First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

I. Introduction A. Timeliness of Course numerous issues across the country re: recent holiday celebration; also free speech case surrounding extent of the exceedingly offensive political speech (Arizona Shootings) B. THE FIRST AMENDMENT 1. Tension between the Free Exercise Clause and the Establishment Clause. Example: providing clergy to military members may improperly establish but, if not done my prohibit free exercise 2. ESTABLISHMENT CLAUSE - Prohibits or precludes the establishment of a particular religion or preferring one religion over another; cannot prefer nonreligion over religion 3. FREE EXERCISE CLAUSE designed to promote religious freedom II. Chapter 5: Religion in the Constitution A. Background: 1. Personal Belief: The Court may inquire as to whether you believe in religion, but not into the merits of the religion itself. A good faith demonstration of any religion is all that is needed. 2. First, First Amendment Case did not arise till 90 years after adoption. (Reynolds v. Reynolds, polygamy case). 3. The Court has really struggled with trying to come up with consistently applied principles, particularly with respect to religion. Two approaches: a. Separationist Theory: Jeffersons comment about the separation between church and state and the dominant jurisprudence in the U.S. for over 50 yrs. Reason is b/c Court relied heavily on the history of intolerance and colonies which settled in the U.S> The wall, however is not impenetratable. Not absolute. (ex. Putting out fire in a Catholic Schools) b. Non-Preferential Theory/Accommodationist Thoery: states that gov. can give money to religious establishments as long as gov. does not prefer one group over another. B. The Establishment Clause - Intro 1. Everson v. Board of Education (1947) a. First state case re: Establ. Clause. b. Facts: NJ statute to reimburse parents of the children for transportation to school. All parents not just religious school attendees. c. Issues: i. Is Establishment Clause incorporated through the 14thA? Black: Yes b/c the Free Exercise Clause already incorporated. ii. On the merits, how can tax payer money be used to fund transportation to public schools? Black: If the local catholic school is on fire, of course the fire dept. is going to come. Since this law benefits everyone equally, general applicability, therefore, the establishment clause does not apply. d. Holding: The Establishment Clause does not apply because this law was not designed to aid religion. e. Notes: i. NJ could likely provide transportation reimbursement only to parents of public school children.

First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

After this case the court gives guidelines on Estab. Clause analysis. Lemon v. Kurtzman. Perochial school teachers salaries were paid by the state. You can argue that NY wants educated population so they want to pay teachers fairly, etc. Court struck down the law. Three part test: Lemon Test (never overruled but has been criticized, and partially modified in the past ten years): Statute must have a Secular Legislative Purpose. (Did in this case, see above) Principal or Primary or effect must be on that neither advances nor inhibits religion Must not foster an excessive government entanglement with religions (entanglement problem) 2. Zorach v. Clausen (1952) a. Facts: NYC program permits its public schools to release students during the school day so that they may leave the school buildings to go to religious centers for religious instruction or devotional exercises. (Release time). b. Analysis: In McCollum the instruction happened at school, so violated the Establishment clause. Douglas says that this is distinguishable from McCollum b/c letting them leave is simply accommodation, and preventing that accommodation would be hostile to religion. c. Holding: Does not violate establishment clause. d. Plaintiffs argued that this disrupted teaching, too hard to keep tabs on the students, etc. e. Douglas: No one is coerced to leave for religious instruction, no use of public funds. Just an accommodation, so okay. 3. Notes on Zorach and Everson: a. 1940s Cantwell v. Connecticut when the Free Exercise clause was incorporated (preempting the incorp of the Estab. Clause in Everson). Jehovahs Witnesses; Ct. conclude that liberty interest interest of DPClause of the 14th included those w/in the !st Amendment. b. Debates about whether Congress intended, by passage of the First Amendment, was to prevent The Federal Government from establishing a state religion. c. Everson cam before the Lemon Test. Was the issue in Everson aid to religion, or was it only an aid to the student? The Lemon test would have better announciated this if it had been in place. d. In Everson refund was to parents of public school and non-profit private schools. What if they said specifically to non-profit private religious schools? That wouldnt stand, b/c it is favoring religion over no religion. 4. School Prayer a. Prior Case Law: i. Engle v. Vital: NY Case, NY schools run by board of regents. Regents composed a prayer that was voluntary and nondenominations. Court struck it down. State wrote the prayer, so no.

ii.

First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

School Bd. Schemp: Ct struck down a law that required w/o comment the reading at the beginning of the day in public school a verse of the bible or recitation of large prayer. Ct. indicates that their decision did not show any hostility to religion b/c in Schemp it was required behavior, and in Schemp the gov wrote the prayer. iii. Wallace v. Jaffre: Moment of silence for meditation or voluntary prayer. The Ct said this showed that state (Alabama) had a religious motive; there was no secular purpose. So, no. Leaves open the issue of what might happen if there WAS a secular purpose. iv. Stone v. Graham: Rule that 10 Commandments would be posted in every class room is stricken. Clearly had religious purpose. No secular purpose. b. Sante Fe Independent School District v. Doe (2000) i. Facial Challenge by the claimants. ii. School Board argues that the speech is private speech. And that the students voted on whether to give the prayer. Private speech cannot be regulated, is the argument. Used the word invocation. iii. Issue: Is this govnt/public speech? Yes, despite the fact that there was a vote on whether or not to give the prayer, and then elect the student to recite the prayer, it is public speech. iv. Issue: Is participation voluntary? No. Some students were required to be at the game, so required to be exposed to the religious message. v. Dissents: We should not allow a facial challenge. Let it play out to see if anyone is actually offended. vi. Rule: Govnt speech promoting religious violates the Establishment Clause. Govnt sponsored prayer, even if nondenominations, voluntary, or silent is not allowed in schools. Compelling attendance leads to coercion even if the prayer is voluntary. vii. Notes: Lee v. Weisman, prayer in the classroom. Middle School graduation, required function, rabbi offered a prayer. Govnt involvement in promoting religion. Stevens said the facts in Sante Fe and Lee make it such that Lee controls. c. Edwards v. Aguillard i. No Constitutional right to be taught any particular subject/theory. Even evolution. ii. Professor: In these Elementary School Cases the Court takes a very paternalistic view of the schools at issue. iii. Background: Louisiana passed this statute because an Arkansas law prohibited the teaching of evolution that was struck down. Louisiana Act allows teaching of evolution and creationism if both are taught.

ii.

First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

Holding: LA Act violates the Establishment Clause, b/c there was a religious underpinning/purpose behind the push to get creationism into the curriculum. v. Analysis: fails first prong of the Lemon test b/c legislative history indicates that there was not a secular legislative history. 5. Religious Speech and Displays on Public Property a. County of Allegheny v. American Civil Liberties Union i. Creche on the staircase case (of courthouse) Menorah placed outside. Both are religious symbols. ii. Issue: are these symbols on govnt property violative of the Establishment Clause. iii. Prof: There can be a situation where the private symbol on govnt property OR govnt owned symbol on private property. iv. Precedent? Look to other cases to see what test to apply. The Lynch Case (city put up annual holiday display that had tree, lights, santa, and crche all owned by city. Ct. held that the purpose was secular, effect was not to advance religion. Similar to legislative prayer, so not violative of the Establishment Clause). v. OConnor: ENDORSEMENT TEST: Would the objective observer conclude that the govnt was endorsing religion when viewing the symbol? Consider symbol in CONTEXT where it is displayed. Govnt Endorsement of religion is invalid b/c it sends a message to non-adherents that they are outsiders, not members of the political community, and to adherents that they are insiders, favored members of the political community. vi. Holding: Does not violate the establishment clause (OConnor is fifth vote to the vague morality opinion). vii. Analysis: Applying this test to Lynch would mean that since creche in that case was displayed in the context of other religious manifestations, objective observer would not think there was endorsement. In this case, (Blackmun Opinion) crche in courthouse was violative, menorah outside wasnt. viii. Prof: remember most important part of the test is CONTEXT. b. McCreary County v. ACLU of Kentucky, (Kentucky Case) i. Ten commandments in court room. Was found unconstitutional. Came back with Ten Commandments and other religious symbols in relation to law. Said it was unconstitutional again. Fired their lawyer, and new Lawyer says they should put up 10 displays, all same size, representative of source of law (bill of rights, ten commandments, declaration of independence). ii. Court Says all they have to resolve is whether the this third claim violates the establishment clause. But, they consider the other two cases a lot. iii. Issue: do the other displays sanitize the religious symbol? iv. Court relies on the history of the displays and says that this is unconstitutional b/c the merely adding the other secular documents does not sanitize the religious purpose of the ten commandments display.
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iv.

