice. 5. 2. Brennan dissent—we should have stuck with Rosenbloom 11. 5. Hustler v. Inc. Time Inc. v. The play portrayed the family as courageous. though released unharmed. you have to show actual malice. They reject an attempt to distinguish between clever parody and the crude kind in Hustler. Burger and White concur to say the Court should overturn Gertz. 10. Falwell (1988) 1. 3. Hill (1967) 1. The publication must have a false statement of fact made with actual malice.8.” 3. Powell plurality distinguishes between speech on matters of public concern from speech on matters of purely private concern. In 1952 the Hill family was held hostage for 19 hours. Falwell sues for intentional infliction of emotional distress. This case would allow strict liability for libel. 4. IIED requires specific intent to inflict emotional distress. viii. The case involved an untrue statement on his credit report. 5. The do this because the Court appreciates parody and cartoons. vii. This creates a very big breathing space for parody and cartoons. if awarding presumed or punitive damages. And the case involves a private individual. The court says IIED for public figures and officials requires more than just this intent. Thus it really isn’t for public consumption 3. v. and the play makes it seem as if there was considerable violence. a. The Hills sue under New York’s false light statute. 9. 2. White dissent—This is too much protection for the media. The statement still has to be false. At the bottom it said “Ad parody—not to be taken seriously. 7. Sullivan test. The court rejects a special rule for newspapers. However. . Greenmoss Builders (1985) 1. Field says in interpreting this not just private concern but that it was never intended for public consumption. 7. It also stated Falwell was a hypocrite who only preached when drunk. Thus you can have regular libel rules here. A play is then made of the event three years later. The standard of outrageousness does not supply a clear standard. Life magazine ran an article on the play which indicated the play was accurate. The case involved a parody of Campari Liqueur ads where the Hustler parody alleged Falwell had a drunken incestuous rendezvous with his mother in an outhouse. 6. 2. a. 8. They are importing the NYT v. 4. 4. vi. White in his concurrence and the four dissenters. 6.
8. The judgment for the Hill’s was thus overturned. 4. then putting that in quotes would be actionable. The news argues this is fair use. 3. 9. A false light statute covers reporting on someone who does not want to be reported on.” “You’re Going to Hell. (1977) 1. The defendant videotaped the act and showed the entire thing on the local news. 8. xi. You have to show they reported the falsity with actual malice. the other IIED. Zacchini v. Phelps (2011) 1. Masson v.” etc. 2. Gertz had said it doesn’t matter if it is a public issue. The group would hold signs such as “God Hates Fags. 6. Now it seems this has been revived. and the reporting/publicity places the person in a false light. 7. This is leniency for the media. though one dealing with libel. x. There is a question as to whether Hill survives Gertz. 4. The suit was based on the plaintiff’s right of publicity. 7. Scripps-Howard Broadcasting Co. Roberts notes that this different from laws that were subsequently passed that prohibit picket at funerals. Those laws are acceptable if they are content neutral. Snyder v. The Westboro Baptist Church protested at a military funeral for a Marine killed in the line of duty in Iraq. Again Brennan brings in the actual malice standard. He also adds in much-debated dicta that the “newsworthiness” here would also offer similar protection in a “true” privacy action. He performed a human cannonball act. 3. 5. He says the content of the speech here plainly relates to broad issues of interest to society at large. 6.” “Priests Rape Boys. The author said she was speaking to the spirit of what he said. 2. a. We reject the idea that any alteration beyond correction of grammar or syntax by itself proves falsity in the sense relevant to determining actual malice under the 1st Amendment. New Yorker (1991) 1.a. ix. which was decided later. 4. Roberts majority states that whether they can be held liable turns on whether the speech is of public or private concern. There is no falsity if there’s no change in the material meaning. The church was sued for IIED. 2. . 3. The protested on public land.” “Thank God for IEDs. The author of an article put things in quotes that the subject didn’t say. 5. The Court says that if the alteration of petitioner’s words gave a different meaning to the statements. 9.
F. 10. 2. There is no 1st Amendment exemption for lies. It is not closely tailored to its objectives to survive strict scrutiny. 2. Florida Star v. He is more a balancing test. perjury. 6. (1989) 1. B. . xiv. You can’t sue a broadcaster for accurately publishing information released to the public in official court records. xiii. United States v. They strike the law down. The father is not allowed to get damages because the newspaper got it legally. 6. Therefore you can punish lies without hurting speech. The dynamics of this case indicate that the best solution is counter speech. 4. Cox Broadcasting Corp. 2. Government may criminalize or restrict false claims made to effect a fraud or to secure moneys or other valuable considerations. 3. The court found the law unconstitutional. 5. Field describes this as Breyer will balance it all and he’ll tell you the answer. which made it a crime to falsely claim receipt of military decorations or medals. So this tort is allowed. 11. The case does not address whether Hill survives Gertz. The law here is not content neutral 8. xii. He thought intermediate scrutiny was more appropriate. a. 3. Alvarez (2012) 1. The case involved the Stolen Valor Act. A newspaper published the name of a victim of a sexual offense.5. b. Father sued because they broadcasted that his daughter was a rape victim. Cohn (1975) 1. which it obtained from a police report made available in the police department’s press room. c. Examples. 4. You cannot exempt a category from the 1st Amendment unless there’s been a long history of its exemption.J. It did not hold that truthful publication may never be punished consistent with the 1st Amendment. The Court says fair use does not apply because you can’t get the whole act in with fair use. 9. v. Alito dissent a. Kennedy opinion 3. not whether it will be released. 7. You don’t have the same issues with dissemination of information because here the question is who gets to do the publishing. pretending to be a government official. Breyer concurrence a. 7. etc. This speech has no value b.
The person turned the tape over to a local radio talk show host who then played the tape on air. xviii.xv. New York Times Co. 3. it is hard to empirically measure its actual damage. 5. White dissent tries to distinguish Cox Broadcasting. but was has not been declared here. less review. 4. not to punish the publication. 7. 5. Saw this with United States v. United States (The Pentagon Papers Case) (1971) 1. Black and Douglas are the absolutists. He also says the dominant purpose of the 1st Amendment is to prohibit government suppression of embarrassing information. Breyer concurrence: a. xvi. Progressive. The say the correct method of deterrence is to punish the person who acted illegally. Bartnicki v. Douglas says he would consider prior restraint if war is declared. It is easier to restrict speech with stroke of the pen than to go through cumbersome punishment mechanisms. Disadvantages of prior restraint versus punishment afterwards. 4. More informal. When speech is restraint. . You can be hyperbolic and say the world will come to an end. xvii. 2. You could not publish a ship’s route during war. Brennan concurrence says no prior restraints unless it is something so drastic as publishing war plans. The per curiam states that any system of prior restraints comes to this Court bearing a heavy presumption against its constitutional validity. Other than that. Black is saying no prior restraint. b. 6. National security is too vague an interest. 4. 4. there is a heavy presumption against prior restraint. Speech suppressed in advance never reaches the market. It is per curiam because they really can’t agree on anything. 2. The case involved the illegal interception of a cell phone conversation between two union negotiators. 3. No guidance. b. Minnesota (1931) 1. Much of the information here is embarrassing to the government. v. a. 5. saying police records are different from judicial records. Again all it is is Breyer will decide. 2. 1. Censors will have a bias towards censorship. The court ruled the information could be published. 3. The Supreme Court considered judicial injunctions to be prior restraints and hence unconstitutional. 6-3. The case is per curiam. The government was trying to get an injunction to stop publication. Vopper (2001) 1. Near v. a.
they sides with the majority. the court could further review the publication. 5. Three dissenters: Harlan. Then under the proper ground rules. The gov’t can keep secrets. Stewart standard is less than Brennan. especially without Congress’s backing. The Court should not step in and give that power with Congress has consciously denied. 1. But here they have not met the burden of showing it will surely result in direct. Marshall concurs saying Congress has refused to give the Executive this authority. but the government still has not met its very heavy burden. The Court of Appeals said there could be punitive damages. 4. but not a constructive trust on his profits. Blackmun would remand for a proper presentation of what standards should be used. He would let the government restrain the publication if they satisfy the court that the subject is within the President’s foreign relations power and executive branch has properly determined that the information would irreparably impair national security. that says you can’t be punished for anything said on the floor of Congress. f. United States (1980) 1. Article I § 6 cl. c. . 3. He did not get pre-publication clearance. Blackmun. The Court emphasizes that the CIA as an employer can place reasonable restrictions on employee activities. Since there is no legislation or promulgated regulation. and irreparable harm to the Nation. immediate. a. e. d. The Supreme Court said punitive damages were inadequate and inappropriate and they imposed a constructive trust on the profits. d. A former CIA employee published a manuscript about CIA activities in Vietnam. White notes that no prior restraint does not mean you can’t punish afterwards. Snepp v. that would make the government’s case better. 11. White says the release of the documents will cause damage. Harlan says the judiciary is not in a good position to determine what will cause harm. e. Burger wanted a temporary restraining order pending a full trial on the merits.8. xix. b. 9. 10. b. 2. a. and that includes more than sailing dates. Stewart and White both think that if there was a statute that prohibited the publication here. Note that there is a special part of the Constitution. Burger. c.
The government has a compelling interest in secrecy to protect national security. The Supreme Court says there are other ways to deal with the fair trial issues. including the press. Stuart (1976) 1. Powell concurs in the opinion of the court a. i. There will later be debate as to whether White is a majority. a. but it can be overridden. 6. but seems since Powell concurred in the opinion and not the judgment. It seems Powell is saying you look at these issues case by case with a presumption of no privilege. Question the jury d. Give jury instructions. The argument against this view is government should do its own investigation. How does a court balance this? i. Logic is you need a fair trial. 2. The investigation of a crime is a compelling government interest. 3. which means the report has protection if the information has only a remote and tenuous relationship to the subject of the investigation. xxi. Branzburg v. 4. 2. c. b. The probability of the gravity of the evil was not shown to be certain enough that a prior restraint was allowed. Brennan concurrence (with Stewart and Marshall) a. White for the majority a. Everyone has to testify before a grand jury when called. To override . They want an absolute ban.6. They also emphasize that commentary on the criminal justice system is at the core of the 1st Amendment. xx. Stewart dissent is you start with the privilege. Postpone the trial c. You can change venue b. not secret. There is also an emphasis on how terrible prior restraints are. The state court issued a gag order not just of the lawyers but also prohibited publication or broadcasting of the accused’s confessions or admissions. Powell says a reporter has access to the court to get a motion to quash the request. right to fair trial. 3. Hayes (1972) 1. Nebraska Press Ass’n v. saying you can never have a prior restraint to protect the right to a fair trial. it is a majority. so 1st Amendment v. a. c. b. There is no reporters privilege. 5. c. b. To make trials fair they have to be open.
b. c. 6. 3. But then then the newspaper identified the person as the source in the press. There is an absolute rule for a privilege. Cowles Media Co. 2. Cohen v. Zurcher v. 2. xxii. Blackmun dissent a. Powell concurrence a. 3. 7. The newspaper had said it would protect the confidentiality of a source. 5. (1991) 1. arguing that was integral to the balance that should be struck. A magistrate asked to issue a warrant for the search of a press office should be cognizant of the values of 1st Amendment when weighing the decision. b. Demonstrate that the info cannot be obtained by alternative means less destructive of 1st Amendment rights iii. Souter dissent a. Paper sued saying the police should have used a subpoena. Douglas dissent a. It does not matter what the compelling need is. Stanford Daily (1978) 1. Generally applicable laws do not offend the 1st Amendment simply because their enforcement against the press has incidental effects on its ability to gather and report the news. Use of a warrant is fine. Stewart dissent . And demonstrate a compelling and overriding interest in the info. The test is vague. He emphasized the importance of the information to public discourse.i. In response thirty-six sates and DC have enacted press shield laws. 5. White majority a. He proposes a balancing test. The tort in Hustler was a law of general applicability. b. 4. These laws are ok according to White. He says the case is controlled by Hustler. The First Amendment does not bar an action in state court for promissory estoppel against a newspaper that breached its promise of confidentiality to a source. The law cannot be used to punish the expression of truthful information or opinion. not a warrant. xxiii. The government must show that there is probable cause to believe that the newsman has info relevant to a specific probable violation of law ii. c. White majority 4. 4.
That case said Branzburg only applied only applied to criminal cases. 4. xxiv. Roth said the old test was Regina v. and Child Pornography. d. Brennan majority 2. Zerilli was a civil case. It creates a new test: Whether the average person using contemporary community standards would conclude the dominant theme. . an excerpt could be judged and you looked at the effect it had on a particularly susceptible person. Reporters have the same duty as regular citizens to furnish relevant information to the grand jury. it is not clear what is in that opinion that givers reporters’ extra protection. and therefore it does not narrow White’s reasoning. Judith Miller case 1. In that test. we need that to be done by the Supreme Court. And if we are to have some sort of balancing. and Judith Miller is a criminal case. 5. Pornography. such as when there is a fear the material will be destroyed. Hicklin a. 3. appeals to the prurient interest. i. f. The court also said a DC Circuit case Zerilli was not applicable. Sentelle majority opinion a. Point out that Powell’s concurrence was one in opinion. c. taken as a whole. Roth v. not judgment. b. United States (1957) 1. Tatel concurs in the judgment a.a. A warrant should be allowed only when a magistrate finds probable cause to believe it would be impractical to get evidence with a subpoena. Moreover. Congress subsequently passed a law requiring state and federal law enforcement officers to use subpoenas for those in the communication industry. Sex: Obscenity. He says that Powell’s opinion seems to show that courts should weigh the government interest against a reporter’s privilege. This case is controlled by Branzburg where the Supreme Court determined there is no reporters’ privilege. e. Search warrants are permitted only in exceptional circumstances. Chaplinsky talked about obscenity being outside the 1st Amendment because it does not have social value as a step toward truth and any benefit that may be derived from it is clearly outweighed by the social interest in order and morality. b. But it is enigmatic c. ii. even looking at Powell. e. Roth says obscenity is not within the area of constitutionally protected speech. 2.
Pennsylvania. even if the rest of the material was on the border. People have the ability to reject noxious literature. 2. AND the material is utterly without redeeming social value. The state denied a license to the film “Lady Chatterley’s Lover” under this law. 6. After Roth. The state can control the distribution of material where three elements coalesce a. The material is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters c. This is close to the Roth test but it makes clear no redeeming social value is a part of the test. but the states could ban any material which taken as a whole has been reasonably found in state judicial proceedings to treat sex in a fundamentally offensive manner under rationally established criteria for judging such material. United States (1965) 1. vii. 5. 3. Pennsylvania and Intercourse. vi. defined as one which portrayed acts of sexual immorality or expressly or implicitly presents such acts as desirable. The dominant theme of the material taken as a whole appeals to a prurient interest in sex b. but that is not part of the test. just the fact that a work depicts sex does not make it obscene. Black and Douglas thought you could not regulate obscenity. a.iii. 3. Ginzburg v. and Brennan do an interpretation of Roth 2. iv. Fortas. 7. v. . Warren and Fortas said that because he is accentuating the bad stuff. Kingsley Int’l Pictures Corp. Harlan believed the federal government could control hard core pornography. The court says obscenity does not have redeeming social value. Also. 3. The law banned any immoral film. the material could be banned. 2. Sexual immorality is entirely different from obscenity. Regents (1959) 1. 1. 2. b. He doesn’t think you can weigh all of these interests. He sent ads from Blue Ball. Who is the government to try to give people pure thoughts? c. Warren. Massachusetts (1966) 1. courts don’t edit the works. This means you can stick dirty pictures in an otherwise good book and the book is allowed. but knew it when he saw it. Stewart couldn’t define it. Memoirs v. Stewart opinion a. Douglas dissents a. In our obscenity law. you get a lot of per curiam decisions.
the test of obscenity is a. The person was investigated for running numbers. but say a film projector and screen in the middle of the room. it means that a State has no business telling a man sitting alone in his own house. 4. Miller v. applying contemporary community standards would find the work. This was exactly the same facts as Mapp. The basic guidelines for the trier of fact. The film was banned for presenting an idea. 6. California (1973) 1. The cops saw no evidence of numbers. which is now whether it has serious social value. sexual conduct specifically defined by the applicable state law c. Burger opinion.b. c. artistic. Ohio again. The court says you can possess obscenity. Georgia (1969) 1. Marshall said we do not accept concessions of First Amendment rights. 2. in a patently offensive way. Stanley v. that adultery under certain circumstances is proper behavior. It is the combination of the right to receive information in the home and the right to privacy in the home. c. Some just wanted to do Mapp v. 3. what books he may read or what films he may watch. Whether the work depicts or describes. Whether the average person. The defendant tried to concede that the film was obscene 2. The cops watched the film and then arrested the person for obscenity. 5. taken as a whole. political or scientific value. The change in the test is part C. ix. 4. First Amendment guarantee is the freedom to advocate ideas. appeals to the prurient interest b. Miller is mailing stuff to unconsenting adults. Marshall opinion a. 6. 5. The court limits obscenity to works which depict or describe sexual conduct. If the First Amendment means anything. b. 3. AND whether the work taken as a whole lacks serious literary. . 7. The Court now says that the statute has to be specifically define what is obscenity. The case involved a situation in which sexually explicit materials were thrust upon unwilling recipients by aggressive sales action. but you cannot sell or distribute. viii. But you cannot ban advocacy of an idea d.
8. c. Paris Adult Theatre I v. it affects the world around the rest of us. 2. no one under 21 admitted. To send men to jail for violating standards they can’t understand or apply is terrible. It sets the standard as at the state level. Slaton (1973) 1. Brennan dissent a. There is a fear that the material will lead to bad conduct. He says Roth or Miller gloss doesn’t work. 5. It violates fair trials and due process. We want to keep it from children iii. This is changed to the local level in Hamling. But he also gets into the argument about the tone of the community. 3. The problem is this argument could really apply to anything. a. He discusses the possible link to sex crime. Begins with reasons to ban obscenity i. 1. There is also a warning that says if viewing nude bodies offends. mentioning that the Hill-Link Minority Report indicated a correlation between obscene material and crime. The theater shows dirty movies. Brennan dissent a. 9. b. b. 10. Burger opinion a. The goal of the Burger opinion was to get the Court out of the business of reviewing obscenity. if you have the right to buy pornography and discuss it with others. Outside it says adults only. The Court says the standards will vary from community to community and thus what is tolerable in Las Vegas may not be accepted in Maine. And it is not for the court to resolve empirical uncertainties. 2. We don’t want to thrust it on people if they don’t want it ii. Douglas dissent a. 6. a. 11. There are no pictures on the outside. The statute is overboard. We don’t have a definition to distinguish unprotected and protected. do not enter. The only clear purposes he sees are . Bickel argument.7. a. b. x. 4. The Court is making clear the question will be left to the jury as one of fact.
protecting kids ii. If the law is not to protect either of those. 5. xv. but whether a reasonable person would find such value in the material. The film could also not be found to depict sexual conduct in a patently offensive way. 3. The film starred Jack Nicholson. The Court also says we consider it unlikely that visual depictions of children sex acts would have literary or scientific value. Illinois (1987) elaborates on this point 1. Rehnquist opinion 4. The state convicted for showing the film Carnal Knowledge. and the law was upheld. taken as a whole. then you cannot ban/punish the material. law prohibited distribution of child pornography. . 2. The Court holds that the determination of local community standards is for the jury. xiii. The Court relies in part on the fact that there is a movie star in it and it was nominated and therefore it is mainstream and not obscene. c. And protecting unconsenting adults. xvi. The Court clarifies that the community standards are local. The state can ban distribution to prevent the films from being made. xiv. This helps stop child abuse. 2. United States (1974) 1. United States (1977) 1. Note that pornography and obscenity are not the same thing. The case created a new category under Chaplinsky b. 1.Y. The N. and was nominated for an Academy Award. political or scientific value is not to be measured by local community standards. 6.xi. artistic. It also says that literary. d. Child pornography 1. xii. ii. Pope v. Smith v. Pornography either has artistic/political/social merit or it does not appeal to the prurient interest under the community standard. rather than statewide or national. Nudity is not enough to be obscene under Miller. i. Jenkins v. The state has an interest in protecting children. iv. Sometimes hardcore pornography is used as a synonym. Ferber (1982) a. The proper inquiry is not whether an ordinary member of any given community would find serious value in allegedly obscene material. New York v. White majority i. Hamling v. Georgia (1974) 1. iii.
