I.
The Beginning: Understand the History and Theory of the Constitution and Article III
a. Declaration of Independence: the Purpose of our government
1. The governments purpose is to protect rights (Nazi case); yet there are strict limits on the
government’s actions to also protect those rights
b. Judicial Review: role of SCOTUS in 1st A context
i. Under the orthodox theory Congress and the Judiciary are on equal footing
1. Constitution is a manifestation of People’s will; Constitution creates & controls both
a. Constitution gives SCOTUS the Supreme Power of its interpretation
b. Gives Congress the power to express people’s will
ii. Marbury v Madison
c. Constitutional Interpretation: judgment v revision
i. There is separation powers concern when courts are interpreting laws by “rewriting” them
1. It is proper for the branches to defer as the interpreter or maker of law
2. Fortunately, the Const. is written, unfortunately, it is ambiguous (cruel & unusual)
ii. To resolve the ambiguity in the Constitution, often look to several resources:
1. Original Understanding
a. Looking at context of original ratifiers and drafters to understand text
b. Problems: (1) out of date; (2) often unclear
2. Precedent
a. Supremecy & Stare Decisis: deference to the Court’s prior holdings to ensure stability
b. Problems: (1) cases of first impression; (2) precedent is wrong
3. Legal Traditions
a. Seeking stability in the law by looking to authoritative natural sources for answers: legal
traditions and state’s customs and traditions (stare decisis)
b. Problems: (1) cases of first impression; (2) bad traditions
4. Consensus Values: diff b/w this & legal trad’s can be fuzzy (clearer as move into past)
a. Again looking for authoritative natural source of answer’s in “people’s constitution”
theory
b. Problems: (1) creates a majority rule/norm (the constitution strives to put these rights
beyond control of democratic majorities); (2) instability; (3) stepping out of the legal
scope for answers
5. Policy Judgments
a. Decisions have policy implications so should review the policies that may be affected.
b. Think: justice is the purpose of the constitution, we must evaluate a decisions effect on
justice and thereby its constitutional purpose
c. Problems: (1) structural concerns (SOP) – legislature makes policies; (2) oftentimes no
clear answers
iii. Judgment v Will
1. Judgment
a. Text, precedent, original understanding
2. Will
a. Test, precedent, legal traditions, consensus of popular values, policy
iv. Several methods of interpretation have developed: Activism v. Restraint
1. Activist conception of judicial role
a. Non-deferential to legislature
b. Interpretation: view text in light on consensus values, policy concerns, and
contemporary concerns
c. Purpose: to protect minority rights
d. Minority on SCOTUS
2. Restraint:
a. Deferential to policy making institutions – executive, legislature, state legislature
b. Text: intent and legal traditions (emphasizing the oldest)
c. Purpose: respecting majority rule; majority rule stems from Constitution
3. Calder v Bull
a. Justice Chase: Const. protects natural justice by implicit unconstitutionality to protect
minority rights
b. Justice Iredell: If not expressly constitutional then it is Congress’ authority to decide, no
implicit unconstitutionality
v. Looking at the text as a Living or Historic Constitution
1. Living
a. Purpose was to set our general charter that would be flexible to respond to changing
facts and values
b. emphasis on policy and consensus
2. Historic
a. Constraint is essential: the standards included are meant to serve as a restraint on gov’t,
if allowed to change it is merely an aggregate of suggestions
b. Emphasis on original understandings and oldest legal traditions
vi. And then the parties – Liberals v Conservatives
1. Liberals
a. Activists & living constitutionalists; judicial supremacy
2. Conservatives
a. Restraint & historic constitutionalists
II. The Free Speech Provision: History
a. The Philosophy of Free Speech: why is it valued?
i. 3 important rationales:
1. (1) Marketplace of ideas: the belief that truth will ultimately win out in competition
a. John S. Mill & O.W. Holmes
b. Problems: extremism & “marketplace” concerns may be conflicting
2. (2) Self-Governance: debating politics is foundation of self-governance
a. Problem: may just be limited to political speech
b. BUT would protect those suggesting alternatives to democracy
3. (3) Individual Autonomy: we must protect and respect basic freedoms
a. very broad consideration of freedom
ii. Other rationales:
1. Checking function of free speech: despite form of gov’t this is useful (freedom of press)
2. Safety Valve: allow crazies to blow off steam, allows for membership recognition
3. Article of Peace: quid pro quo reducing dangers/confrontations in politics
a. When repression does not loom stakes are lowered
b. The History of the 1st Amendment:
i. Ratified in 1791 in context/response to the Sedition Act Controversy
1. Federalists were concerned about domestic revolutionary activities (French sympathizer)
2. Forbade writings against US: POTUS & Congress but not VP (Jefferson – leader of opposite
party): and was used to go after Jeffersonians
ii. 3 Schools of Thought emerged from the events
1. (1) Federalist: Blackstone
a. no prior restraints but subsequent punishments were okay
b. Sedition Act was a subsequent punishment so Constitutional
c. SCOTUS was federalists; granted no cases cert, but in hearing circuit affirmed
2. (2) Jeffersonian: 1A is federalism provision & state should punish sedition (states rights)
a. no federal sedition act, no substantive view on free speech
3. (3) Madisonian: agreed that federalism provision but more complex
a. US has democratic gov’t, in a democracy it makes no sense to censure political speech or
criticism
b. Violates the underlying basic democratic structures of the Constitution
iii. Bottom-line: the split wa along party lines but not much freedom for political speech in 1790s
III. The Free Speech Provision: Dangerous Speech: Advocacy of Unlawful Conduct
a. First: Decisions of the Sedition & Espionage Act in the WWI Era
i. Shaffer v US (1919)
1. Facts: Anti-war sentiments in book that was mailed that purportedly obstructed enlistment
2. Analysis: cites Bad Tendency Test & Constructive Intent
a. Bad Tendency Test: if speech has bad tendency then it is punishable;
i. from English C/L (Blackstone) holding that subsequent punishment of speech
proper if had pernicious tendency
b. Constructive Intent: infer intent from the natural & probable cause of speech
ii. Cites Masses Publishing v. Pattern (1917: Judge Learned Hand)
1. Express Incitement Test: look for express terms that advocate unlawful conduct
a. bad tendency is too broad; anyone is subject to censorship
b. This is more speech protective but may be too speech protective
iii. Schenck v US (1919: Holmes)
1. Facts: passing literature saying conscription violates 7th Amendment & assert your rights
2. TEST: Clear & Present Danger Test (w/r to circumstance & nature of words: fact sensitive)
a. Elements of test:
i. (1) clarity of danger – probability of danger likely to flow from speech
ii. (2) imminence of danger – presence
iii. (3) degree of danger
iv. (4) intent
v. (5) express words of law violation
b. the modern test includes 1-4, and arguably #5
3. Other Test w/r the Schneck
a. Bad Tendency: low clarity req’t, no imminence req’t, no degree of danger req’t
(pernicious), intent is part of test but constructive so we infer intent not really necessary,
no req’t for express words
b. Express Incitement: only looking to words, no intent necessary
b. Establishing the Clear & Present Danger Test
i. First: it Bad Tendency is used and abandoned
1. Frohwerk v US (1919): a little breath might kindle a flame, bad tendency test
2. Debs v US (1919): natural tendency & rsbl probable effect of words to obstruct &  must have
specific intent
3. Abrams v US (1919): Fliers thrown out of window by Russian about Russian revolution
a. Holmes Dissent: Cannot sustain conviction unless speech creates or is intended to
create a clear and present danger
i. Wants higher clarity, more imminence, & greater degree of danger
ii. Policy: marketplace of ideas
4. Gitlow v NY (1925): NY statute prohibiting advocation of gov’t overthrow used to arrest left
wing socialists advocating violent overthrow of gov’t (red scarof 20s)
a. Of note: first application of 1A to states through 14A
b. Majority: first speech specific statute passed by states
i. HOLD: look to rsblness of leg judgment about perniciousness of speech; if leg
judgment rsbly believes pernicious then it is constitutional
ii. No protection for speech at all
c. Holmes Dissent: every idea is an incitement, cannot defer to leg judgment
i. Need clear & present danger test
ii. Conflicting reason: if in long run beliefs are to be accepted need open
marketplace, good ideas will defeat bad, but once ideas become clear and
present danger then censorship is proper
5. Whitney v CA (1927): Similar facts as Gitlow, freedom of association
a.
Majority: Sanford writes same opinon as Gitlow
i. speech specific - analyze whether leg judgment is rsbl that speech is pernicious
b. Concurrence (Brandeis): Calling for clear & present danger
i. History: framers, accuracy problems, sedition act & federalists
ii. NEW Policy: in democratic self-governance the real danger is inert & apathetic
people, need engaged citizenry
1. Remember Holmes cited marketplace of ideas
iii. Bad Speech: remedy for bad speech is more speech, counter-speech makes
peaceable discussion not legislative censorship
iv. Application: (1) clarity, (2) presence, (3) danger [maybe (4) intent]
1. A serious threat is required for justification
ii. Adoption of the C&PD Test
1. Dennis v. US (1951): Communist party advocating the destruction of US gov’t by force
a. Charge: Smith Act violation: prohibits overthrow of US gov’t by force/violence
b. HOLD: used the C&PD TEST
i. “although no case subsequent to Gitlow or Whitney has expressly overruled the
majority opinions…there is little doubt that subsequent opinions have inclined
towards the Holmes-Brandeis rationale”
ii. BUT, SCOTUS does not use the H-B C&PD test, they use Learned Hand’s
approach from his lower decision in Masses
c. C&PD TEST
i. Court must ask “whether gravity of evil, discounted by its improbability,
justifies such invasion of free speech as is necessary to avoid dangers”
1. If danger is high, then requisite probability is lowered
2. This is the 3rd or so C&PD test offered
d. Black Dissent: this is not the real C&PD test, this test leads to censorship
2. Brandenburg v Ohio (1969):
a. Facts: leader of KK convicted under Ohio Criminal Syndacism Statute of advocating the
duty, necessity, or propriety of crime, sabotage, etc.
i. Advocacy of political change through violence is prohibited
b. RULE: “speech is unprotected if there is advocacy directed to inciting or producing
imminent lawless action & is likely to incite or produce such action”
i. No mention of C&PD
c. FINAL TEST: elements
i. (1) Clarity: “likely to produce that action”
ii. (2) Imminence: “producing imminent”
1. How imminent? No clear thought but flexibility accommodates the
seriousness of the lawless action
iii. (3) Danger: “lawless action”
iv. (4) Intent: “directed to”
v. (5) Express words: “advocacy”
1. most lower courts say advocacy is req’d even though unclear in test
d. Policy: balancing the social value of speech w/ state’s interest in restriction
e. Brandenburg TEST v Solicitation
i. If speech says rob banks to support revolution – triggered, protected by Brand.
