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CONSTITUTIONAL LAW II
U.S. Const.
Article I – Legislative Branch
Article II – Executive Branch
Article III – Judicial Branch
Standards of Review:
Strict Scrutiny
Test: 1. Does the gov’t have a compelling interest?
2. Is the law narrowly tailored to meet this interest?
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No less restrictive alternatives
Intermediate Scrutiny
Test: 1. Important objective
2. Substantially related means
Rational Basis
Test: 1. The law must be rationally related to a legitimate gov’t interest
2. “Minimal rational relation” b/t the means chosen by the gov’t and the state action
I. THE SEPARATION OF FEDERAL POWERS: LIMITS ON THE FEDERAL JUDICIAL
POWER
A. Case or Controversy
1. The following justiciability doctrines determine which matters the federal courts can
hear & decide. Article III ~ “Case or Controversy”
a. Prohibition on Advisory Opinions, Standing, Ripeness, Mootness, and the
Political Question Doctrine.
b. Separation of Powers Doctrine working in unison w/ the justiciability doctrine.
B. Prohibition of Advisory Opinions
1. Fed cts. are prevented from issuing opinions on abstract or hypothetical questions.
There must be actual dispute b/t adverse litigants & there must be a subt. likelihood
that a fed ct. decision in favor of a claimant will bring about some change or have some
effect.
a. Fed cts. may not give “advisory opinions” opinions that give advice about
particular legislative or executive action, when no party is b/f the ct. who has
suffered specific injury.
i. Advisory opinions can blur the line b/t legislature & ct.
ii. The judicial role is limited to actual disputes, bit giving advice to
Congress or the President.
Example: Sec. of State Jefferson can’t write to S.C. asking for
informal advice on treaty w/ France.
b. Plaut v. Spendthrift Farm, Inc. (1995) – Congress passed legis. allowing cases on which
the fed cts. had rendered final decisions to be re-opened in some situations. *S.C. held
unconst. b/c congress can’t undue the finality of the judiciary.
*Finality of decisions
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2. Declaratory Judgments
a. Def: ct. is requested to state what the legal effect would be of proposed conduct
by one or both parties.
b. Must be concrete questions/controversy thus they are justiciable
C. Standing
1. Determination of whether a specific person is the proper party to bring a matter to the
ct for adjudication.
a. Requirements:
i. Injury
1.  must allege that he has suffered an injury
2. Actual or imminent; not conjectural or hypothetical
3. No procedural injury (i.e. gov’t not following certain procedure)
ii. Causation
1. Did  cause that injury
2. The injury has to be fairly traceable to the challenged action of
the  and not the result of the independent action of a 3rd party not
b/f the court.
iii. Redress
1. Can the court do anything
b. Allen v. Wright (1984) – black parents sue IRS for giving ax exempt status to
discriminatory private schools. *S.C. held no standing b/c have to allege more than the
fact that the gov’t doesn’t follow the law.
i. Demonstrates that standing will not usually be found where a litigant claims
that tax incentives have caused a 3rd party to injure him, since the causation
component will be too attenuated.
c. Lujan v. Defenders of Wildlife (1992) – injury must be actual or imminent
i. If the threatened harm is too far in the future or too speculative, the actual /
imminent element will not be satisfied & standing will not be found.
d. Note Cases
i. Multiple claims for relief = standing must be established for each
ii. Must remedy the specific injury (i.e. Linda v. Richard – imprisonment
would not remedy the specific injury of not being paid child support)
D. Prudential Standing Requirements
1. Different from const. requirements of standing b/c congress by statute can overrule
prudential standing requirements b/c not derived from const.
a. Prudential Standing Requirements are in addition to showing injury, causation,
redressability
b. The Prohibition of 3rd Party Standing
i. A  can assert only injuries that he has suffered & cannot present the
claims of 3rd parties who are not part of the lawsuit.
ii. EXCEPTION: where a  who meets other standing requirements may
present the claims of a 3rd party
iii. Singleton v. Wulff – abortion doctors sued for compensation on abortions
they performed that were not medically indicated; Ct. focused on the
relationship b/t the  and the injured 3rd party and the likelihood that the 3rd
party can sue on its own behalf.
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 Person may sue to protect a 3rd party’s right only when (1) the relationship is
such that the person suing may advocate effectively for the right & (2) there are
genuine obstacles to the 3rd party asserting the right in ct.
c. The Prohibition of Generalized Grievances
i. Prevents individuals from suing if their only injury is as a citizen or a
taxpayer concerned w/ having the gov’t follow the law.
ii. U.S. v. Richardson – taxpayer suing CIA; *S.C. found it was a general
grievance. Respondent must show he has sustained or is immediately in
danger of sustaining a direct injury as the result of that action & it is not
sufficient that he has merely as a general interest common to all members of
the public (taxpayers).
iii. EXCEPTION: to challenge gov’t expenditures as violating the
establishment clause of 1st Amend.
iv. Flat v. Cohen (1968) – taxpayers sued in fed ct. saying that the fed
expenditures under the Elementary & Secondary Education Act violated the
1st Amend Establishment Clause & Free Exercise Clause b/c $ was going to
funding of religious schools.
S.C. held that there was standing challenged law violates
“specific const. limitations imposed on Taxing & Spending, not
simply that the statute is generally beyond the powers delegated to
congress by Art. I Sec. 8.
Two Part Test
1. The taxpayer must be challenging action taken by congress
under Taxing & Spending power.
2. The taxpayer must allege that the challenged expenditures
violate specific const. limits on gov’t power.
v. Valley Forge v. Amer. United for Sep. of Church & State – No standing;
here, gov’t donated surplus of land to religious college. Congress was not
acting under tax & spending clause.
E. Ripeness
1. Requires the ct. to decide only issue which involve a real dispute & an actual injury &
not merely potential or speculative harm.
a. Seeks to separate matters that are premature for review b/c the injury is
speculative and never may occur.
2. The determination of whether a fed ct. can grant pre-enforcement review
3. Poe v. Ullman (1961) – pre-enforcement challenge: Uncertain Enforcement ~ 2 married
couples & a physician challenge a Connecticut’s anti-conception law. A majority of the Ct.
refused to hear the case on the grounds that the statute had been on the books for 80 yrs. w/
only 1 prosecution and that there was thus not the requisite clear threat of prosecution.
4. Abbott Labs v. Gardner (1967) – pre-enforcement challenge: Inevitable Punishment
a. Test: a case is considered “Ripe” for fed ct. resolution when
i. The issues presented are appropriate for a judicial decision
ii. The parties would face hardship is the Ct. declined to hear the case.
F. Mootness
1. Prohibits cts. from deciding issues that are only abstract & do not involve a real dispute
2. A case is moot is it raised a justiciable controversy at the time the complaint was filed,
but events occurring after the filing have deprived the litigant of an ongoing stake in the
controversy.
3. Exceptions:
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a. Wrongs capable of repetition but evading review
i. Ex: Roe v. Wade – not prego when case was decided.
b. Voluntary Cessation
i. Applies when  stops doing the activity that produced the complaint in
the case. The exception states that even thou the challenged activity has
ceased to exist, the ct. can still hear the case unless it is clear that the 
cannot resume the activity.
ii. Friends of the Earth v. Laidlaw (2000) – if the  seeks damages the
cessation will of course be irrelevant to the issue of Mootness. But even
if the  seeks an injunction, the cessation will not make the case moot, if
there is any subt. chance that the  will return to his old ways.
c. Class Action Suits
i. A properly certified class action suit may continue even if the named ’s
claims are rendered moot.
ii. U.S. Parole Community v. Geraghty (1980) -  brought a class action
and even though dispute as to him has gone away, he still gets it decided
as a class action. Not moot.
G. Political Question Doctrine
1. Allegations of const. violations that fed cts. will not adjudicate refers to subject matter
that the court deems to be inappropriate for judicial review.
2. Cases under the Guaranty Clause are non-justiciable!!!!!!!!!!!!!
a. Why? B/c the clause calls for congress (not the cts.) to determine the type of
gov’t that is established in a given state.
i. The S.C. finds political question where the const. gave the authority
to decide the question to another branch of gov’t or where it failed to set
out sufficient standards for the fed cts. to decide the question.
Also, if there is a lack of judicially discoverable & manageable
standards for resolving it.
Also, the impossibility of deciding w/out an initial policy
determination of a kind clearly for non-judicial discretion.
b. Baker v. Carr (1962) – Malapportionment = Equal Protection; Tennessee voters
seek reapportionment of state assembly districts b/c it had not been
reapportioned since 1901. The S.C. held that the claim of Malapportionment in
violation of Equal Protection did not present a political question.
*equal protection is not political question
3. Congressional Self-Governance
a. Powell v. McCormack (1969) – congress refused to let Powell take oath even thou
he had gotten re-elected b/c of past $ laundering allegations. Congress said Art. I
Sec. 5 gives it the sole authority to determine qualifications for membership.
Powell said it only gives congress the power to see if member-elect meet the
qualifications, not the power to exclude those who meet the qualifications.
i. S.C. held for Powell & said that political question doctrine doesn’t
prevent the cts. from deciding the case.
5. Foreign Policy
a. Ct. frequently holds foreign policy to be political question
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b. Goldwater v. Carter (1979) – Pres. Carter terminated treaty w/ Taiwan. Senate sued
claiming his actions were unconst. b/c Art. II Sec. 2 requires senate ratification.
i. S.C. held that it was a political question b/c the dispute over the presidential
authority to dissolve a foreign treaty involves foreign policy & the ct. in
general will avoid.
ii. Also, the const. doesn’t explicitly instruct as to the senate’s role in treaty
dissolution. Thus, the executive & legislative should resolve b/t themselves.
6. Impeachment and Removal
a. Nixon v. U.S. (1993) – Nixon was a fed judge who got impeached. He sued saying
the senate could not be involved.
i. S.C. held that the judiciary may not review senate’s trial of an impeached
official b/c Art. I Sec. 3 of const. gives the senate sole power to try all
impeachments.
II. THE FEDERAL EXECUTIVE POWER
A. Separation of Powers and Presidential Authority
1. Inherent Presidential Power
a. Youngstown v. Sawyer (1952) – During Korean War, Pres. Truman sought to avert a
strike in the nation’s steel mills & issued an exec. order directing his sec. of commerce
to take control of mills.
i. S.C. held that it was unconst. for the Pres. to take control of private prop w/out
the consent of the owners.
ii. If the Pres. had power to issue order, it must come from either an act of
congress or from the const.
1. Could not be justified under “Commander in Chief” b/c too far
removed from the actual theater of war.
2. Concurrence says emergencies can’t create power.
b. Power of the Pres is limited to that granted in the const, plus any power that
congress decides to grant him.
2. Executive Privilege
a. U.S. v. President Nixon (1974) – President Nixon refused to turn over tapes that
had been subpoenaed to assist in the prosecution of Watergate. Pres. brought
motion to quash the subpoena on the grounds of the exec. privilege & sep. of
powers.
i. S.C. denied b/c presidential conversations are generally privileged BUT
the privilege is not absolute. Only qualified. Here, it is out-weighed by
countervailing public policies (i.e. developing all relevant facts).
1. Implicit privilege, but not an absolute privilege.
B. The Authority of Congress to Increase Executive Power
1. Power of congress to enhance power of president by conferring authority not in const.
a. Clinton v. N.Y. (1998) – Line Item Veto Act gave the Pres. power to cancel
provisions of certain spending and tax bills after they have been signed into law.
Clinton used this power to cancel an item that gave $ to N.Y. & a tax break to farmer’s
cooperatives
i. S.C. held that congress does NOT have the authority to grant the Pres.
authority to cancel portions of legislation after it has been enacted b/c
Pres is actually creating a new law and that is job of the legislature.
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1. Pres. role in lawmaking is initiating, influencing, & vetoing
legislation.
2. This statutory cancellation occurs after the bill becomes the law
and is thus a repeal, not a veto.
3. Const. veto is of the entire bill, not just specific parts.
C. Administrative Power and the Constitution
1. Role of Administrative Agencies
a. Legislative Power ~ promulgate rules that have the force of law
b. Executive Power ~ bring enforcement against violators of rules
c. Judicial Power ~ employ administrative law
2. The Non-Delegation Doctrine & its Demise
a. The principle that congress may not delegate its legislative power to admin.
agencies.
b. The non-delegation doctrine forces a politically accountable congress to make
the policy choices rather than leaving it to unelected officials.
i. Keeps const. structure of checks & balances solid.
3. A.L.A. Schechter Poultry Corp. v. U.S. (1935) – Congress may not delegate law-making
authority to an executive agency w/out prescribing specific standards for exercise of that
authority.
a. Congress cannot delegate huge amounts of legislative power.
4. Panama Refining Co. v. Ryan (1935) – congress delegated to the Pres. the power to restrict
or prohibit the interstate & foreign transport of petroleum.
a. S.C. violation of the sep of powers for congress to delegate law-making
authority to the pres. w/out imposing standards or limiting that authority.
5. John Mistretta v. U.S. (1989) – congress delegated legislative authority to US Sentencing
Commission to develop mandatory guidelines that fed judges would have to apply in setting
sentences for fed crimes.  held uncost. delegation of power to the judicial branch.
a. S.C. held okay b/c laid down intelligible principle to which the person or
entity is directed to conform.
i. Congress must lay down by legislative act, an intelligible principle to
which the person or body authorized is directed to conform (unlike the
ones used in ALA Schechter & Panama Refining Co.)
1. Complex society makes it necessary for congress to delegate a
certain amount of power to admin. agencies.
ii. Congress needs to delineate 3 items:
1. the general policy
2. the agency when is to apply it
3. the boundaries of this delegated authority
6. Whitman v. American Trucking Assoc., Inc. (2001) – S.C. held that delegation of power to
the administrator of the EPA was okay.
a. Standard = Intelligible Principle  a principle developed by congress to which
the person or body authorized to act is directed to conform. The Clean Air Act
provides guidance to EPA (set standards that are needed to protect health).
D. Checking Presidential Power
1. Legislative Veto was another way for congress to control admin agencies.
a. Thru legis veto, congress kept a “veto” power over the actions of agencies
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i. Could make them report their activities
ii. Congress reserved right to veto if it felt agency overstepped its bounds
b. INS v. Jagdish Rai Chadha (1983) – Art. I Sec. 8 of the Const. gave congress the
right to establish rules of naturalization/immigration. Congress gave Atty. General, in
the Immigration & Naturalization Act, the authority to suspend deportation of aliens in
certain situations. However, to retain some control, Congress reserved to itself a legis.
veto over each decision by the Atty. General suspending deportation. The veto could
be exercised by a resolution passed by either house w/in a certain time after the
decision to suspend deportation.
i. S.C. declared unconst. the legislative veto! Congress, by reversing the
Atty. General’s decision on a deportation matter was in effect creating
law & to do so it must conform w/ the constitutionally prescribed
manner (passage by both houses and then sign by the pres) Just b/c
legis veto was more convenient is irrelevant.