Child pornography does not have to meet any of the prongs of the Miller test. a. c. c. White majority i. i. 2. The MacKinnon-Dworkin ordinance. Osborne v. e. The thought was pornography led to sexual discrimination and abuse. Brennan dissents i. American Booksellers Ass’n v. This was because it eroticizes dominance and submission. The court is relying on the fact that you are committing a crime to make it. There has not been a case that argues child pornography had serious artistic/scientific value. . b. 1. Thus could not criminalize virtual child pornography. The law attacks an idea. not required to be in a patently offensive. The Supreme Court declined to extend Ferber to pornography not produced with actual child actors. The law at issue is too broad. and it need not be considered as a whole. The argument against the ordinance is the slippery slope. 2. Hudnut (1986) a. Also could not criminalize sexually explicit conduct advertised as child porn but was in fact not. The ordinance covered graphic sexually explicit subordination of women.v. 3. The statute was not limited to things that were obscene. Ashcroft v. You can criminalize possession of child pornography in the home because if you buy the porn you are encouraging its production. Georgia does not apply to child pornography. xvii. c. d. b. that women are subservient or men dominant. ii. He says the ordinance is viewpoint discrimination and hence unconstitutional. Free Speech Coalition (2002) a. Easterbrook opinion b. Stanley v. and it could be applied to things like the Coppertone ad. It does not have to appeal to the prurient interest. b. The law here went behind Ferber because it prohibited speech that records no crime and creates no victims by its production. Ohio (1990) a. 3. Pornography as subordination of Women 1. 4.
Mount Ephraim (1981) a. This kind of judgment he says is for the legislature. The ordinance prohibited drive-in movie theaters with screens visible from the public streets from showing films containing nudity. Erogenous zoning 1. xviii. xix. Still viewpoint discrimination. Thus not a compelling reason to protect intrusions as screens are not that intrusive. Jacksonville (1975) a. Erznoznik v. the statute is too broad. The rule of Cohen should apply here. Powell majority d. f. The law applied to non-obscene films. White majority i. Nudity bans 1. You cannot limit speech on the ground that truth has not prevailed. some speech is ahead in the game. The borough presented no evidence that live entertainment posed problems more significant than those associated with various permitted uses. c. ii. i. d. No evidence in the record to support the proposition that the kind of entertainment appellants wish to provide is available in reasonably nearby areas. 2. simply avert your eyes if offended. Nudity alone does not place otherwise protected material outside the 1st Amendment. At any time. e. This discriminates on the basis of content. If pornography is what pornography does. i. so is other speech. Schad v. If goal is to protect minors from seeing the nudity. iii. iv. Court also rejected the idea that the film might cause traffic accidents. Young v. American Mini Theaters (1976) . g. the ordinance prohibits a wide range of expression that has long been held to be within the protections of the 1st Amendment. By excluding live entertainment throughout the borough. f.c. e. g. Public nudity was banned and all live entertainment was banned. b. and they made that judgment. Easterbrook accepts the argument that images of subordination/domination lead to subordination/domination. Nude scenes are no more distracting than other images. b.
billiard halls. the regulations are not narrowly tailored to serve the government interest and did not provide for reasonable alternative avenues of communication. 3. Renton v. f. iv.) c. This is content regulation ii. . iv. He says there are zoning regulations that have an incidental effect on the 1st Amendment. e. b. billiards. City of Los Angeles v. And the limitation is just a limitation of where the adult films can be exhibited. Playtime Theatres (1986) a. they realized this had to lead to multiple adult enterprises under a single structure. d. He says the government interest here was unrelated to free expression. ii. Powell concurs only in the judgment. hotels. Rather it was about the interaction of some businesses and the crime and problems that might result. The ordinance said an adult theater could not be within 1000 feet of two other regulated uses (bars. Rather it was aimed at the secondary effects of such theaters on the surround community. iii. d. i. Rehnquist majority said the ordinance was not aimed at content c. The city had passed a zoning regulation that imposed density limits on adult establishments. Several years later. Even if it isn’t. iii. Brennan dissent i. maintain property values. Alameda Books (2002) a. e. ii. The city has an interest in trying to preserve the quality of urban life. The result is you channel the display of sexually explicit material to limited parts of the city. O’Connor plurality i. The Detroit ordinance did not want adult theaters near other types of business like bars. The ordinances are consistent with the 1st Amendment. cabarets. etc. This zoning law tried to concentrate adult theaters rather than disperse them. but you can regulate. That means you can’t ban. etc. etc. Stevens plurality i. 2. b. Says adult movies are lower value speech. protect the city’s retail trade.a. He says the O’Brien test should be used. The ordinance was designed to prevent crime. ii.
vi. Here the zoning survives because it would ameliorate the secondary effects and the reduction in speech will be very little because the businesses will disperse. The court refused to treat depictions of animals as a class categorically unprotected by the 1st Amendment. Kennedy concurrence i. In looking at the secondary effects. . it does not need slam dunk proof. journalistic. scientific. Roberts majority 4. The city cannot use the premise of zoning to close these businesses. v. The video in question was of dog fighting. There just has to be evidence of a link reasonably believed to be relevant. Stevens (2010) 1. ii.so they amend the law to prohibit more than one adult business within a building. historical. not strict scrutiny. plurality said. iv. xx. United States v. Zoning regulations do not automatically raise the specter of impermissible content discrimination even if they are content based because they have a prima facie legitimate purpose: 1. mutilated. Zoning regulations should be subject to intermediate scrutiny. b. To limit the negative externalities of land use. the city can show correlation. but it also could reasonably predict the adverse secondary effects from multiple businesses under the same roof. or killed if that conduct violates federal or state law unless the depiction has serious religious. The plurality left open the question of whether a city could justify its ordinance based on another jurisdiction’s finding of secondary effects when the city had no explicitly considered the study at the time of enacting the ordinance. Souter dissent i. You have to have empirical justifications backing up the claims of secondary effects. The statute criminalized the creation sale or possession of any visual or auditory depiction in which a living animal is intentionally maimed. In this case the study relied on was about the effects of multiple adult establishments in the same vicinity. or artistic value. c. iii. 2. political. iii. tortured. iv. educational. don’t need evidence that rules out all other theories. 3. wounded.
You can’t unhear the words. b. In a part that is a plurality. You can just turn the radio off. Pacifica (1978) 1. 2. b. He also says the statute is substantially overbroad and thus facially invalid. Scalia majority a. The problem with broadcast is the material comes right in your home. 7. FCC v. Majority did not decide whether a law limited to crush videos would be constitutional. 6.5. 3. Brennan dissent a. The purpose the law is to stop criminal conduct. Alito dissent a. Ferber cannot be taken as granting the authority to declare new categories of speech outside the scope of the 1st Amendment. He says the worry about hunting vides is dealt with by the clause excepting works with serious value. it is not worth curtailing the 1st Amendment. Stevens majority a. . Fox (2009) 1. And you might turn on the radio in the middle of the broadcast after the warning. A father driving his child turned on the radio and heard these seven words. Broadcasting is less protected because it is pervasive. The FCC later changes its prior interpretations to say that fleeting expletives or nudity are no longer good law. xxiii. Carlin did a 20 minute sketch on the radio about the seven words you couldn’t use on the public airwaves. d. xxii. The FCC also has the power to channel the content to certain times of day. b. The ease with which children may obtain access to broadcast material amplifies the concerns. a. 4. They decline to rule on the constitutionality. There was a warning at the beginning of the broadcast. He says hunting videos could fall under it. The FCC policy change is not arbitrary or capricious. FCC v. 7. e. You are committing a crime when making the video. 5. c. Alito says the crush act is done for the sole purpose of creating videos. Since it is so easy to turn off. Stevens says this kind of speech is low value speech. b. The FCC had the power to sanction things that were indecent or profane. c. d. 6. 8. xxi.
5. You have to take steps to receive the communication. You can’t limit adults to things that are only acceptable for kids. 4. and NYPD Blue. 2. a.xxiv. U. xxvi. they can escape exposure by throwing the inserts away. The law banned indecent or obscene telephone messages. Powell majority overturns the law. You can’t ban solicitation. which was allowed. This is different from Pacifica. The Supreme Court says the statute is constitutional. FCC (1996) 1. Youngs Drug Products Corp. but you can put a sign outdoors and say no solicitation. and scrambling options. FCC (1989) 1.S. Difference with Rowan is here the law says can’t deliver unless they ask. Inc. Bolger v. access codes. No one has a right to press even good ideas on an unwilling recipient. Post Office Department (1970) 1. Rowan was can’t deliver if they say they don’t want. Denver Area Educational Telecommunications Consortium v. The law found unconstitutional. He thinks protecting children is important . v. 2. The law allowed cable operators to enforce a policy that prohibits programming on sexual or excretory functions. Sable Communications. Also there was enough protection here to prevent kids from using like requiring credit card payments. The statute says you can tell the post office not to deliver dirty stuff to your house. xxv. 2. These are pre-recorded telephone messages. 4. The law banned the mailing of unsolicited advertisements for contraceptives. The Supreme Court agreed. 2. Breyer majority a. Con Ed. White majority a. Field says how can you distinguish between Saving Private Ryan. who held the regulations were void for vagueness 3. Rowan v. c. Same concept. b. 3. xxviii. 2. 3. which wasn’t. Even if a short exposure to Con Ed’s views offends. xxvii. 3. 3. including the desirability of future development of nuclear power. The case went back down to the 2nd Circuit. v. 4. Limits the scope of Rowan 2. PSC (1980) 1. This is protecting the right of privacy. Dial-a-porn services. d. (1983) 1. The PSC had issued an order barring utilities from using bill inserts to discuss political matters.
3. not targeting the speech. ACLU I (2002) . The law required cable operators to either fully scramble sexually explicit programming or confine it to late-night hours. The court struck down the law. And it is easy for kids to watch. xxix. The tine-channeling requirement significantly restricted cable operators’’ speech. xxx. Stevens majority 5. Requiring websites to set up credit card screen was a bit too much of a burden. a. United States v. a. The zoning cases aren’t on point here because aren’t regulating secondary effects. Thus they strike down the law. which federal law required cable operators to reserve for commercial use by cable programmers unaffiliated with the operator and public access channels which federal law permits municipalities to reserve for their own public. Reno v. or governmental use. This is the least restrictive alternative. 6. c. 2. The statute does not define indecency and does not have any exception for serious literary. 5. 4. 4. Playboy Entertainment Group (2000) 1. political or scientific value. Note in ALA they argue against filters. educational. In another part of the opinion. The majority also distinguishes between broadcast and the Internet. xxxi. Erogenous zoning cases were irrelevant because those are about secondary effects. 8. Cable systems also not like broadcast because cable had the capacity to block channels on a household-by-household basis. Ashcroft v. 9. The internet doesn’t invade the home. 3. 6. The internet also isn’t a scarce resource 7. artistic. Case deals with the Communications Decency Act (CDA) 2. Compare to library cases where filtering software not too much of a burden. Here ACLU was arguing for filters. Also this is like Pacifica in that the conformation is in your home. And this places too great a burden on adult speech. so strict scrutiny. Also there are less restrictive alternatives like filtering software.b. ACLU (1997) 1. and it is very difficult for websites to verify the viewer’s identity. d. the Court struck down cable operators discretion over indecent programming on leased access channels. Kennedy said the law was content-based. a. b. That law prohibited the transmission of obscene or indecent messages to any recipient under 18 years of age.
1. but this by itself did not enjoin the Act. A provider cannot limit web content by geography xxxii. which burdens free speech less. Community standards doesn’t work because we’ll be limited by the most puritan standards. (1969) 1. The Court held that a public school could not discipline two high school students and one junior high school student for wearing black armbands to school to publicize their objections to the Vietnam War. 6. Breyer concurs: He says community is the adult community taken as a whole. The court rejects the argument that COPA is unconstitutional on its face. 3. b. Tinker v. It was also important that the school order singled out the armband for prohibition. 7. The need to protect children is compelling enough to survive strict scrutiny. Thomas for the plurality said absent geographic specification. Students are allowed to protest as long as they do not materially and substantially interfere with the requirements of appropriate discipline in the operation of the school or impinge upon the rights of other students. Des Moines School Dist. Students and teachers do not shed their constitutional rights when enter the school. Breyer dissent a. d. Scalia in dissent says commercial pornography should not be subject to strict scrutiny. Filtering software does not solve the problem. The challengers claimed that the community standards provision would mean abiding by the most puritan standards. 4. 2. 4. Children i. Kennedy majority says that filtering. Ashcroft v. ACLU II (2004) 1. 3. the court concluded that the more restrictive option could not survive strict scrutiny. 2. b. a juror applying community standards will inevitably draw upon personal knowledge of the community they come from. The closets precedent was Playboy where absent a showing that the proposed less restrictive alternative would not be as effective. . Fortas majority a. 2. A big point is the protest here is unaccompanied by any disorder or disturbance on the part of the petitioners. is just as effective as COPA. Kennedy concurs: Says COPA makes an eavesdropper the arbiter of propriety on the web. b. O’Connor concurs but says we need to adopt a national standard. Stevens dissent a. f. c. 5.
Students are allowed to learn ideas not taught in the classroom. Kuhlmeier (1988) 1. School libraries are not like public libraries. Student gave a lewd speech at an assembly. Pico (1982) 1. And you can’t make a plausible distinction between removal and purchase. This could be done on summary judgment without touching the 1st Amendment 5. A school board can remove books if they deem them vulgar or remove them based on their educational suitability. Fraser (1986) 1. 3. It was not political speech and could say it was disruptive. iii. Burger dissent: school boards have to determine morality and vulgarity. the penalties were unrelated to any political viewpoint. Brennan noted that nothing in the decision affected a school’s discretion in choosing which books to add to the library. Rehnquist dissent a. Hazelwood School district v. 2. The information at question here could be acquired elsewhere. A school board cannot remove books to deny access to ideas or because of a political motive. c. 6. The principal deleted two stories from a school newspaper. 5. e. d. Burger majority 3. e. Our Constitution does not permit the official suppression of ideas. The school can punish. White majority . Blackmun concurs a. b. 6. Unlike Tinker. b. d. Brennan plurality a. 403 v. Bethel School Dist. No. iv. Can’t remove for the sole purpose of suppressing exposure to ideas. Board of Education v. c. 4. It is a school activity that everyone has come to. 4. 2. The idea that students have a right to access in school info other than that thought by educators to be necessary is against our understanding of education. Schools job is to inculcate values.ii. White concurs giving 5th vote a. 2. The issue was the school board took the recommendation of a conservative parents organization and removed books from the school library.
As for divorce story. The school’s interpretation that this promotes drug use is a reasonable one. c. e.a. it is a fear of drugs. they could conclude that an inattentive parent was entitled to an opportunity to defend himself. School newspaper is not a forum. Students went outside as part of a school-sponsored teachersupervised trip to watch the Olympic torch pass through. This is school speech as it is during school hours during a school trip. not violence. b. d. California statute prohibited the sale or rental to minors of violent video games. Thomas concurs to say students have no free speech rights. that is a reason it can censor. They apply strict scrutiny. Brown v. c. The law is unconstitutional. b. b. b. d. The danger here is greater than a fear of disruption. 3. e. Video games communicate ideas. 2. It is one thing to restrict speech that advocates drug use. Scalia majority a. The 1st Amendment protects student speech if the message itself neither violates a permissible rule nor expressly advocates conduct that is illegal and harmful to students. Could also say it was inappropriate conversation for the age and for younger children that might read. c. Roberts majority a. e. d. Frederick (2007) 1. Morse v. The obscenity exception only covers depictions of sexual conduct. The state does not have free floating power to restrict the ideas to which children may be exposed. so school can punish. This case introduces a new factor: if you think the school is sponsoring or giving its imprimatur. 3. . This is not political speech as student said it was not. Educators do not offend the 1st Amendment by exercising editorial control over the style and content of student speech in school sponsored expressive activity so long as their actions are reasonably related to legitimate pedagogical concerns. Stevens dissents a. Here the control was reasonable as students’ anonymity might not have been adequately protected. Schools have a compelling interest in deterring drug use. vi. v. This is not advocacy but nonsense. 2. 4. c. Entertainment Merchants Ass’n (2011) 1.
g. Valentine v. 2. He emphasizes the right of the recipient to receive info. Bigelow v. Breyer: Says strict scrutiny but the Court meets it. g. 4. There are studies showing a causal link between violent video games and violence in kids. 7. Alito concurrence a. Virginia (1975) 1. c.f. Commercial speech not protected by the 1st Amendment iii. The Court says that the 1st Amendment puts no restraint on purely commercial advertising 2. . The question in this case is whether there is an exception in the 1st Amendment for commercial speech. Chrestensen (1942) 1. Pittsburgh Human Relations Comm’n (1973) 1. The Court upheld a sex discrimination ordinance prohibiting newspapers from listing employment advertisement in genderdesignated columns. 5. The Court held that Virginia could not criminalize ads about availability of abortion services in NY. Thus the Court sustained a ban on distribution of a handbill advertisement. California can’t show the law meets a substantial need of parents. Va. He says the government cannot be paternalistic b. h. ii. There is already a voluntary rating system in place j. The law fails strict scrutiny because they can’t show a causal link between violent video games and harm to minors. And the aid to parents is overinclusive as it bans games to minors whose parents are indifferent on violent video games. i. The law is under-inclusive (did not prohibit cartoons or distribution of pictures of guns) which raises doubts about the government interest. Pittsburgh Press Co. The state interest is professionalism. The state fears a price war which may affect quality. Says maybe you could regulate video games but this law void for vagueness. This case was really more about abortion than speech. 3. 6. Blackmun majority a. Citizens Consumer Council (1976) 1. 2. Commercial speech i. not the government. iv. This makes it seem they really want to suppress a viewpoint. Virginia Pharmacy Board v. There should be some degree of deference to the legislature. Thomas: Children don’t have 1st Amendment rights. The speaker and the recipient determine what the value of the speech is. 3. v. 2.
He is spot on that consumers will start asking their doctors for certain drugs. It is a matter of public interest that those decisions. He doesn’t like keeping people ignorant. So long as we preserve a predominantly free enterprise economy. but it is still the test. they did limit lawyers from soliciting with mail targeted to personal injury victims for 30 days. He is worried about illicit use or patients pressuring doctors. and it cannot legislate based on that speculation. The objective was to stem white flight. 4. 3. v. Almost all of these restrictions are knocked down. in the aggregate. Blackmun is not worried about losing pharmacy expertise. e. 1. vii. The ordinance banned posting for sale and sold signs on your yard 2. But. Willingboro (1977) 1. h. b.v. viii. You can regulate commercial speech i. Public Service Comm’n (1980) 1. Rehnquist dissent a. He says the government is just speculating as to how people will react. The 1st Amendment means we do not suppress information because of the possibility the information will be misused. ii. Youngs Drug Products Corp (1983) 1. d. The Court invalidated a federal statute prohibiting the mailing of unsolicited advertisements for contraceptives. Advertising cannot be banned if it is truthful and not misleading. c. Court struck down the ordinance. 4. For example before this lawyers couldn’t run ads or be listed in the yellow pages. He also does not see information on competing shampoos as having the same protection as political speech. Bolger v. You have a right to convey that information. vi. g. f. It also has to be advertising legal activities. the allocation of our resources depends on private economic decisions. j. be intelligent and well informed. Central Hudson Gas v. The Court first ruled that the speech was commercial speech notwithstanding the fact that the mailers contained discussion of important public health issues. Other cases dealt with the professions. This is the test that nobody likes. . 2. the Linmark Associates Inc. i. d. In between Virginia Pharmacy and Central Hudson. Virginia is not required to hew to the teachings of Adam Smith in its legislative decisions.
xi. But it made clear that the portion of the ordinance banning offsite commercial billboards would be permissible. Discovery Network (1993) 1. 4. and preventing their exploitation. The state’s interest in conserving energy is substantial. The substantial interest was promoting an educational rather than commercial atmosphere. 4. They create a four part test to determine whether commercial speech is protected by the First Amendment i. The New York Public Service commission prohibited electrical utilities from engaging in promotional advertising designed to stimulate demand for electricity. they must ask whether the asserted governmental interest is substantial iii. ix. City of Cincinnati v. The fit between the legislature’s ends and means does not have to be perfect. 3. Here the regulation was more extensive than was necessary. It must concern lawful activity and not be misleading ii. insuring security of students. Inc. d. c. b. It is ok to distinguish between commercial and non-commercial billboards. Next. but needs to be reasonable. Thus. 2. This may seem like least restrictive alternative.2. Powell majority a. Fox (1989) 1. 1. x. Does the regulation directly advance the gov’t interest asserted iv. Whether it is not more extensive than is necessary to serve that interest. Metromedia. the college could ban Tupperware parties on campus. 3. the state cannot restrict ads in this way. 2. v. The court was deferential to the government in reviewing whether the ban advanced the interest of traffic safety and appearance of the city. 3. . The Court held that commercial speech may not be treated differently form noncommercial speech for aesthetic or safety purposes in the absence of some distinctive harm from commercial speech. The Court struck down an ordinance regulating the placement of noncommercial billboards. e. This is an intermediate scrutiny standard. but later cases make clear it is looser standard than that. But. Here the court clarifies that no more extensive than necessary does not mean they must employ the least restive alternative. San Diego (1981) 1. Board of Trustees v.
