NON-TRADITIONAL PUBLIC FORUM
US POSTAL SERVICE v GREENBURGH CIVIC
ASSOCIATION (1981 – 1200 )
1200 – NO ACCESS JUST BECAUSE OWNED BY
GOVERNMENT. NO HINT OF CONTENT
DISCRIMINATION. NOT TPM.
GOVERNMENT MAY PRESERVE PROPERTY UNDER ITS
CONTROL FOR USE TO WHICH IT IS DEDICATED. TEST
IS CONTENT NEUTRAL AND LEGITIMATE STATE
PURPOSE.

EARLIER CASES MILITARY BASES, BUSES, JAILS,
SCHOOLS AND LIBRARIES = NON TRADITIONAL
PUBLIC FORUMS
PEA v PLEA (1983 – 1201 )
1. 1201 – TPF DEFINITION – CAN’T PROHIBIT ALL
COMMUNICATIVE ACTIVITY. COMPELLING IF
CONTENT BASED. TPM = INTERMEDIATE.
2. 1201 - 1202 – NON-PUBLIC FORUM. REASONABLE
AND NOT SUPRESSING PARTICULAR VIEW.

3. 1201 – QUASI OR LIMITED PUBLIC FORUM.
NONPUBLIC FORUM OPENED FOR EXPRESSIVE
ACTIVITY BY THE STATE. CAN BECOME LIKE A TPF IF
SO OPENED. 1201 FN 1 – MAY BE OPEN FOR CERTAIN
GROUPS OR SUBJECTS. 1202 – ENTITIES OF SIMILAR
CHARACTER.
4. 1202 – VIEWPOINT DISTINCTIONS NEVER
ALLOWED. SPEAKER ID AND SUBJECT MATTER MAY
BE ALLOWED IN NON-PUBLIC AND LIMITED PUBLIC.
5. HERE – STUDENT INTEREST GROUPS AND OFFICIAL
BUSINESS. P NEITHER. NOT ON VIEWPOINT, BUT
STATUS. REASONABLE IS STANDARD IN NON-PUBLIC

BRENNAN + 3 DISSENT
VIEWPOINT HERE – NO OTHER GROUP DENIED
ACCESS TO MAILBOX SYSTEM.
WHEN IS SPEAKER ID OR SUBJECT MATTER
DISTINCTIONS ALLOWED (NEVER VIEWPOINT)
1. NEVER IN TPF
2. ALLOWED IN NON-PF (REASONABLE)
3. LIMITED OR DESIGNATED – HOW OPENED
TPF – TPM BUT NEVER CONTENT BASED (NO
SUBJECT MATTER, SPEAKER ID OR VIEWPOINT)

CORNELIUS v NAACP (1985 – 1203 ) 4 – 3 (NO LEGAL
DEFENSE OR POLITICAL ADVOCACY)
1. NOT TPF OR PF BY DESIGNATION. NO LIMITED PF
WHERE EVIDENCE TO CONTRARY OR INCONSISTENT
PROPERTY USE. THIS WAS CREATED TO LESSEN
EXPRESSIVE ACTIVITY.
2. 1204 – NON PF – REASONABLENESS AND NO
VIEWPOINT. OK TO EXCLUDE IF NOT TOPIC WITHIN
PURPOSES OR MEMBER OF CLASS FOR WHOSE
SPECIAL BENEFIT FORUM WAS CREATED.
DISSENT – SHOULD BE LIMITED PF. VIEWPOINT.

TPF ( STREETS, SIDEWALKS, PARKS)
!
LIMITED PF OPENED GENERALLY (SEE ABOVE)
!
INTENT – EVIDENCE (TRIAL LAWYERS) - CONTRACT
!
LIMITED PF – OPEN SPECIFICALLY (SUBJECT MATTER
OR SPEAKER ID)
!
NON PF – REASONABLE AND NO VIEWPOINT

US v KOKINDA (1990 1205 ) (NO SOLICITING ON PO
SIDEWALK)
4 = NON PF
KENNEDY = TPF BUT TPM SATISFIED
4 = TPF (D)
NON PF
1. NOT TPF SIDEWALK. OPEN TO PUBLIC BUT ONLY FOR
POST OFFICE BUSINESS. NOT PUBLIC THROUGH FARE. NOT
EXPRESSLY DEDICATED TO EXPRESSIVE ACTIVITY.

2. 1205 - NON PF = REASONABLE AND NO
VIEWPOINT DISCRIMINATION. ALLOWED SOME –
LEAFLET, SPEECH AND PICKET – BUT NOT DEDICATED
TO SPEECH. THIS INTERFERES WITH BUSINESS OF
THE POST OFFICE.
KENNEDY
EXPRESSIVE ACTIVITY ALLOWED – LIKE TPF. BUT 1206
- TPM SATISFIED – IN PERSON SOLICITING IS
DIFFERENT FROM LITERATURE OR FUTURE $$$
BRENNAN + 3
1. DISTINCTION BETWEEN SIDEWALKS SILLY.

2. COLLAPSED LIMITED PF FROM ANALYSIS. FAILS
BOTH COMPELLING AND TPM (SUBSTANTIALLY
RELATED -COULD BE LESS RESTICTIVE THAN TOTAL
BAN TO ACCOMMODATE PO LEGITIMATE INTERESTS)
CRITICAL ISSUE FOR LAWYERS HOW DO YOU
CHARACTERIZE SOLICITATION ? MORE LIKE SPEECH
OR MORE LIKE SALE OF GOODS ?
WHAT IF OK GIRL SCOUTS SELL ? EQ PRO INFLUENCE
HARE KRISHNA v LEE (1992 – 1207 )
5 – 4 BAN ON DISTRIBUTION OF LITERATURE INVALID
(O’CONNOR FINDS UNREASONABLE)

6 – 3 BAN ON SOLICITATION AND RECEIPT OF
$$$ VALID
KODINDA AND LEE, BRENNAN AND MARSHALL
RETIRE AND ARE REPLACED BY SOUTER AND
THOMAS (THOMAS CHANGES VOTES).
5 – NON PF BUT 1 SAYS UNREASONABLE
4 - TPF BUT 1 SAYS SOLICITATION SATISFIED TPM

1. REHNQUIST + 3 NON PF. NOT HISTORICALLY OR
INTENTIONALLY OPENED. REASONABLENESS TEST –
CONGESTION, TRAVELLER CONVENIENCE AND FRAUD
PREVENTION SATISFY.
2. O’CONNOR - NON PF BUT BAN ON LITERATURE IS
UNREASONABLE – COMPATIBLE.
3. KENNEDY - TPF BUT STILL TPM. BAN ON
LITERATURE FAILS BUT BAN ON SOLICITATION VALID.
REALLY JUST BAN ON IN PERSON RECEIPT OF MONEY.
CAN STILL SOLICIT FOR LATER PAYMENT (ENVELOPES)
4. OTHER 3 - TPF AND BOTH FAIL TPM (NOT
SUBSTANTIALLY RELATED)

IS THERE A RIGHT TO BEG ON THE SIDEWALK ?
IF YOU SAY NO SOLICITATION, IS THAT A REGULATION
( TPM- INTERMEDIATE ) OR A BAN ( COMPELLING ) ?
ARKANSAS v FORBES (1998 – 1214 )
PUBLIC STATION/PUBLIC DEBATE BUT STILL NON PF.
NO OPEN MIKE – NOT GENERALLY AVAILABLE FOR A
CLASS OF PEOPLE. FIRST AMENDMENT RIGHTS OF
EDITORIAL STAFF.

US v AMERICAN LIBRARIES ASSOCIATION (2003 -
1215 )
FEDS REQUIRE BLOCKING SOFTWARE ON
COMPUTERS – NO OBSCENITY, CHILD
PORNOGRAPHY OR INDECENT MATERIAL
HARMFUL TO CHILDREN
4 = NON PF
2 = INTERMEDIATE SATISFIED
3 = CONTENT BASED, COMPELLING

1. REHNQUIST + 3 – NON PF. DIDN’T BUY
COMPUTERS TO CREATE PF – NOT ENCOURAGING
DIVERSITY OF VIEWS. SUITABLE AND WORTHWHILE.
ALREADY EXCLUDE THESE MATERIALS FROM THE
PRINT COLLECTION.
2. KENNEDY (BREYER) – LIKE SELECTION =
INTERMEDIATE SCRUTINY. SMALL BURDEN ON FA
RIGHTS – ASK TO TURN FILTER OFF. DISCRETION IN
LIBRARY ON SELECTIVITY.
3. STEVENS (SOUTER AND GINSBURG) - CONTENT
BASED RESTRICTION ON MATERIALS FOR ADULTS.
NOT LIKE ACQUISITION – ALREADY THERE. NOT
MONEY OR SPACE. COMPELLING TEST

SHOULDN’T SAY “OK EXCEPT” – DRAFT IN POSITIVE
FOR DESIGNATED OR LIMITED FORUM.
NEW BUILDING –
LAW ONLY – NON PF
UB ONLY -- LIMITED PF – OPENED SPECIFICALLY –
SPEAKER ID
PUBLIC - LIMITED PF – OPENED GENERALLY
NO POSTED LEAFLETS OR FLYERS ? WHAT FA RIGHTS
COME IN WITH YOU ? HANDOUT FA 5

RELIGIOUS SPEECH ON PUBLIC PROPERTY
WIDMAR v VINCENT (1981 – 1222 )
UMKC ALLOWED FACILITIES FOR USE OF STUDENT
GROUPS BUT DENIED IF RELIGIOUS WORSHIP OR
DISCUSSION.
1. UNIVERSITY CREATED A FORUM GENERALLY OPEN
FOR STUDENT GROUPS. MUST JUSTIFY EXCLUSION
EVEN IF DIDN’T HAVE TO OPEN IN THE FIRST PLACE.
2. 1223 CONTENT BASED – COMPELLING. CAN BE
TPM BUT ONCE GENERALLY OPEN NO CONTENT BASE

STEVENS (C IN JUDGEMENT)
NOT TPF – DECISIONS BY EDUCATORS NOT
JUDGES – NOT COMPELLING TEST. BUT STILL
CAN’T BE ON VIEWPOINT
WHITE (D)
ESTABLISHMENT CLAUSE
CAN A GOOD LAWYER MAKE ANYTHING
VIEWPOINT ? ISN’T THIS SUBJECT MATTER ?
IS THIS ON DRAFTING ?

LAMB’S CHAPEL v CENTER MORICHES (1993 – 1224 )
AFTER HOURS USE OF SCHOOL FACILITIES FOR
SOCIAL, CIVIC,RECREATIONAL, AND POLITICAL BUT
NOT RELIGIOUS PURPOSES OR GROUPS.
NEITHER TPF NOR DESIGNATED BUT NON-RELIGIOUS
PERSPECTIVE OR NON-RELIGIOUS GROUP ALLOWED.
THIS IS VIEWPOINT NOT SUBJECT MATTER. NOT
ESTABLISHMENT CLAUSE VIOLATION.
ROSENBERGER v UNIV OF VIRGINIA (1995 – 1267 )
INVALID WHEN FUNDING ALL STUDENT NEWSPAPERS
EXCEPT RELIGIOUS. VIEWPOINT.