1. Almost every legislative act must be considered & passed by
both houses of congress & then presented to the Pres. for
signature.
2. Unconstitutional b/c it violates both:
a. Bicameralism Clause (both houses must pass a bill).
b. Presentment Clause (requiring every bill to be presented
to the Pres. for signature).
E. Checking Administrative Agencies
1. Congress can control admin. agencies thru statutes
2. Congress controls the budget & can use this to exercise an important check on their
work.
3. Appointment Power
a. The President is given the power to appoint federal officers
b. Principal Officers: the Pres nominates & Senate must approve nomination.
c. Inferior Officers: Congress may assign appt. of inferior officers to the Pres,
Dept. Heads, or the Court. Congress may not
d. Morrison v. Olson (1988) – the question the Act concerned was whether the appt. of
independent counsel was considered inferior. S.C. held office to be inferior.
i. Elements of showing inferior officer (independent counsel):
1. Subject to removal by a higher exec. branch
2. Empowered to perform limited duties
3. Office is limited in tenure
4. Limited in jurisdiction
F. Checks on the President
1. Suing the President: Civil Suits
a. Nixon v. Fitzgerald (1982) – Pres. has ABSOLUTE IMMUNITY from civil
suits while in office.
i. Must be empowered w/ the max ability to deal fearlessly & impartially
w/ the duties of his office. Precludes a particular private remedy for
alleged misconduct in order to advance compelling public interest.
b. Clinton v. Paula Jones (1997) – Absolute immunity extends to the President’s
official acts only. The President has no immunity – not even temporary
immunity – for acts not taken in his official capacity as President.
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2. Ultimate check on Presidential powers is impeachment
a. Art. II Sec. 4 of Const.
b. “Treason, Bribery, High crimes & misdemeanors”
i. Serious threat to society OR
ii. Whatever the House believes to be “high crimes & misdemeanors”
1. S.C. refuses to hear the matter on the ground that it is a political
question.
c. House of Rep votes for impeachment and Senate tries the Pres.
i. Senate needs 2/3 vote for impeachment
III. FREE SPEECH METHODOLOGY
A. Introduction
1. History
a. 1st Amend. “Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of people peaceably to assemble, and to
petition the gov’t for a redress of grievances.”
i. 1st applies to state and local gov’t if it infringes on speech, too.
However, apply thru 14th Amend.
b. Reaction against England’s oppressive restrictions
2. Why is Freedom of Speech a Fundamental Right?
a. Self-Governance
i. Crucial in a democracy; people can influence their government’s choice
of policies
b. Discovering Truth
i. Truth is likely to emerge from a clash of ideas
c. Advancing Autonomy
i. Allows individuals to engage in self-expression
d. Promoting Tolerance
i. Help shape the intellectual character of the society
*Starting Point is to figure out whether content-based (S/S) or view-pt. based (worse
content-based) OR content-neutral (I/M)
*Ask: does the regulation really infringe on speech b/c if it doesn’t, then the 1st isn’t in
play.
B. Free Speech Methodology
1. The Distinction B/T Content-Based & Content-Neutral Laws
a. Content-Based
i. S/S
ii. Gov’t regulations on speech that impose differing burdens on various
types of communication based on their content.
b. Content-Neutral
i. I/M
ii. Gov’t regulations that affect all communications equally, regardless of
the message being communicated.
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iii. To qualify as “content-neutral” regulations must be both:
1. Subject-matter neutral (not disallow discussion of certain topics)
2. View-pt neutral (doesn’t distinguish b/t various positions on an
issue).
2. Gov’t Speech Regulation is Legal if:
a. It is content-neutral
b. The law is not vague or overbroad
c. It is not a prior restraint
3. Cases
a. Turner Broadcasting System v. FCC (1994) – A fed law requiring TV providers to
devote some channels to local, educational broadcasters is deemed content-neutral.
(I/M)
i. I/M will find content-neutral const. if”
1. It advances important gov’t interests
2. Which are unrelated to the suppression of free speech AND
3. Doesn’t burden more speech than is necessary to further those
interests.
b. Republican Party of Minn. v. White (2002) – Minn. S.C. prohibits candidates for
judicial election from announcing their views on disputed legal & political issues b/c
wanted to further impartiality of the state judiciary and enhance the appearance of
impartiality of the state judiciary.
i. S.C. held NO! Rule is not a good match for the goal even if furthering a
compelling gov’t interest. S/S  b/c the clause prohibits speech on the
basis of its content and burdens a category of speech that is at core of
1st. Amendment.
1. Dissent says diff. b/t judges and other politicians. Can regulate
judges but not another political office.
4. Determining Whether Laws are Content-Based
a. Boos v. Barry (1988) – Anti-soviet picketers challenged a statute prohibiting antigov’t signs w/in 500 ft of embassy if disrespectful.
i. S.C. held it was Content-Based, S/S
1. For speech regulation to be content-neutral it must be both
Subject-Matter Neutral & Viewpoint Neutral
ii. Here, O’Connor says it is Viewpt. Neutral b/c regulation doesn’t favor
either side of controversy, but it is Subject-Matter Based b/c have to
know content on signs
b. Simon Schuster v. Members of the NY State Crime Victims Board (1991) – Son
of Sam Law giving proceeds from criminal’s autobiography to victims’ family.
i. S.C. held it is Content-Based b/c it was a restriction based upon specific
content of expression.
1. Compelling gov’t interest to compensate victims of crimes
2. Not narrowly tailored, though. Why? Overinclusive.
5. Problems in Applying the Distinction b/t Content-Based & Content-Neutral Laws
a. City of Renton v. Playtime Theaters (1986) – porn theaters challenged city zoning
ordinance requiring it to be located 1000 ft away from residential, school, churches,
etc… Purpose was to work on bad things that come from movies.
Time
Place
Manner
i. S.C. held must be analyzed as Content-Neutral “Time/Place/Manner”
regulations b/c they are aimed at the porn’s secondary effects rather
than its content.
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ii. T/P/M = permits speech but limits it to certain times, places, & manners.
1. Acceptable only if they are designed to serve subt. gov’t
interests and do not limit alt. avenues of communication
unreasonably..
2. Purpose = secondary effects  I/M scrutiny
*Recap: A law that on its face regulates speech based on its viewpt. or message will be presumed
to be content-based, but the gov’t can refute this by persuading a ct. that the regulation is justified
by a content-neutral desire to avoid undesirable secondary effects of the speech. The contentneutral justification must be truly unrelated to the desire to suppress speech & it must be unique to
the speech suppressed as compared to the speech allowed.
6. Gov’t May Make Content-Based Decisions when Awarding Grants for Artistic Merit
a. Nat’l Endowment for the Arts v. Finely (1998) – congress amended NEA’s Act to
judge applicant’s artistic merit to “take into consideration general standards of decency
& respect for the diverse values & beliefs of the American public” Several
controversial artists were rejected for grants and sued.
i. S.C. held gov’t may fund art based on its assessment of its artistic
content as long as it does not:
1. Abuse its discretion by penalizing disfavored viewpts.
2. Violate other const. rights.
*Remember: Challenge to a Law on its Face
v.
- don’t need to look at its application
- there is no valid application
- difficult
As Applied
- I don’t care about the statute as a
whole, but how it applies to me is
unconst.
C. Vagueness & Overbreadth
1. Vagueness:
a. A law is unconst. vague if a reasonable person cannot tell what speech is
prohibited & what is permitted.
b. Unduly vague laws violate due process whether or not speech is regulated
c. Allows facial challenges to laws even by those whose speech otherwise would
be unprotected by the 1st.
d. Coates v. City of Cincinnati (1971) – vague ordinance: “3 or more persons to
assemble on any of the sidewalks & conducting in a manner that is annoying to
passers-by”. Void for vagueness & for restricting const. protected speech.
2. Overbreadth
a. A law is unconst. overbroad if it regulates subt. more speech than the const.
allows to be regulated AND a person to whom the law const. can be applied can
argue that it would be unconst. as applied to others.
b. A law must restrict significantly more speech than the const. allows to be
controlled. “Subst. Overbroad”
i. Overbreadth suits don’t require standing; plaintiffs can claim the law
may be applied in other situations, to other people
ii. Overbreadth is inapplicable to commercial speech
c. Virginia v. Hicks (2002) – Ct. says RRHA regulation prohibiting trespassers is not
overbroad. Hicks sued after being barred from entering housing complex. People that
want to pass out leaflets will fit into legitimate business purposes.
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D. Prior Restraints
1. Definition = an administrative system or a judicial order that prevents speech from
occurring. Speech restriction made in advance. (i.e. injunctions/licensing)
a. Suspicious in eyes of ct. and gov’t can rarely justify
2. S.C. has found that it is the worst form of gov’t regulation of speech. Why?
a. Because they prevent speech from ever occurring.
b. Collateral Bar Rule ~ a person violating an unconst. law may not be punished,
but a person violating an unconst. prior restraint generally may be punished.
i. Ex: Ct. enjoins you from marching but you march anyway & get held in
contempt.
ii. But, if you are punished for violating an unconst. ordinance, your
punishment gets taken off.
3. Court Orders as a Prior Restraint
a. Near v. State of Minn. (1931) – a state procedure for closing down as a public
nuisance any “malicious, scandalous, & defamatory newspaper” was used to enjoin the
publication of a newspaper that charged that a Jewish racketeer controlled Minn.’s
gambling & bootlegging.
i. S.C. held that it was a violation of the 1st b/c equivalent to censorship.
ii. Prior Restraints are INVALID unless:
1. they protect nat’l security during wartime
2. restrict obscenity
3. protect against incitement to violence or forcible overthroe of
gov’t
4. Court Orders to Protect National Security
a. NY Times v. U.S. (1971) – “Pentagon Papers” – NY Times and Wash Post obtained a
stolen classified Defense Dept. report on the Vietnam War & published it. The US
sued to enjoin publication.
i. Plurality said if the gov’t wants to impose restraints to protect nat’l
security, its burden of proof is high. Lower ct found that the US didn’t
meet the burden and SC agreed.
ii. Some justices suggest that any prior restraint should come in the form of
a congressional statute.
5. Court Orders to Protect Fair Trials
a. Nebraska Press Assoc. v. Stuart (1976) – Court issued gag order preventing the
media from reporting facts about a mass-murderer on trial, such as his
confession and other incriminating evidence.
i. S.C. held violation of the 1st Amend. Ct. has a heavy presumption of
invalidity which must be analyzed by applying Learned Hand’s test. The
restraint should be allowed only if the “gravity of the evil”, discounted
by its improbability, is greater than the damage from impairment of 1st
Amend rights. Examine:
1. The nature & extent of pretrial news coverage
2. Whether other measures would be likely to mitigate the effects
of unrestrained pretrial publicity &
3. How effectively a restraining order would operate to prevent the
damage
Also, the precise terms of the retraining order are important.
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ii. S.C. said there are alternatives such as change in venue, clear jury
instructions, etc… Pretrial publicity cannot automatically be assumed to
render the later trial unfair.
1. On balance (Hand), it was not sufficiently established that the
benefits of the gag order outweighed the 1st Amend dangers.
6. Court Orders for Seizing the Assets of Businesses Convicted of Obscenity Violations
a. Alexander v. U.S. (1993) – pornographer convicted of violating RICO; US obtained
forfeiture of Alexander’s entire porn business worth $9 mil proving it was engaged in
racketeering.  says unconst. prior restraint b/c it prohibits future protected speech
(porn) based on past unprotected speech (obscenity)
i. S.C. held no prior restraint b/c Prior Restraint refers only to admin &
judicial orders forbidding certain communications when issued in
advance.
1. RICO forfeiture did not forbid  from engaging in any
expressive activities in the future, nor does it require him to
obtain prior approval for any expressive activities. He just can’t
finance these enterprises w/ assets derived from prior
racketeering offenses.
7. Licensing as a Prior Restraint
a. Licensing or permit laws are only allowed if the gov’t has (1) an important
reason for licensing & (2) if there are clear criteria leaving almost no discretion
to the licensing authority and (3) have procedural safeguards too! (i.e. full and
fair hearing).
b. Important reasons for licensing:
i. Preserving order
ii. Affording opportunity for proper policing by giving the police advance
notice of demonstrations.
c. Lovell v. City of Griffin (1938) – Jehovah’s Witness challenges ordinance banning
all pamphleteering w/out prior written permission.
i. S.C. held unconst. b/c when the gov’t requires a license/permit b/f
making certain communications, this is a classic “prior restraint” and
thus usually impermissible.
d. City of Lakewood v. Plain Dealer Publishing Co. (1988) – Ordinance gave mayor
discretion of denying applications for annual newsrack permits.
i. S.C. held unconst. b/c for licensing to be valid it must:
1. Limit the licensor’s discretion AND
2. Give express standards for deciding whether to grant the permit.
e. Freedman v. Maryland (1965) – Maryland law made it unlawful to exhibit a motion
picture w/out a license.
i. S.C. held that licensing system presents grave dangers to Freedom of
Speech. There must be procedural safeguards
1. Prompt determination by the gov’t whether to issue or deny the
license request.
2. Full & fair hearing b/f the speech is prevented
3. Prompt and final judicial determination of the validity of
preclusion.
f. Watchtower Bible v. Village of Stratton (2002) – village required licensing permit
in order to engage in canvassing.
13
i. I/M b/c neutral regulation, but NOT narrowly tailored. 3 interests shot
down by the ct. 1. prevention of fraud 2. prevention of crime 3.
protection of resident’s privacy.
g. Thomas Hemp v. Chicago Park District (2002) – facial challenge; content-neutral
b/c dealing w/ t/p/m; if conducting large-scale event you need a permit. This goes
towards safety, noise, & organization.
i. Gov’t has an important interest maintaining order in the parks
1. Discretion doesn’t turn on speech-related activity. Ct. says that
if you can show that the discretion is used in a way that
suppresses speech then might have an applied case.
2. Procedural safeguards. Here not an issue (not like Freedman).
E. What is an Infringement of Speech
1. Civil liability & Denial of Compensation for Speech
a. Civil liability for speech, even in the context of private civil litigation is an
interference w/ speech & thus must meet 1st scrutiny.