ii. Criminal to another “hey let’s go rob bank” = solicitation
1. Solicitation is criminal; criminal speech is unprotected
f. Concurrence (Black & Douglas)
i. We should steer clear of C&PD; elements are ambiguous & allow censorship in
times of crisis
3. Notes of Application
a. Hess v Indiana (1973): says will take streets later; protected b/c not imminent
b. NAACP v Claiborne (1982):  says if people not follow boycott he will break their necks;
protected b/c violence did not occur for months
IV. The Free Speech Provision: Dangerous Speech: Hostile Audience Response
a. Initial Thoughts
i. This aspect is very similar to unlawful conduct b/c in both cases a speaker is speaking to a crowd & there
is a chance violence may erupt
ii. SCOTUS applying C&PD test w/r to when gov’t can punish individuals for speech provoking a hostile
audience reaction
b. The Heckler’s veto
i. If audience becomes rowdy, the speech will be shut down
ii. Think: would this allow NAACP to go to KK rally, get rowdy and shut down their free speech rights?
c. The First Cases: Employing C&PD Test
i. Cantwell v CT (1940): Jehovah’s witness plays record w/ anti-catholic propaganda; upsets listeners and he
is arrested
1. Lower Court: heard b/w Gitlow & Whitney, applies C&PD test
2. HOLD: “when clear & present danger of riot, disorder, interference w/ traffic, or other
immediate threat to public safety, peace, & order State can prevent or punish
a. BUT State may not unduly suppress communication under guise
b. Overturned conviction; asked to play record, no intent to breach peace, no express
language directed at individuals
ii. Terminiello v Chicago (1949): convicted of disturbing peace; calling opponents bedbugs, slimy scum, snakes
1. HOLD: “States cannot punish speech w/o clear & present danger of serious substantive evil that
rises above inconvenience, annoyance, or unrest”
iii. Feiner v NY (1951): convicted for speech sharply critical of pres. & local officials for inadequate record on
civil rights; police asked him to leave, he refused, was arrested
1. Analysis: applies Cantwell C&PD test looking at police motive, ’s intent & express language
2. HOLD: uphold conviction but concerned w/ heckler’s veto & good faith police effort before
making arrest to control audience
3. Black dissent: police must first take all rsbl efforts to protect speaker (crowd control) not arrest
speaker; today’s majority would side w/ Black’s dissent
d. The New Line: Following Black’s Feiner Dissent
i. Edwards v SC (1963): 187 protestors, 30 police, 200-300 crowd (mostly unsympathetic)
1. Facts: civil rights protestors planning march to capitol arrest/convicted after ignoring police
threat to disperse; hostile crowd but no (threats of) violence
2. HOLD: police presence sufficient to meet fsbl possibility of disorder, no threat of violence
3. “CN does not permit a state to make criminal the peaceful expression of an unpopular view”
ii. Cox v. LA (1965): 2000 protestors, 75-80 police, 100-300 onlookers
1. Facts: speaker objection to segregation at lunch counters, urged a sit-in; some members of
audience found speech inflammatory, speaker was arrested the next day
2. HOLD: overturned, threat of violence based solely on white audience but no threat, speakers not
violent, police testimony that they could have handled the crowd
iii. Gregory v City of Chicago (1969): 85 protestors, 100 police, 1000 onlookers (threw eggs)
1. Facts: civil rights protestors convicted for disturbing the peace; during march angry group
threatened, and threw rocks/eggs.
2. HOLD: convictions violated DP b/c no evidence of disorderly conduct on behalf of speakers
3. Appears as if court is following Black’s dissent in Feiner: control audience to protect speaker
e. Where the TEST stands today: SCOTUS never adopts clear test so options:
i. Cantwell C&PD Test
ii. Brandenburg C&PD Test: substituting provocation for advocacy
1. Elements: (1) provocation, (2) directed, (3) to inciting/producing, (4) imminent lawless action,
(5) likely to produce such lawless action
iii. Black’s Feiner approach / Gregory
1. 1A requires police to first control crowd threatening violence & stop speaker only if crowd
control is impossible & threat of breach is imminent
V. The Free Speech Provision: Dangerous Speech: Fighting Words Doctrine
a. Initial Thoughts
i. Fighting words, speech that is directed at another and likely to provoke a violent response, are
unprotected by 1A.
b. Fighting Words are Unconstitutional: Chaplinksy
i. Chaplinsky v NH (1942): Jehovah witness dispersing literature on street corner, gives speech denouncing
other religions as racketeers; told listener he was a “God damned racketeer,” “damned Facist,” etc.
1. Analysis: Develops 2-level theory
a. Right to speech is not always absolute under 14A, there are certain well-defined, narrow
areas where prevention & punishment are constitutional:
i. Lewd & obscene, profane, libelous, and insulting or fighting words
b. “…insulting or fighting words – those which by their very utterance inflict injury or tend
to incite an immediate breach of peace.”
c. SCOTUS does not use Brandenburg b/c wants to delineate a bright-line category to
supplement Cantwell C&PD test
2. HOLD: overturned;
c. Application of Chaplinsky: No More Convictions
i. Narrowing to direct personal insults
1. Street v NY (1969): man convicted after burning flag after learning James Meredith had been shot
saying “we don’t need no damned flag..if they let that happen to him we don’t need no damned
American flag.”
a. HOLD: remarks not inherently inflammatory as to come w/n narrow class of fighting
words
2. Cohen v CA (1971): convicted for disturbing peace by wearing jacket that read “Fuck the Draft.”
a. HOLD: no individual actually or likely present could rsbly had regarded the words on
’s jacket as a direct personal insult.” (see TX v Johnson)
ii. Fighting Words Laws Invalidated as Vague & Overbroad
1. Goading v Wilson (1972): convicted under GA law prohibiting another person to “use to or of
another, and in his presence opprobrious words or abusive language, tending to cause a breach
of peace” by saying to police “White son of a bitch, I’ll kill you.”
a. HOLD: statute overbroad; state courts failed to interpret the statute narrowly to
prohibit only unprotected fighting words
iii. Fighting Words Laws Unconstitutional b/c Content-Based Restrictions
1. RAV v City of St. Paul (1992: 9/0, Scalia): city ordinance prohibited placing on private or public
property…including but not limited to burning cross or swastika which one knows or has rsbl
grounds to know arouses anger, alarm & resentment in others.”
a. RULE: CB based distinctions w/n category of unprotected speech still must meet SS w/
two exceptions
i. (1) if it directly advances reason why category of speech is unprotected
1. these areas can be regulated consistent w/ Constitution b/c of their
proscribable content but cannot be used as vehicles for content
discrimination unrelated to their distinctively proscribable content.
ii. (2) directed at remedying secondary effects of speech & justified w/o respect to
content.
b. HOLD: law UNCN, applies to fighting words insult only on basis of select topics in law
– race, gender, color, creed or religion.
iv. Bottom-line: SCOTUS uses 3 techniques in overturning fighting words laws;
1. (1) narrowed scope to only speech directed at person & likely to produce violent response,
2. (2) unconstitutionally vague or broad, and
3. (3) impermissible content-based restrictions
VI. The Free Speech Provision: Dangerous Speech: Pure Criminal Speech
a. No Protection
i. Pure criminal speech enjoys no 1A protection; If A tells B how to commit crime & B commits, A is liable
ii. Elements of solicitation
1. Intent to solicit, intent for solicitee to commit crime, act of solicitation
iii. When do we apply Bradnenburg / Chaplinksy & when do we go to pure criminal speech?
1. Advocacy & hostile audience involve groups in political context
2. Pure criminal/fighting looking to individual communication possibly w/o political context
iv. Factors: number of people, political context (or lack thereof), does action track trad’l definition of crime
b. True Threats: unprotected
i. Virginia v. Black (2003): individuals convicted under VA’s cross burning statute that prohibited cross
burning w/ an intent to intimidate a person or group of persons & cross burning is prima facie
1. RULE: true threat: “when speaker means to communicate a serious expression of an intent to
commit an act of unlawful violence directed to particular individual or group of individuals”
a. Speaker means to communicate – subjective
b. A serious expression – RPP
c. Of intent to commit act of unlawful violence
d. To particular individual or group of individuals – circuit split on direct comm’n req’t
ii. Distinguishing b/w Brandenburg & true threats
1. Watts v US (1969: pre-Black): “I will shoot LBJ”
a. HOLD: just hyperbole,
b. Reasoning: it was in political context, audience laughed, and it was conditional statement
2. Planned Parenthood v ACLA (2002: 9th): Nureberg files website; radical right wing website with
wild west wanted posters
a. Issue: Is this a threat or advocacy and therefore Brandenburg?
b. HOLD: true threat;
c. Analysis: means to comm.. serious expression of intent to commit act unlawful violence
i. Intentional communication
ii. Split of analyzing “serious expression of intent to commit unlawful violence”
1. (1) subjective: person intends to threaten
2. (2) objective speaker: rsbl person as speaker
3. (3) objective listener: rsbl person as listener
iii. Here: objective listener; particular history w/ posters so rsbl listener would infer
serious expression
iv. ALSO, can send private (true threat) message by public discourse even though
public discourse receives greater protection
3. Hess v Indiana (1973): “taking streets later”
a. HOLD: protected under Brandenburg; think Watts crowd speech in political context,
hyperbole, conditional
4. NAACP v Claiborne (1982): “we’ll break your neck if you shop at racist stores”
a. HOLD: cite Watts, not a threat; speech to crowd in political context, hyperbole, cond’l
VII.The Free Speech Provision: Dangerous Speech: Hate Speech
a. Initial Thoughts
i. SCOTUS recognizes no category called hate speech
ii. Category exists for 2 other reasons:
1. (1) Court’s use of other doctrines for hate speech purposes
a. using true threat, hate crime, libel
2. (2) the road not taken: other western democracies have hate speech laws
iii. Free speech Policy Considerations
1. United States: hate speech is protected
a. Marketplace: truth will win out
b. Democratic self government – no worries
VIII.
c. Individual autonomy: people can be Nazis if they want to
2. Canada (Regina v Keegstra)
a. Marketplace: groups engaged in hate speech damage the market; recipients may want out
b. Democratic self-governance: hate speech undermines democracy; non-participation
c. Individual Autonomy:
b. The Vehicles Used to Fight Hate Speech
i. Libel
1. Beauharnais (1951) group libel usage did not survive the libel restructuring by SCOTUS in 1960s
ii. Fighting Words
1. RAV v City of St. Paul (1992: 9/0: Scalia): city ordinance prohibited placing on private or public
property…including but not limited to burning cross or swastika which one knows or has rsbl
grounds to know arouses anger, alarm & resentment in others.”
a. If ban subset of larger unprotected category must be for same reason – virulence
b. BUT with subject matter distinction SS is triggered
c. RULE: law ok if for virulence or if subject matter and meets SS
i. SS TEST:
1. Compelling state interest: yes
2. Narrowly tailored, no adequate alternative: here could ban all hate
speech – loser
d. Concurrence (White): categories are not just subject matter but virulence & intensity
distinctions
i. HWVR, passes SS, points out Scalia’s problem of saying neutral law that would
restrict more speech is actually the least restrictive means for SS test
ii. Scalia responds: content neutral would assure gov’t is acting neutrally and not
punishing speech it b/c it disagrees
e. Bottom-line: makes it difficult for hate speech codes to survive; if prohibit only some
forms then impermissible CB not passing SS b/c neutral alternatives, if codes are
expansive & general then fail on vagueness & overbreadth grounds
i. Court not likely to move on this
2. Wisconsin v Mtichell (1993): after watching “MS Burning” black guy beats up white guy;  gets
sentence enhancement b/c selection of victim was based on race
a. HOLD: sentence enhancements directed at conduct not speech
b. Add’l: 1A should not be shield for actions that would be viewed as criminal or tort
c. Bottom-line: Under Mitchell it looks like St. Paul may be able to enhance sentencing
HWVR to determine if enhancement is triggered would still need to look at content of
speech
3. VA v Black (2003): individuals convicted under VA’s cross burning statute that prohibited cross
burning w/ an intent to intimidate a person or group of persons & cross burning is prima facie
a. O’Connor Majority: this makes distinction w/n category but distinction is based on
virulence (llok to history of cross burning)
i. BUT prima facie provision is no good – inferring intent is wrong
ii. May chill cross burners to express political views protected by 1A
b. Souter Concurrence/Dissent: This is subject matter distinction; doesn’t jive w/ RAV
c. Thomas: this is conduct, why are we looking at 1A; if conduct prima facie is rebuttable
and constitutional
d. Bottom-line: cross burning is protected speech & cannot be completely outlawed, but
gov’t may prohibit it when done as true threat
iii. Nowlin’s Bottom-line
1. Default: content based restriction triggers SS (per RAV)
2. This is default test for speech restrictions unless primary specific category covered above:
a. Advocacy, fighting words, criminal, true threat
The Free Speech Provision: Overbreadth, Vagueness, & Prior Restraint
a.
