The First Amendment Outline – Jones Fall 2012
Michael Hinckley
Open Book/Outline
Freedom of speech, press, and religion
Freedom of speech – expressive freedom
Why protect freedom of speech?
1. Previous lack of freedom of speech in the 13 colonies, the framers wanted to open up the
“marketplace of ideas” – ideas given the opportunity to compete, and the best will rise to the top
a. What we think might be true might not be. Gives us the opportunity to discover truth
b. Falsehoods can help us discover the truth
c. Cherish the truth more earnestly when we have to fight for it
d. Prior restraints are presumptively unconstitutional
i. Far better to let it out there and subsequently have to punish the speech than
having prior restraints by gov’t
e. Critique of the Marketplace of ideas
i. A few wealthy people and corporations own the channels of communication and
the marketplace is no longer as viable – marketplace is unequal
ii. Marketplace of ideas needs as much regulation as does the economic marketplace
2. Protection of speech is important for democracy (self-gov’t)
a. Bork says this is the primary reason this was put in the const.
i. Therefore only political speech should be protected
ii. This limited application has not been wholly adopted by the court
1. However political speech has been given higher protection
b. Always need speech from a wide variety of vantage points because it is the stuff from
which good gov’t is made
c. Four functions
i. Improve public policy
ii. Keeps clear the “channels of political change” – prevents gov’t from entrenching
itself indefinitely
iii. Prevents gov’t abuse of power
iv. Promotes political stability by providing a safety valve for dissent – actually
prevents revolution, lets them let off steam (complain w/ mouths instead of w/
guns). Give people a chance to be heard
3. Autonomy, self-fulfillment
a. Intrinsic worth of speech, allows people to become self-actualized person
b. Free speech serves and end in and of itself
i. It is demeaning, inhuman to be told you cannot speak
c. Hard to find a stopping point w/ this theory
4. The court has been very speech protective
How to protect freedom of speech?
1. Absolutism – no law shall be made restricting speech (Kennedy tends this way)
a. This is untenable
i. Conspiracy can be made to be a crime
ii. Threatening the president, intimidating letters from stalkers
2. Balancing v. Categorization
a. Debate between balancing v. categorization, while real, is mostly academic. SC does both
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b. Content based
i. Gov’t may not regulate opinions or ideas
c. Non-content based
i. “No bullhorns outside a hospital” – nothing to do w/ the content of the speech,
only how the speech is being conveyed
ii. Time, place, or manner
d. Speech v. Non-speech
i. Very small number of forms of expression do not come under 1st amendment
protection, gov’t can do whatever they want here
ii. So valueless or harmful does not deserve protection
1. Incitement
2. Fighting words
3. Obscenity
Incitement to Violence
1. Advocacy of an idea v. incitement
2. Schenck v. United States (US 1919) p.15
a. Document would not have been sent unless it was meant to have some effect
b. Clear and Present Danger – “Whether the words used are used in such circumstances
and are of such a nature as to create a clear and present danger that they will bring
about the substantive evils that Congress has the right to prevent.”
c. Proximity and degree
i. Difference between Fire! in a crowded theater and distributing leaflets
encouraging resistance to the draft is the immediacy of danger, and the
opportunity to rebut. Also a difference of kind - opinion v. fact
ii. Important: likelihood that the speech is going to cause the problem right away
iii. Punish speech bound up in action may be punishable
d. Bad tendency test – if a reasonable person could believe that this would cause harm then
it is not protected
i. much easier to convict under this test
3. Masses Publishing Co v. Patten (SDNY 1917) p.25
a. “One may not counsel or advise others to violate the law as it stands”
b. To counsel or advise a man to act is to urge upon him either that it is his interest or duty
to do it
c. If it is advocacy of an opinion it is okay – if it is incitement to violate the law as it stands
it is not okay
d. This test never gained any traction
4. Abrams v. United States (SC 1919) p.19 – WWI Russian immigrants promote munitions
production strike
a. Majority goes for a general intent test – “men must be held to have intended, and be
accountable for, the effects which their acts were likely to produce.”
b. Holmes Dissent
i. Exponentially expands what can be punished
ii. Must actually have the intent and the tendency to cause the harm
iii. “when words are used exactly, a deed is not done w/ intent to produce a
consequence unless that consequence is the aim of the deed.”
iv. Only the emergency that makes it immediately urgent
v. “The best test of truth is the power of the thought to get itself accepted in the
competition of the market”
vi. “We should be eternally vigilant against attempts to check the expression of
opinions that we loathe and believe to be fraught w/ death, unless they so
imminently threaten immediate interference w/ the lawful and pressing purposes
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of the law that an immediate check is required to save the country”
5. Gitlow v. New York (SC 1925) p.29 – The NY Statute prohibits advocacy (you may not express
these views) not conduct
a. Majority upholds these convictions
b. Greatest amount of deference given to legislature (police power)
i. When the legislative body has determined generally, in the constitutional
exercise of its discretion, that utterances of a certain kind involve such danger of
substantive evil that they may be punished, the question whether any specific
utterance coming w/in the prohibited class is likely, in and of itself, to bring
about the substantive evil, is not open to consideration.
c. First time court incorporates 1st amendment to the states through the 14th amendment, and
they do it in dicta
d. Holmes dissent
i. Every idea is an incitement. It offers itself for belief and if believed it is acted on
unless some other belief outweighs it or some failure of energy stifles the
movement at its birthP.33
6. Whitney v. California p.33 – convicted under criminal syndicalism act of being a member of a
violent group – in the Communist Labor Party
a. Majority – her membership partakes of the nature of conspiracy, defers to legislature
b. Brandeis Concurrence –
i. Advocacy of violence, w/out more (likelihood of incitement) is not enough to
proscribe speech
ii. Legislative determination is merely a rebuttable presumption
iii. to support a finding of clear and present danger – immediate serious violence
was to be expected or was advocated, and that the past conduct furnished reason
to believe that such advocacy was then contemplated
iv. Immediacy – If there is time for full discussion to avert the evil by education,
then the remedy to be applied is more speech, not enforced silence
7. Dennis p.39 – A conspiracy to organize to conspire to overthrow
a. Plurality – “Whether the gravity of the evil, discounted by its improbability, justifies
such an in-vasion of Free speech as is necessary to avoid the danger”
i. Imminence is diminished in this formulation – seriousness of the action takes the
forefront
b. Frankfurter (concur) – The responsibility for deciding how to balance belongs to the
legislature, Only set aside legislative determination if there is no reasonable basis for it
8. Brandenburg p.46 (1969) Governs today – KKK case “revengeance”
a. [1st A does not permit a gov’t] to forbid or proscribe advocacy of the use of force or of
law violation except where such advocacy is:”
i. Directed to inciting or producing imminent, lawless action (evil), and;
ii. Is likely to incite or produce such action
b. Must be a clear link between the plea and the violence taken
Fighting Words and Hostile Audiences
1. Violence is directed at the speaker, rather than undertaken in sympathy at the speaker’s cause
a. The state seeks to stop the speaker in order to promote the interest in assuring order and
avoiding violence
b. Stopping people who are attacked verbally from attacking back physically
c. Want to stop speech that triggers a fight
d. However this chills speech, no back and forth of ideas and the majority always wins
e. Also destroys the safety valve theory
2. One on one encounters – fighting words
a. Cantwell p.53 – JW proselytizing (1940)
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i. Unprotected - statements likely to provoke violence & disturbance of good order
ii. Protected speech if trying to inform others of your views
iii. Resort to racial epithets or personal abuse is not in any proper sense
communication of information or opinion safeguarded by the Const.
b. Chaplinsky p.53 – (1942) Watershed case – JW insults a police officer, “Damn Fascist”
i. Free speech is not absolute at all times
ii. Not protected speech
1. Lewd, Obscene, Profane
2. Libelous
3. Insulting or fighting words – tend to incite a breach of the peace
iii. Speech that is “no essential part of any exposition of ideas and are of such
slight social value as a step to truth that any benefit that may be derived from
them is clearly outweighed by the social interest in order and morality”
iv. While these categories are not the same today, the principle remains the same,
there are categories of speech outside 1st Amendment protection
v. Morality rationale has completely been removed
c. Cohen v. California (1971) p.56 – F* the Draft
i. 1st A does not give absolute protection to every individual to speak whenever and
wherever he pleases, or to use any form of address in any circumstance
ii. Obscenity cases – the expression must be in some way erotic
iii. Profanity is sometimes protected speech
1. The State has no right to cleanse public debate to the point where it is
grammatically palatable to the most squeamish among us.
2. One man’s vulgarity is another man’s lyric
iv. Fighting words exception does not apply to words addressed generally to the
world at large
1. No individual or group present could reasonably have regarded the
words as a direct insult
v. Undermines the notion that there is any unprotected category of words that by
their very utterance inflict injury
vi. Words are chosen for their emotive as well as for their cognitive value
vii. Captive audiences Doctrine – does not apply here, just avert your eyes
d. Fighting words doctrine – so reduced as to be almost nothing. Face to face and
individualized and provokes a reflexive violent reaction from the hearer
3. Hostile audiences & Hecklers veto
a. Terminiello v. Chicago (1949) p.60
i. Fighting words must be a one on one encounter
ii. Speech that stirs people to anger and invites dispute is protected
iii. Will not shut down speech because a hostile speaker (heckler’s veto)
b. Feiner v. New York (1951) p.61 – Calls president and mayor bums and calls blacks to
rise up in arms and fight. Audience gets hostile, and cops take down speaker
i. This case is now viewed as an aberration
ii. Not a Brandenburg case, speaker and audience in different minds here
iii. The officers making the arrest were motivated solely by a proper concern for the
preservation of order, D not arrested for the content of his speech, but for the
reaction it engendered.