First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

Notes: In KY it is an easy application of the Lemon test b/c the very first prong was violated. c. Van Orden v. Perry case from Supplement i. Memorial of various aspects of the Texan Identity. Ten Commandments in the Capitol lawn. ii. Decided same day as KY case. But Breyer switches sides. So, no violation here. iii. Notes: To say that justice Breyers opinion concurring in the judgment will provide little guidance to lower court judgements when considering Estab. Laws challenges would be an understatement. (Breyer gave us no real standard!) iv. What would happen now: up in the air Roberts: we dont know Alito: Signals say hes an accomodationist. Scalia Thomas: Estab doesnt even apply to states! Kennedy Breyer: We dont really know. Stevens: Separationsis. Kagan Sotomeyer Under current jurisprudence with regard to symbols on the govnt property, justices all have their own. d. Lambs Chapel i. Precedes Capitol Square. ii. Policy: let groups use the school during non-school hours. Precluded use to religious groups. All views of family issues and childrearing except for from a religious perspective. iii. Church group plans an event about family planning from religious perspective. Evangelical preacher is leader. Use denied. iv. Rule: the Govnt cant discriminate based on viewpoint unless they can meet strict scrutiny. Example: Obscenity is not a protected type of speech. If school allows forum for speakers, except those that are going to give an obscene speech. Compelling interest would be met b/c not protected speech and it is content based. v. State argues that they are worried about violating the establishment clause. Court says no, not implicated b/c its after school, its not state sponsored, its open to the public. e. Capitol Square Review and Advisory Board v. Pinette i. State owned plaza around capitol in Columbus, Ohio. Denied request of KKK to put up cross on the plaza. KKK seeks injunction to require board to issue a permit. Dist. Ct. and Court of Appeals agreed. ii. Cts Analysis: Nature of Forum: Traditional Public Forum.
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First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

iii. iv. v.

vi.

vii.

Content or Viewpoint Based: Content COMPELLING INTEREST? 1. Well, the Estab. Clause is not implicated b/c this is a public forum, so no risk of endorsement. 2. State argues that it is really close (proximity) to the capitol so it looks like endorsement. But Scalia says that perceived endorsement isnt endorsement, no favoritism why? Because everyone is permitted to display everyone is invited! Clans speech right vs. govnt interest in not violating establishment clause. (Scalia remember, doest like Lemon -). Scalia: Compliance with the establishment IS a compelling state interest, which would justify content based restriction on speech. Determining whether theres endorsement: OConnor: wants to include objective viewer standard to conclude whether the reasonable informed viewer can tell theres no endorsement. Stevens: should just use reasonable man. So that would mean that there was endorsement. Holding: (Plurality) No endorsement test used (only for govnt action, and none here). Private speech in a public form open to all on equal terms means the ct. should not apply the endorsement test. Religious expression cannot violate the Estab. Clause where it s 1. Purely private and 2. Occurs in traditional designated public forum, publicly announced and open to all on equal terms. Those conditions are satisfied here, and therefore, the State may not bar respondents cross from Capitol Square.

f.

Notes: i. Govnt property: has three categories Traditional Public Forums (i.e. sidewalks, streets, public parks, areas that are classically available to public for various uses). Limited or designated public form (i.e. area which is public property the govnt has limited for a certain type of speech or purpose) Non-Public forum (i.e. a courtroom) g. Good News Club v. Milford i. After school bible verse instruction. Treats! ii. Public Forum. So no establishment clause implication. iii. Viewpoint discrim is claimed. iv. But Importantly court says that Estab. Clause interest is a compelling interest for CONTENT BASED, but maybe not for VIEWPOINT. v. Lemon test applied and said that the forum should be used for religious as well as non-religious group. No entanglement.
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First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

Entanglement would only occur if someone was always monitoring the venue to make sure that no religious activities took place. This was not occurring in this case. vi. What is the rule, if any, with respect to a traditional public forum, and a designated govnt forum if a group wants to have a catholic mass. vii. Notes: Suppose Justice Thomas had concluded that the activity in the classroom was religious activity and had violated the establishment clause. Is that the end of the inquiry? 6. Financial Aid to Church-Related Schools and Church-Related Instruction a. There is a de facto governmental monopoly of primary and secondary schools. Three reasons not to disturb: i. Principled conviction that govnt run schools are necessary to forge a nation of immigrants into one coherent nation. ii. Self interest that is entrenched in bureaucracy and teachers unions. iii. Opposition of suburban parents who fear the shift of public funds from the better funded suburban schools into the urban schools instead, concern for minorities in their schools. b. Generally the problem affects catholic schools. Catholic schools need more funding when they need to pay teacher, less clergy to teach. c. Background: i. Nyquist: struck down state law giving tax credits whose amounts were determined by parental income, for each child attending a non public school ii. Aguilar v. Felton: NY sent public school teachers into parochial classrooms for remedial education for disadvantaged students. Learning disabled kids. B/C there was a federal law that said you had to provide full education opportunity to every child regardless of economic background (Title ! of the Elementary and Secondary Education Act). So, they had to provide remedial education to everyone. Challenged on establishment clause grounds and the Court struck it down. Permanent injunction issued. Four (4) reasons that the Court concluded it was a violation here and in the Ball case: VERY IMPORTANT TO UNDERSTAND AGOSTINI 1. Public school teacher who go into private school may be co-opted into religious mission of the church, especially if they share the religions ideology of the school 2. Providing materials for use in the school directly subsidize the school by limiting expenses they would otherwise have charged to the school. i.e.