2. Prohibitions on Compensation
a. U.S. v. Nat’l Treasury Employees Union (1995) – congress enacted a law in ’89
that prohibited fed employees from accepting compensation for making
speeches/writing articles in order to discourage top officials from neglecting their
official duties.
i. S.C. said unconst. Although not content-based or viewpt. based, still
imposes a significant burden on their expressive activity. Overbroad!
1. Also imposes a significant burden on the public’s right to read &
hear what the employees would otherwise have written.
2. Ban is ineffective, too, b/c most writings are unrelated to their
jobs
3. Rehnquist says can’t make such a distinction b/t the levels of
gov’t. (Dissents)
3. Compelled Speech
a. West Virg. State Board of Educ. v. Barnette (1943) – Jehovah’s witnesses refused
to salute the flag & got expelled.
i. S.C. held content-based b/c telling teachers and students what to say.
Fails S/S. Can’t compel silence or speech, whether verbal or symbolic,
except to prevent “clear & present danger of crime”.
b. McIntyre v. Ohio Elections Commission (1995) – Ohio prohibits the distribution of
campaign literature that doesn’t contain the name & address of the person issuing the
literature. , a private citizen not running for office, distributes handbills opposing the
waste of tax dollars & didn’t list name or address. She got fined & sued.
i. S.C. held unconst. b/c abridged her freedom of speech.
1. Content-based b/c have to say your name  fails S/S; here there
are legit reasons for writing anonymously & having anonymous
works enter the mktplace outweighs the public interest in
disclosure.
2. Political communication is protected under the 1st.
c. Buckley v. American Const. Law Foundation, Inc. (1999) – Colorado enacted
election laws requiring paid petition-circulators to wear an identification badge listing
their names to allow identification of those who commit misconduct to cops.
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i. S.C. held unconst.  badge restraint on speech is great & discourages
participation in the petition circulation process.
4. Unconstitutional Conditions Doctrine
a. Principle that the gov’t cannot condition a benefit on the requirement that a
person forgo a const. right.
i. Similarly, the gov’t cannot deny benefits for exercising one’s const.
rights.
b. Spieser v. Randall (1958) – veterans & prop tax exemption but have to take an oath.
Unconst.
Unconst.
Const.
Const.
Unconst.
S.C. held unconst. b/c denial of a tax exemption for engaging in certain speech will
necessarily have the effect of coercing claimants to refrain from the proscribed speech.
c. League of Women Voters (1984) – statute prohibited any noncommercial
educational broadcasting station which received grant money from engaging in
editorializing.
i. Limitation attaches to entire operation (unlike Rust where the fed $
contained a restriction on the use of the fed dollars).
d. Regan v. Taxation w/ Rep of Washington (1983) – S.C. upheld a provision of fed
tax law that conditioned tax exempt status on the requirement that the organization not
participate in lobbying.
e. Rust v. Sullivan (1991) – Title X of the Public Health Service Act provides fed
funding for family planning clinics. None of the funds may be used in programs where
abortion is a method of family planning. Grant recipients challenged the reg. saying it
(1) is viewpt. discrimination b/c only allowed anti-abortion speech and (2) violated
unconst. conditions doctrine.
i. S.C. held CONST.!!!!!!!!!!! for the gov’t to selectively fund programs
which encourage certain activities in public interest w/out also funding
alternatives.
1. The regulations here do NOT constitute viewpt. discrim.
a. When the gov’t decides to fund a program, the const.
doesn’t require it to also fund alt. approaches.
b. The decision not to subsidize a right is not deemed to
infringe that right. Gov’t is speaking thru 3rd party.
2. Regulations do NOT implicate the unconst. Doctrine.
a. Here, regulation doesn’t deny benefits but merely
ensures funds are spent for the purposes authorized.
b. Doesn’t force  to give up pro-abortion speech but just
keep separate from Title X activities.
f. Rosenberger v. Rector of the Univ. of Virg. (1995) – Gov’t as a funder of 3rd party
speech. Univ. gave $ to organizations to increase diversity of opinions, but not to
religious groups.
i. S.C. held unconst. Once the gov’t chooses to fund some 3rd party
viewpts. it cannot choose which ones to fund based on the viewpt. of the
speaker.
*Gov’t as speaker = viewpt. funding decisions can be sustained in instances in
which the gov’t itself is the speaker or in instances like Rust where the gov’t used
private speakers to transmit info pertaining to its own program.
~Viewpt. restrictions are not proper when the gov’t does not itself speak or
subsidize transmittal of a message it favors but instead expends funds to
encourage a diversity of views from private speakers (Rosenberger).
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Unconst.
g. Legal Services v. Velaquez (2001) – Legal Services Corp. Act – Atty. can’t provide
representation if the person is trying to amend or change welfare laws
i. Case is more like Rosenberger, not like Rust (where gov’t was speaking
of a message it favors – tell patients about right to life, not abortion)
Here, it was a private atty. that was speaking, not gov’t. Subt.
restriction placed on speech. Violation of 1st.
Side note: Look at the role the gov’t is playing. Is it acting like a regulator? Is it providing a
subsidy? Or, is it speaking and conveying its own message?
Gov’t
regulator
subsidy (look carefully at purpose)
speaker
5. Government Pressures
a. Is it an infringement of speech if the gov’t places pressure on individuals to
refrain from 1st Amend. behavior w/out actually prohibiting it in any way or in
any way penalizing speech? Cases are mixed.
IV. UNPROTECTED AND LESS PROTECTED SPEECH
~When should the gov’t be able to suppress or regulate speech?
A. Introduction
1. Categories of speech
a. Protected speech (political)
b. Less protected (porn / commercial speech)
c. Unprotected (obscenity/incitement of illegal activity/fighting words)
2. R.A.V. v. City of St. Paul (1992) – hate speech ordinance unconst. b/c content-based
and failed S/S.
B. Incitement to Illegal Activity
1. Introduction
a. During WWI & years immediately following S.C. applied “Clear and Present
Danger Test”
b. During the 1920s and 1930s S.C. used “Reasonableness Test”
c. During 1950s S.C. reformulated the Clear and Present Danger Test as a Risk
Formula (Hand Test).
d. During the 1960s thru now the S.C. has narrowly defined incitement to
maximize protection if speech.
2. The Clear & Present Danger Test
a. Schneck v. U.S. (1919) – Congress enacted the Espionage Act making it a crime to
“willfully obstruct the recruiting or enlistment service”; Wartime anti-draft
pamphleteers were convicted of violating Act.
i. S.C. held Act const. b/c the 1st Amend does not protect speech which is
used under such circumstances and is if such nature that it creates a
clear and present danger of inciting illegal activity.
1. Accords greater weight to the gov’ts interest in maintaining its
war effort.
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2. Ask whether the words are of such a nature as to create a danger
that they will bring about the evils congress has a right to
prevent.
b. Frohwerk v. U.S. (1919) – Pro-German newspaper writer wrote 12 articles
criticizing America’s involvement in the war and advocating stopping the war.
i. S.C. reaffirms “Clear & Present Danger Test”. ’s paper was circulated
in quarters where a little breath would kindle a flame and he knew this.
c. Debs v. U.S (1919) – An anti-socialist who made an anti-draft speech to drafted men
was convicted under Espionage Act of obstructing the draft.
i. S.C. held that 1st does not protect speech that creates a clear & present
danger.
d. Abrams v. U.S. (1919) – Pro-bolshevik anarchists produced and circulated a leaflet
which said American capitalists intended to ally w/ German militarists to crush
Russian workers & urged munitions plant workers not to make weapons for use against
the Russians.
i. S.C. held their speech was not protected
*Holmes Dissent (even though he wrote the preceding 3 opinions) – talks about
mktplace of ideas and that the Clear & Present Danger Test should be applied by
examining the actual likelihood of danger created by the speech; here, no immediate
danger.
3. The Reasonableness Approach
a. S.C. applied during 20s & 30s Red Scare Era
b. Giltrow v. U.S. (1925) – 1st case that indicated that the 1st Amend applied to the
states thru the its incorporation into the Due Process clause of the 14th. NY enacted a
criminal anarchy statute banning advocacy of unlawful overthrow of gov’t. A
communist radical was jailed for urging revolution.
i. S.C. held that the statute was not unreasonable and arbitrary. Valid
exercise of police power to allow state to preserve itself. Viewed in
favor of statute’s validity.
ii. NY has a rational basis and that’s all it takes.
c. Whitney v. CA (1925) – CA enacted Criminal Syndicalism Act making it illegal
to join any organization which advocated revolution. Whitney organized the
radical communist labor party and was found guilty of violating Act.
i. S.C. held that a state may ban joining an organization which advocated
overthrow by illegal means as long as the ban is not unreasonable.
1. Here, reasonable for state to find that such united action is more
dangerous to public peace than isolate, individual action.
4. The Risk Formula Approach
a. Dennis v. U.S. – Communist party organizers convicted of violating Smith Act; never
directly advocated immediate violence or revolution but said they should eventually
seize power.
i. S.C. upheld convictions. Did not use C/P/D test but adopted a
balancing test instead  whether the gravity of the evil discounted by
its improbability justifies such an invasion of free speech as is necessary
to avoid the danger. (Judge Learned Hand).
1. Gov’t needs power to protect itself from anarchy
2. Gov’t may prevent attempted revolutions even those doomed to
fail.
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ii. In this case the evil’s seriousness became a substitute for immanency
requirement.
*The more dangerous speech was, or the greater the gravity of the act that
it advocated, the less c/p/d has to be in order to justify gov’t action.
iii. Ct. doesn’t want to be perceived as interfering w/ country’s ability to
fight communism.
5. The Brandenburg Test
a. Brandenburg v. Ohio (1969) – KKK member denounced blacks, and Jews &
called for revenge against the gov’t for not upholding white supremacy. He
More narrow
was convicted of violating Ohio’s criminal syndicalism statute.
view of const.
i. S.C. declared the statute void. The gov’t cannot criminalize advocacy
protection of
of a crime except where such advocacy is:
speech.
1. Intended to incite
2. Imminent lawless action, and
3. Is likely to produce such an action
b. Brandenburg Test =
i. Express advocacy of law violation
ii. Advocacy that calls for immediate violation of the law
iii. The immediate violation must be likely to occur.
c. Brandenburg, Hess, and NAACP  much more speech protective terms. Only
can be convicted for incitement if it is proven that there was a likelihood of
imminent illegal conduct and if the speech was directed as causing imminent
illegal conduct.
Side Note: earlier decisions like Schneck, Giltrow, and Whitney were decided in tense
times where the social climate was that of suppressing speech. Only in the unfortunate
event that such times occur again will it be possible to know if the Brandenburg test better
succeeds in protecting dissent in times of crisis.
C. Fighting Words, the Hostile Audience, and the Problem of Racist Speech
1. Danger that the audience might be lawless in its reaction against the speaker
2. Fighting Words
a. Chaplinsky v. New Hampshire (1942) -  was arrested for provoking cop w/ insults.
i. S.C. held that the 1st Amend does not protect “fighting words” which
inflict emotional distress or tend to incite listeners to retaliate violence.
ii. Definition of fighting words: those by which their very utterance inflicts
injury or tends to incite immediate breach of peace.
b. 2 situations where speech constitutes fighting words
i. Where it is likely to cause a violent response against the speaker (has to
be a person-to-person)
ii. Where it is an insult likely to inflict immediate emotional harm
*Ct. has never again upheld a fighting words conviction, but also never overruled
Chaplinsky.
c. Narrowing the fighting words doctrine
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i. Likely to be deemed an impermissible content-based restriction b/c it
allows some fighting words but not others based on the content of the
speech.
ii. Today distressing insults enjoy const. protection as long as they don’t
invite violence.
iii. To be deemed fighting words, speech must be targeted at specific
person.
d. Fighting words law invalidated as vague and overbroad
i. Gooding v. Wilson ( 1972) – Wilson was charged w/ violating Georgia’s
code after cursing at cops. S.C. held that speech restrictions are unconst.
overbroad if they are susceptible of application to protected speech either (1)
on their face or (2) as authoritatively construed by the cts.
[Remember ~ a const. Vagueness /Overbreadth challenge to a statute need allege only that the
statute on its face could be applied to curtail const. protected rights. It need not allege the statute
actually was applied incorrectly in this instance.]
e. Narrow fighting words laws as content-based restrictions
i. R.A.V. v. City of St. Paul (1992) – Teen burned cross in a black
neighbor’s yard & was prosecuted under Minn. Bias-Motivated Crime
Ordinance. S.C. held ordinance unconst. b/c even unprotected speech
like fighting words cannot be subject to content-based / viewpt
regulations.
1. Fighting words law will be upheld only if it doesn’t draw
content-based distinction among types of speech
2. Strong presumption against content-based discrimination w/in
categories of unprotected speech
Exceptions  gov’t may impose content-based restrictions where such
content is associated with secondary effects.
 gov’t may regulate against certain conduct even if this
incidentally burdens speech
 gov’t may criminalize threats against gov’t
ii. Effectively, this threatens all fighting words since a law banning all
conceivable fighting words is likely to be so vague or overbroad that it
is void on those grounds.
3. Hostile Audience
a. At first the ct. applied C/P/D test to hostile audiences (Terminillo & Cantwell).
When public speakers incite their audience to imminent riot, police may stop
their speech.
b. Feiner v. NY (1951) – the possibility of a hostile response by an audience can justify
the suppression of speech so long as the suppression is unrelated to the ideal inherent
in the message.
i. Later decisions indicate that the 1st Amend requires that the police try
to control the audience that is threatening the violence and stop the
speaker only if the crowd control is impossible & a threat to breach of
the peace imminent.
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4. Racist Speech
a. Initially, the S.C. held gov’t may punish racist speech as “group libel” if such
punishment is rationally related to preserving the peace.
i. Beauharnais v. Illinois (1952) – a segregationist was convicted for
distributing leaflets libeling blacks.
1. Today most likely would be void for Overbreadth & Vagueness
ii. Wisconsin v. Mitchell (1993) note case on page 1011 – S.C. held const. a
state law that imposed greater punishment if it could be proven that a victim
was chosen b/c of his race.
iii. Virginia v. Black (2002) – Statute: cross burning w/ intent to intimidate
but the mere burning constitutes prima facie evidence of intent.
1. O’Connor says it is an expression and the gov’t can criminalize
if a threat. She further states that the states that the statute is
const. b/c of prima facie clause which makes the whole statute
unconst.  blurs meanings of burning a cross
D. Sexually Oriented Speech
1. Obscenity (unprotected)
a. Generally the Ct. has held obscenity to be unprotected!
b. Roth v. US (1957) – a pornographic bookseller challenged a fed statute banning
mailing obscene materials.
c.
d.
