Constitutional Law II Outline
Federalist 78: part of the ratification debate-a response to anti-federalists who say
 if SC can strike down acts of Congress then it elevated over the people power to interpret=power to rewrite
People
over
Constitution
Article III
Article I
Courts
Congress
Judgment
Will
Case
Statute
Calder v. Bull:
 Chase-purpose of Constitution was to protect natural law and natural rights, statutes that violate either
should be deemed unconstitutional, policy advocate
o Activism-non deferential to legislature
o Living Cons.-flexibility, ability to solve problems in modern society
 Iredell-natural law is not a piCe in the sky, if we didn't expressly provide it in the Cons. then we left it to
Congress in Article I, sharp SOP
o Restraint-deferential to legislature (policy)
o Historical Cons.-constraint, stability, status quo, original intent of framers
Policies Behind Freedom of Speech

Democratic Form of Gov't
o people must have free political speech for elections
o problem is you are only protecting political speech
 Marketplace of Ideas
o ideas should compete and the truth will win out
o no matter how true something may be if it is not discussed may not be ever held as true, part of the
progressive development of understanding
o maybe truth won't win out? untrue or irrational ideas may be persuasive and discussed, becoming
accepted or instituting severe short term damage
 Individual Autonomy and Self-Expression
o necessary element of our humanity
o problem is this is such a broad concept that it could be applied to any action/activity
 More Minor Theories
o checking function: checks on corrupt, inept governments
o safety valve: idea that it cools tempers and hostilities
o civil peace: articles of peace, no concerns about who contains speech or power in the gov.
o tolerant society: shapes intellectual character of society and promotes tolerance of that society
o self fulfillment: nurtures the human spirit and fulfills individuals lives, critics like Bork claim that
other things gratify as well, do they not qualify?
First Amendment: "Congress shall make no law abridging free speech"
Robust protection of free speech did not exist at the founding. For example Sedition Act Controversy of 1798
(punished speech w/ bad tendency of causing gov ill repute). Judges upheld-no prior restraint. Overturned in 1800.
 Federalists view that as no prior restraint, can't require consent for prior publication but you can once
published for bad tendencies, was based on English common law
 Jeffersonian view that Congress cannot make any law restricting speech period, states should have total
ability to limit free speech through censorship
o Sedition act uncons because NG couldn't do it, states only could pass
 Madison's view argued only political speech should be protected under theory of democratic self
government, NG can limit but not political speech nor should states limit political speech
o Sedition act uncons because it targeted political speech
Content Based Speech Restrictions
(1) Advocacy of Unlawful Action
Varying Tests used to determine if free speech could be restricted
1. Bad tendency: gives government power to prevent something bad from happening, supported by precedent
however to gives gov. power to step on people and restrict free speech
2. Express incitement: more speech protective, punishment limited to advocating express breaking of law
3. Clear and Present Danger: difficult to understand the standard, don't know how protected speech is people
will engage in self-censorship
a. CPD can appear to be the bad tendency test
b. CPD can be speech protective, imminence, danger, wait until emergency happens
c. CPD can mean speech is not so protected
Shaffer (Bad Tendency Test)
 advocated BT test (Does this speech have a bad tendency?), constructive intent, inferred from bad tendency
 Harsh test, anything critical could meet this test, no factors need be met in demanding manner, deferential
Masses Publishing Company (Masses "express incitement" Test)
 difficult standard to meet, focused on content of speech instead of intent or consequences, whether the
speaker employed express words of incitement
 created out of concern with BT test, innuendo or statements with many interpretations aren't likely to be
restricted now, opens up breathing space in democracy for citizens to speak; clever inciter problem
Schenck (CPD/BT Hybrid Test)
 doc circulated violating Espionage Act of 1917 meant to dissuade men from enlistment
 CPD test: if words used in certain circumstances and are of such a nature as to create a CPD that they will
bring about evil Congress has a right to prevent then not protected; CPD that war efforts will be hurt
Frohwek
 "a little breath would kindle a flame", seems to be BT test even though post-Schenck
 did not violate 1st, no immunity for all language, gov. within means to make criminal certain speech
Debs
 BT test "natural tendency and reasonably probable effect to obstruct recruiting service and he had to have
the intent in mind", no mention of CPD, tougher test than BD test though
Abrams (BT but CPD in Holmes dissent)
 EPA1917 conviction for advocating strike in munitions factories under the BT test it is upheld
 Holmes' dissent
o U.S. can constitutionally punish speech that produces or has intent to produce clear and imminent
danger to bring about evils U.S. may constitutionally seek to prevent (CPD test, specific intent)
o it reappears from its disappearance in Schenck and Debs, no CPD because no clarity, probability
nor danger present in what Abrams did (he is a nobody)
o signals Holmes move from narrow construct of 1st to civil libertarian view, marketplace of ideas
o Paradoxical problem though, weak speech from a nobody doesn't meet the test but influential and
powerful speech becomes extremely dangerous and can be oppressed
Gitlow (Reasonableness Test)
 leftist anarchist prosecuted, claim that he is spark to revolutionary fire, state cannot wait until actual
disturbances of peace or imminent and immediate danger exist
 incorporated the 1st amendment to the states, advocates the BT test in the form of a reasonableness test
 defers NY legislature "SC will uphold legislature's judgment if leg. reasonably believed speech had a BT"

Holmes dissent
o again argues the CPD test, it directed an uprising only at some time in the indefinite future
o if violent dictator's speech is accepted=success of the marketplace , paradox=won't free speech die?
Whitney (Reasonableness Test)
 violation of criminal syndication act in CA, reasonableness test; Brandeis concurrence
o must be CPD with specific intent, very protective of free speech
o based on idea of democracy and importance of engaged citizenry; counter speech is the remedy
Dennis
 conspiracy to engage in speech advocating overthrow of government
 3rd version of CPD test (fluid balancing test)
o "gravity of the evil, discounted by its improbability, justifies such invasion of free speech"
GRAVITY OF DANGER X PROBABILITY (discounts probability and imminence)
 belief Congress should be able to act before things get out of hand, less speech protective version of the
CPD test by Brandeis (Whitney) and Holmes (Abrams, Gitlow) (situation at the time causes diversion)
 Frankfurter concurrence wants to defer to Congress
 Jackson concurrence CPD test fine for insignificant speech, RT better for serious threats (communism)
 Black dissent zero danger of Communist revolution (their wares remain unsold), no CPD
Brandenburg (The Modern Law and the CPD Test)
"advocacy directed to incite or produce imminent lawless action and is likely to incite or produce such action"
Requirements: imminent harm, likelihood of producing illegal action, intent to cause imminent illegality
Factors include:
1. clarity
2. presence or imminence
3. degree of danger
4. intent
5. express
 KKK leader spoke at rally, convicted under Criminal Syndication, here no imminence, statute swept too far
 new test because of confusion with past CPD tests, wants to breach with past uses
 Douglass concurrence
o doesn't want CPD, suspicious of tests subject to political manipulation
Rationale in Favor of the CPD Test
 balances speech and societal interests, speech important so only restricted if there is an emergency and
emergency only exists if danger is clear and present; marks off broad area of protection
 reduces risk government will suppress a message because it disagrees with its substance
 Hess: "we'll take the street", only advocated illegal action at some indefinite future time, no imminence
 NAACP: "if we catch you in a store we will break your neck", not immediate, hyperbole, exaggerated,
conditional
(2)(a) Hostile Audience Response (Large Group)
Cantwell (CPD test; cited by Dennis)
 attacked Catholic church with phonograph
 no intent to create such a disturbance, also not a form of express words of provocation, not clear whether
court is applying laid out test but it appears to be CPD plus intent and express words of incitement
Terminello (CPD test; cited by Dennis)
 statute said if speech incites dispute or provokes crowd to a hostile reaction then could be convicted
 overturned because debate doesn't stop until CPD, statute should mimic this or otherwise it is intrusive
Finer (CPD test upholds conviction; problem-illegal audience action basis for government suppression)
 addressed street crowd and insulted political leaders; gave impression he was going to stir up crowd
 CPD present (fight may break out), police acted properly

Black's dissent
o police did not act in good faith, no backup? no action against one making threat?