First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

d.

e. f. g. h.

the private school wouldnt have to use its own money to hire an outside teacher to satisfy Title 1. 3. Presence of Public school teachers on private school property created a graphic depiction of state/religious intertwinement. No separation 4. ENTANGLEMENT very necessary for govnt to monitor teachers to avoid entanglement. Under Lemon test it would be seen as entanglement because they would have to constantly monitor these teachers in the private schools. Agostini v. Felton (overturns Aguilar) i. The Court says that things have changed since Aguilar, and attitude towards Aid to Religiously affiliated schools has changed: We dont presume that teachers will be seen as promoting religion if they go into a private school (Zobrest v. Catalina, deaf student in catholic high school who had a state paid interpreter) No longer a rule that all government aid directly aids the education function of religious schools is invalid. (Witters v. Washington Dept. of Sevs. For Blind). Just Oconnor tried to summarize aid to private schools: she said it all turns on whether the govnt is indoctrinating; and that if it prefers one religion over the other it is unconstitutional, and if it creates an excessive entanglement. ii. Entanglement? Incidental entanglement doesnt have the effect of promoting religion, but excessive Entanglement would, so it is to be prohibited. So far weve seen bus funding upheld, weve seen payments for salaries of teachers at private religious schools was struck down, weve seen a program sending public school teachers in private school upheld. Prior to Mitchell the govnt had considered whether the govnt should be prohibited giving aid like tvs to religious schools b/c it could be used in religious teaching/classes. Mitchell v. Helms See Class Notes Zelman v. Simmons-Harris i. Justice Rehnquist: uses Agostinis purpose and effect test. There was clearly a secular purpose. Says the Court has distinguished because private choice and direct aid. Uses the three cases (see outline) to establish that the facts in this case represent private choice. ii. To answer that question our decisions have drawn a consistent distinction between govnt programs that provide aid directly to religious school and instances where the aid reaches the schools ONLY as the result private genuine choice. While our jurisprudence with respect to the constitutionality direct aid
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First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

programs has changed significantly over the past two decades, . . . our jurisprudence with respect to true private choice programs has remained consistent and unbroken. iii. Dissent: concerned about size of the grants and what happened to the money when it got to the school, could be spent on anything. Thinks Nyquist (case about impermissible purpose) should control. Parents didnt have a real choice here! In Nyquist the result was that there was no real choice b/c the money ended up only going to religious schools. Dissent says its basically the same thing here but the majority said that would mean that its constitutional in Columbus, and not constitutional in Cleveland. Not logical therefore to look at how the money ends up being spent. iv. If as the plurality contends a per capita program is identical to a true private choice program there is no reason for gov to be precluded from providing money directly to religious groups/orgs based on a per person status. Surely the plurality doesnt mean this, therefore. Not logical. Etc. v. But no scheme so clumsy would ever come before us. The Establishment clause is largely silenced in this case. I hope that a future court will reconsider . . . vi. OConnor: if this is pure private choice i. Direct aid that is permissible i. Textbooks to schools ii. Teachers given to schools for remedial ed iii. Aid in the form of materials, computers, t.v.s (Helms) j. Indirect Aid i. Allen Case (permitted taxpayer in a state to take a deduction, their tuition). ii. Wittier (blind student aid). iii. Zorbrest (Voucher case, allowed). 7. Higher Education a. Rosenberger v. Rector and Visitors of the University of Virginia i. UV authorizes the payment of outside contractors for the printing costs of a variety of students publications. It withheld authorization for payments on behalf of petitioners for the sole reason that their student paper promoted a particular believe in a deity or an ultimate reality. ii. Prof: WHAT IS THE LIMITED FORUM? Student Activities Fund is the forum in this case. The forum cases we saw before were easy b/c they were physical spots that the school opened for use by others. It is a metaphysical forum in this case. iii. Kennedy: Thus, in determining whether the state is acting to preserve the limits of the forum it has created so that the exclusion of a class of speech is legitimate, we have observed a distinction between, on the one hand, content discrimination, which may be permissible if it preserves the purposes of that limited forum, and, on the other hand, viewpoint discrimination,
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First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

which is presumed impermissible when directed against speech otherwise within the forums limitations. 8. Christian Legal Society Chapter of the U of Cal., Hastings College of Law v. Martinez a. CLS says they should have the right to discriminate and not let gays join their group/exclude them b/c they make everyone sign a thing stating their beliefs b. Apply the non-discrimination policy as written OR did she apply the all comers policy? This is critical b/c if you apply the regular nondiscrimination policy then they didnt do anything wrong because it would have characterized the discrimination as VIEWPOINT DISCRIM. But, if you apply the all comers policy, different story. Really just saying that the non-discrim policy encompasses the all-comers policy (majority). c. Kennedy is the swing vote in the 5-4 outcome. Kennedy says I would have voted the other way if we would have been applying the nondiscrim policy, but since applying the all-comers policy we can say its not viewpoint so he can add his vote to the majority. d. Ginsburg says condition is reasonable . . . b/c RSOs are funded from mandatory student fees ensures that no student is forced to fund a group that would reject her as a member. (Majority) But this is only valid b/c all comers policy is being applied. Notes: This is textbook neutral. Hard to find something more neutral than requiring all student groups to accept all student comers. C. The Free Exercise Clause Congress shall make no law prohibiting the fee exercise thereof (of religion) 1. Introduction a. Cantwell v. Connecticut Incorporated the Free Exercise Clause b. First real case was about polygamy. As a law of the org of society under exclusive domain of U.S., it is provided that plural marriage will not be allowed. Can a man excuse his practes to the contrary because of his religious beliefs? This would make professed doctrines of religious belief. Each man could become a law unto himself. c. Meyer v. Nebraska state violated Due Process Clause when it prohibited teaching in language other than English. Comes up a lot in this line of jurisprudence d. Pierce v. Society of Sisters struck down state law that required all children to attend public school. e. Both of these above were DP cases. 2. Sherbert v. Verner (1963) a. Seventh Day Adventist church member fired b/c wouldnt work on Saturday, the Sabbath in her faith. Couldnt get other employment files unemployment claim b. Court: State didnt directly prohibit the practice of her religion. Court said it was fine. c. Sets Sherbert test of Strict Scrutiny for Free Exercise. d. In this case she was forced to choose between religion and work. But, if govnt can prove compelling interest, then its fine.

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First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

3.

4.

5.

6.

7.

e. Holding: South Carolina cannot deny unemployment so as to constrain a worker to abandon his religious convictions respecting the day of rest. f. Braunfield was major obstacle (Jewish guy) because it said there was compelling interest in providing single day of unified rest. Wisconsin v. Yoder a. Amish case. b. State interest in promoting democratic thought, participation in economy, self-reliance. Amish argue that they have an interest in keeping them from leaving Amish community (so states interest is irrelevant), and that two years of education wont make that much of a difference. c. Societies interest in the value of secondary education vs. parents own interest in religious principles. d. Notes: Court upholds a claim that Free Exercise Clause is being violated. STANDARD NOW (BEFORE SMITH) IS STRICT SCRUTINY. Emp. Div. v. Smith a. Applied for unemployment benefits. They were fired for Peyote use. Could be fired, but denial of unemployment b/c they were fired and they claim using Peyote is part of religious beliefs. b. Scalia (majority): We have never held that an individual religious belief excuses one from compliance with an otherwise valid law prohibiting conduct that state is free to regulate c. Scalia says its a crim statute, neutral on face, gen applicable so only apply rational basis. So, its okay. d. OConnor says we should still use strict scrutiny b/c not compelling. e. Majority Rule: moving away from strict scrutiny!! Now applying a balancing test. f. Boerne overturns Religious Restoration Freedom Act, which said you had to apply Strict Scrutiny b/c exceeds congress 14th Sec 5 powers. But does it apply to fed gov? (no see Gonzalez v. _______). Does the RFRA favor religion too much (so is it establishment clause issue? Locke v. Davey a. Scholarship, but cant use it for theological education. b. Play in the Joints some things allowed by the establishment clause but not prohibited by the Free Exercise clause. c. Washington Constitution had a more restrictive religious section than Federal 1st Amendment. Cutter v. Wilkinson a. Whether the RLIPA violates establishment clause (wardens argument); but prisoners argue that it denies their Free Exercise clause. b. GINSBERG: unanimous decision. This is just a mere accommodation of that is allowed by the establishment clause, so you have to do it. (on its face) Notes: a. Sunday closing laws have regularly been upheld. Court can inquire into whether the person holding it is sincere. b. A state cannot prevent a minister from holding public office.

