NON-TRADITIONAL PUBLIC FORUM
US POSTAL SERVICE v GREENBURGH CIVIC
ASSOCIATION (1981 – 1034)
1034 – 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 – 1035)
1. 1035 – TPF DEFINITION – CAN’T PROHIBIT
ALL COMMUNICATIVE ACTIVITY. COMPELLING IF
CONTENT BASED. TPM = INTERMEDIATE.
2. 1036 – NON-PUBLIC FORUM. REASONABLE
AND NOT SUPRESSING PARTICULAR VIEW.
3. 1035-6 – QUASI OR LIMITED PUBLIC FORUM.
NONPUBLIC FORUM OPENED FOR EXPRESSIVE
ACTIVITY BY THE STATE. CAN BECOME LIKE A TPF IF
SO OPENED. 1035 FN 1 – MAY BE OPEN FOR CERTAIN
GROUPS OR SUBJECTS. 1036 – ENTITIES OF SIMILAR
CHARACTER.
4. 1036 – 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 – 1037) 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. 1038 – 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 - 1039) (NO SOLICITING)
4 = NON PF
KENNEDY = TPF BUT TPM SATISFIED
4 = TPF
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. 1039 - 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 1040
- TPM SATISFIED – IN PERSON SOLICITING IS
DIFFERENT FROM LITERATURE OR FUTURE $$$
BRENNAN + 3
1. DISTINCTION BETWEEN SIDEWALKS SILLY.
2. COLLAPSED LIMITED PF FROM ANALYSIS.
COULD BE LESS RESTICTIVE THAN TOTAL BAN TO
ACCOMMODATE PO LEGITIMATE INTERESTS.
CRITICAL ISSUE FOR LAWYERS - HOW DO YOU
CHARACTERIZE SOLICITATION ? MORE LIKE
SPEECH OR MORE LIKE SALE OF GOODS ?
HARE KRISHNA v LEE (1992 – 1041)
5 – 4 BAN ON DISTRIBUTION OF LITERATURE
INVALID
6 – 3 BAN ON SOLICITATION AND RECEIPT OF
$$$ VALID
KODINDA AND LEE, BRENNAN AND MARSHALL
RETIRE AND ARE REPLACED BY SOUTER AND
THOMAS (THOMAS CHANGES VOTES).
5 – NON PF
4 - TPF
3 – TPF, TPM NOT SATISFIED
1 - TPF BUT 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.
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 – 1046)
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 1047)
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) - INTERMEDIATE SCRUTINY.
SMALL BURDEN ON FA RIGHTS – 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
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 – 1051)
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. 1051 - 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 – 1052)
AFTER HOURS USE OF SCHOOL FACILITIES FOR
VARIOUS PURPOSES 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 – 1093)
INVALID WHEN FUNDING ALL STUDENT PAPERS
EXCEPT RELIGIOUS. VIEWPOINT.
GOOD NEWS CHURCH v MILFORD CENTRAL SCHOOL
(2004 – 1053)
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 – 1054)(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 –
1054)
1. CITY – OTHER SYMBOLS RELATED TO CITY’S
HISTORY OR DONATED BY GROUPS WITH
LONGSTANDING COMMUNITY TIES
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. GOVERNMENT SELECTIVITY ALLOWED HERE.
4. PINETTE WAS TEMPORARY AND ALLOWED
OTHERS. DIFFERENCE HERE ON PERMANENT.
GOVERNMENT SPEAKING FOR ITSELF, NOT
REGULATING. WHAT ARE THE RESTRICTIONS ON
GOVERNMENT SPEAKING ?
PRIVATE PROPERTY RIGHTS
REALLY ISSUE OF STATE ACTION
SOME MALLS PUBLICLY OWNED, SOME PRIVATE
AMALGAMATED FOODS v LOGAN VALLEY (1968 1056)
MALL LIKE COMPANY TOWN IN MARSH v
ALABAMA. TPF. PEACEFUL UNION PICKETING
CAN NOT BE SUPPRESSED.