Initial Thoughts
i. Here, switching from content to manner & method of regulation; from words to statutes
b. Commonly Applied Challenges
i. (1) As applied challenge: common to 1A
1. not that the entire statute is unconst’l, but its application to your speech is unconst’l
ii. (2) Traditional Facial Challenge
1. The entire statute is unconst’l in all applications
2. Can blur over into the as applied challenge
iii. (3) Special Facial Challenge
1. Some applications are unconst’l & others are const’l but nonetheless entire statute should be
turned down
2. This is overbreadth: must knock entire statute down b/c:
a. (1) chilling effect
b. (2) selective enforcement
c. Overbreadth: The Strong Medicine
i. Initial Thoughts: Definition
1. A law is unconst’ly overbroad, if it regulates substantially more speech than the Constitution
allows to be regulated and a person whom the law const’ly can be applied can argue that it would
be unconst’l as applied to others
ii. Goading v Wilson (1972): GA law prohibiting another person to “use to or of another, and in his presence
opprobrious words or abusive language, tending to cause a breach of peace”
1. Challenge: if  went as applied or traditional they would lose – conduct was fighting words &
fighting words overall is okay
a. HERE must go through special facial challenge: unconst’l applications should result in
facial invalidity even though his speech was protected
b. That means going at overbreadth & look @ sweep of statute
2. HOLD: law unconst.; state judicial precedent did not construe/limit law to application against
unprotected speech so unconst’ly overbroad
3. Blackmun Dissent: (1) case or controversy (3rd party standing); (2) dude was guilty; (3) this
approach leads courts to knock down entire statute & simultaneously not drawing guidelines
iii. Broaderick v OK (1973): challenging OK law prohibiting political activities by gov’t employees
1. RULE: where conduct and not merely speech is involved, we believe that the overbreadth of
statute must not only be real, but substantial as well, judged in relation to the statute’s plainly
legitimate sweep.
a. Sweep
i. (1) area of unprotected speech State may properly regulate and (2) area of
protected speech that State may not regulate
b. Substantial, considering:
i. Ratio b/w const’l applications & unconst’l applications
ii. Importance of speech that is unconst’ly suppressed
iii. Will it create a problem for the jurisdiction
2. RULE: overbreadth only applies to speech specific statutes, if primarily conduct (it may be
applied to speech) then not covered
3. HOLD: some overbreadth, but not substantial, so overbreadth can be cured on case-by-case
analysis
iv. Brockett v Spokane Arcades (1985): who can raise a challenge based on overbreadth
1. RULE the person whose speech is unprotected, not the person on the const’l side of the line
a. If on const’l side then must present an “as-applied” challenge
b. Law does not want to wait for proper as-applied challenge to fix unconst’l law b/c
presumed chilling is going on (so may not happen)
i. If as-applied challenge comes then presumed no chilling and as-applied can then
fix statute
ii. BUT if law’s sweep covers range of protected speech & as-applied only covers
part of that range then law is not fixed and chilling is taking place
v. Problem of Narrowing Constructions
1. Initial timeline
a. (T1) statute; (T2) speech; (T3) narrowing of statute; (T4) overbreadth challenge
2. Osborne v Ohio (1997): pornography law making possession of nude photos illegal
a. HOLD: b/c strong medicine, accepting narrowing construction of SCOOH;
overbreadth defeated in most narrowing circumstances
b. Bottom-line: if court narrows then no overbreadth challenge
3. Oakes:
a. HOLD: legislature amendments that narrow do not defeat overbreadth challenge
4. Judicial v Legislative Narrowing
a. Legislative:
i. Ex post facto, cannot make retroactive law
ii. Narrowing is broadening: narrowing law saves an unconst’l law that initially
created no liability
b. Judicial
i. Courts are not barred by ex post facto, as long as fair notice then we are good
1. SC v Gooey: courts can do foreseeable broad but nor unforeseeable
ii. It is foreseeable that courts would take narrow interpretation of broad statute
1. Constitutional avoidance is settled canon of construction
iii. So this defeats overbreadth
c. This creates incentives:
i. Legislture to get it right the first time
ii. Courts that it is good to make laws const’l, to save statute
vi. Commercial Speech
1. RULE: overbreadth does not apply to commercial speech
2. Reason: chilling effect is set-off by profit motive
d. Vagueness:
i. Initial Thought: Definition
1. If rsbl person cannot tell what speech is prohibited & what is permitted; undly vague laws violate
DP whether or not speech is regulated
2. Truly a 5A & 14A DP doctrine but has special bite in free speech areas
ii. Speech Ramifications
1. Lack of notice or fair warning as to liable behavior chills 1A rights
2. Vagueness promotes selective enforcement which chills 1A rights
iii. Hypothetical Statutes
1. Vague & overbroad: “speech that annoys gov’t officials”
a. Annoying is vague – no technical legal meaning leaving people guessing as to meaning
2. Overbroad & not vague: “no expressive activity in park”
a. Express activity is clear but overbroad
3. Not overbroad & vague: “n unprotected speech in park”
a. Must guess as to protected & unprotected
iv. Procedure When Both Appear
1. Flipside: overbreadth first for facial invalidity then vagueness second
a. Policy: overbreadth is more developed
v. Bottom-line:
1. No specific test but SCOTUS wants greater precision when laws implicate free speech
2. Is law so ambiguous that rsbl person cannot tell what expression is forbidden & what is allowed
e. Prior Restraint: The Most Serious & Least Tolerable Infringement
i. Initial Thoughts:
1. Definition
a.
Administrative & judicial orders forbidding certain communications when issue din
advance of the time that such communications are to occur.
b. Looking for pre-approval to publish materials
c. RULE: licensing schemes are facially unconst’l in all applications
2. History
a. Prior restraints have been trad’ly disfavored b/c freedom of press concerns (Blackstone)
b. SO, most narrow reading of 1A means no prior restraints
3. Why Are They Disfavored?
a. Prevents speech from entering marketplace
b. Censors love to engage in censorship w/r to prosecutors
c. Effective in their chilling effect
d. Censors/prior restraints have much broader reach than prosecutors
4. Confusion of Prior Restraints v subsequent Punishment
a. Subsequent punishments often act as prior restraints (deterrence effect)
b. Violations of Prior Restraint req’ts often get subsequent punishments
ii. Licensing Schemes as Prior Restraints
1. MUST make difference b/w content-based & content neutral
a. Neutral – time, place, manner; parade limitations, etc.
iii. Requirements for Prior Restraints
1. Content Based
a. (1) prior restraint must be otherwise constitutional as subsequent punishment
b. (2) clear standards for granting license
i. City of Lakewood – if no clear standards then potential abuse of discretion
c. (3) Freedman safeguards:
i. (1) only a brief time of restraint before…
ii. (2) final judicial determintion on the merits
iii. (3) censor bears burden in that determination
iv. These are necessary but may not be sufficient
1. If not Freedman than unconst’l for sure
2. If there it is still possibly unconstitutional
a. Possibly only available for low-value speech (obscenity)
2. Content-Neutral
a. (1) prior restraint must be otherwise constitutional as subsequent punishment
i. CB = ISR
b. (2) clear standards for granting license – City of Lakewood
c. Freedman not needed per Thomas v Chicago Park District
iv. Injunction as Prior Restraint: Court Orders as Prior Restraint
1. Near v MN (1931): Saturday press published series of articles w/ defamatory & anti-Semitic;
perpetual injunction issued per MN law providing abatement, as a public nuisance, of malicious,
scandalous, & defamatory newspaper, magazine or other periodical.
a. HOLD: unconst’l; after the fact punishment (libel) is proper not injunction based on
past articles (prior restraint).
i. Prior restraints may be allowed w/ sensitive gov’t info or decency or advocacy
b. Dissent: not a prior restraint; repetitive behavior being punished not req’g pre-approval
2. Special Issues of Injunctions: are the more favorable than licensing scheme or censorship board?
a. Better:
i. Injunctions occur after speech: no prior submission to judge
ii. Judges making decisions of censorship rather than censors
iii. Injunctions are narrow; licensing schemes are broad
b. Worse:
i. Collateral Bar Rule: person cannot be punished for violating unconst’l law but a
person violating unconst’l injunction (prior restraint) can be punished.