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First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

c. Medical Law when someone doesnt want to engage in medical behavior b/c of religious beliefs (i.e. states can order vaccine); especially under parens patriea 8. So far: a. Estab clause i. Aid to parochial schools ii. Speech on public grounds iii. Religious symbols b. FE i. Hybrid Cases ii. Smith Situations D. FREEDOM OF EXPRESSION - OVERBREADTH 1. Whitney v. California a. Act makes it a crime to advocate teach or abet ulawful acts of violence as a means of political change b. Defendants were found guilty c. Concurring opinion by Brandies joined by Holmes referred to constantly in literature established a clear and present danger standard that required more than advocacy d. SMITH ACT: before 1940 enacted. Utilized to try and convict the leaders and members of the communist party. (Dennis case) Obiously the words cannot mean that before the gov can act they must wait till the plan is announced (the gov doesnt have to wait that long). Leading up to Brandenburg. Beielf that the harm to gov was so 2. Brandenburg v. Ohio CLEAR AND PRESENT DANGER TEST a. Statute punishes those who advocate violence as a means of accomplishing industrial or political b. Conviction overturned. c. IN order for the state to justify infringing on the first amendment free speech right which is clearly infringed upon if you preclude advocacy: the state must show that it is incitment to immediate action and is likely to occur. d. Statues affecting the right of assembly must observe the established distinctions between mere advocacy and incitement to imminent lawless action. e. The Sp. Ct. defers to the state supreme courts interp of the state statute. 3. Overbreadth/Vague a. Statutes designed to punish activities that are not constitutionally protected but they are drafted in such as a fashion that they include activities protected by the 1st amendment. b. Attach is usually facial. c. Example of vagueness: the following of vague: wreckless walking but wreckless driving is not vague d. used by the courts to avoid answering so they can just say its overbroad or vague. 4. Coates v. Cincinnati a. Ordinance thats said you cannot assemble on the sidewalk if you are acting in an nnoying manner
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First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

b. It was vague: annoying c. Itw as overbroad: punished for constitutionally protect activities (i.e. standing on sidewalk). It would punish a criminal activity like fighting on sidewalk, but also some otherwise protected speech. d. Example: If three or more persons are on a corner picketing for labor. e. Notes: overbreadth doctrine refererred to by justices as strong medicine. 5. Broadrick v. Oklahoma (1973) a. Oklahoma civil service employees were trying to get money for a political campaign. The statute in Oklahoma re: civil servants would have applied. However, the statute also precluded people from wearing messages on buttons/bumper stickers. The employees in the case werent violating the button/bumper sticker part, but they enjoined the statute and sayd that it was OVERBROAD, and there were others that werent present. Allowed b/c could have chilling effect. b. With respect to areas of speech and conduct you must show SUBSTANTIAL overbreadth. c. Doctrine is necessary b/c persons whose expression is constit. Protected may not exercise expression because of chilling effects. 6. Virginia v. Hicks Supplement a. Area in town in Virginia that had crime/drug issues. The city turned issues over to Agency so the street became private. There was a no trespass provision unless you were a resident or if you were visiting bona fide business reason/bona fide social reason. b. Owner of housing complex had a lot of discretion as what could be legitimate business or social reasons. c. Hicks came in and destroyed property, told not to come back, and if he did he would be arrested. Came back twice, arrested for violating the no trespass statute. d. Hicks argues that overbreadth statute is applicable. Policy implementing the no trespass law would allow the woman who ran the housing complex to preclude people from coming in to hadn out handbills (classically protected by the 1st A). e. Scalia: overbreadth doctrine was inapplicable. No one was going to trespass to hand out handbills and so it was not applicable. 7. Test a. Conduct or speech covered by statute; but b. The statute covers other protected speech c. So, other peoples rights might be chilled, so this guy gets to assert that the statute is unconstitutional b/c it is overbroad. (SUBSTANTIALLY OVERBROAD; see Scalia/Hicks above) d. THE COURT WILL NOT BE OVERLY LIBERAL IN APPLYING THE OVERBREADTH DOCTRINE e. Issue that is not clear: what if it is just pure speech? Do you still need substantial overbreadth? Looks like no. Whites opinion on page 47. Litigants, therefore, are permitted to challenge a statute not because of their own rights of free expression are violated, but because of a judicial prediction or assumption that the statutes very existence amy cause
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First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

others not before the court refrain from constitutionally protected speech. E. FREEDOM OF EXPRESSION PRIOR RESTRAINT 1. Intro historically the imposition of prior restraint was done by agencies of the executive branch. but, injunction by Courts is alternative. 2. Near v. Minnesota - Press a. The District court enjoined publication. b. This Court overturns the enjoinment. c. Rule: Prior-Restraints on speech violate 1st A b/c it vitiates the purpose of the press freedom (to protect against censorship) i. Exceptions: nation at war, publishing info on warships, speech that incites violence, clear in present danger (Brandenburg). ii. The truth of the matter is irrelevant when applying the rule against prior restraint. 3. Cox. v. New Hampshire Parades and Demonstrations a. Background: Birmingham cases. Ordinances allowed sheriff to give permits on case by case. Then second case overturned ordinance as unconstitutional b/c they gave too much freedom to sheriff to decide who. (the arrestees were arrested for violating court injunction, not under the (later unconstitutional) ordinance, so this was okay. 4. Watchtower Bible and Tract Society of New York v. Village of Stratton (2002) a. Jehovahs witnesses: law says that you cant walk up to someones residence and do whatever (three specific areas). b. Ordinance serves three purposes: prevent fraud, prevent crime, protection of residents privacy. c. BALANCE: affected speech (Jehovahs witnesses to exercise right to proselytize) and governmental interests that the ordinance purports d. Religious proselytizing; distribution of handbills; anonymous political speech. e. Court doesnt say what standard they have to use to see if the balancing test it met b/c the statute was too broad. i. Would chill spontaneous political speech (talk to neighbors) ii. Want to do tracts on weekend, cant b/c you have to wait till Monday to get permit. iii. Citizens could prevent specific groups from appearing on their property, by signing affidavit (no solicitation) f. See Handout with article about gated communities and Jehovahs Witness victory 5. Notes: a. Brought up decision in case of Funeral Protests that was decided yesterday (3/2/2011). 6. New York Times v. Sullivan (1964) Public official in public matter (also applies to person running for public office) a. State Action in this case is that the state court system imposes the penalty. (two private parties involved so we need to see where the state action is).

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First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

b. Background: during the civil rights movement in the South. Private editorial advertisement taken out in the times. Some of the facts that were false were printed in previous editions correctly. Some statements of fact, but some error. Mr. Sullivan was not named but it was clear that they were talking about him. Brought normal action for libel. c. Normal law w/ respect to libel per se (damages) will not wash. New RULE: IF you are going to win your libel suit w/ respect to the press if you are a public official you have to meet the ACTUAL MALICE STANDARD: i. Must prove OBJECTIVELY that the press Knew the falsity of the statement Or acted w/reckless disregard as to whether its true ii. High standard annunciated by Justice Brennan. Very hard for someone to win under this test. iii. POLICY REASON: should be free to criticize public officials/govnt action; should not inhibit debate(public concern = public official relative to a public action) d. Majority: Debate on public issues should be uninhibited, robust and wide open. Seems that Brennan felt that civil penalty in this case was worth than criminal penalty b/c it was so high an amount. e. *****The ACTUAL MALICE STANDARD APPLIES TO BOTH PUBLIC OFFICIALS and PUBLIC FIGURES - actual knowledge that it is false, or reckless disregard as to whether it is true. see. Discussion of public officials like Bear Bryant and Wally Butts case (Curtis Publishing Co. v. Butts; Associated Press v. Walker (involving a military general)) on p.74. Stating that test applied in those cases b/c subjects were important public figures that shaped public issues/debate/resolutions of public questions Reasoning is that public officials have power to shape public opinion about them b/c they have access to power to change public opinion even if what is said about them is false. f. Balance freedom of press with states right to compensate for injury. Came out on the side of freedom of the press (1stA) b/c this was a public official with regard to a public matter. Key factor in this case. g. Notes: prior to this case, if you brought a libel case all you had to do was prove your damages. So, changed state law re: libel. Key factors. 7. Gertz v. Robert Welch, Inc. (1974) Private person in a Public Matter a. Gertz was lawyer to victim of police shooting in civil suit. Press claims he is involved in larger conspiracy against police (Communist Scare). b. Court: NOT A PUBLIC FIGURE. Court declines to extend the actual malice rule to private citizens. c. Gertz was suing for compensatory and punitive damages. Court says states need to have substantial latitude in enforcing legal remedies for defamation cases. Court distinguishes between compensatory and punitive:

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8.

9. 10. 11.

Compensatory: just has to prove negligence. (states interest in fashioning a compensatory remedy is higher than freedom of press) ii. Punitive: have to prove the malice part. (states interest in fashioning punitive damages (not just to make people whole, but more) is not higher than the freedom of the press)) Dun & Bradstreet, Inc. v. Greenmoss Builders (1985) Private person, private matter. a. Credit reporting agency falsely publishes that a co. is going bankrupt. b. IN this case the court says you dont have to show actual malice for either compensatory OR punitive damages. c. Policy: who not require actual malice for punitive damages? b/c interest in protecting 1st A rights. Notes: Court believes that if they are too tough, that papers/press will self censor (chilling affect). Dont want to do that. Can the press be held liable for stuff they print that is true? Yeah, name of rape victim, name of juvenile, etc. The Florida Star v. B.J.F. (1989) a. Why didnt Cox Broadcasting Corp. v. Cohn (1975) control in this case? This was a criminal trial. Florida had a rule that victims of rape names shall not be published. B.J.Fs name was published. b. Competing interests identified by Marshall: Free Press v. Right to Privacy (state interest in the privacy of its citizens) c. Issue: whether the state may impose sanctions on the accurate publication of the name of rape victim obtained from public records. d. Rule: If a newspaper (1) lawfully obtains (2) truthful information about a matter of public significance then state officials may not constitutionally punish publication of the information, absent a need to further a state interest of the highest order. e. Establishes States interest of the HIGHEST ORDER standard: ONLY where the a newspaper publishes truthful information which it has lawfully obtained, punishment may lawfully be imposed only when narrowly tailored to a state interest of the highest order and that no other interest is satisfactorily served by imposing liability to Florida Star under facts of the case. i. State has interest in preventing retaliation ii. State has interest in protecting identity iii. State has interest in encouraging victims of rape to report f. Holding: imposing damages on the publication for publishing B.J.F.s name violates the First Amendment. g. Notes: i. this case turns on the lawful obtain and truthful aspects. ii. She could have a remedy against gov for negligently having her name available to press. iii. Marshall added that being overly harsh here may result in self censorship of the press b/c they will fear some violation of a statute.

i.

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But this statute is underinclusive (says marshall, b/c it doesnt really prevent dissemination of the rape victims name, only comvers mass media). 12. Bartnicki v. Vopper (2001) a. First case where info is obtained from Private (NOT PUBLIC) sources. BUT still involves a MATTER OF PUBLIC CONCERN. b. Private phone conversation intercepted (convo of union organizer). Intercepting phone conversation, but was dissemination of the contents of the phone call violation of first Amendment? c. Conflict between interests of the highest order interest in full and free dissemination of info concerning public issues and the interest of privacy in fostering private speech. d. Holding: discosures made in this case did not violate the first amendment e. Rule: Strangers illegal conduct does not suffice to remove the First Amendment Shield from speech about a matter of public concern. f. Analysis: The right of privacy does not prohibit any publication of matter which is of public or general interest. One of the costs associated with participation in public affairs is an attendant loss of privacy. So concern for free circulation of info in a matter of public concern wins out. g. Dissent: Irony of the decision is that even though you are protecting speech, you are also creating atmosphere of self censorship b/c people will be afraid that even though the info is illegally obtained it can still be disseminated. This is chilling speech. (Rehnquist). h. Notes: if information is lawfully obtained it will prvail. But even if it is not lawfully obtained, if it is a matter of public interest the dissemination may outweigh interest in preventing dissemination. Focus on the core of the First Amendment: dissemination of truthful information in a public matter. F. Obscenity, Pornography Control of 1. Intro: a. Pornography, in the context of the law is NOT obscene. (but distinguished from child pornography). b. Obscenity: i. Roth Case: Obscene materials do not have 1st A protection. (Not unanimous) Black and Douglas were absolutes on the 1st Amendment. ii. Stanley v. Georgia: possession and viewing of obscene material (clearly obscene) in ones private home is protected. BUT, any process that is used to get the obscene material into the home is NOT protected. 2. Paris Adult Theatre I v. Slaton (1973) a. States interest in shielding i. Consenting adults ii. Non consenting adults iii. Children b. State sought injunction here against theatre to keep them from showing films even to consenting adults.

iv.