iv. When the speaker passes the bounds of argument or persuasion and undertakes
incitement to riot, police may step in
v. Black Dissent – Police should have tried to protect the speaker, not stop his
speech
4. Hate Speech
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a. Skokie (1977) – Nazi demonstrations in Illinois in Holocaust survivor community
i. Strict procedural safe-guards in 1st A, including immediate appellate review
ii. Speech that merely hurts feelings or offends are not fighting words
b. R.A.V. v. City of St. Paul (1992) p.88 – burning cross on the lawn – all 9 vote to strike
statute as facially unconstitutional
i. Facially unconstitutional if it prohibits otherwise permitted speech solely on the
basis of the subjects the speech addresses
ii. Content-based regulations are presumptively invalid
iii. Ex. Gov’t may proscribe libel; but not make the further content discrimination of
proscribing only libel critical of the gov’t
iv. Nonverbal expressive activity can be banned because of the action it entails, but
not because of the ideas it expresses–so that burning a flag in violation of an
ordinance against outdoor fires could be punishable, whereas burning a flag in
violation of an ordinance against dishonoring the flag is not
v. Gov’t cannot engage in content and viewpoint discrimination
1. Content discrimination- the big topics (race, gender, religion)
2. Viewpoint discrimination- your thoughts on the big topics
vi. Except – when the basis for the content discrimination consists entirely of the
very reason the entire class of speech at issue is proscribable, no significant
danger of idea or viewpoint discrimination exists
i. White concur – The problem w/ the statute is that it was over-inclusive—not
under-inclusive
1. Ordinance is overbroad because it encompasses non-violent responses
2. “It is inconsistent to hold that the government may proscribe an entire
category of speech because of the content of that speech is evil, but that
the government may not treat a subset of that category differently w/out
violating the 1st A; the content of the subset is by definition worthless
and undeserving of constitutional protection”
3. Harms of Majority:
a. This destroys the two tier framework (circle w/ the line)
b. If the same rules for junk are applied to speech that is core to
FA, we water down the rules for core protected speech
c. Strict scrutiny is NOT appropriate—it should only be used
w/protected speech
vii. Stevens concur – categories are too hard to define and become fuzzy boundaries
c. Wisconsin v. Mitchell (1993) p.97 – allows Hate-crime statutes, Penalty enhancement
i. RAV was directed at expression, the statute in this case is aimed at conduct
unprotected by the 1st A
ii. Ex. Hiring discrimination laws – aimed at behavior not speech
d. Virginia v. Black (2003) p.99 – Statute - Cross burning is prima facie evidence of an
intent to intimidate
i. True Threats – those statements where the speaker means to communicate a
serious expression of an intent to commit an act of unlawful violence to a
particular individual or group of individuals (non-speech, unprotected)
ii. May outlaw expressions done w/ intent to intimidate
1. Can outlaw cross burnings done w/ intent to intimidate
2. Burning of the cross itself cannot be prima facie evidence of intent to
intimidate
3. May be outlawed because it is a particularly pernicious example of the
category it is part of (very reason class is prohibited)
iii. Scalia Concur/Dissent – prima facie is okay because it is rebuttable
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iv. Thomas Dissent – the statute only addresses conduct, and therefore does not
qualify for 1st A protection
5. Hate crime bottom line
Sexually Explicit Expression – Obscenity – Falls outside the protection of the 1st A
1. Roth v. US; Alberts v. California (1957) p.104 Roth – mailing an obscene book, Alberts –
keeping for sale obscene books
a. Implicit in the history of the 1st A is the rejection of obscenity as utterly w/out
redeeming social importance.
b. There is a state interest in protecting morality
c. Protection for material that does not appeal to the “prurient” (material having a tendency
to excite unhealthy lustful thoughts) interest (ex. Art, literature, scientific works
protected).
d. Test: whether to the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to the prurient interest
2. Jacobellis p.107 Stewart concurrence – I know it when I see it.
3. Memoirs (1966) p.109 – “utterly w/out social value”, made it very difficult to prosecute
obscenity, D just had to show the tiniest bit of redeeming value
4. Redrup (1967) p.109 – after this came the SC viewing of porn
5. Kingsley Int’l Pictures Corp. v. Regents (1959) p.107 – state action invalid because the film in
question (Lady Chatterley’s Lover) advocates an idea (that adultery can be acceptable), running
afoul of the free expression of ideas
6. Miller v. California (1973) p.109 – mailings of unsolicited porn
a. 3 Steps – This is the Standard
i. Whether the average person, applying contemporary community standards would
find that the work, taken as a whole, appeals to the prurient interest;
ii. Whether the work depicts or describes, in a patently offensive way, sexual
conduct specifically defined by the applicable state law, and;
1. This is for a jury to decide
2. Few plain examples (p.110) this is now how most state laws read
a. Patently offensive representations or descriptions of ultimate
sexual acts, normal or perverted, actual or simulated
b. Patently offensive representations or descriptions of
masturbation, excretory functions, and lewd exhibition of
genitals
iii. Whether the work, taken as a whole, lacks serious literary, artistic, political, or
scientific value (Not local community standards)
b. Rejects the “utterly w/out redeeming social value” test
c. Reaffirms serious “literary, artistic, political, or scientific value” to merit 1st A protection
d. There cannot be a Nat’l standard of what constitutes prurient interest, or what is patently
offensive – Nation is big and diverse, so leave it to the States (also see Hamling p.119)
7. Stanley v. Georgia (1969) p.108 – charged w/ privately possessing obscene material
a. Marshall – the constitutional right to receive information and ideas, regardless of their
social worth, is fundamental to our free society
b. Private possession is okay; selling, producing, distributing can be prohibited
c. “If the 1st A means anything, it means that a State has no business telling a man, sitting
alone in his own house, what books he may read or what films he may watch”
d. This has been severely restricted to the facts in the case
e. The choice to consume obscene materials is up to the consumer, at least in his own home
8. Paris Adult Theatre I v. Slaton (1973) p. 112 – The theatre required that only consenting adults
may view the porn movies
a. Disapprove the theory that obscene, pornographic films acquire constitutional immunity
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from state regulation simply because they are exhibited for consenting adults only
b. States may have other interests in regulating obscene material
i. Tone of commerce, public safety
c. There is no fundamental privacy right implicit in the concept of ordered liberty to watch
obscene movies in places of public accommodation
d. States have a legitimate interest in regulating the obscene
e. Empirical evidence is not our job, and we are going to defer to the legislature
f. Dissent – Brennan
i. The vagueness of the standards in the obscenity area produces a number of
separate problems, including a lack of fair notice, a chill on protected
expression, and a severe stress on the state and federal judicial machinery
ii. Possible alternatives:
1. Draw a new line – one that resolves all doubt in favor of the State – This
would be overbroad
2. Majorities decision – too vague
3. SCOTUS respects lower court decisions in this area – still too vague
4. Or decide that 1st A bars suppression of sexually oriented material
iii. At least in the absence of distribution to juveniles or obtrusive exposure to
unconsenting adults, 1st A prohibits gov’t from attempting wholly to suppress
sexually oriented material on the basis of obscenity
Child Pornography
1. Two doctrines
a. Protecting children from viewing “Mere Pornography”
i. Ginsberg v. NY – convicted for selling porn to a minor
1. Material wholly protected for adult consumers under the 1st A
2. The state may const. take additional steps to take materials that are
explicit but not obscene out of the hands of children
3. State has to be careful in tailoring these laws to only limit minors,
Legislature must use “the least restricted means,” cannot “burn the house
to roast the pig”
b. Protecting children as subjects of porn
2. NY v. Ferber (1982) p.122 – convicted for distributing material depicting children engaged in
sexual acts (if it had depicted adults performing the same acts, it would have been protected) He
didn’t actually take the pictures, just a distributer
a. Child pornography is outside 1st A protection
b. The prevention of sexual exploitation and abuse of children constitutes a gov’t objective
of surpassing importance
c. Distribution of child porn is intrinsically related to the sexual abuse of children
i. Material produced are a permanent record of child abuse, and the harm is
exacerbated by their circulation
ii. The distribution network for child porn must be closed if the production of
material which requires the sexual exploitation of children is to be effectively
controlled.
d. A trier of fact need not follow the Miller formulation
e. Production based harm – Limited to visual forms (the child abuse that starts the chain of
events is what makes this not okay). If necessary for serious literary or artistic value get
an adult who looks young
f. Whole idea is to cut off the market – destroy the economic motive
g. O’Conner – concur – if the interest is about protecting the child then the audience’s
appreciation of the depiction is simply irrelevant, the child is harmed in the same way
whether the reason is good or bad
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h. Brennan – concur – holds out for serious literary, artistic, scientific, or medical value
3. Osborne v. Ohio (1990) p.125 – mere possession of child porn
a. Stanley does not apply to child porn
b. The same interests in eliminating the entire chain of distribution that justified the result in
Ferber also justified eliminating the demand by criminalizing possession of child porn
i. The had been narrowed to instances where child nudity is limited to a lewd
exhibition or involves a graphic focus on the genitals
c. Dissent – insufficient guarantee that the law wouldn’t be applied in innocuous
circumstances (suntan lotion commercial)
4. Ashcroft v. Free Speech Coalition (2002) p.125 – computer generated (virtual) child porn
a. does not extend to porn not produced w/ actual child actors
b. No children are harmed in this case
i. Doesn’t it still encourage child abuse? The mere tendency of speech to encourage
unlawful acts is not a sufficient reason for banning it, and the gov’t cannot
constitutionally premise legislation on the desirability of controlling a person’s
private thoughts
ii. The production of the work, not its content, is why child porn is not protected
iii. Arguing that protected speech may be banned as a means to ban unprotected
speech turns the 1st A upside down
c. Dissent – Congress has a compelling interest in ensuring the ability to enforce
prohibitions of actual child pornography, and we should defer to its findings that rapidly
advancing technology soon will make it all but impossible to do so
Porn as subordination of Women
1. Theory – porn is a civil rights violation on the ground that it constitutes sex discrimination, or the
subordination of women to men, harms women as child porn harms children
a. Suggests that women are inferior
2. Sunstein – anti-porn legislation is directed at harm rather than at viewpoint and that because of its
focus on harm, anti-porn legislation does not pose the dangers associated w/ viewpoint-based
restrictions
3. Rebuttal – that theory reinforces the view that good women do not seek and enjoy sex and
perpetuates a stereotype of women as helpless victims
4. American Booksellers Ass’n v. Hudnut (1986) p.129 (Easterbrook) – Indianapolis porn
ordinance – cannot make woman abuse porn
a. This ordinance discriminates on the content and viewpoint of the speech
b. Ordinance does not refer to the prurient interest, offensiveness, or the standards of the
community. Literary, artistic, political, or scientific value is irrelevant under the
ordinance
c. The state many not ordain preferred viewpoints, the const. forbids the state to declare one
perspective right and silence opponents
d. We don’t know if women are being harmed by this kind of porn, women are autonomous
and can make their own decisions
e. Above all else, the 1st A means that gov’t has no power to restrict expression because of
its message or its ideas – No “thought control”
Sexually Explicit but Non-obscene expression – “Mere Pornography”
1. Not all speech is created const. the same
2. Indecent or sexually explicit speech that does not amount to obscenity is protected speech and
that severe restrictions or total bans of such speech will be subject to strict scrutiny