1. May not defend against contempt collaterally on erroneous or unconst’l
grounds
2. For court order to be disobeyed must be set aside or violate & take
punishment
3. Requirements: How do they parallel statutory/admin schemes?
a. (1) must be otherwise const’l as subsequent punishment
b. (2) clear standards are built into judicial process
c. (3) CN injunction has no extra requirements –
i. Madsen v Women’s Health Center (1994): injunction for 36’ buffer zone around
abortion clinic not prior restraint; not b/c expression but past unlawful conduct
ii. courts have said CN injunctions are not prior restraints but still same analysis
d. (4) CB should track Freedman safeguards – Pittsburg Press v Pittsburgh Comm. on HR (1973)
i. (1) only a brief time of restraint before… (actually no restraint until…)
ii. (2) final judicial determination on the merits
iii. (3) censor bears burden in that determination
4. Injunctions & Nat’l Security
a. Pentagon Papers Case: NYTimes v US (1971): US gov’t sought injunction precluding
publishing of excerpts from DoD history of Vietnam.
i. HOLD: court order violates 1A
ii. Opinions:
1. Per curiam: prior restraint on political speech carries heavy burden – no
test language but some say SS other say super SS
2. Black/Douglas/Brennan: high interet in protecting the 1A & suspicion
of executive branch; test = would cause happening of threatened event
3. Stewart/White/Marshall: executive should watch employees; under
SOP courts should not to Exec.’s job, at least w/o express
Congressional authorization
4. Burger/Harlan/Blackmun: We are moving too fast; not too suspicious
& SOP says deference to Executive branch just want prima facie
b. Bottom-line: we do not know what the heavy burden is to properly suppress such
information.
i. Can punish the individual but not the papers (never has there been prosecution
of papers for revealing secrets)
IX. The Free Speech Provision: Obscenity
a. Initial thoughts
i. Obscenity was a category of unprotected speech in Chaplinsky: Right to speech is not always absolute
under 14A, there are certain well-defined, narrow areas where prevention & punishment are
constitutional…Lewd & obscene, profane…
1. Chaplinsky categories were simply based on a categorical balancing o value v harm
a. Balancing based upon:
i. Values: (1) marketplace of ideas, (2) dem. self-governance, (3) ind. autonomy &
ii. Harms: (1) offensive, (2) anti-social behavior (objectification of women or
moral corruption), (3) erosion of families
2. Problem: no definition of obscenity
ii. Quick history
1. Hicklin: adopted British test; bad tendency test looking at easiest people to be corrupted
2. Ulysses: overrules Hicklin; test looks to average person & work as a whole
3. Social Changes: in mid-20th C we start to get new technologies, new ideas, etc. (1960s peaks)
b. Obscenity: Case Law Development
i. Roth v United States (1957):
1. HOLD: obscenity is category of unprotected speech; obscenity is material which deals w/ sex in
a manner that appeals to prurient interest
ii.
iii.
iv.
v.
a. History: from founding we have had this unprotected category
2. TEST: review the work as a whole and if it appeals to prurient interest, if so then obscene
a. Prurient interest: “material having tendency to excite lustful thoughts”
3. Harlan Dissent: views first as not incorporated into 14A so states have wider license
4. Douglas Dissent: speech enjoys absolute protection
Post-Roth breakdown: the Redrup (1967) period w/ different approaches developed & per curia issued
1. Clark/White: want the Roth test, take as whole & prurient interest
2. Black/Douglas: absolute protection
3. Harlan: federalism, states afforded wider license
4. Stewart: I know it when I see it; Jacobellis v Ohio (1964)
5. Brennan/Warren/Fortas: Roth plus uttely w/o redeeming social value; Memoirs v MA (1966)
Miller v CA (1973): A New Test for Obscenity
1. TEST: 3-Part test that must be met for obscenity
a. (1) whether the average person, applying contemporary community standards, would
find the work taken as whole appeals to prurient interest;
b. (2) whether work depicts or describes in a patently offensive way sexual conduct
specifically defined by applicable state law, and;
i. if not patently offensive then out
c. (3) whether the work, taken as whole, lacks serious literary, artistic, political or scientific
value
i. reject Memoirs “utterly” – only need serious
2. Reasons put forth by Berger:
a. (1) plenty of fair notice w/ narrow state laws, no stress on courts & easy to apply
b. (2) thought nat’l Constitution question of prurient is one of fat for juries; “contemporary
community standards” allow flexibility for juries
c. (3) this does not expand censorship it simply follow trad’n
3. Douglas dissent:
a. There should be absolute protection: if people want to regulate then Const’l amendment
Paris Adult Theater v Slaton I: [No] Consenting Adults Exception for Obscenity
1. Facts: Theater is showing porno movie w/ sign on the door
2. HOLD: no exceptions
a. “categorically disapprove…films…acquire…const’l immunity…because they are
exhibited for consenting adults only….there are legitimate state interests at stake”
3. State’s interests:
a. States have right to decent society, worried about corruption – people viewing obscene
films will change society
b. No need for scientific proof, the court will defer that legislature had rsbl belief
i. No need for any conclusive proof to support state’s interests
4. Brennan Dissent: Likes consenting adults exception, if no exception then use Miller
a. The alternatives- leaving it to the jury or absolute protection – does not respect State
police power
Applying Miller test: remember, no instructions are given w/ contemporary community standards (CCS)
1. Jenkins v GA (1974): “Carnal Knowledge” is obscene?
a. HOLD: even under CCS, as a matter of law non-pornographic movies cannot be
patently offensive – this is to be applied to porn only
2. Pope v IL (1987):
a. HOLD: social value is to be determined by a national standard; would rsbl person would
find value in the material (appraised across country)
3. Ginzburg v US (1966): Compare to Butler v MI
a. Applies variable obscenity version of Miller: is it obscene to children?
i. BUT this begs the question, do children have prurient interest
4. Butler v MI
a.
HOLD: we can protect children, but if we try to reduce to suitable for children what is
for adults then a problem arises – lowering standard
5. Ashcroft v ACLU: applying Miller to various media
a. Background:
i. Sable v FCC (1989) – can prohibit obscene speech on telephone (dial-a-porn)
ii. Hamling v US (1974) – cn prohibit obscene through mail
b. Here: federal statutes regulate both but what standard under Miller do we use for federal
statutes for CCS?
i. National standards or local standards: if nat’l statute w/ local standards then
venue shopping may result
c. HOLD: doesn’t matter, don’t mail to Utah if you do not want to get prosecuted
6. Aschcroft v ACLU (Ashcroft I): Child online Protection Act
a. Facts: the federal statute limiting speech that children can view using Ginzburg variable
i. “restrict access by children t material which avg person applying CCS would
find designed to pander to the minor’s prurient interest.”
b. HOLD (I): CCS is not unduly vague; following Hamling no need for a new test
i. Kennedy: not broad, so need as applied challenges – the use of local standards
is a problem with internet; no way to track like mail or phone
c. HOLD (II): b/c CB restriction must apply SS,
i. though high state interest there are other alternatives
7. Stanley v GA (1969): What Can State Prohibit?
a. HOLD: mere private poss’n of obscene matter cannot const’ly be made a crime
i. Still good law
8. Riddel: Questions of Poss’n, Transfer, and Creation
a. HOLD: you have right to posses but no right to distribute (it is a crime)
i. Poss’n could be prima facie that you received it; swallows Stanley
ii. Creation would probably fall under Miller
c. Violence as Obscenity
i. Obscenity deals with sex, HWVR what if statute talked about “morbid interest in violence?”
1. No cases but 7th Kindrick
ii. Violent Video Games produce several issues
1. (1) is video game an expression?
a. HOLD: games w/ characters & narrative are speech like books & movies
2. (2) Can we suppress that speech b/c of violence?
a. (1) Could we analogize w/ Miller?
b. (2) Chaplinsky
c. (3) none
d. Child Pornography
i. NY v Ferber (1982):
1. HOLD: gov’t may prohibit the exhibition, sale, or distribution of child pornography even if it
does not meet the test for obscenity
a. Child pornography is unprotected speech tracking Chaplinsky – harm high, value low
2. Reasons:
a. Child porn is child abuse, the physiological, emotional, and mental health of children
b. Distribution furthers harm by creating market that creates profit motive
c. Minimal value – no value
d. Alternatives – use youthful looking adults
3. Differences from Miller
a. No prurient interest, no other standards
b. No worries about valuable speech in child porn, totally unprotected
4. OConnor Concurrence: gov’t compelling interest to protect children overrides artistic, etc value
5. Brennan Concurrence: 1A protects material that has serious socially redeeming value
ii. Ashcroft v Free Speech Coalition (2002)
1. Facts: Child Pornography Prevention Act prohibits child porn whether using children or
computer generated images
2. HOLD (Kennedy): in order to be considered child porn, the material must use children in its
production
a. Gov’t interest is limited to protecting children from being used in making material
3. Ginsburg: this is a content based regulation and gets SS
a. Gov’t interest: whets appetites for pedophiles, virtual makes it hard to prove real so
must regulate both
i. Stevens – cannot suppress lawful speech to get to unlawful speech, we should
protect some unlawful to protect all lawful
4. Thomas: leave window ao if technology advances to point where differentiation cannot happen
then maybe meet SS by this interest
5. Bottom-line: limits Ferber to actual and maybe virtual later w/ advances in technology
iii. US v Williams:
1. Facts: Congressional response to Ashcroft v FSC; crime to distribute virtual porn when seller
believes child is real or fraudulently induces buyer that it is child; mistake of fact still liable
2. HOLD: law is good
3. Souter: this is not like cocaine and baking powder, if no real child requirement then there is a
concern that a protected category will get squeezed out
a. There are no worries about squeezing out baking powder
iv. Osborne v Ohio (1990)
1. HOLD: gov’t can prohibit & punish the private poss’n of child pornography
a. Interest – to kill market
b. Right to speech is not always absolute under 14A, there are certain well-defined, narrow
areas where prevention & punishment are constitutional:
i. Lewd & obscene, profane, libelous, and insulting or fighting words
X. The Free Speech Provision: Lewd, Profane & Indecent Speech
a. Initial Thoughts
i. Lewd & indecent speech is not a recognized class of unprotected speech.
ii. If speech is not obscene under Miller and merely lewd & indecent its prohibition must pass SS
b. Cases on Primary Effects
i. Cohen c CA (1971): wearing jacket reading “Fuck the Draft” t courthouse
1. Analysis
a. Not obscenity under Roth: speech is not erotic/sexual
b. Not fighting words under Chaplinsky – words not directed at particular hearer so not
fighting words
c. Not hostile audience under Feiner – speech did not arouse protest, so did not provoke
hostile audience
d. Not captive audience Rowan – the state has not shown the speech invades substantial
privacy interests of others
2. Applying SS
a. State interest – protecting people from seeing jacket; guardian of public morals
b. Speech interest:
i. Defining profane is unworkable & creates a slippery slope
ii. Dual capacity for speech & emotions; some speech necessary to show that
iii. Suppression of words will inevitably lead to suppression of ideas
3. Blackmun Dissent: wearing a jacket is more akin to conduct than speech and can be regulated
ii. Erznoznick v Jacksonville (1975): ordinance declared it a public nuisance for any drive in movie theater to
exhibit movies with nudity if movie visible from public street or public place.
1. Issue: this is a time, manner, and place restriction that turns on content
2. HOLD: all nudity cannot be deemed obscene even as to minors; no high state interest
a.