Test for Obscenity
Miller controls
e.
i. S.C. defined obscene materials = material is that which deals w/ sex in
a manner appealing to prurient (exciting lustful desires) interest.
 if a reasonable person found that the material created
prurient desires, then the gov’t could ban it.
ii. S.C. held that obscenity had no redeeming social value & thus is
undeserving of protection.
Paris Adult Theater v. Slaton (1973) – S.C. held that states may restrict
commercial obscenity, even that viewed by consenting adults, to further legit
interests.
i. Legit interests include: maintaining quality of life, preserving the
community environment, setting the tone of commerce, preserving
public safety & maintaining decency, limiting crime.
Miller v. California (1973) – mail order pornographer convicted for mailing
unsolicited ads for pornographic books.
i. New test for obscenity (b/f Miller the gov’t had to argue that obscene
material was w/out social value; Miller rejected and replaced.
1. Whether the avg person, applying contemporary community
standards would find, that taken as a whole, appeals to the
prurient interests.
2. Whether the work depicts or describes in a patently offensive
way, sexual conduct specifically defined by applicable state law
3. Whether the work, taken as a whole, lacks serious literary,
artistic, or political value.
Should Obscenity be a Category of Unprotected Speech?
i. Argument for: community should be able to determine its moral
environment
ii. Opposition: gov’t should not be able to decide what is moral
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2. Child Pornography
a. Child pornography is UNPROTECTED whether obscene or not.
b. NY v. Ferber (1982) – NY banned the distribution of child porn. S.C. held that states
are entitled to greater leeway in the regulation of porno depictions of kids. No
application of the Miller test.
i. States interests are compelling in protecting the physical/mental wellbeing of kids
ii. Child porn is related to abuse of kids
iii. Advertising & selling of child porn provides an economic motive for an
activity illegal throughout the nation
iv. No social value
v. Child porn outside protection of 1st Amend.
The state may regulate child porn if it is:
1. A visual depiction
2. Of sexual conduct specifically described by the state
3. By kids below a specified age AND
4. Must be made w/ knowing violation
c. Ashcroft v. The Free Speech Coalition (2002) – the CPPA is inconsistent w/
Miller and finds no support in Ferber b/c no actual children are being harmed.
i. Leave it to the liberal Kennedy to decide such a gay decision
ii. Gov’t says that trying to eliminate market & discourage pedophiles and
it will be hard to distinguish b/t computer generate & not.
3. Protected, but Low-Value Speech (less protected speech)
a. Zoning Ordinances
i. Young v. American Mini Theaters (1976) – Detroit zoning ordinances
dispersed porno theaters to disperse “skid rows”
1. S.C. held gov’t may restrict zoning of porn. Here, the Ct. admits
the zoning is content-based but upholds it saying that porn
enjoys limited protection under the 1st b/c it is LOW VALUE
a. Distinguished from Renton where the ordinance was
content-neutral.
2. Just a zoning law; you can speak, we are telling you where you
can speak. Society has a greater interest in regulating.
ii. City of LA v. Alameda Books Inc. (2002) – City ordinance prohibiting the
concentration of adult establishments. S.C. upheld LA’s ordinance b/c city
needs only to show that it had evidence reasonably believed to support
rationale.
1. Kennedy says b/f jump into proof of secondary effects, need proof that
businesses are going to disperse not shut down b/c if it shuts down, it
is suppressing speech.
b. Nude Dancing
i. Barnes v. Glen Theater – gov’t may completely ban nude dancing.
1. Applied the test for regulating symbolic speech: a gov’t
regulation is sufficiently justified if it is w/in const. power if the
gov’t; if it furthers an important gov’t interest; if the gov’t
Test for Regulating
interest is unrelated to the suppression of free expression; and if
Symbolic Speech
the incidental restriction on an alleged 1st freedom is no greater
than is essential to the furtherance of that interest.
21
ii. City of Erie v. PAP’s AM (2000) – city enacted an ordinance banning
public nudity claiming such displays promote secondary effects.
1. S.C. held that gov’t may ban nude dancing if (1) its intent is to
prevent its secondary effects ~ rather than its content and (2) its
Reaffirms Barnes
regulation is rationally related to promoting legit state interests.
& Renton
a. Scrutinized less strictly than I/M
b. If gov’t regulation involves interests related to the
expression’s content then it must pass I/M
2. Nude dancing is low value expression!
c. Should there be such a category of low value sexual speech?
i. Nudity alone is not enough to make speech less protected and the
contours of the category of less protected sexual speech never has been
defined.
4. Government Techniques for Controlling Obscenity & Child Pornography
a. Stanley v. Georgia (1969) – holding that the gov’t cannot criminalize private
possession of obscene materials.
i. Const. protects people’s right to receive info regardless of social worth.
ii. But, Stanley should not be read too broadly!
b. Osborne v. Ohio (1990) – S.C. held that the gov’t may prohibit & punish the private
possession of child porn.
c. Recap  the gov’t may prohibit the sale, distribution, and exhibition of obscene
materials even to willing recipients unless in one’s own home (excluding child porn)
5. Profanity and Indecent Speech
a. Cohen v. California (1971) – guy who wore “fuck the draft” on his jacket in a
courtroom.
i. S.C. held that the state cannot punish the public use/display of expletives. His
words were NOT:
1. obscene (not significantly erotic)
2. fighting words (not directed as a personal insult)
3. incitement (no showing of arousal)
-Required examination of audience and the actual results of his speech.
-Decision on what is offensive is individualistic
-Forbidding certain words runs the risk of suppressing certain unpopular ideas.
b. The Broadcast Media
i. FCC v. Pacifica Foundation (1978) – Pacifica broadcasted a monologue
entitled “filthy words” and FCC issued order holding potential sanctions.
1. S.C. held gov’t may impose certain sanctions against radio/tv
broadcasts containing patently-offensive language in certain
circumstances unless the sanctions target their social or political
message.  content-based, but permissible
a. FCC can take CONTEXT into account i.e. time of day,
accessibility to children.
b. Right to be left alone outweighs the intruder’s 1st rights.
Side Note: Content-based restrictions, in some cases, can be enforced and upheld. The language
sanctioned in this case might be protected in another context. People should be able to control what comes
into their own homes (when indecent language is used, control becomes limited).
22
Reconcile w/ Cohen  decision is diff. from Cohen (fuck the draft) b/c there the gov’t cannot limit
offensive speech for the purposes of protecting those who might be offended by it. In Cohen, the speech
was intended to express a political viewpt. and did not invade anyone’s home.
Broadcast media is pervasive & you always don’t get a warning that makes it diff.
c. Telephones
i. Sable Communications of CA v. FCC (1989) – Unconst. restrictions – S/S
– dial a porn banned by FCC. S.C. held that the gov’t may regulate indecent
dial-up phone messages but only to (1) promote compelling gov’t interests &
(2) by using the least restrictive means possible.
1. Here, not narrowly tailored.
2. Diff. from Pacifica b/c dial-up medium requires listeners to take
affirmative steps to receive communications. Not uniquely pervasive.
3. Also, there were safeguards (credit-cards) to protect kids.
d. The Internet (S/S)
i. Reno v. ACLU (1997) – congress enacted 2 statutory provisions to protect
minors from indecent & patently offensive comm. on the internet. S.C. held
the gov’t may regulate the internet to protect kids from indecency but only by
using the least restrictive method.
1. Communications Decency Act is content-based b/c not regulating
secondary effects.
Compelling Interest = Yes, protecting kids
Narrowly Tailored = No, overbroad. Terms are vague & thus
suppresses much valuable, non-porn sexual speech that adults have a
const. right to receive and send to each other.
S.C. determined that the internet can be regulated the same as phone porn but not as much
as broadcast media of tv & radio.
ii. Aschcroft v. ACLU (2002) – Congress enacted COPA diff. from CDA b/c
applies to material displayed on www (not e-mail). Made for commercial
purposes & restricts material that is harmful to minors.
1. Facial challenge, but here the words “community standards” not found
to be subst. overbroad.
e. Cable Television
i. Denver Area Educ. Telecomm. v. FCC (1996) – allowed a cable company to
chose to prohibit the broadcasting of programming that depicts sexuallyoriented material – const.
ii. US v. Playboy (2000) – Statute dedicated to sexually oriented programming
required 2 options: (1) fully scramble programs, but bleeding problems existed
OR (2) Limit their transmission to hours when kids are likely not viewing.
1. S.C. held the gov’t may regulate cable tv to shield kids but must prove
its method least restrictive. Here, less restrictive alternative existed
thus statute failed S/S.
Cable TV = non-broadcast media b/c only subscribers are able to receive it.
iii. US v. American Library Assoc (2003) – fed gov’t gave $ for resources but has
to use filters to block sites. Have to install software but able to disable the
filter.
1. S.C. talks about role of libraries in the communities throughout
history. Here Rehnquist makes analogies to the purchase/nonpurchase of books and says that libraries can and have to exercise
decisions. NO 1st VIOLATION!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
a. Fails facial challenge, but brought b/c didn’t want to have to
wait for a year to bring an as-applied challenge.
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E. Commercial Speech
1. Const. protection for Commercial Speech
a. Valentine v. Christensen (1942) – early cases held purely commercial advertising
Policy supports
protecting commercial
speech
was unprotected.
b. Virg. Board of Pharmacy v. Virg. Citizens Consumer Council (1976) – VA law
barred licensed pharmacists from advertising prescription drug prices.
i. S.C. held commercial speech protected by the 1st Amend.
1. Speech doesn’t lose its protection just b/c $ is spent to project it
2. State may still regulate to suppress commercial falsehoods, deceptive
or misleading ads and ads for illegal acts.
ii. Interests at stake
1. Advertiser ~ purely economic but doesn’t disqualify from 1st
protection
2. Consumer ~ free flow of info
3. Public ~ free flow of info
4. State Interest ~ interferes w/ professional role of pharmacists is weak.
2. What is Commercial Speech?
a. Bolger v. Young Drug Products (1983) – a fed statute prohibited mailing
unsolicited ads for contraceptives.
Commercial Speech
is a content-based
category, but less
protected than other
types of speech.
i. S.C. held commercial speech is a communication which (a) does no
more than propose a commercial transaction OR (b)(i) is an
advertisement AND (b)(ii) references specific products AND (b)(iii) is
mailed for economic reasons
ii. Commercial speech enjoys qualified but subt. 1st protection
-the drug store wants to place ad under regular expression b/c less reg
-the gov’t wants to place under commercial speech b/c allowed more
discretion in regulating commercial speech.
Thus the justifications by the gov’t are insuff. to warrant the sweeping
prohibition of the mailing of unsolicited contraceptive ads.
3. Test for Evaluating Regulation of Commercial Speech
a. Central Hudson v. Public Service Commission of NY (1980) – during a fuel
shortage, Commission ordered regulated energy utilities to cease all advertising that
promotes the use of electricity.
I/M
b. 4 Part Test:
i. Is the speech protected under the 1st?
1. Advertising illegal activities or false or deceptive advertising
which is NOT protected under the 1st.
ii. Is the gov’ts restriction justified by a subst. gov’t interest?
iii. Does the law directly advance the gov’ts interest?
iv. Is the regulation of speech no more extensive than necessary to achieve
gov’ts interest?
c. Here, the speech is protected, there is a subst. interest given our dependence on
foreign oil, but it is not narrowly tailored.
d. S.C. has modified the 4th prong  the gov’t need not use the least restrictive
alt. but it must use a means narrowly tailored to achieve desired objective.
24
i. Fox & Greater New Orleans Broadcasting – rejects the use of the least
restrictive alt. analysis but requires that any gov’t regulation of commercial
speech be narrowly tailored to achieve objective.
ii. 44 Liquormart & Rubin – use language of least restrict alt. analysis.
Rubin v. Coors Brewing – S.C. declared unconst. a few law that prohibited
beer labels from stating the alcohol content of the product. Ct. said that the
gov’t has a significant interest in protecting health & safety of citizens by
preventing brewers from competing on strength BUT can achieve in a manner
less intrusive to 1st rights.
4. Advertising of Illegal Activities
a. Unprotected by the 1st w/out any need to meet the test for incitement
5. False & Deceptive Advertising
a. Do not contribute to the marketplace of ideas or the commercial marketplace in
any useful way.
6. Advertising that Inherently Risks Deception
a. S.C. has held that even true ads that inherently risk deception are unprotected
by the 1st.
b. Restrictions on trade names
i. Friedman v. Rogers (1979) – S.C. upheld a state law that prohibited
optometrists from advertising & practicing under trade names. Why? B/c to
prevent deception to the public.
c. Attorney solicitation of prospective clients
i. Orhralik, Primus, & Shapero establish that states may prohibit atty-in-person
solicitation of clients for profit BUT solicitation where the atty would not
profit directly from the client, or solicitation by mail is protected under the 1st.
d. Solicitations by Accountants
i. Gov’t may not prohibit accountants from engaging in in-person solicitation b/c
not the same power of persuasion and don’t usually go to the hospital.
7. Regulating Commercial Speech to Achieve Other Goals
a. For Sale signs on houses
i. Linmark Assoc. v. Township of Willingboro (1977) – town bans for sale signs
to prevent white flight.
1. S.C. held gov’t cannot restrict commercial communications unless
false or misleading. Here, content-based & township never proves its
interest in promoting racially-integrated housing. Has sufficient
justification but ordinance doesn’t fit. Problem w/ causal connection.
b. Alcohol Products
i. Ct. has refused to allow the gov’t to limit the advertising of alcohol products
based on its goal of decreasing consumption.
ii. 44 Liquormart v. Rhode Island – Rhode Is. banned all ads which made
reference to the price of any alcoholic beverages. S.C. held that RI had subst.
interests in reducing alcohol consumption but this law doesn’t directly advance
them. Ct. applied S/S b/c the regulation is of non-misleading speech
1. No evidence that other types of drinkers other than the poor will
refrain. (fails prong 3 of Central Hudson Test)
2. Other alt. exist such as taxing (fails prong 4 of Central Hudson Test)
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c. Gambling
i. Ct. has permitted the gov’t to prohibit gambling ads in order to reduce
gambling.
ii. Posadas de Puerto Rico Assoc. v. Tourism (1986) – S.C. upheld a Puerto Rico
law that prohibited ads by casinos.
iii. US v. Edge Broadcasting (1993) – S.C. upheld a fed law that prohibited lottery
ads by radio stations located in states that did not operate lotteries.
iv. Greater New Orleans Broadcasting v. US (1999) – S.C. invalidated a fed law
that prohibited ads by casinos. Invoked the Central Hudson Test & held that
the many exceptions permitted in the few law meant that the law could not be
deemed narrowly tailored to achieving its goal of discouraging gambling.
d. Ads by Lawyers & Other Professionals
i. Case law is clear  truthful, non-deceptive ads by lawyers are protected by
the 1st Amend. The ct. refuses to allow the gov’t to reg. atty. ads to improve
the public’s image of the bar, or out of fear that ads will foment litigation or
out of unsupported fear that the public will not understand their content and
thereby will be deceived.
e. Tobacco
i. Lorilard Tobacco v. Riley (2002) – ads have to be 5 ft. or higher & 1000 ft.
away from playgrounds, schools, etc… State regulation on sale of cigarettes
b/c it has been pre-empted by fed law, thus fed law controls & state can’t
regulate. However, cigars and smokeless tobacco need to be addressed. S.C.
applied Central Hudson Test. Prong 1 & 2 satisfied b/c compelling gov’t
interest to prevent addiction by minors.