3. Restrictions on sexual expression will be permitted so long as those restrictions do not have the
effect of a de facto prohibition on dissemination
4. May be regulated much more extensively than other protected speech.
5. Nudity Bans
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a. Erznoznik v. Jacksonville (1975) p.134 – ban prohibiting drive-in theaters from showing
nudity
i. Gov’t may ban when the speaker intrudes on the privacy of the home, or
ii. Degree of captivity makes it impractical for the unwilling view to avoid exposure
iii. This did not fall into these categories – easy to avert eyes
b. Schad v. Mount Ephraim – protects live nude dancing
6. Erogenous Zoning
a. Young v. American Mini Theatres (1976) p.137 – Detroit zoned adult movie theatres,
did not ban displays from the city entirely, dispersed locations
i. The state may legitimately use the content of these materials as the basis for
placing them in a different classification from other motion pictures
ii. No one would march their sons and daughters off to war to protect porn
iii. Dissent – This is exactly the type of thing that needs protection. Popular ideas
don’t need protection
b. Renton v. Playtime Theatres (1986) p.140 – zoned adult theatres in a concentrated area
i. Content neutral time, place, and manner regulations are acceptable so long as
1. Designed to serve a substantial gov’t interest
2. Do not unreasonably limit alternative avenues of communication
c. LA v. Alameda Books, Inc. (2002) p.142
i. Ordinances that regulate
d. Secondary effects regulation is okay – Pigpen (Peanuts) regulation, regulating the cloud
of dirt around Pigpen, not Pigpen himself
Commercial Speech – that which does no more than propose a commercial transaction
1. Valentine v. Chrestensen (1942) the 1st A impose[s] no restraint on gov’t as respects purely
commercial advertising – restricting commercial speech is nothing more than regulating business
a. The court considered the political protest merely an attempt to evade the city regulations
2. Virginia Pharmacy Board v. Virginia Citizens Consumer Council (1976) p.165 –1st A
protection for commercial speech, but medium scrutiny. Ban on pharmaceutical advertising
a. Where a speaker exists, the protection afforded by 1st A is to the communication, to its
source and to its recipients both. If there is a right to advertise, there is a reciprocal right
to receive the advertising, and it may be asserted by the consumer
b. Speech does not lose its 1st A protection because money is spent to project it, as in a paid
advertisement
i. When an interest is purely economic, that does not disqualify 1st A protection
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c. 1 A protects the free flow of information, that includes advertising
d. Some forms of commercial speech regulation are permitted
i. Time, Place, and manner restrictions are okay
ii. Untruthful speech, commercial or otherwise, has never been protected
1. False or misleading commercial speech can be regulated – this shows
how commercial speech is kind of second tier
iii. Illegal product advertising is not protected
e. Prior restraints are okay for commercial speech – may have to submit ads for review by
gov’t before making it public – big no no for most speech
f. 2 ways that commercial speech is different
i. It is more verifiable – easy to verify price (but harder to verify quality)
ii. More durable/hardy – goals are clear, outcome is clear, literal marketplace – little
possibility of that speech being chilled or shut down by regulation
g. Ignorance is not a proper gov’t goal
h. Dissent – There is nothing in the const. which requires states to hew to the teachings of
Adam Smith in its legislative decision regulating the pharmacy profession
3. Central Hudson Gas v. Public Service Comm’n (1980) p.177 – electric utilities were prohibited
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from trying to stimulate electricity demand during a fuel shortage, and the regulation extended to
after the crisis had ended
a. 4 part analysis – intermediate scrutiny test
i. Whether the expression is protected by 1st A
1. Misleading, deceptive, proposing illegality – Not protected
ii. Whether the asserted gov’t interest is substantial
iii. Whether the regulation directly advances the gov’t interest asserted
1. When a regulation fails, it fails here (usually a truly strange reg.) Not a
good means/ends fit (but doesn’t have to be perfect fit)
iv. Whether it is not more extensive than is necessary to serve the interest
1. For these last two “reasonably tailored means” “direct and material way”
b. The regulation is struck down – too extensive – The Commission could attempt to restrict
the format of advertising, ex. require informational pamphlets w/ the advertising
c. Concur – I seriously doubt whether suppression of information concerning the
availability and price of a legally offered product is ever a permissible way for the State
to “dampen” demand for or use of the product.
d. Dissent – A state has broad discretion in determining the statements that a utility may
make in that such statements emanate from the entity created by the State
i. Commercial speech is now virtually indistinguishable from noncommercial
4. Rubin v. Coors Brewing Co. (1995) p.185 – rejects the idea of a “vice” exception
5. Posadas De Puerto Rico Assocs v. Tourism Co. of Puerto Rico (1986) p.183 – casinos cannot
have local ads directed at Puerto Ricans
a. Greater-includes-the-lesser – If the gov’t can enact a wholesale prohibition of the
underlying conduct then it is permissible for the gov’t to take the less intrusive step of
allowing the conduct, but reducing the demand through restrictions on advertising
6. 44 Liquormart, Inc. v. RI (1996) p. 186 plurality
a. When a State entirely prohibits the dissemination of truthful, non-misleading commercial
messages for reasons unrelated to the preservation of a fair bargaining process, there is
far less reason to depart from the rigorous review that the 1st A generally demands
b. The 1st A directs us to be especially skeptical of regulations that seek to keep people in
the dark for what the gov’t perceives to be their own good
c. Posadas clearly erred in concluding it was up to the legislature to choose suppression
over a less speech restrictive policy. Rejects “greater-includes-the-lesser”
How the Gov’t Restricts Speech
1. Content-Based v. Content-Neutral Regulations
2. Track 1 regulations – Content Based regulation, not targeting speech
a. Viewpoint restrictions – paradigm violation of the 1st A
b. Strict scrutiny
i. Compelling gov’t interest
ii. Least restrictive means/narrow tailoring (no other means could be used)
3. Subject Matter Restrictions – content discrimination – strict scrutiny
a. Police Dept. v. Mosley (1972) p.199 – Statute that barred picketing w/in 150 ft of a
school while the school is in session, but exempts “peaceful picketing of any school
involved in a labor dispute.”
i. Gov’t has no power to restrict expression because of its message, its ideas, its
subject matter, or its content
ii. The essence of this forbidden censorship is content control. Gov’t may not grant
the use of a forum to people whose views it finds acceptable, but deny use to
those wishing to express less favored or more controversial views. There is an
equality of status in the field of ideas.
iii. Reasonable “time, place and manner” regulations of picketing okay to further
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significant gov’t interests
iv. The statute cannot define the prohibited speech in terms of subject matter
b. Simon & Schuster, Inc. v. NY Crime Victims Board (Son of Sam case) (1991) p.200 –
law designed to prevent criminals from profiting at the expense of victims from books
about their crimes
i. Gov’t has a compelling interest to ensure criminals do not profit from crimes
ii. Imposes a financial disincentive only on speech of a particular content
iii. In this case the law was not properly tailored/not the least restrictive means
1. Under inclusive –had not shown any greater interest in compensating
victims from these particular assets as there are all of his other assets
2. Over inclusive – also restricts other crime based books that have value
c. Republicans of MN v. White (2002) p.202 – law does not allow judicial candidates to
announce views on politics or legal issues
i. Two part test (1) Narrowly tailored (2) Compelling state interest
d. Burson v. Freeman (1992) p.201 – law prohibiting political advertising w/in 100ft of
polling place
i. To survive strict scrutiny, a State must do more than assert a compelling state
interest – it must demonstrate the law is necessary to serve the asserted interest
ii. The interest of ensuring free elections is on par w/ 1st A rights
1. Passes this test – voter intimidation and election fraud is bad
2. Compelling interest is usually only met when it is a competing right (w/
const. legacy of its own)
4. Track 2 regulations – Content-Neutral Laws – speech being targeted for some other reason
a. Laws aimed at conduct, not speech, but may suppress speech, aimed at behavior,
incidental restriction on expression
b. Laws aimed at expression, unrelated to content
i. Time, place, manner restrictions most common
ii. Intermediate scrutiny – (1) law must be closely tailored, (2) closely related to
serving a significant or substantial gov’t interest, (3) Leave open adequate
alternative channels of communication
1. Need not be compelling gov’t interest
2. Need/ends fit need not be perfect
3. State not obliged to exhaust less restrictive alternatives before it may
enact or enforce a content-neutral law
Content-Neutral Regulations and Symbolic Conduct
1. Symbolic speech is speech – An action designed to be symbolic is also protected
a. What behavior or conduct rises to the level of conveying a message?
2. US v. O’Brien (1968) p.209 – Man burns his draft card to make a point about the war
a. When speech and non-speech elements are combined in the same course of conduct, a
sufficiently important gov’t interest in regulating the non-speech element can justify
incidental limitation on 1st A freedoms.
b. If it is neutral on its face we will treat it as neutral
c. Test: Gov’t regulation is sufficiently justified if (Intermediate scrutiny)
i. It is w/in the const. power of the Gov’t
ii. It furthers an important or substantial gov’t interest
iii. The gov’t interest is unrelated to the suppression of free expression
iv. The incidental restriction on alleged 1st A freedoms is no greater than is
essential to the furtherance of that interest
3. Arcara v. Cloud Books (1986) p.214 – law defining places of prostitution, assignation, and
lewdness as public health nuisance
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Flag Desecration
1. Spence v. WA (1974) p.217 – Peace sign taped to the flag
a. Expression about foreign affairs protected speech
b. However, statute invalid because there was no risk that appellant’s acts would mislead
viewers into assuming that the gov’t endorsed his viewpoint
c. Basic approach 2 factors
i. The speaker’s intent, an intent to convey a particularized message
ii. The context indicating that the message would be understood by the audience
d. Dissent – gov’t interest is one of preserving the flag as an important symbol of
nationhood and unity. Gov’t can protect this interest
2. Texas v. Johnson (1989) p.218 – Anti-war demonstration, D burned Flag at the Republican Nat’l
Convention. Statute – cannot burn flag in way that actor knows will offend others
a. The principal function of free speech is to invite dispute
b. D was prosecuted for his expression of dissatisfaction w/ the policies of this country,
expression situated at the core of 1st A values
c. Content based restrictions – the most exacting scrutiny
d. Bedrock principle – gov’t may not prohibit the expression of an idea simply because
society finds the idea itself offensive or disagreeable
i. Not dependent on the particular mode one chooses to express an idea
e. Gov’t has a legitimate interest in encouraging proper treatment of the flag, but must do so
in the marketplace of ideas – not by making protest flag burning criminal
f. Dissent – the public burning of the flag was no essential part of any exposition of ideas
i. Flag burning is the equivalent of an inarticulate grunt or roar that is most likely to
be indulged in not to express any particular idea, but to antagonize others
ii. Surely one of the high purposes of a democratic society is to legislate against
conduct that is regarded as evil and profoundly offensive to the majority of
people – whether it be murder, embezzlement, pollution, or flag burning
iii. Had he chosen to spray paint his message on the façade of the Lincoln Memorial,
there would be no question about the power of the gov’t to prohibit his means of
expression
3. US v. Eichman (1990) p.224 – statute passed in reaction to Johnson – cannot knowingly mutilate,
deface, physically defile, burn, or maintain on the floor or ground the flag.