o police should have engaged in a good faith effort to protect the speech
Edwards (Far Cry from Feiner I)
 doesn't mention CPD, no violence and plenty of police, less provocative language, protected
o Dissent Clark: in SC the civil rights acts likely to garner a violent response
Cox (Far Cry from Feiner II)
 2,000 protestors, w/ 200 counter protestors, protected, no CPD, large police, less provocative language
Gregory (Far Cry from Feiner III)
 statute overbroad (needs threat of imminent violence, reasonable efforts to protect protestors, request
demonstration stop), counter-protestors throwing rocks and eggs, no CPD
Confusion over actual HAR test
 likely test seems Brandenburg test, the language would change slightly (provocation instead of advocacy)
 provocation directed to incite/produce imminent lawless action + likely to produce imminent lawless action
 other approach is that 1st requires that police try to control audience threatening violence and stop the
speaker (1) only if crowd control impossible and (2) threat to breach of peace imminent
(2)(b) Fighting Words (One person or small crowd)
Chaplinsky
 statute ok-restricted FW very utterance tends to inflict injury or incite an immediate breach of the peace
 2 level theory proposed (not based on how harmful or valuable the speech is but what our traditions
have determined is valuable)
o high value speech-protected (garners SS)
o low value speech-unprotected includes lewd, obscene, profane, libelous, and insulting, or FW
 Fighting words unprotected because
o verbal assault more like a punch in the mouth
o likely to cause a breach of the peace (CPD similar)
o no essential part of any exposition of ideas
Minor Fighting Words Cases
 Street: remarks not so inherently inflammatory so as to come within the narrow class of FW
 Cohen: "F the draft" not a personal insult considered fighting words
 Goading: overbroad statute, take into account not average person but actual person who hears the words
Contours of FW Test
I.
direct
II.
personal (not 3d party)
III.
insult - abusive and likely to cause breach of the peace
IV.
in a face to face encounter (words purport to describe an individual)
Hate Speech (subcategory of FW)(struck down either overbreadth or CB restriction)
Beauharnais v. Illinois (Group Libel)
 man distributed flyer, called to organize against encroachment of blacks in Chicago
 libel is not protected speech but question over whether it extends to speech about groups
o if to group more likely to be political or matter of public concern
o if to a individual there is no such concern
 libelous utterances not constitutionally protected speech, no CPD test applied, "low" 1st amendment value
 idea that it could help minorities but at the same time be used against them; dead after NYT v. Sullivan
R.A.V. v. City of St. Paul
 FW limitation to those that do so based on race, color, creed etc., not overbroad because limited to FW, but
unconstitutional because it is a content-based regulation of free speech
 Content based distinctions within low value speech are only ok when
o Intensity distinction (advances reason why category is unprotected, most likely to cause harms)
o Virulence distinction (restriction meant to prevent secondary effects that are especially harmful)
 Content based distinctions that are not ok that target Subject Matter or Viewpoints.
Statute fails SS because it is not narrowly tailored in that it allows other fighting words, state can prohibit entire
category but not the subcategory. Maybe city could get around by singling out certain virulent (symbols, words)
 White concurs:
o if state can prohibit entire category why not subcategory? speech based on intensity/virulence
o narrow tailoring that ends up suppressing more speech seems problematic, Scalia says it ensures
gov is not punishing speech just because it disagrees with it
Wisconsin v. Mitchell
 SC upheld law increasing penalties for racially motivated crimes, assault not a protected form of conduct
 penalty enhancement is based on state's desire to redress perceived individual and societal harms (special
social harms that are especially culpable); not based on disagreement with offender's beliefs or views
 danger of community retaliation, unrest, emotional harms, critics still say you are suppressing thoughts
Virginia v. Black
 VA had law banning cross burning with intent to intimidate a person or group of persons
 state could ban burning done w/ intent to intimidate (True Threat); prima facie evidence of intent to
intimidate unconstitutional
o fails to differentiate between constitutionally proscribable intimidation (unprotected) from an act of
core political speech (protected); could function to chill protected political speech
o state can proscribe specifically this type of true threat because of a virulence distinction consistent
with R.A.V. (as a threat it is an especially serious one)
 Thomas concurrence
o cross burning threatening conduct no analysis needed, shouldn't strike it down because of the prima
facie clause, D will have a chance to put up a defense making the provision irrelevant anyways
(4) Pure Criminal Speech
Often directed to individuals or small groups, absence of any political context, fits traditional definition of crime
Rice v. Paladin (Tough Case; apply both)
 stipulated intent to help hitmen perform their job shifted court towards the crime producing speech analysis
 court looking for aiding and abetting, said Bradenburg to a crowd did not apply, when it went out it was
directed to a small group, no political context, but book addressed to a crowd? and not imminent?
(5) True Threats
Virginia v. Black (modern test)
1. speech meant to communicate
2. serious expression of the intent to commit or intimidate
3. act of unlawful violence
4. to a particular person or small group of individuals
 Watts: if given rifle in the army he will kill the president, political hyperbole, didn't meet above factors
 NAACP: under true threat it doesn't seem directed towards an individual or small group
 Planned Parenthood v. American Coalition of Life Activists: wanted posters, question over "we will kill
you" (true threat) vs. "someone will kill you" (Bradenburg); divided the 9th circuit panel on this question
 speech may not be prevented or enjoined unless it falls into one of the narrow categories of unprotected
speech recognized by the SC (true threat, incitement, fighting words)
Overbreadth and Vagueness
Gooding v. Wilson
 overbroad statutes may be attacked to allow people who wish to make constitutionally protected expression
to do so without fear of criminal sanctions due to an application by a susceptible state statute
 statutes must be carefully drawn to punish unprotected speech and not be susceptible of application to
protected expression, needs "narrow specificity"
2 types of challenges
 as applied: unconstitutional in the specific facts situation at play
 facial challenge: (invalidate all)
In this case we were asking whether statute was facially unconstitutional, we already know his words were not
protected.
CON UNPROT.
CON PROT.
XXX known as overbreadth, it is then facially void.
Why overbreadth?
 gives legislatures an incentive to craft narrow statutes
 concern with chilling effect, cases don't matriculate but instead people are withholding
o overstating the chilling effect and hypothesizing possible defendants?
o no sharp line between protected and unprotected speech
o concern over cases being cherry picked to show consistent unconstitutional applications
Broadrick
 Requires substantial OB to get statute knocked down, if little no facial, limited to as applied challenge
 court might look at any negative legislative intent and may look at the value of the speech being espoused
Brockett
 person making cons. protected speech cannot raise a facial challenge, we stick to the as applied challenge
and trim the statute back
 OB challenge can then only come when statute w/ OB prosecuting someone who's speech is unprotected
 state in a better situation if it is going after protected speech with the statute, creates a paradox
Statute passed
D's
narrowing of statute
D asserts
facially overbroad
conduct
overbreadth
 If narrowing occurs after conduct
o construction by the CT means it is provided constitutionally, fair warning if the court changes, no
retroactivity problem (although the interpretation must be foreseeable), broadens criminal liability
o amendment by the legislature creates a retroactivity problem, throws out, shrinks criminal liability
 want legislatures to pass narrow statutes (although courts should narrow it if possible)
 legislatures don't write an overbroad statute and then try to amend it, get it right the 1st time
Limitations on Overbreadth does not reach conduct statutes or reach commercial speech (no chill).