GOOD NEWS CHURCH v MILFORD CENTRAL SCHOOL
(2004 – 1225 )
SCHOOL FACILITIES OPEN AFTER HOURS – ALLOWED
RELIGIOUS POINT OF VIEW BUT BANNED RELIGIOUS
INSTRUCTION.
VIEWPOINT MORALS AND CHARACTER OK BUT
RELIGIOUS PERSPECTIVE NOT. NOT ESTABLISHMENT
CLAUSE VIOLATION.
DRAFTING – SHOULDN’T BE EVERYONE EXCEPT …..

CAPITOL SQUARE REVIEW BOARD v PINETTE
(1995 – 1226 )(NO KKK LATIN CROSS)
TPF BY STATUTE. BIAS ON BASIS OF RELIGION
NOT ALLOWED. CONTENT BASED NOT
ALLOWED IN TPF.
PLEASANT GROVE CITY v SUMMUM (2009 –
1226 )
IS PINETTE CONTROLLING PRECEDENT ?
IS THIS VIEWPOINT ?

2. PARK IS TPF BUT PERMANENT MONUMENT NOT
SUBJECT TO PF ANALYSIS. NOT GOVERNMENT AS
REGULATOR. GOVERNMENT SPEAKING RATHER
THAN PROVIDING A FORUM FOR PRIVATE SPEAKERS.
3. PINETTE WAS TEMPORARY AND ALLOWED
OTHERS. DIFFERENCE HERE ON PERMANENT.
4. EXISTING = TIED TO TOWN’S PAST OR $$
PROVIDED BY GROUP’S LONG ASSOCIATED TO TOWN

PRIVATE PROPERTY RIGHTS
REALLY ISSUE OF STATE ACTION
SOME MALLS PUBLICLY OWNED, SOME PRIVATE
AMALGAMATED FOODS v LOGAN VALLEY (1968 -
1221 )
MALL LIKE COMPANY TOWN IN MARSH v
ALABAMA. TPF. PEACEFUL UNION PICKETING
CAN NOT BE SUPPRESSED.

HUDGENS v NLRB (1976 – 1222 )
LOGAN VALLEY OVERRULED. MODERN – PRIVATE
PROPERTY – NO RIGHT TO BE THERE – NO FA ACCESS
UNLESS PRIVATE UNDER STATE ACTION DOCTRINE.
GOVERNMENT AS EDUCATOR
TINKER v DES MOINES (1969 1229 )
1. CLOSE TO PURE SPEECH. NOT DISRUPTIVE. SILENT,
PASSIVE. FEAR OF DISTURBANCE NOT ENOUGH.
2. 1229 - 1230 - STD – CAN’T AVOID UNPLEASANT
VIEWS. NO INTERFERENCE WITH DISCIPLINE

3. ALLOWED OTHER SYMBOLS – SINGLED OUT THIS
ONE.
BLACK (D)
QUESTION IS WHO CONTROLS THE SCHOOLS ? FA
NOT RIGHT TO TALK WHENEVER YOU PLEASE
WHAT DOES IT MEAN TO HAVE SUSPENSION
REVERSED YEARS LATER ?
FINALLY GAVE RIGHTS TO KIDS or BEGINNING OF
INMATES RUNNING THE ASYLUM ?

BOARD OF EDUCATION v PICO (1982 1231 )
WHAT IS THE HOLDING OF THE CASE ? RESULT ?
BRENNAN + 2
1. OPTIONAL IN LIBRARY – NOT CURRICULUM OR
COMPULSORY CLASSROOM. NOT ACQUISITION, BUT
REMOVAL.
2. TENSIONS – SCHOOL BOARD’S INCULCATING
VALUES v APPLICABLE FA CONSIDERATIONS
( STUDENTS, PARENTS, TEACHERS)

3. FA MORE IMPLICATED IN REMOVAL. STUDENTS
RIGHT TO RECEIVE INFORMATION. TRANSMIT
VALUES IN CURRICULUM
4. BOARD HAS DISCRETION IN DETERMING
COMPOSITION OF THE LIBRARY. BUT NO IN
NARROWLY PARTISAN OR POLITICAL MANNER.
WHITE BOARD COULDN’T SUPPRESS BLACK
AUTHORS. DEPENDS ON BOARD’S MOTIVATION –
CAN’T INTEND TO DENY ACCESS TO IDEAS.
5. ALL CONCEDE OK IF MOTIVATION WAS
PERVASIVELY VULGAR OR BASED ON EDUCATIONAL
SUITABILITY

4. 1232 – HOLDING. GENUINE ISSUE OF MATERIAL
FACT ON BOARD’S INTENTIONS – SUMMARY
JUDGMENT INAPPROPRIATE.
BLACKMUN (C)
1233 – COMPETING PRINCIPLES. RIGHT TO RECEIVE
CONCEPT CRAZY BUT CAN’T REMOVE TO RESTRICT
ACCESS TO IDEAS OR SOCIAL PERSPECITVES.
WHITE (C)
NO NEED TO DO FA ANALYSIS – UNRESOLVED ISSUE
OF FACT AS TO BOARD’S INTENT

BURGER + 3
TO INCULCATE VALUES, BOARD MUST MAKE
DECISIONS ON CONTENT. PARENTS, TEACHERS AND
BOARD ARE PRIMARY = IF DON’T LIKE WHAT BOARD
DOES, VOTE THEM OUT.
GOVERNMENT AS EDUCATOR LESS CONSTITUTIONAL
CONCERNS THAN GOVERNMENT AS REGULATOR.
BUYING v REMOVING; CURRICULUM v LIBRARY –
MAKE NO SENSE. INTENT OF BOARD IRRELEVANT.
NO RIGHT TO RECEIVE INFORMATION IN JHS AND HS

BETHEL SCHOOL DISTRICT v FRASER (1986 – 1235 )
SPEECH AT 1235 FN 2
1. NO VIEWPOINT HERE. VALID FOR SCHOOL TO SAY
VULGAR SPEECH AND LEWD CONDUCT IS
INCONSISTENT WITH FUNDAMENTAL VALUES OF
PUBLIC EDUCATION.
DISSENT
NO ACTUAL DISRUPTION – NO NOTICE TO FRAZER.

HAZELWOOD SCHOOL DISTRICT v KUHLMEIER (1988 -
1236 )
1. NOT TPF OR DESIGNATED FORUM. TEST
THEREFORE LEGITMATE AND RATIONAL.
2. IMPRIMATUR OF SCHOOL AND PART OF
TEACHER/LEARNING EXPERIENCE. SOME MATERIAL
NOT SUITABLE TO THIS AGE LEVEL.
3. STUDENT AND PARENT ANONYMITY NOT VALUED
IN EITHER STORY.
BRENNAN (D) NO CENSORSHIP IF NO DISRUPTION

TINKER – SCHOOL SILENCING STUDENT’S POLITICAL
EXPRESSION THAT HAPPENED ON SCHOOL
GROUNDS. NEWSPAPERS AND PLAYS - $$ + FACULTY
ADVISORS = LIKE PART OF CURRICULUM.
WHAT ABOUT LAW REVIEW OR FORUM ?
DO YOU REPRESENT FRASER OR KUHLMEIER ?
MORSE v FREDERICK (2007 1238 )
WHAT IS THE MOST CRITICAL TRIAL TACTIC DECISION
THE LAWYERS FACE BEFORE TRIAL ?

WHAT IS MEANING OF SIGN “BONG HITS 4 JESUS” ?
POLITICAL, RELIGIOUS, PRO-DRUG -- VIEWPOINT
NO MESSAGE – NOT ADVOCACY, NOT ILLEGAL, NO
SCHOOL RULES VIOLATED.
1. DETERRING DRUG USE BY CHILDREN IS AN
IMPORTANT AND POSSIBLY COMPELLING PURPOSE
2. NOT SIMPLY OFFENSIVE HERE – REAL DANGER –
PROMOTING DRUG USE.

ALITO (KENNEDY) (C)
CAN’T RESTRICT STUDENTS POLITICAL, RELIGIOUS OR
SOCIAL SPEECH. THIS IS DRUG USE.
THOMAS (C)
STUDENTS HAVE NO FA RIGHTS.
STEVENS (SOUTER AND GINSBURG) (D)
1. FA PROTECTS IF NO VIOLATION OF RULES AND
NOT ILLEGAL OR HARMFUL. VIEWPOINT. NONSENSE
MESSAGE. NO OBSERVER CHANGING HIS BEHAVIOR
NOT VULGAR OR SCHOOL ENDORSED. DISRUPTION ?
CAN SCHOOL STOP DISCUSSION LEGALIZING DRUGS ?
CRIME IF ADULT HELD UP SIGN ON SIDEWALK ?

MODERN RULES –
VALID INVALID
1. REG. VULGAR, DRUGS 1. VIEWPOINT
2. EDUCATIONAL 2. SUPPRESS
SUITABILITY, RESOURSES IDEAS
3. DISRUPTION 3. RESTRICT STUDENT
4. ANONIMITY POLITICAL, RELIGIOUS
SCHOOL HAS MORE RIGHTS ON CURRICULUM AND
LIBRARY ACQUISITION THAN LIBRARY REMOVAL
FA INTERESTS = STUDENTS, PARENTS, TEACHERS AND
SCHOOL (ADMINISTRATION AND BOARD).

GOVERNMENT AS EMPLOYER (PUBLIC EMPLOYEE
SPEECH )
PRIVATE EMPLOYER – USUALLY NO RIGHTS UNLESS
GIVEN BY CONTRACT OR STATUTE.
BALANCE
EMPLOYEE’S FA INTEREST AS CITIZEN TO COMMENT v STATE AS EMPLOYER NEEDING EFFICIENCY
USUAL FACT PATTERN – SOMEONE FIRED FOR
SPEAKING IN SOME FORM. NOT ISSUE RECOGNITION
PROBLEM.

FACTORS:
1. PUBLIC CONCERN (POLITICAL, SOCIAL) v INTERNAL
OFFICE ISSUE
2. WHAT IS THE SCOPE OF OFFICIAL DUTIES (WITHIN
OFFICIAL DUTIES = NOT PROTECTED) ?
3. WHERE DOES SPEECH OCCUR – IN OFFICE OR OUT
?
4. DOES THE SPEECH IMPEDE JOB PERFORMANCE ?

PROTECTED
1. SCHOOL FUNDING (PICKERING)
2. ANTI-PRESIDENT (RONKIN)
3. FEDERAL HONORARIUM (NAT’AL TREASURY)
NON-PROTECTED
1. ATTORNEY TRANSFER POLICY (CONNICK)
2. NURSE TRAINING (WATERS)
3. COP IN PORNO FILM IN UNIFORM (SAN DIEGO)
4. AFFIDAVIT MISREPRESENTATIONS (GARCETTI)

PICKERING v BOARD OF EDUCATION (1968 – 1242 )
1. CAN’T BE FIRED FOR COMMENTS ON MATTERS OF
PUBLIC INTEREST.
BALANCE IN TEACHER’S FAVOR
HERE – PUBLIC DEBATE WITH NO IMPACT ON JOB
PERFORMANCE.
CONNICK v MYERS (1983 – 1244 )
IF NOT MATTER OF PUBLIC CONCERN (POLITICAL
SOCIAL OR OTHER CONCERNS TO COMMUNITY), NO
BALANCING. HERE – INTERNAL OFFICE POLICY –
INSUBORDINATION AND BREAKDOWN OF MORALE.
FORCED TO SUPPORT CAMPAIGN IS PUBLIC ISSUE.