1. Prong 3: atty. general relied on FDA studies and ct. found them
sufficient.
2. Prong 4: FAILS!!!!!! B/c regulation overbroad; lack of tailoring.
There needs to be a reasonable fit b/t means & end. Eliminates so
much of available locations for advertising. Another concern is if the
goal is to protect kids, then zero in on the ads that are directed towards
kids not adults.
F. Tort Liability for Speech
1. Defamation
[Categories try to strike a balance: they give more weight to speech that is relevant to the
political process & of public interest; they give more weight to reputation when a person
has not voluntarily entered the public domain and when the matter is not of public
concern.]
*Speech subject to tort action is unprotected.
 Public Officials as Defamation Plaintiffs
a. NY Times v. Sullivan (1964) – Police chief sued over false ads suggesting he
harassed blacks. S.C. held that the 1st limits the ability of the gov’t to impose tort
liability. S.C. held that if tort law allows public officials (those who are already public
officials or running for public office) to recover for defamation it must require they:
1. Prove actual malice (knowledge stmt was false or w/ reckless
disregard of whether it was false or not)
2. Prove stmt falsity &
3. Prove all elements w/ clear & convincing evidence
(preponderance isn’t enough)
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ii. Here, Ct. found that the Alabama law chills speech.
b. Public Official Defined
i. Rosenblatt v. Baer: public officials are those who hold positions of such
apparent importance that the public has an independent interest in the
qualifications & performance of the person who holds it.
 Public Figures as Defamation Plaintiffs
Public figures = prominent people in the community (those who actively seek &
obtain public attn. based on their notoriety) but cannot recover for defamation w/
less than proof of actual malice.
-requires that a person take voluntary, affirmative steps to thrust himself
into the limelight
c. Rosenbloom v. Metromedia (1971) – S.C. originally held that the actual malice test
should be used so long as the matter is of public concern, even if the  was neither a
public official nor public figure.
d. Gertz v. Welch (1974) – OVERRULES Rosenbloom; publisher slanders a civil litigator
in a notorious case as a communist & criminal and then claimed privilege against
defamation.
i. S.C. held that states may enact defamation laws which allow non-public ’s to
recover compensatory damages upon proof of any level of fault but cannot
permit punitive damages w/out proof of malice.
ii. Gov’ts interest in protecting public officials/figures is less than its interest in
protecting private people b/c public officials/figures usually have access to
media & other options to counteract false stmts.
 Private Figures, Matters of Public Concern
e. Dun & Bradstreet v. Glenmoss Builders, Inc. (1985) – Greenmoss sued D&B for
defamatory inaccuracies for both compensatory & punitive damages. D&B says credit
reporting is a public issue & punitive damages cannot be awarded w/out proof of
malice.
i. S.C. held that Gertz is limited to matters of public concern EVEN if Private
’s are sued on matters of public concern.
ii. BUT if private figures are slandered on matters of non-public concern they can
recover punitive damages w/out proving malice.
1. Private figures must only prove (1) falsity & (2) negligence by  to
recover compensatory damages.
iii. Here, the ct. found that credit reports are NOT matters of public concern.
f. Times v. Firestone Tire (1976) – divorce case of high profile couple. Wife held to be a
private person b/c she did not thrust herself into public controversy
2. Intentional Infliction of Emotional Distress
a. Hustler Magazine v. Falwell (1988) – Hustler published a parody (exaggeration of
people’s physical features & embarrassment).
i. S.C. held that public figures & public officials may NOT recover for IIED
unless they show that:
1. It contained false stmts. of fact &
2. It was made w/ actual malice
ii. Political parody & satire is an important element of political speech & it if diff.
to distinguish such “core” political speech from the kind involved here
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3. Public Disclosure of Private Facts
a. The privacy-related tort of “public disclosure of private facts” involves publishing nonpublic info which is not of legitimate concern to the public & whose publication would
offend reasonable people.
b. Cox Broadcasting v. Cohn (1975) – tv reporters broadcasted rape victim’s name
violating Georgia law.
i. S.C held that the gov’t cannot impose a criminal or civil liability for
publicizing public docs contents truthfully.
1. Media coverage improves judicial proceedings thru public scrutiny
2. Trials are public events
3. Seems impractical for the state to let people know this info if thet
come to the ct. house but they can’t get it off of the tv.
c. Florida Star v. BJF (1989) – newspaper published rape victim’s name after getting it
from a police report. She received harassing calls, threats, and had to move. She sued
and won compensatory & punitive damages.
i. S.C. reversed ruling & held that if a newspaper obtains truthful information
lawfully obtained, a state may not punish unless there is a need to further a
state interest of the highest order.
1. Here, no such interest is satisfactorily served by imposing liability for
the publication of a rape victim’s name.
d. Bartnicki v. Vopper (2001) – 1st Amend protects truthful matters of public concern.
1st Amend shield is not removed when the publisher of info has obtained the info in
question in a manner lawful in itself but from a source who obtained it unlawfully.
i. Gov’t interests in removing an incentive for parties to intercept private
conversations & interest in minimizing the harm to persons whose
conversations have been illegally intercepted.
1. BUT punishing disclosures of lawfully obtained info of public interest
by one not involved in the initial illegality is not an acceptable means
of serving those ends.
4. Right of Publicity
a. Protects the ability of a person to control the commercial value of his or her name,
likeness or performance.  must prove damages & publicized w/out ’s authorization.
G. Non-Verbal Communication
1. When is Conduct Communicative?
a. Speech includes conduct, too.
b. Spence v. Washington (1974) – peace sign taped to flag found to be protected speech
under 1st Amend.
i. Look at 2 factors:
1. Intent to convey a specific message
2. Subt. likelihood that the message would be understood by those
receiving it.
2. When may the Gov’t Regulate Conduct that Communicates?
a. The O’Brien Test
b. US v. O’Brien (1968) – O’Brien burned his draft card in front of the ct. house &
was convicted of violating amd. making it illegal to alter certificates.
i. S.C. held that when speech & non-speech elements are combined in the same
course of conduct, a sufficient important gov’t interest in regulating non-speech
can justify incidental limitations on 1st freedoms.
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ii. Test for Conduct that Communicates:
1. The regulation is w/in the const. power of gov’t
2. It furthers an important or subst. gov’t interest (not compelling
thus not S/S)
3. That interest is unrelated to the suppression of free expression,
and
4. The incidental restrictions on free speech are no greater than is
essential to further the interest.
iii. Here the Ct. found O’Brien’s action unprotected. Congress has a subst.
interest in the draft and the 1965 Amend. is valid as applied to O’Brien & in its
face. Look to legislative intent.
c. When gov’t interest behind the law is related to the suppression of free
expression  then content-based & S/S/ applies
d. When the gov’t interest behind the law is unrelated to the freedom of
expression (as in O’Brien)  content-neutral and I/M applies
4. Flag Desecration
a. Texas v. Johnson (1989) – The gov’t may not ban flag burning as a means of
expression. S.C. found that Texas’ statute was not justified by its interest in preventing
breach of peace. Texas’ other interest in preserving the flag as symbolizing nat’l unity
fails S/S.
i. O’Brien doesn’t control here b/c 3rd prong  interest unrelated to suppression
expression. Thus S/S applies and it fails S/S b/c punishes only some flag
burning depending on content.
b. US v. Eichman – Congress adopted the Flag Protection Act but Ct. declared it unconst.
5. Spending Money as Political Speech
a. Buckley v. Valeo (1976) – Fed Election Campaign Act sought to limit campaign
contributions & spending, curb candidates obligations to donors, level the playing field
b/t the big and small contributors, keep independently rich candidates from outspending poor ones and curb rising campaign costs.
i. S.C. held the gov’t may limit campaign contributions but NOT
campaign expenditures.
1. Gov’t interest is to stop corruption and perception of.
ii. Political contributions & expenditures are speech not conduct. Thus, no
O’Brien.
$ Contributions = Gov’t may regulate; indirect speech; high gov’t interest b/c
contribution is worse in the sense of corruption & perception of
corruption. Passes S/S
$ Expenditures = Gov’t may NOT regulate; more directly speech; fails S/S
Side note: soft money = campaign contributions which evade fed limits. The limits only apply to
contributions relative to a clearly identified candidate. “Issue Advocacy” evades this restriction and thus
can spend any amount.
b. Criticisms of Buckley
i. Spending = money  gov’t should have decided that it was conduct that
communicates and applied O’Brien which would have allowed the gov’t to
regulate expenditures, too.
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ii. Distinction b/t expenditure and contribution?????
iii. Inadequate weight given to the value of equality of influence in political
campaigns.
c. Fed Election Commission v. Colorado Republican Fed. Campaign Committee (2001) –
political parties are diff from candidates; parties are unique & therefore Buckley
shouldn’t control.
i. S.C. holds that a party’s coordinated expenditures may be restricted.
ii. Thomas dissents and says that coordinated expenditures  expenditures and
that political parties are very different. Even if we accept Buckley, it doesn’t
control here.
d. Nixon v. Shrink Missouri Gov’t PAC (2000) – S.C. held that states may impose
campaign contributions at any amount which does not make contributions pointless.
i. States need not present empirical evidence that corruption exists; can be
presumed from Buckley.
6. Is Corporate Spending Protected Speech?
a. First Nat’l Bank of Boston v. Bellotti – Corp. spending as speech. Mass. enacted a
criminal statute making banning banks and corps from spending to influence
referendum votes, unless it materially affected their prop or assets.
i. S.C. held that the gov’t cannot ban corps from spending to advocate
their opinions publicly.
ii. No distinction made b/t speech by individuals and speech by corps.
iii. Ct. said the law was both over and under inclusive.
RECAP:
1. Contributions by individuals or corps may be regulated
2. Coordinated expenditures by individuals or corps = contributions and may be regulated
3. Independent expenditures by individual or “special corps” is protected
4. Independent expenditures by “regular corps” for issue advocacy is protected but for candidate advocacy
is not protected.
H. Gov’t Subsidies
1. Finley / NEA b/c of special nature, as long as gov’t acts reasonably and is subsidizing –
OK to regulate
V. WHAT PLACES ARE AVAILABLE FOR SPEECH?
A. Gov’t Properties & Speech
1. Initial rejection & subsequent recognition of a right to use gov’t prop for speech
a. Daris v. Massachusetts (1897) – Ct. rejected any claim of a right to use gov’t prop for
speech purposes.
b. Hague v. Committee for Industrial Organization (1939) – S.C. held that the gov’t must
allow public places to be used for speech & can regulate access only to ensure
convenience & maintain order.
i. Traditional public forum ~ streets and parks
c. Schneider v. NJ (1939) – S.C. held that gov’t may regulate pamphleteering to preserve
public safety & permit car / pedestrian traffic but may not ban it to prevent littering.
Content-based.
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2. What gov’t prop under what circumstances?
a. Perry Education Assoc. v. Perry Local Educators Assoc. (1983) – school mail system
found to be a non-public forum.
i. S.C. held 3 types of gov’t prop
1. Public Forums (traditional)
2. Limited Public Forums
3. Non-Public Forums
 Traditional Public Forum – parks/streets/sidewalks
-gov’t regulation: if content based = S/S; if content-neutral = I/M
 Designated Public Forum
-Unlimited (takes gov’t prop & says it is like the parks)  adopts rules of traditional
forum
-Limited to group / subject matter / topics  adopts rules of non-public forums
 Non-Public Forum
-reasonable
-not view-pt. based
3. Public Forums
a. Gov’t prop that the gov’t is const. obligated to make available for speech such
as sidewalks, streets, and parks
b. Gov’t may regulate if:
i. Content-neutral (unless content-based meets S/S test)
ii. Time/Place/Manner restriction must serve important gov’t interest &
leave open adequate alternatives for speech.
iii. Licensing system must serve important purpose, give clear criteria to the
licensing authority that leaves almost no discretion, and provides
procedural safeguards.
iv. Gov’t regulation of speech in public forums need not use the least
restrictive alternative, although they must be narrowly tailored.
c. Content-Neutrality
i. Police Dept. of Chicago v. Mosley (1972) – Chicago’s ordinance prohibits
picketing near schools but allows an exception for peaceful labor picketing.
S.C. held that gov’t cannot exclude certain speakers based on their content,
issue, or viewpt.
1. Once the forum is open to the public, the gov’t can’t admit some
speakers but bar others.
ii. Frisby v. Schultz – Ct. upheld an ordinance that prohibited picketing b/f or
about any residence. Law was permissible b/c it was content-neutral and
narrowly tailored to protect people’s tranquility & repose in their homes.
d. Time Place and Manner Restrictions
i. Hill v. Colorado (2000) – Colorado statute restricted pro-lifer’s sidewalk
counseling. Statute = can’t pass out leaflet or handbill; 8 foot buffer zone.
S.C. held that a law banning speakers from approaching patients entering
health care facilities is a content-neutral, valid t/p/m restriction.
1. Content-neutral  applies equally to demonstrators, regardless of
viewpt. Makes no reference to speech content. Justified by suff.
Gov’t interest.
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2. T/P/M  doesn’t affect displaying signs; states have special interests
around health care facilities to protect patients.
ii. Gov’t may seek to restrict the t/p/m of speech on public prop usually to
minimize disruption. Ex: laws against nighttime demonstrations, rallies in
narrow side streets, & banning public displays of weapons.
e. Licensing & Permit Systems
i. Licensing systems that leave significant discretion to the licensing
authority are declared unconst. b/c they risk the gov’t granting permits
to favored speech and denying them to unpopular expression.