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Vagueness (Due Process Doctrine)
14th and 5th, special bite in 1st Amendment context, concern over chilling effect and selective enforcement
"People with common intelligence have to guess and have different predictions of application"
Goguen: treating flag contemptuously, guess to its meaning, chilling effect and selectively enforcement
Village of Hoffman Estate: do an OB analysis first, the "contemptuous" flag case isn't likely to withstand
an overbreadth analysis
o we thus very rarely see vagueness challenges, it would take a vague but not overbroad statute,
example might be "no non-constitutionally protected speech in the park"
Prior Restraint (Administrative and Judicial orders forbidding certain communications issued in advance)
Lowell v. Griffin
 law restricting handout of flyers/literature within city limits without consent from city manager
 invalid on face, restraint on literature that existed prior to adoption of bill of rights
 rule against standard-less licensing, flushes bad motives by adding safeguard against administrative action
based on content of expression
 both historical and analytical arguments against prior restraint versus subsequent punishment
o banned communication never reaches marketplace, waiting time could cause it to become obsolete
o makes it more likely gov. will rule adversely to free speech
 less procedural protections
 screen of informality and partial concealment
 attitudes, emotions, impulses act on administrators to censor, may be overzealous
o hangs prominently over areas of communication (chilling effect)
 CN speech (time, place and manner)
o if subsequent punishment is constitutional then you can move on, if no then no prior restraint
o needs clear standards, this way we can make sure any prior restraint is based on the stated reasons,
it also limits selective enforcement and reduces chilling effect
 CB speech (turns on content of the speech)
o if subsequent punishment unconstitutional then there can be no prior restraint of it
o Friedman safeguards (not necessarily sufficient)
 burden is on the censor to prove unprotected
 can't end with a censorship board but a court
Near v. Minnesota
MN statute supressed "malicious, scandalous, and defamatory newspaper, magazine, or other periodicals"
Press should be immune from PR in dealing with official misconduct, SP is appropriate w/ constitutional privilege
 Injunction-judge created (arguments for both)
o No
 narrow, directed to small group/individuals
 judge had commitment to free speech
 usually enforced after some speech has occurred
o Yes
 collateral bar, contempt of court for violating, prevents publication
 can't argue a court order is unconstitutional
 effective because it singles out individuals
 In certain situations court orders as PR may be necessary (troops in wartime, obscenity etc.)
 Pittsburg Press Co: repetitive conduct may mean order preventing speech not a PR
Madsen
Viewed as CN restriction, based on a TPM restriction on speech, court tightens up IS, but yet says it's not a PR,
tightened up because of a little bit more concern, if otherwise cons. as SP then fits with prior restraint
New York Times Co. v. United States; United States v. Washington Post Co.
U.S. sought to enjoin WP and NYT from publishing Pentagon Papers, no PR of press
9 justice and 10 opinions, injunction struck down, presumption against PR, functions as a heavy burden
o Black/Douglass/Brennan: value of FS, check on the gov, extreme public interest, not real immediate
concern that it will threaten lives or plans, not enough evidence that publishing would harm troops
o Stewart/Marshall/White: SOP, executives role to keep info secret
o Dissent/Burfer/Harlan/Blackmun: factual disagreements over war effort, too much in decoding this
issue, develop facts, 1st Amendment important but so is national security and Art III
o Bartnicki


could not prosecute the radio station with primary goal of the anti-wiretapping statute, did
not overcome the concern of restricting free speech, matter of public concern
for newspapers if they had nothing to do with the theft-may not be subject to prosecution
(6) Obscenity
Roth v. United States; Albert v. California
-obscenity not constitutionally protected speech, can be restricted w/out proof it will create a CPD
-works about sex protected when it does not treat sex in a manner appealing to a purient interest
 whether the average person applying contemporary community standards
 the dominant theme of the material taken as a whole
 appeals to a purient interest
Chaplinsky had previously said obscenity was an unprotected category; determined by comparing social values v.
social harm, the SC struggles with this balancing test:
 Hickson the SC had used a BT test, whether a person was susceptible to corruption would be subject to the
importance of the material, not a hard test to meet, classified obscenity broadly.
 Ulysses SC uses BT but overall nature of entire work to average person is it corrupting or does it have a BT
 Redrup no articulation of a test, some advocate Roth, others absolute protection, Harlan mentions
federalism and Stewart says "I know it when I see it."
Value
marketplace of ideas, individual autonomy, democratic self-government (politics, literature, art, chilling effect)
Harm
corruption, pollution to moral environment, harm to children, concept of women as sex objects, family structure
Miller (New Test)
1. whether the average person applying CCS would find work taken as a whole appeals to a purient interest
2. whether work depicts or describes in patently offensive way, sexual conduct specifically defined by the
applicable state law
3. whether the work taken as a whole lacks serious redeeming social value (literary, artistic, etc.)
CCS based on local standards, for a jury to decide, redeeming social value is measured on a national standard.
Douglass/Brennan dissent: force national distributors to adjust work to most restrictive, self-censorship
Paris Adult Theatre v. Slaton
LSIs in stemming comm. obscenity, quality of life, total comm. environment, "tone" of commerce, public safety
-no proof of antisocial behavior and obscene material to the legislature, reasonable to determine it might exist; no
fundamental right to watch these movies
-no consenting adults exception to Miller, even clearly marked-no children allowed (social harm apples to adults)
 Brennan's dissent: proposes social alternatives, no one will know ahead of time whether obscene or not,
chills speech, there will be stress on judiciary to what obscenity really is, he endorses an absolute protection
stance in contrast w/ possibility of test that creates more unprotected speech; consenting adults exception
Jenkins v. Georgia
SC says they can correct misapplied Miller test, here SC said under no CSS even local ones was it obscene
-if jury does something unusual it will be overruled, should only apply to pornography not sexually themed speech
 Pope: CSS cannot be applied to decide on artistic value, if it is not clear then RPP std.
 Hamling (mail); Sable (dial-a-porn): SC says no problem trying a federal statute and then applying local
CSS, may block all phone calls or mail to certain jurisdictions
 Ashcroft v. ACLU: statute not invalid on its face, if applied in unconstitutional manner then they will be
defeated as they arise, under the internet it is possible that using local standards would be cons.
Variable Obscenity
Ginsburg: idea that material that is obscene to some, a variable of the test except it is applied in the context of a
child, if by restricting access to children you hinder adults ability to access it under Butler strict scrutiny applies
Stanley: even if material is obscene and unprotected, the 1st amendment still protects the possession of it in the
home, have the right to possess it, paternalism not a good state interest
Redel: even with right to possession then someone has the right to provide it, SC doesn't buy this, no right to
deliver/produce, we are unclear on receiving, Stanley exception does not apply, would undercut all obscenity cases
Freeman and Theriault
 CA SC said principles of free speech do not allow state to use prostitution laws to prosecute those
producing pornography, examines principle purpose
 practical question arises over use of cameras in prostitution, you can engage in crime as long as you film it,
if film is protected then conduct itself becomes protected
Brown v. Entertainment Members Association (2011)
Ginsburg and variable obscenity with respect to kids, version of Miller
-shoestrings violence into the obscenity category that had been limited to sex, concern over nature of games
-SC says it should be based on Chaplinsky whether it is unprotected or not, social harm v. social value
-not the SC's view but a historical view, our history does not recognize any history of violent speech as
unprotected, you must put this under SS where it must be a CSI and NT
-CSI: protect children (not enough evidence), concern over parental control of children upbringing
 Breyer dissents: should pass SS, it is narrowly tailored to children
Leaves questions over whether video games could be considered conduct the more interactive they get.
(7) Child Pornography (Not part of obscenity)
New York v. Ferber
 CSI in safeguarding children
o encourages abuse and its trade must be cracked down; laws against ads/selling integral to stopping
o no real artistic or literary value to it
o although a CB restriction, its evils so outweigh the expressive content that no process of case by
case adjudication is regarded
 No analysis needed under Miller.