RONKIN v MCPHERSON (1987 – 1247 )
CAN’T FIRE FOR ANTI-REAGAN POSITION. PUBLIC
ISSUE AND NOT WIDELY DISSEMINATED.
WATERS v CHURCHILL (1994 – 1248 )
SUPERVISOR OVERHEARD NURSE COMPLAINING
ABOUT TRAINING. EMPLOYER REASONABLY BELIEVED
PRIVATE CONCERN SO FIRING VALID.
SD v ROE ( 2004 – 1251 ) – FIRING UPHELD.
COP AS COP IN UNIFORM IN PORN VIDEO.

GARCETTI v CEBALLOS (2005 – 1251 )
PUBLIC EMPLOYEES MAKING STATEMENTS PURSUANT
TO OFFICIAL DUTIES ARE NOT CONSTITUTIONALLY
INSULATED FROM EMPLOYER DISCIPLINE.
STEVENS + 2 (D)
LAWYER’S OBLIGATION TO SPEAK SHOULD BE MORE
PROTECTED. STATUTES PROTECTING WHISTLE
BLOWERS NOT ENOUGH.
TENNESSEE AA v BRENTWOOD ACAD (2007 – 1253)
RESTRICTIONS ON RECRUITING JHS VALID.

LANE v FRANKS (2014 – 52 )
LANE FIRES NO SHOW EMPLOYEE AND LATER
TESTIFIES ON CRIMINAL GRAND JURY. LANE FIRED
FOR TESTIMONY.
1. SWORN TESTIMONY IN JUDICIAL PROCEEDING IS
QUINTESSENTIAL SPEECH AS CITIZEN. NOT MADE
PURELY IN CAPCITY OF EMPLOYEE.
2. NOT OUTSIDE FA JUST BECAUSE LEARNED OF IT IN
COURSE OF PUBLIC EMPLOYMENT. GARCETTI –
WITHIN SCOPE OF EMPLOYEE’S DUTIES.

GOVERNMENT AS PATRON SUBSIDIZED SPEECH
PENALTY (0LD = UNCON CONDITION) INVALID
1. LOYALTY OATH FOR TAX BENEFIT
2. PUBLIC TV CAN’T EDITORIALIZE
3. ROSENBERGER – PRINTING
4. RESTRICTIONS ON LEGAL AID LAWYERS
5. REQUIRING ANTI-PROSTITUTION FOR AIDS
NON-SUBSIDATION VALID
1. NO TAX DEDUCTION FOR LOBBYING
2. NO FUNDING FOR ABORTION ADVICE
3. RESTRICTION ON NEA GRANTS
4. LIBRARY BLOCKING SOFTWARE

1. GOVERNMENT SPEAKING
A. DIRECTLY OR
B. HIRING PRIVATE
2. GOVERNMENT CREATING FORUM
FOR PRIVATE INDIVIDUALS WITH
DIVERSE VIEWS
MOST TIMES

SPEISER v RANDALL (1958 – 1261 ) PROPERTY TAX
1. GOVERNMENT BENEFITS CAN’T BE CONDITIONED
OR RELINQUISHMENT OF FA RIGHTS. THIS IS
PENALIZING SPEECH.
2. TENSION BETWEEN GOVERNMENT DIDN’T HAVE
TO PROVIDE v PENALTY ON CONSTITUTIONAL
RIGHTS.
REGAN v TAXATION WITHOUT REPRESENTATION
(1983 – 1262 ) NO DEDUCTION FOR LOBBYIST
1. TAX DEDUCTION IS REAL FINANCIAL BENEFIT

2. CAN’T DENY BENEFIT BECAUSE RECIPIENT IS
EXERCISING CONSTITUTIONAL RIGHT. HERE JUST
REFUSING TO SUBSIDIZE.
3. NOT VIEWPOINT. IF CONTENT AT ALL, SUBJECT
MATTER AND THAT IS OK.
FCC v LEAGUE OF WOMEN’S VOTERS (1984 – 1264 )
1. PENALTY, NOT MERE NONSUBSIDIZATION.
2. IF PBS GETS 1% FROM GOVERNMENT, CAN’T
EDITORIALIZE. CAN’T USE PRIVATE FUNDS EITHER.
IMPERMISSIBLE CONTENT BASED REGULATION.

REHNQUIST + 3 (D)
PERMISSIBLE NONSUBSIDY. DON’T WANT SPECIAL
INTERESTS OR GOVERNMENT TO DOMINATE.
RUST v SULLIVAN (1991 – 1265 ) NO ABORTION
ADVICE
1. CAN ENCOURAGE CERTAIN ACTIVITIES WITHOUT
FUNDING ALTERNATIVE. CAN STOP GRANTEE FROM
WORKING OUTSIDE SCOPE OF PROJECT AND LIMITS
OF PROGRAM.
2. NOT FORBIDEN FROM ABORTION – JUST KEEP
SEPARATE AND DISTINCT. PARTICULAR PROJECT

BLACKMUN + 2
FIRST CASE ALLOWING VIEWPOINT DISCRIMINATION.
ALL FAMILY PLANNING ALTERNATIVES EXCEPT
ABORTION.
ROSENBERGER v UNIVERSITY OF VIRGINIA (1995 –
1267 ) NO FUNDING RELIGIOUS PAPERS
1. THIS IS VIEWPOINT DISCRIMINATION DIRECTED AT
SPEECH WITHIN THE FORUM’S LIMITATIONS.
DOESN’T BAN RELIGIOUS AS A SUBJECT MATTER BUT
RELIGIOUS EDITORIAL VIEWPOINTS.

2. 1268 – IN RUST, PUBLIC FUNDS TO PRIVATE
ENTITIES TO CONVEY A GOVERNMENTAL MESSAGE.
HERE UNIVERSITY NOT SPEAKING BUT PROVIDING
FUNDS FOR DIVERSITY OF VIEWS FROM PRIVATE
SPEAKERS.
SOUTER + 3 (D)
SUBJECT MATTER, NOT VIEWPOINT. ALL RELIGIOUS
GROUPS BANNED. USSC ASSUMING RELIGIOUS AND
ANTI-RELIGIOUS ALWAYS PROVIDE AN OPPOSING
VIEWPOINT ON A SECULAR TOPIC.

NEA v FINLEY (1998 1269 )
1. 1269 – STATUTE. DECENCY AND RESPECT
2. JUST HORTATORY – NO FACIAL INVALIDITY
3. SINCE COMPETITIVE PROCESS, VALID. NOT PUBLIC
FORUM.
SCALIA AND THOMAS
MANDATORY. NOT SUPPRESSION – JUST CHOOSING
NOT TO FUND. CAN STILL CREATE THE ART. 1272 –
FN ART DESCRIBED. VIEWPOINT BUT VALID.

SOUTER (D)
CLEARLY VIEWPOINT. DENY TO COMMUNIST.
LEGAL SERVICES CORP v VELAZQUEZ (2001 1273 )
1. VIEWPOINT ALLOWED WHEN GOVERNMENT
CONVEYING MESSAGE OR USING PRIVATE SPEAKERS
TO CONVEY ITS MESSAGE (RUST). LSC INTENDED TO
FACILITATE PRIVATE SPEECH NOT PROMOTE
GOVERNMENT MESSAGE (ROSENBERGER).
2. CAN’T IMPINGE ON ATTORNEY REPRESENTATION.
NO ALTERNATIVE CHANNELS

SCALIA + 3
FEDERAL SPENDING PROGRAM – NO PF.
US v AMERICAN LIBRARY ASSOCIATION (2003 1275 )
1. 6 – 3 UPHELD CIPA – REQUIRED BLOCKING
SOFTWARE.
2. NON PF. FUNDING CAN DEFINE LIMITS AND
ENSURE $$ PROPERLY SPENT. LIBRARIES REGULARLY
EXCLUDE PORN FROM PRINT COLLECTION.
3. DISSENT – NOT GOVERNMENT SPEECH - PENALTY

AID v ALLIANCE FOR OPEN SOCIETY (2013 – S 53 )
STATUTE TO HELP AIDS VICTIMS – ABSTINENCE,
CONDOMS, ETC. FOR NGO TO GET FUNDING, MUST
NOT ADVOCATE FOR LEGALIZATION OF
PROSTITUTION/SEX TRAFFICING AND EXPLICITLY
OPPOSE. INVALID
1. CAN’T TELL PEOPLE WHAT TO SAY. CAN’T
CONDITION $$ ON IT EITHER. COMPELLING
RECIPIENT TO ADOPT POSITION AS CONDITION.
2. ONGOING – CAN TERMINATE AFTER SELECTION.
3. NOT ONLY SELECTING NGO’S WHO AGREE WITH
GOVERNMENT’S POSITION.

SCALIA (+ 1) D
1. MEANS OF SELECTING SUITABLE RECIPIENTS
TO CONVEY GOVERNMENT MESSAGE. NGO CAN
HAVE OTHER POSITION IN NON FUNDED WORK.
2. SPEECH RESTRICTION RELEVANT TO PURPOSE
OF THE PROGRAM. HARMS PROGRAM.
RESTRICTION DOESN’T VIOLATE OTHER
SECTIONS OF CONSTITUTION.
3. GOVERNMENT NOT COMPELLING – JUST
DON’T TAKE $$$.

PROBLEMS OF MODERN MEDIA: EACH MEDIUM
UNIQUE GOVERNMENT AS REGULATOR II
PRESS (PRINT MEDIA)
PRIOR RESTRAINTS DISFAVORED, BUT SOME
ALLOWED AGAINST NON- MEDIA -PERMITS (TPM)
AND INJUNCTIONS ( 1306-1307 – WALKER –
APPEAL;CARROLL – NO EX PARTE). NOW MEDIA –
NEAR v MINNESOTA (1931 – 1304 )
1304 - NO PRIOR RESTRAINT FOUNDATIONAL VALUE
FROM COMMON LAW FREE SPEECH VALUES. 1305 –
NATIONAL SECURITY AND OBSCENITY EXCEPTIONS

CENSORSHIP ESPECIALLY WHEN INVOLVING PUBLIC
OFFICIALS – PUBLIC DISCUSSION.
NEAR + SULLIVAN = PROTECTION OF PRESS
PENTAGON PAPERS (1971 – 1308 )
GOVERNMENT ARGUES THAT COURTS SHOULD
DEFER TO ASSERTION OF NATIONAL SECURITY BY
PRESIDENT. INJUNCTION INVALID 6 – 3
PER CURIAM – HEAVY BURDEN NOT MET.
BLACK AND DOUGLAS
ABSOLUTE PROTECTION - PRIOR RESTRAINT, MEDIA

STEWART
1310 NOT ENOUGH EVIDENCE ON DIRECT,
IMMEDIATE AND IRREPARABLE DAMAGE.
WHITE
BURDEN ON GOVERNMENT 1311 - TOO BROAD
MARSHALL
SEPARATION OF POWERS PROBLEM IF USSC IMPOSES
RESTRAINTS WHEN CONGRESS REFUSED

HARLAN + 2 (D)
HIGH OFFICIAL + WITHIN FOREIGN POLICY POWER =
DEFER TO PRESIDENT
NOTE NO ONE MENTIONS STOLEN.
US v PROGRESSIVE (1973 – 1313 )
ENJOINED MAGAZINE PUBLISHING H BOMB
SNEPP v US (1980 – 1315 )
CIA EMPLOYEE IN VIOLATION OF AGREEMENT.