1. Gov’t cannot charge for permits IF they have discretion as to the
amount.
ii. Remember, requiring permits/licenses for speech in public forums is
permissible only if it:
1. Serves an important purpose
2. Sets clear standards for granting/rejecting applicants, which
allows almost no discretion, AND
3. Provides procedural safeguards, like prompt decisions and
judicial review of denials.
f. No Requirement for the use of the Least Restrictive Alternative
i. Ward v. Rock Against Racism (1989) – NY instituted a regulation requiring
performers to use only amplifiers & sound technicians provided by NY city in
order to avoid intrusive noise. S.C. held T/P/M restriction valid b/c
1. Content-neutral
2. Serve significant gov’t interests
3. Leave ample alternative channels of communication
4. Narrowly tailored  means the regulations must promote a subst.
gov’t interest that would be achieved less effectively absent the
regulation. It need not be the least-restrictive or least-intrusive
method.
*Remember this definition of narrowly tailored applies only
to T/P/M restraints. For other speech restraints, narrowly
tailored continues to mean least-restrictive.
4. Limited Public Forum
a. Gov’t voluntarily and affirmatively opens up to speech. As long as the place is
open to speech, all of the rules for public forums apply
5. Non-Public Forums
a. Gov’t may prohibit speech in non-public forum as long as the regulation is
i. Reasonable in light of the purpose served &
ii. View-point neutral
b. Adderly v. Florida (1966) – Jail Property – S.C. held that jail prop is a nonpublic forum & the gov’t may punish trespass there. State has strong security
reasons
c. Greer v. Spock (1976) – Military Bases – S.C. held that military bases are
non-public forums & the gov’t need not permit speech there.
d. Lehman v. City of Shaker Heights (1974) – Public Utility – public bus
service rejected political ads, but allowed commercial ones. S.C. held that
32
when the gov’t operates a commercial venture, it may accept commercial ads
but prohibit political ads.
e. US v. Kokinda (1990) – Sidewalks for access – S.C. held that not all
sidewalks are treated the same. If a sidewalk was made for access rather than
public convenience then it is not a public forum & speech restrictions there are
valid.
i. Reasonable ~ restriction meant to prevent disruption to postal service
ii. View-pt. neutral ~ prohibits all solicitations
f. Internat’l Society for Krishna v. Lee (1992) – Airports – S.C. held that
airports are non-public forums & may ban solicitation. The decision to create a
public forum must be made by intentionally opening up a non-traditional forum
for public discourse.
i. Const. to regulate face-to-face solicitation
ii. Unconst. to regulate distribution of literature b/c city didn’t give enough
reasons.
g. Arkansas Educational TV v. Forbes (1998) – TV – S.C. held that publicly
televised candidate debates are non-public forums. Reasonable and not view-pt.
based. Not a traditional public forum b/c too recent. Not a limited public
forum b/c not designated to an entire class of speakers.
B. Private Property and Speech
1. There is no right to use private property owned by others for speech.
2. Const. doesn’t apply to private prop.
C. Speech in Authoritarian Places
1. Military
a. Parker v. Levy (1974) – Army used its discretion to decide that Levy’s words
justified court martialing. S.C. held the uniform code of the military’s speech
restrictions are not overbroad. Why? 1st offers military personnel less
protection b/c obedience is fundamental to maintaining defense system.
b. Brown v. Glines – Army may impose prior restraints.
2. Prisons
a. Gov’t may restrict & punish the speech of prisoners if the action is reasonably
related to a legit interest.
b. Thornburgh v. Abbott (1989) – prisons are allowed to ban publications. Prison
restrictions on speech are valid if:
i. The gov’ts objective is legit (protecting safety) &
ii. Neutral &
iii. The regulations are rationally related to that objective.
c. Shaw v. Murphy (2002) – Ct. held that prisoners do not possess 1st Amend
rights to provide legal assistance that enhances protection under the 1st.
d. Procunier v. Martinez (1974) – Jails cannot keep inmates from writing letters
outside.
e. Turner v. Safly (1987) – Ct. upheld a regulation that prohibited correspondence
b/t inmates at other prisons.
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Shift from
according
greater
weight to
student’s
rights to the
ct. being
more
restrictive.
3. Schools
a. W. Virg. Board of Education v. Barnette (1943) – S.C. declared unconst. a
statute that required that students salute the flag at the beginning of each school
day.
b. Tinker v. De Moines Independent Community School Dist (1969) – students
wore black armbands to school in protest of Vietnam War. Ct. held public
schools cannot restrict student’s expression unless it materially and
substantially interferes w/ discipline.
i. Diff. from O’Brien b/c there we were really concerned w/ the piece of
paper (draft card)
ii. Here, school never provided any reasonable belief that armbands
threatened disruption
c. Bethel School Dist. v. Fraser (1986) – high school student suspended for
having a speech laced w/ sexual innuendo. The school had a restriction against
obscene language. Ct. held that schools may sanction student’s lewd speech.
i. Distinguished from Tinker b/c student’s speech was disruptive, not
political & definitely not passive. Student was engaged in low-value
speech. Not viewpt. based like armbands.
d. Hazelwood School Dist. v. Kuhlmeier (1988) – principal censored newspaper
but deleted 4 non-objectionable articles b/c on the same pages as 2
objectionable articles. S.C. held that when schools sponsor expressive
activities, they may edit/censor if:
i. Their actions are reasonably related
ii. To legit educational concerns
e. Public schools  public forums
f. Library books – schools may remove books from the library if they are vulgar
and may choose to buy some books and not others, but not in order to deny
students access to their ideas.
D. Public Employee Speech
1. Government as the Employer
2. Method of Analysis:
a. Is it a public concern? ( needs to show) If no, Connick says the case is over.
b. Casual connection b/t the speech and the adverse action.
i. You have to show you were fired b/c of what you said.
c. Government’s burden
i. Pickering Balance
ii. Same action defense
1. Can the gov’t show it would have fired regardless?
*As public concern  the employer’s interest in suppressing the speech 
3. Cases
a. Pickering v. Board of Education of Will County Illinois (1968) – teacher made
erroneous public stmts. about fund issues critical of his employer.
Subsequently he was fired. Public concern.
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i. Pickering Balancing Test = seek a balance b/t the interests of the
employee as a citizen, in commenting upon matters of public concern,
and the interests of the state, as an employer, in promoting the
efficiency of the public services it performs thru its employees.
ii. Ct. found that 1st Amend. rights trumps:
1. False stmts. were made re: $ being spent on athletics
2. No evidence they were made w/ malice or were damaging
3. Accusation not per se detrimental (made after vote)
4. Operation of schools a public concern and thus open to debate
5. Not made w/ great authority b/c matters were obtainable by public
b. Connick v. Myers (1983) – Dist. Atty. sent out questionnaire when she didn’t
want to accept a transfer and later she was fired. S.C. upheld her firing. Ct.
performed the Pickering Balancing Test and found that the 1 comment of public
concern did not outweigh the interests of the employer in preventing disruption
of the office and the destruction of workplace relationships. The rest of her
comments were not public concern.
c. Rankin v. McPherson (1987) – black women clerk for law enforcement says she
hopes they shoot the President. The S.C unfortunately found her firing to be a
violation of 1st rights. Remark about Pres. Regan was a public concern.
i. Since the stmt. was a matter of public concern, the dismissal could only
be justified if the State had legit reasons. Have to look at context the
stmt. was made including time, place, and manner.
1. Here, she was just a clerk w/ no responsibilities & the stmt. was made
to her boyfriend thus no disruption.
4. Misc.
a. What about when gov’t is a contractor?
i. Pickering still applies, but different b/c gov’t is a contractor.
VI. FREEDOM OF ASSOCIATION
A. What is the const. protection for freedom of association?
1. Laws Prohibiting & Punishing Membership?
a. Scales Test  gov’t may punish membership only if it proves that a person
actively affiliated w/ a group, knowing of its illegal objectives, & w/ the
specific intent to further those objectives.
2. Laws Requiring Disclosure of Membership
a. Gov’t may require disclosure of membership
b. NAACP v. Alabama (1998) – State compelled NAACP to disclose of its
membership lists.
i. S.C. held that if disclosure of an expressive assembly’s membership
would chill its speech/assembly, then the state cannot compel it, absent
a valid controlling reason.
1. Here, state did not have compelling interest & NAACP wants to
protect its members.
ii. Must pass S/S
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1. Compelling gov’t interest = be of sufficient importance to
outweigh the rights being subsumed
2. Narrowly tailored = gov’t interest must not be achievable thru
less restrictive means.
c. Buckley v. Valeo (1976) – candidates have to disclose their contributions
(usually upheld to prevent corruption).
d. Brown v. Socialist Worker – unconst. to force disclosure b/c unpopular party
that is so minor that forced disclosure would discourage participation.
3. Compelled Association
a. Abood & Keller – Mandatory organizations (required unions & bar
associations) may collect dues & use them for functions benefiting all members
but may not spend them on viewpt. advocacy.
i. Gov’t has subst. interest in having peace in the workplace so it can force
non-members to pay dues to contribute to collective bargaining activity
(germane act)
ii. Bar dues needed to discipline & propose ethical standards of profession.
CA has sufficient important interest to fund mechanism to which their
activity will be policed.
b. Board of Regents of U of W v. Southworth (2000) – student challenged
mandatory student fee which went to fund various student groups. Students
may be forced to fund activities disprove of.
i. S.C. held okay for state schools to do but need to have viewpt. neutral
safeguards.
ii. Abood doesn’t apply b/c germane speech = student’s speech
4. Political Parties
a. Elrod v. Burns (1976) – democratic sheriff fired Republican employees; political
patronage is the process of replacing non-civil service employees of a diff. political
party when the existing employees lack or fail to obtain requisite support from, or fail
to affiliate with, that party.
i. S.C. held unconst.
1. Sheriff said patronage is needed for efficiency of public employees but
Ct. rejects.
2. Sheriff said patronage is needed for political loyalty of employees do
that gov’t will not be undercut by tactics obstructing the
implementation of policies of new admin. Ct. says non-policy
making individuals have limited responsibility.
*Elrod principles extend beyond discharge – promotions / hiring / demotions
b. Branti v. Finkel (1980) – high level jobs – public defender fired for being a
republican; Test: whether the hiring authority can demonstrate that party affiliation is
an appropriate requirement for the effective performance of the public office involved.
i. S.C. held that public defenders are non-policy makers and that their job
effectiveness depends on how they handle their clients’ needs not on partisan
interests.
5. Laws Prohibiting Discrimination
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*Does the forced association subst. burden the message that the organization wants to
convey?
a. Roberts v. US Jaycees (1984) – Jaycees limited voting membership to be open
to men aged 18-35.
i. S.C. held that gov’t may regulate to force expressive associations to
admit other members non-discriminatorily is that regulation (must pass
S/S):
1. Serves compelling state interests
2. Which are unrelated to suppressing ideas
3. That cannot be achieved thru means less significantly less
restrictive of association.
ii. Freedom of Association
1. Due Process  “intimate associations”; the right to enter into
certain intimate human relationships w/out gov’t interference.
Ct. does protect right to
-usually family relationships: marriage, childbirth, etc…
discriminate in limited
-includes characteristics : small size, high selectivity, secluded
circumstances where
activities.
discrimination is integral
2. 1st Amendment  The right to associate w/ others to
to expressive activity. Ex:
collectively pursue 1st Amend. speech.
Klan
-includes the right NOT to associate w/ someone
-not absolute
iii. Here, Ct. found Jaycees not to be such a close personal group. Also, the Act
serves a compelling purpose of eradicating gender discrimination that cannot
be achieved thru other means.
b. Hurley v. Irish-American GLB Group of Boston (1995) – gays wanted to march
in parade. Council said no.
i. S.C. held that state anti-discrimination laws cannot require private
parade organizers to admit certain groups, if admitting them would
change the groups message.
1. Council has a right to maintain anti-gay viewpt. (as we all
should)
2. Council has a right against compelled speech
c. Boy Scouts of America v. Dale (2000) – boy scouts expelled gay scouts leader.
i. S.C. held expressive associations need not accept members whose
presence significantly impacts their ability to advocate public/private
viewpoints.
1. For associations to qualify, must have some kind of discernable
message, explicit or implicit which will be impeded.
ii. Scouts send message of “morally straight”; By requiring Scouts to keep
Dale as a leader would “force the organization to send a message…that
Boy Scouts accept homosexual conduct as legit behavior. Incompatible
w/ message.
 Does the gov’t have a compelling interest in prohibiting discrimination against
sexuality? Not here. Look at history. No laws passed against discrimination
against gays.
VII. FREEDOM OF PRESS
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*S.C. generally takes the view that the press is not entitled to special rights or protections under
1st. Press is responsible for all laws generally applied to others.
A. Freedom of Press as a Shield from Gov’t Regulation
1. Taxes on the Press
a. Grosjean v. American Press Co. (1936) – press not exempt from ordinary taxation,
but unconst. to direct taxes specifically at them.
b. Minneapolis Star & Tribune Co. v. MN Commissioner of Revenue (1983) –
Minn. changed its tax laws to press’ sales tax exemption under $100k/year. This only
benefited small publications and thus big newspapers sued.
i. S.C. held that the gov’t may not tax the press differently even to benefit it
unless:
1. Necessary
2. To achieve “overriding” gov’t interests
3. Which cannot be achieved thru less restrictive means.
ii. Ct. held that Grosjean doesn’t control (Grosjean involved tax on newspapers
that criticized governor). Here no evidence that Minn.’s motives are improper
iii. Differential taxes are unconst. b/c goal is improper. Fails S/S
1. State offers no reason why it didn’t just use less-restrictive tax
2. Resembles a penalty of big businesses
Exception: Leathers  tax exempted newspapers & magazines but not cable tv; Ct. said
ok b/c not content-based. Gov’t prohibited from having a tax that is directed solely at the
press or distinguishes among the press. Leathers doesn’t involve either of these 2 features.
2. Application of General Regulatory Laws ~ Can we punish the press?
a. Attempts by the press to received const. based exemptions to anti-trust statutes,
labor laws, and liability under state contract law have been expressly rejected.
b. Associated Press v. US (1945) – Ct. expressly rejected the claim that the 1st entitled
Press enjoys no
special immunity
from laws that are
otherwise generally
applicable.
the press to an exemption from fed antitrust laws.
c. Cohen v. Cowles Media Co (1991) – A republican campaign worker offered
newspaper reporters info about the criminal record of opposing candidate. Cohen
offered the info only if the reporters promised not to name him as a source. They did
and he sued on promissory estoppel.
i. S.C. held that generally applicable laws do not offend the 1st Amend. simply
b/c their enforcement against the press has incidental effects on its ability to
gather and report the news.
ii. Not hostile press law. Didn’t adopt for purpose of “getting the press”
1. Promissory estoppel is a law of general applicability and the 1st
doesn’t forbid its application to the press.