 Under Chaplinsky it is unprotected.
o Social harms: abuse of children, circulation of materials new injury, economic motive
o Social value: little if no social value whatsoever
Osborne
No mere private possession exception to child pornography like obscene material, there is not that concern,
paternalism is not the main goal here but protection of children
Ashcroft v. The Free Speech Coalition
Struck down CPPA which made it illegal to have or display images that appear to show minors but are produced
without real children, does not fit under Ferber, it prohibits speech that
 records no crime
 creates no victims by its production
 is not "intrinsically related" to the sexual abuse of children as the materials in Ferber
SC rejected argument it could be used to entice children, that it would whet the appetites of pedos and that it made
prosecution for child pornography difficult.
Thomas: if technology advances far enough state may have compelling interest in restricting some of it to protect
Dissent O'Connor: should be cons, would meet SS, concerned with problems of proof.
United States v. Williams
Crime to cause belief or your belief something contains depiction of minor engaging in sexually explicit conduct
-did not require existence of actual child pornography but rather criminalized offers to engage in illegal
transactions, excluded from 1st amendment protection, offer to engage is prohibited, not the foundational speech


solicitation is not protected
Dissent Souter: speech about speech outcome changes the speech, VP is protected, baking powder not
constitutionally protected, in actuality we are dealing with the possible effects of chilling speech
Stevens (2010)
Prohibited animal cruelty speech involve actual animal cruelty, struck down on overbreadth grounds EX:
bowhunting in some states illegal and others its legal
-Chaplinsky balancing historical, SC can't create new category in history, edits Ferber, requires historical category
-actual cruelty illegal in jurisdictions where speech located, SC says they will leave open whether pass again
-SC says there may be a new historical category called "speech integral to criminal conduct" (historical), Congress
could then pass a law reaching only this conduct, post-Ferber so CP now falls in this category
Lewd, Profane, and Indecent (profane, sexually oriented, but non-obscene)
Cohen v. California
 Presumed presence of unwilling listeners or viewers does not serve automatically to justify curtailing all
speech capable of giving offense
 State interest: protect children, unwilling adults Narrow tailoring: problem may be they can look away
 to restrict such speech a substantial privacy interest must be invaded in an intolerable manner, this speech
still implicated important 1st amendment concerns, forbidding certain words runs substantial risk of
suppressing ideas in the process EX: I oppose the draft, Down with the draft.
o Profanity likely still protected because
 use may be necessary to convey inexpressible emotions
 its suppression creates risk of suppressing ideas in the process
 no readily ascertainable principle for distinguishing between types of language
Erznoznik v. Jacksonville (non-obscene)
CB restrictions justified by limited privacy interest of persons on public streets, banned movies with certain scenes
-tried to argue driver distraction, under-inclusive suggests that it is not a LSI save for protecting adults outside the
home, protecting children not narrowly tailored
-we are getting something closer to a test, a level of scrutiny similar to SS
Dissent (Rhenquist and Burger): modest restriction on speech, critical of instruction telling adults to avert eyes
FCC v. Pacifica Foundation (radio)
 Stevens: requirement that indecent language be avoided will have its primary effect on the form rather than
content, few if any thoughts that can't be expressed by less offensive language, no SS
o low value speech: time channeling ok, children and to maintain civil order, this indecent language
extends into the home, accessibly by children
 Powell: result turns on the unique characteristics of broadcast media, combined with society's right to
protect its children from speech generally agreed to be inappropriate and interest of unwilling adults not
being assaulted by such offense with the speech in their homes, appropriate basis upon which to regulate it
 Dissent Brennan: protected speech, can't bring adults to level of children, burden on speech cites Butler
Sable Communications, Inc. v. FCC (phone)
Statute unconstitutional that prohibited interstate transmission of indecent commercial telephone messages
-material vulgar yet not obscene, distinguished from Pacifica, doesn't come in your home but it requires
affirmative action by the caller, no indication that indecent speech is of low value; garners SS, a CB restriction
 protecting children a CSI but not considered NT to prevent children from accessing EX-credit card required
Reno v. ACLU (internet)
Struck down law making it crime to allow minors to get communication indecent or patently offensive
-differed from Pacifica, was not carefully tailored and does not result in same concerns
-burden on adult speech unacceptable if less restrictive alternative would be at least as effective to achieve purpose
-not low value speech under Chaplinsky, applying SS just like Sable, protecting children a CSI but not NT
Ashcroft v. ACLU (internet)
Miller test with the Ginsburg variable obscenity test, its only lewd and profane with respect to adults, this then
garners SS because it's not low value
Fails SS other less restrictive alternatives, blocking and filtering software, need for parental cooperation does not
automatically disqualify proposed less restrictive alternative; restricted adults Butler
 Stevens: filtering faulty, not every family can afford, relies on parents' and it blocks things not pornography
 Breyer: combine the two to gain narrow tailoring, gain 100% effectiveness
 Kennedy: filter will restrict children at the level it needs to be restrained, should do least necessary for goal
U.S. v. Playboy Case (television)
-law requires full scrambling that's not possible, they have to time channel from 10 p.m. to 6 a.m.; fails SS
 Kennedy: this is not narrow tailoring, the narrowly tailored part is already in the statute where parents can
call to have the channel blocked, it is not the least restrictive way to protect kids, not narrowly tailored
Regulating Indecency by Zoning
Young v. American Mini-Theatres
Regulation doesn't restrain market for this commodity, state can use the content of these materials as the base for
placing them in a different classification from other motion pictures
-LSI is met, a TPM restriction
-it is facially content based which should garner SS, IS is the test, an important substantial government interest and
it is justified by the alternatives avenues of communication, Court calls it low value speech
City of Renton v. Playtime Theatres
-prohibited adult theatres from locating within 1,000 feet of and residential zone (churches, parks and schools)
Ordinance is aimed at secondary effects of theatres in surrounding communities and not content of such movies,
didn't even have a study but SC let them argue it, factual predicate minimum
Only 5% of city left for them to locate but Rhenquist says that's enough
 deemed CN in practice even though it regulates content
 CN Secondary Effects: urban blight, property values meets ISI and it is NT because there are AAC
(concern with burden) so government wins
 Brennan Dissent: should garner SS but even if IS it is so restrictive that it does not pass
City of Los Angeles v. Alameda Books
-no longer describes these regulations as CN, indeed CB but includes built in legitimate state interest which rebuts
usual presumption that CB restrictions are uncons.
-IS applies and it passes MSJ, doesn't add anything except majority doesn't hold that it is CN anymore
 Kennedy: CB but still only used IS because attacking secondary effects and not speech itself, a TPM
restriction on the effects, a special type of restriction on speech, IS should be tightened up though (to assure
it is really about the secondary effects)
 zoning has to be dispersing the speech, if it's meant to shut them down or eliminate them then not ok AAC
 Souter: talks about content correlated restrictions, tight IS, new name for law partially CB and partially CN
Commercial Speech
Virginia State Board of Pharmacy (SC in past said commercial speech unprotected)
"commercial speech not so removed from the expression of ideas that it lacks all protection"
Society has a strong interest in the free flow of commercial information
 SC concerned with paternalism for consumer, highly suspect characterization, not allowable under the 1st
 doesn't cover false, misleading advertising nor advertising for illegal products, broadcast media less
 Dissent Rhenquist: VA has interest in doctor's prescribing drugs and not letting drug companies interfere
with these decisions, commercial speech doctrine not under the 1st amendment, it is not intent of the statute
 Positives
o seller interest (profits)

o consumer interest (prices and bargains, crucially important for older and poorer people)
o societal interest (free enterprise and free market economy, flow of price info)
Concerns
o act could decrease quality and lead to price war, profit pharmacists make goes down by ad costs
Central Hudson Gas v. Public Service Commission of New York (mimics IS, unsteady test, up then down)
1. whether expression protected by 1st amendment
a. concerns lawful activity
b. not misleading
2. is asserted governmental interest substantial?