The interest in aesthetics does not work because these news racks are no more of an eye sore than the news racks for newspapers. Inc. d. The Court rejected any notion that there is a vice exception to the protection of commercial speech.2. Rubin v. 4. The regulatory framework is therefore irrational. Rhode Island (1996) 1. xiv. Coors Brewing Co. just not labels. United Reporting (1999) 1. 3. The section in question is not an abridgement of anyone’s right to engage in speech. journalistic. This restriction makes no sense if trying to prevent ad wards. (1995) 1. 3. b. xii. Rehnquist opinion: a. Plus with wine they have to disclose the alcohol content if above 14% alcohol. xiii. Rhode Island prohibited advertisements of the price of alcoholic beverages in any manner whatsoever except by tags or signs inside liquor stores. 5. Here the city banned the respondents from placing news racks on public property to dispense free advertisements but allowed news racks for distributing general circulation newspapers. political or government purposes. but not in order to sell a product or service. 2. b. The brewers remained free to disclose alcohol content in ads. v. 2. b. 1 part of it says that bans against dissemination of truthful. Rather it is a law regulating access to information in the hands of the police department. In the alternative. but several different reasons. The motivation behind the ordinance is that it will reduce littering and improve the appearance of the streets. The case involved a federal law that prohibited beer labels from displaying alcohol content. the law fails Central Hudson . nonmisleading commercial messages unrelated to the preservation of a fair bargaining process should receive strict scrutiny. 4. 44 Liquormart. prohibit marketing emphasizing high alcohol strength. c. State law permitted arrest records to be disclose for scholarly. The state goal is temperance 3. The reason was the government wanted to prevent strength wars. Thomas opinion a. 2. Los Angeles Police Department v. Plus it is more extensive than necessary because government could limit the alcohol content of beers. Supreme Court unanimously invalidates the law. Stevens plurality a. 4.
United States. Mandatory fees for generic fruit advertising did not amount to compelled speech so no 1st Amendment concern. Also. Wileman Bros (1997) 1. 2. 7. The Court unanimously struck down a 65 year old federal law banning broadcast advertising of lotteries and casino gambling. The Court said the government had failed to demonstrate that the speech restrictions are not more extensive than is necessary to serve the interest of protecting the new drug approval process. Reilly (2001) 1. 2. 6. Also. 2. The state gives no evidence this prohibition will significantly reduce consumption. Souter dissent would have applied Central Hudson and found the government failed the test. The law gave exemption from FDA approval requirements for makers of compounded drugs if they did not advertise or promote the compounding of any particular drug. The law is also more extensive than necessary. Scalia concurs in judgment under Central Hudson. 3. For example they could tax the product or regulate by raising the price. Thompson v. Western States Medical Center (2002) 1. O’Connor plurality says this fails Central Hudson. you cannot unnecessarily burden adult speech. but says he doesn’t like the test. xvii. 5. Greater New Orleans Broadcasting Association v. Thomas view is that a ban on truthful price information is per se illegitimate. . Regulating speech must be a last not a first resort. Lorillard Tobacco Co. or type of drug. xvi. 5. 2. 5-4 O’Connor says the law fails the 4th part of Central Hudson. class of drug. i. 3. Or per capita purchases could be limited. 4. The five foot high requirement doesn’t make sense as children can look up. v. The problem was the law had so many holes and exceptions it could not be seen as rationally advancing the government interest in discouraging gambling. Glickman v. a. (1999) 1. Massachusetts prohibited advertising cigarettes and cigars within 1000 feet of a school or playground and indoor point of sale advertising be no lower than five feet from the floor. Again less restrictive means like a tax. 4. xviii. ii.xv. the Court has previously rejected the notion that the Government has an interest in preventing the dissemination of truthful commercial information in order to prevent members of the public from making bad decisions with the information. The fact that the 1000 foot rule applied to signs of any size did not make sense.
The government is allowed to regulate broadcasting more because there is a scarcity of broadcasting resources b.xix. The Court says the First Amendment preserves an uninhibited marketplace of ideas rather than to countenance monopolization of that market. They could advance this goal is a less restrictive way. f.. The Court rejected the broadcasters’ 1st Amendment challenge to the FCC fairness doctrine. 2. The Court found a VT law unconstitutional that pharmacies and health insurers could not sell regulated records containing prescriber-identifiable information for marketing or promoting a drug. g. d. He noted that a consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue. e. 2. There was an exception for private or academic researchers. Also there is the idea of a right of reply. Kennedy majority a. 3. The fairness doctrine required licensed broadcast stations to provide free reply time in response to certain personal attacks and political editorials. d. The regulation here is pro free speech because it lets both sides out. . The Court is worried that station owners and a few networks could only broadcast their own views. Subsidies i. 2. The advocates pointed out the concentration of power in the newspaper business. The law created content-based rules. Tornillo 1. h. The fear that people will make bad decisions if given truthful information cannot justify content-based burdens on speech. ii. whether by the Government or private licensee. It is the right of the viewer and listener which is paramount. (2011) 1. The FCC repeals the fairness doctrine in 1987. Red Lion Broadcasting v. iii. FCC (1969) 1. White opinion for unanimous court a. The Court is looking at broadcasting as a public service. 3. e. But the court says the remedy would call for coercion and that would conflict with the 1st amendment. Rejected an enforceable right of access to the press with respect to print media. 3. Sorrell v. c. The court’s reason for the restriction was to promote generic drugs over brand name drugs. b. IMS Health Co. c.
The government does not want to subsidize lobbying and the government is allowed to decide what they want to subsidize. 2. Douglas concurrence: a. The court overturned the CA requirement that property tax exemption for veterans would be available only to those who declared that they did not advocate the forcible overthrow of the government. b. v. We should worry more about government control than is the result fair. the right to speak would ring hollow. c. The nonprofits can separate their lobbying and non-lobbying. 2. vi. . Field: Later in South Dakota v. He doesn’t want the government deciding what can be said. The law has an exception for veterans groups which allows them to lobby and donations are tax deductible. 3. Columbia Broadcasting. (1973) 1. You can’t regulate news agencies save only business or financial practices which do not involve the 1st Amendment. 8. CBS refused to air an editorial advertisement. Rehnquist says this is fine. Speiser v. The Supreme Court upholds this provision of the Internal Revenue Code. Any policy that absolutely denies citizens access to the airwaves was unjustifiable. Nonprofits organized under 501(c)(4) free to lobby. He feels Red Lion curtails rights unduly. b. Inc. 501(c)(3) can’t lobby. 5. They can then take tax deductible money by just keeping these two things separate. Dole (1987) we learn that there has to be a nexus between the grant and the restriction. Taxation with Representation of Washington (1983) 1. Brennan dissent a. Regan v. 3. but the contributions are not tax deductible. 4. Randall (1958) 1. 2. The Court does not want the FCC determining this on a case-bycase 7. 3. 6. The Burger majority highlights the broadcasters’ discretion. Rehnquist opinion a. 6. Democratic National Comm. v. it is just an extra benefit for veterans. 4. b. 5. To deny an exemption to people who engage in certain forms of speech is to penalize them for such speech. but contributions are tax deductible.iv. In the absence of an effective means of communication. The Court says broadcasters are not constitutionally required to accept such advertisements.
They have to keep such activities separate and distinct from Title X activities. i. League of Women Voters (1984) 1. viii. c. The doctors are not prevented from offering the abortion services on their own. 4. Thus you can limit programs but can’t restrict activity outside of the program. The station has no way of limiting the use of its federal funds to non-editorializing activities and the station is barred from using wholly private funds to finance its editorial content. 2. The Court invalidated a provision of the Act forbidding any “noncommercial educational broadcasting station which receives a grant from the Corporation for Public Broadcasting from engaging in editorializing. e. promoting. 5. d. 3. He is worried the stations will take the money and then they will become propaganda organs for the government. 2. Thus this is not a subsidy of speech but a penalty on broadcasters’ protected speech. FCC v. It does not need to then fund an alternative program which seeks to deal with the problem in a different way. Here the government justification for the editorial ban was inadequate: the restriction was not closely tailored to the goal of protecting public broadcasters from becoming propaganda vehicles for the government.d. and on the basis of that saying no editorializing on your stations. b. He supports the regulation for this reason and because it is viewpoint neutral. Can limit the tax exempt. He says the distinction is status based not content based. . The government does not have to give money to both sides of the debate. but not activity outside of that. it is choosing to fund one activity to the exclusion of another. This is not viewpoint discrimination. Sullivan (1991) 1. ii. vii. It can selectively fund a program to encourage certain activities it believes to be in the public interest. The Court upheld an HHS regulation forbidding projects receiving funding under Title X from counseling or referring women for abortion and from encouraging. or advocating abortion. 7. Rehnquist majority a. government is trying to control the whole ballgame. Rust v. b. 6. Stevens dissent a. It is the government’s money. Through this tiny amount. The government was giving 1% of funding.
This suppresses speech favorable to abortion and compels antiabortion speech. Thus it does not matter that Title X projects to raise private matching funds. g. Or you could say Rust is viewpoint discrimination. This is because the law does not abridge the speech of those who want to make indecent art. b. This is viewpoint-based suppression. They can still make that art. i. 6. taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public. you can make content based judgments. O’Connor opinion 3. The read the decency requirement as hortatory. LWV because there the restriction was placed on the recipient. Absolute neutrality is impossible when you have a selective program of rants 5. d. It does establish content and viewpoint based criteria. This is different from FCC v. Finley (1998) 1. . 9. When spending money. and that is allowed because you don’t have to accept the government money. 3. Scalia concurs a. This is similar to the position we take with campaign finance. they have to take the funds. not on the program. 10. The law required the Chairperson of the NEA to ensure that artistic excellence and artistic merit are the criteria by which grant applications are judged. 8. 2. Blackmun dissent a. Field: As a practical matter. it is not up to the government to see that there is a fair distribution of information. The person does not have to operate a Title X project. it could decline the subsidy. You don’t’ need to read the criteria as merely hortatory b. and that is fine. ix. If the NEA were to use its power to disfavor certain viewpoints. But you cannot make viewpoint based judgments. This was a facial challenge. We have ended up with the view that the market should decide because we fear government control. NEA v. c. He also says that this program will not disrupt the doctorpatient relationship. You could say this is like Rust and the subsidy is limited to decent art. that would be a different case. f. The Court held the law constitutional on its face 4. x. 7. 1. Since Tornillo. they just can’t get government money. xi.e.
It doesn’t matter if you have government employed artists. this is granting money for certain viewpoints. Souter dissent a. and you can’t do viewpoint discrimination then. or fund private art classes or give money who advocate for art classes. ii. v. . Scalia goes with this government speech. Kennedy opinion a. Nor is it guying anything for itself with its NEA grants. This is not creating a forum. viewpoint discrimination is ok. d. the funding of religious groups case. Velazquez 1. b. OR instances like Rust in which the government uses private speakers to transmit information pertaining to its own program. Like Rosenberger. 12. Scalia does say that if the program was driving the other viewpoints out of the market. Also unlike Rust there is no alternative channel for expression of the advocacy Congress seeks to restrict. The government is not speaking through the NEA subsidies. c. Advice from an attorney to his/her client and advocacy by the attorney cannot be classified as government speech. Legal Servs. Viewpoint based funding decisions can be sustained in instances in which the government is itself the speaker b. that might be a different situation. xii. The law banned the Legal Services Corporation from funding any organization that represented indigent clients in an effort to amend or otherwise challenge existing welfare law. establish an office of art appreciation. i. This case is different from Rosenberger because they struck down the restrictions because the government had created a limited public forum. b. 2. It was designed to facilitate private speech. iii. Corp. the government can engage in viewpoint discrimination if the government is the speaker or the government is disbursing public funds to private entities to convey a governmental message (second part is the reinterpretation of Rust) ii. The LSC program is different. This is the development of when government is the speaker. d. But the NEA here is not the sole source of funding for the arts. i. The government is acting as a patron here. Court struck down the law 3. c. Viewpoint discrimination in the exercise of public authority over expressive activity is unconstitutional. 11.a.
e. 4. American Library Association (ALA) (2003) 1. they seek to provide materials that would be of the greatest direct benefit or interest to the community. so Congress is allowed to impose a parallel limitation on Internet access. They have to install the filtering software on every computer. . c. Thus it simply places restrictions on the use of its funds. 2. The Constitution does not let the government insulate the government’s interpretation of the Constitution. United States v. 4. Plus the restriction here insulates current welfare laws from constitutional scrutiny and other legal challenges. And when a patron hits a blocked site. The court also says public libraries have traditionally excluded pornographic material. he/she can ask a librarian to unblock it. And when the government appropriates public funds to establish a program. This is the same as Rust b. 5. If a public library receives federal subsidies. It can still play that role when it “collects material from the Internet. it is entitled to define the limits of that program. f. e. if doctor’s advice to their patients counts as government speech. The Court rejects the view that library computers are akin to public forums or designated public forums. The provision simply declines to subsidize a certain class of litigation. The patient in Rust did not have to forfeit government advice if she sought abortion counseling. But here. e. and recreational pursuits. The Constitution does not give patrons the right to acquire info at the library without the risk of embarrassment. b. c. it is hard to imagine what is not government speech. d. Scalia dissent a.” d. 3. Lawyer’s professional obligation is no different than doctor’s professional obligation. not just ones bought with a subsidy. A library needs to exercise judgment in making collection decisions. the LSC attorney must withdraw if a question of validity arises. it is required to install filtering software to block Internet access to obscenity. There can’t be joint representation. And if take the view that Rust was government speech.i. ii. It does not infringe on the right to bring such litigation. learning. f. Internet is provided not to encourage a diversity of views but to facilitate research. a. Libraries don’t seek universal coverage. xiii.
It affects the kinds and amounts of materials a library can present to its patrons. meaning situations when the government seeks to communicate a specific message. f. Under intermediate scrutiny there is a compelling interest of protecting minors. not just the ones purchases with gov’t money. c. There is no message here: the gov’t just wants to help libraries give patrons Internet access. b. that you can’t force speech to only be what is appropriate for children. This is censorship. . d. 12. Internet it is all free and they are being forced to exclude some speech. e. NY b. Field distinguishes Internet from books a. Since under the law in ALA the adult can ask the librarian to turn off the filtering software. 10. c. This case is not like Velazquez because libraries are not pitted against the government like lawyers are. 7. In Ginsberg. Note here. Stevens dissent a. b. unlike Reno v. Zittrain analogizes to Ginsberg v. 9. the Court said it was ok to have a law that said if you sell Playboy you have to put it out of reach of small hands and you have to ask for ID if you want to buy. Books they have to choose which to buy. ACLU. Filtering software is crude and tends to over-block. Denial of benefits is just as bad as a penalty. ACLU now arguing against filters. Asking for access is a small burden. This is also too much leverage as it covers all computers. 11. effective and narrowly tailored because an adult can ask for access. Filtering is cheap. a. b. Field also says this is taking away adult speech to protect kids. c. Limited resources. Cites to the line in Sable/dial-a-porn case. c.6. he thinks this is analogous to Ginsberg. Souter dissent a. This is not like selection at all. d. Breyer concurrence a. Rust only applies to government speech. among others. Applying strict scrutiny would unreasonably interfere with the discretion needed to create a collection. This is a selection restriction. b. The blocking of sites is not necessitated by scarcity of either money or space. d. 8.
Zittrain thinks the case would have looked different if it was emphasized that the library is the only way for some people to access the Internet. the state does have an interest as an employer in regulating speech of its employees. said he was going to transfer ADA Myers. He was fired. You cannot fire teacher for this. One of Connick’s assistants said she was starting a miniinsurrection and so Connick fired her. Connick. Thus. When a public employee speaks not as a citizen upon matters of public concerns. d. the speech did not cause a disruption. Free and open debate is vital to informed decisionmaking and teachers have informed opinions. does not mean he relinquishes all 1st Amendment rights. i. White majority a. 5. i. d. the court should not get involved. 3. A teacher wrote a letter to a newspaper criticizing the school board criticizing their handling of revenue measures for the school. The questions in the survey. c. ii. It was not really of public concern. . Just because he is a public employee. 2. ii. Moreover. 4. Pickering v. So the two interests have to be balanced. ii. The speech did not substantially involve matters of public concern. c. Most of the survey was about internal stuff in the office. it is essential they be able to speak out freely on these issues. did not fall under the rubric of public concern. except for one. But the 1 question of public concern was whether employees were pressured to work on political campaigns.13. which weighs against the speaker. the DA. That said. So then one has to balance this speech on this issue with the employer’s rights. f. but instead as an employee upon matters of only personal interest. Public employee/government employee speech i. Connick v. Also the speech rights were exercised at the office. She opposed the transfer and circulated a questionnaire 3. i. Here what causes the balance to weigh towards the teacher is the Court likes the fact that a teacher is particularly well informed on this issue. Board of Education (1968) 1. e. Myers (1983) 1. b. Marshall majority a. b. nor did it impede his performance or the schools performance. 2.
iii. The state’s interest in content-related sanctions is minimal where the employee serves no confidential. The speech was a matter of public concern. c. 2. e. Waters v. Did not matter that was inappropriate or controversial. policymaking or public contact role. I hope they get him. Employer does not violate the 1st Amendment if it fires an employee for what the employer reasonably believed was speech on a matter of private concern. Scalia dissent a. And the employer had a strong interest in a close working relationship. b. . Churchill (1994) 1. b. Thus it was ok to fire her. She claimed the comment was a legitimate complaint about training that could harm patients 3. No law enforcement agency is required to have an employee ride with the cops and cheer for the robbers. Nor was it made in a context where it could bring discredit upon the office. He thinks employer can only be sued if he/she intentionally retaliated against an employee for speech on a matter of public concern. Marshall majority a. 4.iii. Extreme deference to the employer is not appropriate when public employees voice critical views concerning the operation of the agency they work for. b. No showing that the statement interfered with the effective functioning of the office e. 5. This ruling will deter public employees from making critical statements. iv. Scalia concurs a. Ranking v. The statement could hurt working relationships and undermine public confidence in the organization. O’Connor plurality a. 6. 2. c. It does not matter where speech is spoken or why when determining if a matter is of public concern. It was made in context of discussion of Reagan policies. McPherson (1987) 1. A clerical employee in a county constable’s office could not be fired for saying “If they go for him again. A nurse sued the public hospital for firing her based on a conversation with a co-worker. Brennan dissent a.” in reference to the attempted assassination of Pres. 3. Reagan. d. But her employer thought it was disruptive speech critical of her bosses.