2. Press has no special 1st rights
 diff. than Fl. Star b/c here the info was not “lawfully obtained” since paper broke a
promise to get the info.
What about application of tort law? IIED /Libel (not speech-neutral) – look at
whether the individual is a public figure or not.
3. Keeping Reporter’s Sources and Secrets Confidential
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a. Branzburg v. Hayes (1972) – S.C. rejected claim that 1st gives the press a right to
resist subpoenas that requires it to disclose the identity of sources.
i. Press (reporters) is not immune from laws generally applicable to the public
including grand juries’ subpoenas.
1. Requiring disclosure of confidential sources restricts news-gathering
justifiably  to promote the govt’s stronger interest in identifying
criminals.
2. No evidence that criminals would be deterred from talking (or other
informers)
ii. Powell’s concurrence states it should be judged case-by-case to see whether
qualified privilege exists or not –weighing press’ freedom vs. general duty to
testify.
b. Zucher v. Stanford Daily (1978) – the Ct. upheld the ability of the police to search
press newsrooms to gather info to aid criminal investigations
i. Once again rejected claim of special protection for press under the 1st.
ii. Although, here it was more intrusive b/c you don’t have control over what you
disclose. And, no time for you to go to the ct. to suppress.
*After Zurcher, the Privacy Protection Act was enacted in 1980.
4. Laws Requiring that the Media Make Access Available
a. Red Lion Broadcasting Co. v. Fed Communications Commission (1969) – A radio
station challenged FCC regulations (i.e. fairness policy) that required it to give
personally-attacked people a right to reply.
i. S.C. held that gov’t may require broadcasters to give access to opposing views.
1. FCC’s “fairness doc” is w/in congress’ grant of authority to FCC
2. Broadcasting is protected under the 1st, but level of protection varies
for each medium, according to its characteristics.
 in broadcasting, the public’s right to receive diverse programming is
paramount over broadcasters’ speech/editorial rights.
b. Miami Herlad v. Tornillo (1974) – Florida law required newspapers to give candidates
it criticized a free right to reply.
i. S.C. held that the gov’t cannot require newspapers to grant a “right of reply”.
Any gov’t compulsion for newspapers to publish that which they do not want
to publish is unconst.
ii. Also, might chill political coverage by inducing editors to avoid controversy.
 Radio vs. Newspaper – radio is treated diff. b/c you have to come in & get a license.
We give you a license, so as a condition of your privilege, you have a fiduciary duty.
B. Freedom of Press as a Sword to Obtain Info.
1. Does the 1st provide the press w/ a sword that it can use to gain access to gov’t
proceedings & papers?
a. Ct. has recognized that the public has the right to access ct. proceedings
b. Ct. has NOT recognized a preferred right of access for the press.
2. Access to Judicial Proceedings
a. Gannett (1979) – held that the public / press has NO right to access pre-trial
evidentiary hearings. Only covered pre-trial proceedings.
b. Richmond Newspapers v. Virginia (1980) – judge order that a criminal trial be
closed w/ the consent of prosecutor and defense.
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i. S.C. held unconst. The public and the press may not be barred from
attending criminal trials unless overriding interests.
1. Rehnquist’s dissent says const. doesn’t contain any guarantee that the
public may observe criminal trials, but majority says certain
unarticulated rights are implicit.
ii. Why is access important?
1. Maintains public confidence in the administration of justice.
2. Discourages perjury & misconduct of participants
3. Furthers interest of giving  fair trial.
iii. Does the 6th Amend come into play?
1. Right to a speedy & public trial….only if against ’s wishes
*Openness doesn’t necessarily apply to civil trials!
c. Globe Newspaper v. Superior Ct. (1982) – closing ct. proceedings only allowed
if passes S/S (necessary to serve compelling gov’t interest and narrowly
tailored.) Can’t have an across the board order.
d. Press Enterprise (1984) –violation of 1st to close voir dire proceedings to
public.
e. Seattle Times (1984) – Press can’t have access to info produced in discovery in
a civil case that was covered by a protective order.
3. Prisons
*Ct. expressly rejected a 1st right to have access to prisons. Press is NOT entitled
to greater rights.
a. Pell v. Procunier (1973) – CA & fed prison regulation prohibited face-to-face
interviews b/t prisoners & members of the media.
i. Claim of prisoner’s 1st right to talk to media
1. Ct. says NO b/c prisoners enjoy fewer 1st protection out of necessity
2. Gov’t can restrict if content-neutral and if they leave open alternative
means of communication (i.e. write letters)
ii. Reporter’s claim 1st right to interview willing inmates
1. Ct. says DOES NOT exist under const. or ct. precedent.
b. Houchins v. KQED (1978) – 1st doesn’t give the press any special right to enter
gov’t controlled places, except that given to the public.
General Rule – if general public has access, then media has access; if general public
doesn’t then media doesn’t.
-News gathering w/in range of 1st protection, but ct. seems unwilling to open
special doors for the press.
VIII. THE RELIGION CLAUSES
A. Introduction
1. “Congress shall make no law respecting an establishment of religion or prohibiting the
free exercise thereof.”
a. Establishment Clause  applied to states thru Due Process clause of 14th
Amend; prevents the gov’t from taking actions that have the primary purpose or
effect of aiding or inhibiting religion, & also prevents gov’t from entanglement
w/ religion.
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b. Free Exercise Clause  applied to states thru Due Process clause; protects an
individual’s ability to believe in and exercise their faith.
i. Freedom to Believe – absolute right in const.
ii. Freedom to Act – not absolute
c. Both clauses act as co-guarantors of religious liberty “as the framers of the
const. did not entrust the liberty of religious beliefs to any clause alone.”
d. Tension b/t 2 clauses: gov’t actions to facilitate free exercise might be
challenged as impermissible establishments and gov’t efforts to refrain from
establishing religion might be objected to as denying the free exercise of
religion.
2. History in interpreting the religion clauses
a. No apparent agreement among the framers as to what they meant.
i. James Madison believed religion was one of the many factors that
required preservation.
ii. Thomas Jefferson believed religion would corrupt and undermine gov’t
iii. Roger Williams was concerned that gov’t would corrupt religion
3. What is religion?
a. S.C. has never directly defined religion, but considered it in 3 contexts:
i. Under the Selective Service Act
ii. When sincerity of a religious belief is at issue
iii. When a religious belief is protected by 1st, even if it isn’t the dogmatic
or dominant view w/in the religion
b. Religion under the Selective Service Act
i. U.S. v. Seeger (1965) – conscientious objectors – which exempts from
combat training & in army those persons who by reason of their religious
training and belief are conscientiously opposed to participation in war in any
form.
1. Religious belief is defined by the Act as “an individual’s belief in a
relation to a Supreme Being involving duties superior to those arising
from any human relation.
2. Those who sincere & meaningful beliefs occupy a place in their lives
equivalent or parallel to that of an orthodox belief in God, qualify for
the exemption.
ii. Welsh v. US – crucial inquiry is whether the registrant’s beliefs are religious is
whether these beliefs play the role of a religion & function as a religion in the
registrant’s life and not merely political, social, or philosophical views.
iii. Both cases create broad definition of religion (includes non-theistic
views)
c. Requirements for Sincerely Held Beliefs
i. U.S. v. Ballard (1944) – Truth v. Sincerity – Ballard’s convicted for mail
fraud after falsely representing a miraculous communication w/ the spirit
world that gave them the ability to heal the sick.
 “Men believe what they cannot prove & they cannot be put to the proof of
their religious doctrines or beliefs.”
1. S.C. held that finders of fact may only determine if a religious belief is
sincere and may not determine whether the beliefs are true or not.
2. Dissent says how is one to separate an investigation into the sincerity
of a held belief w/out considering the believability of its source?
d. The Relevance of Religious Dogma & Shared Beliefs
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i. Dominant vies in a faith are not determinative in assessing whether a particular
belief is religious.
ii. Thomas & Frazee – inquiry must be whether a particular individual holds a
sincere religious belief, not whether the belief is shared by all of the members
of a religious sect.
e. Lane v. Davey –case b/f the S.C. – Washington has state scholarship program
(for either public or private school) Davey applies and gets awarded scholarship
but he decides to go to private school and study ministry in preparation to
become a pastor. State is now withholding $ from Davey b/c of Blane clause in
the state const.
i. Is there a 1st violation under Free Exercise Clause?
1. Singling Davey out for favorable treatment in an otherwise
content-neutral program violates 1st. It will be analyzed under
S/S.
2. WA is saying that it is like Rust b/c the gov’t can be selective
when subsidizing.
3. Davey is saying that Rust & Regan don’t apply b/c in those cases
the programs were set up for the gov’t to be the speaker. And,
as a speaker, the gov’t can find activities it believes to be in
society’s interests. However the scholarship program is diff.
under Rosenberger –when you choose to fund student
organizations generally viewpt. neutral, you can’t single out one.
B. The Free Exercise Clause
1. The Current Test
a. Reynolds v. State (1878) – S.C. upheld law forbidding polygamy even thou
Mormons claimed it was required by their religion.
b. Sherbert v. Vener (1963) – S.C. overturned a denial of unemployment compensation
based on individualized treatment of a person who could not find employment b/c she
could not work on the Sabbath.
c. Employment Division, Dept. of HR of Oregon v. Smith (1990) – 2 employees lost
their jobs for consuming peyote which they claimed was part of their native American
religion. They were denied unemployment benefits.
i. Generally applicable, religion-neutral laws that have the effect of
burdening a particular religious practice need not be justified by a
compelling interest, unless:
1. Another const. provision is burdened in conjunction, OR
2. The gov’t has provided for individualized treatment in an
employment compensation scheme.
*Ct. in Smith limited Sherbert to cases involving such individualized treatment
Scalia says use the political process, can’t use Free Exercise Clause when the
political process fails you. (i.e. if you aren’t a majority religion)
*When determining the const. of a generally applicable, religion-neutral law under the Free
Exercise Clause, rational basis scrutiny is to be used EXCPET:
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1. The free exercise claim is brought in conjunction w/ another const. provision such as
free speech OR
2. The gov’t has provided for individualized treatment
1993 ~ Congress tried to restore compelling interest by enacting Religious Freedom
Restoration Act
1997 ~ Ct. struck down congress’ attempt in City Boerne v. Flores.
d. Church of Lukumi Babalu Aye, Inc. v. Hialeh (1993) – City enacted ordinances
prohibiting religious practice of animal sacrifices. Ordinances taken as a whole banned
sacrifices by Santeria practitioners.
i. S.C. held that if a law that burdens the free exercise of religion fails to
satisfy the requirements of neutrality & general applicability, it must be
justified by a compelling gov’t interest, and must be narrowly tailored to
advance the interest.
ii. Here, not generally applicable – underinclusive b/c applied only to this
religion.
After Smith & Hialeah, the law of the Free Exercise Clause was that the provision is not violated
by a neutral law of general applicability unless it fails rational basis review, but a law that is not
neutral or of general applicability would be found unconst. unless it meets S/S.
B. The Establishment Clause
1. Competing Theories of the Establishment Clause
a. 3 theories
b. Strict Separation = to the greatest extent possible gov’t & religion should be
separated.
i. Jefferson’s “a wall separating the church.”
ii. Necessary to protect religious liberty
iii. Theory calls for a complete & permanent separation of church & state,
forbidding every form of public aid or support for religion.
*Problem of theory ~ is a complete prohibition of al gov’t assistance to religion
would threaten the free exercise of religion, making a total separation impossible.
c. Neutrality Approach = (endorsement) gov’t must be neutral towards religion;
gov’t cannot favor religion over secularism or one religion over others.
i. “Symbolic Endorsement” test in evaluating the neutrality of gov’ts
action  gov’t violated the Establishment Clause if it symbolically
endorses a particular religion or if it generally endorses either religion or
secularism.
1. O’Connor says test is whether a well-educated & well-informed
observer, who is presumed to possess a certain level of info that
all citizens might not share, would likely perceive an act as an
endorsement of religion.
Clash b/t Freedom of
Speech & Establishment
Clause
a. Capital Square Review & Advisory Board v. Pinette – Klan
wanted to erect a cross across from the statehouse at a park.
Ct. said that excluding the cross violated the Klan’s free
speech rights & that allowing it to be present would not violate
the Establishment Clause.
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 Gov’t saying that we have to place some restrictions on
religious speech b/c otherwise people are going to say that gov’t is
violating Establishment Clause.
2. Ginsberg & Stevens say reasonable person standard
3. Scalia rejected all together in matters of private speech on gov’t
prop.
d. Accommodation Approach = Ct. should recognize the importance of religion in
society and accommodate its presence in gov’t.
i. The gov’t violates the Establishment Clause only if it literally
establishes a church or coerces religious participation.
ii. Lee v. Weisman (1992) – student led prayer at graduation; Ct. says
inherently coercive b/c great pressure to attend graduation and not leave
during the prayers.
1. Scalia takes opposite view of coercion and states that there is
nothing wrong w/ gov’t accommodating religious beliefs.
iii. Supporters argue that it best reflects the importance of religion in
America.
iv. Opponents argue (Scalia) that little will ever violate the establishment
clause.
2. The Theories Applied
a. County of Allegheny v. ACLU (1989) – County displayed a Christmas and
Chanukah decorations on public prop and ACLU sued in violation of
Establishment Clause.
i. S.C. held that the gov’ts acts are unconst. under the Establishment Clause if,
being evaluated in its context, the act has the effect of endorsing religion or
could be understood by viewers to be an endorsement of religion.
1. Ct. decides that crèche is standing alone (unlike Lynch) an thus has the
impermissible effect of endorsing religion.
a. Lynch – crèche not a violation of Establishment Clause b/c Ct.
looks at context and just part of entire display.
2. Ct. decides menorah and x-mas tree are standing together and thus the
2 symbols together were not endorsing the faith but were part of
winter.
ii. Justices all over the place in this opinion
1. Kennedy & 3 – both const.
2. Blackmun & O’Connor – crèche unconst; menorah const.
3. Brennan & 2 – both unconst.
3. Gov’t Discrimination Among Religions – Must pass S/S
a. Larson v. Valente (1982) – A church challenged the const. of an act that
required some religious charity organizations to participate in a system of
registration and disclosure – can only stay exempt if receive over 50% of
contributions from members.
i. S.C. held must pass S/S; here it fails S/S b/c of the 50% rule grants
denominational preferences of the sort consistently and firmly denounced in
precedents.