HUDGENS v NLRB (1976 – 1057)
LOGAN VALLEY OVERRULED. 2013 – PRIVATE
PROPERTY – NO RIGHT TO BE THERE – NO FA ACCESS
UNLESS PRIVATE UNDER STATE ACTION DOCTRINE.
GOVERNMENT AS EDUCATOR
TINKER v DES MOINES (1969 - 1058)
1. CLOSE TO PURE SPEECH. NOT DISRUPTIVE. SILENT,
PASSIVE. FEAR OF DISTURBANCE NOT ENOUGH.
2. 1058 - 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 - 1060)
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
COMPOSTION 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. 1061 – HOLDING. GENUINE ISSUE OF MATERIAL
FACT ON BOARD’S INTENTIONS – SUMMARY
JUDGMENT INAPPROPRIATE.
BLACKMUN (C)
1061 – 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 – 1063)
SPEECH AT 1063 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 1064)
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 - 1066)
WHAT IS THE MOST CRITICAL TRIAL TACTIC DECISION
THE LAWYERS FACE BEFORE TRIAL ?
WHAT IS MEANING OF SIGN “BONG HITS FOR 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
2014 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
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.
2.
3.
4.
ATTORNEY TRANSFER POLICY (CONNICK)
NURSE TRAINING (WATERS)
COP IN PORNO FILM IN UNIFORM (SAN DIEGO)
AFFIDAVIT MISREPRESENTATIONS (GARCETTI)
PICKERING v BOARD OF EDUCATION (1968 – 1070)
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 – 1071)
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 – 1074)
CAN’T FIRE FOR ANTI-REAGAN POSITION. PUBLIC
ISSUE AND NOT WIDELY DISSEMINATED.
WATERS v CHURCHILL (1994 – 1075)
SUPERVISOR OVERHEARD NURSE COMPLAINING
ABOUT TRAINING. EMPLOYER REASONABLY BELIEVED
PRIVATE CONCERN SO FIRING VALID.
SD v ROE ( 2004 – 1078) – FIRING UPHELD.
COP AS COP IN UNIFORM IN PORN VIDEO.
GARCETTI v CEBALLOS (2005 – 1078)
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 – 1080)
RESTRICTIONS ON RECRUITING JHS VALID.
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
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
NONSUBSIDZATION
2. GOVERNMENT CREATING FORUM
FOR PRIVATE INDIVIDUALS WITH
DIVERSE VIEWS
PENALTY IF VIEWPOINT
MOST TIMES
SPEISER v RANDALL (1958 – 1087)
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 – 1088)
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 – 1089)
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 – 1091)
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 –
1093)
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. 1094 – 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 - 1095)
1. 1095 – 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. 1097 –
FN - ART DESCRIBED. VIEWPOINT BUT VALID.
SOUTER (D)
CLEARLY VIEWPOINT. DENY TO COMMUNIST.
LEGAL SERVICES CORP v VELAZQUEZ (2001 - 1099)
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 - 1101)
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
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 (1129 – WALKER –
APPEAL;CARROLL – NO EX PARTE). NOW MEDIA –
NEAR v MINNESOTA (1931 – 1127)
NO PRIOR RESTRAINT FOUNDATIONAL VALUE FROM
COMMON LAW FREE SPEECH VALUES. 1127 –
NATIONAL SECURITY AND OBSCENITY EXCEPTIONS
CENSORSHIP ESPECIALLY WHEN INVOLVING PUBLIC
OFFICIALS – PUBLIC DISCUSSION.
NEAR + SULLIVAN = PROTECTION OF PRESS
PENTAGON PAPERS (1971 – 1130)
GOVERNMENT ARGUES THAT COURTS SHOULD
DEFER TO ASSERTION OF NATIONAL SECURITY BY
PRESIDENT. INJUNCTION INVALID 6 - 3
BLACK AND DOUGLAS
ABSOLUTE PROTECTION - PRIOR RESTRAINT, MEDIA
STEWART
NOT ENOUGH EVIDENCE ON DIRECT AND IMMEDIATE
HARM.
WHITE
BURDEN ON GOVERNMENT 1133 - 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 – 1135)
ENJOINED MAGAZINE PUBLISHING H BOMB
SNEPP v US (1980 – 1137)
CIA EMPLOYEE IN VIOLATION OF AGREEMENT.