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c. Issue: Can a state preclude anyone from showing obscene movies, outside the home, even to consenting adults? (yes) d. Holding: States interest in promoting public safety, quality of life, etc., outweigh the interest of a consenting adult to see a non-protected films. e. This is not a case about whether the movies were obscene. No one argued that they were not obscene. Given that it is obscene here. f. Argument that states asserted interests dont realate. Court says, we defer to legislature, and they believed that there was a relationshiop btwn showing obscene movies and the states asserted interest. (Rational Basis) 3. Miller v. California (1973) a. Miller engages in mass mailing. Charged under Cal law that made it a misdemeanor to distribute obscene material. b. Issue: What is Obscene? i. Court looks at Roth v. U.S. (court sustained conviction under federal statute punishing the mailing of obscene, lewd, lascivious, or filthy materials key: the Courts rejection that obscene materials are protected) and Memoirs v. Mass (established three elements must be present to establish that (1) dominant theme of material appeals to a prurient interest in sex, (2) the material is patently offensive based on contemporary community standards (3) the matter is without redeeming social value ii. NEW RULE defining Obscenity: Whether the average person applying contemporary community standards would find that the work as a whole appeals to the prurient interest (Community standard, in this case, meant California, could be critiqued b/c varies from state to state) Whether the word depicts in a patently offensive way sexual conduct specifically defined by the applicable state law, and Whether the work as a whole lacks serious literary, artistic, political, or scientific value (court later held that this is national standard) c. Under Miller: the Jury decides! 4. Jenkins v. Georgia (1974) a. Carnal Knolwedge video b. Jury said it was obscene c. Court says its not. still protected under the 1st A. d. Probably really saying that no reasonable jury could conclude that this was obscene (although they never spell this out in decision). G. Child Pornography 1. Intro: a. NY v. Fervor (any gov may absolutely prohibit the exhibition, sale, or distribution, even if it does not meet the test for obscenity).
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So child porn. doesnt have to be obscene in order to be prohibited (can lose protection even though its not obscene). ii. Conviction unanimously upheld, it is evident beyond the need for elaboration that a states interest in safeguarding the physical and psychological wellbeing of a child is compelling. iii. The use of children as subjects in child port is harful to the emotional, physical, and mental ehalth of a child. . . . closely related to abuse b/c children are exploited. b. COURTS MAIN CONCERN IS THE CHILD, not the nature of the porn. c. Can be prohibited even in the PRIVACY OF YOUR OWN HOME. 2. Ashcroft v. The Free Speech Coalition (2002) a. Congress passed the CPPA Child Pornography Prevention Act of 1996. b. Issue: Is CPPA overbroad because it extends the federal prohibition against child porn to sexually explicit images that appear to depict minors but were produced without using any real children. c. In Fervor the children being exploited was such a paramount concern that it overcame. But here we dont have that. d. Holding: this statute is overbroad because it is preventing the viewing of otherwise protected speech. e. Notes: the extent of the types of material that hti statute would have preveted from being displayed: i. Wasnt obscene under Miller (isnt protected) ii. Isnt child pornography under Fervor (so just in a large middle area that consenting adults have a right to have access to, but this act had the affect of preventing viewing of normally protected content in a protected way). iii. Violation of this statute was a criminal offense f. . . . [P]ornography can be banned only if obscene, but under Ferber, pornography showing minors can be proscribed whether or not the images are obscene under the definition set forth in Miller v. California . . . g. Policy: does fact these arent real children justify that the States interest isnt high enough to overcome the overbreadth argument here? 3. American Booksellers Association, Inc., v Hudnut (we skipped this) a. Some commentators think there should be a special exception for pornography involving women should have no protection b. Indy adopted a provision that said if you make porn that portrays women enjoying pain or humiliation it is punishable c. Court struck this statute down b/c it was viewpoint discrim. 4. United States v. Playboy Entertainment Group, Inc. (Court moves to cable television) a. Background: i. Congress controls broadcasting over the air. Only a certain number of channels, so this shapes how Congress procedes. ii. The FCC had provision prohibiting indecent language over television or radio. (FCC v. Pacifica Foundation, when the radio
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station played the seven dirty words broadcast. The courts aid broadcast media is uniquely pervasive and invasive into the home. So individuals right to be left alone plainly outweighs rights of the intruder. Could tune in in the middle of the program, and it is UNIQUELY ACCESSIBLE TO CHILDREN.) iii. AIRWAYS ARE DIFFERENT THAN CABLE! b. This Case: i. This is ancient cable, in this case. Scrambled the channels. Didnt work for a number of reason: sometimes the images werent scrambled sufficiently, you could still hear the sound, etc. Congress got concerned that this wasnt working. ii. Cable operator had to: (505 of the Telecommunications Act of 1996), had to do one of three things: Fully scramble or otherwise block, or Limit transmission to hours when children are unlikely to be viewing; Safe Harbor (admin regul. 10 p.m. - 6 p.m. ) iii. Precendent. Denver Area Case: three provision in that case that the FCC tried to use (only a plurality opinion as to the first bullet, only a plurality with respect to the other two being struck down, NOT TEST USED): Allowed cable operators to choose not to carry certain offensive channels. (Upheld by court) Separate a single channel and block it unless you were requested in writing to let it in. (Struck it down) Prohibits the display of sexually explicit materials on public television stations (struck it down) iv. Lawsuit filed to attack the third option (the Safe Harbor above). v. Holding: Kennedy, the Court held that because the Federal
Government failed to show that section 505 was the least restrictive means to further its interests, requiring cable television operators to fully scramble or limit time when sexually-oriented programming was transmitted violated the First Amendment's free speech guarantee. In finding section 505 a content-based regulation, Justice Kennedy wrote for that Court that "[i]f a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest. If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative." In dissent, Justice Stephen G. Breyer maintained that the majority had not made a "realistic assessment of the alternatives."

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Least restrictive means would have been a voluntary household-byhousehold block. So this was not the least restrictive and couldnt pass the Strict Scrutiny test. They got the compelling interest part, but not the least restrictive means part. 5. Ashcroft v. ACLU a. Court Addresses holding in Reno v. ACLU: Congress passed the Communications Decency Act of 1996 (CDA) which prohibited transmission over the internet of obscene and patently offensive material (not defined. Court said its unconstitutional b/c: i. Content based ii. Overbraod b. As a result of Reno Case Congress then passed the Child Online Protection Act (COPA). Knowingly and with knowledge of the character of the material, in interstate or foreign commerce, making any communication for commercial purposes that is available to any minor and includes any material that is harmful to minors. So three areas: i. Covers www ii. Covers only communication made for commercial purposes iii. And restricts only the narrower category of material that is harmful to minors c. Harmful to Minors is not overbroad in this case like in the RENO case b/c applying Miller Standard (Community Standards) you can tell what it is. d. Issue: Does application of Community Standards violate first Amendment? e. Holding: No. Not facially violate. f. Any variance caused by the statutes reliance on community standards is not substantial enough to violate the First Amendment and does not by itself render the statute substantially overbroad. g. Notes: i. Prior cases they relied on included Hamling (distributing by mail) and Sable (telephone transmission). Both cases used community standards. Some argue that these should not be applicable b/c you can control to whom transmission occurred. ii. Claimant is Likely to win on merits so the injunction is issued by lower court. So did the Court abuse their discretion when saying that they would win on the merits. See next case . . . 6. Ashcroft v. ACLU (II) a. Is COPA least restrictive means? b. No. They do have compelling interest but . . i. Could have used blocking and filtering software as an alternative ii. And the software would have been more effective b/c it would blocked also the foreign material. c. Rule: Is there a less restrictive means? Impliedly that less restrictive means would be more effective. Use more effective language on exam. d. Real issue is that gov. failed to show that there wasnt a least restrictive means. Thats why they are not abusing their discretion in issuing the injunction (see above). H. Control of Fighting Words and Offensive Speech Not protected by 1st Amendment 1. Cantwell (1971) -

vi.

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2. Chaplinsky (1942) last time that the court upheld a conviction relative to a claim to

that the speaker was protected. Language in this case was directed at one particular individual. 3. Ef the Draft Case(1987) a. Dude wears Fuck the Draft t-shirt in city hall. Charged with disturbing the peace under municipal ordinance, which makes it unlawful to interrupt a police officer in the performance of his duties. b. Holding: was overbroad unconstitutional. Ordinance criminalized a substantial amount of constitutionally protected speech and accords the police unconstitutional discretion in enforcement. c. Fighting Words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace are not protected by the Constitution (Chaplinsky) 4. City of Houston, Texas v. HIll OVERBROAD. i. Language says any speech that in any manner interrupts an officer too ambiguous ii. Covers speech that isnt even criminal iii. Cover speech that is protected by the First Amendment c. Notes: Lewis v. New Orleans had ordinance that made it a crime for someone to curse at the police during course of duty. You gd mfer 5. R.A.V. v. City of St. Paul, Minnesota (1992)

a. Houston Ordinance, police officers, intersection, yelling b. Court says that the City Ordinance is unconstitutional on its face b/c it is