3. whether regulation directly advances governmental interest
4. no more excessive than necessary
Here ban on ads meant to promote and stimulate use of electricity, a more limited restriction could better promote
the government interest (promoting energy efficient products, ads encouraging being energy efficient)
Rubin v. Coors Brewing Co. (prevented listing of alcohol content on beer labels, lead to more alcohol abuse)
Substantial governmental interest but it was unclear they were even advancing the state's interest
-paternalism present: more extreme than necessary, could restrict the conduct (the content of the alcohol)
Bulger (fuzzy line still exists)
Law banned informational pamphlets, wasn't a commercial transaction but the SC deems it so based on 3 criteria
 ad
 specific product
 economic motive
Posadas
-no IS, seems to drop down to RBR, defers to Puerto Rico's stated reasons, no more extensive than necessary
Rhenquist: greater authority to regulate conduct means they have the lesser authority to regulate the speech, a view
the opposite of Virginia State Board of Pharmacy (fix problem by regulating conduct not touching speech)
44 Liquormart, Inc. v. Rhode Island
Applies test in Central Hudson and determines regulation banning advertisement of price will not significantly
advance state's substantial interest in temperance; could regulate conduct (tax it, public health info) to counter
-more paternalism which SC is extremely skeptical of, seems like a tighter test of IS because SC asks for proof, no
longer doing the reasonableness overlay from Posadas (for NT in Hudson)
 O'Connor: specifically shoots down the greater includes the lesser argument, never went back to change it
but this case reverses what Rhenquist said
Lorrilland Tobacco Co. v. Reilly
Regulations prohibited outdoor ads of tobacco products within 1,000 feet of school, no point of sale ads 5 feet
-fails prong 4 in advancing SSI in preventing underage tobacco use, excessive because it banned 90% of Boston,
kid who is taller can look up, a strict application of IS like 44 Liquormart, but different than Posadas
 Thomas concurrence: we should be applying SS, even if this case if Central Hudson IS applies.
Thomas v. Western States
Restriction on advertising drugs compounded by pharmacy
-while SGI did not meet Central Hudson test, the government failed to prove that the speech restraints were not
more extensive than necessary to serve its interests; could regulate the conduct instead of speech
O'Connor : paternalistic, justification relies upon consumers making bad decisions
Florida Bar v. Went for It
Lawyers can't contact injury victims within 30 days of an accident
 Substantial government interest is important and not paternalistic, based on protecting privacy
 No more extensive than necessary, only a 30 day period
Dissent Kennedy: no important state interest in protecting people from receiving a piece of mail soliciting business
Overbreadth and Commercial Speech
 does not apply
o no chilling effect because of profit motive, vagueness does not apply because it is a due process
doctrine, SC says CS is hardy and not likely to be curtailed
Zauderer
Forcing people to engage in commercial speech through compelled disclosure among attorney's fees
-law is upheld, compelled disclosures are permissible they are reasonably related to preventing deception, court
gives more deference to state legislatures in these situations
 Rationale
o not as serious as restricting speech, essentially accomplishes goal which is to inform consumer fully
 if they are deemed unduly burdensome they may be unconstitutional, might argue ads are paternalistic
Question is what is the interaction between compelled disclosure v. Central Hudson?
Content Neutral Speech Regulations
IS: (1)significant state interest (2)no more extensive than necessary (3)alternative avenues of communication
Schneider v. State
-struck down city ordinance making it illegal to hand out literature in the streets, an aim to stop littering
-SC strikes down because they are better other methods of preventing litter and this is too speech restrictive
Problem with NT-regulate actual littering rather than free speech; traditions present w/ history related to the streets
Martin v. City of Struthers
-SC struck down ordinance restricting the handing out of literature door to door
-state interest in privacy not great enough, possibility of other less restrictive regulations
Kovacs v. Cooper (protecting privacy is the overriding issue)
-SC upheld city ordinance prohibiting any person to use a sound truck emitting loud/raucous noise on public street
Dissent: there is a more narrowly tailored way to regulate the problem with decibel and time restrictions, concern it
will hamper those who have less avenues of effective communication
Metromedia, Inc. v. San Diego
-ban in San Diego on billboard advertisements overturned, no evidence supporting city's substantial interest in
promoting traffic safety, struck down, didn't pass the IS
City of Ladue v. Gilleo
-SC struck down law prohibiting homeowners from displaying signs on property
-says by eliminating common means of speaking it suppresses speech too much
More temperate measures could in large part satisfy state regulatory needs without harm to the 1st
Bartnicki v. Vopper
-newspaper unlawfully obtains truthful information about matter of public significance then government officials
may not constitutionally prevent publication of the information about a need of the highest order
-primary concerns give away when balanced against interest in publishing matters of public importance
Figuring Out Which is Which
1. Communicative Impact: law may be content neutral on its face but may turn in its application on
communicative impact (when law is framed on people's reactions it affects, offense, anger, corruption, etc.)
2. Secondary Effects: takes facially CB but we treat it as CN since not concerned with primary effects
3. Purpose and Motive: examining the subjective motives of legislature hazardous, it is difficult to tell what
the subject motive is, could likely lead to reenactment with better motives
4. Effect: infer purpose from effect
5. Speaker Status: CN and CB affected the speaker status then could be designated as CN EX: Madsden:
singled out abortion protestors because of their previous criminal conduct not their message
Messy Middle
Hill v. Colorado
People can't approach within 8 ft anyone within 100 feet of abortion clinic with leaflet/sign with intent to educate
-deemed CN although there is disagreement, doesn't specify a type of message, there has been criminal activity
outside these clinics and its purpose is not disagreement w/ message but based on past criminal activity
-others might argue it looks at effect and thus it is CB, could also argue facially CB because it allows certain types
Public Forum Speaking
Davis v. Massachusetts
No personal right in citizen to use public property in defiance of Cons. and laws of state, idea of greater includes
the lesser, right absolutely to exclude includes authority to determine what circumstances use made be availed of
-based on idea of government's property rights consistent with that of a private individual
Hague v. CIO
Privilege to use streets/parks for speech on national questions can be regulated in interest of all; not absolute, can
be regulated general comfort/convenience consistent with peace/order; must not be abridged/denied though
-government holds streets, parks and other similar means in public trust, in part for FS activities (traditions tell us)
 Traditional Public Forum (Streets and Parks)
o CB garners SS
o CN garners IS
 Non-Traditional Public Forum (more authority to regulate, not held in public trust for FS exercise)
o must be reasonable
o must be viewpoint neutral
Schneider v. State Part II
-established right to use streets a TPF, garners IS because it is CN
Clark
CN regulation for traditional public forum must meet IS
Dissent: once you alter the tents here then state interest fails as no longer significant, more minor ways to protect
Hill v. Colorado part II
Government owned property and it was public streets so the IS test applies, significant state interest apparent
Dissent: concern with speech being offensive makes it appear CB, not NT because could regulate conduct
Public Forums Other than Streets and Parks
Adderly v. Florida
Jail here is not a TPF; protestors arrested after protesting next to an area at the jail, state allowed to control use of
its own property for own lawful nondiscriminatory purpose (VN)
-compared to private owner of property, government property dedicated to another purpose, driveway blocked
Dissent: jail anomalous with protest just like a courthouse or government building; wasn't impossible to move
people in and out, argues an Incompatibility test instead of reasonableness;
Grayned has changed this. New crucial test is whether manner of expression is basically incompatible with the
nature of a place at a particular place at a particular time.