CONSTRUCTIVE TRUST ON PROFITS. AGREEMENT +
ACCESS TO CLASSIFIED + IMPORTANT
GOVERNMENTAL INTEREST.
HAIG v AGEE (1981)
REVOKED PASSPORT
NEBRASKA PRESS v STUART (1976 – 1137)
1. FREE PRESS v FAIR TRIAL
2. 1138 - FACTORS – STRONG PRESUMPTION
AGAINST PRIOR RESTRAINT.
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 – 1145)
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. TV –ELECTROMAGNETIC SPECTRUM (VHF, UHF).
RED LION v FCC (1969 – 1264)
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 –
1266)
WIDE JOURNALSTIC FREEDOM TO BROADCASTERS.
OPEN DEBATE BUT NOT A SYSTEM OF “PUBLIC
TRUSTEE”. CBS CAN REFUSE ALL EDITORIAL ADS.
CBS v FCC (1981 - 1267)
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
CABLE – TALL ANTENNA AND PHYSICAL CABLE –
CATV
SATELLITE
INTERNET
TURNER AND TRANSPONDERS
TURNER BROADCASTING v FCC (1994 - 1269)
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 (1271)
CABLE ITS OWN RULES – NOT PRINT OR BROADCAST.
RENO v ACLU (1997 - 1274)
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 - 862)
1. OBSCENITY NOT WITHIN FA. UTTERLY WITHOUT
REDEEMING SOCIAL IMPORTANCE.
2. NOT ALL SEX = OBSCENE. OBSCENE IS SEX
APPEALING TO PRURIENT INTERESTS 863 FN 2.
864 – AVERAGE PERSON APPLYING COMTEMPORARY
COMMUNITY STANDARDS.
865 - CRAZY PERIOD. MEMOIRS 3 PART TEST.
STEWART IN JACOBELIS (KNOW IT WHEN I SEE IT).
MILLER v CALIFORNIA (1973 - 867)
MEMOIRS TEST HARD TO PROVE – TOO
SUBJECTIVE. 867-868
1. APPEALS TO PRURIENT INTEREST AND
2. IS PATENTLY OFFENSIVE AND
3. LACKS SERIOUS LITERARY, ARTISTIC OR
SCIENTIFIC VALUE.
PRURIENT DEFINED BY ROTH (863 FN 2)
868 - DEFINES PATENTLY OFFENSIVE
JENKINS v GEORGIA (1974 - 877)
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 - 878)
SERIOUS VALUE IS A NATIONAL AND REASONABLE
PERSON STANDARD. DOESN’T VARY COMMUNITY BY
COMMUNITY.
STANLEY V GEORGIA (1969 - 866)
1. 866 – 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 - 870)
STIPULATED – OBSCENE, NO CHILDREN OR
UNCONSENTING ADULTS, OUTSIDE TASTEFUL.
1. 870 - 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
QUESTION – IS FILM/BOOK/ETC
OBSCENE ? MILLER TEST – 3 PART
1. IF YES, THEN STANLEY AND
PARIS ADULT
2. IF NO, THEN CAN STATE
REGULATE - TYPE OF MEDIUM
CHILD PORNOGRAPHY
NY v FERBER (1982 - 880)
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 - 883)
MERE POSSESSION CAN BE MADE CRIMINAL
ASHCROFT v FREE SPEECH COALITION (2002 – 883) –
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
885 - 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 (1986-887)
INDIANAPOLIS ORDINANCE BANNING FILMS THAT
DENIGRATE WOMAN - 887
1. NO REFERENCE TO MILLER TEST. 888 - 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 - 892) 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 895)
895 – FN 1 - REGULATED USES 895 - 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. 896 - 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 - 898)
CONCENTRATED IN RED LIGHT DISTRICT
REHNQUIST – VALID - 899 - SECONDARY EFFECTS
DISSENT (2) – CONTENT BASED
LA v ALAMEDA BOOKS (2002 - 900)
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 900 - BURDEN
KENNEDY
INTERMEDIATE EVEN THOUGH ON CONTENT
SECONDARY EFFECTS
SOUTER + 3 (D)
NEED EMPIRICAL DATA ON SECONDARY EFFECTS OR
FEAR DISGUISED VIEWPOINT.