State interest: driving hazard (ridiculous); protecting children (overbroad); unwilling
exposure (adults outside of home is not legitimate unwilling exposure interest)
iii. FCC v Pacifica (1978): FCC informally sanctioned George Carlin for his “Filthy Words” monologue
1. Issue: Stevens holds this is about manner of speech, not the content
a. Balancing analysis of state interest v. value of speech w/r to broadcast media
i. Broadcast invades the home & warnings are insufficient
ii. Broadcast is uniquely accessible to children, even those too young to read
iii. Highly regulated so should defer to FCC
iv. Value of speech is low b/c lewd & profane (this only gets four votes (Powell)
b. Brennan
i. Rolls out Butler ; turn it off
iv. Post-Pacifica Framing of the Issue
1. if based on content then SS review
a. (1) compelling state interest = children
b. (2) law must be narrowly tailored, must be least speech restrictive means
i. here, there is conceptual disagreement & application
ii. most cases turn on this prong; technology is main issue
2. Interaction with Butler & Ginzburg
a. Ginzburg variable obscenity test: can restrict access of the material when dealing w/ kids
i. BUT this leads to restricting adult access per Butler then that will kick in SS
ii. Back to compelling interest and narrowly tailored
v. Post-Pacifica Applications
1. Sable Communications v FCC (1989): the court declared unconst’l a law that prohibited obscene or
indecent phone conversations (aimed at dial-a-porn)
a. Prohibiting “indecent” was the problem here:
i. Could prohibit children under Ginzburg as variable obscenity
ii. BUT here, banning entirely is CB & triggers SS (RAV)
b. SS test: invalidated b/c not narrowly tailored
i. There is alternative technology that is more narrowly tailored
2. Ashcroft v ACLU (Aschcroft II): the Child online Protection Act designed to remedy defects in
Comm. Indecency Act by incorporating language from Miller test; on remand
a. HWVR, b/c placed burden on adult access (credit cards required) SS was triggered
(Ginzburg/Butler)
i. Invalidated b/c not least restrictive alternative; filters better (overseas content)
b. Breyer Dissent: filters are not sufficient and not easily implemented; filters + COPA
3. NOTICE: different ideas about SS
a. Narrowly tailored is often proportionate to state goal in protecting interest
vi. United States v Playboy (2000): Cable Act provision that providers must fully scramble or block sexuallyoriented programming channels or limit their transmission to b/w 10 pm & 6 am (signal bleed)
1. HOLD: (Kennedy) CB based restriction triggering SS
a. High state interest in protecting children & non-consenting adults
b. BUT less restrictive means existed; subscribers could request beign blocked – put onus
on parents and non-consenting adults
vii. Bottom-line:
1. No categorical definition of lewd & profane speech but speech that is not obscene, but at least
lewd, indecent, patently offensive, etc., may in some instances be constitutionally regulated.
2. Either triggers SS by being CB or by being variable obscenity regulation for children
3. SS will depend on technology
c. Secondary Effects & Zoning
i. Young v American Mini-Theaters (1976): upholding a city’s ordinance that limited the number of adult
theaters that could be on one block & not in residential areas
1. Initially: this is a content based “burden” b/c not restricting all theaters or banning outright
2. HOLD: this targets the secondary effects of the speech (theaters) such as blight, crime, etc.
a. This type of speech is low-value & more susceptible to regulation (no longer good)
3. Powell Concurrence: this is not low value speech, but is CN & triggers IS
4. Stewart Dissent: This is content based citing Cohen & Erznoznik and a loser (narrowly tailored)
ii. City of Renton v Playtime Theaters (1986): Sets the analysis
1. Zoning law that excluded adult motion pictures from being w/n 1000’ of churches, residential,
parks or schools; 95% of city
2. HOLD: Law is CN so apply 3-Part Intermediate Scrutiny (IS)
a. (1) important state interest (court uses significant as synonym)
b. (2) AND narrowly tailored as not substantially broader than necessary
c. (3) ample alternatives of communication (here 5% is cool)
3. ALSO, court deferential to city in establishing secondary effects, no need for a study
4. Brennan Dissent: this is CB so go SS
iii. Los Angeles v Alameda Books (19XX): ordinance prohibits adult establishments from locating w/n 1000’ of
another & only one adult establishment in a building
1. Procedural: on summary judgment so not on merits but if sufficient for trial
2. O’Connor Pluraity: trigger IS and passes so trial
a. Renton established a deferential standard & city only needs to show minimal factual
predicate to establish secondary effects
3. Kennedy concurrence: This is CB b/c it has content on face of law, but Renton establishes that
content discrimination may be allowed in zoning ordinances
4. Souter’s Dissent: this is content correlated and Renton’s IS deference should be tightened
a. Need greater factual predicate
d. Recap: Lewd & Profane Regulations
i. Regulations concerned w/ Primary Effect Trigger SS:
1. Compelling state interest
a. Protecting children usually passes muster
2. Law narrowly tailored using least speech restrictive means (tightened for Ginzburg/Butler analysis)
a. Technology is the key and most likely it is a loser
ii. Regulations Concerned w/ Secondary Effects Trigger IS:
1. Important (significant) state interest
a. Property, societal interests usually pass this prong
2. Law narrowly tailored as not substantially broader than necessary
3. Ample alternatives of communication
e. Final Thought: Mass Mailings: Opting in or Opting out
i. Rowan v Post Office: Court upheld federal law permitted homeowners to opt out of mass mailings
ii. Bolger v Oungs Drug Products: Court invalidated a federal law that prohibited mass mailing of contraceptive
advertisements
1. Const’l to allow opt outs, but cannot require opt-in; stems flow of information
XI. The Free Speech Provision: Pornography as Hate Speech
a. First, unlikely bedfellows
i. Conservatives: porno is morally corrupt
ii. Feminists: porno is hate speech against women
b. American Booksellers v Hudnut (1985 7th): declared unconst’l ordinance that outlawed certain depictions of women
i. Analysis: this is viewpoint based subcategory of content based triggering SS
1. No dice for SS; alternatives
c. Alternate ways to regulate hate speech against women:
i. Miller obscenity test: ordinance that tracks Miller
1. BUT if it is CB restriction then SS (RAV)
ii. Ferber pornography
iii. RULE: cannot use crime of prostitution to criminalize it
XII.The Free Speech Provision: Commercial Speech:
a.
Commercial Speech: Defining
i. VA State Board of Pharmacy v VA Citizens Consumer Council (1976): SCOTUS invalidates statute penalizing
pharmacist if he advertised prices of prescription drugs.
1. First: Commercial speech is protected by gov’t
a. Definition: proposes commercial transaction (no motive or form of speech questions)
i. Not all ads – think voting ads
2. Society’s Interests:
a. Free flow of info in mrket economy; enlightened decision-making
b. People’s interest in best prices/products, pharmacist in selling product
3. State’s Interests:
a. Maintain professionalism
b. Prevention of price wars
4. HOLD: this is paternalism; it’s not a time, place, manner restriction or protection from
misleading/false prince information or broadcast media
a. HWVR, commercial speech, though protected, does not warrant the high level of
protection of other forms; b/c driven by profit there is less chilling effect/worries
b. This “durability” precludes overbreadth
5. Rehnquist Dissent: this should not be protected; no free market model requires protection
ii. Bolger v Youngs Drug Products Corp. (1983): SCOTUs held information packets that promoted specific brand
of condoms were commercial speech
1. Directly addresses definition of commercial speech:
a. Commercial speech has 3 characteristics:
i. (1) it is an advertisement in some form;
ii. (2) it refers to a specific product;
iii. (3) the speaker has an economic motivation for the speech.
b. These 3 factors aggregate and provide support for conclusion
b. Commercial Speech: Today’s test
i. Central Hudson Gas v Public Service Comm’n (1980): regulation of electric company’s advertisements
1. First: commercial speech is protected but, b/c occurs in area tradl’y subject to gov’t regulation,
the Const’n provides lesser protection to commercial speech.”
2. 4-Part Analysis for Analyzing Gov’t Regulation of Commercial Speech
a. (1) Is the speech protected by 1A? Must concern lawful activity & not be misleading.
i. if false or misleading then not protected
ii. if about illegal product or service then unprotected
b. (2) Substantial gov’t interest? (important, significant – IS)
c. (3) Does regulation directly advance gov’t interest asserted?
d. (4) Is regulation no more extensive than necessary to achieve the gov’t’s interest?
3. Blackmun concurrence: new test not strict enough to protect people from paternalistic gov’ts
4. Rehnquist Dissent: economic regulations trigger complete deference
c. The Inconsistent Application of Central Hudson
i. Posadas (1986): Puerto Rico bans gambling advertisements to residents but not tourists
1. Rehnquist applies “rsblness overlay” on IS Central Hudson test knocking it down to RBR
a. (1) is it protected?
b. (2) substantial gov’t interest or state may rsbly have thought
c. (3) does it directly advance or so state might rsbly conclude
d. (4) state could have rsbly concluded no more extensive than necessary
2. “Greater includes Lesser” doctrine: b/c state can prohibit activity then they have lesser power of
regulating speech
3. Brennan: this is paternalistic & “greater includes lesser” is problematic
a. Greater is conduct, lesser is speech; b/c can ban conduct does not mean you can ban
speech
ii. Rubin v Coors Brewing (1995): invalidated rgulation preventing beer bottles from displaying alcohol content
XIII.
1. Analysis is in direct conflict w/ Posadas
a. Speech regulation must advance gov’t interest in real way, that burden isnot satisfied by
speculation & conjecture
b. Number of alternatives that could advance gov’t interest in less intrusive manner
i. Regulatie alcohol directly
iii. 44 Liquormart v RI (1996): SCOTUS invalidated state law prohibiting advertisement of liquor prices
1. Analysis: applied Rubim type analysis, worried about (3) specifically
a. no evidentiary support; wanting proof makes it look more like SS at this point
2. Court explicitly overrules “greater includes lesser” & says Posada an attempt to eviscerate Hudson
3. Thomas concurrence: gov’t should not be able to regulate truthful commercial speech if based
on premise that people would be better off with less information
iv. Lorillard Tabacco v Reilly (2001): SCOTUS invalidated regulations prohibiting advertisements for cigars &
smokeless tobacco w/n 1000’ of school or playground
1. SCOTUS applies Central Hudson/Rubin test
a. (1) is it protected?
b. (2) substantial state interest (protecting children from cigars & smokeless tobacco-nope)
c. (3) advance state interest? Maybe theoretically
d. (4) more extensive than necessary – here the court turns to ample alternatives of
communication ala City of Renton
2. Thomas: commercial speech restrictions may not reduce adult population to consumption of
only child-friendly information, cites Butler & Playboy
v. Thomspn v Western Suites (2002): SCOTUS invalidated FDA ban on sale of compounded drugs unless
pharmacist consents to abstain from advertising
1. Analysis: apply test & fails (4) least speech restrictive means
a. More extensive than necessary; FDA could ban product or restrict compounding rather
than restricting speech
vi. Florida Bar: uphold ban on mailing
1. Bann was about privacy not about paternalism
2. Kennedy – just throw it away
d. Bottom-line:
i. Paternalistic state interests do not pass Hudson test influenced by Rubin
1. Valid state interests include: protection of children, protection of unwilling recipients,
dissemination of lewd & indecent images
ii. A restriction may not be narrowly tailored as least speech restrictive means if state could regulate conduct
instead of speech
iii. Commercial based restrictions are content-based but do not receive SS analysis per RAV
e. Commercial Speech Restrictions that Discriminate against all advertisement
i. Cincinatti v Discovery Network: invalidated ordnance on magazine racks
1. HOLD: action of prohibiting one was clearly discriminatory & failed to rsbly fit its interest in
eradicating eyesores
ii. Metromedia v San Diego (1981): regulation prohibiting all outdoor advertisement display signs
1. HOLD: ran Central Hudson concluding that ban of commercial advertising const’l (it directly
advanced city’s interest in preventing traffic distraction)
a. HWVR, could not be extended to non-commercial billboards b/c they were afforded
greater 1A protection
f. Compelled Discolsure
i. RULE: state may compel disclosure of truthful information if disclosure is rsbly related to state’s interest
in preventing deception
The Free Speech Provision: Public Forum Doctrine
a. Initial thoughts
i. The public forum doctrine distinguishes b/w two kinds of gov’t owned property
1. (1) the public forum (PF)
2. (2) the non-public forum
ii. Whether a restriction is CB or CN is highly important to the public forum doctrine analysis
b. The Public Forum Doctrine Beginnings: Streets & Parks
i. Davis v MA (1897): The Initial Ban: Boston has ban on speech in public places w/o permit from mayor
1. HOLD: SCOTUS refused to recognize any 1A right to use gov’t property for speech purposes
a. Greater-includes-lesser: can dedicate property to certain uses and can limit to certain use
ii. Hague v CIO(1939): The Public Trust:
1. HOLD: title to streets & parks have been held in trust for the use of the public…such use of
streets & parks has been part of privileges, immunities, rights, and liberties of citizens
a. Time out of mind, Streets & parks have been used for speech
c. The Traditional Public Fora (TPF)
i. Initial Thoughts & Rules
1. Per Hague in trad’l public flora, gov’t has no special rights to tailor/curb speech
a. CB restriction = SS
b. CN = IS
2. W/ IS the state usually wins…
ii. Frisby v Shultz (1988): sustained ordinance prohibiting picketing before or about any residence
1. Analysis: The ban was CN so triggers IS
a. Important state interest: yes, privacy of home
b. Narrowly tailored: yes – not more extensive than necessary
c. Ample alternatives for communication: yes
2. Dissent: ordinance not narrowly tailored; could use less speech-restrictive means such as time
limit or person number limit
iii. Clark v. Community for Creative Non-Violence (1984): approved federal regulation to keep people form
sleeping in the park
1. First: this may fall under expressive conduct
2. HOLD: apply IS:
a. Important state interest: yes
b. Not more extensive than necessary: yes
c. Ample alternatives of comm’n: yes
iv. Hill v CO (2000): state law restricting speech activities from w/n 100’ of health care facility; w/n regulated
area cannot approach person w/o consent to give handbill, show sign, oral protest, etc.