a. Act still suppresses expression out of concern for its likely communicative impact
b. Any suggestion that the gov’t’s interest in suppression speech becomes more weighty as
popular opposition to that speech grows is foreign to the 1st A
c. Dissent – Methods of expression may be prohibited if
i. the prohibition is supported by a legitimate societal interest that is unrelated to
the suppression of the ides the speaker desire to express
ii. the prohibition does not entail any intereference w/ the speaker’s freedom to
express these ides by other means
iii. the methods of expression is less important than the societal interest supporting
the prohibition
Nude Dancing
1. Barnes v. Glen Theatre (1991) p.226 – Statute bans public nudity – which affects nude dancing
requiring pasties and g-strings
a. Rehnquist – Nude dancing is barely w/in 1st A protection (due to the sexual nature)
i. Traditional police power of the States: authority to provide for the public health,
safety, and morals, and we have upheld such as the basis for legislation
ii. Not all conduct can be labeled speech
iii. This requirement does not deprive the dance of the erotic message
b. Scalia – Concur –as a generally applicable law regulating conduct and not specifically
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directed at expression, it is not subject to 1st A scrutiny at all
i. If IN turned a blind eye to nudity in other contexts then it would be suspicious
1. The purpose of IN’s nudity law would be violated if 60,000 consenting
adults crowded into the Hoosier Dome to display their genitals to on
another, even if there were not an offended innocent in the crowd
ii. Okay to legislate morality – police power
c. Dissent – found that it was aimed at proscription of expression
2. City of Erie v. Pap’s A.M. (2000) p.230 – plurality
a. O’Brien test should be used – reaffirms Barnes holding
b. But the reasoning is the law is directed at negating negative secondary effects (Pigpen)
i. Majority doesn’t use morality reasoning
c. Scalia – again a general law, no need to identify some negative secondary effects
Gov’t power to limit speech in its capacity as Landlord, Educator, Employer, and Patron
1. Two major camps of property that speech can be made on
a. Private – no general right to use other people’s property for speech purposes
i. 1st A says “Gov’t may make no law…” so it governs gov’t not private people
b. Gov’t owned property – does trigger 1st A analysis
i. Public Forum – typical kind of property implicated
1. Strict Scrutiny if content based
2. Intermediate if not content based
a. Time, Place, Manner restrictions valid as long as
i. Closely tailored to significant gov’t interest (O’Brien
test)
ii. Adequate alternative channels of communication
ii. Non-public forum – designed to be used for purposes not linked to speech, other
important gov’t stuff happening
1. Reasonable in light of purpose
2. Viewpoint Neutral (not subject matter neutral)
iii. Designated/Limited Purpose Public Forum (city meeting rooms, school
classrooms after hours, gov’t meetings)
1. Treated as public forum for specified uses
iv. Other – oddball mix of gov’t properties to which the court has individualized
rules (military property, schools, prisons, authoritarian sort of settings)
1. Some freedom to regulate freedom and expression more freely
2. Hague v. CIO (1939) p.233 – use of the streets and public places is a part of the privileges
immunities, rights and liberties of the citizens
a. Use of public areas for 1st A rights may be regulated in the interest of all; but it must not,
in the guise of regulation, be abridged. Kind of a 1st A easement
b. Streets, sidewalks, and public parks have always been used for speech purposes
Licensing schemes are often valid time, place, manner restrictions – Intermediate Scrutiny
1. These cases are all about discretion
2. Must have clear objective criteria curbing abuse of discretion
3. Cox v. NH (1941) p.235 – JW’s violate state law prohibiting parade or procession on public
streets w/out a license
a. Permit requirements upheld when they contain some objective criteria that curtail the
possibility of discrimination against disfavored content
b. Whether that control is exerted so as not to deny or unwarrantedly abridge the right of
assembly and the opportunities for the communication of thought and the discussion of
public questions
c. State’s right to impose regulations to assure the safety and convenience of the people in
use of public highways
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i. Gave authorities prior notice to afford proper policing, prevent overlapping
parades, secure convenient use of streets to travelers, and minimize disorder
d. Fee requirement okay to meet the expense incident to administration of Act
4. SAIA v. NY (1948) p.234 – regulating the use of loudspeakers
a. Noise can be regulated by regulating decibels, the hours and place of public discussion
can be controlled, but to allow the police to bar the use of loud-speakers because their use
can be abused is like barring radio receivers because they too make noise
b. In this case a permit is denied because some persons were said to have found the noise
annoying. In the next one, a permit may be denied because some people find the ideas
annoying. Annoyance at ideas can be cloaked in annoyance at sound.
c. Dissent – surely there is not a constitutional right to force unwilling people to listen
Flat Bans – Intermediate Scrutiny + Adequate alternative channels of communication
1. If your regulation goes so far as to shut down a certain type of speech then it is prohibited
a. If your prohibition goes so far as to stopping a certain type of speech
2. Schneider (1939) p.236 – NJ ordinance forbidding the distribution of leaflets (prevent littering)
a. May have ordinance prohibiting throwing leaflets in the street, but may not prohibit
leaflets from being given to willing recipients
b. Streets are the natural and proper places for the dissemination of information and public
opinion – presumptive right to use these places for expression
3. Martin v. Struthers (1943) p.237 – ordinance prohibiting the distribution of handbills to
residences by ringing doorbells or otherwise summoning residents to the door (tracting) invalid.
a. Might be permissible to prohibit ringing doorbell of someone who has appropriately
indicated that he is unwilling to be disturbed
b. Missionaries and grassroots political campaigns might be affected by this ordinance
4. City of Ladue v. Gilleo (1994) p.240 – ordinance that banned the posting of most signs in order to
minimize visual clutter, w/ ten exceptions
a. Almost completely foreclosed a time honored tradition of communication that is both
unique and important
Sufficient Interest
1. Heffron v. Krishna (1981) p.244 –Krishna’s want to march at a fair
a. Crowd control was a sufficient gov’t interest
b. Dissent – Gov’t interest must be a real interest
2. Clark v. CCNV (1984) p.253 – protestors want to camp out on Nat’l Mall, they are prohibited
from doing so.
a. Gov’t has substantial interest in keeping the grounds in good condition, camping would
be inimical to this purpose – Aesthetics may be a good reason
b. Validity of a regulation is not judged solely by reference to the demonstration at hand
c. Unless the gov’t is using aesthetics as a censorial exercise then it would not be allowed
d. Dissent – necessary activities, such as sleep, may be made vehicles for expression
Ancillary Rights – use the same kinds of analysis as the right to speak cases
1. Possible Ancillary Rights that we might want to recognize
a. Right not to speak – Yes
b. Right to speak anonymously – Yes
c. Right to equally access others’ private property for reply speech purposes – No
d. Right to limit speech on your own private property – Yes
e. Right to associate – Yes
f. Right not to associate – Yes
Compelled Speech: The Right Not to Speak
1. WV State Bd. Of Educ v. Barnette (1943) p.383 – JW object to School Pledge of Allegiance
a. The rights of free speech and free exercise of religion precludes the state from making the
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flag salute and pledge compulsory – cannot force people to speak
b. To sustain the compulsory flag salute we are required to say that a Bill of Rights which
guards the individual’s right to speak his own mind, left it open to public authorities to
compel him to utter what is not in his mind
c. The Bill of Rights places some subjects beyond the power of the legislature
d. Those who begin coercive elimination of dissent soon [begin] exterminating dissenters
e. Freedom to differ is not limited to things that do not matter much, that would be a mere
shadow of freedom. The test of its substance is the right to differ as to things that touch
the heart of the existing order
f. No official, high or petty, can prescribe what shall be orthodox in politics, nationalism,
religion, or other matters of opinion or force citizens to confess by word or act their faith
therein
2. Wooley v. Maynard (1977) – JW objects to “Live free or Die” on license plate
a. 1st A freedom of thought includes both the right to speak freely and the right to refrain
from speaking at all
b. Both are complementary components of a broader concept of individual freedom of mind
Anonymous Speech
3. McIntyre v. Ohio Elections Commission (1995) p.385 – similar ordinance to Talley but
connected to political handbills
a. Held: an author’s decision to remain anonymous, like other decisions concerning
omissions or additions to the content of the publication, is an aspect of the freedom of
speech protected by the 1st A
b. When a law burdens core political speech, we apply “exacting scrutiny,” and we uphold
the restriction only if it is narrowly tailored to serve an overriding state interest
c. Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent
practice, but an honorable tradition of advocacy and of dissent. Anonymity is a shield
from the tyranny of the majority
4. This is a fairly strong protection for anonymous speech
a. Can compel an identification for unprotected speech reasons (libel)
Compelled Access for the Speech of Others
1. Compelled Rights of Reply – may the gov’t compel the press to furnish free coverage of replies
by those it has attacked?
a. Red Lion Broadcasting v. FCC (1969) p.387 – used scarcity of the broadcast spectrum to
valid law imposing forced access rights on unwilling media
b. Miami Herald v. Tornillo (1974) p.387 – FL “right of reply” law granted political
candidates a right to equal space to reply to criticism and attacks on their record by a
newspaper
i. Opposite of Red Lion – gov’t compulsion to publish that which newspaper
editors believe should not be published is unconstitutional
ii. Press responsibility is not mandated by the Const. and cannot be legislated
iii. Faced w/ the penalties that would accrue to any newspaper that published news
or commentary arguably w/in the reach of the right-of-access statute, editors
might well conclude that the safe course is to avoid controversy
2. Compelled access by speakers to private property
a. Pruneyard v. Robins (1980) p.387 – shopping center policy does not allow expressive
activity not directly related to its commercial purposes
i. State constitutional provisions which permit individuals to exercise free speech
and petition rights on the property of a privately owned shopping center to which
the public is invited do not violate the shopping center’s 1st A right not to be
forced by the State to use his property as a forum for the speech of others
ii. Since Pruneyard is open to the public, the views expressed passing out pamphlets
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or seeking signatures “will not likely be identified w/ those of the owner.