2014 – 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 - 903) STATUTE
MAKES CRIMINAL OBSCENE, INDECENT OR PROFANE
STEVENS + 2
1. CLEARLY ON CONTENT. CAN REGULATE UNLESS
BECAUSE OF POLITICAL CONTENT OR SATIRIZING
ATTIDTUDE TOWARDS 4 LETTER WORDS. 904 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
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.
FCC v FOX TV (2009 – 908)
FLEETING EXPLETIVES 6am – 10pm
IMPROPER NOTICE.
MANY VOICE FA CONCERNS – NOT
DELIBERATE OR RELENTLESSLY
REPETITIVE DOES ANYONE CARE
ABOUT FREE TV AND RADIO ?
ROWAN v POST OFFICE (1970 - 909)
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 - 910 - CON ED, BOLGER
SABLE COMMUNICATIONS v FCC (1989 - 911)
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 - 912)
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 - 913)
MOST FACTS STIPULATED. 913 – 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.
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 - 919)
COPA – DIFFERENT FROM CDA – EMAIL
NOT INCLUDED, COMMERCIAL ONLY
AND HARMFUL 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 (920)
FAILS STRICT SCRUTINY – USE BLOCKING SOFTWARE
ON RECEIVING END, NOT SENDING.
DISSENT SAYS BLOCKING SOFTWARE DOESN’T WORK
LIBRARY CASE – BLOCKING COMPT.
2014 PROTECTION (REGULATION)
MOST (LEAST)
LEAST (MOST)
PRINT,
TV/RADIO
PREMIUM CABLE, MAIL HOME REQ
900,
INTERM (?)
INTERNET
CABLE OPERATOR
SEC EFFECTS (TPM 234)
SECONDARY EFFECTS – PROPERTY
ZONING WITH SEXUALLY EXPLICIT
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 BROAD.
OVERBREATH
1103 – DEFINITION – REGULATION BROADER THAN
NECESSARY TO PROTECT INTEREST. REALLY FIT PART
OF MODERN TEST. USED TO AVOID SCRUTINY LEVEL
1103 - 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 - 1105)
1. EVEN IF MIGHT APPLY TO WEARING BUTTONS, D
ACTIVELY ENGAGED IN CAMPAIGN. 1106 - TEST AND
CHILL. 1106 – 7 - 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 1108 - D ARGUED OVERBROAD BECAUSE
SERIOUS SCIENTIFIC AND EDUCATIONAL MIGHT BE
PROHIBITED. NOT SUBSTANTIALLY OVERBROAD.
ASHCROFT v FREE SPEECH - 1108 - CAN’T BAN
UNPROTECTED IF SUBSTANTIAL AMOUNT OF
PROTECTED IS ALSO BANNED.
VIRGINIA v HICKS - 1109 - 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 1110 – OVERBROAD
TO DEFINE PRURIENT INTEREST AS LASCIVIOUSNESS
OR LUST. COVERS PROTECTED
SCHAMBURG 1111 AND MUNSON 1112 – CAN’T
EQUATE HIGH OVERHEAD WITH FRAUD ON DOOR TO
DOOR SOLICITATION BAN.
HOUSTON v HILL 1115 – OVERBROAD - STATUTE NOT
LIMITED TO DISORDERLY CONDUCT OR FW
BD OF AIRPORT COMM 1115 – SPECTULAR
OVERBREATH - CAN’T ENGAGE IN PROTECTED FA
ACTIVITY IN LAX.
VAGUENESS
1116 – DEFINITION. PROCEDURAL DUE PROCESS
CONCEPT OF GIVING ADEQUATE NOTICE OF
VIOLATION. SO POORLY WRITTEN OR UNCLEAR
DON’T KNOW WHAT IS MEANS. USUALLY A BROAD,
GENERAL STATUTE OR REGULATION.