CONSTRUCTIVE TRUST ON PROFITS. AGREEMENT +
ACCESS TO CLASSIFIED + IMPORTANT
GOVERNMENTAL INTEREST.
HAIG v AGEE (1981) -REVOKED PASSPORT
WIKILEAKS AND SNOWDEN ?
INJUNCTIONS IN INTERNET WORLD ?
NEBRASKA PRESS v STUART (1976 – 1316 )
1. FREE PRESS v FAIR TRIAL
2. 1316 STRONG PRESUMPTION AGAINST PRIOR
RESTRAINT. PROCEDURES CAN MITIGATE

3. LOWER COURT ORDER TOO VAGUE AND BROAD
4. NARROW EXCEPTIONS FOR PRIOR RESTRAINT –
GENERAL FAIR TRIAL NOT ENOUGH
GENERAL:
1. NEBRASKA ON BROADCASTERS, NOT PARTIES.
CAN ORDER GAG ON PARTIES (AND LAWYERS).
2. COURTROOM – CAN BAN TV BUT GENERALLY
OPEN TO PRESS UNLESS OVERRING REASONS TO
CLOSE COMPLETELY. EVEN IF BOTH PARTIES WANT TO
CLOSE.

3. NO ABSOLUTE PRIVILEGE FOR NEWSMEN TO
WITHHOLD SOURCES FROM GRAND JURY. CAN
HAVE USUAL OBJECTIONS (EG ABUSIVE, SCOPE)
4. EXISTENCE OF STATUTE MAY CHANGE MIX
OF FACTORS.
BROADCAST MEDIA GENERAL RULES
IN TERMS OF MEDIA, PRINT GETS MOST RIGHTS
– OLDER, NAMED IN CONSTITUTION, NO
SCARCITY.

MIAMI HERALD v TORNILLO ( 1974 – 1329 )
STATE LAW GIVES CANDIDATES EQUAL SPACE RIGHT
TO REPLY TO ATTACKS ON THE RECORD.
UNANIMOUSLY INVALID.
STATE INTERESTS –
MONOPOLISTIC NATURE OF PAPERS. NO –
RESPONSIBLE PRESS GOOD, BUT NOT
CONSTITUTIONALLY MANDATED. DAMPENS DEBATE
– CHILLS FA RIGHTS TO NEWSPAPERS. EDITORIAL
DISCRETION PART OF FA.
PAPER CAN CONTROL ITS
OWN CONTENT.
FA INTEREST IN MEDIA – PUBLIC, EDITORS, GOV’T.

CONGRESS – RADIO – BEFORE 1927 – PRIVATE – A MESS.
GIVEN LIMITED NUMBER OF FREQUENCIES (AM ONLY) AND
NEED FOR NATIONAL UNIFORMITY. CONGRESS TOOK
CONTROL. 1934 – CREATED “FREE” BROADCAST SYSTEM
AND FCC AND LICENSES. NOTE: CAN’T HAVE LICENSE FOR
PRESS. THEN FM PROVIDES MORE STATIONS. TV –
ELECTRO-MAGNETIC SPECTRUM (VHF, UHF). SPECTRUM
SCARCITY
RED LION v FCC (1969 – 1464 )
FAIRNESS DOCTRINE: 1) DUTY TO BROADCAST PUBLIC
INTEREST INFO 2) IF BROADCAST ONE SIDE, BROADCAST
OTHER AND 3) FREE REPLY IF ATTACK HONESTY AND
CHARACTER.
ARGUMENT FOR RED LION ?

1. SCARCITY OF FREQUENCIES ( SPECTRUM
SCARCITY).
GOVERNMENT CAN TREAT LICENSEES AS
FIDUCIARIES AND PROXY FOR GENERAL PUBLIC.
RIGHT OF THE LISTENERS, NOT BROADCASTERS,
PARAMOUNT IN FA.
2. FREE MARKETPLACE OF IDEAS – DON’T WANT TO
ALLOW PRIVATE CENSORSHIP
3. NOT JUST SPECTRUM SCARCITY BUT ECONOMIC
REALITIES.
FAIRNESS DOCTRINE REPEALED IN 1987.

CBS v DEMOCRATIC NATIONAL COMMITTEE (1981 –
1467 )
WIDE JOURNALSTIC FREEDOM TO BROADCASTERS.
OPEN DEBATE BUT NOT A SYSTEM OF “PUBLIC
TRUSTEE”. CBS CAN REFUSE ALL EDITORIAL ADS.
CBS v FCC (1981 1468 )
RULE ALLOWING CANDIDATES TO BUY TIME DURING
ELECTION PERIOD IS VALID. RIGHTS OF VIEWERS AND
LISTENERS PARAMOUNT. CAN CITE SUBSTANTIAL
PROGRAMMING DISRUPTION. CONGRESS GIVING
ACCESS RIGHTS – NOT DIRECT FROM CONSTITUTION

RADIO – AM AND FM – SPECTRUM SCARCITY
ON AIR TV – VHF (13) AND UHF – SPECTRUM SCARCITY
CATV (COMMUNITY ACCESS TV) – CURVATURE OF EARTH,
TALL ANTENNA AND PHYSICAL CABLE.
SATELLITE - TURNER, ED TAYLOR,CHANNEL 17, RCA AND
TRANSPONDERS. COMBINES WITH FIBEROPTICS = CABLE
INTERNET – UNLIMITED. WI-FI ? MOBILE DEVICES ?
TURNER BROADCASTING v FCC (1994 1470 )
CHALLENGE TO MUST CARRY RULES – LOCAL BROADCAST
STATIONS CARRIED WITHOUT CHARGE TO CONSUMERS

MIAMI HERALD – RIGHTS OF NEWSPAPER EDS.
RED LION – RIGHTS OF TV BROADCASTERS
WHERE DO CABLE OPERATORS FIT ?
ELECTROMAGNETIC SPECTRUM v FIBEROPTICS – NO
SPECTRUM SCARCITY, BUT STILL NEED GOVERNMENT
FOR RIGHT OF WAY ON POLES
1. REFUSED TO RECONSIDER RED LION SCARCITY
RATIONALE BUT DIDN’T APPLY DIRECTLY TO CABLE.
2. NOT CONTENT BASED – NO RULE ON CONTENT OF
THE PROGRAMMING.

3. P – LIKE TORNILLO = INFRINGES EDITORIAL
DISCRETION ON CONTENT. NO – TORNILLO WAS
CONTENT BASED BECAUSE TRIGGERED BY
NEWSPAPER’S MESSAGE. NOT HERE. ALSO – NO
CONFUSION ON SPEAKER ID – DON’T THINK STATION
SPEAKS FOR CABLE OPERATOR. CABLE CONTROLS
VIEWER ACCESS TO INFORMATION MORE THAN
NEWSPAPERS.
WHAT DO CABLE OPERATORS DO ? BUNDLE
4. INTERMEDIATE SCRUTINY. PROMOTE
COMPETITION AND PRESERVE BROADCASTING.

5. REMAND – FACTORS:
BENEFITS OF MUST CARRY TO FREE TV
WIDESPREAD DISSEMINATION OF INFO
PROMOTING FAIR COMPETITION
BURDEN ON SPEECH NO GREATER THAN NEC.
O’CONNER (SCALIA, GINSBURG AND THOMAS)
CONTENT BASED – IMPINGES CABLE OPERATORS’
EDITORIAL DISCRETION.
ON REMAND DC HELD NARROWLY TAILORED,
CONTENT NEUTRAL RESTRICTIONS THAT ONLY
IMPOSE AN INCIDENTAL BURDEN ON SPEECH.

DENVER AREA ED v FCC (1996 1472 )
CABLE ITS OWN RULES – NOT PRINT OR BROADCAST.
RENO v ACLU (1997 1475 )
NON-INTERNET MEDIUMS – HISTORY OF EXTREME
GOVERNMENT REGULATION, SPECTRUM SCARCITY
AND INVASIVE NATURE.
INTERNET WIDE OPEN AND DEMOCRATIC. PRIOR
CASES PROVIDE NO BASIS FOR LEVEL OF SCRUTINY.
DIFFERENCES IMPLY LESS GOVERNMENT REGULATE

SEXUALLY EXPLICIT EXPRESSION (CONTENT REG)
OBSCENE (MILLER) v
PORNOGRAPHIC/INDECENT/SEXUALLY EXPLICIT
WHY PROTECTED ? SELF AUTONOMY, ART,
GOVERNMENTAL LIMITS.
WHY REGULATE ? UNCONSENTING ADULTS,
CHILDREN, MORALITY, CRIME, WOMEN, NO
MESSAGE.
BEGINS WITH CHAPLINSKY – OBSCENITY NOT
PROTECTED. AS MORE LIBERAL DEFINITION, MORE
DESIRE TO REGULATE PORNOGRAPHIC (NOT OBSCEN)

ROTH v US (1957 1010 )
1. OBSCENITY NOT WITHIN FA. UTTERLY WITHOUT
REDEEMING SOCIAL IMPORTANCE.
2. NOT ALL SEX = OBSCENE. OBSCENE IS SEX
APPEALING TO PRURIENT INTERESTS 1011 FN 1.
1011 – AVERAGE PERSON APPLYING
COMTEMPORARY COMMUNITY STANDARDS.
1012 - 1015 CRAZY PERIOD. USSC – THIRD
THURSDAY OF EVERY MONTH. MEMOIRS 3 PART
TEST. STEWART IN JACOBELIS (KNOW IT WHEN I SEE
IT).

MILLER v CALIFORNIA (1973 1015 )
MEMOIRS TEST HARD TO PROVE – TOO
SUBJECTIVE. 1016
1. APPEALS TO PRURIENT INTEREST AND
2. IS PATENTLY OFFENSIVE AND
3. LACKS SERIOUS LITERARY, ARTISTIC OR
SCIENTIFIC VALUE.
PRURIENT DEFINED BY ROTH ( 1011 FN 2 )
1016 - DEFINES PATENTLY OFFENSIVE

JENKINS v GEORGIA (1974 1025 )
PRURIENT INTEREST AND PATENTLY OFFENSIVE TO BE
DECIDED BY THE JURY APPLYING LOCAL COMMUNITY
STANDARDS. BUT STILL SUBJECT TO APPELLATE REVIEW.
WHAT DOES APPELLATE REVIEW MEAN IN THIS SITUATION ?
POPE v ILLINOIS (1987 1026 )
SERIOUS VALUE IS A NATIONAL AND REASONABLE PERSON
STANDARD. DOESN’T VARY COMMUNITY BY COMMUNITY.
IS A SEXUAL CULTURE A GOOD THING ? RHAPSODY IN THE
RAIN v VICTORIA SECRET COMMERCIALS ?