There was an exemption for peaceful picketing of any school involved in a labor dispute. Content based laws are aimed at expression ii. 1st Amendment cases very dependent on facts. Decides the case on the basis of equal protection. Marshall opinion a. iii. vi. It is not dispositive that he expressed his views inside the office b. Peaceful picket outside of mayor’s house for racial integration . Brown (1980) 1. and the constitution does not insulate their communications from employer discipline. Mosley (1972) 1. b. The ordinance banned picketing within 150 feet of a school while school was in session. Government must afford all viewpoints an equal opportunity to be heard. They say the controlling factor is that his expressions were made pursuant to his duties as deputy. 4. If labor picketing is allowed. v. Garcetti v. 3. The government took allegedly retaliatory employment action against him. Content neutral law could be aimed at non-speech government interest. But remember.IV. there is no justification for prohibiting non-labor picketing vii. Souter dissent a. 2. Content Based Regulation i. Ceballos (2005). Kennedy majority a. 1. We do strict scrutiny for content based laws iv. Employer is liable if the matter is of public concern as determined by a court. Employer’s state of mind doesn’t matter b. Protected Free Speech: General Modes of Regulation a. Intermediate scrutiny for content neutral law aimed at non-speech. c. 6. d. When public employees make statements pursuant to their official duties. Carey v. It is not dispositive that the subject matter is his employment. v. Los Angeles deputy DA wrote his supervisors a memo stating an affidavit police had used to obtain a critical search warrant contained serious misrepresentations. 3. He says the need for balance hardily disappears when an employee speaks on matters his job requires him to address. c. but nevertheless have an effect on speech. Stevens dissent a. and often don’t follow clear rules. Police Dept. Content Neutral vs. 2. the employees are not speaking for 1st Amendment purposes. v.
and if they don’t claim it. Republican Party of Minnesota v. 2. viii. He wants a per se rule that you cannot have raw censorship based on content. That means it is subject to strict scrutiny.2. Inc. The law banned soliciting votes. The law was enacted to prevent a serial murderer and other criminals from profiting from books about their crimes. v. This is content based so it is strict scrutiny 4. ix. you’ll get it. demonstrates the necessity of restricted areas in and around polling places. Freeman (1992) 1. 3. This is the Son of Sam case 2. which describes crimes committed by the civil rights leader before he became a public figure. The history reveals a persistent battle against two evils a. Kennedy concurring a. That is the 1st Amendment will yield to the extent necessary to accommodate another constitutional right. 9. 6. 3. Blackmun opinion 3. both in this country and abroad. There is an exception to his per se rule against raw censorship. Kennedy concurrence a. Members of New York State Crime Victims Board (1991) 1. The say an examination of the evolution of election reforms. 8. x. It exempted the peaceful picketing of a place of employment involved in a labor dispute. She also found the law over-inclusive as it would sweep in books like the Autobiography of Malcolm X. 4. 4. 6. Voter intimidation b. 7. It survives strict scrutiny. 7. White (2002) . Simon & Schuster. The law said the money from the books would go to the victims. The Court says you cannot give preferential treatment to the expression of views on one particular subject. O’Connor opinion 5. And election fraud. The law is definitely content based. The state did not show any greater interest in compensating the victims from the proceeds of such storytelling than from any of the criminal’s other assets. The picketers are convicted under a state law that generally banned picketing outside a residence or dwelling. 5. 5. displaying signs and distributing political campaign materials within 100 feet of the entrance of a polling place. Thus it becomes content based on the basis of the exception. Burson v. b.
It then fails strict scrutiny because you could go with a lesser alternative such as prohibiting the intimidation. He says the secondary effects analysis only applies to sexually explicit speech. they have to be able to say what their views are. It was criminal to knowingly destroy or mutilate a draft card. 3. Brennan concurs a. Warren opinion a. O’Connor concludes this is not viewpoint-based. If the government interest is unrelated to the suppression of free expression . The defendant is convicted for burning his draft card. she adds. This is strict scrutiny because content based. The listeners’ reactions to the speech are not secondary effects. shall not announce his or her views on disputed legal or political issues. d. If it is within the constitutional power of the government ii. including an incumbent judge. a sufficiently important governmental interest in regulating the non-speech element can justify incidental limitations on 1st Amendment freedoms. The announce clause is not narrowly tailored to serve impartiality or the appearance of impartiality because it does not restrict speech for or against particular parties. We cannot accept the view that an apparently limitless variety of conduct can be labeled whenever the person engaging in the conduct intends to express an idea. United States v. 6. or harassment of foreign officials. If you are going to have judges run for office. Barry (1988) 1. c. but is contentbased. Boos v. If it furthers an important or substantial government interest (intermediate scrutiny) iii. 4. Scalia opinion a. c. threatening. You cannot justify this under secondary effects analysis. 2. xi. b. 3. He then lays out the test for whether limitation is ok i. xii. 2. 2. 5. b.1. State code of judicial conduct stated that a candidate for judicial office. And it is under-inclusive as it allows judges to make this speech before running and once elected. When speech and non-speech elements are combined in the same course of conduct. coercion. DC law prohibited displaying a sign within 500 feet of a foreign embassy that tended to bring the foreign government into public odium or public disrepute. O’Brien (1968) 1.
Arcara v. The Court says you don’t even need to apply O’Brien here. i. f. (1986) 1. If the incidental restriction is no greater than is essential to the furtherance of that interest. f.xiii. Inc. But this part of the test has been modified in later cases to make clear that. That would be strict scrutiny ii. The law was not targeting bookstores. Otherwise the draft process could be screwed up. 3. It was not obvious this would have an effect on speech. b. so strict scrutiny Track 2 is content neutral/ government interest unrelated to suppressing expression. The Court says the sexual activity here manifests absolutely no element of protected expression. And they don’t see an alternative mans that would more precisely and narrowly assure the continuing availability of draft cards. c. Then you do intermediate scrutiny/O’Brien test. Burger majority opinion a. Even if regulation meets the four criteria of test you could still strike it down if in practice it had the effect of entirely preventing a speaker from reaching a significant audience with whom he could not otherwise lawfully communicate. Field says you could consider this track 3/rational basis Track 1 is content based. xv. xvi. the government need not employ the least restrictive alternative. d. Warren finds a legitimate and important interest in making sure a person has their draft card at all times. The 4th prong looks like least restrictive alternative. Thus Warren says the law is ok. Street v. Not the case here. Here they found an adult bookstore was being used for solicitation and so they shut down the bookstore. 4. xvii. as many other ways O’Brien could have communicated. xiv. Harlan concurrence a. e. A New York law defined places of prostitution as public health nuisances and provided for the closure of any building found to be such a nuisance. Thus the 1st Amendment is not implicated. iv. 4. it was targeting any building where this conduct is going on. Cloud Books. b. The Court does not want every law to be evaluated under intermediate scrutiny. while a content-neutral law must be clearly tailored to its ends. Here there was a general law governing conduct. 2. d. e. Flag burning 1. New York (1969) . g.
Convicted for wearing a small American flag on the seat of his trousers. or cast contempt upon by word or act any flag of the United States. Found that on the record the law had been applied to permit punishment of Street merely for words about the American flag. He poured kerosene on a flag and set it on fire. “If they let that happen to Meredith we don’t need an American flag. the likelihood was great that the message would be understood by those who viewed it. Spence v. f. Smith v. e. c. Harlan majority i. deface. 4. Thus could not convict. Massachusetts law made it a crime to publicly mutilate. 5. . Spence displayed a U. Texas v. Thus. trample upon. Washington (1974) a. the defendant had no fair notice since the law was vague. defy. Powell majority i. or treat contemptuously the flag of the United States. Per curiam decision d. Goguen (1974) a. Street burned a flag after heard James Meredith had been shot. The law made it a crime to mutilate. c. ii. b. He also noted that the casual treatment of the flag in many contexts has become widespread iii. defile. 3. b. Johnson (1989) a. b. and in the surrounding circumstances. b. Court assumed the state had an interest in preserving the flag. These cases end up turning on what is the government interest. He rested opinion on “the due process doctrine of vagueness” ii. Spence says you have symbolic or expressive conduct when you have an intent to convey a particularized message.2. Johnson was part of a protest. a. deface. He also told the cop.S.” c. flag with a large peace symbol made of removable tape affixed to both sides. He said this was in protest of the invasion of Cambodia and the killings at Kent State University. They found the statute unconstitutional as applied because there was no risk his acts would mislead viewers into assuming the Government endorsed his viewpoint. He said the words were not incitement or fighting words iii.
viii. You can’t assume provocative speech will start a riot. It is worthless speech iv. damage. Then the court looks at the government interest to see if the interest is unrelated to the suppression of expression. Congress responds by passing the Flag Protection Act a. iii. d.c. He is being punished for conduct. Stevens dissents i. Eichman (1990) a. i. They thought this might work because Congress’s law did not have the part about “may also cause offense. v. He would also be prosecuted if he chose to spray paint his message of dissatisfaction on the Lincoln Memorial. The court relies on Spence test for expression and says we have expression here. ii. ii. vi. He thinks burning the flag should be outside the first amendment. vii. 6. The Court asks how could it decide which symbols were sufficiently special to warrant this unique status. and it does not survive that analysis. f. The law was evaluated as applied. as it is a view about national unity. not his viewpoint. There is a lot of backlash to the decision. There is no social value to it. The state also asserts an interest in preserving the flag as a symbol of nationhood. g. He is saying there is a separate Chaplinsky exception for flag burning. Rehnquist dissent i. The law violated was intentionally or knowingly desecrating a public monument. Desecrate was defined as deface. h. iv. or physically mistreat in a way the actor knows will seriously offend. .” 7. place of burial or state or national flag. The Court rejects disturbing the peace as no breach occurred here. That means it is subject to strict scrutiny. Brennan opinion i. United States v. iii. e. you should take note because you can’t have a statute that worries if the viewer will be offended. The Flag Protection Act is challenged. Field notes that when you see the word offend. The Court says that interest is related to expression. ii.
Scalia concurrence i. Says O’Brien should not be applied because this is a general law that is not related to expression. xviii. He then finds the statue protects public order and morality. e. The Court by a 5-4 vote holds that law requiring dancers to wear pasties and G-strings does not violate the 1st Amendment. 2. Nude dancing 1. it is nevertheless clear the Government’s asserted interest is related to the suppression of free expression. b. increases sexual assaults. The state cannot ban because of the message of eroticism nude dancing sends. iii. (2000) a. where general laws not specifically targeted at religious practices does not require heightened 1st Amendment scrutiny.b. c. He applies the O’Brien test. The state invalidated a nudity ban as applied to totally nude erotic dancing. The purpose here is to prevent people from seeing nude dancing iii. Inc. ii. Nude dancing is expressive conduct within the outer perimeters of the 1st Amendment. not this. They say although the Act contains no explicit contentbased limitation. White dissent i. This is expressive content. ii. iv. (1991) a. O’Connor plurality . Rehnquist plurality i. b. d.M. Barnes v. and attracts other criminal activity. Compares the law to Renton. v. Pap’s A. Souter concurs based on secondary effects i. c. The Court knows that the law is intended to suppress expression because they know the context of the law. He says we should apply the smith test. He says the statute is not aimed at suppressing an erotic message because other erotic messages are conveyed by the dancers. iv. And says the restriction is no greater than essential to further the governmental interest. ii. iii. The law prohibits all public nudity. Glen Theatre. The law applies to nude dancing because it encourages prostitution. so law is content neutral. Secondary effects is for pornography. City of Erie v. ii.
ii. The groups sought determination that the law could not constitutionally apply to training members of the terrorist organizations to use international law to resolve disputes peacefully and to petition the United Nations for relief. b. expert advice or assistance. e. LTTE which seeks the same for Tamils in Sri Lanka. He says he was wrong in Barnes not to demand an evidentiary basis. Federal law criminalized knowingly providing material support or resources to a foreign terrorist organization. but aimed at combating negative secondary effects of nude dancing. Outside the O’Brien test because as applied the law covered communicating a message. 4. Roberts majority a. Humanitarian Law Project (2010) 1. Two groups challenge a. Said the law was not content-based. d. but the government has to make some demonstration of an evidentiary basis for the harm. PKK which aims to establish an independent state for Kurds in Turkey b. c. He says the government has a compelling interest: protecting us from terrorists. The ordinance is impermissibly aimed at nude dancing rather than nudity in general. ii. Stevens dissent i. He opposes the extension of the secondary effects tests from zoning to what he called a total ban on a medium of expression. Scalia concurring i. He says strict scrutiny applies. He found the record here deficient. 3. It is carefully drawn to cover only a narrow category of speech. Souter partial dissent i. ii. 5. . He agrees O’Brien is the right test. c. Holder v. Material support defined to include training. d. No 1st Amendment scrutiny at all as this is a general law regulating conduct that is not specifically directed at expression. service. e. and personnel. xix. 2.i. and engaging in political advocacy on behalf of Kurds and Tamils. The restriction should be evaluated under O’Brien test. iii. He says the law isn’t too vague.
you need to make some distinction between foreign and domestic activity. ii. Breyer would have read the statute to apply to speech only when the defendant knows or intends that those activities will assist the organization’s unlawful terrorist actions. He says protecting national security is a compelling interest. Also the said the lack of review is not a problem because the groups have no real presence or property in the U. Public Forums and Time-Place-Manner Restrictions i. Hague v. But he questions how fungible the material support in this case is. it is hard for the Court to fight that because they don’t know national security. b. Part of it is also the Jackson argument in the steel seizure case that when Congress and the President are on the same side on national security. Breyer dissent a. So the review process does not work. Brandenburg says you cannot prevent advocacy of violence unless it is going to produce imminent illegal action. Problem is this case is in real conflict with Brandenburg and Scales. c. To get on the list is State Department puts you on. SJC) 1. Also Brandenburg and Scales had intent requirements for the bad stuff.f. There is no imminence requirement here. c. there had to be some element of due process and review before you are banned for all time. thereby freeing up other resources. Also in the Communist Party cases. There is also evidence the groups don’t respect the line between humanitarian and violent activities. 10.S. d. Davis (1895) (Mass. CIO (1939) . The DC Circuit is supposed to be able to review. b. 8. Holmes opinion 2. He says money or support for non-terrorist activities is not ok because material support is a valuable resource by definition and it is fungible. 6. To avoid constitutional difficulties. Those you give significant weight to the views of the executive branch. 7. But in the one case DC Circuit looked at they said there is nothing to review. h. 9. Said government could ban speech on a road or highway because the government owns it. and therefore don’t have basis for due process rights. i. Massachusetts v. b. a. g. Field believes to reconcile the cases.
Cox v. Struck down because it is standard-less. Staub v. New York (1948) 1. Roberts for the Supreme Court says wherever the title of streets and parks may rest. Invalidated as vague an ordinance requiring advance notice to the police by any person desiring to canvass or solicit. Griffin (1938) 1. vii. 6. Lakewood v. New Hampshire (1941) 1. The Court also upheld the fee saying it was to cover the administration of the act 7. Invalidated an ordinance requiring a permit for news racks on public property because too much discretion. ix. The question is whether the control is exerted so as not to deny or unwarrantedly abridge the right of assembly. 4. v. 3. iv. The early cases are mostly about standard-less permit schemes. they have immemorially been held in trust for the use by the public for assembly and discussing public questions. 4. viii. State (1939) . the hours. Schneider v. Frankfurter dissents saying the noise intrudes into cherished privacy. You cannot ban. Can’t be contingent upon the uncontrolled will of an official. Plain Dealer Publishing Co. 1. 2. The book notes the Court has never invalidated a content-neutral user fee. The law prohibited amplification without permission of the police chief. Law prohibited solicitation of membership in a dues paying organization without a permit. The Court says the government has an interest in ensuring safety and convenience in use of the highway. The court did say you can regulate amplification. 2. Saia v.iii. The purpose of the permit was to give public authorities notice in advance so as to afford the opportunity for proper policing. 2. a. You can regulate the decibels. Lovell v. 3. But remember Skokie cases where knocked down a fee calculated according to the anticipated hostility of the audience. vi. The Court invalidates a conviction for leafleting because the licensing scheme vested unfettered discretion in the city manager. and the place of the devices. 5. Here there was no evidence the statute was administered other than in a fair and non-discriminatory manner. Hynes v. Boxley (1958) 1. Affirmed the conviction of Jehovah’s Witnesses for having a parade without a permit and paying a licensing fee. 5. Mayor of Oradell (1976) 1. x. (1988) 1.
5. Gilleo (1994) . xii. but they may not have the money to own newspapers.1. iv. You have to allow this medium of expression. Struthers (1943) 1. xiii. You cannot wholly prohibit one form of communication. The Court says door-to-door distribution of circulars is essential to the poorly financed causes of little people. People have ideas they want to disseminate. 6. Reed Plurality a. 2. iii. This is not a ban on amplification. Jackson and Frankfurter concur in the judgment i. First Amendment cases are decided on the facts. d. City of Ladue v. Such bans are permitted so long as the law did not censor or discriminate among ideas. Thus it is a case by case process. You weigh public convenience on one hand and 1st Amendment rights on the other 2.v Cooper (1949) 1. xi. You could restrict the volume or the hours. The Court here invalidated ordinances forbidding distribution of leaflets. The Court applied strict scrutiny. f. 2. like punishing littering. Black dissent i. Martin v. Kovacs . And there were least restrictive alternatives. loud speakers. ii. The Court also says you could make it an offense for a person to ring the bell of a person who has a sing out saying do not disturb. c. This is a flat ban. etc. place. 3. Here invalidated an ordinance prohibiting the distribution of handbills to residences by ringing doorbells. The law banned sound trucks. Therefore it is not a full medium ban. b. 4. 5. The reason for the ordinances was to prevent littering. It is a ban on loud and raucous noises. radio. 3. The streets are a natural and proper place for disseminating information 7. The government interest was to protect public from annoyance and crime. They both say the statute is a flat ban on amplification ii. but a time. or sound amplifiers with emit loud and raucous noises. e. The state interest in privacy in homes or business form distracting noises was greater than the right to disseminate info in the public streets. manner restriction. 4.
It would not be good at preventing fraud or crime ii. Thus you can’t uphold the law on crime prevention or fraud because these were not the reasons for the law. He also notes that the permit requirement prohibits anonymous and spontaneous speech.1. Watchtower Bible & Tract Society v. The government can control travel on the streets to insure order. The ordinance was not tailored to the Village’s state interest. Breyer concurrence a. . Stevens also says that if the ordinance was limited to commercial activities it might be ok. This ordinance bans too much speech. And. f. Cox v. Stevens opinion a. It is a medium we count on. c. You cannot ban an entire medium of speech. c. protecting privacy. He notes that Jehovah’s Witnesses. c. The city says you can convey messages with other means. He says the mere fact that the ordinance covers so much speech raises constitutional concerns. d. c. are required by faith to go door to door. The statute here has not been applied fairly. convenient and normal use of any public sidewalk. He says this should just be intermediate scrutiny. i. Goldberg for the Court a. are significant. Part of the reason this is too much of a ban is this means of communication is venerable. The Court overturned Cox’s conviction under a law prohibiting the obstruction of the free. Stratton (2002) 1. b. b. He declines to pick a standard of review. xv. Rehnquist dissents a. He says this is just a time-place-manner restriction. d. And a no solicit sign would be better for privacy. preventing fraud and crime. b. That means the Court does not supply the reasons. The law banned posting signs in the window of a home 2. He says this is intermediate scrutiny. there are ample alternatives for expression. The government interests. 2. d. e. The court invalidated a municipal ordinance which required a permit for door-to-door proselytizers. xvi. Louisiana (1965) 1. The court says that is not enough in this case. who he says don’t have a lot of money. e. 3. Stevens opinion a. 4. 2. xiv. Field says another way you could invalidate the Ladue law was so many exceptions it looks content based. b. b.
2. it is created by the medium of expression itself. It will defeat the regulation. And it has no standards for the determination by local officials as to which assemblies to permit. The law prohibited the posting of signs on public property. v. The rule is content neutral. Using O’Brien/intermediate scrutiny. The space in the booths is allocated first come. they banned leafleting because of the possible byproduct of littering. 3. If really worried about traffic. If you make an exception for one group. He says the law is not narrowly tailored. The Minnesota state fair prohibited the sale or distribution of any merchandise except from booths. they could have structured the rule to just cover the entrances and exits. b. you allow as much speech as you can. ii. 5. Members of City Council v. ii. a. Taxpayers for Vincent (1984) 1. iii. Plurality plus three dissenters would find a ban on all billboards ok. Thus the city’s interest is aesthetics. The law was narrowly tailored because by banning the signs. ISKCON (1981) a. Heffron v.c. c. you’re going to have to make it for all groups and that will be a real problem. the need to maintain the orderly movement of the crowd. White majority i. This leads to content distinction. Metromedia. 6. There is also a difference between signs on private property and on public property . b. It is improbable that alternative means would deal adequately with the problem. There is a significant government interest here. 4. The Court distinguishes from Schneider. In Schneider. There was no dispute that improving the city’s appearance was with the city’s power or that this interest was basically unrelated to the suppression of ideas. xvii. xviii. The plurality said the San Diego ordinance was impermissibly content-based because of the number of exceptions. 7. Brennan dissent i. Inc. the city did no more than eliminate the exact source of the evil it sought to remedy. For Brennan. iii. first serve. Here visual blight is not merely a possible byproduct. 3. iv. 2. San Diego (1981) 1. v.