1. HOLD: time, place, manner restriction on speech
a. Passes IS: interest is protecting patients & health care workers
v. INSERT PINETTE & PLEASANT GROVE
d. Non-Public Fora (NPF)
i. Initial Thoughts
1. NPFs are gov’t properties that the gov’t can close to all speech activities
2. Gov’t can restrict speech if regulations is: (2) rsbl & (2) viewpoint neutral
ii. Adderly v FL (1966): gov’t can prohibit speech outside prisons & jails
1. Analysis: it was viewpoint neutral & rsbl
a. Viewpoint neutral – arrested for trespassing
b. Rsbl in light of property – interference w/ police activity
2. Douglas Dissent; jail is TPF & CB = SS
iii. Grayned Dictum:
1. Maybe SCOTUS should use compatibility test: whether manner of expression is basically
incompatible w/ normal activity of particular place @ particular time
2. Tougher test than rsbl
iv. Greer v Spock (1976): military bases are NPF citing Adderely
1. Restriction is viewpoint neutral & rsbl in light of the use of property
v. US v Kokinda (1990): upheld restriction on solicitations on post office properties
1. OConnor plurality: postal sidewalk doesn’t have characteristics of those trad’ly open to speech
a. Passes NPF = (1) viewpoint neutral; (2) rsbl in light of use of property
2. Kennedy Concurs: this is TPF but the restriction is CN
a. CN = passes IS – (1) important state interest; (2) narrowly tailored, not more extensive
than necessary; (3) ample alternatives for communication
3. Brennan: the prohibition was not rsbl in light of use of property; it was compatible
e. Distinguishing b/w TPF & NPF: so far just assumptions…
i. Int’l Society for Krishna Consciousness v Lee(1992):
1. Majority (5): airports are NPF
a. For public place to be TPF there must be a trad’n/history – cite Hogue time out of mind
2. 4 votes: airports are TPF
a. function, physical characteristics, degree of public access, analogous to parks & streets
3. HOLD: ban on solicitation good
a. Reasons: rsbl because worried about congetion & fraud & duress b/c asking for $$$
ii. Bottom-line:
1. SCOTUS never gives clear criteria but several criteria are implicit in cases
a. (1) trad’n of availability of the place for speech – Kokinda, Krishna
b. (2) extent to which speech is incompatible w/ usual functioning of place – Adderly, Greer
i. cases indicate little proof is necessary
c. (3) whether primary purpose for the place is for speech – Kokinda, Lee
f. Right to Private Fora
i. Marsh v Alabama (1946): The Company Town
1. HOLD: company’s actions treated like those of state actor;
ii. Privately Owned Shopping Centers
1. Layout
a. SCOTUS initially approves, then limits it, then overrules it
2. Logan Valley (1968):
a. HOLD: extends Marsh to private shopping centers, could not exclude picketers
3. Hudgens (1976):
a. HOLD: Logan Valley overruled; 1A does not create right to use private shopping centers
for speech
4. Pruneyard v Robins (1980):
a. HOLD: states can create a state const’l right of access to shopping centers for speech
i. SCOTUS rejects 1A attack by shopping centers (right not to speak) & takings
clause (w/o just compensation)
g. Intermediate Category & Unequal Access
i. Initial Thoughts
1. Court uses “limited public forum” & “designated public forum” interchangeably
2. These are 2 subcategories
a. Designated general public forum: generates unequal access based on speech content
i. Apply TPF tests:
1. CN = IS
2. CB = SS
b. Designated limited public forum
i. Apply NPF test: rsbl & viewpoint neutral
3. When you are confronted w/ designated forum look to designation or limitations of forum to
understand what test to apply
a. These are things that are NPF that are bumped up by gov’t opening to middle ground
4. Remember, gov’t opened it up & gov’t can shut it down
a. If do not like activity in designated forum then it can be shut down
ii. Cases
1. Widnmar v Vincent: (1981): school opened building for all student groups, SCOTUS hold ccannot
exclude religious groups
XIV.
a. HOLD: designated general forum but unequal access based on content; CB = SS
2. Lehman v City of Shaker Heights
a. Facts: city runs bus system, guy wants to do political campaign
b. Issue: is this NPF or general limited public forum?
i. Doesn’t matter; test is the same: rsbl & viewpoint neutral
c. Brennan dissent: wants compatibility
3. Perry Educators Assoc.
a. Analysis:
i. Property: school mailing system & school
ii. Restriction: PEA is official union, unofficial union wants access to mail
b. HOLD: this is designated limited public forum, limited to free speech activities
i. Rsbl – important mail gets lost
ii. Viewpoint neutral – yes, just based on speaker’s status
iii. How do we get from Designated General to Designated Limited?
1. Kokinda RULE:
a. Gov’t designates designated forum only when it provides express written policy or
clearly established practice: it must be intentional and purposeful.
b. Simply allowing people on property does not move forum from NPF to DPF
2. Cases w/ Official designated Policy
a. Lamb’s Chapel (1993):
i. Facts: public school system (starting as NPF) w/ official policy opening school
up after hours for community groups (now a DPF)
ii. THEN< says no religious groups
iii. Analysis: does not even satisfy NPD/DLPF (1) rsbl & (2) viewpoint neutral
b. Rosenberg : School funds student groups (opens up a metaphorical forum by funding)
i. Then, denies funding to religious groups w/ religious publications
ii. Status of Forum:
1. Designated Limited: limited to students & groups
iii. TEST: DLF gets NPF test & fails
1. (1) rsbl = yes & (2) viewpoint neutral = no
iv. Dissent: this is VP neutral b/c does not distinguish b/w religions
1. Subject matter distinction & speaker status is viewpoint neutral
v. Final note: VA says cannot give b/c would violate EC
c. Good News Club v Milford
i. Facts: NPF (school) but policy opening up for certain extra-curriculars
ii. Analysis: GLF so go NPF
1. Not viewpoint neutral, no religious groups
iii. Dissent: religion is subject matter distinction; could draw lines w/n religion
iv. Remember, the gov’t can always revoke the designated public forum
The Free Speech Provision: Expressive Conduct
a. Initial Thoughts
i. What makes conduct expressive or non-expressive?
1. Lots of symbolic actions people take: flags, armbands, uniforms
2. Not all conduct done for expressive purposes is expressive conduct: criminal conduct
ii. TESTS
1. If CB hitting expressive conduct then SS or whatever default test applies
a. VA v Black: true threat
b. RAV: fighting words
2. If CN, then US v OBrien
b. US v OBrien (1968): dude burns draft card in violation of fedstatute
i. First, when speech & nonspeech are combined in same course of conduct, sufficiently important gov’t
interest in regulating nonspeech can justify incidental limits on 1A freedoms
ii. TEST for evaluating expressive conduct:
1. (1) is the regulation w/n const’l power of gov’t? (ignore)
2. (2) important or substantial state interest? (IS)
3. (3) is interest unrelated to suppression of ideas – is it CN?
4. (4) narrowly tailored: does it suppress no more than is necessary?
iii. Like IS, buyt missing ample alternatives (Harlan’s dissent wants this)
c. Thoughts About O’Brien TEST
i. Procedure:
1. (3) first – is it CN or CB?
2. Then, IS analysis of (2) then (4)
ii. Application of CN or CB?
1. Remember: not looking at actual subject matter motivation for Congress; impossible to discern
iii. The Missing Piece of IS from O’Brien: Ample Alternatives for communication
1. Harlan Dissent: wants to make sure ample alternatives are available for speech
2. HWVR, in Clark SCOTUS says in fn. 8 that these are basically the same test
a. SCOTUS notes that a recent CN case for TPF framed its analysis under OBrien b/c in
TPF we apply default IS test
d. Flag desecration
i. TX v Johnson (1989): Johnson burns flag and is arrested
1. Proper Framework for Analysis:
a. Statute says “ is offensive to other persons” & this is not CN; it is CB b/c based on flag
desecration
b. So step 1 (applying #3) kicks it out to SS or default
i. Here SS so won’t pass b/c political speech & viewpoint based
2. Dissent: 3 theories
a. (1) this is CN; flag burning is manner restriction (Stevens)
b. (2) passes SS
c. (3) fighting words so  Chaplinksy categorical balancing and could say it is unprotected
category (Rehnquist)
ii. US v Eichmann: after Johnson Congress passes Nat’l Flag Protection Act & took out “offensive to other
person” language
1. HOLD: still 5/4 invalidating as CB restriction; it is viewpoint restriction
e. Nude Dancing
i. Barnes v Glen Theater (1991): is nude dancing protected by 1A?
1. First – yes, dancing is expressive conduct so apply OBrien to staute (indecent exposure law)
2. Apply
a. 1 – is it CN or CB? This is CN; not suppressing thoughts just conduct
b. 2 – IS 2 & 4;
i. state interest: trad’l moral interest
ii. narrowly tailored: just need g-string and pasty, not req’g parka
3. HOLD: good law
4. White Dissent: this is CB suppressing erotic dancing, not general nudity prohibition
a. People in bar to see, not protecting people from unwanted viewing
5. Scalia concurs: if CN then go RBR; like Smith in religion he writes
6. Souter: apply OBrien but should look to secondary effects of law
ii. City of Eerie v Paps AM (2000): another reason, could ban for secondary effects of nude dancing
1. Analysis: apply OBrien bc is expressive conduct
a. Combating secondary ideas is unrelated to suppression of erotic message so CN
b. Then high state interest and narrowly tailored
2. Stevens: pissed about OBrien & Renton
a. OBrien – the act mentions nude dancing establishments in preamble (CB)
b. Renton – no ample alternative avenues b/c ban on all live dancing & no study
XV. The Free Speech Provision: Expressive Litigation & Association
a. Expressive Litigation
i. NAACP v Button (1963): VA statute prohibited organization from retaining lawyer in connection with
litigation of which it was not a party.