Moreover, no specific message is dictated by the State to be displayed
1. No danger of gov’t discrimination for or against a particular message
3. As a 1st A matter you don’t have the right to express yourself on private property against the will
of the property owner
a. PG&E v. PUC (1986) p.388 – Commission forced Utility to send out w/ its billing
statements information from an adverse group
i. Can’t be forced to disseminate views of those w/ whom you disagree – infringes
on your right to speak
ii. Compelled access like that ordered in this case both penalizes the expression of
particular points of view and forces speakers to alter their speech to conform w/
an agenda they did not set
iii. Distinguishes Pruneyard – access did not affect shopping center’s right to speak,
owner did not even object to what was being said (why is this a reason, that
shouldn’t matter), the access right was not content based
iv. In this case it discriminates on the basis of the viewpoints of the selected
speakers – access only granted to those hostile to PG&E’s views, which might
encourage PG&E to avoid controversy
v. PG&E has the right to be free from gov’t restrictions that abridge its own rights
in order to enhance the relative voice of its opponents
vi. Concur – distinguish Pruneyard – PG&E had not issued an invitation to the
general public to use its billing envelope for speech, and the state here deprived
PG&E of control over the space in its billing envelope that it would otherwise
use for its own speech (is this second argument valid? They weren’t using the
space. Is non-use a type of speech?)
vii. Dissent – to ascribe such artificial entities (corporations) an intellect or mind for
freedom of conscience purposes is to confuse metaphor w/ reality
b. Turner I (1994) p.390 – intermediate scrutiny
c. Turner II (1997) p.391 –
4. Right to associate/ Right not to associate
a. If your association is for 1st A purposes then strict scrutiny
i. The interest of protecting people from discrimination (race, gender)
ii. The question here is whether the forced association changes the organizations
core message
b. Roberts v. US Jaycees (1984) p.423 – court rules that a male society must include
females – constitutional concern, anti-discrimination
i. Used Strict Scrutiny – did not change their underlying message so forced
association is okay
ii. Because Jaycees already invites women to share the group’s views and
philosophy and to participate in much of its training and community activities,
any claim that admission of women as full voting members will impair a
symbolic message conveyed by the very fact that women are not permitted to
vote is attenuated at best
c. Hurley v. Irish GLB (1995) p.392 – St. Patrick’s day parade private organizers refuse
entry to gay group.
i. Forcing Parade organizers to include those they don’t want in the parade is a
form of forced speech
ii. Parades are a form of expression, not just motion
iii. A private speaker does not forfeit const. protection simply by combining
multifarious voices, or by failing to edit their themes to isolate an exact message
as the exclusive subject matter of the speech
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iv. A speaker has the autonomy to choose the content of his own message/choose
your associates
d. Boy Scouts v. Dale (2000) p.424 – boy scouts excluded an otherwise qualified assistant
scout master because he was openly gay
i. The forced inclusion of an unwanted person in a group infringes the group’s
freedom of expressive association if the presence of that person affects in a
significant way the group’s ability to advocate public or private viewpoints
ii. It is not the role of the courts to reject a group’s expressed values because they
disagree w/ those values or find them internally inconsistent
iii. Give deference to association’s assertions regarding nature of expression and to
an association’s view of what would impair its expression
iv. Even if something has gained greater social acceptance this is not an argument
for denying a group’s 1st A rights to exclude
Impermissible Methods of Restricting Speech
Overbreadth – sweeps in too much speech
1. Top 5 things to know about overbreadth
a. About precision – intensely related to second prong of strict scrutiny analysis (must be
narrowly tailored) must limit to what gov’t may actually do
b. Typically produce facial invalidation – Results in invalidation of law on its face rather
than as applied to a particular speaker
i. Gives the appearance of judicial modesty – rather than rewriting a law, it
purports to leave alternatives open to the legislature
1. US v. Robel (1967) p.346 – the constitution requires that the conflict
between congressional power and individual rights be accommodated by
legislation drawn more narrowly to avoid the conflict
c. Challengers are in effect permitted to raise the rights of 3rd parties – doesn’t matter if
you violated something the gov’t could prohibit, but if the law is patently overbroad may
still bring the overbreadth challenge and get away w/ it (even more so than vagueness)
i. Courts use overbreadth out of concern w/ the deterrent or chilling effect of the
overbroad statute on 3rd parties not courageous enough to bring suit
ii. Brockett v. Spokane Arcades (1985) p.352 – An individual whose own speech
may validly be prohibited is permitted to challenge a statute on its face because it
also threatens others not before the court
d. Is only constitutionally overbroad if law has substantial overbreadth
i. If not substantial then court will repeal as applies to individuals
ii. Broadrick v. OK (1973) p.347– law restricts political activities by classified civil
servants. Particularly where conduct and not merely speech is involved the
overbreadth of a statute must not only be real, but substantial as well, judged
in relation to the statute’s plainly legitimate sweep.
e. An overbroad law can be reworked to become constitutional
i. Legislature can’t retroactively fix overbreadth – court can (they read it in a way
that fits the situation
2. Respect for the values of federalism – federal courts lack authority to change state law, but can
invalidate it
3. NY v. Ferber (1982) p.350 – we seriously doubt that these arguably impermissible application of
the statute amount to more than a tiny fraction of the materials w/in the statute’s reach. Under
these circumstances, the law is not substantially overbroad and whatever overbreadth exists
should be cured through case by case analysis of the fact situations to which its sanctions may not
be applied
Vagueness – unclear about what speech it sweeps in
1. A law will be void on its face for vagueness if person of common intelligence must necessarily
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guess at its meaning and differ as to its application
2. Top 5 things to know about vagueness
a. About clarity – if the words in the statute are not clear enough that the average person can
see what he can and cannot do it is vague
b. Fair notice – close cousin to due process – people must have fair warning, and don’t want
to have a chilling effect
a. Rise to concerns of prosecutorial discretion – companion to fair notice, also need to have
crystal clear standards for executive, law enforcement, don’t want arbitrary or
discriminatory enforcement
b. Typically produce facial invalidation – Results in invalidation of law on its face rather
than as applied to a particular speaker
c. If you have overbreadth, look for vagueness – they are often (not always) companions
4. Coates v. Cincinnati (1971) p.359 illegal for “three or more persons to assemble on any of the
sidewalks [and] there conduct themselves in a manner annoying to persons passing by”
a. Vague because it subjects the exercise of the right of assembly to an unascertainable
standard, and unconstitutionally broad because it authorizes the punishment of
constitutionally protected conduct
i. No standard of conduct is specified at all – what is annoying?
ii. The right of assembly could not be restricted simply because its exercise may be
annoying to some people
1. Obvious invitation to discriminatory enforcement
iii. Also overbroad – convers some constitutionally protected behavior
Prior Restraint – premature even if publication might be subsequently punished
1. Any system of prior restraints of expression comes to this court bearing a heavy presumption
against its constitutional validity. Consider;
a. Scope (chilling effect), timing (if we repress speech in advance, it destroys the idea of the
marketplace of ideas), ease, secrecy (lacking in transparency, less opportunity for public
criticism) , incentives
Licensing – Licensing is the paradigmatic prior restraint against which the 1st A was directed
Injunctions/ “Gag Orders”
1. Near v. MN (1931) p.369 – newspaper published allegations against police
a. Chief purpose of 1st A is to prevent previous restraints upon publication (the press)
b. May have prior restraints to protect security, wartime military operations
i. Obscenity, acceptable to screen materials of this genre
ii. Protect against incitements to violence and overthrow of orderly gov’t
2. NYT v. US (1971) p.372 – NYT wanted to publish confidential Pentagon Papers (6-3)
a. Press should never have prior restraint, the dicta in Near was just that – dicta
i. The press protected by the 1st A so that it could bare the secrets of the gov’t and
inform the people, only a free and unrestrained press can effectively expose
deception in gov’t
ii. Secrecy in gov’t is fundamentally anti-democratic, perpetuating bureaucratic
errors, open debate and discussion of public issues are vital to our Nat’l health
b. Here you may not enjoin, the threat to the nation here is not great enough, but that
doesn’t mean you can never enjoin for nat’l security reasons
i. 1st A tolerates no prior judicial restraints of the press predicated upon surmise or
conjecture that untoward consequences may result
c. Dissent –Separation of powers matter, executive branch should make this determination
3. US v. Progressive Inc. (1979) p.377 – Important to restrain publishing nuke bomb instructions
4. Nebraska Press Ass’n v. Stuart (1976) p.379 – gag order in anticipation of a trial of mass murder
a. Cannot issue a gag order on the press prior to a criminal trial to ensure an untainted jury
b. Prior restraints are the most serious and least tolerable infringement on 1st A rights
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c. If it can be said that a threat of criminal or civil sanctions after publication “chills”
speech, prior restraint “freezes” it at least for the time
d. The protection against prior restraints should have particular force as applied to reporting
of criminal proceedings
e. Alternative measures to curb the impact of media publicity might have been effective:
i. Change of venue; postponement of trial; careful question of jurors; jury
instructions; sequestration of jurors; and curbing statements by the contending
lawyers, the police, and witnesses
f. Three pronged test
i. Has to be a showing that there is intense publicity that could get in the way of
empaneling an impartial jury
ii. Must show in the record why no other means was possible
iii. Showing that gag order would solve the problem
5. Gag orders against press – highly suspect; gag orders against trial participants – routinely upheld
Freedom of the Press (FP)
1. Two ways to interpret
a. Press occupies a metaphorical 4th branch of gov’t
i. Free press guarantee is a structural provision. It extends protection to an
institution. The publishing business is the only business given explicit const.
protection.
ii. If FP guarantee meant no more than freedom of expression it would be redundant
b. Institutional press is just another speaker w/ not more or less 1st A protection than other
non-media speakers
i. 1st Nat’l Bank of Boston v. Bellotti (1978) p.477 – Burger concurrence
1. No historical support for “4th branch of gov’t”
2. The speech clause standing alone may be viewed as a protection of the
liberty to express ideas and beliefs, while the FP focuses on specifically
on the liberty to disseminate expression broadly and comprehends every
sort of publication which affords a vehicle of information and opinion
3. 1st A belongs to all who exercise its freedoms
2. Today the FP affords little special protection to the press, and is interpreted through the speech
clause, rather than through the special FP clause
3. Access to Criminal Trials
a. Richmond Newspapers v. VA (1980) p.482 – Rule – absent an overriding interest
articulated in findings, the trial of a criminal case must be open to the public
i. Historically and traditionally trials have been open to the public
ii. Media now serve as surrogates of the people watching trials personally
iii. Trial judge could impose reasonable limitations on access to a trial in the
interests of the fair administration of justice
iv. To work effectively, it is important that society’s criminal process ‘satisfy the
appearance of justice,’ and the appearance of justice can best be provided by
allowing people to observe it.