4. xx. Stevens for the Court also holds that this is not a public forum. The 1st Amendment does not guarantee access to government property simply because it is owned by the government. He is also skeptical of aesthetic interests. b. 5. d. he says a traditional right of access is important. You don’t have a traditional right to utility poles like you do for streets or parks. he thinks they are often a façade for content-based suppression. The Court says the Park regulation is sustainable under O’Brien. Brennan dissent a. 7.8. 2. Marshall in dissent says there is no evidence that sleeping as symbolic speech will cause substantial wear and tear on park property. 6. 9. The court assumes this is expressive conduct/symbolic conduct. For public forum doctrine. a. c. 2. Clark v. At some point government is like any other property owner. 3. 10. People with unpopular views cannot rely on posting on private land. and the regulation narrowly focuses on that substantial interest. Field says you could make an argument this is track 3. This is a conduct regulation a. New York City had a regulation mandating the use of cityprovided sound systems and technicians to control the volume of concerts in Central Park. Under the regulation. This is the case where the Supreme Court says the O’Brien test does not require the least restrictive alternative. Rock Against Racism (1989) 1. . xix. The regulation is content neutral. b. Community for Creative Non-Violence (1984) 1. The Court should require proof of the legitimacy of the aesthetic objective. The regulation is a restriction the manner in which demonstrations can be carried out. meaning rational basis. camping in National Parks is permitted only in campgrounds designated for that purpose. The interest is maintaining the parks. Ward v. 8. say regulating the density of signs. f. e. He also says the ban is problematic because it is a total ban of a particular media and there is no equivalent alternative media. It could also have a less restrictive alternative. This is an effective means of communication.
Limit the noise of the picketers. 7. The town passed a flat ban on all residential picketing. Schultz (1988) 1. but because in this case. 3. 4. Promoting the free flow of traffic on public streets iv. 8. Court then found the regulation was a reasonable regulation of the place and manner of expression. Ensuring the public safety and order iii. An injunction is always against specific people ii. Rehnquist opinion a. xxi. Protecting woman’s freedom to seek lawful medical or counseling services in connection with her pregnancy ii. Rather. c. But it is imposed not for the view. Was narrowly tailored 5. An injunction is not content or viewpoint based. the regulation will not be held invalid. This is an injunction case. You can more narrowly tailor b. xxii. The court (O’Connor) said there is no right to force speech into the home of an unwilling listener. 9. Protecting the property rights of all citizens v. Brennan dissent a. 2. b. Stevens dissent a. Here the injunction serves several compelling government interests: i. a. A group ranging from 11 to over 40. You could limit the number of picketers c. Limit the hours d. Court held that the ordinance was content-neutral 4. Madsen v. 2. (1994) 1. so it cannot burden more speech than necessary. The injunction cannot discriminate. protested on 6 occasions within one month the residence of a doctor who performs abortions. The 1st Amendment permits the government to prohibit offensive speech as intrusive when the captive audience cannot avoid the objectionable speech. Inc. . 6. they violated a previous injunction. so long as the means are not substantially broader than necessary to achieve the government interest. And it left open ample alternative channels of communication. The scope of the ordinance gives town officials far too much discretion in making enforcement decisions.3. Women’s Health Center. Frisby v. i. The protestors were free to march through neighborhoods so long as they did not focus on a particular residence. And the right to medical privacy. all of whom opposed abortion.
d. He upheld the 36 foot buffer for the front of the clinic so that women and staff had access to the clinic. e. He struck it down for the sides and back because there was no showing it interfered with clinic access. f. He upheld the part of the injunction restricting high noise levels, noting noise control is particularly important around hospitals and medical facilities during surgery and recovery periods. i. The First Amendment does not demand that patients at medical facility undertake the Herculean efforts to escape the cacophony of political protests. g. Rehnquist invalidated the injunction covering observable images. i. He said it is much easier to pull the curtains then to stop up your ears. h. Majority also invalidated 300 foot zone saying you cannot approach someone. i. This burdened more speech than necessary to prevent intimidation. j. The 300 foot buffer would prohibit a general march of protest through the zone. i. There are lesser alternatives like a limitation on time, duration of picketing, or the number of picketers. 3. Stevens concurrence a. He thinks the court should be more deferential to injunction than ordinances b. The majority is applying intermediate scrutiny in essence. c. Stevens would have upheld the 300 foot buffer. 4. Scalia dissent a. He said there was no finding of violence or an attempt to prevent access. b. He would have struck down everything. c. He says the restrictions are content-based because targeted suppression of particular ideas. d. Protestors have a right to protest where they want on a public sidewalk. xxiii. Schenck v. Pro-Choice Network of Western New York (1997). 1. This case again involves an injunction against protestors outside an abortion clinic. 2. The injunction had a floating buffer component, which said protestors had to stay fifteen feet away from any person or vehicle seeking access to or leaving such facilities. 3. The protestors could approach persons entering or exiting the clinics to make non-threatening conversation, but if requested to cease and desist, they had to retreat 15 feet from the people.
4. Also a fixed buffer of 15 feet from doorway entrance and the parking lot entrance. 5. Rehnquist majority a. He struck down the floating buffers but upheld the fixed buffers. b. The problem with the floating buffer is it is hard to remain in compliance with. c. Protestors also need to be able to protest and get their message out. d. The buffer meant protestors couldn’t use their normal voice or pass leaflets. 6. Scalia dissent a. The fixed buffer is not based on access but on preventing people from hearing unwanted speech. xxiv. Hill v. Colorado (2000) 1. The state passes a statute which creates 8 foot buffer zones around people outside abortion clinics. 2. Protestors cannot knowingly approach another person without that person’s consent for the purpose of passing a leaflet or handbill or to engage in protest, education or counseling. 3. Stevens majority a. This is a valid content-neutral time, place and manner regulation. b. It is content neutral because it is not regulating speech, it regulates where the speech may occur. i. It applies to all protest and all counseling whether or not about abortion and regardless of one’s view on abortion. c. The statute is narrowly tailored to important interests in privacy and access to abortion d. And it leaves protestors adequate alternatives. 4. Scalia dissent a. (Field notes all the dissenters are Catholic) b. Scalia says this is obviously content-based because whether the speaker get permission to approach depends on what the speaker intends to say. c. This is not narrow tailoring to the interest of preserving access. 5. Field: Could analogize these cases to the funeral protest cases, where if a general content-neutral rule is set before the protest, that is constitutional. c. Speech Outside Traditional Public Forums i. United States v. Grace (1983) 1. The law says you could not display a flag, banner, etc. in the Supreme Court building or on its ground.
2. The idea behind the law is that the Supreme Court is above politics. 3. White for the Court: a. The sidewalks outside the Court look like any other public sidewalk. b. Sidewalks are traditionally open areas. c. This is not a time, place or manner restriction. d. He found no sufficient connection with any of the asserted state interests to warrant the restriction. e. The Court is very skeptical the public will draw the opinion that the Court is swayed by picketing. ii. Brown v. Louisiana (1966) 1. Young black men enter the library and sit down in violation of the white people only policy. 2. They are convicted for breach of the peace 3. Fortas plurality a. The men sat there quietly. There was no disorder. b. There was no intent to provoke a breach. c. Segregation at this point is unconstitutional, so they are allowed to be there. d. There can be no claim that others use of the library was disturbed. 4. Brennan and White concurrence a. They did not depart from what normal library use would contemplate. 5. Black dissent a. The First Amendment does not guarantee the right to use someone else’s property, even that owned by the government, to express dissident ideas. iii. Adderley v. Florida (1966) 1. The Court upholds the conviction of 32 students for trespass on a jail. 2. Black majority a. There is not a shred of evidence in the record that the arrest power was exercised because the sheriff objected to what was said or sung. b. The sheriff arrested the students for being on jail grounds. c. The state can enforce trespass for being on the curtilage of the jail. d. The state, no less than a private owner of property, has the power to preserve property under its control for the use to which it is lawfully dedicated. 3. This case is really a transition to the non-public forum doctrine. a. Douglass dissent
They allowed commercial advertising.i. 2. Lehman v. Rockford (1972) 1. could choose to do this because worried about favoritism or the perception of favoritism. e. Upheld an ordinance banning a demonstration near a school. iii. 3. The town had a rule against political advertising on buses. d. In developing ad revenue. LTD. A silent vigil might not unduly interfere. This space for ads in busses is part of a commercial venture c. . but schools can’t tolerate boisterous demonstrations that drown out classroom conversation. The city is engaged in commerce b. The jail is like a courthouse. He says the municipal theater is a public forum. libraries. vi. the city is free to refuse certain ads on the bus. The minority also expresses the idea that those of lesser means don’t have access to radio or TV. 2. Nor is this restriction a time place or manner restriction. Whenever students are asked to move from the driveway. iv. open to every wouldbe pamphleteer. The Court says revenue from long-term commercial advertising could be jeopardized by short term political ads. d. Also. To hold otherwise would mean that display cases in public hospitals. Blackmun plurality a. V. f. v. They were not trying to use the theater for a competing use c. so have to allow these protests. The 1st Amendment violated when municipal board managing a city theater refund refused to present the musical Hair. 2. f. 3. legislature is a seat of gov’t and there is an ancient right to petition for a redress of grievances. ii. Southeastern Promotions. The law stated no person on grounds adjacent to any school building in which a class is in session shall willfully make or assist in the making of any noise or diversion which disturbs the good order of school. they did. The refusal to allow them to use the theater is a prior restraint imposed without sufficient procedural safeguards. There is no captive audience e. Conrad (1975) 1. office buildings and other public facilities would become Hyde Park. No rights of individuals in surrounding areas were violated by noise or other aspects of the production. Grayned v. Blackmun majority a. Shaker Heights (1974) 1. And the fact of whether or not the production of Hair could use a private theater is irrelevant. b.
Spock (1976) 1. United States v. d. Postal Service v. or manner analysis. 2 regulations banned political activities on the base. b. U. They have not historically been treated as such. Property owned by the government which is not a public forum may be subject to a prohibition of speech without running afoul of the 1st Amendment as long as the gov’t . he doesn’t have to worry about time.vii. The regulations were evenhandedly applied to keep official military activities free from military entanglement. Mailboxes are not a traditional public forum. Flower v. 7. Military bases are not like streets or parks 5. Streets unrestricted to civilian traffic should allow leafleting. The Court should take a flexible approach. Powell concurrence a. A person agrees to obey by postal regulations by putting out a letter box. 6. b. Rehnquist in dissent says this is absurd. This is not necessary for neutrality. Per curiam 2. 3. Since not a traditional forum. Council of Greenburgh Civic Assns (1981) 1. Greer v. Albertini (1985) 1. b. 8. c. Narrows Flower 2. The military had not excluded the public from the streets. e. United States (1972) 1. b. 3. a. Field counter is the real objection is that the refusal is based on standard-less. c. The Court (Stewart) says the base is there to train soldiers. 4. place. The regulations here are justified by a desire to make a clear divide between military and politics. O’Connor majority upholds the special nature of military bases. 7-2 decision reversing a conviction for distributing leaflets within the boundaries of a base. ix. not act as a public forum. 3. Brenna dissent a. x. Mailboxes are property owned and controlled by the government.S. viii. Bases are not a public forum just because the public is allowed in on that day. Rehnquist opinion a. The question is whether the manner of expression is incompatible with the normal activity of the place. 2. This would mean the theater could not devote a season to just Shakespeare.
xii. (1983) 1. xi. Perry Education Assn. f. 4. He says mailboxes are private property b. 2. 2. There is an annual charitable fundraising drive (charity drive) conducted in federal offices b. This is not a public forum. The campaign was created to lessen the amount of expressive activity. c. There is also no requirement that the restriction be narrowly tailored or that the government interest be compelling. g. but status. 3. e. They only let in charities dealing with health and welfare. c. Fund (1985) 1. b. This regulation is content neutral. The union is allowed to use the mail system because they are incumbents. f. Nothing is in the designated public forum category unless the government intends it to be a designated public forum. the exclusion is only held to a standard of reasonableness. It was reasonable to conclude that help for food/shelters is more important or that participation in legal advocacy or political advocacy would generate controversy. the right of access would just be for similar civic groups that were given access e. She is not persuaded this is a designated public forum because the government’s consistent policy has been to limit participation in the CFC to appropriate voluntary agencies. h.acts reasonably in imposing such restrictions and the prohibition is content-neutral. O’Connor plurality a. v. A provision in the collective bargain agreement restricts access to the interschool mail system and teacher mailboxes to the incumbent union. Cornelius v. And the law interferes with the right to receive information. NAACP Legal Defense and Educ. The court says public property which is not by tradition or designated a public forum has different standards. Since this is a nonpublic forum. d. The school is a state actor. . Perry Local Educators’ Assn. Even if it was. Do not let in legal defense or political advocacy. White majority a. The case involves competing teachers unions and an interschool mail system. This is not a limited public forum because the school granted selective access d. The Court says this is not viewpoint discrimination. Stevens dissents a.
e. 3. But finds this to be a reasonable time. xiii. ii. These are not traditional forums. xiv. b. Brennan dissent a. 2. He argues that the CFC is a limited public forum. It is reasonable to prohibit solicitation because it is disruptive to the business. There is no such interest here d. As society becomes more insular/times change. 3. b. Blackmun dissent a. United States v. Court 5-4 says this airport is a public forum.2. The Court upheld a Postal Service prohibition of soliciting contributions on postal premises. That means need a compelling interest to which any exclusion is narrowly tailored. Nor is the restriction one that reserves the CFC for expressive activity compatible with the property. O’Connor plurality a. c. Lee 1. Stevens dissent says this could all be struck down on the grounds of viewpoint discrimination. The sidewalk is owned by the Post Office. 5. Airports have not been immemorially held in public trust and used for purposes of expressive activity. b. . place and manner restriction. Kennedy concurs: a. so it is a public forum. b. such as hour limits. it is a limited purpose forum. 6-3 they uphold the solicitation ban. 4. He thinks this may be an appropriate place to have free speech. That means need a compelling government interest. c. Rehnquist i. 2. The regulation was viewpoint neutral and reasonable as applied. c. 3. Kokinda (1990) 1. d. He also argues that the restrictions are blatantly viewpointbased. The sidewalk is a nonpublic forum. It is a sidewalk. it becomes essential to protect public places where traditional modes of speech can take place. The post office was a freestanding building with its own sidewalk and parking lot. c. ISKCON v. Not a public forum a. or the placement of tables. Even if not. 5-4 They invalidate the ban on sale or distribution of literature. Not narrowly tailored as you could design rules governing solicitation that fall short of a total ban. 4.
iii. There is already too much congestion. ii. Kennedy concurs i. She still finds the ban reasonable. Because the ban is on solicitation that collects money at that moment. Duress is avoidable because a person can walk away. The ban is a reasonable time. Solicitation can impede the flow of traffic ii. or manner regulation OR as a regulation directed at the nonspeech element of expressive conduct. Kennedy partial concurrence disagrees on this point i. Not narrow for fraud because can prohibit fraud or impose disclosure requirements. so the ban is reasonable. This is not narrowly tailored. iii. iii. place.iii. The right to distribute flyers lies at the heart of the 1st Amendment. . Rehnquist i. O’Connor concurs i. iii. The regulation was not narrow iii. that is the kind of solicitation that can lead to fraud. You still have to make some inquiry into the nature of the nonpublic forum. Delays in airports are particularly costly. Souter dissent i. Just because it is a nonpublic forum does not mean the government can restrict in any way it likes. Souter partial concurrence i. And they have not been opened up by the operators. iii. ii. Kennedy plurality i. public spaces and thoroughfares which are suitable for discourse. 6. Airports are open. ii. c. Solicitation creates a risk of fraud and duress. Invalidate the ban on sale or distribution of literature a. d. And did not leave open ample alternative channels for communication. ii. The regulation is content-neutral. Solicitation ban a. It doesn’t make sense to just define public forums by historical definition. 5. c. They can be public forums regardless of their historical pedigree. b. Have to recognize new types of government property as appropriate forums. ii. b. iv.
If a company is performing what a government would do. b. and so you have the right to leaflet. There was no written criteria. Peaceful union picketing of a supermarket in a privately owned shopping center. The broadcaster’s decision to exclude the candidate was a reasonable viewpoint neutral exercise of journalistic discretion. Kennedy concludes this is not a designated public forum. Arkansas Educational TV Comm’n v. Forbes was excluded because of his lack of support. c. Rehnquist dissent i. Logan Valley Plaza (1968) 1. b. Alabama (1946) 1. And those who accept may drop the leaflet on the floor. Also they are protesting a market in the shopping center. With solicitation. ii. This is impermissibly standard-less discretion. First Amendment obligations might not apply to most public television programming. c. 2. the person has to stop. f.iv. you treat it like government. i. xvii. But it does in the limited context of publicly televised debates because they are by design a forum for political speech. creating a safety hazard and need for cleanup. They did not intend to make it generally available. They are inviting the public in to walk around and shop. d. Company town has to allow leafletters because it is a town. c. O’Connor concurs i. c. not his platform. e. Leafleting has the same risk of congestion as solicitation. the majority found the exclusion reasonable and view point neutral. and so the congestion rational fails even a reasonableness standard. Forbes (1998) 1. so a public forum. With leafleting . This is like the company town in Marsh. xvi. Stevens dissent a. b. Amalgamated Food Employees v. It was not an open mike format. xv. Marsh v. ii. Marshall majority a. ii. 2. He wants pre-established objective criteria.the person keeps moving. Under the standards of a nonpublic forum. Kennedy majority a. Congestion can be addressed by time and place restrictions. b. so it is a particularly good place to protest. . 2.
There it was an appropriate place to protest. The scarcity of the broadcast spectrum justified imposing force access rights on unwilling media. The case involved a NH law requiring most car license plates to carry the state motto. If people don’t have a right to enter the store to distribute flyers about Vietnam. Wooley v. Pruneyard Shopping Center v. The Court distinguishes Logan Valley 3. The Court said the state interest was not sufficiently weighty state interest. iii. Red Lion Broadcasting Co. ii. Tornillo (1974) 1. Maynard (1977) 1. Rights Subsidiary to the First Amendment a. This is not. Majority a. Tanner (1972) 1. “Live Free or Die. xix. Robins (1980) .” 2. 2. 3. iv. Government enforced right of access inescapably dampens the vigor and limits the variety of public debate. Miami Herald Publishing Company v. The choice of material to go into a newspaper and the decisions made as to limitations on the size and content of the paper and treatment of public issues and public officials whether fair or unfair constitute the exercise of editorial control and judgment. c. 2. The Court upheld the 1st Amendment challenge to the FCC’s fairness doctrine. which granted political candidates a right to equal space to reply to criticism and attacks on their record by a newspaper. Protestors passing out anti-war leaflets in a shopping center. 2. b. then they don’t have a right to enter to advertise their strike. The statute in effect requires people to use their property as a mobile billboard for the state’s ideological message or suffer a penalty. FCC (1969) 1. Lloyd Corp v. v. This case involved labor picketing of a store in a private shopping center. This case announced Lloyd had overruled Logan Valley 2.V. Government compulsion to publish that which the newspaper editor believes should not be published is unconstitutional. b. Hudgens v. 4. The challengers were Jehovah’s Witnesses. Majority a. Rights Not to Speak and Not to Distribute the Speech of Others i. xviii. 3. NLRB (1976) 1. Case involved a Florida law allowing a right of reply. There is no relation to any purpose for which the shopping center was built is or being used for.
And it forces speakers to alter their speech to conform with an agenda they did not set. Marshall concurrence . Public Utility Comm’n (1986) 1. 10. The company has the right to be free from government restriction that abridges its own rights in order to enhance the voice of its opponents. 2. 8. 7. 3. 8. An advocacy wanted to put in lower rate information and criticize higher rates. And the access right was not content based. Here the commission gives access on the basis of viewpoint. 6. 9. 5. This was speech the company disagreed with. The Court says compelled access like this penalizes the expression of particular points of view 6. b. 11. 3. had excluded several high school students who sought to solicit signatures for a petition protesting a UN resolution against Zionism. Even though the U. Constitution does not make you allow the protest. Extra space in envelope was defined as the difference between the bill and required legal notices. 7. you could reject. The state does not require a specific message so no worry of government discrimination. The distinguished Pruneyard. the shopping center is open to the public. it is within the state constitutional power to force you to allow. The majority says this does not violate the shopping center owner’s First Amendment rights not to be forced by the state to use his property as a forum for the speech of others.S. Perhaps if there was confusion as to who the speaker was. The government said PG&E had to allow users to use the extra space in their billing envelopes. v. The state cannot restrict speech to certain topics or force appellant to respond to views that others may hold. 4. 2. PG&E v.1. A shopping center in accordance with its nondiscrimination policy of banning all expressive activity not directly related to its commercial purposes. with the goal of assisting groups that challenge PG&E. In that case there was no concern that access to the area might affect the owner’s exercise of his own right to speak. California courts say the state constitution guarantees such speakers access to a privately owned shopping center. But in this case. 5. And Pruneyard can disavow connection with the leafletters by posting signs. so unlikely the leafletters will be identified with the owner. a. 4.