1. Compelling interest = Yes, prevent fraud in charity
2. Narrowly tailored = No!
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* Initial inquiry is whether the law facially differentiates among religions
(neutrality test). If the law does NOT discriminate on its face, then the inquiry
should be the coercion test. Then to the Lemon test.
b. Board of Ed. of Kiryas Dist. v. Grument (1994) – unconst. a state law that
created a separate school district for a small village that was inhabited by
Hasidic Jews. NY acted w/ an unconst. preference for one religion.
4. Non-Discriminatory
a. Lemon v. Kurtzman (1971) – the const. of 2 states statutes that provided
financial support to private schools, including church-related institutions, were
challenged under the Establishment Clause. Ct. found that 2 states violated 3rd
prong of Lemon Test.
b. Lemon Test – see purpose, effects, entanglement (if challenging gov’t)
c. Endorsement Test
d. Coercion Test (if you are gov’t)
If gov’t fails any prong, it fails the Lemon Test
TEST: (1) The statute must has a secular legislative purpose
-Stone v. Graham: unconst. to require 10 commandments to be posted on public
school classroom; No secular purpose.
-Also, no secular purpose for public school teachers to teach creation science
-Rationale for 1st prong is to keep the gov’t from acting to advance religion.
(2) Its principal or primary effect must be one that neither advances nor inhibits
religion
-The gov’t actions must not symbolically endorse religion or a particular religion.
-Unconst. a statute that provided that no person may be required by an employer to
work on the Sabbath b/c favored religion over other interest. Thorton
-Title VII exemption for religious organizations from prohibiting against discrim.
in employment based on religion. Amos
(3) The statute must not foster an excessive gov’t entanglement w/ religion
-Entanglement = a comprehensive, discriminating and continuing state surveillance
-Ex: gov’t can’t pay teacher salaries in parochial schools, even for teachers of
secular subjects b/c too hard to monitor. Grand Rapids v. Ball
5. Religious group access to school facilities
a. Widmar v. Vincent (1981) – state university’s policy prevented student groups from
using school facilities for religious worship or religious discussion.
i. S.C. held unconst. b/c content-based. Excluding religious speech is not
necessary in order to be consistent w/ establishment clause.
1. Ct. applied the Lemon test and said that opening school facilities to all
groups served the secular purpose of providing a forum for student
mtgs. No state monitoring necessary. No excessive entanglement.
b. Westside Schools v. Morgan (1990) – Fed. Equal Access Act says that any school
receiving fed financial assistance that opens up its facilities to non-curricular student
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groups may not deny equal access to any students who wish to conduct mtgs on similar
terms b/c religious speech.
i. O’Connor applied Lemon Test and found that preventing discrimination
against speech b/c of its religious, political, or philosophical content was a
legit secular purpose. Also, passes 2nd prong b/c letting religious groups to use
school facilities not likely to be seen as endorsement. Passes 3rd prong b/c
faculty sponsors were not permitted to participate actively in religious group
mtgs.
c. Lambs Chapel v. Center Moriches Union (1993) – Ct. declared unconst. a school’s
policy of excluding religious groups from using school facilities during evenings &
weekends.
i. Once gov’t opens up its facilities to community groups, can’t discriminate
against those engaging in religious speech unless S/S was met.
d. Good News Club v. Millford Central High (2001) – Private Christian organization
wanted to meet in school’s cafeteria but was prohibited b/c the proposed use was “the
equivalent to religious worship” and the policy prohibited use for religious purposes.
i. S.C. held Millford’s restriction violates the Club’s free speech rights and that
no Establishment Clause concern justifies that violation.
1. Viewpt. discrimination!!!!!!
a. Policy allowed teaching morals and character (Boy Scouts)
but discriminated against this club b/c found to be religious
although they teach morals and character.
2. No Establishment Clause violation  not coercive, not endorsing, no
entanglement
*Remember, in a limited forum cannot discriminate based on viewpt. & it
must be reasonable.
Viewpt. based is an egregious form of content-based
Religious expression cannot violate the Establishment Clause where it 1) is purely private and 2)
occurs in a traditional or limited forum, publicly announced to all on equal terms.
6. Student religious group’s receipt of gov’t funds
a. Rosenberger v. Rector & Visitors of the Univ. of Virginia (1995) – Univ. refused to
give student activity funds to a Christian group that published an expressly religious
magazine.
i. S.C. declared unconst. Kennedy say gov’t cannot regulate speech based on its
substantive content or the message that it conveys.
1. Group presents legit topics, but religious view on these topics, thus
view-pt. based (taking out Christian perspective on topics normally ok
in forum).
2. Also, here Univ. wasn’t speaking, but choosing to fund speech.
ii. Content discrimination may be permissible if it preserves the purposes of that
limited forum, but viewpt. discrimination is impermissible when directed at
speech otherwise w/in the forum’s limitations.
1. Univ. says it is content-based & not viewpt. based, but Ct. disagrees.
2. Univ. also says want to avoid Establishment Clause violation.
iii. No Establishment Clause violations b/c neutral towards religion & is acting w/
the purpose of helping student groups & fostering an array of activities &
viewpts. on campus.
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“No Establishment Clause violation in the Univ. honoring its duties under Free Speech Clause”
7. Student-Delivered Prayers – Excessive entanglement
a. Santa Fe Independent School Dist. v. Doe (2000) – school policy permitting studentled, student-initiated prayer at football games.
i. S.C. held violation of Establishment Clause! Allowing invocations during high
school football will constitute excessive entanglement b/t the gov’t and
religion in violation of the Establishment Clause.
1. Not the type of forum like in Rosenberger.
*Even if limited forum, the school’s involvement w/ the expression
violates the Establishment Clause!!!!!!!!!!!!!!!!!
2. Silences the minority views & does nothing to protect the minority b/c
the student election system ensures that only those messages deemed
appropriate under the District’s policy may be delivered.
ii. Rehnquist’s dissent talks about tone of hostility towards religion. Non-secular
purpose of solemnizing event.
Note: Could have been struck down w/ Lemon Test as unconst. coercing religious
participation. And could be seen as endorsing religion.
Summary: Limited Forum
 Ok if content-based
(1) Reasonable
(2) Not viewpt. based
 If viewpt. based has to pass S/S
a. The gov’t must show that the Establishment Clause would be violated
 Lemon Test, endorsement, coercion tests
Compelling interest
b. Most often no Establishment Clause violations
-Thus gov’t fails S/S b/c no compelling interest
C. The Establishment Clause & Religion in Schools
1. When does religion impermissibly become part of gov’t activities?
2. Release Time
a. Location is the key! Outside school ok, inside not ok
b. McCollum v. Board of Education (1948) – S.C. declared unconst. a school’s policy of
allowing students to be released, w/ parental permission, to religious instruction classes
conducted during reg. school hours in the school building by outside teachers.
i. Violated “wall of separation b/t church & state”
c. Zorach v. Clauson (1952) – S.C. upheld a school board policy that allowed students to
be released, during school hours, for religious instruction outside of school.
i. Simply accommodating religion & not violating E.C. b/c gov’t funds and
facilities were not being used.
ii. Diff. than McCollum b/c all of religious educ. occurred off school prop.
3. School Prayers and Bible Reading
a. Engel v. Vitale (1962) – Board of Educ. composed a prayer, and although prayer was
non-denominational and voluntary, it still established religious beliefs embodied by the
Board’s prayer.
i. Stewart dissented and said House and Senate begin sessions w/ prayer.
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ii. Footnote in the case says:
“[t]here is nothing in the decision reached here that is inconsistent with the fact that school children
and others are officially encouraged to express love for our country by reciting historical
documents such as the Declaration of Independence which contain references to the Deity. . . Such
patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise
that the State of New York has sponsored in this instance.”
b. Abington School Dist. v. Schempp (1963) – Ct. declared unconst. state law and city rule
requiring Bible reading and reciting of Lord’s prayer. Violation of E.C.
i. Did not declare unconst. reciting the Pledge.
c. Wallace v. Jaffree (1985) – Ct. declared unconst. an AL law that authorized a moment
of silence in public schools for mediation or voluntary prayer. B/c legislative history
was clear that intent was to reintroduce prayer into public schools.
d. Lee v. Weisman (1992) – Ct. declared unconst. clergy-delivered prayers at public
school graduations. Rabbi said prayer that recognized almighty.
i. Unconst. gov’t coercion for students to participate in a religious activity.
1. State sponsored & directed – “religious exercise”
2. Not a real choice to attend graduation
3. Age of students places a role
ii. The violation stems when “state officials direct the performance of a formal
religious exercise.” Diff. from Newdow b/c the Pledge is not regarded as a
formal religious exercise.
Note: Lee does not rely on Lemon, but on gov’t coercion to participate in religious
activities.
e. Newdow v. US Congress (2002) – see case comment – Phrase “under God” in pledge is
unconst. 9th Circ. erroneously applied all 3 tests and said it failed.
i. Endorsement of monotheism
ii. Coercive b/c social pressure of school-aged kids
iii. Passes 1st prong of Lemon Test b/c fostering patriotism is a secular purpose
iv. Fails 2nd prong b/c effect is to endorse religion.
4. Curricular Decisions
a. States are not permitted to require that teaching & learning be tailored to the
principles of any religious sect or dogma.
i. Epperson v. Arkansas – a law prohibiting teaching of evolution will violate the
E.C. as motivated by a religious purpose.
ii. Edwards v. Aguillard – Ct. declared unconst. a law that prohibited the teaching
of evolution in public schools unless accompanied by instruction in “creation
science”. Unconst. endorsement of religion.
5. Religion as Part of Gov’t Activities: Legislative Chaplains
a. Marsh v. Chambers (1983) – history & tradition – unlike the prohibition of religion
in public school activities, a state’s employment of a minister to begin legislative
sessions w/ a prayer is const. b/c it is a tradition deeply rooted in the history of this
country that has coexisted w/ the principles of disestablishment and religious freedom,
and was not seen as a threat to the E.C. by drafters of the 1st Amend.
When can Gov’t Aid Religion??????????????
D. The Establishment Clause and Aid to Parochial Schools
1. Gov’t provides busing to parochial schools, but not field trips.
2. Gov’t provides $ for standardized tests in parochial schools, but not for essay exams
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Modified
Lemon
Test
-sec
purpose
-affects
assessing achievement.
3. Agostini v. Felton (1997) – Ct. said const. for public school remedial educ. teachers to
provide instruction in private schools.
Satisfies purpose prong (easy to do)
Has gov’t aid had the effect of advancing religion? No
1. It does not result in gov’t indoctrination
2. It does not define its recipients by reference to religion
3. It does not create excessive entanglement (folded into effects prong)
4. Pre-Mitchell Factors
a. Aid available to all students
b. Directly to students (more likely to be upheld) - direct vs. indirect aid
c. Aid of type that cannot be used for religious instruction
5. Mitchell v. Helms (2000) – direct – fed program provided funding to loan educational
material and equipment to public and private schools. Services, materials, &
equipment must be “secular, neutral, and non-ideological”.
a. S.C. held NO E.C. violation!
i. Secular purpose
ii. Does not have the “effect” of advancing religion.
1. No religious indoctrination by gov’t
(If there is rel. indoctrination, is it attributable to gov’t?)
2. No defining recipients by reference to religion.
3. Does not create excessive entanglement.
-In a sense Thomas collapses everything into neutrality
6. Zelman v. Simmons-Harris (2002) – indirect – Ohio school vouchers.
a. S.C. held const.
i. Neutral w/ respect religion (not a benefit intended for religious uses)
ii. Provide aid to broad class of citizens who direct it to religious schools
of choice.
b. Dissent worried about Establishment Clause b/c most of the $ is going to
religious schools. Gov’t is paying for religious instruction.
7. Is the Aid provided to the students or to the schools?
a. A statute that provides for reimbursement & tax credits for costs of non-public
schools (elementary & secondary) for low and middle income students is
unconst. if the aid goes directly to the families rather than the schools.
Committee for Public Educ. v. Nyquist
b. But, a program of tax credits available to all students at both public and
parochial schools does not violate E.C. under Lemon.
8. Is it aid that can be used for religious instruction?
a. Gov’t may not pay teachers salaries in parochial schools, even for teachers of
secular subjects. Grand Rapids School Dist. v. Ball
E. Tax Exemptions for Religious Organizations
1. Tax exemptions that benefit only religious groups are unconst., but those that benefit
other groups along w/ religion, such as charitable and education institutions are ok.
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2. Walz v. Tax Commission (1970) – Ct. upheld state law that provides prop tax
exemption for real or personal prop used exclusively for religious, education, or
charitable purposes.
a. No E.C. violation b/c has the secular purpose of helping non-profit institutions
regarded as important to the community, and does not entail excessive gov’t
involvement w/ religion.
4. Texas Monthly v. Bullock (1989) – Ct. declared unconst. a tax exemption (for
periodicals published by a religious faith) that was available only for religious
organizations b/c it is a direct gov’t subsidy that conveys a message of endorsement to
members of the community.
a. Dissent says just accommodating religion.
F. Aid to Religious Colleges and Universities
1. Ct. is more lenient in allowing assist. to religious colleges and univ. than secondary
schools. Why? B/c colleges are less likely to be permeated w/ religious doctrine &
dogma than elementary schools. Diff. in age & the ability to understand no
endorsement of religion.
2. Titlon v. Richardson (1971) – Ct. upheld the const. of religious colleges receiving fed $
for the construction of facilities that would not be used for religious instruction.
a. Had the secular purpose of accommodating rapidly growing #’s of youths who
aspire higher education.
b. Was carefully drafted to ensure that the fed subsidized facilities would be devoted to
non-religious activities, and thus would not have the effect of advancing religion; and
c. Would not cause excessive entanglement b/c of the significant diff. b/t church-related
institution of higher learning and parochial elementary schools.
3. State programs that provide grants to private colleges & universities, including
religious schools do not violate E.C.
a. Secular purpose to promote higher learning.
G. Assistance to Religious Institutions other than Schools
1. Ct. is more likely to be deferential to gov’t
2. Bradfield v. Roberts (1899) – Ct. upheld const. of gov’t building a new facility for a
church-affiliated hospital. Operated by Roman Catholics and did not discriminate
based on religion.
3. Bowen v. Kendrick (1988) – Ct. deemed const. the Adolescent Family Life Act which
provided for grants to organizations to provide counseling & care to pregnant
adolescent girls and their parents.
-The law’s secular purpose was to eliminate of reduce social / economic problem’s caused
by teenage sexuality
-It did not discriminate b/t religious groups and nonreligious groups; and
-The law did not require monitoring by gov’t which would create excessive entanglement.