ANTI- WANDERING STATUTES
COATES v CINN - 1117 – ANNOYING
NEA v FINLEY 1118 – 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 (STATE
OR FEDERAL) V FA – EXCLUSION RIGHT
ROBERTS v JAYCEES; ROTARY v NY STATE –
PREVENTION OF GENDER DISCRIMINATION =
COMPELLING PURPOSE. OVERRIDE FA RIGHTS.
EXCEPTION OF TRULY NON – PUBLIC (AGUSTA NAT’L)
BOY SCOUTS v DALE (2000 - 1182)
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 - 1185)
SOLOMON AMENDMENT VALID. MILITARY NOT
PART OF LAW SCHOOL. FACULTY’S RIGHT OF
ASSOCIATION NOT INFRINGED.
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 – 1193)
1193 - STATUTE – PUBLIC FUNDING – LIMITS ON
CONTRIBUTIONS AND EXPENDITURES.
CONTRIBUTION LIMITS VALID - TPM
1195 – STATE PURPOSE OF ANTI-CORRUPTION AND
APPEARANCE ARE SUFFICIENT TO JUSTIFY.
FA RIGHTS MARGINALLY IMPACTED. NO DATA LIMITS
MEAN 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 – 1225)
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 – 1226)
ANTI-HILLARY DOCUMENTARY. 1227 – 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. ANTIDISTORTION NOT GOOD ENOUGH
GOVERNMENTAL PURPOSE. ANTICORRUPTION OR
APPEARANCE OF SUCH NOT ENOUGH EITHER
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.
RELIGION CLAUSES
1275 - FA LANGUAGE ON RELIGION. TENSION
BETWEEN FREE EXERCISE AND ESTABLISHMENT – IF
CHURCH PROPERTY EXEMPT FROM TAX, DOES FE
DEMAND THE EXEMPTION OR IS GRANTING ANTIEST.
2014 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).
3. CORPORATIONS HAVE FULL FIRST AMENDMENT
RIGHTS (LIKE INDIVIDUALS)
HISTORY – CLEAREST – CONGRESS CAN’T ESTABLISH A
NATIONAL RELIGION AND CAN’T MAKE A SPECIFIC
RELIGION OR RELIGIOUS PRACTICE CRIMINAL
1276 – BLACK IN EVERSON. GOVERNMENT
SUPPORTED RELIGION IN PRE-1776 EUROPE.
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.
1277 - VOLUNTARISM AND SEPARATION
1279 - 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
1277-78 – 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
14TH AMENDMENT INCORPORATED 1ST. LAST OF
STATE RELIGIONS ABOLISHED IN 1830’S.
1281 – ACCOMODATION – HARLAN AND THE ZONE.
1282 – 4 - CONSCIENTIOUS OBJECTOR. CAN’T
OBJECT ONLY TO UNJUST WARS. CAN YOU BE A NONRELIGIOUS PACIFIST AND GET EXEMPTION ?
1284 -5 - DEFINITION OF RELIGION-SINCERITY/FRAUD
FREE EXERCISE - FA7
LIKE SOPHISTICATION OF RACISM FROM CON I
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 – 1286)
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.
SHERBERT v VERNER (1963 – 1295)
7TH DAY ADVENTIST FIRED BECAUSE COULDN’T
WORK ON SATURDAY. DENIED
UNEMPLOYMENT. IF SUBSTANTIAL BURDEN ON
RELIGION – COMPELLING.
WISCONSIN v YODER (1972 – 1298)
CAN’T REQUIRE AMISH TO SEND KIDS TO
SCHOOL AFTER 8TH 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 – 1305)
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. 1306 – CASES CONFUSED HERE. BETTER
RULE – NOT FA VIOLATION WHERE LAW IS TRULY
NEUTRAL AND BURDEN IS INCIDENTAL.
RELIGIOUS BELIEFS CAN’T JUSTIFY NONCOMPLIANCE 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 14TH AMENDMENT SECTION 5.
CONGRESS CAN’T OVERRULE SUPREME COURT
PURSUANT TO POWER TO ENFORCE.
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
$$$ = 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).
FA 9 AND RECENT CASES.