They can’t just get the signal with an antenna and pump into the cable. d. They said it is enough of a government interest to have a multiplicity of voices. 6. O’Connor dissents. a. But the act also says for the little broadcasters. b. i. FCC I and II 1. the UHF channels. arguing that the must-carry rules amount to impermissible content-based compulsion of speech. b. 9. 5. 3. Only natural persons enjoy negative free speech rights because of their interest in self-expression. 10. Rules regarding anonymity. They give great deference to Congress in Turner II. Cable also doesn’t have a scarcity limitation like broadcast where you can get interference between channels. 4. The Court can’t displace Congress’s judgment regarding content-neutral regulation with their own views. Given conflicting views is their substantial evidence for the judgment Congress made. 2. then cable must deliver that content on the same channel or lower. c. The Court said we apply intermediate scrutiny. Was it narrowly tailored? The Court remands on this question. Talley v. Reiterates the standard is intermediate scrutiny. It is based on giving broadcasters access. a. Congress passes the Cable Act of 1992 which says cable needs to get the consent of the big networks to retransmit. b. The Court found it was too difficult to switch from UHF to cable. 11. not based on what they say. Rehnquist dissent a. If you think diversity and local affairs is desirable. The broadcaster and the cable companies were fighting. This is content neutral. 12. The cable company said this is compelled speech. And cable won’t have to alter its messages to respond to the broadcast programming they are required to carry. 8.a. In Pruneyard there was no such interference. that is content based. O’Connor dissents from Turner II saying the level of scrutiny is too lenient. Extension of freedom of conscience to corporations strains the rationale of these cases beyond the breaking point. 7. 12. vi. Turner Broadcasting System v. b. Also interesting in preserving free over the air local broadcasts and promoting fair completion in the market for TV programming. The difference here is you can’t use envelope space that you would for your own use. California (1960) . that if a channel says it wants to be carried.
Stevens majority a. Strict scrutiny was appropriate because this burdened core political speech. And the Framers opposed attempts to have anonymous writers’ identities revealed. 3. 4. And it was too broad to ban fraud because it encompassed documents that weren’t fraudulent. Ohio’s interest in providing voters relevant information was not enough to overcome strict scrutiny. Alabama (1958) 1. They say producing a membership list is a substantial restraint on freedom of association. distributed or sponsored it. Throughout history groups have been allowed to criticize laws or practices anonymously. Requiring identification would tend to restrict freedom of expression. NAACP v. Frames engaged in anonymous speech b. the members of the NAACP were going to be terrorized. d. 2. e. 2. Everybody knows if there was no anonymity. Not narrowly tailored. Thomas concurs a. Invalidated a Los Angeles ordinance that prohibited distribution of any handbill unless it had the name and address of the person who prepared. like the Federalist Papers. McIntyre v. 3. ii. iii. A author’s decision to remain anonymous is protected by the 1st Amendment b. 2. The Court invalidated a law that prohibited the circulation of anonymous leaflets in connection with a political campaign. Ohio Elections Commission (1995) 1. Where the meaning of the 1st Amendment is unclear. Just because the Founders wrote anonymously does not mean there is a constitutional right to do so. the widespread and long accepted practices of the people is the best guide to what was intended to be enshrined. c. The Court held the law was void on its face. He would allow an exception for anonymity if you could show a reasonable probability of threats or harassment. There is a tradition of anonymity in advocacy of political causes. c. . b. Scalia dissent a. Says under originalism. The majority is just accepting the view of John Stuart Mills over the people.1. 4. d. They rejected the argument that the law was a way to fight fraud or libel saying the law was not limited to that. 5.
The law required every teacher to file an affidavit listing without limitation every organization to which he/she belonged or contributed over the last five years. so you don’t need to worry about harassment. 2. b. that would violate the 14th Amendment. Doe v. to determine whether petitioners were conducting intrastate business in violation of Alabama law. 7. Reed (2010) 1. Alito concurs a. v. Roberts majority a. 4. You don’t need to disclose the rank and file members to meet this state interest. Disclosure is substantially related to the government interest of combatting fraud and fostering government transparency. 2. c. Strict scrutiny the standard. 3. Tucker (1960) 1. The interest offered by the state. Shelton v. An as applied challenge is available only when the state selectively applies a neutral disclosure requirement to discriminate on the basis of content or viewpoint . the end here could be more narrowly achieved. 4. The scope of the inquiry of the law is completely unlimited. The typical referendum topic will not be as heated as gay marriage.3. was not compelling. Many of the associations could have no possible bearing on a teacher’s competence or fitness. Stewart opinion says this disclosure impaired a teacher’s right to free association. Frankfurter dissent a. b. People should be able to get the exception quickly and without clearing a high evidentiary hurdle. Also listing the organizations provides references to investigate the teachers. Schools need to know the number of organizations a teacher belongs to in order to know if the teacher is overcommitted. The purpose of investigating the fitness of teachers is legitimate and substantial 6. But a litigant can bring an as applied challenge to show disclosure poses a specific danger of threats/harassment. 4. d. BUT. c. If there is evidence that the information is used to terminate teachers based on associations. Sotomayor concurs a. 3. 5. Washington law required the names and addresses of people who sign a referendum ballot petition to be disclosed. iv.
Harsh criticism is a price people pay for self-governance. Per curiam 2. You need the occupation and principal place of business if the contribution exceeds $100. Note there are only 4 votes for the high burden. He applies strict scrutiny. 6. The court agreed that disclosure was the least restrictive means of curbing campaign ignorance and corruption. Buckley v. Valeo (1976) 1. d. The standard is strict scrutiny. The law requires the candidates and political committees to maintain records of the name and address of every person who gives more than $10 in a calendar year. OR it is available in the rare circumstances when disclosure poses a reasonable probability of serious and widespread harassment that the state is unwilling or unable to control. This is unconstitutional because it severely chills citizen participation in the referendum process. It is an essential means of gathering the data necessary to detect violations of the contribution limits. There are three government interests a. 5. As for the fear of harassment. c. vi. He would demand strong evidence before concluding an indirect and speculative chain of events imposes a substantial burden on speech.b. c. . 5. The nation has a long-standing tradition of legislating and voting in public. 6. there are laws against intimidation. 7. e. Deters actual corruption and avoids the appearance of corruption c. b. It provides info to voter about where the money comes from b. 4. 3. Thomas dissents a. d. For an as applied challenge to succeed. b. Stevens concurs a. and 1 explicit vote for the low burden. That means can only use the least restrictive means. Scalia concurs in the judgment a. 8. He lists several ways this interest could have been done less restrictively. there has to be a significant threat of harassment that cannot be mitigated by law enforcement measures. Signing a petition doesn’t fir the 1st Amendment at all. b. When a citizen signs the petition he/she is acting as a legislator and the exercise of law making power has traditionally been public.
harassment.7. The requirement was closely tailored to keeping voters informed and deterring actual or apparent corruption. There is no legitimate public interest in forcing the disclosure of modest contributions that are the prime support of new unpopular or unfashionable political causes. The Court upheld disclosure requirements as applied to Hillary a documentary critical of Sen. Kennedy majority a. b. 2. Citizens United offered no evidence its members might face threats. Secrecy as to political preferences is fundamental in a free society. Thomas dissent a. Majority upholds disclosure requirements for expenditures for socalled electioneering communication. The Court did say for minor parties there could be a case where the threat to the exercise of 1st Amendment rights is so serious and the state interest furthered so insubstantial that the act is unconstitutional as applied. FEC (2010) 1. Congress cannot abridge the right to anonymous speech based on an interest in providing voters additional information. McConnell v. This has spawned a cottage industry to use forcefully disclosed donor information to intimidate. 8. b. Citizens United v. prompt disclosure of expenditures can provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and support. vii. After Prop 8. Over 3 dissents. c. With the advent of the Internet. Brown v. or reprisals that it could not be compelled to disclose campaign contributions. . 3. The threshold limits are much too low to be plausibly linked to a rationale of fighting corruption. the Court also held the party could not be required to disclose campaign disbursements. 2. b. a lot of supporters were intimidated c. defined as broadcast ads that specifically identity any candidate for federal office within 60 days of an election or 30 days before a primary. The Socialist Workers Party in Ohio had made a sufficient showing of a reasonable probability of threats. Burger dissent a. ix. Disclosure is a less restrictive alternative to more comprehensive regulation of speech. Marshall for unanimous Court 2. 3. Clinton. Federal Election Com’n (2003) 1. Socialist Workers ’74 Campaign Committee (1982) 1. viii. c.
5. Has allowed for union conventions. assures labor peace and makes sure the collective bargain system works properly. ii. Powell concurrence a. Abood v. NAACP v. But the challengers won on the point that they could not be forced to pay for ideological union expenditures not directly related to collective bargain. Nonunion members objected to paying this fee. Keller v. The Court held there was standing because the establishment clause says public money can’t be spent on religion. There is no explicit right of association in the 1st Amendment. 3. There is a right to assemble. v. 2. State (1990) 1. Alabama clarified that the right to associate could not be infringed. Freedom to Associate or Not to Associate i. the Court has been fairly liberal in what can use nonmember money for. 6. Compare to the government where a taxpayer has no standing to sue if he/she doesn’t like how taxpayer money is being spent. Detroit Bd. you could say you can take it away from corporations because they have no conscience. You can also infer the right from the right to free speech: I have a right to join with others to push our views together. and social activities. 2. Exception to this rule is Flast v. Every nonunion employee was required to pay to the union a fee equal to union dues as a condition of employment. The Court ruled that nonunion employees could be required to pay the fee. iii.c. The union should have the burden to show it needs the money rather than dissenting employees having to come forward. This was allowed because forcing them to pay fees prevents free riders. 8. You could not spend the money to endorse gun control or a nuclear weapons freeze. They said they were objecting to the union representing them. Unions are free to advance ideological views not part of collective bargaining. vii. you have to object and get a rebate. 4. 7. iv. If you don’t like the ideological position the union takes. The reason is the taxpayer amount is a small part. You could call this a conscience right. but they can’t fund with the nonunion fees. Restricted use of compulsory state bar dues to expenditures for regulating the legal profession or improving the quality of legal services. Cohen where taxpayer objected to spending government money that went to a church. vi. 2. (1977) 1. and if you do. ix. of Educ. 1. In subsequent cases. . publications. viii.
We should apply Central Hudson. plums. but a state is allowed to do this. c. So you can require students to contribute to the fund. Southworth (2000) 1. xii. They do not compel the producers to endorse or finance any political or ideological views. Souter dissent a. f.x. 2. 3. 3. b. Board of Regents of The University of Wisconsin v. xi. and peaches. The Court rejected a 1st Amendment challenge to a public university’s requirement that students contribute to a student activity fund used in part to support controversial student advocacy organizations. The marketing order imposes no restraint on the freedom of any producer to communicate any message to any audience. The proper requirement is viewpoint neutrality. 2. Davenport v. Universities are different. Wileman Bros (1997) 1. 3. b. . The generic advertising is consistent with regulatory goals of the overall statutory scheme. This is not ideological or political like in Abood. That case applies strict scrutiny and it requires the compelled speech to be justified by a vital policy interest of the government. The standard of what is germane speech is unworkable at universities. Glickman v. Washington Education Ass’n (2007) 1. d. The Court says this is not required. 2. He added that Abood is not as permissive as the majority makes it seem. 5. g. The case involved agricultural marketing orders assessing from California fruit growers the costs of generic advertising of California nectarines. Stevens for the majority a. 4. Under that test the government’s justification is inadequate. Nothing in the Abood case says that government can compel funding nonpolitical speech. This is different from Abood because having to pay won’t cause any crisis of conscience. c. e. e. Washington state law said the union had to bear the burden and get affirmative consent in advance before making any non-germane expenditure. This is moving the burden from the nonunion member to the union. d. They do not compel any person to engage in any actual or symbolic speech. The Court says with trivial exception none of the generic advertising conveys a message respondents disagree with.
g. h. Breyer dissent a. 2. The respondents here do disagree with some of the messaging they are forced to fund.f. the ads here can’t trigger a crisis in conscience. There is no broader regulatory system in place here. c. xiv. (2001) 1. . Compelled support of government speech. d. He argues the ads should be treated as a type of economic regulation. you need a substantial government interest under Central Hudson. e. Johanns v. They should be allowed to spend the money on brand specific ads. The Court distinguishes Glickman because there the ads were ancillary to a more comprehensive program restricting marketing autonomy. d. Here the ads are the principal object of the regulatory scheme. b. f. Like Glickman. It does not matter whether the money comes from general taxes or through targeted assessment. not speech. d. b. The case involved beef promotion. United States v. so this could serve as an as applied challenge if you could show the ads were being attributed to the challengers. United Foods. They also think the generic ads are bad. Even if subject to the 1st Amendment. even for programs one does not approve of. Livestock Marketing Association (2005) 1. 3. Inc. But he rejects the 1st Amendment challenge because this is government speech. Here the message of the campaign was controlled by the government itself. 2. and you have one here. The Act did not require that the ads be attributed to the government. Why does it matter if there is more economic regulation? b. It is the government interest in agricultural promotion and it is done by proportionate means. Ginsburg concurrence a. xiii. creating the idea that their products are interchangeable. c. Kennedy majority a. They will not uphold compelled subsidies for speech where the speech is the principal object of the program. is constitutional. Mushroom growers object to funding generic mushroom advertising. c. Scalia majority a. Upholds as permissible economic regulation.
If there is compelling interest. it has to attribute the content to the government. Whether the zone of privacy extends to a particular club requires careful inquiry into the objective characteristics of the particular association at issue. b. 9. The Court finds this is an expressive association for civic and educational activities. 1. If the government is going to rely on the government speech doctrine. Upheld a law prohibiting discrimination in any club or place of accommodation that has more than 400 members. It did say in a footnote it was not considering the right to associate in private clubs. 3. b. the government can restrict/regulate this. xvi. The Court allowed a California anti-discrimination law to apply to the rotary club. 2. This compelling interest outweighs the expressive association interest. c. This is just like United Foods. One is associating for expressive purposes. 2. The Jaycees are primarily a commercial association and so state regulation is readily permitted. where we struck the law down. Rotary International v. There are two different rights of associate. 5. Roberts v. The other is intimate association. 4. Rotary Club (1987) 1. xvii. 4. 2. This cannot be regulated. The association says full voting membership is limited to men between 18 to 35. a. The Court said this did not interfere with intimate association or expressive association. The state statute says no sex discrimination. provides regular . O’Connor concurrence a. The state has a compelling interest in eradicating gender discrimination. The anti-discrimination law is content neutral. And it imposes no restrictions on the organizations ability to exclude individuals with ideologies different from those of its existing members.xv. 6. meaning women had to be admitted. This is who your friends are. who you invite to your house. 7. But expressive associations should be protected. Souter dissent a. xviii. 3. United States Jaycees (1984) 1. New York State Club Ass’n v. It also covers private clubs/country clubs. City of New York (1988) 1. The Court says the Act requires no change in the Jaycee’s cred of promoting the interest of young men 8. a. b.
5. xx. The Court admits the council is rather lenient in admitting participants in the parade. Privately organized St. A lot of the things the Court says the Boy Scouts stand for are what the group says it stands for now. Thus. But they were not banning gay people. That was not the case here. Gay Irish-Americans wanted to march in the parade. The Court said it was possible an association could show it was organized for an expressive purpose and it will not be able to advocate for that viewpoint nearly as effectively if it cannot confine its membership. 4. and regularly receives payment from nonmembers for facilities and services for the furtherance of trade or business. 3. 11. 7. Massachusetts has an antidiscrimination law covering sexual orientation. saying a parade. Boy Scouts v. Irish-American GLIB (1995) 1. Here it would interfere. Dale’s inclusion does not send any cognizable message. 8. Thus they accept the Boy Scouts’ assertions. so discrimination law applied. The Court rejected the analogy to Turner. Scout master was gay. 6. NJ law says you can’t discriminate on the basis of sexual orientation. The Court distinguished Jaycees because there the Court said it would not materially interfere with the ideas that the organization sought to express. 3. is not a mere conduit that is unlikely to be identified with the speech it carries. Neither morally straight nor clean says the slightest thing about homosexuality. b. . 6. 2. The Boy Scouts say morally straight and clean conflict with homosexuality. The Court says it will also give deference to an association’s view of what would impair the expression. 5. but the banners expressing gay pride. 3. Hurley v. 10. Dissent a. unlike a cable system. The Court says this would conflict with the message of the parade. But the Court says it is not the role of the Courts to reject a group’s expressed values because they disagree with those values or find them internally inconsistent. 4. 9. Dale’s presence would interfere with the Boy Scout’s choice not to propound a point of view contrary to its beliefs. Patrick’s Day Parade. you can’t keep him out. c. 2. The Court does say sexuality is not expressly mentioned in the various creeds and that the terms are not self-defining. 7.meal service. xix. 2. Dale (2000) 1.
ii. don’t tell. They would withdraw the federal funds for the whole University. b. This is not compelled speech because it did not dictate the content of speech at all. Policy arguments in favor of campaign finance 1. There is little danger that the military recruiters’ speech would be erroneously attributed to the law school. We don’t’ think one person one vote is an example of reducing the speech of some to enhance the relative speech of others. Buckley v. Per curiam a. and it only requires forwarding a recruiting e-mail from the military if the school provides such speech for other recruiters. So could cite FCC v. it can reject the federal funds. 3. 3. c. FAIR (2006) 1. 2. e. Why should superior spending power be rightfully mine if superior voting power is not? 2. In the political process. not because one side puts on a more elaborate show of support. you can cite ALA. Buckley like Lochner rests on a decision to take the market status quo as just and pre-political. Rumsfeld v. Law schools are not forced to support the military or don’t ask. and to use that decision to invalidate democratic efforts at reform. if the law school doesn’t like this. Valeo (1976) 1. The purpose is to help students get jobs. A limit on contributions involves little direct restrain on political communication. At the time the limit was 1000. not speech. But if want to counter that argument. d.8. Problem with the reject the funds approach is the leverage argument. Roberts for unanimous Court a. ideas and candidates should prevail because of their inherent worth. A law school’s decision to allow recruiters on campus is not inherently expressive. 2. The Solomon Amendment regulates conduct. d. for it permits the symbolic expression of support . Case involves the Solomon Amendment which denied federal funding that prevents the military from gaining access to campus or access to students for the purposes of military recruiting in a manner that is equal to other employers. a. f. League of Women Voters b. The court finds limits on individual contributions acceptable. Political Expenditures and Campaign Contributions i. xxi. It did not matter that the parade’s message was not wholly articulate. i. Also.
The justification accepted for the limits is combating corruption and the appearance of corruption resulting from large donations. FEC rulings held that soft money could go to mixed state/federal election activities. 10. 12. The Court also said that controlled or coordinated expenditures are treated as contributions rather than expenditures under the Act. e. Issue advocacy also did not require disclosure. the campaign had to limit expenditures to the amount of the subsidy. c. and unions. The system provided more funding for major party candidates than minor party candidates. The Court rules that the absence of prearrangement and coordination alleviate the danger that this will cause corruption.evidenced by a contribution. they don’t have to take the money. d. a. 8. The interest in equalizing the relative resources of candidates is not sufficient to justify this restriction. a. The Court says this system is fine because it is designed to encourage speech. a. d. and those could only be funded using hard money. Express advocacy was ads containing the magic words like elect or defeat. c. As a condition of getting public money. b. corporations. a. . such as GOTV and generic party advertising. 7. i. Soft money was money for the purpose of influencing state or local elections or issue advocacy. Limiting expenditures places direct limitations on the quantity of speech. and does not in any way infringe the contributor’s freedom to discuss candidates and issues. 11. Again there is no limit on how much you can expend for direct advocacy. which was subject to the disclosure and contribution limits. The direct contribution limit did not apply to soft money. 4. The Court also upheld the public financing system. Issue advocacy can be funded with soft money and soft money could be donated to the parties or paid for directly by advocacy organizations. If the candidate doesn’t want the limits. b. Expenditure is different from contributions. 5. The Court also stuck down the limits on expenditures by the candidate or their immediate family. The Court also strikes down the expenditure limit for independent groups that advocate for the election or defeat of a candidate. There is an exception if the limits are so drastic that they would greatly affect campaigns. 6. The interest in fighting corruption is covered by disclosure. and are therefore restricted by the contribution limits. 9. 3.