STANLEY V GEORGIA (1969 1014 )
PRIVATE POSSESSION OF OBSCENE = ILLEGAL
1.
1014 – IF THE FIRST AMENDMENT MEANS
ANYTHING, … HERE, NO CHILDREN OR
UNCONSENTING ADULTS. WON’T ALLOW
POSSESSION BAN AS ADMINISTRATIVE CONVENIENCE
FOR DISTRIBUTION BAN.
WHAT ARE THE IMPLICATIONS OF STANLEY ?
RIGHT TO MAKE OR DISTRIBUTE ?
NO HARM TO OTHERS = PROTECTED ?

PARIS ADULT v SLATON (1973 1018 )
STIPULATED – OBSCENE, NO CHILDREN OR
UNCONSENTING ADULTS, OUTSIDE TASTEFUL.
1. 1018 - 1019 - STATE INTERESTS INVOLVED IN
OBSCENITY.
2. STATE DOESN’T NEED PROOF OF ADVERSE EFFECTS
– NOT IMPINGING ON CONSTITUTIONAL RIGHT.
LEGISLATURES ALWAYS WORK ON UNPROVABLE
ASSUMPTIONS.
MORALITY IS A VALID STATE
PURPOSE.
3. THEATER NOT HOME. STANLEY LIMITED TO HOME

BRENNAN + 3 (D)
ALL OBSCENITY STANDARDS TOO
VAGUE – CHILL. CHILDREN AND
UNCONSENTING ADULTS VALID BUT
MORALITY TOO VAGUE TO JUSTIFY
INTERFERENCE WITH FA VALUES.
DOUGLAS (D) - STANLEY

CHILD PORNOGRAPHY
NY v FERBER (1982 1049 )
USING CHILD ACTORS – ON DISTRIBUTION
1. COMPELLING INTEREST IN SAFEGUARDING
PHYSICAL AND PSYCHOLOGICAL WELL BEING OF
MINOR. PREVENTION OF SEXUAL EXPLOITATION AND
ABUSE OF CHILDREN
2. DISTRIBUTION INTRINSICALLY RELATES TO ABUSE –
PERMANENT RECORD AND MUST CLOSE TO STOP
PRODUCTION

3. STATE INTERESTS BEYOND OBSCENE – CHILD HURT
BY SEXUALLY EXPLICIT NON-OBSCENE
4. PRODUCTION ILLEGAL – ADS AND SELLING
PROVIDE ECONOMIC MOTIVE FOR PRODUCTION
5. LIMITED SOCIAL VALUE – JUST MAKE UP OLDER TO
LOOK YOUNGER. CAN MAKE CASE BY CASE
EXCEPTIONS FOR MEDICAL TEXTBOOKS OR NATIONAL
GEOGRAPHIC.
OSBORNE v OHIO (1990 1052 )
MERE POSSESSION CAN BE MADE CRIMINAL

ASHCROFT v FREE SPEECH COALITION (2002 – 1053 ) –
FEDERAL STATUTE MADE VIRTUAL CHILD
PORNOGRAPHY ILLEGAL
1. NO REAL CHILD USED OR HARMED. JUST
BANNING IDEA VIOLATES FA.
2. STATE – PEDOPHILES USE TO SEDUCE KIDS. MERE
TENDENCY TO ILLEGAL NOT ENOUGH – NO PROVABLE
CONNECTION BETWEEN WATCHING AND CHILD
ABUSE. STATE MUST SHOW RELATION TO CONDUCT
3. STATE – CAN’T ENFORCE REAL – IMAGES TOO
GOOD. NO – NOT ENOUGH TO OUTWEIGH FA.

PORNOGRAPHY AS SUBORDINATION OF
WOMEN
1030 - DWORKIN AND MCKINNON – NOT
MORALITY BUT POWER. MAKES DOMINANCE
SEXY. SHAPES COMMUNITY VALUES. NOT
DEVIANT BUT EXPRESSES SEXIST SOCIAL
UNDERPINNINGS.
FEMINISTS FOR PORN – LIBERATING WOMEN
FROM STEROTYPES (GOOD GIRLS DON’T LIKE
SEX), MAKING MONEY, GAY PORN.

AMERICAN BOOKSELLERS v HUDNUT (19861030 )
INDIANAPOLIS ORDINANCE BANNING FILMS THAT
DENIGRATE WOMAN 1030
1. NO REFERENCE TO MILLER TEST. 1031 - ON
CONTENT OR VIEWPOINT.
2. FA LEAVES EVALUATION OF IDEAS TO INDIVIDUAL.
EVEN IF LEADS TO MEN TREATING WOMEN BADLY,
JUST GOES TO POWER OF IDEAS
3. CITY – NO MARKETPLACE OF IDEAS WHEN
UNANSWERABLE. TRUTH NOT ALWAYS WINNING.

3. EVEN IF LOWER VALUE SPEECH, NO VIEWPOINT. IF
TREAT WOMEN IN CERTAIN WAY, OK NO MATTER
HOW SEXUAL.
USSC SUMMARILY AFFIRMS
REGULATING SEXUALLY EXPLICIT BUT NON-OBSCENE
ERZNOZNIK v JACKSONVILLE (1975 1036 ) NO NUDE
1. BALANCE FA RIGHTS OF SPEAKERS v UNWILLING
VIEWERS. NOT TPM HERE – ON CONTENT. VIEWERS
MUST AVOID – NOT HOME OR IMPRACTICAL TO
AVOID.

2. OVERBROAD IF PROTECTING MINORS
3. NOTHING IN RECORD TO INDICATE TRAFFIC
REGULATION IS ACTUAL PURPOSE.
YOUNG v AMERICAN MINI THEATERS (1976 1039 )
1039 – FN 1 - REGULATED USES AND STATUTE 1039 -
PURPOSES
STEVENS (PART III IS PLURALITY)
1. NOT VAGUE – D CLEARLY INCLUDED.
2. NOT PRIOR RESTRAINT – NOT DENYING ACCESS

3. III – REALITY – PROTECTED AND UNPROTECTED
DOES TURN ON CONTENT. HERE NOT VIOLATIONS OF
PRIMARY FA LIMIT ON MESSAGE – NUDITY BANNED
REGARDLESS OF POINT (NOT VIEWPOINT). FA
INTEREST IN EROTIC EXPRESSION DIFFERENT FROM
POLITICAL SPEECH.
4. IMPORTANT PURPOSE HERE. 1040 - JUST
LIMITING LOCATION, NOT LIMITING ACCESS OR
REPRESSING.
NOTE: DOESN’T USE COMPELLING BUT CAN’T SAY
TPM BECAUSE ON CONTENT.

DISSENT (4)
NOT CONTENT NEUTRAL AND NOT OBSCENE. MOST
PROTECTION TO UNPOPULAR SPEECH.
RENTON v PLAYTIME THEATERS (1981 1043 )
CONCENTRATED IN RED LIGHT DISTRICT
REHNQUIST – VALID 1043 SECONDARY EFFECTS
DISSENT (2) – CONTENT BASED

LA v ALAMEDA BOOKS (2002 1044 )
LIKE YOUNG – PROHIBITED MORE THAN 1 ADULT
BUSINESS ON SAME PREMISES. BOOKSTORE OWNER
WANTED BOOTHS
OCONNOR + 3
CAN RELY ON 1977 STUDY TO FIND RELATION TO
CRIME. CAN RELY ON ANY EVIDENCE BELIEVED TO BE
REASONABLE RELEVANT 1045 - BURDEN
KENNEDY
INTERMEDIATE EVEN THOUGH ON CONTENT
SECONDARY EFFECTS

SOUTER + 3 (D)
NEED EMPIRICAL DATA ON SECONDARY EFFECTS OR
FEAR DISGUISED VIEWPOINT.
MODERN – SECONDARY EFFECTS = INTERMEDIATE
SCRUTINY BUT ONLY IN REGULATING SEXUALLY
EXPLICIT. REJECTED IN OTHER FACT PATTERNS (BOOS v BARRY – NO REGARDING STREET PICKETING FOR
POLITICAL PURPOSES) SECONDARY EFFECTS
CANNOT JUSTIFY A BAN – ONLY A REGULATION THAT
STILL GUARANTEES ACCESS. ESSENTIALLY PARTS 2, 3
AND 4 OF INTERMEDIATE (TPM) TEST.

FCC v PACIFICA FOUNDATION (1978 1054 ) STATUTE
MAKES CRIMINAL OBSCENE, INDECENT OR PROFANE
STEVENS + 2
1. CLEARLY ON CONTENT BUT NOT ON MESSAGE.
CAN REGULATE UNLESS BECAUSE OF POLITICAL
CONTENT OR SATIRIZING ATTIDTUDE TOWARDS 4
LETTER WORDS. 1055 FN – NOT SATIRE
2. EACH MEDIUM UNIQUE. BROADCASTING MOST
LIMITED – INVADES HOME AND EASILY ACCESSIBLE BY
CHILDREN. DIFFERENT IF ISOLATED WORD, OTHER
TIME OR OTHER MEDIUM.

POWELL + 1 (C)
CHILDREN, HOME AND NATURE OF RADIO. ADULTS
CAN HEAR IF THEY DESIRE. DISAGREE WITH LOWER
VALUE SPEECH.
WHAT LEVEL OF SCRUTINY ?
BRENNAN + 1 (D)
CAN’T SEPARATE IDEAS FROM LANGUAGE –
ESPECIALLY HERE. PARENTS SHOULD CONTROL
MINORS, NOT STATE. HOME – VOLUNTARILY TURN
ON. TURN OFF. FA RIGHTS OF BROADCASTERS

STEWART + 3 (D)
INDECENT AND PROFANE = OBSCENE.
FCC LACKS AUTHORITY.
(2009 –
)
PUNISHING FLEETING EXPLETIVES
NOT ARBITRARY OR CAPRICIOUS.
4 PERSON DISSENT VOICES FA
CONCERNS – NOT DELIBERATE OR
RELENTLESSLY REPETITIVE

ROWAN v POST OFFICE (1970 1060 )
IF HOMEOWNER FINDS MAILINGS OFFENSIVE, CAN
TELL PO TO ORDER MAKER NOT TO SEND. MAIL
ORDER BUSINESS CLAIMED FA RIGHT TO
COMMUNICATE.
REGULATION VALID. HOMEOWNER CAN STOP
THINGS COMING INTO HOUSE. SUSPECT IF COMING
FROM GOVERNMENT AS REGULATOR, BUT OK IF
GOVERNMENT JUST ENFORCING HOMEOWNER’S
WISHES (LIKE DOORBELL). BUT GOVERNMENT CAN’T
ENFORCE BROAD BAN OF UNSOLICITED BEFORE
OWNER COMPLAINS 1061 - CON ED, BOLGER

SABLE COMMUNICATIONS v FCC (1989 1062 )
CAN BAN OBSCENE BUT NOT INDECENT. NOT LIKE
RADIO – RECIPIENT HAS TO INITIATE. NOT LIKE
RADIO – DOESN’T ENTER HOME. DEVICES AVAILABLE
TO FILTER KIDS OUT.
US v PLAYBOY ENTERTAINMENT GROUP (2000 1064 )
FCC – FULLY SCRAMBLE OR, IF SIGNAL BLEED,
CONFINE TO LATE NIGHT HOURS.
STEVENS + 4

1. STRICT SCRUTINY – CAN’T GET CHANNEL
EVEN IF AN ADULT WILLING TO PAY EXCEPT LATE
NIGHT. RESTRICTS FA OF CABLE OPERATORS.
HERE PRIMARY NOT SECONDARY EFFECTS.
TECHNOLOGY TO BLOCK HOUSE BY HOUSE AT
HOMEOWNERS REQUEST.
BREYER + 3 (D)
VOLUNTARY OPT OUT NOT A SIMILARLY
PRACTICAL AND EFFECTIVE WAY TO PROTECT
CHILDREN.