Kokinda
Sidewalk next to post office not TPF, restriction on solicitation was reasonable (caused congestion and traffic);
considered viewpoint neutral because it affects everyone
Kennedy: even if TPF it meets IS because of substantial state interest in securing effect operation of the post office
Brennan: attacks wooden distinctions, his compatibility test, no deferential test but ask if speech compatible
Greer v. Spock
SC designated military base a NPF, meets reasonableness test (concern over morale, giving view military accepts
certain message) is also VN.
 Dissent Brennan: no TPF and NPF distinction because it results in more NPF areas and deference to state in
this category leads to more rampant restriction of free speech
o might fight back by saying there are AAC, streets right next door and likely to be just as effective
and open, Brennan says there may be reason you want to be at jail or military base
International Society for Krishna Consciousness
-airport's ban on repetitive sale, solicitation or distribution of any merchandise including flyers, brochures
Rhenquist: airport terminals are not TPF, not time out of mind been upheld in the public trust for that activity, no
principal purpose of promoting free exchange of ideas and is thus not a public forum, struck down distribution ban
 Kennedy: terminals are public flora, majority's view of what will be designate a PF is too restrictive
o public spaces and thoroughfares which are suitable for discourse may be public forums despite their
pedigree and without concern for a precise classification of the property
Marsh v. Alabama
Private property that acts like a town with a TPF will be treated like a publicly owned TPF
Logan Valley/Hudgens
Privately owned company town doctrine from Marsh is applied to a town center, Hudgens struck this doctrine
down because not willing to take private property and treat it as public property.
Underinclusion in Speech Restriction
Police Department of Chicago v. Mosley (subject matter distinctions)
-restriction prevented picketing or demonstrating within 150 feet of a school but eased the restriction if the
demonstration was related to a labor dispute
-held impermissible because of distinction made between labor picketing and other types of picketing
Selective exclusions from a public forum may not be based on content alone, did not meet SGI
Widmar v. Vincent (subject matter distinction)
School campus designated a TPF, might be considered a limited forum now because access barred to non-students
but might still not pass because not considered VN because it barred religious groups from use of facilities
-a CB speech restriction, their CSI fails because equal access does not violate the anti-establishment clause
Lehman v. City of Shaker Heights
-transit system disallowed political advertisements
-deemed a LPF, distinction deemed reasonable and VN, a subject matter distinction and was thus viewed VN
Brennan: doesn't want wooden distinction, wants a compatibility test
Speaker based Restrictions but not deemed VP based ones
Perry Educators' Association
-school blocks unofficial union from using inter-office school system but allows official union to use it
-a speaker status mail restriction
-this is a NPF the SC decides even if it was a limited public forum the analysis would not have changed
-not based on the message but the status of the speaker
Brennan: argues this is not VN, a distinction between two rival unions should be deemed a viewpoint distinction
Lamb's Chapel
-school did not let religious groups use school, concern over violating establishment clause, SC says a designated
limited public forum. uses the reasonableness and VN test
-does not pass because policies in Lehman were a separate category and deemed subject matter distinctions
-it is deemed not VN; this divides the court in Rosenburger
Rosenburger
Student activities fee used to help student groups publish however there was a religious subject matter distinction
-justices split 5-4, Kennedy says not VN because it restricted a religious perspective and for him it is a FS case
with an establishment clause component in the background, for Souter there is an establishment clause problem
Good News Club v. Milford Central School
-religious group wanted to use building during after-school hours, replay of Lamb's Chapel
Question over whether distinction could be made between (1) religion (2) worship (3) converts, SC shoots this idea
down because secular groups can proselytize and there is a secular analogy, singling out religious perspective
Christian Legal Society v. Martinez
Hastings excluded CLS from forum recognizing student groups, school had anti-discrimination policy
-SC said 5-4 it was reasonable and VN, prohibition on conduct and not speech restrictive
Alito: this has a DI on religious groups and should not count as VN
Ginsburg: reasonable because it advances the school's mission
Symbolic Conduct (Freedom of Expression)
Does it have an (1) expressive purpose and (2) expressive effect? (can also look at traditions)
United States v. Obrien
Draftees burning draft cards so Congress enacted law that made it illegal to destroy your draft card
1. is it within the government's power to restrict? (usually pointless question)
2. unrelated to the suppression of an idea-CN
3. meets a substantial state interest
4. narrowly tailored (AAC)
In this case:
1. Within the government's power to restrict
2. Deemed CN but O'Brien argues goal of legislature was to restrict speech, evidence of legislators saying so,
SC says on its face a CN restriction, not looking at motives of framers
3. meets a substantial state interest in proper functioning of the draft, can't destroy the documents
4. it is sufficiently narrowly tailored
Texas v. Johnson
Johnson burns American flag, SC says treatment of flag expressive conduct, purpose and effect qualifies it and a
restriction on such is CB restriction, garners SS
Dissent: other AAC, balance state's interest and FS concerns, state's interest high and impact is low, like in
Chaplinsky the flag burning should be a separate category like FW taking into account historical traditions
Barnes v. Glen Theatre
Indiana statute prohibited person to appear nude in public place
-SC rejected claim that statute violated 1st, says it is speech so analyze it as expressive conduct
 Plurality: statute is targeting public nudity not expressive conduct and its erotic message
o it is CN, there is a SSI, narrowly tailored, only need g-strings and pasties
 Scalia: this is a conduct regulation not speech, an incidental effect on speech, should garner RBR under DP
and every conduct regulation that incidentally burdens speech should not have to pass 1st scrutiny
o where government regulates conduct precisely because of its communicative attributes such a
restriction is unconstitutional


Souter: touts the secondary effects
Dissent: this is a CB speech restriction that would not pass SS
City of Erie v. Pap's A.M.
SC upheld city ordinance banning nude dancing
-says state's interest in preventing harmful secondary effects is unrelated to the suppression of expression, effect on
overall expression is minimal
-applies the 4 factor O'brien test for evaluating restrictions on symbolic speech
 Dissent Stevens: fails O'Brien, the preamble admits it is targeting free speech, specifically targets the nude
dancing, not a zoning restriction so the secondary effects don't apply
 O'Connor responds: nudity that occurs is still CN, all IS
Nude dancing conduct is expressive conduct and garners IS
Representation of conduct like on a movie, tape or magazine garners SS.
Leaves open question like in Freeman whether conduct protected by creation of speech?