v. Penumbra approach – Fundamental rights, even though not expressly guaranteed,
have been recognized by the court as indispensable to the enjoyment of rights
explicitly defined
b. Globe News v. Superior Court (1982) p.484 – MA law construed to require the exclusion
of press during the testimony of a minor who was allegedly a victim of sex offense
i. Used strict scrutiny – compelling gov’t interest and narrowly tailored
ii. Protecting minors from trauma and embarrassment compelling but the law was
not narrowly tailored (overbroad)
iii. Press gets first dibs on seats if limited seating – press represents public
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iv. Court unlikely to accept blanket rules – in every instance when _____ the press
and public is to be excluded
v. O’Conner Concur – I interpret [today’s decision] to carry any implications
outside the context of criminal trials
vi. Dissent – clearly a long history of exclusion of the public from trials involving
sexual assaults, particularly those against minors
1. Would use intermediate scrutiny – whether the interests of the state
override the very limited incidental effects of the law on 1st a rights
c. Press-Enterprise I (1984) p.486 – may not exclude press from voir dire proceedings
i. The presumption of openness may be overcome only by an overriding interest
based on findings that closure is essential to preserve higher values and is
narrowly tailored to serve that interest
d. Press-Enterprise II (1986) p.486 – a newspaper had a right of access to the transcripts of
a preliminary hearing in a criminal case, despite the objections of the trial judge, the P
and the D, all of whom believed that pretrial publicity would jeopardize the D’s right to a
fair trial
i. Access could not be denied in the absence of specific findings that there was a
substantial probability of injury to the D’s right to a fair trial and that there were
no reasonable alternatives to closure adequate to protect D’s rights
e. Right of access to criminal trials, voir dire, transcripts of prelim hearings
f. Two prong analysis
i. History
ii. Function
4. Gov’t demands for info from the press
a. Branzburg v. Hayes (1972) p.489 – 3 new reporters were required to appear before
criminal federal grand jury to testify, they refused (basically 4-1-4)
i. Requiring newsmen to appear and testify before grand juries does not abridge the
FP in 1st A – All other citizens must appear to testify if so called upon –
therefore newsmen must as well
ii. The evidence does not show that there would be a significant diminishment in the
flow of the news
iii. Historically the press has operated w/out constitutional protection for press
informants, and the press has flourished
iv. Don’t want to define what is and is not the press
v. Dissent – a corollary of the right to publish must be the right to gather news. This
right implies a right to a confidential relationship between reporter and his source
1. Most circuits adopt this rule except 6th and 7th circuit (Posner)
a. When a reporter is asked to appear before a grand jury and reveal
confidences, the gov’t must:
i. Show that there is probable cause to believe that the
newsman has info which is clearly relevant to the
specific probable violation of law
ii. Demonstrate that the info sought can’t be obtained by
other means less destructive of 1st A rights
iii. Demonstrate compelling, overriding interest in the info
2. Almost every state in the union has adopted a press shield law – reporters
don’t have to give up sources (except WY)
5. Enforcement of general laws against the press does NOT violate the 1st A
a. Cohen v. Cowles Media (1991) p.503 – Press does NOT have the constitutional right to
reveal sources that they promised not to reveal and not have the consequences flow
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i. Rule: Laws of general applicability must be followed by the press (e.g. breaking
and entering, copyright, promissory estoppel, etc.)
1. “generally applicable laws do not offend the press b/c they have
incidental effects on the press’s ability to gather and report the news”
ii. This contradicts the press’s argument in Brandzburg where they argued that free
flow of information mandates they keep their promises and not reveal sources
iii. The press is essentially arguing that they should have the authority to selfregulate—but that can’t cut against other laws applicable to everyone
6. Laws Singling out the Press
a. Minneapolis Star & Tribune co. v. MN Comm’r of Revenue (1983) p.497 – a
differential tax system unconstitutional, even though it benefited the press
i. Rule: Laws/taxes of general applicability will be treated as any other regulation
on conduct, but special tax systems/laws will need to survive SS
ii. This is NOT like Grosjean b/c in Grosjean the evidence indicated that the
legislature was trying to shut down the newspapers (but not seen here)
iii. The power to tax differentially as opposed to a general tax can potentially be
used by the government to censor papers
iv. Politics don’t allow the gov’t to cripple everyone by taxing everyone, but when a
state singles out a press the typical political restraint is weakened
v. Doesn’t matter if this tax seems to benefit the press because:
1. Singling out the Press to treat Press differently can cause future harm –
even though its favorable now it could be changed in the future to harm
the press
a. The threat of sanctions may deter the exercise of 1st A rights
almost as potently as the actual application of the sanction
2. Courts are bad at evaluating tax cases—they can’t make policy decisions
to know whether it will end up being good or bad
vi. Differential treatment, unless justified by some special characteristic of the press,
suggests the goal of the regulation is not unrelated to suppression of expression
7. Content-based differentiation is invalid UNLESS it passes SS
a. Arkansas Writers (1987) p.501 – used Minneapolis Star to strike down an Arkansas tax
scheme that exempted newspapers and religious, professional, trade, and sports journals
i. Reasoning: Content-based taxes on the press, or particular parts of the press, risk
the chilling of reporting
1. Discriminated w/in the class of publications based on content – NOT
constitutional
ii. Dissent: This is merely a subsidy and the gov’t subsidizes speech all the time
8. Generally applicable taxes CAN exempt press or components of the press
a. Leathers v. Medlock (1991) p.501 – upheld a state law the exempted newspapers and
magazines from a tax, but not cable TV
i. Rule: Tax cannot…
1. Suppress views or viewpoints
2. Target a small group of speakers
3. Discriminate on the content of the taxpayer speech
ii. “It would be an error to conclude that SS is required for any speech regulation
that applies to one medium but not another”
iii. Reasoning:
1. This is okay b/c there are a lot of speakers (weren’t going to limit the
range of views in the market place) and not content based
a. Tax did NOT discriminate based on ideas
2. This is also an exemption—not a targeted tax
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b. Takeaways
i. If a plumber brought these same cases, it likely would NOT have come out the
same way—the press clause DOES have heft b/c the ct analyzes it in a particular
way to afford them special rights under the freedom of the press
ii. Shield is more effective than the sword
Libel
1. Slander – oral defamation
2. Libel – publication and broadcast defamation
a. Was previously unprotected speech
3. Defamation – something that lowers someone’s reputation in the community
4. NYT v. Sullivan (1964) p.68 – Libel suit against NYT in AL – “Heed Their Rising Voices”
advertisement, about civil rights, the inaccuracies in the ad were minor – law says a publication is
libelous per se if the words tend to injure a person in his reputation or to bring him into public
contempt, once libel per se has been established only defense is that statements were true
a. Maybe the most important 1st A case of all time
b. Provable truth is too great an onus to put on people criticizing their gov’t
c. 1st A protection doesn’t turn upon the truth, popularity, or social utility of the ideas and
beliefs offered, erroneous statement is inevitable in free debate and must be protected
if the freedoms of expression are to have the breathing space they need to survive
i. Criticism of official conduct does not lose its 1st A protection merely because it is
effective criticism and hence diminishes their official reputations
d. If neither factual error nor defamatory content suffices to remove the 1st A shield from
criticism of official conduct, the combo of the two elements is no less adequate
e. Possibility that a good-faith critic of gov’t will be penalized for his criticism and strikes
at the very center of the 1st A protections
f. The 1st A precludes a public official from recovering damages for defamatory falsehood
relating to his official conduct unless he proves the statement was made w/ actual malice
g. In order to be libel P must prove “actual malice” – actual knowledge that it was false or
w/ reckless disregard of whether it was false or not
i. Evidence must be clear and convincing
ii. Limited libel to knowingly or recklessly false statements
h. Even though this is between two private parties it is being brought under AL law so it is
an unconstitutional law
i. “The fear of damage awards under [civil law] may be markedly more inhibiting
than the fear of prosecution under a criminal statute”
ii. Could chill speech because of fear of large civil awards (combined w/ no double
jeopardy in civil suits, could be very large payouts)
5. Three principles to consider
a. Identity of the P (public official, public figure or private figure)
i. Actual malice extended to public figures but not fully to private figures
b. Identity of the D (media or non-media)
c. Nature of the issue discussed (matter of public or private concern)
6. Elected officials are public officials, non-elected officials are not considered public officials
7. Curtis Publishing v. Butts and Associated Press v. Walker (1967) p.74
a. Public figures – like public officials often play an influential role in ordering society, and
surely as a class these public figures have as ready access to public officials to mass
media, both to influence policy and to counter criticism of their views and activities,
more access to the channels of communication
i. They can speak up in a public way to defend themselves/ they can put their ideas
on the marketplace of ideas
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b. Public official/figures – People who have thrust themselves or their views into the public
controversy to influence others
c. Holding a position that invites public scrutiny – must have voluntarily thrust or injected
themselves into the controversy
d. The exact same rules apply to public figures as to public officials
8. Gertz v. Robert Welch (1974) p.76 – private figures have more protection than public
officials/figures
a. So long as they do not impose liability w/out fault, the States may define for themselves
the appropriate standard of liability for a publisher or broadcaster of defamatory
falsehoods injurious to a private individual
i. Cannot go beyond actual damages
b. For private figures the standard can be negligence on part of the publisher
c. Private individuals are not only more vulnerable to injury than public officials/figures;
they are also more deserving of recovery
d. Public figures could use the remedy of self-help more effectively because of their
significant greater access to the media,
i. Public figures have voluntarily exposed themselves to increased risk of injury
from defamatory falsehoods concerning them
9. Depending on the content of the defamatory statement the same person could be a public or a
private figure – the statement must have relate to the reason the person is a public figure (a very
wide scope) (some people are always public figures– if they are known by one name i.e.
Madonna, Sting, Snookie they are an all-purpose public figure)
10. Public figures must show actual malice in all instances
11. Private figures who are involved in suit of public concern (if it is published in the media it is
already a matter of public concern) they must show at least negligence and actual damages, and
they cannot get punitive damages, unless they show actual malice
12. Private figures libeled in a purely private setting – not a matter of public concern, may have
presumed damages, and punitive damages w/out showing actual malice
13. This case has not been limited to Libel and has been extended to other Torts – Intentional
Infliction of Emotional Distress
a. Hustler Magazine v. Falwell (1988) p.79 – This is basically Sullivan and imported the
actual malice standard for other torts
The Religion Clauses: Free Exercise and Establishment
1. Both clauses have been incorporated to the states
2. What might the founders have intended the religion clause to accomplish
a. Separatism – both religion and gov’t function best if each remains independent of each
other – Jefferson’s famous “Wall of Separation”
i. Churches do something very different from gov’t and they should stay out of
each other’s way
b. Voluntarism – the advancement of a church would come only from the voluntary
support of its followers and not from the political support of the state
i. Marketplace of ideas notion applied to religion – good churches will rise, bad
ones will fall, gov’t shouldn’t artificially support a religion
ii. Fledgling church has no shot w/out voluntarism
iii. The gov’t might try to run church if it is not voluntary
c. Non-preferentialism – 1st A intended to prevent the establishment of a national church
or religion, or giving of any religious sect or denomination a preferred status
i. Make sure everybody is treated fair
ii. Gov’t can support some religions in some ways, as long as there is no preference
of one religion over another
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iii. Never commanded a majority view – but notions of this idea creeps into a not
small number of decisions today
d. Freedom of conscience and freedom of thought demand there be no established religion
3. How, if at all, can the purpose and effect of the two clauses be reconciled w/each other?
a. Neutrality – Make the gov’t blind to religion – Gov’t can’t make religion a basis for
acting or not for acting – religion should not come into the calculus
b. Individual freedom to worship/not worship – gov’t cannot engage in favoritism, or
prefer a religion and cannot stop others from worshiping the way they want
i. About letting people make their own choice
c. Permissible accommodation – compels some accommodation of religion, and forbids
other, w/ a broad zone where gov’t action on religion is neither forbidden nor required
i. Sherbert v. Verner (1963) p.523 – free exercise compelled the grant of
unemployment benefits to a person who lost her job because she observed
Saturday as her Sabbath
d. Some people see the establishment clause as an affirmative right – not just a bar on gov’t
– the right to not have the gov’t force religion on them
4. What should count as “religion”?
a. Courts must determine two things
i. Genuinely held belief
1. Is this genuinely this person’s belief
a. Cannot consider truth, reasonableness, or logic of the belief itself
b. What is the pattern of their life? Is this a sudden belief?