RENO v ACLU (1997 1065 )
MOST FACTS STIPULATED. 1065-66 – STATUTE TO
PROTECT MINORS FROM OBSCENE OR INDECENT
1. DISTINGUISH PACIFICA – AGENCY WITH
EXPERTISE, NOT PUNITIVE AND NATURE OF RADIO.
NOT RENTON – NO SECONDARY EFFECTS – REJECT
CONCEPT OF CYBER-ZONING
2. EACH MEDIUM ITS OWN LAW. HERE – NO
SCARCITY, LOW COST UNIVERSAL ACCESS, NOT
INTRUSIVE (COMPUTER + CONNECTION)

3. CDA – CONTENT BASED AND CRIMINAL.
VAGUENESS PROBLEMS ON DEFINITION OF INDECENT
AND PATENTLY OFFENSIVE. VALID REGARDING
OBSCENITY AND CHILD PORNOGRAPHY.
4. OVERBROAD – CAN’T REDUCE ADULTS TO CHILD
LEVEL. ANY CHILD IN CHAT ROOM. PARENTS CAN BE
LIABLE – LET 17 YEAR OLDS USE, SEND EMAIL TO
KIDS.
5. NO TPM BECAUSE CONTENT BASED. AFFIRMATIVE
DEFENSES DON’T SAVE – TECHNOLOGY NOT AVAILBLE
TO RESTRICT ON AGE – CREDIT CARDS TOO COSTLY
FOR MANY.

OCONNOR + 1
CDA UNDULY RESTICTS ADULT ACCESS IN
ATTEMPT TO PROTECT KIDS.
ASHCROFT v ACLU (2002 -
)
COPA – DIFFERENT FROM CDA – EMAIL
NOT INCLUDED, COMMERCIAL ONLY AND
HARMFUL TO MINORS
– STATUTORY
LANGUAGE – MILLER ADAPTED TO MINORS

1. COMMUNITY STANDARDS ON HARMFUL TO MINORS.
BUT NOT INVALID ON FACE. REMAND TO CLARIFY SCOPE
AND APPLICABILITY.
2. INTERNET – EASE TO REACH EVERYONE IN WORLD, HARD
TO REACH TARGETED GROUP. IF WANT TO EXCLUDE
MINORS, HARD TO DO.
ASHCROFT v ACLU II ( 1073 )
FAILS STRICT SCRUTINY – PLAUSIBLE LESS RESTRICTIVE
ALTERNATIVES. USE BLOCKING AND FILTERING SOFTWARE
ON RECEIVING END, NOT SENDING.
DISSENT SAYS BLOCKING SOFTWARE DOESN’T WORK

M ODERN PROTECTION (
)
MOST (
) LEAST (
)
PRINT,
PREMIUM CABLE,
900,
INTERNET INTERMEDIATE
SECONDARY EFFECTS – PROPERTY
ZONING WITH SEXUALLY EXPLICIT

UNDERGROUND MARKETS (WEIRD STUFF)
UNITED STATES v STEVENS (2010 – 1075 )
STATUTE – CREATION, SALE OR POSSESSION ILLEGAL IF
ANIMAL TORTURED OR KILLED AND
VIOLATES LAW. INVALID – 8 – 1.
1. GOVERNMENT – MAKE ANOTHER UNPROTECTED
CATEGORY. NO. NOT FERBER.
2. NOT LIMITED TO CRUSH VIDEOS (SEXUAL FETISH)
AND THUS OVERBROAD. DO NOT DECIDE IF MORE
LIMITED.

ALITO – D
CONDUCT IN CRUSH VIDEOS ILLEGAL IN EVERY
STATE. NEED THIS BROAD TO PREVENT THEM.
ASHCROFT v ACLU (1077)
COMMUNITY STANDARDS IN OBSCENITY ONLINE:
POTENTIAL AUDIENCE OR INTENDED AUDIENCE ?
IF POTENTIAL, INTERNET LIMITED BY MOST
CONSERVATIVE.

ASHCROFT v FREE SPEECH COALITION
FEDERAL STATUTE EXPANDS CHILD PORNOGRAPHY
BAN TO INCLUDE COMPUTER IMAGES OR ADULTS
MADE UP TO LOOK LIKE MINORS.
1. SUPPRESSING IDEA – TEENAGERS HAVING SEX.
NO CONSIDER ARTISTIC OR LITERARY VALUE.
2. NO CRIME AND NO VICTIM. CAN’T BAN FROM
ADULTS SIMPLY BECAUSE CHILDREN MAY GET IT.
CAN’T BAN BECAUSE MIGHT ENCOURAGE
PEDOPHILES.

THOMAS (C) – CAN STILL TELL DIFFERENCE – CHANGE
RESULT IF TECHNOLOGY DEVELOPES.
REHNQUIST AND SCALIA (D) – COMPELLING
BROWN v ENTERTAINMENT MERCHANTS ASS’N (2011 –
1080 )
1080 – 1081 CALIFORNIA STATUTE – ILLEGAL TO SELL
OR RENT VIOLENT VIDEO GAMES TO MINORS.
INCORPORATED MILLER TEST.
1. VIDEO GAMES PROTECTED – COMMUNICATE IDEAS.
2. NOT OBSCENITY – MILLER ANALOGY NO HELP.

3. CAN PROTECT MINORS FROM HARM, BUT CAN’T
RESTRICT IDEAS THEY RECEIVE. COMPELLING AND
NARROWLY DRAWN.
4. NO CAUSAL LINK BETWEEN PLAYING AND ACTUAL HARM
TO MINORS. ALSO VOLUNTARY RATING SYSTEM. MANY
FAILED ATTEMPTS TO REGULATE VIOLENCE TO MINORS.
ALITO AND ROBERTS – VAGUE
THOMAS (D) – NO MINORS RIGHTS IN 1791
BREYER (D) – MINORS CAN STILL PLAY IF PARENTS BUY OR
RENT FOR THEM. DON’T WANT MINORS ALONE .
PRIVATE LABELS ON LEVELS – VIOLENCE AND SEX

HANDOUT FA 6
VAGUENESS AND OVERBREATH
WILD CARD THEORIES – USED EARLY IN FA LITIGATION
AND CONTINUE TO BE USED TODAY. IF DON’T KNOW
WHAT ELSE TO DO, USE THESE. ESPECIALLY IF
STATUTE/REGULATION VERY GENERAL.
OVERBREATH
1278 – DEFINITION – REGULATION BROADER THAN
NECESSARY TO PROTECT INTEREST. REALLY FIT PART
OF MODERN TEST. USED TO AVOID SCRUTINY LEVEL

INVALIDATES ON FACE INSTEAD OF AS APPLIED AND
VIOLATES STANDING CONCEPTS. STATUTE INCLUDES
PROTECTED ACTIVITY WHEN DIDN’T NEED TO DO SO.
BROADRICK v OKLAHOMA (1973 1208 )
1. EVEN IF MIGHT APPLY TO WEARING BUTTONS, D
ACTIVELY ENGAGED IN CAMPAIGN. 1281 TEST AND
CHILL. 1282 - MODERN TEST SUBSTANTIAL.
HERE –
EVEN HANDED NEUTRAL STATUTE, NOT ON
CITIZENRY IN GENERAL – D CLEARLY WITHIN.
BRENNAN + 3
NO CLEAR DEF OF SUBSTANTIAL – NEVER INSIGNIF.

NY v FERBER 1283 - D ARGUED OVERBROAD BECAUSE
SERIOUS SCIENTIFIC AND EDUCATIONAL MIGHT BE
PROHIBITED. NOT SUBSTANTIALLY OVERBROAD.
ASHCROFT v FREE SPEECH 1284 - CAN’T BAN
UNPROTECTED IF SUBSTANTIAL AMOUNT OF
PROTECTED IS ALSO BANNED.
VIRGINIA v HICKS 1285 - IF NOTICE TO LEAVE PUBLIC
HOUSING, CAN BE ARRESTED NEXT TIME IF NO VALID
BUSINESS OR SOCIAL PURPOSE. NO SUBSTANTIAL
AMOUNT OF PROTECTED ACTIVITY INVALIDATED.

BROCKETT v SPOKANE ARCADES 1285 – OVERBROAD
TO DEFINE PRURIENT INTEREST AS LASCIVIOUSNESS
OR LUST. COVERS PROTECTED
SCHAMBURG 1286 AND MUNSON 1287 – CAN’T
EQUATE HIGH OVERHEAD WITH FRAUD ON DOOR TO
DOOR SOLICITATION BAN.
HOUSTON v HILL 1290 – OVERBROAD - STATUTE NOT
LIMITED TO DISORDERLY CONDUCT OR FW
BD OF AIRPORT COMM 1291 – SPECTULAR
OVERBREATH - CAN’T ENGAGE IN PROTECTED FA
ACTIVITY IN LAX.

VAGUENESS
1293 – DEFINITION. PROCEDURAL DUE PROCESS
CONCEPT OF GIVING ADEQUATE NOTICE OF
VIOLATION. SO POORLY WRITTEN OR UNCLEAR
DON’T KNOW WHAT IT MEANS. USUALLY A BROAD,
GENERAL STATUTE OR REGULATION.
ANTI- WANDERING STATUTES
COATES v CINN 1293 – ANNOYING
NEA v FINLEY 1296 – DECENCY AND RESPECT. NOT
CRIMINAL. CLOSE TO OVERBROAD IN CONCEPT

RIGHT OF ASSOCIATION
FA – “RIGHT OF THE PEOPLE PEACEFULLY TO
ASSEMBLE”. DERIVED FROM THIS AND INDIVIDUAL’S
RIGHT TO EXPRESS HERSELF
1. GOVERNMENT CAN’T MAKE MEMBERSHIP A
CRIME – C AND P DANGER – COMMUNIST CASES –
UNLESS GROUP ACTIVELY ADVOCATES LAWLESSNESS
AND INDIVIDUAL KNOWS AND SUPPORTS
( BRANDENBERG FOR GROUP )
2. GOVERNMENT CAN’T COMPEL DISCLOSURE OF
MEMBERSHIP UNLESS COMPELLING INTERESTS

RIGHT NOT TO ASSOCIATE
BIG CASES – ANTI-DISCRIMINATION STATUTES (FEDERAL
OR STATE) v FA EXCLUSION RIGHT
HURLEY v GLIB (1995 – 1340 )
PRIVATE ORGANIZERS OF ST PAT’S PARADE DENY ACCESS
TO GLIB. STATE COURT ORDERS INCLUSION
PER PUBLIC ACCOMODATION STATUTE. USSC REVERSES
– 9-0.
1. PARADE IS A FORM OF EXPRESSION. FA PROTECTION
NOT FORFEITED BECAUSE ALLOWED MANY TO JOIN.
GLIB’S PARTICIPATION WAS EXPRESSIVE.