Freedom of Association
NAACP v. Button
VA passed law preventing any organization from retaining a lawyer in connection with litigation to which it was
not a party and where it had no primary right or liability
-SC held law as applied violated the 1st amendment, group with a traditional political goal of defending rights in
courts, there is an expressive component and it triggers 1st amendment protection
-there would need to be a CSI met and the state's interest in regulating champerty and maintenance does not meet
Expressive association doctrine
CB-SS
CN- SS balancing
 CSI and NT v. degree of intrusion on expression
Types of infringement on association
 penalty
 disclosure of membership
 alteration of membership
NAACP v. Alabama
AL statute as applied required out of state corps to disclose names/addresses of members of that organization
-compelled disclosure of affiliation with a group can constitute a restraint on freedom of association
Roberts v. U.S. Jaycees
MN law prohibited discrimination based on sex, Jaycees membership policy excluded women, form of expression
was developing young men and instituting leadership in them
-compelling of group to accept members it does not want can only be done by a CSI (eradicating discrimination),
this goal was unrelated to the suppression of expression (CN)
 important state interest in restricting discrimination v. no real interest in not having women
Boy Scouts of America v. Dale
-struck down decision in NJ that prevented Boy Scouts from expelling gay activist as boy scout leader
 Labeled CN so it garners a SS balancing
o (preventing discrimination v. severe impact Boy Scout's message homosexuality morally wrong)
o the first time expressive association doctrine has ever struck down a civil rights law
o ironically, if you are more discriminatory then you garner more protection

Dissent Stevens: not clear Boy Scouts are a social group have espoused such views; BS can't control every
single one of its members so it is not clear it would upset anything, may not be built on a true viewpoint
Freedom not to Speak
Pruneyard Shopping Center v. Robins
SC upheld CA law allowing public to expressive activity in privately owned shopping centers or malls
-did not restrict mall owner's ability to disassociate themselves from views or to express disfavor with expression
 Disagree: didn't say they didn't agree with it
 Disclaim: shopping center can display it
 Attribution: no concern the messages displayed will be attributed to the mall
 Barnette: holds laws unconstitutional that forces kids to say pledge, court articulates a right not to speak
which is linked to the right to speak (a difference in state dictated and non state dictated message)
Wooley v. Maynard
-live free or die license plate, SS test, forcing them to say it a CB restriction, state pride not a CSI
Rhenquist: it is NT, can put sticker saying you disagree, should be no SS because disagreement disclaim attribution
Hurley
St Patty's Day parade organizers try to prevent participation by gay group and state anti-discrimination statute
mandated that gays be able to participate; no state directed message
-disagreement (check) disclaimer (hard to put disclaimer on parade) attribution (there is likely to be some)
Southworth
Students argue right not to speak violated by their money being used to fund speech they don't agree with
-students ----> fund -----> reasonable + VN -----> student speech


Religion Clauses
Free Exercise Clause
Establishment Clause
Tension
Policies
 freedom of conscience (religion questions important, individual should answer)
 civil disorder (wars in Europe, pitted against each other, compete to be established church)
 gov't corruption of religion (corruption of politics doesn't taint religion)
Historical Understandings of Establishment Clause
1. Federalism: idea that it was this type of religion, no new national church nor could government pass a law
de-establishing the sponsored churches in the states
2. Substantive: individual rights, strategically lots of reasons to invoke the founders
Strict (Jefferson, Madison)
Not Strict (Wash. Adams)
Concerns over Historical Understandings
 Diversity: no more just Christians and Deists
 Expanse of Government: problems with both views, would expand or shrink religion
 Rise of Secularism: religion amkes them feel inferior and not full citizens
Views on the Establishment Clause
1. Strict Separation: no aid theory, can't give anything to religious schools
2. Strict Neutrality: as long as neutral between secular and religion
3. Non-Preferentialism: no religion over another religion
School Prayer Cases
Engel v. Vitale (strikes down school sponsored prayer)
1. concern over liberty of conscience, freedom to leave still invokes coercion
2. there will be disagreement over what that prayer should sound like and what it contains
3. government sponsorship might garner kid's hate directed towards religious material
Dissent Stewart: disadvantage where a kid is moved to go to public school with no evidence of religion, it is a state
created disadvantage, the prayer functions to avoid a problem with the free exercise clause (tension present)
Lemon v. Kurtzman
1. law must have a secular purpose
2. primary effect cannot be to advance or inhibit religion
3. no excessive entanglement
Lee v. Weisman
-non sectarian, civic religion prayer given at middle school graduation ceremony, struck down
-principal functioning to government control of the religious material, also a liberty of conscience concern,
psychological coercion, civic religion can't be established by government even though in founding documents
 4 Concurring Justices: establishment clause is grand scale, reaches more than coercion
 Dissent: no coercion, no participating, just listening, endorsement not a problem nonsectarian civic religion,
o a distinctly Jewish or Christian prayer might be, no liberty of conscience problem
o prevented civil strife by promoting tolerance and pluralism
Sante Fe v. Doe
Student led prayer at school, not state led/mandated, still state action
-gerrymandered scheme gets religious invocation at the school football game, still coercion, state sponsored speech
Elk Grove School District v. Newdow
Objection to Under God in the Pledge of Allegiance, 9th Cir. said it violated Establishment Clause, confusion on
which test to use so use a Lemon, Endorsement, and Coercion Test to find it unconstitutional
-no prudential standing in this case, man had no custody of his child
 O'Connor: called it ceremonial deism with a different secular purpose, it's not a prayer/acknowledgement of
God but instead it solemnizes the occasion
 Liberal justices might still say it's government corruption of religion
Display Cases
Lynch v. Donnelly
Christmas trees, clowns, reindeer, Santa and a creche put up in coordination with RMA
 Burger: uses Lemon test but only uses it as a series of loose free floating factors
1. overall message is secular and it focuses on the holidays and the origin of them
2. effect is the same as the purpose as a way to say "happy holidays"
3. no excessive entanglement with religion as no religious groups are valued
O'Connor: she wants to look at entanglement
 Endorsement test (the subjective purpose + objective effect of display on the reasonable observer)
 Dissents (Brennan and Blackmun): this is a specifically Christian message, Blackmun says government
corrupting religion, creche sits on same level as christmas clown, saying doesn't represent Christianity
Allegheny v. ACLU
Creche (with gloria banner) | Christmas tree and Menorah (Salute to Holidays)
 4 Justices: think both are ok, no coercion
 3 Justices: think both are unconstitutional
 2 Justices: creche unconstitutional, but the christmas tree and menorah are cons. (pluralism message)
2 say there is nothing to remove the patent religious nature of the creche "2 reindeer rule"

Dissent: God of Abraham honored, sectarian message about Judeo Christian religions
Pinatte
Klan wants to put cross on grounds of Ohio state house which was a TPF
-FS test as Klan says a CB speech restriction-unequal access case, it garners SS and the state needs a CSI and NT
 4 Justice Plurality: private speech does not violate the establishment clause
 3 Concurring: private speech can violate the establishment clause if there is the appearance of endorsement
Not NT. There may be CSI but state could create disclaimer (least speech restrictive means of amending violation)
 Dissent (Stevens and Ginsburg): reasonable person would see it as an endorsement, disclaimer couldn't
overcome it
Stone
Applied Lemon to 10 commandments being posted, say there is a secular purpose, secular law heavily influenced
by 10 commandments, SC strikes down as violative, doesn't accept secular purpose
Dissent: recognize the importance of religion in our history
McCeary Counrt
(Court House)
v.
-5/4 no, stuck upon wall, injunction to take down
they put up stuff on wall next to it, try to invoke Lynch
argument but we already know it's history, response to lit
Van Orden v. Perry (Capitol Grounds)
4 follow Stone as violative, 4 say follow dissent,
not violative, acknowledging influence, 1 swing vote
Breyer says no test substitute for reasoned judgment
(there were already 17 other monuments no history
of it being displayed alone) go back to policies instead
of using test, civil strife, LOC, no govt corruption
These cases appear to show a special exception to the 10 commandments from normal establishment clause tests.
This is a heavily fact based test leaving uncertainty in these cases.
Marsh v. Chambers
Neb has legislative chaplain who opens meetings with prayer, this case has no test
 Burger: cites historical analysis, unbroken historical basis/exception to the Establishment Clause, no
recourse to policies or tests
Question over whether the prayer can be sectarian or rotating sectarian prayers
Aid to Schools
Linking equipment, services and money and the interjection of parents and choice into the process.
Lemon variant:
1. Secular purpose: neutrality
a. basis-religion neutral
b. content-religion neutral
2. Secular effect
a. Indirect Aid
i. neutrality test
b. Direct Aid
i. neutrality
ii. divertibility from secular mission to religious mission
iii. substantiality
iv. entanglement
Indirect Aid Cases
Mueller
Tax deduction when parents spent money on tuition, textbooks, went to parents with children at religious schools
 Secular purpose: promotes education in the state, parent's spending towards child's education
 Secular effect: this is indirect aid so do a neutrality test which it passes
Decision attributable to parents, it’s neutral from government standpoint. Only O’Connor believes in a distinction,
8 others believe that the test should be direct or indirect.