i. Problematic – beliefs are ethereal and changing
2. A citizens religious beliefs could be held by that person alone –
independent of an organized religion
ii. It does have to be something “Religion-y” – Must involve a religious belief
1. Central to someone’s spiritual well-being
2. Cannot be based on a public policy/diplomacy instead of religion
Free Exercise
1. 3 levels of difficulty
a. Easiest – laws prohibiting/compelling belief (Torasco, McDaniel (pp.527-28) – public
office holders must declare belief in God, clergy not qualified to serve as legislatures).
b. Harder – laws targeting religious behavior
i. Exercise involves more than mere belief – exerciser will argue that law
prohibits/compels behavior and is thus unconstitutional
c. Hardest – Incidental burdensome effects
Laws Targeting Religious Behavior – Harder
1. Church of the Lukumi Babalu Aye v. City of Hialeah (1993) p.528 – City enacts ordinances that
are facially neutral but in effect are aimed specifically at preventing the practice of Santeria
animal sacrifice
a. If the object of a law is to infringe upon or restrict practices because of their religious
motivation, the law is not neutral; and it is invalid unless it is justified by a compelling
interest and is narrowly tailored to advance that interest
b. Clear from set of exceptions that it was meant to shut down Santeria (allowed butchers,
and Kosher slaughtering, but not Santeria), also from public hearings that Santeria was
the target of the law
c. A law burdening religious practice that is not neutral or not of general application must
undergo the most rigorous scrutiny (strict scrutiny)
d. Minimum requirement of neutrality is that a law not discriminate on its face
i. Facial neutrality is not determinative – the 1st A protects against gov’t hostility
which is masked as well as overt
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1. In this context (religion) we will look to the intent of the gov’t
e. Scalia Concur – the question to ask is what is the actual effect of the law (not the intent of
the lawmakers). If the legislature intended a law to discriminate against a religion but the
law in effect fails to do so, it does not prohibit free exercise of religion and does not run
afoul of the 1st A on that ground.
2. Locke v. Davey (2004) p.533 – WA law scholarship program that awards based on academics but
does not allow the scholarship to be used for theological studies
a. Laws that do specify religion does not automatically violate 1st A
i. The State’s disfavor of religion imposes neither criminal nor civil sanctions on
any type of religious service or rite, the state has merely chosen not to fund a
distinct category of instruction
ii. Lukumi does not apply when there is no criminal or civil sanction, and the State
merely chooses not to fund something
b. Some actions permitted by establishment clause are not required by free exercise clause
i. State could allow scholars to pursue a degree in theology but are not required to
c. There is no evidence of animus towards religion (students can take some religion classes,
and can even go to pervasively religious schools)
d. Scalia Dissent – when the State withholds that benefit from some individuals solely on
the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a
special tax
Neutral laws adversely affecting religion – Incidental burdensome effects (Hardest)
1. Reynolds v. US (1878) p.535 – Upholds anti-bigamy law
a. Congress was deprived of all legislative power over mere opinion, but was left free to
reach actions which were in violation of social duties or subversive of good order
b. Laws cannot interfere w/ mere religious belief and opinions, they may with practices if
the practice is related to wider societal evils
c. To permit exemptions from any law for religious belief would be to make the professed
doctrines of religious belief superior to the law of the land, and in effect to permit every
citizen to become a law unto himself
2. Braunfeld v. Brown (1961) p.536 – if the state regulates conduct by enacting a general law w/in
its power, the purpose and effect of which is to advance the State’s secular goals, the statute is
valid despite its indirect burden on religious observance unless the State may accomplish its
purpose by means which do not impose such a burden
3. Sherbert v. Verner (1963) p.537 – supra p.24
a. Criminal sanctions are only the starting point to see if a law is neutral
b. D’s ineligibility for benefits solely derives from the practice of her religion and the
pressure upon her to forgo that practice is unmistakable
i. She must choose between following her religion and forfeiting benefits, or
abandoning her beliefs in order to accept benefits
ii. This is the same as if the state imposed a fine on her for her beliefs
c. State must demonstrate that no alternative form of regulation would combat the problem
w/out infringing on 1st A rights (strict scrutiny)
d. Does this law or regulatory scheme in fact impose a burden on religious behavior?
i. If that is what happens we apply strict scrutiny
e. Dissent – the State must single out for financial assistance those whose behavior is
religiously motivated, even though it denies such assistance to others whose identical
behavior is not religiously motivated
4. Following Sherbert more and more cases came before the court and could not survive strict
scrutiny
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5. Hobbie v. Unemployment Appeals Comm’n (1987) p.540 – followed Sherbert in upholding the
unemployment compensation claim of an employee whose religious beliefs had changed during
the course of her employment
6. Frazee (1989) p.540 – Man not part of a sect or church but claimed he was a Christian and
therefore could not work on Sunday. Lack of membership in a particular sect irrelevant, since
there was no question that his belief was both sincere and religious in nature
7. WI v. Yoder (1972) p.540 – Amish convicted and fined $5 for not sending his daughter to high
school – Strict Scrutiny
8. Three ways the court got around Sherbert
a. Rules of Sherbert apply to Sherbert style facts, but this case is not similar
b. Finding Strict Scrutiny met – finding the overriding gov’t interest met, and things like
uniformity qualified
c. This isn’t a significant enough of a burden on a religious practice to trigger the analysis
9. By the time the Court got to Smith (below), strict scrutiny was the rule, but not regularly
followed
10. Employment Division v. Smith (1990) p.547 – Respondents were fired from their jobs w/ a
private drug rehabilitation organization because they used peyote at a Native American Church,
of which they are members. When Respondents applied to Employment division for
unemployment compensation, they were determined to be ineligible for benefits because they had
been discharged for work-related misconduct
a. The free exercise of religion means, first and foremost, the right to believe and profess
whatever religious doctrine one desires – cannot target religious beliefs
b. Rule: Generally applicable laws get rational basis, but Hybrid cases may still receive SS
i. Hybrid Rights – Free exercise + other constitutional protection = may equal
protection from neutral law of general applicability (Freedom of speech, press,
right of parents, direct education of your children, see p.548)
ii. To say that a nondiscriminatory religious-practice exemption is permitted, or
even desirable, is not to say that it is constitutionally required, and that the
appropriate occasions for its creation can be discerned by courts - Leg. may carve
out exception for religion but it’s not constitutionally required
1. But this doesn’t protect the religious minority
c. Exceptions create a private right to ignore generally applicable laws
i. This permits constitutional anomaly and leads to anarchy and chaos
ii. Not appropriate for judges to determine “centrality” of religious beliefs before
applying a compelling interest test – doesn’t like judges engaging in balancing
d. If prohibiting the exercise of religion is not the object of the tax but merely the incidental
effect of a generally applicable and otherwise valid provision, the 1st A has not been
offended
e. We have never held that an individual’s religious beliefs excuse him from compliance w/
and otherwise valid law prohibiting conduct that the State is free to regulate
i. Not necessarily the case – see all the cases between Sherbert and Smith, so
Scalia had to deal with these cases.
f. Even if we were inclined to breathe into Sherbert some life beyond the unemployment
compensation field, we would not apply it to require exemptions from a generally
applicable criminal law
i. Distinguished from Sherbert because this case involved a criminal statute
ii. Sherbert is thus limited to its very facts
g. O’Connor Concur – A generally applicable law that burdens Free Exercise nevertheless
burdens Free Exercise and it doesn’t matter whether or not it is generally applicable—
they still get hurt
i. Apply Strict Scrutiny
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ii. Leaving minority religious rights to majority is exactly what the 1st A prohibits
iii. We allow judges to have discretion in other areas—why not Free Exercise?
h. Dissent – Oregon has never sought to prosecute respondents, and does not claim that it
has made significant enforcement efforts against other religious users of peyote. The
State’s asserted interest thus amounts only to the symbolic preservation of an unenforced
prohibition
11. Congress, in response to Smith, passed RFRA three years later
a. RFRA requires Strict Scrutiny – Only applicable to federal laws
b. City of Boerne – Struck RFRA’s application to states
12. The hardest of cases becomes the easiest of cases – the gov’t may pass generally applicable laws
that have incidental burdensome effects on religion. We no longer apply strict scrutiny as long as
we don’t have a narrow Sherbert fact pattern
The Establishment Clause – Context Matters!
1. Three kinds of Establishment Clause Claims
a. Gov’t has impermissibly sponsored religious doctrines or symbols
b. Gov’t has impermissibly provided financial aid to religion
c. Gov’t has gone too far in deliberate efforts to accommodate religion (for example by
legislative exemptions from general laws)
2. Lemon v. Kurtzman (1971) p.561 – a statute must meet three criteria in order to withstand
Establishment Clause attack
a. The statute must have a secular legislative purpose
b. Its principal or primary effect must be one that neither advances nor inhibits religion
c. Must not foster an excessive gov’t entanglement w/ religion
3. McCollum v. Board of Education (1948) p.561 – struck down a school boards practice of
permitting students to attend sectarian classes held in public schools during school hours by
parochial school instructors.
4. Zorach v. Clauson (1952) p.561 – a religious release time program
a. Coercion is the guidepost
b. If coercion were used, if it were established that any one or more teachers were using
their office to persuade or force students to take religious instruction, that would be in
violation of the 1st A
c. State and religion need not be aliens to each other – hostile, suspicious, and unfriendly
d. The State is not required (and might even be unconstitutional) to prefer those who believe
in no religion over those who do believe.