2. NO HOSTILITY TO GLIB – CAN MARCH IF
MEMBER OF ANOTHER GROUP. JUST NOT THEIR
OWN BANNER.
3. ORDER REQUIRED PET. TO ALTER THE
EXPRESSIVE CONTENT OF THEIR PARADE. SPEAKER
HAS AUTONOMY TO CHOOSE CONTENT OF OWN
MESSAGE. GLIB CAN GET PARADE PERMIT OF
THEIR OWN.

ROBERTS v JAYCEES; ROTARY v NY STATE ( 1370 -1371 )
PREVENTION OF GENDER DISCRIMINATION =
COMPELLING PURPOSE. OVERRIDE FA RIGHTS.
EXCEPTION OF TRULY NON – PUBLIC (AUGUSTA
NAT’L)
BOY SCOUTS v DALE (2000 1372 )
EXCLUDED FROM SCOUTMASTER – AVOWED GAY

STATE STATUTE BANNED DISCRIMINATION v GAY
REHNQUIST + 4
1. FOR FA TO APPLY, GROUP MUST ENGAGE IN
EXPRESSIVE ACTIVITY OR ASSOCIATION. FORCED
INCLUSION BAD IF IT AFFECTS IN A SIGNIFICANT WAY
GROUP’S ABILITY TO ADVOCATE ITS VIEWPOINT.
2. BS – HOMOSEXUALITY INCONSISTENT WITH
MORALLY STRAIGHT AND CLEAN VALUES. DALE IS
OUTSPOKEN. JAYCEES AND ROTARY – WOMEN
WOULD NOT INTERFERE WITH IDEAS GROUP TRYING
TO EXPRESS.

STEVENS + 3 (D)
BS THEMSELVES DON’T KNOW WHAT MORALLY
STRAIGHT MEANS. DALE NOT TRYING TO SEND
MESSAGE – EXCLUDED ON MERE FACT OF GAY.
RUMSFELD v FAIR (2006 – 1343, 1375 )
SOLOMON AMENDMENT VALID. MILITARY NOT PART
OF LAW SCHOOL. FACULTY’S RIGHT OF ASSOCIATION
NOT INFRINGED. CAN EXPRESS THEIR OWN VIEW.
NO ONE THINKS MILITARY SPEAKS FOR SCHOOL. ALL
RECRUITERS ARE OUTSIDERS.

ANTIDISCRIMINATION STATUTE v FIRST AMEND.
ANTIDISCRIMINATION = COMPELLING STATE
INTEREST AND FA LOSES UNLESS
1. NON-GOVERNMENTAL (PRIVATE), TRULY
NON-PUBLIC ENTITY OR
2. INCLUSION AFFECTS ORGANIZATION’S
ABILITY TO ADVOCATE ITS VIEWPOINT
(CONFLICTS WITH VALUES).
DIFFERS WITH PROTECTED NATURE OF CLASS ?

LIMITS ON CAMPAIGN SPENDING
BUCKLEY v VALEO (1976 – 1383 )
1383 - 1384 - STATUTE – PUBLIC FUNDING – LIMITS
ON CONTRIBUTIONS AND EXPENDITURES.
CONTRIBUTION LIMITS VALID - TPM
1385 - 1386 – STATE PURPOSE OF ANTI-CORRUPTION
AND APPEARANCE ARE SUFFICIENT TO JUSTIFY.
FA RIGHTS MARGINALLY IMPACTED. NO DATA THAT
LIMITS = CANDIDATE CAN’T RAISE ENOUGH MONEY
TO RUN.

EXPENDITURE LIMITS INVALID
ANTI-CORRUPTION AND EQUALIZATION NOT
ENOUGH TO JUSTIFY IMPINGEMENT ON FA RIGHT TO
SPEND.
CAN’T LIMIT GROUP’S ABILITY TO SPEND IN SUPPORT
OF CANDIDATE.
CAN’T LIMIT EXPENDITURE OF PERSONAL $$$
CAN’T LIMIT OVERALL EXPENDITURES OF A
CAMPAIGN.
CONCURENCES AND DISSENTS ALL OVER

DAVIS v FEC ( 2008 – 1417 )
MILLONAIRES AMENDMENT - $ 350,000 OF OWN
MONEY TRIGGERS 3X INCREASE ON CONTRIBUTION
LIMITS OF OPPONENT.
CAN’T HAVE DIFFERENT LIMITS FOR CANDIDATES –
COMPELLING NOT SATISFIED BY LEVELING.
STEVENS + 3 (D)
REDUCING PERSONAL WEALTH AS CRITERION FOR
PUBLIC OFFICE IS IMPORTANT PURPOSE.

CITIZENS UNITED v FEDERAL ELECTION COMMITTEE
(2010 – 1421 )
ANTI-HILLARY DOCUMENTARY. 1421 – STATUTE BANS
CORPORATIONS FROM RUNNING ADS 30 DAYS FROM
PRIMARY, 60 DAYS FROM ELECTION.
PARADIGM – PEOPLE GIVE MONEY WITH NO
EXPECTATION OF RETURN
KENNEDY + 4
1. CORPORATIONS HAVE FA PROTECTIONS. CAN’T
LIMIT FA RIGHTS BASED ON SPEAKER ID.

2. SMALL CORPORATIONS EXTREMELY WEALTHY.
CORPORATIONS HAVE EXPERTISE.
3. NO SUFFICIENT PURPOSE IN: EQUALIZATION OF
VIEWPOINTS, ID SOURCES OF SUPPORT, AVOID
CONCENTRATIONS OF WEALTH, OR
ANTICORRUPTION OR APPEARANCE OF SUCH.
SCALIA (C)
OK EVEN IF FOUNDING FATHERS DISTRUSTED
CORPORATIONS

STEVENS + 3
DISTINCTIONS BETWEEN CORPORATIONS AND HUMANS
VALID. NO VIEWPOINT – TPM. NO HISTORY OF
DISCRIMINATION OR POLITICALLY POWERLESS.
JEFFERSON AGAINST – FF CLEARLY THOUGHT THAT
CORPORATIONS HAD NO FA RIGHTS.
McCUTCHEON v FEC (2014 – S 63 )
STATUTE – 1) BASE LIMITS – LIMITS $$ TO PARTICULAR
CANDIDATE AND 2) AGGREGATE LIMITS – LIMITS $$ CAN
MAKE IN TOTAL TO ALL CANDIDATES. 1 NOT AT ISSUE

ROBERTS PLURALITY
1. VALID PURPOSE ONLY EQUALS QUID PRO QUO
CORRUPTION. INGRATIATION AND ACCESS ARE NOT
CORRUPTION. QUID = COMPELLING
2. AGGREGATE LIMITS HAVE LITTLE TO DO WITH QUID
PRO QUO CORRUPTION. INVALID.
3. FA RIGHT TO SPEND. CAN’T RESTRICT NUMBER OF
CANDIDATES INDIVIDUAL WANTS TO SUPPORT. GIVING
LESS TO MORE OR VOLUNTEERING IS NOT SUBSTITUTE
FOR $$$.
4. CAN’T LEVEL FIELD OR EQUALIZE EXPENDITURES

5. STILL CAN’T GIVE MORE THAN BASE LIMITS TO 1
CANDIDATE - $ 5,200.
6. DISCLOSURE REQUIREMENTS STILL VALID.
THOMAS (C) (5 TH VOTE)
OVERRULE BUCKLEY – CONTRIBUTIONS AND
EXPENDITURES SHOULD ALL BE ON COMPELLING TEST.
BREYER + 3 (D)
1. PLURALITY DEFINING CORRUPTION TOO NARROWLY.
APPEARANCE WORSE. CORRUPTION CUTS LINK
BETWEEN POLITICAL THOUGHT AND ACTION.

2. UNDUE INFLUENCE OR PRIVILEGED ACCESS =
CORRUPTION.
3. CITIZENS UNITED IS ONLY PRECEDENT THAT
SUPPORTS PLURALITY.
4. CONGRESS HAD COMPELLING REASONS TO SET
THE LIMITS IT DID – EMPIRICAL DATA.

MODERN CAMPAIGN SPENDING SUMMARY:
1. ONLY QUID PRO QUO CORRUPTION OR ITS
APPEARANCE ACCEPTABLE PURPOSE. CAN’T LIMIT
CANDIDATE’S PERSONAL EXPENDITURES ON
CAMPAIGN.
2. REGULATION ON INDIVIDUAL CONTRIBUTIONS TO
SPECIFIC CANDIDATE VALID (TPM - INTERMEDIATE) .
CAN’T REGULATE AGGREGATE CONTRIBUTIONS OR
EXPENDITURES ( COMPELLING ) TO CANDIDATES.
3. CORPORATIONS HAVE FULL FIRST AMENDMENT
RIGHTS (LIKE INDIVIDUALS)
ATTACK PACS NOT = CANDIDATES

RELIGION CLAUSES
1477 – FA LANGUAGE ON RELIGION. TENSION
BETWEEN FREE EXERCISE AND ESTABLISHMENT
– IF CHURCH PROPERTY EXEMPT FROM TAX,
DOES FE DEMAND THE EXEMPTION OR IS
GRANTING IT ANTI – ESTABLISHMENT CLAUSE
(EG CAN UNIVERSITY OF VIRGINIA PAY FOR
RELIGIOUS STUDENT NEWSPAPERS – IF NO, FREE
EXERCISE PROBLEMS; IF YES, ESTABLISHMENT
PROBLEMS. USUALLY FE IS SPECIFIC RELIGION –
USSC SAID VIEWPOINT - ROSENBERGER).