1. How is this expressive?
a. A major part of political expression comes in the form of litigation; achieving social
agendas through litigation
b. Think of a spectrum: this to ambulance chasing
2. Analysis:
a. (1) expressive form of litigation? Yes
b. (2) significant infringement? Yes
c. (3) CB or CN restriction? It may be CB; but b/c under balanca analysis the state will
lose
i. If CN = weaker SS
1. (1) compelling state interest
2. (2) narrowly tailored; not substantially broader than necessary
3. balanced against (3) degree of infringement
ii. If CB = SS
3. Harlan Dissent: there is serious enough state interest and other ways to get lawyers to express
b. Expressive Association
i. Roberts v US Jaycees (1984): Jaycees challenged the MN Human Rights Act which prohibited private
discrimination base don gender and race.
1. Analysis:
a. (1) is this expressive association? Yes
b. (2) Is there significant infringement on association? (small trigger)
i. There are some per se infringements
1. Requires disclosure? NACCP v AL
2. Penalizes membership/criminal penalty? Whitney
3. Requires membership alteration? Roberts
c. (3) CN or CB? CN so balancing (if CB = SS)
i. compelling state interest – yes
ii. not substantially broader than necessary – no
iii. balanced against: low degree of infringement
1. inclusion of women will not effect message
2. internal contradiction: infringement is small trigger in initial analysis &
then heavier weight when balancing
a. formalistic v substantive
ii. Boy Scouts of America v Dale (2000): NJ law requiring BSA to accept homosexuals held unconst’l
1. Analsysis:
a. (1) is there expressive association? Yes
b. (2) is there significant infringement on association? Yes, alters membership per se Roberts
c. (3) it is CN so SS weak
i. (1) compelling state interest? Preventing discrimination
ii. (2) NT; not substantially broader than necessary – yes
iii. (3) balanced w/ infringement: a group can define its own expressive message,
this included anti-gay & forced association would undermine that message
2. HOLD: unconst’l
3. Stevens Dissent: BSA doesn’t say anti-gay in any literature or mission statement; in fact tells
members to refrain from discussing sexuality
iii. Jones & Stanglin: if dealing w/ political parties then SCOTUS will apply exceptionally stricter version of SS
XVI. The Free Speech Provision: Right Not to Speak
i. Two Prongs: (1) State dictates specific message party must speak
1. WV Board of Educ. V Barnette (1943): invalidates law that makes person salute flag
a. RULE: if state dictates message it is like CB restriction leading to SS
i. Cannot require anymore than it can prohibit
b. No test though, just a thought
2. Wooley v Maynard (1977): cannot punish man for covering “Live Free or Die”
a. HOLD: this req’t is unconst’l, goes to SS type test
b. Analysis:
i. (1) Does state action infringe on right not to speak? Yes
ii. (2) Does state dictate the message? Yes; if no go to Puneyard
iii. If yes, then balance:
1. State interest sufficiently compelling
2. Does state interest justify infringement on right not to speak?
3. Both cases give heightened scrutiny & SCOTUS will knock it down
ii. (2) No State Dictated Message
1. Pruneyard v Robins (1980):  says right to speak violated by CA lawmaking them allow people to
come on property and speak
a. Analysis: Right not to speak analysis:
i. (1) no state dictated message
ii. (2) Can you disclaim?
iii. (3) Is there attribution? (Is it likely that people will think speech is from
shopping center?)
iv. (4) disagreement w/ message given in litigation?
2. Hurley v Irish-American Gay & Lesbian Group of Boston
a. MA anti-discriminatory statute compelling entrance into parade
b. Analysis:
i. Disagreement? Yes
ii. Attribution? Yes
iii. Disclaim? Curios to disclaim view sin parade
iii. Bottom-line:
1. State Dictated Message – unconstitutional; no compelling state interest is sufficient to justify
2. State opens a private forum for public speech – unconst’l if:
a. (1) group disagrees; (2) likely attributed; (3) impractical to disclaim
XVII. The Free Speech Provision: Freedom of Religion
a. Initial thoughts
i. 2 Main Clauses:
1. Establishment Clause & Free Exercise Clause
2. There are tensions b/w the two
ii. Policy for Freedom of Religion
1. (1) freedom of conscience: the mosst important in mind of courts
2. (2) civil strife: gov’t adopting religion will cause strife & discord for gov’t favor & endorsements
3. (3) gov’t corruption of religion: closer the relation more likely problems of politics will infect
religion
XVIII. The Establishment Clause
a. 3 main areas of the Establishment Clause:
i. (1) prayers & invocations
ii. (2) Gov’t displays
iii. (3) aid to schools
iv. later (4) permissible accommodations
b. Historical understanding of EC
i. Justices care about what founders thought but there are some basic problems:
1. (1) incorporation – EC incorporated into 14th in Everson
a.
founders only thought this was for Fedgov; original language had “respecting” b/c half
of states had official religion
2. (2) Range of viewpoints @ founding
a. 3 Core positions
i. (1) strict separation: gov’t cannot give $ to religious schools period
ii. (2) strict neutrality: b/w religion & non-religion
1. as long as even handed aid is fine; neutrality is key
iii. (3) non-preferentialists
1. okay w/ religious preference BUT just as long as do not prefer one
religion over another
2. can support private religions but must give to all equally
b. (3) changes since founding
i. increase in religious diversity
ii. rise of secularism
iii. expansion of gov’t
ii. Lemon (1971) test is the foundation; it is used to create the other tests
1. To determine if establishment of religion violates EC:
a. (1) must have secular legislative purpose
b. (2) primary effect of gov’t action must neither advance or inhibit religion
c. (3) no excessive entanglement b/w gov’t & religion
c. Prayer Cases
i. Engel v Vitale & Abbington v Schempp
1. Engel (1962): state written prayer to be recited by schoolchildren; involuntary w/ exemptions
2. Schempp (1963): Reading of Bible over intercom & Lord’s Prayer @ school
3. HOLD: 8/1 unconst’l
4. Analyses: turned to policies
a. (1) if school writing prayer then real danger of liberty of conscience
b. (2) gov’t corruption of religion
5. Stewart’s Dissents: Both are const’l if clearly voluntary; should allow voluntary prayer b/c people
used to go to religious schools but not now
ii. Lee v Weisman (1992): rabbi gives invocation @ middle school graduation; given guidelines for nonsectarian prayer by school
1. HOLD: Unconst’l
2. TEST: Kennedy applies a “Coercion Test” looking to psychological coercion
a. If the state’s invocation constitutes psychological coercion then no good
3. Substantive analysis:
a. Pressure to attend ceremony, no alternative to signal non-participation, civil religion is
still religion
b. In political speech gov’t can adopt position (Pleasant Grove) BUT in religious speech
cannot adopt position – that is psych. coercion
4. Blackmun Dissent: wants “endorsement test” any endorsement is prohibited, even separate
invocation is endorsement
a. He is 5th vote that psych coercion is out but wants broader protection
5. Scalia dissent: not coercion: this should be limited to actual coercion
a. Wants distinction b/w sectarian & nonsectarian; non-sectarian prayer reduces civil
discord
iii. Santa Fe v Doe (2000): student prayer before football games challenged so school allowed vote on (1) if an
invocation should be given and (2) which student should give it
1. HOLD: this is not private; cannot circumvent through elections
a. Procedure is endorsed by gov’t & on school grounds
2. Analysis: weaves together psychological coercion test & endorsement test
3. Rehnquist dissent: speech was private & non-coercive
iv. Elk Grove v Newdow: Does “under God” in pledge of allegiance violate EC?
1. 9th Circuit HOLD:
a. it was violation, ran through all 3 tests b/c did not know which to apply:
i. (1) lemon test – yes
ii. (2) psychological coercion test – yes
iii. (3) endorsement – yes
2. SCOTUS: majority of 5 – no standing (Scalia recused)
a. 3 justices reach merits: O’Connor, Rehnquist, Thomas
i. hold no violation
b. O’Connor: these words are an acknowledgment of the existence of God, no violation
i. Intended to solemnize the pledge, a ceremonial deism invocated for ceremonial
purposes
c. Rehnquist: distinguish Lee
d. Thomas: overrule Lee
d. Public Displays
i. Lynch v Donnelly (1984): Display including Santa, reindeer, Christmas tree, lights and crèche
1. HOLD: no violation of EC
a. Analysis: a fluid Lemon test: instead of 3 prongs just looks at “factors”
i. (1) does display have secular purpose?
1. Yes celebrating holidays & commercial
ii. (2) is the primary effect secular or does it inhibit/advance religion?
1. Commercial purpose
iii. (3) does it result in excessive entanglement?
1. Nope
2. O’Connor: sets up new TEST
a. (1) result in excessive entanglement? Not here
b. (2) does display constitute gov’t endorsement of religion?
i. Subjective intent: did gov’t intend to endorse religion?
1. (Does it have a secular purpose?)
ii. Objective intent: would RPObserver assume gov’t intended to endorse religion?