e. When the state encourages religious instruction or cooperates w/ religious authorities by
adjusting the schedule of public events to sectarian needs, it follows the best of our
traditions
i. To hold that it may not would be to find in the Const. a requirement that the gov’t
show callous indifference to religious groups. That would be preferring those
who believe in no religion over those who do believe
Prayer in Public Schools
1. Engel v. Vitale (1962) p.564 – nondenominational prayer read daily in public schools, prayer that
was composed by school officials
a. The Establishment Clause is violated by the enactment of laws which establish an official
religion whether those laws operate directly to coerce non-observing individuals or not
b. When the power, prestige and financial support of gov’t is placed behind a particular
religious belief, the indirect coercive pressure upon religious minorities to conform to the
prevailing officially approved religion is plain
2. Abington School v. Schempp (1963) p.564 – reading of a bible verse each school morning and
recitation of the Lord’s prayer, children may be excused upon written request
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a. Students may not feel free to opt out, and children should not have to make that choice
(peer pressure may amount to coercion)
b. This decision may not bar the study of the Bible or of religion, when presented
objectively as part of a secular program of education
3. Wallace v. Jaffree (1985) p.565 – struck down law authorizing schools to set aside one minute at
the start of each day for “mediation or voluntary prayer.” Statute an amendment of an earlier law
which had authorized a one-minute period of silence in all public schools merely for meditation
a. The individual freedom of conscience protected by the 1st A embraces the right to select
any religious faith or none at all
b. Legislative intent to return prayer to public school is quite different from merely
protecting every student’s right to engage in voluntary prayer during an appropriate
moment of silence during the school day
4. Lee v. Weisman (1992) p.567 – Struck a law allowing the school to select a local leader to offer a
non-denominational prayer at graduation; school selected the prayer giver; school gave directions
on what kind of prayer; school decided to have the prayer in the first place
a. Holding: This violates the Establishment Clause because it is coercive to students. They
feel immense social pressure to attend
i. Pressure, though subtle and indirect, can be as real as any overt compulsion
b. Reasoning (Kennedy): Coercion Test (willing to adopt implied coercion)
i. The constitution “guarantees that gov’t may not coerce anyone to support or
participate in religion or its exercise”
ii. Prayer exercises in public schools carry a particular risk of indirect coercion,
what to most believers may seem nothing more than a reasonable request that the
nonbelievers respect their religious practices, in a school context may appear to
the nonbeliever or dissenter to be an attempt to employ the machinery of the
State to enforce a religious orthodoxy
iii. Inherent coercion: Peer pressure of coming to graduation is still coercion
1. Coerced b/c it is graduation and no one should be forced not to attend
2. Coerced b/c it is a school setting w/school kids
3. Prayer “bore the imprint of the state”
iv. Offense alone does not in every occasion show a violation
c. Concurrence – Endorsement Test – Gov’t cannot do this because it gives the idea of
insiders and outsiders—there is the element of civic excommunication
i. A gov’t cannot be premised on the belief that all persons are created equal when
it asserts that God prefers some
ii. Rejects Coercion Test – Mixing of gov’t and religion threatens free gov’t even if
no one is forced to participate
1. Gov’t conveys a message of exclusion to religious minorities when it
puts its imprimatur (stamp of approval) on a particular religion
d. Dissent: (Scalia) – Our country has references to God on current, legislative prayers,
founders allowed clergy in first congress, etc.
i. Non-Preferentialism – The pendulum has swung too far where irreligion is
favored to religion
ii. EC should deal w/actual coercion—not discomfort and peer pressure
iii. Religion Practice: Practicing religion is a public matter at times
iv. EC v. FEC: EC can’t prohibit this b/c FEC requires it to be present
v. Coercion and Establishment:
1. True coercion requires penalties—need something to actually force the
citizens to support or belong to a religion
a. This isn’t coercion—just people being respectful
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2. If these really are the rule, the school could just send out a disclaimer to
the parents/students saying not being coerced
2. Student led prayers in non-curricular activities are permitted IF they are not encouraged or
facilitated by the school
a. Good News Club – Ct. upheld after school prayers in the school when a Christian club
would meet together
i. Holding: When prayer is totally voluntary and there is no school
motivation/coercion, it is a free speech issue and the prayer may occur
ii. Reasoning:
1. No coercion b/c they need to sign a permission slip to get into the
meeting
2. Strong countervailing free speech interest (they opened up a forum and
now have to deal w/the consequences)
b. Santa Fe v. Doe – Struck a school regulation that allowed a prayer at a football game;
students elected the person to give prayer; students voted whether to have prayer
i. Holding: Violates the EC b/c there is still coercion
1. Cts. are willing to look behind the stated motivations and see if there is
intent to the contrary
2. The mere fact that the speech was student initiated did not make it
private rather than official speech
3. Majoritarian processes do help clear the establishment hurdle – may even
make it worse, minority is effectively silenced
ii. Reasoning:
1. Some students (football players, cheerleaders, etc…) are required to be
there—thus it is not completely voluntary
2. Considered a sham because it evolved out of the school prayer context—
not students free speech context
3. Harms minorities even more b/c they will never be elected to pray
Religion in Public School Curriculum
1. Stone v. Graham (1980) p.576 – posting of ten Commandments in classrooms violates 1st A
2. Elk Grove Unified School District v. Newdow (2004) p.576 – “Under God” in the pledge of
allegiance recited in public school okay (Court denied standing for father who did not have
custody of the child).
a. Rehnquist concur – history of nation proves that the phrase “Under God” is not religious
but a recognition of the traditional concept that our Nation was founded on a fundamental
belief in God. Reciting the Pledge, or listening to others recited it, is a patriotic exercise,
not a religious one; participants promise fidelity to our flag and our Nation, not to any
particular God, faith, or church
b. Look for phrases such as tolerable reference, fabric of our society, history and tradition –
to signal ceremonial deism
3. Epperson v. AR (1968) p.577 – Teaching evolution in school
a. The overriding fact is that Arkansas’ law selects from the body of knowledge a particular
segment which it proscribes for the sole reason that it is deemed to conflict with a
particular religious doctrine
4. Edwards v. Aguillard (1987) p.578 – LA statute requiring that when evolution is taught so must
creationism, and vice versa.
a. Applied the Lemon Test
i. Improper purpose – statutes facial purpose was academic freedom, BUT the leg
history revealed that the statute was intended to promote religion
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ii. Improper effect – does not serve to protect academic freedom, but has a
distinctly different purpose of discrediting evolution by counterbalancing its
teaching at every turn w/ the teaching of creationism
iii. Excessive entanglement—law entangled church and state because it used the
“symbolic and financial support of gov’t to achieve a religious purpose”
b. Powell Concur – a religious purpose alone is not enough to invalidate an act of a state
legislature, the religious purpose must predominate
c. Scalia Dissent – Impossible to determine the reason or purpose someone voted for the
act—some were religious, but others were motivated by completely secular purposes
i. Look at the text for purpose
ii. Get rid of Lemon test and ONLY apply the effects test
Public Displays of Religious Symbols
1. McGowan (1961) p.582 – Sunday closing laws upheld
2. Marsh (1983) p.583 – Opening Legislative sessions with prayer upheld
a. Long history of the practice
3. Lynch v. Donnelly (1984) p.584 – Every Christmas season city of Pawtucket, RI displays a
nativity scene, accompanied w/ other seasonal decorations (Santa, reindeer, Christmas tree,
carolers, a clown, elephant, teddy bear)
a. History is replete with official references to divine guidance
i. One cannot look at even this brief resume w/out finding that our history is
pervaded by expressions of religious beliefs
ii. Accommodation of all faiths and all forms of religious expression and hostility
towards none
b. Reindeer Rule – gov’t displays that include a nativity, menorah + other religious and
holiday displays – Whether, in reality, a law or official action establishes a religion or
religious faith, or tends to do so
i. Unwilling to be confined to any single test or criterion in religious area
ii. In this case there wasn’t anything purposeful going on here, and no real effect of
establishment – essentially a Lemon test
c. Nativity scene symbolizes the origin of a Nat’l Holiday, a legitimate secular purpose
d. O’Connor – Concur – rooted in ceremonial deism, endorsement test – these things are
gov’t acknowledgements not establishment of religion.
i. Whether the gov’t intends to convey a message of endorsement or disapproval of
a religion
ii. Endorsement sends a message to non-adherents that they are outsiders, not full
members of the political community, and an accompanying message to adherents
that they are insiders, favored members of the political community
iii. These acknowledgements serve the legitimate secular purposes of solemnizing
public occasions, expressing confidence in the future, and encouraging the
recognition of what is worthy of appreciation in society
4. Alleghany County v. ACLU (1989) p.590 – two cases; one a free standing nativity (placed by the
Roman Catholic Church); another a menorah surrounded by secular items, a sign saluting liberty
a. Plurality Holding: Free standing nativity violated EC, but menorah w/other items does
not violate the ER
b. Reasoning: (Split)
i. Two Justices (O’Conner, Blackmun) – Menorah is okay, but Nativity is NOT
okay w/EC
1. Endorsement test – Nativity violated EC because there were no other
views presented besides the religious view
ii. Four Justices (Kennedy, Rehnquist, Scalia, White) – nativity and menorah do
NOT violate the EC
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1. Use accommodation approach
2. Coercion test—does not violate the EC – Anything more than coercion
here shows an “unjustified hostility to religion”
iii. Three Justices (Brennan, Marshall, Stevens) – Both displays violate the EC
1. Should have strong presumption against gov’t purchasing and displaying
religious items
5. McCreary County(KY) v. ACLU (2005) p.595 – County tried displaying the 10 commandments
three different times; 1st - 10 commandments alone; 2nd - 10 commandments w/resolution of its
purpose; 3rd - 10 commandments w/magna carta, constitution, etc…
a. Display of 10 Commandments is unconstitutional when purpose is to endorse religion
i. Court struck the display (in all cases) unconstitutional
b. If the “objective reasonable observer” thinks there is a religious purpose, it will be held to
violate the EC
c. Reasoning – Reindeer rule ineffective b/c of improper purpose behind display
i. Purpose – Record revealed that county wanted display to convey significance of
Christianity in their law
ii. Subsequent efforts to remedy the display by adding secular symbols can’t correct
the improper purpose—people have memories
iii. No reasonable observer could believe (“swallow the claim”) that the subsequent
efforts to secularize the monument removed the original religious intent
d. Dissent: (Scalia)
i. Under the Courts approach, even if a gov’t could show that its actual purpose
was not to advance religion, it would presumably violate the const. as long as the
Court’s objective reasonable observer thought otherwise.
ii. Originalism
1. Founders did not mean to completely keep religion out of the public
context (Ex: Pres Bush after 9/11, presidential vow, etc…)
2. Our system is not solely secular and we are better b/c of it
3. Bush’s “God Bless America” was a prayer—SCOTUS’s “God save the
court” is a prayer
6. Van Orden v. Perry (2005) p.600 – Allowed a statue of the 10 commandments in between a
Texas SC and capitol building; there were ~ 20 other statues spread throughout the area
a. Display is constitutional when there is NO purpose to endorse religion
b. There are two faces to the EC:
i. One looks to past EC and our nation’s heritage and
ii. One looks to the future and demands separation of church/state
c. Our history and heritage indicate that this does NOT violate the EC
d. Lemon test is NOT “useful”, but is not thrown away
e. Breyer’s Concur – swing vote – the one that matters)
i. No test will really work, so judges should use their “legal judgment”
ii. Factors in determining “legal judgment” (History/Context/Purpose)
1. Intent/purpose of display
2. Time display has been in place before complaints
a. Here it has been there for 40 years – no reasonable observer
complained in the 40 years
3. Funding—who bought it/was it donated?
4. Physical location of display
f. Dissent:
i. No reasonable observer could think that the statue had lost its religious purpose
ii. Not bound by the founding father’s thoughts; rather, the laws they left behind
7. Summary
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a. Whatever Breyer thinks is okay will stand b/c he has been the swing vote
b. You’re only safe if no one gripes about it for about 40 years, or the gov’t puts something
up w/ no controversy
c. However, a lot of justices have left so the area may dramatically change
d. Passage of time is tricky b/c it cuts two ways:
i. Some people think it means that the gov’t owes us more (must pay back 40 yrs of
injustice)
ii. Some people think that it indicates the purpose is okay and not offensive
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