 Marshall dissent: large amount of tax money going to religious schools no matter that it’s the parents
choices, $$$ a subsidy to the religious schools, not neutral kids # who end up going to the religious schools
 Rhenquist responds: concerned it could hurt free exercise that you might unfairly target religious schools
Witters
Blind student attending private Christian college, applies for state aid, indirect aid case
Zobrest
Sign language teacher for hearing impaired child but child in Roman Catholic school
 Majority: indirect aid case filtered through parents who choose for child to go to that school
 Dissent: believe it to be direct aid and causes excessive entanglement with religion
Zelman
 School voucher program helps you attend another school, most private school choices are religious
o Has a (1) secular purpose (socio-economically disadvantaged kids get to go to school other than
poor public school). (2) Its effect is neutral because all choices are considered and no one is being
coerced to go to a private school. Aid is incidental and comes through parent’s choice. It only needs
to meet the neutrality factor and it does.
 Dissent: 96% of kids going to religious one, not religiously neutral and based upon free choice when almost
all choosing to opt out of the public school are going to religious schools. Money divertible to religious
purposes, substantial aid, creates entanglement so the voucher system unconstitutional. Must exclude
religious schools if you want to maintain the voucher program.
Aguilar
 State providing special education teachers to private schools for their special-ed students. There were
monitors to make sure these publicly provided teachers weren’t in an environment with religious teachings.
o SC said there may be a secular purpose, but it was a direct aid case because it was not filtered
through the private choice of individuals.
 Concerns about divertibility, without monitors there is an entanglement concern. Aid is too
substantial, symbolic union between church and state creates problem
Agostini (overrules Aguilar)
 No divertibility problem because teachers as trained professionals not to place themselves in situations with
religious symbols. Since no divertibility problem there is no entanglement problem with monitors.
 O’Connor talks about
o supplementing (not substantial) and supplanting (substantial).
o Symbolic union problem non-existent because teachers just walk into a class and teach where the
classroom has no religious symbols.
 Dissent: says it is neutral but it is divertible, necessitating monitoring and causes entanglement, it does
supplant and causes symbolic union problem. Taking over part of the secular education an endorsement.
Mitchell
 Thomas plurality: state lending equipment to religious schools, direct/indirect aid is arbitrary and it should
just be a neutrality test. If it’s money you should be concerned because divertibility concern grows.
 Concurrence narrowest grounds: it is neutral but there is a divertibility problem, there are safeguards to
monitor and prevent this. No substantiality because it is supplemental equipment and not supplanting
because they are buying their own equipment it just supplements theirs.
 Dissent: divertibility real problem with computers, too much aid so it is substantial.
Rosenburger (Part II)

Indirect aid neutrality test because school is paying the printer and the students are deciding what to print.
o Souter: it is direct aid because it pays the bills of the religious group, divertibility is a problem as
well as substantiality and entanglement.
o Kennedy: funding magazine not violative, students choose to publish and school paying a printer so
both combine to ensure this is indirect aid and neutrality is enough
Free Exercise Clause
Old Test (Sherbert)
o Religion-neutral (incidental burden)
 SS balancing, CSI + NT vs. severity of the burden
 not as tough as SS but meant to be protective of the right to FE of religion
o Religious-based
 Some version of strict scrutiny
New Test (Smith)
o Religion-neutral, generally applicable law which incidentally burdens religion
 RBR
o Religion-based
 SS invalid
However, there are exceptions
 If it is hybrid-rights you do a Sherbet analysis.
 If it is individualized assessments you apply Sherbert as well.
Sherbert (1963) (struck down)
 Incidental burden, SS balancing. CSI to avoid people bring claim (extremely expensive or burdensome).
 Severity of the burden is her choosing her job or her religion. Weighed in favor of striking down the law.
Yoder (struck down)
 Religion-neutral, incidental burden on the Amish. SS balancing (CSI is educating children until they are
deemed mature enough). Watered down-Amish aren’t a social problem. Severity of the burden is very big.
 Their talk of the Amish and their history suggests that this might come out different for a different group.
Smith
 Scalia says it is not necessary to do SS balancing for incidental burdens on religion.
o Doesn’t want people able to sidestep laws, too messy, bad judgments investigate religion’s beliefs.
o Native American church members may go to jail but you should go to the legislative process, states
end up responding to this instruction and ones that hadn’t already passed them do.
 2 exceptions are
o Hybrid rights cases like Yoder
 Instruction on how to litigate; add claims to meet this small area
 If no clear breaks then exception swallows the rule; Add 2 losing claims get a winning one.
o Discretionary judgment
 O’Connor concurring: freedom of religious expression should mean when the government incidentally
burdens you that you should get SS balancing. Here would lose SS balancing because of the war on drugs.
o If right SS balancing done then it shouldn’t be messy or create more litigation, no danger of people
doing anti-social conduct and getting a pass.
o Whole point of the judiciary is to grant exemptions to minorities who lose out in politics
Church of Lukani Babalu Aye
 SC sees statute gerrymandered to target the Santarita religion and says it is not a neutral generally
applicable rule as it targets a religion raising a red flag. It garners SS and the CSI is underinclusive.
Free Exercise-Required Accommodations
Locke v. Davey
 EC does not prohibit use of scholarship for religious school and get a certain degree under Zelmar it is
mere indirect aid to a religious institution but FE clause does not mandate the choice.
 The court rules that there is play in the joints, room between separation of church and state for choices.
 If state wants greater separation of church and state it isn’t suspicious, but the direct targeting of religion is.
o Scalia: apply regular SS because it is hostile to religion, even if mild it is hostile on its face.
Amos
 janitor fired for not being Mormon and SC rules it is acceptable play in the joints
 The Lemon test determines if an accommodation is acceptable under EC.
o Secular purpose (prevent government interference, lift the burden on religion, concern over
litigation whether activity secular or religious, threat of litigation special threat on religious groups)
o Secular effect (let various religions advance themselves, government getting out of the way)
o Excessive entanglement (exception being larger means reduced litigation and entanglement)
 Brennan concurrence: concern about individual being discriminated against and concern about the religious
group, purpose of the civil rights law was to prevent discrimination against individuals
 O’Connor wants to do an endorsement analysis.
Texas Monthly v. Bullock
 Tax exemption rel. publication not permissible accommodation, FE does not require it but EC prevents it.
1. Lifts a special burden (not a special burden of paying taxes like everyone else)
2. Broader than religion (if it had been artistic, literary, culture publications, religion etc.)
3. Placed no burden on non-beneficiaries of the exemption (Zorach: school system released children from 6th
period to go to church not a burden) (here thought is it places a burden as other publications are basically
subsidizing it)
Kiryas Joel
 NY creates separate school district for disabled children in Hasidic Jewish village, not required by the FE
clause but the practice is challenged as violating the EP clause.
 There was no upfront guarantee of equality, may not give religious accommodations to all religious
separatist groups, the policy must be religion neutral to do analysis and if it’s not it is per se
unconstitutional under the EC.
o Kennedy concurrence: lines drawn on basis of religion, problem with EC
o Scalia: tiny religious minority gets a break because of culture shock on top of religious disabilities
 This holding specifically calls into question religious specific exemptions like those regarding peyote in
Smith. How do we know the next group wanting to use an illicit substance would get the same treatment?
RFRA
 Struck down under City of Boerne under federalism grounds, however it still applies to the federal
government. Required the administration of SS in cases where religion was incidentally burdened.
RLUIPA
 Used conditional spending to get states to extend protection avoiding the federalism problem. Extended SS
balancing for religious claims arguing violation of free exercise in prisoners and land use matters. FE
doesn’t require application of SS balancing like to the prison inmate but EC allows it. Play in the joints.
Cutter: claim brought arguing prisoner allowed to violate regulation preventing hats for religious reasons, under
Amos it was alright. It lifted a special burden, had secular effect and excessive entanglement avoided, a play in the
joints.
O’Centro: same application except for a religion using a certain type of drug, dicta language says we are
following Cutter, Amos version of Lemon test finds that these general religious accommodation statutes are
alright.