1. (what is displays primary effect?) – reindeer rule, drains crèche
3. Blackmun dissent: a “pyrrhic victory” for religion; crèche relegated to role of neutral harbinger
4. Brennan dissent: it is impossible to dilute crèche
ii. Allegheny v ACLU (1989): two separate displays: (1) nativity alone; (2) menorah, Christmas tree, & banner
“salute to liberty”
1. HOLD: 5/4 nativity unconst’t; 6/3 group symbols const’l
a. In sum: 3 hold both unconst’l, 4 hold both const’l, 2 split
2. The majority adopts the endorsement test: O’Connor’s Lynch v Donnely concurrence
a. 5 justices apply endorsement
i. 3 justices: nativity = unconst’l; tree + menorah = unconst’l  endorsement
1. a rsbl observer would see them as endorsements
ii. 2 justices: nativity = unconst’l; tree + menorah + reindeer rule = const’l
1. 2nd display okay b/c 2 religions, snding message a plurality & diversity
b. 4 justices apply coercion/advocacy test (Kennedy dissent)
i. hold that passive displays will rarely run afoul of establishment clause
iii. Intersection of Public Forum & EC
1. Capital Square Review v Pinette: KKK seeks a permit to display a cross on grounds of Ohio
Statehouse b/c no religion; OH says no cannot put cross up b/c is religious symbol
a. Statehouse is TPF, this is CB so triggers SS under TPF analysis
i. Compelling interest – to avoid violating the EC
ii. Narrowly tailored – exclusion is only method of avoiding violation
b. HOLD (plurality): unconst’l
i. Private speech (KKK cross) in TPF cannot violate EC whether it appears to
ordinary observer that it is speech by the gov’t or not
ii. B/c no EC violation then lose on first prong of SS
c. 5 justices say run Endorsement Test:
i. private speech can violate EC if rsbly appears as gov’t speech under the
Endorsement Test
1. so EC avoidance is valid compelling state interest
ii. BUT, split 3/2 on narrowly tailored: putting up a disclaimer is less speech
restrictive
d. SO, the SS test:
i. Compelling state interest: avoiding EC
1. Plurality: private speech does not violate EC
2. Concurrence: private speech violates EC when rsbl observer would
perceive gov’t endorsement
ii. NT:
1. Least restrictive means is to disclaim
2. Dissent: no disclaimer would suffice to cancel rsbl appearance of gov’t
speech
3. OConnor: little disclaimer does not avoid EC violation
iv. Display of 10 Commandments
1. Stone v Graham: 10 commandments in classroom
a. Per curiam: fails first prong of the Lemon test
b. Dissent: shows foundation of Western civilization
2. McCreary: 10 commandments in courthouse
a. No secular purpose; tried to camoflague but rarely will display be OK
3. Van Orden: 10 commandments on grounds of TX capitol
a. Breyer swings and says the display may have secular purpose but the display had been in
exisence 40 years w/o problems: goes back to policy of civil strife
4. The TEST in these cases is unclear
a. Some thought no test and go to policy
b. Some Stone say lemon secular purpose test
v. Legislative Chaplains
1. March v Chambers
a. HOLD: const’l
b. Analysis: not analyzed a prayer, aid, or display but look to history
c. Dissent: apply lemon, history is not dispositive
e. Aid to Schools
i. First Thoughts
1. Does gov’t giving money, services or equipment to aid secular education (or to parents) violate
the EC?
a. Concern: diversion of funds to religious purposes (money is fungible)
b. Raises policy concerns
ii. Everson v Board of Educ. (1947): gov’t reimbursing money spent by parents for bussing to secular schooling
1. HOLD: const’l; neutral & even-handed disbursement to all
a. RULE: no EC problem when neutral; not allowing would raise FEC discrimination issue
2. Frankfurter Dissent: this money will be used for religious education meaning gov’t subsidizing
religious education violating EC
iii. MODERN TESTS: Direct Aid & Indirect Aid
1. First, Definitions
a. Indirect aid = parental choice
b. Direct aid = to religious school or university
2. Indirect Aid
a.
TEST: Version of Lemon
i. (1) secular prupose?
ii. (2) secular primary effect?
1. If indirect aid program then looking for neutrality or even-handedness
b. Mueller v Allen: MN allows parents tax deduction costs of education from gross income
i. Analysis:
1. Secular purpose = education
2. Primary secular effect = even-handed law; giving break to all
ii. Policy – civil strife does not result from tax break program
iii. Dissent: tax break is for religious education only so funding religious education
1. Rehnquist – no matter, this promotes education
iv. This is last case where excessive entanglement is seen – not a problem for indir.
c. Witters v WA: aid to disabled persons for vocational education; ultimately pays his bills
for Seminary
i. Analysis:
1. Secular purpose: education
2. Effect: even-handed & neutral (CN?)
d. Zobrest v Catalina Foothills SD: gov’t paid salary for sign-language interpreter for deaf
student attending religious schools
i. Analysis: b/ accompany child and not work for school it is indirect
1. Secular purpose: handicap education
2. Primary secular effect: even-handed & neutral
e. Zellman v Simmons-Harris: gov’t voucher program for public, community, magnet, and
private schools
i. Analysis: this is money to parents so indirect
1. Secular purpose: education
2. Primary secular effect that neither advances nor inhibits: neutral &
even-handed
ii. Dissent: this is not neutral, voucher is for private schools – this should be direct
3. Direct Aid
a. TEST
i. (1) secular purpose
ii. (2) primary secular effect neither inhibiting or advancing
1. (1) look to neutrality AND
2. (2) substantiality of aid
3. (3) divertability & actual diversion
4. (4) entanglement b/w state & religion
b. Aguillar: aid to school program; private school subsidy for remedial math & reading
i. Analysis:
1. Substantiality: a lot of math & reading is remedial
2. Divertability: the teacher swill begin to pray in court
ii. HOLD: unconst’l
c. Agostini (overrules Aguillar): direct aid in form of teaching services does nto violate EC
i. Changes analysis/test:
1. Secular purpose: yes
2. Primary secular effect:
a. Neutrality
b. Substantiality – not substantial, supplemental
c. Divertability – not true, professional teachers will not begin
d. Entanglement – b/c not divertable then not much need for
monitoring so less entanglement
ii. Souter dissent: got it right first time, go back to Aguillar
XIX.
d. Mitchell v Helms: upheld statuette that lent resources including books and computers to
non-public schools
i. Justice split on test
1. 4 (Thomas, Scalia, Kennedy) say direct aid & indirect should be treated
equally
a. if aid is facially neutral then in (indirect test)
2. 5 justices say treat equally but give them direct aid test
e. Rosenburger v VA: do university student activity funds violate the EC if they aid religious
groups?
i. Remember: this was DGPF and this was not viewpoint neutral
ii. EC Analysis:
1. This is indirect aid; free speech case with little EC
iii. Souter: this is direct aid case w/ little free speech
The Free Exercise Clause
a. First thoughts
i. Remember the inherent conflict b/w EC & FEC
ii. History
1. Sherbert balancing then Smith neutrality (current)
b. The Sherbert Era
i. Braunfield v Brown (1961): Sunday closing laws are const’l
1. Remember: freedom of belief is absolute but religious conduct is nto absolute
2. HOLD: indirect burden on conduct & these are const’l unless could accomplish same purpose
w/ less intrusive means (lloks like Smith neutrality)
ii. Sherbert v Verner (1963): state denies unemployment to woman who quit her job rather than work on
Saturday Sabbath
1. TEST: Sherbert Balancing (SS balancing per Button & Jaycees)
a. Once effect on religious conduct is shown:
i. (1) is there significant burden?
ii. (2) is it religion based/targeting religion or religion neutral?
1. CN – SS balancing
a. Compelling state interest – fraud
b. Narrowly Tailored – nope
c. V degree of intrusion into religion
2. HOLD: unconst’l
iii. Wisconsin v Yoder (1972): amish parents should be granted exemption for compulsory school laws
1. Analysis:
a. Is there significant burden? Yes
b. Is the law religion based or religion neutral? CN
i. SS balancing:
1. Compelling state interest? Yes
2. Narrowly tailored?
3. V Degree of intrusion into religion?
c. The Smith Era
i. Employment Division v Smith (1990): OR law says use of peyote was misconduct disqualifying them from
receipt of unemployment benefits
1. First, Scalia distinguishes Sherbert & Yoder
a. Sherbert – applies to narrow class of individual hardships created by general, not criminal,
law; only for denial of unemployment benefits
b. Yoder – appies to hybrid rights, such as freedom of religion and freedom of speech or
there, freedom of religion & right to direct child’s education
2. THEN, TEST: if valid and neutral law of general applicability then const’l or RBR
a. SO, if religion based then will still trigger SS
b. But, if religion neutral it will go Smith and get RBR
c. Exceptions:
i. If discretionary assessments by administrators (unemployment)
ii. or hybrid rights then Sherbert
3. Policy: cosmopolitan nation w/ many religions, if you want an exception go to democratic
process (see state exemptions for peyote)
4. OConnor concurs: wants to stick w/ Sherbert balancing but still agrees to result
d. Comparing FEC & FS
i. Frame: neutral laws interfering w/ conduct/practice incidentally
1. Speech: OBrien – IS test
a. (1) w/n const’l powers
b. (2) important or substantial state interest
c. (3) is it CB or CN?
d. (4) NT; does it suppress no more than necessary?
2. Religion: Smith
a. Religion based – SS
b. Religion neutral – RBR
ii. Anomaly: more protection for expressive conduct, you would guess that free exercise conduct is more
important policy wise (Scalia wants RBR for expressive conduct though)
1. BUT speech will not be conduct in many instances
e. Laws Based on religion
i. Lakumi v City of Hialeah: ban on ritual sacrifices of animals
1. HOLD: no good; religion based “ritual” so law gets SS
2. RULE: said applied SS but held that these laws are per se invalid
ii. Locke v Dabuey: SCOTUS upholds WA state law = no state scholarships for those going to devotional
theology majors
1. If we went Lakumi we get SS and it fails
2. BUT – Play in the Joints
a. EC (separation) ----- FEC (accommodations)
i. If we overemphasize one could violate the other
ii. This is where justices fight
1. Rehnquist says this is discretionary gray area
b. HERE: If EC funding would be allowed as Indirect aid b/c neutral law
i. But FEC says state does not have to give funding
ii. EC does not prohibit & FEC does not compel
c. Ad hoc balancing
i. Burden is mild: can still take some courses and get non-devotional theology
3. How do we know which to apply?
a. If suppression of religion (Lakuni) then go FEC SS b/c no EC problem
b. If not a law that suppress religion then go Locke
4. Scalia dissent: both target religion on face and should be same
a. No room for choice; EC does not prohibit indirect aid & FEC does not allow religious
discriminaatory laws (Lakumi) so they are compelled
XX.The Establishment Clause
a. Permissible accommodations:
i. What if gov’t wins & accommodation not req’d but state will still like to give exemption
ii. Does EC prohibit accommodation?
1. Play in the joints – when do you go so far in FEC that you violate EC?
b. Amos: janitor in mormon gym won’t sign paper professing faith, is fired
i. Facts: there is exemption in T7 for religious discrimination
ii. Q: is it const’l for Congress to exempt religious discrimination? Permissible w/r to EC?
iii. Analysis:
1. Lemon test
a. (1) secular purpose: yes
i. self-identification, lawsuits will chill religious activity
ii. lifting swecial burden is secular purpose
b. (2) primary secular effect? Allowing religious groups to advance
c. (3) entanglement: less entanglement w/ exemption
c. Texas Monthly v Bullock: exempted religious publication by religious organizations from state sales tax
i. Analysis:
1. (1) secular purpose: not lifting special burden
a. But Walz & Zorch
i. Walz – exemption not limited to religious groups; non-proits and charities do
public service gov’t cannot do
ii. Zorach – release-time from school for church and study; placed no special
burden on non-believers
b. So 3 avenues the it would be okay
i. (1) lifting special burden
ii. (2) broader than religious groups – Walz
iii. (3) places no burden on non-believers - Zurach
c. As opposed to Zurach this places special burden on non-believers
ii. HOLD: unconst’l
iii. Scalia dissent: promoting religion ove non-religion does not violate EC
iv. White: this is CB restriction triggering SS
1. Scalia – religious accommodation beats free speech
d. Kiryas Joel
i. Facts: Hasidim; Ny created special school district b/c handicapped kids went to regular school &
suffered trauma
ii. HOLD: impermissible
1. Concern with primary secular effect & entanglemnt:
a. religious equality & neutrality: willother groups get this treatment if it comes up
iii. Kennedy Concurs: drawing political lines base don religion is excessive entanglement
iv. If Smith run as permissible accommodations case, this would be issue: upfront equality among religions
1. Would rastifarians get to puff weed?
v.