a. Minnesota Supreme Court reads the statute to be limited to Fighting Words trying to bind the Supreme Court b/c they cant review that. b. arouses anger, alarm or resentment in others = fighting words. c. Minnesota Statute said Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor. d. Scalia writes Opinion: 9-0 decision only five on his opinion though. St. Paul ordinance drew a distinction between statements of hate, it outlawed ones based on religion etc, not on the basis of sexual orientation . . . those who wish to use fighting words in connection with other ideas, example union membership or human sexuality are not covered under this statuted. e. RULE: CONTENT BASED DISTINCTIONS WITHIN A CATEGORY OF UNPROTECTED SPEECH WILL HAVE TO MEET STRICT SCRUTINY (but two exceptions:) i. Except permissible if it directly advances the reason why the category of speech is unprotected (Ex. Obscenity law can prohibit the most sexually explicit material without having to ban EVERYTHING that is obscene) ii. A law is not content based if it is aimed at remedying secondary effects of the speech. (like the Paris Theater case, not banning b/c of the content, but b/c of effect it has on quality of life).
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f. Issue: If its fighting words (not protected) how can they be exonerated? g. Cant value one type of unprotected speech over another type of unprotected speech!!! h. One criticism is that if you follow this to its logical conclusion it does away with the fighting words category altogether. But that is not what the opinion stands for. 6. Missed some stuff: get it from Maria I. Commercial Speech 1. Missed some stuff get it from Maria 2. It is argued that commercial speech test is actually intermediary not strict scrutiny. Its in the middle. 3. Virginia State Pharmacy Board v. Virginia Citizens Consumer Council a. Blackmun reasoned that this case concerned not only commercial regulation, but the free flow of information to the public. b. This case was just as much about the consumers right to receive information as it was about the pharmacists right to provide it c. The right to free speech is just as much about the listener as it is about the speaker d. The Commonwealth of Virginia justified its enactment of the regulation on the grounds of maintaining the professionalism of pharmacists, asserting that aggressive price competition among pharmacists would make it difficult for pharmacists to provide the proper professional services Prof says it is overriding interest that didnt hold water. e. Blackmun responded that while regulation of the pharmacy profession was both necessary and within the prerogative of the several States through their police party, the statute promoted consumers ignorance, effectively keeping them in the dark about prescription drug prices. 4. Central Hudson Gas & Electric Corp. v. Public Service Commission (1980) a. Determine whether the expression is protected by the 1st A. b. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. c. Whether the asserted governmental interest is substantial. d. Determine whether the regulation directly advances the gov interest asserted e. Determine whether it is not more extensive than is necessary to serve that interest 5. Lorillard Tobacco Co. v. Reilly (2001) a. Co. argues that this is content based discrimination so it should receive strict scrutiny. Court cant deny that it is content based. b. Two separate state prohibitions/suppressions: i. 1,000 foot radius of school or playground: Met all the other parts of the Central Hudson Test, EXCEPT, NOT narrowly tailored (was more extensive than necessary to advance the substantial state interest in preventing underage use. ii. Other requirement that ads be higher than 5 ft. Didnt even meet the third prong of Central Hudson b/c kids could be different heights and even if shorter they could just look up.
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c. OConnor Opinion: In Boston 1,000 ft. basically means there is a complete prohibition. d. Holding: Govnt regulations for sales withstood First Amend. Scrutiny. Reg for advertisement didnt (see above). 6. Thompson v. Western States Medical Center (2002) a. In this case, unlike the last one, they dont even try to argue that Central Hudson shouldnt apply. So, its going to apply. b. Court concludes that 503A provisions regarding advertisement and prmotion amount to unconstitutional restrictions on commercial speech. c. Drug compounding is a process by which a pharm or doctor combines, mixes or alters ingredients to create a medication tailored to the needs of an individual patient. Gov fails to demonstrate that the speech restrictions are not more extensive than is necessary to serve those interests. The fact that the FDAMA would prohibition seemingly useful speech even though doing so does not appear to directly further any asserted gov objective confirms the courts belief that there prohibition is unconstitutional 7. Notes: Central Hudson test is signif stricter than rational basis! J. CH. 2: TIME PLACE AND MANNER RESTRICTIONS 1. Up tot now all our cases generally concerned content. Now, we are not talking about content. We are talking about the Govs ability to restrict speech in some public arena with respect to either the time or the place or the manner that the speech utilizes. 2. Schneider v. New Jersey, Town of Irvigonton (1939) a. Town prohibits distributing leaflets to willing participants on the sidewalk. b. Gov interest in preventing littering. c. Court: govs interest isnt sufficient of prohibit the classic first amendment exercise of distributing leaflets to willing recipients. 3. Minimum Access v. Equal Access to the Public Forum a. Roberts: Wherever the title of streets and parks may rest, they have memorial been held in trust for the public, have been used to discuss public questions . . . such use has from ancient times been a part of the privileges, immunities of citizens. b. Holmes: For the Legislature absolutely or conditionally to forbid public speaking in a highway or public park is no more an infringement of the rights of a member of the public than for the owner of a private house to forbid it in his house. 4. Frisby v. Schultz a. State has a strong interest in protecting a womans freedom to seek lawful medical services in connection with a pregnancy, ensuring the public safety and order and in residential privacy. b. City has law that establishes a 36 foot buffer zone on a public street from which demonstrators are excluded passes muster under the 1st A, but that several other provisions of the injunction do not! c. City argues:

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5. ESTABLISH FORUM, THEN ASK IF IT IS CONTENT BASED;

This is not a public forum! (its a nice quiet neighborhood, even though it has a public street). So 1st A picketing rules shouldnt apply. d. OConnor says i. That the only thing we need to look at is FOCUS PICKETING (FOCUS PICKETING IS BANNED) the ordinance doesnt preclude actually picketing up and down the street, but instead just doing it in a single little location. ii. Interest of the Picketer is claiming 1st A and resident is claiming that as an occupant they have an interest in not being disturbed. iii. OConnor: PRIVACY RIGHT PREEMPTS THE 1st A right here. OConnor is worried about what happens when the building is part business and part residence b/c it would lower the privacy interest to make the 1st A right more important. e. Brennan Dissent: i. Ordinance is not narrowly tailored. To ban all focus picketing is too much. If you put a time limit on it, like, 2-4 that should save the First A. Claim.

i.

THREE (3) TYPES OF FORUM: a. Traditional i. if gov regulation is content based it must show a compelling government interest and that the restriction is narrowly tailored to achieve that interest ii. if regulation is not content based a (1) reasonable time, place, manner restriction (2) must be narrowly tailored to serve a significant government and (3) leave open ample alternative channels of communication b. Limited/Designated; and i. Basically the same rule as Traditional. Perry Educational Assoc. Case (whether the Union elected by teachers had exclusive access to the internal mailing system of the school as opposed to allow the competing union after they lost to get messages to the teachers. Court lays out the public forum structure for the first time). ii. Good News Case: If Gov opens up prop that it doesnt have to open up, then the Gov can choose not to have a certain type (content, subject matter), but if they allow some speech they cannot exercise viewpoint discrimination. This is sort of sue generis c. Non-Public i. Gov can prohibit most things but they cannot exercise viewpoint discrimination. 6. Madsen v. Womens Health Center, Inc. a. Definitely a public forum. b. Content base? i. Protestors argue that it was content based b/c only those opposed to abortion were prohibited from protesting.