They were allowed to set up PACS. b. It makes little sense to limit contributions. but not expenditures. none of whom has a ton more money. By previous law corporations (1907) and labor unions (1947) could not give hard money. Against upholding the contribution restrictions. There is no distinction between limits on contributions and limits on expenditures. Contribution limits will survive if closely drawn to a sufficiently important interest such as preventing corruption or the appearance of corruption. They dissent from the part that upholds the public financing provisions. 16. Souter majority a. e. Contributions and expenditures are two sides of the same coin. He also would have upheld the limit on personal expenditures because it ensures candidates have a modicum of support. He reiterated contribution limits are subject to greater deference than expenditure limits. b. Rehnquist argues Congress has enshrined the Republican and Democratic parties in a permanently preferred position. White dissent a. Nixon v. Blackmun dissent a. f. c. Limiting contributions will limit expenditures. . The two reinforce each other and help eradicate corruption. b. iii. The reason people spend money on political activities is they wish to communicate ideas. They do not face strict scrutiny. 17. b. c. Marshall dissent a. He emphasizes the interest in promoting the reality and appearance of equal access to the political arena. Shrink Missouri Government PAC (2000) 1. c. d. Both of these restrictions would help dispel the idea that elections are purely about money. He dissents from the limits on how much of his/her own money a candidate can spend. iv. b. This will also lessen the need for fundraising and free candidates to communicate in ways not connected to fundraising. 15. that is money from their own treasuries. Burger/Rehnquist a. 14. b. It is also acceptable for Congress to say elections should be decided among candidates. Burger dissent a.13.
Criticizes the distinction between contributions and expenditures. he was simply saying how he would use the fiscal powers of the office. The candidate was not offering voters money. Hartlage (1982) 1. c. 3. Colorado Republican Federal Campaign Committee v. The limits will only be struck down if they are so radical that they render political association ineffectual. Brennan applies strict scrutiny. He wants to use strict scrutiny. Thomas dissent a. The Court also struck down the contribution limits as too low. . d. He would overturn Buckley and free the congress or state legislatures to attempt some new reform. b. vi. The law imposed dollar limits on expenditures in connection with a general election campaign of a congressional candidate. He questions the distinction between expenditures and contributions. 3. The candidate promised he would lower his salary to a more realistic level. meaning they prevent challengers from mounting effective campaigns. b. It helped inform the voters and helped voters hold the politician accountable. Sorrell (2006) 1. b. The Court reiterated the distinction between contributions and expenditures. Randall v. 2. It is strange to give less protection to campaign contributions than to nude dancing. Kennedy dissents a.d. 4. Thomas concurs but says should overturn Buckley. if that is possible given the 1st Amendment. 2. This forces speech into loopholes like soft money. Here the promise was like a promise to lower taxes. 4. Brown v. c. d. but instead was designed by the Court. It rejects expenditure limits and the new reason offered for them: expenditure limits are necessary to reduce the amount of time candidates fundraise. 3. He now believes there can be limits on expenditures. He also notes this is not a system designed by Congress. FEC (Colorado I) (1996) 1. The Framers would have been appalled by modern fundraising practices. v. 5. He is critical of the lower standard of scrutiny used to evaluate contribution limits. vii. 2. Stevens dissent a. 5.
so that is not a valid interest. Souter majority a. He says the Court should apply intermediate scrutiny. They survive because of the interest in avoiding corruption and the appearance of corruption. Powell majority a. Colorado Republican Federal Campaign Committee (Colorado II) (2001) 1. c. 3. 2. ix. An as applied challenge. b. Stevens dissents a. viii. Says he would strike down the limits on the ground that the anticorruption rationale has no place here because this is just political parties advocating ideas. there are more narrowly tailored solutions available. Kennedy concurs a. Thomas dissent a. The limits are constitutional because they avoid corruption and level the electoral playing field. d. The regulations also fail intermediate scrutiny. 2. Breyer plurality declines to find that party expenditures should be conclusively presumed to be coordinated. Breyer plurality a. FEC v. c. b. The inherent worth of the speech in terms of its capacity for informing the public does not depend on the identity of its source. like banning bribery and having disclosure laws. Bellotti (1978) 1. First National Bank of Boston v. The court held that the 1st Amendment prohibits a restriction on corporate expenditures for political speech from their own treasuries to express the corporate point of view for state referenda campaigns. Thomas concurs a. . The speech by the corporations is the type of speech indispensable to decision=making in a democracy. c. 5. b. b. They don’t reach the question if coordinated contributions can be limited. The Court strikes down the expenditure limit because here it was independent and uncoordinated from the candidate. The government presented no evidence of corruption or of the perception of corruption. Limits on coordinate expenditures are facially constitutional. He would overrule Buckley and apply strict scrutiny to contribution limits.2. Even if there was evidence. He would strike down the expenditure limits on their face. 4.
c. g. A $250 limit on contributions to committees founded to support or oppose ballot measures struck down as interfering with the rights of association. Burger majority says Buckley does not support limitations on contributions to committees formed to favor or oppose ballot measures. f. Shareholders can withdraw from these companies at any time. x. xi. b. self-realization. which if not regulated could dominate the electoral process. Corporate communications do not constitute a principal function of the 1st Amendment. There is no evidence of that. e. Ideas that are not a product of individual choice are entitled to less 1st Amendment protection c. The 14th Amendment does not require the state to endow a business corporation with the power of political speech. It is over-inclusive in that it forbids spending even if the shareholders unanimously agreed to the position. Meyer v. He rejects the reasons that corporations have an overwhelming or even significant influence on referenda in Massachusetts. d.c. Second reason offered was protect shareholders whose views may differ from management. 3. 2. It is under-inclusive in that it still allows lobbying ii. which is communication for self-expression. He would uphold the law even if the legislature’s motive was to muzzle corporations on the tax issue. The interest is preventing those who get a special advantage from the state to amass wealth from using that wealth to get an unfair advantage in the political process. White dissent a. 2. Berkeley (1981) 1. Also the interest is making sure shareholders are not compelled to support speech they disagree with. Grant (1988) 1. and self-fulfillment. Court strikes down a Colorado law prohibiting the payment of people circulating petitions in connection with a voter initiative. 4. Citizens Against Rent Control v. i. Stevens opinion stresses this is subject to strict scrutiny . e. Corporations are created by the state and are entitled to the rights explicitly or implicitly guaranteed as part of the state charter. b. He says the law is content based and requires strict scrutiny. d. Corporations are able to control vase economic power. But the statute doesn’t fit this reason well. Rehnquist dissent a.
which is not allowed. 2. b. 3. McCain/Feingold Reform. 4. xiv. Massachusetts Citizens for Life (1986) 1. b. 2. Upholds the Michigan law banning corporations from making independent expenditure from general treasury fund of corporation. xiii. Electioneering communication was defined as an ad mentioning a candidate and targeted to the relevant electorate. b. Because of the nature of corporations they can amass resources in the economic marketplace and use them to obtain an unfair advantage in the political marketplace. 4. The law cannot be justified by preventing corruption since the expenditures are independent 5. This is unlike MCFL because they do not have a clear political goal 3. Not all corporations are wealthy. He is not persuaded that the prohibition is justified by its interest in making sure that an initiative has sufficient grass roots support or by its interest in protecting the integrity of the initiative process. They do not have to use PACs in these circumstances. Austin v. The law was analyzed under strict scrutiny. The Court held that certain nonprofit ideological corporations like MCFL must be permitted to make independent campaign expenditures from their own treasuries. 2 main parts. The compelling interest is the distorting effect of immense aggregation of wealth with the help of the corporate form that has little correlation to the public’s support of the corporation’s political position. Ultimately overruled by Citizens United 2. a. d. It placed limits on when electioneering communications could play: Not within 60 days of the general or 30 days of the primary. The party could not solicit direct or spend soft money. so the statute is overinclusive. The corporate advantages don’t’ justify the restrictions. End soft money. 1. Michigan Chamber of Commerce (1990) 1. Kennedy dissent a. .3. FEC v. c. This is just an attempt to equalize spending power. The government does not have a legitimate interest in equalizing the influence of different speakers. xii. Scalia dissent a. Marshall opinion a. It can’t be justified by protecting contributors from the diversion of their funds to a cause they don’t support because people contribute to these organizations to support these views.
xv. McConnnell v. FEC 1. Stevens/O’Connor opinion a. The law is designed to prevent soft money in federal elections. b. The national party cannot raise or spend soft money. c. The party can’t donate money to tax-exempt organizations that engage in electioneering d. Federal candidates can’t receive or solicit soft money. e. The Court points out that none of these restrictions limit the amount of money that can be spent. f. They limit the source of money. g. This means they apply less rigorous scrutiny. h. Large soft money contributions have a corrupting influence and give rise to the appearance of corruption. i. There is evidence of soft money leading to the failure to enact laws or ii. Manipulations of the legislative calendar. i. There is a worry that issues will be decided because a person made a large contribution. j. The law also said corporations and labor unions could not fund electioneering communications 60 days before the general or 30 days before the primary. k. The Court said that Buckley’s magic word requirement is meaningless. l. The 1st Amendment does not create a strict line between express advocacy and issue advocacy. m. Corporations can form PACS for express advocacy. n. PACs could still do issue advocacy if it fell within the definition of electioneering communication. o. And corporations could do issue advocacy outside of the 60 or 30 day time frame. p. The Court said these restrictions were OK because issue advocacy within 30 or 60 days is the functional equivalent of express advocacy. q. The majority did strike down the requirement that if a political party wanted to spend more than 5K in coordination with nominee it could not use independent expenditures that used the magic words. r. The Court struck this down because the magic words distinction is meaningless. 2. Rehnquist for the court a. Found nonjusticiable the provisions that limit discounted airtime unless they promise not to run negative ads, the increases in the hard money limits, and the provision allowing staggered increases in contribution limits if the opponent spends certain amounts of his/her own money.
b. This part also struck down a provision banning kids 17 or younger from making contributions. c. Minors have free speech rights and the government offers little evidence that parents are using their kids to evade the limits. 3. Breyer opinion a. Upheld the requirement that broadcasters keep and make records of requests for political ads. 4. Rehnquist dissent a. Criticizes the majority for saying the close relationship between officeholders and the party make all donations to the party suspect. b. He says this means all donations to the party are regulated/restricted no matter their use. c. This kind of restriction is not closely drawn to the government interest, and hence unconstitutional. 5. Scalia dissent a. Effective communication requires money. b. Banning delivery of newspapers is just as effective as banning speech. c. The freedom to associate includes the pooling of financial resources for expressive purposes. d. There is no reason 1st Amendment rights should not attach to 1 form of association, the corporation. e. This form is often how issue advocates organize. f. The law does not stop quid pro quo corruption g. And corrupt influence is checked by disclosure. 6. Thomas dissent: a. A broadly drawn bribery law would cover all of this. b. The only problem of immense wealth is that it might be used to fund ads to vote one way or another. c. That is just the marketplace of ideas. 7. Kennedy dissent a. The principle of fighting corruption arising from the real or apparent creation of political debts has no limiting principle. b. It could be used to ban issue ads completely. c. PACs are an inadequate alternative because they face too much regulation. d. Corporations are engines of our modern economy. They should be able to alert the public to political issues. They should not face restraints that aren’t applicable to the established press. xvi. FEC v. Wisconsin Right to Life (WRTL) (2007) 1. Roberts plurality a. McConnell was a facial challenge; this is as applied.
b. The Court says McConnell had no test for what the functional equivalent of express advocacy is. i. This was the logic by which McConnell said it was ok to restrict issue advocacy because it was the functional equivalent of express campaign speech. c. You can’t have an intent based test because that would lead to a trial on every ad. d. The Court creates a test: an ad is the functional equivalent of express advocacy only if the ad is susceptible of no reasonable interpretation other than an appeal to vote for or against a candidate. i. Contextual factors should seldom play a significant role in this inquiry. e. Since the ad here is not the equivalent of express advocacy there has to be a compelling interest and the law must be narrowly tailored. f. Quid pro quo corruption does not justify issue ads. g. The Austin justification, the distorting influence of great wealth accumulated in the corporation form which have little to no support for the corporations political ideas, does not work because it does not apply to issue advocacy. 2. Scalia concurring a. We should overturn McConnell and not do this as an asapplied challenge. 3. Souter dissent a. Corruption is not limited to bribery or quid pro quo. b. The ads in question were not tied to the issue, but the election. c. Any voter watching knew the ads were advocating voting against Feingold. d. The Court is effectively overturning McConnell. xvii. Davis v. FEC (2008) 1. This case invalidated the millionaire’s amendment. 2. Alito majority a. The provision said when a candidate spent > 350K, his/her contribution limits remained the same, and the opponent’s limits rose. b. This scheme burdened 1st Amendment rights to spend your own money. c. The burden was the advantage for the opponent. d. This is not justified by corruption because it is the candidate’s own money. e. And there is no government interest in leveling the playing field. 3. Stevens dissent
Kennedy opinion a. As for the corruption interest. Under Austin and McConnell. The movie is equivalent to express advocacy. .a. d. He strikes down the rule under the logic of Buckley and Bellotti. And if they want to associate. PACs can. Austin is wrongly decided. Enhancing the opponent’s speech advances core 1st Amendment principles as if only one candidate speaks. and they often do so in ways with little correlation to public support. 3. j. f. Moreover the ban is for all corporations. The right of free speech is only for individuals. The Founders’ hatred of corporations was a hatred of state charter monopolies. xviii. most of which are small. b. g. Reducing the importance of wealth and countering the perception that seats are for the wealthiest bidder are important interests. e. The free speech right is an individual right. b. they could rely on the MCFL exception. c. but it includes the right to associate. b. e. Citizens United v. the statute is over inclusive because it includes all corporations AND because 30 or 60 day time frame doesn’t fit that reason. Media companies are allowed to be corporations and to speak. Government also says they can do this because shareholders are compelled to speak. h. the Court concludes independent expenditures can’t give rise to corruption because they are independent. the ability to make a good choice is impaired. c. Corporations were disfavored by the Founders. k. But if that is the reason. Stare decisis is important b. Federal Election Commission (2010) 1. It is implausible Founders thought corporations have free speech rights. individuals could do as much electioneering as they want. Scalia concurs a. which means they don’t have large wealth. f. Also the Austin rationale could be extended to ban the printing of books. 2. Corporations can’t advocate or electioneer within 30 days of a primary or 60 days of a general. Stevens dissent a. d. i. but this is a burdensome alternative.
5. In the 2012 election cycle. They spend 30-70% of their time raising money. It is a heavy burden because opponents get money not just higher contribution limits and IE spending can trigger. 2. d. but only after the funders have influence. Lessig’s thoughts 1. c. i. a. . d. And the funders are out for themselves. c. This law subsidizes and produces more speech. And there is the issue that shareholders who disagree can have their money spent. a. . The people do have the ultimate influence. And the money election 2. xx. Wall St. Kagan dissent a. This is a subsidy. Bellotti was about referendums. Davis is different because the law there applied different levels of restrictions to different candidates. gave the most money in 2010 because they saw financial reform on the horizon.3% gave $200 or more. c. Leveling the playing field is not a justifying reason. The general election b.055% gave the maximum amount. 4. . Donors get special access. 132 Americans gave 60% of the SuperPac money. b. Ronald Reagan had 0 fundraisers in 1984 9. The system burdens individual speech rights. There are two elections. This is like Davis b.003% gave 100K 6. 3. 7. This has an effect on Congress. or not participating. Always lean to the green. b. Corruption takes many forms and the difference between selling votes and selling access is a matter of degree. Bennett (2011) 1. . The candidate has the option of participating in the public system. d.01% gave 10K. Roberts opinion a.g. 8. 3. Obama had 101 public rallies and 221 fundraisers. It is viewpoint neutral. xix. and the corruptions concerns are not as great in that context as they are with candidates. h. The law said public funded candidates got additional matching funds if private funding for their opponent plus independent expenditures for the opponent exceeded public funding. a. . Arizona Free Enterprise Club v.
It struck down the contribution limits to independent PACs. So you give to the c4 and it gives 50% to the Super PAC. wants to externalize gambling. b. Government can’t bargain down drug prices. but they don’t have to pierce the corporate form of the donors. 23. He says Congress was supposed to be dependent on the people alone. SpeechNow v. 12. And it is very easy to keep the status quo. Another example is time limits at city council meetings. 14. But they are now also dependent on the funders. 75% believe that. 20. He calls this dependency corruption. 17. There we say no discriminatory intent. In speech they look at the impact. 21. c. c. PACs just have extra reporting and tracking requirements. c. The effect of this is Americans believe that money buys results. but impact ok. 18. It said Citizens United held that the government has no anti-corruption interest in limiting independent expenditures. but the effect is equalizing. that affects the ruling. a.10. If money is speech. 24. That is the government trying to enhance relative power. What the funders want from Congress is nothing. He says we should look at the issue more like the 14th Amendment. Time limits on Supreme Court arguments. But that’s ok. 15. 25. FEC a. you can just regulate parallel behavior. And 501(c)(4)s can do political speech if it is less than 50%. yet we can’t do that in the money context. FEC released regs saying PACs have to disclose donors. He says we should apply the rules of antitrust. d. a. DC Circuit case b. Examples: b. But in the vote context we have equalized votes. What do you do with that information? . 19. It’s not clear there is more of a burden on PACs than publicly traded companies with SOX. Power companies can pass the externality of their pollution at no cost. They want to stop progress. We have fairness limits on speech all the time. then votes are speech. not the intent. If dependency corruption had been recognized as corruption. 16. 13. 11. 22. And they don’t have to disclose their donors. So his dependency corruption rationale is an anticorruption intent. Wall St. a. so companies are exempted from market forces. You don’t need independent. Disclosure as a remedy is a fallacy.
both public and private. 27. 2. Everyone gets a $50 voucher and you can only get if agree to only vouchers with a cap of $100 form each person. like tuition. One of the limiting factors Black highlights is the money goes to the parents. The Court says no government money large or small to religion. Lessig solution is to add in clean money. iii. Everson v. ii. Black majority then fits the NJ law in. The contract here is like a general service. The dependency corruption also generates voter apathy. VI. like a fire department or police. g. They aren’t paying for anything religious. e. 30. d. f. I trust him/her. 31. Bd. McCollum v. Compare to the study with doctors. Doctors disclose and say I’ve done enough by disclosing. Field says to remember the state can give anything only to public schools. Patient says wow this doctor is honest. Subsidies i. Black majority a. which they did for direct elections for Senate. they were afraid of dependency. (1948) 1. They said no gifts from foreign leaders. He supports a voucher program. Everson is the beginning of the crumbling of the wall between church and state. He also thinks a solution is Article V Conventions. b. 28. All you need is 34 states to call for a convention. They were 1 vote away and the Congress chose to short circuit and so get the 17th Amendment. 29. 3. He says Kennedy should see this because saw dependency corruption in the Masse Coal case. not the school. It was challenged under the establishment clause. The 1st Amendment has enacted a wall between church and state. Board of Education (1947) 1. it does not have to be adversarial. The case involved a NJ statute that allowed school districts to make contracts transporting kids to school. Establishment a. it doesn’t matter what for. The state has to be neutral in its relations with groups of religious believers and on-believers.26. Compares dependency corruption to the emolument clause in the Constitution. iv. c. Disclosure in fact can make things worse. a. b. a. as the parents don’t’ have to pay for bus fare. . The Court struck down a school board’s practice of permitting students to attend sectarian classes led by parochial school instructors held in the public schools during school hours. of Educ.
Black majority sees two problems a. 1. 2. vii. c. if the fight is based on church law. Field says kids who did not go were in study hall. Zorach v. The test: a. This does not have the primary effect of advancing sectarian aims because legislatures have broad latitude to create classification in the tax statute and this is available to all parents. Rehnquist majority a. Lemon struck down certain types of financial aid to nonpublic schools. Lemon v. . School buildings are being used for the purpose of religious education b. 3. The program afforded sectarian groups an invaluable aid in that it helped to provide pupils for their religious classes. Minnesota allows taxpayers in computing their state income tax to duct certain expenses incurred in providing for the education of their children. the court will not get involved. as public school teachers are policing it and classroom activities come to a halt. This would seem to have the second problem of McCollum. a. This is true even when it is a property dispute of the type people could normally go to court for. the weight of the school is behind the program. The majority (Douglas) says NYC can release public school students to attend religious instruction at religious centers off campus. Kurtzman (1971) 1. The Lemon test is the test and nobody likes it. Its principal or primary effect must be one that neither advances nor inhibits religion c.v. b. The statute must have a secular legislative purpose b. 2. Allen (1983) 1. viii. 3. vi. 2. The statute must not foster an excessive government entanglement with religion. This allows does not excessively entangle the government with religion because there is no real need for government oversight. Mueller v. Clauson (1952) 1. A state decision to defray the cost of education expenses regardless of the type of school is a secular decision. 2. Another per se rule is that when there is a fight between two religious factions and they are fighting over property. Douglas responds that no one is forced to go to the religious classroom and no religious exercise or instruction is brought into the classrooms.