HISTORY – CLEAREST – CONGRESS CAN’T ESTABLISH A
NATIONAL RELIGION AND CAN’T MAKE A SPECIFIC
RELIGION OR RELIGIOUS PRACTICE CRIMINAL
1479-80 – GOVERNMENT SUPPORTED RELIGION IN
PRE-1776 EUROPE. SOME MADE MISSING CHURCH
ON SUNDAY CRIMINAL. EVERYONE TAXED TO PAY FOR
GOVERNMENT FUNDING OF ONE RELIGION.
MADISON’S REMONSTRANCE AGAINST VIRGINIA TAX.
AFTER REJECTION OF TAX, VIRGINIA BILL FOR
RELIGIOUS LIBERTY BY JEFFERSON. EARLY STATE
CONSTITUTIONS ON LIBERTY OF CONSCIENCE.
1481 VOLUNTARISM AND SEPARATION
1484 DIFFERENT DRAFTS OF FA

CIVIL RIGHTS OF NONE SHALL BE ABRIDGED ON
ACCOUNT OF RELIGIOUS BELIEF OR WORSHIP, NOR
SHALL A NATIONAL RELIGION BE ESTABLISHED, NOR
SHALL THE FULL AND EQUAL RIGHTS OF CONSCIENCE
NO RELIGION EST BY LAW NOR RIGHTS OF CON
NO LAWS TOUCHING RELIGION OR INFRINGING
RIGHTS OF CONSCIENCE
NO LAW EST RELIGION OR FE NOR RIGHTS OF CONS
NO LAW ESTABLISHING ARTICLES OF FAITH OR
MODES OF WORSHIP OR PROHIBITING FE

1482 - 1484 – NONPREFERENTIALISM – CONCEPT OF
NO HOSTILITY, NO PREFERENCE, BUT GOVERNEMENT
CAN SUPPORT RELIGION GENERALLY. FIRST
CONGRESS ELECTED A CHAPLIN. STATES WERE FREE
TO ESTABLISH AN OFFICIAL RELIGION BEFORE THE
14 TH AMENDMENT INCORPORATED 1 ST . LAST OF
STATE RELIGIONS ABOLISHED IN 1830’S. 1485 –
APPLIED TO STATES
1486– 1488 CONSCIENTIOUS OBJECTOR. CAN’T
OBJECT ONLY TO UNJUST WARS. CAN YOU BE A NON-
RELIGIOUS PACIFIST AND GET EXEMPTION ?
1488 -9 - DEFINITION OF RELIGIONSINCERITY/FRAUD

FREE EXERCISE FA7
LIKE SOPHISTICATION OF RACISM FROM CON LAW I –
DISCRIMINATION AGAINST RELIGION
1. ON FACE
2. NEUTRAL ON FACE, BUT ADMINISTRATION (STATS)
3. NEUTRAL ON FACE AND ADMIN. BUT
A. INTENT TO SUPPRESS
B. NO INTENT TO SUPPRESS
CHURCH OF LUKUMI BABALU v HILEAH(1993 – 1491 )
SANTERIA – ANIMAL SACRIFICE. CITY – NO
SLAUGHTER – CRUELTY TO ANIMALS/PUBLIC HEALTH

KENNEDY + 3
SANTERIA CLEARLY A RELIGION. NOT LIMITED TO
“FACIAL” NEUTRALITY – LOOK AT PURPOSE AND INTENT
IN ADDITION TO EFFECT. HERE – RECORD SHOWS
HOSTILE TO SANTERIA.
SCALIA + 1
INTENT DOESN’T MATTER – JUST EFFECT.
SOUTER + 2
COMPELLING TEST WHEN LAW AIMED AT SUPPRESSING
RELIGIOUS EXERCISE. CLEARLY HOSTILE

SHERBERT v VERNER (1963 – 1499 )
7 TH DAY ADVENTIST FIRED BECAUSE COULDN’T
WORK ON SATURDAY. DENIED
UNEMPLOYMENT. IF SUBSTANTIAL BURDEN ON
RELIGION – COMPELLING.
WISCONSIN v YODER (1972 – 1502 )
CAN’T REQUIRE AMISH TO SEND KIDS TO
SCHOOL AFTER 8 TH GRADE.

GOVERNMENT WINS:
1. AMISH MUST PAY SS AND HAVE A NUMBER
2. SALES TAX ON RELIGIOUS ARTICLES VALID
3. CAN’T DEDUCT CHURCH CONTRIBUTIONS IF
RECEIVE GOODS
4. REQUIRED VACCINATION FOR KIDS VALID
5. CAN BAN SERVICEMAN FROM WEARING
YARMULKE
6. CAN DENY TAX EXEMPTION TO RACIST U
7. CAN BAN POLYGAMY
GOVERNMENT LOST ON REGUIRING BELIEF IN GOD
AS A REQUIREMENT FOR HOLDING PUBLIC OFFICE.

EMPLOYMENT DIVISION, OREGON DEPT OF HR v
SMITH (SMITH II) (1990 – 1510 )
PLAINTIFFS INGESTED PEYOTE FOR SACRAMENTAL
PURPOSES AT CEREMONY OF NATIVE AMERICAN
CHURCH. FIRED AS DRUG COUNSELLORS. DENIED
UNEMPLOYMENT BENEFITS BECAUSE, AS A
CONTROLLED SUBSTANCE, USING PEYOTE WAS
EITHER ILLEGAL OR MISCONDUCT UNDER
UNEMPLOYMENT LAW IN OREGON.
SCALIA + 4
1. SHERBERT – NOT CONDUCT PROHIBITED BY LAW

2. STATE CLEARLY CAN’T BAN IF MOTIVE IS TO
LIMIT RELIGIOUS EXPRESSION
3. 1511 – CASES CONFUSED HERE. BETTER
RULE – NOT FA VIOLATION WHERE LAW IS TRULY
NEUTRAL AND BURDEN IS INCIDENTAL.
RELIGIOUS BELIEFS CAN’T JUSTIFY NON-
COMPLIANCE WITH OTHERWISE VALID STATE
LAW (POLYGAMY).
4. PLAINTIFF – FA DEMANDS EXCEPTION. NO
AND NO NEED FOR INDIVIDUALIZED HEARINGS
WHEN CRIMINAL ACTIVITY.

5. WON’T ADOPT CENTRALITY OF RELGION TEST.
GOVERNMENT SHOULDN’T BE INQUIRING INTO
DEGREE OF BELIEF. EXEMPTION HERE WOULD OPEN
FLOODGATES. POLITICAL PROCESS – MANY STATES
DO PROVIDE EXEMPTION FOR PEYOTE, BUT NOT
REQUIRED.
O’CONNOR (C AND D)
HOSTILITY CAN BE DISGUISED. SHOULD BE
COMPELLING TEST. BUT SATISFIED HERE – DRUG
PREVENTION AND NEED FOR GENERAL
ENFORCEMENT.

BLACKMUN + 2 (D)
COMPELLING TEST NOT SATISFIED. NO
COMPELLING REASON TO REFUSE EXCEPTION.
RELIGIOUS FREEDOM ACT OF 1993 REVERSES
SMITH II AND REINSTATES SHERBERT. BOERNE v
FLORES – BEYOND POWER OF CONGRESS
UNDER 14 TH AMENDMENT SECTION 5.
CONGRESS CAN’T OVERRULE SUPREME COURT
PURSUANT TO POWER TO ENFORCE. BOERNE =
RIFRA INVALID AS TO STATES – VALID AS TO
FEDERAL GOVERNMENT.

BURWELL v HOBBY LOBBY (2014 – S77 )
OBAMACARE – IF 50 OR MORE FT EMPLOYEES, MUST
PROVIDE CONTACEPTIVE MEASURES, STERILAZATION
PROCEDURES AND COUNSELING. EXEMPT IF RELIGIOUS
ORGANIZATION .
P HERE = 13,000 EMPLOYEES – CLOSE CORPORATION,
OWNERS BIBLICAL. 5 -4 MUST GIVE EXEMPTION.
ALITO + 4
1. FOR PROFIT CORPORATIONS INCLUDED IN RFRA. CAN
DETERMINE RELIGIOUS BELIEFS IN NON-PUBLICLY
TRADED CORPORATIONS. HERE CLOSELY HELD.

2. SUBSTANTIAL BURDEN = COMPELLING. NOT LEAST
RESTRICTIVE – GOVERNMENT SHOULD PAY. GIVE SAME
TREATMENT AS NON-PROFIT RELIGIOUS EMPLOYERS.
GINSBURG + 3 (D)
1. BROAD – ALLOWS ALL COMMERCIAL ENTITIES TO OPT
OUT OF GENERAL LAWS ON ASSERTED RELIGIOUS
BELIEFS. UNPRECEDENTED. FOR PROFITS NOT SERVING
A COMMUNITY OF BELIEVERS.
2. NOT A SUBSANTIAL BURDEN ON HL – THEY ARE NOT
REQUIRED TO BUY CONTRACEPTIVES – UP TO
EMPLOYEE.

3. COMPELLING INTEREST IN PUBLIC HEALTH AND
WOMEN’S WELL BEING.
4. WHAT ABOUT TRANSFUSIONS (JEHOVAH’S
WITNESSES), ANTIDEPRESSANTS (SCIENTOLOGISTS),
DERIVED FROM PIGS (MUSLIMS, JEWS AND
HINDUS) OR VACCINATIONS (CHRISTIAN SCIENCE) ?

ESTABLISHMENT CLAUSE FA8 – PRAYER AND $$$
LEMON v KURTZMAN (1971)
1. SECULAR PURPOSE
2. PRIMARY EFFECT MUST NEITHER ADVANCE
NOR INHIBIT RELIGION
3. NO EXCESSIVE ENTANGLEMENT
AGOSTINI v FELTON (1997)
1. SECULAR LEGISLATIVE PURPOSE
2. CAN’T ADVANCE RELIGION THROUGH EXCESSIVE
ENTANGLEMENT

A. DOES PROGRAM RESULT IN GOV’T
INDOCTRINATION OF RELIGION ?
B. ARE RECIPIENTS DEFINED BY REFERENCE
TO RELIGION ?
C. IS THERE EXCESSIVE ENTANGLEMENT
BETWEEN GOVERNMENT AND RELIGION ?
FACTORS:
1. ID OF RECIPIENT – INDIVIDUAL OR SCHOOL
2. TENSION BETWEEN FE AND EC – CAN’T FAVOR
CAN’T PENALIZE
3. WALL OF SEPARATION v FLEXIBLE BARRIER
4. COLLEGE v HIGH SCHOOL v ELEMENTARY

MANY DECISIONS 5 – 4
PRAYER = VIOLATION (BUT SEE GREECE CASE)
$$$ = SPLIT BUT MORE RECENT ALLOW
RELIGIOUS SYMBOLS ON PUBLIC PROPERTY = SPLIT –
BETTER OUTSIDE THAN INSIDE, BETTER OLD THAN NEW.
SOME RELIGIOUS SECULARIZED (TREE AND LIGHTS).
TOWN OF GREECE v GALLOWAY (2014 – S 83 )
VOLUNTEER CLERGY GIVE PRAYER AT TOWN MEETING.
LIST OF WILLING BOARD CHAPLINS. NEVER DENIED
ANYONE. BUT FROM 1999 – 2007, ALL CHRISTIAN

NEVER REVIEWED PRAYERS IN ADVANCE OR
COMMENTED AFTER. 5 – 4 VALID – MARSH.
KENNEDY + 4
1. MARSH AFFIRMED – LEGISLATIVE INVOCATIONS ARE
COMPATIBLE WITH ESTABLISHMENT CLAUSE. LIMITS –
VALID TO LEND GRAVITY AND REFLECT TRADITIONAL
AMERICAN VALUES, BUT CANNOT DENIGRATE,
THREATEN OR PREACH CONVERSION. MUST MAKE
GENERALLY AVAILABLE.
2. NOT FOR PUBLIC BUT THE LAWMAKERS. NO
EVIDENCE OF BIAS OR FAVORITISM IN ACTUAL
DECISIONS.

3. OFFENSIVENESS TO SOME NOT A VALID PURPOSE TO
SUPPRESS. LEAVE ROOM OR COME LATE OR SIT SILENTLY.
KAGAN + 3 (D)
1. NO REAL DIVERSITY – ALL CHRISTIAN. DIDN’T TRY.
2. NOT JUST LEGISLATIVE BODY – ALSO EXECUTIVE
FUNCTION. ENGAGE WITH CITIZENS ON PERSONAL
MATTERS.
3. CLEARLY ALIGNED ITSELF WITH A SINGLE FAITH.
ASSUMED EVERYONE A CHRISTIAN.
FA 9