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ii. Court says, no, not content based. c. Court fails to apply the time place manner framework for non content based discrim b/c this isnt a statute so that test doesnt apply. Statutes/Ordinances are remedies imposed for violations of threatened violations of a legislative or judicial decree. THIS WAS JUST AN INJUNCTION. (Dissent totally disagrees with the role of an injunction and says that if its an injunction it should have a more lenient test than that of legislation) (another dissent says the opposite; Scalia). d. Instead he uses an intermediate test (since this isnt content based still doesnt get strict scrutiny): (Rehnquist): Whether the challenged provision of the injunction burden no more speech than necessary to serve a significant government interest. e. Court upholds the 36 foot buffer and the noise portions b/c do not burden more than necessary. f. Strikes down prohibition on the image and 300 ft no approach zone provisions b/c they burden more speech than necessary to preserve the govnt interest in access to health (can just shut the blinds). g. Scalia says that if this was a labor dispute it would be ripe for summary judgment, b/c it would be so easy to say that this was peaceful, etc. Makes strong statements about the 1st A when it is incorporated in a case. (Hobsons choice: only one choice, Hobson rented horses in England, you got the next one, no choice). 7. Hill v. Colorado a. 1993 Statute that regulates speech-related to conduct within 100 feet of the entrance to a health care facility. b. Traditional Public Forum, for sure. c. Content Base? i. Harder to tell than in the Madsen case b/c this provision includes oral protest, education, or counseling (Scalia argues that this must make it content based b/c you have to know what is being said in order to know if it is prohibited). ii. Majority says this is content neutral, three reasons 1. It is only regulation of a place where speech may occur not a regulation of speech. 2. Was never adopted b/c of disagreement with a message - cites SC of Colorado that said the reason for adoption was b/c of the experience of disturbance of the peace in the abortion controversy. 3. There is an overriding state interest in protecting access to clinics and to ones privacy iii. Between the last case and this one there was a NY case that had a 15 ft zone where protesters couldnt go and 15 ft buffer zone around every person around each person entering the clinic that was floating. Ct. upheld the regular 15 ft zone, but not the floating one. 8. Snyder v. Phelps (Westboro Church Case) a. Public Forum/ Content Based/

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b. No state regulation difference or court injunction this is how this case differs from the other cases we have read regarding the protesting. c. Freedom of speech of protestors v. claims of Mr. Snyder under the IIED tort. d. Main issue is whether it is a matter of public concern. Even if victim of IIED, if the speech is a matter of public concern it is protected under the 1st Amend. (1st amend preempts) e. Content, Context, Form f. Argument by Snyder for context: my sons funeral; therefore it has no public interest. Court says no content is so broad that even though related to sons funeral it doesnt under mind the content. g. J. Breyer, concurring: says must book narrowly and limit it to its facts because may be situations where you may have a set of facts that might be of public concern but the injury is such that its going to prevail over the 1st amend. But here, Westboro was 1000ft away, peaceful, complied with police directions and could not be seen or heard from funeral ceremony. Therefore, in this case, Westboro prevails and is protected under the 1st amendment. h. PICKETING WILL FALL UNDER A TIME, PLACE, AND MANOR RESTRICTION. SUBSTANTIAL INTEREST, NARROWLY TAILORED. i. Its speech is fairly characterized as constituting speech on a matter of public concern, Connick, 461 U.S., at 146. This is the deciding factor, just because it was at a funeral didnt transform it to a matter of private concern. j. Courts analysis is to ask: what was said, where it was said, and how it was said. k. Alito dissent: this was a private individual, private matter, so it wasnt a public concern and the 1st Amendment Right should not preempt here. This was a private person and a private harm. l. Remember that that the court is really asking if they should uphold damages award to family, in a way. The court is not saying here that there wasnt emotional harm as proved at trial. They are just saying that it isnt actionable for damages b/c protected by 1st Amendment. m. Garsaud says: the shocking part was that they had already picketed 600 funerals. 9. Lee v. International Society for Krishna Consciousness a. Big question here is whether this is a public forum or not? b. Port Authority adopted regulation forbidding within terminals solicitation of money or distribution of literature. They were in the airport passing out handbills and asking for $. c. Holding: Terminals are non-public for and that the test is reasonableness in a non-public forum. Not like a park or playground, not developed for purposes of the exposure of ideas. GOV DOES NOT CREATE A TRADITIONAL PUBLIC FORUM THROUGH INACTION. d. Rule: Traditional public forum is property that has as a principal purpose the free exchange of ideas. But this was not public.

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First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

e. Since not public forum, is it reasonable to prohibit? Yes, b/c right outside on the sidewalk they can do whatever they want (Port of Authority allows it). f. 5 to 4 vote with respect to reasonableness to distribution of leaflets. g. As for money issue, Rehnquist and four others (including Oconnor) conclude that solicitation of money can be prohibited its reasonable). i. They allow it outside ii. It could impede flow of traffic. h. Kennedy says that this is a public forum and the analysis is wrong b/c we didnt originally have airports, etc. People gather here. New facilities should be considered in context. Should we protect the new spaces or not, instead of just trying to compare them to a park or something. i. OConnor would relate the airport issue to a shopping center. Shopping center case in Marsh v. Alabama, streets in a company town were just like public streets. Then suburban shopping centers, inside them is protected? Labor dispute picketing of a shoe store that was in a mall, and the court said this is just like Marsh v. Alabama, 1st A claims are recognizable. Subsequent case in shopping center with picketers opposed to Vietnam. The court said you cant. Then finally they said in another case that Private Malls are private spaces, not public forum. K. Speech on Private Premesis 1. What are gov interests in regulating signs on private property? a. Safety, mostly. 2. City of Ladue v. Gilleo (1994) a. City had ordinance against most signs. Gilleos sign was in window peace in the gulf. b. Ordinance prohibited homeowners from displaying any signs on their property except residence identification signs, for sale signs, and signs warning of safety hazards violates a residents right to free speech. c. Special respect for individual liberty in the home has long been part of the culture and law that principle has special resonance when the government seeks to constrain a persons ability to speak there. Right to let people know what your ideas are on your property. d. Two distinct grounds for challenging the constitutionality of a municipal ordinance regulating the display of signs: i. Measure in effect restricts too little speech because its exemptions discriminate on the basis of the signs messages. ii. Such provisions prohibit too much protected speech. e. Court says that this was not content based discrimination. They kind of had to do this in order to avoid the end of the inquiry. If its not content based, is the state allowed to prohibit you from placing signs on your own property. f. Case by case, but this one prohibits posting too many signs that are of political speech. Here not just politics, but general policy issues in society. 3. Morse vs. Fredericks (Bong Hits 4 Jesus Case) a. Because Olympic torch is going to be run past the school it was an official school event, band/cheerleaders, etc. went out on the side of the street to watch it go by.
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First Amendment Professor Garsaud Outline Prepared by Mary-Patricia Wray

b. Two statements are important: i. Students down leave their 1st A rights at the school house door ii. Students dont have the same 1st A rights as adults in other settings. c. This case references Tinker (Tinker Test): i. Two students wore armbands protesting war to school. Refused to take them off and were suspended. Sought an injunction from suspending them and disciplining them. ii. Students right of free speech vs. the Schools authority to keep order for educational purposes (interest in preventing disruption) iii. Schools may not prohibit student speech because of undifferentiated fear or apprehension of disturbance or a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. iv. In Tinker the school had allowed other symbols to be worn v. Rule: student expression may not be suppressed unless school officials reasonably conclude that it will materially and substantially disrupt the work and discipline of the school. d. In this case, Principle could reasonably think that sign held up with Bong Hits 4 Jesus was a disturbance to the schools policy against drug use. The disturbance was to the policy, and that was good enough to survive the Tinker rule. Upheld his suspension. e. Dissent says, this doesnt encourage anyone to use illegal drugs. 4. Jonson Flag Burning Case a. Flag Burning is expression which there is no compelling interest in prohibiting. b. It was content based, so they needed a compelling interest. c. Johnsons conviction is overturned. d. Facts of this case: republican national convention in Dallas. May be different. e. Response: fed gov passed a law prohibiting flag burning. Then the Court sturck that down. 5. Where you have a combo of speech and conduct, the question is whether the govs action is trying to preclude the consequences of the conduct in the sense that it is undermining the gov. interest; or, whether by prohibiting the expression through conduct the gov is really concerned with the message thats being communicated.

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