5. But permanent monuments are different. xi. i. UVA uses mandatory student fees to pay the costs of extracurricular activities including the costs of printing various student-edited publications. A Utah city displayed permanent monuments in a public park. This case is like Everson or Allen (where they allowed the government to loan secular textbooks to all children within the state). like political grounds. Pleasant Grove City v. Or government accepts the monument form a private group. Rector and Visitors of the University of Virginia (1995) 1. There were thinly disguised tax benefits amounting to tuition grants. g. There is limited space for this. They distinguished the KKK case (Capital Square v. The court there said you don’t have a right to put up a permanent monument. a. iii. and really religious schools at that because 96% of the private schools here are religious. and the government can choose which speech with which monuments. meaning taxpayers are paying for parochial school. Arizona gave tax credits for the cost of all tuition. The government gets to choose the meaning of a monument. 3. Monuments on public grounds are government speech. . 6. unlike speech or protest. 4. If the city discriminated on selection monuments on a basis unrelated to display themes. Rosenberger v. 2. Pinnette) because the cross put up there was temporary (16 days). Summum (2009) 1. Field points out that after this case. not permanent. e. 8. that would violate the 1st Amendment. He says we would be loath to adopt a rule grounding the constitutionality of a facially neutral law on annual reports reciting the extent to which various classes of private citizens claimed benefits under the law. That was struck down. Alito majority. 7. Rehnquist also says it doesn’t matter that this tax really benefits private schools. f. He says this is not like Nyquist. Nyquist was a case where the public funds were being used for the maintenance and repair of a school AND ii. Some parks can accommodate such displays and need to be made available for such. The Supreme Court said there was not standing to object to this.d. a. This is true whether government financed monument b. x. Breyer concurrence a. b. ix.
2. The University refused to pay the printing costs of a student group advancing a Christina perspective under guidelines which prohibiting using the fee for any religious activity. 3. Kennedy majority a. This is viewpoint discrimination. b. Content discrimination may be permissible if it preserves the purposes of a limited forum. c. Viewpoint discrimination is presumed impermissible when against speech otherwise within the forum’s limitations. d. Religion as a subject matter is not excluded, but what is banned is journals with a religious viewpoint. e. That is viewpoint discrimination and not allowed. f. This is different from Rust because Rust was government appropriate funds to promote a particular policy of its own. g. Here the funds are being used to create a forum, they are trying to encourage a diversity of views from private speakers. i. Note that this is a change in the reading of Rust to now make it a government speech case. h. Funding would not violate the Establishment Clause because the government is neutral toward religion. And it has taken pains to disassociate itself form the private speech involved. i. The comparison is to the Lamb’s Chapel case which says you can’t allow school facilities for non-religious activity after school, but not religious activity. You have to be neutral. 4. O’Connor concurrence a. Money goes directly to 3rd party vendors and not a group. b. That one way this does not violate the Establishment Clause. c. Also students who object can opt out of the fee. 5. Souter dissent a. There is no viewpoint discrimination. It applies to agnostics atheists deists and theists. b. The school is denying funding for the entire subject matter of religious apologetics. xii. Christian Legal Society v. Martinez (2010) 1. The school ays you have to accept all comers, even those who disagree. So the Dem group has to accept Republicans and vice versa. 2. The student groups can use school funds, facilities, the Hastings name if they allow all comers to participate, become members and seek leadership positions regardless of their status or beliefs. 3. The Christian Legal Society was denied status because it required members to renounce homosexual conduct.
4. School said this excludes students on the basis of their religion and sexual orientation. 5. Ginsburg majority a. Hastings has established a limited public forum. b. This is a subsidy, not a prohibition. c. The requirements are viewpoint neutral. d. The restrictions are also reasonable given the forums purpose which is to ensure leadership and education opportunities to all students, to encourage tolerance and cooperation, and police Hastings nondiscrimination policy without inquiring into student groups’ motives. 6. Stevens concurs a. Religious associations need broad freedom in public b. But this is a limited public forum. It is not an open commons. c. Hastings is not a legislature. 7. Kennedy concurs a. The restriction is not content based and applies equally to everyone. 8. Alito dissents a. He tries to argue that the policy was a pre-textual substitute for a prior nondiscrimination policy that discriminated against student groups organized around religion. b. This is a McCreary type argument. c. Also, the school is trying to create a public forum where students are free to form the broad range of groups they could off campus. d. But the policy is antithetical to that broad public forum design. e. The rule would be unconstitutional off campus, and since trying to create diversity off campus on campus, this is unconstitutional. xiii. Zelman v. Simmons-Harris (2002) 1. The school system in Cleveland City is quite bad. 2. The tuition aid portion of the program was designed to provide educational choices to parents who reside in covered districts. 3. Tuition aid is distributed according to need. 4. Rehnquist majority a. The aid is given to parents. b. The program was enacted for the valid secular purpose of providing educational assistance to poor children. c. This is true private choice, no direct aid to schools. d. It does not matter, like Mueller how many of the program beneficiaries attend religious schools.
e. There is no evidence the program fails to provide genuine opportunities for Cleveland City parents to select secular options. f. The schools had to agree not to discriminate on the basis of race, religion, or to advocate or foster unlawful behavior or teach hatred. 5. Field points out there is an entanglement problem. How can the state monitor any of this. 6. O’Connor concurs a. This case is different from indirect aid cases because a significant portion of the funds reach religious schools without restrictions on the funds. b. But she goes through the analysis and is persuaded it affords parents nonreligious choices. c. And the money while large here is nothing like the tax breaks we give religious organizations. 7. Souter dissent a. The money will pay for secular and religious education. b. 96.6% of the voucher recipients go to religious schools. c. There are not enough non-religious private schools and adjacent schools can’t fit/don’t’ have the financial incentives to take extra students. d. Worse, religious teaching at taxpayer expense simply cannot be cordoned form taxpayer politics. e. All major religions have social positions that provoke intense debate. f. If we have public debates about this, free exercise is going to be challenged because religious matters will no longer be private. xiv. Locke v. Davy (2004) 1. Rehnquist majority a. It is ok for the state of Washington to give a scholarship but you cannot use it to pursue a degree in devotional theology. b. You can distinguish this from Rosenberger because there they were creating a forum. c. The state has merely chosen not to fund a distinct category of instruction. It is not criminalizing or sanction any type of religion. d. The Court said you could allow students to purse theological degrees but don’t have to. e. And the law is not hostile to religion. i. You can go to religious college ii. You can take devotional theology classes. iii. You just can’t get a degree. b. Prayer i. Engel v. Vitale (1962)
2. Here this is a religious exercise required by the state. State law requires selection and reading at the opening of the school day verses from the Bible and reciting the Lord’s Prayer. It is still gov’t establishing religion. c. This showed the state was endorsing religion. 2. But in this case the purpose and likely effect was to endorse and sponsor voluntary prayer in the public schools. b. You see more tolerance in college for religious speech than in elementary or high school. Lee v. Abington v. iii. b. The government can’t compose prayers for people to recite as part of a religious program carried out by the government. 2. Stewart dissent a. This is a middle school graduation. b. There might be some psychological compulsion in this case. Not all moments of silence are unconstitutional. Wallace v. Schempp (1963) 1. iv. The law authorized schools to set aside one minute for meditation or prayer. The law originally allowed for one minute of meditation. but the record here was wholly inadequate to support an informed decision on that matter. Part of the idea is younger kids are in a state of formation. Weisman (1992) 1. Nor does it matter that it is nondenominational. so they strike it down on establishment clause grounds. 3. e. v. It does not matter that students do not have to participate d. This is clearly religious activity. Stevens majority a. c. That means it fails the Lemon test. 1. Stewart dissent a. There are references to religion in all sorts of government. 3. Black majority a. this is allowed. The law here was not motivated by any clearly secular purpose b. Clark majority a. like official oaths and congressional prayers. 3. d. In the absence of coercion upon those who do not wish to participate. O’Connor concurrence a. The New York Board of Regents prepared a nondenominational prayer.ii. The school board directed the prayer be recited daily by each class. Jaffree (1985) 1. . b. They foreshadow the Lemon test: Ask what is the purpose and primary effect of the enactment. and then they added voluntary prayer or mediation.
whether or not citizens were coerced to conform. For students choosing to attend the game or face the prayer. It is authorized by government policy. Souter concurs a. the choice is not easy. 2. c. but he mentions God. 3. Our cases have prohibited government endorsement of religion. and active involvement in religion. Even if you stayed seated during the prayer. Thus it seems to have the approval of the school. d. e. b. g. everyone wants to go to graduation. I see no warrant for expanding the concept of coercion beyond acts backed by threat of penalty. b. d. takes place on government property.2. He says you can’t have prayer here because while graduation is not compulsory. Nor is this that different from commencement. . and this causes the psychological coercion to participate. its sponsorship. 7. Kennedy opinion a. 6. c. Kids would feel a reluctance to stand out. Our precedents cannot support the position that a showing of coercion is necessary to a successful Establishment Clause claim. and is at a government approved event. He was advised to be nonsectarian. Scalia dissents a. Doe (2000) 1. The student body was empowered to vote each year on whether to have a student speaker precede football games and deliver a brief invocation. Fact that it is student initiated speech does not make it private. Santa Fe Ind. b. 5. A rabbi gave a prayer at the beginning and end. you had to declare yourself and say I’m not participating in this. School District v. b. Government pressure to participate in a religious activity is an obvious indication that the government is endorsing religion. e. He relies on psychological coercion to strike down. The establishment clause protects citizens from coercion. You can’t have the choice of not go or sit through a prayer. Blackmun concurs a. cheerleaders) are required to go. f. Some students (team. The election aspect of the policy does nothing to protect minorities. band. 4. vi. Stevens majority a.
c. 4. The law was in conflict with the Establishment Clause mandate of neutrality. Rehnquist dissent a. The law prohibited teachers in state schools from teaching evolution. Fortas majority a. He demonstrates there is bias because the law requires curriculum guides for creation science to be developed. The school created the forum by opening the facilities. The law selects from the body of knowledge a particular segment which it proscribes for the sole reason that it is deemed to conflict with a particular religious doctrine. 5. b. Can’t invalidate on its face because the program could be applied in a non-religious way. 2. Milford Central School (2001) 1. 3. c. You cannot prescribe the curriculum to bar the teaching of a scientific theory where the prohibition is based upon reason that violate the 1st Amendment. Thomas for majority says allowing a Christina club on the grounds ensures neutrality. . 2. Breyer says there should be a remand as need more facts to see if the kids saw this as an endorsement. research services are supplied for creation science only. Arkansas (1968) 1. Brennan majority a. The Court invalidated the Arkansas version of the Tennessee antievolution law. Epperson v. vii. 5. If open up school facilities for extracurricular after school programs. Edwards v. Given the history of the law. And this is during non-school hours. 3. 4. Souter agrees saying good case that this actually blurs the line between classroom and private religion. Could not teach evolution unless accompanied by instruction in creation science. sectarian conviction was the law’s reason for existence. Evolution i. 7. 6.h. ii. 2. which elementary school kids are unable to appreciate. the prayer coerces those there to participate. Good News Club v. It is not coercion because the kids can’t attend without parent’s permission. 3. Aguillard (1987) 1. can’t exclude religious speech from this limited public forum. Even if attending is voluntary. Black and Stewart concur solely on the ground of vagueness.
a. 3. citing Sunday closing law cases. We are unable to discern a greater aid to religion deriving from inclusion of the crèche than from endorsements previously held not violative of the Establishment Clause. Burger majority a. Thus the law violates the Establishment Clause. 3. Government endorsement or disapproval of religion. O’Connor concurring a. . b. The Court finds that intelligent design is not science. reindeer. e. ii. There is no testing.only creation scientists can serve on the panel that supplies the resource services. What is the difference between the prayer cases and the Christmas cases Field says? The answer is adults vs. Dover Area School (2005) (M. Christmas i. and a crèche. no peer review. c. But precedents contemplate on occasion some advancement of religion will result from government action. Lynch v. iii. Kitzmiller v. The argument is the crèche depicts the historical origins of the national holiday and there are lots of other decorations. The legislative history also showed the purpose was to advantage creationism. There is also the idea that passive is better than active. It includes Santa. d. and no research. He points to religious art in museums. These differences show that the preeminent purpose of the law was to advance a religious viewpoint. the city puts up a Christmas display.D. 2. The law forbids school boards from discriminating against anyone who teaches creationism. b. We can assume that the display advances religion in a sense. It grew out of Christian Fundamentalism and the religious nature of intelligent design would be readily apparent to an objective observer. d. Government can run afoul of the Establishment Clause in 2 ways. 2.) 1. 4. c. children. i. The required disclaimer would be viewed by an objective student as an endorsement of religion. ii. Penn. Donnelly 1. meaning it is not science. The problem with arguments based on the Framers is that the Framers had all sorts of different ideas. In a nonprofit park. but does not protect those who chose to teach evolution. iii. d. Excessive entanglement with religious instruction.
v. Allegheny County v. When government decides to recognize Christmas Day as a public holiday. c. The nativity scene. i. but still within the Establishment Clause. b. it does no more than accommodate the calendar to the fact that many Americans will spend Christmas with family or at religious services. 4. f. e. The rule of Lynch is crèche is fine if shown with other “secular” celebrations of Christmas.b. The result is displaying a symbol where Christians feel constrained in acknowledging its meaning and nonChristians feel alienated. you can’t go by what the Framers thought. g. . Blackmun majority: a. The overall holiday setting changes what viewers can fairly understand to be the purpose of the display. d. It is also ok for government to pursue a practice that started because of religious motivations if it is continued today for solely secular reasons. Here the city did not intend to convey any message of endorsement of Christianity or disapproval of non-Christian religions. This makes no sense. is to place the government’s imprimatur of approval on the particular religious beliefs exemplified by the crèche. like in God We Trust. which have cultural significance even if they also have religious aspects. reflects a sectarian view. d. unlike the other elements. 6. c. it retinas a specifically Christina meaning. Majority held unconstitutional a freestanding display of a nativity scene at the county courthouse. The scene was owned by a Catholic group. Blackmun dissent: a. A different majority upheld the display of a menorah next to a Christmas tree and a sign saying salute to liberty. 2. Here this is not ceremonial deism. is a legitimate secular purpose. therefore. Citing McGowan/Sunday closing. Brennan dissent a. The free exercise clause does not require this step. 5. h. ACLU (1989) 1. it is closer to the limit. Celebration of public holidays. because there that has lost religious content due to the rote repetition. The primary effect. 3. Embraces the endorsement test. iv. Even in the context the crèche is displayed in. Since nativity scenes as displays are newer than the founding. If government goes further and celebrates the secular elements of Christmas.
Defends the endorsement test. Blackmun for himself a. b. 6. Should use the coercion test. f. Thus the freestanding nativity scene was unconstitutional. Flexible accommodation or passive acknowledgement of existing symbols does not violate the Establishment Clause e. This is clearly a religious symbol. The menorah is not an exclusively religious symbol. The Establishment Clause prohibits government from appearing to take a position on questions of religious belief. Endorsement test is unjustifiably hostile towards religion. The government can acknowledge Christmas and Chanukah as secular holidays. c. A test that prohibits only coercion or overt efforts at proselytizing would not take account of the more subtle ways the government can favor a particular belief. 8. Here the government is simply recognizing that both holidays are part of the winter holiday season. Passerbys are free to ignore it like any other government speech. Therefore it was permissible. The government cannot promote pluralism by sponsoring a display with a strong religious association. which has attained secular status in the country. d. The Court upholds the menorah next to the Xmas tree. c.b. b. b. Stevens dissent . d. d. It is not proselytizing. c. It would not therefore protect religious liberty. 7. The presence of the menorah next to a Christmas tree and a sign indicates an overall holiday setting. b. The display as a whole conveys a message of pluralism and freedom of belief. Here the crèche is a passive symbol of a religious holiday. c. 9. O’Connor a. One need not characterize Chanukah as a secular holiday or find the menorah a secular symbol to so hold. Brennan dissent a. c. d. Kennedy dissent a. Nothing in the context of the display detracted from the crèche’s religious message. 11. g. Agrees the menorah is fine. That means state cannot coerce support of religion or directly give a benefit to religion in such a degree that it tends to establish a state religion. b. O’Connor concurrence a. 5. 10.
Perry (2005) 1. Souter opinion a. b. the Magna Carta. e. d. One is a monolith that is 6 feet high and 3 feet wide that displays the text of the 10 Commandments. Bill of Rights. 6. 2. Given the particular history of this display it is unconstitutional. The 2nd display was the 10 Commandments with a note saying it is the precedent legal code upon which Kentucky’s code is founded. Ten Commandments i. e. Even if accept the Lemon test. O’Connor concurs a. Government can favor religion over non-religion. d. ACLU of Kentucky (2005) 1. 22 acres surrounding the Texas State Capitol contain 17 monuments and 21 historical markers. And an acknowledgment of the role played by the 10 Commandments in our nation’s heritage is acceptable. The second display was clearly religious looking at the legislative history and the resolutions and the fact that it was just the 10 Commandments. e. Van Orden v. The Establishment Clause is about establishing a church or giving money to a particular religion. b. ii. etc. You can’t look to the Framers because they disagreed. b. This shows the county is just looking for a way to include a religious message. it is not about striking the word God.a. No common understanding. Scalia dissents a. The Lemon test is not useful in dealing with passive monuments. Such displays can offend nonmembers of the faith. 5. Declaration of Independence. a. The County first put up the 10 Commandments in the courthouse. Government purpose is key element of understanding. c. It was framing the 10 Commandments with the Country’s history. These resolutions were not repealed before the 3rd display was put up. Rehnquist plurality. . It can acknowledge the Creator. 2. The Establishment Clause should be construed to create a presumption against the display of religious symbols on public property. McCreary County v. c. 4. The district court struck that down so they changed the display to the 10 Commandments. this display is secular. 3. b. 3.
really restricting your access. it just said Internet Explorer had to be there. Part of this is the history. l. 4.VII. but we are privacy starved. So Amazon went into every Kindle and deleted the books. but for how long. The Framers were dealing with a speech starved world and surveillance was very difficult. Zittrain counters now the Internet is like the public square. Graham where struck down 10 Commandments display is different because there it was in a school. they aren’t going to tear it down. iii. Zittrain generally on the Internet (notes are also injected in the case sections) a. Plus Apple takes a 30% cut of any software it sells. where can’t stop leafleting on the sidewalk in a company town. Reno was saying the government can regulate the Internet however it wasn’t because you still have the public square. Facebook ran an experiment where it asked are you a voter. If it has been there since the beginning of time. Scalia in ACLU v. But only in the public domain in Canada. They were worried about the government monopolizing speech. He also points out that what Apple is doing. People bought 1984 for 99 cents because thought it was in the public domain. h. g. He would say Internet cases should be more like Marsh. c. yea. Moses was a lawgiver and a religious man. e. Alabama. g. f. i. Another example the Kindle. e. d. as was shown by Pruneyard. Stone v. McCreary is a contrast because there they are trying to put this display up now. f. i. The Supreme Court has not followed Marsh v. d. The problem with the First Amendment is doesn’t apply to Facebook or Gmail. The 10 Commandments have an undeniable historical meaning. Scalia would say you still have bookstores. k. Today we have a speech stuffed world. c. Microsoft didn’t say you couldn’t have Netscape. and that doesn’t implicate the 1st Amendment. He also gives the example of the Facebook experiment i. not simply a religious message. Also the tablets here convey a secular message. He would also say you could make arguments under the CA constitution. is much worse than what Microsoft did with Internet Explorer. the history of Texas is the purpose. Breyer concurring a. With McCreary they said the purpose was clear from the history. This is the comparison to the frieze in the Supreme Court. . Zittrain. ii. c. m. you just want the 10 commandments in there. b. n. only allowing you to run code that Apple approves. b. iv. Those companies can kick you off. Here you can say that’s not the purpose. j.
ii. vi. and uses these questions to up Democratic turnout and sends Republicans YouTube videos to distract from voting. viii. It also had a control group. how will the market solve. . If that is the case. They are going to measure if this affected turnout. Zittrain guesses it did.If you said yes. it put that in your feed. v. iii. vii. But if Facebook doesn’t announce it is doing this. what if Facebook decides to favor Democrats. The argument is the market will solve. iv.
This action might not be possible to undo. Are you sure you want to continue?
We've moved you to where you read on your other device.
Get the full title to continue reading from where you left off, or restart the preview.